Date when decision was rendered: 21.4.1998

Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus

Reference: Report No. 1245; S97/1376

Reference to source

Registry of the Helsinki Court of Appeal

Helsingfors hovrätts registratorkontor

Helsingin hovioikeuden kirjaamo

Date of publication:

Subject

freedom of expression, legal counsel, limitations of rights and freedoms,
yttrandefrihet, rättegångsbiträde, inskränkningar av friheter och rättigheter,
ilmaisuvapaus, oikeudenkäyntiavustaja, oikeuksien ja vapauksien rajoitukset,

Relevant legal provisions

Chapter 14, section 7 and Chapter 15, section 10a of the Code of Judicial Procedure

= rättegångsbalken 14 kapitel 7 § och 15 kapitel 10a §

= oikeudenkäymiskaari 14 luku 7 § ja 15 luku 10a §.

ECHR-10-2

Abstract

A had been counsel to Company X Ltd. before the Helsinki Court of First Instance.In this position, A had submitted to the court a statement in which he had used insulting and disrespectful language directed towards the chairman of the court.As a result, the court of first instance had prohibited A from appearing before the court for a period of one year, on the basis of Chapter 15, section 10a of the Code of Judicial Procedure.

A appealed to the Helsinki Court of Appeal which noted that it is the task of a legal counsel to represent his client's interests within the limits of the law and professional ethics.The counsel has an obligation to call attention to all faults and deficiencies that he observes.For this reason, his freedom of expression is extensive.The freedom of expression of a legal counsel is, however, limited by Chapter 14, section 7 of the Code of Judicial Procedure.According to Article 10-2 of the ECHR, the freedom of expression may also be restricted, provided that the restriction is prescribed by law and necessary in a democratic society for the protection of the reputation or rights of others or for maintaining the authority and impartiality of the judiciary.Although a legal counsel has an extensive freedom of expression, any criticism directed against a court of law and its chairman must be objective and based on facts.According to the court of appeal, A had failed to present evidence or facts that show that the chairman of the court of first instance, as A claimed, would have demanded unnecessary information regarding the case, that he would have been biased, expressed unlawful demands or tried to lead the parties astray.A could also have expressed his observations without using insulting and disrespectful language.This, together with the fact that A had not answered the inquiries made by the court of first instance show that A has not demonstrated the skills and knowledge necessary for him to act as a legal counsel.The court of appeal concluded that considering the circumstances there are reasons to prohibit A from appearing as a legal counsel before the Helsinki Court of First Instance.The court of appeal upheld the decision by the court of first instance.The Supreme Court refused A leave of appeal.

23.10.2002 / 27.3.2003 / LISNELLM

Date when decision was rendered: 1.10.2004

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2202; R2003/970

Reference to source

KKO 2004:94.

Decisions of the Supreme Court 2004 II July-December

Avgöranden av Högsta domstolen 2004 II juli-december

Korkeimman oikeuden ratkaisuja 2004 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2005

Pages: pp. 621-627

Subject

fair trial, legal counsel,
rättvis rättegång, rättegångsbiträde,
oikeudenmukainen oikeudenkäynti, oikeudenkäyntiavustaja,

Relevant legal provisions

Chapter 12, section 29 and Chapter 26, section 20-1 of the Code of Judicial Procedure

= rättegångsbalken 12 kapitel 29 § och 26 kapitel 20 § 1 mom

= oikeudenkäymiskaari 12 luku 29 § ja 26 luku 20 § 1 mom.

ECHR-6-3

Abstract

When considering A's appeal, the court of appeal had ordered A to attend the main hearing personally under the threat that the case shall otherwise be discontinued.A did not show up at the main hearing but sent his counsel who could not give any legitimate cause for A's absence.On the basis of Chapter 26, section 20-1 of the Code of Judicial Procedure, the court decided that the case is discontinued.A appealed to the Supreme Court and claimed that the court of appeal had acted in breach of Article 6-3-c of the ECHR.A had been present at the main hearing through his counsel.The court's decision thus violated A's right to defend himself through legal assistance.As a court's decision to discontinue a case is not subject to appeal, the Supreme Court considered A's case as an extraordinary appeal.The Supreme Court discussed, among other things, situations in which the case can be considered only when the appellant is present, and those in which the appellant has a right to defend himself or herself by using legal assistance of his or her own choosing.The Court also took notice of the decisions of the European Court of Human Rights in the cases of Poitrimol v.France (judgment of 23 November 1993, Publications of the European Court of Human Rights, Series A, Vol. 277-A), Lala v. the Netherlands and Pelladoah v. the Netherlands (judgments of 22 September 1994, Publications of the European Court of Human Rights, Series A, Vol. 297-A and B), Van Geyseghem v.Belgium (judgment of 21 January 1999, Reports of Judgments and Decisions 1991-I, pp. 127-156), Van Pelt v.France (judgment of 23 May 2000) and Goedhart v.Belgium (judgment of 20 March 2001).In these cases the national court had given its decision on the merits despite the absence of the defendant or appellant, and counsel had not been given the opportunity to appear on the defendant's or appellant's behalf.The decisions were not specifically concerning the discontinuation of a case.The Supreme Court pointed out that it did not follow from the wording of Chapter 26, section 20-1, that a case should always be discontinued when the appellant is absent from the main hearing despite being ordered to attend.The court should consider whether it is justified to assess some specific questions in the case by hearing the appellant's counsel only.If it then turns out that it is not necessary to hear the appellant after all, the case should not be discontinued though the appellant is absent.However, in A's case the court of appeal could not have reassessed A's guilt without hearing him personally.Therefore, the court's decision to discontinue the case on the basis of the Code of Judicial Procedure was correct.The Supreme Court also ruled that on the basis of the case law of the European Court of Human Rights it could not be concluded that the possibility to discontinue a case would be contrary to Article 6-3-c of the ECHR.One concurring justice agreed that a court should have the right to order an appellant to attend the main hearing personally.However, in his view, placing the appellant under a threat that the case is discontinued, if the appellant is absent, and interpreting this order very strictly, may be problematic with regard to the appellant's rights of defence.

22.4.2005 / 2.6.2006 / RHANSKI

Date when decision was rendered: 10.4.2013

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 817

Reference to source

KKO 2013:25.

Decisions of the Supreme Court 2013 January-June

Avgöranden av Högsta domstolen 2013 januari-juni

Korkeimman oikeuden ratkaisuja 2013 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2013

Pages: pp. 205-210

Subject

fair trial, self-incrimination, pretrial investigation, preparation of defence, legal counsel,
rättvis rättegång, utsätta sig för åtal, förundersökning, förberedande av försvar, rättegångsbiträde,
oikeudenmukainen oikeudenkäynti, saattaa itsensä syytteen vaaraan, esitutkinta, puolustuksen valmisteleminen, oikeudenkäyntiavustaja,

Relevant legal provisions

sections 10, 29 and 30 of the Criminal Investigations Act; Chapter 17, sections 2, 4 and 32 of the Code of Judicial Procedure; Chapter 2, section 1 and Chapter 6, section 7 of the Criminal Procedure Act

= förundersökningslagen 10 §, 29 § och 30 §; rättegångsbalken 17 kapitel 2 §, 4 § och 32 §; lag om rättegång i brottmål 2 kapitel 1 § och 6 kapitel 7 §

= esitutkintalaki 10 §, 29 § ja 30 §; oikeudenkäymiskaari 17 luku 2 §, 4 § ja 32 §; laki oikeudenkäynnistä rikosasioissa 2 luku 1 § ja 6 luku 7 §.

ECHR-6-3-c; CCPR-14-3-d

Abstract

The court of first instance had sentenced X to imprisonment for illegal possession of drugs with intent to sell.The court of appeal had increased the punishment, because in the appeal court's view it had been shown that X had also sold drugs.As grounds for its decision the court of appeal referred to three statements X had given when being questioned in the pretrial investigation.X had later retracted these statements during the court proceedings.The appeal court did not regard X's statement in court as plausible.X appealed to the Supreme Court.

The main question before the Supreme Court was whether X's right to legal assistance in the pretrial investigation and the privilege against self-incrimination had been breached to the effect that the pretrial investigation statements could not be used as evidence against X.In addition to the relevant national legislation, the Supreme Court referred to the ECHR and the case law of the European Court of Human Rights concerning the right to legal assistance and waiver of legal assistance (Salduz v Turkey, judgment of 27 November 2008; Panovits v Cyprus, judgment of 11 December 2008; Yoldas v Turkey, judgment of 23 February 2010; Brusco v France, judgment of 14 October 2010; and Leonid Lazarenko v Ukraine, judgment of 28 October 2010).

According to the pretrial investigation records, X had been informed before the first questioning of his position in the investigation, his right to request the presence of a credible witness, the specific offence in which he was suspected, his right to retain counsel in the investigation, and of in which situations a public defender may be assigned to him.On the following two occasions of questioning X had, according to the pretrial investigation records, said he does not need legal counsel or a credible witness.X had inspected and signed the pretrial investigation records.X had not claimed that he would have requested the presence of legal counsel or a credible witness in the pretrial investigation, nor had he referred to the privilege against self-incrimination.The Supreme Court found nothing which would have suggested that X would not have known in which offence he was suspected or that X would not have appreciated the consequences of waiving the right to legal counsel and a credible witness, or that persuasion, coercion or other improper methods would have been used in order to make X tell things that were to his disadvantage.The Supreme Court concluded that the waiver of legal counsel and a credible witness could under the circumstances be established in an unequivocal manner.X's rights in the pretrial investigation had thus not been breached to the effect that the pretrial investigation statements could not have been used as evidence against him.

The Supreme Court pointed out that there were no legal provisions concerning the value as evidence of a suspect's confession at the pretrial investigation stage.The court had considered this question in its earlier decision KKO 2000:35 of 20 March 2000, in which case the court had concluded that although a retracted confession could be used as evidence, it is clear that a pretrial investigation statement which is later retracted by the suspect in the court proceedings cannot be the sole or mail basis for a conviction.The Supreme Court found that in the instant case, other evidence presented by the prosecutor, in addition to the pretrial investigation statements, did not explicitly show that X had also sold drugs.Rather, as the court of first instance had found, evidence showed that X had been guilty of possession of drugs with intent to sell.The pretrial investigation statements, which had later been retracted, were thus the main evidence to show that X had been quilty of selling drugs.A conviction cannot be based on such evidence alone.Other evidence presented in the case was not sufficient to support conviction.The Supreme Court ruled that the charges for selling drugs were to be dismissed as unsubstantiated.

23.9.2014 / 29.5.2017 / RHANSKI

Date when decision was rendered: 9.5.2012

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 861; R2011/704

Reference to source

KKO 2012:45.

Decisions of the Supreme Court 2012 January-June

Avgöranden av Högsta domstolen 2012 januari-juni

Korkeimman oikeuden ratkaisuja 2012 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2012

Pages: 296-310

Subject

fair trial, preparation of defence, self-incrimination, legal counsel, pretrial investigation, interpretation,
rättvis rättegång, förberedande av försvar, utsätta sig för åtal, rättegångsbiträde, förundersökning, tolkning,
oikeudenmukainen oikeudenkäynti, puolustuksen valmisteleminen, saattaa itsensä syytteen vaaraan, oikeudenkäyntiavustaja, esitutkinta, tulkkaus,

Relevant legal provisions

Chapter 17, section 32 of the Code of Judicial Procedure; Chapter 6, section 7-2 of the Criminal Procedure Act; sections 10, 29, 37 and 39 of the Criminal Investigations Act

= rättegångsbalken 17 kapitel 32 §; lag om rättegång i brottmål 6 kapitel 7 § 2 mom.; förundersökningslagen 10 §, 29 §, 37 § och 39 §

= oikeudenkäymiskaari 17 luku 32 §; laki oikeudenkäynnistä rikosasioissa 6 luku 7 § 2 mom.; esitutkintalaki 10 §, 29 §, 37 § ja 39 §.

ECHR-6-3-c; ECHR-6-3-e

Abstract

X had been in custody when being questioned by the police on suspicion of an aggravated narcotics offence.X had been appointed a defender who, however, was not present during the questioning.X did not speak Finnish, so the language used in questioning was English.The official record of the questioning was prepared in Finnish, and the police officer had given X an oral translation of the record in English.According to the pretrial investigation records, X had been informed by the police before the questioning of his right to counsel, but not of his right to remain silent and his right not to incriminate himself.The police had been aware that X had not consulted his counsel before the questioning.In the court of appeal, X was convicted for aggravated narcotics offence, grossly negligent homicide and grossly negligent bodily injury.The conviction was partly based on X's pretrial investigation statements which the prosecutor had referred to as evidence supporting X's guilt.

The Supreme Court found that, despite the evidence received in the oral hearing before the Supreme Court, it was not clear why X had failed to meet with his counsel.Apparently, counsel should have provided more effective assistance.On the other hand, the police had not notified him in advance as to when exactly X's questioning would take place.The Supreme Court held that the appointment of a defender for X or the fact that X had continued to answer questions in the absence of his counsel did not relieve the authorities from their duty to guarantee the suspect's rights of defence.Such guarantees must be practical and effective.The mere appointment of a defender is not necessarily sufficient.The Supreme Court concluded that X could not be regarded as having waived his right to counsel at the pretrial investigation stage in a knowing and unequivocal manner, as established in the case law of the European Court of Human Rights.Nor could X be regarded as having been fully aware of the offences he was suspected in or what the legal consequences of the waiver would be.As far as the working language of the questioning was concerned, the Supreme Court ruled that questioning X in English had not as such been in breach of X's rights.However, preparing the record of the questioning in Finnish, when the questioning had in fact been in English, was not in accordance with the Criminal Investigations Act.X had not been able to himself review the contents of the record of the questioning before signing it.

The Supreme Court concluded that there had been a breach of X's rights of defence and his right not to incriminate himself to the effect that X's statements in the pretrial investigation could not be used as evidence against him.In its decision, the Supreme Court discussed in detail the case law of the European Court of Human Rights on guarantees of a fair trial at the pretrial investigation stage, the waiver of the right to legal counsel and the minimum safeguards required in such a case.

1.10.2014 / 1.10.2014 / RHANSKI