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Date when decision was rendered: 26.11.1993 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 4287; R93/253 Reference to source KKO 1993:152. Decisions of the Supreme Court 1993 II July-December Avgöranden av Högsta domstolen 1993 II juli-december Korkeimman oikeuden ratkaisuja 1993 II heinä-joulukuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1994 Pages: pp. 684-692 Subject
right to freedom from retroactivity,
nulla poena sine lege,
Relevant legal provisions Chapter 7, sections 7 and 8 of the Penal Code, section 3 of the Implementing Ordinance of the Penal Code = strafflagen 7 kapitel 7 § och 8 §, Förordning om införande av strafflagen 3 § = rikoslaki 7 luku 7 § ja 8 §, asetus rikoslain voimaanpanemisesta 3 §. ECHR-7-1 (Explicit reference to the ECHR in the court of first instance, implicit reference to the ECHR in the judgment of the Supreme Court Abstract Chapter 7 of the Penal Code, dealing with sentencing separate crimes committed by the same person, had been amended through Act No. 697 of 1991.In a complicated criminal case, the application of the relevant transitory provisions seemed to cause that the defendant was to receive a more severe punishment than according to the rules in force at the time of the offences.The court of first instance and the court of appeal had dismissed the prosecutor's claim to sentence a combined punishment according to the new provisions.Dismissing the prosecutor's claim would lead to an outcome which was against the prohibition of retroactive criminal law and which apparently was not intended when Chapter 7 of the Penal Code was amended.Therefore the Supreme Court considered that the provisions of Chapter 7, as in force since 1 April 1992, may be applied in spite of the wording of the transitory provisions of Act No. 697 of 1991.In this way it was possible to avoid the outcome of the court's consideration of sanctions becoming more severe than it would have been if the law in force at the time of the offences had applied.The defendant was sentenced to imprisonment for 2 years and 3 days. 26.3.1998 / 9.2.2010 / RHANSKI
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Date when decision was rendered: 19.5.2004 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 1093; R2002/688 Reference to source KKO 2004:46. Decisions of the Supreme Court 2004 I January-June Avgöranden av Högsta domstolen 2004 I januari-juni Korkeimman oikeuden ratkaisuja 2004 I tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2004 Pages: 284-293 Subject
nulla poena sine lege,
Relevant legal provisions Chapter 29, section 4 of the Penal Code = strafflagen 29 kapitel 4 § = rikoslaki 29 luku 4 §. ECHR-7 Abstract The case was concerning a tax violation under Chapter 29, section 4 of the Penal Code.The question was whether the term "insolvency", which the provisions refers to, could be interpreted differently as compared to the interpretation of the same term in other contexts in the Penal Code, in particular, dishonesty by a debtor under Chapter 39, section 1 of the Penal Code.The Supreme Court noted that it is not exceptional in legislation that a term is bound to its context.It is more problematic if different meanings are given to a term within the framework of one and the same Act.In the Supreme Court's opinion, the requirement for accuracy of penal provisions could not be interpreted so strictly as to completely exclude the possibility of giving various meanings to a term, when the norms refer to different types of offences and the interests protected by the penalization of the specific acts are different.The Court was also of the opinion that it was not contrary to the principle of legality when penal provisions were clarified and specified through case law.Here the Court referred to the European Court of Human Rights and the case of C.R. v. the United Kingdom (judgment of 22 November 1995, Publications of the European Court of Human Rights, Series A, Vol. 335-C).The Supreme Court concluded that the term "insolvency" in the context of a tax violation could be interpreted as it had been established in case law, although this interpretation differed from the interpretation of the same term in the context of dishonesty by a debtor. 22.4.2005 / 22.4.2005 / ASADINMA
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Date when decision was rendered: 3.11.2004 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 2468; R2003/650 Reference to source KKO 2004:109. 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. 698-708 Subject
nulla poena sine lege,
intellectual property rights,
principle of legality,
Relevant legal provisions Chapter 36, sections 1 and 2 of the Penal Code; sections 26a and 26d of the Copyright Act; section 8 of the Constitution Act = strafflagen 36 kapitel 1 § och 2 §; upphovsrättslag 26a§ och 26d §; grundlagen 8 § = rikoslaki 36 luku 1 § ja 2 §; tekijänoikeuslaki 26a§ ja 26d §; perustuslaki 8 §. ECHR-7 Abstract A had produced empty video cassettes and had also imported raw tape used in the manufacture of the cassettes.According to law A should have informed the Finnish Composers' Copyright Society of his activities in order for the society to collect the statutory copyright fees.A had failed to do so, and the question was whether A could be charged with fraud.The Supreme Court discussed, among other things, the definition of fraud in the Penal Code and in particular the interpretation of the words "deceive another or take advantage of an error of another".With regard to the manufacture of video cassettes, the Supreme Court ruled that A had neglected to inform the copyright society, but by doing so he had not led the society believe something which was not true and had therefore not deceived the copyright society.In discussing whether A had taken advantage of an error of the copyright society, the Court referred to the principle of legality which requires a narrow interpretation when considering whether an act constitutes an offence.The Court pointed out that legal terms, unless specifically defined in law, should have the same meaning as in common language usage.In everyday language the word "error" means more than "not being aware".The Court concluded that A had not taken advantage of an error of the copyright society and, as far as the manufacture of video cassettes was concerned, A's actions did not amount to fraud as prescribed in the Penal Code.However, the situation was different with regard to the import of raw tape.A had given false information to the customs authorities by importing the material as cellophane.Import of raw tape for the manufacture of video cassettes requires that a notification is made to the copyright society.The goods will not pass the customs unless the copyright fees have been paid.The Supreme Court concluded that A's actions amounted to fraud as far as the import of the raw tape was concerned.The Court also ordered A to pay the copyright fees for both the video cassettes and the raw tape.Two justices of the Supreme Court were of the opinion that A could be convicted for fraud also with regard to the manufacture of video cassettes.In their view, the principle of legality does not outlaw the gradual clarification of legal provisions through judicial interpretation, provided that the interpretation is consistent with the purpose of the protection sought by penal provisions and that the liability to punishment is reasonably forseeable.A's duty to inform the copyright society was based on the law and formed an essential part of the system for the collection of copyright fees.That fact that the copyright society was not aware of A's activities because A had neglected his duty to inform the society, could be interpreted to the effect that A had taken advantage of an error of the society in order to obtain financial benefit.In the two justices' opinion, this interpretation was not inconsistent with the purpose of the protection sought by the penal provisions.It was not in contradiction with the wording of the provision or common language usage either.In their opinion, the two justices referred to the decisions of the European Court of Human Rights in the cases of C.R. v. the United Kingdom (judgment of 22 November 1995, Publications of the European Court of Human Rights, Series A, Vol. 335), Cantoni v.France (judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V) and Ba kaya and Okçuo lu v.Turkey (judgment of 8 July 1999, Reports of Judgments and Decisions 1999-IV). 22.4.2005 / 2.6.2006 / RHANSKI
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Date when decision was rendered: 18.2.2004 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 313; 3011/1/02 Reference to source KHO 2004:15. Yearbook of the Supreme Administrative Court 2004 January-June Högsta förvaltningsdomstolens årsbok 2004 januari-juni Korkeimman hallinto-oikeuden vuosikirja 2004 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2008 Pages: pp. 121-129 Subject
nulla poena sine lege,
principle of legality,
right to work,
Relevant legal provisions sections 5-2, 7, 8, 22 and 23 of the Act on Real Estate Businesses and Apartment Rental Agencies (1075/2000); sections 8 and 18 of the Constitution Act = lag om fastighetsförmedlingsrörelser och rörelser för förmedling av hyreslägenheter och hyreslokaler 5 § 2 mom., 7 §, 8 §, 22 § och 23 §; grundlagen 8 § och 18 § = laki kiinteistönvälitysliikkeistä ja vuokrahuoneiston välitysliikkeistä 5 § 2 mom., 7 §, 8 §, 22 § ja 23 §; perustuslaki 8 § ja 18 §. ECHR-7 Abstract In October 2001, the county administrative board had made a decision not to enter real estate business X into a specific register for real estate agencies.According to law, registration is necessary in order for a real estate business to carry out its activities.As grounds for the refusal, the county administrative board stated that the manager of the real estate business, Y, could not be considered reliable.The board referred to section 5-2 of the Act on Real Estate Businesses which prescribes that a manager can be regarded as reliable, among other things, if he or she has not been sentenced to prison during the past five years by a judgment that is legally valid.The Act entered into force in March 2001.Y had been sentenced to prison in 1998 for an empezzlement offence and some other offences.The law which was in force in 1998 did not contain any provisions, equivalent to those of the new Act, on the reliability of the manager of a real estate business. In its decision, the Supreme Administrative Court referred to the principle of legality in criminal cases as provided for in section 8 of the Constitution Act and Article 7 of the ECHR.The Court pointed out that although this case did not concern a penalty for a criminal offence but requirements for registration, the principle of legality in criminal cases was of relevance.When convicted in 1998, Y could not foresee that a new law would be enacted in 2001 including qualification requirements for a manager of a real estate business.The Court ruled that taking into account the principle of legality, the assessment of the manager's reliability as regards offences committed before the entry into force of the Act on Real Estate Businesses could not be categorically bound to the time period of five years prescribed in section 5-2 of the Act.According to the Court, the principle of legality, the constitutional right to work and the freedom to engage in commercial activity do not as such prevent it that offences committed before the entry into force of the Act on Real Estate Businesses are taken into account when assessing the reliability of a manager.Section 5-2 of the Act also provides that a person cannot be regarded as reliable if that person in his or her previous activities in general has shown that he or she is clearly unsuitable for the task of a manager.In such assessment of the matter in its entirety, it is possible to take into account whether a person has been guilty of a criminal offence, the nature of that offence and the time which has elapsed after the offence has been committed.In the Court's opinion, the county administrative board should not have refused to register real estate business X on the grounds given in its decision.Without taking a stand on Y's reliability, the Supreme Administrative Court quashed the decisions of the administrative court and the county administrative board and returned the matter to the board for a new consideration. 25.4.2005 / 3.7.2009 / RHANSKI
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Date when decision was rendered: 14.12.2005 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 3064; R2005/736 Reference to source KKO 2005:132. Decisions of the Supreme Court 2005 II July-December Avgöranden av Högsta domstolen 2005 II juli-december Korkeimman oikeuden ratkaisuja 2005 II heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2006 Pages: pp. 960-964 Subject
nulla poena sine lege,
right to freedom from retroactivity,
principle of legality,
Relevant legal provisions section 78-1 of the Road Traffic Act; section 8 of the Constitution Act = vägtrafiklagen 78 § 1 mom.; grundlagen 8 § = tieliikennelaki 78 § 1 mom.; perustuslaki 8 §. ECHR-7 Abstract A court of first instance had sentenced X to a fine and a driving ban for having caused a traffic hazard in April 2005.The driving ban was due to expire 30 April 2006.The court based its decision on the amended Road Traffic Act, which came into force 1 March 2005 and provides that the minimum period of a driving ban is one year in cases where the driver has been found guilty of causing a traffic hazard twice within five years.Before April 2005, X had been convicted of having caused a traffic hazard in January 2002.The old Road Traffic Act only prescribed the maximum period for a driving ban, but did not give a minimum period, for example, in case of recidivists.In his appeal to a court of appeal and further to the Supreme Court, X referred to the decision of the European Court of Human Rights in the case of Achour v.France (judgment of 10 November 2004).X argued that because of the prohibition of retroactive application of criminal law, his previous conviction could not be taken into account as an aggravating circumstance when deciding, under the amended Road Traffic Act, on the length of the driving ban imposed on him due to the second offence. The Supreme Court held that in X's case the applicable law is the law which was in force when X committed his second offence, that is the amended Road Traffic Act.When committing the offence, X was aware of the amendment and of the fact that his previous offence would be taken into account when imposing a driving ban in case of a new offence.The driving ban was a consequence of the new offence and the penalty was harsher because of X's previous offence; it was not an additional penalty for the previous offence.Regarding the Achour case, the Supreme Court held that X's case was different from Achour's.Achour had been convicted as a recidivist to a harsher penalty in accordance with new legislation, though he had committed his second offence after the statutory limitation period under the previous legislation had already expired.In Achour's case, the application of the new legislation restored a legal situation that had already ceased to have effect.The Supreme Court held that in practice X's previous offence would apparently have been taken into account as an aggravating circumstance even under the old Act though the length of a driving ban in that case would have been shorter than under the amended Act.The Supreme Court concluded that the application of the amended Road Traffic Act in X's case did not constitute retroactive application of criminal law.It upheld the decision of the court of appeal. 29.5.2006 / 29.5.2006 / RHANSKI
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Date when decision was rendered: 12.7.2005 Judicial body: Court of Appeal of Eastern Finland = Östra Finlands hovrätt = Itä-Suomen hovioikeus Reference: Report no. 874; R05/745 Reference to source I-SHO 2005:13. Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta Date of publication: Subject
nulla poena sine lege,
right to freedom from retroactivity,
principle of legality,
Relevant legal provisions sections 75-1 and 78-1 of the Road Traffic Act = vägtrafiklagen 75 § 1 mom. och 78 § 1 mom. = tieliikennelaki 75 § 1 mom. ja 78 § 1 mom. ECHR-7 Abstract In May 2005, a court of first instance sentenced A to a fine and a driving ban for the offence of drunken driving committed in April 2005.A had previously been convicted of aggravated drunken driving in July 2001.The main question in this case was whether the previous conviction affected the length of the driving ban imposed on A, considering that the provisions concerning driving ban in the Road Traffic Act were amended during the time between the first and the second offence.Previously, the Act only gave the maximum period for a driving ban (five years) but did not define the minimum period.According to the amended provisions, which came into force 1 March 2005, the minimum period for a driving ban is six months in cases where the driver has within the previous five years already been convicted of drunken driving and commits the same offence again.The court of first instance tried A as a first offender and imposed the driving bank for a period expiring in mid-July 2005.The length of the ban corresponded to the court practice prevailing before the coming into force of the amended Road Traffic Act.The court held that because A's first offence was committed before the coming into force of the amended Act, the new provisions providing for a harsher penalty could not be applied without violating the principle of legality.Here the court referred to the case of Achour v.France (judgment of 10 November 2004), in which the European Court of Human Rights had found a violation of Article 7 of the ECHR because of a retroactive application of a law providing for a harsher punishment. The court of appeal agreed that the Achour judgment supported the interpretation that offences which the defendant had been convicted of before the coming into force of the amended Road Traffic Act could not be taken into account when imposing a driving ban under the new provisions.However, the court noted that in the Achour case the previous statutory limitation period for recidivism had expired before the defendant committed his second offence and before the new, harsher provisions and the longer limitation period came into force.The court of appeal held that the amended provisions concerning a driving ban are clearly formulated in the Road Traffic Act.A is not punished on the basis of these provisions for his previous offence but for an offence committed after the coming into force of the amended Act.After the amended Act had come into force, A had been aware of the consequences he would face if he were to be convicted as a recidivist under the Act.On these grounds the court of appeal found that offences committed before the coming into force of the amended Road Traffic Act can be taken into account as prescribed in the Act when considering the length of a driving ban imposed on a person who has been convicted of drunken driving after the coming into force of the amended Act.In the court's view, this was not in contradiction with the principle of legality.The court extended A's driving ban until mid-December 2005.The decision is final.One dissenting member of the court referred to the prohibition of retroactive application of criminal law and agreed with the decision of the first instance court. 29.5.2006 / 30.5.2006 / RHANSKI
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Date when decision was rendered: 6.7.2005 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 1665; H2005/96 Reference to source KKO 2005:84. Decisions of the Supreme Court 2005 II July-December Avgöranden av Högsta domstolen 2005 II juli-december Korkeimman oikeuden ratkaisuja 2005 II heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2006 Pages: pp. 606-609 Subject
right to marry,
aliens,
principle of legality,
nulla poena sine lege,
marriage,
immigration,
Relevant legal provisions Chapter 16, section 7-1 of the Penal Code; Chapter 31, section 8-4 of the Code of Judicial Procedure = strafflagen 16 kapitel 7 § 1 mom.; rättegångsbalken 31 kapitel 8 § 4 mom. = rikoslaki 16 luku 7 § 1 mom.; oikeudenkäymiskaari 31 luku 8 § 4 mom. Abstract Four Finns had each married Russian spouses.All four marriages ended after the Russian spouses had been granted residence permits in Finland.The Finns conceded that they had been paid or offered a reward for the marriage.Marriages of convenience contracted in order to circumvent immigration rules are not criminalized in Finnish law.However, the genuineness of a marriage may be assessed in the context of an application for a residence permit on the basis of a family tie.If the marriage has been contracted only in order to circumvent the rules on entry, the application for a residence permit is rejected. In this case, the four Finns as well as one of the Russian spouses were charged with a registration offence under the Penal Code.Summoning the three other Russian spouses for trial failed.The court of first instance held that when saying "I do" as a part of the marriage ceremony, the defendants had provided false information and had thus caused a legally relevant error in the population register where marriages are registered.The defendants were sentenced to suspended imprisonment. At the initiative of the Deputy Chancellor of Justice, the Supreme Court took up the case as a reversal of a final judgment.The Supreme Court held that in regard to the legitimacy of a marriage, the motives for the marriage are irrelevant.Though the motives for a marriage may in some issues have legal relevance, they are not entered in the population register.Therefore, the faultiness of a register entry regarding marriage cannot be determined on the basis of the motives of the marriage.Consequently, a register entry about marriage cannot be deemed false on the grounds that the marriage is contracted in order to obtain a residence permit.The Supreme Court ruled that in this case the defendants' deeds did not constitute a registration offence under the Penal Code.It reversed the decision of the first instance court to the benefit of the defendants as being based on a manifest misapplication of the law. 29.5.2006 / 29.5.2006 / RHANSKI
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Date when decision was rendered: 6.10.2005 Judicial body: Kouvola Court of Appeal = Kouvola hovrätt = Kouvolan hovioikeus Reference: Report no. 1111; R05/740 Reference to source KouHO 2005:7. Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta Date of publication: Subject
nulla poena sine lege,
right to freedom from retroactivity,
principle of legality,
Relevant legal provisions sections 75 and 78 of the Road Traffic Act = vägtrafiklagen 75 § och 78 § = tieliikennelaki 75 § ja 78 §. ECHR-7 Abstract A court of first instance had imposed a driving ban on X for the offence of drunken driving committed on 23 March 2005.X had been found guilty of aggravated drunken driving before, in July 2001.The main question in this case was whether the previous conviction affected the length of the driving ban, considering that the provisions concerning driving ban in the Road Traffic Act were amended during the time between the first and the second offence.The old Act did not define any minimum period for a driving ban.According to the amended provisions, which came into force 1 March 2005, the minimum period for a driving ban is six months in cases where the driver has within the previous five years already been convicted of drunken driving and commits the same offence again.The Act amending the Road Traffic Act did not contain any transition provisions, so it was not clear whether the amended Act also applied concerning offences which had been committed while the old Act was still in force.The court of first instance held that in this case applying the amended provisions would mean a retroactive application of the law to X's disadvantage.Therefore, the court ruled that the length of the driving ban was to be 3 months and 14 days, i.e. shorter that the minimum period required by the amended Act.The prosecutor brought the case before a court of appeal requesting a six-month driving ban at a minimum. The court of appeal held that the case of Achour v.France (judgment of 10 November 2004), in which the European Court of Human Rights had found a violation of Article 7 of the ECHR because of a retroactive application of a harsher penalty, supported the interpretation that offences which the defendant had been convicted of before the coming into force of the amended Road Traffic Act could not be taken into account when imposing a driving ban under the new provisions.However, the court of appeal noted that in the Achour case the previous statutory limitation period for recidivism had expired before the defendant committed his second offence and before the new, harsher provisions and the longer limitation period came into force.In the case of Achour, the effects of the longer statutory limitation period had thus been applied retroactively.The court of appeal found that this was not the case when applying the amended Road Traffic Act.X had been guilty of drunken driving after the amended provisions had entered into force, and therefore, in the court's opinion, he was, or at least he should have been, aware of the amended Act and the consequences he would face if he were to be convicted as a recidivist under the Act.The court concluded that X's previous offence should be taken into account.Thus, the total length of the driving ban was to be six months, including the ban imposed by the court of first instance which had expired before the decision of the appeal court.The decision is final. 30.5.2006 / 30.5.2006 / RHANSKI
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