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Date when decision was rendered: 4.6.1997 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report No. 2061; R96/1572 Reference to source Registry of the Helsinki Court of Appeal Helsingfors hovrätts registratorskontor Helsingin hovioikeuden kirjaamo Date of publication: Subject
respect for private life,
communication,
respect for correspondence,
freedom of expression,
limitations of rights and freedoms,
Relevant legal provisions Section 8 of the Constitution Act; sections 27 and 28 of the Criminal Investigations Act = regeringsformen 8 §; förundersökningslagen 27 § och 28 § = hallitusmuoto 8 §; esitutkintalaki 27 § ja 28 §. ECHR-8, ECHR-10 Abstract The police was investigating an alleged copyright offence in which an unidentified person had sent e-mail messages infringing copyrights to Internet newsgroups through an anonymous server run by a Finnish company.A, the managing director and owner of the company, was heard as a witness during the pretrial investigation of the case.The police demanded that A hand over to the police the sender's e-mail address which had been recorded in the anonymous server's database.A referred to the confidentiality of the message and refused.On the application of the police, the court of first instance made a decision obligating A to reveal the e-mail address.A appealed against the decision to the Helsinki Court of Appeal referring to section 8 of the Constitution Act and to the protection of the confidentiality of a message.The court of appeal noted that the protection of the confidentiality of a message, as prescribed in section 8 of the Constitution Act, covers not only the contents of the message but also other information which is relevant with regard to the confidentiality of the message, such as the name and address of the sender or the receiver.However, in this case the messages were sent to newsgroups in a public Internet network and were thus public.The fact that the messages were sent through an anonymous server was not relevant.The court of appeal concluded that A could not refuse to reveal the e-mail address on the basis of section 8 of the Constitution Act and that there were no other legal grounds for such refusal either.The court further referred to Articles 8 and 10 of the ECHR and noted that the rights protected by these articles may be subject to restrictions which are prescribed by law and necessary, for example, for the purposes of crime investigation.A was obligated to reveal the requested information.The Supreme Court refused A leave to appeal. 1.4.1998 / 30.5.2006 / RHANSKI
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| [2 / 19] |
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,
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
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| [3 / 19] |
Date when decision was rendered: 5.5.2000 Judicial body: Administrative Court of Hämeenlinna = Tavastehus förvaltningsdomstol = Hämeenlinnan hallinto-oikeus Reference: Report No. 00/311/4; 00246/00/5730, 00247/00/5730 Reference to source Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta Date of publication: Subject
fair trial,
right to property,
legal protection,
access to court,
limitations of rights and freedoms,
Relevant legal provisions sections 9 and 9b of Act on passenger road transport which is subject to licence (343/1991); section 18 of the Constitution Act = lag om tillståndspliktig persontrafik på väg 9 §, 9b §; grundlagen 18 § = laki luvanvaraisesta henkilöliikenteestä tiellä 9 §, 9b §; perustuslaki 18 §. ECHR-6-1; ECHRP-1-1 Abstract The county administrative board refused to renew A's licence to provide taxi services.A had plenty of unpaid taxes and other payments which resulted from his taxi business and were being claimed by the authorities through execution proceedings.A could not be regarded as having a good financial standing or being able to take care of his obligations and did not therefore fulfill the requirements for granting a licence as provided for in section 9 of the Act on passenger road transport.A appealed to the administrative court and referred to Article 6-1 of the ECHR and Article 1 of Protocol No. 1 to the ECHR.A claimed that the licence itself constituted his possessions.As the matter was concerning A's civil rights, it should not have been decided by an administrative authority but by a court. According to the administrative court, Article 6-1 of the ECHR did not presuppose that all matters concerning freedom of occupation or the protection of property should be in the first hand decided by a court.Instead the provision calls for the possibility of a fair trial in case a person wishes to appeal against the decision.The court noted that A had this possibility.Regarding Protocol No. 1, the court drew attention to the fact that, according to Article 1, it is possible to restrict the right to the peaceful enjoyment of one's possessions provided the restriction is proportional, in the public interest and subject to conditions provided for by law.In the court's opinion, the state may take active measures to restrict competition in the taxi branch in order to guarantee the quality of the service and the livelihood of the taxi entrepreneurs.It is justified to say that avoiding statutory taxes and payments could result in the distortion of competition and in inequality among the entrepreneurs on the branch.The requirement concerning the good financial status of the licence holder was thus not in contradiction with Protocol No. 1. The court further noted that the requirements for obtaining a licence were unambiguous and clear enough to fulfill the criteria of being "provided by an Act", as prescribed in section 18 of the Constitution Act, concerning the right of everyone to freely choose his or her occupation.There was thus no contradiction with the Constitution Act. The Supreme Administrative Court did not change the decision of the administrative court (decision of 28 February 2001, Report No. 331). 28.10.2002 / 8.5.2003 / LISNELLM
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| [4 / 19] |
Date when decision was rendered: 14.8.2003 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 1941; R2001/748 Reference to source KKO 2003:69. Decisions of the Supreme Court 2003 II July - December Avgöranden av Högsta domstolen 2003 II juli - december Korkeimman oikeuden ratkaisuja 2003 II heinä - joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2004 Pages: 396-400 Subject
freedom of expression,
limitations of rights and freedoms,
lawyers,
Relevant legal provisions Chapter 14, section 7 and Chapter 30, section 2 of the Code of Judicial Procedure = rättegångsbalken 14 kapitel 7 § och 30 kapitel 2 § = oikeudenkäymiskaari 14 luku 7 § ja 30 luku 2 §. ECHR-10 Abstract A, who had acted as an attorney in an appeal case, had been sentenced to a fine by the court of appeal for having used offensive and disrespectful language in the letter of appeal.A had, among other things, criticized the members of the first instance court and their judicial ethics.The decision of the court of appeal was based on Chapter 14, section 7 of the Code of Judicial Procedure.A appealed to the Supreme Court.In its decision, the Supreme Court concentrated on the question whether it was possible in this case to appeal without leave to appeal, and came to an affirmative conclusion.As to the merits, the Supreme Court did not change the decision of the court of appeal.One justice of the Supreme Court submitted a concurring opinion, and another justice agreed with this opinion.In the concurring opinion, the justice discussed, among other things, the possibility of restrictions of the right to freedom of expression under Article 10-2 of the ECHR.He concluded that the penal provision in Chapter 14, section 7 of the Code of Judicial Procedure constituted a restriction which was necessary for the appropriate administration of justice and which applied also to statements and letters submitted to the court by an attorney on behalf of his or her client.A admitted that he had tried to shock by his choice of language and referred to the opinions of the European Court of Human Rights according to which freedom of expression includes recourse to a certain degree of exaggeration and even provocation.The concurring justice pointed out that the opinions A was referring to did not apply to criticism addressed to a court in written pleadings.On the contrary, the European Court of Human Rights has emphasised that it must be possible to criticize courts without making accusations against the members of the court personally.The justice referred to the cases of Barford (Publications of the European Court of Human Rights, Series A, Vol. 149) and Prager and Oberschlick v.Austria (Publications of the European Court of Human Rights, Series A.Vol. 313). 21.4.2004 / 7.4.2005 / ASADINMA
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| [5 / 19] |
Date when decision was rendered: 5.12.2003 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 3010; R2002/664 Reference to source KKO 2003:119. Decisions of the Supreme Court 2003 II July-December Avgöranden av Högsta domstolen 2003 II juli-december Korkeimman oikeuden ratkaisuja 2003 II heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2004 Pages: 734-748 Subject
respect for private life,
respect for correspondence,
lawyers,
limitations of rights and freedoms,
Relevant legal provisions Chapter 4, section 2-2 of the Coercive Measures Act; Chapter 17, section 23-1-4 of the Code of Judicial Procedure; section 10 of the Constitution Act = tvångsmedelslagen 4 kapitel 2 § 2 mom.; rättegångsbalken 17 kapitel 23 § 1 mom. 4 punkten; grundlagen 10 § = pakkokeinolaki 4 luku 2 § 2 mom.; oikeudenkäymiskaari 17 luku 23 § 1 mom. 4 kohta; perustuslaki 10 §. ECHR-6; ECHR-8 Abstract A was suspected of an economic offence.In the pretrial investigation some documents had been confiscated from A, among them correspondence between A and his lawyer in Spain.The correspondence dealt with financial transactions, but it had not been claimed that it would have had anything to do with the case against A.The issue here was whether the documents could be confiscated.According to Chapter 17, section 23-1-4 of the Code of Judicial Procedure, counsel shall not testify in respect of what the client has entrusted to him/her for the pursuit of the case, unless the client consents to such testimony.In addition, the Coercive Measures Act prescribes that a document may not be confiscated or used as evidence, if it contains information covered by the prohibition in the above section of the Code of Judicial Procedure.The Supreme Court noted that section 23-1-4 was open to various interpretations.Having reviewed a number of other relevant provisions in national law, the Bill of Rights in the Constitution and the ECHR, the Court chose a literal interpretation of the provision.The prohibition was to be interpreted restrictively to the effect that it only referred to the actions of counsel in a court or administrative procedure which was pending or to be initiated. In his appeal to the Supreme Court, A referred to Article 8 of the ECHR and the cases of Campbell v. the United Kingdom (Publications of the European Court of Human Rights, Series A, No. 233) and Niemietz v.Germany (Publications of the European Court of Human Rights, Series A.No. 251).The Supreme Court noted that A's case dealt with slightly different issues than the cases A was referring to.The Court then discussed Article 8-2 of the ECHR and the possibility of limitations of the right to private live, provided that such limitations were in accordance with the law and necessary in a democratic society for the prevention of crime or for the protection of the rights and freedoms of others.The Court pointed out that the European Court of Human Rights has emphasized the protection of confidentiality between counsel and client especially in connection with the right to a fair trial.Taking this into account, it could be concluded from the limitations clause in Article 8-2 that a state may authorize by means of national legislation an interference in the correspondence between counsel and client, if the confiscated documents have no connection with a trial which is pending or to be initiated soon.Hence, in the Court's view the ECHR did not require an expansive interpretation of section 23-1-4.The Court reached the same conclusion when discussing the protection of private life in section 10 of the Constitution Act.The Supreme Court held that the documents referred to in A's case could be confiscated and used as evidence. Two justices of the Supreme Court took a different view.As section 23-1-4 was open to various interpretations, the court should choose an interpretation which favours the protection of fundamental rights.The justices referred to Articles 6 and 8 of the ECHR and to the decisions of the European Court of Human Rights in the cases of Niemietz (see above), Botka and Paya v.Austria (decision of 29 March 1993, inadmissible), B.R. v.Germany (decision of 23 October 1997, inadmissible) and Tamosius v. the United Kingdom (decision of 19 September 2002, inadmissible).They found that the European Court of Human Rights had paid special attention to the facts whether the confiscation order was specified and limited and whether national legislation contained provisions on procedure by which it could be secured that confidential information between counsel and client was not disclosed without a reasonable cause.In the justices' view these requirements were not met in A's case.They concluded that the documents should not have been confiscated. See also the case of Sorvisto v.Finland (Application no. 19348/04), judgment of the European Court of Human Rights, 13 January 2009. 21.4.2004 / 14.1.2009 / RHANSKI
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| [6 / 19] |
Date when decision was rendered: 14.1.2003 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report No. 126; R01/3905 Reference to source Registry of the Helsinki Court of Appeal Helsingfors hovrätts registratorskontor Helsingin hovioikeuden kirjaamo Date of publication: Subject
freedom of expression,
limitations of rights and freedoms,
Relevant legal provisions Chapter 24, section 9 of the Penal Code = strafflagen 24 kapitel 9 § = rikoslaki 24 luku 9 §. ECHR-10-2 Abstract An article in a periodical had dealt with the assistants of members of Parliament and their work in support of the re-election of the candidates.A former member of the Parliament, A, was assisting in the election campaign of a candidate and carried out this work within the framework of his own consultant firm.In the article, A's business activities were compared to the activities of a "dubious businessman".There was also some other misleading information in the article which was later corrected.However, the reference to a dubious businessman was not corrected. With reference to the Penal Code, the court of appeal pointed out that spreading false information or a false insinuation of another person is not justified even when dealing with politics.Furthermore, the purpose of criticism may not be to offend another person.The court then noted that freedom of expression as provided for in Article 10 of the ECHR may be subject to restrictions that are prescribed by law and necessary in a democratic society in order to protect the reputation and rights of others.The court discussed the cases of Dalban v.Romania (judgment of 28 September 1999, Reports of Judgments and Decisions 1999-VI) and Bladet Tromsø and Stensaas v.Norway (judgment of 20 May 1999, Reports of Judgments and Decisions 1999-III) in which the European Court of Human Rights expressed the principle that the press must not overstep certain bounds in respect of the reputation and rights of others, although journalistic freedom also covers possible recourse to a degree of exaggeration or even provocation.The court continued by pointing out that the reference to a "dubious businessman" had not been corrected.Even if A had refused to disclose information requested by the periodical, it did not justify the use of a defamatory expression.The court of appeal upheld the decision of the court of first instance.The editor of the periodical and the journalist who had written the article were sentenced for defamation to a fine.The decision is final. 22.4.2004 / 22.4.2004 / JKOSKIMI
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| [7 / 19] |
Date when decision was rendered: 21.9.2004 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 2353; 696/3/04 Reference to source KHO 2004:88. Yearbook of the Supreme Administrative Court 2004 July-December Högsta förvaltningsdomstolens årsbok 2004 juli-december Korkeimman hallinto-oikeuden vuosikirja 2004 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2008 Pages: pp. 167-172 Subject
respect for private life,
respect for family life,
limitations of rights and freedoms,
deported persons,
Relevant legal provisions sections 18b, 40, 41 and 43 of the Aliens Act = utlänningslag 18b §, 40 §, 41 § och 43 § = ulkomaalaislaki 18b §, 40 §, 41 § ja 43 §. ECHR-8; Articles 17, 18-1, 39-3, 46-1 and 55 of the EC Treaty; Articles 1, 2-1 and 3-1 and 2 of Council Directive 64/221/EEC on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health Abstract The Directorate of Immigration had decided to deport A to his home country Estonia, because A had committed several offences in Finland and was in the country without a residence permit.The administrative court rejected A's appeal.The court considered A's case also in the light of Article 8 of the ECHR.A's mother and brother and his stepfather and stepsister lived in Finland and were Finnish citizens.A had reached the age of majority and was an Estonian citizen.The court ruled that A's deportation was not in violation of Article 8 of the ECHR, considering that A had repeatedly committed several offences while in Finland.The court gave its decision in February 2004.A appealed further to the Supreme Administrative Court which ruled that the case is to be returned to the Directorate of Immigration for a new consideration.Estonia had become a member state of the European Union on 1 May 2004.As from that date A was an EU citizen, and therefore EC law had to be taken into account when deciding on A's deportation.The Supreme Administrative Court referred to Council Directive 64/221/EEC and to the case law of the European Court of Justice.It noted, among other things, that the deportation of an EU citizen on the grounds of public policy presupposes the existence of a genuine and sufficiently serious threat to the requirement of public policy affecting one of the fundamental interests of society.The Court did not take a stand whether these conditions had been fulfilled in A's case. 25.4.2005 / 3.7.2009 / RHANSKI
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| [8 / 19] |
Date when decision was rendered: 28.12.2004 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 3391; 3045/3/03 Reference to source KHO 2004:121. Yearbook of the Supreme Administrative Court 2004 July-December Högsta förvaltningsdomstolens årsbok 2004 juli-december Korkeimman hallinto-oikeuden vuosikirja 2004 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2008 Pages: pp. 572-579 Subject
respect for private life,
respect for family life,
limitations of rights and freedoms,
best interests of the child,
children,
child welfare,
Relevant legal provisions sections 1, 2-1, 9-1, 10, 12 and 16 of the Child Welfare Act = barnskyddslagen 1 §, 2 § 1 mom., 9 § 1 mom., 10 §, 12 § och 16 § = lastensuojelulaki 1 §, 2 § 1 mom., 9 § 1 mom., 10 §, 12 §. ECHR-8; CRC-3; CRC-9; CRC-20 Abstract The social welfare board had taken B into care and had placed her in a children's home.B, who was 13 years of age, had occasionally used alcohol and had had outbursts of violent behaviour.She also tended to disobey her mother A, who was a single parent of six children.The social welfare authorities had provided economic assistance and counselling for the family.In the opinion of the social welfare board, assistance in open care had proved inadequate and taking B into care was necessary as the circumstances in the family along with B's own behaviour threatened to endanger her health and development.A and B objected to the decision, but the administrative court agreed with the social welfare board. The Supreme Administrative Court emphasized that the primary purpose of child welfare was to support the parents in upbringing their child, in the first place by means of assistance in open care.If such assistance is not appropriate or has proved inadequate, the child may be taken into care.In that case, in addition to national legislation, the relevant provisions of the Convention on the Rights of the Child and the ECHR must be taken into account.With reference to the decision of the European Court of Human Rights in the case of Couillard Maugery v.France (judgment of 1 July 2004), the Supreme Administrative Court noted that separating a family constitutes a serious interference with the right to family life.Therefore, such a measure has to be based on the best interests of the child and on weighty and justified grounds.The Court found that in B's case the social welfare board had not sufficiently considered other possible means of assistance.B had, for example, suggested that she could live with her uncle and his family.The Court ruled that it had not been shown in this case that assistance in open care had proved inadequate or that such assistance had not been appropriate or possible.In the Court's view, the requirements for taking a child into care as prescribed in section 16 of the Child Welfare Act had not been fulfilled.The Supreme Administrative Court quashed the decisions of the administrative court and the social welfare board and returned the case to the board for a new consideration. 25.4.2005 / 3.7.2009 / RHANSKI
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| [9 / 19] |
Date when decision was rendered: 5.9.2005 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 2193; 1111/1/03 Reference to source KHO 2005:58. Yearbook of the Supreme Administrative Court 2005 July-December Högsta förvaltningsdomstolens årsbok 2005 juli-december Korkeimman hallinto-oikeuden vuosikirja 2005 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2009 Pages: pp. 317-323 Subject
freedom of expression,
limitations of rights and freedoms,
Relevant legal provisions sections 15a and 40 of the Local Government Act; section 12 of the Constitution Act = kommunallag 15a § och 40 §; grundlagen 12 § = kuntalaki 15a § ja 40 §; perustuslaki 12 §. Abstract A member of a municipal council, A, had several times exceeded the time allowed in the council's rules of procedure for individual members in addressing the council and had continued his address despite the orders of the chairman of the council.On the basis of section 15a of the Local Government Act, the chairman ordered A to be removed from the council's meeting.As A had acted against his duties as a municipal councilman by breaching the council's rules of procedure, the council decided, on the basis of section 40 of the Local Government Act, to report the offence and to exclude A from the work of the council while the matter was being investigated.The decision was enforced immediately.Some two months later, the district prosecutor decided not to carry out an investigation. The Supreme Administrative Court found that A had acted against his duties when disobeying the orders of the chairman pertaining to the limitations prescribed in the council's rules of procedure.The chairman was right in ordering A to be removed from the council's meeting.However, the Court held that, taking into account the right to freedom of expression as provided for in section 12 of the Constitution Act, section 15a of the Local Government Act, which restricted that right, must be given a narrow interpretation.Section 15a contains the measures a council chairman may have recourse to when a council member disturbs the meeting by his or her behaviour.A's actions as a council member cannot be restricted in excess of these measures.Though the Supreme Administrative Court accepted the council's decision to report the offence, it ruled that the council had exceeded its authority when excluding A from the council's work and had in that respect made a decision which was against the law. 26.5.2006 / 16.1.2018 / RHANSKI
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| [10 / 19] |
Date when decision was rendered: 4.7.2005 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 1621; R2003/191 Reference to source KKO 2005:82. 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. 585-601 Subject
respect for private life,
respect for family life,
freedom of expression,
freedom of the press,
limitations of rights and freedoms,
Relevant legal provisions Chapter 27, section 3a of the Penal Code (908/1974); Chapter 24, section 8 of the Penal Code (531/2000); sections 10 and 12 of the Constitution Act = strafflagen (908/1974) 27 kapitel 3a §; strafflagen (531/2000) 24 kapitel 8 §; grundlagen 10 § och 12 § = rikoslaki (908/1974) 27 luku 3a §; rikoslaki (531/2000) 24 luku 8 §; perustuslaki 10 § ja 12 §. ECHR-8; ECHR-10 Abstract In the presidential election in 2000, A was a personal assistant to candidate Y and responsible for his public relations.During the campaign, an afternoon paper published an article, telling about A's extramarital relationship with X, who was a prominent figure in economic life and whose ex-wife Z was a well-known TV-reporter.The Supreme Court, as well as the lower court instances, found that the article had violated A's right to respect for her private life.In its decision, the Supreme Court discussed at length the question of striking a balance between freedom of expression and protection of private life, referring to a number of judgments by the European Court of Human Rights, among them the cases of von Hannover v.Germany (judgment of 24 June 2004, Reports of Judgments and Decisions 2004-VI) and Tammer v.Estonia (judgment of 6 February 2001, Reports of Judgments and Decisions 2001-I).The Court held that the provisions in the Penal Code concerning invasion of privacy corresponded to the principles emanating from the case law of the human rights court.According to the Penal Code, the spreading of information about the private life of a person does not constitute invasion of privacy if it is concerning the activities of a person in politics or in a public position and is necessary for the purpose of dealing with a matter of importance to society. The Supreme Court noted that everyone, including persons known to the general public, must be able to enjoy a legitimate expectation of protection of and respect for their private life.Reports on intimate and sensitive details about a person's private life without that person's consent can be justifiable on clear and well-founded grounds only.Public curiosity alone does not justify the publishing of information about a person's private life.As Y's assistant A had an important and public task in political life.However, she was not known to the public as a politician, nor was she herself running for a political office.A and Y did not belong to the same political party, so political considerations and tactics may have contributed to A's appointment to Y's assistant.Nevertheless, A's right to protection of her private life had not been narrowed because of her tasks in the same manner as that of the politician she was working for.Moreover, the Court held that A's position and her tasks were not of such nature that she would have committed herself to representing the traditional family values and Christian ideas promoted by candidate Y in his campaign.In the Court's view, an extramarital relationship is not a matter which would have been likely to affect A's abilities to attend to her tasks.As to the newspaper article, it was not concerning politics or the possible political dimensions of A's relationship with X.Instead, it aimed clearly at bringing the love affair before the public eye.The fact that X and Z were well-known public figures, did not justify the spreading of information about A's private life.Also, it had not been shown that A, by being in public places together with X, had tacitly consented to reports about her private life.The Supreme Court concluded that publishing the information about A's private life was not justifiable and did not contribute to a debate of general interest to society.The newspaper article had violated A's right to respect for her private life. One dissenting justice of the Supreme Court held that A had exercised a public and political function.Her appointment to Y's assistant had aroused political interest.As Y's assistant and counsel, she had political influence.Because the presidential elections are of great public interest, it is natural that political interest is fixed on a public relations person who belongs to the immediate circle of one of the two main candidates.Furthermore, considering that Y in his campaign emphasized Christian and family values, the news about A's extramarital relationship was bound to affect people's voting decisions and had therefore a link to A's political function.As regards the contents of the newspaper report, the justice found that it described both the political background and activities of A, X and Z as well as the relations between the three persons but did not amount to actual harassment.Because X and Z were prominent figures, their contacts with the campaign of one of the presidential candidates may have been of interest to the public.Therefore, the dissenting justice considered it plausible that the report about A's relationship with X was publicized not only in order to satisfy the curiosity of a particular readership but also in order to contribute to a debate of general interest.The justice regarded this as a borderline case between political journalism and celebrity gossip.However, with reference to the principle of proportionality, he held that, regarding political journalism, one should in general have recourse to criminal law and penal sanctions only in cases where the media has clearly overstepped the bounds within which freedom of expression can legitimately be exercised.This case did not amount to such excess, so the charges should have been dismissed. See also Saaristo and Others v.Finland (application no. 184/06), judgment of the European Court of Human Rights, 12 October 2010. 29.5.2006 / 19.10.2010 / RHANSKI
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| [11 / 19] |
Date when decision was rendered: 19.12.2005 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 3137; S2003/534 Reference to source KKO 2005:136. 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. 980-1003 Subject
freedom of expression,
freedom of the press,
respect for private life,
limitations of rights and freedoms,
Relevant legal provisions Chapter 27, section 3a of the Penal Code (908/1974); Chapter 5, section 6 of the Tort Liability Act; sections 10 and 12 of the Constitution Act = strafflagen (908/1974) 27 kapitel 3a §; skadeståndslagen 5 kapitel 6 §; grundlagen 10 § och 12 § = rikoslaki (908/1974) 27 luku 3a §; vahingonkorvauslaki 5 luku 6 §; perustuslaki 10 § ja 12 §. ECHR-8; ECHR-10 Abstract A magazine had published a report of a violent offence of which X had been convicted.The question was whether disclosing X's name in the report was a violation of his privacy.The Supreme Court held that disclosing the name or identity of an offender in the media without the person's consent always constitutes some kind of intrusion in the person's private life.On the other hand, there may be circumstances that speak in favour of the right of the public to be informed of the name and identity of the offender.In this case, X had been convicted of an exceptionally grave assault involving deeds which degraded the victim and his dignity.The Court held that, in case of grave offences, which attract the public's attention, the identity of the offender tends to be revealed eventually one way or another.This is a consequence of the offence and X should also have been prepared for it.The Court also pointed out that the report had been published shortly after the trial, and was thus a topical peace of news at that time.The tone in the report was factual.Apart from X's name, his photo or other information pertaining to his private life had not been published.The Supreme Court concluded that disclosing X's name in the report did not constitute an invasion of his privacy under the Penal Code.In discussing the scope of the term "private life" and the possible limitations of the right to private life, the Supreme Court also took into account the case law of the European Court of Human Rights, referring for example to the cases of von Hannover v.Germany (judgment of 24 June 2004, Reports of Judgments and Decisions 2004-VI) and Sidabras and Dziautas v.Lithuania (judgment of 27 July 2004). Three dissenting justices of the Supreme Court made a clearer distinction between the offender and his acts.They held that because of the exceptionally grave nature of X's offence, it was undisputable that informing the public of the offence contributed to a debate of general interest in society.However, considering the nature and content of the report, which was based on an inteview with the victim, telling the offender's name was not necessary and did not contribute to the public debate.The dissenting justices concluded that X was entitled to compensation because of an invasion of his privacy. 29.5.2006 / 19.12.2008 / RHANSKI
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Date when decision was rendered: 20.10.2005 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report no. 3405; R04/973 Reference to source HelHO 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
freedom of expression,
respect for private life,
limitations of rights and freedoms,
Relevant legal provisions Chapter 24, section 8 of the Penal Code; sections 10 and 12 of the Constitution Act = strafflagen 24 kapitel 8 §; grundlagen 10 § och 12 § = rikoslaki 24 luku 8 §; perustuslaki 10 § ja 12 §. ECHR-8; ECHR-10 Abstract In a TV programme, discussing problems pertaining to unemployment and presenting various solutions to such problems, reporter A had interviewed X, the director of an association which arranged after-school activities for children in a community centre.As a background to the interview, a film was shown of children playing at the community centre.One of the children was B, who was not named nor interviewed in the film.B and her parents C and D sued A for having infringed on their right to private life by spreading information which had caused them suffering and damage.In their view, the programme gave the impression that the parents of children who participated in the activities at the community centre were unemployed, had a drinking problem and could therefore not provide proper care for their children.Moreover, permission to film had not been requested from B or her parents.The court of first instance did not consider the programme as offending B and her family and decided the case in A's favour.B, C and D appealed against the decision. In discussing the balance between the protection of private life and freedom of expression, the court of appeal held, among other things, that freedom of expression should weigh more when debating important social or political issues, whereas the protection of private life narrows the scope of freedom of expression in cases where, instead of social issues, the purpose is to satisfy public curiosity.Here the court referred to the decisions of the European Court of Human Rights in the cases of Éditions Plon v.France (judgment of 18 May 2004, Reports of Judgments and Decisions 2004-IV), von Hannover v.Germany (judgment of 24 June 2004, Reports of Judgments and Decisions 2004-VI), Novák v the Czech Republic (decision of 13 November 2003) and Societe Prisma Presse v.France (decision of 1 July 2003).The court pointed out that the filming was made in a public place with open access to all.The purpose of the programme was not to describe B's private life or her behaviour but to discuss an important social issue.In the court's view, the programme did not give viewers the impression that the problems discussed in the programme concerned all children visible in the film or B's family in particular.The court found it possible that B's family may have felt offended because of the programme.However, it had not been shown that B would have been recognized by persons who were not close to her, and those in her immediate circle knew that the family did not have any of the problems described in the programme.The court concluded that showing the film in which B was present did not infringe on her privacy in a manner which would have caused her or her family suffering or damage.The decision is final. 29.5.2006 / 29.5.2006 / RHANSKI
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Date when decision was rendered: 20.1.2005 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report no. 158; R02/3844 Reference to source Registry of the Helsinki Court of Appeal Helsingfors hovrätts registratorskontor Helsingin hovioikeuden kirjaamo Date of publication: Subject
freedom of expression,
respect for private life,
right to receive, seek and impart information,
limitations of rights and freedoms,
lawyers,
Relevant legal provisions Chapter 24, section 9 of the Penal Code; sections 10 and 12 of the Constitution Act = strafflagen 24 kapitel 9 §; grundlagen 10 § och 12 § = rikoslaki 24 luku 9 §; perustuslaki 10 § ja 12 §. ECHR-10 Abstract In a radio programme, which was meant to serve as an open discussion forum for the public, radio journalists A and B had interviewed C who had expressed very critical views about the status and rights of the father in child custody cases, based on his own experiences.C's ex-wife D and her counsel in the custody case, E, sued A, B and C for defamation. Taking into account the constitutional provisions on the right to freedom of expression and the protection of privacy as well as the case law of the European Court of Human Rights under Article 10 of the ECHR, the court of first instance convicted the defendants of defamation.In the court's view, the defendants had presented false insinuations in claiming that E had not observed proper professional conduct or the Advocates Act while counselling D in the custody case and that D was not capable of raising and caring for her children.The court ruled that C's views were value judgments rather than facts and that protecting D's and E's honour was in this case not in conflict with Article 10 of the ECHR. The court of appeal did not agree with the first instance court.The court found it acceptable that a person who is being interviewed expresses his or her opinions in a sharp manner amounting to criticism.It could not be expected that a party in a child custody case also puts forth arguments which favour the adverse party, in particular when C's adverse party D had on previous occasions in a TV-programme and a newspaper interview criticised C and his actions in similar terms.Regarding C's views on E, the court of appeal held that in practising his profession E was expected to tolerate even sharp criticism, in particular when expressed by the adverse party of his client.C had presented his own, reasoned views about the proper professional conduct for advocates.In the radio programme, it was clearly stated that his views differed from those of the Finnish Bar Association.The court concluded that C's statements did not amount to defamation.Regarding D, the court pointed out that C's statements could not be assessed out of context and without taking into account the nature and tone of the interview as a whole.C had criticised the prevailing system of child custody cases in Finland.Some of his views corresponded to opinions and assumptions generally held by the public.These views could not as such amount to a violation of D's honour.The court held that C had expressed his strong, emotional and subjective opinion based on his own experiences without an express intention to insult D.Moreover, considering the nature of C's statements, it was difficult to assess whether they were true or false.The court ruled that it had not been shown that C would have violated D's honour.Regarding the radio journalists A and B, the court held, with reference to the case of Jersild v.Denmark (judgment of 23 September 1994, Publications of the European Court of Human Rights, Series A, no. 298), that the punishment of a journalist for assisting in the dissemination of statements made by another person in an interview is possible on extremely strong grounds only.In the radio programme, it had been made clear that these are C's personal opinions.In addition, it had been shown that the Finnish Bar Association did not share C's views and that D had already on previous occasions told in public that she found C's actions as offending her rights.Though A's and B's questions and comments had been slightly provocative, the court held that under the circumstances they did not amount to defamation.The decision is final.The Supreme Court did not grant leave to appeal in the case (decision no. 1872 of 18 August 2005). 30.5.2006 / 30.5.2006 / RHANSKI
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Date when decision was rendered: 4.2.2004 Judicial body: Turku Administrative Court = Åbo förvaltningsdomstol = Turun hallinto-oikeus Reference: Report no. 04/0024/1; 00064/03/2100 Reference to source Registry of the Turku Administrative Court Åbo förvaltningsdomstols registratorskontor Turun hallinto-oikeuden kirjaamo Date of publication: Subject
freedom of expression,
limitations of rights and freedoms,
Relevant legal provisions section 15a of the Local Government Act; section 12 of the Constitution Act = kommunallag 15a §; grundlagen 12 § = kuntalaki 15a §; perustuslaki 12 §. Abstract In December 2002, a municipal council had amended its rules of procedure to the effect that the council chairman had the right to decide in an individual matter handled by the council that the time allowed for a council member when addressing the council was limited to five minutes at most.Council member X appealed against the decision to the administrative court, claiming that the decision was in violation of the Constitution Act and its provisions on freedom of expression. The administrative court referred to the Local Government Act which had been amended in March 2002 by adding a new section, 15a.Section 15a prescribes among other things that, in order to guarantee that a council meeting proceeds smoothly, it is possible to restrict in individual matters the length of time allowed for council members in addressing the council by adding a rule to that effect in the council's rules of procedure.In its decision, the administrative court also referred to the opinion of the Constitutional Law Committee of Parliament when the Local Government Act was amended.In reviewing the bill amending the Local Government Act, the Committee found that limiting the length of speeches by council members could in some cases be necessary in order to guarantee the functioning of representative democracy, referring to cases in which some council members dominate a council meeting with their lengthy speeches leaving other members with no chance to express their views given the limited time available for a council meeting. The administrative court pointed out that it was the duration of speeches that was limited, not their number.The court concluded that in limiting the length of a speech to five minutes does not infringe on a council member's right to express his or her views as prescribed in the Constitution Act and the Local Government Act.The purpose of the limitation is to guarantee a smooth and undisturbed proceeding of a meeting and an effective use of meeting time without violating the freedom of expression. The Supreme Administrative Court agreed with the administrative court (report no. 736; 853/3/04 of 4 April 2005). 26.6.2006 / 16.1.2018 / RHANSKI
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Date when decision was rendered: 14.8.2006 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 1760; R2005/31 Reference to source KKO 2006:61. Decisions of the Supreme Court 2006 II July-December Avgöranden av Högsta domstolen 2006 II juli-december Korkeimman oikeuden ratkaisuja 2006 II heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2007 Pages: pp. 404-409 Subject
respect for private life,
fair trial,
lawyers,
limitations of rights and freedoms,
Relevant legal provisions Chapter 38, section 1-1 of the Penal Code; section 5c of the Advocates Act = strafflagen 38 kapitel 1 § 1 punkten; lag om advokater 5c § = rikoslaki 38 luku 1 § 1 kohta; laki asianajajista 5c §. ECHR-6; ECHR-8 Abstract A and B were advocates and worked in the same law firm.They had both carried out tasks commissioned by the law firm's client, C.Later, C was suspected of an economic offence and B of aiding and abetting C.A was heard in the pretrial investigation concerning B's alleged involvement in C's offence.At the investigation, A disclosed issues he had learned while undertaking commissions for C.C claimed that A had thus breached the obligation of confidentiality between an advocate and a client. Under the Advocates Act, an advocate shall not without due permission disclose secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity.The Supreme Court recalled that this confidentiality obligation secures a client's right to privacy and is also a prerequisite for a fair trial, as found by the European Court of Human Rights in the case of Niemietz v.Germany (judgment of 16 December 1992, Publications of the European Court of Human Rights, Series A, Vol. 251).However, the Supreme Court pointed out that the client may choose to waive the confidentiality obligation.Moreover, in the Court's view, the obligation is waived in cases where the client by his or her own actions endangers the advocate's legal position.In this case, C had in the pretrial investigation told things that threw suspicion on B's involvement in C's offence.Because A and B had together undertaken commissions for C, A had, in the Supreme Court's opinion, justified grounds to suspect that the information C had given might also incriminate A.Therefore, A had good cause to think that the confidentiality obligation no longer applied because his own legal position was at risk.Having studied the pretrial investigation report, the Supreme Court noted that A had not disclosed confidential information more than was necessary in order to avert the risk he was exposed to.Finally, the Supreme Court also considered the matter in the light of Article 8 of the ECHR and the case law of the European Court of Human Rights, giving the case of Foxley v. the United Kingdom (judgment of 20 June 2000) as an example.In the Supreme Court's view, waiving the confidentiality obligation in this case was "necessary" under Article 8-2 of the ECHR because of A's need to defend himself against the actions of C which had put A's legal position at risk.The Supreme Court concluded that A had not disclosed confidential information in a way which would have constituted a secrecy offence under the Penal Code. 12.4.2007 / 14.5.2007 / RHANSKI
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Date when decision was rendered: 30.8.2006 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 1913; R2005/406 Reference to source Registry of the Supreme Court Högsta domstolens registratorskontor Korkeimman oikeuden kirjaamo Date of publication: Subject
freedom of expression,
freedom of the press,
respect for private life,
holocaust,
limitations of rights and freedoms,
Relevant legal provisions Chapter 24, section 9-1 of the Penal Code; sections 10 and 12 of the Constitution Act = strafflagen 24 kapitel 9 § 1 mom.; grundlagen 10 § och 12 § = rikoslaki 24 luku 9 § 1 mom.; perustuslaki 10 § ja 12 §. ECHR-8; ECHR-10 Abstract A newspaper had published A's survey of the events in the past year 2000.In one section of the survey A discussed the holocaust and the new rise of the Extreme Right ideology.In this context, A quoted a statement by B which had originally been included in a newspaper report written on the basis of a press release issued by B himself.B had raised the fact that during the Second World War German SS-troops had participated in the battle on the eastern front, successfully impeding the progress of Soviet troops, and that this was "a heroic deed which we shall never forget".When this quotation was taken out of its original context and placed in the context of A's survey, the reader could get the impression that by "a heroic deed" B actually meant the holocaust.B therefore claimed, among other things, that A was guilty of defamation for having spread a false insinuation of B. In its decision, the Supreme Court recalled that any restriction of constitutional rights must be accurately defined.Freedom of expression may not be limited by interpretation more than is undisputedly prescribed in law.The Court pointed out that the notion of "false insinuation" in the Penal Code is open to interpretation and therefore problematic with regard to limitation of constitutional rights.This being the case, constitutional rights, human rights obligations and the case law of the European Court of Human Rights must be taken into account when interpreting the provision of the Penal Code.In its assessment of the merits, the Supreme Court referred, in particular, to the cases of Jersild v.Danmark (judgment of 23 September 1994, Publications of the European Court of Human Rights, Series A, Vol. 298); Prager and Oberschlick v.Austria (judgment of 26 April 1995, Publications of the European Court of Human Rights, Series A, Vol. 313); De Haes and Gijsels v.Belgium (judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I); Bladet Tromso and Stensaas v.Norway (judgment of 20 May 1999, Reports of Judgments and Decisions 1999-III); and Radio France and Others v.France (judgment of 30 March 2004, Reports of Judgments and Decisions 2004-II). The Supreme Court noted that an exchange of views in matters of public interest lies at the core of freedom of expression.In carrying out its task, the media has a right to publish even biased and provocative views, and it must also be possible to criticize, even strongly, views presented in public.The Court found that both A's survey and the newspaper report written on the basis of B's press release were inaccurate and confusing to the reader.B's statement reflected understanding and appreciation for some phases in the history of the SS-troops, but it was not possible to assess his opinion on the activities of the SS-troops during the Second World War in general on the basis of the press release or the report.A's comprehensive survey combined and compared various, very different events and quotes.It did not contain exact arguments but was a collection of the author's personal views on society and events in the year 2000.The Court continued that views, especially provocative, concerning the holocaust and SS-troops tend to raise public interest.Considering this, and considering also the style in A's survey and the contents in B's press release, the Supreme Court concluded that it could not be regarded that A's text would contain a false insinuation and that she would thus have committed defamation. Two concurring justices of the Supreme Court decided the case in A's favour on the ground that both A's survey and B's statement, as originally published in the press release and the newspaper report, were open to interpretation.One partly dissenting justice found that A had deliberately used B's statement in a misleading manner at had thus spread a false insinuation.The character and style of A's text did not justify the deed. 12.4.2007 / 12.4.2007 / RHANSKI
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Date when decision was rendered: 11.10.2005 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report no. 3242; R03/1733 Reference to source Registry of the Helsinki Court of Appeal Helsingfors hovrätts registratorskontor Helsingin hovioikeuden kirjaamo Date of publication: Subject
freedom of expression,
freedom of the press,
respect for private life,
fair trial,
presumption of innocence,
limitations of rights and freedoms,
Relevant legal provisions Chapter 24, section 10 of the Penal Code; sections 10 and 12 of the Constitution Act = strafflagen 24 kapitel 10 §; grundlagen 10 § och 12 § = rikoslaki 24 luku 10 §; perustuslaki 10 § ja 12 §. ECHR-6; ECHR-8; ECHR-10 Abstract X had told a small group of people, including Y, that she had been raped in a party at a hotel where a local sports team had been celebrating their national championships title.X also signed a written statement which she however withdrew the following day.She said repeatedly that she did not want to notify the police.Several months later, Y told journalist Z about the case which was then reported in a national weekly magazine.The report referred to the team in general without naming the alleged offender or offenders.The 12 players of the team sued Y, Z, the magazine and its editor-in-chief.The court of first instance sentenced the defendants to a fine for defamation and ordered them to pay damages.The court of appeal upheld the decision.In its decision, the appeal court discussed at length freedom of expression as prescribed in the Constitution Act and the ECHR.It also referred to several decisions of the European Court of Human Rights, including the cases of Bladet Tromso and Stensaas v.Norway (judgment of 20 May 1999, Reports of Judgments and Decisions 1999-III); Bergens Tidende and Others v.Norway (judgment of 2 May 2000, Reports of Judgments and Decisions 2000-IV); Karhuvaara and Iltalehti v.Finland (judgment of 16 November 2004, Reports of Judgments and Decisions 2004-X); Pedersen and Baadsgaard v.Denmark (judgment of 17 December 2004, Reports of Judgments and Decisions 2004-XI); and "Wirtschafts-Trend" Zeitschriften-Verlagsgesellschaft mbH v.Austria (judgment of 14 November 2002, Reports of Judgments and Decisions 2002-X). The court of appeal held that the report published in the magazine had incriminated all the players in the team and had violated their right to be presumed innocent until proven guilty by a court of law.In the court's view, the role of the media as a public watchdog was not at issue in this case, despite the fact that the police had started to investigate the alleged rape only after the report had been published.It had not been shown that the police would have tried to keep the matter secret, as claimed by the defendants, or that the police would even have been notified.The alleged rape was not generally known among the local public before it was reported in the magazine with a nation-wide circulation.In the court's view, the nature and seriousness of the alleged offence required specific accuracy in reporting the issue.However, Z and the editor-in-chief had not verified the accusations in order for the report to rely on a reliable factual basis.The court concluded that in this case restricting the defendants' freedom of expression was necessary in order to protect the players' honour and their right to be presumed innocent.In assessing the damages, the court referred to the principle of proportionality and the decision of the European Court of Human Rights in the case of Tolstoy Miloslavsky v. the United Kingdom (judgment of 13 July 1995, Publications of the European Court of Human Rights, Series A, Vol. 316).It found that the damages ordered by the first instance court were reasonable.The decision of the court of appeal is final.The Supreme Court did not grant leave to appeal in the case (decision no. 1117; R2005/1142, of 15 May 2006). When the court of appeal gave its decision, the police investigation of the alleged offence was still pending.In its investigations, the police found no evidence of rape.X never reported the alleged offence and she did not want to be heard at the proceedings referred to above. See also Ruokanen and Others v.Finland (application no. 45130/06), judgment of the European Court of Human Rights, 6 April 2010. 13.4.2007 / 19.10.2010 / RHANSKI
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Date when decision was rendered: 9.2.2009 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 185; R2008/50 Reference to source KKO 2009:10. Decisions of the Supreme Court 2009 I January-June Avgöranden av Högsta domstolen 2009 I januari-juni Korkeimman oikeuden ratkaisuja 2009 I tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2009 Pages: pp. 100-108 Subject
freedom of expression,
limitations of rights and freedoms,
lawyers,
disciplinary punishment,
Relevant legal provisions section 5 of the Advocates Act; section 12 of the Constitution Act = lag om advokater 5 §; grundlagen 12 § = laki asianajajista 5 §; perustuslaki 12 §. ECHR-10 Abstract The disciplinary board of the Finnish Bar Association had decided to issue a caution to advocate X.Considering the contents of certain announcements X had published in the newspaper and in the internet, the board found that X had acted in violation of the rules of proper professional conduct for advocates and the rules concerning advertising and marketing of legal services.X appealed against the decision, referring to his freedom of expression as guaranteed in the Constitution Act and the ECHR. Both the court of appeal and the Supreme Court upheld the decision of the board.In its decision, the Supreme Court noted that commercial expression and advertising are not at the very core of the right to freedom of expression.Marketing practices may be limited but only to the extent it is necessary with respect to the interests protected.The Court pointed out that the purpose of the rules governing advertising and marketing of legal services is to prevent unfair competition and untruthful advertising and, more generally, to ensure respect for the profession of advocates.With reference to the case law of the European Court of Human Rights, the Supreme Court found that the assessment as to what kind of restrictions can be placed on the contents of marketing of legal services in order to ensure respect for the profession, varies in different countries and at different times (Casado Coca v.Spain, judgment of 24 February 1994).In striking a balance between the right to freedom of expression and other interests involved, national authorities have a wider margin of appreciation where there is no common ground among the Member States of the Council of Europe or there is a diversity of moral conceptions regarding the assessment at issue (Stambuk v.Germany, judgment of 17 October 2002).The Supreme Court held that in this case, the interference with X's right to freedom of expression was limited to the manner in which X marketed his services.The acceptability of X's marketing practices was assessed on the basis of regulations the members of the Finnish Bar Association themselves had chosen to impose on advertising and marketing of legal services in order to uphold respect for the profession.The Supreme Court concluded that the disciplinary board had not exceeded its discretion and that the limitation on X's right to freedom of expression, as a result of the Bar's regulations, their supervision and disciplinary sanctions, could not be considered disproportionate to the aim pursued. 5.2.2010 / 5.2.2010 / RHANSKI
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Date when decision was rendered: 15.8.2017 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 3736/3/15; 3872 Reference to source Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
passport,
respect for private life,
data protection,
limitations of rights and freedoms,
Relevant legal provisions sections 5c(1), 6a and 29 of the Passport Act; sections 1(2) and 8(1) of the Personal Data Act; sections 3(3) and 16a of the Act on the Processing of Personal Data by the Police; section 10 of the Constitution Act = passlagen 5c § 1 mom., 6a § och 29 §; personuppgiftslag 1 § 2 mom och 8 § 1 mom.; lag om behandling av personuppgifter i polisens verksamhet 3 § 3 mom. och 16a §; grundlagen 10 § = passilaki 5c § 1 mom., 6a § ja 29 §; henkilötietolaki 1 §, 2 § 2 mom. ja 8 § 1 mom.; laki henkilötietojen käsittelystä poliisitoimessa 3 § 3 mom. ja 16a §; perustuslaki 10 §. ECHR-8; Articles 7, 8 and 52 of the Charter of Fundamental Rights of the European Union Abstract The Finnish Embassy in Switzerland had rejected a passport application because the applicant had not agreed to it that his fingerprints are stored not only in the passport's data chip but also in the passport register.The applicant claimed that storing the fingerprints in the passport register was an undue interference with the right to private life and the protection of personal data. The Passport Act provides for, e.g., the security features for passports and contains provisions on biometric data, including fingerprints, and the storing of fingerprints in the passport register.The Act on the Processing of Personal Data by the Police regulates the use of the data in the passport register.The Act provides, e.g., that the police is allowed to use the fingerprint data in the passport register for other purposes than collecting and recording that data only in cases where the police needs to identify a victim of a natural or other disaster or a victim of crime or when a victim cannot be identified by any other means.The fingerprint data extracted from the passport register must be erased as soon as the comparison of fingerprints has been completed. The Supreme Administrative Court noted that storing fingerprint data in a register, outside of the data chip integrated in the passport, constitutes processing of personal data, which is regulated in the Personal Data Act, as amended in order to incorporate the Data Protection Directive (1995/46/EC).Storage of fingerprint data in the passport register thus falls within the scope of EU law, and the Charter of Fundamental Rights of the EU is applicable.The court also took into account Article 8 of the ECHR.The court noted that the right to private life and the protection of personal data, as enshrined in the Charter and the ECHR, are not absolute rights and may be subject to limitations, when such limitations are provided for by law, respect the essence of the rights and are proportionate and necessary in a democratic society. The Supreme Administrative Court found that the storing of fingerprints in an external data system, which is not integrated in the passport, provides more extensive protection for privacy, because it not only protects the passport against fraudulent use but also protects the true identity and person of the passport holder.By comparing a passport applicant's fingerprints to the data in the passport register it is possible to prevent identity theft as well as situations where a person applies for multiple passports using different identities.Also, with the help of the data in the register, a person's identity can be verified in cases where the passport chip has been damaged or the person has lost his or her identity document.The regulations are both for the protection of the individual and public safety.The court also noted that the use of the fingerprint data in the passport register is restricted by law. The court concluded that the provisions in the Passport Act concerning storage of fingerprint data in the passport register and the limitations imposed on the right to private life and the protection of personal data are precise and defined in sufficient detail.They are compatible with the Charter of Fundamental Rights, the ECHR and the criteria that must be met in the restriction of constitutional rights, as defined in the Finnish constitutional rights system, particularly the requirements of acceptability and proportionality.The passport application could thus be rejected on grounds that it did not meet the requirements prescribed in the Passport Act. 16.1.2018 / 16.1.2018 / RHANSKI
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