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Date when decision was rendered: 2.6.1992 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 1849; R90/878 Reference to source KKO 1992:73. Decisions of the Supreme Court 1992 I January-June Högsta domstolens avgöranden 1992 I januari-juni Korkeimman oikeuden ratkaisuja 1992 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1993 Pages: pp. 343-346 Subject
basis of charges,
fair trial,
preparation of defence,
Relevant legal provisions Chapter 21, section 5-1 of the Penal Code, Chapter 14, section 3-1 of the Code of Judicial Procedure = strafflagen 21 kapitel 5 § 1 mom., rättegångsbalken 14 kapitel 3 § 1 mom. = rikoslaki 21 luku 5 § 1 mom., oikeudenkäymiskaari 14 luku 3 § 1 mom. ECHR-6-1, ECHR-6-3, ECHR-14-1, CCPR-14-3 Abstract Articles 6-1 and 6-3 of the ECHR were cited by the Surpreme Court as justification for a ruling to shorten a person's prison sentence, as the lower courts had not properly informed the defendant of the possibility that he could be punished for a more serious crime than the one invoked by the prosecutor in the indictment. If the juridical characterization of the behaviour is not described in the indictment itself, the court must, during the trial, inform the defendant of the possibility of his behaviour being characterized differently from the indictment presented by the prosecutor.The court was thus of the opinion that the defendant had not been informed in detail of the charges against him and had not had adequate facilities for the preparation of his defence.Therefore he could not be convicted of aggravated assault but only of assault. 24.3.1998 / 22.4.2005 / ASADINMA
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Date when decision was rendered: 12.2.1993 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 446; R92/54 Reference to source KKO 1993:19. Decisions of the Supreme Court 1993 I January-June Avgöranden av Högsta domstolen 1993 I januari-juni Korkeimman oikeuden ratkaisuja 1993 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1994 Pages: pp. 74-82 Subject
fair trial,
preparation of defence,
legal assistance,
Relevant legal provisions Chapter 11, section 22, Chapter 14, sections 3 and 4, Chapter 25, section 3-2, Chapter 31, section 1-4 of the Code of Judicial Procedure = rättegångsbalken 11 kapitel 22 §, 14 kapitel 3 § och 4 §, 25 kapitel 3 § 2 mom., 31 kapitel 1 § 4 mom. = oikeudenkäymiskaari 11 luku 22 §, 14 luku 3 § ja 4 § 25 luku, 3 § 2 mom., 31 luku 1 § 4 mom. ECHR-6-3-b, ECHR-6-1, CCPR-14-3-b, CCPR-14-1 Abstract A 19-year-old defendant was accused of several serious crimes.He did not have legal assistance.Some of the charges were presented as late as in the very hearing following which the defendant was convicted.According to the Supreme Court, a court must take care that a defendant in a criminal case enjoys the minimum safeguards prescribed in international treaties that form part of the law, including the right to have adequate time and facilities for the preparation of his defence (Article 6-3-b of the ECHR and Article 14-3-b of the CCPR).If it turns out that the defendant has not had enough time to prepare his defence, the court must attach his attention to the possibility of postponing the hearing, and must postpone the case if the defendant so asks.The defendant had not benefitted from the minimum rights enjoyed by a defendant in a criminal case.Therefore there had been a procedural error.There were other procedural errors as well, because the defendant was asked to comment on the various charges in a rather summary way, and the court gave the unrepresented defendant only oral instructions on the possibility of having the case reviewed by a higher court.Thus, the procedure did not comply with the requirements of a fair and public hearing (Article 6-3-b of the ECHR and Article 14-3-b of the CCPR).The ruling of the court of appeal was quashed and the case returned to the court of first instance (4 justices).One justice was of the opinion that the procedural errors of the court of first instance had not affected the outcome of the case. 26.3.1998 / 24.3.2003 / LISNELLM
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Date when decision was rendered: 28.8.1997 Judicial body: Turku Court of Appeal = Åbo hovrätt = Turun hovioikeus Reference: Report No. 2175; R97/614 Reference to source Registry of the Turku Court of Appeal Åbo hovrätts registratorskontor Turun hovioikeuden kirjaamo Date of publication: Subject
fair trial,
legal assistance,
preparation of defence,
Relevant legal provisions ECHR-6-3-b, ECHR-6-3-c, CCPR-14-3-b Abstract The court of first instance had convicted P for a serious embezzlement offence.He was also to pay considerable damages.P appealed to the Turku Court of Appeal and asked that the case be returned to the court of first instance.He claimed that without legal assistance he had not been able to defend himself and he had not had an opportunity or enough time to prepare for his defence. The Turku Court of Appeal noted that P had no criminal record and was unemployed.The damages demanded from him were considerable and the charges against him could lead to imprisonment.The records of the proceedings before the court of first instance did not tell whether the relevant legal provisions had been explained to P or whether it had been suggested that P should seek legal assistance.Neither did they tell whether P had had sufficient possibilities to prepare for his defence. The court of appeal referred to Article 14-3-b of the CCPR and to Article 6-3-b and c of the ECHR and stated that the court has to see to it that the minimum requirements for a fair trial are fulfilled.If it is apparent that the accused has not had enough time to prepare for his defence, the court has to draw his attention to the possibility of postponing the legal proceedings and to the fact that the accused has the possibility to seek legal assistance.Considering the circumstances in the case, the demands directed at the accused and the consequences of the demands, the court of appeal concluded that P had not had enough time to prepare for his defence and the legal proceedings had not fulfilled the requirements of a fair trial, as specified in Article 6-1 of the ECHR.The case was returned to the court of first instance. 1.4.1998 / 28.3.2003 / LISNELLM
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Date when decision was rendered: 20.10.1997 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 3527; R96/1271 Reference to source KKO 1997:162. Decisions of the Supreme Court 1997 II July-December Avgöranden av Högsta domstolen 1997 II juli-december Korkeimman oikeuden ratkaisuja 1997 II heinä-joulukuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1998 Pages: pp. 816-820 Subject
fair trial,
pretrial investigation,
preparation of defence,
Relevant legal provisions Chapter 11, section 22-2 of the Code of Judicial Procedure = rättegångsbalken 11 kapitel 22 § 2 mom. = oikeudenkäymiskaari 11 luku 22 § 2 mom. ECHR-6-3-a, CCPR-14-3-a Abstract A, B and C had been summoned before the court in a criminal case.The summons were served orally.The certificates of summons named the criminal offences A, B and C were charged with, the time and place of the offences, and the complainants.An indictment was not attached to the certificates of summons, but the accused were informed that they could obtain the indictment at the prosecutor's office.In the court of first instance, the accused asked that the charges be dismissed owing to the fact that the summons did not specify the facts upon which the charges were based.They referred to Article 6-3-a of the ECHR, Article 14-3-a of the CCPR and to Chapter 11, section 22-2 of the Code of Judicial Procedure.The court of first instance stated that the certificates of summons did not include a detailed description of the facts upon which the charges were based, as required by the Code of Judicial Procedure.An indictment or a short description of the facts of the alleged offences should have been delivered to the accused together with the summons.It was not enough that the accused were informed where the indictment could be obtained.The court of first instance concluded that the accused had not been summoned as required by the Code of Judicial Procedure and, therefore, dismissed the charges on procedural grounds. Having appealed to the Turku Court of Appeal, which did not change the decision of the court of first instance, the prosecutor appealed to the Supreme Court. The Supreme Court stated that the accused in a criminal case has a right to be informed promptly of the facts of the case and the alleged criminal act with which he is charged.However, this does not necessarily presuppose that the accused should receive the indictment at the moment when he is summoned.The accused person's right to have time to prepare for the case and for his defence can be secured by other means, such as by delivering the indictment to the accused before the case is taken up in court and, if need be, by postponing the court proceedings.According to Chapter 11, section 22-2 of the Code of Judicial Procedure, the summons should include the facts upon which the charges are based.However, neither the law nor the case law define the criteria according to which an oral summons can be considered so incomplete that the charges should be dismissed on procedural grounds.By specifying the facts upon which the charges are based it is possible to limit the trial.Considering the purpose of the above-mentioned section of the Code, it can be said that the facts have been sufficiently specified when the accused has received sufficient information to be able to conclude which act or acts the charges concern.According to the report of the pretrial investigation proceedings, the accused in this case had during the questioning been informed of the criminal offences they were suspected of.They were also informed about the time and place of the offences, the complainants and the alleged criminal acts they were suspected of.The certificates of summons named the criminal offences the accused were charged with, the time and place of the offences as well as the complainants.Considering the pretrial investigation as a whole, the Supreme Court stated that there was no reason to doubt that A, B and C did not know, on the basis of the information in the certificate of summons, which acts they were charged with.Therefore the Supreme Court concluded that the accused had been summoned according to law and that the court of first instance and the Turku Court of Appeal should not have dismissed the charges on procedural grounds.The case was returned to the court of first instance and the court was ordered to start the proceedings against the accused. A dissenting justice of the Supreme Court argued that the facts upon which the charges were based should have been specified in the summons.The duty to specify the facts is not dependent on the fact whether and to what extent the accused, in spite of the incomplete contents of the summons, knows which alleged criminal offence the summons concerns.It should be noted that the relevant provisions of the Code of Judicial Procedure providing, among other things, for the possibility of presenting the summons orally, were abolished by the Act Amending the Code of Judicial Procedure (690/1990).The Act entered into force on 1 October 1997. 2.4.1998 / 4.4.2003 / LISNELLM
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Date when decision was rendered: 13.7.1994 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 2622; R93/44 Reference to source KKO 1994:64. Decisions of the Supreme Court 1994 II July-December Avgöranden av Högsta domstolen 1994 II juli-december Korkeimman oikeuden ratkaisuja 1994 II heinä-joulukuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1995 Pages: pp. 303-307 Subject
criminal charge,
basis of charges,
preparation of defence,
right to be heard,
Relevant legal provisions Section 3 of the Narcotics Act; Chapter 5, section 3-1 of the Penal Code = narkotikalagen 3 §; strafflagen 5 kapitel 3 § 1 mom. = huumausainelaki 3 §; rikoslaki 5 luku 3 § 1 mom. ECHR-6-3-c, CCPR-14-3-a Abstract A had been charged with a serious narcotic offence for illegal possession of 2 kilos of amphetamine together with B.During the proceedings in the court of first instance, the prosecutor secondarily demanded in A's absence that A be convicted for assistance to a serious narcotic offence for having stood guard as B handled the hidden amphetamine.A denied having possessed the drugs at any point.The court of first instance sentenced A to 10 months imprisonment, as it had been shown that A had stood guard while B fetched amphetamine from the hiding place and had helped B to open the hiding place.The fact that A had thus been associated with B was regarded as A having assisted B who sold the drugs. A and the prosecutor brought the case to the court of appeal, which was of the opinion that it had not been shown that A would have assisted B in fetching drugs from the hiding place more than once.His sentence was therefore reduced to 8 months imprisonment. In his appeal to the Supreme Court, A requested that the charges against him are dropped, i.a., as the prosecutor had not demanded his punishment for the action for which he was sentenced.The Supreme Court found that the prosecutor had not made a new request to which A should have been given a chance to respond but only judicially redefined the deed in question.No new charges had been presented and A had not been accused of any action which had not been included in the charges presented in his presence.He had also had the possibility to respond to the charges and to state that his actions did not meet the requirement of being a full accomplice but only of assisting B in B`s crime.The Supreme Court therefore upheld the main decision of the court of appeal.(A vote 3 to 2.) A dissenting justice stated that as A had not received detailed information about the charges against him in accordance with Article 6-3-a of the ECHR and Article 14-3-a of the CCPR, he should not have been sentenced on the basis of these charges.The rapporteur as well as the other dissenting justice made a general reference to A's legal safeguards and would have quashed the decision of the court of first instance and the court of appeal as A had not been heard personally regarding the secondary charges. 6.4.1998 / 14.3.2003 / LISNELLM
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Date when decision was rendered: 20.3.1995 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 1066; R94/35 Reference to source KKO 1995:44. Decisions of the Supreme Court 1995 I January-June Högsta domstolens avgöranden 1995 I januari-juni Korkeimman oikeuden ratkaisuja 1995 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1996 Pages: pp. 183-186 Subject
criminal charge,
fair trial,
preparation of defence,
Relevant legal provisions Chapter 17, section 8 of the Code of Judicial Procedure = rättegångsbalken 17 kapitel 8 § = oikeudenkäymiskaari 17 luku 8 §. ECHR-6 Abstract A had been charged with forgery of a bank card and identifying himself as B to obtain economic benefits, and with theft of filled bank transfer forms from a bank, which he supposedly used to obtain the transfer of money to himself.As A had denied the charges and there existed no evidence of A's guilt except for two witness statements, the court of first instance rejected the charges. The prosecutor and the plaintiff bank brought the case to the court of appeal, claiming that A should have been convicted.The court of appeal concluded that the court of first instance would have been entitled, under Chapter 17, section 8 of the Code of Judicial Procedure, to procure evidence on its own initiative.A video tape of the person appearing as B in a bank and photographs that had been shown to several persons during the pretrial investigation were not presented at the hearings in the court of first instance, which did also not hear as a witness a person who was present in the bank at the same time as the person presenting himself as B.Nor had the court acquired statements as to whether the forged documents had been signed by A in B's and other persons' names.The court of first instance should in the opinion of the court of appeal not have decided the case without procuring the above evidence and statement.The court of appeal therefore quashed the judgment and returned the case to the court of first instance. The Supreme Court based its judgment on the principle of the equality of arms of the parties as guaranteed by Article 6 of the ECHR, which has to be taken into consideration when applying Chapter 17, section 8 of the Code of Judicial Procedure.It was obvious that the intention of the court of appeal in returning the case was to order the court of first instance to procure additional evidence .The provision authorising the courts to procure evidence for or against a defendant charged with an offence subject to public prosecution on their own initiative derogates from the main rule that the parties themselves acquire evidence and should therefore be interpreted narrowly, the main rule being that it is for the prosecutor to prove the guilt of the defendant.The principle of the equality of arms requires that the defendant should not be put in a position inferior to that of the prosecutor.The defendant must also at all stages of the trial have adequate possibilities for the preparation of his defence.In this case, the prosecutor and the plaintiff bank had had the possibility to procure or ask the court to procure all necessary evidence against A already in the court of first instance.No additional evidence was presented in the court of appeal either.The decision of the court of appeal to return the case for retrial came as a surprise to the defendant which he had not had the possibility to consider in preparing his defence.The court of appeal should thus have considered the case without returning it to the court of first instance.The Supreme Court returned the case to the court of appeal. 15.4.1998 / 13.3.2003 / LISNELLM
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Date when decision was rendered: 31.5.1995 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 2183; H93/326 Reference to source KKO 1995:95. Decisions of the Supreme Court 1995 I January-June Högsta domstolens avgöranden 1995 I januari-juni Korkeimman oikeuden ratkaisuja 1995 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1996 Pages: pp. 393-399 Subject
right to be heard,
preparation of defence,
children,
law of procedure,
right to reply,
Relevant legal provisions Chapter 30, section 11-3 and Chapter 31, sections 1-4 and 6 of the Code of Judicial Procedure = rättegångsbalken 30 kapitel 11 § 3 mom., 31 kapitel 1 § 4 mom., 6 § = oikeudenkäymiskaari 30 luku 11 § 3 mom., 31 luku 1 § 4 mom., 6 §. ECHR-6 (unspecified) Abstract A and B had agreed that B would pay A a lump-sum of FIM 80,000 as child maintenance for their common child.A paid FIM 40,000 of the money back to B as redemption for a car in accordance with their agreement on distribution of matrimonial assets, and used the rest of the money to improve her and the child's common home. B asked the court of first instance to order A to repay the maintenance, as the child had lived with A for only 7 weeks and with B the rest of the time.A objected to the claim, stating that the payment of the lump-sum maintenance was part of the agreement on distribution of matrimonial assets.The agreement had not accorded A anything but the lump-sum.The court of first instance stated that the payment of the lump-sum was based on an agreement between the parties confirmed by the court and that it therefore was not paid without due justification even if the child did not live with A for a long time. The court of appeal upheld the decision of the court of first instance. B appealed to the Supreme Court.In its decision of 31 August 1993 (KKO 1993:104), the Supreme Court stated that the lump-sum was intended for child maintenance and that A was thus obliged to repay the money which was not used for that purpose or for other purposes agreed by the parties.As no such money remained, A was not obliged to repay anything. In an extraordinary appeal on the basis of procedural fault, B asked the Supreme Court to annul its decision in the case, referring to the fact that he had not been heard regarding A's response to the Supreme Court nor received a copy of the response or the issues dealt with therein.In its decision of 31 May 1995, the Supreme Court stated that Chapter 31, section 1-4 of the Code of Judicial Procedure allows for the nullification of a judgment if there has been a procedural error and this error has affected or can be presumed to have affected the judgment.It is in the interest of the respect of the judicial system that this provision is not interpreted narrowly.As B had not received a copy of A's response to the Supreme Court, as required by Chapter 30, section 11-3 of the Code of Judicial Procedure, B had not been informed of all material affecting the outcome of the case.This constituted a procedural error. The Supreme Court also referred to Article 6 of the ECHR, concluding that the right to be heard also includes a right for the parties to be informed of all material affecting the outcome of the case and thereby having a real opportunity to react to the material.In its 1993 decision, the Supreme Court came to a different conclusion on the main issue than the lower courts, basing its decision essentially on the information that emerged from A's response to the proceedings in the Supreme Court.The information on the use of the lump-sum did, contrary to in the lower courts, affect the outcome of the decision of the Supreme Court as laid out in Chapter 31, section 1-4 of the Code of Judicial Procedure.The Supreme Court annulled its decision KKO 1993:104 and decided to reconsider the case. 16.4.1998 / 14.3.2003 / LISNELLM
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Date when decision was rendered: 17.2.2003 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 0326; R2001/615 Reference to source KKO 2003:12. Decisions of the Supreme Court 2003 I January-June Avgöranden av Högsta domstolen 2003 I januari-juni Korkeimman oikeuden ratkaisuja 2003 I tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2003 Pages: pp. 57-62 Subject
fair trial,
preparation of defence,
Relevant legal provisions Chapter 5, section 17 of the Criminal Procedure Act = lag om rättegång i brottmål 5 kapitel 17 § = laki oikeudenkäynnistä rikosasioissa 5 luku 17 §. ECHR-6-3 Abstract A had taken two water scooters owned by B and C who had then reported the loss to an insurance company.The court of first instance sentenced A for theft of the trailer A had used for the transportation of the water scooters.As for the theft of the water scooters, A was charged with aiding and abetting in an insurance fraud, but these charges were dismissed.In the court of appeal the prosecutor accused A for aggravated theft as an alternative to the original charges for fraud.A was convicted for aggravated theft.A appealed to the Supreme Court claiming that the alternative charge for aggravated theft should have been dismissed without considering the merits.The Supreme Court referred to Article 6-3 of the ECHR and the right of a person charged with a criminal offence to be informed of the nature and cause of the accusations against him and to have adequate time and facilities for the preparation of his defence.Based on this provision, Chapter 5, section 17 of the Criminal Procedure Act prescribes that a charge shall not be altered during a trial.As an exception to this main rule section 17 provides that the prosecutor may extend a charge against the same defendant to cover another act if the court considers this appropriate.According to the Government Bill to the Criminal Procedure Act, this exception is not meant to be applied in proceedings in a higher court.However, the Supreme Court was of the opinion that in this case there were special features which spoke in favour of making an exception and allowing the extended charge before the court of appeal.The original charge was based on A's statement during the pretrial investigation in which A had said that B and C were aware of the theft.After the pretrial stage and during the proceedings before the first instance court, A had changed his statement and told that he had in fact stolen the water scooters without B's and C's knowledge.As the extended charge was based on facts given by A, presenting the charge for the first time before the court of appeal could not, in the Supreme Court's view, have essentially hindered A's possibilities to prepare his defence.In the main hearing before the court of appeal A had the possibility to respond to the accusations and to have witnesses examined.The Supreme Court concluded that as A's right to a fair trial had not been violated, the charge against A could be extended during the proceedings in the court of appeal.The Supreme Court upheld the decision of the court of appeal.Two justices of the Supreme Court were of the opinion that the court of appeal should have dismissed the charge for aggravated theft without considering the merits. 21.4.2004 / 21.4.2004 / JKOSKIMI
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Date when decision was rendered: 11.4.2014 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 773; R2012/572 Reference to source KKO 2014:25. Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta domstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
fair trial,
preparation of defence,
extraordinary appeal,
Relevant legal provisions Chapter 31, section 1-1-4 of the Code of Judicial Procedure; section 21 of the Constitution Act = rättegångsbalken 31 kapitel 1 § 1 mom. 4 punkten; grundlagen 21 § = oikeudenkäymiskaari 31 luku 1 § 1 mom. 4 kohta; perustuslaki 21 §. ECHR-6-3-b; CCPR-14 Abstract The court of first instance had sentenced X to imprisonment for a narcotics offence and drunken driving.After the judgment had gained legal force, X submitted to the court of appeal a complaint on the basis of a procedural fault and requested that the judgment is annulled.X claimed he had not had adequate time and facilities for the preparation of his defence.The summons had been served on X as late as on the day of the main hearing at the court of first instance.X had had no counsel in the pretrial investigation and the court hearing.The court of appeal referred, among other things, to Article 6 of the ECHR and the case law of the European Court of Human Rights.It found that the court of first instance had not appropriately clarified whether X had had adequate time and facilities for the preparation of his defence.There had thus been a procedural fault.However, strong evidence had been presented against X, and X had not brought forth any facts which would show that the court's judgment would have been different if X had had more time to prepare his defence.The appeal court dismissed X's complaint.X took the case further to the Supreme Court. The Supreme Court referred to the right to a fair trial, as prescribed in the Constitution Act, the ECHR and the CCPR, and noted that the defendant's right to have adequate time and facilities for the preparation of his/her defence is one of the fundamental guarantees of a fair trial.X had not notified the court of first instance that he had not had adequate time for the preparation of his defence or to consider the need for counsel.However, the court had been aware that the summons had been served on the day of the main hearing and that X had in practice had no time for the preparation of his defence.Therefore, the court should have on its own motion clarified for X his rights pertaining to the preparation of his defence.If necessary, the court proceedings could have been postponed.The Supreme Court concluded that there had been a procedural fault.According to the Code of Judicial Procedure, a final judgment may be annulled if a procedural error has occurred in the proceedings which is found or can be assumed to have essentially influenced the result of the case.In the Supreme Court's opinion, this provision should not be given a narrow interpretation, in particular, where a defendant's right to a proper defence has been violated.In the letter of complaint, X had not brought forth facts which would show that the procedural error had influenced the court's judgment.However, the Supreme Court continued that on that basis one cannot draw far-reaching conclusions as to X's needs and possibilities to defend himself in the case.Instead, in assessing the impact of the procedural fault, it is important to note that, under the circumstances, X had not had adequate possibilities to clarify and present to the court considerations which could possibly have influenced the court when assessing X's guilt and punishment.The Supreme Court concluded that there were reasonable grounds to assume that the procedural error had essentially influenced the result of the case.The Supreme Court quashed the decision of the court of appeal and annulled the judgement of the court of first instance as far as X was concerned.The case was returned to the court of first instance for a new consideration. 10.9.2014 / 26.9.2014 / RHANSKI
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Date when decision was rendered: 18.5.2012 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 928 Reference to source KKO 2012:49. Decisions of the Supreme Court 2012 January-June Avgöranden av Högsta domstolen 2012 januari-juni Korkeimman oikeuden ratkaisuja 2012 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2012 Pages: pp. 326-332 Subject
fair trial,
preparation of defence,
extraordinary appeal,
Relevant legal provisions Chapter 12, section 29 and Chapter 26, section 20-1 of the Code of Judicial Procedure = rättegångsbalken 12 kapitel 29 § och 26 kapitel 20 § 1 mom. = oikeudenkäymiskaari 12 luku 29 § ja 26 luku 20 § 1 mom. ECHR-6-1; ECHR-6-3 Abstract The court of first instance had sentenced X to imprisonment for theft and means of payment fraud.In his appeal to the court of appeal, X claimed that the assessment of the evidence by the court of first instance had been incorrect and the charges against X should thus be dismissed.X also requested that in any case the punishment is reduced and adjusted and the grounds for increasing the severity of the punishment are not applied.The court of appeal summoned X to attend the main hearing, under threat that, in his absence, the case would be discontinued.X did not attend the main hearing and had not provided any valid excuse for his absence.X's legal counsel, who was present at the main hearing, requested that the court decides the matter in written proceedings as far as the assessment of punishment was concerned.However, the court of appeal decided that the matter is entirely discontinued due to X's absence.X then filed an extraordinary appeal with the Supreme Court, due to procedural fault. The Supreme Court first noted the relevant provisions of the Code of Judicial Procedure: If the appellant is absent from the main hearing, the appeal shall be discontinued in respect of the subject of the main hearing.A party who, regardless of having been ordered to appear in court in person, sends an attorney instead of appearing in person, while not having a valid excuse, shall be deemed to be absent.The Supreme Court then referred to the case law of the European Court of Human Rights and in particular the cases of Poitrimol v France (judgment of 23 November 1993, Publications of the European Court of Human Rights, Series A, Vol. 277-A), Lala v the Netherlands and Pelladoah v the Netherlands (judgments of 22 September 1994, Publications of the European Court of Human Rights, Series A, Vol. 297-A and B), Van Geyseghem v Belgium (judgment of 21 January 1999, Reports of Judgments and Decisions 1991-I, pp. 127-156), Van Pelt v France (judgment of 23 May 2000), Goedhart v Belgium (judgment of 20 March 2001) and Kari-Pekka Pietiläinen v Finland (judgment of 22 September 2009).The right of everyone charged with a criminal offence to be defended effectively by a lawyer is one of the basic features of a fair trial.An accused does not lose this right merely on account of not attending a court hearing.Even if the legislature must be able to discourage unjustified absences, it cannot penalise them by deprivation of the right to be defended.The Supreme Court also referred to its two earlier decisions (KKO 2004:94 and 2011:30) and noted that it does not follow from the wording of the Code of Judicial Procedure that an appeal should always be entirely discontinued when the applicant is absent from the main hearing without a valid excuse, even though summoned to appear in person.In this kind of situation, the court of appeal must decide, on a case-by-case basis, whether the examination of some parts of the appeal is necessary and reasonable.The Supreme Court gave as an example criminal sanctions which in the Court's view can often be examined and decided despite the defendant's absence. The Supreme Court concluded that the court of appeal should not have discontinued the appeal as far as the request by X's legal counsel was concerned to consider the assessment of punishment in written proceedings.Hearing X in person was not necessary in order to decide the question of punishment.It had also not been shown that the due process guarantees of the injured party would have prevented the consideration of X's appeal as far as the assessment of punishment was concerned.The Supreme Court annulled the decision of the court of appeal as far as the assessment of punishment was concerned.The matter was returned to the appeal court. One dissenting justice of the Supreme Court noted that X's appeal was based on his claim that the assessment of the evidence by the court of first instance had been incorrect.When hearing an appeal by X's co-defendant, the court of appeal had held a main hearing and had thus had the opportunity to consider whether it was reasonable and necessary that the court, on its own motion, assesses X's punishment to his benefit.In the dissenting justice's opinion, it had not been shown that there had been a procedural fault and X's appeal should thus be dismissed. 23.9.2014 / 26.9.2014 / RHANSKI
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Date when decision was rendered: 10.4.2013 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 817 Reference to source KKO 2013:25. Decisions of the Supreme Court 2013 January-June Avgöranden av Högsta domstolen 2013 januari-juni Korkeimman oikeuden ratkaisuja 2013 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2013 Pages: pp. 205-210 Subject
fair trial,
self-incrimination,
pretrial investigation,
preparation of defence,
legal counsel,
Relevant legal provisions sections 10, 29 and 30 of the Criminal Investigations Act; Chapter 17, sections 2, 4 and 32 of the Code of Judicial Procedure; Chapter 2, section 1 and Chapter 6, section 7 of the Criminal Procedure Act = förundersökningslagen 10 §, 29 § och 30 §; rättegångsbalken 17 kapitel 2 §, 4 § och 32 §; lag om rättegång i brottmål 2 kapitel 1 § och 6 kapitel 7 § = esitutkintalaki 10 §, 29 § ja 30 §; oikeudenkäymiskaari 17 luku 2 §, 4 § ja 32 §; laki oikeudenkäynnistä rikosasioissa 2 luku 1 § ja 6 luku 7 §. ECHR-6-3-c; CCPR-14-3-d Abstract The court of first instance had sentenced X to imprisonment for illegal possession of drugs with intent to sell.The court of appeal had increased the punishment, because in the appeal court's view it had been shown that X had also sold drugs.As grounds for its decision the court of appeal referred to three statements X had given when being questioned in the pretrial investigation.X had later retracted these statements during the court proceedings.The appeal court did not regard X's statement in court as plausible.X appealed to the Supreme Court. The main question before the Supreme Court was whether X's right to legal assistance in the pretrial investigation and the privilege against self-incrimination had been breached to the effect that the pretrial investigation statements could not be used as evidence against X.In addition to the relevant national legislation, the Supreme Court referred to the ECHR and the case law of the European Court of Human Rights concerning the right to legal assistance and waiver of legal assistance (Salduz v Turkey, judgment of 27 November 2008; Panovits v Cyprus, judgment of 11 December 2008; Yoldas v Turkey, judgment of 23 February 2010; Brusco v France, judgment of 14 October 2010; and Leonid Lazarenko v Ukraine, judgment of 28 October 2010). According to the pretrial investigation records, X had been informed before the first questioning of his position in the investigation, his right to request the presence of a credible witness, the specific offence in which he was suspected, his right to retain counsel in the investigation, and of in which situations a public defender may be assigned to him.On the following two occasions of questioning X had, according to the pretrial investigation records, said he does not need legal counsel or a credible witness.X had inspected and signed the pretrial investigation records.X had not claimed that he would have requested the presence of legal counsel or a credible witness in the pretrial investigation, nor had he referred to the privilege against self-incrimination.The Supreme Court found nothing which would have suggested that X would not have known in which offence he was suspected or that X would not have appreciated the consequences of waiving the right to legal counsel and a credible witness, or that persuasion, coercion or other improper methods would have been used in order to make X tell things that were to his disadvantage.The Supreme Court concluded that the waiver of legal counsel and a credible witness could under the circumstances be established in an unequivocal manner.X's rights in the pretrial investigation had thus not been breached to the effect that the pretrial investigation statements could not have been used as evidence against him. The Supreme Court pointed out that there were no legal provisions concerning the value as evidence of a suspect's confession at the pretrial investigation stage.The court had considered this question in its earlier decision KKO 2000:35 of 20 March 2000, in which case the court had concluded that although a retracted confession could be used as evidence, it is clear that a pretrial investigation statement which is later retracted by the suspect in the court proceedings cannot be the sole or mail basis for a conviction.The Supreme Court found that in the instant case, other evidence presented by the prosecutor, in addition to the pretrial investigation statements, did not explicitly show that X had also sold drugs.Rather, as the court of first instance had found, evidence showed that X had been guilty of possession of drugs with intent to sell.The pretrial investigation statements, which had later been retracted, were thus the main evidence to show that X had been quilty of selling drugs.A conviction cannot be based on such evidence alone.Other evidence presented in the case was not sufficient to support conviction.The Supreme Court ruled that the charges for selling drugs were to be dismissed as unsubstantiated. 23.9.2014 / 29.5.2017 / RHANSKI
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Date when decision was rendered: 23.5.2011 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 1138; R2010/115 Reference to source KKO 2011:30. Decisions of the Supreme Court 2011 January-June Avgöranden av Högsta domstolen 2011 januari-juni Korkeimman oikeuden ratkaisuja 2011 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2011 Pages: pp. 248-258 Subject
fair trial,
preparation of defence,
extraordinary appeal,
Relevant legal provisions Chapter 12, section 29 and Chapter 26, section 20-1 of the Code of Judicial Procedure; Chapter 6, sections 1, 2, 3 and 3a of the Criminal Procedure Act = rättegångsbalken 12 kapitel 29 § och 26 kapitel 20 § 1 mom.; lag om rättegång i brottmål 6 kapitel 1 §, 2 §, 3 § och 3a § = oikeudenkäymiskaari 12 luku 29 § ja 26 luku 20 § 1 mom.; laki oikeudenkäynnistä rikosasioissa 6 luku 1 §, 2 §, 3 § ja 3a §. ECHR-6-1; ECHR-6-3 Abstract The court of first instance had sentenced X to conditional imprisonment and to pay damages.In his appeal to the court of appeal, X claimed that the credibility of the statements by X and his adverse party had not been correctly evaluated by the first instance court.X requested that the judgment is reversed or, alternatively, the punishment is mitigated and the size of the damages is reduced.The court of appeal had summoned X to attend the main hearing, under threat that, in his absence, the case would be discontinued.X did not attend the main hearing and had not provided in advance any valid excuse for his absence.X's counsel informed the court that X was at home sick and would arrive an hour late.Counsel suggested that the court begins the main hearing despite X's absence.However, the court of appeal decided that the case is discontinued because X was absent from the main hearing without a valid excuse, regardless of having been ordered to appear in court in person.X then filed an extraordinary appeal with the Supreme Court, due to a procedural fault. According to the Code of Judicial Procedure, if the appellant is absent from the main hearing, the appeal shall be discontinued in respect of the subject of the main hearing.A party who, regardless of having been ordered to appear in court in person, sends an attorney instead of appearing in person, while not having a valid excuse, shall be deemed to be absent.The Supreme Court noted that, keeping in mind Article 6 of the ECHR and the case law of the European Court of Human Rights, the relevant national provisions should be given a flexible interpretation, with the aim of guaranteeing the defendant's rights of defence also in situations where the defendant is absent from a hearing, regardless of being ordered to appear in person, and only the defendant's counsel is present.On the other hand, the right to a fair trial also protects the injured party in whose interest it is that a criminal case, including a claim for damages, is duly resolved within a reasonable time. The Supreme Court noted that because X's appeal was based on the evaluation of the credibility of oral evidence, the court of appeal could hold, with justification, that X's presence and hearing X in the main hearing were necessary in order to decide the appeal.The court could not begin hearing the injured party and the witnesses, counting on it that X would arrive within an hour.Because the evaluation of evidence was essentially based on a comparison of contradictory statements, postponing the main hearing and receiving evidence in several separate hearings would have been likely to undermine the possibility to evaluate the evidence in the court of appeal.Also, when X was summoned to the court of appeal, he had not been notified that evidence could be heard regardless of his absence.The Supreme Court concluded that under the circumstances the court of appeal could not begin the main hearing and hear the injured party and the witnesses in X's absence. The Supreme Court then pointed out that in X's appeal, the doubts regarding the credibility of the evidence had been expressed in general terms only.The injured party and the witnesses were present at the main hearing.In addition, the offences referred to in the charge were committed several years ago, in 2005.Taking into account the interests of the injured party and the requirements for effective proceedings within a reasonable time, the court held that protecting X's rights of defence did not in this case require that the main hearing is postponed.Finally, regarding the subject of the main hearing, there were no such parts in X's appeal which could have been examined without hearing oral evidence in the main hearing.The Supreme Court concluded there had been no procedural fault when the court of appeal had discontinued the case entirely.X's appeal was dismissed. One dissenting justice found that the decision to discontinue the case was especially hard and unjustified from X's point of view, considering his right to defend himself and his right to a fair trial.The court of appeal should have taken into account in particular the fact that X's counsel had requested that the court begins the main hearing in X's absence.This could be regarded as an expression of X's view of a right to a fair trial and to defend oneself through legal assistance.In the dissenting justice's opinion, there had thus been a procedural fault which can be assumed to have essentially influenced the result of the case. 25.9.2014 / 29.9.2014 / RHANSKI
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Date when decision was rendered: 9.5.2012 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 861; R2011/704 Reference to source KKO 2012:45. Decisions of the Supreme Court 2012 January-June Avgöranden av Högsta domstolen 2012 januari-juni Korkeimman oikeuden ratkaisuja 2012 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2012 Pages: 296-310 Subject
fair trial,
preparation of defence,
self-incrimination,
legal counsel,
pretrial investigation,
interpretation,
Relevant legal provisions Chapter 17, section 32 of the Code of Judicial Procedure; Chapter 6, section 7-2 of the Criminal Procedure Act; sections 10, 29, 37 and 39 of the Criminal Investigations Act = rättegångsbalken 17 kapitel 32 §; lag om rättegång i brottmål 6 kapitel 7 § 2 mom.; förundersökningslagen 10 §, 29 §, 37 § och 39 § = oikeudenkäymiskaari 17 luku 32 §; laki oikeudenkäynnistä rikosasioissa 6 luku 7 § 2 mom.; esitutkintalaki 10 §, 29 §, 37 § ja 39 §. ECHR-6-3-c; ECHR-6-3-e Abstract X had been in custody when being questioned by the police on suspicion of an aggravated narcotics offence.X had been appointed a defender who, however, was not present during the questioning.X did not speak Finnish, so the language used in questioning was English.The official record of the questioning was prepared in Finnish, and the police officer had given X an oral translation of the record in English.According to the pretrial investigation records, X had been informed by the police before the questioning of his right to counsel, but not of his right to remain silent and his right not to incriminate himself.The police had been aware that X had not consulted his counsel before the questioning.In the court of appeal, X was convicted for aggravated narcotics offence, grossly negligent homicide and grossly negligent bodily injury.The conviction was partly based on X's pretrial investigation statements which the prosecutor had referred to as evidence supporting X's guilt. The Supreme Court found that, despite the evidence received in the oral hearing before the Supreme Court, it was not clear why X had failed to meet with his counsel.Apparently, counsel should have provided more effective assistance.On the other hand, the police had not notified him in advance as to when exactly X's questioning would take place.The Supreme Court held that the appointment of a defender for X or the fact that X had continued to answer questions in the absence of his counsel did not relieve the authorities from their duty to guarantee the suspect's rights of defence.Such guarantees must be practical and effective.The mere appointment of a defender is not necessarily sufficient.The Supreme Court concluded that X could not be regarded as having waived his right to counsel at the pretrial investigation stage in a knowing and unequivocal manner, as established in the case law of the European Court of Human Rights.Nor could X be regarded as having been fully aware of the offences he was suspected in or what the legal consequences of the waiver would be.As far as the working language of the questioning was concerned, the Supreme Court ruled that questioning X in English had not as such been in breach of X's rights.However, preparing the record of the questioning in Finnish, when the questioning had in fact been in English, was not in accordance with the Criminal Investigations Act.X had not been able to himself review the contents of the record of the questioning before signing it. The Supreme Court concluded that there had been a breach of X's rights of defence and his right not to incriminate himself to the effect that X's statements in the pretrial investigation could not be used as evidence against him.In its decision, the Supreme Court discussed in detail the case law of the European Court of Human Rights on guarantees of a fair trial at the pretrial investigation stage, the waiver of the right to legal counsel and the minimum safeguards required in such a case. 1.10.2014 / 1.10.2014 / RHANSKI
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