Date when decision was rendered: 29.10.1997

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 3690; R-97/118

Reference to source

KKO 1997:171.

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. 864-870

Subject

law of procedure, right to freedom from retroactivity,
processrätt, förbud mot retroaktiv lagstiftning,
prosessioikeus, takautuvan lainsäädännön kielto,

Relevant legal provisions

Chapter 8, section 6-1 and Chapter 39, section 9-3 of the Penal Code

= strafflagen 8 kapitel 6 § 1 mom., 39 kapitel 9 § 3 mom.

= rikoslaki 8 luku 6 § 1 mom., 39 luku 9 § 3 mom.

ECHR-7, CCPR-15

Abstract

A and B were charged with dishonesty of the debtor.The request for prosecution was made by a trustee representing the administration of the bankrupts' estates.When the proceedings were instituted, the trustee acted on behalf of the creditors without any explicit authorization.A claimed that since the offence they were charged with was, at the time of the commission, a complainant offence and the trustee lacked proper authorization, no legitimate request for prosecution had been made and the case should be dismissed.The court of first instance stated that according to the relevant provision of the Penal Code which was applicable at the time of the commission of the offence (in 1990), the administration of a bankrupt's estate could not act on behalf of the creditors without authorization by the meeting of creditors.With the amendment of Chapter 39, section 9-3 of the Penal Code, which entered into force on 1 January 1991, such authorization was written in section 9-3 and a specific authorization from the creditors was no longer needed.According to the court of first instance, the main issue was whether Chapter 39, section 9-3 could be applied retroactively to offences committed before the entry into force of the amendment.The court of first instance considered the legal principle according to which procedural legislation is applicable to all legal proceedings which have been instituted after the entry into force of such legislation.However, the court concluded that the distinction between procedural and substantive rules is often unclear and flexible and no conclusions affecting the legal status of the accused could be drawn on the basis of such distinction.The court of first instance referred, among other things, to the prohibition of retroactive application of criminal legislation and to the principle of imposition of the lighter penalty, included in Article 7 of the ECHR and Article 15 of the CCPR.It argued further that in unclear cases the decision had to be made and the law interpreted to the benefit of the accused.Applying section 9-3 retroactively in this case would lead to a situation unfavourable to the accused.The trustee did not have authorization to act on behalf of the creditors.Taking into account the period of limitation for criminal proceedings, as prescribed in Chapter 8, section 6-1 of the Penal Code, it was no longer possible to obtain such authorization.Therefore, the court of first instance concluded, the charges should be dismissed.

The prosecutor and the bankrupts' estates lodged an appeal with the court of appeal, which stated that the administration of the bankrupts' estates had acted on behalf of the creditors on the basis of Chapter 39, section 9-3 of the Penal Code.The period of limitation for criminal proceedings had not expired when section 9-3 entered into force.The period of limitation had not been extended nor had the criminal liability of the accused become more severe on account of the amendment.The court of appeal also referred to the established principle that procedural rules were applied with respect to all legal proceedings which had been instituted after the entry into force of such rules.The court of appeal concluded that the trustee representing the administration of the bankrupts' estates had a right to act on behalf of the creditors and to report the offence for prosecution.The Supreme Court did not change the decision of the court of appeal.

2.4.1998 / 4.4.2003 / LISNELLM

Date when decision was rendered: 7.9.1994

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 3105; R93/815

Reference to source

KKO 1994:79.

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: 1994

Pages: pp. 350-353

Subject

criminal charge, fair trial, law of procedure,
brottsanklagelse, rättvis rättegång, processrätt,
rikossyyte, oikeudenmukainen oikeudenkäynti, prosessioikeus,

Relevant legal provisions

Chapter 23, section 2, and Chapter 21, section 10 of the Penal Code; sections 3-1 and 98 of the Road Traffic Act; Chapter 25, section 7 of the Code of Judicial Procedure

= strafflagen 23 kapitel 2 §, 21 kapitel 10 §; vägtrafiklagen 3 § 1 mom. och 98 §; rättegångsbalken 25 kapitel 7 §

= rikoslaki 23 luku 2 §, 21 luku 10 §; tieliikennelaki 3 § 1 mom. ja 98 §; oikeudenkäymiskaari 25 luku 7 §.

ECHR-6-3-a, ECHRP-7-4

Abstract

The court of first instance had given A a suspended sentence of 3 months imprisonment for aggravated drunken driving, endangering the traffic and having caused bodily injury.The public prosecutor notified the court of first instance of his intent to appeal against the decision as far as the meting out of the sentence was concerned.

In his appeal to the court of appeal, the public prosecutor demanded that A's prison sentence is to be unconditional and that an earlier suspended prison sentence for drunken driving is enforced.He also suggested that the prison sentences could be carried out as community service.As the public prosecutor had notified the court of first instance of his discontent with the decision of the court only "as far as the meting out of the sentence was concerned", the court of appeal decided not to consider the prosecutor's requests concerning an unconditional sentence and the enforcement of the earlier prison sentence.As the prosecutor had not presented any demands before the court of appeal concerning the meting out of the sentence nor any grounds for changing the decision of the court of first instance, the court of appeal upheld the decision of the lower court.

The public prosecutor appealed to the Supreme Court.In its decision, the Supreme Court stated that according to Chapter 25, section 7 of the Code of Judicial Procedure, a notification of discontent can be limited to apply to a part of the decision of the first instance court.However, the limitation must concern a clearly distinguishable issue which can be dealt with separately from the rest of the case.In the opinion of the Supreme Court, the meting out of a sentence was part and parcel of the assessment of the punishment and did thus not form a clearly distinguishable, independent issue to which the notification of discontent could be limited to apply.The Court continued by noting that the public prosecutor had already in the court of first instance requested that A's prison sentence would be unconditional and that the earlier prison sentence would be enforced.When receiving A's notification of his discontent with the meting out of the sentence, the chairman of the court of first instance should have asked A to specify his notification.The Supreme Court concluded that as it was not possible to limit the notification of discontent to apply to the meting out of the sentence only, there was nothing to prevent the court of appeal from considering A's request concerning the unconditional sentence and the enforcement of the earlier prison sentence.The Supreme Court quashed the decision of the court of appeal and returned the case to the latter.(A vote 4-1).

A dissenting justice was of the opinion that in current legal language the question of a suspended sentence did not form a part of the meting out of the sentence, the two issues being regulated in different Acts.The notification of discontent by the public prosecutor was open to various interpretations, and it could not be interpreted to the detriment of the defendant.As the notification before the court of first instance was limited to the meting out of the sentence, the defendant had reason to believe that the question of the conditionality of the sentence would not be assessed by the court of appeal.The dissenting justice referred to Article 6-3-a of the ECHR and to Article 4 of Protocol No. 7 to the ECHR and concluded that there was no reason to change the decision of the court of appeal.

7.4.1998 / 3.4.2003 / LISNELLM

Date when decision was rendered: 26.10.1994

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 3963; S93/553

Reference to source

KKO 1994:107.

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. 479-486

Subject

law of procedure, fair trial,
processrätt, rättvis rättegång,
prosessioikeus, oikeudenmukainen oikeudenkäynti,

Relevant legal provisions

Chapter 24, section 3-1 of the Code of Judicial Procedure

= rättegångsbalken 24 kapitel 3 § 1 mom.

= oikeudenkäymiskaari 24 luku 3 § 1 mom.

ECHR-6

Abstract

A had bought a house to be used around the year as a home for her family.Later it turned out that the house was not suitable for this purpose, as it had been built as a summer house for occasional winter use only.A brought the case to the court of first instance where she asked the court to order the seller B to return part of the selling price for the house, as the price was too high considering the condition and intended use of the house.The court of first instance was of the opinion that A could and should have herself made sure that the house was suitable for winter use, and that the shortcomings of the house were not of such character that she was entitled to a reduction of the price.

A appealed to the court of appeal, which stated that the house was considerably inferior to what A, considering the price and the information received, would have had reason to expect.A was therefore entitled to a reduction of the price.

B appealed to the Supreme Court, demanding that the decision of the court of appeal either be quashed or the reduction of the price decreased.With reference to Chapter 24, section 3-1 of the Code of Judical Procedure, the Supreme Court found that in altering the decision of the court of first instance, the court of appeal had made a procedural error by not including in its judgment the grounds on which the judgment was based.The decision was quashed and the case returned to the court of appeal.(A vote 3-2) The two dissenting justices referred to Article 6 of the ECHR and to the Code of Judicial Procedure and agreed that a procedural error had been made.Despite this, they would have dealt with the case instead of returning it to the court of appeal.

7.4.1998 / 10.10.2012 / RHANSKI

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,
rätt att höras, förberedande av försvar, barn, processrätt, rätt till genmäle,
oikeus tulla kuulluksi, puolustuksen valmisteleminen, lapset, prosessioikeus, oikeus vastaukseen,

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