Date when decision was rendered: 13.6.2005

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 1469; S2004/294

Reference to source

KKO 2005:72.

Decisions of the Supreme Court 2005 I January-June

Avgöranden av Högsta domstolen 2005 I januari-juni

Korkeimman oikeuden ratkaisuja 2005 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2005

Pages: pp. 507-513

Subject

fair trial, access to court, prostitution, right to work,
rättvis rättegång, rätt till domstolsprövning, prostitution, rätt till arbete,
oikeudenmukainen oikeudenkäynti, oikeus tuomioistuinkäsittelyyn, prostituutio, oikeus työhön,

Relevant legal provisions

Chapter 5, section 6-2 of the Code of Judicial Procedure; sections 18 and 21 of the Constitution Act

= rättegångsbalken 5 kapitel 6 § 2 mom.; grundlagen 18 § och 21 §

= oikeudenkäymiskaari 5 luku 6 § 2 mom.; perustuslaki 18 § ja 21 §.

ECHR-6

Abstract

A had been detained for 51 days in connection with the investigation of an extensive case of pandering.No charges were brought against A and she was released.A made her living as a prostitute.She claimed damages from the state for loss of income during the time in detention.On the basis of Chapter 5, section 6-2 of the Code of Judicial Procedure, all three court instances refrained from issuing a summons and dismissed the claim as being manifestly unfounded.

In its decision, the Supreme Court acknowledged that, in Finland, prostitution is not prohibited or made punishable by law, whereas pandering is.Although everyone has a constitutional right to earn his or her livelihood by the employment, occupation or commercial activity of his or her choice, A's activities were under Finnish legal order regarded as being against public decency, in particular because of their apparent link to pandering as admitted by A herself.Contracts which are against the law or public decency are generally held as invalid, and therefore A could not have claimed her fees from her customers through legal proceedings.Consequently, her claim for damages from the state could not be protected by law.The Supreme Court concluded that A's claim was manifestly unfounded and could be dismissed.

The decision was made by a vote.Two concurring justices referred to the constitutional right to choose an occupation and to the case law of the European Court of Justice (Case C-268/99 Aldona Malgorzata Jany and Others).Prostitution may be regarded as an economic or business activity pursued in a self-employed capacity, provided however that it is based on genuine voluntariness and independence, outside any relationship of subordination or pandering.On the basis of A's claim it could be concluded that her activities were linked with a more extensive case of pandering.A's prostitution could therefore not be regarded as an economic activity pursued in a self-employed capacity, and her claim for damages could be dismissed as being manifestly unfounded.

One dissenting justice found that the case was concerning fundamental rights (the right to choose an occupation, the right to personal liberty, access to court and the right to receive a reasoned decision).A's claim was based on the law, and it was genuine and serious.Moreover, in Finnish legal praxis, a prostitute's income has been considered as taxable income.The dissenting justice concluded that, on these grounds, A's claim was not manifestly unfounded and should therefore not have been dismissed.

26.5.2006 / 26.5.2006 / RHANSKI