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Date when decision was rendered: 6.9.2001 Judicial body: Turku Court of Appeal = Åbo hovrätt = Turun hovioikeus Reference: Report No. 2026; R00/2928 Reference to source Registry of the Turku Court of Appeal Åbo hovrätts registratorskontor Turun hovioikeuden kirjaamo Date of publication: Subject
fair trial,
self-incrimination,
Relevant legal provisions section 22 of the Constitution Act; section 59-3 of the Road Traffic Act = grundlagen 22 §; vägtrafiklagen 59 § 3 mom. = perustuslaki 22 §; tieliikennelaki 59 § 3 mom. ECHR-6; CCPR-14-3-g Abstract A had collided with a parked car at a parking place.The court of first instance sentenced him to a fine for endangerment of traffic.The prosecutor also demanded that A should be sentenced for a violation of section 59-3 of the Road Traffic Act which provides that a person who has caused damage has a duty to inform the owner of the damaged property or the police.A had failed to do so.The court referred to Article 14-3-g of the CCPR and the right of the accused not to testify against himself or to confess guilt.It noted that the same principle emanates from the right to a free trial as provided for in Article 6 of the ECHR.The court also referred to section 22 of the Constitution Act and the duty of public authorities to guarantee the observance of human rights.The court stated that the purpose of section 59-3 was to make sure that questions relating to responsibility for damages and for insurance as well as penal responsibility were clarified.A could not fulfill his duty under section 59-3 without making himself liable for prosecution.In balancing A's right not to incriminate himself against his duty under section 59-3, the court concluded that the former should be given priority. The prosecutor took the case to the court of appeal which discussed the same human rights provisions.It noted that the rights guaranteed in Article 14-3-g of the CCPR and Article 6 of the ECHR were not subject to limitation.A balancing of interests was therefore not possible.The court continued that the duty under section 59-3 was not based on a possible need to initiate criminal proceedings but on a general duty of care of every citizen.This duty has to be respected in order to maintain traffic discipline, which constitutes a common interest in society.The court concluded that to punish for the negligence of the duty was not in contradiction with the guarantees of fair trial as provided for by human rights provisions.A was sentenced to a fine for a breach of his duty under section 59-3. 30.10.2002 / 12.3.2003 / LISNELLM
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Date when decision was rendered: 26.10.2005 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report no. 3458; R03/80 Reference to source Registry of the Helsinki Court of Appeal Helsingfors hovrätts registratorskontor Helsingin hovioikeuden kirjaamo Date of publication: Subject
self-incrimination,
Relevant legal provisions ECHR-6; CCPR-14-3-g Abstract In a case concerning economic offences the defendant X claimed before the court of first instance that he had a right not to give evidence against himself, as prescribed in Article 14-3-g of the CCPR and in case law under Article 6 of the ECHR.He had thus no duty to give information about his property in an execution.The court of first instance held that execution proceedings are not a part of a criminal procedure against the debtor but a way of establishing the debtor's financial situation in order to inform the creditors.In execution proceedings, a debtor is not charged with a criminal offence in the sense prescribed in Article 6 of the ECHR and is thus not covered by the protection provided for by that article (Helsinki court of first instance, decision no. 02/12731 of 27 November 2002). X no longer referred to his right not to incriminate himself before the court of appeal.The decision of the appeal court in the case is final.The Supreme Court did not grant leave to appeal in the case (decision no. 544 of 9 March 2006). 29.5.2006 / 29.5.2006 / RHANSKI
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| [3 / 7] |
Date when decision was rendered: 17.4.2009 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 796; R2008/184 Reference to source KKO 2009:27. 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. 215-247 Subject
fair trial,
self-incrimination,
Relevant legal provisions sections 3 (110/1995) and 15-1 (47/1965) of the Bankruptcy Code; chapter 39 section 2-1-1 of the Penal Code = konkursstadga 3 § (110/1995) och 15 § 1 mom.(47/1965); strafflagen 39 kapitel 2 § 1 mom. 1 punkten = konkurssisääntö 3 § (110/1995) ja 15 § 1 mom.(47/1965); rikoslaki 39 luku 2 § 1 mom. 1 kohta. ECHR-6; CCPR-14-3-g Abstract X had been declared bankrupt.It turned out that in attesting that the bankruptcy estate inventory was correct, X had failed to disclose all assets necessary for the drawing up of the inventory.He relied on Article 6 of the ECHR and Article 14-3-g of the CCPR and claimed that being compelled to disclose all his assets would have infringed his right not to incriminate himself in a criminal trial which was pending against him at the same time and in which he was charged with dishonesty by a debtor for an alleged transfer of assets abroad beyond the reach of creditors. The Supreme Court noted that the Bankruptcy Code obligates the debtor to disclose to the estate administrator all information on the assets of the estate.The estate inventory as such is not connected with a criminal case and the debtor is not regarded as a crime suspect when attesting the inventory.Also, the creditor who had petitioned for bankruptcy in this case had not done so in order to obtain evidence on dishonesty by the debtor for the purposes of the criminal trial.With reference to the case law of the European Court of Human Rights, the Supreme Court noted that the right to remain silent and the right not to incriminate oneself are not absolute rights and must be assessed on a case-by-case basis.In the Supreme Court's view, the central issue in this case was the significance of the information on X's assets if used as evidence against him.In the criminal trial, the prosecutor had obtained most of the evidence supporting the charges before the opening of the proceedings.The Supreme Court held that because X had plenty of assets other than those referred to in the charges, the fact that he would have given information on all assets necessary for the drawing up of the estate inventory, would not as such have meant that he would at the same time have admitted to have committed any of the acts referred to in the criminal charges.The Court agreed that such information could have supplemented the facts the charges were based on and could have led to further investigations.However, the Court continued, considering that the acts referred to in the charges had been committed some three to five years before the bankruptcy proceedings and that the various transfers of funds had been exceptionally complicated, the information on assets in the estate inventory could not be regarded as significant to the extent that X by disclosing all assets necessary for the drawing up of the estate inventory would have admitted his guilt to the criminal charges or would have been more likely to be convicted.The Supreme Court concluded that X had had no right to refuse to disclose his assets when attesting the estate inventory on the grounds that he would thus have been compelled to incriminate himself. In its decision, the Supreme Court referred to several judgments of the European Court of Human Rights, including the cases of Saunders (judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI); Heaney and McGuinnes (judgment of 21 February 2000, Reports of Judgments and Decisions 2000-XII); Kansal (judgment of 10 November 2004) and O'Halloran and Francis (judgment of 29 June 2007). Of the lower courts, the court of first instance ruled against X, with reference to, for example, case no. 2002:12 of the Supreme Court and the judgments of the European Court of Human Rights in the cases of Weh (8 April 2004) and Shannon (4 October 2005).Emphasizing the fact that the bankruptcy proceedings and the criminal proceedings were pending at the same time, the court of appeal held that X had no obligation to give information which he could not disclose without incriminating himself.As grounds for its decision, the court referred to guarantees of fair procedure as prescribed in international human rights treaties obligating Finland and in the case law of the European Court of Human Rights. See also the decision by the Supreme Court KKO 2009:80 of 20 October 2009. 30.6.2009 / 18.10.2012 / RHANSKI
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Date when decision was rendered: 20.10.2009 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 2065; H2009/89 Reference to source KKO 2009:80. Decisions of the Supreme Court 2009 II July-December Avgöranden av Högsta domstolen 2009 II juli-december Korkeimman oikeuden ratkaisuja 2009 II heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 582-594 Subject
extraordinary appeal,
reversal of a legally final judgment,
self-incrimination,
Relevant legal provisions chapter 31, section 8-4 of the Code of Judicial Procedure = rättegångsbalken 31 kapitel 8 § 4 punkten = oikeudenkäymiskaari 31 luku 8 § 4 kohta. ECHR-6; CCPR-14 Abstract In bankruptcy proceedings against him, X had not declared all his assets, referring to his right not to incriminate himself.At that time, X was also charged with dishonesty by a debtor in a criminal trial.In the criminal case, the Supreme Court, as a last instance, held that X had no right to withhold the information on his assets and convicted him of aggravated dishonesty by a debtor (decision KKO 2009:27 of 17 April 2009).A few days later, the European Court of Human Rights gave its decision in the case of Marttinen v.Finland, which was concerning a debtor's right to silence and his right not to incriminate himself and in which Finland was found to have violated Article 6 of the ECHR.With reference to the Marttinen case, X requested the reversal of the Supreme Court's judgment in his case on the grounds that it was manifestly based on misapplication of the law. The Supreme Court noted that the right against self-incrimination is not absolute and its contents have not been fully clarified.In its decision 2009:27, the Supreme Court had assessed X's right to silence on the basis of the risk X would have faced of being found guilty of dishonesty by a debtor, had he provided the information on his assets, and the significance of that information as potential evidence supporting X's conviction.The Supreme Court held now that it could not find sufficient support for this interpretation in the previous case law of the European Court of Human Rights.Rather, in the more recent case of Marttinen, the right against self-incrimination was interpreted to the effect that if the criminal charge and the information which the debtor is obliged to disclose in the enforcement inquiry and bankruptcy proceedings concern the same facts, the debtor may refuse to disclose the information, irrespective of the significance of the information in assessing the debtor's guilt.It is sufficient that the debtor cannot rule out the possibility that the requested information may be significant in the criminal case. The Supreme Court found that, in the light of the case law of the European Court of Human Rights at the time decision 2009:27 was made, it had not manifestly misinterpreted the right against self-incrimination.However, considering the more recent developments, the interpretation adopted by the Supreme Court was in conflict with the case law of the human rights court.X had been sentenced to imprisonment and to pay damages, but the judgment had not yet been enforced.Thus, the consequences of having applied national law in conflict with the ECHR could still be prevented by reversing the judgment.The Supreme Court then decided to reverse its judgment 2009:27 as far as it was concerning X's conviction for aggravated dishonesty by a debtor and to release X from the liability to pay damages.The decision was made by a full court. 10.11.2009 / 14.4.2010 / RHANSKI
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Date when decision was rendered: 22.6.2010 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 1322; H2009/93 Reference to source KKO 2010:41. Decisions of the Supreme Court 2010 January-June Avgöranden av Högsta domstolen 2010 januari-juni Korkeimman oikeuden ratkaisuja 2010 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 331-340 Subject
extraordinary appeal,
reversal of a legally final judgment,
self-incrimination,
principle of legality,
fair trial,
Relevant legal provisions chapter 31, sections 8-3 and 8-4 of the Code of Judicial Procedure; chapter 4 and chapter 32, section 1 of the Penal Code; section 8 of the Constitution Act = rättegångsbalken 31 kapitel 8 § 3 och 4 punkten; strafflagen 4 kapitel och 32 kapitel 1 §; grundlagen 8 § = oikeudenkäymiskaari 31 luku 8 § 3 ja 4 kohdat; rikoslaki 4 luku ja 32 luku 1 §; perustuslaki 8 §. ECHR-6; ECHR-7 Abstract The court of appeal had sentenced X for aggravated receiving offence on the grounds that he had concealed property which had been acquired by Y through an offence.The Supreme Court had sentenced Y for aggravated fraud by a debtor (KKO 2009:27) but had later reversed the judgment (KKO 2009:80) on the grounds of the right against self-incrimination.In an extraordinary appeal, X claimed that the judgment against him should also be reversed and the charges against him dropped, because of the reversal of the judgment against Y. Referring to its earlier judgment (2009:80), the Supreme Court noted that the charges against Y had been dropped and the judgment reversed because the Court had found that Y had had a right to refuse to provide information on his assets in bankruptcy proceedings, in order not to incriminate himself in a criminal trial pending against him at the same time.Among Y's assets was property which X had allegedly concealed.The Court found that although the right against self-incrimination exempted Y from penal liability, it did not make the act lawful as such and did not exempt any accomplices in the act from liability. The Supreme Court noted that the law requires that a receiving offence is connected with a predicate offence by which the property concealed has been acquired.However, it is not required that the predicate offence is in fact punished.It is possible that a predicate offence remains unpunished for example, if the offender is found criminally irresponsible, enjoys diplomatic immunity or is exempted from penal liability under the Penal Code.While the right against self-incrimination is not explicitly among the grounds for exemption from liability listed in the Penal Code, it is one of the guarantees of a fair criminal trial as laid down in Article 6 of the ECHR.In the Court's view, in a situation where there was a contradiction of legal terms, Y could not have been expected to have acted otherwise in his position at the time and was thus exempted from penal liability. With reference to established legal practice and legal literature, the Supreme Court found that a receiving offence is punishable, though the perpetrator of the predicate offence is exempted from penal liability and remains unpunished.The Court concluded that attributing a receiving offence to X was not in violation of the principle of legality as prescribed in the Constitution Act, the ECHR and the Penal Code.The Supreme Court also found that the evidence used in the case against X had not been obtained in breach of the right to self-incrimination.Therefore, there was no violation of X's right to a fair trial as regards the presentation of evidence.The Supreme Court concluded that it did not follow automatically from the reversal of the judgment against Y that the charges against X would also have to be dropped.Also, no facts had been presented to show that the judgment against X would have been manifestly based on misapplication of the law.X's appeal was rejected. The decision was made by a full court.A minority of three justices held that the charges against X should have been dropped.In their view, the reversal of the judgment against Y meant that Y had not committed the predicate offence and that the property which X had allegedly concealed, had thus not been acquired through an offence.Therefore, X could not be found guilty of a receiving offence. 3.2.2011 / 3.2.2011 / 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: 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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