Date when decision was rendered: 26.11.1993

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 4287; R93/253

Reference to source

KKO 1993:152.

Decisions of the Supreme Court 1993 II July-December

Avgöranden av Högsta domstolen 1993 II juli-december

Korkeimman oikeuden ratkaisuja 1993 II heinä-joulukuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1994

Pages: pp. 684-692

Subject

right to freedom from retroactivity, nulla poena sine lege,
förbud mot retroaktiv lagstiftning, nulla poena sine lege,
takautuvan lainsäädännön kielto, nulla poena sine lege,

Relevant legal provisions

Chapter 7, sections 7 and 8 of the Penal Code, section 3 of the Implementing Ordinance of the Penal Code

= strafflagen 7 kapitel 7 § och 8 §, Förordning om införande av strafflagen 3 §

= rikoslaki 7 luku 7 § ja 8 §, asetus rikoslain voimaanpanemisesta 3 §.

ECHR-7-1 (Explicit reference to the ECHR in the court of first instance, implicit reference to the ECHR in the judgment of the Supreme Court

Abstract

Chapter 7 of the Penal Code, dealing with sentencing separate crimes committed by the same person, had been amended through Act No. 697 of 1991.In a complicated criminal case, the application of the relevant transitory provisions seemed to cause that the defendant was to receive a more severe punishment than according to the rules in force at the time of the offences.The court of first instance and the court of appeal had dismissed the prosecutor's claim to sentence a combined punishment according to the new provisions.Dismissing the prosecutor's claim would lead to an outcome which was against the prohibition of retroactive criminal law and which apparently was not intended when Chapter 7 of the Penal Code was amended.Therefore the Supreme Court considered that the provisions of Chapter 7, as in force since 1 April 1992, may be applied in spite of the wording of the transitory provisions of Act No. 697 of 1991.In this way it was possible to avoid the outcome of the court's consideration of sanctions becoming more severe than it would have been if the law in force at the time of the offences had applied.The defendant was sentenced to imprisonment for 2 years and 3 days.

26.3.1998 / 9.2.2010 / RHANSKI

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: 14.12.2005

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 3064; R2005/736

Reference to source

KKO 2005:132.

Decisions of the Supreme Court 2005 II July-December

Avgöranden av Högsta domstolen 2005 II juli-december

Korkeimman oikeuden ratkaisuja 2005 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2006

Pages: pp. 960-964

Subject

nulla poena sine lege, right to freedom from retroactivity, principle of legality,
nulla poena sine lege, förbud mot retroaktiv lagstiftning, legalitetsprincipen,
nulla poena sine lege, takautuvan lainsäädännön kielto, laillisuusperiaate,

Relevant legal provisions

section 78-1 of the Road Traffic Act; section 8 of the Constitution Act

= vägtrafiklagen 78 § 1 mom.; grundlagen 8 §

= tieliikennelaki 78 § 1 mom.; perustuslaki 8 §.

ECHR-7

Abstract

A court of first instance had sentenced X to a fine and a driving ban for having caused a traffic hazard in April 2005.The driving ban was due to expire 30 April 2006.The court based its decision on the amended Road Traffic Act, which came into force 1 March 2005 and provides that the minimum period of a driving ban is one year in cases where the driver has been found guilty of causing a traffic hazard twice within five years.Before April 2005, X had been convicted of having caused a traffic hazard in January 2002.The old Road Traffic Act only prescribed the maximum period for a driving ban, but did not give a minimum period, for example, in case of recidivists.In his appeal to a court of appeal and further to the Supreme Court, X referred to the decision of the European Court of Human Rights in the case of Achour v.France (judgment of 10 November 2004).X argued that because of the prohibition of retroactive application of criminal law, his previous conviction could not be taken into account as an aggravating circumstance when deciding, under the amended Road Traffic Act, on the length of the driving ban imposed on him due to the second offence.

The Supreme Court held that in X's case the applicable law is the law which was in force when X committed his second offence, that is the amended Road Traffic Act.When committing the offence, X was aware of the amendment and of the fact that his previous offence would be taken into account when imposing a driving ban in case of a new offence.The driving ban was a consequence of the new offence and the penalty was harsher because of X's previous offence; it was not an additional penalty for the previous offence.Regarding the Achour case, the Supreme Court held that X's case was different from Achour's.Achour had been convicted as a recidivist to a harsher penalty in accordance with new legislation, though he had committed his second offence after the statutory limitation period under the previous legislation had already expired.In Achour's case, the application of the new legislation restored a legal situation that had already ceased to have effect.The Supreme Court held that in practice X's previous offence would apparently have been taken into account as an aggravating circumstance even under the old Act though the length of a driving ban in that case would have been shorter than under the amended Act.The Supreme Court concluded that the application of the amended Road Traffic Act in X's case did not constitute retroactive application of criminal law.It upheld the decision of the court of appeal.

29.5.2006 / 29.5.2006 / RHANSKI

Date when decision was rendered: 12.7.2005

Judicial body: Court of Appeal of Eastern Finland = Östra Finlands hovrätt = Itä-Suomen hovioikeus

Reference: Report no. 874; R05/745

Reference to source

I-SHO 2005:13.

Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta

Date of publication:

Subject

nulla poena sine lege, right to freedom from retroactivity, principle of legality,
nulla poena sine lege, förbud mot retroaktiv lagstiftning, legalitetsprincipen,
nulla poena sine lege, takautuvan lainsäädännön kielto, laillisuusperiaate,

Relevant legal provisions

sections 75-1 and 78-1 of the Road Traffic Act

= vägtrafiklagen 75 § 1 mom. och 78 § 1 mom.

= tieliikennelaki 75 § 1 mom. ja 78 § 1 mom.

ECHR-7

Abstract

In May 2005, a court of first instance sentenced A to a fine and a driving ban for the offence of drunken driving committed in April 2005.A had previously been convicted of aggravated drunken driving in July 2001.The main question in this case was whether the previous conviction affected the length of the driving ban imposed on A, considering that the provisions concerning driving ban in the Road Traffic Act were amended during the time between the first and the second offence.Previously, the Act only gave the maximum period for a driving ban (five years) but did not define the minimum period.According to the amended provisions, which came into force 1 March 2005, the minimum period for a driving ban is six months in cases where the driver has within the previous five years already been convicted of drunken driving and commits the same offence again.The court of first instance tried A as a first offender and imposed the driving bank for a period expiring in mid-July 2005.The length of the ban corresponded to the court practice prevailing before the coming into force of the amended Road Traffic Act.The court held that because A's first offence was committed before the coming into force of the amended Act, the new provisions providing for a harsher penalty could not be applied without violating the principle of legality.Here the court referred to the case of Achour v.France (judgment of 10 November 2004), in which the European Court of Human Rights had found a violation of Article 7 of the ECHR because of a retroactive application of a law providing for a harsher punishment.

The court of appeal agreed that the Achour judgment supported the interpretation that offences which the defendant had been convicted of before the coming into force of the amended Road Traffic Act could not be taken into account when imposing a driving ban under the new provisions.However, the court noted that in the Achour case the previous statutory limitation period for recidivism had expired before the defendant committed his second offence and before the new, harsher provisions and the longer limitation period came into force.The court of appeal held that the amended provisions concerning a driving ban are clearly formulated in the Road Traffic Act.A is not punished on the basis of these provisions for his previous offence but for an offence committed after the coming into force of the amended Act.After the amended Act had come into force, A had been aware of the consequences he would face if he were to be convicted as a recidivist under the Act.On these grounds the court of appeal found that offences committed before the coming into force of the amended Road Traffic Act can be taken into account as prescribed in the Act when considering the length of a driving ban imposed on a person who has been convicted of drunken driving after the coming into force of the amended Act.In the court's view, this was not in contradiction with the principle of legality.The court extended A's driving ban until mid-December 2005.The decision is final.One dissenting member of the court referred to the prohibition of retroactive application of criminal law and agreed with the decision of the first instance court.

29.5.2006 / 30.5.2006 / RHANSKI

Date when decision was rendered: 6.10.2005

Judicial body: Kouvola Court of Appeal = Kouvola hovrätt = Kouvolan hovioikeus

Reference: Report no. 1111; R05/740

Reference to source

KouHO 2005:7.

Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta

Date of publication:

Subject

nulla poena sine lege, right to freedom from retroactivity, principle of legality,
nulla poena sine lege, förbud mot retroaktiv lagstiftning, legalitetsprincipen,
nulla poena sine lege, takautuvan lainsäädännön kielto, laillisuusperiaate,

Relevant legal provisions

sections 75 and 78 of the Road Traffic Act

= vägtrafiklagen 75 § och 78 §

= tieliikennelaki 75 § ja 78 §.

ECHR-7

Abstract

A court of first instance had imposed a driving ban on X for the offence of drunken driving committed on 23 March 2005.X had been found guilty of aggravated drunken driving before, in July 2001.The main question in this case was whether the previous conviction affected the length of the driving ban, considering that the provisions concerning driving ban in the Road Traffic Act were amended during the time between the first and the second offence.The old Act did not define any minimum period for a driving ban.According to the amended provisions, which came into force 1 March 2005, the minimum period for a driving ban is six months in cases where the driver has within the previous five years already been convicted of drunken driving and commits the same offence again.The Act amending the Road Traffic Act did not contain any transition provisions, so it was not clear whether the amended Act also applied concerning offences which had been committed while the old Act was still in force.The court of first instance held that in this case applying the amended provisions would mean a retroactive application of the law to X's disadvantage.Therefore, the court ruled that the length of the driving ban was to be 3 months and 14 days, i.e. shorter that the minimum period required by the amended Act.The prosecutor brought the case before a court of appeal requesting a six-month driving ban at a minimum.

The court of appeal held that the case of Achour v.France (judgment of 10 November 2004), in which the European Court of Human Rights had found a violation of Article 7 of the ECHR because of a retroactive application of a harsher penalty, supported the interpretation that offences which the defendant had been convicted of before the coming into force of the amended Road Traffic Act could not be taken into account when imposing a driving ban under the new provisions.However, the court of appeal noted that in the Achour case the previous statutory limitation period for recidivism had expired before the defendant committed his second offence and before the new, harsher provisions and the longer limitation period came into force.In the case of Achour, the effects of the longer statutory limitation period had thus been applied retroactively.The court of appeal found that this was not the case when applying the amended Road Traffic Act.X had been guilty of drunken driving after the amended provisions had entered into force, and therefore, in the court's opinion, he was, or at least he should have been, aware of the amended Act and the consequences he would face if he were to be convicted as a recidivist under the Act.The court concluded that X's previous offence should be taken into account.Thus, the total length of the driving ban was to be six months, including the ban imposed by the court of first instance which had expired before the decision of the appeal court.The decision is final.

30.5.2006 / 30.5.2006 / RHANSKI