Date when decision was rendered: 14.3.2008

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 386; H2005/376

Reference to source

KKO 2008:24.

Decisions of the Supreme Court I 2008 January-June

Avgöranden av Högsta domstolen I 2008 januari-juni

Korkeimman oikeuden ratkaisuja I 2008 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2008

Pages: pp. 185-190

Subject

extraordinary appeal, reversal of a legally final judgment,
extraordinärt ändringssökande, återbrytande av dom,
ylimääräinen muutoksenhaku, tuomion purkaminen,

Relevant legal provisions

chapter 31, section 8 of the Code of Judicial Procedure

= rättegångsbalken 31 kapitel 8 §

= oikeudenkäymiskaari 31 luku 8 §

Abstract

In 1999, a court of appeal had sentenced X to a fine for defamation 'despite better knowledge' and by using a printed matter.In its judgment of 16 November 2004, the European Court of Human Rights found that there had been an interference in X's freedom of expression and that there had not been sufficient reasons to show that the interference would have been 'necessary in a democratic society'.The Court confirmed that there had been a violation of Article 10 of the ECHR and ordered Finland to pay damages to X.In late 2005, and with reference to the judgment of the human rights court, X filed with the Supreme Court a request for the reversal of the appeal court's judgment.

The grounds for the reversal of a final judgment are prescribed in the Code of Judicial Procedure, and of these grounds the Supreme Court focused on the reversal of a judgment which is manifestly based on misapplication of the law.The Court pointed out that the ECHR is a binding source of law in Finland and thus a misapplication of a provision of the ECHR is comparable with misapplication of national law.However, the Court continued that in legal praxis it has not been established that the provision on the reversal of a judgment based on misapplication of the law would cover decisions which a court has reached while acting within the bounds of its discretion.The Court held that the judgment of the European Court of Human Rights showed the correct interpretation of the law when assessing freedom of expression on the one hand and the right of privacy on the other.In its own assessment, the court of appeal had reached a conclusion which was different from the opinion of the majority of the human rights court.The Supreme Court also noted that X had submitted her request for the reversal of the appeal court's judgment six years after the judgment had become final.Moreover, based on the judgment of the European Court of Human Rights, X had obtained compensation in form of pecuniary and non-pecuniary damages.Therefore, and considering also the nature of X's offence and her sentence, the Supreme Court held that X no longer suffered from the negative effects of the appeal court's judgment.The Supreme Court concluded that there were no such weighty grounds as provided by law on the basis of which the appeal court's jugdment could be reversed.X's request was rejected.

4.11.2009 / 4.11.2009 / RHANSKI

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,
extraordinärt ändringssökande, återbrytande av dom, utsätta sig för åtal,
ylimääräinen muutoksenhaku, tuomion purkaminen, saattaa itsensä syytteen vaaraan,

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

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,
extraordinärt ändringssökande, återbrytande av dom, utsätta sig för åtal, legalitetsprincipen, rättvis rättegång,
ylimääräinen muutoksenhaku, tuomion purkaminen, saattaa itsensä syytteen vaaraan, laillisuusperiaate, oikeudenmukainen oikeudenkäynti,

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