Date when decision was rendered: 16.2.1999

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 339; R98/38

Reference to source

KKO 1999:18.

Decisions of the Supreme Court 1999 I January-June

Avgöranden av Högsta domstolen 1999 I januari-juni

Korkeimman oikeuden ratkaisuja 1999 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1999

Pages: pp. 170-177

Subject

fair trial, independent and impartial tribunal, judges, witnesses,
rättvis rättegång, oavhängig och opartisk domstol, domare, vittnen,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit, todistajat,

Relevant legal provisions

Chapter 13, section 1 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel 1 §

= oikeudenkäymiskaari 13 luku 1 §.

ECHR-6-1

Abstract

A had acted as a witness in a case concerning an assault.During the proceedings, she changed her statement from what she had told during the pretrial investigation.Because of this the prosecutor dropped the charges.The prosecutor also asked the police to investigate whether A could be suspected of having committed perjury.New charges were later brought in the assault case, and A acted again as a witness.Following its decision in the assault case, the court of first instance considered in the same composition the case against A concerning perjury.A was convicted.

A appealed to the Vaasa Court of Appeal and claimed that as the composition of the court of first instance had been the same in both cases, the judge had a preconception of the matter concerning A.She also told that she had not altered her statement on purpose but because of the leading questions put forth to her by, among others, the judge acting as the chairman of the court.The court of appeal referred to the provisions of the Code of Judicial Procedure regarding the impartiality of judges, to Article 6-1 of the ECHR and to the practice of the European Court of Human Rights.A judge should not have a preconception of a case nor a desire to favor one of the parties in the case (subjective impartiality).Any justified doubts regarding the impartiality of the judge should be excluded (objective impartiality).The court concluded that as the assault case had been decided before the case against A, the judge and the lay members of the court may have had a preconception of the matter when considering and deciding the case against A.Their impartiality was thus in doubt.The court ordered the case to be returned to the court of first instance.

The prosecutor appealed to the Supreme Court which did not agree with the court of appeal.In the assault case, the court did not consider A's possible guilt for perjury and therefore the court members did not have a preconception of the matter when considering the case against A.Furthermore, A's statements made during the proceedings in the assault case constituted part of the evidence on the basis of which the court made its decision in the case against A.The court would have had to examine A's statements in the assault case even if it had assembled in a new composition.On the basis of the documents in the case, the behavior of the judge and the questions he had posed to A during the proceedings were appropriate, and there was no reason to doubt his impartiality on these grounds either.The case was returned to the court of appeal.

25.10.2002 / 4.4.2003 / LISNELLM

Date when decision was rendered: 17.6.2008

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 1258; R2007/206

Reference to source

KKO 2008:68.

Decisions of the Supreme Court 2008 I January-June

Avgöranden av Högsta domstolen 2008 I januari-juni

Korkeimman oikeuden ratkaisuja 2008 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2008

Pages: pp. 470-478

Subject

fair trial, right to examine witnesses, witnesses,
rättvis rättegång, rätt att förhöra vittnen, vittnen,
oikeudenmukainen oikeudenkäynti, oikeus kuulustella todistajia, todistajat,

Relevant legal provisions

chapter 17, section 2-1 of the Code of Judicial Procedure

= rättegångsbalken 17 kapitel 2 § 1 mom.

= oikeudenkäymiskaari 17 luku 2 § 1 mom.

ECHR-6-3-d; CCPR-14-3-e

Abstract

The court of first instance had convicted X for sexual abuse of his five-year-old daughter.The court of appeal agreed with the lower court.The conviction was mainly based on the reports and testimony of a psychologist who had interviewed the child three times.During the first two interviews, issues had come up which gave cause to suspect sexual abuse.These interviews were not recorded on audio or video tape.The third interview, which was recorded on video tape, took place after the pre-trial investigation had been initiated.

The Supreme Court noted that although hearsay evidence was not in conflict with Finnish legislation, it was problematic considering the rights of the defendant.The Court referred to Article 14-3-e of the CCPR, Article 6-3-d of the ECHR and the decisions of the European Court of Human Rights in the cases of Unterpertinger v.Austria (24 November 1986), Delta v.France (19 December 1990) and Rachdad v.France (13 November 2003).It also cited the case of F and M v.Finland (17 July 2007), where the European Court of Human Rights had ruled in a sexual abuse case that a child complainant should have been regarded as a "witness", because the child's statements, given to a psychologist, had been used as evidence against the defendant, although the child had not been heard during pre-trial investigation or in court.The Supreme Court held that the requirements concerning presentation of evidence, as set in the quoted human rights provisions and case law, must be taken into account when assessing the significance of hearsay evidence in a criminal case.In this case, the credibility of the child's statements would have to be assessed on the basis of the psychologist's testimony only.In the third, videotaped interview the child had also changed her account as compared to the two previous interviews.The significance of the third interview could not be assessed reliably, because its contents could not be compared with the original contents of the two previous interviews.Considering also that X was not present during the interviews and that he had not at any stage of the process been afforded an opportunity to put questions to the child, the Supreme Court concluded that, under the circumstances, a judgment could not be based solely on the psychologist's account and interpretation of the contents of the interviews with the child.Because other evidence supporting the sexual abuse charge was weak, the Supreme Court dismissed the charge as unsubstantiated.

The decision was made by a vote.Two dissenting justices found an oral hearing should have been held before the Supreme Court.One of the two dissenting justices also found that the fact that X had not had the opportunity to put questions to the child could in this case not form the grounds for dismissing the charges, because X had used his opportunity to give his views on the value of the videotaped interview as evidence.Moreover, on the basis of the video recording the lower courts had been able to assess the statements and behaviour of the child.

25.3.2010 / 25.3.2010 / RHANSKI

Date when decision was rendered: 28.2.2019

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. R2017/760; 336

Reference to source

KKO 2019:17.

Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta domstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

domestic violence, respect for family life, respect for private life, witnesses,
familjevåld, respekt för familjeliv, respekt för privatliv, vittnen,
perheväkivalta, perhe-elämän kunnioittaminen, yksityielämän kunnioittaminen, todistajat,

Relevant legal provisions

Chapter 17, sections 17 and 18-2 of the Code of Judicial Procedure; section 10 of the Constitution Act

= rättegångsbalken 17 kapitel 17 § och 18 § 2 mom.; grundlagen 10 §

= oikeudenkäymiskaari 17 luku 17 § ja 18 § 2 mom.; perustuslaki 10 §.

ECHR-8; Convention on preventing and combating violence against women and domestic violence

Abstract

A had been sentenced to imprisonment for two assaults on his partner B.B had told about the assaults to the police at the scene of the incidents and during the pre-trial investigation.When the proceedings at the court of first instance started, the couple no longer lived together.In the hearing before the court of first instance B told she did not wish to testify against A because she was his former partner and they had two children together.According to the Code of Judicial Procedure, the spouse, former spouse or present partner of a party or a person who is in a corresponding close relationship to a party that is comparable to cohabitation, may refuse to testify.The court may, in a criminal case, decide that an injured party being heard as witness and who does not have any claims does not have the right of confidentiality, if there is cause to suspect that he or she had not personally decided on the right to exercise his or her right of confidentiality.The court of first instance held that as an ex-partner B had no right to refuse to testify.The court of appeal found that B still had a close relationship to A and could thus refuse to testify.However, there was cause to suspect that B had not voluntarily waived her right to testify.Because B refused to testify, both courts decided to take into consideration her statements in the pre-trial investigation and heard as witness the police officer who had talked to B at the scene of the incidents.

Also the Supreme Court found that B had a legal right to refuse to testify against A.Although the couple no longer lived together, B had a close relationship to A, as his ex-partner and because of their two children.Also, the couple had separated only two months before the court proceedings had started.The court noted that the right to refuse to testify protects the confidentiality between persons in a close relationship as well as the right to respect for private and family life as provided for in the Constitution Act and the ECHR.However, domestic violence is not a private issue and the state has a duty to protect victims of domestic violence.This is based on Finland's obligations under the Council of Europe Convention on preventing and combating violence against women and domestic violence.The court may decide that an injured party being heard as witness does not have the right of confidentiality, if there is cause to suspect that he or she had not personally decided to relinquish his or her right to testify.In such a case, the 'cause to suspect' threshod is low.It can be difficult to show that a victim has been subjected to pressure or intimidation before making the decision not to testify against the defendant.Nevertheless, the court must seek to establish the facts by hearing the victim.In this case, the defendant A had not denied that he had also previously used violence against B.In the Supreme Court's view, this alone gives sufficient cause to suspect that B had not personally and voluntarily decided not to exercise her right to testify.Also, B had not presented any reasons for her refusal when specifically questioned by the court.The Supreme Court concluded that the court of appeal could decide that B did not have the right of confidentiality and could thus take into consideration B's statements in the pre-trial investigation and could hear as witness the police officer who had been present at the scene of the incidents.The Supreme Court upheld the decision of the appeal court.

4.4.2019 / 4.4.2019 / RHANSKI