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