2006 Criminal Procedure Finland

Ari-Matti Nuutila: The Criminal Procedure System in Finland. In Alexander Trunk & Ari-Matti Nuutila & Vytautas Nekrošius (Hrsg.): Recht im Ostseeraum. Berlin 2006, pp. 139–167.


THE CRIMINAL PROCEDURE SYSTEM IN FINLAND


Ari-Matti Nuutila


I. SOURCES


1. General Observations


Finland has been an independent and sovereign State since 1917. Before that, Finland first belonged to the Kingdom of Sweden for more than 650 years (1150-1809). A natural consequence of this was a very strong cultural and legal association with Sweden. From 1809 until the achievement of full political independence in 1917, Finland had an autonomous position as a Grand Duchy within the Czarist Russia. This period, lasting more than 100 years, was the first real step towards independence. Finland developed its own Parliament, currency and its own legal institutions. The old Swedish laws, even the Constitution, were followed in the Grand Duchy of Finland, which was a rare, even an exceptional situation seen from the international point of view.

As a consequence, Finnish legal culture has during its history been deeply and profoundly Swedish colored. The most important influences naturally came from the western mother country, but also Danish, Norwegian and German influences are exceptionally clear in the Finnish legal system even today.

The law codification for Sweden (and Finland), the Law of 1734, was the oldest in Europe. Among other laws, the Procedural Code still in force in Finland stems from 1734, although all the major articles have been amended several times thereafter. The reform work took close to 50 years and was based on very careful and detailed discussions among the leading intellectuals and judges of the country. Despite strong national traditions, the codification was not solely Swedish in origin, because many Catholic and especially Roman law traces had had a strong influence in Swedish courts and University research. Thus, it is well founded to say that the Procedural Code of 1734 was essentially European law.

Although the codification of 1734 was in force and followed by the Finnish courts after 1809 during the period of autonomy under the Russian Czar, intensive law reforms began towards the end of the 19th century. This was possible because the Czar permitted the calling of a meeting of the Finnish Parliament in 1863. This event opened up a real independent possibility for independent legislative work to take place in Finland. For these reasons, there have been practically no traces of Russian or other eastern legal culture in either the legal system or the legal thinking in Finland. For example, the Finnish Penal Code from 1889 followed its western models and not the Russian one.

During the first half of the 20th century, the legal life in independent Finland was more stable and more conservative than in other Nordic countries. Nevertheless, the societal change and economic growth that took place in Finland after the World War II were amongst the most rapid in the world. After 1945, agrarian Finland became highly industrialized in less than 30 years. Finally, in the period since the 1970s, Finland developed into a Scandinavian Welfare State together with Sweden, Denmark and Norway. The Finnish membership in the EU in 1995 did not require radical changes in Finland as far as procedural legislation is concerned.


2. The Constitution


As of 1 March 2000, Finland has a new Constitution (Act 731/1999)[1] which replaced the four previous acts with constitutional status, dating back to 1919-1928. Although the new Constitution builds on the Nordic constitutional tradition, the new Constitution also includes new elements that allow one to speak of a modern constitutional document of a European parliamentary democracy.

The most important partial amendment made to the old Constitution Act was the fundamental rights reform in 1995 (Act 969/1995). This reform was incorporated to the new Constitution practically unchanged. The constitutional protection of fundamental rights is based on a wide understanding of rights that deserve protection including, besides traditional civil and political rights, also economic, social, cultural and environmental rights. Chapter II of the Constitution includes, among others, the following rights:

            Section 7 – The right to life, personal liberty and integrity;

            Section 8 – The principle of legality in criminal matters, including the prohibition against retroactive criminal laws;

            Section 9 – Freedom of movement and non-refoulement;[2]

            Section 10 – The right to privacy, honor, home, data protection and confidentiality of communication; and

            Section 21 – The right to a fair trial and to good public administration.

Another distinctive feature of the fundamental rights in Chapter II is the strong role of international human rights treaties within the framework of the domestic Constitution. International instruments did not only serve as a source of inspiration in formulating corresponding constitutional provisions but the Constitution also includes formal references to internationally protected human rights. According to Section 22 of the Constitution, it is a constitutional obligation of all public authorities – including the judiciary – to guarantee the observance of constitutional rights and internationally recognized human rights.

The strong emphasis put on the protection of human rights in the Constitution is visible also in Section 1 of the Constitution which includes a clause on the function of the Constitution to guarantee the inviolability of human dignity and the freedom and rights of the individual, and to promote justice in the society. Section 1 also affirms the internationalist nature of modern constitutionalism: “Finland participates in international cooperation for the protection of peace and human rights and for the development of society”.

One of the traditional distinctive features of the Finnish Constitution is a developed system of preview over the constitutionality of new legislation. Several actors participate in this preview. The most important player in the system is the Constitutional Law Committee of the Parliament. This body obtains legal advice by constitutional law experts, typically university professors. The work of the Committee results in a body of “case law” on the interpretation of, e. g., the requirements of a fair trial according to the Constitution, the European Convention in Human Rights (ECHR), the International Covenant on Civil and Political Rights CCPR and other human rights treaties.

There are, however, certain weak points in the preview system of the Constitutional Committee. The control of the constitutionality of new laws is abstract and preventive in nature. The Committee’s opportunities to identify possible constitutional problems in advance are limited, as quite different problems might emerge in the application of law in concrete cases.

Finland does not have a Constitutional Court, as all public authorities have to guarantee the constitutional rights (Section 22 of the Constitution). Instead, any court has an obligation not to apply a law if that would lead to a manifest conflict with the Constitution (Section 106 of the Constitution). Much more common is that the fundamental and human rights are taken into account in the interpretation of all laws. In this respect the increased interest in international human rights treaties has, since the late 1980s, paved the way for an active approach by the courts.


3. Human Rights Instruments


Unlike the other Nordic countries, Finland formally incorporates all major human rights treaties into its domestic law (Section 95 of the Constitution). All courts are under a constitutional obligation to guarantee the observance of international human rights.

Finland has, usually without reservation, ratified almost all of the major universal and European human rights treaties and has subjected itself to existing complaint procedures before international courts or treaty bodies. Within the United Nations, Finland has been a proponent of strengthened monitoring mechanisms for human rights treaties and international tribunals bound by human rights, such as the International Criminal Court.

This development has been very rapid. Finnish courts have, starting as late as the 1980s, invoked international human rights treaties in their decisions. After the ratification of the ECHR and Protocols No. 1-8 in 1990, this instrument has become the most often cited human rights treaty. Also CCPR, which was ratified in 1976, has been applied in the Finnish courts prior to domestic procedural law.

For the Supreme Court, criminal procedure and application of Article 6 of the ECHR and Article 14 of the CCPR constitute the largest group of human rights cases. In one of the early cases in this category in the 1990s, the Supreme Court clearly stated that these two treaties are “part of the law of the land”, and hence recognized the direct effect of the Conventions, and concomitantly, their priority over domestic law. Through the direct application of the right to a fair trial (Article 6) and also the right to personal freedom (Article 5), the ECHR has softened some of the old fashioned features of the Finnish procedural system. In some cases the Supreme Court has relied on international human rights treaties, even deviating from the wording of an Act.

The acceptance of the right of individual application has given rise to dozens of cases, in which the European Court of Human Rights (ECtHR) has had the opportunity to rule on the compatibility of aspects of Finnish procedural law with the ECHR. Usually the cases dealing with criminal procedure have, however, been decided in ECtHR in favor of the Finnish Government.


4. Legislation


The principal source of Finnish legal procedure is the Procedural Code of 1734. The same statute was also in use in Sweden until 1948. Even in Finland only a few significant original provisions remain, because in recent years the legal procedure has been vigorously updated with partial amendments.

The Procedural Code originally regulated the procedure in courts as a whole without differentiating between matters of civil and criminal law. With the revision of the district court system becoming effective in 1993, some purely civil procedural Chapters were added to the Procedural Code. Correspondingly, with the reform of criminal procedure, a new Criminal Procedure Act was enacted and became effective in 1997. However, the Procedural Code still contains provisions applicable to criminal law cases, e. g. concerning the taking of evidence and the remedies. Several other statutes supplement the rules of the Procedural Code and the Criminal Procedure Act.

The statutes regulating criminal procedure include especially the following.[3]

Investigation

            Police Act (Act 493/1995)

            Criminal Investigations Act (Act 449/1987)

            Coercive Measures Act (Act 450/1987)

            Detention Act (Act 615/1974)

            Act on Preventing and Clearing Money Laundering (Act 68/1998)

            Act on Compensation from State Funds for the Arrest or Detention of an Innocent Person (Act 422/1974)

Parties to Criminal Proceedings

            Act on Public Prosecutors (Act 199/1997)

            Advocates Act (Act 496/1958)

Summary Proceedings in Criminal Matters

            Act on Petty Fine Procedure (Act 66/1983)

            Act on Summary Penal Proceedings (Act 692/1993)

The Court Proceedings

            Procedural Code (4/1734)

            Criminal Procedure Act (Act 689/1997)

            Act on the Publicity of Court Proceedings (Act 945/1984)

            Military Court Procedure Act (Act 326/1983)[4]

            Act on International Legal Assistance in Criminal Matters (Act 4/1994)

            Act on Compensation for Crime Damage (Act 935/1973)

Cost-Free Legal Proceedings

            Legal Aid Act (Act 257/2002)


5. Case-law and Legal Doctrine


Case-law is not formally a source of law in Finland. However, since several of the precedents of the Supreme Court are concerned with procedural law, they have in practice a strong guiding influence on lower courts. Generally a legal interpretation included in a Supreme Court precedent is followed in future legal decision making.

Scholarly writing is not formally a source of law in Finland. However, views expressed in legal textbooks can become customary law if they are followed in the practice of the courts. This has been especially the case in the last few years because of the rapid changes in the legislation and lack of precedents concerning the new laws. There is a lot of legal research on the field of Finnish procedural law today – especially because of the new legislation. Usually the Finnish procedural doctrine is based on the Nordic legal literature in general, as the procedural models are extremely close to each other. Works written in languages other than Finnish and Swedish remain few, although doctoral dissertations always contain a summary in English or German.


II. STRUCTURE OF THE CRIMINAL JUSTICE SYSTEM


1. Investigating Authorities


In the beginning of 1989, new statutes on the pre-trial investigation and coercive measures in criminal matters became effective in Finland (see ch. I. 4.). The reform was necessary in light of the principle of legality, because prior to the enactment of the law, there were primarily government rules on the pre-trial investigation of crimes only.

Conducting a pre-trial investigation is the duty of the police, unless otherwise regulated. The exceptions concern customs officials, the frontier guard and the military police, which have some independent authority for investigation and coercive measures. Also, taxation officials and officials controlling banking and finances have some restricted authority to begin investigation, but they do not usually have the right to use coercive measures. Banking and finance officials are under an obligation to report the suspected crimes to police as soon as they are detected.

In a pre-trial investigation the police endeavor to establish whether or not an offence has actually been committed, under what circumstances it occurred and the identity of the parties concerned. The pre-trial investigation also seeks to establish the extent of the injury or damage caused by the offence, the gain collected by the offender and the demands of the injured party. In Finnish criminal procedure, the civil claims of the complainant are usually decided in the trial (the principle of adhesion).

Anyone can report an offence to the police. An offence can be reported at any police station. The police station receiving the report of the offence will then forward it as necessary. The police must commence a pre-trial investigation when there is “reason to suspect” that a crime has been committed.

However, not all reports of offences lead to pre-trial investigation. The most important exception – which is based on a long Nordic tradition – are the so called “complainant offences”. Most offences are subject to public prosecution, i.e. the police can investigate them, and a prosecutor can bring charges even if the injured party does not demand punishment. Complainant offences, e. g. defamation and breach of domestic peace, however, can only be investigated by the police in cases where the injured party has notified the police or a prosecutor that he/she demands punishment for the offender. If the injured party withdraws his/her demand for punishment during the pre-trial investigation, the police will discontinue the investigation.

Provisions on offences whose prosecution rests with the injured party are laid down in the Penal Code. Generally, complainant offences are petty offences where there is little public interest in prosecution, and only the victim is in a position to know if his/her interests have been violated (e. g., defamation and trespassing). More serious offences are included in their group, when the complainant might suffer considerable psychological harm from prosecution, e .g., some sexual and violent offences. In other words, the grounds are partly procedural-economic and partly the respect of an individual’s autonomy.

For certain complainant offences, e. g. domestic violence, the prosecutor is entitled to prefer charges even if the injured party does not demand punishment, if this is judged to be in the public interest. There are also situations in which the injured party requires proof that the offence took place in order to pursue some further action or receive some particular benefit. A pre-trial investigation is thus undertaken even though the injured party is not demanding punishment for the guilty party.

The police are, as a rule, required to notify the District Prosecutor for each criminal case that they investigate. Such notification does not, however, need to be given in straightforward cases, which are typically cases of theft, damage to property, drunken driving, assault and endangering road traffic. So far the public prosecutors have not normally led the investigations or otherwise been active in the investigation. In the future, the role of the prosecutor in police investigation is to be strengthened.

a. Units of the police

Pre-trial investigation of an offence is normally the responsibility of the local police within whose jurisdiction the reported offence took place. Local policing is organized in local districts, each district having its own district police department. There are 90 district police departments in Finland with some 280 service points. Not all district police departments are open around the clock, but alarm services are always available.

The police departments of Provincial State Offices act as the provincial police commands. They plan, direct and develop police operations within their province. The provincial police commands are also in charge of cooperation between the local police, the National Bureau of Investigation and the National Traffic Police within their province, but they do not engage in concrete pre-trial investigation.

The national units of the police are the National Bureau of Investigation, the National Traffic Police and the Security Police. They operate directly under the Police Department of the Ministry of the Interior. The function of the National Bureau of Investigation (NBI) is to prevent and investigate international, organized, professional, financial and other serious crime and to develop crime prevention and investigation methods. Especially in the fields of organized crime, economic crime, drug offences and international criminality the NBI has primary responsibility. The function of the National Traffic Police is to carry out traffic control and surveillance, and investigate crimes that endanger public order and safety. The function of the Security Police is to prevent schemes and crimes that may endanger the established governmental and social order or the internal and external security of the State and to investigate such crimes.

The Ministry of the Interior's Police Department acts as the Supreme Police Command of Finland. It manages and develops police activities, makes decisions on national strategies and revises regulations within the authority of the police.

The exercise of police powers is subject to close supervision, not only by senior police officials, but also by the Ombudsman of Parliament and the Chancellor of Justice. They can reprimand a police officer for unlawful conduct or neglect of duties, or bring criminal charges for illegal actions.

Furthermore, if a police officer him/herself is suspected of a crime, the pre-trial investigation is always led by a specifically nominated public prosecutor and the investigation is made by police officers outside the suspect’s own police district.

The principles governing the pre-trial investigation are discussed in ch. V. 1. a.

b. International cooperation

The Supreme Police Command draws up guidelines for international police cooperation and prepares matters involving police cooperation between EU Member States at the national level. Their representatives take part in the activities of Europol and Schengen cooperation, working groups of the Council of Ministers, and working groups and committees of the Commission. Within the framework of the Council of Europe, the Supreme Police Command takes part in the work of the Committee on Prevention of Torture, Group of States Established against Corruption and Human Rights Steering Committee.

Finland has been involved in international civilian police operations since 1994. The Supreme Police Command is responsible for recruiting and training civilian police officers. The Supreme Police Command is also involved in preparing and implementing the UN conventions in Finland and it takes part in the work of the UN permanent commissions (Commission on Human Rights, Commission against Torture and Commission on Narcotic Drugs).

Police cooperation between the Nordic countries has long traditions. The national police commissioners of the Nordic countries meet once a year. Also the national police commissioners of Finland and the Baltic States and the highest law enforcement authorities of Finland and Russia cooperate on a regular basis. In addition to the meetings between the national police commissioners, regular meetings are arranged between the police, customs and frontier guard authorities of the neighboring regions. Cooperation between the Finnish police authorities and those of the neighboring regions is based on crime prevention agreements. The Finnish police also have their own contact persons in the neighboring regions.


2. Prosecuting Authorities


The Finnish prosecution service[5] has some 540 personnel, 330 of which are prosecutors. The office of the public prosecutor was reorganized with the wider reform of the local administration reform in 1996. The reform established in the entire country 72 administrative district offices in which prosecutors, police officials and enforcement officials operate as independent units.

Nearly all criminal matters (some 71,000 cases annually) are dealt with by the local prosecution units. Prosecutorial duties are performed by district prosecutors. Some prosecution units also have junior prosecutors, who are in training for prosecutorial duties.

The reform of the highest level of the Finnish prosecution service became effective in 1997. According to Section 104 of the Constitution, the Prosecutor General is the supreme prosecutor in Finland and heads the prosecution service. The Prosecutor General is constitutionally independent in his/her task in the same way as the courts are. Ministry of Justice only manages the financial resources of the prosecution service.

The Prosecutor General has numerous statutory duties. These include the direction and development of the prosecution service and the supervision of the subordinate prosecutors, the appointment of the prosecutors, the issuing of general instructions and guidelines for the prosecutors, the taking over of a case of a subordinate prosecutor or the assigning to a subordinate prosecutor of a case where the Prosecutor General has ordered a charge to be brought, and the representation of the prosecutors in the Supreme Court.

The Office of the Prosecutor General also has its own cases, where its 13 State Prosecutors prosecute the cases in any of the courts in Finland. Usually these are cases with wider significance to the community – a few dozen every year. The State Prosecutors also handle those cases that are heard by the Court of Appeal as the first instance. These include, e. g., charges against certain high-ranking public officials for offences in office.

The Office of the Prosecutor General also has tasks in international criminal procedure. For example, it largely takes care of international legal assistance in criminal matters, decides on the proper prosecuting authority in cases of cross-border crimes, and appoints the Finnish prosecutor to Eurojust.

All of the above are general prosecutors, as they are competent to bring charges for all criminal offences committed within their jurisdiction, with some rare exceptions. There are also special prosecutors, such as the Parliamentary Ombudsman and the Chancellor of Justice, who are competent to bring charges only in given, clearly defined special cases (see ch. II. 3. d.). Public prosecutor in turn, refers to the public service function of the prosecutor. Unlike the other parties to a criminal case, the prosecutor does not act in his/her own interest, but instead on the behalf of the society, looking after its interests.


3. The Judiciary


a. District courts

The lower court system was reformed in Finland in 1993. The model was the Swedish lower court system that has been in operation since 1971. In virtually all criminal cases, the District Court functions as the court of first instance. In 2002 there are a total of 66 district courts in Finland. These vary greatly in size, both in terms of population and of land area. The same courts decide both civil and criminal cases. A District Court is headed by the Chief Judge and the other judges have the title District Judge. In simple cases decisions can be made by notaries training at the court.

In a criminal case the composition of the District Court varies in accordance with the offence in question. Cases of petty infractions are heard by only one judge. The statutory punishment for the offence in these cases may not exceed 18 months. Should the case be dealt with in this way, the judge can impose at most a fine. Pre-trial issues, such as pre-trial detention and other serious coercive measures, are decided by one judge alone. The normal composition of a District Court is one legally trained judge and three lay judges. The composition can be enlarged with a second judge and a fourth lay member.

Separate military courts were abolished in 1983, and today military cases are also heard in certain district courts. The military cases are, however, heard by one legally trained judge and two military judges, and there is no lay representation. In other respects, ordinary criminal procedure is followed.

b. Courts of appeal

District Court judgments are subject to appeal in a Court of Appeal. The courts of appeal also hear cases of high treason and treason in the first instance, as well as any charges against district court judges and certain high-ranking civil servants’ alleged offences while in office. There are six courts of appeal in Finland.

The head of a Court of Appeal is called Chief Justice. The other members of the Court of Appeal are called Senior Justices or Justices. Legally trained Senior Assistant Justices or Assistant Justices present the cases for decision. The law clerks and the members see to the preparation and the hearing of cases in a Court of Appeal.

Normally, cases are decided in a panel of three members. In cases where important issues of principle are at hand, the court may make a decision by an enlarged panel of seven members, or by an en-banc panel of all members of the Court of Appeal. Unlike the district courts, the courts of appeal do not have lay judges. In military proceedings, however, there are two military judges who participate in the decision in addition to the members of the Court of Appeal.

c. Supreme Court

The Supreme Court is the court of final instance in the country. Its most important task is to hand down precedents, thus giving directions to the lower courts on the application of the law. The proceedings before the Court have two stages: decision on admissibility and decision on the merits of the case. The admissibility of the case, i. e. whether the court will hear the appeal, shall be decided on by two members of the court upon presentation by a law clerk. In case an application for leave to appeal is rejected, the case will be closed and the judgment of the Court of Appeal will remain final.

Should leave to appeal be granted, the merits of the case will be decided by five members of the Court assisted by a law clerk. If a question of law to be resolved involves significant principles, or if the Supreme Court wishes to depart from an earlier precedent, the case shall be decided on by an enlarged chamber (11 members) or by a full court (all the members).

The Supreme Court consists of a President and at least 15 Justices. At present the Court consists of 18 members. There is no lay representation.

d. High Court of Impeachment

The High Court of Impeachment, which has convened only a few times, is the forum for criminal charges against a Minister, the Chancellor of Justice or a member of the Supreme Court or Supreme Administrative Court for an offence in office. In this case, the prosecution is seen to by the Prosecutor General, the Chancellor of Justice or the Parliamentary Ombudsman.

e. The role of lay judges

It remains important that lay members participate in the administration of justice. Lay judges serve to spread knowledge of the principles governing the administration of justice and the procedures applied in the courts. Their participation in also supposed to guarantee that the courts take into account the opinions of the people.

Only the district courts have lay judges. They participate in the hearings of the District Court on a part-time basis. In the main, they are present for criminal hearings. The municipal councils appoint the lay judges for terms of four years. The objective is that each lay judge participates in a hearing approximately once a month. The goal is to have a representative sample of the inhabitants of the jurisdiction of the Court.[6]

f. Independence and impartiality

The Finnish Constitution (Section 21) guarantees to everyone the right to have his/her case heard appropriately and without undue delay by an independent and impartial court or other public authority. Everyone also has the right to have a decision affecting his/her rights and duties reviewed by a court or other judicial organ. The same section of the Constitution also contains the basic provision on good government. The main principles guaranteeing good government are the open to public of proceedings, the right to be heard, the right to receive a decision on explicitly stated grounds and the right to appeal against the decision.

The independence of the judiciary is constitutionally guaranteed (Section 3). By independence is meant both the independence of the decision-making and the life tenure of judges. A judge cannot be dismissed except by court order, e. g. if he/she has been convicted for a serious offence. The compulsory retirement age for judges is 67. The courts are permanent and they are under the sole obligation of applying the law in force, without further restrictions.

The President of the Republic appoints all the judges. Prior to this, the appointment of a judge in a District Court or a Court of Appeal has been prepared by the Judge Appointment Board.


III. GENERAL PRINCIPLES CONCERNING CRIMINAL PROCEDURE


1. General Principles


a. The principle of the right to a fair trial

Under the influence of the Section 21 of the Constitution and the Article 6 of the ECHR, the principle of the right to a fair trial is fully accepted in Finland. Both rules have direct effect in Finnish court proceedings, and the jurisprudence from the Finnish Supreme Court and the ECtHR is an important source of the fair trial rights in criminal proceedings, if the domestic legislation gives room for several interpretations.

The Constitution guarantees a fair trial for everybody as laid down by law. Also, the victim or the injured party has the right to a fair trial, which means that the Finnish Constitution goes in some respects even further than the ECHR (which only regulates the rights of the defendant). In Finland fair trial rights extend beyond court proceedings and cover the proceedings as a whole, from the pre-trial investigation to the enforcement of punishment.

b. The principle of the search for the material truth

The purpose of criminal proceedings is to find the material truth. This is the main aim of the pre-trial investigation and criminal proceedings in a court. On the other hand, the suspect or the accused never has an obligation to contribute to this purpose. He/she has no obligation to give a statement in his/her matter – he/she even has no obligation to give true statements.

In the pre-trial investigation the police have an obligation to take into account facts and evidence both against and in favor of the accused. Everyone has the duty of submitting him/herself to questioning in the pre-trial investigation, with the exception of some restrictions concerning acting as a witness (see ch. V. 1. a.).

The prosecutor is bound by the principle of objectivity and must act in an impartial and unprejudiced manner.

c. Favor defensionis

The principle of favor defensionis has an essential importance in criminal proceedings. Important components of this principle are the presumption of innocence and the in dubio pro reo rule (see ch. III. 3. c.), but the principle covers also interpretation of law. In case of any reasonable doubt – whether it concerns the evidence presented or questions of law – the accused must be acquitted. There is a saying, according to which “it is better that ten guilty ones go free than one innocent one is convicted”.


2. Principles Governing the Opening of Criminal Proceedings


a. The “ex officio” principle

Legal protection is in given criminal proceedings regardless of the wishes of the parties. The accused cannot determine whether he/she wishes legal protection. The same applies also to the victim – the charges are not raised in the name of the victim but in the name of public interest.

There are, however, important exceptions to the ex officio principle. Many offences are complainant offences (see ch. II. 1.), which can be prosecuted only if there is a formal complaint of the victim. Even if the offence is not a complainant offence, the reconciliation between the offender and the victim has major importance for waiving of measures and measuring of punishment.

b. The principles of “legality” and “opportunity”

The police may waive measures or simply caution the offender if the offence as a whole is deemed to be manifestly petty, and the offence would be punishable only by a fine. If the case involves a complainant, a further condition for waiving of measures is that he/she does not present any claims. Otherwise, once the investigation has been concluded, the investigation minutes have to be turned over to the prosecutor. The police are clearly bound by the principle of legality.

The public prosecutor generally has the duty of compulsory prosecution, or absolute prosecution (the principle of legality). He/she is obliged to bring charges whenever the evidence is sufficient and the act in question fulfils the conditions of criminal liability. However, in the 1990s the public prosecutor’s right to waive charges has been extended to a great extent (the principle of opportunity). Nowadays the principle of opportunity vests a large amount of discretion in the prosecutor to drop charges even against the will of the complainant.


3. Principles Governing the Taking of Evidence


a. The principle that the means of evidence are free

The law of evidence is traditionally not restricted in criminal proceedings. There are no special rules on the way evidence must be collected, nor on the items that may qualify as admissible evidence in criminal proceedings. In penal matters, the facts may be proven by all possible means, and there exists, e. g., no “hearsay evidence” rule in Finland. The law does not give an exhaustive list on available means of evidence. Instead, the court is simply required to weigh everything that has been revealed in the case in order to “decide what is to be deemed the truth in the matter” beyond reasonable doubt.

Although there is no exclusionary rule doctrine that would require the court to disregard certain types of evidence in Finland, some traces on that kind of thinking can be seen. The pre-trial minutes cannot be used as evidence, and all evidence must be presented in court. The results of telecommunications interception and telecommunications monitoring (see ch. IV. 4. a.) can be used as evidence only in connection with the investigation for which the surveillance was originally granted by the court. Furthermore, evidence obtained in violation of the fair trial rights (e. g. evidence obtained in violation of the privilege against self-incrimination) is not allowed. The Supreme Court has lately ruled evidence, which has been obtained illegally, inadmissible in court.

b. The principle of the free evaluation of evidence

There are no rules that dictate to the court about how it must assess the evidence. This is corollary of the principle of the search for the material truth (see ch. III. 1. b.); the court must look for the material truth and is bound by nothing else than its own evaluation of the evidence.

On the other hand, the courts have a clear case-law based obligation to give reasons for the result in the judgment. The court must indicate on what evidence the judgment is based on, both in cases of an acquittal and in cases of a conviction. In practice this has lead to rather comprehensive judgments – in normal cases the evaluation of evidence takes at least 5-10 pages of the judgment.

It can be noted that a confession is not sufficient grounds for a verdict in the criminal proceedings, although the accused’s own statement may have substantial weight in the evaluation of evidence (see ch. VI. 1. a.). Nevertheless, the accused has no duty to adhere to the truth, unlike the other parties, nor is he/she heard under oath.

c. The burden of proof and the presumption of innocence

Everyone charged with an offence shall be presumed innocent until proven guilty according to law. No one may be convicted unless the court is convinced on the basis of the evidence provided by the prosecutor that he/she is guilty beyond reasonable doubt (in dubio pro reo).

A conviction must always be based on conclusive proof, while a charge can be brought on the basis of a prima facie case. Accordingly, there is a certain proportion of charges that will be dismissed. Annually, some 5-6 % of the cases end in this manner. In this event, the defendant receives compensation for his/her legal costs and for the possible deprivation of liberty (arrest and detention time) from State funds both for “unlawful” detentions and for lawful detentions followed by the acquittal of the accused.

d. The privilege against self incrimination

See chapter VI. 1. a.


4. Principles Governing the Trial


a. The principle of “accusatorial” procedure

In an accusatorial system, the tasks of prosecuting and determining a case on the merits are separated, while in the inquisitorial system the judge also investigates the facts. In earlier Finnish legal literature it was customary to maintain that the procedure in petty offences was accusatorial, but “inquisitorial in an accusatorial form” with more serious crimes.

Today, the inquisitorial features have disappeared from the criminal procedure when serious crimes are in question. In the new criminal procedure the accusatorial nature of the procedure has been further emphasized. The prosecutor is responsible to prove the defendant’s guilt beyond reasonable doubt. The court remains passive through the whole proceedings, although the judge may clarify ambiguities and “fill in gaps” in the trial material by asking questions to the parties. The court may not summon a witness on its own initiative to a case of a complainant offence, and very rarely does that even in other cases.

b. Audiatur et altera pars

The contradictory principle (audiatur et altera pars) is in Finland a true legal maxim, affirmed in the Constitution. It prohibits the court from passing judgment before the opposite side has had the opportunity to give his/her rejoinder in the matter.

c. The principle of immediate and concentrated procedure

The purpose of the principles of orality, immediacy and concentration is to ensure the best possible examination of the evidence. The court cannot refuse to hear a witness who has already been heard during police investigation even if there would be clear evidence of the guilt of the accused.

In most criminal cases, the main hearing takes a few hours or at most one day. The main hearing of an extensive or complex case may take several days or even weeks. The membership of the court may not change during the proceedings.

Since 2004, mutual assistance in criminal matters between the Member States of the EU provides wide opportunities to use audio and video-link conferencing in presentation of witness evidence both in international and domestic criminal proceedings. The Convention has already been implemented by Finnish legislation.

d. The principle of orality

Criminal proceedings are oral. According to the main rule, the parties may not read out or present to the court a prewritten trial document nor otherwise present their case in writing. There are only some written documents allowed in the trial, these include expert statements (see ch. VI. 1. c.). Also other kinds of written documents are allowed as evidence, provided that they are not given in order to be used as evidence in criminal proceedings (see ch. VI. 2. b.).

There are, however, important exceptions to the principle in the course of proceedings in a Court of Appeal and the Supreme Court.

e. The principle of publicity

All criminal proceedings are usually public in Finland, including the pre-trial proceedings. If a person under 15 years of age is heard in the proceedings, or if a secret document is presented in the proceedings, the hearing can be closed from the public. The court may also exclude the public partly or totally from the hearing, if the charges concern a sexual offence, defamation or another offence dealing with sensitive issues of privacy, or if the accused is under 18 years of age.

The proceeding must be held in camera if publicity would endanger the State’s security or harm the relationship of Finland to a foreign State or the international community. These cases are extremely rare and deal with espionage, treason and high treason. The judgment in these cases must be declared in public.


IV. COERCIVE MEASURES


Various coercive measures can Be used during the investigation, the trial and the enforcement of the sentence. For many coercive measures, the decision on their use is made by the police. These measures include apprehension, arrest, seizure, and search. Serious coercive measures that require a decision by a court are for example detention, restraint on alienation or seizure for escrow, and telecommunications monitoring.

By law, coercive measures must exert no more than the minimum of harm, so that in a pre-trial investigation nobody’s rights may be interfered with unduly. Coercive measures may be used only if this is justifiable in view of the severity of the offence under investigation, the importance of solving the case, the infringement of the rights of the suspect or others that the use of coercive measures would entail, or any other relevant factors.


1. Arrest and Detention


a. Apprehension

The most important coercive measures in criminal procedure are apprehension, arrest and detention in custody. A policeman may apprehend a person for whom an arrest or remand warrant has been issued, or if the conditions for an arrest are present and the measure cannot wait. Such a measure must be reported to a commanding officer or another authority with powers to arrest, who shall decide within 24 hours whether the suspect shall be released or arrested.

According to the rule of “citizen’s arrest” any person has the right to apprehend an offender caught in the act of an offence punishable by imprisonment. The offender must, however, immediately be turned over to the police.

b. Arrest

A decision to arrest must be made by a commanding officer. He/she may arrest a person who is:

            Suspected with probable cause (it is more probable that the suspect is guilty than not guilty) of an offence with a minimum sentence of imprisonment for at least two years (serious crimes such as murder, manslaughter, aggravated rape, aggravated sexual offences against a child, aggravated arson, etc.); or is

            Suspected with probable cause of an offence with a maximum sentence of imprisonment for at least one year, and in addition there is reason to believe that the suspect shall:

Seek to escape or evade justice;

Seek to tamper with the evidence or influence witnesses or other parties to the crime; or

Continue his/her criminal activity; is

            Unknown and refuses to identify him/herself; or is

            Not domiciled in Finland, and it is probable that he/she shall seek to evade justice by leaving Finland.

Even if there is no probable cause to suspect the person, a person may be arrested if the other conditions are fulfilled and the police consider the arrest very important for further investigations. This possibility is used extremely seldom.

No one may be arrested if this would be unreasonable in view of the nature of the case or of the age or other personal circumstances of the suspect. No one under 15 years of age may be arrested, and the arrest of someone under 18 years of age is exceptional. The arrested person may not be held longer in custody than necessary.

c. Prohibition of travel

The suspect can be ordered to “home arrest” or prohibition of travel instead of arrest, if it is considered to be a sufficient coercive measure. The suspect is not allowed to leave the municipal or other area defined in the home arrest order. He/she may also be obliged to be accessible in his/her home or workplace at given times, or to stay at an institution or hospital.

Prohibition of travel is ordered by the police and it lasts until the charges are raised or a maximum period of 60 days. The decision may be brought to a court by the suspect. If a person subjected to a travel ban violates the ban, he/she may be arrested or detained.

d. Detention

If a person is suspected on probable cause of having committed an offence, he/she may be remanded in detention under the same conditions as he/she may be arrested. The decision to detain a suspect is always made by a court on a request of the police or the prosecutor. The request for detention must be presented to the court without delay, and in any case by noon of the third day from the date of apprehension. The court must decide on the matter within four days of the apprehension of the suspect.

Detention on remand can be ordered by a single judge. The decision can be appealed in a normal way. Because of the urgency of detention matters, the district courts operate a system of on-call judges and the application may also be dealt with by a District Court other than that of the place of commission of the offence.

When a suspect is ordered to be detained, the court sets a deadline for the bringing of the charge. Where necessary, this deadline may be extended on the request of the prosecutor. If the deadline for the charge is more than two weeks after the detention order, the District Court shall re-hear the detention matter at least every two weeks to determine whether the prerequisites for detention are still met.

Detention – as well as any other loss of liberty over 24 hours – is deducted from the sentence. If acquitted, the person concerned has a right to compensation. This right is not restricted to “unlawful” detentions, but covers also lawful detentions followed by the acquittal of the accused.


2. Search and Seizure


Searches and seizures are infringements of the constitutional right to privacy (Section 10) and of Article 8 of the ECHR. Unlike restrictions on the right to personal liberty, restrictions on the right to privacy need not always be ordered by a court. The only conditions that must be met are the principle of legality (are based on law), legitimacy (meet the acceptable purposes enumerated in the Constitution and ECHR art. 8(2)) and proportionality (do not go beyond what is necessary in a democratic society). Also the general restrictions apply – e. g. correspondence between the suspect and his/her attorney may not be searched or seized.

A suspect’s home, office, vehicle or premise may be searched in order to find an object to be seized as evidence, seized for escrow (see ch. IV. 5.), to find a person to be arrested or detained, or otherwise to investigate the crime. In order to search someone else’s premises, the crime must have been committed in those premises, the suspect must have been apprehended there or there are otherwise utmost convincing reasons to believe that the search will be successful.

The decision can be made by police, but to ensure legality, the decision may be brought to a court.


3. Examination of Body and Mind


a. Examination of the body

A superficial body search is made in order to investigate what a suspect is carrying in his/her clothes. It can be done by the police without a warrant. Also, person other than a suspect can be searched by the police, but in this case there has to be utmost convincing reasons to believe that the search will be successful.

A more invasive body search covers the search of, e. g., narcotics in the body cavities of the suspect, taking of a blood sample and other investigation of the body of the suspect. Such search requires probable cause to suspect the person of a serious crime. The investigation may not cause distress to the person. Decisions of this kind of examination are made by the police.

It should be noted that the victim may not be compelled to submit to an invasive body search for example in connection with sexual offences. If the victim refuses to cooperate with the police in order to protect her/his sexual integrity, this must be respected.

There are special provisions concerning the breath test in drunken driving cases. A breath test can be administered to any motorist, without him/her being a suspect of drunken driving.

b. Examination of the mind

Mental examination, in order to determine the penal capacity of the offender, can only be ordered by the court during the hearing. Hence, the examination cannot be categorized under coercive measures according to Finnish law. The psychiatric examination is always made in a mental institution and it may not last more than 60 days. The court is not bound by the result of the examination, and it may deem the accused to lack penal capacity even without a mental examination.

An accused can be compelled to undergo a mental examination if the court considers the examination to be well founded and the crime in question is not petty. Evidence is taken before the decision to send the accused to examination; that is, the accused can be sent to the examination only if his/her guilt is already proved. The loss of liberty is deducted from the sentence.


4. Interference with the Right to Privacy


a. Telecommunications interception and telecommunications monitoring

According to the case-law of the ECtHR, telephone surveillance is compatible with Article 8(2) of ECHR, if it is regulated by law and is proportional to the investigative aims. Confidentiality of communication is also protected by Section 10 of the Finnish Constitution. Telecommunications interception and other new technical means became allowed in Finland in 1995 after a long political discussion.

Telecommunications interception means the tapping and recording of telecommunication (e.g. telephone or mobile telephone call or email message) of a suspect so as to find out about the content of messages. Telecommunications monitoring means the identifying data from telecommunication (e. g. telephone numbers, the whereabouts of a mobile phone, email addresses and internet connections from a computer).

On the consent of an injured party, the telecommunications interception and monitoring may be directed also at a connection in the possession or use of the injured party.

The District Court may grant the police a license to listen to and record messages, if there is reason to suspect the person of certain serious offences. The decision is valid for at most one month, but a new application by the police is permitted.  A license for telecommunications interception may be granted if there is reason to suspect the person of a very serious offence. Telecommunications monitoring can be permitted in the investigation of an offence for which the maximum punishment is at least four months or of a computer crime or drug offence. Also here the decision is made by the court.

It is a prerequisite of both telecommunications interception and monitoring that the information gained may be expected to be very important for the investigation of the offence.

The evidence obtained can be used only in criminal proceedings of the crime on the basis of which the permission was granted (exclusionary rule). The police must destroy all material irrelevant to the crime investigation without delay after the trial.

b. Technical surveillance

Also the use of technical devices for listening to private discussions (“bugging”) with microphones became possible in Finland in 1995. The same applies to technical visual surveillance with cameras and tracing the movements of a vehicle or goods. These are allowed only for investigation of an offence for which the maximum penalty is at least four years of imprisonment – usually aggravated crimes – or drug offences.

It is required that the evidence is assumed to be of very particular importance for the clarification of the offence. Technical visual surveillance can be permitted under the same circumstances, but can be allowed to be used to all crimes for which the minimum punishment is over six months of imprisonment.

The decision on these measures is made by the police, and the decision has to be submitted within 24 hours for the confirmation of a senior police (or customs) official. The decision is valid for at most one month.

After 1999, a technical devise for listening and recording and visual surveillance can be placed in a prison cell or elsewhere in a prison building, because the drug situation in the Finnish prisons required new measures. This decision is made by the court. After 2004, it is also possible to bug a home or other premises that are used as a permanent domicile, if the investigated crime is a very serious one.

c. Postal deliveries and other documents

Confidentiality of communication is protected by Section 10 of the Constitution. However, according to Coercive Measures Act, a document may be seized, if there is reason to believe that it can be used as evidence, has been taken from someone by criminal offence or will be confiscated to the State. A document may not be seized to be used as evidence, if it probably contains information not admissible as evidence in criminal proceedings or if this would otherwise violate the fundamental or human rights of the suspect. For example correspondence between the suspect and his/her family, close relatives, doctor or attorney is protected from being seized. Approximately under same conditions the suspect’s postal deliveries can be stopped at postal and other mail services in order to be seized.

The decision is made by the head of the investigation, the prosecutor or the court.

d. Under cover agents and fake-transactions

Until 2001, the use of under cover agents and fake-transactions was not allowed in Finland. Now the use of so called “evidence provocation” with fake transactions can be permitted. Evidence provocation is in question, if a policeman asks a drug user to buy narcotics from a drug dealer in order to reveal his/her identity, to apprehend him/her, to get knowledge of under ground criminal networks and to confiscate the narcotics before they are sold to the market. Even before the reform, “evidence provocation” was sometimes used in Finland. Now, evidence provocation is allowed both in criminal investigation and in prevention of serious criminality. The measures are meant to be used especially in cases of drug trafficking, selling of illegal weapons and aggravated selling of stolen property. Evidence provocation is always prohibited if it would result in instigating a new crime.

Under cover agents can only be used in investigations concerning very serious crimes, which are explicitly listed in law. An under cover agent may not enter anyone’s permanent domicile if he/she is not specifically invited to the space. Under cover agents can be given a new identity after the criminal proceedings. They cannot be used as anonymous witnesses in court.

In order to preserve the confidentiality of the operations, the decisions on under cover agents and fake-transactions are made by senior police officers. The Ombudsman of the Parliament receives an annual report on the use of these measures and oversees the use of them. As yet there is practically no experience with under cover agents and fake-transactions in Finland.

e. Personal descriptions

For the purposes of identification, solving cases and registering offenders, the police are entitled to record a suspect’s fingerprints, hand prints and footprints, a sample of his/her handwriting and voice, a photograph and any distinctive marks. To help solve a crime, a DNA identifier can be determined from a sample taken from the suspect in a personal examination.

Where there are pressing reasons in a criminal investigation, the police may, for the purposes of identification and for solving the case, also record the personal descriptions of persons who are not suspects, provided that the case concerns an offence for which the statutory punishment is more than six months’ imprisonment. The personal descriptions of persons who are not suspects may not be used for purposes other than solving the case. Neither may they be stored or registered for other purposes.

A DNA identifier may be entered in a police personal registry only if the statutory punishment for the offence by law is at least one year's imprisonment.


5. Interference with Property Rights


The District Court may impose a restraint on alienation of property that belongs to a person suspected with probable cause of an offence or another person who may be ordered to pay compensation or forfeit money to the State because of an offence. A restraint on alienation means that the owner is not entitled to sell or otherwise convey the property subject to the restraint. If a restraint on alienation is considered an inadequate method for securing payment, the movable property of the person may be seized for escrow.

It is a prerequisite for a restraint on alienation that the person is suspected of trying to avoid the payment of a fine, compensation or forfeit by concealing or destroying property, by absconding or by some other means. A restraint on alienation may not cover more property than that corresponding to the fine, compensation or forfeit.


V. THE ORDINARY COURSE OF CRIMINAL PROCEEDINGS


1. The Pre-Trial Stage


a. The pre-trial investigation

The Police Act requires that the police discharge their duties in an appropriate and impartial manner and seek to promote understanding and cooperation. The actions of the police may not cause any more damage or inconvenience than necessary. Measures taken must be justifiable in relation to the importance and urgency of the duty and the other factors affecting overall assessment of the situation. A head of investigation is appointed for each criminal case to be investigated and he/she will remain responsible for the whole progress of the investigation.

Preliminary interviews are conducted for example at the stage where no specific suspect has yet been identified. These interviews are usually conducted at the place where the offence was committed. Even in such preliminary interviews, witnesses must report truthfully and without concealment what they know about the matter being investigated. At the interview stage the police will establish the background to the case. The police are entitled to remove from the place of questioning any person whose behavior is disturbing the interviews, or whose presence is otherwise hampering the investigation of the case.

The police have a right to order any persons at the scene of a crime to remain where they are or to attend a specified place for questioning. Where necessary, the police may apprehend anyone for questioning. Anyone apprehended must be notified of the reason for doing so. The police also have the right to request anyone’s name, address and other personal data in the course of making inquiries about a case.

Nobody may be held in a pre-trial investigation longer than is necessary. Persons who are not suspects may not be held for longer than 6 hours at a time. Suspects who are not under arrest or being held in custody may not normally be held for longer than 12 hours at a time, although in exceptional cases they can be held for up to 24 hours, after which they must be either released or arrested.

During a pre-trial investigation, the parties involved (i. e. the complainant and the suspect) are questioned by the police. The police may also question witnesses and various experts, such as a forensic pathologist. Persons to be questioned are normally expected to attend the questioning in person. However, either of the parties involved may provide a statement through a representative or by phone or other means of communication, provided that the police believe this would not cause a problem or prejudice the investigation. Under the same conditions a witness may also be questioned by phone or other means of communication. A suspect can only be questioned through a representative or by phone if the case is of minor importance and he/she does not deny the accuracy of the report of the offence.

Before the questioning begins, the police have a duty to notify the person to be questioned of his/her status in the pre-trial investigation. The suspect must be informed of the offence in question and his/her right to counsel during the investigation. The suspect and his/her counsel have the right to be present during the police questioning of other parties, unless there are special investigative reasons for excluding him/her.

The police have a duty to treat the questioned persons in a calm manner. The police are not permitted knowingly to employ any false statements, to promise special benefits, to tire, threaten or to coerce the person being questioned, or to use any other inappropriate means or methods to influence the person’s willpower, memory, judgment or freedom to decide, in order to extract a confession or influence the type of statement given. If the person being questioned does not speak one of Finland's official languages (Finnish or Swedish), the police have a duty to arrange an interpreter for the person concerned.

A record is always prepared on the questioning undertaken. The police are not permitted to make any changes to the record once the person questioned has checked it and requested corrections and additions have been made. Questioning sessions can also be recorded on audio or video tape. The official record of the questioning is signed by the person questioned, the investigator and the questioning witness.

A suspect has the right to be told of the outcome of the pre-trial investigation as soon as possible without hampering the criminal investigation. The suspect has the right to demand that the police conduct additional interviews and other pre-trial investigative measures which may influence the outcome of the case, provided that these do not incur unreasonable cost.

Before closing a pre-trial investigation, each of the parties will be given an opportunity to produce a final statement on the material gathered in the pre-trial investigation, if this would expedite or assist in handling the case in court. When the pre-trial investigation is closed, a record will be drawn up of the material gathered. The record of the pre-trial investigation will include the official records of the questioning and reports on the investigative measures. The record will be forwarded to the prosecutor for the purposes of a decision on charges. Before making a decision on charges, the prosecutor can invite any of the parties or their legal counsels or representatives to discuss the case if this would assist in making the decision or in handling the case in court.

In simple and straightforward cases, provided the statutory punishment for the offence is restricted to a fine or maximum of six months imprisonment, the police may carry out a simplified pre-trial investigation. Such offences include endangering road traffic, petty theft and unlawful use of narcotics.

In a simplified pre-trial investigation the questioning and other aspects of the investigation can be performed at the place the offence was committed. In this case the pre-trial investigation is the responsibility of the police patrol present at the scene. In the investigation of traffic offences which are subject to summary penal proceedings or a petty fine, a simplified pre-trial investigation is undertaken by recording the information given by the persons questioned, e. g., on a summary penal judgment or petty fine form.

b. The decision whether to prosecute

Once an investigation is completed, the material compiled therein is sent to the prosecutor, who evaluates the case. It is the task of the prosecutor to see to it that an offender bears the responsibility for the criminal act. At the same time, however, the prosecutor must make sure that no one is charged or convicted without lawful grounds. A prosecutor must follow the principle of objectivity; he/she must always take balanced note of the proof presented in favor of a suspect. In addition, the prosecutor must work with dispatch and with economy.

For each suspect and each alleged act, the prosecutor evaluates whether a criminal offence has been committed and whether there is probable cause to prosecute the suspect. A charge is brought, if there is enough evidence against the suspect (the principle of legality) and if the prosecution is not waived (the principle of opportunity, see III. 2. b.). If there is not enough evidence or if charges otherwise are not brought, e.g. owing to the statute of limitations, the prosecutor will make an explicit decision not to prosecute. A prosecutor has constitutionally guaranteed independence in his/her decision-making. In any given case, he/she cannot and must not accept instructions or orders from anyone outside the Prosecutor General (see ch. II. 2.).

The Finnish prosecutors also have the power to issue summary penalties, i. e. to impose fines without trial in cases where the maximum penalty provided for the offence does not exceed the imposition of a fine or imprisonment for six months. For the most part summary penalties are used in cases involving road traffic violations.


2. The Trial Stage


The trial commences with a request for a summons to be drawn up by the public prosecutor and served on the accused by the District Court. In the request for a summons, the criminal act, as well as the evidence the public prosecutor intends to present at trial, must be specified and detailed. This way the accused is provided a real chance to prepare his/her defense and to acquire the evidence he/she intends to present in the case.

It is no longer compulsory to serve the summons on the complainant, unless he / she has a demand for punishment or a claim for damages that differs from that stated in the charge. The complainant’s demands are established during the pre-trial investigation, and after this the prosecutor’s duty is to present the demands on his / her behalf in court.

The progress of a criminal case in the District Court begins with preparation of the case. No particular preparatory measures are usually taken in the criminal procedure. It is, however, possible to arrange a special preparatory session before the main hearing if the case is exceptionally complex and extensive.

The main hearing consists of three parts, namely 1) the preliminary discussion and the presentation of the case, 2) the presenting of evidence, and 3) the closing discussion. The hearing is oral and concentrated into one continuous main hearing (see ch.s III. 4. c. and d.).

Immediately at the beginning of the trial the public prosecutor is to present the charge based on the summons and its grounds. The prosecutor need not specify his/her demand for the type and amount of punishment, this being the duty of the court ex officio. However, an accurate account of the criminal act is to be presented. The prosecutor has the burden of proving an allegation. The court may not regard anything not mentioned in the summons as the fault of the accused. The prosecutor also presents the injured party’s claims for compensation in so far as he/she has undertaken to pursue them.

After the public prosecutor has presented the charge, it is the complainant’s turn to present his/her demands (if he/she is present). According to the principle of adhesion, civil demands based on a crime may be – and in practice almost always are – investigated in the criminal procedure. The complainant can also make his/her own criminal charges against the accused. The injured party may concur with the prosecutor’s charge or file another charge in his/her own right. The complainant may also file a claim for the compensation of his/her legal costs.

After this, the accused has a chance to reply to the demands presented, which he/she can admit or deny. The admitting of a criminal charge or a fact is not sufficient grounds for a verdict, although the accused’s statement is substantial evidence (see ch. VI. 1.a.). On the other hand, admitting a claim for damages binds the accused.

The prosecutor narrates the course of events as he/she sees it, as well as explains why he/she has decided to present the charge as indicated in the application for a summons. The injured party (or prosecutor, if he/she presents the claims) explains the basis for the claim for compensation and how he/she has arrived at the particular monetary amounts. The defendant comments on the points made by the prosecutor and the complainants.

Witnesses are examined by the parties.[7] Witness testimony recorded in the police investigation minutes cannot be used as evidence or even read out in the court, other than in exceptional cases. Likewise, the presenting of pre-written testimonies is generally prohibited. An injured party and the defendant may be heard for evidential purposes without taking an oath. (See ch. VI. 1.)

The prosecutor expresses an opinion as to the penalty that should be imposed on the defendant, if convicted. The defendant comments on the same. In their closing arguments, the parties argue as to whether the charge has been proven.

The District Court hands its decision down orally, or later in writing. In this event, the judgment is available at the registry of the District Court, and there is no separate session for the promulgation of the judgment.


VI. EVIDENCE


Evidence is required to convince the court of the existence of the relevant facts related to the case and general scientific knowledge. In general, the rules described here concern court proceedings, but are followed with minor exceptions also in the pre-trial investigation of the police.

Elements of proof can be divided into two groups: oral or personal evidence and written or physical evidence.


1. Personal Evidence


a. Questioning of the accused

The right to be heard gives the accused the opportunity to state his/her point of view, but he/she may also be questioned (without an oath) as a valuable and often the most reliable source of information. His/her statement – even confession – is admissible evidence, provided it has been made freely, without violation of the privilege against self-incrimination. While the accused’s silence cannot be held against him/her, there is no obligation to inform him/her of this right to remain silent. If the accused decides to make a statement, he/she does not do so in the role of a witness and is not under any obligation to tell the truth.

Confession does not relieve the prosecutor of the duty to prove the facts especially in serious criminal cases. The Finnish system does not know the “plea of guilty”. The guilt must be proved beyond reasonable doubt even if the accused confesses. (See ch. III. 3. b.)

b. The hearing of witnesses

A witness is a person whose observations are used for determining the course of events. The duty of the witness is to recount what he/she remembers of the events and his/her own observations. The witness is not on the side of either party and should not take the interests of either party into account when giving testimony. Witnesses are advised to tell the truth and are reminded of the penalty for perjury.

All evidence must be presented “live” in a court. Since 2004, this rule has been amended by the Convention on Mutual Assistance in Criminal Matters between the Member States of the EU[8]. The witnesses may give their testimony by means of audio or video-link, provided that the technology permits the witness to be examined by the prosecutor, the defense and by the court. This regulation also applies in domestic criminal proceedings.

A witness who appears before a court makes either a solemn undertaking or swears an oath, unless he/she is a minor under the age of 15 or a close relative of the accused. The witness will be compensated for the loss of income and for travel costs; an allowance will also be paid.

In general all persons have an obligation to testify. Various reasons, however, justify a refusal to testify. The summons must always be obeyed and the court decides whether the witness has a right or obligation not to give a statement. The summons also indicates the consequences of a failure to appear in court. Most important examples of justified refusal to testify or answer the questions made are the following:

            Testimony against a family member;

            Information that might tend to incriminate the witness him/herself;

            Privileged information concerning business secrecy (unless very important reasons justify the obligation to testify);

            Privileged communications and information made in the context of the professional relationship between a person and his/her legal counsel; or

            Privileged communications and information between a person and his/her doctor or other medical professional.

The Finnish system does not recognize the using of anonymous witnesses. In the pre-trial investigation the police may use sources of information which they do not reveal to the suspect. This information is not documented in the minutes and cannot be used as evidence in court. It is used only to steer the pre-trial investigation in a certain direction.

Transcripts of the pre-trial questioning of a witness are not allowed to be used as evidence unless the testimony given in a court differs from that given to police. In that case the testimony can be read to the witness and he/she is asked for the reason of the changed testimony in the court.

c. Expert witnesses

Expert witnesses may give explanations of the evidence on the basis of their special competence. They can be questioned as witnesses. Experts usually give their evidence in writing, without subsequent cross-examination. However, the parties have the right to call an expert witness to give viva voce (oral) testimony before the court.

The court is not bound by expert evidence but as a rule follows it. It is very rare to have differing expert witnesses called by the prosecutor and the defense, as both parties nearly always depend on the supposedly neutral expert.

The expert statement may be given by a special authority, e. g. the Police Technical Centre on questions concerning DNA samples, fingerprints, handwriting and voice, or the National Authority for Medico Legal Affairs on questions concerning the penal capacity of the accused. The statement may also be given by an ad hoc appointed expert, e. g. a legal expert on questions concerning proper application of law or a technical expert on questions concerning the amount of damages to property. Doctors are especially allowed in the Code of Procedure to give written testimony for the court of, e. g., the injuries of the victim without being heard in person in the court. 


2. Physical Evidence


a. Investigation on the spot

Investigations on the spot, i. e. at the place where the crime was committed or at any other relevant place, are usually done by the police during the pre-trial investigation. It is possible for the court to do the same, i. e. to visit these places in the presence of all parties to the proceedings.

The term “investigation on the spot” can also be understood as including all sensual confrontation with objects related to the offence, e. g. looking at weapons and hearing of tapes. This kind of evidence is fully admissible as proof.

b. Documents

Documents, the contents of which provide information regarding facts, may only be submitted as evidence, if they have not been produced specifically for the court proceedings to be used as evidence. Therefore, a bill of a cleaning company may be used as evidence of the damages caused by a burglary and the book-keeping of a company as evidence of an economic crime committed in its operations. If documents are contested, the oral witness testimonies may be needed. The exception to this rule concerns expert statements, which was explained above in ch. VI. 1. c.

The prosecutor no longer sends the pre-trial investigation minutes to the court in advance, because statements of the parties and the witnesses in the minutes cannot usually be used as evidence in the proceedings. The investigation minutes are used in the trial only, if it is no longer possible to hear the party or the witness in court (e .g., because of his / her serious illness), or if the party or witness will not say anything or if his / her statement differs clearly from what he / she has previously told the police. In that case the statement may be read aloud and the person asked for reasons to change the statement.



[1]       http://www.finlex.fi/english/index.html (Legal Data Bank, which provides selected Finnish legal texts unofficially translated to English for free), cf. http://www.finlex.fi/ en/laki/kaannokset/1999/en19990731.pdf (15.12.2004).

[2]       The Article 9 of the Constitution will be changed in 2004, as it does not allow Finnish citizens to be surrendered or extradited to another Member State of the EU without consent. Due to the requirements of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (Official Journal C 197, 12.07.2000), the Article 9 of the Constitution will be based on the principle of “European Union Citizenship”. The implementation of the Convention entered into force in Finland with amendments to the national legislation in 2004.

[3]       English translations are available of the most important Acts under http://www.finlex.fi/ english/laws/index.php.

[4]       It should be noted that there are no special military courts or prosecutors in Finland and the Act regulates mainly the pre-trial investigation in military offences.

[5]       http://www.oikeus.fi/vksv/2442.htm (the Finnish Prosecution Services, partly in English).

[6]       At the moment there are reform plans to limit the use of lay judges. They would, in the future, have only one common vote against the vote of the District Judge, and their use would not always be necessary even in cases of imprisonment as the penalty.

[7]       In this respect some changes are planned to the Code of Procedure. At the moment, if the accused does not come to the main hearing, the hearing is always postponed and all the other parties and witnesses have to enter the court anew. A system is planned, according to which in these cases the witnesses can be heard without the accused being present. Afterwards in the postponed hearing they would be heard only if the accused so requires.

[8]       Official Journal C 197, 12.07.2000.

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