Todistustaakan jakautuminen työsyrjintää koskevassa adheesioprosessissa
DOI:
https://doi.org/10.33344/vol18iss1pp42-63Abstract
Occupational discrimination is an illegal act according to the Finnish Criminal Code, where the liability falls upon the employer or a representative of the employer as a natural person. In addition to the possible criminal sanctions, the plaintiff may also place civil claims for damage compensation and indemnity based on the Non-discrimination Act, the Equality Act, the Employment Contracts Act as well as the Tort Liability Act. In fact, such civil claims may turn out to be even more meaningful to the plaintiff than the possible criminal sanctions of discrimination at work.
The civil claim may be dealt either in a civil dispute of its own, or as a subsidiary claim within a criminal procedure according to what is known as the adhesion procedure. It seems that in general it would be more favourable to the plaintiff that the civil claim is considered within the criminal procedure, however this may not be the case in the context of occupational discrimination. This is due to the reverse onus clause applied in civil cases regarding occupational discrimination, which on the other hand cannot be applied in criminal proceedings due to prosecutors’ sole burden of proof, the presumption of innocence and the privilege against self-discrimination.
The aim of this paper is to perceive how this apparent contradiction regarding the burden of proof has been reconciled in an occupational discrimination related adhesion procedure, where both the criminal charge and the civil claim is based on the same set of facts. The study finds, according to both case law and jurisprudence, that also in criminal cases of occupational discrimination the burden of proof may shift to the defendant when the prosecution has first made it probable that discrimination may have been in question.
While further systematizing this phenomenon, the study concludes that in criminal cases of occupational discrimination the legal praxis has at least to some extent adopted a factual presumption that very much resembles the reverse onus clause applied in civil disputes regarding occupational discrimination.
The factual presumption suggested in this paper points out a contradiction to the legal principles and rules that protect the defendant in a criminal procedure, such as the burden of proof which should lie solely on the plaintiff and prosecution side and the presumption of innocence. The study also points out a notion that the plaintiff may benefit from a form of presumption of discrimination also when the claim for damages or indemnity is considered as a subsidiary claim according to the adhesion procedure.
