Case Comment: KKO 2008:24 (Finnish Supreme Court)
Abstract
The member states of the European Convention on Human Rights (the Convention) are engaged to guarantee the fundamental rights and freedoms specified in the Convention. If the European Court of Human Rights (ECHR, the Court) finds a violation of the Convention, it nevertheless cannot change the final domestic judgment, as the judgments of the Court are simply declaratory in nature. The reversal of a final domestic judgment based on a violation of the Convention is therefore exclusively a matter for the member state to decide.
In the case KKO 2008:24, the Finnish Supreme Court had to decide whether the final judgment of a Court of Appeal should be reversed based on a violation of Article 10 of the Convention, i.e., the freedom of speech. In the case, the Court of Appeal had convicted a journalist of libel and fined her. The journalist then appealed for the criminal judgment to be reversed on the grounds that according to the ECHR, she had exercised her freedom of speech. The Supreme Court, however, rejected the journalist's appeal.
Unlike in many other member states of the Convention, in Finland there are no specific rules in the law about a reversal of a final judgment based on a violation affirmed by the ECHR. us in the case KKO 2008:24, the Supreme Court had to apply the rules of extraordinary channels of appeal regulated in Chapter 31 of the Finnish Code of Judicial Procedure. Based on the provision of a reversal to the benefit of the defendant in a criminal case, the Supreme Court had to take a stand on whether the violation of the Convention was to be regarded as a fact that had not been presented previously or if the domestic judgment was manifestly based on misapplication of the law.
The Supreme Court came to the conclusion that the violation of the Convention should be held as a misapplication of the law. It did not, however, regard the misapplication of the law so manifest that the nal domestic judgment should have been reversed. It stated that over six years had passed since the judgment of the Court of Appeal had become nal until the journalist made her application of reversal. In addition, the Supreme Court regarded the compensation permitted by the ECHR to be sufficient and that the crime itself and the sanction thereof were minor. Overall, the Supreme Court considered the validity of the domestic judgment very important.
In my opinion, the reasoning of the Supreme Court was not very convincing. First of all, it gave no acceptable reason as to why the violation of the Convention should not be regarded as a fact not presented previously. What is worse, the Supreme Court did not grasp the meaning of the previous case law of the ECHR in cases concerning freedom of speech and thus failed in its obligation to interpret domestic legislation in a manner compatible with the Convention. It is also important to notice that the person convicted was a professional journalist. Generally speaking, the ECHR has considered journalists as having a very important role in a democratic society as public watchdogs. Finally, the case was also about reversing a criminal judgment to the benefit of the defendant, a case where the existing domestic provisions are usually interpreted in a flexible way. This is based on the fundamental rule that people not shown guilty should not be convicted either.
As a conclusion, I nd the current situation in Finland unclear due to the case KKO 2008:24. Thus, a specific rule in regard to a violation of the Convention is needed as it would at least clarify the current situation and end continuous speculation with the provisions regulating the reversal of judgments. As an example of how to form such an article, we could learn from the Norwegian regulation.
