Yhteisen rangaistuksen mittaamisen ennakoitavuus
Nyckelord:
rikosoikeus, yhtenäisrangaistus, laillisuusperiaate, oikeusvarmuusAbstract
Foreseeability of joint sentences
Courts are to apply criminal law in a foreseeable manner. According to the European Court of Human Rights, unforeseeability in either convictions or sentencing violates the principle of legality in criminal law. In this article, the scope of the foreseeability requirement in sentencing is analysed with particular focus on joint sentences, i.e. the sentencing for multiple offences under Finnish law. The analysis shows that the concept of foreseeability has next to no doctrinal significance in sentencing because truly unforeseeable sentences would also fly in the face of the wording of the law. In addition, the proportionality principle and the uniformity goal of the sentencing practice set more stringent limits for sentencing than does the foreseeability requirement associated with the principle of legality.
The Supreme Court regularly hands out precedents with the aim of improving the uniformity of the sentencing practice. In joint sentence precedents, the court of last resort typically considers the seriousness of the gravest offence, the seriousness of the other offences, and the mutual connection of the offences. To study the effect of the precedents and to put the foreseeability of sentencing
to a demanding test, a small set of recent appeals court judgments (N = 37) in joint sentence cases were analysed for the article. The result was that the appeals court practice seems beyond reproach from the point of view of the principle of legality although oftentimes lacking from the point of view of reasoning models promoted by the Supreme Court.
Lower courts could improve their reasoning and perhaps their decision-making in multiple offences cases by more regularly taking the systematic approach followed by the Supreme Court. Such a technique would elevate the clarity of court reasoning and most likely the uniformity of the sentencing practice. As a by-product, the foreseeability of joint sentences would be upgraded from its already adequate level.
