Women and Justice: Court: Supreme Court of Finland

Domestic Case Law

KKO 2010:74 Supreme Court of Finland (2010)

Gender discrimination

The issue here was whether the crime of discrimination, as set forth in Section 9 (currently Section 11) of Chapter 11 of the Finnish Criminal Code (39/1889, as amended) (the “Criminal Code”), could be committed in connection with the practice of religion by way of a refusal to participate in public worship with a female priest. In the case, A, a male priest and a member of a traditionalist evangelist association that was against women serving as pastors, was invited by B, the chairman of the local chapter of this association, to preach at a parish church. C, a female priest, had been scheduled to participate in the worship by assisting in the communion. Prior to the commencement of the worship, A and B had announced to C that, because of their conviction, C could not join A in the worship, after which C had left the church. In its ruling, the Supreme Court noted that Section 11 of the Finnish Constitution (731/1999, as amended) sets forth that everyone has the right to freedom of religion and conscience. The Court, however, clarified that this right is not absolute and that one cannot plead this right to justify actions that violate human dignity or other basic human rights or that are against the principles of the Finnish legal system. The Court further noted that, under the Finnish fundamental rights system, the prevention of discrimination can justify limiting the rights of the autonomous authority of religious organizations and their right to determine the methods of practicing religion. The same reason, prevention of discrimination, is also a justifiable reason to limit the rights of an individual in connection with the practice of religion. On this basis, the Court held that the elements of the crime of discrimination are generally applicable and do not exclude discrimination based on gender or discrimination that takes place within a parish in connection with the practice of religion. The Court also found that the elements of the crime, including a person having, without a justified reason, in the arrangement of a public function placed someone in a clearly unequal or otherwise essentially inferior position owing to his or her gender, were present in the case. Therefore, A was sentenced to pay 20 days-fine. While it found B also guilty, due to B’s level of guilt being determined to be lower than that of A as well as because of certain mitigating circumstances, the Court decided to waive the punishment of B.



KKO 2013:96 Supreme Court of Finland (2013)

Sexual violence and rape

The issue here was related to the evaluation of evidence and the question whether the sexual intercourse in question was coerced. In this case, A and X had engaged in sexual intercourse which, according to A’s testimony, she was coerced into following physical approaches and violence by X, the male defendant. A had asked X to stop the approaches and attempted to resist him both physically and verbally. X had not complied but instead continued to engage in sexual conduct. A contended that due to the distress and fear caused by the events and the fact that she was physically significantly smaller than X she was no longer able to resist X’s approaches. A stated that the only thing she could think about at that point was that she did not want to get a sexually transmitted disease from X and, therefore, handed X a condom for him to use. After this, A and X had sexual intercourse. X contended that the intercourse was consensual. X further claimed that he could not have understood, in particular after A had given him a condom, that he was coercing A to have sexual intercourse. In its evaluation of the evidence, the Supreme Court stated that it held A’s description of the events reliable as her account was supported by the facts presented to the Court and since X’s description of the events had changed during the process, thereby reducing his credibility. X had, however, further claimed that even if the description of events given by A was accurate, the elements of the crime of coercion into sexual intercourse were not present in the case. As set forth in Section 3 of Chapter 20 of the Finnish Criminal Code (39/1889, as amended) (the “Criminal Code”), the crime of coercion into sexual intercourse is a rape that, in view of the slight degree of violence or threat of violence and the other particulars of the offence is deemed, when assessed as a whole, to have been committed under mitigating circumstances. The elements of rape under the Criminal Code include the requirement that a person forces another person into sexual intercourse by the use or threat of violence, and the Court affirmed that a breach of the victim’s right of self-determination is central to this requirement. The Court held that A had resisted X’s actions but had been coerced into sexual intercourse by X through the use of violence and the resulting fear and helplessness that A experienced. The Court further held that the fact that a victim ceases to resist, physically or verbally, an offender’s approaches cannot be interpreted as inferred consent to sexual intercourse by the victim. More specifically, the Court stated that even if the offender assumed that the victim had changed her mind, this does not remove intent on the part of the offender absent such change of mind being clearly expressed by the victim. The Court held that A’s handing over the condom, under the circumstances that this event took place, did not constitute such expression of a change of mind. Therefore, the Supreme Court held that there was sufficient evidence to prove X guilty of coercion into sexual intercourse. X was sentenced to 10 months of probation and to pay damages to A.



KKO 2011:1 Supreme Court of Finland (2011)

Sexual violence and rape

The issue here was whether violation of official duty of a doctor was considered sexual abuse under the Finnish Criminal Code (39/1889, as amended) (the "Criminal Code"). A was the working doctor when B went for a breast ultrasonography. A had touched B's breast with bare hands and complemented her on her breasts. A had also massaged gel on the breasts with his hands and several times touched B's breasts. A had also, after getting permission from B, suckled the breasts in order to get excretion. The District Court and the Court of Appeal held that the procedure was not appropriate but did not amount to sexual abuse. The questionbefore the Supreme Court was whether the procedure had a sexual purpose.  According to  Chapter 20 Section 5(1) of the Criminal Code, a person who abuses his or her position and entices another into engaging in sexual intercourse or another sexual act or submitting to such an act should be sentenced for sexual abuse. The Court held that the procedures that A performed deviated from established and medically recommended practice. As a whole the procedure was done in a way that strongly indicated the purpose of sexual arousal or satisfaction. The fact that B had reacted only afterwards was not significant. The Court held that doctor and patient are not in an equal position and the fact that a patient agrees to a medical examination does not imply that the patient would give up her sexual self-determination. The Court saw that A had misused his position as a doctor and found A guilty of sexual abuse and violation of an official duty in accordance with Chapter 40 Section 9(1) of the Criminal Code. The Court found that this was only a single incident towards a consenting adult and sentenced A to pay 80 days-fine and damages to B of 1,200 Euros.



KKO 2010:1 Supreme Court of Finland (2010)

Gender discrimination, Sexual harassment, Sexual violence and rape

The issue here was whether A, the CEO of a company for which the victims worked, was guilty of sexual abuse, of a work safety offense, and of employment discrimination. A had performed sexual acts on his subordinates while they were resting in the break room. These acts included touching intimate parts such as breasts and bottom. The District Court and the Court of Appeal held A guilty of these charges, and A appealed to the Supreme Court.  The Supreme Court considered whether the public prosecutor had a cause of action given that the injured party had not reported the offense within the statute of limitations period.  According to Chapter 20 Section 11 of the Finnish Criminal Code (39/1889, as amended) (the "Criminal Code"), the public prosecutor may not bring charges for the offenses referred to in Sections 3 or 4 or Section 5(1)(2) or 5(1)(4), unless the injured party reports the offense for the bringing of charges or unless a very important public interest requires that charges be brought.The Court held that since A was the victim's supervisor, important public interest required the case to be brought to court by the prosecutor. Turning to the merits of the case, the Court found that A had abused his position in violation of Chapter 20 Section 5(1) of the Criminal Code.  It therefore held A guilty of sexual abuse towards B, C, D and E.  In addition, the Court upheld A's convictions for a work safety offense under Chapter 47 Section 1(1) of the Criminal Code and Section 27 of the Finnish Occupational Safety and Health Act (738/2002, as amended).  Finally, the Court upheld A's conviction for employment discrimination in violation of Section 8(2)(4) of the  Finnish Equality Act (609/1986, as amended), in accordance with Chapter 47 Section 3(1) of the Criminal Code.



KKO 2004:60 Supreme Court of Finland (2004)

Sexual violence and rape

The issue was whether the victim pointing out the rapist was sufficient evidence to hold someone guilty, taking into account the circumstances at the time of recognition. B was coming home late at night from a restaurant. On the way home B was raped. After the incident B tried to find the rapist. B met a friend C who happened to be in the companion of A. B recognized A as the rapist. All the parties where intoxicated at the time. A left the scene immediately when B started accusing A. There was not enough DNA evidence to be found to determine the identity of the rapist. At the District Court hearing B recognized A as the perpetrator. A pleaded not guilty but the District Court and later the Court of Appeal sentenced A to 1 year and 10 months prison for rape. The question in front of the Supreme Court was whether B pointing out A as the perpetrator was enough evidence to hold A guilty. The Court had no doubt that B was raped. The Supreme Court held that there were uncertainties including the parties' intoxication and the fact that B after identifying A reinforced the characteristics of the perpetrator. This could indicate that these were more observations about A and not about the actual rapist. B's recognition could not be held as the only evidence proving A guilty since it could not be seen as reliable. Also the Court held that according to the new witnesses D and E and the testimony by C, A could not possibly have had the time to reach the crime scene and back to where A was reported been seen. The court held that B's recognition could not be held as reliable evidence and the fact that A left as soon as B pointed out him as the perpetrator could not be seen as evidence proving A's guilt. According to the Supreme Court the evidence was not sufficient to prove A guilty. The charges were dismissed. Reliability of evidence is regulated under Finnish law pursuant to Chapter 17 Section 2(1) of the Finnish Code of Judicial Procedure (4/1734, as amended) (the "Code of Judicial Procedure"). The Code of Judicial Procedure provides that after having carefully evaluated all the facts that have been presented, the court shall decide what is to be regarded as the truth in the case. The court shall evaluate the evidence by: (i) deliberating the value of the evidence and (ii) resolving whether the presented evidence is sufficient. The court practices free deliberation which is limited by the need for careful evaluation and the fact that the assessment has to be grounded on objective criteria. The judge uses his/hers empirical rule and additional facts on the evidence evaluation. In criminal cases the burden of proof is on the prosecution and the plaintiff (Chapter 17 Section 1(2) of the Code of Judicial Procedure).



KKO 2003:76 Supreme Court of Finland (2003)

Domestic and intimate partner violence

The issue was whether plaintiff was entitled to compensation for anguish in connection with intimate partner violence. A (male) had assaulted E (female) in E's home and on the staircase in a way that caused brain injury and severe traumatic stress. The District Court and the Court of Appeal sentenced A for an aggravated assault and ordered A to pay damages for pain and suffering for 20,000 Finnish marks. The Courts rejected demands for compensation on anguish. The question before the Supreme Court was about the amount of damages and if E was entitled to damages arising from anguish. The Supreme Court evaluated the pain and suffering as a whole and ordered A to pay 14,000 Euros of damages. In court practice (rulings KKO 1989:141 and KKO 1999:102) an assault has not been held as an act that justifies damages on mental anguish. According to Chapter 5 Section 6 of the Finnish Tort Liability Act (412/1974, as amended) (the "Tort Liability Act"), the provisions of the Tort Liability Act on personal injury apply also to damages for the anguish arising from an offense against liberty, honour or the domestic peace or from another comparable offense. The Court held that since A broke into E's apartment, E was entitled to damages arising from offense against domestic peace which could be seen causing anguish. The Court ruled that A had to pay damages for anguish in the amount of 500 Euros.



KKO 1995:152 Supreme Court of Finland (1995)

Gender discrimination

The issue here was whether the employer was allowed to lay off an employee returning from maternity leave due to a change of duties. During Ms. Mari Karjanoja's maternity and parental leave, her duties as a product manager had changed as a result of the company restructuring, and the employment relationship of her substitute, Ms. Tuulia Pärkö, had been made permanent. When Ms. Karjanoja returned from maternity leave, she was not offered back her duties as a product manager as the employer regarded Ms. Pärkö to be better qualified to take care of such duties in the changed situation. Later, for financial and production related grounds, the employer laid off Ms. Karjanoja.  Section 34 h of the Old Finnish Employment Contracts Act (320/1970, as amended) (the "Old Employment Contracts Act") prevented the displacement of an employee returning from maternity and parental leave on the basis that a substitute to the employee would be able to carry out the work duties better than the employee. Therefore, the Supreme Court considered that the employer should have offered Ms. Karjanoja the changed work duties of the product manager which were comparable to her previous duties. Since the ground of Ms. Karjanoja's termination was the employer acting against Section 34 h of the above-mentioned Old Employment Contracts Act, the employer did not have sufficient grounds for the termination. On these grounds, the Supreme Court, upholding the decisions of the District Court and the Court of Appeal, ordered the employer to pay damages to Ms. Karjanoja.



KKO 1992:7 Supreme Court of Finland (1992)

Gender discrimination

The issue here was whether the employer company was guilty of discrimination in working life. Marja-Liisa Laukkanen had been working at Oy Kolmeks Ab. During her four months trial period, she got pregnant on which she informed her employer. Soon after that, she was dismissed on the grounds that she was on her trial period. Ms. Laukkanen claimed that her pregnancy was the ground for the dismissal which was against Section 8 of the Finnish Equality Act (609/1986, as amended) (the "Equality Act") on the basis of discrimination in work life.  In addition, Ms. Laukkanen claimed that the dismissal was against Section 3 of the Old Finnish Employment Contracts Act (320/1970, as amended) (the "Old Employment Contracts Act"), which states that employment cannot be revoked on inappropriate grounds. The District Court ruled against Ms. Laaukkanen but the Court of Appeals reversed.  It held that the dismissal of Marja-Liisa Laukkanen was against both the Old Employment Contracts Act and the Equality Act and ordered the company to pay damages. The grounds for the Court of Appeals' decision were that, when the employer and Ms. Laukkanen had negotiated on the employment, the employer had had significant interest on the fact if Laukkanen was planning to get pregnant. Further, the company had not been able to prove that Ms. Laukkanen had started neglecting her work duties as soon as she had found out about her pregnancy. The Supreme Court agreed with the opinion of the Court of Appeals and held that the dismissal violated Section 3 of the Old Employment Contracts Act. However, it did not consider the dismissal to be against the Equality Act because, according to the government proposal (57/1985) for the Equality Act, discrimination in working life only means discrimination based on the gender and, therefore, gender has to be the immediate reason behind the dismissal.



KKO 1991:14 Supreme Court of Finland (1991)

Gender discrimination

The issue here was whether the Finnish State was guilty of 4 in selecting an applicant for a job. Ms. Risse Serén claimed that she was more qualified for the position of the head of the office at the Ministry of Agriculture and Forestry than Mr. Paavo Mäkinen, who had been selected for the position. She claimed that she had been discriminated during the application process because of her gender. According to Section 8 of the Finnish Equality Act (609/1986, as amended) (the "Equality Act"), an action of an employer is deemed to constitute discrimination if, inter alia, the employer selects a less qualified person of the opposite sex for the position unless there is a justifiable reason for such selection other than the applicant's gender or the selection was based on weighty and acceptable ground related to the job or the task. The District Court evaluated the assessment of education, work experience, and other qualifications of the both applicants prepared by the Ombudsman for Equality and concluded that Ms. Serén was more qualified for the position. Since the state of Finland did not show that there were any acceptable reasons described in the Equality Act, the District Court ordered the state pay damages to Ms. Serén for the discrimination. The Court of Appeals and the Supreme Court upheld the decision of the District Court.