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Title:

Evidence in Civil Law – Finland



Author: Riikka Koulu



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Evidence in Civil Law – Finland





Riikka Koulu





Evidence in Civil Law – Finland



R

1

IIKKA KOULU



ABSTRACT Finnish civil procedure has a close connection with other

Scandinavian legal systems and co-operation between the States is active.

In addition, the legislation, case-law and scholarly doctrine are more and

more influenced by European co-operation through the EU and Council

of Europe. The principles of free disposition, free assessment of evidence,

audiatur altera pars, and burden of proof form the basis for an oral and

direct public hearing. It follows from these due process principles that no

methods of proof are forbidden but their relevance depends on the court’s

assessment. The procedural doctrine in Finland is well established and has

roots in the Swedish code of civil procedure of 1734, although it has gone

through extensive reforms. On February 10, 2015 the Parliament of

Finland passed the reform of chapter 17 of code of civil procedure, which

contains the legislation on law of evidence. The extensive reform

systematically updates and streamlines the previous legislation on

evidence in addition to introducing new regulation e.g. on anonymous

witnesses and banning invocation of evidence, which has been obtained

by illegal means. The reform of chapter 17 concludes the systematic

reform.



KEYWORDS: • procedural law • due process • fair trial • civil procedure •

law of evidence • free assessment • access to justice





CORRESPONDENCE ADDRESS: Riikka Koulu, LL.M. Ph.D. Candidate, University of Helsinki, P. O.

Box 4, FI-00014 Helsinki, Finland, e-mail: riikka.koulu@helsinki.fi.



DOI 10.4335/978-961-6842-47-1

ISBN 978-961-6842-47-1 (epub)

© 2015 Institute for Local Self-Government and Public Procurement Maribor

Available online at http://books.lex-localis.press.

Riikka Koulu, LL.M.



Author Biography Riikka Koulu (LL.M. trained on the bench) is a

doctoral candidate of procedural law at the University of Helsinki. In her

theoretically‐oriented doctoral dissertation Dispute Resolution and

Technology: Revisiting the Justification, she focuses on the implications

of implementing technology into dispute resolution and how this shift

creates the need for new legal interpretations and concepts. In addition,

her research interests include Internet governance, Science and

Technology Studies and critical systems theory. Her earlier publications

concern e.g. justification of ODR (2014), doctrines of dispute resolution

and technology (2013), access to Internet (2012) and videoconferencing

(2010, 2011).





Foreword





American author Hunter S. Thompson has said that “We cannot expect people to

have respect for law and order until we teach respect to those we have entrusted

to enforce those laws.” As his words depict, the role of courts is of uttermost

importance for defending law and justice. The integrity of the judge and the

values of procedural norms are essential for the credibility of law. In short, the

courtroom is a central arena for providing justice. However, getting your day in

court is not always self-evident, especially in cross-border situations. As the

world comes more and more globalized and interaction detaches from national

borders, we are facing new challenges of providing sufficient access to justice.



Challenges of cross-border litigation are related to the pronouncedly national

role of procedural norms and their co-operation with cross-border legal

instruments. To overcome obstacles of cross-border litigation we need to address

the interface between different national legal systems, the cross-border

instruments of the EU and multilateral conventions. We need to understand the

intricacies of legal pluralism. In this task international co-operation and

exchange of knowledge is essential.



This national report has been written for the purpose of providing information on

the central concepts, values and principles of Finnish law of evidence. The work

has been done as a part of research project Dimensions of Evidence financed by

Civil Justice/Criminal Justice Programme of the European Union. The project

has been coordinated by Prof. Dr. Vesna Rijavec at the Faculty of Law,

University of Maribor, Slovenia. I would like to thank Prof. Dr. Rijavec and her

team for all the work they have taken to guarantee the realization of such an

ambitious project, which provides valuable information for improved

understanding of our shared procedural values and possibilities of increasing

access to justice.



In Montréal, May 2015



Riikka Koulu

University of Helsinki





Evidence in Civil Law – Finland

Riikka Koulu





Contents





Part I .......................................................................................................... 1

1

Fundamental Principles of Civil Procedure ............................................... 1

1.1

Principle of Free Disposition of the Parties and Officiality

Principle ..................................................................................................... 2

1.2

The Adversarial and Inquisitorial Principles.............................................. 3

1.3

Hearing of Both Parties Principle (audiatur et alter pars) –

Contradictory Principle .............................................................................. 5

1.4

Principle of Orality – Right to Oral Stage of Procedure and

Principle of Written Form .......................................................................... 6

1.5

Principle of Directness ............................................................................... 8

1.6

Principle of Public Hearing ........................................................................ 9

1.7

Principle of Pre-trial Discovery ................................................................. 9

2

General Principles of Evidence Taking ................................................... 10

2.1

Free Assessment of Evidence .................................................................. 10

2.2

Relevance of Material Truth .................................................................... 11

3

Evidence in General ................................................................................. 13

3.1

Methods and Standards of Proof .............................................................. 13

3.2

Means of Proof ........................................................................................ 14

3.2.1 Party Statements ...................................................................................... 15

3.2.2 Formally Prescribed Types of Evidence and Cheque Disputes ............... 16

3.2.3 Different Types of Evidence .................................................................... 16

3.3

Duty to Provide Evidence ........................................................................ 17

4

General Rule on the Burden of Proof....................................................... 18

4.1

Doctrine Behind Burden of Proof ............................................................ 18

4.2

Duty to Contest Specified Facts and Evidence ........................................ 19

4.3

Collecting Evidence on the Court’s Own Initiative ................................. 20

5

Written Evidence ..................................................................................... 20

5.1

Public and Private Documents and Presumption of Correctness ............. 22

5.2

Taking of Evidence .................................................................................. 23

6

Witnesses ................................................................................................. 23

6.1

Obligation to Testify ................................................................................ 23

6.2

Obligation to Give Evidence .................................................................... 24

6.3

Oath ......................................................................................................... 26

6.4

Duties and Powers ................................................................................... 27

7

Taking of Evidence .................................................................................. 27

7.1

General Statements .................................................................................. 27

7.2

Rejection of an Application to Obtain Evidence and Specifying

Evidence .................................................................................................. 28

7.3

The Hearing ............................................................................................. 29

7.4

Witnesses ................................................................................................. 30

7.5

Expert Witnesses ..................................................................................... 31

ii

Contents



8

Costs and Language ................................................................................. 32

8.1

Costs ......................................................................................................... 32

8.2

Language and Translation ........................................................................ 33

9

Unlawful Evidence ................................................................................... 34

9.1

Illegally Obtained Evidence and Illegal Evidence ................................... 34

10

The Report about Regulation 1206 .......................................................... 35





Part II – Synoptical Presentation .............................................................. 37

1

Synoptic Tables ........................................................................................ 37

1.1

Ordinary/Common Civil Procedure Timeline .......................................... 37

1.2

Basics about Legal Interpretation in Finnish Legal System ..................... 42

1.3

Functional Comparison ............................................................................ 42





References ................................................................................................ 45





Evidence in Civil Law – Finland

Riikka Koulu





Part I


1


Fundamental Principles of Civil Procedure



The Finnish civil procedure is regulated in Code of Judicial Procedure (in Finnish

oikeudenkäymiskaari 4/1734, hereinafter the Code) which also provides complimentary

provisions for criminal and administrative procedure. Similar to Sweden, the Code

makes a distinction between dispositive cases in which the parties are free to settle

outside the court and non-dispositive cases which are not amenable to settlement out of

court. Most civil and commercial cases are considered dispositive where as non-

dispositive cases include resolution of marriage, child access, paternity and

guardianship issues in which there is a public interest involved.2 Mostly the procedural

rules of adjudication are the same for both types of disputes, but, some differences

concerning in-court settlements, evidence and legal fees do exist. In addition,

uncontested dispositive claims concerning debt, eviction or restitution can be processed

in a summary procedure as long as they have not been contested.



On February 10, 2015 the Parliament of Finland passed the reform of chapter 17 of code

of civil procedure, which contains the legislation on law of evidence. The extensive

reform updates and streamlines the previous legislation systematically and takes into

consideration the development of due process principles.3 Also, the compatibility with

the Regulation on obtaining evidence (1206/2001) has been taken into consideration.4

At the time of writing it is still unclear when the new regulation will come to force, as it

has not yet been ratified by the President.



However, the status quo of Finnish law of evidence remains the same, as due process

principles and other interpretative changes have taken place in case-law and in the

doctrine. Regardless, some changes to the previous status quo have been introduced. In

addition, the numbering in chapter 17 will change as a result of the reform. In this report

I will describe the existing status quo in accordance to the law that is in force at the time

of writing. References to the new chapter 17 are made, mostly in footnotes in order to

avoid confusion with the earlier numbering, when the new legislation will bring changes

to the previous practice.





2 Jyrki Virolainen, Prosessin päälajit ja tehtävät, p. 62, in Dan Frände et al. (ed.), Prosessioikeus,

4th ed., Sanoma Pro 2012.

3 Government’s Proposal 46/2014 vp.

4 Government’s Proposal 46/2014 vp, p. 18.

2





Part I


1.1


Principle of Free Disposition of the Parties and Officiality Principle



The Finnish civil procedure recognizes both, principle of free disposition of the parties

(in Finnish dispositiivinen periaate, in Swedish dispositionsprincipen) and the

officiality principle (in Finnish virallisperiaate, in Swedish officialprincipen) which are

considered to be role principles stating the division of labour between the parties and the

court.5 The Code does not specifically name the principles or their scope but they have

been established in legal practice and jurisprudence. In addition to these two principles,

principle of co-operation between the parties and the court is recognized.



In dispositive cases, e.g. in cases where a settlement between the parties is accepted,6

the principle of free disposition of the parties is fundamental. Principle of free

disposition binds the court to the parties’ procedural acts which include deciding on

filing a case, extent of trial documents and evidence, acknowledging a legal fact and the

content of one’s claim. The judge is responsible for conducting the proceedings but he

is bound to the parties’ claims and cannot grant more than is demanded. The court

cannot ignore a party’s confession of the claim or of a legal fact (chapter 17 § 4).7



According to the officiality principle, the court decides on the conduct of proceedings,

including the form (written or oral preparation, oral preliminary hearing), joinder of

claims, scheduling the main hearing and other procedural acts. The court has to provide

the parties the opportunity to be heard on such decisions. The court decides a case based

on parties claims and the evidence they have referred to. The Finnish procedural law

does not allow extra et ultra petitum, but, instead, is bound to the parties claims. The

acts of parliament, case-law and relevant regulation do not have to be referred to by the

parties as the court has the responsibility to know the law of its own accord ( jura novit

curia).8



A starting point in Finnish procedural law is that a civil action may not be changed

during the proceedings (chapter 14 § 2). However, prohibition against amendment of

action does not prevent the plaintiff from claiming a performance if such claim is based

on a change in circumstances, or from claiming confirmation of a legal relationship



5 Jyrki Virolainen, Periaatteet prosessioikeudessa, p. 199, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012.

6 Distinction between dispositive and non-dispotive cases is essential in Finnish civil procedure as

there is an emphasized public interest in non-dispositve cases. Legal fees and the court’s

responsibilities are regulated differently in these two groups of cases. In non-dispositive cases a

settlement between the parties is generally not accepted (child custody, guardianship, divorce,

paternity) as legal status is changed through them. However, even in nondispositive cases the

court aims at an amicable solution and can give a decision which follows the parties’ settlement if

such settlement is considered to be acceptable (e.g. in the best interest of the child). In dispositive

cases a settlement can be reached between the parties at any given time.

7 In the revised chapter 17 the section numbering changes. The future section for the

consequences of confession is chapter 17 § 5 (HE 46/2014).

8 The principle of jura novit curia is emphasized in the revision of chapter 17. After the reform the

section number for the principle will be chapter 17 § 4 (HE 46/2014). See also, Govenrment’s

Proposal 46/2014 vp. P. 50.





Part I


3




which has been contested during the trial, or from making a subsidiary claim on same

grounds. Such new claims have to be made before the main hearing. If the claim is

amended in the main hearing it would be ruled inadmissible. No such claims can be

presented in the Court of Appeals.



Claims, grounds and a list of evidence has to be given by the party without delay

(chapter 5 § 20). This means that new legal facts and evidence have to be introduced

before the court declares that the preliminary stage is over, i.e. before the main hearing.

As a main rule, new evidence cannot be referred in appeal a case to higher instance,

unless the appellant establishes a probability that he or she had not been able to refer to

the circumstance or evidence in the district court or that he or she has had a justifiable

reason for not doing so (chapter 25 § 17). The court may exhort a party to fulfil his or

her duties before a deadline under the threat that after the deadline he or she may not

refer to a new claim or circumstance, or present new evidence, unless he or she can

show that it is probable that there is a valid reason for his or her conduct (chapter 5 §

22). A more important threat of preclusion is provided for in chapter 6 § 9 which forbids

the parties to invoke a new circumstance or evidence in the main hearing not invoked in

preparation unless the party can present a justified reason for it (chapter 6 § 9). The

consequence of preclusion is that the court will not take the circumstance or evidence

into consideration. As stated above, late evidence can be accepted if the party can show

a valid reason for not presenting the evidence earlier. This will be discussed in detail

later.



1.2

The Adversarial and Inquisitorial Principles



The terminology of adversarial and inquisitorial principles is recognized in the Finnish

legal system. The terms are used to refer to different legal cultures and to explain

historical development of the current system. The main element of adversarial principle

is the contradiction principle, where the parties assume an active role in obtaining

evidence, both parties present their case in an oral hearing and the court remains rather

passive. In inquisitorial procedures the court adopts a more active role participating in

obtaining evidence, investigating and adjudicating the case. In Finland, the chosen form

of procedure for both criminal and civil cases is adversarial. However, in non-

dispositive cases the court adopts a more active role which could be considered also as a

more inquisitorial procedure.



It follows from the adversarial principle that the parties have the main responsibility to

obtain evidence and refer to essential legal facts and evidentiary facts which prove

them.9 Although the parties have the obligation to obtain the necessary evidence, the

Code grants the court a right to decide on its own initiative to obtain necessary



9 The division of labour in accordance with the principle of adversiality is highlighted in the

revised chapter 17. The party’s obligation to prove his or her claims and the rights that follow

from this will be provided for in chapter 17 § 1-2 (HE 46/2014).

4





Part I


evidence. However, in dispositive cases the court cannot hear a new witness or demand

a document to be presented if both parties object (chapter 17 § 8).10



Although the wording of the Code grants the court in theory wide powers concerning

obtaining evidence, the case law and jurisprudence have assumed a reserved stand. The

Supreme court has stated that a Court of Appeals shall not return a case to the district

court for obtaining new evidence on the court’s own initiative.11 In jurisprudence the

court’s role in obtaining evidence especially in dispositive cases has been considered as

mainly complementary and focused on the already provided trial documents, as court’s

neutrality and objectivity might be compromised if it assumes an active role in

obtaining evidence. However, the court’s freedom of action in obtaining evidence in

dispositive cases has little practical importance, as usually the parties provide the

needed evidence.12



In non-dispositive cases the court’s discretion to obtain evidence on its own initiative

increases significantly. For example, the Act on Child Custody and Access § 16 states

that in a case concerning custody or access the court must obtain a report from the social

welfare board, unless it is clear that such report is not required for reaching a decision.

Thus, the officiality principle is more decisive in non-dispositive cases.



The judge is responsible for conducting the procedures. The Finnish legal system makes

a distinction between material ( aineellinen) guidance which focuses on investigating the

matter, clarifying the trial documents and restricting the amount of evidence when

necessary, and between procedural ( muodollinen prosessinjohto) which refers to the

formal course of the proceedings, i.e. scheduling the hearings, summons, and ensuring

that the case proceeds in a lucid and orderly manner (chapter 6 § 2a).13 The material

guidance is more pronounced in preliminary stages while procedural directing is

essential in the main hearing. The court has the responsibility to draw up a summary of

the claims, grounds and evidence in addition to the facts that will proved by the named

evidence during the preparation of the case and before the preliminary hearing (chapter

5 § 24). An opportunity to comment on the summary is given to the parties.





10 The rule will remain the same after the revision of chapter 17. However, the rule will be

renumbered as chapter 17 § 7 (HE 46/2014).

11 The Supreme court has dealt with the court’s right to obtain evidence on its own initiative in

decisions 1995:44 and 1996:133. Although the cases dealt with criminal procedure, the legal rule

formulated by the court is applicable also in civil cases. In both cases the lower court, Court of

Appeals, had returned a case to the district court so the lower court could obtain new evidence.

The Supreme court returned both cases to the Court of Appeals and confirmed that obtaining new

evidence on the court’s initiative was not grounds for returning the case.

12 Juha Lappalainen, Yleistä todistelusta, p. 604, in Dan Frände et al. (ed.), Prosessioikeus, 4th

ed., Sanoma Pro 2012.

13 Jyrki Virolainen, Periaatteet prosessioikeudessa, p. 199, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012.





Part I


5




1.3

Hearing of Both Parties Principle (audiatur et alter pars) – Contradictory

Principle



Contradictory principle is one of the most fundamental principles of fair trial which is

safeguarded by the constitution of Finland (731/1999, 21 §) and the European

convention of human rights. The core of contradictory principle is that a case should not

be decided without hearing both parties, or, without reserving them the opportunity to

be heard and to present their case and evidence that supports their claims. In addition,

the judgment cannot be grounded on such evidence or material that the other party has

not had the opportunity to view and comment. Parties should be heard also on evidence

obtained by the court on its initiative as well as on legal facts that are ex officio taken

into consideration.14 The court has the ex officio obligation to ensure that such

opportunity is reserved.15 In Supreme Court precedent it is highlighted that preserving

the contradictory principle should provide a genuine possibility of participation instead

of just safeguarding the formal hearing procedure.16 In the revised chapter 17 the

parties’ right to comment on each piece of evidence obtained during the proceedings is

even further accentuated.17



Contradictory principle is connected with all the phases of trial. It is the main rule, but,

there are certain exceptions. First, a claim has to be dismissed without hearing the

respondent if it is clearly groundless (chapter 5 § 8).18 Second, the court can use its own

discretion whether to ask a statement from the other party in a complaint on the basis of

a grave procedural error (chapter 31 § 4). Third, the court can grant an interim order on

precautionary measures without reserving the opposing party the opportunity to be

heard, if the purpose of the measure would otherwise be compromised (chapter 7 § 5.2).



As stated before, the parties have the responsibility to refer to the legal facts they want

to be taken into consideration by the court and to present the evidence supporting their

claim. Due to contradictory principle, the parties have the right to comment on each

piece of evidence presented in the case (chapter 17 § 9).19 The evidence is presented in

the main hearing where both parties are called with or without the obligation to be

present. If a party is not present although obligated, the court may evaluate whether this

behaviour has significance as evidence (chapter 17 § 5).20 If evidence is obtained

outside the main hearing, the court calls both parties to such event (chapter 17 § 8b).21





14 See Supreme Court decisions KKO 1994:7; 1994:26; 1997:139.

15 Jyrki Virolainen, Periaatteet prosessioikeudessa, p. 127, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012; Juha Lappalainen, Siviiliprosessioikeus I,

Lakimiesliiton kustannus, Jyväskylä 1995, pp. 61-64.

16 See Supreme Court decision KKO 2005:134.

17 See Government’s Proposal 46/2014 vp p. 45. The right to comment will be included to the

legislation as chapter 17 § 1 (HE 46/2014).

18 See also Supreme Court decision KKO 1998:86.

19 The revised numbering will be chapter 17 § 1 (HE 46/2014).

20 The revised numbering will be chapter 17 § 6 (HE 46/2014).

21 The revised numbering will be chapter 17 § 57 (HE 46/2014).

6





Part I


If the court has violated the contradictory principle in some way, the injured party can

appeal to the Court of Appeals or the Supreme Court following the instance order of the

court system. If the time limit for appeal has gone, it is possible to turn to extraordinary

channels of appeal, e.g. to apply for the final judgment to be annulled based on a

procedural error ( tuomiovirhekantelu, chapter 31 § 1), or, apply for reversal of the

judgement ( tuomion purku, chapter 31 § 7), or, apply for a new deadline for a regular

appeal (chapter 31 § 17).



The section 6 of the Constitution of Finland provides for equality ( yhdenvertaisuus) and

states that “everyone is equal before the law. No one shall, without an acceptable

reason, be treated differently from other persons on the ground of sex, age, origin,

language, religion, conviction, opinion, health, disability or other reason that concerns

his or her person”. In procedural law, this equality translates into granting the both

parties genuinely equal opportunities to present their cases.22



The party might also decide on remaining passive or absent from the trial. The sanctions

for such passivity or absence depend on the case (whether it is dispositive or non-

dispositive), the phase of the trial (neglecting the written response, preliminary hearing,

main hearing) and the obligations placed upon the party.



If the claim is incomplete and the plaintiff does not respond to the court’s request for

supplement, the claim is dismissed without considering the merits (chapter 5 § 6).



If the respondent does not give written response in a dispositive case, a default

judgement can be given. In dispositive case, if both parties are absent from a court

hearing, the case shall be discontinued (chapter 12 § 9). Also, if the respondent is absent

from a court hearing or has not submitted a written response, the plaintiff has the right

to receive a default judgment based on his or her claim (chapter 12 § 10). Such default

judgment can be appealed in the same court that has given it (chapter 12 § 15). If a

default judgement is given against the plaintiff the claim is dismissed (chapter 12 § 12),

if against the respondent the claim is accepted (chapter 12 § 13).



In non-dispositive cases the sanctions are similar to dispositive cases. For example, if

the applicant does not respond to the court’s request, the case is dismissed without

considering the merits (chapter 8 § 7). However, due to the nature of non-dispositive

cases, the absence of another participant does not lead to default judgment but instead

the case may be considered and decided despite his or her omission (chapter 8 § 7).



1.4

Principle of Orality – Right to Oral Stage of Procedure and Principle of

Written Form



Orality ( suullisuus) alongside with immediacy and concentration is one of the most

important procedural principles in Finnish legal system since the procedural law reform



22 Jyrki Virolainen, Periaatteet prosessioikeudessa, p. 126, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012.





Part I


7




of 1993.23 Importance of orality is highlighted in the Code although not directly stated.

For example, after the written claim and response the court makes a decision whether

the preparation is continued in writing or in an oral preparatory hearing or transferred

directly to the main hearing (chapter 5 § 15). The main hearing is oral: at the beginning

the court explains what has been found out in the preliminary stage after which the

parties present their cases, evidence is obtained and finally, the parties present their

closing arguments (chapter 6 § 2). According to the Code, the main hearing shall be

oral. The parties are banned from reading written statements or making their case in

writing (chapter 6 § 3).



Orality and immediacy are in legal literature seen as interlinked as oral testimony is

considered to provide for the immediacy of obtaining evidence.24 The core of orality is

that the parties present their claims, grounds and evidence in public oral hearing either

in person or presented by lawyers.25 Evidence is presented in the main hearing and

witnesses give testimony orally. Written pleadings are not read out aloud but instead,

the case is presented by oral statements. Orality is seen to preserve both the fundamental

right to fair trial as well as the objective of finding material truth.



Although importance of orality is emphasized, both civil and criminal cases in the lower

courts become pending by a written claim, and the respondent is asked for a written

statement before the oral preliminary hearing. The main rule is that the case has to be

discussed in an oral hearing (chapter 5 § 15 c on preliminary hearing, chapter 6 § 2 on

main hearing). However, the court may decide the case without holding an oral hearing,

if it is not necessary and both parties agree on this (chapter 5 § 27a). The higher courts

may decide upon an oral hearing but this is somewhat exceptional (Court of Appeals

chapter 26 § 12 and Supreme Court chapter 30 § 20). It should also be noted that

administrative courts have adopted a written procedure as the main rule, but, oral

hearing can be arranged when necessary (Administrative Judicial Procedure Act

586/1996, § 37).





23 See travaux preparatoires: HE 15/1990 vp. The legislative reform came into force in 1993.

Principles of orality, immediacy and concentration principle were the slogan for the 1993 reform.

However, the principle had been adopted earlier in legal praxis, despite the fact that the old statute

of 1948 had still regulated a more protocol-based procedure than oral. See: Mika Huovila:

Periaatteet ja perustelut. Tutkimus käräjäoikeuden tuomioiden faktaperusteluista prosessuaalisten

periaatteiden valossa arvioituna. Suomalainen lakimiesyhdistys. Helsinki 2003, p. 72. The shift to

orality, immediacy and concentration is considered to have taken place in the legal praxis already

in the beginning of 20th century (see Committee report 2003:3, p. 205), but, the attempted

legislative shift then failed due to political reasons. See: Committee report 1901:8, p. 43-44. Also

e.g.: Kevät Nousiainen, Prosessin herruus. Länsimaisen oikeudenkäytön ‘modernille’ ominaisten

piirteiden tarkastelua ja alueellista vertailua. Suomalainen lakimiesyhdistys. Helsinki 1993, p.

540. In general it is considered that orality and immediacy are prerequisites for the free evaluation

of evidence. See, e.g.: HE 33/1997 vp., p. 27. Jyrki Virolainen – Petri Martikainen, Pro & contra.

Tuomion perustelemisen keskeisiä kysymyksiä, Talentum, Helsinki 2003, p. 200.

24 Tauno Tirkkonen: uusi todistelulainsäädäntö, WSOY, Porvoo 1949, p. 65.

25 Jyrki Virolainen, Periaatteet prosessioikeudessa, p. 173, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012.

8





Part I


1.5


Principle of Directness



Principle of directness is usually understood as immediacy in Finnish procedural law

and it is one of the most important procedural principles.26 Its core content is that the

parties’ statements and evidence must be obtained in an oral, immediate and

concentrated main hearing (chapter 17 § 8a).27 The court deciding the case must receive

the evidence at first hand without intermediaries and the decision has to be based solely

on material presented in the main hearing.28 Similar to principles of orality and

concentration, immediacy is seen to provide for both fair trial and finding the material

truth.29 In jurisprudence immediacy is sometimes considered as two-fold: first, it holds

that the judge remains the same during the whole procedure, which has been

traditionally an important definition of immediacy, and second, that the evidence is

preserved directly to the judge deciding the case.30



There are exemptions to the principle of immediacy. For example, the court may obtain

evidence outside the main hearing under certain circumstances (e.g. if a new main

hearing is organized and evidence that has been obtained earlier cannot be obtained

anew, chapter 6 § 8, or in legal assistance is asked from another court). The court has to

invite the parties to the session where evidence is obtained outside the main hearing

(chapter 17 § 8b).31 Evidence obtained outside the main hearing has to readmitted unless

there is impediment (chapter 17 § 8e).32 If there is an impediment, the court shall study

it on the basis of the material compiled during the admission of the evidence.



Also documentary evidence has to be obtained orally. The court may accept such

evidence without reading it only if its contents are known to the members of the court,



26 Jyrki Virolainen, Periaatteet prosessioikeudessa, p. 199, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012.

27 In the revised chapter 17 there will be no section on oral, immediate and concentrated main

hearing. However, the principle is left in place and can be deciphered from other sections, e.g.

chapter 17 § 56.

28 Jyrki Virolainen, Periaatteet prosessioikeudessa, p. 183, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012; Juha Lappalainen, Siviiliprosessioikeus II,

Lakimiesliiton kustannus, Jyväskylä 2001, pp. 163-173.

29 Riikka Koulu: Videoneuvottelu rajat ylittävässä oikeudenkäynnissä. Sähköisen

oikeudenkäynnin nousu, University of Helsinki Conflict Management Institute, Helsinki 2010, p.

104.

30 Mika Huovila, Periaatteet ja perustelut. Tutkimus käräjäoikeuden tuomioiden faktaperusteluista

prosessuaalisten periaatteiden valossa arvioituna. Suomalainen lakimiesyhdistys. Helsinki 2003,

p. 221.

31 The revised numbering will be chapter 17 § 57 (HE 46/2014).

32 In the revised chapter 17 evidence obtained outside the main hearing does not need to be

admitted again, unless a party has been absent and requests for it or the court considers that there

are other important reasons for admittance. The revised numbering will be chapter 17 § 59 (HE

46/2014).





Part I


9




the parties agree to the same and the same may also otherwise be deemed appropriate

(chapter 17 § 8e).33



The principle of immediacy is particularly pronounced in obtaining evidence in the

lower courts. If the second instance Court of Appeals decides upon obtaining evidence

anew, this evidence is presented in an oral and immediate hearing in the second instance

(chapter 26 § 15).34 However, the Court of Appeals can decide to decide the case solely

based on written statements if no oral testimony has to be received (chapter 26 § 14). If

the appeal is decided without an oral hearing the Court of Appeal may use the recorded

evidence from the district court to ascertain the contents of evidence when necessary

(chapter 26 § 12).



In legal praxis it is typical that the Court of Appeals receives the evidence again and

evaluates it. However, in certain civil cases a leave to continue the proceedings in an

appellate court is needed before the court takes the case into consideration (chapter

25a).



1.6

Principle of Public Hearing



Public hearing is the main rule in all court instances and national open access to public

records policy highlights its importance. According to the Act on the Publicity of Court

Proceedings in General Courts (370/2007), court proceedings and trial documents are

public unless provided otherwise in this or another Act (§ 1).



The principle means that all procedural acts including the preliminary hearing, the main

hearing, judicial inspection or other procedural session where the parties have the right

to be present or where oral testimony is presented are open to the public as well. There

are some exceptions to the principle. First, internal court actions such as evaluation of

evidence by the court and referendary presentation of the case in higher instances are

closed from parties and public.35 Second, the court may decide that oral proceedings are

closed from public under certain circumstances, e.g. if publicity would endanger the

external security of the state, or, if sensitive information regarding private life is

presented, or, if the case involves a minor (Act on the Publicity of Court Proceedings in

General Courts § 15).



1.7

Principle of Pre-trial Discovery



Principle of pre-trial discovery does not exist in the Finnish procedural system and the

Code does not provide tools for pre-trial obtaining of evidence. As the principle does



33 The rule will be changed in the revised chapter 17. According to the new chapter 17 § 54 (HE

46/2014), a document has to be introduced to extent of what is necessary.

34 The same quality standards than in the district court apply to obtaining evidence in a hearing in

the Court of Appeals. See: Supreme Court decision 2008:59.

35 Jyrki Virolainen, Periaatteet prosessioikeudessa, p. 159, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012.



10





Part I


not exist, there is no definition of its content in the Finnish system. Usually pre-trial

discovery is considered to refer to US legal system.



There are no rules in legislation or in case-law that parties should present their evidence

to each other outside the trial. According to the Code, application of summons should

include as far as possible, the evidence that the plaintiff intends to present (chapter 5 §

2). Evidence has to be named and presented in the preliminary hearing and the main rule

is that no new evidence is admitted in the main hearing.



Regardless, there are neither rules that forbid parties from presenting their evidence to

each other outside the trial. The parties may present evidence to each other before the

trial on voluntary basis. A typical example of such situation would be pre-trial

negotiations. For example, the members of the Bar Association are obliged to try to

settle the case before filing a claim.



2

General Principles of Evidence Taking



2.1

Free Assessment of Evidence



Finnish Law of Evidence is grounded in free assessment of evidence which is provided

for in chapter 17 section 2 stating 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”.36 Free assessment of evidence means that the court has the discretion to freely

evaluate what evidentiary value of each piece of evidence without such value being

regulated in advance in the Code.37 The exception to this main rule is that the court is

bound to a confession made by a party in dispositive cases (chapter 17 § 4).38 Also,

presentation of evidence is not limited to specific types of evidence or specific means.39

Parties are not allowed to agree what evidentiary value should be granted to a certain

piece of evidence and their freedom of action is connected to presenting the evidence

and to refer to which evidentiary fact is supposedly proved by each named piece of

evidence.



Free assessment of evidence gives the court a wide scope of discretion to decide what

should be regarded as the truth.40 This discretion is sometimes bound to different

material legal principles, especially in non-dispositive cases, such as the principle of the



36 The revised numbering will be chapter 17 § 1 (HE 46/2014). The new wording does not include

reference to truth but instead stipulates that the judge has to assess the weight of evidence

unbiased and in accordance with the principle of free assessment of evidence.

37 Jyrki Virolainen, Periaatteet prosessioikeudessa, p. 212, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012.

38 For further information, see Supreme court decision 2005:123 and 2003:54. The revised

numbering will be chapter 17 § 5 (HE 46/2014).

39 Jyrki Virolainen, Periaatteet prosessioikeudessa, p. 122, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012.

40 See: Juha Lappalainen, Yleistä todistelusta, p. 595, in Dan Frände et al. (ed.), Prosessioikeus,

4th ed., Sanoma Pro 2012.





Part I


11




best interests of the child in custody cases (Act 361/1983, § 10), or the best interest of

an incompetent person in guardianship cases (Guardianship Services Act 442/1999, §

1). Also employment cases which are dispositive operate on a reverse burden of proof

which means that when the employee appeals the cancellation of the employment

contract, the employer has to show that there has been acceptable grounds for his or her

action. In addition, the judgments of the Courts of Appeals and precedents of the

Supreme Court direct the evaluation of evidence in the lower courts. In jurisprudence

different theories are developed to assist the evaluation, e.g. preponderance of evidence

theory41 or evidentiary value theory.42 However, none of the evidence theories has been

adopted as a dominant theory in legislation or legal praxis.



2.2

Relevance of Material Truth



Traditionally in jurisprudence, material truth has been considered to be the objective of

trial proceedings, although a concession is made that as material objective truth is rarely

reachable, the goal is to settle on the procedural truth.43 However, after joining the

ECHR, the principle of fair trial has become more and more pronounced. Although

these two principles, material truth and fair trial, are interlinked, it is considered that to

some extent different means are needed to provide for each of them.



The principle of material truth is provided for in the legislation (chapter 17 § 2). In

jurisprudence, material truth refers to convincing the court’s assessment of evidence that

the referred claim about certain circumstance corresponds with a real life fact.44 The

principle is more pronounced in non-dispositive cases where the court has the discretion

to obtain evidence on its own initiative.



The revised chapter 17 § 1 will not include a reference to material (or procedural) truth

but instead stipulates that the judge has to evaluate unbiasedly the relevance and weight

of all evidence presented in the case. Although the legal status quo does not change as

the result of the reform of chapter 17, removal of the reference to material truth displays

its decreasing significance as the objective of civil procedure.45



There are limitations to the principle of material truth. For example, chapter 17 section

11 of the Code prohibits from admitting as evidence a private written statement drawn



41 See closer e.g.: Timo Saranpää, Näyttöenemmyysperiaate riita-asiassa, Suomalainen

lakimiesyhdistys, Helsinki 2010, p. 295.

42 See e.g: Jaakko Jonkka, Todistusharkinnasta, Lakimiesliiton kustannus, Helsinki 1993.

43 See e.g.: Hannu Tapani Klami – Marja Rahikainen – Johanna Sorvettula, Todistusharkinta ja

todistustaakka. Johdatus todistusoikeuden perusteisiin, Lakimiesliiton kustannus, Helsinki 1987,

pp. 18-22.

44 Mika Huovila, Periaatteet ja perustelut. Tutkimus käräjäoikeuden tuomioiden faktaperusteluista

prosessuaalisten periaatteiden valossa arvioituna. Suomalainen lakimiesyhdistys. Helsinki 2003,

p. 192.

45 Government’s proposal HE 46/2014 vp p. 45.

12





Part I


up for the purpose of a pending or imminent trial and an oral statement entered or

otherwise stored in the record of a criminal investigation or another document.46



There exists a general obligation to testify in Finnish law of evidence. It is provided for

in chapter 17 section 20 of the Code. However, certain relatives of the parties need not

testify against their will. Also, the president of the Republic may not be called as a

witness (chapter 17 § 22).47 There are limitations to hearing witnesses. Limitations

include public officials who may not witness on circumstances they are bound to keep

secret due to this function, medical personnel, attorneys and legal counsel, mediators

and priests (chapter 17 § 23).48



In addition, there is an obligation to present a document when it can be assumed that a

document is of significance as evidence in a case. However, the obligation does not

extend to the relatives of an accused, to public official if the document contains

information the official would not be allowed to testify upon, or to personal notes and

correspondence unless there is unless very important reasons require its presentation

(chapter 17 § 12).49 Also, the author, publisher or broadcaster of mass communication

may refuse to reveal the identity of his or her source (chapter 17 § 24).50



Still, there is no obligation to be heard as an expert witness, unless he or she is under the

obligation to serve as an expert witness by virtue of public office or function or on the

basis of a special provision (chapter 17 § 46).51 Neither is an expert witness obligated to

disclose a business or professional secret, unless very important reasons otherwise

require (chapter 17 § 48).52



There are limitations to propose new facts and evidence ( ius novorum) in Finnish law,

as is discussed above. Mainly, new facts have to be pleaded before the end of the

preliminary stage and the higher courts do not allow new facts or evidence unless the

party demonstrated a legitimate grounds why these could not be presented earlier.



The standards for material truth are set higher in criminal cases and non-dispositive civil

cases than in dispositive cases. Most evidence theories consider that the view more

likely corresponding with reality and which is enough to convince the judge fulfils the

standards set for material truth.





46 The revised numbering for the ban of written testimonies will be chapter 17 § 24.

47 The revised numbering will be chapter 17 § 32.

48 The revised numbering will be chapter 17 § 11-14, 16-17.

49 The rule will be changed to some extent in the revised chapter 17. The revised chapter 17 § 38

(HE 46/2014) stipulates that the court may demand that a document is presented regardless of any

confidential information, if it can be presented without revealing said information. However, if

the witness has the right or obligation to refuse from testifying, the same right or obligation

extends to documents in his or her possession. The revised numbering will be chapter 17 § 9.

50 The revised numbering will be chapter 17 § 20.

51 The revised numbering will be chapter 17 § 9.

52 The revised numbering will be chapter 17 § 19.





Part I


13




3

Evidence in General



3.1

Methods and Standards of Proof



Unlike parties in civil cases or the accused in criminal cases, witnesses are required to

give oath before they are allowed to testify (chapter 17 § 28). In the revised chapter 16

some changes regarding the oath will be introduced. After the reform is in force, all

witnesses will give an affirmation on their honour and conscience and there will be no

longer the possibility to choose between an oath on religion and affirmation.53



Witnesses under oath are often considered to give a more realistic narrative than parties

who can be heard for probative purposes in their own case. Also authenticated

documents and documents registered by authorities are usually considered to have more

evidentiary value than other documents.



In Finnish civil procedure free assessment of evidence is the main rule. However, legal

presumptions in material law are an exemption to this main rule. According to the Code,

when there is a special provision in law on the significance of a piece of evidence, this

shall apply (chapter 17 § 2).54 Legal presumptions are rare: the classic examples are the

presumption of husband’s paternity when the mother was married at the time of birth

(Paternity Act 700/1975, § 2, pater est presumption) and the presumption that jointly

owned property is owned in equal shares if nothing else is proved. In legal literature this

provision is considered to have little meaning as a legal presumption can be overturned

by evidence. Therefore legal presumptions can be described as rules on the burden of

proof instead of as predetermined weight of evidence. Thus, when a party claims that

the presumption is invalid, he or she has the burden to demonstrate this by evidence.55



In addition to legal presumptions, a notorious facts do not have to be proven. Also, the

court is bound by a party’s confession, as discussed above. Outside these, there are no

rules on predetermined weight of evidence. There are no rules in the Code or in case-

law, which would stipulate preference to particular types of evidence.



In jurisprudence it is considered that free assessment of evidence requires the so called

free evidence presenting which means that there are no a priori limitations to what can

be presented as evidence.56



Standards for proof are in the current doctrine understood through the norms on burden

of proof which regulate against which party an unsolved claim about a legal fact falls.

The court has to present grounds for assessing evidence in its decision (chapter 24 § 4).

Usually in jurisprudence the level of proof that is enough to convince the judge is

referred to by words “presumable”, “probable”, “evident” or “definite”. In practice,



53 The revised numbering will be chapter 17 § 44.

54 The revised numbering will remain the same, chapter 17 § 2.

55 See: Juha Lappalainen, Yleistä todistelusta, p. 596, in Dan Frände et al. (ed.), Prosessioikeus,

4th ed., Sanoma Pro 2012.

56 ibid p. 598.

14





Part I


“sensible preponderance of evidence” is considered to fulfil the burden of proof.57

Besides these formulations of provisions, there are no minimum standard of proof to

consider a fact as establish in Finnish procedural law.



The proper wording of standards of proof has been discussed in the revision of chapter

17. In the end, the wording “credible proof” was chosen, although also this wording has

some inherent difficulties. During the parliamentary process the Law Committee

emphasized that the chosen wording is not meant to change the existing status quo.58



3.2

Means of Proof



Numerus clausus principle is not recognized in Finnish law of evidence. Although the

Code regulates only certain types of evidence, documentary evidence (chapter 17 § 11),

witnesses (chapter 17 § 18), expert witnesses (chapter 17 § 44), judicial inspection

(chapter 17 § 56) and hearing of a party (chapter 17 § 61), other types are allowed as

well.



This status quo will not be changed by revised chapter 17 for the most part. However,

the revised regulation will include the ban for the invocation of evidence, which has

been obtained by illegal means. In addition to this, evidence that has resulted from

torture is not accepted. This revision means a change to the previous status quo, which

has adopted a negative stance towards such bans. According to the earlier doctrine, such

errors in obtaining evidence can be corrected through the concept of evidentiary value,

which would be more in accordance with the free assessment of evidence. However, the

ban on illegal evidence is considered necessary in order to give more protection to the

ban of self-discrimination, i.e. a person is not obliged to testify, if he or she would

discriminate himself or herself by testifying. In the legislative process the relationship

between such a ban and the case-law of the European Court of Human Rights was

closely discussed.59



Also, the revised chapter 17 distinguishes between the ban of certain themes in evidence

( todistusteemakielto), ban of certain ways of obtaining evidence ( todistuskeinokielto)

and ban on certain methods ( todistusmetodikielto). The ban on themes refers to the

obligation of a lawyer to refuse from testifying on confidential information received

under the lawyer-client privilege. The ban on ways of obtaining evidence means that

evidence cannot be obtained against the ban of self-indiscrimination. The ban on

methods means that no leading questions may be posed. However, the boundaries

between these concepts are difficult to maintain, as is stated in the Government’s

proposal.60





57 ibid. p. 684. Juha Lappalainen, Näytön arviointi, p. 695, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012.

58 Law Committee’s Memorandum 19/2014 vp.

59 Government’s Proposal 46/2014 vp, p. 26. The ban will be included in chapter 17 § 25 (HE

46/2014).

60 Government’s Proposal 46/2014 vp, p. 26.





Part I


15




3.2.1 Party Statements



In Finnish civil procedure, there are no means of evidence which would be excluded

from possible modes of proof. This is considered to follow from free assessment of

evidence. However, there is a rule that evidence on notorious facts or facts that the court

knows ex officio need not be proven (chapter 17 § 2).61 Also the court shall not admit

evidence, which is not material to the case or that has already been proven, or if the fact

can be proven in another manner with considerably less inconvenience or cost (chapter

17 § 7).62



This means that all parties may testify in a civil case. Also under-aged parties may give

an oral statement. If a party is under 15 years old or mentally incapacitated, the court

may hear him or her for probative causes, if it is considered appropriate and if the

hearing is central to the clarification of matter and the hearing would not cause him or

her suffering (chapter 17 § 21).63



A party’s obligation to testify or right to refuse differs to certain extent from witness’

obligation to give testimony. A party may be obligated to attend the court session

personally in order to help clarifying the case. His or her presence can be forced by

threat of fine and the court can also order him or her or his or her legal representative to

be brought to the hearing or to a later hearing (chapter 12 § 19).64 However, threat of

fine cannot be used to parties under 15 years or mentally incapacitated. Regardless,

there are no sanctions that can be taken if the party refuses to answer a specific question

in the main hearing. However, such refusal can have evidentiary value.65 There are no

grounds for such refusal in legislation or case-law as the party does not have a witness’

obligation to testify.



Parties’ statements are considered to be evidence in the Finnish procedural law. The

provisions on the hearing of a witness apply, in so far as appropriate, to the hearing of

the party (chapter 17 § 61).66 The party does not give oath as he or she speaks in his

own case, but, under specific circumstances it is possible to request that the party gives

affirmation.



The revision of chapter 17 abolishes the possibility to hear a party under oath or

affirmation. The parties’ still have the responsibility to answer truthfully, although they

have no obligation to self-discriminate themselves. Also, the parties do not have the

obligation to answer all the questions, but the meaning of such refusal can be assessed

according to the free assessment of evidence.67



61 The revised numbering will be chapter 17 § 5 (HE 46/2014).

62 The revised numbering will be chapter 17 § 8 (HE 46/2014).

63 The revised numbering will be chapter 17 § 27 (HE 46/2014).

64 The revised numbering will be chapter 17 § 62 (HE 46/2014).

65 Juha Lappalainen, Todistuskeinot, p. 667, in Dan Frände et al. (ed.), Prosessioikeus, 4th ed.,

Sanoma Pro 2012.

66 The revised numbering will be chapter 17 § 26 (HE 46/2014).

67 Government’s Proposal 46/2014 vp, p. 29-30.

16





Part I


However, the parties have an obligation to tell the truth (chapter 14 § 1).68 The parties

are heard before witnesses in the court session. In a civil case a party may be heard

under affirmation on circumstances especially relevant to the resolution of the case

(chapter 17 § 61).69 A party may also be heard under affirmation as to the type and

quantum of the damage he or she has suffered because of an offence. However,

requesting an affirmation from the party is exceptional in the legal praxis. Also the

opposing party can request that other party be heard.



There is a provision on the consequences of a party not testifying although obligated to

be present at the court session. According to chapter 17 section 5 of the Code, if,

regardless of a court order and without a valid reason, a party fails to appear in court or

otherwise fails to fulfil something in a trial or fails to respond to a question intended to

clarify the case, the court shall, taking into consideration all the facts available in the

matter, consider what effect the conduct of the party has as evidence.70



There are no rules in legislation about assessing party hearing as evidence. However, in

practice party hearing is often considered subjective which affects its evidentiary value.



If a party is heard under affirmation, the consequences of a perjury are the same as

regarding witnesses. According to the chapter 15 section 1 of the Criminal Code of

Finland, if a party to a matter in court, when heard under affirmation makes a false

statement in the matter or without lawful cause conceals a pertinent circumstance, that

person shall be sentenced for a false statement in court to imprisonment for at most

three years.



3.2.2 Formally Prescribed Types of Evidence and Cheque Disputes



There are no formally prescribed types of evidence for proving certain facts in Finnish

legal system.



However, if the plaintiff’s claim is based on a cheque, bill of exchange or negotiable

promissory note, such document has to be annexed to the applocation for the summons

as an original (chapter 5 § 14).71 The importance of cheques has declined significantly

since the 1980’s and they have little practical meaning in the legal praxis nowadays.



3.2.3 Different Types of Evidence



As discussed earlier, the Finnish procedural law has adopted free assessment of

evidence, which means that there are no rules in legislation about the evidentiary value



68 The revised numbering will be chapter 17 § 26 (HE 46/2014).

69 This will be no longer possible after the revision (HE 46/2014) comes into force, as stated

above.

70 The revised numbering will be chapter 17 § 6 (HE 46/2014).

71 In the revision of chapter 17 this obligation has been revised. A private document may be

presented, if the plaintiff’s claim is based on a cheque. The revised numbering will be chapter 17

§ 24 (HE 46/2014).





Part I


17




of certain types of evidence. However, some guidelines have been developed in legal

praxis through logical persuasiveness.



As stated above, the revision of chapter 17 will introduce a ban on evidence, which has

been obtained illegally. Evidence obtained through torture is always excluded. Also,

illegally obtained evidence is also excluded, if there are important grounds for this

considering all aspects of the trial.72



Typically, there are no means of evidence which can be applied only after the modes of

proof required by the law become impossible. However, the court gives and order for

DNA testing in paternity cases only after the possibility of paternity is shown to be

probable (700/1975 paternity act). Different types of evidence is used to prove different

types of facts. Usually, expert opinions are used in cases where the court lacks

knowledge own a specific matter, e.g. in patient injury cases.



In addition, no evidence on known facts is needed. Chapter 17 section 3 states that “a

fact that is notorious or known to the court ex officio need not be proven. In addition, no

evidence need be presented on the contents of the law. If the law of a foreign state is to

apply and the court does not know the contents of this law, the court shall exhort the

party to present evidence on the same.”73 The content of foreign law forms an exception

to the jura novit curia principle.



Also, some facts such as official ownership of real estate are shown by excerpts from

public records.



In addition, there are forms requirements in material law. For example, a prenuptial

agreement has to be registered in the magistrate in order to become effective (234/1929

Marriage Act) as well as a deed for purchase of real estate has to be simultaneously

undersigned by the parties and a public official (540/1995 Code of Real Estate). These

forms requirements are connected with the issue of evidentiary value as following the

form requirements is considered to show that evaluation of true intention of the

contracting parties has been conducted already at the time of registration. Yet, a last will

has to be done in writing and witnessed by two unbiased persons in order to become

effective, although the inheritance code regulates also the possibility to give a

nuncupative will (40/1965 Inheritance Code).



3.3

Duty to Provide Evidence



As stated before, the parties in dispositive cases have the obligation to provide evidence

to present their claims, grounds and evidence they refer to demonstrate the validity of

their claims.74 The court’s right to obtain evidence on its own initiative is seldom



72 The revised numbering will be chapter 17 § 25 (HE 46/2014).

73 The revised numbering will be chapter 17 § 4 (HE 46/2014).

74 Chapter 17 section 1 states that ”in a civil case the plaintiff shall prove the facts that support the

action. If the defendant presents a fact in his or her favour, also he or she shall prove it.” The

revised numbering will be chapter 17 § 2 (HE 46/2014).

18





Part I


practiced in dispositive cases. Regardless, in non-dispositive cases such as child custody

and access, guardianship and paternity the court usually obtain the necessary evidence

by asking the social welfare board for a statement or by ordering DNA tests.



According to chapter 17 section 5, if the party fails to present evidence, the court shall,

taking into consideration all the facts available in the matter, consider what effect the

conduct of the party has as evidence. However, there is no obligation to present specific

evidence and it is possible for the party to proceed an action without presenting

evidence. In doing so, she or he takes the risk of the case being dismissed and having to

answer for the adversary’s legal expenses.



Third persons have the general obligation to witness, as stated before. Also, the

obligation to present an original document in court can be placed upon third persons as

well. If a third person fails to present the document, a conditional fine can be imposed

and also ordered enforceable (chapter 17 § 17). If a third person does not comply the

summons to be a witness, the threat of a fine can be imposed and ordered enforceable

(chapter 17 § 36).75 If on the basis of the conduct of the witness or another person to be

heard in person for probative purposes, it can be assumed that he or she will not comply

with the subpoena to arrive in court, the court may order that he or she be brought to

court.



In dispositive civil cases a final judgment has the so called positive res judicata

( oikeusvoima) effect which means that the earlier decision cannot be contested in a later

trial, but instead, it is binding to the court deciding on the latter case.76 However, res

judicata effect should not be mixed with the earlier decision’s evidentiary value. The

court assesses what value as evidence the earlier judgment has based on free assessment

of evidence. In legal praxis, both civil and administrative decisions have a high

evidentiary value.



4

General Rule on the Burden of Proof



4.1

Doctrine Behind Burden of Proof



The court assesses whether there has been enough evidence to meet the burden of proof.

The current doctrine of burden of proof states which party shall bear the consequences

of not meeting the demand for evidence. If there has not been enough evidence to

demonstrate that a party’s claim about a legal fact should be considered true, the claim

is then rejected. It is also possible that the burden of proof shifts from the party to

another as the party responsible for meeting the burden fulfils his or her task.77





75 The revised numbering will be chapter 17 § 62 (HE 46/2014).

76 Juha Lappalainen, Tuomion oikeusvoima, p, 738, in Dan Frände et al. (ed.), Prosessioikeus, 4th

ed., Sanoma Pro 2012.

77 Juha Lappalainen, Näytön arviointi, p. 686, p. 212, in Dan Frände et al. (ed.), Prosessioikeus,

4th ed., Sanoma Pro 2012.





Part I


19




Standards for the burden of proof vary in different fields of material law and are most

often developed in jurisprudence, as stated before. Usually experience-based probability

has been granted considerable meaning in assessing whether the burden of proof has

been met.78 The Supreme Court’s precedents do not include clear-cut standards for

evaluating when there has been sufficient level of evidence to convince the judge, but

instead, the Supreme court grounds its decisions on burden of proof and whether the

party holding the burden has fulfilled it. In jurisprudence it has been suggested that the

court decides for the option, which is more likely than the opposite.79



As stated before in 3.2.3, notorious facts and the content of legislation are exempts from

the burden of proof. However, if the law of a different country is not known by the

court, the party has the obligation to explain its content (chapter 17 § 3).80 Regardless,

doctrine of jura novit curia is essential to Finnish procedural law. The doctrine obliges

the court to know the law: legislation, legal praxis and jurisprudence and to state in its

decision the applied sections of a law.81



4.2

Duty to Contest Specified Facts and Evidence



The plaintiff has the responsibility to present his claim, its grounds and name the

evidence he is going to present to meet the burden of proof already in his original claim

(chapter 5 § 2). Correspondingly, in his or her reply the defendant has to state whether

he or she accepts or contests the action, the grounds for contesting, and to list the

evidence he or she intends to present (chapter 5 § 10).



After the preliminary written stage, in the preliminary hearing, it is determined what are

the claims and grounds of the parties, which issues are under dispute, what evidence is

going to be presented in the main hearing and what is intended to be proved with each

piece of evidence (chapter 5 § 19). The court is responsible for determining these issues

and to ensure that the parties state all the circumstances they intend to invoke. If a

written or oral statement of a party is unclear or incomplete, the court shall put the

questions to him or her that are necessary to clarify the matter. Also, the court shall

ensure that nothing irrelevant is brought into the case and that no unnecessary evidence

is presented in the case (chapter 17 § 21).82



It is much discussed how much of material conduct of procedure can the court

administer to advice parties when their proposed evidence is incomplete. Especially, if

the party is presented by a legal counsel, excessive guidance to one party is sometimes

seen to endanger the court’s neutrality. In small claims cases where a consumer is rarely

presented by an attorney, the court’s instruction is often considered to provide for the

equality of arms. However, the extent of such guidance is left on the court’s own



78 ibid. p. 692.

79 ibid. p. 695.

80 The revised numbering will be chapter 17 § 4 (HE 46/2014).

81 E.g.: Jyrki Virolainen, Periaatteet prosessioikeudessa, p. 212, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012.

82 The revised numbering will be chapter 17 § 8 (HE 46/2014).

20





Part I


discretion. Regardless, the court is responsible for ensuring that claims, grounds and

evidence is presented and to ascertain which issues are under dispute. Fulfilling these

tasks cannot be considered to violate the principle of neutrality.



The court has the obligation to inform the parties of their responsibilities both in

summons and in the hearing.



As stated before, if the party does not comply with his or her obligation to present

evidence and does not have a justified reason for this, the court evaluates what bearing

the party’s conduct has as evidence.



4.3

Collecting Evidence on the Court’s Own Initiative



As stated above, the court may obtain evidence on its own initiative in civil cases. This

freedom of action is provided for in chapter 17 section 5 of the Code. The right is

usually not exercised in civil dispositive cases where an out-of-court settlement between

the parties is acknowledged.



The revision of chapter 17 has taken this into consideration, as discussed above.



However, in non-dispositive cases such as child custody and access, guardianship and

paternity it is commonplace that the court asks for the social board's statement (Act on

Child Custody and Access) or orders a DNA test. In non-dispositive cases it is

considered that there is a public interest which requires the court to assume an active

role in obtaining the necessary information for deciding the case.



The court may allow additional submission of evidence if new facts become known

during presentation of evidence. According to chapter 6 section 9 of the Code, the party

claiming a new circumstance has to show a legitimate reason why the circumstance was

not referred to before the main hearing. Such a legitimate reason could be that the party

could be that the party did not know about the piece of evidence before the hearing.

Also, new evidence may be admitted if the parties agree to this.



As stated earlier in 3.3, a party or a third person may be obliged to present a document

in court under the threat of a fine. Thus, a party does have means to obtain evidence that

he is not possessing. Also, it is considered in jurisprudence that while assessing burden

of proof, the obligation to present evidence should be placed upon the party who has the

best opportunity to present the needed evidence.83



5

Written Evidence



Written documents are one of the means of evidence mentioned in the chapter 17 of the

Code. Written document is defined as a physical piece of evidence whose evidentiary

value is connected with its content. In jurisprudence, a distinction is made between such



83 E.g. Juha Lappalainen, Näytön arviointi, p. 693, p. 212, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012.





Part I


21




written documents and objects of inspection such as graphological samples, photos,

maps or video recordings which have evidentiary value based on their visual content. A

written document can be electronic audio or video recording as well if it can be printed

to a readable form.84



As the means and types of evidence are not restricted in Finnish law of evidence, there

are no prohibitive rules governing which types of electronic documents would be

recognized and which not. Also, due to the free assessment of evidence their probative

value has not been regulated.



The principle of free methods of evidence is emphasized in the revision of chapter 17.

However, the ban on illegal evidence will change the previous status quo, as discussed

above. Still, the revised sections of chapter 17 highlight that the court can use witness or

party testimonies, expert statements, documents, objects, private documents and

correspondence (though under some restrictions) and conduct examination of a place,

real estate or an object.85 According to the travaux preparatoires, such an examination

can be done to electric records, methods of saving data to databases etc.86



Generally speaking, electronic documents are considered to fulfill the form requirement

of written form. In addition, electronic documents delivered to the authorities do not

have to be signed, if the document includes sender information and there is no

uncertainty about the originality or integrity of the document (13/2003 Act on

Electronic Services and Communication in the Public Sector 9 §).



Electronic signatures are provided for by Act on Electronic Signatures (14/2003) which

enables legal actions to be completed through electronic signatures.87 According to the

section 2 of the Act, electronic signature is defined as “data in electronic form which are

attached to or logically associated with other electronic data and which serve as a

method of authenticating the identity of the signatory”. Advanced electronic signature

“means an electronic signature a) which is uniquely linked to the signatory; b) which is

capable of identifying the signatory; c) which is created using means that the signatory

can maintain under his sole control; and d) which is linked to other electronic data in

such a manner that any subsequent change of the data is detectable.”



The Act on Electronic Signatures is based on the directive 1999/93/EC of the European

Parliament and of the Council on a Community framework for electronic signatures.88



84 Juha Lappalainen, Todistuskeinot, p. 621, in Dan Frände et al. (ed.), Prosessioikeus, 4th ed.,

Sanoma Pro 2012.

85 The revised numbering will be chapter 17 § 38 (HE 46/2014).

86 Government’s Proposal 46/2014 vp p. 100.

87 ”If the law requires that a signature be attached to a legal act, this requirement shall be fulfilled

at least by an advanced signature based on a qualified certificate and created by means of a secure

signature-creation device” (617/2009, 18 §).

88 HE 36/2009 vp., p. 5. More on electronic signatures in Finnish law of obligations, see: Ilja

Ponka, Sähköinen tunnistaminen ja allekirjoitus Suomen velvoiteoikeudessa, Unigrafia Oy,

Helsinki 2013.

22





Part I


Thus, the requirement of written form is fulfilled with electronic documents and

electronic signatures are generally accepted. Regardless, the question of fulfilling

stricter requirements, e.g. the form requirement for a last will (written form, two

witnesses simultaneously present with the testator at the moment of signing etc.), by

electronic means has not yet risen in legal praxis.



Due to the free law of evidence, other types of written evidence than ones listed in the

Code can be presented. Their probative value is assessed in casu according to the

principle of free assessment of evidence.



5.1

Public and Private Documents and Presumption of Correctness



As stated above, there are some legal presumptions of correctness, e.g. the husband’s

paternity and that joint owners have equal shares if nothing else is proved. In addition, it

follows from the public credibility of a register that excerpts from public records are

considered to have very high evidentiary value.



Although some documents have a priori high evidentiary value, the circumstances in

which such document could alone form the base of a judgment are limited. However, a

final judgment in a civil case has positive res judicata effect which means that if a

preliminary question such as existence of a legal relationship is res judicata, that

judgment has to be placed as a starting point in a trial concerning the effects of such

relationship.



In legislation there is no distinction between the evidentiary value of private and public

documents, although the distinction between these types of documents is made.89 The

evidentiary value is decided on in casu basis.



All documents can be contested. The evidentiary value of written documents is based on

the assumption that they are genuine. However, in legal praxis the authenticity of

documents is rarely contested as the parties’ difference of opinion usually concerns how

the document should be interpreted and what is its evidentiary value.



Falsification of evidence is punishable under chapter 15 sections 7 and 8 of the Criminal

Code. A person, who for the purpose of having an innocent person sentenced or

otherwise to cause damage to another person, conceals, destroys, defaces, alters or

otherwise falsifies an object, document or other item necessary as evidence before a

court or in criminal investigations and that he knows to be of significance in the matter,

shall be sentenced for falsification of evidence to a fine or to imprisonment for at most

two years. A sentence for falsification of evidence shall be imposed also on a person

who, for a purpose referred to in subsection 1, submits a piece of evidence that he or she

knows to be false or falsified to be used as evidence in court or in criminal

investigations, or himself or herself uses it in a misleading manner (7 §). Aggravated



89 Juha Lappalainen, Todistuskeinot, p. 621, in Dan Frände et al. (ed.), Prosessioikeus, 4th ed.,

Sanoma Pro 2012.





Part I


23




falsification of evidence is punishable by imprisonment from four months up to six

years (8 §).



5.2

Taking of Evidence



The main rule is that the parties are responsible for producing evidence. This obligation

is stated in the code. According to chapter 17 section 1, the plaintiff shall prove the facts

that support the action. If the defendant presents a fact in his or her favour, also he or

she shall prove it.



If the court decides to obtain evidence on its own initiative, it has more coercive power

to ask for documents than the parties as it has a sanction mechanism. Also, legal aid

between different officials is possible. There are no general provisions on how the court

would ask for such written evidence. In child custody cases the court sends the trial

material to the social board's and asks for their statement (Act on Child Custody and

Access). A DNA test is conducted by the court giving a decision assigning the parties to

give blood samples.



According to chapter 17 section 8e, the court may order that documentary evidence be

admitted in the main hearing without reading it only if its contents are known to the

members of the court, the parties agree to the same and the same may also otherwise be

deemed appropriate. However, this section is slightly changed by the revision of chapter

17, as discussed above.



A starting point is that original written copies have to be presented at court unless the

court holds a copy to be sufficient. Thus, it is not necessary to produce the documents in

their original version in most cases. Also, if the document contains information that the

party need not present or must not present, or if it otherwise contains information that is

not to be disclosed, an extract from the document shall be presented from which said

information has been deleted (chapter 17 § 11b).



6

Witnesses



6.1

Obligation to Testify



As stated above, a witness may not refuse to testify. If a witness refuses without a valid

ground, coercive measures can be taken (chapter 17 § 36).90 However, there are

exceptions to this main rule. First of all, in a civil case, a person may not be heard as a

witness if the eventual judgment will be to his or her benefit or detriment as if he or she

were a party. Second, a fiancé or spouse of a party, a direct ascendant or descendant of

the party or their spouses and the siblings of the parties do not have to testify against

their will (chapter 17 § 20).91



90 The revised numbering will be chapter 17 § 62 (HE 46/2014).

91 The revised wording changes the status quo to some extent. According to the revised chapter 17

§17 (HE 46/2014) the spouse or ex-spouse, current common law partner, sibling, or ascending or

descending relatives may refuse from testifying.

24





Part I


The court calls the witnesses to court, unless this has been entrusted to a party (chapter

17 § 28).92



If a witness refuses to testify she or he must come to the court to mention the grounds

for the refusal and show a plausible reason for it. Mentioning the grounds for refusal

and evidence on the relationship is sufficient. The court has the obligation to inform the

witness when she or he has a right to refuse giving testimony.93 The court has no

discretion to evaluate whether the witness’ grounds are acceptable if the relationship has

been established. When the witness decides to testify in spite of her right to refuse, she

is obligated to answer questions of both parties.94 In jurisprudence it has been

considered that no evidentiary value can be granted to witness’ refusal.95



In addition to this close relation’s right to refusal, the Finnish law of evidence regulates

which persons are considered unfit to testify. Persons under fifteen years and mentally

incapacitated person may be heard as a witness the court deems this appropriate and if

hearing him or her personally is of central significance to the clarification of the matter;

and hearing the person would probably not cause said person suffering or other harm

that can injure him or her or his or her development (chapter 17 § 21).96 Witnesses

under fifteen years or mentally incapacitated do not give oath and no coercive measures

may be used against him or her. However, such a witness may be brought to court

(chapter 17 § 38).97



Privilege against self-discrimination is recognized in Finland. As discussed, this right is

further accentuated in the revision of chapter 17. According to chapter 17 section 24 of

the Code, a witness may refuse to reveal a fact or answer a question if he or she cannot

do so without incriminating himself or herself or a person who is related to him or her.98



6.2

Obligation to Give Evidence



There are other limitations regarding witnesses than being unfit to testify. First, the

President of the Republic may not be called as a witness (chapter 17 § 22).99 Second,

certain witnesses are bound to professional secrecy. These limitations to giving

testimony are listed in the Code and their scope of application is specified in legal

praxis.





92 The revised numbering will be chapter 17 § 41 (HE 46/2014).

93 Juha Lappalainen, Todistuskeinot, p. 639, in Dan Frände et al. (ed.), Prosessioikeus, 4th ed.,

Sanoma Pro 2012.

94 See Supreme Court decision 1985 II 93.

95 Lauri Hormia, Todistamiskielloista rikosprosessissa II. Oikeudellinen tutkimus., p. 74,

Suomalainen lakimiesyhdistys, Helsinki 1979.

96 The revised numbering will be chapter 17 § 27 (HE 46/2014).

97 The revised numbering will be chapter 17 § 64 (HE 46/2014).

98 The revised numbering will be chapter 17 § 18 (HE 46/2014).

99 The revised numbering will be chapter 17 § 32 (HE 46/2014).





Part I


25




These limitations are not absolute. The court can, if very important reasons demand it,

oblige a witness to reveal confidential information. However, the court’s session may

then be held without the public. In jurisprudence, it is often perceived that such very

important reasons actualize mostly in criminal cases and rarely in civil cases.100 Still,

right to refuse revealing professional secrets does not exempt the witness from coming

to the court session, giving an oath of an affirmation or to testify on other facts and

circumstances.



Status-bound limitations to giving testimony are acknowledged when a witnesses has

access to information based on his or her profession. Professional secrecy expands to

official secrets, state secrets, doctor-patient and attorney-client privileges and

mediator’s confidentiality. According to chapter 17 section 23 a public official may not

testify on matters he or she is bound to keep secret in his function.101 Also medical

personnel and their assistants may not testify on what they have learned in the practice

of their profession unless the patient consents to such testimony, an attorney or counsel

may not reveal facts entrusted to him or her for the pursuit of the case, unless the client

consents to such testimony. Also mediators are bound to keep secret regarding the

mediated matter, unless particularly important reasons require that he or she be heard, or

the person for whose benefit the duty of confidentiality has been provided consents to

such testimony. However, these limitations do not apply if the public prosecutor has

brought a charge for an offence punishable by imprisonment for six years or more.



A party may contest the court’s evaluation of professional secrecy when appealing the

judgment.



In addition, a witness may refuse to give a statement which would reveal a business or

professional secret unless very important reasons require that the witness be heard

thereon (chapter 17 § 24).102 If a CEO would refuse testimony based on business

secrets, his refusal would be accepted unless very important reasons require his

testimony. Evaluation of such reasons is at court’s discretion. The Code does not define

the scope of business secrets. It makes no difference if the private company is a holder

of public service. However, public law entities have more limited definition of trade

secrets, so, somewhat different criteria would be applied to them.



As stated before, a state official may not reveal official secrets. Breach of official

secrecy is punishable by fine or imprisonment up to two years (Criminal Code, chapter

40 § 5). The scope of official secrets is defined by administrative legislation. The

obligation and right to refuse testimony based on secrecy requires that giving testimony

would result in criminal liability.103





100 Juha Lappalainen, Todistuskeinot, p. 649, in Dan Frände et al. (ed.), Prosessioikeus, 4th ed.,

Sanoma Pro 2012.

101 The revised numbering will be chapter 17 § 12 (HE 46/2014).

102 The revised numbering will be chapter 17 § 19 (HE 46/2014).

103 Juha Lappalainen, Todistuskeinot, p. 640, in Dan Frände et al. (ed.), Prosessioikeus, 4th ed.,

Sanoma Pro 2012.

26





Part I


A journalist may refuse to answer a question on the identity of the source of the

information upon which the communication was based, as well as a question which

cannot be answered without identifying the source of the information which right is

provided for in chapter 17 section 24 of the Code. Regardless of this protection of

sources the witness may be ordered to testify in a case which is punishable by

imprisonment for six years or more.104



According to the Church Act chapter 5 section 2, a priest has an absolute responsibility

to keep secret what has been told to him in private confession. If someone confesses to a

priest that he or she is preparing to commit a crime, the priest has the obligation to

advise the person to contact the officials. If the person does not comply with this advice,

the priest has to inform the officials about the future crime in advance but without

disclosing the identity of the person in question. No principle can outbalance the priest’s

secrecy.105



A medical doctor and other medical personnel are bound to secrecy if the patient does

not consent to revealing such information. As stated before, the doctor may be ordered

to testify in a case which is punishable by imprisonment for six years or more.106



An attorney is bound to secrecy based on attorney-client privilege in respect of what the

client has entrusted to him or her for the pursuit of the case, unless the client consents to

such testimony. An attorney may be ordered to testify in a case which is punishable by

imprisonment for six years or more. However, the counsel of the defendant cannot be

ordered to testify even in cases concerning aggravated crimes.107



Also mediators are bound to secrecy. They may be ordered to testify in a case which is

punishable by imprisonment for six years or more.108



6.3

Oath



Before giving his or her testimony, the witness can choose to give an oath or an

affirmation (chapter 17 § 24).109 If the witness has no religious affiliation, she or he

gives an affirmation. As stated above, the possibility of giving a religious oath has been

abolished in the revision of chapter 17.110



The wording of the oath is as follows: “I, <insert name>, do promise and swear by

almighty and all-knowing God that I shall testify and state the whole truth in this case,

without concealing it, adding to it or altering it.”





104 The revised numbering will be chapter 17 § 20 (HE 46/2014).

105 The revised numbering will be chapter 17 § 16 (HE 46/2014).

106 The revised numbering will be chapter 17 § 14 (HE 46/2014).

107 The revised numbering will be chapter 17 § 13 (HE 46/2014).

108 The revised numbering will be chapter 17 § 11 (HE 46/2014).

109 The revised numbering will be chapter 17 § 44 (HE 46/2014).

110 KOM 69/2012, Todistelu yleisissä tuomioistuimissa, p. 56.





Part I


27




The wording of the affirmation is as follows: “I, <insert name>, do promise and swear

on my honour and conscience that I shall testify and state the whole truth in this case,

without concealing it, adding to it or altering it.”



If a witness refuses to give an oath or an affirmation the court can use coercive

measures such as place the witness under threat of a fine or by imprisonment up to six

months (chapter 17 § 36).111



A person unfit to testify based on age or mental incapacity does not give oath, as stated

above. Also grounds for refusing testimony based on professional status are discussed

above.



6.4

Duties and Powers



The court has the duty to conduct the proceedings. Taking an oath or affirmation is one

of these duties (chapter 17 § 31). In non-dispositive cases the party who has named the

witness begins questioning after which the opposing party can place questions, and

thereafter, the court (chapter 17 § 33).112 Thus, cross-examination is applied in Finnish

law of evidence. Leading questions are prohibited and the court shall disallow

manifestly irrelevant, confusing and otherwise inappropriate questions.



The witness has to give testimony orally but may use written notes as memory aids

(chapter 17 § 32).113 Expert witnesses produce a written opinion (chapter 17 § 44)114

before the main hearing and may be heard orally as a witness (chapter 17 § 49). Parties

do not give oath or affirmation and what they testify in their own case is usually in legal

praxis considered subjective which affects evidentiary value of such statements.



The penalty for perjury is imprisonment up to three years (Criminal Code chapter 15 §

1). The penalty for aggravated false statement in court is punishable by imprisonment

for at least four months and at most six years (Criminal Code chapter 17 § 3. Criminal

Code makes a distinction between false statement and negligent false statement. The

latter is punishable by fine or imprisonment up to six months (Criminal Code chapter 15

§ 4).



7

Taking of Evidence



7.1

General Statements



The main rule is that evidence has to be obtained in the main hearing (chapter 17 §

8a).115 There are provisions for exceptions. The court summons the parties and

witnesses to the court session if summoning the witnesses unless this has been entrusted



111 The revised numbering will be chapter 17 § 63 (HE 46/2014).

112 The revised numbering will be chapter 17 § 43-49 (HE 46/2014).

113 The revised numbering will be chapter 17 § 47 (HE 46/2014).

114 The revised numbering will be chapter 17 § 36 (HE 46/2014).

115 The revised numbering will be chapter 6 § 2 (HE 46/2014).

28





Part I


to a party, as stated above. The court has the duty to conduct the proceedings which

means that usually in the preliminary hearing the court together with the parties decides

on the schedule for the main hearing.



A court may set a deadline to the parties for producing written documents and to name

witnesses already in the preliminary stage. If a party does not follow such a deadline, he

or she takes the risk of preclusion, as stated above. In case of preclusion no new

evidence can be presented after the main hearing has begun, unless the party has a

legitimate reason and avoids preclusion.



The question whether the court is bound to its decision on evidence is somewhat

undecided in the Finnish doctrine. No unambiguous precedents exist. In legal

scholarship the leading opinion was that the court is able to change its procedural

decisions during the trial. This opinion resulted from the ban to appeal procedural

decisions separately from the material decision. However, in the current literature

opinions are emerging which consider that the court should be bound to its decisions as

otherwise legal certainty and effective guidance are endangered. An intermediary

opinion is that the court is bound to its decisions and these decisions should not be

changed at least without a valid reason such as a change in the circumstances of the case

etc. However, the situation is not clear.



Chapter 17 section 10 provides for the possibility to present evidence in advance for a

case that is not yet pending.116 The person who wishes for this, applies for the

permission of a first instance court. The permission is granted if his or her rights depend

on the admission and there is the danger that the evidence is lost or will be difficult to

present later. Evidence may not be obtained in advance for the purpose of obtaining

information on an offence. If somebody else’s rights depend on the presentation of this

evidence, he or she may be invited to be present for the hearing if necessary. No witness

or expert witness may be obligated to testify in another court that the district court of his

or her residence. This provision on obtaining evidence in advance is rarely applied.



7.2

Rejection of an Application to Obtain Evidence and Specifying Evidence



The court may reject evidence in some situations. First, evidence on notorious facts is

not allowed (chapter 17 § 3).117 Second, the court shall not admit piece of evidence that

pertains to a fact that is not material to the case or that has already been proven, or if the

fact can be proven in another manner with considerably less inconvenience or cost

(chapter 17 § 7).118 The court has an obligation to ground its decision to disallow

evidence.



As discussed above, the revision of chapter 17 introduces the ban of illegal evidence

and evidence obtained by torture.119



116 The revised numbering will be chapter 17 § 61 (HE 46/2014).

117 The revised numbering will be chapter 17 § 5 (HE 46/2014).

118 The revised numbering will be chapter 17 § 8 (HE 46/2014).

119 The revised numbering will be chapter 17 § 25 (HE 46/2014).





Part I


29




New evidence in the main hearing or in the higher instances is allowed in some cases

when the party has a legitimate reason for not presenting the evidence before.



The parties have an obligation to specify their evidence, name their witnesses and legal

facts they want to prove with each piece of evidence (chapter 5 § 20).



If there is an earlier final judgment it might have a res judicata effect on a later trial. If

the earlier judgment does not concern the dispute at hand in the later proceedings, the

facts established could have evidentiary value. The court may reject obtaining evidence

in these situations if it considers it unnecessary.



7.3

The Hearing



Principles of orality, concentration and directness apply to obtaining evidence in the

main hearing. Only the deciding judge or junior judges, i.e. lawyers who are completing

a court training period at the district court in order to have the title of ‘trained on the

bench’ ( varatuomari, vicehäradshövding) and sit as judges on their own cases, are

allowed to take evidence.



The court may decide to take evidence outside the main hearing in another court

(chapter 17 § 8c).120 Also, a party or a witness may be heard before the main hearing, if

this is necessary in order to clarify a circumstance on which an expert witness is to be

heard (chapter 17 § 48a).



In international evidentiary taking the testimony can be given before someone else than

a judge.



There are rules in Finnish law of evidence on taking different types of evidence. The

court may order that documentary evidence be admitted in the main hearing without

reading it only if its contents are known to the members of the court, the parties agree to

the same and the same may also otherwise be deemed appropriate (chapter 17 § 8a).121



The main rule that evidence must be presented in the main hearing has much bearing

and evidence may not be obtained after concluding the main hearing. However, if the

court after the conclusion of the main hearing finds it necessary to supplement the

hearing in respect of a specific issue and if the issue subject to supplementation is

simple or minor, the court may supplement the hearing by requesting a written

statement on the issue from the parties. Otherwise the hearing may be supplemented by

continuing the main hearing or by holding a new main hearing in the case (chapter 6 §

14).





120 The revised numbering will be chapter 17 § 56-60 (HE 46/2014).

121 As discussed above, this provision has been changed by the revision of chapter 17 to some

extent.

30





Part I


The parties have the right to be present at the main hearing while the court obtains

evidence but not an obligation, unless they have been summoned personally by the

threat of a fine. Usually the parties are summoned to be personally present.



The court may not begin the main hearing in a party’s absence, if his or her personal

presence is essential (chapter 6 § 6). However, the party’s unexcused absence from the

main hearing in a civil case shall not prevent the admission of evidence. When evidence

has been admitted regardless of the absence of a party, the evidence shall be readmitted

in the presence of the party, unless there is an impediment. A party who is present shall

be granted the opportunity to express his or her opinion about every piece of evidence

presented to the court (chapter 17 § 9).122



Distinction between direct and indirect types of evidence is not made in Finnish law of

evidence.



Audio and video conference may be used to obtain evidence from a distance when there

is a synchronous link between the main hearing and the distance access point (chapter

17 § 34 a).123 Such video or audio evidence may be obtained from abroad as well, if the

other state approves this procedural act.124



7.4

Witnesses



The witnesses are summoned by the court if this is not entrusted to the party for some

reason (chapter 17 § 26).125 The witness is obliged to be present at the time of the main

hearing by a threat of a fine (chapter 17 § 36).126 The procedure of summons is provided

for in chapter 11 of the Code and usually registered letters or such are used. A witness

gives oath or affirmation before testifying. Witnesses are questioned individually.

Parties do not need to adduce the written statement before the testimony and written

statements are not usually approved as evidence.



The doctrine of preparing the witnesses has changed during the last decades. Earlier, it

was not considered advisable that the counsel necessarily even discusses with the

witness before the hearing. Nowadays it is approved that some preparation of witnesses

is done by the legal counsel, but, extended coaxing of the witness is not accepted and

affects the testimony’s evidentiary value.





122 The revised numbering will be chapter 17 § 1 (HE 46/2014).

123 The revised numbering will be chapter 17 § 52 (HE 46/2014).

124 See: Riikka Koulu, Videoneuvottelu rajat ylittävässä oikeudenkäynnissä, COMI, Helsinki

2010.

125 The revised numbering will be chapter 17 § 41-42 (HE 46/2014).

126 The revised numbering will be chapter 17 § 29, 62 (HE 46/2014).





Part I


31




7.5

Expert Witnesses



Provisions for hearing expert witnesses differ from those regulating other witnesses to

some extent.127 The code provides the court the power to name the expert witness,

unless parties agree on the person (chapter 17 § 46).128 Typically, the parties name the

witnesses. If a party relies on an expert witness who has not been appointed by the

court, the provisions on a witness apply to the same (chapter 17 § 55). Still, even if an

expert is named by the party, there are specific obligations that apply.



If the court has appointed the expert, the court conducts the questioning and after this,

the parties may place questions. If the expert is named by a party, he or she starts the

questioning after which the opposing party and the court may place questions (chapter

17 § 33).



It is typical that the parties name their expert witnesses. If the court appoints an expert,

parties have to be heard on the appointment (chapter 17 § 46). The court cannot appoint

a different expert than the one parties agree on. In addition to appointing experts by the

court and the parties, the parties may present private expert’s opinion as evidence.



The Code does not regulate how the experts are chosen in detail. Chapter 17 section 44

that the court shall obtain a statement on this question from an agency, a public official

or another person in the field or entrust the giving of such a statement to one or more

experts in the field who are known to be honest and competent. Subsection 2 provides

that if the law requires the use of expert witnesses in a specific case, the separate

provisions on this apply. There is no specific list of experts that directs the court’s

choice.



An expert witness has to give a written substantiated statement based on the findings of

his or her investigation. The court may allow the expert to give his or her statement

orally (chapter 17 § 50).129 In addition to the written statement, the expert will be heard

orally if a party requests it or the court considers it necessary.



According to chapter 17 section 53, the expert is entitled to a reasonable fee for his or

her work and compensation for necessary expenses.130 This right is limited, if the

statement is given by a holder of a public office or function. If the expert is appointed

by the court, the parties are liable for the fee jointly. However, if the expert is appointed

on the request of one party alone, he or she is liable alone. If the expert is appointed by

the party alone, she or he is liable for the fee and the question of legal fees would be

handled separately.



127 See generally, Juha Lappalainen, Todistuskeinot, p. 670, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012.

128 The status quo has not been changed by the revision of chapter 17. However, the role of expert

witnesses has been clarified in the legislative process and in the revised norms. The revised

numbering will be chapter 17 § 34-37 (HE 46/2014).

129 The revised numbering will be chapter 17 § 34-37 (HE 46/2014).

130 The revised numbering will be chapter 17 § 66 (HE 46/2014).

32





Part I


According to the principle of free assessment of evidence, the court is not bound to

written expert’s opinion or other written evidence, but instead, evaluates its worth as

evidence on an in casu basis.



8

Costs and Language



8.1

Costs



According to the legal definition of chapter 21 section 8, compensable legal costs are

the costs of the preparation for the trial and the participation in the proceedings, as well

as the fees of the attorney or counsel. In addition, compensation shall be paid for the

work caused by the trial to the party and for the losses directly linked to the trial.131



The party who has named the evidence is responsible for the occurring expenses

(chapter 17 § 40).132 However, the losing party is responsible for the winning party’s

litigation costs including costs for obtaining evidence after the judgment is given

(chapter 21 § 1).



In some situations compensation to witnesses can be made in advance, but typically, the

witnesses are compensated once the trial has ended.



Besides compensating witnesses, expenses may occur from obligation to present an

original document at the court’s session or from judicial inspection.



Compensation for appearing as a witness includes reasonable compensation for

necessary travel and maintenance expenses as well as for loss of earnings (chapter 17 §

40).133 A witness is entitled for advance payment from the private party who has named

him or her and the amount of adequate advance is at the court’s discretion. When the

court has in a civil case called a witness on its own initiative, the parties shall be jointly

and severally liable for the compensation.



Compensation may be paid from the state’s funds in some circumstances (e.g. when the

referring party is entitled to legal aid paid by the state) which are regulated separately

(666/1972 State Compensation for Witnesses Act). The maximum compensation for

loss of earnings and travel expenses are regulated by a Government’s decree.



As stated above, an expert’s appearance as a witness and compensation for his or her are

regulated differently from other witnesses. Also an expert is entitled to advance

payment, and when the expert has been appointed by the court the court may order that



131 In general, see: Juha Lappalainen, Oikeudenkäyntikulut ja niiden korvaaminen, p. 779, in Dan

Frände et al. (ed.), Prosessioikeus, 4th ed., Sanoma Pro 2012.

132 The revised numbering will be chapter 17 § 65 (HE 46/2014).

133 The revised numbering will be chapter 17 § 65 (HE 46/2014).





Part I


33




the advance payment to the expert witness is made from State funds (chapter 17 §

53).134



Official language of the proceedings is Finnish or Swedish and in some cases Sami. A

person who does not speak any of these and wants interpretation has to take care of it at

his or her own expense, unless the court orders otherwise (chapter 4 § 1).



The Regulation 1206/2001 is complemented by chapter 17 of the Code. There are no

provisions about the requesting court’s obligation to compensate expenses according to

article 5 (2) of the Regulation.



The interface with Regulation 1206/2001 has been taken into consideration in the

revision of chapter 17, as discussed above.



However, the above mentioned provisions apply to cross-border situations as well.

Also, the Code does not list any additional costs which would occur from using

videoconferencing technology. Regardless, the witnesses have the same right to

compensation while obtaining evidence by video-conference than normally. The

reimbursement of translation costs is decided in the final judgment.



If a party is receiving legal aid from the state’s funds, State Compensation for Witnesses

Act applies. In this act and in the decree given by the Ministry of Justice based on the

act, specific amounts of compensation are regulated. Provisions on compensating the

daily allowance based on the time used and the travel expenses by cheapest and most

convenient method are very detailed. However, the act applies only to compensations

that are paid by the state. There is not similar regulation in cases where the party who

loses the case pays the other party’s legal fees. However, these fees including the

compensation to witnesses have to be reasonable. In the end, the court decides if the

claim for legal fees is reasonable.



8.2

Language and Translation



According to the Code, the language of the proceedings is one of the official languages

of Finland, Finnish or Swedish or in some cases Sami depending on the parties’ mother

language. If the party’s native language is Finnish or Swedish but not the same as

language of the proceedings, the court is responsible to ensure translation without costs

to the party (423/2003 Language Act 18 §).135



The main rule is that in a civil case the party wishing translation to other than the

official languages is responsible for its costs (chapter 4 § 2). However, the court must ex



134 Juha Lappalainen, Todistuskeinot, p. 673, in Dan Frände et al. (ed.), Prosessioikeus, 4th ed.,

Sanoma Pro 2012.

135 In general, see the expert’s report on legal translation: Oikeustulkkauksen selvityshanke,

Asiantuntijaryhmän raportti 2008.

34





Part I


officio ensure the interpretation for nationals of other Scandinavian countries.136 Also, if

a party is entitled to legal aid from the state funds, she or he is also entitled to needed

translation and interpretation sevices without cost (257/2002 Legal Aid Act chapter 4 §

1). When the party organises interpretation at his or her own expense, she may chose

freely an interpreter.



If the court appoints an interpreter, it always uses accredited interpreters which have

experience from court room interpretation. The police and district courts have their own

lists of acceptable interpreters and usually a degree in translation studies is required.

However, membership in The Finnish Association of Translators and Interpreters is not

a requirement. Drafting such lists is not organized and issues regarding the competence

of legal interpreters remain.137



Written evidence has to be translated into Swedish or Finnish. In a dispositive civil

cases the parties would be responsible for the translation costs which then would be

allocated to the losing party in the final judgment as a part of litigation costs.



There are no provisions on appointing an interpreter when interpretation is necessary for

hearing a witness. However, the court is responsible for conducting the proceedings in

the last resort and thus, for effective access to justice, appointing an interpreter in this

situation belongs to the court’s discretion.



The witness is not a party in a case and therefore protection for his or her linguistic

rights can likely be waived if the witness is able to give testimony in the language of the

proceedings in which case the interpreter would not be necessary as the court’s

assistant. However, as stated above, the situation is somewhat vague currently and the

court has a wide discretion.



Interpreter is not automatically appointed when the requesting court is taking evidence

directly based on the Regulation. Same considerations apply than in national cases.



9

Unlawful Evidence



9.1

Illegally Obtained Evidence and Illegal Evidence



As a starting point, Finnish procedural law does not make a distinction between illegally

obtained and illegal evidence. However, the revision of chapter 17 will change Finnish

law of evidence on this matter. The ban of invocating unlawful evidence against the

privilege of self-discrimantion has been formulated in the case-law of the Supreme

Court and through the reform it will be introduced to legislation as well. The ban

excludes evidence obtained by torture or by other illegal means from the accepted

evidence. The reform is not ratified at the time of writing, although it has been passed



136 Jyrki Virolainen, Periaatteet prosessioikeudessa, p. 230, in Dan Frände et al. (ed.),

Prosessioikeus, 4th ed., Sanoma Pro 2012.

137 Oikeustulkkauksen selvityshanke, Asiantuntijaryhmän raportti 2008, p. 13.





Part I


35




by the Parliament. The reform will most likely come into force in autumn 2015 or

spring 2016.



According to the principle of free assessment of evidence, the main rule is that all

evidence is accepted and issues related to obtaining the evidence have effect on its

evidentiary value.138 However, a distinction between limitations due to witness’

professional secrecy ( todistamiskiellot) and limitations in reclaiming evidence

( hyödyntämiskielto).139 The doctrine on professional secrecy and limitations in

reclaiming evidence have been developed in national case-law and based on ECHR

article 6 and on ECtHR’s case-law concerning it. For example, if there has been a

breach of fair trial principles in police investigation, the accused’s narrative may not be

used as evidence against him or her.140 However, the limitation of using such evidence

as in case 2012:45 applies only to evidence against the accused, instead, evidence

supporting the accused’s innocence cannot be limited. Also, such limitations cannot be

applied in civil cases.



Neither does the Finnish law of evidence provide a normative solution to establishing

the illegality of means of obtaining evidence.



10

The Report about Regulation 1206



The information about Finland in The Report about the Regulation 1206/2001 is not

entirely accurate. Finland is a member in multilateral agreements which have provisions

on obtaining evidence (namely, The Hague Convention of 1 March 1954 on Civil

Procedure, The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad

in Civil or Commercial Matters, Convention of 26 April 1974 between Sweden,

Denmark, Finland, Iceland and Norway).



Finland has also bilateral legal assistance treaties with the United Kingdom (SopS

3/1934), Russian Federation and Ukraine (SopS 47–48/1980, SopS 82/1994) and Czech

Republic (SopS 67–68/1981Hungary (SopS 39–40/1982) and Austria (SopS 29/1988).

Most of these bilateral treaties are replaced by EU Regulation. The most important

bilateral treaty with the Russian Federation is also losing its significance as Russia has

become a member of the Hague Convention of 1970.





138 See Supreme Court decision 2011:91. In the case nursing staff had filed a police report based

on a patient’s narrative which he had given while committed to a psychiatric ward on the crimes

he had committed. Although the personnel did not have a right to file the report due to their

official secrecy, the medical certificates could be used as evidence in the criminal proceedings.

139 Mikko Vuorenpää, Todistamiskiellot ja todisteiden hyödyntämiskielto, Oikeustieto 4/2009, p.

22.

140 See Supreme Court deicsion 2012:45. In the case the defendant was found guilty of an

aggravated drug offence partly based on the narrative he had given during police investigation. As

it was uncertain whether the accused had waived his right to have an attorney present or

understood the meaning of such waiver, the court held that the accused’s right not to assist in

discriminating himself had been violated and thus, the police reports could not be used as

evidence. See also: Supreme Court decision 2013:25.

36





Part I


Table of Authorities




The Ministry of Justice is the competent central authority referred to in article 3 (3) of

the Regulation 1206/2001.



The most important statute is the Procedural Code (oikeudenkäymiskaari,

rättegångsbalken4/1734). An English translation of the Code following the legislative

reforms

up

to

718/2011

can

be

found

at:

http://www.finlex.fi/en/laki/kaannokset/1734/en17340004/ - last visited 14.2.2014. The

translation is used in this report when referring directly to the text of the Code.





Evidence in Civil Law – Finland

Riikka Koulu





Part II – Synoptical Presentation





1

Synoptic Tables



1.1

Ordinary/Common Civil Procedure Timeline



The parties’ rights correspond with their obligations. The court’s neglect of its duties

may result in trial error (tuomiovirhe, rättegångsfel).



Phase

Name of the Phase

Responsible Subject

Duties of the

Rights (related only

#



Responsible Subject

to Evidence) of the

Name of the Phase

(related only to

Responsible Subject

in National

Evidence) and



Language

Consequences of

their Breach

1

Application for a

Plaintiff

The plaintiff has the



summons



obligation to present



(Kantaja, Käranden)

the claim and the

(Haastehakemus)

circumstances in

which it is based. She

or he must also name

the evidence as far as

possible. The plaintiff

has to make the claim

on litigation costs and

court’s jurisdiction

(ch 5 § 2) and to

supplement the

application if

requested by the

court(ch 5 § 5). She or

he bears the

consequence of

dismissal without

considering merits if

not supplemented (ch

5 § 6)



Interim order

The Court

The court is





responsible, on the

(Väliaikaismääräys,

request of the

interimiska beslut)

plaintiff, of granting

38

Part II – Synoptical Presentation



an interim order

without hearing the

defendant (ch 5 § 7)

2

Issue a writ of

The court

The court is



summons

responsible to issue a



writ of summons to

(Haasteen

the defendant (ch 11)

tiedoksianto,

delgivning)

3

Response

The defendant

The defendant has to





admit or challenge the

(Vastaus, svaromål)

(Vastaaja, svaranden)

claim, state the

grounds for refusal

and name the

evidence as far as

possible, make a

claim on litigation

costs, enclose the

written documents

when possible, enter a

plea of inadmissibility

(ch 5 § 10)

4

Preparation

The court and the

The court decides





parties

whether preparation is

(valmistelu,

continued in writing

förberedelse)

or if the case is

scheduled for a

preliminary hearing or

directly for main

hearing (ch 5 § 15),

parties are responsible

to delivered requested

additional written

pleadings (ch 5 §

15a), the court has to

inform the parties on

the judge and phases

of the case (ch 5 § 18)



A deadline for

The court and the

The court may set a



naming evidence the

parties

deadline for

party wishes to refer



preclusion and the

to, Preclusion

parties have to present



all evidence before

(Valmistelun sisäinen

this (ch 5 § 22)

prekluusio)



Summary of claims,

The court

The court drafts a



grounds and evidence

summary of the case



during preparation

(Yhteenveto,

before the preliminary

sammanfattning)

hearing (ch 5 § 24)



Preliminary session

The court and the

Decision on hearing



Part II – Synoptical Presentation

39





parties

expert witnesses,

(valmisteluistunto,



judicial inspection or

förberedelsesammant

presenting written

räde)

evidence has to be

done during

preparation (ch 5 §

25), parties have to

state their claims,

grounds and evidence

and to state their

opinion on the

adversary’s case (ch 5

§ 20), deciding the

case without a main

hearing (ch 5 § 27 and

27a).



Conciliation

The court and the

The court has to





parties

further a settlement

(Sovinnon



when possible (ch 5 §

aikaansaaminen,

26)

förlikning)

5

The main hearing

The court and the

Duties stated in





parties

chapter 6 of the Code,

(Pääkäsittely,



obtaining evidence

huvudförhandling)

(ch 17), at the

beginning the court

must ascertain that the

requirements for the

main hearing apply

(ch 6 § 6), hearing

witnesses in case the

main hearing is

postponed (ch 6 § 8),

conducting the

hearing “The court

shall ensure that the

hearing of the case

proceeds in a lucid

and orderly manner

[and] that the case is

thoroughly considered

and that irrelevant

matters are excluded

from the case (ch 6 §

2a)



Claims and

The parties

The parties have to



statements

state their claims



orally and to



comment on the

opposing party’s

statement (ch 6 § 2)

40

Part II – Synoptical Presentation





Obtaining evidence

The parties, in some

Ch 17; parties are





situations the court

responsible for

questioning (ch 17 §

33), conducting the

hearing is the court’s

duty (ch 17 § 33) as

well as summoning

the witnesses (ch 17 §

26), questioning an

underaged witness is

the court’s duty (ch

17 § 15) as well as

taking the oath or

affirmation (ch 17 §

28), protocol and

recording of evidence

is done by the court

(ch 22)



Closing arguments

The parties

The parties give their





closing arguments

(Loppulausunto,

before the main

slutplädering)

hearing is ended (ch 6



§ 2)

6

Consideration of the

The court

Chapter 24, giving a



merits and assessment

grounded judgment

of evidence, giving

based on the claims

the judgment

and evidence



presented at the main



hearing, appeal

instructions (ch 25 §

3)

7

Declaring the intent

The parties

Declaration of the



to appeal

intent to appeal in 7



days from giving the

(Tyytymättömyyden

judgment under threat

ilmoittaminen,

of forfeiting his or her

Missnöjesanmälan)

right to be heard (ch

25 § 5)

7a

Leave to Continue

The parties

In certain civil cases



Proceedings and

the parties have to

Appeal to Court of

deliver a request for a

Appeals

leave to continue



proceedings (ch 25a)

(Jatkokäsittelylupa,

simultaneously with

valitus, vastavalitus,

the appeal (ch 25 §

tillstånd till fortsatt

15), the opposing

handläggning,

party has the option to

besvär, motbesvär)

file a counter-appeal

(ch 25 § 14a-14c)



Proceedings in the

The court, the parties

The responsibilities of



Court of Appeals

the court and the

Part II – Synoptical Presentation

41





parties is similar to

(Käsittely

district court,

hovioikeudessa,

provisions in chapter

handläggning I

26; written response

hovrätten)

ch 26 § 3, preparation

ch 26 § 7, main

hearing ch 26 § 13-16

7b

Appeal from District

The parties, the court

The parties can agree



court directly to the

to appeal directly to

Supreme court as

the Supreme court in

precedent appeal

certain cases (ch 30a



§ 1), the leave to

(Ennakkopäätösvalitu

appeal is granted by

s, prejudikatbesvär)

the court if there is

precedent value in the

case, otherwise the

district court’s

judgment becomes

final (ch 30a § 2)

8

Appeal to the

The parties, the court

After the case is



Supreme Court

decided by the Court



of Appeals, the parties

(Valituslupa, valitus

can appeal to the

Korkeimpaan

Supreme court (ch

oikeuteen, ansökan

30), the court may

om besvärstillstånd,

grant leave to appeal

besvär)

(ch 30 § 2-3),



otherwise the Court of



Appeals’ judgment

becomes final



Proceedings in the

The parties, the court

Proceedings in the



Supreme Court

court (ch 30 § 4-21a)



(Käsittely

korkeimmassa

oikeudessa,

handläggning i

högsta domstolen)

9

Extraordinary

The parties, the court

In certain



channels of appeal

circumstances the



judgment can be

(Ylimääräinen

appealed without time

muutoksenhaku,

limits, e.g. complaint

extraordinärt

on trial error (ch 31 §

ändringssökande)

1), Reversal of a final



judgment due to

criminal activity of

the court or counsel

(ch 31 § 7), Granting

a new deadline (ch 31

§ 17)

42

Part II – Synoptical Presentation



1.2

Basics about Legal Interpretation in Finnish Legal System



There is no protocol for interpretation of substantive legal norms. The Ministry of

Justice administrates an ejustice portal with translations of essential substantive acts

which can be found at: http://www.finlex.fi/en/



The ejustice portal has also translations of the procedural acts.



1.3

Functional Comparison



Legal

Regulation

Means

Multilateral

Regulation

National Law

Bilateral Treaties

of Taking

Treaties

1206/2001

Evidence

Possible under

Between Finland and

Nordic Convention

The formalities of

chapter 17 § 8c of

Russia, applicable:

of 1970, no

requesting legal

the Code “If the

“The parties give

significant

assistance differ,

court decides that

legal assistance to

differences,

but no significant

evidence be

each other upon

there is a general

differences to the

admitted in another

request in

obligation to

procedure, except

court, the former

accordance with

testify in other

the possibility to

Hearing of

shall submit a

their own legislation

Nordic courts (Act

apply the

Witnesses by

request on the

by hearing

349/1977)

requesting court’s

Mutual Legal

same to the latter

witnesses”

lex fori in art 10(3)

Assistance

and at the same

(Legal Aid)

time briefly explain

the case at hand

and what is

intended to be

proven with the

evidence.”



Videoconferencing

No references to

No references to

Specific reference

possible according

videoconferencing in

direct hearing or to

to

to chapter 17 § 34a

the treaty

videoconferencing

videoconferencing

in the treaty in the

in art 10 (4)

Hearing of

Nordic Convention

Witnesses by



Video-

Hague Convention

conferencing

of 1970 and

with Direct

Permanent

Asking of

bureau’s report on

Questions

taking of evidence

by videolink 2008:

direct execution

via videolink is

possible

Part II – Synoptical Presentation

43



A witness can be

No reference to

No references in

Possible according

Direct Hearing

heard outside the

direct hearing

the Nordic

to articles 12 and

of Witnesses by

main hearing (ch

Convention, the

17

Requesting

17 § 41)

Hague Convention

Court in

of 1970 requires

Requested

that the requesting

Country

country’s official



is in the requested

country



Legal

Regulation

Multilateral

Regulation

Means

National Law

Bilateral Treaties

Treaties

1206/2001

of Taking

Evidence

Chapter 17 § 8d of

Same as answered

Same as answered

Formalities in the

the Code: “(1)A

above

above

Regulation differ to

court that admits

some extent, no

evidence on the

significant functional

request of another

court shall

differences in

determine the time

comparison with

for the admission of

national law

the evidence.

Hearing of

(2) The court that

Witnesses by

admits evidence

Mutual Legal

shall deliver the

Assistance

material compiled

(Legal Aid)

during the

admission of

evidence to the

court where the

main case is

pending.”

Also Act 171/1921

on Legal Assistance

Hearing of

Possible, chapter 17

Same as answered

As answered

As answered above,

Witnesses by

§ 34a of the Code,

above

above, videolink

no impediments

Video-

as stated above

can be used when

conferencing

applying Hague

with Direct

Convention of

Asking of

1970

Questions

Direct

No exact

Same as answered

Same as answered

As answered above,

Hearing of

provisions, accepted

above

above

no impediments

Witnesses by

in legal praxis

Requesting

Court in

Requested

Country

44





Evidence in Civil Law – Finland

Riikka Koulu





References



Table of Cases



Supreme Court decisions (http://www.finlex.fi/fi/oikeus/kko/kko/):

1985 II 93

1994:7

1994:26

1995:44

1996:133

1997:139

1998:86

2003:54

2005:123

2005:134

2008:59

2011:91

2013:25



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Oikeustulkkauksen

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