ITEMID: 001-110272
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF WOOLLEY v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - Conviction)
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 5. The applicant was born in 1953 and is currently detained at HMP Dovegate, Uttoxeter.
6. On 19 December 2002 the applicant was convicted at Birmingham Crown Court of an offence of conspiracy to cheat the public revenue. On 20 December 2002 he pleaded guilty to two offences of concealing proceeds of criminal conduct to retain them or to avoid prosecution; and removing property from the jurisdiction to retain proceeds of criminal conduct or to avoid prosecution. On the same date, he was sentenced to nine years’ imprisonment in respect of the conspiracy offence, with no separate penalty imposed for the other two offences.
7. On 14 December 2003 the Court of Appeal dismissed the applicant’s appeal against sentence.
8. On 23 February 2005 the applicant walked out of HMP Sudbury, an open prison, and fled to Switzerland. At that time he had served 41 months and 12 days of the sentence. A total of 66 months and 18 days remained to be served. On 3 March 2005 a warrant for the applicant’s arrest in respect of the offence of escape from lawful custody was issued by Birmingham Magistrates’ Court.
9. Also on 3 March 2005, Birmingham Crown Court made a confiscation order in respect of the applicant’s conviction for conspiracy to cheat the public revenue in the sum of GBP 9,497,784.02. The amount specified in the order was to be paid by the applicant by 3 April 2006, with four years’ imprisonment to be served in default of payment, consecutively to the nine-year term of imprisonment already imposed. Although the applicant was not present, he was represented by senior counsel.
10. On 4 April 2005 the applicant was refused leave to appeal against the confiscation order. In February 2007 the full court of the Court of Appeal refused the applicant’s renewed application for leave to appeal against the confiscation order.
11. On 3 April 2007 an enforcement and receivership order was made against the applicant in order to seek to recover the sums specified in the compensation order, as only GBP 195,000 had been recovered by the Official Receiver.
12. On 6 February 2008 the United Kingdom Government issued a request to the Swiss Government for the applicant’s extradition, pursuant to the European Convention on Extradition 1957 (“the ECE”), as a convicted person and as an accused person. The request was made on the basis that the applicant had been convicted of conspiracy and money laundering offences and was accused of an offence of escape from lawful custody.
13. An accompanying witness statement by a Revenue and Customs Prosecutor set out the offences of which the applicant had been convicted, together with the relevant law. It noted that the applicant’s return was sought in order to serve the remainder of the sentence of nine years’ imprisonment imposed on him. It referred to the confiscation order and concluded:
“... It is established law that a default sentence so imposed constitutes part of the overall penalty. [The applicant’s] return to the United Kingdom is therefore sought in respect of any activation of the default sentence which may become necessary.”
14. In diplomatic notes dated 31 March 2008 and 18 April 2008, the Swiss Federal Office of Justice asked the British authorities for further information relating to the acts committed by the applicant. On 1 April 2008 and 3 June 2008 the British Embassy replied to the questions.
15. On 12 June 2008 an arrest warrant was issued by the examining magistrate in Vaud Canton, Switzerland. The applicant was arrested pursuant to that warrant on 19 June 2008.
16. By diplomatic note dated 13 August 2008, the Swiss Federal Office of Justice asked the following question of the United Kingdom authorities:
“... whether the extradition of the [applicant] is also being requested for charges of evasion and for non-payment of the confiscation sum ordered by Birmingham Crown Court on 3 March 2005.”
17. By diplomatic note of 28 August 2008 to the Swiss Federal Office of Justice, the British Embassy in Berne enclosed the response of Her Majesty’s Revenue and Customs Prosecution Office (“Prosecutor’s Office”). The response was in the following terms:
“It is important to make clear that there is no charge, in existence or proposed, for evasion or non-payment of the order. The extradition of Mr Woolley is not sought in respect of non-payment of the confiscation order which was made against him; it is sought in respect of one charge of escape from lawful custody and to finish serving the term of imprisonment passed on him in respect of the offence of conspiracy to cheat.
The confiscation order was part of the sentence passed on Mr Woolley. The effect of the relevant legislation is that such orders are treated in the same way as fines. When a Crown Court imposes a fine on any person, they may allow that person time to pay the fine but they must make an order fixing a term of imprisonment which that person must serve as a last resort if the sum they owe has not been paid or recovered. The confiscation order in this case was made on 3 March 2005, the judge allowed Mr Woolley time to pay until 3 April 2006, and set a term of imprisonment in default of 4 years. The order remains outstanding and this office has been taking steps to enforce it.
Activation of a default sentence is one of the many means available to the court to enforce outstanding orders. The court can initiate activation of its own volition or the prosecutor can invite the court to do so. Before activating the default sentence, judges are under a duty to enquire into the defendant’s proposals for payment and to determine whether any of the other methods of enforcement might be effective. [The applicant] would have the opportunity to make representations throughout this process. [The applicant] still has the option to pay the confiscation order at any time and if his assets are insufficient to meet the confiscation order he may apply to the High Court for a certificate of inadequacy. If one is granted, he may then apply to the Crown Court to reduce the amount of the confiscation order ...”
18. On 26 September 2008 the Swiss Federal Office of Justice issued its decision on extradition. The decision noted:
“1. On 21 April 2005, Interpol London requested the arrest and extradition of the party concerned to serve the remainder of a prison sentence of nine years handed down by Birmingham Crown Court on 20 December 2002 for fraud and money laundering.
2. In a diplomatic note of 6 February 2008, the British Embassy in Bern requested the extradition of the party concerned.”
19. It continued:
“13. In a diplomatic note of 28 August 2008, the British Embassy informed the FOJ [Federal Office of Justice] that the extradition of the party concerned was not being requested for non-payment of the amount of the confiscation ordered by way of the decision of 3 March 2005 of Birmingham Crown Court, but was being requested for the absconding.”
20. The decision noted that for extradition to be ordered, the offence for which it was sought had to be an offence in both countries. As regards the offence for which the nine-year sentence was imposed, the Federal Office of Justice considered in some detail the facts behind the offence. It noted the applicant’s objection that the request for extradition was not clear regarding whether it was also requested for the offence of absconding and for non-payment of the amount confiscated which were not punishable under Swiss law.
21. The Federal Office of Justice ruled that since the Swiss Criminal Code did not punish a person who absconded, the extradition would not be granted for the act of absconding. It noted that the extradition was not requested for the non-payment of the confiscation order and that there was no need to ask the British authorities to give any guarantees, as nothing suggested that they would not adhere to the rule that a person could only be tried for the offence for which he had been extradited.
22. It granted the extradition for the acts described in the extradition request of the British Embassy of 6 February 2008 and its additional documents of 1 April and 3 June 2008, excluding the acts of absconding.
23. On 29 October 2008 the applicant appealed to the Swiss Federal Criminal Court. On 5 February 2009 the Federal Criminal Court upheld the decision of the Federal Office of Justice. It summarised the facts of the case, and noted that the British Embassy had declared that extradition was only being sought for the acts of absconding, and not for non-payment of the confiscation order.
24. In response to the applicant’s criticism of the decision of the Federal Office of Justice for failing to exclude extradition for the purpose of initiating proceedings regarding the non-payment of the confiscation order, the court noted that the British authorities had expressly stated that extradition was not requested for non-payment of the amount in the confiscation order and held that this statement was sufficiently clear and appropriate for the purposes of removing the applicant’s doubts.
25. On 10 February 2009 the applicant appealed to the Swiss Federal Supreme Court. On 26 February 2009 the Federal Supreme Court ruled that the appeal was inadmissible. In its judgment, it summarised the findings of the Federal Criminal Court:
“... The applicant authority had clearly waived the right to apply for extradition for the sentence relating to non-payment of the confiscation [order] ...”
26. On 10 March 2009 the applicant was extradited to the United Kingdom and returned to prison to complete his sentence.
27. In April 2009 the Prosecutor’s Office applied to Birmingham Magistrates’ Court to enforce the four-year term of imprisonment imposed on the applicant in default of payment of the confiscation order.
28. On 5 May 2009 the head of the Swiss Federal Office of Justice sent an email to the Prosecutor’s Office stating that this would amount to a violation of the rule of specialty.
29. On 29 July 2009 the Prosecutor’s Office wrote to the Swiss authorities indicating that it intended to proceed with an application to enforce the four-year term of imprisonment. It noted that the extradition request concerned the offence of conspiracy to cheat the public revenue (“the extradition offence”), of which the applicant had been convicted, and the offence of escape from lawful custody, of which the applicant was accused. The request for extradition in respect of the latter offence was refused. As regards the non-payment of the confiscation order, the letter indicated:
“While the extradition request was under consideration, a question was put by the Swiss authorities ... as to whether [the applicant’s] ‘extradition is also being requested for charges of evasion and for non-payment of the confiscation sum ordered by Birmingham Crown Court on 3 March 2005’.
In our response we sought to explain that there were no charges for the non-payment of the order, the order was part of the sentence for the extradition offence and if the order were not to be satisfied this would result in the activation of the default sentence.
As the sentence for non payment was part and parcel of the sentence imposed for the extradition offence, it was not possible, or necessary, to seek his extradition in relation to it; as part of the sentence for the extradition offence it was covered by the terms of the extradition request.
It appears from the documentation that we have had sight of that Mr Woolley was returned on the basis that the default sentence referred to above may not be imposed. This decision appears to be made on a misunderstanding of the requesting State’s position as is set out in the documents provided to the Federal Office of Justice in support of the extradition request.”
30. Referring to section 50 of the Criminal Appeal Act 1968 (see paragraph 55 below), the Prosecutor’s Office explained that the sentence for the extradition offence was made up of more than one component, and covered the prison sentence for the wrongdoing, the financial penalty in the confiscation order and the custodial penalty that flowed from the non-payment. The letter concluded:
“I take this opportunity to assure the Government of the Swiss Confederation that the UK is committed to its international obligations and has no intention of dishonouring the principle of specialty.
However, for reasons which I trust are apparent from what is set out herein, imposition of the default sentence in these circumstances cannot be considered to be a breach of the UK’s specialty obligations, either as set out in the Convention or in UK domestic legislation.”
31. On 24 August 2009 the Federal Office of Justice wrote to the British Embassy indicating that if the UK authorities intended to ask for the extension of the extradition to include the non-payment of the confiscation order, they would have to proceed in accordance with Article 14 of the ECE (see paragraph 67 below).
32. On 4 September 2009 the Prosecutor’s Office’s application to enforce the default term came before the Magistrates’ Court. The applicant argued that the proceedings were barred by the rule of specialty, which restricts prosecution or punishment of an extradited person to the offence for which extradition was granted. The District Judge considered the applicant’s claim to be arguable but was of the view that only the High Court had jurisdiction to consider an abuse of process argument. He therefore adjourned the proceedings to allow the parties to bring judicial review proceedings.
33. On 18 September 2009 the applicant lodged a claim for judicial review seeking an order that the District Judge be prohibited from proceeding to examine the Prosecutor’s Office’s application because the proceedings were an abuse of process; and an order that the District Judge be prohibited from proceeding to examine the Prosecutor’s Office’s application because it constituted a breach of section 151 of the Extradition Act 2003 (“the 2003 Act” – see paragraphs 60-63 below).
34. On 25 September 2009 the Prosecutor’s Office lodged a claim for judicial review seeking, inter alia, a declaration that the application to enforce the default term did not constitute an abuse of process and a declaration that the application to enforce the default term did not constitute a breach of section 151 of the 2003 Act.
35. On 5 October 2009 the High Court granted leave in respect of the Prosecutor’s Office’s application. The two claims were later joined and consideration of the applicant’s request for leave was adjourned for consideration by the full court at the substantive hearing in the Prosecutor’s Office’s claim.
36. On 19 November 2009 a hearing took place in both claims. The court heard argument from counsel for both parties. At the conclusion of the hearing, the High Court granted the Prosecutor’s Office’s application for judicial review, refused the applicant’s application for permission to apply for judicial review and indicated that it would hand down a reasoned judgment in due course.
37. On 12 January 2010 the Magistrates’ Court resumed the hearing of the Prosecutor’s Office’s application. The District Judge ordered the applicant to serve the four-year term.
38. On 15 January 2010 the High Court handed down its reasoned judgment in the judicial review claims. It noted that this was not a case where it was being suggested that there had been “a deliberate abuse” of the extradition proceedings or that the Swiss authorities were deliberately misled or that the extradition proceedings were improperly manipulated.
39. The court held that it was entirely satisfied that the default term formed part of the original sentence, since it was an integral part of the confiscation order which, it was common ground, was unarguably part of the original sentence. It considered the argument that enforcement of the default term involved proving the commission of a further separate offence to be wholly artificial and had no hesitation in rejecting it.
40. As to the applicant’s alternative argument that if the default term did form part of the original sentence and proceedings to enforce it were a process in which the applicant would be dealt with for the original offences, then there should be a mechanism for dealing with the express reservation of the Swiss authorities, the court was again satisfied that there was no substance in this submission, and held that the Swiss reservation was the result of their misunderstanding of the extent of the United Kingdom’s “clearly expressed request”.
41. The court summarised the various exchanges between the Swiss and British authorities prior to the applicant’s extradition and agreed with counsel for the Prosecutor’s Office that the British diplomatic note of 28 August 2008, read as a whole, made it perfectly clear that extradition was not required in respect of any charge of non-payment of the confiscation order, since there was no such actual or proposed charge because the order in question formed part of the sentence imposed for the offences of which the applicant had been convicted and in respect of which his extradition was being sought. It continued:
“In other words, it was not necessary to seek extradition specifically for the non-payment because the confiscation order was merely part of the sentence for the offences for which he was to be extradited and was not a separate charge in its own right.”
42. It concluded that the imposition of the default term would offend neither the rule of specialty in section 151 of the 2003 Act nor under Article 14 of the ECE.
43. As to the argument that the enforcement of the default term constituted an abuse of process, the court found:
“33. ... In the light of our decision that there is no infringement of the rule of specialty in this case, we have come to the firm conclusion that there is no abuse of process involved in proceeding to enforce the default term against Mr Woolley in the circumstances of this case, notwithstanding the misunderstanding of the position by the Swiss authorities and their expressed reservation.”
44. It concluded that the decisions and comments of the Swiss courts in respect of the default term for non-payment of the confiscation order were simply not binding on the courts of the United Kingdom and the rule of specialty had not been infringed. For the reasons given, the court was satisfied that the United Kingdom had not deliberately misled the Swiss authorities, that it had always made its intentions clear and that there had been no improper or unfair manipulation of the processes of extradition or for the enforcement of the default term.
45. On 4 February 2010 the applicant applied to the High Court for certification of points of law of general public importance and for leave to appeal against the judgment of the High Court. On 16 February 2010 the court refused the applications.
46. On 19 March 2010, by letter to the British Embassy, the Swiss Federal Office of Justice reiterated:
“By means of the diplomatic note dated 28 August 2008, the Embassy sent the DFJP [Swiss Federal Department of Justice and Police] a letter from the British authorities showing that extradition was not required for the non-payment of the confiscation order. In accordance with this letter, this aspect has been withdrawn from the extradition proceedings and has not been dealt with in the decision. Therefore, extradition has not been granted for the non-payment of the confiscation order.”
47. The Federal Office of Justice indicated that if the British authorities had enforced the four-year default term of imprisonment for non-payment of the confiscation order, this would amount to a breach of the rule of specialty.
48. In April 2010, as a result of early release provisions, the applicant reached his release date in respect of the nine-year term of imprisonment imposed for the extradition offence. He is currently in detention pursuant to the default term of imprisonment imposed in respect of the non-payment of the confiscation order.
49. On 26 June 2010 the British Embassy in Berne forwarded a Diplomatic Note to the Swiss Government reiterating its contention that the activation of the default term did not violate the principle of specialty.
50. On 14 September 2010 the Swiss Federal Department of Justice responded to the Note. It indicated that it disagreed with the interpretation of the British authorities and courts of the rule of specialty and reiterated that in its view subjecting the applicant to the default term of imprisonment violated that rule. It requested the British authorities either to request an extension of their extradition request pursuant to Article 14 of the ECE (see paragraph 67 below) or to release the applicant.
51. At the relevant time, section 71 of the Criminal Justice Act 1988 (“the 1988 Act”) provided for the making of confiscation orders. It imposed a duty on the court where the possibility of imposing a confiscation order arose to act as follows before sentencing:
“(1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct.
(1B) ... if the court determines that the offender has benefited from any relevant criminal conduct, it shall then–
(a) determine ... the amount to be recovered in his case by virtue of this section, and
(b) make an order under this section ordering the offender to pay that amount.”
52. The effect of section 75 of the 1988 Act and section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 was that if the Crown Court imposed a confiscation order, it could make an order allowing time for the payment of the amount of the fine. It was also required to make an order fixing a term of imprisonment which the subject of the fine was to undergo if any sum which he was liable to pay was not duly paid or recovered.
53. Section 75(5A) of the 1988 Act provided:
“Where the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect, so far as any other method of enforcement is concerned.”
54. The provisions on confiscation orders in the 1988 Act were repealed and replaced on 24 March 2003 by the Proceeds of Crime Act 2002. The changes are not relevant to the present case.
55. Section 50 of the Criminal Appeal Act 1968 (as amended) deals with the meaning of “sentence”. It provides:
“(1) In this Act ‘sentence’, in relation to an offence, includes any order made by a court when dealing with an offender including, in particular–
...
(e) a confiscation order under Part VI of the Criminal Justice Act 1988 ...”
56. Section 76 of the Magistrates’ Court Act 1980 gives the Magistrates’ Court the power to issue a warrant of commitment to activate the default sentence imposed by the Crown Court in the event of non-payment.
57. Under Swiss law, an obligation on an individual to pay a certain sum of money can arise in civil, administrative or criminal law.
58. In the context of such obligations arising under civil or administrative law, no penalty can be imposed on a debtor in default other than ordinary enforcement proceedings to obtain the forced sale of the debtor’s assets in order to extinguish the debt and any applicable interest.
59. In the context of criminal law, a person may be required to pay a sum of money by way of a fine following conviction for a criminal offence. If the fine is unpaid, the party in default will receive an equivalent prison sentence, which extinguishes the fine. If a convicted person has financially benefited from a criminal offence, a compensatory claim equivalent to the benefit can be imposed. In case of default, the relevant sum is recoverable under Swiss law on debt enforcement and bankruptcy. There is no provision for a term of imprisonment to be served in default.
60. At the relevant time, the applicant’s extradition was governed by section 151 of the Extradition Act 2003. Section 151 applied if a person was extradited to the United Kingdom from certain States (including Switzerland). Section 151(2) provided:
“The person may be dealt with in the United Kingdom for an offence committed before his extradition only if–
(a) the offence is one falling within subsection (3), or
(b) the condition in subsection (4) is satisfied.”
61. Subsection (3) defined relevant offences as:
“(a) the offence in respect of which the person is extradited;
(b) an offence disclosed by the information provided to the [extraditing] ... territory in respect of that offence;
(c) an offence in respect of which consent to the person being dealt with is given on behalf of the [extraditing] territory.”
62. The condition set out in subsection (4) was that:
“(a) the person has returned to the territory from which he was extradited, or
(b) the person has been given an opportunity to leave the United Kingdom.”
63. Section 151(5) clarified that a person is “dealt with” in the United Kingdom for an offence if he is tried there for it or he is detained with a view to trial there for it.
64. As of 25 January 2010, section 151 of the 2003 Act was replaced by section 151A, in similar terms.
65. The European Convention on Extradition 1957 (“the ECE”) governs extradition between Switzerland and the United Kingdom. Under Article 1 of the Convention:
“The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.”
66. Article 2 deals with the need for dual criminality and provides that extradition is to be granted in respect of offences punishable under the laws of both the requesting Party and the requested Party.
67. Article 14 deals with the principle of specialty:
“1. A person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reason restricted in his personal freedom, except in the following cases:
a. when the Party which surrendered him consents. A request for consent shall be submitted, accompanied by the documents mentioned in Article 12 and a legal record of any statement made by the extradited person in respect of the offence concerned. Consent shall be given when the offence for which it is requested is itself subject to extradition in accordance with the provisions of this Convention;
b. when that person, having had an opportunity to leave the territory of the Party to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it.
...”
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-a


ITEMID: 001-79771
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF HUOHVANAINEN v. FINLAND
IMPORTANCE: 2
CONCLUSION: No violation of Art. 2
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1964 and lives in Liperi.
7. On 2 December 1994 the applicant's 27-year-old brother J. was shot dead at six metres' range by the police following a two-day siege. The following events led up to the shooting:
8. On the evening of Wednesday 30 November 1994 J. threatened a taxi driver with a gun, forcing him to abandon his car. J. pointed his gun, which had a silencer on it, at the driver's chest and then pushed it against his abdomen with force causing loss of breath. While on the ground the driver was forced to put his hands up and his clothes were searched. He was then ordered to lie on the ground face down. When he tried to look up, J. held the gun to the back of his head and said “if you move, you know what this gun will do”. Finally, J. let the taxi driver go having taken a torch from the car.
9. Later that night, J. shut himself in his rented house on the island of Ängeslandet in the municipality of Kirkkonummi. He did not take any hostages. The island was subsequently evacuated.
10. According to the Government, the island comprises several hundred hectares of woods with several inhabited houses. It was sealed off from the mainland by the police. The area of the siege was not illuminated by lights other than those coming from J.'s house. There was daylight between 8 a.m. and 4 p.m. At night, there was no moonlight due to cloud. There was not enough snow, either, to provide enhanced visibility. In fact, the greater part of the operation was conducted in darkness. The temperature was around zero.
11. There were two bridges to the mainland. The island could also be left by boat or by walking in the shallow water or on the ice which covered some of the water. The house stood near the water and had doors and windows on all sides. The ground was uneven and covered with rocks, tree trunks and densely growing bushes. The surrounding area did not provide the police officers with cover. Some of them had visual cover only.
12. According to the applicant, the Government deliberately described the scene of the events as more difficult than it actually was. The location of the house was secluded. The trees surrounding it had been cut down by two armoured vehicles at the scene. There was no direct access to the woods from the bedroom door in the north-eastern part of the house.
13. According to the Government, a total of 50-60 police officers took part in the police operation. According to the applicant, more than 100 police officers and other officials participated in the two-day siege.
14. The house was surrounded by the police. During the night and in the early hours of Thursday 1 December 1994 the police gathered information from various sources. Having learnt that J. had been convicted of criminal activities, they contacted the police in his former home town. The police at the scene were informed that he had previously been involved in an armed siege, that he had been admitted to a psychiatric institution and that he was considered to be especially hostile towards the police. The police also contacted the psychiatric institution where J. had received treatment and were informed that it would be very difficult to conduct negotiations with J., who was extremely impulsive, paranoid, aggressive and incapable of co-operating. In order to draw up a profile of J., further information was received from two psychiatrists and one psychologist, from police officers who had been involved in J.'s previous siege and from his family and acquaintances.
15. At the beginning of the operation the instructions regarding the use of force were first to apprehend J. by issuing instructions to him, to refrain from using weapons and to act within the limits of self-defence:
1. In a self-defence situation each police officer decides for him or herself on the use of force.
2. If the suspect comes out without a gun, he shall be issued with instructions and be apprehended using a police dog if necessary.
3. If the suspect comes out with a gun, he shall first be given instructions and if possible the police dog shall be used. If he approaches carrying a gun, shots may be aimed at his legs as a last resort. The suspect must not be allowed to exit the cordoned area.
16. The border guard provided assistance in the form of a patrol boat and a helicopter. Units from the fire department were at the scene and an air ambulance was initially on stand-by and was moved closer at a later stage.
17. The police acquired the construction plan of the house but as a search at night would have been too risky it was postponed until the morning. At first light, the police started to approach the house in a line. A police dog and handler were on duty but when J. was spotted in the woods, armed, they were too far away to act and they lost sight of him. After J. had been sighted around and in the house and the situation had escalated, the search plan was abandoned altogether.
18. The police tried several times to contact J. by telephone, without success. From around noon a psychologist from the Police Academy was present to assist in the negotiations. However, no telephone calls were successfully put through.
19. Due to the lack of appropriate maps, the difficult surroundings and the safety hazards facing the police officers, the search was continued using a helicopter, which later spotted J. near the house. Following the sighting, the police moved closer to the house. The proper siege began at around noon. At that time there were 32 police officers present.
20. At about 2 p.m. the officer in charge at the scene, Superintendent T., requested the Ministry of the Interior to authorise the use of the Special Police Task Force. The request was granted and 23 specially trained police officers joined the police at the scene under the instruction of their commander, Superintendent H. Upon arrival, H. was informed by Superintendent T. of the instructions on the use of force.
21. The police moved closer to the building to establish direct contact with J., whereupon he fired shots in the air. Additional shots were fired by J. during the day some of which at the police officers at the scene. In addition to attempts to make direct contact, the negotiators tried repeatedly to reach J. by telephone, by leaving messages on his answering machine and by sending faxes. During the afternoon and early evening three short phone calls were successfully put through. However, J. refused to negotiate. At around 4 p.m. he said “many will go with me once I come out” and “I will count to ten and there will be nobody in the bushes”, whereupon he exited the house and shot in the air repeatedly. At 4.10 p.m. he stated “I will teach [you] a third and final lesson”. At 4.46 p.m. J. called the negotiator to say that he had fired his gun “because he did not know who [they] were”.
22. Around that time J.'s brother O. arrived at the scene. He informed the police that J. owned a 22 calibre small-bore rifle and a very heavy 45-70 calibre sporting gun. J. was also said to be an excellent shot, having practised shooting as a hobby. J. could not however be reached by telephone at the time.
23. At the scene, the police spotted J. carrying two long-barrelled weapons. The operation was scaled up, with enhanced security measures put in place to protect the police officers and any other persons in the area. At 9.15 p.m. O. called to inform that J. had called him and promised to let him into the house at dawn. During the evening and night J. was heard moving around outside in the darkness. The police had several lights trained on the house, but J. shot them all. At around 10 p.m. J. fired several shots in the air and at the police. The helicopter, which was training a searchlight on the house, was hit by J.'s small-bore rifle and had to perform an emergency landing in a nearby field. At around 11 p.m. J. shouted something at the police about a blasting operation, which made them suspect that he might also have explosives in his possession.
24. The closest Special Task Force hideout was located about 15 metres from the house at the edge of the woods. The police considered it impossible to surround the house from farther away without losing sight of it. Moving the operation further away from the house would have enabled J. to move around and possibly to enter other houses.
25. In the early hours of Friday 2 December 1994 the police used audible flares to locate J. and keep him indoors, from where he fired repeatedly through the windows and the skylight. He aimed some of the shots at the police. At 2.27 a.m. there were about 50 police officers on the island. At around 7 a.m. a police officer, S.K., from J.'s former home town (situated over 500 kilometres from the scene of the events) telephoned to inform that J. had called him. At about that time, J. was shooting around him. At 9 a.m. the negotiators managed to make contact with J., who demanded a written assurance that he would not be committed to a psychiatric institution. The request was refused. At 10 a.m. S.K. called J. At 11 a.m. the afore-mentioned psychologist arrived at the scene. At noon J. called S.K. The police's subsequent attempts to make contact failed.
26. The senior police officers assessed the situation in the light of the following incidents which had taken place during the previous night and during the morning. J. had shot at the police over a hundred times, having an excellent shooting position from the roof, which was accessible to him from the skylight. After the operation 14 bullet holes were found in a 15 x 20 cm-sized searchlight situated next to a police hideout. The rock providing cover to the command centre also had dozens of bullet marks on it. The police officers' gear did not give them adequate protection. The police officers' attempts to remain as invisible to J. as possible, the attempts at negotiation and the cutting-off of the telephone lines by the police to allow a night's rest, did not have any effect on J.'s behaviour. The police considered it too dangerous to allow the situation to continue another night, as J. was able to leave the house undetected when it was dark.
27. The senior police officers had lengthy discussions on whether to abandon the siege. However, they decided that public order and safety could not be guaranteed if the operation was abandoned. The use of a police dog was rejected as too risky, since the dog could not operate without the handler and there was no cover for the dog handler near the house. After weighing up the different possibilities, the officer in overall charge obtained executive assistance from the defence forces in the form of two armoured personnel carriers (nos. 31 and 51) with drivers. It had also been suggested by a psychologist at the aforementioned psychiatric institution that “a show of strength in the form of military force and vehicles might allow J. to retreat honourably”. The armoured vehicles also allowed closer monitoring of the house and made possible the use of tear gas and, if necessary, the evacuation of injured persons.
28. Around noon, when repeated negotiation attempts had failed, the officer in charge at the scene, Superintendent T., ordered the use of tear gas to break J.'s resistance. The order was carried out from armoured vehicle no. 51. The gas had no visible effect on J. As his whereabouts in the house were unknown, Superintendent T. ordered the window panes and curtains to be removed some two hours later in order to prevent surprise attacks. Armoured vehicle no. 51 remained at the corner of the green and yellow sides, 5.8 metres from the bedroom door, with a view to observing and effecting an arrest. Shortly after the removal of the window panes J. was spotted on the roof.
29. During the day the police tried repeatedly to reach J. by telephone. However, he did not answer their calls. When it got dark, the searchlights were switched on, whereupon J. fired his gun. At around 4 p.m. J.'s brother O. arrived at the scene but it was considered too dangerous to let him approach the house. The same considerations applied to having the afore-mentioned police officer S.K., who arrived at the scene at 6.20 p.m., approach the house. Meanwhile, at around 5 p.m. the police used a megaphone to make contact with J., without success.
30. At about 6 p.m. J. fired shots towards the armoured vehicles and the border guard boat apparently with a view to shooting the searchlights. In addition, he threw a gas canister and at least two “Molotov cocktails”. At the same time it appears that J. set the house on fire. J. was seen walking around inside carrying a rucksack and breaking glass and furniture in an uncontrolled manner. The police estimated that the situation had become more dangerous and more difficult as it seemed that J. was planning an escape. His conduct was becoming increasingly hostile and self-destructive. His life was deemed to be in danger from the fire.
31. At that point, abandoning the operation was not an option owing to the serious threat posed by J. The use of a dog was impossible under the circumstances, as was the sending of an action team into the burning house. It was decided that the only possible way to stop and apprehend J. in the dark and smoke-filled conditions before he could escape was to order a police officer to shoot with a shotgun aimed at J.'s leg, although shooting was considered extreme and a last resort.
32. At 6.26 p.m. flares were used to have the scene lit. The Special Task Force commander, Superintendent H., and the officer in charge at the scene, Superintendent T., decided that J. should be shot at, on the firm understanding that he be hit only in the leg. The goal of the shooting operation was to rescue J. from the burning building without endangering the other persons at the scene. Senior Constable T.L. was assigned the task of firing the shot. The manner in which he carried out the order was left to his discretion. He chose a shotgun in order to cause as little injury as possible. According to the Government, the shotgun was chosen also in order to minimise the danger to the police officers and rescue personnel on the opposite side of the house. The officer in overall charge, Provincial Chief Inspector K.A., authorised the change of instructions on the use of force at 6.31 p.m., whereupon T.L. fired one 9 x 9 millimetre lead shot through the porthole of armoured vehicle no. 31 at 18 metres' range. J. was hit in the right hand and the upper part of the right thigh. J. was issued with instructions to surrender.
33. The shot had no visible effect on J., who continued to throw objects into the fire and to move around inside the house. No further shooting was authorised since it had proved ineffective. According to the subsequent indictment, J. did not fire his gun after he had been hit.
34. By 6.56 p.m. the house was ablaze. Thirty seconds later the Special Task Force commander, Superintendent H., estimated that J. would exit the house within two minutes if he intended to come out at all before its expected collapse. Due to the noise of the fire no further contact with J. was possible. The police expected him to leave the house either through the bedroom window from which the glass had been removed or through the bedroom door. According to the subsequent indictment, the only way out had been the lower part of the door on the so-called green side of the house.
35. At about 7 p.m. J. broke the glass on the lower part of the bedroom door and cleared the frame of shattered glass with his weapon. He started to crawl out through the opening, which was about 80 centimetres high. He was carrying two weapons. At that point he was hit by two shots fired simultaneously by Senior Constables A. and L., from armoured vehicle no. 51 at six metres' range. Both shots were aimed at J.'s shoulder and arm, but owing to his position, the firing angle through the porthole of the armoured vehicle and the short time available, he was hit in the head.
36. According to the Government, in the final stage of the siege there had been a total of 19 police officers surrounding the building. Out of these, seven officers were inside the armoured vehicles. According to the applicant, the total number had been greater.
37. The prompt resuscitation efforts at the scene were unsuccessful and J. died at 7.35 p.m. The site was sealed off and an investigation was started immediately.
38. During the siege a log was kept of the decisions made and actions taken. Due to the geographical conditions not all the radio conversations were recorded on tape, but the later part of the siege was recorded on audio tape and the use of tear gas was also recorded on video tape. Although the area was sealed off for the crime-scene investigation, some evidence may have been destroyed when the fire was extinguished. Despite this, it was possible to collect details of the bullet holes in and around the building. The investigation, which started immediately, was carried out by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen), which is one of the national units of the Finnish Police. The National Bureau of Investigation specialises in investigating and preventing serious, organised and international crime. At the national level, it is responsible for criminal intelligence and identification of new types of crime. The National Bureau of Investigation also develops criminal-investigation techniques and provides training in the aforementioned subjects. On 2 December 1994 the investigation into the cause of J.'s death began.
39. At the particular request of J.'s family, certain additional lines of inquiry were followed during the pre-trial investigation. The autopsy report and the results of all the forensic and other investigations, as well as the reports on the siege, were included in the pre-trial documentation, together with a large number of witness statements.
40. Having received the investigation report concerning the cause of death, the National Bureau of Investigation, on 8 February 1995, began to investigate whether anyone involved in the siege had acted in an unlawful manner.
41. In 1995 the decisions made and the actions taken during the operation were studied by a permanent investigation team set up by the Ministry of the Interior. The tasks of the team include investigation of the tactics, plans and actions of particularly dangerous police operations. Occupational safety requirements are considered and improvements suggested where necessary. In addition, the team has an educational role, creating educational material for police forces and giving advice on future operations where appropriate.
42. The investigation team studied the operation in question hour by hour, drew conclusions and made recommendations on the basis of the investigation. The team drew attention in particular to the inadequacies of the police officers' protective equipment and stressed the importance of improving their occupational safety in future operations. The report was finalised within one year of the operation in question.
43. Meanwhile, on the evening of 2 December 1994 the local police issued a press release stating that the situation at the scene had become extremely serious as the suspect had been firing at the police with the apparent intention of breaking through the cordon in order to escape. The police had made tactical use of gas, but the suspect had continued to direct heavy fire at the police and had thrown fire bombs both outside and inside the house, causing the house to catch fire. Finally, the armed suspect had run out of the building. The situation had become so serious that the police had been forced to act. There had been an exchange of fire as a result of which the suspect had been hit and had died.
44. On 2 February 1995 the National Bureau of Investigation issued a press release stating that according to the investigations so far three police officers had each fired once at J. It also stated that there were grounds for investigating whether J. had committed suicide in an unusual manner.
45. At the District Prosecutor's request, the National Bureau of Investigation conducted an additional investigation during the consideration of the charges.
46. On 26 September 1995 the District Prosecutor decided to charge the commander of the Special Task Force, Superintendent H., with negligent homicide and negligent breach of official duty. The indictment was to the following effect.
Upon his arrival at the scene, H. had received the afore-mentioned instructions on the use of force (see paragraph 15 above). It was H.'s responsibility to inform his subordinates of the instructions on the use of force. H. duly informed his men, but added the following:
“If, despite everything, [the suspect] tries to break through the cordon of police officers, he must be stopped. In the last resort, this may be done by shooting at him in the upper body.”
The District Prosecutor considered that H.'s own adaptation of the instructions on the use of force, according to which his men had the right under certain conditions to shoot J. in the upper body, was a fundamental change in orders which H. did not have the right to give without the explicit approval of the officer in charge at the scene or the officer in overall charge. H. must therefore be considered to have breached his official duties on account of his negligence in relaying the instructions to his men. Having regard to the fact that H. was to be considered as having sought to clarify the instructions for his men rather than to deliberately alter them, the District Prosecutor took the view that his conduct, although reprehensible, should be considered only as negligence in the performance of duty.
Towards the end of the chain of events of 2 December 1994, just before 7 p.m., J. broke the glass on the lower part of the bedroom door and was about to exit the building with no apparent intention of surrendering to the police, apparently intent on escaping, armed, through the police cordon. At that moment he was hit by two shots fired simultaneously from armoured vehicle no. 51 at six metres' range by two police officers, Senior Constables A. and L. They considered, as did their superior officer, that there was no other way of stopping J., who received a fatal shot to the head. A. and L. were acting on the orders of their superior officer, Sergeant R. Accordingly, the District Prosecutor considered that H. had negligently caused J.'s death, having provided his men with an arbitrary interpretation of the instructions on the use of force, which A. and L. had tried to act upon.
47. On 15 November 1995 the District Prosecutor decided not to bring charges against the officer in overall charge, Provincial Chief Inspector K.A., and the officer in charge at the scene, Superintendent T., for negligent breach of official duty, finding that the shooting of J. in the legs had been justifiable under Chapter 3, Article 8 of the Criminal Code. He also decided not to prefer charges for negligent breach of official duty against A. and L., who had both fired shots at six metres' range. He found that the decision to stop J. by using a gun had been in line with the instructions on the use of force, and justified in the circumstances. While it could be argued that the shots had been fired too early, it was unreasonable in the circumstances to direct criticism at A. and L.
48. Lastly, he decided against bringing charges of manslaughter against Sergeant R., finding that he had given an order to take lawful action against J. There was no evidence that he had ordered A. and L. to shoot to kill.
49. The District Prosecutor therefore concluded that the evidence did not warrant the prosecution of any of the persons involved in the siege, with the exception of the commander of the Special Task Force, Superintendent H., whom he had decided to prosecute by his decision of 26 September 1995.
50. On 22 February 1997 the District Prosecutor also decided against bringing charges of endangering others and committing an offence in the performance of duty against Sergeant R. in his capacity as the superior of the police officer who had fired tear gas into the house.
51. Following the District Prosecutor's decision not to bring charges, J.'s family brought a private prosecution. It appears that some of them were granted free legal assistance. In April 1996 they brought charges against Senior Constable T.L. for aggravated assault and abuse of office, on the ground that he had shot at J. at 18 metres' range, inflicting bodily harm. They also preferred charges against Senior Constables A. and L. for manslaughter and aggravated abuse of office, on the ground that they had shot J. in the head at six metres' range with a 9 x 9 millimetre lead shot, in a situation where he had manoeuvred only his upper body through the door opening. Lastly, Sergeant R. was charged with manslaughter in his capacity as A. and L.'s superior officer, who had ordered them to shoot. The complainants also claimed damages from the State.
52. In the proceedings against the commander of the Special Task Force, Superintendent H., J.'s family did not submit any claims.
53. The District Court held two hearings in November 1995 and took forensic and oral evidence. The members of the Special Task Force involved in the siege appeared before the court and gave evidence to the effect that they had understood their commander, Superintendent H.'s, orders as relating to a self-defence situation in the strict sense. The officer in charge at the scene, Superintendent T., testified that at 6.37 p.m. he had heard Superintendent H. say on the police radio that J. could be shot in the legs when he appeared and that if his gun was pointed towards the police he should be shot dead. T. had been about to correct the order but he had then heard Superintendent H. correct it himself by saying that J. should not be shot dead but shot in the upper body. T. had accepted the change of order and perceived it as an operational tactic in a genuine self-defence situation. He had therefore not intervened. T. considered that H.'s order was in line with the instructions on the use of force.
54. A. gave evidence to the effect that, had J. managed to get up on his feet, he would have posed an immediate threat to the life or health of the police officers in the cordon. A. had perceived the situation as requiring self-defence and had therefore fired his gun. He had done so independently and irrespective of H.'s amendment to the instructions on the use of force.
55. L. gave evidence to the effect that the sector of fire had been too narrow to await a possibility to shoot at J.'s legs. When exiting the house J. had posed a threat to the police officers in the cordon. Due to J.'s position it had not been possible to aim at his legs. L. had perceived the situation as requiring self-defence. H's amendment to the instructions on the use of force had not influenced his judgment.
56. On 18 December 1995 the District Court (käräjäoikeus, tingsrätten) of Raasepori dismissed the charges. It observed that the forensic reports revealed that J.'s death had been caused by a shot fired at six metres' range. It was not known which of the shots fired by Senior Constables A. and L. had brought about his death. The court observed that the instruction had been given to a trained team of specialists used to working closely together. A. and L. had shot at J. independently of their commander Superintendent H.'s amendment to the instructions on the use of force, because they had perceived the situation as requiring self-defence.
57. The District Prosecutor appealed. On 21 August 1997 the Helsinki Court of Appeal (hovioikeus, hovrätten) upheld the lower court's judgment. The acquittal appears to have become final.
58. The District Court of Raasepori conducted an inspection in an armoured vehicle and heard evidence from about thirty witnesses, including four doctors on the subject of the autopsy, J.'s mental health prior to and during the siege and his treatment in a psychiatric institution; six persons responsible for the forensic investigation; the senior police officers; 11 police officers and other police personnel who had been at the scene or working with the remote units; the drivers of and police officers in the armoured vehicles; a negotiator and a firefighter; three experts on ammunition, weapons and tear gas; and two other persons on the nature of the information provided by the police after the operation. The court also had before it the pre-trial investigation records, the medical reports on J. and the reports and opinions concerning the forensic investigation. It also had audio and video tapes of the siege.
59. The doctors testified that J. had been suffering from a serious personality disorder and paranoia, had had a grandiose perception of himself and had been aggressive and violent. They considered that he had been in need of compulsory care at the time of the events. All these factors had made the situation dangerous and urgent.
60. In his testimony, a forensic medical expert, T., expressed the view that firing a shotgun with lead shots, with a scatter of over 30 centimetres, at six metres' range could be considered tantamount to executing the target. The weapon in question was not a precision weapon.
61. Sergeant R. gave evidence to the effect that J.'s behaviour and the way he had exited the house had made clear his intention not to surrender but to break through the cordon while armed. J. had had to be stopped by having shots fired at him from the armoured vehicle, as the lives of the police officers outside would have been endangered by any cross-fire. Several police officers gave evidence to the effect that J. had come out crouching. He had also been carrying the guns, which were pointing outwards. Senior Constables L. and A had aimed at J.'s shoulder, but had hit him in the head.
62. In its judgment of 22 August 1997 the District Court observed that the scope of the case was not to assess whether the actions of the police taken as a whole had been appropriate to the purpose of the siege. The scope was confined to the examination of the charges.
63. The court dismissed the charges against Senior Constable T.L., finding that he had not exceeded his powers.
64. As to the charges against Senior Constables A. and L., the court noted the following. Several witnesses had given evidence to the effect that the shotguns had been pointing outwards when J. had made his way out of the building, whereas the forensic report had stated that the guns had been found pointing inwards after the fire had been extinguished. A firefighter had testified that the power of the fire brigade's hoses might possibly have altered the shotguns' position. In any event, the court found that the position of the shotguns was not decisive. What was decisive was the fact that J. had brought the guns when making his way out and that A. and L. had been convinced that the guns were pointing towards them. The court also attributed importance to the fact that J. had crawled out through the door although he could have opened it and walked out. The manner of exit strongly suggested that he had not planned on surrendering. On the contrary, the court drew the conclusion that J. had tried to exit the building undetected with a view to breaking through the cordon and escaping into the dark woods. As to whether any blame could be attributed to A. and L. for not waiting one or two seconds before shooting in order to be able to target the lower part of his body, the court observed that the forensic examination and a reconstruction of the events had disclosed that A.'s sector of fire had ended one metre to the left of the doorway and the sector available to L. had ended 0.2 metres to the left of the doorway. Having regard to the narrowness of the sectors of fire and the inside of the armoured vehicle and the fact that J. could have disappeared from their sectors of fire at any moment, the court concluded that A. and L. had fired their guns in self-defence.
65. As to their superior officer, Sergeant R., the court found that A. and L. had acted independently and in self-defence, and that his order to shoot had therefore not caused J.'s death.
66. Accordingly, the District Court dismissed the charges and the other claims.
67. The applicant and his co-complainants appealed, requesting a hearing. On 16 and 17 September 1998 the Helsinki Court of Appeal held an oral hearing during which the defendants and five witnesses were re-examined. In addition, it heard evidence from one new witness proposed by the complainants, making a total of ten witnesses. The court refused the complainants' request to re-examine ten other witnesses as being manifestly unnecessary, since their statements either concerned circumstances that had already been clarified during the proceedings in the lower court or were irrelevant. It appears that the defendants did not adduce any oral evidence and that the Court of Appeal, of its own motion, called three of the witnesses who had been examined before the District Court.
68. By a judgment of 23 March 1999 the Helsinki Court of Appeal upheld the lower court's judgment. With regard to the charges against Senior Constable T.L., it found that he had acted in order to effect J.'s arrest under Chapter 3, Article 8(2) of the Criminal Code, which justified the use of force. As to Senior Constables A. and L. and Sergeant R., it found that, following J.'s appearance, armed, in the doorway the arrest situation had turned into a situation requiring self-defence under Chapter 3, Article 6 of the Criminal Code. Making an assessment based on the circumstances at the scene, the court considered that the shooting had been justified and necessary in order to repel an imminent attack and had fulfilled the requirements of the principle of proportionality.
69. On 8 November 1999 the Supreme Court (korkein oikeus, högsta domstolen) refused the complainants leave to appeal by a majority (two votes to one).
70. The right to life is guaranteed under the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999, section 7). At the material time, it was guaranteed under the then Constitution Act (Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/191, section 6).
Manslaughter carried a minimum sentence of eight years' imprisonment or, under mitigating circumstances, four years (Chapter 21, Article 1 (as amended by Act no. 491/1969) of the Criminal Code (rikoslaki, strafflagen) as in force at the relevant time).
A person who caused the death of another through negligence could be sentenced to a fine or to imprisonment for a maximum period of two years for negligent homicide (Chapter 21, Article 8 (as amended by Act no. 578/1995) as in force at the time of the criminal proceedings).
Aggravated assault carried a maximum penalty of ten years' imprisonment (Chapter 21, Article 6 (as amended by Act no. 491/69) as in force at the relevant time).
In matters other than breaches of official secrecy, public servants acting in an official capacity who, as a result of carelessness or inattention, were in breach of or neglected to fulfil their official duties as set out in the relevant provisions or regulations, were liable to a reprimand or a fine for negligent breach of official duty, unless the act viewed overall, in the light of any harmful effects and of other circumstances, was of minor importance (Chapter 40, Article 11 (as amended by Act no. 792/1989) as in force at the relevant time).
Persons committing an act which, though otherwise punishable, was necessary in order to repel a present or imminent unlawful attack against themselves or others, or against their property or that of others, were deemed to have acted in self-defence and were therefore not liable to punishment (Chapter 3, Article 6 (as amended by Act no. 621/1967) as in force at the relevant time).
A person committing an act not necessary to repel an attack, protect the sanctity of the home or retrieve his or her property, was liable to either a full or a reduced sentence, at the discretion of the court, for overstepping the bounds of self-defence. If the circumstances were such that the person could not reasonably have been expected to retain his or her self-control, no punishment was imposed (Chapter 3, Article 9, paragraphs 1 (as amended by Act no. 621/1967) and 2 (as amended by Act no. 321/1983). That provision was amended with effect from 1 January 2004. It now provides that an act which is necessary in order to repel a present or imminent unlawful attack constitutes legitimate self-defence, unless it manifestly exceeds what, on the basis of an overall assessment, may be deemed justifiable, taking into account the nature and force of the attack, the identity of the defender and the attacker and the other circumstances. However, if the act oversteps the bounds of self-defence (excessive self-defence), the offender is exempt from criminal liability if the circumstances were such that he or she could not reasonably have been expected to act otherwise, taking into account the danger and the sudden nature of the attack and the situation in general (Chapter 4, Article 4 (as amended by Act no. 515/2003).
71. The Police Act in force at the material time (Act no. 84/1966) provided that the duty of the police was to maintain public order and security (section 1). A police officer had the right to remove or apprehend a person and temporarily keep the person in custody if he or she was causing a disturbance or was posing an immediate danger to public order or security. A police officer had the right to apprehend and temporarily keep in custody a person who, on the basis of his or her threats or other behaviour, was likely to commit an offence. A person could also be taken into custody to protect him or her from imminent danger to his or her life or health (section 19).
Where a police officer met resistance in the performance of his or her duty, he or she was entitled to use such force as could be deemed justified in view of the nature of the duty, the seriousness of the resistance and the other circumstances prevailing in the situation (Chapter 3, Article 8, paragraph 1 (as amended by Act no. 621/1967) of the Criminal Code as in force at the relevant time). When a person being apprehended, arrested or detained attempts to avoid capture by resisting or escaping, the use of force is allowed in order to capture him or her, to prevent his or her escaping, or keep order, when such measures can be justified in view of the circumstances (Chapter 3, Article 8, paragraph 2 (as amended by Act no. 621/1967). In a situation where greater force has been used than can be deemed justified, the sentence may be reduced on grounds of mitigating circumstances or, if there are very persuasive reasons for so doing, a decision may be taken not to impose any punishment (Chapter 3, Article 9, paragraph 2, as amended by Act no. 321/1983).
The Supreme Court has established precedents concerning the right of self-defence in cases relating to police actions in siege situations (nos. KKO 1988:49, 1993:50 and 2004:75).
72. A public corporation is vicariously liable in damages for injury or damage caused through error or negligence in the exercise of public authority. The same liability also applies to other corporations that perform public duties on the basis of an Act, a Decree or an authorisation given in an Act. However, liability is incurred in the exercise of public authority only if the performance of the activity or task, in view of its nature and purpose, has not met the reasonable requirements laid down for it (Chapter 3, section 2 of the Tort Liability Act (Act no. 412/1974).
Damages shall constitute compensation for personal injury and damage to property. Where the injury or damage has been caused by an act punishable by law or in the exercise of public authority, or in other cases where there are especially compelling reasons, damages shall also constitute compensation for economic loss that is not connected to personal injury or damage to property (Chapter 5, section 1).
A person who has suffered a bodily harm or other personal injury shall be entitled to damages to cover medical costs and the other costs arising from the injury and to compensate for loss of income and maintenance, pain and suffering, invalidity and other permanent disability (Chapter 5, section 2).
The provisions on personal injury apply also to damages for the distress caused by an offence against individual liberty, honour or domestic peace or by another comparable offence (Chapter 5, section 6).
73. The court shall decide what is to be regarded as the truth in the case after having carefully evaluated all the facts submitted to it (Chapter 17, Article 2, paragraph 1 (as amended by Act no. 571/1948) of the Code of Judicial Procedure).
74. The police force operates under the supervision of the Ministry of the Interior. It is a three-tier organisation. At the top is the Police Department of the Ministry of the Interior or the Supreme Police Command. Below are the Provincial Police Commands, the national police units, the police training establishments, the Police Technical Centre and, for operational purposes, the Helsinki Police Department. The third level is the local police, who operate under the relevant Provincial Police Command.
The Police Department of the Ministry of the Interior also comprises the Police Advisory Board set up by the Government. Each district police force has its own police advisory committee, appointed by the local council.
Provisions on the organisation of the police and the duties of the different police units and advisory committees are laid down by the Police Administration Act (laki poliisin hallinnosta, polisförvaltningslagen; Act no. 110/1992).
The national police units also come under the supervision of the Ministry of the Interior. However, the National Bureau of Investigation is separate from the provincial and local police forces.
A Special Task Force is maintained by Helsinki Police Department, answerable to the Ministry of the Interior. It has no special privileges and must comply with the legal, operational and ethical standards laid down for the police. It is a part of the police structure and always operates under the command of the unit whose operation it is participating in. The lines of action are decided by the officer in overall charge and, on the ground, the Special Task Force is subordinated to the officer in charge at the scene.
The duty of the Special Task Force is to be prepared and equipped for situations where normal police operations fail to produce the desired outcome. Its members are trained to act as a specialist team, and have more elaborate protective equipment than the local police. They receive regular training in special operations such as siege and hostage situations. They are members of the police patrol force. In 1994 special operations and training accounted for approximately twenty per cent of their work time.
At the material time, the Special Task Force's equipment did not include protective gear against rifle-calibre weapons. The amount of night-vision equipment which they had was not adequate and their clothing was unsuitable for prolonged operations in winter conditions.
75. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN Force and Firearms Principles) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.
Paragraph 9 of the UN Force and Firearms Principles provides, inter alia, that “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”.
Other relevant provisions read as follows:
Paragraph 10
“... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.”
Paragraph 22
“... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.”
Paragraph 23
“Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.”
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