Practice Relating to Rule 99. Deprivation of Liberty
Finland’s Criminal Code (1889), as amended in 2008, provides that any person who “holds in unlawful detention … the population or parts thereof” shall be “sentenced for a war crime
to imprisonment for at least one year or for life”.
(emphasis in original)
In 2003, in its fifth periodic report to the Human Rights Committee, Finland stated:
131. Section 7, subsection 1, of the Constitution further guarantees the right to liberty and security of person, thus specifically affording protection against unlawful and arbitrary deprivation of liberty and violations of the integrity of person. Protection against such unlawful acts has traditionally been afforded by the provisions of the Penal Code. The provision of the Constitution, however, also guarantees the right to the liberty and security of person vis-à-vis authorities. At the same time, the provision requires that the State take legislative measures to provide protection against violations of the right to liberty and security of person committed by others.
132. The afore-mentioned guarantee was included in section 7, subsection 1, in order for the provision to be in conformity with Article 9 of the Covenant and Article 5 of the European Convention on Human Rights. The fact that the right to liberty and security of person is specifically mentioned underlines the obligation of authorities to take positive measures in order to protect members of society against offences and other unlawful acts, be the offenders persons exercising public powers or private individuals. The provision also requires measures to protect the rights of victims of crime.
133. Under the Finnish Constitution, no arbitrary or unlawful interference with the integrity of person or deprivation of liberty is allowed. A punishment entailing deprivation of liberty may only be imposed by a court of law. The lawfulness of any deprivation of liberty may also be challenged before a court of law. The Constitution also requires protection of the rights of persons deprived of their liberty. The purpose has been to ensure that those rights are guaranteed by law as required, inter alia, by international human rights conventions.
134. By way of derogation from the technique used in the European Convention on Human Rights, the Finnish Constitution does not contain any list of acceptable grounds of deprivation of liberty. Partly for this reason has it been necessary to provide for an explicit prohibition of arbitrary deprivation of liberty. It also restricts the possibility of Parliament to enact provisions on acceptable grounds of deprivation of liberty and ensures access to legal remedies in respect of deprivation of liberty. The same applies to any interference with the integrity of person. For example an order on the involuntary treatment of a mentally ill patient (deprivation of liberty) or any physical restraint on him or her during the treatment must satisfy the requirements set forth in the Constitution. The Mental Health Act contains provisions designed to ensure this.
135. According to the Constitution, any punishment entailing deprivation of liberty shall be ordered by a court of law. The provision covers any deprivations of liberty considered punishments and its scope of application is thus wider than the relevant provisions of the Penal Code.