Evidence in Civil Law - Finland

Front matter

LEX 2

LOCALIS

Evidence in Civil Law - Finland

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

N LEX- Evidence in Civil Law — Finland esperigi

Riikka Koulu LO CALIS Contents PattI E E A AE ies 1 1.1 Principle of Free Disposition of the Parties and Officiality Baan Up ess cee nan E ans KTK EEE K TK SOaA EAEE ute ESEESE 2 1.2 The Adversarial and Inquisitorial Principles... eee eeceeeceseceseeeeeeeees 3 1.3 Hearing of Both Parties Principle (audiatur et alter pars) — Contradictory Principle -sesasine irrena nieo 5 1.4 Principle of Orality — Right to Oral Stage of Procedure and 1.5 — Principle of Directness oe eecesecesecsseceeeceeeceeeeeeeeeeeeeeeeceseesaeesaeenaes 8 1.6 Principle of Public Hearing... eee cee a na nannaa aa naene naene 9 1.7 Principle of Pre-trial Discovery 0.0... eee eee cee cree eeeeeeeeeeeeeeeeeeeseeeaeeaeenaes 9 3 Eyidence Ini Generalis: sitenin sorene uneis a STESA 13 32- «Means of Proof prerese e aE RE E EN 14 32:1 Party Statements +... anene E ER EREE S S 15 3.3 Duty to Provide Evidence s.srcscseriisecsicisreeicesve etenin iie 17 4.2 Duty to Contest Specified Facts and Evidence 0.0.0... ee ee eeeeeseeeeeeeees 19 5 Written EVICENCE: s. vicesciteusecens chesoesstbsuesanbesdeesscetucosdouseesssdusdesderustersetuces 20 D2, Taking Of Evidenew....cic5..sscehecesssaceesvbcntvasesuseesoeducusscssutvsnsdebtesceetesevenbiacds 23 6 WIAUNESSES versa cohesashiveres asa EE EELEE ET EE EE T 23 6:1 Obligation to Testify .isscccscesccsseesctecesovecsstsesesssesensssgnsetasacvsecossedsstancectewsehets 23 03 OA es Ree cess Ascend EEEE E AEEA ERN 26 6.4 Duties and POWETS siesimisicieniaiasnooenmicaes neneka ne TEA aNOAT KEN NeN 27 7 Taking OF EVIden Censinio en aNSA HUImOATE VUkäA än K ÖÖ en 27 TA General Statements....s.usuvseman some omnnt e vasaa scsepoese Tou a aesnaseska eden SEEN 27 7.2 Rejection of an Application to Obtain Evidence and Specifying EVIASN E uninin seka ts mestaus Ease a ERE EE A EE 28 Ped The CATIN Gs .o5 ecaanis cess rsnscciesstes sateccdoxosattisusssicesscssnonse RE 29 Tid “WIMESSES sass sie desevsnseseesieueetcescssnee scedetenseantsutas dees E R 30 ii | Contents

Reterencescomss ee 45

Evidence in Civil Law — Finland I =" -

Riikka Koulu LO CALIS Part I

1 Fundamental Principles of Civil Procedure

The Finnish civil procedure is regulated in Code of Judicial Procedure (in Finnish oikeudenkdymiskaari 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 nondispositive cases include resolution of marriage, child access, paternity and guardianship issues in which there is a public interest involved.” 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.’ Also, the compatibility with the Regulation on obtaining evidence (1206/2001) has been taken into consideration.* 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.

ay yrki 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.

* 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.” 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," 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).’

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).

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 J yrki Virolainen, Periaatteet prosessioikeudessa, p. 199, in Dan Frände et al. (ed.), Prosessioikeus, 4th ed., Sanoma Pro 2012.

ê 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 conseguences 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 Inguisitorial Principles

The terminology of adversarial and inguisitorial 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 nondispositive 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.’ 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

? 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).

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).'°

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.'' 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. ?

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 reguired 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).'* 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.

' 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).

' 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.

2 Juha Lappalainen, Yleistä todistelusta, p. 604, in Dan Frände et al. (ed.), Prosessioikeus, 4th ed., Sanoma Pro 2012.

1S 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." The court has the ex officio obligation to ensure that such opportunity is reserved.'* 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.'* In the revised chapter 17 the parties’ right to comment on each piece of evidence obtained during the proceedings is even further accentuated.”

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).'$ 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).'? 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).”° If evidence is obtained outside the main hearing, the court calls both parties to such event (chapter 17 § 8b).”!

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

5 J yrki 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.

$ See Supreme Court decision KKO 2005:134.

7 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).

8 See also Supreme Court decision KKO 1998:86.

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.”

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 nondispositive), 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

?2 Jyrki Virolainen, Periaatteet prosessioikeudessa, p. 126, in Dan Frände et al. (ed.), Prosessioikeus, 4th ed., Sanoma Pro 2012.

Part I | 7 of 1993.” 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. 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.” 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).

°3 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 20" 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 prereguisites 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.

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

5 J yrki Virolainen, Periaatteet prosessioikeudessa, p. 173, in Dan Frände et al. (ed.), Prosessioikeus, 4th ed., Sanoma Pro 2012.

8 | PartI 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. Its core content is that the parties? statements and evidence must be obtained in an oral, immediate and concentrated main hearing (chapter 17 § 8a).? 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.* Similar to principles of orality and concentration, immediacy is seen to provide for both fair trial and finding the material truth. 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.”

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).*' Evidence obtained outside the main hearing has to readmitted unless there is impediment (chapter 17 § 8e).* 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.

°7 Tn 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.

ù 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.

” Riikka Koulu: Videoneuvottelu rajat ylittävässä oikeudenkäynnissä. Sähköisen oikeudenkäynnin nousu, University of Helsinki Conflict Management Institute, Helsinki 2010, p.

104. 3° Mika Huovila, Periaatteet ja perustelut. Tutkimus käräjäoikeuden tuomioiden faktaperusteluista prosessuaalisten periaatteiden valossa arvioituna. Suomalainen lakimiesyhdistys. Helsinki 2003, p. 221.

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).”

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).** 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. 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).