Chapter 2 — Counsel

Section 1

(1) A person suspected of an offence has the right to self take care of his/her defence in criminal investigations and in a trial.

(2) On the request of the suspect, a defence counsel is to be appointed for him/her, if :

(1) he/she is suspected of or charged with an offence punishable by no less than imprisonment for four months or an attempt of or participation in such an offence ; or
(2) he/she is under arrest or in detention.

(3) A defence counsel is to be appointed to a suspect ex officio, when :

(1) the suspect is incapable of defending himself/herself ;
(2) the suspect, who has not retained a defence counsel, is under 18 years of age, unless it is obvious that he/she has no need of a defence counsel ;
(3) the defence counsel retained by the suspect does not meet the qualifications required of a defence counsel or is incapable of defending the suspect ; or
(4) there is another special reason for the same.

Chapter 2 — Counsel

Section 1a

A court may appoint a counsel for the injured party for criminal investigations and, where the injured party has a claim in a case prosecuted by the public prosecutor, for the trial :

(1) in a case relating to a sexual offence referred to in chapter 20 of the Penal Code, unless this is for a special reason deemed unnecessary ; and
(2) in a criminal case referred to in chapter 21, section 1—6 of the Penal Code, if this is to be deemed necessary in view of the relationship between the injured party and the suspect of the offence.

Chapter 2 — Counsel

Section 2

(1) A person appointed under section 1 or 1a as defence counsel or counsel for the injured party must be a public legal aid attorney or an advocate. If there is no suitable public legal aid attorney or advocate available or there is another special reason for it, also another person with the degree of oikeustieteen kandidaatti/juris kandidat who by law is competent to act as an attorney may be appointed as defence counsel or counsel for the injured party. The person to be appointed as defence counsel or counsel for the injured party is to be reserved an opportunity to be heard on the appointment. (260/2002)

(2) When the suspect or the injured party has self nominated a person meeting the qualifications as defence counsel or counsel for the injured party, the nominee is to be appointed unless there are special reasons for the contrary.

Chapter 2 — Counsel

Section 3

On the conditions referred to in section 1a, an adequately qualified support person may be appointed for an injured party in an offence referred to in section 1a who does not make a claim in the trial and who is being heard in person in order to resolve the case, if it is deemed that he/she needs assistance in the criminal investigation or the trial.

Section 4

(1) A defence counsel, a counsel for the injured party and a support person are to be appointed by the court where the criminal case is pending or where a charge for the offence may be brought. Subject to the criteria provided in section 13(1) and (2) of the Legal Aid Act, the appointment may be given retroactively to concern the necessary measures already undertaken in the case. If the hearing of the case has been concluded and the appeal period or response period has not yet expired, the appointments mentioned above are to be made by the court which last dealt with the case. (260/2002)

(2) In matters referred to in paragraph (1), a district court has a quorum with a single judge and a court of appeal with one member attending. The appointment may be transferred to be dealt with in connection with the criminal case for which the appointment has been requested. When a request for an appointment is decided in chambers and it is not granted, the requesting party is to be notified of the date of the pertinent court order well in advance of the issue of the order.

(3) If the prerequisites for the appointment of a defence counsel, as referred to in section 1, no longer exist, the appointment shall lapse. The provisions on an attorney in the Legal Aid Act apply, in so far as appropriate, to the revocation of the appointment of a defence counsel, a counsel for the injured party or a support person. (260/2002)

Chapter 2 — Counsel

Section 7

(1) A defence counsel and a counsel for the injured party shall as soon as possible confer with his/her client and begin to prepare the counsel, as well as undertake the measures necessary for the upholding of the rights of the client. Where necessary, the counsel shall serve his/her client also on appeal in a higher court.

(2) The appointment as defence counsel or counsel for the injured party made in accordance with this chapter shall be in force also in the separate proceedings for the hearing of the civil claim of the injured party, opened by virtue of chapter 3, section 3.

Chapter 5 – Bringing a charge

Summons issued by the court and other preparation of the case

Section 8

(1) If the case is not dismissed at once, as provided in section 6, the court is to issue a summons without delay.

(2) The summons, the application for a summons and the claim referred to in chapter 3, section 10 are to be served on the defendant as provided in chapter 11 of the Code of Judicial Procedure on service of notices.

(3) For a special reason, the summonsing of the defendant may be carried out also by serving only the summons on him/her and by advising him/her of the circumstances underlying the summons, as referred to in section 3(1)(3)–3(1)(5). In this event, the application for a summons and the claim referred to in chapter 3, section 10 are to be posted to the defendant without delay and well in advance of the hearing so that he/she has sufficient time to prepare his/her defence.

Chapter 5 – Bringing a charge

Transfer of the case to the main hearing

Section 12

(1) After the conclusion of the preparation, the case is without delay to be transferred to the main hearing.

(2) A direct main hearing of the case is to be ordered, if a request for a written response or a preparatory hearing are deemed unnecessary.

Chapter 8 – Parties

Presence of parties

Section 3

A defendant who is in detention shall be present in person before the court when the case regarding which he/she is detained is being dealt with.

Chapter 8 – Parties

Hearing and decision in a criminal case regardless of the absence of the defendant

Section 11

(1) A case may be heard and decided regardless of the absence of the defendant, if his/her presence is not necessary for the resolution of the case and if he/she has been summoned to the hearing under such a threat. In this event, the defendant may be sentenced to a fine or to imprisonment for at most three months, and subjected to a forfeiture not to exceed EUR 10,000. (1472/2001)

(2) If the defendant is to be sentenced to a punishment or forfeiture under paragraph (1), but he/she has had a legal excuse that he/she could not have announced in advance, the defendant has the right to have the case reopened by notifying the court of the same within 30 days of verifiable service of a notice of the punishment or forfeiture on the defendant. If the defendant does not prove that he/she had a legal excuse, the case is to be dismissed.

(3) The absence of the defendant does not prevent the rejection of the charge or the other demands.

Article 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.

Article 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.