LAUKKANEN v. FINLAND
Inadmissible
Nicolas Bratza
The applicant, Mr Ari Laukkanen, is a Finnish national, who was born in 1953 and apparently lives in Hämeenlinna without a permanent address. He is represented before the Court by Mr Jukka Juntunen, a lawyer practising in Hämeenlinna. The respondent Government are represented by Mr Arto Kosonen, director in the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 18 August 1997 the applicant was arrested together with another person who was subject to an order of arrest. An unlawful gas pistol was found in the applicant's possession. Later the applicant became suspected of other, mainly property offences. Several bags were seized from the car in which the applicant was when arrested. The bags contained, inter alia, several car keys, some of which had been filed, and a skeleton key. On 19 September 1997 the applicant was charged with several offences before the District Court (käräjäoikeus, tingsrätt) of Jämsä. This included a charge of being in possession of objects which could be used for committing property offences. This charge was based on Chapter 44, section 19 of the Penal Code (rikoslaki, strafflag) and read as follows: “[The applicant] and M. [a co-defendant], who must be regarded as vagrants within the meaning of Chapter 44, section 19 of the Penal Code, had on 28 August 1997 in Mikkeli in their possession 27 car ignition keys, some of which had been filed, a skeleton key of Russian origin and other equipment suitable for lock picking.” In the District Court the public prosecutor recalled that although the Act on Vagrants (irtolaislaki, lagen om lösdrivare; 57/1936) had been abolished, the concept of “a vagrant” was still maintained in Chapter 44, section 19, of the Penal Code. The prosecutor claimed that the applicant and his co-accused had both admitted to have been wandering around for weeks and maintained that they should be regarded as “vagrants” within the meaning of the Penal Code. The applicant denied being “a vagrant”. During the proceedings the applicant also submitted, inter alia, that he had been living in Riihimäki in an apartment he had been renting since 1995 and that as one of the charges concerned a provision of law which could only be applied to people without a permanent address (i.e. to so-called vagrants), it could not be applied to him. According to the public prosecutor Chapter 44, section 19, of the Penal Code was to be interpreted as applying to persons wandering around, i.e. “a vagrant”, and in possession of objects which could be used when committing a burglary (i.e. keys or skeleton keys). In the final hearing the public prosecutor further interpreted the said section as prohibiting a person who regularly committed property crimes from possessing objects such as skeleton keys. On 17 October 1997 the District Court convicted the applicant on several counts, including the count under Chapter 44, section 19 of the Penal Code. The applicant was sentenced to one year and two months' imprisonment. The court also ordered that, inter alia, twenty-seven car keys and a skeleton key be confiscated from the applicant. As to Chapter 44, section 19 of the Penal Code the District Court found the provision applicable and in force even though the comparable provision of the old Act on Vagrants had been abolished. According to the court, the notion of “vagrant” had its own independent meaning in the Penal Code. The relevant provision prohibited a person who was wandering around and living rough from being in the possession of certain equipment, if that equipment could, in the light of that person's behaviour and other circumstances, be considered as in his possession for the purpose of committing an offence. The applicant's co-defendant was convicted on several counts. He was however not convicted of possession of skeleton keys pursuant to Chapter 44, section 19 of the Penal Code due to lack of evidence. On 17 November 1997 the applicant appealed to the Court of Appeal, maintaining, inter alia, that he was not “a vagrant” as he had had a permanent address since January 1995 and could therefore not be convicted under Chapter 44, section 19 of the Penal Code. On 17 February 1998 the Court of Appeal upheld the District Court's judgment. As to the applicant's conviction as “a vagrant” within the meaning of Chapter 44, section 19 of the Penal Code, the Court of Appeal recalled that the old Act on Vagrants was revoked on 1 January 1987. According to the travaux préparatoires of the Act on Welfare for Intoxicant Abusers (päihdehuoltolaki, lag om missbrukarvård; 41/1986), which replaced the Act on Vagrants, Chapter 44, section 19 of the Penal Code was not to be amended. The Court of Appeal, thus, found that the revoked Act on Vagrants and the practice built on it had not lost its relevance for the interpretation of Chapter 44, section 19 of the Penal Code. According to Section 1, subsection 1(4) of the revoked Act on Vagrants “a vagrant” was, inter alia, a person who by his way of life endangered public order or safety. The Court of Appeal noted that the applicant had been convicted and sentenced to imprisonment for, inter alia, offences against property on numerous occasions during the last ten years. It therefore found that the applicant endangered public order and safety by his criminal way of life and was, accordingly, to be regarded as “a vagrant” within the meaning of Chapter 44, section 19 of the Penal Code. On 20 April 1998 the applicant applied for leave to appeal to the Supreme Court and requested that the conviction be quashed or, at least, that the case be referred back to the District Court or the Court of Appeal for an oral hearing. On 17 September 1998 the Supreme Court refused the applicant leave to appeal. Section 8 of the Constitution (perustuslaki, grundlagen; 731/1999) provides that no one shall be found guilty of a criminal offence or be sentenced to a punishment on the basis of a deed, which has not been determined to be punishable by an Act at the time of its commission. The penalty imposed for an offence shall not be more severe than that provided by an Act at the time of commission of the offence. This section corresponds to section 6a (969/1995) of the repealed Constitution Act (hallitusmuoto, regeringsformen), in force at the relevant time. Chapter 44, section 19 of the Penal Code (as in force at the relevant time) provided that a vagrant who was found with a lock pick or a skeleton key should be sentenced to a fine. The said provision was enacted in 1889, when the existing Penal Code entered into force, and has not been amended until 1 September 2002. The Parliament passed a Bill for the amendment of Chapter 44 of the Penal Code (Parliament Reply 35/2002). The amendment entered into force on 1 September 2002. In this context, section 19 was repealed. According to the new Chapter 28, section 12a (2002/400) of the Penal Code, concerning possession of tools used for burglary, a person who without an acceptable reason has in his/her possession a key to the lock of another or a skeleton key or other implement that can justifiably be suspected as intended for use primarily for entry into closed premises in the possession of another for the commission of an offence, shall be sentenced to a fine for possession of a burglary implement. Section 1 of the Act on Vagrants provided until 31 December 1986 that a vagrant pursuant to the Act was, inter alia, a person fit to work who was unemployed without sufficient sustenance and wandered around from one locality to another without the purpose of seeking employment, and a person who acquired income by morally unacceptable or indecent means, or who by his or her way of life otherwise manifestly endangered public order, safety or morality. The Committee which had been set up to assess the effects of repealing the Act on Vagrants (Committee Report 1986:46, p. 96) held that “[section 19 in Chapter 44 of the Penal Code] was never intended to refer to “vagrants” within the meaning of the Act on Vagrants or the earlier Decree”. The Committee maintained that most of the referrals in the legislation to the concept of “a vagrant” had lost their meaning after the repealing of the Act on Vagrants. The concept of “a vagrant” in Chapter 44, section 19 of the Penal Code was however regarded as being originally independent from the concept pursuant to the Act on Vagrants. The Committee recommended that the provision should be clarified in connection with the general reform of the Penal Code. At the relevant time there were some references in the legislation to the concept of “a vagrant”. Firstly, the Decree containing Regulations for Rural Areas (asetus joka sisältää maaseudun yleisen järjestyssäännön; förordning innefattande allmän ordningsstadga för landsbygden; 219/28) was in force until 30 September 2003. Its section 39, subsection 2 provided, inter alia, that nobody was allowed to hide a vagrant in his/her home. Secondly, the Act on the Publicity of Official Documents (laki yleisten asiakirjain julkisuudesta; lag om allmänna handlingars offentlighet; 83/1951) was in force until 30 November 1999, i.e., at the time of the offence in question. In the said Act there was an outdated reference to 'vagrants register' (irtolaisrekisteri, registret över lösdrivare), which register no longer existed. In the Government's Bill No. 246/1984 on the Act on Welfare for Intoxicant Abusers (päihdehuoltolaki, lag om missbrukarvård; 41/1986), which replaced the Act on Vagrants, it is stated that characteristics of a vagrant are a drifting life, rejection of work, begging and an indecent life. It was held that the Act was largely based on the Decree on Vagrants from 1883 and that there were significant regional differences in applying the Act on Vagrants. It was maintained that the characteristics of a vagrant could no longer be regarded as appropriate criteria for admitting people to involuntary health care. In the subsequent Government's Bill No. 17/2001 concerning the amendment of the provisions of Chapter 44 of the Penal Code it was held that “[T]he concept of “a vagrant” lacks an appropriate meaning in the contemporary language of a modern society.” It was also held that the existing provisions of Chapter 44, section 19 provided a certain justification for the prohibition of possession of burglary implements albeit it was regarded as limited in nature and, more particularly, was open to interpretation.