Parliamentary Ombudsman Petri Jääskeläinen reprimanded a criminal investigator for unlawful actions in concluding a pre-investigation trial and giving a caution. In addition, the Ombudsman has for the third time drawn the attention of the National Police Board to the problems in the decision-making process of concluding a pre-trial investigation in the information system of the police. The Ombudsman has also submitted a proposal to the Ministry of Justice and the Ministry of the Interior for eliminating the deficiency he has detected in legislation.

The senior constable who had served as the investigator had issued a written caution to the suspect although there were no legal preconditions for it. The Ombudsman emphasised that giving a caution based on the Criminal Investigation Act is a decision in which the suspect is considered guilty of the offence. In particular, it requires that the evidence of the suspect's guilt obtained in the pre-trial investigation is clear. In this case, the suspect had not been questioned and was not even aware of being suspected of an offence. The right to be heard is one of the most important guarantees for legal protection under the Constitution. 

Only the head investigator would have had the powers required to make the decision and give a caution. However, the investigator had decided on the matter themselves and recorded the decision in the information system of police matters using the head investigator’s ID without informing the head investigator of this.

The Ombudsman also considered that the investigator had behaved inappropriately when the person cautioned had anxiously contacted the investigator about it.

The Ombudsman has already considered it very problematic in two of his earlier decisions that a possibility to make decisions on behalf of another person has been created in the police information system at all. Furthermore, a decision can also be made by a investigator whose position does not even give them a legal right to make the decision. In the Ombudsman’s opinion, the head investigator should themselves approve the decision with their own ID in the information system. He therefore drew the attention of the National Police Board for the third time to the problems that the procedure accepted in its guidelines may lead to and that this case is a concrete example of.

More generally, the Ombudsman also noted that a caution under the Criminal Investigation Act is a decision within the scope of Article 6 of the European Convention on Human Rights and that it considers the suspect guilty, i.e. it rebuts the presumption of innocence. As a rule, this kind of decision can only be made by a court. However, the European Court of Human Rights has approved the consideration of minor offences and the rebutting of the presumption of innocence taking place outside courts, but only on the condition that the suspect has the opportunity to bring the matter to a court for consideration.

In Finland, giving a caution referred to in the Criminal Investigation Act cannot be brought before a court, however. The Ombudsman is of the view that either such a possibility should be created or the powers of the police in making a decision finding the suspect guilty and giving a caution should be removed, as has already been done with regard to the prosecutor. Both alternatives require legislative measures.

In this case, the head investigator had later removed the investigator’s unlawful decision to give a caution. However, the Ombudsman emphasises that, for example, the possibility to lodge a complaint is not sufficient from the point of view of Article 6 of the European Convention on Human Rights. Instead, it must ultimately be possible to bring the issue of guilt to a court.

The Ombudsman proposed to the Ministry of Justice and the Ministry of the Interior that they should take measures to eliminate the deficiency he has detected in legislation.

The Ombudsman has requested that the National Police Board and the ministries report by 28 June 2024 on the measures that have been taken in response to the decision.

The full text of decision no 4610/2022 was published (in Finnish) on the Parliamentary Ombudsman's website at www.oikeusasiamies.fi.

Further information is available from Senior Legal Adviser Peter Fagerholm, tel. +358 9 432 3372