Diary number: R2016/911
Issue date: 18.8.2017
The issues and the facts of the case
The issue in Supreme Court decision KKO 2017:56 concerned whether the conveyance of passengers who used the Uber application to request rides fulfilled the essential elements
of the unlicensed exercise of taxi traffic, should the driver be relieved of criminal liability on the basis of a mistake regarding the lawfulness of the act, and to what extent should the fares that the driver had collected for the conveyance be declared forfeited to the State as the proceeds from an offence.
The defendant had joined a service that used a mobile application to transmit requests for the conveyance of passengers (the Uber application). From 27 July to 29 August 2015 he had conveyed, for a fee, persons who had used the service to request transport. He had received a total of about 2,800 euros in fares for the conveyance. He did not have a taxi licence.
Unlicensed exercise of taxi traffic
Section 28, subsection 1 of the Taxi Traffic Act provides that a person who engages in the professional conveyance of passengers by passenger car without a taxi licence is guilty of unlicensed exercise of taxi traffic.
The district court and the court of appeal held that the conduct of the defendant fulfilled the essential elements of unlicensed exercise of taxi traffic. The court of appeal held that the conduct of the defendant had been professional and thus would have required a taxi licence, taking into consideration among others the following circumstances:
- He had used his vehicle to convey, for a fee, persons whom he had not known in advance.
- Any user of the Uber application could have used it to request conveyance from him, and the customers had been selected at random on the basis of which one was in closest proximity.
- The request for and the provision of the conveyance were based on requests transmitted by the application, which indicated the extent and profit orientation of the activity.
- During the course of about one month, the defendant had earned almost 3 000 euros.
In this respect, the Supreme Court upheld the decision of the court of appeal and its reasoning.
Mistake regarding the unlawfulness of the act
Chapter 4, section 2 of the Criminal Code, which deals with a mistake regarding the unlawfulness of an act, provides that a person who errs in regarding his or her act to be lawful is exempt from criminal liability if the mistake is to be deemed manifestly excusable due to the defective or erroneous publication of the law, the particular obtuseness of the contents of the law, erroneous advice by an authority, or another reason comparable to these.
The district court and the court of appeal had found that the mistake plead by the defendant regarding the lawfulness of his conduct could not be deemed manifestly excusable. The court of appeal had noted that had the defendant studied the contents of the Taxi Traffic Act, he would have had justified grounds for assuming that his conduct would be deemed professional, and therefore punishable. The fact that the defendant was an alien or that the training provided by Uber had not directly dealt with the issue did not provide grounds for applying the provision on a mistake regarding the unlawfulness of the act.
Also in this respect, the Supreme Court upheld the decision of the court of appeal and its reasoning.
The district court and the court of appeal had sentenced the defendant to 20 day-fines for the unlicensed exercise of taxi traffic. The Supreme Court held that there is no cause to reduce the sentence.
Chapter 10, section 2, subsection 1 of the Criminal Code, as it was in force at the time of the act (875/2001), provides that the economic benefit derived from an offence shall be declared forfeited to the State.
The district court and the court of appeal had ordered that the full amount of the fares that the defendant had received for the conveyance be declared forfeited to the State.
The Supreme Court held that, in interpreting said provision, the point of departure may be deemed to be that, as a rule, only the actual net benefit should be declared forfeited. On the basis of the wording of the provision, the travaux preparatoires and earlier precedents of the Supreme Court, a general conclusion according to which expenses incurred in the preparation or commission of an offence could never be considered as a deduction when calculating the economic benefit from an offence that is to be declared forfeited, is not justified. The interpretation according to which also such expenses could, as a rule, be deducted if incurring them had not in itself involved criminal activity, may be deemed to be more justified.
Since purchasing petrol for a passenger car is not a criminal act, the cost of the petrol incurred by the defendant in the course of his illegal conveyance of passengers was, in calculating the financial benefit that was to be ordered forfeited, to be deducted from the fares he had collected. On the same grounds, an assessed proportion of those standard expenses for the maintenance of a passenger car that were incurred depending on how much the car is operated and that correspond to said illegal conveyance, was to be deducted from the fares.
On the other hand, the amount of capital expenses incurred in obtaining the car and the amount of the vehicle tax to be paid for the car did not depend on how much the defendant had operated the car for the illegal conveyance. Were the deductability of these expenses to be accepted even in part, the defendant could use criminal proceeds to finance the fixed expenses of obtaining and operating a vehicle. For this reason the Supreme Court ruled that capital expenses and the motor vehicle tax could not be accepted as deductions. When the profits from an offence are declared forfeited, the offender is not left with any income that would be subject to tax. For this reason, the amount of the income tax was not deducted from the financial benefit that was to be declared forfeited.
The Supreme Court assessed as the amount of petrol and maintenance expenses to be deducted, one fourth of the fares received by the defendant. On these grounds the forfeiture sanction adjudged the defendant was decreased from 2,800 euros to 2,100 euros.