KKO:2022:2 – At issue, whether the conduct of a berry-picking boss directed against several persons was to be considered as a single count of human trafficking, or several

Diary number: R2020/297
Issued on: 26 January 2022
ECLI:FI:KKO:2022:2

Ruling of the Supreme Court

Reasons

Proceedings in lower instances

Finding for the prosecutor, the District Court has convicted A of 26 counts of human trafficking (committed between 1 January and 9 October 2016) and sentenced A for these offences and for violation of the Waste Act (committed between 18 October and 31 October 2017) and aggravated fraud (committed between 16 July 2009 and 6 July 2010) to a suspended term of imprisonment of one year and eight months.

The Court of Appeal has found that the conviction of A of 26 separate counts of human trafficking, one count for each complainant, could be justified as A’s conduct had violated the personal liberty of the complainants. However, merely this justification was not enough to indicate that 26 separate offences had been committed. A had been pursuing a legitimate business enterprise and by and large organised it so that no human trafficking offences were involved. The criminal conduct and methods of A had been the same in regard to each complainant and A had had the same intent in all cases. In addition, A’s conduct was interconnected as regards both time and place. For these reasons, it was natural to hold that A had committed only a single count of human trafficking. Accordingly, the Court of Appeal convicted A of one count of human trafficking and sentenced A for this offence and for the other offences referred to in the judgment of the District Court to a suspended term of imprisonment of one year and four months.

Issues before the Supreme Court

On appeal by the prosecutor and the complainants, the issue before the Supreme Court is whether A’s conduct referred to in the judgment of the Court of Appeal and directed against several persons between 1 January and 9 October 2016 was to be considered as a single count of human trafficking, or several. Moreover, on appeal by the prosecutor, the complainants, and A, the issue before the Supreme Court is the appropriate sentencing for the offences that A was convicted of.

Criminalisation of human trafficking

Under chapter 25, section 3(1), of the Criminal Code of Finland, a person who (1) by taking advantage of the dependent status or vulnerable state of another person or by pressuring another, (2) by deceiving another person or by taking advantage of a mistake made by that person, (3) by paying remuneration to a person who has control over another person, or (4) by accepting such remuneration takes control over another person, recruits, transfers, transports, receives or provides accommodation for another person for purposes of sexual abuse referred to in chapter 20, section 9(1)(1), of the Code, or comparable sexual abuse, forced labour or other demeaning circumstances or removal of bodily organs or tissues shall be sentenced for human trafficking.

Conviction of A by the Court of Appeal

The complainants had arrived to Finland from Thailand, for purposes of work in the wild berry and mushroom picking industry for a period of about three months. The Court of Appeal has found that the complainants had earlier been misinformed of their accommodation conditions in Finland. A had organised for their accommodation in premises that had in official inspections been found to have dangerous defects and arrangements as well as several shortcomings and conditions that could be detrimental to the health of persons using the accommodation. In view of the standard of accommodation, the payment required from the berry-pickers had been unreasonable.

The Court of Appeal has also found that the complainants had been obliged by prior arrangement to make payments towards their travel costs and the debt incurred on the basis of those costs before any payments had been made to them for earnings for their berry and mushroom picking work. This had led to a situation where the complainants had had practically no funds with which to cover their essential needs while in Finland. The berry-pickers had worked long hours without no practical opportunity for days off. The obligation to make payments towards their debt had also resulted in a situation where the complainants did not think they could stop working and leave the berry-picker compound.

The Court of Appeal has found it undisputed that the earnings level of the complainant had fallen short of what A and the persons operating on A’s behalf had told them in advance. The complainants were in Finland for the first time for purposes of berry-picking work and they had been organised into separate groups which meant that they did not have the necessary knowledge about good picking locations. A and the persons operating on A’s behalf had also given the complainants false and inadequate information about guidance and working conditions in Finland. The complainants had not been provided with such instruction that would have enabled them to pick enough berries to reach a proper level of earnings.

The Court of Appeal has found also that the personnel at the berry-picker compound had demanded that the berry-pickers hand over their passports and return tickets. The purpose of this measure was to ensure that the pickers stay on the picking job for as long as possible, pay to A’s company for the services provided to them, as well as make payments towards the debt incurred on the basis of travel costs or changes to the return tickets. The Court of Appeal has held that the taking away of the passports and tickets has been an essential element in rendered the complainants dependent and vulnerable. The Court of Appeal has found that the berry-pickers have in practice not had the chance to stop working and return home.

The Court of Appeal has held that, in addition to the wealth difference arising from the standard of living in the berry-pickers home country, the debts incurred by the complainants, the collection on the debts from their earnings, the low level of earnings, the unreasonable level of accommodation and other costs, the lack of language skills of the complainants and their status as foreign nationals, the taking away of their passports and the restrictions in their ability to return home were factors causing the complainants being vulnerable and subject to abuse. The complainants, who did not speak Finnish, were totally dependent on A and the compound personnel and had no knowledge of their rights and remedies under Finnish law.

On the basis of these findings, the Court of Appeal has held that A has transported and received the complainants and provided accommodation to them, as well as subjected them to forced labour and demeaning circumstances, as referred to in the penal provision in chapter 25, section 3, of the Criminal Code. When assessing the conduct of A as a whole, the means, methods, and intent of A had been interconnected in a way indicating that the conduct constituted human trafficking as referred to in the said provision.

One criminal count or several counts, provisions governing categorisation

The law in force does not contain provisions on how to categorise individual acts as one criminal count or several; the issue has been left to be addressed in case-law. The relevant case-law has taken as the basis for assessment the so-called natural view, as mentioned in preparatory works (Bill 84/1980, p. 8, and Report of the Legal Affairs Committee of the Parliament of Finland 15/1990, p. 3). In this view, the categorisation of the acts as one count has been based on the timeline of the acts and on whether the acts constituted a single activity or a number of clearly distinct acts. The wording of the constituent elements of a criminal offence in the law, the objective of these elements, the number of complainants, and the intent behind the acts all affect the categorisation of the acts as one criminal count or several (see KKO 2018:17, para. 10, and the references to earlier case-law therein).

In the present case, it is clear that the conduct of A is a single activity in terms of intent and timeline. Under interpretation is the significance of the fact that the conduct has been directed at several complainants. The significance of who is the complainant varies e.g. on the basis of whether the matter is of property crime or of crime against the person. According to the established interpretation, violations of strongly personal rights, such as life, health, sexual self-determination, or personal honour are normally categorised as separate criminal counts in accordance with the number of complainants. A person who wounds two victims with a single gunshot or defames two persons with a single statement has been deemed to have committed two offences (Bill 84/1980, p. 8).

This basic interpretation has not changed after Finland transferred to a system of joint punishments and the mention in the relevant bill, referred to above. For instance, in the case KKO 2010:88 (para. 66), a statement made in one TV programme and defaming three persons has been held to constitute three counts of aggravated defamation. In the case KKO 2010:1, the manager of a company had abused four different workers in the company’s breakroom; the conduct was deemed to constitute four counts of sexual offence.

Reasoning of the Supreme Court in the present case

The penal provision concerning human trafficking in the Criminal Code chapter is applicable on offences against personal liberty. On the basis of the wording and content of the provision, human trafficking is clearly an offence against the person. The main objective of the provision is to protect a person’s liberty, which is a legal interest inextricably linked to the person. Another important protected legal interest is the complainant’s right to self-determination.

An act of human trafficking is not characterised solely by the deprivation of liberty and the intensity of such deprivation. It is emphasised in the preparatory works for the legislation in force that the concepts of vulnerability and dependence are not to be interpreted narrowly, as the abuse of vulnerability and dependence can also be based on psychological factors (Legal Affairs Committee Report 15/2004, p. 3). In the present case it has been established that, owing e.g. to their debt status, the complainants had felt that they cannot stop working and leave the compound. The Supreme Court holds that as a result of A’s conduct several persons had been actually deprived of their freedom of action and that A’s act had been a single activity as regards time and place.

Human trafficking is typically a violation of a person’s liberty, right of self-determination and personal safety. As this is an offence directly violating the person of the complainant, the principles of categorisation tend towards the act being determined to constitute several criminal counts, on a per-complainant basis. Less weight should be given to the timeline and the intent evident in the offence, the latter understood as the pursuit of financial gain at the cost of every complainant.

For the reasons mentioned above, the Supreme Court holds that A has committed 26 counts of human trafficking.

Sentencing

According to chapter 7, section 5(2), of the Criminal Code, the basis for the imposition of a joint punishment is the offence which in the consideration of the court carries the most severe penalty, and the joint punishment for all offences shall be set in just proportion to the number of offences, their seriousness and their connection with each other. In effect, the objective is to reach a total punishment that is in just proportion to the totality of the offences (Bill 40/1990, p. 31).

The Supreme Court has not so far issued any precedent ruling concerning sentencing in the context of human trafficking similar to the present case. Moreover, judgments for human trafficking have also not been given by lower instances to any such extent that this practice would reflect an established standard which could guide sentencing for such offences.

According to chapter 25, section 3, of the Criminal Code the minimum penalty for human trafficking is imprisonment for a term of 4 months and the maximum, 6 years. This penalty scale indicates the seriousness of human trafficking as a type of offence. On the other hand, a broad penalty scale may become applicable on very different criminal acts, both in terms of method and in terms of seriousness and severity of consequence. In the preparatory works on this penal provision, it has been noted that factors in sentencing include the status of the victim, the methods of the offence, whether the criminal intent has been fulfilled and what kinds of injury or damage the victim has sustained (Bill 34/2004, p. 98).

In sentencing, due note must be taken of the damage caused and the danger presented by the offence. An offence of human trafficking is the more damaging and dangerous the more humiliating and penetrating the deprivation of liberty and the more injurious its consequences either in fact or, under the circumstances, in theory. Due note must also be taken of how many means and methods referred to in the constituent elements of the offence have been employed and what has been the intent behind the act. Moreover, in acts such as human trafficking, which may often be committed in the context of a larger, possibly cross-border organisation, due note must be taken of the level of control and degree of participation of the perpetrator, as well as the level of his or her culpability.

Sentencing in the present case

A’s act has not been as damaging or dangerous as, for example, one where the complainants would be subjected to sexual exploitation or where they have suffered actual health damage. Nonetheless, the complainants have been subjected to forced labour and demeaning conditions, where they have suffered for a period of approximately three months without a real chance of stopping work and returning home. In addition, they have incurred debts for their travel costs, payable still after their return home, said debt being considerable in proportion to their ability to pay.

As noted above, two of the methods of human trafficking have been employed in the present case, namely the misleading of the complainants and the abuse of their dependence and vulnerability. The means used have been recruiting, receiving, transport, and provision of accommodation. The circumstances of forced labour and subjecting to demeaning conditions have been evident.

The forced labour imposed on the complainant has been physically demanding and the complainants have performed it without a real opportunity for rest and recreation. They have not accrued earnings and they have ended up in dire financial straits owing to their coming to Finland. The accommodation provided to them has been defective. Moreover, as the Court of Appeal has noted, A has sought financial gain by expanding the business in an uncontrolled manner and by transferring all of the resulting risk on the complainants. A has been indifferent as to the situation of the complainants, as well as to the commitments given to the authorities regarding the organisation of the operations. The Supreme Court notes that these circumstances indicate the blameworthiness of A’s conduct.

When assessed as a whole, however, the conduct of A is to be deemed less serious than a typical case of human trafficking, as noted also by the Court of Appeal. The restriction of the liberty of the complainants has been the result of lacking financial resources and actual latitude of action, rather than physical restriction of movement. There have been no suggestions that most of the over two hundred berry-pickers employed by A would have been victims of human trafficking. Even though A has had blameworthy financial motives to ignore the specific needs of first-time berry-pickers, the conduct has not been equally blameworthy as it would have been if the entirety of the operation were organised by way of exploitation of this sort.

The Court of Appeal has considered it a mitigating circumstance that A has not self created the processes in Thailand that enabled conduct of this sort, but rather made use of the defective and badly supervised organisational and regulatory arrangements pertaining to the recruitment of Thai berry-pickers. In this respect the Supreme Court holds that this is not a mitigating circumstance. The misleading information on the conditions and earning opportunities in Finland, as well as the conduct relating to accommodation, earnings, guidance and working conditions in Finland have been subject to A’s control. A could have arranged the operation also in a manner ensuring that the issue of human trafficking would not arise regarding even one berry-picker. A had given a particular commitment to Finnish authorities on the appropriate organisation of the operation.

Assessing these circumstances as a whole, the Supreme Court holds that the just penalty for one count of human trafficking in this case is imprisonment for a term of 10 months, which forms the basis for sentencing to a joint punishment.

As has been described above, in the imposition of a joint punishment for all counts of human trafficking that A has been convicted of, the goal should be a total penalty that is in just and reasonable proportion to the totality of the offences. There is even more reason to do so when the offences are closely interconnected (KKO 2014:85, para. 9).

A has been convicted of human trafficking offences that form a temporal and operational entity, where the intent behind the conduct has remained the same and the acts that have been determined to have been distinct criminal counts have not required distinct decision-making. It has been held in earlier case-law that when the several acts have an unchanged intent, the effect of the number of criminal acts increasing the total penalty is lesser than in a situation where no such interconnection exists (KKO 2018:44, para. 17, KKO 2017:88, para. 27, and KKO 2011:93, para. 18). For instance, in its ruling in case KKO 2018:44 (para. 17) noted that in such a situation it may be justified to assess several offences as one entity when imposing a joint punishment.

On the basis of this reasoning, the Supreme Court holds that the effect of the next 25 counts of human trafficking on the joint punishment is to be considered as an entity. In such consideration, their effect is clearly lesser than what it typically would be in cases of offence against the person (cf. e.g. KKO 2018:60, para. 23). The Supreme Court deems that the effect of the other counts of human trafficking on the joint punishment is 10 months. The Supreme Court upholds the judgments of the lower instances in so far as they have held that the effect of the aggravated fraud on the joint punishment is 2 months and that the violation of the Waste Act has no noticeable effect on the joint punishment. Accordingly, the joint punishment to be imposed on A is imprisonment for a term of 1 year 10 months.

Possibility of suspension

According to chapter 6, section 9(1), of the Criminal Code, a sentence of imprisonment not exceeding two years may be suspended, unless the seriousness of the offence, the culpability of the offender as manifested in the offence, or the criminal history of the offender requires that a custodial sentence be imposed.

According to the wording of the provision, the regular outcome is that a term of imprisonment for under two years is suspended, unless the circumstances referred to in the provision make it necessary to impose a custodial sentence. According to established case-law, the closer the term of imprisonment is to two years, the more persuasive the reasons need to be for the suspension of the sentence. Normally, the imposition of a custodial sentence on a first-time offender becomes an issue only in respect of sentences exceeding one year. That said, the choice between a suspended and a custodial sentence is a matter of holistic assessment (KKO 2020:48, para. 17 and the earlier case-law referred to therein).

The circumstances affecting the assessment of suspended/custodial sentence are the seriousness of the offence, the culpability of the offender and previous criminal record. According to the relevant preparatory works, seriousness refers primarily to the manifestation of the offence, especially as regards the injury or damage caused or the danger inherent in the offence. In addition, the blameworthiness and aggravated nature of the offence are assessed in view of the offender’s culpability. Culpability refers to the guilt inherent in the concrete criminal act (Bill 44/2002, p. 205).

A has not been sentenced to imprisonment before, and hence the criminal record is no impediment for a suspended sentence.

The length of the term of imprisonment imposed on A, 1 year 10 months, is close to two years and therefore it is an argument for a custodial sentence rather than a suspended one. As has been noted above, the act has been serious and indicated indifference regarding the situation of the complainants. The totality of the offence has constituted a serious violation of the liberty of 26 complainants. The complainants have also incurred heavy financial consequences in relation to their conditions. The criminal conduct has lasted for several months and A would have been able to remedy the situation in the meantime. These factors are arguments for a custodial sentence.

On the other hand, A’s conduct has for a great deal involved deliberate ignorance and failure to act, rather than a carefully planned decision and an express intent to build a business on human trafficking. Some of the consequences have arisen from A’s attempt to expand an earlier, legitimate business of berry and mushroom picking by foreign guest workers.

As discussed above, the case displays arguments both for a suspended sentence and for a custodial one. In its assessment, the Supreme Court concludes that the arguments for a custodial sentence are more persuasive in view of the length of the sentence, almost two years, and the seriousness of the offence and the culpability of A as manifested in the offence. For this reason, a custodial sentence is imposed on A notwithstanding the lack of a criminal record.

Operative statement

The judgment of the Court of Appeal is amended as follows:

The judgment of the Court of Appeal is overturned as regards conviction and sentencing. The conviction by the District Court is upheld. A is sentenced for 26 counts of human trafficking (counts 1-26), a violation of the Waste Act (count 27), and aggravated fraud (count 28) to imprisonment for a term of 1 year 10 months. The rest of the judgment of the Court of Appeal stands.

Proposal of the referendary and dissenting statements of two Justices regarding the suspension of the sentence:

As discussed above, the case displays arguments both for a suspended sentence and for a custodial one. In its assessment, the Supreme Court should conclude that the arguments for a suspended sentence are more persuasive in view of A’s lack of a criminal record and the impossibility of concluding that A had premeditated the conduct which led to the complainants being subjected to human trafficking. For this reason, also the culpability of A as manifested in the offence is not such that would require a custodial sentence.