KKO:2025:79 –  Waiving of punishment for insubordination to the police during an en-vironmental protest

Background and questions in the Supreme Court

The defendants had attended an unannounced environmental protest in the city centre and, in this context, blocked the traffic on one street by sitting in the part of the road intended for vehicle traffic. After the road closure had continued for about five hours and expanded into other parts of the street, the police ordered the defendants to leave the place in question or move to the original location of the day's protest.

The District Court and the Court of Appeal attributed to the defendants the offence of insubordination to the police on the grounds that they had failed to comply with the orders of the police in the situation described above.

The District Court and the Court of Appeal waived the punishment of the defendants. The Court of Appeal considered that imposing a fine would be pointless on the grounds that the defendants had been arrested by the police at the scene of the offence and had been deprived of their liberty for approximately 8-9 hours.

The question in the Supreme Court concerned whether the punishment could be waived. In assessing this, due to the reasoning put forward by the defendants and the Court of Appeal’s judgment, particular attention had to be paid to the right to exercise the freedom of assembly and the deprivation of liberty that had already occurred due to the arrest, as well as the claimed minor nature of the offence and the motives for it.

Legal provisions on the freedom of assembly and freedom of expression

Under the Constitution of Finland, everyone has the right to freedom of expression and the right to organise and participate in meetings and demonstrations without obtaining authorisation. Public authorities must safeguard the realisation of fundamental rights and human rights.

The European Convention on Human Rights also safeguards the right to peaceful assembly and association. In the case law of the Court of Human Rights, it has been considered that preventing a protest from obstructing traffic may in itself constitute an acceptable objective for restricting the freedom of assembly in order to prevent disorder and safeguard the rights of other persons. However, in assessing the acceptability of a restrictive measure, the crucial factor has been whether the restriction could be considered essential in a democratic society.

In the context of unannounced demonstrations, the Court of Human Rights has also required a certain degree of tolerance for peaceful demonstrations, including when the demonstrations cause some disruption to traffic and public order. In assessing proportionality, attention has been paid to whether the sanction was imposed for participating in the demonstration as such or for some reprehensible conduct in connection with the demonstration, and whether the protester was given the opportunity to stop their activity without committing a crime. The nature and severity of any sanctions imposed on persons exercising their freedom of assembly should also be taken into account when assessing the proportionality of restrictions.

Provisions on waiving punishment

Under chapter 6, section 12, point 4 of the Criminal Code, a court may waive punishment if, among other things, punishment is to be deemed unreasonable or pointless, in particular when taking into consideration the other consequence resulting from the offence or sentence to the perpetrator if the punishment determined in accordance with the established practice would, for these reasons, lead to an unreasonable or exceptionally detrimental outcome. According to the rationale of the regulation, other consequences caused by the act in exceptional cases, such as loss of employment, liability for damages or disciplinary penalties, may be a sufficient consequence of the offence. However, ordinary additional consequences do not normally justify the application of the provision.

Under chapter 6, section 12, point 1 of the Criminal Code, a court may also waive punishment if the offence is, taking into consideration its harmfulness or the culpability of the perpetrator as manifested in it, deemed to be of minor significance when assessed as a whole. According to the rationale of the provision, the harmfulness of an act refers to its the damage and danger it causes. Waiving punishment on the grounds of the minor severity of an offence must be based on an overall assessment.

Assessment of the Supreme Court in this case

Proportionality assessment of restrictions on the freedom of assembly

The Supreme Court stated that preventing significant disruption to transport due to a protest constitutes in itself an acceptable objective for restricting the freedom of assembly with respect to preventing disorder and safeguarding the rights of other persons.

Regarding the proportionality assessment, the Supreme Court drew attention to the fact that no punishment had been demanded for the defendants for participating in an unannounced protest or even for obstructing traffic as such; instead, punishment was demanded because they had refused to comply with a police order. The demonstration and the associated blocking of roadways had been allowed to continue for several hours by the time the order was issued. The police had only intervened when the protesters expanded their roadblock in several directions in the city centre, thereby severely disrupting the movement of other people. Therefore, the authorities had sufficiently tolerated the disturbance to traffic and public order caused by the protest. Furthermore, the defendants were given clear requests that afforded them the opportunity to leave the section of the road in question without committing an offence.

The Supreme Court considered that imposing a fine was not a disproportionate restriction on the exercise of the defendants’ freedom of assembly or freedom of expression.

Unreasonable or pointless punishment

The Supreme Court stated that it cannot be considered exceptional or unpredictable that failure to comply with an order of the police may lead to arrest and the consequent deprivation of liberty. In this case, the deprivation of liberty lasted a rather short time. In light of this, a fine in accordance with established practice does not lead to an unreasonable or exceptionally harmful outcome. Furthermore, the deprivation of liberty does not render the fine unreasonable or pointless within the meaning of the law.

Minor severity of the offence and motives related to defending environmental values

The Supreme Court considered that the harm caused by the actions of the defendants to the authorities could not be considered minor. It was a deliberate crime that was liable to hinder the authorities in performing their statutory duties.

The Supreme Court stated that there was no intrinsic reason to doubt the motives put forward by the defendants related to defending environmental values. The motives for the defendants’ actions could thus be considered unselfish and for the public good. On the other hand, the defendants had been allowed to exercise their freedom of assembly and expression for several hours before they were ordered to leave. In this case, the views presented on the motives for the act did not significantly reduce the reprehensibility of the act.

The Supreme Court considered that the offence as a whole could not be considered minor.

Conclusion

There was no reason to waive punishment that was in accordance with established penal practice.

Statement of the dissenting member

One member considered that the harm caused by the defendants’ behaviour to the activities of the authority was minor. It was a passive act, and the activities had been otherwise peaceful. The defendants’ actions had not caused immediate danger or damage, nor had they obstructed traffic in an uncontrolled manner. In this regard, the act posed a minor risk of danger and damage. Moreover, the defendants’ unselfish motivation for the public good of defending environmental values also supported the minor severity of the act. The offence in question should be considered minor overall, and the defendants’ punishment should be waived.