FCCA's policy to prohibit recordings of hearings declared unlawful

By Päivi Tammilehto, Aarne Puisto

08-2020

According to the decision of the Deputy Chancellor of Justice ("DCJ"), responsible for monitoring the lawfulness of the operations of public authorities, the Finnish Competition and Consumer Authority ("FCCA") cannot restrict the right of attorneys to record the hearings conducted by the FCCA under the Finnish Competition Act. The Finnish Bar Association had launched a complaint before the DCJ against the said practice of the FCCA. In its complaint the Finnish Bar Association had argued that the law does not give the FCCA the right to restrict the method of the attorney to take notes in a hearing.

The FCCA had justified the prohibition on the grounds that the recording would compromise the performance of its supervisory tasks because the recording could be considered to form a document of the authority. Documents regarding the investigation are not provided to the suspected companies during the investigations in order to ensure their effectiveness. The DCJ, however, concluded that the recording of a hearing that is not submitted to an authority cannot be considered as a document of the authority. Therefore, the FCCA's argument could not be regarded as justified.

The freedom of speech guarantees that the party to be heard and its attorney have the right to record the hearing. According to the DCJ, prohibiting the right to record the hearings restricted the freedom of speech of the subjects. Furthermore, the right to fair trial and the principle of equality of arms required that the party to be heard must have the same rights to record the hearing as the FCCA has. The decision also stated that the prohibition is contrary to the principles of good governance.

The DCJ emphasized that restrictions to basic rights and liberties, such as the freedom of speech, need to have a legal basis and be shall be governed by laws. According to the DCJ, the grounds for the prohibition presented by the FCCA were not strong enough. The DCJ found that without a right based on a legal provision the FCCA may not prohibit attorneys to record hearings of their clients. The prohibition of the FCCA was found to be in defiance of the freedom of speech and the rights of defence.

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For more information please contact Päivi Tammilehto or Aarne Puisto