Sattumaa vai yhtenäinen ja perusteltu päätöskäytäntö? ­– Esitutkinnan rajoittaminen vähäisyys- ja kustannusperusteilla kunnianloukkausrikosepäilyissä

Defamation (Criminal Code chapter 24, section 10) is a common and petty
offence, hence, most of the suspected offences of defamation (about 75%
yearly) are not investigated. According to the Criminal Investigation Act,
criminal investigations on petty offences such as defamation can be waived
and discontinued on several different grounds. Some of the more common
reasons for wavering or discontinuing investigations are the pettiness of the
offence, and that the expense of continuing the investigation would clearly
be disproportionate to the nature of the matter under investigation. How-
ever, both criteria are open to interpretation, value-laden and context-
bound, and are therefore likely to cause inconsistency in the decision-
making.
In the first part of this article, we studied the relevant legal provisions
and the criteria they provide to evaluate the pettiness and disproportionate
expense of the investigation in suspected offences of defamation. In the
latter part of the article, we analysed the decisions on criminal investiga-
tion made by the investigation authorities. Our research material consists
of 207 decisions on criminal investigation relating to defamation and seven
decisions relating to aggravated defamation made in 2019 at three police
departments.
According to our findings, the praxis is inconsistent. First, similar cases
are not treated similarly. Second, in many decisions the pettiness of the of-
fence is referred to as the reason for wavering or discontinuing the investi-
gations even though the case at hand could even constitute the offence of
aggravated defamation. Third, the disproportionate expense of the investi-
gation is the reason for wavering the investigation in almost every offence
committed in an online environment. Even some serious offensive and
disturbing defamations aimed at children were not considered to be serious
enough to require taking more expensive and labour-consuming investiga-
tion measures. This means that the decision-making is not foreseeable,
while the inconsistency puts the parties of the cases in an unequal position.