Discourse of the European Court of Human Rights and earlier researchand earlier research

Given the abundance of case law, concerning a variety of States and legal systems, the European Convention on Human Rights and its control mechanism have also given inspiration to extensive research, including comprehensive overviews of the case law under the Convention⁸. However, there is not that much research focusing particularly on the language used by the Court, although its discourse has been touched upon in

8 The works of scholars consulted for the purposes of the present study include, in particular, Harris

& al. 2014, Pellonpää& al. 2012, Danelius 2012, White & Ovey 2010, and Frowein & Peukert 2009.

some studies⁹. Those studies have focused on the standards and methods of interpreta-tion of the Conveninterpreta-tion, particularly as used by the Court itself, and not that much on how those principles have been approached by national jurisdictions although some of the most recent studies concerning legal systems other than the Finnish one have paid some attention to it. Judicial language or discourse develops particularly through case law. Furthermore, discourse highlights the approach of the court to sources of law and principles of interpretation. In Finland, one of the most recent studies includes an analysis of the changing argumentation of the Supreme Court with regard to the protection of human rights, although with a focus on the control of constitutionality of legislation¹⁰. Insofar as judicial language of national courts is concerned, it has been studied to some extent, including the judicial style of court decisions in various countries.

Furthermore, particularly in the past few years, quite a few works have been produced on the methods of interpretation of the European Court of Justice. The language of law and the field of legal translation have also been subject to a wide range of research, from various perspectives, whereas the language of international treaties, in particular, has not been studied to the same extent although there is considerable research into the interpretation of treaties: such research has mainly focused on the methods and principles of interpretation in general. There is also some research on the language policies of different international organisations, most notably on the language policy of the European Union and the interpretation of Union law, as well as on the language of diplomacy and international co-operation in general.

Levi draws a distinction between three major areas of research on language and law, 1) the study of spoken language in legal settings; 2) the study of language as a subject of the law; and 3) the written language of the law¹¹. Legal language may be divided into sub-sectors depending on the users of the particular type of language, such as the language used by courts and the language of legislation. Insofar as courts are concerned, one might speak of official language or judicial language, depending on the context or of discourse of the court. Furthermore, there may be different types of legal language depending on the field of law, each having its own typical style, ex-pressions and terms and concepts.¹² The language of international human rights law would be one of such fields. In the case of international human rights law, one may further distinguish expressions and concepts that are specific to the context of protec-tion of human rights as well as those that are specific to the language of internaprotec-tional agreements. The language of international treaties is a particular type of legal language, being a result of compromises between the legal concepts and expressions of different

9 For example Senden 2011.

10 Lavapuro Juha, Uusi perustuslakikontrolli, University of Turku 2010.

11 Levi 1990, p. 13.

12 For more details, see Mattila 2012, p. 4-6.

legal systems and cultures, on the one hand, and between the diverse political views of different state parties to the treaty in question, on the other. One could also say that the language of international treaties constitutes a sector of its own within the science of legal linguistics, although one may note quite a few similarities between the language of international treaties and that of the legislation of the European Union, for example. In a human rights convention, the impact of the political views of States that have contributed to its drafting are intertwined with the desire to guarantee as high a level of collective enforcement of human rights as possible.

In the present study, however, the principles of interpretation of the European Court of Human Rights play a more significant role than linguistic issues, although the focus is on judicial discourse. The purpose is to analyse in what manner the prin-ciples of interpretation have been applied through discourse, and whether the Court’s discourse reflects a transition of the legal culture of protecting fundamental rights and human rights, although discourse is understood in a rather wide sense. Such signs may include, in particular, expansion of the scope of the Convention rights, development of the meaning of the concepts used in the Convention, and various methods and expressions used by the Court to give priority for stronger protection of certain rights over the State’s discretion to legislate on such matters. Thus, those signs may be both linguistic expressions and statements of fact or law. The same applies to the discourse of the national supreme jurisdictions. The present study focuses on the application and interpretation of the European Convention on Human Rights by the European Court of Human Rights and the application of its case law by the Finnish supreme jurisdic-tions, but given the abundance of research on the Court’s case law and the methods of interpretation and the variety of national case law, the research topic is delimited to certain groups of cases that demonstrate the transition most clearly in Finland. In most cases, treaty interpretation is a matter for the parties to the treaty in question.

However, under international treaties, there are cases where a specific treaty body has been established, entrusted with the task of controlling compliance with treaty provi-sions and interpreting those proviprovi-sions. In this respect, the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights)¹³ and the European Court of Human Rights constitute a unique example of control mechanism, comprising a judicial body which has produced an abundant body of case law and which has provided authoritative interpretations and clarified the meaning of the Convention.

13 ETS No. 5, done at Rome on 4 November 1950. The Convention entered into force on 3 Sep-tember 1953. Finland ratified the Convention on 10 May 1990.