European protection of human rights

The European Court of Human Rights was established together with a Committee on Human Rights as a result of negotiations between a number of European states after the Second World War, by the European Convention for the Protection of Human Rights and Fundamental Freedoms¹ (referred to as “the European Convention on Hu-man Rights”). The Committee has been abolished through the adoption of Protocol No. 11 which set up a single European Court of Human Rights and brought about a few other procedural amendments to the Convention. The European mechanism with the Court was created to ensure external control of compliance by the States parties to the Convention with its provisions and to provide a last resort remedy for those who have suffered violations of human rights. The European Convention on Human Rights coexists with international instruments adopted for the protection of human rights, particularly at the level of the United Nations, and is supplemented by a number of other European Conventions, such as the European Social Charter, European Convention on the Prevention of Torture and the European Convention on Human Rights and Biomedicine, as well as by the European Union Charter of Fundamental Rights. The competence of the European Court of Human Rights is limited to the protection of those rights that are set out in the European Convention on Human Rights and its additional Protocols², but when applying the Convention and interpreting the scope

1 ETS 5, as amended by Protocol No. 11 (ETS 155) and Protocol No. 14 (CETS 194). Protocols No. 15 (CETS No. 213) and 16 (CETS No. 214) have not entered into force yet. They intro-duce further procedural changes explained in sections 3.5 and 6.3below. Note: Conventions and agreements opened for signature between 1949 and 2003 were published in the “European Treaty Series” (ETS No. 001 to 193 included). Since 2004, this Series is continued by the “Council of Europe Treaty Series” (CETS No. 194 and following).

2 The rights set out in the Convention and the (first) Protocol thereto include the right to life, the prohibition of torture, the prohibition of slavery and forced labour, the right to liberty and security, the right to a fair trial, no punishment without law, the right to respect for private and family life, the freedom of thought, conscience and religion, the freedom of expression, the freedom of assembly and association, the right to marry, the right to an effective remedy, and the prohibition of discrimination, as well as the right to protection of property, the right to education and the right to free elections. Those have later been supplemented with the prohibition of imprisonment for debt, the freedom of movement, the prohibition of expulsion of nationals and the prohibition of collective expulsion of aliens (Protocol No. 4, ETS No. 46), the abolition of the death penalty (in all circumstances) (Protocol No. 6, ETS No. 114, and Protocol No. 13, ETS No. 187), procedural

of those rights, it has the possibility to resort to the provisions and international case law of other human rights instruments as well as to prevailing level of protection and legal opinions existing within the national legal systems.

The European Convention on Human Rights is a regional convention, whereas the International Covenant on Civil and Political Rights is open for accession to any State. The provisions of the European Convention on Human Rights are largely based on the Universal Declaration of Human Rights, as well as on the International Covenant on Civil and Political Rights. Like the latter, the European Convention on Human Rights only provides for civil and political rights (although e.g. the First Protocol affords protection of possessions). The economic, social and cultural rights are provided for in a separate instrument also at the European level in the same way as at the international level. Thus, the European Convention and the United Nations instruments, particularly the International Covenant on Civil and Political Rights, coexist and are in principle applicable at the same time³. In principle, a person claiming to be a victim of a human rights violation can file a complaint under the mechanism of his choice, either the European Convention or the International Covenant, but it may be advisable to apply some caution for tactical reasons⁴. Furthermore, there are some conditions of access to those remedies. First, the texts of those instruments set out some conditions of admissibility of complaints. The Committee under the Optional Protocol to the Covenant does not examine a complaint which is at the same time being examined under another procedure of international investigation or settlement.

Second, those States that were already parties to the European Convention on Human Rights at the moment of ratifying the International Covenant on Civil and Political Rights, entered a reservation to the text to the effect that in case the complaint has already been examined by another international monitoring body, the Committee under Optional Protocol to the Covenant has no competence to examine it. The provisions of the Covenant together with the reservations mean that the choice of procedure is somewhat limited. Of the States covered by the present study, Finland appears to be the only one without such a reservation. Although the accession to the European Convention on Human Rights took place later, Finland did not enter a comparable reservation to it either despite certain other reservations.

safeguards relating to expulsion of aliens, the right of appeal in criminal matters, the right to compensation for wrongful conviction and the right not to be tried or punished twice (Protocol No. 7, ETS No. 117), as well as an extension of the general prohibition of discrimination (by any public authority) (Protocol No. 12, CETS No. 177).

3 There may also be other international mechanisms available for seeking redress in the case of human rights violations depending on the right in question, for example under Article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (by filing a communication to the Committee against Torture) (UNTS, vol. 1465, p. 85).

4 Hannum 1994, p.35. Hannum suggests that it is advisable for the reason that international bodies tend to compare applications with other situations that may be more compelling.

Nevertheless, today, most applicants appear to rather file a complaint with the Eu-ropean Court of Human Rights particularly for the reason of a rather efficient control mechanism of the enforcement of judgments, whereas the views of the Committee are not legally binding in the same sense as the judgments of the European Court of Human Rights⁵. The numbers of complaints dealt with by the Committee are also modest with those dealt with by the European Court of Human Rights. However, according to Bunn-Livingstone, one may speak of legal pluralism in the sense that the international legal system provides for more than one legal order (i.e. a regional one and an international one) which might result in differing outcomes of proceedings.

In principle, if the international legal system was understood as encompassing both international and regional human rights conventions, such a situation would in her view entail weak legal pluralism as the legal system itself provides for the alternative legal orders. However, she also points out that in the case of human rights treaties, one may speak of strong legal pluralism. This, in her view, lies in the nature of the conven-tions themselves as human rights are considered universal and thus the system claims universal standards instead of pluralistic ones.⁶ However, this view can also be criticised.

The view of Bunn-Livingstone may be sustained in case the international human rights instruments are applied universally as such. However, the opponents of this view are also right in pointing out that despite the widespread support for the human rights conventions, not all their provisions are equally applied in all States parties to them⁷.

Thus, despite the rather universal nature of human rights and the apparent similarities between international and regional instruments, there are also differences. The differ-ences are explained by the fact that at a regional level, States share more in common than they do on an international scale and they might, for example, be prepared to agree on a higher level of protection in some respects, whereas in others they might prefer a looser formulation than the international instrument provides for. The language used in the European Convention on Human Rights and that used the International Covenant on Civil and Political Rights have considerable similarities, which is not surprising, given that they are products of the same decade, and share a large number of States parties having contributed to the negotiations. One must not forget, however,

5 Under Article 5(4) of the Optional Protocol, the Committee shall forward its views to the State Party concerned and to the individual. Thus, the wording is not particularly strong. However, in 1990, the Committee has adopted measures to monitor compliance with its views. Under those measures, the Committee asks the State to provide information on action taken in response to a violation found, and findings on non-compliance can be published in the Committee’s Annual Report. (See Hannum 1994, p. 48.)

6 Bunn-Livingstone 2002, p. 51 and 53.

7 States have, for example, introduced a number of reservations to them. This, in turn, is explained by the fact that any human rights convention reflects the legal systems and legal cultures of a large number of States – thus existing in the background – and not all the provisions are acceptable to all of them.

that there are considerable differences between legal systems and legal cultures of the variety of States parties to the European Convention on Human Rights.

Although the International Covenant on Civil and Political Rights was subject to negotiations simultaneously and was adopted slightly later, the European Convention on Human Rights together with its control mechanism meant a dramatic change to the protection of fundamental rights that had traditionally been considered to fall within the scope of national sovereignty. The constitutional traditions of protecting fundamental rights in the States parties to the Convention varied from the rather advanced ones in France and Germany to weaker ones. There were also differences in the preparedness of States parties to accept the binding jurisdiction of the created European Court of Human Rights. Despite the rather advanced pieces of legislation that had existed in Germany prior to the era of national socialism, the historical developments with the World Wars proved that it was necessary to ensure a strong protection of human rights at the European and universal levels. In the light of the Preamble to the European Convention on Human Rights, the intention of the signatories was to take into account the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10^th December 1948 as well as the common heritage of politi-cal traditions, ideals, freedom and the rule of law, with a view to taking the first steps for the collective enforcement of certain rights stated in the Universal Declaration.

Thus, their aim was to go enforce those rights, but in some respects to go further at the European level. The feature making the European system unique is the binding nature of the final judgments of the Court under Article 46 of the Convention. However, the fact that recognition of the Court’s jurisdiction remained for a long time optional weakened the development of the case law until the 1970s. The European Conven-tion on Human Rights also provides for a further guarantee of compliance with the Convention by vesting in the Committee of Ministers of the Council of Europe a competence to supervise the execution of judgments.

The number of States parties to the European Convention on Human Rights has constantly increased, and along with the expanding workload of the European Court of Human Rights has expanded as knowledge of the Convention and of the Court has grown in the States parties. The Convention provides for inter-State cases and individual applications including applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the rights set forth in the Convention or an additional Protocol. An individual ap-plication to the European Court of Human Rights is the last resort judicial remedy, meaning that all available domestic remedies must have been exhausted first. After the final decision in the domestic proceedings, the applicants have six months to file an application. The rights protected under the Convention are not absolute, however, but the Convention provides for certain restrictions on those rights. The Convention also allows reservations, which must nevertheless not be general in character. The

possibility for restrictions provided for in the Convention has lead to an extensive and complex body of case law which is increasingly also applied as a source of law by national jurisdictions when faced with cases involving the protection of fundamental rights or human rights. That case law is a unique international source of law and the European Court of Human Rights has further developed the meaning given to the provisions of the Convention through case law. The Court has also developed its own judicial style and legal language. The application and interpretation of the Court’s case law has consequently lead to the emergence of a body of national case law serving also today as one applicable source of law for the European Court of Human Rights.

The present study falls within the rather wide context of the application and inter-pretation of the case law of the European Court of Human Rights but focuses on the gradual transition of the legal culture of protecting human rights and fundamental rights in the Finnish legal system, which has developed through the discourse used in that case law and in Finnish case law, as delimited in section 1.3 below. The present study is addressed at the research community, as a contribution to a series of studies on the European Convention on Human Rights and its impact on the case law of national jurisdictions. The aim is to show, with the example of the Finnish supreme jurisdictions, how the change of legal culture in that respect is dependent on both the constitutional traditions and the characteristics of the legal system, including tradi-tions of interpreting law. The discourse of courts is dependent on that legal framework, which may slow down the transition of legal culture. The present study is, however, also addressed at the national judiciary, for whom even recommendations are presented on how the culture of protecting fundamental rights and human rights could be made even stronger through a dialogue with the European Court of Human Rights. The aspect of such a dialogue has been addressed to a lesser extent in Finnish legal research than in continental Europe.

1.2 Discourse of the European Court of Human Rights