Finnish legal system

As regards the status of international agreements in the domestic legal system, Finland is in principle an example of a dualistic system. International treaties must be separately implemented in order for them to become applicable at the national level. This is done either at the level of an ordinary act of Parliament or at the level of a decree, affording international agreements the same hierarchical status, respectively. The implementing act is normally an Act (or decree) in blanco, meaning that the provisions of the treaty are incorporated as such, and therefore I would suggest that the Finnish legal system

330 Prop. 1993/94: 117. The intention of the Government was to further strengthen the protection of fundamental rights as guaranteed by Chapter 2 of the Constitution (Regeringsform) (kapitel 11). In addition, the meaning oft he European Convention in the national legal system was strengthened by stating that national acts of Parliament or other legislation should not be in conflict with the Government’s obligations under the Convention (kapitel 10). See also Nergelius 1996, p. 609.

331 Axberger 2012, p. 24. The reason for maintaining both was a concern over that the freedom of press would be weakened through the new act as it was necessary to impose certain restrictions on media other than printed ones. (Ibid. p. 24 and 25.)

332 Axberger 2012, p. 27.

333 Berggren & al. 2001, p. 188 and 189. They refer to the opinion of Bengtsson B. (1994), according to whom such a stronger element is, in particular, the right to compensation in connection with the regulation of the use of land areas.

is rather between a monistic and a dualistic system than a purely dualistic system.

Sometimes, however, additional legislative amendments (transformation) may be necessary. The European Convention on Human Rights was implemented by means of an act of Parliament in blanco, which in principle means that eventual conflicts be-tween the provisions of the Convention and those of other acts of Parliament would be resolved by means of normal rules of interpretation of laws. Thus, the Convention does not in principle enjoy any special status with regard to national legislation. It was nevertheless found necessary to make various amendments to legislation, to take the Convention duly into account. Such amendments concerned, among others, criminal investigations and enforcement of sentences. In addition, Finland found it necessary to make a reservation to the Convention.³³⁴ The reservation³³⁵ concerned, in particular, the right to an oral hearing under several procedural laws. In order to withdraw the reservation, Finland enacted various amendments to legislation, including provisions on both civil and criminal and administrative law proceedings. Thus, already acces-sion to the European Convention on Human Rights brought about such considerable amendments to national legislation that meant a step forward in the transition of the legal culture of protecting fundamental rights and human rights, particularly in the form of strengthened provisions on fair trial. Those amendments made also the fun-damental rights provisions more easily enforceable in courts of law. Despite that the Convention could in principle be overridden by special legislation or later legislation along with the normal rules of interpretation, however, Finnish courts tend to interpret national legislation in a way that takes the provisions of the European Convention (as well as other human rights conventions and the provisions of the Constitution on fundamental rights) into account. This is also considered to have been the intention of Parliament³³⁶. They have even been given effect of a binding source of law as indicated in sections 4.3 and 4.5 below. However, in the field of procedural law, human rights friendly interpretation of law is not sufficient as procedural rules are most often absolute in nature. The transition in respect of strengthened fair trial rights took place gradually.

It is observed in the foregoing that prior to the accession of Finland to the European Convention on Human Rights, the constitutional provisions on fundamental rights remained unchanged for a long time. Slightly later than the debate on the reform of the constitutional acts in general, a debate on the need to revise the fundamental rights provisions was launched. These ideas were expressed first in the 1970s, but the reform was not carried out until in the 1990s. A constitutional law committee set up in 1970 outlined already the main principles, but a comprehensive list of fundamental

334 For details, see Pellonpää & al. 2012, p. 60-63.

335 Reservation contained in the instrument of ratification deposited on 10 May 1990 – as amended by the partial withdrawals of reservation dated 20 December 1996, 30 April 1998, 1 April 1999 and 16 May 2001.

336 PeVL 2/1990 vp, p. 2 and 3.

rights was proposed by a fundamental rights committee with mandate for the years 1989 to 1992.³³⁷ That list of rights contained elements of international human rights conventions.³³⁸ In order to harmonise the Constitution with existing international instruments for the protection of human rights, particularly the European Conven-tion on Human Rights, and to make it better correspond to the needs of modern society, the fundamental rights provisions of the Constitution were revised in 1995 before an overall reform of the Constitution in 1999. In the reform of the provisions on fundamental rights, the protection of fundamental rights was extended to cover all persons residing within the jurisdiction of Finland, and not only the Finnish citizens, and provisions on economic, social and cultural rights were added. Thus, its contents became closer to those of the German Basic Law. A further aim with the reform was to increase the legal significance of fundamental rights in general. The Government recognised the fact that courts of law had only to minor extent applied fundamental rights provisions in their decisions.³³⁹

Thus, the transition of the legal culture in favour of stronger protection of fun-damental rights and human rights began already partly as a result of other human rights conventions, which paved the way for accession to the European Convention on Human Rights. However, the first element of a stronger change in the legal culture of protecting fundamental rights took place particularly as a result of the European Convention on Human Rights, which was the harmonisation of the provisions of the Constitution with those conventions. Further, one of the aims with the reform was to increase the direct applicability of fundamental rights provisions by courts and other authorities.³⁴⁰ The classical civil rights were maintained in the list of rights, but in a more extensive and detailed form³⁴¹. The greatest difference between the earlier fundamental rights provisions and the new ones is the insertion of fair trial provisions written from the perspective of the individual.³⁴² The new fair trial provisions of the Constitution are also significant in that those of the European Convention on Human Rights are largely based on common law traditions, in the same way as those of the International Covenant on Civil and Political Rights, and the Finnish legislation on

337 Jyränki 2000, p. 277.

338 Jyränki 2000, p. 277.

339 HE 309/1993 vp, p. 5 and 6. Act Nos. 969-972/1995.

340 See Viljanen (V-P) 1996, p. 797.

341 Saraviita 1997, p. 23. For example, the freedom of expression was made more precise by defining its scope, and by adding a restriction clause (Ibid. p. 24).

342 HE 309/1993 vp, p. 21. See also Viljanen (V-P) 1996, p. 789. Viljanen notes that the fair trial provisions, in particular, have been adopted rather directly from the provisions of human rights conventions. Another example of such provisions is the provision on the right to respect for private life. Other provisions are rather domestic in nature, such as access to public documents.

(Ibid. p. 791)

civil and criminal procedure differed in many respects from such traditions³⁴³. Scheinin has studied the application of fundamental rights and human rights provisions by the Finnish judiciary prior to accession to the European Convention on Human Rights and has observed that it has not been a consistent practice to directly refer to the fun-damental rights provisions of the Constitution³⁴⁴. Also, the same observation concerns the provisions of international human rights conventions, and they were only gradually becoming an established binding source of law in the case law of the Finnish supreme jurisdictions³⁴⁵. Clear intentions of facilitating the direct applicability of the funda-mental rights provisions, through the reform of the Constitution, also brought a clear change in the legal culture of applying international human rights conventions. The European Convention on Human Rights can be said to constitute a dramatic change in the legal culture of protecting fundamental rights and human rights. Therefore, it is possible that also the general attitude towards the protection of fundamental rights has changed although a stronger human rights thinking in the judiciary is a rather young product in Finland. This together with the fact that the earlier provisions of the Constitution were not designed for being directly applied by courts most likely explain the early rather mechanic references and the way in which the references to the European Convention on Human Rights and the case law of the European Court of Human Rights have developed in the past twenty years, as explained in more detail in sections 4.3 and 4.5 below.

The new Constitution of Finland was adopted in 1999, which entered into force on 1 March 2000³⁴⁶. The earlier reformed provisions on fundamental rights were included in the new Constitution as such, but there were some changes made to update the text to the needs of present-day society, such as in the provisions on the right to private life³⁴⁷. The Constitution of 1999 now contains rather detailed and modern provisions on fundamental rights, in a specific Chapter. However, as Jyränki points out, the overall reform of the Constitution has entailed a changed framework also for the protection of fundamental rights. Although the material contents of the

343 See Saraviita 1997, p. 25. The differences between the Finnish legislation and the European Convention on Human Rights made it necessary for Finland to enter reservations to Article 6 of the Convention, which have later been withdrawn.

344 Scheinin 1991, p. 274.

345 Scheinin 1991, p. 276 and 277. Despite slow development, there were already examples of such cases from the Supreme Court and the Supreme Administrative Court by 1991.

346 Act No 731/1999.

347 Saraviita observes that as of the reform of the Constitution in 1995, a series of amendments to legislation have been enacted, as a result of technical developments (particularly new forms of media) and new means of criminal investigations, entailing restrictions on the right to private life and also changes in legal terminology (Saraviita 2011, p. 179). Also, as regards the provisions on the freedom of expression, the publicity of official documents was made a fundamental right upon the reform. (Saraviita 2011, p. 207).

fundamental rights provisions remained largely unchanged, some changes have taken place in the mechanisms of implementing them.³⁴⁸ Saraviita notes that whereas the modern fundamental rights system introduced by the reform of 1995 was made part of a constitutional act that remained in other respects outdated, the Constitution of 2000 provided a more efficient framework for its implementation³⁴⁹. In the view of Saraviita, the new Constitution did not mean a sudden or dramatic change in the constitutional law traditions, but is rather a continuation of the old traditions³⁵⁰. Despite that, the adoption of the new Constitution supported the transition of the legal culture that started with the accession to the European Convention on Human Rights and the reform of the constitutional provisions on fundamental rights. Thus, the transition of the legal culture of protecting fundamental rights and human rights did not end but was further strengthened. Furthermore, the new Constitution entailed changes in other legislation, most importantly that on immigration. The new provisions extended the protection of fundamental rights to also concern immigrants residing in Finland, without a nationality requirement³⁵¹. That means indirect influence of the European Convention on Human Rights. In section 4.3 below, the impact of the case law of the European Court of Human Rights on national legislation is assessed in more detail.

The transition of legal culture is not complete, however, by merely changing the applicable legislation but the provisions of the international conventions and the Con-stitution also need to be applied. In Finland, the application of international human rights conventions and the constitutional fundamental rights provisions by domestic courts has increased along with years. They have also increasingly been paid attention to in the interpretation of other legislation. According to the view of the Constitutional

348 Jyränki 2000, p. 277. The relevant provisions of the Constitution include, in particular, sections 1(3), 2(2), 5, 73(1), 80, 94(3), 106, 118, 123 and 124.

349 Saraviita 2011, p. 117. An example of such new provisions was the prohibition in section 80 to delegate public duties to a level lower than acts of Parliament, where those duties entail restric-tions on fundamental rights.

350 Saraviita 2011, p. 1. This means that in the interpretation of the constitutional law provisions, even the old provisions and materials relating to them have relevance even today. For example, the scope of the provisions on the freedom of expression in the new Constitution did not entail dramatic changes with regard to the earlier ones apart from the aforementioned publicity of official documents (note 347), although in this respect the technological development must be borne in mind. Also, as regards the provisions of Article 5 of the Convention, one may note that the right as such has existed from early times. Saraviita observes, however, that particularly the judgments of the European Court of Human Rights have meant more precise provisions of the Constitu-tion and other naConstitu-tional law and have lead to more detailed judgments of naConstitu-tional jurisdicConstitu-tions International human rights conventions and particularly the European Convention on Human Rights played a role in that administrative deprivations of liberty were made subject to judicial control. Thus, the scope of national law as regards judicial control has been extended due to the accession to international human rights conventions. (Saraviita 2011, p. 156 and 199)

351 HE 28/2003.

Law Committee in 1982, the Finnish courts are under an obligation to interpret the provisions of ordinary law and decrees in a manner that contributes to the protection of fundamental rights, and this obligation is based on that the fundamental rights provisions are at a higher hierarchical level than the provisions of ordinary law. The Constitutional Law Committee has later confirmed and refined this view in the context of providing its report on the fundamental rights reform.³⁵² Irrespective of whether the obligation to take fundamental rights provisions into account is based on their hierarchical status or not, it must be borne in mind that the provisions of the European Convention on Human Rights are in force at the level of ordinary law in Finland. The Constitutional Law Committee has underlined that where there are several justified interpretations of law, the courts must choose the one that best contributes to achiev-ing the purpose of fundamental rights and eliminates conflicts with the Constitution.

Despite this, the Constitutional Law Committee has also pointed out that there is reason to interpret the fundamental rights provisions of the Constitution in conformity with the international human rights conventions.³⁵³

In the 1970s and the 1980s, it was still rather rare for Finnish courts to apply the provisions of international human rights conventions or even national provisions of law on fundamental rights³⁵⁴, but as of the beginning of the 1990s, human rights provisions have gradually gained an established status at least in the administration of law by the last-instance courts and they have been applied both directly and indirectly.

One factor contributing to this development is, without doubt, the entry into force of the European Convention on Human Rights for Finland as well as the exceptional

352 Perusoikeustyöryhmän muistio 1982, p. 21, and PeVM 25/1994 vp., p. 4. In the view of Scheinin, however, the obligation on a human rights friendly interpretation of law is not based on the higher hierarchical status of fundamental rights provisions, but rather on the fact that those provisions lay down rights for citizens and entail a strong value element, and as fundamental values they must be given the emphasis they deserve (Scheinin 1989, p. 65 and 195).

353 PeVM 25/1994 vp., p. 4 and 5. In principle, there might appear a conflict between a fundamental rights provision of the Constitution and a provision of the European Convention on Human Rights, in which case the constitutional provision would in strict hierarchical terms prevail. How-ever, along with the fundamental rights reform of the Constitution in 1995, the aim has been to harmonise the interpretation between the two. (See Viljanen (V-P) 1996, p. 797) Viljanen identi-fies also limits to the harmonisation, including the fact that the Convention only provides for a minimum level of protection and the task of the national system is to define, where appropriate, a higher level of protection of individual rights. (Ibid. p. 797 and 798) Article 60 of the Convention explicitly provides that “Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.” Furthermore, the possibility of applying the case law of the European Court of Human Rights is restricted by the application of the doctrine of the margin of appreciation, which constitutes an impediment to the use of that case law as a source of interpretation of the fundamental rights provisions of the Constitution. (Ibid. p. 799)

354 For details, see Scheinin 1991, p. 273-279.

control mechanism under the Convention. By 2005, Finnish case law contained al-ready a good number of references to the provisions of the European Convention on Human Rights and to the case law of the European Court of Human Rights, in particular. The Convention and the case law have mostly been taken into account as part of the so-called human rights friendly interpretation of law.³⁵⁵ As is pointed out by Pellonpää & al., “human rights friendly” interpretation of law requires, however, that there is sufficient knowledge of the provisions of the Convention³⁵⁶. The reform of the fundamental rights provisions of the Constitution further strengthened the direct application of fundamental and human rights by national courts.³⁵⁷ Thus, practice has confirmed the good intentions with the introduction of strengthened protection of fundamental rights and human rights.

Although there were also some reserved attitudes towards the European Convention at the end of the 1980s, Finland is today among those States parties to the Convention that take its provisions seriously and judgments of the Court are complied with at the national level. Even judgments finding a violation of the Convention are seen rather as an element improving the protection of human rights.³⁵⁸ Thus, although the courts generally welcomed a more flexible approach to the application and interpretation of fundamental rights provisions before accession to the European Convention, it seems that the latter had an even more dramatic impact. It appears that a rather profound change has been taking in place in the Finnish judiciary. This involves not only an in-creased application of international elements, including the case law of the European Court of Justice and the European Court of Human Rights, but also an increased role given to case law as a source of law in general.³⁵⁹

Insofar as the case law of the European Court of Human Rights is concerned, in particular, the fact that the European Convention on Human Rights played an

Insofar as the case law of the European Court of Human Rights is concerned, in particular, the fact that the European Convention on Human Rights played an