III Table of cases
1.5 Selection of materials
Both the chosen research methods and the selection of materials need to serve, first, the purpose of analysing the emergence of the Convention and its implementation, second, the purpose of analysing the development of the language of the Convention through the discourse of the European Court of Human Rights and, third, the purpose of analysing the development of the discourse of the Finnish supreme jurisdictions.
Some explanations need to be provided for the selection of European and national case law. In the selection of relevant case law, a decision needs to be made on whether to carry out research into the whole body of case law concerning Finland or whether one should focus on the most interesting cases, or whether to carry out a more pro-found research into the case law on certain Convention provisions. According to Van Hoecke, the comparison of case law instead of mere comparison of rules has become increasingly popular, which is understandable in that the analysis of legal rules alone does not provide an adequate picture of the way in which a legal system works. He nevertheless draws attention to the fact that research very often focuses on so-called hard cases or cases decided by the highest court instances, and raises the question of whether this is sufficient. However, as is pointed out by Van Hoecke, the case law also needs to be accessible to allow reliable comparison, and another challenge would be to assess to what extent the cases are identical in facts and/or in law, although the practical solutions might be the same.62 Thus, apart from the purpose of the research and the research methods, the accessibility of the case law has to be taken into account.
The final decision on which judgments to include in the research may need to be done in the course of the discourse analysis as only that analysis proves whether they are useful for the purposes of the research. On the one hand, even a rather limited sample may sometimes be sufficient, but on the other hand, the conclusions become the more reliable the more extensive the data is. Once again, since the purpose is to analyse the transition of the legal culture in Finland, attention is paid to those cases that are most useful for assessing that transition and provide a sufficient selection of cases that are at least to some extent analogical or similar. Thus, in the selection of the national cases for the purposes of discourse analysis, attention has been paid to those articles of the European Convention on Human Rights that have produced the larg-est number of judgments against Finland, based on an underlying assumption that they also constitute important groups of cases at the national level. It is also presumed that those groups of cases provide a sufficient degree of analogy. This is not limited to so-called hard cases, but in respect of the given group of cases, all judgments of the supreme jurisdictions are looked into. A reasonable balance has been sought between the number of judgments of the Supreme Court, on the one hand, and the number of
62 Van Hoecke 2004, p. 168-171.
judgments of the Supreme Administrative Court, and attention has been paid to the total numbers of judgments relating to the application of the case law of the Euro-pean Court of Human Rights. In the drawing of conclusions, it is important to bear in mind that lower courts of law are an inherent part of the judiciary and the extent to which the European case law is received by the judiciary as a whole, would provide a more solid and reliable ground for a statement concerning a change in the legal culture as a whole. However, given that the case law of the supreme jurisdictions is de facto followed by the lower courts of law, the study is limited to that case law. Thus, the underlying assumption is that the main trends of the transition of legal culture are reflected or visible in the discourse of the supreme jurisdictions. All judgments of the European Court of Human Rights are easily accessible, including a detailed statement of reasons. Furthermore, Finnish case law of the supreme jurisdictions is also easily available, and cases relating to the application of European case law are most often published as precedents. In respect of the Supreme Administrative Court, even non published judgments are included. This makes it possible to draw reliable conclusions within the framework of the selected groups of cases.
As regards sources of comparison in the theoretical assessment of the receptive-ness of the legal system to European case law, in the light of the characteristics of the legal system and judicial style of judgments of the legal system, the United Kingdom and France have been chosen as reference states for the reason that they represent authentic languages of the Convention and official working languages of the European Court of Human Rights. Those two legal systems are also among the big European legal systems the elements of which are rather well known by Finnish judges. Fur-ther, Germany has been chosen as an additional reference State for the reason that it constitutes an essential element in the development of continental legal cultures, and the German legal system and thinking have also had considerable impact on the Finnish legal system among the various foreign legal systems throughout the legal history. Germany also provides an interesting example of a State party where it appears to have been relatively easy to adapt to the argumentation of the European Court of Human Rights when analysed in the light of the numbers of violations found against different States parties. Instead, in Finland, the development has taken place over a much shorter period of time, and there is some controversy of views as to whether considerable development actually exists. When compared with Germany, the number of violations found is relatively high considering the size of the population and the shorter period of time. Sweden is included in the research as a reference State for the reason of a partly common legal history with Finland and the smaller number of violations despite the much earlier ratification of the Convention. Not only works of scholars but also some judgments of supreme jurisdictions of the selected four legal systems have been studied to look for similar elements of discourse as in respect of the Finnish supreme jurisdictions. This makes it possible to assess to what extent
the transition of the legal culture in Finland might have been affected by other legal cultures instead of merely by the development of European human rights law. Some case law of the selected legal systems is looked into. However, a detailed analysis of the transition of the legal culture, by means of micro-comparison through discourse analysis, is only carried out in respect of Finland. A further reason for the selection of States is the history of protection of fundamental rights and human rights, to which particularly the English-speaking world and France have contributed considerably but with different results at the national level. The constitutional traditions of protecting fundamental rights in Finland and Sweden have been considerably different from those in France and Germany. The selection of States thus provides an interesting overview of different constitutional traditions some of which have played a larger role in the international developments. Further, the historical developments in Germany were a major reason for the emergence of the strong protection of human rights after the Second World War, whereas the United Kingdom and France were among the victors of war that played an important role in the negotiations leading to the adoption of the European Convention on Human Rights. Germany and Sweden also participated in the negotiations, whereas Finland did not.
The main challenge in the selection of data has been how to decide which provi-sions of the Convention would be most useful to assess, in particular, the change of legal culture in Finland. For that purpose, some statistical and empirical research has been carried out into the case law of the European Court of Human Rights. For the purpose of selecting the relevant case law of the European Court of Human Rights, to analyse the Court’s discourse, that case law has been analysed in the light of the Court’s statistics as on 31 December 2013, including the total number of judgments rendered by the Court concerning the aforementioned States, particularly judgments finding a violation of the Convention and judgments concerning the specific provi-sions of the Convention subject to the present study. Two specific Convention articles have been selected for closer analysis of the development of the language used by the European Court of Human Rights for the reason that they have raised interest-ing conceptual and linterest-inguistic problems and have also produced a large number of cases from several States, largely due to the fact that the European Court of Human Rights has expanded the meaning and scope of those Convention provisions. The other provisions have been chosen by verifying which Articles of the Convention have been subject to a relatively large number of cases against Finland, using other States included in the scope of the study as reference States. Thus, for comparative purposes, attention has also been paid to the most relevant articles concerning the selected States parties. An overwhelming majority of cases against Finland have con-cerned fair trial rights under Article 6 of the Convention, which provision has also raised interesting linguistic issues. France and the United Kingdom, representing the two authentic languages of the Convention and States which have also faced the two
largest numbers of judgments, appear to have had the same problem. On the basis of the Court’s statistics as on 31 December 2013, it may be concluded that in respect of the five States covered by the present study, when taken together, the numbers of cases under Articles analysed were as follows: the number of cases concerning Article 6, covering both the right to a fair trial and the length of proceedings, was 915, whereas those concerning Article 5 was 154, those concerning Article 8 was 152 and those concerning Article 10 was 66. The cases concerning Article 6 constitute thus an overwhelming majority of cases. When compared with the other selected States and the numbers of cases taken together under Article 10, in particular, the total number of cases against Finland concerning the application of Article 10 is considerable in proportion to the total number for all the five states (18 out of the total of 66) although the number of cases under Article 8 is also significant (23 out of the total of 152). Furthermore, the total number of judgments against Finland in which a violation has been found (129) is high when assessed in the light of the total number of judgments against Finland (166).
Furthermore, for the purpose of analysing the development of the discourse of the Finnish supreme jurisdictions in the application and interpretation of the case law of the European Court of Human Rights, an analysis was made of which provisions of the Convention have produced the largest groups of cases at the national level. Those appear to include particularly Article 8 and Article 10. They also represent groups of cases with clearest change as regards the application and interpretation of the Con-vention, with increasingly detailed references to the European case law. Furthermore, in the overall research into the published precedents of the supreme jurisdictions, it appears that the development of argumentation has been more rapid in respect of those two Convention provisions than in respect of other provisions thereof. Thus, the selection of national case law subject to the closer discourse analysis has been made on that basis, as they provide a relatively solid basis for assessing whether there are signs of transition of the legal culture visible in case law. However, in view of the overwhelming number of judgments against Finland before the European Court of Human Rights concerning compliance with Article 6, the national case law concern-ing that provision has been analysed to support the conclusions made, and a sufficient number of cases exist. The number of cases under Article 5 dealt with by the supreme jurisdictions of Finland is too low to draw conclusions on as an isolated group of cases, although it has produced some interesting examples of detailed argumentation in the light of judgments of the European Court of Human Rights, including a clear change of transition of the standards of protection at the national level.
The selection of cases has been done by having the target audience of the research in mind. In order to allow a scientific dialogue, and to make the conclusions interest-ing for a wider audience includinterest-ing the national judiciary, the procedures chosen to arrive at conclusions must be recorded in such a way that they are verifiable by both
the researcher and others, i.e. they must be transparent63. A further challenge is the limitation of the research materials, i.e. the discourses, keeping in mind the requirement of transparency. A researcher employs discourse analysis and other qualitative methods to analyse what types of discourses exist and how they are used, particularly in the case of empiric studies. In the view of Niemi-Kiesiläinen & al., for the purpose of limiting the discourses, a rather small sample of examples may be sufficient, without needing significant statistical surveys. They suggest that saturation is critical in this respect, i.e.
no further research is required at the point where no new discourses are found.64 The data studied in discourse analysis is always a fragment of discourse and the discourse analyst always has to decide where the fragment begins and ends.65 Thus, the quality of the research materials, i.e. the case law of the Finnish supreme jurisdictions, in view of the purposes of the study is born in mind in the selection of cases for the detailed analysis of signs of transition of the legal culture of protecting fundamental rights and human rights in the discourse of the supreme jurisdictions. At the same time, it is ensured that the selected research materials are representative enough for the purpose of drawing reliable conclusions. To define the fragments of discourse to be analysed, those parts of the judgments are chosen in which the supreme jurisdictions apply and interpret the case law of the European Court of Human Rights. Those fragments of discourse are rather easily identifiable and they should be sufficient to assess the visi-bility of the change of legal culture in that respect.
Data collection is not considered to constitute a specific phase of research that must be completed before the analysis begins. Thus, it is useful to first carry out the collection of initial data and through the first analysis find indicators for meaningful samples. On the basis of those results, decisions on further collection of data can be made.66 For the purposes of the present study, the whole case law of the Finnish supreme jurisdictions in which the case law of the European Court of Human Rights constitutes the large-scale data, from which the cases with references to a particular Convention article are
63 Titscher & al. 2000, p. 11 and 12. Titscher & al. observe that the clearer the relationship between the selected theoretical approach, the research strategy, and the methods and procedures employed in a piece of research, the easier it will be for other researchers to reconstruct and even repeat the conclusions derived from it. (Ibid. p. 11.)
64 Niemi-Kiesiläinen & al. 2006, p. 29.
65 Brown & Yule 1983, p. 69. To decide what constitutes a satisfactory unit for analysis, a chunk of conversational discourse can, for example, be treated as a unit of some kind because it is on a particular topic. The notion of topic is clearly an intuitively satisfactory way of describing the unifying principle which makes one stretch of discourse about something and the next stretch about something else. (Ibid. p. 70) When the elements in the topic framework and the interrela-tionships between them have been identified, the analyst has some basis for making judgments of relevance with regard to conversational contributions. (Ibid. p. 83)
66 See Meyer 2001, p. 23 and 24. This type of an approach is called ”theoretical sampling”, where the collection of data is continued as the research is carried out and new questions may arise, to be analysed through the collection of new data or re-examination of existing data. (Ibid. p. 24)
analysed through discourse analysis as a method of micro-comparison. On the basis of that analysis, a decision has been made on the number of further cases needed and on the further Convention articles to be analysed, with a view to finding support for the conclusions made in the light of the first analysed cases.