Transition of the legal culture

The present dissertation is interdisciplinary, combining the sciences of legal linguistics, constitutional law and international treaty law or, to be more precise, international human rights law. The study analyses the transition of the legal culture of protecting fundamental rights and human rights in Finland from the emergence of the European Convention on Human Rights and development of the language of the European Court of Human Rights to their reception at the national level. Finland is today a member State of the Council of Europe and a party to the European Convention on Human Rights. The text of the European Convention on Human Rights reflects the standards of protection that the States parties thereto have been willing to afford to their citizens.

The judgments of the European Court of Human Rights provide authoritative state-ments on how it should be read and interpreted, which further develop the standards of protection and thus the legal culture of protecting human rights and fundamental rights. The development of case law continued for decades before Finland acceded to the Convention, and has continued since Finland’s accession for approximately 25 years. The late accession to the Convention means that of the 65 years of its existence, the Finnish judiciary has only been applying it for 25 years, taking aboard 40 years of development of the standards of protection as such. This is a strong generalising state-ment. The aim with this research is to analyse that development, which now constitutes an essential element of the Finnish legal system, from a wide historical perspective, ending at the analysis of national case law to see how its adoption has succeeded by the supreme jurisdictions. It is argued that the transition of the legal culture in an individual legal system does not take overnight in a case where the standards of protection have developed without the presence of that legal system for a long period of time. It is further argued that their reception is still not complete. Therefore, the development of the legal culture as a consequence of the European Convention on Human Rights in Finland is studied at three phases and comparisons are made with other legal systems to explain how foreign that element of the legal system is traditionally for the Finnish judiciary. Finally, those presumptions are confirmed by analysing the discourse of the Finnish supreme jurisdictions.

Thus, the present dissertation is based on the underlying presumption that the language of international human rights instruments reflects the political will and international culture of protecting human rights, as stated by the entity of states par-ties to the instrument in question. As for individual states, however, the legal culture of protecting human rights is a more complex issue, involving also the intertwined aspect of constitutional or fundamental rights. The texts of international human rights conventions are static until officially amended, and in individual states parties they receive their meaning from state practice, including case law. Thus, the legal cultures of protecting human rights vary from those showing less respect for the internationally

agreed standards to more advanced ones. Political declarations, government documents, legislation and court judgments, through their language, further reflect the culture and standard of protecting human rights and fundamental rights. Considering that legal culture is a wide concept, it is necessary to delimit it. For the purposes of the present research, the legal culture of protecting fundamental rights and human rights is lim-ited to the legal texts guaranteeing that protection and their enforcement through the judiciary. As a whole, the national legal culture would comprise a large variety of other elements, such as legislative policies and general legal opinions. Although only the final stage of the research focuses on national supreme jurisdictions, to include or exclude certain factors affecting the transition in national case law, it is necessary to approach that topic from a wide perspective. Thus, a wide perspective of development of the Convention is meant to assess how foreign that new European element was originally for the Finnish legal system, and an analysis of the development of the case law of the European Court of Human Rights – taking first place without the presence of Finnish cases – is meant to explain to what extent this extensive body of case law meant new elements in the legal system. For that purpose, also selected other legal systems are briefly analysed to exclude the impact of those foreign legal systems on the Finnish case law. It is well known that those legal systems are the most familiar ones for the Finnish judiciary and foreign materials are widely consulted. However, those elements are not necessarily visible in the discourse of the national supreme ju-risdictions as explicit references, but are rather indirectly present in the legal thinking.

Therefore, their presence is examined through comparison of sources of law, methods of interpretation and judicial style. An effort is made to assess whether and how the new element, European case law, has affected judicial style and legal culture of protecting human rights and fundamental rights in Finland.

The study is divided into three phases of transition of the language of human rights law and legal culture in Finland under the impact of the European Conven-tion on Human Rights, where the case law of the European Court of Human Rights constitutes the key element which has brought about a dramatic change in how the Convention rights are to be interpreted and understood. The aim of the research is to study, first, how the language of international human rights law has emerged, as a particular legal culture, starting from a historical overview of the protection of basic rights and liberties and the emergence of constitutional instruments protecting such rights, and moving to the emergence of international instruments for the protection of human rights, particularly the European Convention on Human Rights. This historical overview covers the first phase of transition, where the Convention is drafted under the influence of negotiating States having their own traditions and cultures which are brought under a common umbrella, which in turn has an impact on the national legal systems and judiciaries. This first phase, placing the European Convention in a wider context, took place without Finland participating in the negotiations. The European

Convention on Human Rights has, nevertheless, been implemented in the Finnish legal system as such, which makes it important to analyse the elements that have existed in the Finnish legal system prior to the emergence of the Convention and its implementation, and those that appeared as a result of the Convention. The purpose of this rather extensive phase of the study is to assess from a historical and constitutional point of view the efforts required for the national supreme jurisdictions to adopt the new element in the Finnish legal system. Should the national constitutional traditions of protecting fundamental rights, including their scope, have considerable similarities with those that are visible in the European Convention on Human Rights, it would presumably require fewer efforts than in the opposite case. Whereas Finland did not take part in the negotiations, Sweden did. Finland shares a considerable part of legal history with Sweden, which has also had an impact on constitutional traditions, and the Swedish law was largely maintained even during the Russian era although there was influence from Russia on the political and administrative institutions. Those do not fall within the scope of the present dissertation. However, there is also influence from legal systems other than the Swedish one, particularly the German legal system.

The concepts of human rights and fundamental rights are used without separating them from one another for the reason that in the Finnish case law which has emerged upon Finland’s accession to the European Convention on Human Rights, they have been interpreted on the basis of the same criteria. Thus, it is necessary to also assess the historical constitutional developments.

The second phase of transition is the development of the language of the Conven-tion in a wide sense, i.e. under the case law of the European Court of Human Rights, within the framework of a unique control mechanism, partly independently but partly also under the influence of a variety of legal cultures. In this context, although the development of case law takes place under the impact of the individual complaints and indirectly the languages and legal cultures of States parties, the transition of the meaning of Convention provisions takes place rather independently and has changed considerably from what the negotiating States perhaps had originally in mind. The underlying presumption in this part of the study is that the language of the European Court of Human Rights, used in its judgments, develops under the impact of a variety of elements, including the legal cultures represented by the judges themselves and those of the states subject to complaints, but also the personal capacities of the judges. Thus, when looked into from the perspective of an individual state party to the Convention, in this case Finland, the language of the Court develops under a great variety of legal cultures, some of which may be extremely foreign to the Finnish one. Until Finland’s accession to the Convention, which took place at a late moment when compared with the other selected States, this development took place without the presence of Finn-ish cases. The FinnFinn-ish judiciary has not needed to pay attention to the development of European case law until rather recently. Therefore, the focus of the second phase of

the study is on the abundant case law which was upon Finland’s accession adopted in the Finnish legal system as such, although some of the more recent cases are looked into as they represent clear changes in the interpretation of the Convention meaning and some of them have ended up to the Court’s case law through Finnish applicants.

However, this is all brought under the umbrella of protecting human rights, and the judgments are considered to reflect the legal culture of protecting human rights and fundamental rights. This element is no longer a static one, and is again implemented at the national level through the application of the case law of the European Court of Human Rights as a source of law, although it does not tell the entire truth about the cultures of protecting fundamental rights at the national level. However, it does provide some important elements for the analysis of the transition at the national level. This is particularly so because in this phase of transition, highlighting the development of the interpretation of the Convention, Finnish cases have gradually begun to play a role. This element of the protection of human rights and fundamental rights requires constant awareness of the European case law by the national judges to allow gradual transition of the legal culture.

The third and last phase of transition is what takes place at the national level, under the impact of the Convention system and the case law of the European Court of Human Rights on national case law and legal culture. The third phase of the research aims, in particular, to assess in more detail whether and to what extent the argumentation of the European Court of Human Rights has in practice been received by the Finnish supreme jurisdictions. This is the most relevant phase for the analysis of the de facto transition of the legal culture of protecting human rights at the national level. The study is based on the underlying assumption that the language of national jurisdictions is a reflection of that culture, bearing in mind that it is only one element of the legal culture as a whole, in the same way as the texts of international human rights conventions reflect the standards of protection. National judgments tell what the reality is at the national level.

An analysis is made of how the case law of the European Court of Human Rights has been taken into account in national cases involving the interpretation of certain human rights or constitutional rights and how the manner of treating it has changed since the earliest judgments until today, as reflected in the discourse of the supreme jurisdictions.

Prior research made into case law in Finland has shown that before Finland’s acces-sion to the European Court of Human Rights, there were hardly any references to the provisions of international conventions on human rights and it was even rare to directly refer to the fundamental rights provisions of the Constitution¹⁴. Instead of repeating

14 See Scheinin 1991, p. 215, 216 and 222 concerning the Supreme Court. According to Scheinin, the Supreme Administrative Court has been a foregoer and there have been somewhat more references to both the Constitution and human rights conventions (Ibid. p. 241 and seq.) although it is far from the existing practice.

that research, the case law with references to the European Convention on Human Rights and the relevant case law is analysed instead of older case law to assess whether there is an ongoing transition of the legal culture in Finland, through the application and interpretation of the European Convention on Human Rights and whether and how that transition is visible in the judicial discourse of the supreme jurisdictions. It is a well known fact that the impact of the European Convention on Human Rights in Finland is dramatic when compared with the United Nations instruments. It is also rather well known in Finland that the application of the European Convention on Hu-man Rights and the relevant case law has gradually increased since Finland’s accession to the Convention to a significant extent, and this has been addressed in some studies.

However, hardly any research has been made into whether there are other signs of change in the discourse of the supreme jurisdictions indicating a transition of the legal culture. In particular, the judgments of the European Court of Human Rights can be treated by national jurisdictions as purely external elements to be taken into account, but the way they are applied through methods and standards of interpretation may bring them gradually towards strong internal elements. The bigger the difference in style is between early cases and the more recent ones, the stronger the transition of the legal culture is. The relevance of changes in legal discourse for the conclusions of the present dissertation is explained in more detail in sections 1.4.2 and 1.4.3 below. At the outset, it appears that where the applicable international human rights convention is not supported by case law of a court, national jurisdictions are not willing to provide interpretations of their own. The European Convention on Human Rights appears to have the opposite effect particularly because of the binding European case law.

The final stage of the study is to assess the impact of the legal argumentation used by the European Court of Human Rights on legal culture and discourse of the Finnish supreme jurisdictions, as well as its conceptualisation and understanding by the judici-ary. The European Court of Human Rights and the Finnish supreme jurisdictions (the Supreme Court and the Supreme Administrative Court) have been chosen as a research topic due to the abundance of advanced case law of the European Court of Human Rights and its rather strong impact on the Finnish legal culture over a relatively short period of time. The impact on the discourse appears to be stronger than in the big legal systems used as sources of comparison for the present research. However, the aim with this thesis is to demonstrate through an analysis of the discourse of the Finnish supreme jurisdictions that the real understanding of that case law has taken place only later. A further aim is to demonstrate that the development of a dialogue between the European Court of Human Rights and the Finnish supreme jurisdictions is still an ongoing process, and the reception of the argumentation of the European Court of Human Rights is still not complete. For that purpose, dialogue is understood as a form of interaction whereby the two levels of jurisdictions take one another’s case law into account. Such a dialogue is on occasion said to exist also in other legal systems. Where

dialogue is successful, the emphasis of the legal culture of protecting human rights is at the national level in an effort to correct violations before them ending up to the European Court of Human Rights. That would be an indication of a more profound change of the legal culture, and one aim with the most recent reforms of the European Court of Human Rights and national legislations has been to go to that direction.

Therefore, such a dialogue should perhaps be recommended.

Finland has been chosen as an example for the analysis of the transition of legal culture of protecting human rights and fundamental rights at the national level, first, for the reason that Finland acceded to the Convention later than the other Nordic countries part of the same family of legal systems and the other States used as sources of comparison and, second, the impact of the European case law on the national ju-risprudence has been strong over a shorter period of time than for those other States.

Thus, despite having been under the influence of the Nordic and Germanic legal tradi-tions, Finland represents a State which has implemented the result of negotiations in which it did not take part around forty years later. Further, to assess the overall impact of the European Convention on Human Rights, it is interesting to look into other international instruments and the constitutional traditions of protecting fundamental rights. The Finnish legal system had been applying the United Nations instruments for a while before acceding to the European Convention on Human Rights, which makes it interesting to assess the impact of the Convention on the legal culture in more detail when compared with other human rights instruments. Even the accession to the United Nations covenants took place somewhat twenty years after their adoption. However, the impact of those instruments on national jurisprudence has been modest and they were only seldom referred to. Furthermore, a few years after the accession to the European Convention on Human Rights, the constitutional provisions on fundamental rights were revised, which allows assessment of the impact of the Convention on them too.

Furthermore, the case law of the supreme jurisdictions of Finland in which the case law of the European Court of Human Rights has been applied is easily available. That

Furthermore, the case law of the supreme jurisdictions of Finland in which the case law of the European Court of Human Rights has been applied is easily available. That