Oikeusneuvos Lauri Lehtimajan esitelmä Euroopan ihmisoikeussopimusta koskevassa seminaarissa 6.6.2008

Developments in judicial thinking and legal culture

It is 18 years since the European Convention on Human Rights (ECHR) took effect in Finland. In those days, our judicial thinking had a reputation of being rather legalistic. Thanks to the ECHR, we are doing much better now. We have learned to be more open and transparent in the reasonings of our judgments. The famous European maxim "justice must not only be done, it must be seen to be done" is nowadays taken for granted.

Another issue where the ECHR has deeply impacted the Finnish legal culture is the role of the judiciary, and the need to differentiate judicial functions from other exercise of public authority. More stringent demands of impartiality have been imposed upon judges today. At the same time, it is required that courts of law exhibit true independence. Equality of arms entails that the State, when appearing as a party to legal proceedings in civil and criminal matters, be granted no special privileges.

References to the ECHR by the Supreme Court

The Supreme Court annually publishes 100-200 judgments in its yearbook and internet database. In these judgments so far, express reference has been made to the ECHR in a total of 111 cases. This makes a total of nearly 4 per cent of all cases published since our accession to the ECHR. Yet by no means does this imply that in all the other cases the ECHR and its case-law were ignored. The substance of the ECHR has been integrated into our domestic legislation, most visibly into our constitutional bill of rights. Therefore, it is only seldom that there is a need for a direct application of the ECHR. Nevertheless, the ECHR and its case-law is often invoked as a tool and guidance for interpreting domestic legislation. The ECHR is used as a kind of litmus paper testing whether the interpretations of the domestic law are also in harmony with international human rights obligations.

In the beginning, when the ECHR was still a novelty in Finland, there was an “educational” need for the Supreme Court to remind the legal community of the emergence of this new source of law. Today, after 18 years, the thumb rule is that there is no longer need to refer to the ECHR if there be an adequate domestic provision closer at hand. At the same time, while the style of judicial reasoning has developed to be more open, our argumentation is more often based on the relevant Strasbourg case law, especially if the latter is invoked by the parties themselves. Earlier on, the references to the ECHR were rather simple, perhaps merely mentions of certain articles, but gradually they developed into detailed analyses of the Strasbourg case law.1

Out of all provisions in the ECHR, the Supreme Court has most often made reference to art 6. This article is relevant in civil as well as in criminal matters. Most often it is invoked in cases concerning the minimum rights of the accused in criminal trials, the presentation of evidence, the appointment of trial counsel, the giving of grounds to judgments and the impartiality of judges etc. The articles concerning “substantive” human rights are more seldom invoked in civil litigation where the parties are more or less equal opponents, as opposed to criminal
matters where the individual is confronted by the prosecutorial and penal power of the State.

Limits to the direct application of the ECHR

The judicial source-of-law strategy has been clear. At first, we always try to seek a solution through a human-rights-friendly interpretation of the relevant domestic provisions, and only if this turns out to be impossible, we go for a direct application of the ECHR. The first case
where the ECHR was directly applied involved the right of the defendant to examine witnesses testifying against him (1991:84). In cases concerning the lack of impartiality of lay judges (1995:185 and 1997:194), the Supreme Court gave clear precedence to the ECHR over domestic legislation.2

Length of criminal proceedings

A particular point of concern is the length of criminal proceedings, especially in complicated economic offences, where the intricacies of the case often make it a rule rather than exception that the total length appears unreasonable in the light of art 6. The Supreme Court has recognized the need to provide an effective remedy in such cases by taking the length of the proceedings into account in the meting out of the sentence. Sometimes the lower courts have dismissed all criminal charges as a radical means of putting an end to an unreasonably long process. The Supreme Court has taken a more cautious view (2004:58), stressing that such an extreme solution may only be employed in extreme situations where the lapse of time has totally ruined the chances of the accused for an effective defence. Anyway, from a crime prevention point of view, it is problematic, should the lengthening of the proceedings serve as a loophole for big-time criminals to walk scot-free or get away with suspended sentences.
We know how easy it is for the defendant to delay the proceedings on purpose, and then blame it on the criminal justice system.

Freedom of expression and respect of private life

A particular item of current interest in Finland is the tension between the freedom of expression, on one hand, and the respect of private and family life, on the other hand. In my view, the Finnish Supreme Court has so far displayed a general tendency to emphasize the right to privacy at the expense of journalistic freedom of expression. In many cases of this nature, the Strasbourg case-law has been invoked and analyzed at length. It seems that the prevailing distinction between concepts such as “a debate of general interest" and “satisfying the curiosity of a particular readership” is rather tenuous. I am afraid we need further guidance in this regard. 3

Annulment, nullification and re-opening of cases because of violations of the ECHR

It is a classic issue whether and to what extent a violation of the ECHR should give ground to extraordinary appeal, and warrant the annulment or nullification of national judgments, or necessitate the re-opening of res judicata cases at the domestic level. The first and foremost question is how to respond to a finding of a violation that has been verified by the Strasbourg Court. The point of departure is that even a clear violation of the ECHR does not automatically guarantee the success of an extraordinary appeal. 4

Questions of annulment, nullification and re-opening always depend on the special criteria laid down by the national law. If there has been a procedural error, it is required that it must be assumed to have "essentially affected the outcome of the case". Again, if there has been an erroneous interpretation of the law, it is required that the interpretation is "manifestly erroneous".

Decisions are always made on a case to case basis. The promotion of legal certainty is crucial. The fact that the Strasbourg Court has criticized the ruling of a national court is not enough as such. On the other hand, it is admitted that a sheer violation of the ECHR always
looks bad, regardless of its material consequences or the debatability of the legal opinions involved. We do recognize that it is inherently important to build people´s confidence in the administration of justice. Therefore, at least in my view, it makes sense to pursue a liberal policy in terms of annulment and re-opening when it comes to human rights violations. For instance, we try to give a narrow interpretation to the additional domestic requirement that a violation of art 6, in order to warrant a re-opening, must have “essentially affected the outcome”
of the case.5

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1 The very first reference made by the Finnish Supreme Court to the ECHR appeared in a statement issued to the Ministry of Justice in a case involving a plane hijacker and his extradition to the Soviet Union (1990:93). It was then found that the ECHR did not prevent extradition and, subsequently, the Strasbourg Court agreed. Yet, it was curious that the first ruling of this nature by the Supreme Court led to an assessment of the human rights situation in the Soviet Union rather than in Finland.

2 A recent case (2008:10) concerning the compensation of undue deprivation of freedom is a good example of how the ECHR has encouraged and inspired the Supreme Court to escape from hard-core legalism and formalism, and explore for more innovative solutions. The case involved an Estonian citizen who had been sentenced to imprisonment in Finland and was later taken into custody for the purpose of making him serve his time. For various red-tape resons, he was detained for four days after which the authorities finally realized that actually there was no time left for him to serve, because he had already served most of his sentence and thus he was eligible for immediate parole. After his release, he sued the State for compensation for the loss of these four days. The problem was that no express rules or regulations had been violated, and the plaintiff just seemed to have been unlucky and victimized by pure bureaucracy. The existing legislation providing compensation for undue loss of liberty seemed to ignore such a situation. The Supreme Court, however, referred to Strasbourg case law (e.g. Leszek Gebura Case 2007) and ruled that the State cannot be exonerated on the basis of “administrative formalities”, no matter how law-abiding the authorities have acted. The plaintiff´s right to liberty had been violated. Articles 5 and 13 required that the victim be given an effective remedy before a national authority. The Supreme Court awarded pecuniary compensation in the absence of any express national provision. In my concurring opinion, I ruled that the compensation could actually be based on the wording of the national Indemnities Act. Two justices dissented and found no violation of the plaintiff´s right to liberty.

3 While analyzing the von Hannover Judgment in a domestic case concerning the private life of an aide to a top politician running for presidency (2005:82), the Supreme Court ended up in an internal disagreement as to how the Strasbourg-based concept “debate of general interest, débat d´íntérêt général” should be interpreted (and translated into Finnish). The majority took the view that the concept referred to a debate involving issues that were significant and important from a general point of view, in other words, issues that in fact deserved to be debated. In my dissenting opinion, I understood the concept as referring to any debate that society at large found interesting and worth debating, in other words, whether or not the judge personally thought the issues had any significant merit or deserved to be debated. This is a crucial distinction when it comes to the private life of politicians. As enlightened citizens, we may feel sorry for the fact that media like to revel in trivial matters, but, on the other hand, we may ask: might trivial matters cease to be trivial if they in fact affect the way people vote in democratic elections? Where does plain curiosity end and general interest begin?

4 There are a couple of recent rulings on this topic by the Supreme Court. In the first case (2007:36), the Strasbourg Court had found a violation of art 6 because of a national court´s failure to let the defendant examine witnesses against him in a criminal case (Mild & Virtanen Case). The Supreme Court nullified the conviction and re-opened the case, not because of the ruling of the Strasbourg Court as such but because the violation of art 6 constituted a procedural error "that could have essentially affected the outcome of the case".

In the other case (2008:24), the Strasbourg Court had found a violation of art 10 because a journalist had been convicted of violating an MP´s private life (Selistö Case). The Supreme Court refused to annul the conviction. Firstly, the Strasbourg judgment could not be regarded as new exculpatory evidence. Secondly, as it is stated in our national law, a res judicata in a criminal case can be annulled, should it be based on a ”manifestly erroneous” application of the law, but in this case, the national court was seen to have exercised its discretion, even if it ended up in an outcome that could not be accepted in Strasbourg. The ruling might have been erroneous but it was not manifestly erroneous. The "just satisfaction" awarded in Strasbourg had in fact compensated the economic harm caused by the fines that were erroneously inflicted. Due to the lapse of time, "any adverse effects of the erroneous conviction had faded", said the Supreme Court. According to a dissenting opinion, however, the annulment of the judgment was necessary, particularly because the journalist had been convicted on account of the legal exercise of his profession.

In an earlier case (1998:33), the Supreme Court did find that a judgment by the Strasbourg Court (Z v. Finland) served as a sufficient indication that a violation of art. 8 had also constituted an instance of “manifestly erroneous” application of the national law. The question was whether the court documents concerning a witness to a criminal trial should be kept confidential. The domestic court decision was annulled.

5 This is what the Supreme Court emphasized in a case where the Court nullified its own earlier judgment on grounds of a procedural error. The Supreme Court expressly noted that the requirements of a fair hearing as set out in art 6 had not been heeded (1995:95).