Electronic copy available at: http://ssrn.com/abstract=1738811
1
NORDIC CONSTITUTIONALISM AND EUROPEAN HUMAN RIGHTS
–
MIXING OIL AND WATER?
JAAKKO HUSA
1. Introduction
It has become more and more difficult to find Western jurists who would not recognise the general
importance of human rights today. Especially in Europe the strengthening of human rights has been
evident mainly because of the European Convention on Human Rights (ECHR).1
Nordic legal systems
are no exception to this. Of course, national constitutions, other human rights instruments (as
e.g. those of the UN) and EU law have also had played tremendously important roles. However, as
an effective international law driven regional entity, the ECHR‟s role has been even more significant.
Nevertheless, there is more to this than the mere black-letter rules of the Convention. There is
something that animates the written rules. In fact, it takes no effort to grasp that the role of the
European Court of Human Rights (the ECtHR or the Court) has been decisive in Europe‟s ambition
to keep its own human rights situation in good order. However, even while the European expansion
of human rights is largely regarded as accepted and very much legally desirable around Europe, the
role of the ECtHR seems to be somewhat more obscure. There are different questions surrounding
this important judicial organ.
Even for many of those who openly welcome human rights and the more effective ways of safeguarding
them, the judicial creativity of the ECtHR is treated with much more caution and sometimes
even with clear suspicion.2
The dilemma of judicial activism and judicial self-restraint has
been discussed for decades.3
It is not exceptionally hard to conceive that the quintessential reason
for this suspicion comes from the clash of different spheres of constitutionalism. In such systems
that have a well functioning democracy and general respect for human rights, it seems almost natu-
1
Convention for the Protection of Human Rights and Freedoms (1950). When in the text this Convention is referred to
it also covers the Protocols of the Convention.
2
See also Alistair Mowbray, „The Creativity of the European Court of Human Rights‟ 5 Human Rights Law Review
2005 (defending the creativity).
3
See e.g. Paul Mahoney, „Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two
Sides of the Same Coin‟ 11 Human Rights Law Journal (1990) pp. 57-88.
Electronic copy available at: http://ssrn.com/abstract=1738811
2
ral that when decisions by the ECtHR, i.e. the international un-elected judicial elite, concern debated
and even controversial matters that effect national parliaments and governments, then, the
Court is perceived with an inherent suspicion. If a system adheres devotedly to democracy, then it is
hardly surprising that creative judicial decision-making by judges who are not accountable is regarded
with a certain distrust. In particular the de facto power of the ECtHR to create rule by precedents
appears even questionable: the Court seems to assume a role which the national Anshauungen
of constitutionalism is incapable of regarding as constitutionally legitimate. And, the critique according
to which the Court may act in an illegitimate manner when it takes distance to the Convention‟s
text may indicate that there really seems to be something which is different from the protection
of national catalogues of constitutional rights.4
For those who have a high regard for national,
historically conditioned constitutions the fact that the ECtHR is regarded as the constitutional review
court must be seen as being blasphemy with regard to national constitutional values.5
The
many dissenting opinions of the famous judge Sir Gerald Fitzmaurice are a good example even
today of constitutional criticism against any activism by the Court.6
And yet, even according to a
more critical observer, the Court may be coined as „half constitutional half international body‟.7
In a
similar vein, it has been stated that the ECtHR „has effectively become the Constitutional Court for
greater Europe, sitting at the apex of a single, transnational, constitutional system‟.8
But, it is still
very much unclear how this international form of human rights oriented constitutionalism fits together
with much older nationally and institutionally embedded forms of constitutionalism.
This article seeks to make sense of why the ECtHR‟s interpretation techniques are problematic from
the point of view of Nordic legal culture and especially from the viewpoint of Nordic sovereignty of
a people flavoured version of constitutionalism. However, the widely debated margin of appreciation
is not dealt with here.9
The dynamic and evolutive approach used in interpretation by the
4
See, e.g., Laurence R. Helfer, „Consensus, Coherence and the ECHR‟ 26 Cornell International Law Journal (1993)
pp. 133-166.
5
Court as a constitutional review court, see Martin Shapiro and Alec Stone Sweet, On Law, Politics, and Judicialization
(Oxford University Press, New York, 2002) p. 155.
6
See, e.g., Golder v. the United Kingdom (21st
December 1975) in which Fitzmaurice says – dissenting – that there is
„considerable difference between the case law or “law-givers law” edicted in the exercise of sovereign power, and law
based on convention, itself the outcome of a process of agreement, and limited to what has been agreed‟ (para 32). For a
detailed analysis and discussion, see John G. Merrills, Judge Sir Gerald Fitzmaurice and the Discipline of International
Law (Martinus Nijhoff, Leiden, 1998).
7
Iain Cameron, „The Influence of European Human Rights Law on National Law‟, in Erkki J. Hollo (ed.) National Law
and Europeanisation (Suomalainen lakimiesyhdistys, Helsinki, 2009) pp. 63-84, at p. 66.
88
Steven Greer, What‟s wrong with the European Convention on Human Rights? 30 Human Rights Quarterly (2008)
pp. 680-702, at p. 701.
9
See, e.g., Michael R. Hutchinson, „The Margin of Appreciation in the European Court of Human Rights‟ 48 International
and Comparative Law Quarterly (1999) pp. 638-650 and James A. Sweeney, „Margin of Appreciation: Cultural
3
ECtHR is looked at in more detail, because it is likely the most controversial interpretation technique
of the Court, which causes troubles with national understandings of constitutionalism. The
aim of this article is to shed light on the nature of the collision between international and national
versions of constitutionalism in the sphere of human/constitutional rights.10
But, the point is not to
generally argue that judicial review would be worse at protecting human rights than the political
branch of public power.11
But, then again, it is not argued either that the judicial branch would fulfill
the protection function better than democratically chosen legislatures.12
The structure of this article is simple. Chapter 1 explains the starting point and aims. Chapter 2
deals with the Nordic legal culture in general and specifically Nordic understanding of constitutionalism.
Chapter 3 explains the position of the ECHR and the ECtHR and then goes on to define the
dynamic and evolutive interpretation used by the Court. Chapter 4 takes a few recent illustrative
example cases and with the help of these tries to show how dynamic and evolutive interpretation
actually takes shape in illustrative cases which have Nordic connections. The chapter looks specifically
at cases which concern East-Nordic legal mentality i.e. Finnish and Swedish systems. Moreover,
the chapter also highlights some domestic judicial reactions in order to explain the relationship
between the high national judicial organs and the Court. Throughout this article the approach,
as to its basic nature, is comparative and theoretical. Thus, doctrinal points of view concerning legal
dogmatic questions are virtually omitted. The general focus is, rather, on constitutional cultures
than detailed human rights problems. Accordingly, this means also that questions that concern possible
difference in interpretation between ordinary, international treaties and human treaties are not
included.13
Nevertheless, this article does introduce and evaluate some of the relevant judgements
by the Court from the constitutional perspective.
Relativity and the European Court of Human Rights in the Post-Cold War Era‟ 54 International and Comparative Law
Quarterly (2005) pp. 459-474.
10
Cameron (2009) speaks of a legal-cultural „passive resistance to reception‟ on European human rights law (p. 67).
11
Of the principled criticism against judicial review, see Jeremy Waldron, „The Core of the Case Against: Judicial Review‟,
115 Yale Law Journal (2006) pp.1346-1406 (basically arguing that there is no reason to assume that rights would
be better protected by courts of law than by democratically chosen legislature).
12
This is basically what George Letsas argues in his article „The Truth about Autonomous Concepts: How to Interpret
the ECHR‟ 15 European Journal of International Law (2004) pp. 279-305, 303-304.
13
See Luzius Wildhaber, „The European Convention of Human Rights and International Law‟ 56 International and
Comparative Law Quarterly (2007) pp. 217-232.
4
2. National Ingredient – Nordic Legal Culture and Nordic Constitutionalism
This part of the article addresses the Nordic legal culture in general and Nordic version of constitutionalism
in specific. This takes place in the light of comparative law and comparative constitutional
law. The rationale for looking into Nordic legal culture is clear: it is often recognised that
within the Council of Europe there are two different legal cultures which are common law and civil
law. This, however, leaves many of the specifically Nordic features without due attention.
2.1. Courts and Legislator - Nordic Features
Today the most widespread opinion seems to be that Nordic law constitutes a legal family of its
own.14
Now, perhaps one of the most fitting descriptions of the state of affairs is the one by Ole
Lando who sees neighbourhood, nature, history, languages, religion and the special Scandinavian
mentality and common legal habits as grounds from which it is possible to say that Nordic law is,
indeed, a legal family in the true sense of the word.15
This statement importantly asserts that there
are many legal-cultural similarities between these countries. However, it is of importance to understand
that the most relevant similarities do not concern formal legal rules but, rather, the legal mentality
which proves that certain basic values concerning social justice, social ethics and law in general
are close to each other.16
Accordingly, from the point of view of comparative law we may generally
speaking characterise Nordic law as a legal family that is close to continental law but separate
from common law.17
Konrad Zweigert and Hein Kötz say that:
Nevertheless, we are of the opinion…that it would be right to attribute the Nordic
laws to Civil Law, even although, by reason of their close relationship and their common
„stylistic‟ hallmarks, they must undoubtedly be admitted to form a special legal
family, alongside Romanistic and German legal families.18
14
See, e.g., Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law 3 ed. (1998) pp. 63-73. These writers
follow quite closely the earlier classification by Pierre Arminjon, Boris Nolde, and Martin Wolff who distinguished a
separate Scandinavian legal family in their Traité de droit compare I (1950) pp. 42-53. About the concept of legal family,
see Jaakko Husa, „Legal Families Today – Is It a Time for a Memorial Hymn?‟ 46 Revue internationale de droit
comparé (2004) pp.11-38 (in critical tone).
15
See Ole Lando, „Nordic Countries, A Legal Family? A Diagnosis and a Prognosis‟, 1 Global Jurist Advances (2001)
pp. 10-11. Cf. Zweigert & Kötz (1998) pp. 284-285.
16
See Jaakko Husa, Kimmo Nuotio, Heikki Pihlajamäki (eds.) Nordic Law – Between Tradition Dynamism (Intersentia/METRO,
Antwerp-Oxford, 2007).
17
See Ditlev Tamm, „The Nordic Legal Tradition in European Context – Roman Law and the Nordic Countries‟, in
(ed.) Letto-Vanamo, Nordisk Identitet – nordisk rätt i europeisk gemenskap (KATTI, Helsinki, 1998) pp. 15-31, 16-18.
18
Zweigert & Kötz (1998) p. 277.
5
There are many factors that comparative law writers take into account when constructing their classifications
and groupings.19
The key difference between civil law and Nordic law is the lack of extensive
private law codifications, which is a similarity between English common law and Nordic
law. In accordance, the private law legislation is as to its nature practical and concrete, not theoretical
and abstract.20
But, when it comes to the common law legal family one of the most decisive factors
is the role of precedent. Even while the precedents play a significant practical role in Nordic
legal systems, one may say, that their legal-formal and doctrinal position is relatively weak. But,
when one describes English law the situation seems to be completely different, because precedents
may be formally binding on future cases.21
For a comparative lawyer it does not come as a surprise
that in numerous accounts it has been repeated that one of the most obvious differences between
common law and civil law is the importance of precedent.22
And, when the relationship between the
ECtHR‟s interpretation techniques and the national legal-cultural understanding of the role of the
judiciary is put under scrutiny, especially the way how Nordic law normally tends to see precedents
is highly informative. The Nordic attitude toward precedent is quite telling about how Nordic legal
culture tends to perceive constitutionally the role of the courts and the accompanying role of the
legislator. These two factors reveal something potentially important concerning the inherent suspicion
toward judge-made rules. This seems to be part of what Italian comparatists Simoni and Valguarnera
call “lo spirito della tradizione Nordica”.23
In Nordic law the lack of theory concerning the formal and strongly binding precedent is evident;
however, there are some differences between the countries. In the Eastern area of Nordic law, i.e.
Finland and Sweden, the role of precedent has been remarkably weak in the formal and doctrinal
sense. One crucial factor is the Finnish and Swedish legal-cultural attitude according to which
moral questions should be left to national Parliaments, not to courts of law.24
Moreover, in Sweden
we may also refer to the significance of the Uppsala school which certainly has contributed – having
its repercussions also in Finnish legal science – to an idea according to which one should regard
19
See also Michael Bogdan, Comparative Law (Kluwer/Norstedts/Tano, Stockholm,1994) pp. 82-91.
20
Cf. Lando (2001) p. 7.
21
See for more details Bogdan (1994) pp. 114-119.
22
However, there are different shades in this picture i.e. black and white description (common law precedent vs. civil
law no-precedent) does little justice to realities of English common law. See also Zweigert & Kötz (1998) pp. 259-265.
23
Alessandro Simoni – Filippo Valguarnera, La tradizione giuridica dei Paesi nordici (Giappichelli, Torino 2008) p. 97
24
Cf. Cameron (2009) p. 73.
6
rights with suspicion.25
We have put our faith in politics rather than in the hands of judiciary. To
understand all this, one must take into account the larger constitutional-cultural context.
2.2. Mentality of Nordic Constitutional Law?
Nordic constitutional law clearly has many features of the continental legal tradition.26
These features
are however not completely identical: legal systematics is – basically – continental in upholding
the division between private and public law. Key constitutional documents (Constitutional Acts)
in the Nordic countries are written by governmental key institutions and by Supreme Courts, even
though they are supplemented in various ways by formal amendments, constitutional conventions or
other customary rules and praxis. All the Nordic systems possess a specific idea of the Constitutional
Act with lex superior status, where all Constitutional Acts are located at the peak of the national
hierarchy of legal norms. Sweden represents the only Nordic system having many formal
constitutional documents all having de jure constitutional status. However, even in Sweden one
constitutional Act is more important than the others (i.e. the Form of Government). Finland abandoned
the tradition of many constitutional Acts only in 2000.
The Nordic systems have some kind of mechanism for judicial review. And, these systems presuppose
some form of separation of powers. There are different constitutional arrangements on how the
judicial review is organised. Norway and Denmark do not have explicit constitutional rules that
would contain judicial review. However, they both recognise judicial review as a part of their systems.
Finland and Sweden have explicit written constitutional rules containing limited judicial review,
but in practice judicial review is resorted to seldom and cautiously. Also it has to be taken
into account, that in Finland a priori form of control has been greatly stressed. The real difference
is, nevertheless, between the levels of judicial activism. Both Sweden and Finland accommodate
some kind of judicial self-restraint. Differences in judicial review are also reflected elsewhere;
Sweden and Finland do not recognise the clear principle of separation of powers, whereas Norway
and Denmark are perhaps inclined more towards separation of powers, although in a parliamentary
form.
25
As Max Lyles notes: in Hägerström‟s thinking such things like human rights „reflect special interests rather than
universal values‟, Lyles, A Call for Scientific Purity: Axel Hägerström’s Critique of Legal Science (Olin Foundation,
Stockholm, 2006) p. 368.
26
This part of the article relies on the author‟s book Nordic Reflections on Constitutional Law: a Comparative Nordic
Perspective (Peter Lang, Frankfurt am Main, 2002), see especially Chapter 6. However, the text here has been updated
and modified for the present purpose.
7
Similarities, Nordic legal mentality if you like, are obvious in the ways that Supreme Courts take
into account the will of the legislators. As Peczenik and Bergholz have said „travaux préparatoires
should be taken into account because they form a part of a democratic and rationally justifiable legislative
procedure.‟27
The word democracy is of utmost importance in this context. Nordic judicial
systems have great respect for their national Parliaments as democratically chosen legislators,
which is reflected in the use of travaux. Even though, the Norwegian Supreme Court has been most
active it tries to avoid open power conflicts with the Norwegian Parliament. It does not seek to replace
or challenge a democratically chosen legislator, although, it may set some legal limits for its
legislative competence. There are also some common law type features that can be found in the
Nordic systems. All Nordic systems have room for norms or doctrines that are unwritten but still
have an important constitutional position. In Norway and perhaps in Denmark too, the case law of
the Supreme Court is in an important position28
. Those parts of the Constitutional Act that deals
with the Monarch are de facto in a state of desuetudo. The Finnish system contains some crucial
customary norms as, for example, the de facto binding force of the Constitutional Committee of
Parliaments‟ opinions and the position that constitutional specialists have in the a priori form of
control.
Consequently, all this provides some aspects of legal thinking that is more pragmatic (lacking formalism,
and the deductive and scholarly nature of Juristenrecht) than in civil law. However, the
distinction between public and private law stemming from Roman law is obviously an uncommon
law feature, although, the distinction is not sharp in the Nordic systems as, for example, may be
seen by the fact that in Denmark and Norway there are no separate administrative courts. Besides,
all the Nordic systems are parliamentary. Denmark, Norway and Sweden are obviously parliamentary
systems, and so is Finland after the total reform of the Constitution in 2000. In Finland the
President‟s role was diminished so that the Parliament‟s and Cabinet‟s position was strengthened,
thus, it has become much closer to other Nordic systems in this respect too. The fact that Parliaments
have such a crucial role is one of the reasons for the cautiousness of Nordic forms of judicial
review (with the possible exception of Norway): there is not much room for courts to quarrel with a
highly legitimate national Parliament.
27
Aleksander Peczenik and Gunnar Bergholz, „Statutory Interpretation in Sweden‟ in Neil D. McCormick and Robert S.
Summers (eds.) Interpreting Statutes (Aldershot, Dartmouth, 1991) pp. 311-358, at p. 328.
28
According to Svein Eng (at p. 214) the Norwegian Supreme Court may become closer to the „discursive English
style‟ in the future, „Precedent in Norway‟ in Neil D. McCormick and Robert S. Summers (eds.) Interpreting Precedents
(Aldershot, Dartmouth, 1997) pp. 189-217.
8
However, the respect for the will of the legislator does not take the same form as, for example, in
France where the judicial style of the courts is much less argumentative than in the Nordic systems;
Nordic forms of judicial review do not stick so closely to the written statutory text but seek a rather
more general argumentative base for justification purposes. There is a certain general Nordic openness
of argumentation, thus, it differs from English or French as well as German styles. And, none
of the Nordic Supreme Courts have clearly such a political role as do continental Constitutional
Courts. The doctrine of „political question‟ is to be found in all Nordic systems; the politicisation of
Courts is not applauded in Nordic systems since it is the national Parliament that has the role of
legislator. None of the Supreme Courts or other controlling organs possesses the competence to
formally nullify the Acts of Parliament. In this sense the Nordic systems are unique; they encompass
both the idea of popular sovereignty (as a legitimate form of political democracy) and also the
idea of separation or powers. This probably partially explains the seemingly low political profile of
Supreme Courts – they do not willingly challenge the legitimacy of Parliamentary Acts, although,
they are very much legally independent of legislators‟ direct affect. Courts seem to feel a great deal
of loyalty toward the Parliament.
But, the recent slow Nordic expansion in judicial review may bring about a novel challenge to the
traditional democratic theory: are the systems moving towards rule by judges instead of rule by parliamentarians?
Moreover, if the ECtHR type of judicial activism expands to the traditional Nordic
understanding of democracy (popular sovereignty in an important position) it may become a target
for more significant and forced changes.29
It has been a general comparative finding that „judicial
activism tends to erode both the parliamentary system and majoritarian democracy‟.30
Nordic Supreme
Courts and other constitutionality control-organs have traditionally had a stabilising and mediatory
role between various branches of government. In short, „In Nordic countries, it is universally
accepted that it is elected politicians who should take the most important decisions in the public
sphere‟.31
So, even Supreme Courts willingly stay in the background and, thus, practice judicial
self-restraint.
29
It may well be that the readers are unsatisfied with the use of the concept „constitutionalism‟ here. However, as
Venter (p. 20) points out, it would be futile to attempt to develop a comprehensive treatise on the precise meaning of the
word. The elemental components are, notwithstanding, simple: limited government, legally enforceable rights and some
kind of general dominance of the rule of law, Francoise Venter, Constitutional Comparison: Japan, Germany, Canada,
and South-Africa (Juta/Kluwer, Lansdowne, 2001).
30
Keith Holland, „Introduction‟ in Kenneth M. Holland (ed.) Judicial Activism in Comparative Perspective (Macmillan,
London, 1991) pp. 1-11, at p. 5.
31
Cameron (2009) at p. 72.
9
The Nordic experience seems to confirm that constitutional law is both „law‟ and „politics‟, i.e. the
Constitution or a Constitutional Act does not offer defence against „politics‟ because constitutions
are themselves so deeply and profoundly of a political nature. However, this does not prevent us –
the people – from entrusting them with a special status to take constitutional rules seriously. This
can also be seen in the way fundamental rights are protected in Denmark, Finland and Sweden:
even though there has not been an active form of judicial review, the level of protection for fundamental
rights has been high even though these systems do not always meet the requirements set
forth by the ECHR.
In Norway and Denmark, Constitutional Acts are held as important national symbols, not only as a
collection of written rules. However, in Finland and Sweden, Constitutional Acts do not have
equally strong symbolic functions, thus, interpretation of Constitution is more pragmatic. To summarise,
the Nordic version of constitutionalism contains a few common macro-elements, including
legal, cultural and political elements, which can be listed as follows: a parliamentary system with a
mixture of separation of powers as political meta-ideology; consensual democracy (avoidance of
open conflicts in politics, stable multi-party system); cautious systems of judicial review (elements
of judicial self-restraint, no strong culture of rights); respect for the will of the legislator (avoidance
of conflicts between Parliament and Supreme Courts; great significance of travaux as source of
law); political question doctrine in use by the courts32
; no separate Constitutional Courts; combination
of written and unwritten rules and principles (Constitutions also contain customary material);
strong elements of constitutionalism (general respect for the rules of Constitution within parliamentary
frames; effective hierarchy of rules i.e. Constitution Acts are not political manifestos, doctrine
of separation of powers)33
; and a pragmatic and practical legal style (argumentation used in control
of constitutionality although grammatical, is also teleological and intentional, and the nature of argumentation
is not so "heavy" as in Germanic law, nor so cryptic as in French law, and to some
extent there is a casuistic nature). We may also note that the Constitution seems to have a certain
degree of flexibility: although Constitutional Acts are written, alteration takes place in various
forms i.e. in formal amendment, customs, conventions and case law.34
32
Cf. Jens Elo Rytter, Grundrettigheder: domstolenes fortolkning og kontrol med lovgivningsmakten (ThomsonGadJura,
København, 2000) pp. 46-47.
33
See also Venter (2000, pp. 47-52), he gathers together the most relevant features of constitutionalism and „Verfassungsstaat‟;
the predominance of the Constitution, constitutionally protected fundamental rights, democracy and separation
of powers.
34
See also the conclusions drawn by Italian constitutional comparist Francesco Duranti, Gli ordinamenti costituzionali
nordici: Profili di diritto pubblico comparato (Giappichelli, Torino, 2009) pp. 243-245.
10
The greatest differences appear between the Eastern and Western members of Nordic law; by extending
the family metaphor one might say that Sweden and Finland are the Eastern brothers of
Denmark and Norway in the West. Sweden and Finland are (or at least have been) closer to each
other than the country-pair of Denmark and Norway. Denmark and Norway are NATO members
whereas Finland and Sweden are militarily neutral countries, although, this neutrality must be seen
in a different light than before due to membership of the EU. Norway‟s (limited) judicial activism
in constitutional judicial review and the Finnish a priori form of constitutionality control are the
most striking, different features of Nordic systems. Also the level of political isolationism varies
from Norway‟s relatively high level of isolationism to (present day) Finland‟s relatively high level
of internationalism. And, it seems fair to describe Finnish and Swedish system as being more receptive
toward the ECHR‟s law than Denmark and Norway.35
One example of the differences is a principle
of clarity (klarhetskrav) which the Norwegian Supreme Court developed in 1994; this interpretative
doctrine has not yet been fully abolished.36
Altogether, it seems that significant doctrinal, functional, political, cultural and historical similarities
can be pointed out even though there are some great institutional differences. Nordic Constitutions
may be characterised as socially and politically successful constitutions because they have
provided a stable framework for government. Summarily, Nordic constitutions appear to be systems
operating with similar foundational values although there are some differences in constitutional
cultures.37
35
While saying this I rely on Laura Ervo‟s idea concerning the Nordic countries and the ECHR
(„I Danmark och Norge tycks man ställa sig rätt kritisk till Europadomstolens inhemska betydelse, medan det i Sverige
och Finland anses att det är domstolarnas uppgift att se till att man nationellt verkligen följer konventionens bokstav‟ at
p. 411), „Förhållandet mellan Europadomstolen och nationella domstolar – finländska perspektiv‟ 144 Juridisk tidskrift
utgiven av juridiska föreningen in Finland (2006) pp. 411-422.
36
See especially case Kvinnefengelsesaken (Rt. 1994, p. 1244). However, this doctrine has since been modified; see
case Doppelstraff I (Rt. 2002, p. 557). Yet, the content of ECHR law is still required to be „reasonably clear‟ („rimelig
klar’), see case KRL-fagsaken (Rt. 2001, p. 1006). It seems than the Norwegian Supreme Court wishes to make sure
that it is itself at the apex of hierarchy of norms; other Norwegian Courts should, then, not follow the ECtHR but the
national Supreme Court, see case Bøhler (Rt.2000, p. 996) in which the Norwegian Supreme court speaks of „values
upon which our society is built on‟. It has been claimed that this kind of attitude speaks of a fight over judicial power,
see Hans Petter Graver, „Dømmer Høyesterett i siste instans?‟ 37 Jussens Venner (2000) pp. 263-281, 280-281.
Vol 37, h 4/5 2002, s. pp. 263-281
37
And, yet we may see that Norway and Denmark are closer to each other than Sweden and Finland (East-Nordic).
11
3. International Ingredient – ECHR
It is well known in international law that regional human rights mechanisms tend to be more advanced
than global and this is precisely the case with the ECHR because it is accompanied by a
judicial body. As is well known, this judicial body was set up in Strasbourg by the Council of
Europe Member States in 1959 to deal with alleged violations of the 1950 ECHR. Of these different
international judicial bodies the ECtHR is regarded as „by far the most advanced‟ as described by
Antonio Cassese.38
It is also regarded as the most successful human rights experiment of judicially
protecting human rights.39
The ECtHR is seen as playing a pivotal role in Europe even though it has
tremendous problems itself with a massive backlog and its slowness in deciding cases.40
From the
point of view of general international law the ECtHR‟s importance is relevant because it may curtail
various kinds of discriminatory actions by national governments.41
On the other hand, national legislators
and courts have a great deal of importance when it comes to the everyday job of protecting
European human rights. Albeit, in recent years the role of the Court has become more relevant and
this is largely because the Court has actively started to underline the need to change legislation or
take other measures after a condemnatory decision.42
The starting point is clear: in Finland and Sweden the ECHR has formally the status of ordinary
statute. This, nevertheless, only gives part of the picture, since the Finnish Constitution Act obliges
all public authorities to „guarantee the observance of basic rights and liberties and human rights‟
(Section 22). This constitutional rule binds the legislator, courts and public administration.43
In
Sweden the Form of Government (2:23) stipulates that an Act or other regulation shall not be issued
in conflict with Sweden‟s obligations under the ECHR.44
So, in Finland and Sweden, European human
rights have constitutional status, although in an indirect manner. From there it follows that the
formal status of the ECHR is not so important; rather, in both countries the Convention‟s status may
well be described at least as semi-constitutional. However, it is not the ECHR itself which seems to
38
Antonio Cassese, International Law (Oxford University Press, Oxford, 2001) at p. 366.
39
See Greer (2008) pp. 680-681.
40
Of the case overload, see Greer (2008) pp. 687-691.
41
Cassese (2001) p. 367.
42
See Matti Pellonpää, Europeiska människorättskonventionen (Talentum, Helsinki, 2007) pp. 194-195.
43
This Section became part of positive constitutional law in 1995 when the total reform of constitutional rights entered
into force. Even before this, it was regarded as having the same force and relevance „as Acts in general have‟ as formulated
by the authoritative Constitutional Committee of the Parliament (PeVL 2/1990, p. 2).
44
See Lag (1994) p.1468. This rule, however, does not affect Acts and other legislative measures which came into force
before 1995, see e.g. Regeringsrätt case RÅ 1996 ref. 8 (complaint concerning the decision of the chief-doctor to take a
person into psychiatric treatment by an involuntary commitment) in which the Swedish Supreme Administrative Court
interpreted national law in the light of the ECHR.
12
be problematic for East-Nordic constitutionalism; instead, certain ways in which the ECtHR acts
may look susceptible.
3.1. Thorns in the Side: Controversial forms of Interpretation?
Clearly, the Articles of the Convention are mostly expressed in vague language and in a somewhat
broad and open manner which in itself suggests using some kind of interpretation while trying to
make sense of the precise human rights obligations. To claim otherwise would be but naive. Simply,
these rules need to be interpreted if they are going to be applied in real life case-resolving. The
standard view seems to be that the ECHR is an instrument of international law and, thus, the general
principles laid down in the Vienna Convention are applied also when interpreting the ECHR.45
These general considerations, as relevant as they may be, are not focused on here. Rather, it is of
importance to look at such interpretation techniques that appear to go beyond the standardinterpretation
techniques which are largely accepted. So, it is of specific importance to see what the
Court does when it entertains judicial creativity and when it „would not follow the decisions and the
reasoning‟ of its earlier case.46
Let us take an example of how the dynamic and evolutive interpretation is actually used in the
Court‟s judgements. A telling example is the Grand Chamber judgment in the case of Demir decided
in late 2008.47
The case concerned the failure by the Turkish Court of Cassation in 1995 to
recognise the applicants‟ right, as municipal civil servants, to form trade unions, and the annulment
of a collective agreement between their union and the employing authority. In a key-part of the
judgement the Court says the following:
In the light of these developments, the Court considers that its case law to the effect that the
right to bargain collectively and to enter into collective agreements does not constitute an
inherent element of Article 11 ... should be reconsidered, so as to take account of the perceptible
evolution in such matters, in both international law and domestic legal systems. While it is in
the interests of legal certainty, foreseeability and equality before the law that the Court should
not depart, without good reason, from precedents established in previous cases, a failure by the
Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or
improvement.48
45
Vienna Convention on the Law of Treaties (1969). See also Mowbray (2005) pp. 58-60.
46
See e.g. Öcalan v. Turkey (12th
May 2005, application no. 46221/99) para 118 (although saying also that the judgement
has a basically „declaratory character‟. See also Mowbray (2005) pp. 64-65.
47
Grand Chamber judgments are final (Article 44 of the ECHR). Case Demir and Baykara v. Turkey (12th
November
2008, application no. 34503/97).
48
Para 153. About the Turkish legal system and the role of the Court of Cassation (Yargıtay), see Tuğrul Ansay and
Don Wallace (eds.) Introdcution to Turkish Law (Kluwer, The Hague, 2005) pp. 13-16.
13
From the point of view of the Court itself the evolutive and dynamic approach seems to be based on
rational thinking; improving the standard of human rights cannot be truly based on comparisons
concerning the conditions in other states. This means of course that while adopting this approach
the Court cannot rely on a consensual approach. And, on the other hand, this means that the ECtHR
moves further away from the normal modus operandi of the international court. In doing so, however,
there is the problem which is revealed when the Court‟s case law meets different legal and
constitutional cultures. How the systems will react is based not only on the obvious willingness to
respect human rights, but on other factors also: national constitutional structures, doctrines and
deeply embedded legal-cultural conceptions. In short, convergence does not follow automatically.
Even while the use of a dynamic and evolutive approach is used sparingly its judicial base goes
back to the first interstate case resolved by the ECtHR. In case Ireland v. UK the ECtHR conceived
its role in a manner which can today be understood as the first serious sign from the Court that it
was not going to settle for the role of an ordinary international court.49
In the key-part of its decision
the Court declared that:
The Court's judgments in fact serve not only to decide those cases brought before the
Court but, more generally, to elucidate, safeguard and develop the rules instituted by
the Convention, thereby contributing to the observance by the States of the engagements
undertaken by them as Contracting Parties.50
If one looks at these words from the point of view of the Nordic popular-sovereignty style of parliamentarism
and combines it with the small role, which especially the East-Nordic systems have
granted to the courts of law, these ideas are sure to arouse interest, to say the least. Importantly, the
doctrine of dynamic and evolutive interpretation has developed from the case law emanating from
the Court i.e. there is no explicit base to this in the ECHR. This may raise questions concerning the
constitutional legitimacy of the Court‟s modus operandi: the Convention is clearly „a living instrument‟.
But exactly how lively can it be from a normative point of view?51
49
Case of Ireland v. the United Kingdom (18th
January 1978).
50
Para 154.
51
Convention as a living instrument, see e.g. case of Sigurd A. Sigurdjonsson v. Iceland (30th
June 1993, application no.
no. 16130/90) para 35 („must be interpreted in the light of present day conditions‟).
14
4. Variations on a Theme – Some Case Law Illustrations
To begin with, we may note that there is a certain uneasy tension when we deal with the EastNordic
legal mentality and constitutional culture, and the ECHR. This may sound surprising, at first
that is, however the tension is a peculiar one: on the one hand both Finland and Sweden are most
likely commonly perceived as leading countries when it comes to human rights practices.52
Moreover,
both of these countries are known to encourage other states to observe human rights when
Finland and Sweden engage in development cooperation and in general political dialogues. On the
other hand, there are certain human rights problems in both of these countries. Now, the point here
is not to claim that these countries would be specifically problematic when it comes to human
rights. This is clearly not the case. However, the case law by the ECtHR seems to prove that there is
still much to do in the area of human rights protection. After the first condemnatory cases against
Sweden in the 1980s and Finland in the 1990s many others have followed since.53
In addition, both
of these countries have had small but striking problems in trying to integrate the Nordic fashion of
protecting children by transfer of guardianship and Article 8 of the Convention.54
And yet, we may
claim that there is no active visible resistance toward the ECHR or the case law of the ECtHR.55
In
fact, in both countries the doctrine of convention-conform-interpretation is well known and also
used by the courts of law.56
4.1. The ECtHR’s Case law – Some Illustrations
In case of Mustafa there was an application against Sweden lodged with the Court under Article 34
of the ECHR by two Swedish nationals Mr Adnan Khurshid Mustafa and Mrs Weldan Tarzibachi,
on 12 June 2006.57
This case concerned a satellite television dish and eviction from an apartment.
The applicants alleged that their eviction from their flat due to a refusal to remove a satellite dish
52
In a list in which Western European states are ranked according to the annual average of violation rates, Finland is in
tenth place and Sweden in sixteenth place. Greer (2008) p. 692.
53
The first Swedish case was Sporrong and Lönroth v. Sweden (23th September 1982) and the first Finnish case was
Hokkanen v. Finland (23th September 1994).
54
See, e.g., Olsson v. Sweden (27th
November 1992, application no. 00013441/87) and L v. Finland (27th
April 2000,
application no. 00025651/94).
55
Cf. Cameron (2009) p. 72.
56
See, e.g., in Sweden NJA p. 462 and NJA 2007 p. 747 (in both cases the Penal Code was interpreted in the light of the
case law by the ECtHR) and in Finland KHO 2004, p. 68 (the legal effect of marriage to a Finnish citizen). Interestingly,
the Finnish Supreme Court has been somewhat more reluctant than the Finnish Supreme Administrative Court, see
e.g. KKO 2008 p.10 in which this court actually refused to use convention-conform-interpretation (this was, nevertheless,
precisely what dissenting judges would have wanted to do). In Norway the situation is basically the same, see
Supreme Court‟s case Forsikringsdirektivsakten (Rt. 2000, p. 1811) „meget stor vekt ved fortolkingen av norske
rettsregler‟ (p. 1829).
57
Khursid Mustafa and Tarzibachi v. Sweden (16th December 2008, application number 23883/06).
15
involved violations of Articles 8 and 10 of the ECHR. The reasoning of the Court was not openly
based on dynamic interpretation, however the conclusion it entered concerning the admissibility
appears somewhat activist:
Admittedly, the Court is not in theory required to settle disputes of a purely private nature.
That being said, in exercising the European supervision incumbent on it, it cannot remain
passive where a national court's interpretation of a legal act, be it a testamentary disposition,
a private contract, a public document, a statutory provision or an administrative practice appears
unreasonable, arbitrary, discriminatory or, more broadly, inconsistent with the principles
underlying the Convention.58
After deciding that the case was, indeed, admissible (thus the Court „cannot remain passive‟) the
Court went on to evaluate whether the interference with the applicant‟s human rights was actually
necessary in a democratic society. The ECtHR stated that:
Having regard to the above, the Court concludes that, even if a certain margin of appreciation
is afforded the national authorities, the interference with the applicants' right to freedom
of information was not “necessary in a democratic society” and that the respondent State
failed in their positive obligation to protect that right. There has accordingly been a violation
of Article 10 of the Convention.59
The rationale behind this conclusion is that the Swedish national Constitutional Act on Freedom of
Expression and the Form of Government applies only to the relationship between individuals and
public bodies. These constitutional Acts do not apply to relationships between individuals.60
So, the
basis of the outcome about the alleged violation contained a comparison between the level or protection
of national constitutional law and European human rights guaranteed in the ECHR and, importantly,
interpreted in the light of national law remaining passive and being, thus, „inconsistent
with the principles underlying the Convention‟. It was deemed as especially important for the applicants
to have the right to receive television transmission because of their origin: „ at issue was therefore
of particular importance to the applicants‟.61
The Swedish government‟s argument according to
which „the dispute in the case had been limited to the question of the actual placing of the satellite
dish, having regard to, primarily, contractual obligations‟ was not given credit.62
So, the Court rejected
the national view based on the private law framework and used instead its human rights view.
58
Para 33. In here the Court referred to the case of Pla and Puncernau v. Andorra (13th July 2004, application no.
69498/01).
59
Para 50.
60
Para 24.
61
Para 44.
62
Para 26.
16
Let us take another case law illustration. In the recent case of Mendel the applicant took part in a
programme organised by the State for the long-term unemployed. Relying on Article 6(1) and Article
13 the applicant complained that she had not been able to make an appeal against a decision
which had withdrawn permission for her to participate in the programme. But, the ECtHR held
unanimously that there had been a violation of Article 6(1) and that there was no need to examine
the complaint under Article 13.63
This is yet another case that adds a precedent to the long standing
case law delimitating the scope of Article 6 in the Convention. It seems that the long-standing obstacle
in the Swedish system is to provide individuals access to courts for a review of administrative
decisions by State authorities. In accordance, the Court stated that the „applicant did not have a
practical, effective right of access to court. There has accordingly been a breach of Article 6 § 1 of
the Convention‟.64
This case hardly came as a surprise to anyone informed, because the obvious lack of access to
courts to appeal administrative decisions has been a problem for Sweden‟s obligations under the
ECHR since the 1980s. And, because of this, Sweden has been found on numerous occasions to
breach Article 6 of the ECHR: even in Mendel no right to appeal to a court was provided for. A new
Act was, nevertheless, introduced already in 1988, which expanded a right of access to court. This
renewed legislation was later incorporated in the Administrative Procedure Act. Also the Act of
2006, concerning judicial review of certain government decisions, meant an improvement in this
matter.65
And yet, the case of Mendel demonstrates that there was still an obstacle which prohibited
access to courts in the manner demanded by the ECHR., In that particular case the ECtHR did not
evaluate Swedish law in a brusque and thoughtless manner, but instead looked at the question of
how effectively the right protected in Article 6 was taken care of:
As concerns the present case, the Court considers that, at the relevant time, a right to
appeal against decisions by national authorities that concerned a person's “civil rights
and obligations” according to Article 6 § 1 of the Convention, irrespective of any prohibitions
against appeals in law or ordinance, could be found in the case law of the
Supreme Court and the Supreme Administrative Court.66
The ECtHR went on by saying that:
63
Mendel v. Sweden (7th April 2009, application no. 28426/06).
64
Para 81.
65
Lag (2006, p. 304) om rättsprövning av vissa regeringsbeslut.
66
Para 75.
17
However, the Court will consider whether this right to appeal could, in the instant
case, be considered as an effective access to a court.67
This is also a case which seems to hint that although Sweden‟s human rights protection is on a high
general level there is something that seems to prevent the national legal culture from taking seriously
the demands of the ECHR and especially the kinds of demands that can be derived from the
case law of the Court. Perhaps this problem has now been solved by the introduction of the new
section of § 3 Administrative Procedure Act and the accompanying case law of the Swedish Supreme
Courts. Albeit, even this national way of solving the problem may still be regarded as problematic
from the point of view of Article 6 and the accompanying ECtHR‟s case law: even asking
whether the latest national solution fully complies, is an open question. Clearly, this seems to be
evidence, which at least hints of some kind of resistance against full reception of the ECtHR‟s case
law. However, the explanation to this may not be simply that Sweden is just reluctant toward reception
of European human rights; rather, it might tell that there are deeper legal-cultural elements that
lie under the surface of legislation and case law.
Let us now turn to the Finnish scene. In the highly noteworthy case of Eskelinen the most intriguing
question did not concern so much the actual human rights question at hand but, rather, how the
ECtHR used creative interpretation and explicitly decided to reject its own earlier precedent when
making a new one.68
The case is a prime example of dynamic and evolutive interpretation. The earlier
precedent which was overruled by the Grand Chamber was the famous Pellegrin case in which
the Court created so-called „functional criterion‟ concerning the interpretation of Article 6(1) of the
Convention (which actually means a „civil nature‟).69
However, in the case of Eskelinen the functional
criterion was abandoned and a new doctrine created. Interestingly, the Court stepped away
somewhat completely from the written rule even though it should, according to the Vienna Convention‟s
principles at least interpret the rules „in accordance with the ordinary meaning to be given to
the terms of the treaty‟.70
In the key-part of the ECtHR‟s judgement it is stated that:
…the Court finds that the functional criterion adopted in the case of Pellegrin must be
further developed. While it is in the interest of legal certainty, foreseeability and
equality before the law that the Court should not depart, without good reason, from
67
Para 76.
68
Vilho Eskelinen and Others v. Finland (19th
April 2007, application n. 63235/00).
69
Pellegrin v. France (8th December 1999, application no. 28541/95) See also Clara Ovey and Robin White, The
European Convention on Human Rights (Oxford University Press, Oxford, 2002) pp. 149-150.
70
Vienna Convention Article 31(1).
18
precedents laid down in previous cases, a failure by the Court to maintain a dynamic
and evolutive approach would risk rendering it a bar to reform or improvement.71
The following problem for national systems is clear: Should they now change their own systems
and accompanying legal systematics so that national legal systems would fit better together with the
ECtHR‟s understanding of what the ECHR demands? This seems a perfectly rational way to understand
this. Notwithstanding, anybody who knows something about how deeply embedded such a
thing as the structure of the legal system is (e.g. separation between private law and public law)
immediately grasps that to follow closely what the Court seems to demand would mean also changing
national understanding of the structure of the legal system. This may or may not be viable, but
what is clear is that some sort of collision between different ways of conceiving the law and legal
system and the accompanying constitutional national structures is more than likely. But how should
these legal-cultural and constitutional percussions be dealt with and what do they tell about the
ECtHR? Should we regard this kind of case law as pure judicial activism and what should be done
if so? And, how should we regard the fact that the Court is readier now „than ever before to upset
member states with decisions that stretch the language of the Convention‟.72
Clearly, there seems to
be more questions than clear cut answers.
In concluding this section, what has been sought in this chapter is not to claim that there would be
judicial or legal problems in the cases discussed above. However, the main point was rather to highlight
how there is a clear preference for human rights over constitutional structures: activist human
rights decision-making appears particularly blind to national constitutional and legal-cultural struc-
tures.73
The manner in which the ECtHR functions may sometimes undervalue judicial protection of
such constitutional rules and principles that allocate decision-making and use of supreme public
power like the separation of powers. If one reads through the activist case law of the ECtHR it is
clearly noted that structural, constitutional arguments are missing; separation of powers or democracy
(if understood as a structural institutional design) are simply omitted or at least they remain in
71
Para 56. In a similar vein see Stafford v. the United Kingdom (application no. 46295/99) decided 28th May 2002, in
which the Court holds that the: „Court is not formally bound to follow any of its previous judgments, it is in the interests
of legal certainty, foreseeability and equality before the law that it should not depart, without cogent reason, from
precedents laid down in previous cases […] It is of crucial importance that the Convention is interpreted and applied in
a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain
a dynamic and evolutive approach would risk rendering it a bar to reform or improvement‟ (para 68). This formulation
may be regarded as the basic doctrine of the evolutive and dynamic approach.
72
Mark Janis, Richard Kay, Anthony Bradley, European Human Rights Law (Oxford University Press, New York
2000) at p. 71.
73
Yet, there is something peculiar about this because originally it was thought that one of the functions of the ECHR
was to protect the democratic identities of member states. See Greer (2008) p. 682.
19
the shadows as indeterminate and hopelessly weak arguments.74
Rights are taken seriously, as they
should of course, but it seems that other constitutional arguments are not taken very seriously. And
yet, the ECtHR is in fact regarded as the de facto constitutional court. If it is a constitutional court,
it is a remarkably narrow-minded court, because it does not seem to take properly into account the
constitutional context of a country. Or, to be more precise, the ECtHR does take into account one
such factor which is, however, traditionally part of international law: the margin of appreciation is
clearly a device which enables the Court to take into account national sovereignty.75
But is this
enough?
4.2. Some National Reactions
According to the prophesy of Lando, Nordic law as a distinct family of legal groups is vanishing.
He sees that there is a genuine possibility of European laws becoming one great legal family in the
future and says that „[o]ne day the Nordic law will then merge with other European systems.‟76
Even though Lando‟s prognosis seems to be in accord with the Finnish experience, especially concerning
the changing role of precedent, it would appear too early to claim that the traditional EastNordic
doctrine of sources of law would be ready to become extinct. This sort of transformation
seems to require the understanding that democracy will change and that seems, if not impossible, at
least quite a slow process even though Finnish law has kept up to speed in this regard also; Finland
seems to be more detached from the sovereignty of people rooted constitutionalism than Sweden,
although the differences are not that remarkable. Moreover, as the role of the human rights precedent
by the ECtHR is growing, there is also going to be a growing number of those who will see
Nordic law closer to common law than was the case before: the role of precedents is growing and
the role of travaux is diminishing. In turn, this seems to open more space for the ECtHR‟s activism
and the East-Nordic reception of that activism.
The classical Nordic doctrine on sources of law is in legal cultural transformation, but to say where
it finally ends is not in the scope of this paper. Finland, though, seems to be taking distance from
the traditional Nordic doctrine; and the same seems to apply to Sweden. All the same, there is
something very true in what Iain Cameron says about this:
74
Cf. Robert F. Nagel, Constitutional Cultures: The Mentality and Consequences of Judicial Review (University of
California Press, Berkeley, 1993) pp. 62-65.
75
This interpretative technique allows some flexibility for the ECtHR, which can make certain variations concerning
the interpretation of limitation provisions of the ECHR in order to take into account nationally varying circumstances
and values.
76
Lando (2001) at p. 12.
20
An academic lawyer may delight in complicated cases, but it is rare Finnish or Swedish
judge who will jump with joy when he/she hears that, while there is no national
case law indicating that law X in situation Y may breach the ECHR, there are 25 cases
concerning other states on this issue and a third of these are in French.77
And, it is in these kinds of situations when the invisible rejection of the ECtHR‟s case law most
likely takes place: legal-cultural inertia prevents the case law of the Court from having a deep impact
on national law in such cases as described by Cameron above. One way to react against the
deeper acceptance of the ECHR is to make excessive demands on the case law of the Court. The
case resolved by the Swedish Supreme Court in 2005 seems to indicate this passive rejection rather
well: the Swedish court demanded a clear case law from the ECtHR in order for this case law to be
taken into account in the Swedish case at hand:
Begreppet anklagad för brott i artikel 6 Europakonventionen har en autonom betydelse.
Enligt Europadomstolens praxis har den relevanta tidpunkten inträtt när behörig
myndighet underrättat någon om anklagelsen om brott eller när myndigheterna vidtagit
en åtgärd som gör att en persons situation väsentligt har påverkats av att det finns
en misstanke mot honom eller henne (se bl.a. Europadomstolens dom den 20 oktober
1997 i målet Serves mot Frankrike § 42).
Några avgöranden från Europadomstolen som behandlar andra än den anklagades rätt
att förhålla sig passiv finns inte.78
The argumentation used by the Supreme Court is curious: first it states the content of the ECHR‟s
Article 6 in the light of the ECtHR‟s praxis. But, when the Supreme Court itself enters into an area
in which it could use the interpretational tools provided by the ECtHR it refuses to do so and stops
by claiming simply that „There are no such judgements from ECtHR‟. Instead of trying to read carefully
and interpret the ECtHR‟s case law the Swedish court just refuses to go further. Against the
background of national constitutional mentality this is of course very much understandable.79
However,
this way of reasoning is much closer to the national respect-of-the-Parliament-mentality than it
is to the will to protect human rights. Besides, this case is but one example of a legal-cultural attitude
which seems to threaten European human rights; if national courts always use the minimum
77
Cameron (2009) at p. 71.
78
NJA p. 407. It makes no sense to go into the details of this case. However, we may note that actually the Supreme
Court says that the ECHR does not apply to this case and this is the reason why the court applies national law. But, this
seems curious because the court bases its interpretation on the plain text of Article 6 in the ECHR; should the Swedish
court have relied more heavily on the ECtHR case law it might have come to a different conclusion concerning the
applicability of the ECHR.
79
For the sake of comparison, we may note that East-Nordic passive resistance towards the case law of the ECtHR has
been clearly much softer than in Germany where the Bundesverfassungsgericht has been far more sceptical in its attitude.
However, even in Germany the situation seems to be changing these days, see Heiko Sauer, „Die neue Schlagkraft
der gemeineuropäischen Grundrechtsjudikatur‟ 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
(2005) pp. 35-69.
21
approach then the level of human rights protection does not seem to gain its potential position and
judicial significance. It is not argued that this is planned active resistance but rather it is argued that
this inertia is best explained as a kind of collision of two kinds of constitutionalism: a national
structurally oriented one and an international rights oriented one.80
The subtle attitude shown in this
Swedish case proves that national courts are more loyal to national law than to the ECHR law in
such cases in which national law and human rights law stand in possible conflict to each other: it is
easy to say „no relevant case law‟ and then go on and rely on national law. And, by doing it like this
it certainly appears that the ECtHR‟s case law has due relevance.
Finland, on the other hand, has perhaps been a bit more open in acknowledging the importance of
the ECHR and the accompanying case law of the ECtHR. Just by looking at some of the recent case
law of the Finnish Supreme Courts, it is easy to see that the case law of the ECtHR sometimes plays
a central and high profile role in judgements delivered by them.81
Hence, the Finnish resistance appears
to be rather unfounded, even stubborn, to the seemingly clear cut case law of the ECtHR. Especially
the length of the court proceedings has been a constant stumbling block for Finnish law. An
example of this is Jaanti in which the ECtHR concluded that:
the Government have not put forward any fact or argument capable of persuading it to reach
a different conclusion in the present case. Having regard to its case-law on the subject, the
Court considers that in the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.82
In fact, there is a long list of cases judged against Finland on the basis of a violation of Article 6(1)
of the ECHR due to the length of proceedings. It took many such cases until Finland finally in the
spring of 2009 took the necessary legislative means to do something in regards to this human rights
problem. One may only wonder why it took so long for Finland to do something about the situation,
80
I have left out the older case Gustafsson v. Sweden (18/1995/524/610) from 1996 in which the main question concerned
the applicant‟s disagreement with the collective-bargaining system in Sweden. Gustafsson
claimed „objected to becoming bound by a collective agreement mainly on grounds of political and philosophical
conviction… he wished to retain the personal character of the relationship between himself as employer
and his employees‟. The Court held that because no „legal protection existed in Swedish law, the facts giving rise to the
applicant's complaint constituted a violation of his rights under Article 11 of the Convention‟ (para 46). For anyone
who knows how immensely important the political role of trade unions is in Sweden will not be surprised that this specific
case met with sharp criticism.
81
See, e.g., KHO 2009: 15 (changing identity number after a sex-change operation, but in the circumstances where the
spouse refuses to give consent), KHO 2008: 91 (deportation to Somalia‟s Puntland of a person who committed several
crimes whilst in Finland), and KKO 2008: 24 (reversal of a final judgement on the basis of the ECtHR‟s judgement). In
general, see Pellonpää (2007) pp. 60-74.
82
Jaanti v. Finland (24th
February 2009, application no. 39105/05) para 20.
22
as the cases judged against Finland were piling up in a highly predictable fashion.83
Furthermore, no
one can claim that the Court had imposed an undue burden on Finland concerning this matter.
5. Conclusion – Inside or Outside View of Constitutionalism?
If we concentrate on the core of the critical argument, it is almost too easy to launch an attack
against the ECtHR: human rights judges, as all judges, are not guided merely by their legal ideas,
but also by their political and ideological preferences.84
Take a case such as Şahin or others of a
similar vein and it becomes clear that sometimes also the political and ideological ideas of the
judges play an important role.85
To claim otherwise would mean believing in the myth of judicial
impartiality. From the point of view of Nordic constitutionalism this is problematic, because it
seems to prove that international human rights judges are also trying to gain a more powerful position
in their relation to national legislators; universalising and objectifying their ideological interests
into a cloth of legal arguments is something that fits extremely poorly with the traditional Nordic
way of conceiving relations between judiciary and a democratically chosen legislator.86
The actual
problem is not the substance of the case-law-emerging human rights themselves but, rather, the specific
manner in which these human rights norms are created: instead of national democratically
elected Parliaments – which are so highly regarded in Nordic legal culture – these norms are created
by unelected international judicial elite, which is accountable to no one.87
In Nordic constitutionalism, and especially the way how constitutionalism is understood in Finland
(to a slightly lesser extent though) and Sweden, the role of the principle of constitutional democracy
concerns the role of the judiciary as being able to apply legal norms which are created through a
83
For the sake of comparison we may note the case Synnelius and Edsbergs Taxi AB v. Sweden (Judgment 30th
June
2009, application no. 44298/02), which was deleted from the ECtHR‟s list due to the parties reaching a friendly settle-
ment.
84
The ECtHR‟s judges may be regarded as politically motivated actors having policy preferences, see Erik Voeten,
„The Impartiality of International Judges: Evidence from the European Court of Human Rights‟ 102 American Political
Science Review (2008) pp. 417-433 (provides empirical evidence of ECtHR judges acting as „policy seekers‟).
85
Grand Chamber Judgement Leyla Şahin v. Turkey (17th
November 2005, application no. 44774/98).
86
The argument which states that rights protect against the so-called tyranny of the majority is omitted here for one
simple reason: the ECtHR (and other courts) also tend to make precedents by majority voting. See also Waldron (2006)
pp. 1396-1398.
87
Obviously, this has to do with the broader Finnish and Swedish legal mentality, which prefers to leave the protection
of rights to national legislators as a part of the constitutionally regulated legislative process in which the will of the
people is transformed into legislation. See also Cameron (2009) p. 73.
23
democratic process by democratically chosen legislators.88
So, when the ECtHR steps away from
the text of the Convention, it seems to penetrate into areas which the principles of Nordic constitutional
law normally reserve for their Parliaments. To summarise, when the ECtHR argues that „it
would be artificial and formalistic‟ to rely on the national view, then, the national system may feel
that the ECtHR steps into an area which is perceived as being the constitutional domain of a national
democratically chosen legislator.89
This is a genuinely demanding problem that concerns the
difficulty of translating in-between national and international forms of constitutionalism. Neil
Walker has wondered if it is at all legitimate to translate „the language and normative concerns of
constitutionalism from the state to the non-state domain‟.90
This question is as important as it is
difficult to answer: possibly there is no compelling argument for either.
Emerging international human rights oriented constitutionalism (ius commune of human rights
even) vs. old national constitutionalism is a tremendous problem, it is not just pro or contra human
rights or judicial activism vs. judicial self-restraint.91
It is hardly believable that those who criticise
the ECtHR do it because they oppose human rights. This is by no means the case. So, we should be
very cautious not to make such claims. But, what are we then dealing with? We may look briefly at
constitutional theory at this point. As we know from Jürgen Habermas‟ theory about the democratic
Rechtsstaat, two dimensions are important: the part which deals with institutions and separation of
powers as well as those parts which deal with rights. As a matter of fact, it is the combination,
which creates democratic Rechtsstaat.92
This is an important notion for the discussion, which concerns
the role of the ECtHR and national constitutional democracies. The possible solution to the
conflict does not come from focusing on only one of the basic dimensions; but, rather, by trying to
reconcile the demands which arise from the creative international human rights case law of the
ECtHR and from national understandings of constitutionalism and democracy. Possible objections
to reconciliation are probably not insurmountable: we are dealing with different sides of the same
coin, namely, the coin of constitutionalism.
88
This, at least partially, explains why national courts may be reluctant to apply the Convention to their own motions;
they would rather wait for the national legislator to act first and choose to follow the Nordic path of judicial self-
restraint.
89
Quote from case Gustafsson (1996) para 43. See also Ervo (2006) p. 412.
90
Neil Walker, „Postnational Constitutionalism and the Problem of Translation‟, in J.H.H. Weiler and Marlene Wend
(eds.) European Constitutionalism Beyond the State (Cambridge University Press, Cambridge 2003) pp. 27-54, at p. 27.
91
About ius commune of human rights, see Christopher McCrudden , „Judicial Compararativism and Human Rights‟,
in, Esin Örücü, David Nelken (eds.) Comparative Law: a Handbook (Hart, Oxford 2007) pp. 371-398.
92
For detailed discussion see Jürgen Habermas, Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des
demokratischen Recthsstaats (Suhrkamp, Frankfurt am Main 1992). However, the quintessential connection between
constitutional rights (Grundrechte) and separation of powers (Gewaltenteilung) originally comes from the constitutional
theory of Carl Schmitt, Verfassungslehre (Duncker & Humblot, Berlin 1928) p. 442.
24
It has not been sought in this article to resolve the tension between Nordic and especially EastNordic
constitutionalism and the ECtHR. However, it is not said either that this tension is impossible
to resolve. Instead, I have tried to illustrate why certain activism by the ECtHR and the way
constitutionalism is conceived especially in Finland and Sweden, are difficult to combine. More
importantly, it is crucial to understand that those who defend separation of powers or parliamentarism
do not simply wish to undermine human rights. Instead, many of the arguments that may be
presented against the active role of the ECtHR are deeply embedded in a certain constitutional culture,
the understanding of democracy and constitutionalism. These, in turn, are reflected in the way
the role of courts, doctrine on sources of law, and the constitutional-symbolic significance of national
democratically elected legislator are conceived. In accordance, it is important to try to understand
what the main ingredients are of human-rights-oriented transnational constitutionalism and
national parliamentary oriented constitutionalism. Rational balancing and weighing between these
two can take place only if both are taken seriously: integration rather than assimilation is the likeliest
way toward genuine reconciliation. Then, hopefully, we would have a true possibility to mix oil
and water. Paradoxically, this might mean that the ECtHR would abandon its function as a court
working mainly with individual applicants and would move toward an abstract constitutional model
as has already been suggested.93
93
See Greer (2008) for a more detailed discussion.