Editor’s Note: Today we publish the 2016 Report on Finnish constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Laura Kirvesniemi, PhD student, University of Helsinki; Milka Sormunen, PhD student, University of Helsinki; Tuomas Ojanen, Professor of Constitutional Law, University of Helsinki
I. Introduction
The year 2016 was unprecedented, even tumultuous, in terms of constitutional law and human rights in Finland. Several reasons – immigration with the flood of asylum applications,[1] the country’s economic problems and problems related to the quality of law-making and the desire by the sitting Government to catch up with the ‘reform debt’ as much as possible in the current electoral term—coalesced to explain constitutional turbulence during 2016.
In addition, some legislative proposals by the Government deliberately tested the extreme limits of the Constitution and human rights treaties, particularly in the field of asylum legislation, where the Government wanted to diminish Finland’s (alleged) appeal to asylum seekers. Such a ‘race-to-the-bottom’ is in contrast to an earlier approach by the Finnish legislature that has even involved efforts to bend the domestic implementation of EU law to secure the effective protection of fundamental and human rights.[2]
This report provides an overview of practice by the Constitutional Law Committee of Parliament and the case law of the highest courts: the Supreme Court and the Supreme Administrative Court. The necessity to take notice of the Constitutional Law Committee alongside the Courts owes to the existence of a pluralist system of constitutional review in which the primary role is played by abstract ex ante review of legislation by the Committee whereas concrete ex post review by the Courts assumes a secondary role.
II. The Constitution and the Pluralist Model of Constitutional Review with a Limited Role for Courts
The Constitution of Finland (Act No. 731/1999)[3] entered into force on 1 March 2000. The contemporary state of Finnish constitutionalism is characterized by multifaceted interplay and tension between constitutional tradition revolving around legislative supremacy and the understanding of democracy as majority rule, on the one hand, and tendencies towards rights-based review of legislation and commitments to Europeanization and internationalism, on the other.[4]
For a long time, courts had a marginal role on the Finnish scene of constitutionalism, including the prohibition of judicial review of the Acts of Parliament for their compatibility with the Constitution. Such traditional features have increasingly been challenged since the late 1980s by the incorporation of the European Convention on Human Rights (ECHR) in 1990, the accession to the European Union (EU) in 1995, as well as several constitutional reforms between 1995 and 2011, most notably the reform of the domestic system for the protection of constitutional rights in 1995.[5] As a result of the reform, the catalogue of fundamental rights in Chapter 2 of the Constitution is comprehensive, setting out a range of economic, social, cultural and ‘third-generation’ rights alongside more traditional civil and political rights. Rights are granted to everyone, with an exception only with regard to freedom of movement (Sect. 9) and certain electoral rights (Sect. 14). The domestic standard of rights protection is intended to ascend to a high level as international human rights treaties are ‘only’ supposed to set out the minimum standard of protection. This doctrinal premise has even compromised the maximal implementation of certain EU legal measures in the 2000s.[6]
The constitutional tradition emphasizing the sovereignty of Parliament resulted already during the first decades after Finland’s independency in 1917 in abstract ex ante constitutional review of legislation by a political body consisting of members of Parliament, the Constitutional Law Committee. Currently, the mandate of the Committee is prescribed by Section 74 of the Constitution as follows: ‘The Constitutional Law Committee shall issue statements on the constitutionality of legislative proposals and other matters brought for its consideration, as well as on their relation to international human rights treaties.’
In 2016, the Committee issued 67 Opinions on legislative proposals or other matters, including proposals for EU measures. The Opinions by the Committee are regarded as de facto binding and they essentially determine the proper legislative procedure of a given legislative proposal, i.e. whether the proposal may be enacted in accordance with the ordinary legislative procedure through a majority of the votes cast or whether it should be enacted through a qualified procedure for constitutional enactments due to its conflict with the Constitution. As the attempt is to avoid the use of exceptive enactments and to guarantee the effective protection of fundamental and human rights, the Committee often demands changes to legislative proposals so as to achieve harmony with the Constitution and human rights obligations binding upon Finland.
Up until the entry into force of the current Constitution in 2000, courts were not allowed to review the constitutionality of parliamentary legislation although the Constitutional Law Committee had well earlier started emphasizing the obligation of courts and authorities to interpret legislation in harmony with the Constitution and human rights treaties.[7] Moreover, international human rights treaties and EU membership empowered all courts to review the harmony of Finnish law, including the Constitution in the case of EU law, with human rights and EU law.
Hence, the time was ripe to abandon the prohibition of constitutional review by courts in 2000 by enacting Section 106 of the Constitution that obliges courts to give primacy to the Constitution in cases in which the court finds the application of an Act of Parliament to be in evident conflict with the Constitution. Section 106 is not intended to tilt the constitutional scale from the Constitutional Law Committee towards courts. Instead, Section 106 amounts to a form of weak judicial review that combines the abstract ex ante constitutional review of legislation by the Committee with the concrete ex post judicial review by the courts. In this model, the ex ante constitutional review by the Committee is still supposed to remain the primary form of review, whereas judicial review under Section 106 is designed to plug loopholes left in the abstract ex ante review of the constitutionality of Government bills, inasmuch as unforeseen constitutional problems would arise in applying the law by the courts in particular cases. Therefore, the Opinions of the Committee are of great significance for the purposes of this report alongside the case law of the courts.
III. Constitutional Controversies
During year 2016, the Government gave to Parliament several bills that aroused spirited constitutional and political debate in Parliament, the media and civil society.[8] Some bills pertaining to asylum and immigration legislation even tested deliberately the limits of constitutional law and human rights as the Government expressly wanted to diminish the country’s appeal for asylum seekers by its bills. Beyond immigration, other outstanding themes before the Constitutional Law Committee were legislative proposals or other matters pertaining to security,[9] retrogression of economic and social rights,[10] as well as privacy and data protection rights.[11]
The outcome was that several bills ran into constitutional difficulties before the Constitutional Law Committee. The Committee presented various critical constitutional remarks on several bills and, in a smaller number of cases, required changes to be made to achieve harmony between the Constitution and human rights obligations and the bill to be considered in accordance with the ordinary legislative procedure. The Committee also criticised on various occasions the quality of drafting, the lack of fundamental rights impact assessments[12] and the constitutionally defective justification for the bills. For instance, the Committee stressed that the aim of trying to make Finland less attractive for asylum seekers was not a constitutionally legitimate aim for weakening the rights of asylum seekers or the social benefits or social security of immigrants.[13]
In December, the Chancellor of Justice stirred up public debate over the quality of drafting by estimating that an unusually high number of legislative proposals with constitutional problems had been presented to the Parliament.[14] He also revealed that in some cases his recommendations for addressing the constitutional problems had been ignored. While concurring with the Government that the resources of ministries had become scarce, the Chancellor of Justice stated that referring to time constraints and political pressure as justifications for scrapping the principles of good law-making is illegitimate. The Government promised to address the problems of law-making and the Prime Minister presented an announcement to Parliament on law-making by the Government in February 2017.
Opinion of 55/2016 by the Constitutional Law Committee – discriminatory nature of unemployed immigrants’ integration assistance
In Government Bill 169/2016, it was proposed that an unemployed immigrant would, instead of receiving unemployment assistance, be entitled to an integration assistance amounting to 90 percent of unemployment assistance. The Committee considered the proposal from the point of view of the principle of equality and prohibition of discrimination as well as the right to basic subsistence in the event of unemployment, both protected by the Constitution. In its Opinion 55/2016, the Committee found that creating a parallel system for immigrants would not in itself be in conflict with the prohibition of discrimination (Sect. 6 of the Constitution). However, the Committee considered the proposal to be discriminatory since the level of integration assistance would have been lower than assistance provided for other unemployed persons. Unemployed immigrants would consequently be treated differently on the grounds of their origin, i.e. immigration status, which Sect 6 expressly prohibits.
The Committee noted that austerity measures may be justified in times of economic distress. However, the aim of providing savings for the public sector could not in this case justify limiting equality before the law. Furthermore, the Committee did not deem credible the suggestion of the Government bill that lowering basic subsistence would contribute to the integration of immigrants. The means were thus not suitable for achieving the aim. Following the Opinion of the Committee, the Government bill was withdrawn. The case raised considerable attention and criticism about the quality of law-making.
Opinions 24/2016, PeVL 43/2016 and PeVL 48/2016 of the Constitutional Law Committee – weakening legal protection of asylum seekers
The Aliens Act of 2004 (Act No. 301/2004) was amended several times in 2016. The amendments were based on the Government action plan on asylum policy, the central aims of which include stopping the ‘uncontrolled flow of asylum seekers into our country.’[15] Firstly, humanitarian protection—an additional category guaranteeing protection for those who do not qualify as refugees or receivers of subsidiary protection—was removed.[16] Second, protection under the law was weakened in several ways.[17] Third, criteria for family reunification were tightened by broadening the application of the requirement for means of support.[18] This amendment affects especially children and other persons in a vulnerable position. Fourthly, a new interim measure, designated residence, was introduced.[19]
The Committee proposed several changes that improved asylum seekers’ legal status, especially that of unaccompanied minor asylum seekers. Concerning protection under the law, the Committee required in its Opinion 24/2016 that an unaccompanied minor asylum seeker be automatically offered legal aid; originally, it was proposed that legal aid for asylum seekers, even for children, be provided in the asylum interview only if exceptionally weighty reasons existed. Regarding designated residence of children, the Committee required in its Opinion 48/2016 that the maximum duration be shortened, conditions for deciding how many times a day the person has to report be added and the last resort nature of detention be underlined.
Even though the Committee accepted the legislative amendments and many of the improvements proposed by the Committee were conducted, the compatibility of some of the amendments with human rights obligations still remains questionable, especially to the extent that the tightening of the criteria for family reunification is concerned. Legal protection, too, was weakened in many ways, and it is questionable whether amendments to legal protection amount to such a considerable retrogression that the amendments are in conflict with the Constitution and human rights.
Immigration matters in the Supreme Administrative Court
Due to the increased number of asylum applications and the Government’s tightened immigration policy, the Supreme Administrative Court adjudicated an exceptionally high number of immigration matters.[20] The Court referred several cases back to the Immigration Service. In KHO:2016:53, the Court found that the principle of non-refoulement prevented the transfer of an asylum seeker to Hungary, where he had been registered. According to Regulation 604/2013 (Dublin III), Hungary was primarily responsible for examining the asylum application. The court compared the case law of the Court of Justice of the EU (CJEU)[21] and the European Court of Human Rights (ECtHR)[22] to national case law in other EU member states concerning transfers to Hungary under Dublin III and to recent country information. The court concluded that particularly vulnerable persons cannot be transferred to Hungary due to problems in reception conditions. X had arrived in Hungary through Serbia, which Hungary considered to be a safe country. There was a possibility of X being returned from Hungary to Serbia and further to Afghanistan without having his asylum application examined.
In KHO:2016:81, the Court could not exclude the possibility that an Iranian asylum seeker’s apostasy from Islam could cause a need for international protection as prescribed in the Aliens Act. In KHO:2016:155, the Court assessed whether Z had secure means of support, which are required for issuing a residence permit unless otherwise provided. The Court relied on the Family Reunification Directive (2003/86/EC) and the case law of the CJEU.[23] The Court noted that authorization of family reunification is the general rule and the State’s power to require evidence of stable and regular resources must be applied narrowly. In KHO:2016:194, the Court assessed whether the applicant, a Sunni Muslim, should receive subsidiary protection instead of being returned to Baghdad. The Court reviewed several country reports on Iraq[24] and referred to the case law of the ECtHR on the definition of ‘a serious and individual threat’[25] and to the case law of the CJEU[26] interpreting the Qualification Directive (2011/95/EU). The Court concluded that there were substantial grounds for believing that the applicant, if returned to Baghdad, would face a real risk of being subjected to serious harm as a result of indiscriminate violence.
IV. Major Cases
Opinion 1/2016 of the Constitutional Law Committee – State Forest Enterprise and Sami land rights
Act on State Forest Enterprise (Act No. 234/2016) was fully amended in 2016. State Forest Enterprise is operating in the administrative sector of the Ministry of Agriculture and Forestry. The Constitutional Law Committee pointed out in its Opinion 1/2016 that Sami rights are not mentioned in the government bill even though the proposal affects the rights of the Sami. According to Section 17 of the Constitution, the Sami, as an indigenous people, have the right to maintain and develop their own language and culture. Section 17 guarantees the practice of traditional Sami livelihoods such as reindeer herding. The Committee noted that the Government bill—unlike a previous Government bill on the same issue—contained neither a section on the Sami domicile area nor a prohibition of retrogression of the Sami culture, and that international human rights obligations support the inclusion of such provisions. However, the Committee concluded that the Act can be passed in accordance with the ordinary legislative procedure. The enactment of the new Act was criticised for violating Sami rights.
Opinions 2/2016, 28/2016 and 33/2016 of the Constitutional Law Committee – non-discrimination, privacy and EUCFR
The Constitutional Law Committee reviewed several proposals for EU measures on privacy and referred in this context to the Charter of Fundamental Rights of the EU (EUCFR). In its Opinion 2/2016 on Government Communication 1/2016 on the proposal for a Regulation of the European Parliament and of the Council amending the Schengen borders code, the Committee noted that the proposal had an impact on certain rights protected in the EUCFR: the respect for private and family life (Art 7), protection of personal data (Art 8), as well as freedom of movement and of residence (Art 45). The Committee found that the proposal fundamentally changes treatment of EU citizens (and to a certain extent that of non-EU citizens) on the borders of the EU. Border checks as such were not considered problematic. However, the Committee noted the importance of prohibition of discrimination (Art 20 and 21 EUCFR) leading to a ban of ethnic profiling. Checks should be conducted based on an individual risk assessment.
In its Opinion 28/2016 on Government Communication 22/2016 on the proposal for a Regulation of the European Parliament and of the Council (smart borders) and Opinion 33/2016 on the Government Communication 30/2016 on the European Commission proposal for a Regulation of the European Parliament and of the Council (Eurodac), the Committee noted that both systems interfere with the right to privacy and protection of personal data. In the Committee’s view, attention should be paid to CJEU cases Digital Rights Ireland and Schrems[27] as well as future case law of the CJEU. These cases indicate that need for safeguards is all the greater where personal data is subjected to automatic processing and where there is a significant risk of unlawful access to that data. The Committee held that the most central question is related to registering of biometric identifiers.
Opinion 9/2016 of the Constitutional Law Committee – no acceptable justifications for increasing fine levels were presented
In Government Bill 1/2016, it was proposed that levels of day fines and summary penal fees be increased. This, as the Committee noted, interferes with the right to property. The aim of the amendment was to increase revenues of the State. The Committee found that acceptable justifications for increasing fine levels from the point of view of the fundamental rights system were not presented even though they would have been required, especially from the perspective of criminal law.
KKO:2016:20 – Compensation for a violation of human rights and fundamental rights
In KKO:2016:20, the Supreme Court considered whether the applicant was entitled to compensation due to violations of his fundamental and human rights. A’s residence permit application had been rejected, and consequently A had been deported. The decisions had been based on the opinion of the Finnish Security Intelligence Service, the grounds of which had been treated as classified information. The Supreme Court noted that the Administrative Court should have familiarised itself with the grounds of the opinion. The Supreme Court referred to the case law of the ECtHR on the interpretation of article 13 of the ECHR and concluded that A’s human rights, in particular the right to an effective remedy, had been violated. The Supreme Court held that A should receive compensation for the violation of his fundamental and human rights.
KKO:2016:24 and KKO:2016:25 – Legality of non-medical male circumcision
Finland does not have legislation on non-medical male circumcision. In 2016, the Supreme Court attempted to draw guidelines regarding the assessment of the justification of male child circumcision. The Court stated that it was unfortunate that there is no legislation governing non-medical male circumcision in Finland nor explicit guidelines emanating from international conventions binding on Finland or from the case law of the ECtHR. In the Supreme Court’s opinion, the question of non-medical male circumcision cannot be covered comprehensively by court decisions in individual cases. Instead, thorough evaluation in a legislative drafting process would be required, taking also into account possible penal sanctions.
KHO:2016:180 – Primacy of the Constitution and applicability of the EUCFR
In KHO:2016:180, the Supreme Administrative Court assessed whether the Charter of Fundamental Rights of the European Union (EUCFR) was applicable and whether there was an evident conflict (Sect. 106 of the Constitution) between an Act of Parliament and the Constitution. A surtax of 6 percent had been imposed on C’s pension income above 45.000 euros. In his appeal, C submitted that the applied provisions of the Tax Income Act (Act No. 1535/1992) violated the prohibition of discrimination on grounds of age under EU law and the Finnish Non-Discrimination Act (Act No. 21/2004) and therefore were in evident conflict with Section 6 of the Constitution on equality before the law. The Court requested the Court of Justice of the EU (ECJ) to give a preliminary ruling on the applicability of EU law on non-discrimination.[28] The ECJ found that EU law, including the EUCFR, was not applicable in the case. The Supreme Administrative Court noted that that provisions regarding the surtax on pension income were at least partly based on person’s age. However, the Court found that the provisions had a legitimate aim, namely funding of welfare services and economic stability, and that imposing a higher tax rate on those with high income can be justified, in particular in times of economic hardship. The provisions of Tax Income Act were thus not in evident conflict with the Constitution.
V. Conclusion
Constitutional turbulence will most likely continue during 2017. Currently, several working groups appointed by the Government are preparing legislation regarding civil and military intelligence, including their legal and parliamentary oversight. In October 2016, the working group of the Ministry of Justice gave its report on the necessity to amend the provisions on the secrecy of confidential communications laid down in the Constitution for the purpose of allowing legislation on civil and military intelligence. The working group assessed that the Constitution does not allow to enact by ordinary legislation such limitations to the secrecy of confidential communications that would authorize to obtain civil and military intelligence on serious threats necessary for national security. Hence, the working group proposed a constitutional amendment to be made. The proposal has raised a great deal of debate which will probably amplify when the other working groups will finish their respective work during spring 2017. Constitutionally interesting times ahead.
[1]A total of 5,657 persons (2015: 32,476) applied for asylum in Finland in 2016. However, appeals against negative asylum decisions by the Immigration Service started really pending before courts – the Administrative Court of Helsinki and the Supreme Administrative Court – in 2016. For statistics regarding asylum applications, see http://www.migri.fi/for_the_media/bulletins/press_releases/press_releases/1/0/finnish_immigration_service_s_statistics_for_2016_record_number_of_decisions_71665.
[2] Tuomas Ojanen, ‘The European Arrest Warrant in the Midnight Sun. The Implementation and Application of the EAW in Finland.’ In: Guild E, Marin L (eds) Still Not Resolved? Constitutional Issues of the European Arrest Warrant, (2009), Wolf Legal Publishers, 143.
[3]Unofficial translation of the Constitution of Finland, including amendments up to 1112/2011, available in English at https://www.finlex.fi/fi/laki/kaannokset/1999/en19990731.pdf.
[4] Juha Lavapuro, Tuomas Ojanen and Martin Scheinin, ‘Rights-Based Constitutionalism in Finland and the Development of Pluralist Constitutional Review’ [2011] 9 Intl J Cons L 505.
[5] Tuomas Ojanen, ‘From Constitutional Periphery Toward the Center-Transformation of Judicial Review in Finland’ [2009] Nordisk tidsskrift for menneskerettigheter 194. For an early account, see Martin Scheinin, Ihmisoikeudet Suomen oikeudessa (Human Rights in Finnish Law) (Suomalainen Lakimiesyhdistys 1991).
[6] Tuomas Ojanen, ‘The European Arrest Warrant in the Midnight Sun. The Implementation and Application of the EAW in Finland’ in Guild E, Marin L (eds), Still Not Resolved? Constitutional Issues of the European Arrest Warrant (Wolf Legal Publishers 2009).
[7] See e.g. Constitutional Law Committee Opinion 2/1990.
[8]http://www.finnishnews.fi/politics/finnish-government-said-to-flagrantly-disregard-the-constitution-serious-allegations-by-chancellor-of-justice/.
[9] E.g. Constitutional Law Committee Opinions 20/2016, 22/2016 and 37/2016.
[10] Constitutional Law Committee Opinions 58/2016 and 59/2016.
[11] Constitutional Law Committee Opinions 13/2016, 28/2016, 29/2016, 33/3016 and 34/2016.
[12]E.g. Constitutional Law Committee Opinions 34/2016 and 43/2016.
[13]E.g. Constitutional Law Committee Opinion 55/2016.
[14]E.g. http://www.helsinkitimes.fi/finland/finland-news/domestic/14420-chancellor-of-justice-government-s-draft-bills-beset-with-constitutional-problems.html.
[15] Government action plan on asylum policy (8 December 2015), available in English at http://valtioneuvosto.fi/documents/10184/1058456/Hallituksen_turvapaikkapoliittinen_toimenpideohjelma_08122015+EN.pdf/3e555cc4-ab01-46af-9cd4-138b2ac5bad0.
[16] Government Bill 2/2016.
[17] Government Bill 32/2016.
[18] Government Bill 43/2016.
[19] Government Bill 133/2016.
[20] Immigration matters were the largest type of matter in the Supreme Administrative Court (38% out of all incoming matters).
[21] C-394/12 Shamso Abdullahi v Bundesasylamt [2013]; C-695/15 PPU-Mirza [2016].
[22] Halimi v Austria and Italy App no 53852/11 (ECtHR 18 June 2013); Mohammed Hussein v Netherlands and Italy App no 27725/10 (ECtHR 2 April 2013); Tarakhel v Switzerland App no 29217/12 (ECtHR 4 November 2014); Mohammadi v Austria App no 71932/12 (ECtHR 3 July 2014).
[23] C-356/11 and C-357/11 O et al [2012]; C-358/14 Mimoun Khachab [2016].
[24] Reports by the UNHCR, human rights NGOs and foreign offices or immigration authorities in the UK, the US and Sweden.
[25] J.K. et al v Sweden App no 59166/12 (ECtHR, 23 August 2016); A.A.M. v Sweden App no 68519/10 (ECtHR, 3 April 2014); S.A. v Sweden App no 66523/10 (ECtHR, 27 June 2013); Sufi and Elmi v the United Kingdom App nos 8319/07 and 11449/07 (ECtHR, 28 June 2011).
[26] C-465/07 Elgafaji [2009]; C-285/12 Diakité [2014].
[27] C-293/12 Digital Rights Ireland [2014]; C-362/14 Schrems [2015].
[28] In 2016, the Supreme Administrative Court submitted five requests for preliminary rulings. The Supreme Court submitted three requests.
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