Access to Justice

Markku Fredman
Fredman & Månsson
Helsinki, Finland

September 7 1999

Access to Justice - The Finnish Bar Association as a Monitor of Legal Protection



In 1994 the Board of the Finnish Bar Association assigned the task of preparing a legal protection programme for the association to its Legal Protection. The assignment came in the wake of examples elsewhere in the Nordic countries: the Swedish Bar Association had approved its programme in 1988, while the bar associations in Norway and Denmark also had such documents.


Preparation of the Finnish Bar Association's 1995 Legal Protection Programme

Once the Finnish Bar Association's Legal Safeguards Committee had commenced its work, a number of objectives were established for the programme.

The first purpose of the programme was to provide guidelines and points of emphasis for the association's other activities. For example, the provision of opinions on the association's behalf respecting legislative initiatives happens very independently and lacks consistent values which a member of the association would have to respect when serving as an expert or an opinion source appointed by the association. According to its by-laws, the association strives to keep abreast of legal developments in the country by both giving statements and taking initiatives, so as to place its experience at the society's disposal. In order to discharge this task properly, the association wanted to prepare, for approval by its Council, a document that would present both the overarching values governing the association's public mission, and the goals of that mission.

As the work progressed, it became clear that a legal protection programme is always the child of its time, and always tends to present problematical cases currently under discussion. The second main purpose of our legal protection programme was thus to provide an up-to-date, expert examination of our country's problems with regard to legal protection. It was therefore decided to divide the programme into a general, less topical section and another, specifically topical section.

The third purpose of the programme was to stimulate discussion and direct public attention towards perceived problems involving legal protection.

A fourth purpose - one related to the foregoing aims - was to fulfil the demand of the association's by-laws with respect to the monitoring of trends in law and the taking of initiatives on the basis of the observations thus made. Indeed, we also submitted this first legal protection programme to the Ministry of Justice's Law Drafting Department, so that the ministry could assess how to grapple with the problems we perceived respecting legal protection.

The first programme was thus completed in the autumn of 1994. In January 1995 the Council of the Bar Association unanimously approved it's first legal protection programme.

The general section of the programme included a definition of legal safeguards, as those effective means by which the rights of individuals are made a reality.

With respect to legal protection, the legal literature generally concentrates solely on an evaluation of how well the authorities and courts manage to implement the rights of the parties to the case in question; that is, how effectively the courts provide those parties with legal recourse. No assessment at all is thus made of the question of which cases never reach the authorities or courts for their consideration - and why. In our legal protection programme, we sought to evaluate this "dark" aspect of legal protection, too. In this respect, our work has some connection to the "access to justice" research orientation of legal sociologists.

The definition of legal protection that we chose makes it possible to break down the examination of problems of legal protection into at least three parts -

  • Do people have adequate rights?

  • Do people have the means whereby those rights can be realized?

  • Are those means effective?

This series of questions can be used with almost all phenomena that are to be regarded as rights. When dealing with a legal protection programme drawn up by advocates, however, it is neither necessary nor possible to present viewpoints about spheres of life in which advocates are not particularly active. Because of this limitation, most social and cultural rights have been left outside the legal protection programme. Although a child's (subjective) right to day care, for example, is very important in social terms in Finland, the Finnish Bar Association does not feel it could present its experience and professional viewpoint in that sort of context with the same weight it could with respect to deficiencies of trial procedure, for instance.

In implementing social rights, one does not normally use an advocate, although that might be beneficial in problematic cases. This may be a legal-safeguards problem, but that remains for others to evaluate. Advocates encounter the problems of day care, for example, usually in their roles as fathers and mothers, generally without having to ask by what means possible conflicts between the municipality and the parents of the child lacking day care might be most effectively resolved. In the same fashion, questions of the environment and collective rights have with a few exceptions been left outside the programme.

As the Swedish legal protection programme specifically noted, not all breeches of justice involve shortcomings in legal protection. Crimes are committed and attempts are made to protect people against criminal acts. Legal safeguards do not for example constitute a general protection against crime. By the same token, the failure to fulfil private-law contracts does not entail an inadequacy of legal safeguards, either.

A problem of legal safeguards is involved, however, if the state does not attend properly to the maintenance of public security or fails without justification to investigate certain crimes. Legal safeguards also enter the question if the courts are unable to issue enforceable judgments quickly and economically in unambiguous debt-recovery cases. The essence of legal safeguards thus lies in the relationship between the individual and the state: with legal protection we can only intervene indirectly in a violation of rights between two individuals. A member of society does have the right to demand that essential measures needed to realize justice, restore a legal status, or ensure a proper trial be implemented for his or her sake, too.


Content of the 1995 Legal Protection Programme

The general section of the Finnish Bar Association's first legal protection programme, approved in January 1995, was divided into the following subsections:

  • Legal protection; legally guaranteed human-rights safeguards
  • The principle of legality
  • The principle of impartiality and independence
  • Access to Court
  • Protecting the courts' operating possibilities
  • The right to a court hearing within a reasonable time
  • The right to legal assistance
  • The principle of access to public documents.

These points encompass the basic elements of legal protection in relatively enduring way.

Ten pages of the 1995 programme were devoted to an elaboration of current problems involving legal safeguards. The programme treated the following 27 topical problem areas at the time:

  • Attempts to limit the right of appeal

  • Delays in Court procedure

  • Hearing of parties

  • Obsoleteness of rules on disqualification of judges

  • Availability of legal information

  • Legal services for the Swedish-speaking minority

  • The procedure for appointment of judges

  • Problems concerning the bankruptcy procedure

  • Compulsory enforcement of parental visiting rights

  • Class-action suits

  • Weakening of legal costs insurance

  • Costs of arbitration

  • Debt arrangements of a private individual and reorganization of company debts

  • The scope of free legal aid

  • Improving the status of crime victims

  • Enabling prohibition of personal harassment, under threat of punishment

  • Stating the grounds for decisions

  • Arrest, incarceration and other coercive measures

  • The right of those unjustly charged for a crime to reimbursement for their expenses

  • Police powers and privacy

  • Equality of arms

  • Alternative penal sanctions

  • Commuted fines during periods of recession

  • Incest cases, the viewpoint of social authorities and the presumption of innocence

  • Regulations concerning trial costs; administrative procedure

  • The status of foreigners; language regulations

  • Issues concerning refugees and asylum applicants.

In the legal protection programme, we tried to stress that the right to legal protection also belongs to foreigners who visit or live in Finland, rather than being the exclusive right of Finnish citizens. This same principle was brought to fruition in terms of fundamental rights on 1 August 1995, when the revision of the Constitution Act's chapter on fundamental rights took effect.

The legal protection programme was in general very well received. It was discussed in the press and stimulated discussion. Among other things, a representative of the Association of Finnish District Court Judges expressed his concern that Finland's advocates were proposing that disputes be handled outside the courts, for example through arbitration. The chief judge in question suspected that the advocates were simply thinking of having the state participate in defraying the arbitration costs and counsels' fees.

In some other comments, too, it was obvious that the concerns presented by the advocates regarding the individual's legal safeguards were not being taken seriously. In the absence of traditions, it was obviously assumed that advocates everywhere are always and exclusively concerned about their own livelihood, and that the gist of all the proposals was to fatten the wallets of advocates. There was certainly some substance to the doubts: in this sector, one only gains the trust of one's colleagues and the public after long and honest work. Concern for the interests of advocates can have no place when the Bar Association is presenting its viewpoint on the standard of legal protection in Finland. When needed, advocates are also in a unique position to express themselves as to areas in which legal safeguards could be even circumscribed, if resources could thereby be freed up to eliminate genuine problems of legal safeguards. If the government can or is forced to decide alone on reductions in appropriations for free legal aid, for instance, the result will certainly be worse than if the views of advocates on possible targets for cuts are also considered.

Legal protection programme follow-up

Soon after the approval of the programme, positive developments were visible in many of the problem areas we had delineated.

Perhaps the fastest results came in response to our proposal for the prohibition personal harassment under the threat of punishment. At the time we did not yet know to use the term "lähestymiskielto"  restraining order, which soon established itself as the designation for the prohibition we had proposed.

The restraining-order proposal wound up in the legal protection programme because one of the drafters had handled a case in which a coach driver had come under continual harassment from a passenger. Nothing could be done until the passenger resumed the harassment and the police could be summoned to the spot.

The Ministry of Justice commenced preparation of the Act on Restraining Orders in Cases of Personal Harassment, and Parliament approved the measure in 1998. The statute took effect on 1 January 1999. In late summer of 1999, the newspapers reported that more than 600 such restraining orders had already been issued - many times exceeding what had been expected when the law was enacted.

In 1998, the association's Legal Safeguards Committee received the task of drafting a report on how the hopes contained in the legal protection programme had been realized, and how the problems perceived had been handled. The follow-up information was collected into a document presented to the association's Council in January of 1999. Publication of the programme follow-up's conclusions was reported widely in the press.

The gathering of the follow-up information led to a rather surprising finding: in almost all the problem areas described four years before, at least some improvement had taken place. Only in 4 of the 27 areas had no progress been achieved. In three of those four areas, the situation was largely unchanged, and in one there had clearly been backsliding: the programme had stated that the introduction of class-action suits would promote justice and enhance legal protection, but the first government of prime minister Paavo Lipponen, which sat from 1995 to 1999 and promised a class-action bill in its programme, never submitted such a bill to Parliament.

The three problem areas in which the situation was more or less unchanged at the end of the four-year period under review were legal services for the Swedish-speaking minority, police powers and privacy, and language regulations and the status of foreigners.

The following list notes the reforms or interventions in improper procedures that the follow-up report considered positive from the standpoint of legal safeguards.

  • In conjunction with an appellate court reform, Parliament's Legal Committee rejected limitations on the right of appeal.

  • Docket backlogs have to some extent been reduced.

  • The right to be heard has been established as a fundamental right; in three years there have been at least six Supreme Court decisions on errors that have taken place in the hearing of concerned parties.

  • A working group examining the disqualification of judges submitted its report. Grounds for the disqualification of prosecutors have been added to the law.

  • The Statute Databank has gone into operation ( Free legal counselling services have been established by the Bar Association.

  • Reform in the appointment of judges has made progress. Judges have been encouraged to seek work experience in other fields, and it has become more possible for lawyers with other training to become judges.

  • Problems in bankruptcy procedure were corrected by enacting legislation on receivers and their responsibilities. The Advisory Committee on Bankruptcy submitted recommendations on good practice in the administration of the estates of bankrupts.

  • Enforcement disputes concerning parental visiting rights were transferred from the provincial administrative boards to the district courts.

  • To compensate for an earlier weakening of legal costs insurance, discharged persons, among others, gained the right to reimbursement of costs from state funds.

  • The Bar Association initiated a mediation procedure that provides a new alternative for resolving disputes out of court.

  • Flexibility has been incorporated into debt arrangements in cases where the debtor's circumstances have changed during the term of the arrangements.

  • The enforcement of disputes respecting parental visiting rights, as well as asylum appeals and almost all administrative judicial procedure, have been added to the scope of free legal aid. Public defence and legal aid to the victim of a crime paid by state funds have been introduced.

  • Prosecutors are pushing compensation demands for aggrieved parties in criminal cases. Immediate relatives of murdered persons received the right to compensation for suffering. The protection of children from sexual exploitation has been improved.

  • The Act on Restraining Orders in Cases of Personal Harassment was enacted.

  • Parliament's Legal Committee underscored the importance of grounds in court decisions. Cases have been returned to lower courts in view of inadequate grounds. Judges were forced to accept responsibility for costs after justifying decisions inadequately, in view of the improper outcome brought about by a decision when that outcome leads to appeal costs. The assistant ombudsman has demanded that the Supreme Court also justify a decision concerning extraordinary appeals.

  • A study has been conducted to ensure that legal safeguards for persons accused of crimes are in order as regards arrest.

  • A criminal-process reform equalized the position of parties to trial - an accused person is no longer confronted by two "prosecutors": the Judge and the public prosecutor.

  • In penalties for young persons, community service proved successful_ More flexibility was introduced in the ordering of commuted fines

  • Research has provided more information on the question of children as a party in a criminal procedure, as a victim of sexual offences.

  • A provision for the compensation of costs was added to the Administrative Judicial Procedure Act.

  • The Asylum Appeals Board which had proved an unsatisfactory solution to deal with asylum application, was eliminated, and its tasks were transferred to a provincial administrative court.

The follow-up report on the legal protection programme was assembled by depicting the four-year trend with brief comments. The emphasis was on court cases and reports from law enforcement authorities, as well as citations from press accounts, research reports and documents concerning the preparation of legislation

The Finnish Bar Association's legal protection programme for the year 2000

After completing the follow-up report, the Bar Association's Legal Protection Committee received the task of drafting a new legal protection programme for the association. The objective is to have the programme approved at the January 2000 meeting of the association's Council.

Since the previous programme has for the most part been implemented, the new programme cannot be constructed on the basis of the former. To avoid repeating that situation in the future, it was decided to bring a fresh approach to the preparation of the new programme and subsequent programmes, which could perhaps be approved at five-year intervals. The general section will be followed by an enumeration, in their respective sections, of certain fundamental rights that reflect enduring values. Since, for example, the fundamental rights incorporated into Finland's Constitution Act in 1995 and the rights guaranteed by the European Convention on Human Rights will presumably remain unchanged for decades, it should be safe to use the structure of these provisions for the programme's headings.

The objective is to approve a new programme at regular intervals. In time, the programmes will thus be easy to read side-by-side, since current threats to the protection of privacy, language rights, or freedom of speech, for example, will be depicted under the same heading each time.

The purpose this time is to incorporate relevant court reports, official decisions, news quotations and the like into the text of the programme, so as to enliven the presentation and give future generations a picture of what sort of legal problems were current at the turn of the 21st century. We hope that the method we have now chosen will also serve for those who continue the work, so that the legal Protection programmes may in time evolve into a sort of encyclopaedia of Finnish judicial life in different times.

At this phase of the work, the following have emerged as the subject areas to be treated:

  • Equality and nondiscrimination

  • Personal security, the prohibition of torture, and the right to life

  • Personal liberty

  • The principle of legality

  • Freedom of movement

  • Respect for home

  • Protection of communications

  • Privacy and honour

  • Protection of family

  • Religion and freedom of conscience

  • Freedom of speech

  • Public access to documents

  • Freedom of association and assembly

  • Protection of property

  • Language rights

  • Cultural rights of national minorities

  • The right to work and freedom of occupation

  • The right of recourse to the courts

  • General appropriateness and fairness of process

  • The principle of hearing concerned parties

  • The right of appeal

  • Length of trials

  • Stating the grounds for decisions

  • Disqualification of judges

  • Minimal rights of the accused

  • Preliminary investigations and coercive measures

  • Administrative procedure, administrative judicial procedure, and the possibility of protection against official acts

  • Legal safeguards in tax matters

  • Legal aid, the Bar, and qualifications for legal representatives

  • Questions particular to the Labour Law.

If things progress according to plan, the Finnish Bar Association's Council will approve a new legal Protection programme for the association at the meeting of 13 January 2000.


Asianajotoimisto Fredman & Månsson

Asianajotoimisto Fredman & Månssonin osakkaina ovat asianajaja, varatuomari Markku Fredman ja asianajaja, varatuomari Ulf Månsson.

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