Oldal 403 [403]
OCR
THE RULE OF LAW REVISITED — FINNISH APPROACH For Backman these legality rules were only formal aspects of the Rechtsstaatlichkeit (the constitutionally governed state). The last-mentioned concept t included several additional criteria: a) anticipatory guarantees such as the general limiting preconditions for criminal liability and the principles concerning the organization of the judiciary; b) the procedural rules regarding the different phases of criminal proceedings; and c) the methods of appeal in criminal proceedings and the supervision of the administration of justice. Another Finnish scholar, Kaarlo Tuori, has distinguished four models of the Rechtsstaat in his theoretical analysis: a) the so-called liberal Rechtsstaat, b) the model of the substantive Rechtsstaat, c) the formal concept of the Rechtsstaat, and d) the model of the democratic Rechtsstaat.'® Regarding these models, the last one presupposes a constitution based on democracy and fundamental rights but, in addition to this constitutional demand, requires an active and independent civil society. The democratic model of Rechtsstaat is according to Tuori constructed with the presumption that democracy and fundamental rights must be regarded as complementary principles rather than opposing or rival ones. The Finnish legal system seems to correspond to this model with respect to, among other things, the means of reviewing the constitutionality of laws: there is neither judicial review nor a constitutional court, but rather a preventive and an abstract control of norms; that is, the conformity of a bill to the constitution is reviewed only during the legislative process.” Any examination of the concepts of the rule of law and Rechtsstaatlichkeit reveals how vague or open to various interpretations they are, although their doctrines are very central to the Western liberal democracies. For instance, Backman’s analysis indicates that the idea of the rule of law includes requirements as for both the substantive rules of the legal system and the procedural rules, which govern adjudication and enforcement in individual cases. The rule of law checklist (with benchmarks and standards), adopted by the Venice Commission in 2016, is now helpful for a sophisticated comparative analysis. It includes as sub-titles legality, legal certainty, prevention of abuse of powers, equality before the law and non-discrimination as well as access to justice." In the following my view is, however, much narrower and is based on the Finnish legal experience since the 1990s. 1° Kaarlo Tuori, Four models of the Rechtsstaat, in Maija Sakslin (ed.), The Finnish Constitution in Transition, Helsinki, Finnish Society of Constitutional Law, 1991, 31-41. ” Antero Jyranki, Taking Democracy Seriously. The problem of the control of the constitutionality of legislation. The case of Finland, in Sakslin (ed.), The Finnish, 6-30. 8 Rule of Law Checklist. Adopted by the Venice Commission in 2016 and endorsed by the Council of Europe in 2017. + 401 +
