Oldal 406 [406]
RAIMO LAHTI
of the incorporation method, Finland can be said to represent dualism in form but
monism in practice when implementing international law in the domestic legal
order. This method of implementation affects the application of human rights
treaties. The Parliamentary Constitutional Law Committee has confirmed the
following principles: the hierarchical status of the domestic incorporation act of
a treaty determines the formal rank of the treaty provisions in domestic law (that
is, their rank is normally that of an Act of Parliament).
Incorporated treaty provisions are in force in domestic law in a form
corresponding to their representation in international law; and the courts and
authorities should resort to “human-rights friendly” interpretations of cases
which have domestic status, in order to avoid conflicts between domestic law
and human rights law.
New provisions on the fundamental rights in the Finnish Constitution were
enacted in 1995, and they were included into the new Constitution of 1999. The
new provisions on these basic rights, which are much more detailed than the
earlier ones, for instance those concerning not only fundamental freedoms but
also social rights, have been essentially inspired by the international human
rights treaties. From the point of view of criminal law, there are important new
provisions, for example on the legality principle in criminal law (corresponding to
Article 7 ECHR) and the provision stating that a punishment entailing deprivation
of liberty can only be imposed by a court.
Several of the enacted constitutional provisions make reference both to
basic and human rights, thus giving semi-constitutional status to human rights
treaties. The travaux préparatoires for this reform emphasize the fact that the
constitutional provisions are also directly applicable in the administration of
law by judges and authorities, and so their binding effect is not restricted to
law-making only. In addition to the ‘human-rights-friendly’ interpretation of the
law, a similar ‘basic-rights-friendly’ interpretation is recommended, although the
prohibition of courts to examine the constitutionality of Acts of Parliament was
maintained.
In all, the requirements of Rechtsstaatlichkeit include several criteria which
should be applied in constitutionally governed states like Finland: first, anticipatory
guarantees such as the general principles limiting the use of substantive criminal
law (see more supra) and the principles concerning the organization of the
judiciary; second, the procedural rules regarding the different phases of criminal
proceedings; and, third, the methods of appeal in criminal proceedings and the
3 See Martin Scheinin, Incorporation and Implementation of Human Rights in Finland, in
Scheinin (ed.), International Human Rights Norms in the Nordic and Baltic Countries, The
Hague, Nijhoff, 1996, 257-294, 276.
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