Filtering the Appeals to the Supreme Court: The Finnish Approach

Jukka Sippo
Justice, The Supreme Court of Finland

Speech held in The International Supreme Courts Conference “Supreme Courts In Changing Times" in Brno, Czech Republic 6.11.2018.

1. Introduction

The subject of this panel is “Does a Broad Review Lead to a More Effective Justice"? I was requested to elaborate the topic of filtering appeals to The Supreme Court from the national perspective.

Although it is not accurate to speak of a specific Nordic model, filtering systems in Nordic countries have some similarities. This is particularly true when comparing the legislative solutions adopted in Finland and Sweden. In this respect our systems and legislations are close to identical. Therefore, I shall briefly discuss some common elements, which I think illustrate the basic principles behind the filtering systems in these two Scandinavian countries.

In Finland and Sweden filtering mechanism is widely used especially in the process of ordinary appeals and filtering is applied in both levels of appeal proceedings. Possibilities to extraordinary remedies are limited to specific statutory grounds and no special filtering mechanism is adopted in relation to extraordinary appeals. Since the question of admissibility to The Supreme Court raises in the procedure of ordinary appeals, in the following, I shall concentrate on the procedure of filtering ordinary appeals.

2. The idea behind filtering: differentiating the roles of courts

What is then the basic idea behind filtering cases referred to supreme courts or even to courts of appeal? Why adopt such a system in the first place? Doesn’t it necessarily mean less legal security for the parties, if the higher court doesn’t fully re-examine each case referred to it?

Surely, the “raison d’etre" of appellate courts, and particularly so of supreme courts, is to ensure quality of justice. Nevertheless, the question remains, how this is done effectively in a modern society. As we all know, legal issues are growing in number and becoming more and more complex. When financial resources of the courts remain scarce, it is quite essential, that resources at hand are used as rationally as possible. Re-examining cases in three instances hardly provides any additional value to the quality of justice, if already the first instance has played its part adequately in the court system. On the contrary, it can be argued, that effectiveness of court system requires, that appellate courts can concentrate their work on cases which genuinely call for their attention. And exactly in this respect, filtering of cases can result in more effective justice. Effectiveness of justice can even be seen as one of the main objectives of a filtering mechanism.

Of course, there are no clear-cut and overall answers to these questions. Much depends on the structure of the court system in question: how the role of each instance is understood and how they fulfill their function in a given system.

In countries like Finland and Sweden, where each instance has clearly separate roles in the court system, the main purpose of filtering mechanisms is to support and maintain this differentiation of functions. Consequently, filtering is adopted in both levels of appeal proceedings. But this has not always been the case. In Finland filtering was introduced first to The Supreme Court 38 years ago in 1980. In the courts of appeal this was done as late as 1998.

Respectively, these two levels and forms of filtering serve different objectives. This is clearly reflected on the statutory grounds for a leave to appeal in each instance. And again, these grounds reflect very clearly the different roles of each instance in the court system.

Therefore, it is fair to say, that the rationale behind filtering systems in Finland and Sweden lies in recognizing and distinguishing clearly the different functions and roles of each instance. This is the big picture. But still, the question remains, what this kind of double filtering means in terms of the quality of justice. To find answers we need to take a closer look at the system as whole and the interplay that is required by different instances.

3. Filtering mechanisms in Finland

3.1. Filtering in courts of appeal

I shall focus on the courts that deal with civil and criminal cases in Finland. We have a three-tier court system: the courts of first instance (district courts), the courts of appeal, and The Supreme Court. As I just mentioned, appeals are filtered at both levels of appeal proceedings.

The function of the first stage appeal is to supply the parties with legal security and protection: Its aim is to guarantee and control, that the outcome of the first instance judgment is correct. Accordingly, the idea of filtering at this stage is to sort out cases that clearly do not deserve re-examination.

This is done by controlling in review proceedings that judgments rendered by the lower courts are sufficiently justified and legitimate. As a rule, leave to appeal (or a leave to continued consideration, as it is called) requires that the appealing party can demonstrate on his petition that there are grounds to doubt the outcome of the first instance ruling. If appellate court finds in its review that such objective doubts have been raised, it is obliged to re-examine the case, otherwise not.

This review process doesn’t restrict solely to questions of law, it covers the questions of facts as well. This is of course important in order to reach the objective of first stage appeal, that is, to safeguard legal security.

There is one important exception to this basic idea: irrespective of the validity of the first instance ruling, a leave to appeal must be granted also if it is important to re-examine the case in view of the application of the law in similar cases. This provision is designed to ensure that cases of precedential value are recognized already in the courts of appeal. And this is vital from the point of view of the Supreme Court: it is important that cases which bear raw material for precedents reach The Supreme Court and are not filtered out.

Already in this first stage, the filtering system is quite extensive: it covers all civil cases. Criminal cases are covered if the imposed sentence is not heavier than 8 months of imprisonment. This means that for example last year, approximately 76 % of cases referred to the courts of appeal were subject to the filtering mechanism. In 44 % of these cases leave to appeal was not granted. Thus, filtering is also quite widely applied already at the first stage. If a leave to appeal is denied in a court of appeal, a further appeal to the Supreme Court is available if the statutory grounds for a leave to appeal to The Supreme Court are present.

This possibility is also used quite often. On the other hand, a leave is rarely granted in The Supreme Court in cases concerning filtering in courts of appeal. But obviously, here lies one possible threat that can undermine the effectiveness of a double filtering system: if The Supreme Court needs to correct frequently filtering decisions of courts of appeal, filtering has failed to fulfil its purpose and turned to an unnecessary cassation round in The Supreme Court. However, so far, this kind of threats have not materialized in Finland.

3.2. Filtering in The Supreme Court

The role of The Supreme Court in the Finnish court system is fundamentally different from that of the courts of appeal. The Supreme Court is a court of precedent. Its basic function is to deliver precedents in cases involving points of law.

Thus, on this second level of appeal, also the filtering mechanism serves a clearly different purpose: it is not primarily to ensure legal protection for the parties but to benefit society and legal community in general through case-law guidance.

Consequently, in The Supreme Court filtering applies to practically all kinds of cases. There are very few exceptions to this. Leave to appeal is granted, if any of three statutory grounds is satisfied. By far the most important one is the ground of precedent. This ground is present, when ruling of The Supreme Court is needed for the proper application of law. Typically, this can be the case, when there is not enough relevant case-law in questions that are open to interpretations, or when new legislation raises new questions of law. For instance, in cases involving EU-law or human rights The Supreme Court has an important responsibility in transferring the rulings of European courts to national level and awareness through its precedents. As the court of last instance, The Supreme Court has an outright obligation to grant a leave in cases where interpretation of EU-law is relevant. Thus, also effectiveness of EU-law must be taken into consideration.

Leave can be granted also if there has been a procedural or other error of such gravity, that the judgment of lower court could be annulled or reversed by means of extraordinary remedies. And finally, a leave can be granted for so called weighty reasons. These latter two grounds serve as a safeguard that enables also The Supreme Court to intervene in order to give parties legal protection even in cases without precedential potential.

A leave to appeal can also be limited to a certain part of a case, for example to a specific claim in the petition or even to a particular legal question concerning a certain claim. This way it is possible also within the framework of a single case to direct the examination of The Court solely to the questions that are interesting from the point of view of precedent. On the other hand, a leave to appeal can be extended to cover also the assessment of facts, if The Supreme Court so chooses.

Also, a decision of a court of first instance may be appealed directly to The Supreme Court instead of the court of appeal (appeal for precedent), if both parties consent to this and the ground of precedent is present. This possibility is rarely used, and its availability is always at the discretion of The Supreme Court. It is meant for situations, where the case is exceptionally important from the point of view of case-law guidance.

Annually, only less than 7 % of applications pass the test for a leave to appeal. More than 80 % of leaves are granted on the ground of precedent. Thus, less than 20 % of the leaves are granted on other grounds than precedent.

These figures justify the following conclusion: When considering whether a leave to appeal should be granted or not, The Supreme Court is not, unlike the courts of appeal, primarily interested in whether the lower court has managed to reach the correct outcome in the case at hand. Instead, in order to pass the test for a leave to appeal, the case itself must bear some precedential value for future interpretation of law. And the applicant must be able to convince The Supreme Court that this is the case.

From the point of view of The Supreme Court and legal community in general, the filtering system has served its purpose rather well. It has proved to be an indispensable precondition for the court’s function as a court of precedent. In the 1970s when no meaningful filtering mechanism existed, the workload of The Supreme Court was excessive resulting in backlog of cases and prolonged processing times. The number of pending cases was several thousand whereas now the number is approximately one thousand. Case selection by means of filtering has enabled the court to direct its resources to cases of precedential value.

Unfortunately, overwhelming majority of cases that are referred to The Supreme Court, are still quite useless from the perspective of precedent. Therefore, a lot of unnecessary energy and manpower needs to be addressed to the filtering process itself. Presently, applications for leave to appeal are decided by a panel of two justices. If they disagree, a third justice is called in. Since in practice, a big part of the applications for leave to appeal are manifestly ill-founded, this method has proved to be too burdensome and ineffective. For this reason, a new legislation was introduced last June. This means, that from the beginning of next year applications for leave to appeal which are considered manifestly ill-founded can be dismissed by a single justice of The Supreme Court. We expect, that this reform makes it possible to further rationalize the proceedings in The Supreme Court and to allocate our resources more effectively to our main function, the case-law guidance.

4.Concluding remarks

Returning finally to the theme of the panel: what does double filtering system, as just described, mean in terms of the quality of justice? Does it lead to a more effective justice?

In the field of economics, it has been said, that efficiency means doing things right, whereas effectiveness means doing the right things. I am convinced that in a modern, complex society quality of justice needs both. But it is important to keep this distinction in mind when discussing the roles of each instance in the court system.

For obvious reasons, relating to resources of courts, efficiency is primarily the responsibility of the lower courts. Their basic function is to secure legal protection for the parties by doing things right. The possibilities of The Supreme Court to be efficient in this way, by controlling the validity of judgments of lower courts, are much more limited. Instead, the role of The Supreme Court is to facilitate the task of lower courts through case-law guidance. And I am quite convinced, that precisely this way, by doing the right thing and fulfilling its function as a court of precedent as well as possible, The Supreme Court can bring effectiveness to the court system as whole.

Understood in this way, effectiveness of the appellate system clearly presupposes some sort of filtering mechanism. But the existence of a filtering system is not enough. To be effective it must also function as planned. In a double filtering system like the one in Finland and Sweden this requires above all that lower courts are efficient by doing things right: It is crucial that the decisions of first instance courts meet sufficient quality standards and the courts of appeal control this appropriately in their filtering proceedings. If this process fails and The Supreme Court needs to intervene and remit the case back to the court of appeal, the benefits of the filtering are lost.

Consequently, my answer to the question of this panel is the following:

Quality of justice presupposes efficiency in the lower courts and effectiveness in The Supreme Court. The Supreme Court cannot be effective, if lower courts are not efficient by doing things right. And lower courts can be more efficient, if The Supreme Court is effective by doing the right thing and produces high quality precedents on relevant issues of law. This it cannot do properly without a well-functioning filtering mechanism. With these preconditions, filtering cases to The Supreme Court can lead to a more effective justice.

Abstract

Legal issues are growing in number and becoming more and more complex. When financial resources of the courts remain scarce, it is essential, that resources at hand are used as rationally as possible. Effectiveness of court system requires, that appellate courts can concentrate their work on cases which genuinely call for their attention.

Finland has a three-tier court system: the courts of first instance (district courts), the courts of appeal, and The Supreme Court. Each instance has clearly separate roles in the court system. The main purpose of filtering mechanisms is to support and maintain this differentiation of functions. Consequently, filtering is adopted in both levels of appeal proceedings.

The function of the first stage appeal is to supply the parties with legal security and protection: Its aim is to guarantee and control, that the outcome of the first instance judgment is correct. Accordingly, the idea of filtering at this stage is to sort out cases that clearly do not deserve re-examination. There is one important exception to this basic idea: irrespective of the validity of the first instance ruling, a leave to appeal must be granted also if it is important to re-examine the case in view of the application of the law in similar cases. This provision is designed to ensure that cases of precedential value are recognized already in the courts of appeal and reach The Supreme Court.

The filtering system is extensive already at this first stage: it covers all civil cases. Criminal cases are covered if the imposed sentence is heavier than 8 months of imprisonment. If a leave to appeal is denied in a court of appeal, a further appeal to the Supreme Court is available if the statutory grounds for leave to appeal to The Supreme Court are present.

The role of The Supreme Court is fundamentally different: It is a court of precedent. Its basic function is to deliver precedents in cases involving points of law. Consequently, in The Supreme Court filtering applies to practically all kinds of cases. Leave to appeal is granted, if any of three statutory grounds is satisfied. By far the most important one is the ground of precedence. This ground is present, when ruling of The Supreme Court is needed for the proper application of law.

Annually, only less than 7 % of applications pass the test for a leave to appeal. More than 80 % of leaves are granted on the ground of precedent. Thus, less than 20 % of the leaves are granted on other grounds than precedent. A leave to appeal can also be limited to a certain part of a case, for example to a specific claim in the petition or even to a particular legal question concerning a certain claim

When considering whether a leave to appeal should be granted or not, The Supreme Court is not, unlike the courts of appeal, primarily interested in whether the lower court has managed to reach the correct outcome in the case at hand. Instead, in order to pass the test for a leave to appeal, the case itself must bear some precedential value for future interpretation of law.

The filtering system in The Supreme Court has proved to be an indispensable precondition for the court’s function as a court of precedent. Case selection by means of filtering has enabled the court to direct its resources to cases of precedential value.

In the field of economics efficiency means doing things right whereas effectiveness means doing the right things. In a double filtering system like the one in Finland quality of justice needs both efficiency in the lower courts and effectiveness in The Supreme Court. This requires that the lower courts are efficient by doing things right: It is crucial that the decisions of the first instance courts meet sufficient quality standards and the courts of appeal control this appropriately in their filtering proceedings. The Supreme Court can facilitate their task and bring effectiveness to the court system as whole by doing the right thing and fulfilling its function as a court of precedent as well as possible. This it cannot do properly without a well-functioning filtering mechanism.

Jukka Sippo
Justice of The Supreme Court of Finland