The Role of the Supreme Court and Leave to Appeal in Finland

Dear colleagues,

It is a great privilege and an honor to speak in this conference which is held to celebrate the 30th anniversary of the Supreme Court of the independent Czech Republic. The importance of this milestone cannot be overestimated in Europe with a full-scale war under way in Ukraine. After a half century behind the Iron Curtain, a democratic Republic that respects the rule of law and fundamental rights has been built and enhanced. In this endeavour, the Supreme Court and other independent courts of law have played a crucial role.

Dear colleagues, I bring the warmest congratulations to your Court from our Court.

Introduction

The theme of this second panel is the role of the supreme courts in access to justice, in the context of the admissibility of cases for review by supreme courts. I have been asked to elaborate on the Finnish filtering system of cases in the Supreme Court of Finland.

Finland is one of the Nordic countries, and the Nordic countries have very similar legal systems and traditions. For example, none of the Nordic countries has a separate constitutional court. The constitutional functions are vested in the ordinary courts.

Regarding the Nordic procedural law, I would say that its roots are in the German procedural law but with a Nordic pragmatic twist. Within the Nordic countries it is also possible to distinguish between the eastern and western Nordic procedural law, in which Finland and Sweden form the eastern part. Hence, I will elaborate on the Finnish system, but the overall approach is similar in all Nordic countries, especially Sweden.

I will focus on the leave to appeal system in civil and criminal cases which are in Finland tried by the Supreme Court. I will make some remarks also on the somewhat different leave to appeal system in administrative law cases, falling under the jurisdiction of our sibling court, the Supreme Administrative Court.

In the Finnish procedural law, appeal to the Supreme Court is considered as an ordinary remedy, despite the strong filtering mechanism. The extraordinary remedies after a final judgement (res judicata) are outside the scope of my presentation.

Access to justice and the role of the Supreme Court

My starting point is that a leave to appeal system is closely linked to the role of a supreme court in a society. And the role of a supreme court cannot be determined per se in isolation. The supreme court is a part of the judiciary as a whole and it functions normally as the final instance, after the proceedings and a judgement in at least one lower instance.

As in many other countries, the court system in Finland consists of three instances in civil and criminal cases. The basic idea in Finland is that every instance should clearly be able to concentrate in its own task in the court system. This is for the benefit of the parties and the society. Superfluous appellate procedures would only cause delay and costs to the parties and unnecessary workload for the courts with limited resources.

In practice the most important courts for individuals are the first instance courts. In Finland these are the 20 district courts where everyday adjudication for ordinary people and companies takes place. The emphasis of court proceedings must lie in the first instance and already their work has to be of high quality. One cannot underline enough this work as the proceedings and the reasoning of the first instance form also the basis for the appellate procedure, if a party appeals to a higher court.
The second instance courts, in Finland the five courts of appeal, have an important but supplementary task to guarantee the quality of adjudication in individual cases. They have to control and, if needed, correct potential errors in the proceedings or in the judgements of district courts.

From the point of view of individual access to justice these two instances are normally sufficient. In Finland it has not been considered necessary that also the Supreme Court should for the third time ensure the correctness of the outcome and rule on the merits in each individual case. The Supreme Court is the third instance, it is not the third first instance nor the second second instance. As Justice Sippo puts it: “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.”

For over 40 years the Supreme Court of Finland has functioned as a court of precedent. The Court´s main task is to rule on points of law in cases with more general precedential value. This role was established in 1980 by the current leave to appeal system which I will later describe in more detail. In the 1970s when there was not such an efficient filtering system, the workload of the Supreme Court was excessive resulting in backlog of cases.

Naturally, this three-instance system is in full conformity with the European and international standards. Article 6 in the European Convention of Human Rights guarantees an access to court and a fair trial. But once a party has had his or her fair trial at a first instance court it does not guarantee a right to appeal against the judgement.

Right of appeal in criminal matters is guaranteed in Article 2 in Protocol No. 2 to the Convention, as well as in Article 14 (5) in the UN Covenant on Civil and Political Rights. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law. In addition, this right may be subject to exceptions stipulated in the article.

The right to appeal is guaranteed in Section 21 of the Constitution of Finland. This section provides that everyone has the right to have a decision pertaining to his or her rights or obligations reviewed by a court of law. Provisions concerning the right of appeal shall be laid down by a Parliamentary Act. The leave to appeal system in the Supreme Court is, of course, in conformity also with our Constitution.

Once there is a possibility to appeal against a judgement, the proceedings in the appellate court must meet the fair trial standards. However, according to the well-established case law of the ECtHR, these standards are not the same for the appellate procedure as they are for the first instance procedure. And the requirements of Article 6 are even more limited on a pure leave to appeal procedure in the highest court.

In the European Union, the starting point is the principle of procedural autonomy. The structure of a national court system and it´s filtering mechanisms are in the discretion of a member state. The national pluralism is wide in this area. However, as we know from the strong case-law of the ECJ, the principles of the rule of law, as well as the principles of equivalence and effectiveness, must be respected. The national court system as a whole must ensure judicial protection of an individual’s rights under EU law in accordance with Article 47 of the Charter of Fundamental Rights of the EU. Above all, the obligation of a court of last instance to refer a case to the ECJ for a preliminary ruling (Article 267 TFEU) must be fully respected in any national filtering system.

One may ask whether the Finnish Supreme Court as a precedent court has no role in upholding access to justice? Quite the opposite. We must distinguish between access to justice in a pending individual case and access to justice more generally in the society. In the former the role of the Finnish Supreme Court is limited but in the latter the role is very important. Precedents provide legal guidance for similar disputes in the future and aim to ensure that courts across the country interpret the law in the same way. This enhances access to justice for all the potential parties in similar situations. A clear precedent might for example mean that a potential litigation becomes completely unnecessary. At the same time the case-law of the Supreme Court contributes to the development of the legal system, alongside with the work of the legislature.

The leave to appeal in the Supreme Court of Finland

In almost all civil and criminal cases the Supreme Court of Finland is the third instance, and the leave to appeal applies to all these cases. However, the leave to appeal is applied also in commercial cases which are decided by the Market Court, and which are appealed to the Supreme Court as a second and final instance.

Leave to appeal is granted if one of three statutory grounds stipulated in the Code of Judicial Procedure (Chap. 30, Sec. 3) is satisfied. By far the most important ground for a leave is the ground of precedent. Leave to appeal may be granted if it is important to have the matter decided by the Supreme Court, with regard to the application of the law in other similar cases or because of the uniformity of legal practice. On other words, when ruling of the Supreme Court is needed for the proper application of law in the future.

Typically, this can be the case, when more case-law is needed in questions that are open to interpretation, or when new legislation raises new questions of law. One important area are cases involving EU-law or human rights and the impact of the rulings of European courts to national legal order. As the court of last instance, the Supreme Court has an obligation to grant a leave in cases where interpretation of EU-law is relevant. The Supreme Court has also in one case requested an advisory opinion from the ECtHR according to Protocol No. 16 to the Convention.

Secondly, leave can be granted also if there has been a procedural or other error of such gravity, that the judgment of court of appeal could be annulled or reversed by means of extraordinary remedies. And thirdly, a leave can be granted if there are other serious grounds for granting leave to appeal. 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 be granted without limitations in a case, but it can also be limited to a certain part of a case. Leave to appeal may be limited to 1) some of the parties in a case, or 2) a part of the decision of the court of appeal. In addition, leave to appeal can be limited even to 3) a particular legal issue in a case, the deciding of which is necessary in order to guide legal practice.

By granting a partial leave to appeal it is possible also within a single case to direct the examination of the Court solely to the questions that are important. On the other hand, the Supreme Court is an appellate court, and a leave to appeal can be extended to cover the assessment of facts also.
In addition to the aforementioned system, a decision of a first instance district court may be appealed directly to the Supreme Court, if both parties consent to this and the ground of precedent is present. This possibility is quite rarely used, and 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. Of roughly 2000 cases appealed only approximately 130 cases are taken to be ruled on the merits. And more than 80 % of leaves are granted on the ground of precedent.

Applications for leave to appeal are decided by a panel of two justices. If they disagree, a third justice is called in. Since a reform in 2019 applications for leave to appeal which are considered manifestly ill-founded can be dismissed by a single justice alone. This possibility has been used in approx. 30 % of the applications.

To sum up, when considering whether a leave to appeal should be granted or not, the Supreme Court is not primarily interested in whether the lower court has managed to reach the correct outcome in the case at hand. Instead, the case itself must bear some precedential value for future interpretation of law.

Other case filtering systems in Finland

The courts of appeal

In fact, the leave to appeal in the Supreme Court is not the only case filtering system in Finland. There is also a filtering mechanism in use in the courts of appeal, the so-called leave for continued consideration (Chap. 25 a, Code of Judicial Procedure). But the basic approach here is different.

As I stressed earlier, the function of the first stage appeal is to supply the parties with legal security and protection. It aims to control and guarantee 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 need re-examination. This is done by the courts of appeal controlling in more summary review proceedings that judgments rendered by the district courts are legitimate and sufficiently justified.

As a rule, leave for continued consideration shall be granted in a court of appeal if: 1) there is reason to doubt the correctness of the result of the decision of the district court; or 2) it is not possible, due to insufficient reasoning, to assess the correctness of the result of the decision. Hence, the focus is on the outcome of the case in hand.

There is one exception to this basic idea: a leave for continued consideration must be granted also if it is important in view of the application of the law in other similar matters. This provision ensures that cases of precedential value are recognized already in the courts of appeal and that such cases are not filtered out.

Already the filtering system in the courts of appeal is extensive: it covers all civil cases. Criminal cases are covered if the imposed sentence is no more than 8 months of imprisonment. But the threshold is much lower than in the Supreme Court. In more than half of these cases the leave is granted.

If a leave for continued consideration is denied in a court of appeal, a further appeal to the Supreme Court is available, if the Supreme Court grants a leave to appeal on normal grounds. This possibility is used quite often by the parties, but leave is rarely granted in the Supreme Court in these cases.

The Supreme Administrative Court

In administrative matters the court system in Finland is two-layered, with regional administrative courts as the first judicial instance and the Supreme Administrative Court as the highest court. The Supreme Administrative Court is not considered primarily as a court of precedent, although one of its functions is to rule on precedential questions in administrative law.

According to the main rule of the new Administrative Judicial Procedure Act of 2020, cases are subject to the requirement of leave to appeal in the Supreme Administrative Court. But the approach is a bit different here also.

According to Sec. 111 of the Act, leave to appeal shall be granted on the ground of precedent. But in addition, leave shall be granted if there is special cause for referring the matter for decision by the Supreme Administrative Court due to a manifest error that has occurred in the matter. Hence, the focus is more on the outcome of the case and the margin of discretion is narrower than in the Supreme Court.

Concluding remarks

I am pleased to be able to say that the leave to appeal system in the Supreme Court of Finland has worked well during the past decades and has fulfilled its purpose. The system has proven to be an indispensable precondition for the Court’s function as a national court of precedent. The case selection has enabled the Court to direct its resources to cases of precedential value. The Court has become a strong court of precedent and the Court´s case law has true impact in the legal community. We do not have a stare decisis doctrine in Finland, but the precedents of the Supreme Court are respected and followed in practice. This has been for the benefit of the Court and the society in general. And there has been no evidence of a negative influence on individual access to justice.

The numbers highlight this positive picture. Of roughly 2000 appealed cases per year the Court rules on the merits in around 130 cases per year, of which 100 are published as precedents. This limited number of proper cases means that the precedents can be drafted with the highest quality. And because there is no inflation of rulings they also draw a lot of attention in the legal community and society.

This also means that we can manage with relatively limited number of judges, only president and 18 justices. Also, the number of assistant judicial staff can be limited as we have a little over 20 legal referendaries. Hence, the Court is very compact and the uniformity of legal practice within the Court is not an issue at all. Also, a plenary session is fully manageable.

As a recent development I can mention that in June this year the Supreme Court has submitted a legislative proposal to the Government to further strengthen the precedential role of the Court. Firstly, according to the proposal, a district court or a court of appeal could request the Supreme Court to give a preliminary ruling concerning the application of law in a pending case. Secondly, the Supreme Court could directly rule on a legal question in a case in which a court of appeal has not granted a leave for continued consideration. In both cases the normal system of leave to appeal would apply in the Supreme Court. The future of these legislative proposals is still to be seen.

To conclude I would say that our leave to appeal system is the best one – for the Supreme Court of Finland. There are no one-size-fits-all-answers to these questions. A precondition for such a strong filtering system is that the first and second instance courts work well with a high quality, in accordance with their function in the court system. Also, a high level of public trust to the courts is needed in the society, and that luckily is the case in the Nordic countries. And the key is the intended role for the supreme court in a society.

My final thesis is this: If a national supreme court is intended to be a strong court of precedent, it should have a strong leave to appeal system with focus on the precedential value of cases. This is evident if you compare a supreme court with a lenient filtering system, thousands of rulings per year and hundreds of justices to a supreme court with a strong filtering system, fewer cases and fewer justices. And of course, a middle-ground can be found between these far-ends, with some kind of a mixed-system for filtering cases.

Thank you for your attention. On behalf of the Supreme Court of Finland I wish all the best success for the Supreme Court of Czech Republic also in the future.