Strasbourg, 16 January 2007

CCJE REP(2007)16
English only

Consultative Council of European Judges (CCJE)

Questionnaire for 2007 CCJE opinion concerning the Councils for the Judiciary: Reply submitted by the delegation of Finland

I. General context concerning the judiciary

1. No.

2.
Neither the government nor the Parliament as such has these rights. However, the Parliament appoints for a term of four years the Parliamentary Ombudsman, who “shall ensure that the courts of law, the other authorities, and the civil servants, public employees and other persons, when the latter are performing a public task, obey the law and fulfil their obligations”. “A decision to bring charges against a judge for unlawful conduct in office is made by the Chancellor of Justice or the Ombudsman”. (Finnish Constitution)

Only formally in connection to the appointment procedure of judges.

The career of a judge consists of several appointments of office made on the basis of a draft decision of the Council of State.

a) No, b) Yes, c) No

a) According to the Finnish Constitution judges are independent. The president of the Court cannot interfere in the decision making of a specific pending case assigned to a judge.

b) It depends on the size and internal organisation of the court. In some courts the president distributes the work between judges, in others it may e.g. be delegated to a head of a department. The distribution is carried out on a random basis with view to even distribution of workload and taking into consideration expertise required.

c) The president of a court has no disciplinary competence. Such a system was proposed by a Committee in 2006.

d) The president issues the court opinion, which provides a justified view as to which one of the applicants should be appointed to the vacant position in the court.

II. General concerning Councils for the Judiciary

No

8.
The Ministry of Justice is in charge of the general organisation and development of judicial administration in Finland. This is done through legislation and administrative measures of different kinds. Matters of judicial administration are presented by the Minister of Justice in the Council of State. The preparation and implementation of issues of judicial administration are the duty of the Department of Judicial Administration.

The Ministry of Justice (Department of Judicial Administration) is responsible for the practical functioning of the courts and of developing their activities. The courts are responsible for the administration of justice, that is for the practical implementation of the legal safety of the citizens.

An administrative authority cannot interfere in a specific case that is being considered by issuing administrative orders or instructions. This independence of the judicial authorities is supported by legislation making it impossible for an administrative authority to influence, even indirectly, the work of a judicial authority. For this reason judges enjoy absolute protection against unilateral termination. The independence of judicial authorities is based on the Finnish Constitution.

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10.
In 2000 the Finnish Judicial Appointment Board was created. Prior to that, duties in connection to judicial appointments were handled by the judiciary. For historical reasons there is no disciplinary system in place. Instead, charges against a judge for unlawful conduct in office are brought to a criminal trial. The Chancellor of Justice and the Parliamentary Ombudsman have a surveillance task in this context. The judiciary administration has been considered as a normal part of the state administration.

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V. Tasks

23.
a) Appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts: See answer to question 46.

Determining the number and location of judges or courthouses:
Courthouses are determined by act of law. The number of judges is determined in the state budget.

Determining the transfer of judges:
Constitution of Finland, Section 103: “a judge shall not be transferred to another office without his or her consent, except where the transfer is a result of a reorganisation of the judiciary”.
Act on Civil Servants: the appointing authority determines the transfer of a judge.

b) The Ministry of Justice is responsible for providing courses for judges and courts’ other staff. Courts may also arrange own courses for their staff.

The courts themselves provide the following continuous initial training which forms a path to become a judge:
A District Court recruits a young lawyer for a year lasting court traineeship. For those who wish to continue in the court career, this period is usually followed by an appointment as a law clerk at a Court of Appeal.

c) See reply below.

d) The independence of judges means that one cannot interfere in a specific case under consideration. The work of judges is evaluated only by Courts of Appeal and the Supreme Court through the cases brought to them by means of appeal. As regards administrative cases, the Supreme Administrative Court carries out such evaluations.

The court’s evaluation arises only in the appointment procedure explained in the reply for question 46.

During negotiations between the courts and the Ministry of Justice on the courts’ budget, the Ministry of Justice sets goals for each court on the quantity of judgments for the next year. This is not legally binding. Courts may further set non-binding general goals per each judge.

e) There is no disciplinary system in place. Instead, charges against a judge for unlawful conduct in office are brought to a criminal trial. A decision to bring such charges against a judge is made by the Chancellor of Justice or the Ombudsman, who also have the possibility to remark on the conduct of a judge in his office.

Furthermore, everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a judge performing a public task has the right to request that this judge be sentenced to a punishment. (Constitution)

If a judge fails to fulfil this duty, he/she shall be dismissed from office according to a court ruling. A judge may also be suspended from office or dismissed temporarily. Also this demands a court ruling. Provisions for such actions are laid down by Act on Civil Servants. Thus the requirements of the ECHR are fulfilled.

f) There are annual negotiations between the Ministry of Justice and each court before the Government proposal for the state budget is presented to the Parliament. The higher courts are allocated funds for their yearly needs in the budget. Other courts such as the Courts of Appeal and District Courts are allocated a lump sum in the state budget. This sum is divided between each court by the Ministry of Justice.

g) The Ministry of Justice is responsible for drafting laws concerning the judicial system. However, official committees are often established to assist especially in matters of substantial importance. These committees normally consist of representatives of different fields including judges. Usually the judiciary’s opinion on the committee report is requested before the Bill is submitted to the Parliament.

The Supreme Court and the Supreme Administrative Court have the right to submit proposals to the Council of State for the initiation of legislative action.

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29. No. However, historical guidelines for judges dated from the 16th century are still published as an introduction to the Finnish statute book.

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VIII. Countries without a Council of the Judiciary

45. Constitution: “the judicial powers are exercised by independent courts of law, with the Supreme Court and the Supreme Administrative Court as the highest instances”.

46. Act on Judicial Appointments (205/2000):

    Section 2 — Appointing authority
    In accordance with the Constitution of Finland appointments to tenured positions in the judiciary shall be made by the President of the Republic, on the basis of a draft decision submitted by the Government.

    Section 4 — Exempt positions
    (1) The following positions shall be filled without first being announced as vacant:
    (1) President of the Supreme Court and Justice of the Supreme Court; and
    (2) President of the Supreme Administrative Court and Justice of the Supreme Administrative Court.

    Section 6 — Judicial Appointments Board
    (1) For the purpose of filling positions in the judiciary, other than those referred to in section 4, there is an independent Judicial Appointments Board, whose task shall be to make preparations for the filling of positions and to make a reasoned proposal on an appointment to a position in the judiciary; the proposal shall be delivered to the Government in order for the draft decision on the appointment to be presented to the President of the Republic.
    (2) Upon a request from the proposing Court, the Judicial Appointments Board may issue an opinion in a matter pertaining to an appointment as a Justice of the Supreme Court or the Supreme Administrative Court.

    Section 17 — Temporary appointment to certain senior judicial positions
    (1) The President of the Republic shall make temporary appointments to positions in the Supreme Court on the proposal of the Supreme Court, and temporary appointments to positions in the Supreme Administrative Court on the Proposal of the Supreme Administrative Court.
    (2) The Supreme Court shall make temporary appointments to the positions of President of a Court of Appeal, Chief Judge of the Insurance Court, President of the Labour Court, Chief Judge of the Market Court and Chief Judge of a District Court. The Supreme Administrative Court shall make temporary appointments to the positions of Chief Judge of an Administrative Court.

    Section 18 — Other temporary judicial appointments
    (1) The Supreme Court shall make temporary appointments, for durations of one year or more, to the positions of Justice of a Court of Appeal on the proposal of the Court of Appeal, District Judge and Judge-Engineer on the proposal of the Chief Judge of the District Court or District Court operating as a Land Court, and Insurance Judge on the proposal of the Chief Judge of the Insurance Court. (1183/2000)
    (2) Temporary appointments, for durations of less than one year, shall be made (1) by the President of the Court of Appeal, to the position of Justice of the Court of Appeal, for durations of two months at the most, and by the Court of Appeal, to the position of Justice of the Court of Appeal, for durations of more than two months;
    (2) by the Chief Judge of the District Court, to the position of District Judge or Judge-Engineer. (1183/2000)
    (3) The Supreme Administrative Court shall make temporary appointments, for durations of one year or more, to the positions of Administrative Court Judge. Temporary appointments to the positions of Administrative Court Judge, for durations of less than one year, shall be made by the Chief Judge of the Administrative Court, for durations of two months at the most, and by the Administrative Court in question, for durations of more than two months.
    (4) Other temporary appointments shall be made by the court in question.

    Section 10 — Opinion of the court
    (1) The opinion of the court in a matter pertaining to an appointment to a position in the judiciary shall be issued by:

      (1) a Court of Appeal, as composed of the President, the Senior Justices and two other members elected by the plenary session of the Court of Appeal for one year at a time;
      (2) the management group of an Administrative Court;
      (3) the Insurance Court, as composed in accordance with the provision in section 5(4) of the Insurance Court Act (14/1958);
      (4) the Chief Judge of a District Court, after having heard the District Judges or the management group; and
      (5) the President of the Labour Court.

    (2) The opinion of the court shall provide a justified view as to which one of the
    applicants should be appointed to the position.

47.
a) The Judicial Appointments Board

b) Section 7 — Term and composition of the Judicial Appointments Board
(1) The term of the Judicial Appointments Board shall be five years at a time.
(2) The Judicial Appointments Board shall be chaired by the member nominated by the Supreme Court; the member nominated by the Supreme Administrative Court shall be the vice-chair. Otherwise, the Board shall have as members one President of a Court of Appeal, one Chief Judge of an Administrative Court, one Chief Judge of a District Court, one Senior Justice or Justice of a Court of Appeal, one District Judge, one Administrative Court Judge, another Administrative Court Judge or a Judge from one of the special courts referred to in section 1(2)(6)–(8), one Advocate, one Public Prosecutor and one person representing the research and teaching of law. Each member shall have a personal alternate. (1183/2000)
(3) The Government shall designate the Judicial Appointments Board once

    (1) the Supreme Court has nominated the member and alternate member from
    among itself;
    (2) the Supreme Administrative Court has nominated the member and alternate member from among itself;
    (3) the Presidents of the Courts of Appeal have nominated the member and alternate member from among themselves;
    (4) the Chief Judges of the Administrative Courts have nominated the member and alternate member from among themselves;
    (5) the Supreme Court has nominated members and alternate members from among the Chief Judges of the District Courts, the Senior Justices or Justices of the Courts of Appeal, and the District Judges, on the basis of expressions of interest;
    (6) the Supreme Administrative Court has nominated members and alternate members from among the Administrative Court Judges and Judges of the special courts, on the basis of expressions of interest;
    (7) the Finnish Bar Association has nominated members and alternate members to represent the profession of advocacy;
    (8) the Prosecutor-General has nominated members and alternate members to represent the public prosecutors; and
    (9) the Ministry of Justice has nominated members and alternate members to represent the research and teaching of law.

(4) For the member and alternate member nominations referred to in subparagraphs (3)(5)—(3)(9) above, the number of nominees shall be double that of the members or alternate members to be designated. Before making the nomination referred to in subparagraph (3)(9), the Ministry of Justice shall hear parties representing the research and teaching of law.
(5) The Government shall accept the resignation of a member and an alternate member; at the same time, in accordance with the procedure for the designation of the Board, the Government shall designate a successor for the remainder of the Board’s term.

d) See reply to question above.

e) See reply to question 46.

48. See answer to question 23.

49.
This matter was dealt with in Committee report n. 2003/3 (for details see http://www.om.fi/Etusivu/Julkaisut/Julkaisusarjat/Komiteanmietintoja/Komiteanmietintojenarkisto/Komiteanmietintoja2003). The members if the Committee as well as opinions received on the report were both for and against the creation of a Council of the Judiciary. The matter is still under discussion, but no measures have yet been taken for drafting legislation.



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