2. The Status of the Case-Law from the European Court of Human Rights in the National Legal Practice – a Question of the Local Legal Culture? East-Scandinavian Comparisons

  • Laura Ervo
Keywords: Comparative studies, critical legal positivism, East-Scandinavian countries, European Court of Human Rights, fair trial, implementation of human rights.

Abstract

Too often it has been taken for granted that East-Scandinavian countries, Finland and Sweden share similar societies, similar culture and even legal mentality. Very often there is a shared or similar jurisprudence, sometimes even identical single legal rules in Finland and Sweden due to the historical background, deep co-operation of Nordic legislators especially before the EU-memberships and because Finland has often copied the Swedish legislation. However, the interpretations and therefore the way of legal thinking varies between Finland and Sweden, in the other words, the legal culture in the neighboring countries are not identical. Swedish legislative culture is much more dialogic compared with the Finnish one. The Finnish way to “run things” instead of to discuss and reflect is the main difference between the Finnish and Swedish cultures of realizing things.

This might be one reason to the current difference that ECHR and case law based on it, is lively discussed by academics in Finland and easily followed by courts too, whereas this common law –based way of interpretation (the contents of the convention is developed by case-law and not amending the text) is not that familiar way to make legal changes in Sweden. Formally, the convention is valid and binding in both countries and that history is much longer in Sweden since 1959 whereas - mainly thanks to political reasons – Finland could join in the convention in the beginning of 90´s but the factual effects at least into the Finnish procedural law has been really enormous and very fundamental whereas in Sweden the ECHR and its article 6 are not the main factors in the procedural law.

In this article, the status of the case-law from the European court of human rights is compared with East-Scandinavian countries.

Published
2018-11-25