Politicizing Constitutional Review
In July, the Finnish Parliament passed the Act on Temporary Measures to Combat Instrumentalised Migration. The Constitutional Law Committee, a Parliamentary organ in charge of ex ante constitutional review of legislation, greenlighted the Act despite the fact that all of the 18 legal experts it consulted found it to be in conflict with the Constitution, human rights obligations and EU law. This sparked a discussion about the politicization of the Committee and the role its experts play both in the Committee and the media. In this blog, I argue that the Committee’s politicization is visible in how it dressed political arguments as legal when assessing the law.
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Legalising Illegality
Following Russia’s on-going facilitation of migrants to the Finnish border since last fall, Finland’s newly formed right-wing coalition government has closed the eastern land border indefinitely on 4 April 2024. Worried that this step will not be enough to ensure national security, the government is finalising a Draft Act on Temporary Measures to Combat Instrumentalised Migration, currently under revision.The draft bill allows for pushbacks in violation of non-refoulement and openly admits a conflict with Finland’s human rights obligations, EU law and own constitutional system, which is unusual. The unprecedented nature of the proposed measures is particularly worrying given that the Act appears unlikely to effectively address the essentially political problem that “migrant instrumentalisation” poses.
Continue reading >>Rallying under a Nazi Swastika Flag
On April 5th, 2024, the Helsinki Court of Appeal held that rallying under a Nazi swastika flag constituted an offense of incitement to hatred, namely, agitation against a group of population. Contrary to German law, Finnish law does not include any specific prohibition of symbols of this kind. It therefore leaves it open under which circumstances the public use of symbols such as those linked with the Nazi regime in fact constitute a criminal offense. Against this background, the Court of Appeal’s conclusion is to be welcomed. Had the outcome been different, this would have triggered a set of difficult questions of how to amend the regulatory framework in order to address this issue. The judgment may, however, still be appealed.
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The EU’s Eastern Border and Inconvenient Truths
The Russian invasion of Ukraine in February 2022, alongside with the EU’s confrontation with Russia’s ally Belarus, however, has deeply impacted the securitisation of migration within the EU. Highly politicised conflict-related securitisation narratives have rarely found their way so swiftly into Member States’ domestic migration and asylum laws, leading to open and far-reaching violations of EU and international human rights law. Hardly ever before have ill-defined concepts and indiscriminate assumptions been so broadly accepted and used to shift from an individual-focused approach to blanket measures stigmatising, dehumanising and excluding entire groups. And rarely before have radical changes of this kind received so little criticism - a deeply unsettling and dangerous trend.
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A Borderline Case
On 28 November 2023, Finland decided to close all its land border crossing stations to Russia due to the latter's apparent instrumentalization of migrants. That a foreign power, which conducts war elsewhere in Europe, directly engages in unfriendly acts against the EU’s (as well as NATO’s) eastern flank highlights the issues of national security involved. The situation is part of a broader European dilemma but presents certain idiosyncracies. How is an EU Member State such as Finland, respectful of the rule of law, to respond to such unfriendly acts which intrumentalize the vulnerable position of asylum seekers whose rights must, in principle, be observed at all times? This brief post addresses some of the legal issues involved in the currently unfolding situation.
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Watchdog Watching Too Closely
In December 2017, readers of the largest and maybe also the most esteemed Finnish newspaper, Helsingin Sanomat, were surprised to find an article which, among others, showed excerpts of classified, red-labelled documents. Very little was publicly known about the workings of that special center, part of the military intelligence, situated in a faraway resort. More than five years later, on January 27th, 2023, the Helsinki District Court found both of the journalists guilty of criminal disclosure charges. Put simply, the court’s decision is that media may report abuses of power. However, an interest to attract readers only is not enough to justify the disclosure.
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Nature Restoration and Fundamental Rights
This year’s most heated topic of constitutional contestation in Finland is likely to be the Commission’s recent proposal for nature restoration. While nature restoration has an innocent sound, the matter actually involves a broad spectrum of constitutional issues. In this debate, political undesirability has turned into claims about the EU’s lacking competence in regulating forests and a general failure to respect the principle of subsidiarity. Last Friday the Finnish Parliament’s Constitutional Law Committee approved an interesting statement of principle, which is likely to affect the country’s stance on EU (fiscal) integration far beyond the question of nature restoration.
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Is Finland Joining the Backsliding Trend in Europe?
New laws have just been adopted by the Finnish parliament that would be extremely dangerous tools in the hands of a cynical government with a right-wing-populist and/or kleptocratic agenda. As the composition of the current Government is left-green-centre, some people will dismiss my concerns. The plain facts, however, give rise to worries: parliamentary elections will be held in April 2023, both large opposition parties, the populist True Finns and the Conservatives, effectively took ownership of the parliamentary consideration of the Bills in question, and the prevailing political rhetoric now is full of slogans that echo Donald Trump rather than the voices of human rights. There is good reason to be on high alert.
Continue reading >>On Finland with Love
This contribution briefly unpacks the relevancy of the East/West intersectionality Finland represents for us today. The pragmatic manner in which the Finns have dealt with Russia – in all its previous versions, white, red or “federal” – is instructive in understanding the limits of moral, economic and physical power when facing a neighboring country that will most probably never be trusted, loved or changed, by outsiders.
Continue reading >>Securitizing asylum seeking in speech and practice in Finland
The presence of a strong security paradigm in Finnish migration law, policy and court practice is not a new phenomenon. What has become most prevalent is the securitization of asylum seeking. For a long time, this speech has not turned into practice, but this may soon change, in response to the migration influx after 2015 and in the Belarussian context.
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Between European Commitment and ‘Taking the Law Seriously’
On 27 April 2021, the Constitutional Law Committee of the Finnish Parliament adopted its much-awaited opinion on the EU’s Own Resources Decision. It established that its approval requires a qualified majority and thus a significant bulk of votes from the opposition, which has been highly critical of the package. Now, for many MPs, the situation creates an impossible dilemma between their European commitment and taking the law seriously.
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Finland: Soft measures, respect for the rule of law, and plenty of good luck
In mid-April 2020 Verfassungsblog published my first take on Finland’s response to COVID-19, under the characterisation 'Best Practice and Problems'. Into February 2021, Finland has remained one of the few European champions in combating the epidemic, with 9,423 cases and 131 deaths (both per one million inhabitants and by 18 February 2021). Notably, Finland’s success has not followed from strict ‘draconian’ measures but from a combination of factors that include at least geographical location; cultural patterns that support physical distancing and even isolation; a well-functioning healthcare system; a good level of compliance; comparatively good levels of vitamin D; and sheer luck which would be related to the first factor, geographical location.
Continue reading >>Serious Cyberattack Raises Questions About GDPR Application in Finland
After the personal data of thousands of patients was hacked from a privately-run psychotherapy centre in Finland, blackmailers are threatening to publish the data unless they receive a ransom. Because of the seriousness of this data breach, the case is likely to become a landmark in Finnish data protection law and a Europe-wide reference point for the application of GDPR rules in data breach situations.
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Who is ultra vires now?
For decades, and until a few weeks ago, Article 310 TFEU has been seen as prohibiting the EU from borrowing to finance its expenditure. The Commission’s Next Generation EU proposal reverses that interpretation and raises fundamental questions of EU law and its dynamic interpretation. With such a sudden change of heart, are the Member States under a duty to follow? What constitutional limits remain to their membership obligations?
Continue reading >>Constitutional Constraints meet Political Pressure
The Finnish Constitutional Law Committee had already in April adopted a critical position towards the COVID 19 crisis measures in the EU. Last week the Committee continued its critical examination. It came to the conclusion that the Eurogroup decision to essentially remove all conditionality from the new loan facility of the European Stability Mechanism (ESM) is incompatible with the Finnish Constitution and expressed serious doubts about its compatibility with EU law. The Committee also repeated its concerns about the accumulation of financial risks deriving from EU membership.
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Solidarity and Constitutional Constraints in Times of Crisis
While important, European solidarity cannot take place at the expense of safeguarding citizens’ economic and social rights under the Constitution of Finland. For this reason, the Finnish Government needs to remain alert to the risks involved in the increasing financial commitments given by Finland. Depending on their exact features, the constitutional problems relating to “corona bonds” might only be overcome by a risky and time consuming constitutional amendment procedure. This is the result of two days of deliberations by the Constitutional Law Committee of the Finnish Parliament relating to the euro group agenda dedicated to the COVID19 crisis.
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Is Travel to Syrian Warfare a Terrorist Crime? The Finnish Case
On 24 January 2018, the Helsinki District Court of 24 January 2018 ruled on an alleged plan by three Muslim men, all Finnish nationals, to travel to Syria and join the ongoing armed conflict there. The prosecutor chose to base the charges on Section 2, Preparation of an offence to be committed with terrorist aim, under the construction that joining the armed opposition forces in Syria so as to engage in hostilities against the official army of the al-Assad regime, could have resulted in death or injury to members of the Syrian military forces.
Continue reading >>Finnish Government and the Desire to Constitutionalize Mass Surveillance: Toward Permanent State of Emergency?
The Finnish Government intends to amend the constitution to clear the path for a NSA-type surveillance scheme. The form of constitutionalism that results from this kind of change would reverse the traditional grounds of legitimacy as set forth by the constitutions and human rights treaties: instead of providing one possible but narrowly interpreted ground for restricting right to confidential communications and protection of personal data, national security would occupy the position of a main rule while the constitutional right would wither away to a narrowly applied exception. In essence, the amendment would securitize one of the key fundamental rights of our time, and create a permanent state of emergency within it.
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Im Dutzend mehr Freiheit – mit Finnland gibt es bald in 12 europäischen Staaten die Ehe auch für Homosexuelle
Finnland macht in diesen Tagen das Dutzend voll im Kreis der europäischen Länder, die die Ehe auch für gleichgeschlechtliche Paare öffnen. Deutschland ist (noch) nicht dabei. Dies gibt Anlass zu einer kurzen Bestandsaufnahme.
Continue reading >>Soll sie halt ins Heim: Pflege für gelähmte alte Mutter ist kein geschütztes Familienleben
In unserer alternden Gesellschaft sind erwachsene Kinder, die sich um ihre kranken Eltern kümmern, zunehmend normal, und nicht nur das: sie sind auch eine sozialpolitisch dringend benötigte und ziemlich kostbare Ressource. Der EGMR hat heute eine Kammerentscheidung verkündet, die dieser Entwicklung Hohn spricht.
Continue reading >>Languages and EU law discourse: A view from a bilingual periphery
Typically, researchers go for impact; impact on other research, other legal practices along legal research, notably in the legislative, administrative and judicial branches. And the very idea of research includes the element of sharing – and sharing your results is easier if you are understood. In order to take part in the relevant discussions you need to go for two publication channels in parallel: national discourse and communication in foreign languages.
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