The Commission to inquire into the development trends of the court system in Finland, appointed by the Government, has examined how the Finnish court system can respond to the new challenges facing it. The Commission, chaired by Court of Appeal President Markku Arponen submitted its Report of almost 800 pages to Minister of Justice Johannes Koskinen on 16 December 2003.

The Commission notes that the basic task of courts is the resolution of legal disputes and conflicts. The position of District Courts and Administrative Courts has to be strengthened. The versatile knowhow and professional skills of judges and counsel have to be guaranteed. The judicial career has to be opened also to applicants from outside the judicial system and the work of attorneys and trial counsels should be made subject to permission.

Reforms are also proposed to speed up trials and to curb litigation costs. The openness of trials should be increased. The system of lay judges would be maintained, but changes are proposed in the scope of participation of the lay judges, their right to vote and their selection process.

The scanty majority of the Commission would transfer the central administration of courts from the Ministry of Justice to a new central administrative agency. The Commission proposed a more professional management of courts.

The courts to handle only matters requiring a trial

The Commission emphasises that District Courts have to concentrate on their basic task, the resolution of legal disputes and conflicts.

The Commission would transfer registration matters pertaining to real property from the District Courts to administrative authorities, e.g. to Local Register Offices or the Land Survey Agency. Undisputed monetary claims should, in the opinion of the majority of the Commission, be handled by the enforcement authorities.

In the opinion of the Commission, the transfer of decision-making power to the police and prosecutors in criminal matters should be approached with reservations. An extensive increase of the decision-making powers of the prosecutor and the police would pose problems as regards protection under the law and fundamental and human rights.

The competency of Administrative Courts is dealt with the proposals on increase in availability of legal protection in administrative dead-angle areas resulting from the privatisation of administration or the non-functioning of an authority.

District Courts to be re-enforced

In order for the focus of the administration of justice to be in the District Courts more than is the case at present, the parties’ protection under the law in the District Court has to be improved. The Commission proposes that the deciding composition of the District Courts in complex civil and criminal cases have more professional judges on the bench.

The number of District Courts has been decreasing over the years and their unit size has been increasing. The Commission hopes that this development will be continued and intensified so that the future number of District Courts would be 30 – 40 instead of the present 63. Each Court should have a minimum of 8 – 10 judges.

After the strengthening of the District Courts, it should be considered whether the right to appeal against District Court judgement could be restricted for example on points of fact.

On the other hand, the deciding composition of Administrative Courts should be lightened in certain simple issues.

No need for new special courts

The Commission does not consider that there is any need for the establishment of new special courts or the expansion of their competence. In the long run, plans should be laid for the integration of the Insurance Court and the cases dealt with therein to other courts. Also the part-time members nominated by different interest groups should be eliminated in the Insurance Court. The Commission, in general, views the use of expert members in the courts with reservation.

Attention to the viewpoints of customers in the development of judicial procedure

Even though there is no need in sight for extensive reforms of the judicial practice, the procedures require continuous promotion. Especially the viewpoint of the customers of the courts should be better taken into consideration in the reform work, the Commission emphasises. The courts should for example better than at present inform the participants of the process at its different stages. Litigation should be made easier for the participants for example by utilising new technology in the process. The introduction of class action should be considered.

The litigation should be carried out so that people would feel that they have been able to participate in it from their own starting points and so that they have also been genuinely and equally heard.

To speed the handling of matters, the Commission proposes that matters could be transferred more flexibly from congested District Courts to those with lesser congestion. The legal remedies of the customer against delays should be improved.

In order to curb litigation costs and to lower the threshold of bringing an action, a fee schedule or a fee ceiling should be adopted for minor civil cases.

Reforms in the lay judge system

The Commission does not propose the abolition of the lay judge system. However, the participation of lay judges in the handling of criminal cases should be narrowed so that the lay judges would only participate in the hearing of aggravated criminal cases.

The individual vote of the lay judges should, in the opinion of the majority of the Commission, be abolished and the former system where the lay judges have a collective vote should be reintroduced.

The lay judges are at present selected by the municipal councils. The Commission considers that selection is in this way somewhat of a problem as regards the independence of the courts. The majority considers that the selection should be reconsidered from scratch. Also the courts should be able to participate in the selection process.

The Commission has also considered the extension of the lay judge system from the District Courts to Courts of Appeal and Administrative Courts. In the opinion of the majority, there is, however, no need for this.

The openness of proceedings should be increased

The openness of proceedings should be increased by reforming the legislation on the publicity of proceedings, by developing the internal openness of judicial procedure and by improving the quality of reasons.

The opportunities of the media to serve their purpose as the practical providers of procedural publicity should be promoted and the provisions of the publicity of court proceedings clarified. Special care should be taken that adequate openness of court proceedings is achieved also in written procedure. Nor should there be unnecessary variation in the openness legislation governing general courts and Administrative Courts.

The Commission proposes that the Supreme Court and the Supreme Administrative Court introduce brief oral hearings in cases of precedents so as to allow arguments on the legal issue at hand.

Also Administrative Courts should arrange considerably larger number of oral hearings than at present. Especially the procedural status of the administrative authority that has made the challenged decision should be clarified.

Trial counsels to be made subject to a license

The Commission proposes that the tasks of attorney and trial counsel could in general be carried out only by licensed persons. At present, the knowledge, professional skills and ethical readiness of trial counsels vary considerably even though the majority attends well to their tasks. The problems are evident especially in civil litigation.

Permission to act as an attorney or trial counsel would be granted when the person has a Master’s degree in law, a sufficiently long work experience and he has passed a special attorney and counsel examination. The present Bar examination would not be sufficient, because the new exam would concentrate especially on the capacity of the examinee to perform faultlessly in court. The license would require regular participation in continued training. The license holders would also be monitored more closely than at present. The applicability of the license system to Administrative Courts should be considered separately.

At the same time, the qualifications of attorneys and trial counsels would be tightened. An attorney or counsel in a general court would require a Master’s degree in law. Relatives could, in the future, act as support persons in the trial, not as counsel.

Advise and conciliation to be developed

In its Interim Report, the Commission proposed a strengthening of legal advisory services. Different fields have a variety of advisory services as well as various bodies solving conflicts. According to the opinion of the Commission, a nationwide advisory service would be necessary to provide advice on the selection of possible remedies.

An important long-term project is the possible establishment of a broad network of legal service centres, based on inter-authority co-operation, covering the entire country and offering a variety of legal services and support (legal service centres). They would ensure the availability of advisory services throughout the country. Their technical facilities – for example video conference equipment – could in the future be utilised also in litigation.

Advocates and other attorneys should, more carefully than at present, look into the possibility of settlement before a civil action is brought before a court, emphasises the Commission.

The Commission considers the further development of conciliation and its co-ordination with traditional litigation to be one of the central focus areas of the courts. The promotion of conciliation in courts requires training of the judges in conciliation skills and possibly also the specialisation of some judges in this type of work.

The professional skills and competence of judges to be ensured

The systems of appointment and training of judges have to be constructed so that they produce judges with pre-eminent competence among lawyers in the field of dispute and conflict resolution, emphasises the Commission. What is especially important is the varied work experience of judges.

The judicial appointments procedure must be developed to open the career also to those from outside the judicial system. The majority of the Commission further considers that, in the short term, it may be necessary to impose a quota on judicial vacancies only to be filled with persons not in service with the courts.

For this reason, the Commission does not support the proposed judicial training system; it is to be feared that training offered only to selected persons in the first stages of their legal career would contribute to the present system of judicial careers remaining closed.

Instead, the educational content of judicial traineeship should be improved. Persons appointed as judges should also be offered further training on the basis of their individual needs. Also the courts should pay more attention to supplementary training and learning on the job.

The referendary system would be abolished in all courts. The Commission proposes its replacement with law clerks, who would not have an independent role in deciding the case but who would assist the judges in the preparation of the case.

The Commission proposes the establishment of a Judicial Supervisory Board. The Supervisory Board could criticise the actions of a judge or issue a reprimand to a judge. The Board would also in general further the content of good judicial practice. In the long term, the establishment of the Supervisory Board would make it possible to discontinue judicial supervision by the general overseers of legality.

The majority supports the differentiation of central administration from the Ministry of Justice

Also the central administration of the court system requires a reform. The central administration has to have a unit with sufficient resources concentrating on the development, research and support of the management of courts, considers the Commission.

With a majority of one, the Commission considers that a separate central administrative agency should be established for the administration of the courts. A central administration separate from the Ministry of Justice would emphasise the independence of the courts, which would also increase the trust the courts enjoy. In addition, it would allow the judges and other personnel to participate more closely in the development work of the courts. Corresponding solutions have, in the last few years, been made also in the other Nordic countries.

The minority of the Commission considers that there is no need for a central administrative agency separate from the Ministry of Justice. It would be sufficient to enhance the present system by establishing a specific court development unit within the Ministry of Justice.

The Commission also emphasises the importance of the management and leadership of courts for the success of their work. Especially the personnel management of the courts should be promoted. The Commission proposes an inquiry into whether the chief judges should be appointed for a fixed period.

Chairman of the Commission, President of Court of Appeal Markku Arponen, tel. +358 40 700 2361 or +358 17 243 200,
Vice Chairman of the Commission, Justice of the Supreme Administrative Court Heikki Kanninen, tel. +358 9 18 53340,
and secretaries, Senior Administrative Officer Antti Savela, tel. +358 50 3020 663 or +358 8 3137 515
as well as Senior Judicial Secretary of the Supreme Administrative Court Anne Niemi, tel. +358 9 1606 9316

The Final Report of the Commission is available in electronic form at www.om.fi/23391.htm. The Appendix (in Finnish) is found at http://www.om.fi/24983.htm
The Interim Report is found at http://www.om.fi/17978.htm
The Report is sold by Edita Publishing Oy, tel. +358 20 450 00.