Constitutional law in the Finnish courts and academia


Gained exceptional court victory on Thursday: our Supreme Administrative Court found last fall’s e-voting experiment unlawful and ordered new elections.

Some afterthoughts. The decision came after a vote. One judge out of five would have accepted the lower court’s opinion. A three judge panel of Helsinki Administrative Court said in January unanimously that losing 2% of votes cast was not critical and cited “state’s constitutional rights” as a legal argument to maintain flawed results. On this background, I feel disappointed the Supreme Administrative Court made a narrow legal decision, citing mainly paragraphs from the election statute and without discussing the constitutional rights basis at all. The decision’s value as a legal precedent is thus seriously limited.

Why? We did argue the constitutional basis of the case in length. We cited and quoted German Constitutional Court’s and European Court of Human Rights’ decisions. We cited and quoted Council of Europe’s report, with the basis on constitutional law. No impact. Nothing.

As a practicing lawyer, my own hunch is that constitutional rights remain a forbidden or worthless legal source in the Finnish courts. Any kind of more “practical” written source — be it parliamentary preparatory material, prior case or scholarly commentary — beats all constitutional law argument hands down. Our courts and judges are not prepared to assess constitutional law arguments as they require open pro & contra argumentation. These things were not teached at law school. These things cannot be learned from prior Finnish cases or tradition.

I am also sceptical that our courts would change their existing practice anytime soon. At the very same date we got the winning decision, I also received the latest issue of the leading Finnish law journal Lakimies. No matter our courts do not recognize constitutional rights, there are a bunch of academics writing about them and their application in every other issue in that particular journal alone. Once more there is a 20+ page theoretical piece assessing some high-level options (mainly parliamentary and judicial) to review constitutional rights. That article, like so many others in this debate, has absolutely no connection to the Finnish courts. The article is too theoretical and thick in academic jargon for anyone who tries to actually use constitutional rights arguments before the courts. Also, it gives no guidance for a judge who must face the question: how the hell do I write a legal opinion on a constitutional right argument without losing my credibility?

Next book in the works

I blogged already elsewhere on my new book on software law. Ok, actually it is a second revised edition, but to me it’s another new book.

The next one is already in the works. It will be about piracy. I will start roughly from home computers in the 1980s and the end in the PirateBay’s first instance judgment from Sweden and Finreactor-saga’s Supreme Court judgments from Finland. The book is not just about illegal copying but I will cover also cracking to some extent. I have no idea what the end result will look like. It may be legal, or more political. It will be in Finnish, and depending on the outcome I will continue with another — definitely more political — version in English.


By the way, the best book about the background of the recent piracy-related happenings in Sweden is Piraterna by Anders Rydell and Sam Sundberg. It’s main bias is a 100% Swedish-centric view of the earth — much like most American books on social and political issues. That said the book gave me an interesting “insider’s perspective” on how things have been going on there. I got the impression that most of the stuff they are famous for — Piratbyrån, The Pirate Bay, and Piratpartiet — share the common denominator they started as a sort of political response. Not from someone’s desperate need to share culture or experiment with new technology in the first place.

Also reading the book’s thesis that piracy will be Sweden’s major export for the information age gave me a backslash of how mobility was supposed to be Finland’s export… or hell, maybe it really came like that! Maybe we continue to get our content from a Swede-lead PirateBay ten years from now like we go with Nokia-phones today as we did in 1999?



Spent the afternoon in a demonstration against Lex Nokia or snooping law. Our mighty statement got to the front page of Helsingin Sanomat as pictured above. Pretty good for another bystander. It’s Herkko on the left, Vili in the middle, and me on the right.

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About the actual question: it seems to me that we have a trend towards increasing corporate privacy in the name of “business secrets” or “confidential information”. This law proposal essentially says that corporate privacy beats individual privacy. There is a sort of legal problem since corporate privacy is not a constitutional right while individual privacy is… Or used to be. We have also been witnessing the erosion of individual privacy in the face of all kind of unwanted behavior (to some corporate interests). Think file sharing as one recent example.

Trial by Press

Yesterday I filed three complaints on the Finnish electronic voting fiasco to the Helsinki Administrative Court. We demand new elections. About 2% of votes cast were not counted because of technical and usability errors. The complaint was mainly organized by Electronic Frontier Finland and I just took the public spot for being the counsel.

A critical issue in this kind of case has been winning the press coverage. Luckily our opponent, the ministry of justice, has not to this date acknowledged that they failed. Arrogantly, they have blamed the voters. Continuous requests by press corps have made them stop commenting on the issue anymore. My interpretation of their message was “sue us” or we do not do anything. So we sued.

In Finland some call you “top lawyer” when TV cameras are running when you file or receive papers from a court. This is what I kind of achieved yesterday. The leading newspaper Helsingin Sanomat published my opinion the other week, and this morning their editor calls for new elections based on our claims.

Why I had to close my Wifi?

Added a password to my Wifi network 5 mins ago. Reason: someone in the neighborhood was apparently leeching the last few days with such an intense that the basic browsing became extremely difficult. Now it’s full 10 megabits again — to me, myself, and I, that is. This is a good example of the well-known tragedy of commons.

Now hopefully the cops won’t raid my house and retain my equipment because some copyright sniffer has apparently already logged my ip numbers and called to my ISP for a physical address. I am litigating these cases all too often in the Finnish courts…