Government did not act unlawfully in revising the district courts network
In the assessment of Ombudsman Riitta-Leena Paunio, the Council of State (i.e. Government) did not follow unlawful procedure when it issued a decree on court districts and their amalgamation. This meant the de facto establishment of some district courts and the abolition of others.
The District Courts Act empowers the Council of State to issue decrees on the territorial areas within which these courts have jurisdiction. Therefore there is no legal ground for the view that it lacked the relevant power. It is true, in the Ombudsmans view, that the authorisation is not couched in particularly precise terms, but it does meet the requirements of the Constitution.
The Ombudsman noted that the Council of States power to demarcate court districts is established in practice and the practice has been generally known. This power has included the possibility of amalgamating court districts and establishing new ones or abolishing others.
It has been possible to implement changes in the district courts network without the input of the Eduskunta, because the Act does not mention district courts nor regulate their number or the localities where they sit, with the exception of district courts with the power to deal with certain special categories of cases. District courts are the only courts of law that have not been set up through an Act. The establishment and abolition of courts of appeal and administrative courts require an amendment of legislation.
It would be desirable to enact legislation on the development of district courts
Nevertheless, there are problems associated with establishing and abolishing district courts through the instrument of decrees. The Constitution requires that the general principles governing the bodies of State administration and significant arrangements of this administration be regulated by an Act. When the Constitution was being enacted, several prestigious experts consulted at hearings by the Constitutional Law Committee recommended that the organisatory independence of courts be taken better into account in the Constitution.
In the view of the Ombudsman, it would be desirable for legislation regulating the development of the district courts network to be enacted. She has recommended that the Council of State consider whether it should introduce legislation in which the district courts beginning their work on 1.1.2010 are mentioned on the level of an Act. She has asked the Ministry of Justice to inform her, by the end of November, of any measures taken.
The Ombudsman adopted a position in the matter when she was contacted by a chief district judge, four district court judges, a land court engineer and a junior district court judge, who asked her to examine whether the Council of State had had the power to decide to abolish independent district courts through the instrument of a decree.
Additional information will be provided by Legal Adviser Pasi Pölönen, tel. +358 (0)9 432 3345.