Whether a community is included or excluded from the scope of Article 11 of the European Convention of Human Rights has been misunderstood in Finland both in the drafting of legislation and in courts of law, according to a recent peer-reviewed article by Docent Matti Muukkonen, a University Lecturer in Public Law at the University of Eastern Finland. The matter is of importance, because if a community is not considered to fall within the scope of Article 11, compulsory membership in said community would not violate the Convention.
Published in Nordic Journal of Human Rights, the study shows that based on the case law of the European Court of Human Rights, which interprets the Convention, there are grounds for the Court to take a critical view of excluding Finnish student unions from the scope of the Article. This is despite the fact that, in the past, Swedish and British student unions have been regarded as public institutions or institutions under public law. In fact, more recent case law shows that the division between an association and a public institution seems to be based on whether the community is, for example, exercising control over a certain profession or whether or not the community is closely linked with public administration through, for example, collecting its membership fees as part of public taxation.
“In Finland, students’ compulsory membership in a student union has been debated for a long time. Most recently, in connection with the adoption of the Act on Health Care for Students in Higher Education, the Constitutional Law Committee required the Finnish Government to examine whether any conditions for compulsory membership still exist. According to a number of scholars of law, they no longer do,” Muukkonen says.
However, an Expert Working Group appointed by the Ministry of Education and Culture in 2021 came to an opposite conclusion. According to Muukkonen, one reason is that the Convention was not thought to pose any problems.
“However, this study now shows that idea to have been false, so Finland’s next Government will have to consider, already during government negotiations, whether compulsory student union membership should be abandoned,” Muukkonen says.
According to him, the observation is particularly relevant because, in associations covered by Article 11 of the Convention, compulsory membership is only possible if this is necessary in a democratic society.
“That is certainly not the case here,” Muukkonen says.
The study is available as an open access article at: https://www.tandfonline.com/doi/full/10.1080/18918131.2023.2192075
For further information, please contact:
Matti Muukkonen, Doctor of Administrative Sciences, Doctor of Laws, University Lecturer, Law School, University of Eastern Finland, matti.muukkonen (at) uef.fi, tel. +358 50 352 2394
Research article:
Matti Muukkonen. Finnish Student Unions as Associations in the Context of ECHR Article 11. Nordic Journal of Human Rights. 2023. https://doi.org/10.1080/18918131.2023.2192075