Browsing by Subject "juridik"

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  • Helenius, Dan (Suomalainen Lakimiesyhdistys, 2014)
    CRIMINAL JURISDICTION This thesis deals with the criminal jurisdiction of states. Legal examinations of the topic have been somewhat fragmentary in the Nordic legal community. The focus has rather been on certain sets of problems than comprehensive systematization. This can be seen in contrast to legal doctrine, especially in Germany. As the thesis deals with construction and systematization, it has a clear legal dogmatic character. However, the analysis is not directed at a particular country s legal system, but rather at criminal jurisdiction as a general legal phenomenon. This also requires elements of legal comparison. The comparative method used can be characterized as functional comparison, with the Finnish, Swedish, Danish and German legal systems to the fore. Chapter 2 analyses criminal jurisdiction in a broader legal context. In order to get a comprehensive picture of criminal jurisdiction, one must take into consideration the interplay between questions of jurisdiction and questions that relate to other legal areas with an international character. The concept of international criminal law is often used to indicate the totality of norms that regulate a state s criminal jurisdiction. However, this can be considered misleading. Rather, it is warranted to use the concept of international criminal law as an unspecified collective term for norms that have a certain functional relationship. Given this understanding of the concept, one can generally distinguish four separate areas: the law of criminal jurisdiction, international legal assistance in criminal matters, supranational, including European, criminal law, and international offences. When examining the collective term international criminal law, one must consider the numerous points of contact between these separate areas and, indeed, places where they overlap. The meaning of criminal jurisdiction is examined in chapter 3. The purpose is to provide a structure and an understanding of the scope and legal implications of the law of criminal jurisdiction. The concept of jurisdiction usually refers to the exercise of state power in some form. This exercise of power can refer to the relationship between states and individuals as well as the relationship between states. Consequently, the law of criminal jurisdiction has a national as well as an international dimension and there is a continuous process of interaction between these dimensions. The law of criminal jurisdiction also has a dual legal character. The law of jurisdiction has a material as well as a procedural side. The concepts used to indicate these components are penal authority and judicial authority. Penal authority refers to the state s claim on criminal appraisal of certain determined circumstances. Judicial authority, on the other hand, refers to the state s claim on realizing its penal authority. As long as national courts only apply national criminal law, the scope of a state s penal authority is the same as the scope of the application of its criminal law. By legislating on the scope of the application of national criminal law, the state, consequently, also establishes its penal authority. In order to understand the law of criminal jurisdiction, one must distinguish between these components. The question of how states legislate on matters of criminal jurisdiction is also examined. This leads to the question of the dogmatic position of the norms on jurisdiction as well as the question of the so-called factors of the scope of application encompassed in these norms. Legal doctrine is divided on these issues, and the thesis strives for a more thorough analysis of them. How one answers these questions has a direct implication for a set of other questions of criminal law, including the principle of legality, the principle of guilt as well as criminal intent and mistake. Chapter 4 analyses the bounds of criminal jurisdiction, primarily with regard to limitations stemming from international law. States usually claim jurisdiction not only with regard to offences committed within their own state borders, but also with regard to offences committed abroad. According to the opinion presented in the thesis, the limitations must be sought in the principle of nonintervention and the doctrine of meaningful connection stemming from this principle, both found in international law. The international principle of the sovereign equality of states entails a demand for states to respect each other s internal affairs. Sovereignty in a material sense encompasses a state s self-determination over its own internal affairs. These affairs also include a state s criminal policy. In a positive respect, the demand for states to respect each other s sovereignty gives states the right to determine their own internal affairs. In a negative respect, there also follows a prohibition not to intervene in the internal affairs of other states (the principle of nonintervention). Any interference with another state s right to self-determination has to be justified by reference to a meaningful connection that expresses an acceptable interest between the extraterritorial circumstance and the state that makes use of its power of criminal regulation. Generally, one can presuppose that the so-called principles of jurisdiction express such meaningful connections. In order to render it possible to examine these principles, one must make a distinction between national principles of jurisdiction and international principles of jurisdiction. National principles are the results of attempts to identify and systematize overall elements in the national rules on jurisdiction. Therefore, they have a descriptive function. On the other hand, the function of international principles is to establish constituently which connections the national legislator may refer to when extending the state s penal authority. Therefore, they also have a normative function. In the course of their development, international principles have become detached from national principles and have acquired an independent meaning as norms of permission in international law. They are based on and form typical examples of balancing a state s self-determination and the principle of nonintervention. As such, they facilitate the need of national legislators and judiciaries to conduct a new exercise in balancing these two interests in every single case. The scope and meaning of the individual principles of jurisdiction are also examined. Additionally, I also analyze certain other aspects of importance for the scope of the law on criminal jurisdiction, such as international immunity and international jurisdictional obligations. Chapter 5 focuses on a particular problem complex in relation to the law on criminal jurisdiction, namely, the question of overlapping jurisdiction and conflicts of jurisdiction. First of all, the state s unilateral regulation on jurisdiction inevitably brings about a situation in which the law on jurisdiction in several states can cover the same act. Secondly, international conventions and EU legal acts also result in jurisdictional networks that give states overlapping jurisdictional competence. The problem has been discussed intensively with regard to EU member states, which are presupposed to practice a close legal cooperation based on trust. The focus is, therefore, on conflicts of jurisdiction between EU member states. Conflicts of jurisdiction can have negative consequences for a state s measures regarding criminal procedure as well as for individuals that are thereby affected. Consequently, the question arises as to what degree it is possible to prevent and solve conflicts of jurisdiction. Different models and legal mechanisms exist for this purpose, and these are examined more closely. An appropriate model for the solving of conflicts requires above all a sufficient level of transparency and predictability.