Faculty of Law


Recent Submissions

  • Schröder, Vilhelm (Helsingin yliopisto, 2022)
    My research has concerned the question of how trade secrets are and should be protected in European patent litigation. I have discussed the types of problems that may emerge in practice and how they can be resolved. The issues identified arise as a result of a tension between the legitimate interests of the patent holder on the one side and the trade secret holder on the other. During patent litigation, certain difficulties arise when a trade secret holder is under pressure to disclose a trade secret. One reason why a trade secret holder is usually not willing to disclose a trade secret during court proceedings is that trial documents and court hearings are, as a point of departure, public. The trade secret holder may also be reluctant to disclose the trade secret to the counterparty who may be a competitor. The current international and regional provisions related to the research topic are rather general and vague. As a consequence, it is not clear how much protection is to be afforded to the trade secret holder during patent proceedings and ultimately this will be a question for the national legislator and courts to decide. I have argued that the current situation is not satisfactory for the trade secret holder and that certain minimum standards should be included in international and/or regional instruments to increase legal certainty for the parties irrespective of the seat of the proceedings. The proposed minimum standards should inter alia give the courts the power to declare documents confidential in relation to the public, hold hearings behind closed doors (public excluded) and block the introduction of irrelevant trade secrets in the proceedings. Moreover, a confidentiality obligation should be in place for everyone to whom the trade secret has been disclosed in the proceedings. When contemplating how far trade secret protection can be taken in court proceedings, we need to bear in mind the rights to an effective remedy and a fair trial. As a rule of thumb, the more secret the proceedings are, the more one should pay attention to questions of fundamental rights. The exclusion of the public is usually less problematic compared to excluding the party or the party’s counsel from any part of the procedure or disallowing them to review trial documents. As a main rule, a party and the party’s counsel should have the right to review all trial documents and participate in every step of the oral hearing. The European patent system is currently under substantial reform. It is highly likely that the unitary patent and the Unified Patent Court will soon become a reality. I have therefore decided to discuss a few questions related to trade secret protection in patent litigation before the Unified Patent Court in light of the current provisions of the Agreement on a Unified Patent Court and the Rules of Procedure. This discussion will hopefully continue once the Unified Patent Court begins handing down its first rulings.
  • Almila, Elina (Helsingin yliopisto, 2022)
    Sexual violence against children in armed conflict is a phenomenon that takes place in armed conflicts around the world. It is a crime that is strongly condemned and has been defined by the United Nations Security Council as one of the six grave violations against children in armed conflict. Indeed, States, international actors and prosecutors argue for the protection of vulnerable children from sexual violence in armed conflicts. However, there seems to be a contradiction on the topic: while sexual violence against children has often received significant attention, at other times, international actors and institutions have failed to address it. In this thesis, I ask whether our understandings of childhood can explain these contradictions. I approach this question through the lens of influential conceptions of childhood. Relying on work conducted in critical childhood studies, I identify conceptions of childhood that have been dominant in relation to childhood sexual violence. These conceptions include that of the ‘evil child’, which has roots in Christianity; the ‘innocent child’, seen to be a creation of Jean-Jacques Rousseau; the ‘developing child’, stemming from developmental psychology; and, finally, the ‘sociological child’, a recent conception originating in childhood studies. Through these conceptions, my thesis seeks to unravel the ways in which understandings of childhood affect the ability of international law to deal with sexual violence against children in armed conflicts. I argue that these conceptions of childhood have influenced how sexual violence against children in armed conflicts has been handled in international law. In turn, understanding this influence reveals reasons behind the existing contradictions mentioned above. This thesis, therefore, examines ideas about childhood, their interpretations and how these ideas affect international law.
  • Matikainen, Teemu (Helsingin yliopisto, 2022)
    The topic of this research is registration of an EU trade mark on the basis of distinctive character acquired through use. In EU trade mark law, and in trade mark law in general, both internationally and nationally, it has traditionally been held that a mark which is descriptive or otherwise inherently devoid of a distinctive character in relation to the goods and services for which registration is sought may be registered as a trade mark on the basis of distinctive character acquired through use. In practice, this doctrine plays an important gatekeeping role in EU trade mark law. It decides whether certain marks – irrespective of their inherent imperfections – will be registered and protected. The research examines how well this doctrine functions in its current form. In order to answer this, it is necessary to clarify the purpose of this doctrine and the conditions under which a mark can become distinctive through its use. The method of this research is doctrinal with certain comparative elements. A comparative perspective is sought from British, German, American and to some limited extent from Finnish and Swedish law. In the study, it is argued that the registration of an EU trade mark on the basis of distinctive character acquired through use is in principle justified when teleological arguments are taken into account. However, this justification ultimately depends on the formulation of the conditions for this doctrine. This doctrine conceals a number of complex conditions. In this study, the following seven conditions have been identified. The mark applied for (or incorrectly registered as an EU trade mark and sought to be invalidated), which is inherently devoid of any distinctive character, has 1) at the right time 2) by the relevant public and 3) in relation to the goods and services for which registration is sought 4) acquired a new meaning indicating commercial origin 5) through the use of the mark 6) by a significant proportion of the relevant public and 7) in a necessary part of the geographical area of the EU. Many of these conditions work reasonably well in their current form. However, it is argued that particular problems relate to conditions 6 and 7 mentioned above. In this study, they are called “core conditions” because of their practical importance. The study provides solutions for improving the current situation. Ultimately, the determination of these core conditions is complicated by fears about the extent of the de facto scope of protection and harm to competition.
  • Keskitalo, Kristian (Helsingin yliopisto, 2022)
    This doctoral dissertation examines why the regulation of money has changed, what money means as a medium of payment in different periods of time, and why the perception of money as a medium of payment has changed. The above change is connected to the Finnish regulation and more widely to the Finnish legal system, and therefore the context of analysis is strongly tied to Finnish society. One of the objectives of the research is based on the perspective of the doctoral dissertation and the research material, to interpret if cryptocurrency can be considered as money in the legal context of the Finnish legal system. This research examines the problematic aspects of money in the legal context by presenting the main research question which holds throughout the timeline of the study (from 1860 to the present): why did the perception of money in the legal context change or remain unchanged? The analysis of the perception of money contains an analysis of the regulatory amendments of money (i.e., why the regulation of money changed). The research is based on the approach of contextual legal history. The study is built upon a description and a reconstruction in order to understand what money has meant in the legal context in different periods of time and to be able to analyse these changes in a broader context. There are findings that can be taken from studying longer periods of time in history. These findings can be used in interpreting a position of cryptocurrency in the legal context (money). The research conducted reveals that amendments to the regulations of money are typically driven by i) money specialists ii) influencers in the field of economics (e.g. entrepreneurs, shareholders etc.) and/or iii) representatives of banks. Amendments to the regulations of money were made due to i) changes in monetary systems, and ii) various economic phenomena and crises. These were influenced by i) fiscal interests ii) opportunism within different interest groups, and iii) other reasons affecting exchange. The change of the perception of money in the legal context (as a medium of payment) is not directly linked to amendments of the regulation of money, although money in the legal context was influenced by money regulations. The changes to the perception of money in the legal context (as a medium of payment) stems from money theories and general public behaviour that has, in the long-term, established its position as affecting exchange – the regulation of money have however created the framework for money in the legal context. Based on the legal theory of money, as presented in this thesis, any money (as a medium of payment) must fulfil the following criteria in the legal context: i) the value of the medium of payment must be bound to a monetary unit of the legal system ii) the medium of payment must have a numerically verifiable value, iii) the medium of payment must be available to disposition, and iv) the medium of payment must be broadly and generally accepted. According to this research, cryptocurrency can be money in the legal context (as a medium of payment) if the said cryptocurrency meets the conditions of money, which in practice means that the cryptocurrency fulfils the criteria of the legal theory of money.
  • Helke, Hannamari (Helsingin yliopisto, 2022)
    Maritime Safety Investigation in the Legal Field and Its Relationship to the Legal Determination of Criminal Liability The subject of this research is the placement of maritime safety investigation in the context of the legal field and its relationship to the legal determination of criminal liability in cases under review. The initial inquiry of this research is the review of the related literature multidisciplinary law. Also, jurisdiction is viewed from the perspective of accepted safety theories. In this external perspective, there is no commitment to existing law. The research method utilized can be described as discursive because different per-ceptions are considered in relationship to each other. The methods of traditional jurisprudence are applied to determine the law in force. The maritime safety investigation is in the traditional legal division area of accepted special administrative law, international law and maritime law. A safety investigation, as a whole, can be considered as its own field of law, as it meets the criteria set forth in legal fields as reviewed in the related literature search. A safety investigation has principles that differ from other fields of law, such as future-orientation and safety orientation, which can be presented as general doctrines. The application of the norms in a safety investigation involves concepts specific to this area of law, such as a hearing, an investigation report, a safety recommendation and a follow-up on the implementation of safety recommendations. Safety investigation is based on safety theories in terms of its moral principles and ethical values. The political goal of the safety investigation is to improve public safety by learning from the accidents and incidents reviewed using the accepted safety in-vestigation procedures. The, afore mentioned, sector specific objectives reflect the independence of the safety investigation field of law. There are five recommendations posited from the research study to clarify the relation between safety investigations and the determination of criminal liability in the review of an accident or incident. The recommendations revealed from the study include the following: 1) the rules of procedure for both pre-trial and judicial proceedings shall not permit the use of the safety investigation report, 2) when determining criminal liability for negligence, an enhanced method of assessment must be made of the person's actual subjective available options to the person to act in a different manner than the person acted, 3) the acts of negligence or omissions which are not de-termined to be egregious will be decriminalized, 4) the disclosure of information in a safety investigation will not be available in pre-trial investigation to prosecutorial authorities unless determined to be an egregious offence, and 5) in cases of positive conflicts of jurisdiction between authorities further additional research will be required. Keywords: Safety investigation, Accident investigation, Criminal law, Legal division area, Acts of negligence, Self-incrimination, Law of the sea
  • Raitasuo, Santtu (Helsingin yliopisto, 2022)
    Interpretation of tax rules has major societal impacts. This has become more pronounced in recent years, as there has been extensive media coverage of corporate tax avoidance. Even though tax avoidance has been the subject of extensive academic research, some aspects of it remain understudied. This doctoral thesis examines what kind of role legal scholarship plays in tax minimization and tax avoidance. In addition, the thesis discusses the political implications of tax law interpretation. Tax law scholars often assume that legal scholarship generally adds positive elements to legal interpretation or that it promotes the legitimacy of the tax system and thus serves the public interest. In contrast, the thesis takes a critical perspective on tax scholarship and asks what kind of economic and political power is exercised in it. Furthermore, the project examines the impact of seemingly neutral tax law research on the acceptance of legal structures that allow aggressive tax planning. The research's theoretical basis is critical legal studies, an approach that emphasizes the importance of legal indeterminacy and the value-laden nature of legal interpretation. The dissertation includes a summary and four articles. The article I discusses how the tax law interpretation can be understood through the perspective of political ideology. The article demonstrates the political stakes in the interpretive choices made by scholars and judges when applying tax norms in various fact situations. It is argued that the interpretation of anti-avoidance norms, in particular, is critical for competing political projects. Article II of the dissertation contends that tax scholarship suffers from conflicts of interest caused by legal scholars' involvement in legal practice. Combining practical work and research creates role conflicts for legal scholars, with significant impact for the discipline as a whole. Article III of the thesis presents a case study of adjudication regarding the legal permissibility of a novel corporate tax avoidance scheme. The article demonstrates how the advocacy firms involved in the case produced scholarly works that benefited their business interests in interpreting the relevant tax code provisions. It is argued that the objective of the tax consultancy companies involved was to hinder the application of the anti-tax avoidance clause. Article IV examines the doctrine on legality principle in tax law. While scholars widely agree on the general importance of the principle for the tax system, there is a pervasive disagreement about its implications for legal interpretation. According to the article, there are two competing versions of the principle that have different implications for tax law interpretation. In addition, the article demonstrates how these different versions of the principle empower different societal groups and favour competing societal interests. The thesis demonstrates how conflicts of interest in tax scholarship may lead to bias in tax law interpretation. Because a significant proportion of tax scholars work in tax consulting, research in the field emphasizes the interests of the tax consulting industry. The study illustrates, how tax research can act as an enabling factor that improves the ability of economically powerful actors to minimize their taxes while reducing the democratic legitimacy of the tax system in general. Thus, the study broadens the prevailing perception of the political influence of the tax consulting industry and presents a novel way of understanding aggressive tax planning as a regulatory failure. The dissertation concludes that more attention should be paid to conflicts of interest in legal research. Further research is needed to examine how conflicts of interest affect scholarship in different areas of law.
  • Salo, Mirja (Helsingin yliopisto, 2022)
    The expression "for consideration" in article 2 of the VAT Directive is one of the key factors determining the scope of the tax. To ensure a proper understanding of the EU directive-based VAT system, it is important to identify how the expression "for consideration" in article 2 of the VAT Directive contributes to its context, that is to the EU VAT system. However, in this respect the essential question is whether the expression "for consideration" in article 2 of the VAT Directive has certain meaning, which is itself exhaustive. Indeed, identifying the core purpose of it is fundamentally important to EU VAT. This is because a better understanding on the EU VAT system presupposes that the meaning and the purpose of the concept “"for consideration" in article 2 of the VAT Directive” is as clear and unequivocal as possible. The objective of this research project was to analyse the core meaning and the purpose of the concept of "for consideration" in article 2 of the VAT Directive” as determined in the case law of the Court of Justice of the European Union. With regard to that, the main hypothesis in this study was that the scope of the concept “for consideration” is possible to understood by analysing it in its context but still distinctively, that is by approaching it as a concept. The study is conducted in essence by analysing the Court's interpretations with regard to the concept "for consideration" in article 2 of the VAT Directive. Additionally, the study follows partly a legal linguistic method. This method is used to notice the occurrences of terms in VAT Directive. This is done by using the French version of the VAT Directive. As regards to the approach of this study, the French version provides precise information on the location of relevant terms in the VAT Directive. The research outcome is that the concept of ”for consideration” in article 2 of the VAT Directive can be approached by observing its own role to play in the field of VAT. Moreover, the analysis in the study reveals that Court’s interpretation on the concept of ”for consideration” in article 2 of the VAT Directive creates landmarks. Those landmarks reduce certain unpredictability connected to the criterion of the direct link, the criterion the Court of Justice of the European Union uses for purposes of interpretation of the concept of ”for consideration” in article 2 of the VAT Directive.
  • Ingadóttir, Thordis (Helsingin yliopisto, 2022)
    The relationship between international and national law is increasingly being tested by jurisdictions and decisions of international courts. International courts have multiplied in the last two decades and have become permanent and active participants in the international arena. States and international organizations have considered the establishment and jurisdiction of such dispute settlement bodies vital for the enforcement of international law obligations of both states and individuals. States have undertaken an international obligation to comply with decisions of international courts. Particularly, in light of the enhanced role of international courts with respect to the enforcement of human rights and individual criminal responsibility, their jurisdiction and decisions have required major implementation at the national level. The authority of international courts calls for a theoretical understanding of the relations between international and national law. In only a short time, their authority has put into the spotlight fundamental principles of international law, such as human rights, criminal responsibility of individuals for international crimes, states’ responsibility, enforcement by international actors, and remedies. These areas of law are inter-dependent, both in substance and space. International human rights and individual criminal responsibility for serious crimes are matters of international law, undertaken and enforced at the international level, but to be realized at the national level. At both levels, every day practice illustrates the dire need of a theoretical understanding of the multilayered situation. Conventional application of established legal doctrines has often proved to be conflicting and unsatisfactory. Facing the dilemma, a grander strategy is needed. This thesis presents a study on this new phenomenon from a variety of perspectives. The six publications included study international legal norms that seek to activate domestic legal system, enforcement of international courts, and implementation at the national level (in particular in the Nordic countries). These studies are mainly in the area of international human rights, international humanitarian law, and international criminal law. The summary places the published text in a theoretical, historical and analytical context. The primary theoretical foundation of the relations between international and national law are the theories of dualism and monism. While set out in the nineteenth century, the theories have remained the main foundation for the kinship. The summary revisits and tests the components of these theories in light of the case studies. It concludes that the reliance of the theories is problematic, as their key foundations do not hold. This situation has real-world ramifications as actors with major interests at hand, primarily individuals, find themselves at times trapped, and left with a false promise of law.
  • Kouros, Kristiina (Helsingin yliopisto, 2022)
    From limiting human rights to their promotion. A study of human rights promotion as a task assigned to the Finnish National Human Rights Institution. Human rights are fundamental rights that are enjoyed equally by all people. In addition, the Finnish Constitution guarantees fundamental rights for all. These rights limit the activities of the legislature and public authorities. Moreover, states have an obligation to fulfil human rights, and further to promote them. The promotion of fundamental and human rights is also a specific task of certain authorities. This research clarifies the concept of the promotion of fundamental and human rights by systematizing and analysing the relevant and related international law and national data, and the practices of various international and national legal sources and practices on human rights promotion and related concepts. The methodological approach is one of legal dogmatics, yet it is clearly attached to human rights in practise, and thus exhibiting law in action type of research. The focal point of the study is fundamental and human rights promotion as a task assigned to the Finnish National Human Rights Institution (NHRI) comprising the Parliamentary Ombudsman, the Human Rights Centre and its delegation. In the duties of the Finnish NHRI promoting fundamental and human rights is reflected in the list of various tasks assigned to the institution. However, the duty to promote fundamental and human rights is not exhausted in the list of various means of promotion. Though the interpretation of fundamental and human rights is not a task assigned to NHRIs, the question of the scope of guarantees of these rights, as well as their possible extension is unavoidable when assessing the fulfilment of these rights. In the conclusion of the study, it is noted that the Parliamentary Ombudsman’s possibility to consider contextuality in its decision making regarding individual complaints, is often an alleviating factor in assessing the scope of guarantees of a given right. Nevertheless, attention to increased systematization of fundamental and human rights promotion would be beneficial in the work of the Ombudsman. By comparison, the work of the Human Rights Centre, which concerns the general population and specific interest groups, seems to be partly judicial and partly political in nature. In addition, pressure for political struggles particularly outside the core area of the scope of guarantees of rights may rise from the Human Rights Centre’s delegation including various interest groups or from international human rights actors. The study suggests that adhering to the requirements of good governance in a pronounced manner, is especially important for the Human Rights Centre. Furthermore, openness regarding the choice of thematic focus as well as thoroughness of reasoning adopted in position-taking could be developed. In addition, increased attention could be paid to evaluation of activities at the Centre and strengthening its dialogue with the Parliament.
  • Wrigley, Sam (Helsingin yliopisto, 2021)
    This thesis looks at whether the GDPR can efficiently and effectively promote its goals and aims when personal data is processed by bots and AI-related technologies, specifically when that data is processed on the basis of legitimate interest under art. 6(1)(f), as interpreted by the principle of fairness per art. 5(1)(a). To do this, I have broken the topic into three research questions: How should we understand the concept of fairness under art. 5(1)(a); can the concept of fairness, as understood under art. 5(1)(a), help to address the shortcomings of legitimate interest processing under art. 6(1)(f); and is the use of legitimate interest processing, as interpreted through the lens of fairness, an efficient and effective tool for supporting the GDPR’s goals and aims when personal data is processed by bots and AI-related technologies? As these questions cover legal, philosophical and technical issues, I embrace a socio-legal approach and incorporate sources from each field in my research. For the first question, I look at the existing interpretation of fairness and find that the concept has (at best) relied on innate or implicit judgements and (at worst) been used as mere window-dressing. I therefore use Rawls’ original-position thought experiment to develop a flexible test that can provide a framework for explicit and open discussions about whether something should be considered fair. I then compare this test to other uses of fairness in law and, finding it compatible, propose a test which can be used for evaluating fairness under the GDPR, art. 5(1)(a). For the second, I examine the existing guidance and find that, among other things, the balancing act required by art. 6(1)(f) struggles to deal with the inherent subjectivity of the interests involved. This then leads to a lack of consistency between guidelines, difficulties in identifying and weighing interests, and uncertainty as to how the balancing act should be calibrated. I argue that by incorporating the fairness test outlined in the first question as an interpretive lens for the legitimate interest balancing test, we can incorporate this subjectivity in a more reliable and structured manner, which helps to resolve or mitigate the issues identified and address the shortcomings of art. 6(1)(f). Finally, I look at how this test might operate when personal data is processed by bots and AI-related technologies. I first consider the nature of these technologies and what existing conversations can tell us about them. This includes, inter alia, an examination of existing discussions on ethical usage of such technologies and what factors may be relevant in a balancing test. I then consider how the legitimate interest fairness test developed above might be applied when personal data is processed by bots and AI-related technologies and how the circumstances relevant to this context might be applied. Finally, I evaluate the test and conclude that, if used properly, it can be used to support the GDPR's goals when bots and AI-related technologies are used to process personal data, noting factors that must be considered and the strengths and weaknesses of the approach described.
  • Ollila, Aki (Helsingin yliopisto, 2021)
    In Finland the employee's duty of loyalty is based, on the one hand, on the Employment Contracts Act's (ECA) second sentence of 3:1. According to the sentence employees shall, in their activities, avoid everything that conflicts with the actions reasonably required of employees in their position. On the other hand the duty of loyalty is regarded to be, oftentimes, as a fundamental obligation implied into every individual contract of employment. One of the main research question is to examine the content, significance, and binding legal force of the sentence as well as its relation to the contract based loyalty. Because the employee's duty of loyalty can be based partly on the law and partly, as an implied provision, on the contract of employment, we can say that the named duty lies on two different levels: on the level of law and on the level of a contract of employment. There exists, between the levels of loyalty, certain tension. The tension has become more apparent in the 21st century, first and foremost among issues concerning the relation between the constitutional rights and the employee's duty of loyalty. It is not so uncommon, these days, that the duty of loyalty, either law or contract based, is stated to restrict the freedom of speech and expression of employees. By limiting of an employee's freedom of speech and expression the duty of loyalty ”enters” into the sphere of the human rights and the constitutional rights – and by doing so moves the employee's duty of loyalty on to the constitutional level. In other words the tension appears now, not only between the law and contract based loyalty, but between them and the constitutional level. The second main research question is to examine how the tension appears between the levels of the duty of loyalty and how the tension between the levels could be solved the most sensible way. The third one is to examine how the international and national regulation concerning the human rights has influenced to the content of the duty of loyalty. The weight in the dissertation is on the jurisprudence. It serves, first and foremost the analytical jurisprudence, on the one hand to explain the nature of the duty of loyalty and to provide a deeper understanding of the duty of loyalty. On the other hand it serves to find new viewpoints and phrasing of questions. The empirical jurisprudence helps in turn to focus on questions more narrowly and scrutinize courts' judgements more multifacetedly and more critically. Empiricism is connected with interpretivism. The latter is served to find the best-fitting and most just solution to the questions and to give, inter alia, recommendations and interpretive notes.
  • Farzamfar, Mehrnoosh (Helsingin yliopisto, 2021)
    In this doctoral dissertation, I study the tense relationship between the obligations to protect human rights of immigrants, on the one hand, and the need to safeguard the internal security of the European Union (EU), on the other. Although a considerable amount of research is available on the link between immigration and security, there is a clear lack of understanding of what this tension actually means for the right to seek asylum in the EU as a fundamental right. The aim is thus to fill this knowledge gap by analysing the possible impacts of EU security narratives on the human rights discourse, particularly on the right to seek asylum as a fundamental right protected under Article 18 of the EU Charter of Fundamental Rights. Being a fundamental right implies that there is an inviolable essence that may not be limited or balanced against in anyway – even if the security concerns of the EU or its Member States are allegedly at stake. The inviolable essence of the right to seek asylum includes two core elements: (1) that asylum seekers should be allowed to enter the territory of the EU in order to submit claims for asylum; and (2) that they should not be returned to places where their lives are clearly at risk (the principle of non-refoulement). However, portraying immigrants, especially those arriving from the Global South, as potential threats to EU internal security and the national security of its Member States, has led to restrictive immigration policies and practices, which affect the inviolable essence of this right. Accordingly, the main research question addressed here is what the implications are of the securitisation of immigration in the EU upon the right to seek asylum as a fundamental right. Studying the concept of security and its different aspects lies beyond the field of jurisprudence. Therefore, to answer the main research question, an interdisciplinary approach combining the methods of law and social sciences is to be adopted. To be precise, the method applied here is critical discourse analysis – an analytical tool available to both critical legal studies and critical security studies. To address the possible results of securitising immigration on the right to seek asylum as a fundamental right in the EU, I critically analyse the practices of EU Member States, the content of EU laws, and the jurisprudences of the Court of Justice of the European Union and the European Court of Human Rights in relevant immigration cases. In conclusion, I show that the official narrative of fear, anxiety, and emergency – that immigration poses existential threats to EU internal security and the national security of its Member States – is eroding the status of the right to seek asylum to less than that of a fundamental right. The significance of the findings of this research is that if the right to seek asylum is to remain a real and effective right, rather than only a theoretical or illusionary one, we should take this right seriously by protecting its essence.
  • Marjosola, Henna (Helsingin yliopisto, 2021)
    ENGLISH SUMMARY Witness testimonies play a pivotal role in court proceedings, yet empirical psychological research has demonstrated that testimonies can be an unreliable source of evidence. The witness’s own interpretations, experiences and post-event information, amongst other things, can distort the witness’s memory and testimony. In addition, the court process entails various practices that do not support the accurate recall of events and presentation of the testimony. For instance, it is common practice to prepare witnesses for trial behind closed doors without clear guidelines regarding the practice. Witness examination in court, and especially cross-examination, may also include questionable practices. In Finland, the possible impact of these practices on testimony reliability has not been sufficiently acknowledged. Decision-makers have few tools with which to identify and assess the various factors influencing witness testimonies. In their assessment, decision-makers may also rely on unreliable or irrelevant cues. According to psychological research, professional judges apply heuristics and common-sense generalisations in their reasoning, which may cause systematic errors in assessment. This doctoral thesis examines how the different stages of court proceedings should be carried out and developed in order to promote the reliability of witness testimony and its evaluation. These issues are addressed through the following questions: 1) Which practices in the different stages of court proceedings can distort witness testimonies? 2) Which practices in the different stages of court proceedings can distort their evaluation? 3) How should these practices be treated, as a matter of existing law, in order to promote the reliability of testimony and its evaluation? The research uses both practical and theoretical legal dogmatic approaches. In addition, the research utilises psychological research to interpret the law and to observe, assess and develop evidence evaluation practices. Research in witness psychology provides information regarding factors known to influence witnesses’ memory, interpretation and behaviour. In addition, psychological research can provide information about factors that may cause errors in decision-making. This information is useful for identifying harmful practices and finding ways to mitigate them. The research consists of four articles and a summarising report. Each article concentrates on a particular phase of a court procedure. The first article examines permissible practices in witness preparation, the second article takes a psychological view on cross-examination and the third and fourth articles concentrate on evidence evaluation. The doctoral thesis puts forward various development proposals for the interpretation of the law (de lege lata) and guidance on the court’s evaluation practices (de sententia ferenda). The main findings of the thesis are the following: First, to promote reliability of witness testimony, particular attention should be paid to the way in which the examiner, whether a legal counsel or a prosecutor, communicates with the witness before and during the trial. On the one hand, the study argues that many common practices in both witness preparation and cross-examination should be restricted or prohibited according to the existing law due to their distorting effect on witness testimony. On the other hand, the study also identifies recommendable practices that would support accurate recall and presentation of the testimony. Second, to promote the reliability of testimony evaluation, the thesis encourages decision-makers to ‘slow down’ and test their own reasoning. The study argues that a structured reasoning process and in particular falsification, i.e. the assessment, comparison and exclusion of alternative hypotheses, can improve the quality of the court’s assessment of evidence and reduce potential errors. In addition, when evaluating witness testimonies, the court should apply reliable generalisations, such as generalisations based on empirical research in witness psychology, while actively avoiding uncritical use of generalisations based on common sense and intuition. Finally, the study assesses an increasingly common practice of the Supreme Court of Finland of using psychology-based generalisations on its own initiative when evaluating witness evidence. The study argues that the Supreme Court’s practice has led to certain psychological generalisations receiving a precedential status and turning into weakly binding legal source. Although increased use of psychology and scientific research in the court’s evaluation practices should principally be welcomed, the study also identifies various challenges regarding the application of psychological research ex officio. Decision-makers should acknowledge these limitations before applying psychological generalisations on their own initiative.
  • Kemppinen, Heikki (Suomalainen lakimiesyhdistys, 2021)
    This study focuses on why a judge should provide reasoning for a decision of criminal sentencing and how the reasons should be written in different circum- stances. While answering said questions, the aim of the study is to create a com- prehensive picture of sentencing and the various separate decisions a judge may have to deliberate on before arriving at the final length and form of the sentence. The preliminary chapters of the study provide a foundation for the discussion of reasoning by focusing on the legal sources of sentencing. When dealing with the question ”why reason”, the study applies theories about legal reasoning of judicial decisions to the area of sentencing. A central focus is on the so-called functions of judicial reasoning. On the other hand, the analysis is enriched by factors dealing namely with sentencing, such as the demands of equality and uniform sentencing practice. The question “how to reason” is handled both as a general matter and through an examination of different situations most commonly faced by judges. The aim is not to present models of optimal reasoning but to examine how different situ- ations and contexts of decision-making and the norms related thereto affect the content of reasoning. Theoretical discussion of the subject is paired with an empirical portion, in which a sample of judicial decisions in criminal cases is analyzed in terms of the reasoning of sentencing contained therein. The aim of the theoretical part of the study is to systematize and interpret the legal norms dealing with sentencing and reasoning, while also keeping an eye on the somewhat unique sources of law regarding sentencing practice. The em- pirical analysis has features of both qualitative and quantitative research. As for point of view, the reasoning of sentencing decisions is approached from the judge’s perspective. In other words, the research questions concerning the factors to be taken into account in the reasoning of sentencing decisions are combined with the actual deliberation of sentencing carried out by the judge.
  • Schön, Esa (Helsingin yliopisto, 2021)
    The study examines the player contract models of professional and amateur athletes commonly used in Finland from the perspective of the law in force. The study seeks to determine how the specific features of the contractual relationship affect the determination of the legal effects of a professional athlete's contract as an employment contract, and how the legal status of professionals and amateurs differs from each other. A player contract can be defined as a contract of employment, which establishes an obligation for the athlete to contribute to the sporting success of the club by working in accordance with the provisions of its coaching staff in the team assigned to him at any given time. The characteristics of a player contract involve certain legal effects, the most important of which is probably that the player contracts are without exception fixed-term contracts. Competitive sport is a struggle between participants for mutual superiority according to the rules. It is characterized by rule-specificity, as sports are in practice sets of rules, and competition requires that all participants commit to the rules. The pursuit of victory is at the heart of competitive sport and a central part of the principle of fair play. Deliberately impairing the performance of the game or playing in pursuit of a pre-agreed outcome is therefore contrary to the player's contractual obligations. On the other hand, competitive sports by their nature are also characterized by the possibility of failure. A player cannot be considered in breach of his obligations, even if the sporting objectives have not been achieved, unless can be shown to have intentionally played below his ability, neglected training or by his conduct impaired his ability to play. Nor can a player be required to precisely follow the orders of the coaching staff in an everchanging game situation. The most important feature of player contracts is their emphasized personal nature. It is particularly relevant to the athlete's obligation to work and to the application of the provisions of the Employment Contracts Act, which restrict the use of fixed-term contracts, but also to the termination of a player's contract, for example. It also requires that the club allows players to play the sport and take into account the athlete's legitimate interests in deciding, for example, team composition and player training, although the athlete does not have a subjective right to be part of a team even when, for their sporting merits, this could objectively be considered to fit into it. Professional and amateur player contracts are essentially similar in content and legal effect. However, there are also some differences between them, which are the result of mandatory labour law that applies predominantly to professional athletes.
  • Eklund, Mia (Helsingin yliopisto, 2021)
    In this doctoral thesis I examine the prerequisites under which employers in Finland may process personal data of their employees (employee data) in connection with or as a part of various monitoring methods while, at the same time, taking into account the employees’ right to privacy. The purpose of this doctoral thesis is to illustrate the tensions that exist between, on the one hand, the Finnish legislation on employee privacy, which in Finland falls under the scope of labor law, and, one the other hand, i) other Finnish individual and collective labor law, ii) the EU’s general data protection regulation 2016/679 (“GDPR”) and iii) the compliance requirements applicable to employers (companies). This is done by examining and describing the applicable rules (and rules that should be applied) on employee privacy and on the processing of employee data in connection with monitoring of employees carried out by the employer (employee monitoring). This doctoral thesis consists of a summarizing part, which contains three chapters, and four previously published articles, one of which has been published in two separate parts. In the first chapter, I describe my research, including the research questions and the purpose of the research as well as my method. The first chapter also encompasses a brief description on all the articles forming part of the thesis. The second chapter contains a summary of all the articles and the conclusions which I have drawn based on the articles. The summary encompasses a presentation of both the themes and the purpose of the articles. In addition, the summary contains a review of the developments of relevant topics and legislation which I have covered in the articles and which relate mainly to the time after the publication of the articles. In the third chapter, I summarize my conclusions as a part of my concluding remarks. I also present certain reflections on topics which could be subject to future academic research. The main conclusions of my research for this doctoral thesis can be summarized as follows: i) The Finnish legislation on employee privacy appears non-compliant with the GDPR. The Finnish legislation, which under certain circumstances requires the employee’s consent, either as a basis for processing employee data or as an additional requirement for processing such data, to enable the employer to process employee data in connection with employee monitoring appears non-compliant with the rules of the GDPR and incompatible with the national room to maneuver provided for in the GDPR with regard to the processing of employee data. Also, the necessity requirement set forth in the Finnish Act on the Protection of Privacy in Working Life (759/2004) appears non-compliant with the GDPR. ii) There is an inherent tension between the Finnish legislation on employee privacy and the remainder of Finnish individual and collective labor law. More specifically, there is a conflict between the employers’ right to direct and supervise the work of its employees and the statutory requirements to obtain the employee’s consent in order for the employer to process employee data in connection with employee monitoring. On the one hand, the employer has a statutory right to direct and supervise the work carried out by its employees and, on the other hand, the processing of employee data in connection with certain types of monitoring require the employee’s consent. Employee monitoring, the purpose of which is to protect the employer’s property or to ensure compliance with applicable rules, usually concern the employees as a collective. From a systemic labor law perspective, matters that concern employees as a collective are, as a starting point, dealt with either as matters to be handled in cooperation negotiations in accordance with the cooperation legislation or in collective bargaining agreements. In this regard, requirements to obtain the individual employee’s consent constitute a clear and, from a practical perspective, problematic deviation from the labor law system, as a matter of collective nature is handled on an individual level. This deviation can partly be explained by the individual nature of the right to privacy as well as by the importance and meaning of the individual’s self-determination in the Finnish legal tradition. Also, the circumstances under which the legislation was enacted have had an impact. Agreeing on arrangements for control and monitoring measures, which affect all employees or groups of employees on a collective level, would from a labor law system perspective most naturally be handled in cooperation negotiations or in collective bargaining agreements. The Act on Co-operation within Undertakings as well as the Act on the Protection of Privacy in Working Life currently require that processing employee data in connection with, inter alia, employee monitoring shall be handled in cooperation negotiations. The GDPR’s form requirements for a valid consent and the information that is to be provided to the employee before obtaining his/her consent encompasses the same elements as the “agenda” of co-operation negotiations. Obtaining consent and arranging co-operation negotiations appear, at least partly, to fulfill the same purpose – ensuring transparency – and thus overlap. This should be taken into account in the ongoing revision of the Act on Co-operation within Undertakings. iii) There is a tension between the Finnish legislation on employee privacy and the increasing compliance requirements which companies are required and expected to take into account when doing business. In order to ensure compliance and prevent misconduct and to be able, if necessary, to investigate (potential) violations, employers (companies) are required to take active measures. In practice, compliance requires a structured and comprehensive system that covers, inter alia, appropriate monitoring mechanisms. However, consent as a processing basis or as an additional requirement for processing is problematic, as the employee may, by not giving his/her consent or by withdrawing his/her consent, prevent the employer from introducing or using monitoring mechanisms for purposes which may be deemed appropriate and necessary – both from the employer’s perspective as well as from the perspective of society more generally – to ensure compliance and prevent misconduct.
  • Sormunen, Milka (Helsingin yliopisto, 2021)
    According to Article 3(1) of the United Nations Convention on the Rights of the Child (CRC), the best interests of the child shall be a primary consideration in all actions concerning children. The best interests of the child is a central but indeterminate concept. After its inclusion in the CRC in 1989, considering it became a human rights obligation. This thesis analyses the concept of the best interests of the child in domestic, European and international human rights practice. It consists of four peer-reviewed articles and a summary. Building on each article’s arguments regarding the concept of the best interests of the child in human rights practice, the summary extends key themes and discusses the implications of the findings. This thesis enriches our knowledge of how the best interests concept is understood and used in human rights practice. Its starting point is the interaction between the concept of the best interests of the child and children’s rights, with the analysis responding to a broader question of the interaction and dialogue between different systems for the protection of human rights. The thesis offers new, systematically collected data on the nature and functioning of the best interests concept in human rights practice at the domestic, European and international levels and discusses the major reasons underlying the identified problems. Methodologically, it relies on systematic case studies and comparison and employs tools of doctrinal research to analyse the findings. Article I, ‘“In All Actions Concerning Children”? Best Interests of the Child in the Case Law of the Supreme Administrative Court of Finland’, demonstrates that the Supreme Administrative Court of Finland considers the best interests of the child in a selective manner: it tends to consider best interests in areas traditionally associated with children’s rights but does not consider them sufficiently in other areas. Article II, ‘A comparison of child protection and immigration jurisprudence of the European Court of Human Rights: what role for the best interests of the child?’, compares the use of the best interests concept in child protection and immigration cases of the European Court of Human Rights (ECtHR). Even though the ECtHR regularly refers to best interests in its cases concerning children, unjustified differences exist between the case groups in the assessment of family unity, the child’s age and the child’s views. The article concludes that the ECtHR’s approach in immigration cases is problematic. Article III, ‘Understanding the Best Interests of the Child as a Procedural Obligation: the Example of the European Court of Human Rights’, suggests a procedural approach to best interests as a remedy to the inconsistent application of the concept in the different case groups detected in Article II. The article critically analyses the views of the Committee on the Rights of the Child and categorises three layers of the ECtHR’s procedural approach to best interests. Article IV, ‘A Focus on Domestic Structures: Best Interests of the Child in the Concluding Observations of the UN Committee on the Rights of the Child’, establishes that instead of attempting to define the best interests concept in its concluding observations, the Committee on the Rights of the Child focuses on structures that advance the implementation of best interests. Together, the articles illustrate the problems of an outcome-focused understanding of the best interests of the child. These issues are reflected in the inconsistencies of human rights practice; the best interests of the child are not systematically taken into account in human rights practice as required by Article 3(1) CRC. This study found unjustified differences between different fields of law, which is problematic from the perspective of children’s rights, especially concerning non-discrimination. The thesis suggests that the application of an outcome-focused understanding of the concept of the best interests of the child is complicated by the concept’s purpose of maximising children’s rights and by the ambiguity of the criteria under which the child’s best interests can be limited. The thesis, therefore, uses the framework of positive and negative obligations to demonstrate that the current practice of accommodating best interests with other interests and rights – balancing – is obscure and that, consequently, best interests are easily disregarded. The thesis suggests that if Article 3(1) CRC is used as a yardstick to measure the outcome of a decision, the legal content of Article 3(1) should be defined in relation to the case at hand, after which the criteria for limiting human rights should be applied. The thesis further argues that relying on different presumptions in similar legal questions may lead to discriminatory outcomes. The thesis also develops the idea of Article 3(1) CRC as a procedural obligation. Relying on Article 3(1) as a procedural obligation means that in cases concerning children, courts would attend to whether the best interests of the child have been considered, the grounds of the assessment explained and procedural requirements, such as obtaining the child’s views, followed. The substantive assessment would be expressed in terms of the rights of the child. The thesis proposes that a procedural approach and focus on structures that advance children’s rights in general could more effectively safeguard the best interests of the child than an outcome-focused approach.
  • Vuorela, Miikka (Helsingin yliopisto, 2021)
    The purpose of this study is to form an overall view of the development of recorded crime, sentencing practices and incarceration rates in Finland during the period of autonomy. Additionally, Finland is systematically compared to the other Nordic countries. A collection of statistics depicting convictions, sanctions and imprisonment in Finland, Denmark, Norway and Sweden in 1809–1917 is also constructed in the study. With the new statistics, incarceration statistics now begin in 1810 and conviction and sanction statistics in 1842. These time series are analysed using quantitative methods in this study. The study consists of three main parts discussing respectively criminality, sentencing practice and the prison system. In the early 19th century crime and its control were concentrated in rural areas and the most common types of convictions were illicit intercourse and timber theft. During the century, convictions were starting to consist more and more of urban misdemeanours such as public intoxications. In the meantime, offences related to the protection of communal moral values, such as illicit intercourse, breach of the sabbath and slander were slowly disappearing from the court agendas. The most important single event affecting the development of criminality in the 19th century was the Finnish famine of 1866–1868 which launched the first recorded crime wave in the history of Finland, causing theft convictions to quadruple in just two years. The chapter on sentencing practices examines the criminal law reforms of the 19th century and the forms of punishment in legislature and court practice. The draconic penal system of the Swedish Civil Code of 1734 faded away during the century and the law was not enacted according to its letter. Executions demanded by the statute were converted to deportations to Siberia, and most corporal punishments were converted in the courts of appeal. The period of autonomy denoted the disappearance of the old forms of punishment and their replacement by the current system of incarceration and fines. This development culminated in Finland in the enactment of the new Criminal Code of 1889. The new law was significantly delayed due to the so-called state night and Finland was left decades behind the other Nordic countries in terms of the criminal justice system. The chapter on incarceration examines the structure and development of the prison system. The Finnish incarceration statistics are also built to their maximum length. Using the new data, it is for the first time possible to study how the imprisonment rates in Finland developed during the 19th century compared to the other Nordic countries. Incarceration rates began to differ in 1867. The number of prisoners decreased in Denmark, Norway and Sweden but remained stable in Finland. By the end of the century, the Finnish incarceration rate was significantly higher than in the other Nordic countries. The effects of the deportations from Finland to Siberia on the Finnish imprisonment rates and the severity of the criminal justice system is analysed for the first time in the study. The effects of the deporations may perhaps best be demonstrated by noting that during the 1870s Finland had in Siberia a second incarceration system which was as large as the one in Finland. The inclusion of the deported in the analysis of incarceration rates shows that the Finnish criminal justice system at the end of the 19th century was significantly more severe than in the other Nordic countries.
  • Rudanko, Jorma (Helsingin yliopisto, 2021)
    One can find a great number of different theories of fact-finding in the literature of evidential jurisprudence. Every theory has its pros and cons. The purpose of this thesis is not to find and name the ”best” fact-finding theory, but try to find some ways of making inferences, which could be rational and useful for the fact-finder’s in his difficult task of deciding, what is true and what is not. There is a some kind of bifurcation of theories, depending on the method of reasoning and inference they use. They are often called the bayesian and pascalian theories. The bayesian theories use mathematics, the pascalian do not. In his book ”The Probable and the Provable” L. Jonathan Cohen has stated the difficulties of using mathematical and statistical modes of reasoning in judicial fact-finding. However, there are some aspects in these theories, which are useful for the fact-finder. Especially in complex cases with a broad ”wigmorean” network of provable facts it is important for the fact-finder to understand the relationships of the probability values of facts on different levels of the network and the meaning of these relationships. In the Scandinavian literature there are two older theories of fact-finding, the so-called theme theory and evidential value theory. Neither of them has succeeded in making a break-through in the court practice. Instead, in civil cases the preponderance of the evidence method (övervikt- or overvekt -principle), having its roots in the common law tradition, has got more popularity, and so has the so-called hypothese theory, usually connected to the works of Christian Diesen from Sweden. The idea of hypothese theory is old. There have always been at least two alternatives available for the fact-finder: either a proposition is true or it is not. Diesen has developed this idea in criminal cases to a broad spectrum of hypotheses, especially concerning the causality of facts and events, and on the other hand, the roles and tasks of the prosecutor and the judge. At the time being the narrative theory seems to make progress at least in the evidential jurisprudence, even in nordic countries. Its advantages are the holistic aspects of fact-finding and reasoning it stresses. On the other hand, there might be some dangers to be aware of in connection of the holism. For instance, not every witness is a story-teller, and the fact-finder must have the tools of working also with this kind of situations. In the litigation there are also some ”minor” but important questions and items to be discussed. One of them is the role of a priori -probability in inferential reasoning. In older literature one can find the attitude that it is quite normal and acceptable that the fact-finder can use his a priori -knowledge in evaluating the evidence presented to him and as a part of it. I think that there is a discrepancy between this mode of thinking and the presumption of innocence in criminal cases. In civil cases, too, it is very questionable why the fact-finder should be allowed to use some information the content of which is and stays uncontrolled. In both kind of cases he should be able to put aside his prejudicies and start from ”a clean table”, or, if considering his information relevant for the case, he should inform the litigants about it and so make it to an item of contradictory and adversarial discussion.
  • Hanninen, Minna (Helsingin yliopisto, 2020)
    In the last couple of decades there have been considerable advances in the field of biotechnology, and biochemistry and gene technology have become especially important in relation to their potential applications in alleviating human suffering by the way of, for example, curing previously incurable diseases. This makes the field very interesting from the viewpoint of gaining patent protection for inventions which could produce vast financial profit. Simultaneously, the significance and consideration of fundamental and human rights has increased. The patentability of human based material in relation to fundamental and human rights is a legal research the aims of which are to systematize the legal rules affecting the patentability of inventions concerning human based material in Finland as well as analyze whether there are fundamental and human rights norms that are seemingly (in a way that can be resolved by means of interpretation) or actually in conflict with them. Furthermore, the study addresses the question of what is meant by the concepts of human dignity and personal autonomy in connection with the patentability of inventions in which human based material is used and what is the legal status of persons that have donated their material which is used in the inventions. The perspective of the research is of Finnish law but in a European context, as Finland is a member state of the European Union as well as the Council of Europe. The research has been conducted using the doctrinal approach in order to, as mentioned above, give systematic exposition to the legal rules and principles governing the research topic. Although the patent system and fundamental and human rights have traditionally been treated as separate and unrelated, according to the author it seems clear that in today’s world they cannot be understood this way anymore. Instead, they overlap and intertwine in many ways, and should be viewed as one systematic unity. Patent law in general must be interpreted taking into consideration the principles protected by fundamental and human rights norms. Especially, when material of human origin is utilized in connection with an invention intended to be patented, the protection of the individual human being donating the material, including their human dignity and the rights and fundamental freedoms, should always be a priority. This may, in certain situations, result in limitations of the patentability of inventions utilizing material of human origin. The interrelation between patentability legislation concerning biotechnological inventions should be emphasized also in the practice of patent authorities. Fundamental and human rights should at least function as a standard against which the morality of the commercial exploitation of inventions need to be compared. At the moment there are still some issues to this regard to be resolved.

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