Oikeustieteellinen tiedekunta


Recent Submissions

  • Kremer, Jens (Helsingin yliopisto, 2017)
    This dissertation analyses specific privacy problems arising from the surveillance of public spaces. It studies the scope and limitations of the human right to privacy and a right to personal data protection in light of advanced surveillance and security technologies. The main research question therefore asks how the existing European fundamental rights to privacy and data protection address increasing surveillance and the unprecedented surveillance capabilities of public spaces in Europe. This study is divided into two main parts. After introducing the research problem and a descriptive discussion of existing and future surveillance technologies, the first part discusses the theoretical conceptions behind this research, namely the concept of public space, privacy, data protection and security. Part two of this study then discusses four more specific issues in relation to public space surveillance: Individually targeted surveillance, mass surveillance, surveillance done by private actors, automation of surveillance, and incident prediction. In order to address the research question, this study analyses existing legislation, jurisprudence and specific cases. The overall framework for analyses is derived from a fictional urban surveillance scenario, representing a large European city. This surveillance scenario serves as an anchor point to identify central problems and issues for further fundamental rights based analyses. In that sense, this study uses legal and critical analyses of a specific scenario in order to identify existing, but also potential future legal problems arising from sophisticated public space surveillance. This study consequently identifies several ways to address public space surveillance from a European fundamental rights perspective. The analyses of a right to privacy and a right to personal data protection show that the European system of fundamental rights protection is very well capable of addressing legal problems arising from public surveillance. However, there is a lack of available case law dealing with complex technological surveillance in Europe. This study therefore distils two main approaches for addressing public surveillance: The first approach is based on individual freedom, relying on the legitimate expectations of legal subjects, the second, which is derived from human dignity and personality rights, challenges the communal effects of surveillance. Each approach comes with a fundamentally opposite take on public surveillance. Furthermore, this study shows, how data protection functions as a gap-filler between the two approaches. In its conclusion, this study therefore illustrates several ways to address public space surveillance, and it shows that there is a series of legal problems arising from sophisticated technological surveillance, which require a reformulation of legal arguments addressing public place surveillance.
  • Tuori, Taina (Helsingin yliopisto, 2016)
    The purpose of this study is to research the emergence of rights language in the mandates system of the League of Nations. After the First World War, the League of Nation mandates were established as a solution to the problem of what to do with the former colonies of the defeated states. An internationalized administration was set up in 1919 by the Allied powers, who occupied the former German colonies and Turkish territories. After the war, these territories were transformed into mandates. In my research I am tracing the emergence of rights language in the League of Nations mandates system and its afterlife, meaning the decisions regarding the Mandate of South West Africa by the International Court of Justice. The main research questions are how rights vocabulary operated in the League of Nations and when human rights appeared in the language concerning the mandates. Attention is given to how non-European communities were treated in international institutions, in the mandates system of the League of Nations and the post World War II decisions concerning the mandates by the International Court of Justice and whether the novel rhetoric of human rights in the United Nations system was applied to the mandates. The years under scrutiny are 1921-1971. When examining the application of the mandates system, my aim has been to single out those moments when a particular concern has been articulated in rights vocabulary. In the first section I am studying the emergence of the League of Nations mandates system and presenting its machinery. The Permanent Mandates Commission of the League of Nations wanted to emphasize that they were forming a truly unique system, instead of being another way of colonizing states beyond the borders of Europe. The mandatory powers were expected to take into consideration native laws and customs and to safeguard native rights and interests. In the second main section, I follow the emergence of the rights language in the minutes of the Mandates Commission during the years 1921-1939. In the absence of a fully-fledged modern vocabulary of rights language, I have examined discussions on land tenure, the obligations that newly independent territories would have, the eradication of slavery, the issues of forced labour, the position of women and the liberty of conscience as arenas of proto-rights language. In these debates, issues that are currently understood as rights issues were discussed under concepts like guarantees, liberties, obligations, social problems, matters, questions, and, albeit rarely, rights. Finally, I have studied the issue of individual petitions to the Mandates Commission, which were authorized by the League of Nations in 1923. In the third main section I have examined the afterlife of the mandates, particularly the mandates cases in the International Court of Justice. In these cases, the International Court of Justice revisits several times the meaning and content of the mandates, finally approaching them through the language of human rights. The League of Nations mandates system is not usually even mentioned in connection with human rights, but dropped entirely outside of the human rights narrative, or if considered, regarded as uninteresting. However, the mandates system is the first international institution where the demands of humanity and the welfare of the people were written down into the system and were evident in the international regulation and administration of theinstitution. There were established controls over how the mandatories would fulfil their obligations over the well-being of the population of the mandated areas. Yet, for the mandatories, the mandates system appearedonly little different from the previous colonial administration and to some extent the Mandates Commission shared this view.
  • Fyhr, Kim (Helsingin yliopisto, 2016)
    This study looks at the ex ante review of fundamental rights in the EU legislative process. It examines the rights-based review, which is carried out at different phases of EU law-making procedure before the EU legal act concerned is formally adopted and entered into force. An ex ante review of EU legislative proposals is examined here with relation to selected substantive fundamental rights, most notably the right to privacy and the right to data protection. Therefore, the normative framework of the analysis of the EU legislative process consists of fundamental rights which derive from the EU Charter of Fundamental Rights and the European Convention on Human Rights and the case law of the Court of Justice of the European Union and the European Court of Human Rights. Continuity and change in ex ante review of EU legislation will be examined by analyzing selected case studies involving concrete pieces of EU legislation that mainly fall under the Area of Freedom, Security and Justice - a highly sensitive policy sector from the point of view of fundamental rights. Most of the chosen legislative dossiers are inextricably linked with anti-terrorism measures. The research is predominantly of legal-empirical nature and intends to merge theory with practice in an analytical-descriptive way. The analysis of the selected case studies is guided by a reliance on such doctrinal and theoretical constructs of fundamental and human rights law as the test of permissible limitations on fundamental rights with the proportionality test at its apex. Moreover, aside from understanding fundamental rights as a set of negative obligations binding upon the legislature, due attention will also be paid to assessing how positive obligations regarding fundamental rights have been dealt with by the EU legislature. In light of the major findings of the study, the EU system of rights-based constitutional review has significantly changed. This is due to the impact of the legally-binding EU Charter of Fundamental Rights entry into force in 2009, which carries fundamental rights aspects assuming increasing significance at the level of daily legislative activities by the EU institutions. Similarly, the Member States also appear to increasingly use rights-language in their national observations on EU legislative proposals. We are witnessing a considerable empowerment of EU ex ante review, but in a manner that this does not entail a corresponding weakening of the rights-based review by the courts, especially the CJEU. It is claimed that the EU system of rights-based review of EU legislation is evolving gradually towards a hybrid and essentially pluralistic system of review in which ex ante and ex post phases of review complement each other. Similarly, the fundamental rights review system of the EU involves a number of institutions and actors, at different levels and phases, carrying out their own part in the rights-based review of EU legislation as a whole. Given its essentially pluralistic normative and institutional composition, the EU s rights-based review system as a whole contributes to topical discussion on European constitutionalism and constitutional pluralism. This evolution has led to fundamental rights being taken more seriously in the EU legislative process, which has also impacted institutions. Keywords: Constitutional law, European Union, European Union law, Fundamental rights, Ex ante rights-based review of legislative proposals, legislative procedures of the EU
  • Mansnérus, Juli (Helsingin yliopisto, 2016)
    Advanced therapy medicinal products (ATMPs), is a heterogeneous class of modern biotechnology medicines encompassing products based on genes, cells and tissues. ATMPs provide new therapeutic opportunities for many diseases and debilitating injuries to the human body, particularly in the disease areas where conventional treatments have proved insufficient. The ATMP Regulation was set up as a lex specialis to ensure the free movement of ATMPs within the EU in order to facilitate their access to the internal market, and therefore to foster the competitiveness of European pharmaceutical companies while guaranteeing the highest level of protection of public health. Since adoption of the Advanced Therapy Medical Product Regulation (EC) No. 1394/2007 (the ATMP Regulation) only 6 ATMPs have been granted marketing authorisations and 4 of them are still on the market. The primary objective of this study is to analyse the benefits and limitations of the ATMP Regulation from the perspective of SMEs, academia and non-profit organisations that develop ATMPs. Secondly, it discusses the kind of amendment to the ATMP Regulation and related regulatory instruments and processes required to accelerate translation of research into advanced therapies and to facilitate commercialisation of ATMPs whilst ensuring the safety of patients. In addition, it analyses implications of the EU s limited mandate in the field of public health for developers of ATMPs. This study also investigates whether barriers to commercialisation relate to ATMPs as such or whether something else in the innovation system is impeding their market entry. As an example of potential ATMPs undergoing development, it also considers some specific, regulatory and moral patenting obstacles that impede the market entry of human embryonic stem cell-based products. To foster research on ATMPs, regulators must take measures to create a facilitative regulatory environment that encourages innovation, protects public health and, finally, enables timely patient access to innovative therapies. Risk-proportionate approaches to clinical trials and GMP manufacture along with the European Medicine Agency s early access incentives and initiatives are presented as potential facilitators of market entry. The main regulatory measures suggested to foster innovation, improve safety and access to advanced therapies include: facilitating R and D by adaptive, risk-proportionate approaches to clinical trials and GMP manufacture, streamlining the ATMP Regulation (classifications and rules on so-called hospital exemption, in particular) and simplifying regulatory processes for ATMPs.
  • Ilmonen, Klaus (Helsingin yliopisto, 2016)
    The significance of EU level corporate governance regulation has been increasing in the years following the financial crisis. At the same time EU regulatory initiatives in this field have been subject to much criticism. The corporate governance systems in the EU vary significantly and it has been argued that EU initiatives have not been adapted to corporate environments prevalent in member states. This has been argued to have decreased the competitiveness of listed companies and the financial markets in the EU. Several EU corporate governance initiatives have also failed or been subject to considerable political compromise emphasizing the challenging political nature of the EU regulatory system. EU integration represents a model for coordinating interaction between different economies and political systems. Understanding how supranational systems work and developing regulation at this level remains an important venture. More attention is needed to adapt the design of EU regulation to the varied institutional environment across the EU. To be able to develop EU legal strategies and regulatory design in the field of corporate governance, a better understanding of the dynamics of EU policymaking remains important. The goal of the study is to provide a basis for developing legal strategies used in EU corporate governance regulation in light of the challenges of the (i) varied regulatory requirements of different corporate environments in the EU and (ii) the supranational political dynamics of corporate governance regulation. This requires a better awareness of the factors that affect (i) the impact and effectiveness of different legal strategies and regulatory mechanisms in different corporate environments and (ii) the political dynamics of EU policy-making with respect to corporate governance regulation. The study analyses corporate governance regulation in the context of specific environments of corporate governance and corporate ownership. With an emphasis on institutional and political aspects of corporate governance, the study analyses and compares the effects of different legal strategies in these environments; i.e. what the effects of different regulatory mechanisms have been on the relationships between corporate constituencies. The study focuses on corporate governance regulation in the context of concentrated ownership in a Nordic institutional environment. The study also analyses the political dynamics of EU policymaking based on economic theories of regulation and an institutional analysis of EU policy-making. The results of study include a framework for a corporate governance index that incorporates the prevalent institutional dynamic, as well as a qualitative model for developing regulatory policy at the EU level. The study relates to comparative corporate governance research and to political economy analysis of EU regulation.
  • Linna, Jukka (Helsingin yliopisto, 2016)
    The company as teacher? A systems theoretical interpretation of the incorporation of the universities of applied sciences This doctoral dissertation examines key organization models for economic activity, with a focus on limited liability companies and cooperatives. Under review are the expectations on the use of the limited liability company (LLC) form in situations where the primary purpose of operations is not making profit for the owners. This research examines the question of which legal and other expectations were attached to the LLC model when it was chosen to be the only form for organizing universities of applied sciences (UAS) administered by the Ministry of Education and Culture. Related questions are whether the expectations were well founded and what other consequences the choice of LLC model for UAS s may hold. The research argument is that the cooperative form would have been a better alternative for UAS s than the LLC. This paper identifies the LLC as the generic model for a legal person in modern society. These companies produce an increasing share of goods and services in the world. At the same time, more and more public services, which previously were directly provided by the state or municipal authorities, are now being produced by LLC s, whether publicly owned or private. In addition, even in organizations where the incorporation has not yet been carried out, methods developed for the management and control of companies are followed. The final incorporation process of the UAS s was implemented so that the already existing UAS administrator companies or new specially formed LLC s were granted a permit for UAS activities. Monitoring this transformation process gave an opportunity to acquire a deeper insight into the arguments made for the use of LLC s for non-profit purposes, the kinds of legal, economic and other expectations related to this, the benefits and risks involved, and the ways in which these factors have been discussed at various stages. The main theoretical basis for the study is systems theory and, in particular, its further developments by Niklas Luhmann. Luhmann sees society in terms of systems that have historically differentiated to manage their own specific function. These function systems include at least the economy, science, politics, religion, and education, each with their own codes. It is the differentiation that explains the performance and the continuously growing complexity of modern society. From the systems theoretical standpoint this study engages with issues relating to Law and Economics and the NPM, or New Public Management. There is also a short historical overview of the development of LLS s and cooperatives, as wells as characterizations of both legal person forms. The methods used in the research include document analysis of the law drafting materials and expert interviews. As an interventional method, a written opinion was sent to the Parliament s Education and Culture Committee at the time it was considering the Government's proposal for the new UAS law. The expectations for LLCs were clarified through analysis of the different source materials. The spectrum of expectations turned out to be wide. The presence of the economic code was notable. The study presents justifications for the argument that based on these expectations the cooperative form would have been a better solution for the UAS s than the LLC form. In addition, a model is proposed in which the UAS community members, students, teachers and other personnel, are also members of a cooperative UAS. Educational and economic justifications, in particular, are presented for this model.
  • Ryynänen, Juha (Edita Publishing Oy, 2016)
    The purpose of this study is to answer the following question: How do changes in a construction project affect the contractual relationship between employer and contractor? Traditionally, the contractual balance has been seen as a static equilibrium between reciprocal rights and duties as set forth by the parties at the time their agreement commences. For example, in a sales contract the seller and buyer determine the balance between goods sold and sales price at the time the contracts commences. The traditional view of contractual balance is best suited to a short-term contract, which is agreed under the assumption of perfect information. In contrast to a sales agreement, a construction contract is typically a long-term agreement which is incomplete at its birth. A construction contract is typically subject to changes (changes in works, costs and/or timing) that occur during the construction project after the date the agreement commences. Some of the relevant changes result from unexpected changes in circumstances over which the parties have no control, but some are under their control i.e. variation orders given by the employer. Regardless of its origin, a change may have an impact on works (including impact on the scope, timing and order of the works), contract price and/or contract time. In this study works, price and time are described as the dynamic components of a construction contract. This study proposes a model of contractual balance based on an equilibrium between the dynamic components mentioned above. Changes and the contractual balance are managed through rules of completion. The rules of completion can be divided into primary and secondary rules of completion. The primary rules of completion include those rules agreed to by the parties in the contract, taking into account the limitations of mandatory rules of law and good building practice. The secondary rules of completion apply to situations not covered by the primary rules of completion. This study identifies four secondary rules of completion: the in dubio contra stipulatorem rule, the in dubio minimis rule, the effectlessness rule (fin. vaikutuksettomuusolettama) and the proportionality rule (in Finnish suhteellisuussääntö). The rules of completion and their implementation are discussed in detail, taking into account general terms of contract, especially YSE 1998.
  • Juurikkala, Oskari (Helsingin yliopisto, 2015)
    The study investigates the legal and regulatory aspects of credit default swaps (CDSs), a controversial financial transaction that functions as a type of credit risk insurance. Regarding their legal characterization, it is found that CDSs should normally be classified as insurance contracts unless such classification has been specifically excluded by legislation. It is incorrect to treat them as financial securities, because CDSs are strictly bilateral contracts that can be traded in secondary markets only improperly through novations. Despite their name, their classification as swaps does not correspond to the standard financial meaning of swaps. Recent legislation has broadened the category of swaps to include these transactions in some cases, but the outcome is even more confusing in terms of legal doctrine. Regarding regulatory policy, it is found that the problems created by CDSs should be tackled by a combination of regulatory strategies. At present, the principal regulatory framework is the industry self-governance architecture designed and controlled by the International Swaps and Derivatives Association (ISDA); despite its many weaknesses it also has advantages, which might be harnessed through co-regulation. In terms of transparency regulation, the post-crisis regulatory reforms have moderately reduced the opacity of the CDS market, and increased disclosures would probably fail to address the main problems associated with CDSs. Compulsory central counterparty (CCP) clearing has acquired prominence through the post-crisis regulatory reforms; it is however unlikely to work well for CDSs, which are functionally not swaps but credit insurance, so that their risk profile is asymmetric and involves significant fat tails and macroeconomic correlation. In the future, the most promising alternative is to apply the principles of credit insurance regulation in a way that addresses the peculiar concerns raised by CDSs. Targeted protection selling limits might be applied within the post-reform regulatory scheme that covers CCPs and compulsory collateral requirements. Targeted protection buying regulation is also an option, and the recent European short selling regulation provides a useful test case that will be studied empirically in order to evaluate its effectiveness and costs.
  • Ylhäinen, Marjo-Riikka (Helsingin yliopisto, 2015)
    The problem of this research is the critical tension between the legal principle of protection of the employee and the changes that has occurred both in society and in the production process. Designated as precarisation, the said changes appear as changes in the production process, in the ways in which work is organized, in what the work substantively consists of, as well as in the forms in which work is conducted. Responding to these changes is important for the materialization of the principle of the protection of the employee. Crucial for this response are the preconceptions concerning the workplace operational environment as well as one s understanding of the notion of work in labour law. These are inbuilt to labour law as a branch of law, to its general doctrines as well as to the ideologies that work in its background. Labour law takes form in a critical tension between the interest of production (its smooth flow) and the interest of protecting the worker. Practice of labour law (case-law) reproduces our notion of the normal work together with its background assumptions. These assumptions involve a certain idealization of the wage-earner society. The phenomenon of precarisation brings critically visible the boundaries of that society, which seems to have been both ideal and normal at once. Precarisation poses serious questions to labour law thinking and its principle of the protection of the employee. Two discourses emerge from the case-materials: discourse on (dependent) heteronomous work and discourse on business activity. In the traditional discourse of heteronomous work, labour law purports to protect contracted workers and employer s business is understood as durable and ongoing process. Traditional discourse is built on the tension between business activity that is continuous and workers who need protection. In the rival discourse appears an image of the employer as a victim to the constant variation of business conditions and to the ensuing insecurity. Employer is viewed as an administrator of irregular production processes, not as someone who exercises power. Left at the mercy of the fluctuation of conditions beyond their will, employers will be no longer seen as wielding power in the way traditional labour law assumes. As long as the background assumption of a continuous process of production holds the principle of protection of the employee will waver. The theorethical and methodological framework of the thesis is three-dimensional. Firstly labour law is positioned in the context of continuously changing, precarious society. Secondly labour law is observed as juridical discipline which is constructed through the works of labour law scholars This dogmatic disciplinary system forms the normative lenses that are internalized in the habitus of layers. These lenses also reflect the underpinning ideas and ideologies that work in the background of labour law. Thirdly the juridical praxis of labour is analyesd using cases concerning atypical employment as material. The speech in these cases form different kind of images of work, business, employee and employer. The different images are part of two differing discourses, one that is called the dependent work discourse and the other that is called the business activity discourse. Both discourses reflect and re-produce the images typical in labour law an in wage- earning-society. The business-activity discourse that has it s point of refrence at the edge of labour law thinking also reflects the priority of employers prerogrative and as such forms the point wehere the precarious society steps into labour law.
  • Juutilainen, Teemu (2015)
    This study seeks the optimal way to promote compatibility between systems of proprietary security rights in Europe. The focus is on security rights over tangible movables and receivables. Compatibility is understood as the absence of cross-border problems, notably uncertain enforceability and unexpected loss of proprietary security rights, or as the availability of workable solutions to them. Current cross-border problems mainly concern enforceability of proprietary security rights against third parties, including a security-provider debtor s other creditors on insolvency. The study organises the concrete means through which compatibility can be promoted into four main groups, or approaches . These are a centralised substantive approach and three gentler approaches , namely a centralised conflicts-approach, a local conflicts-approach and a local substantive approach. Means within the centralised approaches can be introduced at European Union level, and means within the local approaches at Member State level. The substantive approaches seek to eliminate diversity by unification or harmonisation of substantive law, whereas the conflicts approaches mainly rely on private international law. The study introduces and defends the view that current circumstances call for an integrated approach, which attempts to combine the advantages and avoid the disadvantages of all four approaches. The feasibility of an integrated approach can be confirmed, and its content determined, only by way of a division of labour between the four approaches. This requires choices between the concrete means within each of the four approaches. To guide that division of labour, the study proposes a set of objectives with a view to capturing the essence of what can be regarded as desirable development towards greater compatibility. The objectives are: foreseeability, derived from the economic functions of proprietary security rights; responsiveness, derived from certain evolutionary aspects of the law; and division of unforeseeability costs, derived from a transnational conception of justice. Importantly, the tension between foreseeability and responsiveness gives rise to a theory of how to reconcile the need for certainty in credit markets and the more general need for the law to adapt to different and changing economic and social circumstances and value choices. The set of objectives provides criteria for choices between the concrete means within the four approaches. If the proposed objectives are accepted, the choices guided by them can be taken as the optimal way of promoting compatibility, which completes the research.
  • Pere, Tuula (Fourth Life Publishing, 2015)
    PROTECTED, TOLERATED OR SANCTIONED FREEDOM OF SPEECH? A legal-historical study on the impact of the social and cultural shift of the 1960 s and 1970 s on the limits of the freedom of speech in mass communication in Finland. This legal historical study looked into the impact of the social and cultural shift in the 1960 s and 1970 s on the limits of the freedom of speech in the Finnish mass media as it was exercised by the press, radio and television. The limits of the freedom of speech were considered in the broad sense of the term, with focus not only on legal regulation and self-regulation but also on the actual limits in exercising the freedom of speech. Mass communication during the shift was represented by strongly opposing ideologies, and it was utilised both in supporting the prevailing hegemony and in toppling it. Mass communication took to supervising the powers of other forces, becoming a social influence a fourth estate even, in some people s view. After the war years, the Finnish society had been rebuilt in a joint effort, improving the situation of its citizens by means of social, health and educational policies and by specifying the practices of the labour market. However, the actual social and cultural shift did not take place until the 1960 s and 1970 s and had to do with the changes in the economic and demographic structures and the emergence of the baby-boom generation as active citizens. Aside from material good, a wider population could now benefit from higher education, which enabled them to climb the social ladder and thus provide them with more influence. The welfare state developed hand in hand with the democratic opportunities of the citizens. A citizen had become interesting both as a voter and a consumer. The volume and technology of communication developed significantly, bringing about a new climate of opinion, which changed people s ideas about the appropriate limits of the freedom of speech. To analyse the judicial shift under study, a contextual legal historical approach was employed. Owing to the nature of the research at hand, connections to the different fields of law and the fields of science are manifold. The study, which falls into the field of law, has points in common mostly with the perspectives of the studies of social sciences, cultural history and social history and history of ideologies. The data gathered from the subject of study have been analysed by linking together previous findings in rarely seen ways. The analysis focused primarily on the national level. The domestic phenomena were closely linked with the equivalent developments of other Western countries the Nordic countries in particular. Moreover, comparisons were made with the developments in the United States, as they influenced the Finnish society as well cf. the peace movement, the women s movement, racial issues, the increasing activism among youth, and the commercial use of the freedom of speech. On the other hand, the international situation of the cold war era, the political pressure coming from the Soviet Union, and the phenomenon of finlandisation, had an impact on the speech and mass communication in Finland. The changes in the Finnish mass communication environment during the shift involved the structures, operating conditions and media contents alike. The transformed attitudes were manifested both in the discussed topics and the manner in which they were discussed. There was an increase in the diversity of opinion, the differences of opinion came to a head, and the media were subjected to both internal and external pressure. Mass communication was actively involved in the social development. Tabloids brought their own flavour to the opposing interests in mass communication, managing successfully to turn the voyeuristic and sensation-seeking behaviour of people into profitable business. As the research progressed, it became evident that if it was still possible to discern some sort of collective idea of the freedom of speech with the advent of the 1960 s, this became increasingly difficult once the shift got properly underway. The old boundaries were pushed both in the political mass communication and politically-oriented entertainment. On the European scale, the Finnish television system was from the very beginning a unique and curious combination of both ideological and commercial elements and players. The coupling of the commercial media with the parliamentary-controlled Finnish Broadcasting Company (Yleisradio) was a difficult political issue right from the early days of Finnish television. In the era of Reporadio, (a pejorative nickname referring to the President of the company at the time) television, the newcomer in the electronic media, brought forth leftist mass communication and entertainment. This was offset by the American-oriented worldview of commercials, series and films. The operating environments for exercising the political freedom of speech and the commercial communications saw a rapid transformation. Finland s location at the interface between the East and the West was also manifested in how two opposing ideologies collided in the Finnish mass media. At the core of the freedom of speech in mass communication in the social and political sphere of mass communication there was a tough ideological battle going on, with the leftist orientation and the even wider bowing to the East not uncommon during the era of finlandisation strongly represented. Besides the leftist party papers and various ideological papers, the leftist tendencies in the press were also represented by a group of radical reporters within the mainstream press. The new practices of mass communication, and breaking the old boundaries in the spirit of a cultural shift, sometimes caused disapproval and backlashes in all areas of communications. Offences against religious and moral beliefs and patriotic feelings became the topic of hot debates and were discussed by the various bodies controlling the use of words by mass media even in the courts of law. The transformed society was coloured by an array of opinions, and the interpretations as to the limits of the freedom of speech varied greatly. New demarcations and supportive regulation thereof were called for. The legal regulation as to how the mass media exercised the freedom of speech did not essentially change during the period under study, leaving the effects of the changes on the everyday life of mass communications rather insignificant as a whole. As for self-regulation, the mass media and advertising aimed proactively and voluntarily to act appropriately in the media. Despite long preparations, numerous law initiatives fizzled out or were only implemented in the decades to come. However, the effort put in the preparation made a difference in the political life and public debate of the era. Advertising was subject to harsh criticism particularly from the left wing and the consumer movement, forcing the legislature and the self-regulatory norms to tighten up, particularly in alcohol and tobacco advertising. Legislative means were also employed for better protection of privacy threatened by the tabloids. The factors most affecting the boundaries of the freedom of speech were seldom discernible in regulatory actions. The actual freedom of speech exercised in mass communication was in some cases wider than the formal regulation, which trailed behind, while in some cases narrower, due to practical operational preconditions or external pressure, for instance. In comparison with the past, freedom of speech as a whole flourished relatively freely, despite the fact that the regulations were not loosened or modernised. It was more about a greater flexibility and tolerance of control and decision-making which aimed to facilitate the releasing of shift era pressures. On the other hand, the political restrictions and self-censorship due to the pressure built up during the period of finlandisation clearly limited the freedom of speech in mass communication.
  • Hannuniemi, Anja (ei ole vielä painettu, 2015)
    Parents Mental Disorders and Parental Alienation in Custody Disputes. A Medical Legal and Legal Sociological Study. The aim of the thesis is to find out solutions for a better management of custody disputes. Several studies show that children in especially high-conflict custody cases suffer in various ways and also permanently of the high conflict. The main recommendation to improve the system is a law-based psychiatric evaluation of parents when the dispute is at risk of escalation. The thesis consists of four articles and the summary. The articles are written about the problems present in high-conflict custody disputes; the parents mental disorders and their proneness to alienate their children from the other parent. To study the circumstances in the litigating families and the proceedings an empirical research was performed by getting information about court cases, in which the other parent has tried to get an enforcement of a court order concerning his/her access to the child. Court decisions were supplemented with other kinds of decisions concerning the same children and their parents, especially custody decisions, and information about the family relations, occupational status, compulsory care and other social services, mental health, debts, criminality, and deaths. The original number of the cases are 114, but they were reduced to 103 as non-custody cases were left away. The total time of the disputes are counted from the beginning of the first proceeding to the end of the last one. 103 cases are divided in three subgroups: 1) Short disputes (41) with a duration under two years, 2) Middle lenght disputes (36) from two years to five years five months, and 3) Long disputes (26) from five years five months to twelve years. Results: 1) 40 percent of all litigants suffer from a psychiatric disorder or substance abuse. The average prevalence of mental disorders in populations is considered to be 20 per cent, and the litigants exceed it twofold. The number of men and women with disorders is the same, but women have about two times more severe and mood disorders than men and men two times more substance abuse than women. 2) In the long disputes litigants have nearly as much disorders as the litigants in the short and middle lenght disputes counted together. The litigants in the short and middle lenght disputes have nearly same amount of disorders. 3) Of all 103 families 69 (67 per cent) are clients of child protection; in the long cases all exception one family. After the dispute has continued four years, practically all families are clients of child protection. About 20 per cent of the children are taken in compulsory care. 4) Litigants have also much umemployment, unability to work, economic and housing problems,and the number of litigants with these problems grows as the disputes get longer. 5) Proportion of litigants with alienating behaviour or some other attitude problem harming children ranges in different kinds of disputes from 74 to 88 per cent in women, and from 43 per cent to 88 per cent in men.
  • Günsberg, Patrick (2015)
    Drawing on a comparative approach this study discusses the criminalization of the so-called hard-core cartels and suggests that despite possible pitfalls it continues to be a worthy endeavor. It seems that the integrity of the criminal justice system warrants the introduction of a criminalized anti-cartel regime, a project that should be on the agenda for all modern economies, including Finland and Sweden. However, one should not rashly proceed with such a vast project without carefully considering all the components that go into a successful regime lest the project become an asset turned into a liability. Crucially a failure regarding one or few components may undermine the whole project, as the UK experience may confirm. In the gravest cases criminal law alone could communicate adequately the blameworthiness of a given conduct: cartels impair one of the core pillars of our society, the market economy on which individuals depend in an attempt to ensure their own welfare. Indeed the bold disobedience to the whole system appears to be at the core of what is delinquent about cartels. Overcriminalization critique concerning a possible criminalization of cartel conduct seems to ignore the moral educative function of criminal law. The public may come to denounce behavior that was previously perceived to be neutral in moral terms one may think of the environmental offences for instance. Certainly public opinion could be shaped by experts views in complex fields of law. A coherent EU criminal policy and a national one for that matter, with regard to cartels should promote uniformity: the credibility of the criminal justice system is supported by criminally banning violations of a similar penal value. The justification for an exclusively administrative mode of anti-cartel enforcement appears vague. It seems that administrative sanctions could be properly adopted only against minor offences, whereas cartels as an egregious violation of competition law do not seem to fall within that category. Arguably, cartel conduct warrants the ultimate condemnation provided only by criminal law. Other measures would not produce the stigmatizing label on a par with criminal measures. Several EU member states have introduced criminal cartel offences whereas similar rules are absent at the EU level. In that regard it may be noted that it would hardly make for a coherent EU criminal policy if larger cross-border cartels did not prompt criminal liability whereas at the national level cartels were caught by criminal prohibition. Moreover, it may be argued that the UK problems with the cartel offence stem partly from the lack of harmonization in the EU, which may have also contributed to the misguided policy of relying exclusively on administrative sanctions in Finland where individual liability is completely absent. While the optimal deterrence theory cannot alone be relied upon to back a cartel criminalization project, it may remain a point of continued interest in the cartel criminalization debate due to its theoretical appeal. All in all, there are several commentators and jurisdictions that rightly acknowledge the value of a mixture of measures being available in the fight against cartels, including director disqualification orders, fines and custodial sanctions.
  • Miettinen, Samuli (2015)
    How is EU criminal legislative competence regulated after the Lisbon Treaty? The European Union has always had powers which affect national criminal law. Classic internal market judgments consider whether national criminal law measures are justified restrictions of freedom of movement. The Union s direct legislative powers in this field have developed more slowly through international agreements, Treaty revision and the case law of the Court of Justice on implied powers. This study asks what powers have been conferred on the Union in the field of substantive criminal law and how the exercise of its powers may be reviewed after the entry into force of the Lisbon Treaty. The questions raise a wide range of issues relevant to EU criminal law, but also to EU constitutional, administrative and institutional law. A state-centric view of European integration holds that EU criminal law powers were framed to preserve core areas of national sovereignty. Scholarship in the field of EU criminal law is often ambivalent or critical of centralized powers in this field. Addressing the Union s competence creep was at the heart of constitutional reforms incorporated by the Lisbon Treaty. This sentiment explains some unusual features of the field after those revisions: the emergency brake , the special position of the UK, Ireland and Denmark, limits to Court of Justice jurisdiction, the unanimity requirement for states participating in the European Public Prosecutor s office, more sensitive ex ante subsidiarity control, and limiting express criminal law powers to directives. Nevertheless, these limits are constructed from the reference point of EU institutional law. The survey of those elements shows that the foundations of these structures are unreliable. If codification was intended to limit creeping competence , the framers have failed. Case law of the Court of Justice of the European Union after December 2009 suggests that Article 83 TFEU, or even the complete set of legal bases in the Union s area of freedom, security and justice , is not an exhaustive codification of the Union s criminal law powers. The central question in the calculus, the Court s rules on choice of legal bases , has been susceptible to creative drafting and suffers from weak judicial oversight. Legislative practice suggests that the new safeguards can be sidelined in this process. Thus, the central, and important debates in EU criminal law on the meaning of specific concepts like minimum rules , what crimes can be included in the 83(1) list, and how the European Public Prosecutor should operate may be gradually sidelined by the incoming tide , or at least creeping competence in other estuaries. At the same time, Member States cling to pre-Lisbon practices that restrict the exercise of competence but which seem disconnected from the post-Lisbon legal framework. A detailed examination of this field finds anomalies in the external relations law of the Union, where pragmatism prevails. Small elements that have criminal law implications may be included within Union powers where express internal competence is doubtful. In others, declarations of competence appear to reserve powers to the Member States that the Union could lawfully exercise. The Court now accepts ancillary provisions with criminal law relevance in mainstream measures that do not offer the safeguards of the express criminal law provisions. This is demonstrated by analogy with the case law on issues in the area of freedom, security and justice . Thus, social security coordination measures can be based on the free movement provisions, criminal law obligations may be part of the common commercial policy, and agreements on the treatment of suspected pirates may properly be concluded as part of an agreement that is exclusively Common Foreign and Security Policy. The Court even allows the EU legislature to predetermine the success of any legal challenge because it relies primarily on textual evidence in recitals to determine the aim of the legislature. Thus, measures establishing information systems and exchange mechanisms concerning road traffic offences are measures of transport policy, not measures concerning cooperation in criminal matters, and data retention is an internal market measure. These judgments have surprised academics, national governments, and even EU institutions legal services. Questions also arise as to the effectiveness of the new safeguards even when they are not circumvented. The emergency brake may lead to consensualism, but it is not pulled when a Member State position that is presented as a red line is ignored. The pleadings of the opt-out states in key cases suggest that national governments are not policing their opt-out. National parliaments rarely raise formal subsidiarity concerns. Intervention is rare even if an EU proposal raises constitutional issues and overrules significant policy choices in national criminal law. National policy choices may be legitimate even if the Union has the technical capacity to overrule them. National criminal law scholars often argue that integration in criminal law will come at a high personal cost to the victims of that policy unless appropriate safeguards are developed. The Court of Justice has struggled to distinguish between criminal and civil rules in the European Union constitutional system. Instead, it has developed institutional safeguards that require, as far as possible, democratic decision-making. It has also begun to use fundamental rights, and in particular the Charter of Fundamental Rights, to test the legality of Union action. Thus, whilst its standard of review has been criticized in the past, the findings suggest the Court may be better placed to cope with the increasing trend to treat de facto penal law as administrative rules than the corpus of EU judicial review literature suggests. This research has used standard legal research methods but combines these with an element of the law in action in the field of EU transparency law. During the research, it became clear that the key research questions required material that had not been published. In order to study the drafting processes, the study sought and obtained series of documents that were not originally released for public use. These include legislative negotiation documents, legal opinions of the legal services, and even the pleadings of Member States and EU institutions in key constitutional law cases. One document was released through litigation; another is pending litigation. Both cases raise novel points in transparency law that may have wide-reaching consequences on the nature of the EU criminal legislative process. To what extent should it be open to public scrutiny? Should the Union consider strictly defined conferral or procedural limits to the enumerated powers? The history of constitutional limits is that they are circumvented at the first opportunity when a crisis presents itself. It is possible to conceive some which are more difficult to ignore than those which appear to have buckled under the strain of post-Lisbon practice. However, when limits are drafted in a strict form, this can later cause constitutional contortions that call into question the rule of law. Instead, the present criminal competence control has been effectively proceduralized: particular steps must be taken, but their review is likely to be unintrusive or sympathetic. More legal research is required in the pre-legislative stage, even to understand the nature of competence control. Debates in poorly studied legislative forums are likely to shed great light on the Union s constitution: what happens .
  • Savola, Pekka (Helsingin yliopisto, 2015)
    This article-based dissertation examines the involuntary role of Internet connectivity providers in copyright enforcement in the EU, and in particular injunctions ordering user-end providers to block access to websites facilitating infringement. The main method is doctrinal legal scholarship supplemented by a socio-legal study of legal policy, seeking answers to the why questions underlying the law. Copyright enforcement measures using providers include website blocking, disconnecting the website or the user, subscriber information disclosure, and notice or graduated response mechanisms. There are also dozens of other options for enforcement, and the IPR holder may select the optimal one(s). In international settings, this can be further optimised by the choice of jurisdiction, the applicable law, and characterisation of the infringement. These provide opportunities for gaming the system . Enforcement proceedings are problematic because typically only the copyright holder and possibly the provider are represented in court. Nobody is responsible for arguing for the users or website operators. The court should take their interests into account on its own motion. Unfortunately, many courts have not yet recognised this responsibility. Even this dual role as both the defender of unrepresented parties and judge is less than ideal and improvement is called for. All the enforcement mechanisms must be compatible with EU fundamental rights, as well as the national ones. A proportionality evaluation procedure is suggested, consisting of identifying the context, the interests of different parties, and applicable principles as well as formulating the evaluation criteria and applying them in a proportionality test. In the test, the legitimacy of the objective, suitability for the purpose, necessity and balancing need to be critically assessed. The underlying goal of copyright enforcement has implications for how the scale tilts. Ineffective enforcement mechanisms can be more easily accepted if the goal of symbolic, educational or politically motivated enforcement is deemed legitimate. However, if the goal is to decrease the impact of infringement, greater efficiency and economically quantifiable results may be required. A proportionate mechanism does not necessarily exist in any particular case. Current enforcement legislation is a product of heavy lobbying by the copyright industry. This has led to the legislators being inundated with copyright ideology and proprietarian bias. In consequence, the legislation fails to take the more general public policy interests and the rights of others into account adequately. The pressure is on rationalising rather than expanding the role of connectivity providers. This background context also calls for a critical approach to interpreting the law. Such an approach might help in achieving more rational and balanced justifications and conclusions.