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  • Makkonen, Timo (Helsingin yliopisto, 2010)
    A peculiar circumstance characterizes the fight against racial and ethnic discrimination. On the one hand, international legal protection against these forms of discrimination appears to be exceptionally strong. Discrimination on the basis of race is prohibited virtually by every key human rights document. The International Convention on the Elimination of all forms of Racial Discrimination has been ratified by none less than 173 countries. The EU Racial Equality Directive, for its part, has raised the standard of protection to an entirely new level across the EU. On the other hand, racial and ethnic discrimination is still rampant everywhere in the world, including Europe. According to a large-scale survey published by the EU Agency for Fundamental Rights (FRA) in 2009, some 30% of the persons belonging to the surveyed immigrant and minority groups have experienced discrimination on account of their origin in the course of the past 12 months. Other quantitative and qualitative research undertakings have confirmed the high prevalence of discrimination in our contemporary societies. Contrary to popular beliefs and media reports that portray discrimination in terms of relatively rare incidents perpetrated by people belonging to rather marginal extremist movements (neo-nazism, skinheads, extreme right-wing groups), it is argued that contemporary forms of discrimination are recurring, take typically place in the course of everyday life (work, education, leisure), are often subtle (yet significant), and that it is ordinary people rather than extremists that tend to engage in it. Moreover, the study analyses the causes and consequences of discrimination, and concludes that discrimination and the disadvantage it engenders form a vicious circle that is very difficult to put a stop to. The study sets out to analyse the gap between the ideal and the real , the law and the reality. It analyses the contemporary forms of discrimination and how the international and European law attempts to cope with it. The approach is multidisciplinary: research findings from sociology and social psychology are used to analyse contemporary forms of discrimination and its causes and consequences, as well as to assess the effectiveness of the different possible countermeasures. Ordinary methods of legal interpretation are used to examine the current legal response to discrimination. The study concludes that one of the key reasons why the legal protection offered by the international and European legal instruments is not effective is that it relies rather exclusively on an individual litigation based model of enforcement. This model is not particularly effective, because people who experience discrimination face many different hurdles in bringing legal action, in particular with respect to proving their cases. Indeed, only some 18% of the victims of discrimination report their experiences to the authorities or at the organisation where the discrimination took place. Overall, the study argues in favour of a need to engage in active policies for the promotion of equal rights and equal opportunities. It explores tools such as data collection, positive action and positive duties, and analyses how these can be used to promote equality. It moreover analyses and acknowledges the limited effectiveness of also these tools, and concludes that it will likely be the case also in the future that some individuals are equal in law but unequal in fact.
  • Jääskinen, Niilo (Helsingin yliopisto, 2008)
    The Europeanization of Law – Jurisprudential Problems The study’s point of departure is to use the evolution of EU Law as a huge societal experience providing us with insight that enables us to test the tenability of the basic theoretical constructions of analytical legal positivism. The thesis consists of a collection of articles and a summary. The summary forms, at an abstract legal-theoretical level, a rational reconstruction of the themes discussed in the articles. The summary updates the articles and provides a rational “legal-theoretical” reconstruction of the themes addressed in the articles. This reconstruction is based on an orthodox understanding of EU law as an autonomous legal order that is valid as applicable binding law in the Member States but retains its independent character as EU law and is not merged into national law. This entails that Europeanization leads to an asymmetric view of valid law: for national judges valid law is a combination of national and European law; for EU judges, valid law is only EU law. In the summary, the different interpretations that can be given to the concept of Europeanization of law are analysed on the basis of a conceptual framework that makes a distinction between propositional/behavioural and concrete/abstract aspects of law. The framework is inspired by J.W.Harris’s distinction between momentary and non-momentary legal systems and Kaarlo Tuori’s three-level model of law. This leads to a conceptual stipulation that distinguishes between the legal order (concrete/propositional), juridical practices (concrete/ behavioural), the legal system (abstract/propositional) and legal culture (abstract/behavioural.In the context of the legal order the issues discussed include the ultimate rules (Grundnorm,Rule of Recognition) that form the foundations of legal order and the representation of Europeanized law as contextual fields of consistent normative meaning based on both national and European sources. The discussion of the Europeanization of juridical practices addresses such questions as the penetration of European law into national legislation and adjudication. Concerning Europeanization of the legal system the discussion takes up such themes as conceptual divergence between EU law and national law, fragmentation of national law, the metaconstitutional paradox in the EU and the relation between European democracy and EU law.Finally, the chapter on legal culture proposes a hermeneutic understanding of the concept of legal of culture as unarticulated Vorverständniss, and links the discussion of the approximation of legal cultures in the EU to Aulis Aarnio’s theory of legal audiences.
  • Pijetlovic, Katarina (Springer, 2015)
    This dissertation analyses the legal problem posed by the clauses in UEFA Statutes that prevent clubs from unauthorised formation of alternative transnational structures in football. Unequivocally, these clauses constitute restrictions on economic activities of football clubs in their capacity as undertakings contrary to EU competition and internal market laws, in particular, Articles 101, 102 and 56 TFEU that form the core of EU sports law. More contentiously, however, the heart of the analysis lies in the question of justification and proportionality of the restrictions, which could possibly render the restrictive UEFA clauses legal and enforceable. Over the past 20 years, a solid body of case law, legislation and EU policy documents developed a distinct legal discipline that can be referred to as EU sports law and that can facilitate in resolving this question. The essence of EU sports law lies in the custom-tailored application of traditional economic provisions that takes account of the specificities of sport, a concept that has been given constitutional basis in Article 165 TFEU after the Lisbon Treaty amendments. Moreover, the approach to specificity of sport can be traced back to its origins in 1974 Walrave case, and it forms the basis of the crucial notion of sporting exception in the EU law. This study first highlights the problems in the governance of European football with particular reference to power struggles between UEFA and the elite football clubs and the threats of formation of alternative cross-border leagues by the clubs. Thereafter, the study sets out and discerns the principles underlying the application of EU freedom of movement and competition law to legal disputes in the sports sector, contributing several original interpretations of the key sports cases, such as Bosman, Meca-Medina, Bernard, and Murphy. Most prominent contribution of this thesis to the general study of EU sports law, however, is sketching a novel way of looking at the different categories of sporting exceptions through the prism of convergence between EU free movement law and competition law. The quest for convergence revealed a largely streamlined analytical framework in the sporting cases that involve organisational/regulatory rules and rely on public interest justifications. Finally, thus streamlined framework is applied to analyse the question of legality of the UEFA clauses restricting the formation of breakaway leagues. Some of the conclusions that emerge from this analytical process are surprising, in particular those pertaining to UEFA s power on the relevant market for organisational services for transnational club football in Europe.
  • Hellsten, Jari (Helsingin yliopisto, 2007)
    The dissertation comprises four articles which have as a leading theme the relationship between the economic and social factors in EU labour law. The first one, headed On Social and Economic Factors in the Developing European Labour Law discusses EU directives on collective redundancies and transfer of undertakings. The author also criticizes the theory of converse pyramids, according to which the social factors would be generally subordinated to economic factors in EU law. The second article, On the Social Dimension in Posting of Workers , discusses the Posted Workers Directive (96/71) and highlights how it applies within the legal framework set up by the EC Treaty, which also means that a proportionality assessment is applicable to the workers rights under the directive. In the context of the Laval case the author concludes that the ILO obligations of the EU Member States form a valid legal basis for such action in EU law, too, which is based on a combined effect of Article 307(1) EC and general international law. The third article, On the Social Dimension in the Context of EC Competition Law , deals with the interpretation of the relationship between collective labour agreements and competition rules on the basis of the Albany judgment. The immunity of collective labour agreements set up in that judgment is fundamental. The author concludes regarding Article 86(2) EC that it may also cover particular social tasks of general interest. At social security systems this may mean that, as the AOK Bundeskassen judgment shows, certain competition elements included in such systems do not necessarily lead to the application of competition rules. Accordingly, in the Finnish Earnings-Relates Pension Scheme TEL certain inherent restrictions of competition should be regarded as justified under Article 86(2) EC. In the fourth article, From Internal Market Regulation to ordre communautaire social , the author develops a proposal for a new collective labour law paradigm in the EU. It would comprise the leading premises and principles of EU and international labour law: labour is not a commodity (the ILO Constitution), improvement of working conditions (Article 136 EC), respect for EU and international fundamental rights, respect for the European social model (prominent role of collective agreements) and non-discrimination of grounds of nationality. An employer acting against these principles should not enjoy legal protection in EU law. As to the development of collective labour law in the EU, the author adheres to the thesis that in the long run Europeanisation of economy leads to the emergence of a European framework. However, at present it seems to develop essentially through case-law (the Laval and Viking cases).
  • 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.
  • Nyholm, Elina (Helsingin yliopisto, 2015)
    The research question relates to the content of the ex post supervision provisions of the Finnish Environmental Protection Act (EPA) under the currently valid legislation. The study particularly focuses upon single control orders (EPA Section 180), indirect administrative compulsion (EPA Sections 175 through 176) and direct administrative compulsion (EPA Section 181). The objective is to systematize the mutual delineation of the scopes of application of the said provisions. The study utilizes the method of legal dogmatics. Furthermore, the aim is to present views on how the ex post control provisions of the EPA should be developed. A particular methodical characteristic entails the ample utilization of also unpublished case law, primarily in highlighting the problematic issues. For this reason, the study also exhibits characteristics of empirical legal research. This is also why the study is additionally distinctly connected to administrative procedural law, albeit it is categorized under environmental law, or, more precisely, under environmental protection law. The study examines the instances when activities causing the threat of environmental pollution can be targeted with a single control order, when the activities are in breach of the EPA, a decree or regulation issued under it in such a manner that it can be targeted with indirect administrative compulsion, and what are the prerequisites that need to be met for the causing of the pollution to be capable of being addressed by means of direct administrative compulsion, i.e. the immediate suspension of the activities. The study systematizes the obligations contained in the various provisions of the EPA, and those contained in the decrees and regulations issued under the EPA, compliance with which can be enforced by means of indirect administrative compulsion. The pivotal finding comprises the systematization of the provisions of the EPA in such a manner that the situations entitling to the application of the various ex post supervisory measures and the mutual boundaries of the ex post supervisory measures scopes of application become less ambiguous. An additional finding entails the provision of some individual legislative recommendations relating, inter alia, to the regulation of the competent authority and the degree of the obligatory nature at which the prohibitions contained in the legislation should be set.
  • Palo, Sanna (Helsingin yliopisto, 2010)
    This study concerns the criminal regulation of organised crime. The topics discussed in this study comprise the different ways of defining a criminal organisation, international legal instruments applicable to organised crime, elements that constitute an offence under national legislation, and the fact of committing an offence as part of a criminal organisation as a ground for increasing the severity of punishment. This research also examines the grounds for liability laid down in the general part of criminal law, from the point of view of the special nature of the activities carried out by criminal organisations. The central question examined in this paper is whether organised crime is of such nature as to require and justify for criminal law purposes special and more severe criminal regulation, and whether the phenomenon is as uniform and distinguishable from related phenomena as it can be defined in criminal law in a sensible way. This study discusses fairly comprehensively organised crime as a criminological phenomenon, as well as the legal definitions of a criminal organisation. The method of legal dogmatics is mainly used in this study. The aim is to gather together and systematise legal provisions applicable to the regulation of organised crime, to clarify their mutual connections and content as well as to make recommendations for their interpretation. The aim is also to create new concepts, and new ways of analysis to improve the comprehension of relevant issues. In order to consider various options to interprete the regulation of organised crime, the preparative works of national Acts, the requirements and objectives laid down in international instruments concerning the regulation and the application of such regulation by courts are carefully examined in this research. The research material includes over a hundred judgments, mainly issued by courts of first instance or courts of appeal. This research discusses the regulation in force as well as the criminal law theories in the background, but not too strictly based on the systematics of national law. Organised crime is not, from a legal point of view at least not in Finland a systematically structured entity, which would as such create an interesting basis for the examination of the research questions or the evaluation of the functioning of the regulation. The need for regulation and related options are thus also considered from the point of view of criminal policy, criminal law theory and comparative law. It is considered in the study that organised crime is an especially dangerous phenomenon of such nature as to justify the application of specific criminal law solutions to tackle it. When tackling the phenomenon, focus should be put on identifying its special nature as a phenomenon relevant to criminal justice, avoiding however exaggerated rhetoric, which has sometimes interfered with the discussions. It is essential that a criminal organisation is a dynamic, multidimensional, ongoing and structured entity, which involves several participants, who play different roles and interact with each other. The following division into two aspects plays an important role throughout the study: creation of the basis for the operation of a criminal organisation, and individual offences. Creating the basis for the operation aims to build up the operating environment for future criminal activity, and barriers to criminal investigation. In relation to this aspect, the legal issues are related to the legitimacy of criminal liability at the early stages of crime when concrete harm to private or public interests has not yet taken place. The aspect of individual offences is related to the stage in which a criminal organisation starts to prepare and commit individual offences in practice. A major problem in the existing legislation is that criminal law has various definitions for a criminal organisation, whereas it would be advisable to only have one. The criminal regulation of organised crime has been adopted over tens of years, and some provisions are inconsistent with each other. For this reason, it would be appropriate to make an overall assessment of the regulation. For example, the grounds for qualifying offences in relation to committing an offence as part of a criminal organisation are inconsistently linked with certain crime types, not taking consideration of the fact that organised crime is increasing in the field of financial crime. Furthermore, the requirement that a criminal organisation must have a hierarchical structure should be reassessed. In fact, it seems to be an additional criterion set at national level, restricting in Finland the application of the international legal instruments laid down to regulate organised crime. In addition, firmer grounds for liability concerning the leader of a criminal organisation should be established. The subject of this study is a topical issue, as the Council Framework Decision 2008/841/JHA on the fight against organised crime is being implemented by the Member States, including Finland. Therefore, we in Finland also have to consider which measures must be taken to comply with the provisions of the Framework Decision.
  • Koulu, Sanna (Lakimiesliiton kustannus / Kauppakamari, 2014)
    This work, titled Agreements on Child Custody and Contact Legal foundations and proper families , belongs to the fields of child law and legal theory. It focuses on the legal effects of agreements on child custody and contact, spanning both informal agreements within the family and formal agreements usually drawn up in connection with divorce or separation. In Finland, formal agreements are a common way of arranging care and defining the legal custody of children after a divorce. Some tens of thousands of agreements are made each year, and they have specific legal effects comparable to court decisions. The legal analysis of these agreements offers a view into our conceptions of the family as well as into the legal foundations of agreements that concern children. The central issue is two-fold. First, the study surveys the ways in which agreements and their legal effects are justified in our current legal reasoning, in connection with the need for legitimacy in law. Secondly, the work examines the mechanisms that constrain and direct the legal effects of the agreements, in relation to the demands of legal coherence. In more concrete terms, the topic is approached via four research questions. First, how does law characterize custody and access as topics of agreement? Second, what does it mean to speak of agreements or contracts in relation to custody and contact? Third, why are these agreements granted legal effects? Here the question of whose agreements are granted legal effects is also important, since the justifications for the legal effects of agreements have a person-specific dimension. And fourth, how do agreements and negotiation produce and shape family autonomy? The research draws on three partly overlapping kinds of material. The most important source material consists of legal scholarship as well as legislative materials. This material is complemented by literature from the social sciences, especially from critical family studies, which analyses family relations mostly from the viewpoint of social constructionism. These strands of scholarship combine in an analysis of case law from the Finnish Supreme Court, covering 198 prejudicative decisions given mainly since 1980. Seven decisions were chosen for an in-depth reading, in order to examine how and why the agreements were given legal effects in certain difficult cases. The reasons for granting legal effects to agreements can be expressed as justificatory conceptions, i.e. ways of justifying and constraining the legal effects of agreements. These conceptions or schematics are historically contingent and changeable. All in all, five schemas were identified on the basis of the case law: 1) parental autonomy, 2) state power in the service of the common good, 3) factual care, 4) the best interests of the individual child and 5) the participation of the child. The five schemas were then further analysed in a historical context, showing a shift from status-based and essential justifications to more fluid and negotiatory models. This shift can be approached in multiple ways, as it corresponds thematically to the shift from the modern into a late modern mode of thinking. Some of the thematizations offered in the work are based on the contrast between juridico-political vs. normalizing power, examined by Foucault and Donzelot; on the ethics of justice and the ethics of care, as per Gilligan and Held; and on the system-theoretical approach proposed by King and Piper in the vein of Luhmann. Finally, the study discusses the justification and legal impact of agreements as a form of governing and regulating families. It is proposed that the good family is construed as one that is appropriately negotiatory and normal and that the logic of law is effectively co-opted into producing this normalization via the control of agreements. The main contribution of the study is the elaboration and analysis of different justificatory schemas. The best interests of the child are the most well-known of these, of course, but the identification of other, usually less visible schemas can provide tools for more transparent and solid legal reasoning and, paradoxically, can better safeguard the actual best interests of the children involved. Other contributions include the definition of the negotiatory ideal of current family law, as well as a thorough look into the logic of legal decision-making on families and children. Finally, the whole thesis can be fruitfully read as a case study of the theoretical approaches of e.g. Tuori in that it fleshes out the relationships of justification and constraint between the deep structures and the surface level of child law. The work concludes with proposals for legislative work and legal reasoning. It is argued that as factual care has come to be more and more influential in case law over the past few decades, its role in child custody and contact should be considered carefully in legislative work as well. At the same time, the availability of family mediation should be ensured in addition to access to justice in family conflicts. Finally, more attention should be paid to the effects and interpretations of the best interests principle and to the position of the child.
  • Wikberg, Olli (Helsingin yliopisto, 2009)
    The thesis leniency v. kartellit deals with anti-cartel activities within the European union. The main view is that of the European Commission with high emphasis of national (Finnish) and US view and procedure. The thesis contains of two parts. The first part is about the general legal and economical framework regarding cartels and various methods to detect and punish cartel conduct. The latter part deals in detail with leniency programs of both European Commission and Finnish competition authority. The legal background of US antitrust law regarding leniency is included as well.
  • Utter, Robert (Helsingin yliopisto, 2007)
    There are many ways in which a society can define its relationship to the surrounding environment. Opinions vary from one member of society to the next and quite often in conversation it is imaginable that one might allude that questions of good or bad, or better or worse environmental quality are matters of taste and policy, but hardly a subject for serious analytical legal debate. Nonetheless, even a superfluous glance at law books, published case law, or juridical literature seems to indicate the contrary. Environmental quality is at the heart of many legal disputes, and references to the relevance of what the standard of environmental quality should be in a particular case are abundant. Therefore one can pose the question: When and how have statements of the requirements for environmental quality suddenly elevated into the realm of juridical discourse? In this particular study, which is of a jurisprudential nature, this is the pivotal question. With recourse to the theory of speech acts and what could be entitled its jurisprudential offspring, an institutional theory of law, it is possible on a theoretical level to construe an ideal umbrella concept, which in this particular context has been christened the environmental quality norm. This concept is the fundamental model upon which the idea of a normative environmental quality is developed and, according to the underlying argument of the entire thesis, in essence forms the whole structure, function, and logic of all legal regulation by man as to the relationship between him and his surroundings. An environmental quality norm is divided into two sub-norms, the institutive norm and the consequential norm. The first institutionalizes a circumstance or function in the environment, while the second defines the repercussions of interference, be it factual or potential, with the institutionalized circumstance or function. This particular research has focused mainly on the institutive norm, which is the more interesting from an analytical point of view, the consequential norm being of particular interest in debates concerning the choice of environmental policy instruments and arguments pertaining to efficiency. The envisaged theoretical model of the environmental quality norm finds its kinship in regulation relating to nuisance. Many of the central ideas on nuisance developed by the legal minds of past centuries can be transformed, with some alterations, into contemporary legal dogmas. Equipped with these tools, contemporary environmental law has been analyzed in substantial parts of the thesis. The results indicate a clear leaning towards the fact that contemporary environmental law, i.e., basically any legal instrument regulating the relationship between man and his surroundings, is indeed structured upon the very idea embodied in the abstract environmental quality norm and its two components, the institutive norm and the consequential norm.
  • Hirvonen, Ari (Helsingin yliopisto, 2000)
  • Oja, Simo S. (Helsingin yliopisto, 2011)
    The use of animals in scientific experiments tends to arouse strong emotional reactions among the general public, the most essential concern being the pain and suffering they cause. It is felt that suffering inflicted on other beings, including animals, is not morally acceptable. Is the function of a researcher who uses animals morally acceptable and beneficial for humans and animals? May such a researcher him/herself decide what animal experiments he/she can perform or should some outsider have the right to decide what kind of experiments a researcher can or cannot perform? The research material comprises the legislation of Finland and that of some member and non-member states of the European Union, together with European Union directives and pertinent preparatory parliamentary documents. The author has likewise studied the vast literature on animal rights, both pro and contra writings and opinions. The opinions of philosophers on the moral and legal rights of animals are markedly conflicting. Some strongly support the existence of rights, while others totally refute such an opinion, claiming that the question is only of the moral principles of man himself which imply that animals must be treated in a human manner. Speaking of animal rights only tends to muddle ideas on the one hand in philosophical considerations and in legal analyses on the other. The development of legislation in Finland and some other member states of the European Union has in principle been similar. In Finland, the positive laws on animal experiments nowadays comply with the EU directive 86/609/EEC. However, there are marked differences between member states in respect of the way they have in practice implemented the principles of the EU directive. No essential alterations have in practice been discernible in the actual performance of animal experiments during the decades when legislation has been developed in different countries. Self-regulation within the scientific community has been markedly more effectual than legislative procedures. Legal regulation has nevertheless clearly influenced the quality of breeding and life conditions of experimental laboratory animals, cages for example being nowadays larger than hitherto. EU parliament and council have now accepted in September 2010 a new directive on animal experiments which must be implemented in the national legislations by January 1, 2013.
  • Leino-Sandberg, Päivi (Helsingin yliopisto, 2005)
  • Emelonye, Uchenna (Helsingin yliopisto, 2014)
    Abstract This thesis adopted the law in context methodology after due consideration of other legal research methodologies. To situate child justice within the parameters of child rights, this thesis analyzed the normative underpinning of child rights and found that its foundation is traceable to the International Bill of Human Rights. It also examined the philosophical foundations of child rights and adopted the view that it is based on inclusive legal positivism found at the intersection of natural law and positive law. This thesis validated the existing claim that child justice is predicated on the mitigated culpability of children and that whilst human rights extend to children because of their humanity, child-specific rights, including child justice accrue to them specifically due to their age and vulnerability. Having considered all the principles of child rights, this thesis elevated the principles of proportionality and the best interests of the child as twin pillars of child justice. As a standard for the humane treatment of children in conflict with the law and predicated on the premise that the twin pillars encapsulate all other principles of child rights, this thesis examined to what extent the twin pillars are incorporated and applied in the Nigerian child justice system. This thesis found that although the 2003 Child Rights Act of Nigeria meets the minimum international legislative standard, child offenders in Nigeria seldom enjoy the protective shield of the twin pillars of child justice. It corroborated the strength of the twin pillars of child justice as judicial sentencing tools and found that whereas child rights may accommodate relative sensitivities, the twin pillars of child justice are immutable and non-derogable principles for the treatment of children in conflict with the law. To ensure the promotion and protection of the rights of child offenders, this thesis recommended the amendment of the Child Rights Act and the immediate establishment of all the enablers contemplated therein. Although the review of the 1999 Constitution of Nigeria was not the main focus of this thesis, it however found that certain provisions of the constitution inhibit the enjoyment of child rights. Exploring the opportunity presented by the ongoing constitutional reform in Nigeria, this thesis recommended the amendment of some sections of the constitution.
  • Matikainen, Tanja (Helsingin yliopisto, 2014)
    Title: The principle of adequate financial resources acting as a guarantor for local self-government: A study on the application of the principle of adequate financial resources In Finland local authorities are responsible for providing welfare services. The state has delegated the provision of welfare services to local authorities, while the state is responsible for law drafting and providing the municipalities with adequate funding for their statutory responsibilities. The central and local governments thus share the responsibility for ensuring the realization of basic rights. Local authorities have the right to levy taxes to ensure municipal financial independence. Municipalities are entitled to central government transfers for their statutory duties. The financial responsibility for the statutory responsibilities is divided between the central and the local government. The local government tax base and the level of central government transfers have been cut down drastically. Statutory obligations have not, however, diminished at the same time; on the contrary, local government has been given new tasks and existing ones have expanded. This has resulted in a significant imbalance in the local government economy. The principle of adequate financial resources is recognized in the European Charter of Local Self-Government in Article 9.2. According to the provision, local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law. The principle was put into practice in Finland during the reform of basic rights. Since then, the principle has consistently been adopted in the statements of the Constitutional Law Committee and the Administration Committee. The study examines the implementation of the principle of adequate financial resources: the principle as a guarantor of local self-government. The first research task is to clarify the content as well as the status of the principle of adequate financial resources as part of the legal order. The second research task is to investigate the financial relations between the central and the local government in terms of principle of adequate financial resources. The third research task is to figure out how the principle of adequate financial resources is applied and complied with in Finland and the other Nordic countries. The research is of a legal nature with a focus on local government law. Local government law in this study is understood functionally, i.e. local government law is that part of the legal order which in an essential way concerns local government activities and tasks. The main research method is practical jurisprudence; comparative law is also used as a secondary method in the study. The results show that the principle of adequate financial resources has a demonstrable status as a constitutional principle, and in addition, the principle has the required institutional support of a provision. There are problems in the realization of the principle, however, and thus it cannot be stated that the principle is realized at this time. The financial cost impacts are systematically underestimated in government proposals, which cause problems for municipal finances. Cuts in the local government tax base are compensated with central government transfers, in which case the revenue previously belonging to the field of self-government switches over to the field of political policy-making and becomes a target for cuts. The central government transfer system is no longer considered as the basis for a financial relation between central and local governments, which causes problems. In addition, the program procedure for basic public services does not have the effectiveness it should for the realization of the principle. For these reasons findings suggest that § 121 of the Finnish Constitution should be amended with a provision of the principle of adequate financial resources.
  • Bräutigam, Tobias (2008)
    The doctoral dissertation deals with conflicts between access rights to public information and other legally protected interests, such as trade secrets or national security in comparative perspective. While the dissertation develops an own approach to comparative law, it focuses on the German Informationsfreiheitsgesetz (IFG) in substance matters. The German IFG is contrasted with two other laws, namely the Finnish Julkisuuslaki (JL) and the Freedom of Information Act (FOIA) of the USA. After a brief introduction, a methodological chapter takes up the most essential question of comparative law: How to compare? The methodology is developed by analysing two challenges of comparative law. The first challenge is presented by what I term the off-the-shelf critique, i.e. a critique that applies to all comparative legal monographs. Comparing law can never fully succeed because it can always be attacked for being too shallow or for including too many details. There is no happy medium. The second critique is more fundamental and denies the possibility of meaningful comparison at all, mainly for epistemological reasons. This doctoral dissertation deals with those problems in the following way. To begin with, access to documents is defined narrowly. Secondly, the legal culture is seen as a key to understand different freedom of information laws. Further, before starting to compare, a neutral description of the Act in question is done. Fourthly, throughout the work I point the reader to the idiosyncrasy of the legal terms of different jurisdictions by e.g. marking the terms in italics. Finally and most importantly, I will concentrate on conflicts of different legally protected interests. The FOIA of the USA and the Finnish JL are analysed according to this methodology. Both chapters start with an analysis of the legal culture influencing access to information and go on to outline the main characteristics of the respective Acts. The main part of those chapters is devoted to an analysis of five central conflicts. Those conflicts concern national security, procedural rights, privacy, trade secrets and challenges of administrative procedure with access rights of citizens. The last chapter applies the same methodology to the German IFG, and compares this law with the findings of the FOIA of the USA and the Finnish JL in order to answer the question whether the German act is up to the international standard. In the dissertation, freedom of information laws are classified in three categories. While the FOIA and especially the JL have evolved to the highest categories, the IFG has several weaknesses that make it poorly fit for the information age.
  • Similä, Jukka (Helsingin yliopisto, 2007)
    This study based on regulatory theory aims to provide new insights on how Finnish air and water pollution regulation has worked. Which features make pollution regulation effective and efficient? Does pollution regulation foster technological development? Are new policy instruments replacing traditional regulation? What should the role of European-wide standards be? How could regulation be improved? These and other regulatory issues are examined. Due to the preparation for EU membership, the amount of annually adopted environmental legislation peaked in 1994. However, excluding the impact of EU membership the amount of environmental legislation continues to increase. The rate of legislative change has been rapid. Only a few pieces of legislation in force were adopted prior 1990 and about one third is less than 5 years old. Most of new legislation relates to traditional regulation, although there is more legislation than before on economic instruments and other new policy instruments. However, the impact of new instruments on the total volume of legislation is slight. There is no evidence to suggest that the relevance of new policy instruments for the achievement of policy goals exceeds their relative amount. The relative role of environmental agreements not based on new legislation is even smaller. This does not support a significant shift towards new policy instruments as often suggested in the literature. About 30 % of the environmental legislation between 1994 and 2003 was implementing EU legislation. This is more than in most other policy sectors. The most Europeanized environmental policies were waste, chemicals, and pollution control. It is likely that the EU impact is greater than the relative amount of implementing legislation suggests. Most substantial changes of environmental regulation are affected by EU policy. In the long run, impacts on technological development are crucial for environmental policy. This study shows that water pollution regulation has often forced the pulp and paper industry to adopt new end-of-pipe technologies. In addition, this, with other factors, has influenced the development of process technologies. Integrated pollution regulation (adopted in 2000) aimed to increase the effectiveness and efficiency of policy. Although the number of regulated units did not increase, the more comprehensive way of regulation improved its effectiveness. After the reform new opportunities to set priorities were also created and used. No impacts based on cross-media effects were observed. The fact that elements of the previous sectoral system were transferred to the new system hampered the achievement of the full potential of integrated regulation. Integrated pollution regulation could be improved. In particular the regulation of minor activities should be made lighter through the repeal of obsolete requirements, development of new control methods and standardization of information gathering. With regard to major activities, the combination of economic instruments and integrated permitting would increase effectiveness and efficiency. The creation of common markets for those developing technologies would foster technological development. However, to ensure efficiency of regulation standard-setting should remain differentiated. The enlargement of the size of regulated unit would make it more efficient. Key words: regulatory theory, policy evaluation, environment, pollution control, regulation, effectiveness, efficiency, technological development
  • Gozdecka, Dorota Anna (Helsingin yliopisto, 2009)
    This dissertation s main research questions concern common European principles of democracy in regard to religious freedom. It deals with the modern understanding of European democracy and is a combination of interdisciplinary research on law, culture, politics and philosophy. The main objective of this research is to identify common European legal principles and standards applying to religious freedom and compare them with standards and approaches in particular states. The bases for the analysis are the principles of equality and religious pluralism. It approaches issues such as the problems of defining religion and the pursuit of religious equality vis-à-vis principles of establishment or quasi-establishment of traditional European religions. In analytical part it critically approaches the commitment of European countries to principles of equality and religious pluralism on examples of selected problematic areas. These areas include women s reproductive rights, problems of blasphemy and hate speech and relationships between religion and education. It evaluates the impact of various legal regulations in Europe and their influence on religious or non-religious individuals. Finally, in the theoretical part the research deals with the sustainable model of democracy in the multicultural era. It evaluates the possibilities for extending the legal system s flexibility towards other legal systems, such as Sharia law. Finally, it joins more general discussion on European values, commitment of European states to these values and further perspectives for European integration on axiological level. The analysis shows that currently European consensus and commitment to values of equality and religious pluralism lacks consistency. Even religion itself is not uniformly understood. The question whether the state should remain neutral towards doctrines and to what degree has neither been approached with sufficient coherence. While traditional Christian religions still enjoy a wide margin of religious freedom, even in public sphere, new religious movements or culturally new religions are often restrained. Without common commitment to European values, the principle of pluralism and equality is bound to be applied selectively. It is important that the model of European democracy adjusts to the conditions of religious pluralism. Without coherence in application of democratic principles and rights, Europe is bound to be plagued by guilty conscience of double standardisation and emptiness of the European soul .