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  • Liivoja, Rain (Centre of Excellence in Global Governance Research, University of Helsinki, 2011)
    States regularly deploy elements of their armed forces abroad. When that happens, the military personnel concerned largely remain governed by the penal law of the State that they serve. This extraterritorial extension of national criminal law, which has been treated as axiomatic in domestic law and ignored by international law scholarship, is the subject of this dissertation. The first part of the study considers the ambit of national criminal law without any special regard to the armed forces. It explores the historical development of the currently prevailing system of territorial law and looks at the ambit that national legal systems claim today. Turning then to international law, the study debunks the oddly persistent belief that States enjoy a freedom to extend their laws to extraterritorial conduct as they please, and that they are in this respect constrained only by some specific prohibitions in international law. Six arguments historical, empirical, ideological, functional, doctrinal and systemic are advanced to support a contrary view: that States are prohibited from extending the reach of their legal systems abroad, unless they can rely on a permissive principle of international law for doing so. The second part of the study deals specifically with State jurisdiction in a military context, that is to say, as applied to military personnel in the strict sense (service members) and various civilians serving with or accompanying the forces (associated civilians). While the status of armed forces on foreign soil has transformed from one encapsulated in the customary concept of extraterritoriality to a modern regulation of immunities granted by treaties, elements of armed forces located abroad usually do enjoy some degree of insulation from the legal system of the host State. As a corollary, they should generally remain covered by the law of their own State. The extent of this extraterritorial extension of national law is revealed in a comparative review of national legislation, paying particular attention to recent legal reforms in the United States and the United Kingdom two states that have sought to extend the scope of their national law to cover the conduct of military contractor personnel. The principal argument of the dissertation is that applying national criminal law to service members and associated civilians abroad is distinct from other extraterritorial claims of jurisdiction (in particular, the nationality principle or the protective principle of jurisdiction). The service jurisdiction over the armed forces has a distinct aim: ensuring the coherence and indivisibility of the forces and maintaining discipline. Furthermore, the exercise of service jurisdiction seeks to reduce the chances of the State itself becoming internationally liable for the conduct of its service members and associated civilians. Critically, the legal system of the troop-deploying State, by extending its reach abroad, seeks to avoid accountability gaps that might result from immunities from host State law.
  • Garcia-Salmones Rovira, Monica (University of Helsinki, 2012)
    A Science of Interests: The Project of 20th Century Positivist International Law This research aims to contribute to a project of reconceptualisation of the concept of law within which discussions over publicness are possible. It is a study of the substance and of the form of positive international law. In particular, it constitutes an investigation of how each determines the other. The research addresses geologically the change in the substance and form of international law in the 20th century. It analyses how the economic view of the world of several influential international lawyers inaugurated a new style of doing theory. The argument set forth is that international law was both re-founded on the premises of an internationalist sense of economic interdependence and transformed into a science. The outcome of this process was doctrinally the inauguration of economic legal-positivism; and politically a change of language: from the expansionist empire to universal internationalism. However, the study questions the idea that imperial practices were abandoned in the course of the renewal of legal theory. The work of two of the most respected theoreticians of 20th century international law, Lassa Oppenheim (1858-1919) and Hans Kelsen (1881-1973), constitutes the core of this research which follows the thread connecting their theories. Research Questions: The legal theoretical tenets of economic legal positivism focus on setting out the conditions of a theory under which international legislation would be possible. Based on this premise, the following research questions are posed: What is the particular political project of economic-positivist international law? How does this political project influence legal theory? Why is it important to unearth today the economic foundation of positivist international law? Method: The research employs the geological method, proposed originally by Joseph H.H. Weiler. The geological method contributes to incorporate in the study both the historical and the philosophical aspects of the formation of the positivist international legal theory. The connections existing between international legal positivism and both the European philosophical tradition and the tradition of international law to the present day are thereby uncovered. The use of philosophical realism seeks to provide a holistic approach to the theory of economic-positivist international law and to establish the rule of alterity epistemologically (the fact that human beings are social beings). Conclusions: The thesis concludes that the theoretical conditions of international legal positivism still belong today to a philosophy of interests which constitutes an individualist philosophy. This fact continues to obstruct the political discussion on what is good and just in the global order. The establishment of legal instruments to pursue that just order requires a reconceptualisation of law.
  • Paunio, Elina (Unigrafia, 2011)
    This study addresses the issue of multilingualism in EU law. More specifically, it explores the implications of multilingualism for conceptualising legal certainty, a central principle of law both in domestic and EU legal systems. The main question addressed is how multilingualism and legal certainty may be reconciled in the EU legal system. The study begins with a discussion on the role of translation in drafting EU legislation and its implications for interpreting EU law at the European Court of Justice (ECJ). Uncertainty regarding the meaning of multilingual EU law and the interrelationship between multilingualism and ECJ methods of interpretation are explored. This analysis leads to questioning the importance of linguistic-semantic methods of interpretation, especially the role of comparing language versions for clarifying meaning and the ordinary meaning thesis, and to placing emphasis on other, especially the teleological, purpose-oriented method of interpretation. As regards the principle of legal certainty, the starting-point is a two-dimensional concept consisting of both formal and substantive elements; of predictability and acceptability. Formal legal certainty implies that laws and adjudication, in particular, must be predictable. Substantive legal certainty is related to rational acceptability of judicial decision-making placing emphasis on its acceptability to the legal community in question. Contrary to predictability that one might intuitively relate to linguistic-semantic methods of interpretation, the study suggests a new conception of legal certainty where purpose, telos, and other dynamic methods of interpretation are of particular significance for meaning construction in multilingual EU law. Accordingly, the importance of purposive, teleological interpretation as the standard doctrine of interpretation in a multilingual legal system is highlighted. The focus on rational, substantive acceptability results in emphasising discourse among legal actors among the EU legal community and stressing the need to give reasons in favour of proposed meaning in accordance with dynamic methods of interpretation including considerations related to purposes, aims, objectives and consequences. In this context, the role of ideal discourse situations and communicative action taking the form of interaction among the EU legal community in an ongoing dialogue especially in the preliminary ruling procedure is brought into focus. In order for this dialogue to function, it requires that the ECJ gives persuasive, convincing and acceptable reasons in justifying its decisions. This necessitates transparency, sincerity, and dialogue with the relevant audience.
  • Hurri, Samuli (2011)
    The modern subject is what we can call a self-subjecting individual. This is someone in whose inner reality has been implanted a more permanent governability, a governability that works inside the agent. Michel Foucault s genealogy of the modern subject is the history of its constitution by power practices. By a flight of imagination, suppose that this history is not an evolving social structure or cultural phenomenon, but one of those insects (moth) whose life cycle consists of three stages or moments: crawling larva, encapsulated pupa, and flying adult. Foucault s history of power-practices presents the same kind of miracle of total metamorphosis. The main forces in the general field of power can be apprehended through a generalisation of three rationalities functioning side-by-side in the plurality of different practices of power: domination, normalisation and the law. Domination is a force functioning by the rationality of reason of state: the state s essence is power, power is firm domination over people, and people are the state s resource by which the state s strength is measured. Normalisation is a force that takes hold on people from the inside of society: it imposes society s own reality its empirical verity as a norm on people through silently working jurisdictional operations that exclude pathological individuals too far from the average of the population as a whole. The law is a counterforce to both domination and normalisation. Accounting for elements of legal practice as omnihistorical is not possible without a view of the general field of power. Without this view, and only in terms of the operations and tactical manoeuvres of the practice of law, nothing of the kind can be seen: the only thing that practice manifests is constant change itself. However, the backdrop of law s tacit dimension that is, the power-relations between law, domination and normalisation allows one to see more. In the general field of power, the function of law is exactly to maintain the constant possibility of change. Whereas domination and normalisation would stabilise society, the law makes it move. The European individual has a reality as a problem. What is a problem? A problem is something that allows entry into the field of thought, said Foucault. To be a problem, it is necessary for certain number of factors to have made it uncertain, to have made it lose familiarity, or to have provoked a certain number of difficulties around it . Entering the field of thought through problematisations of the European individual human forms, power and knowledge one is able to glimpse the historical backgrounds of our present being. These were produced, and then again buried, in intersections between practices of power and games of truth. In the problem of the European individual one has suitable circumstances that bring to light forces that have passed through the individual through centuries.
  • Lindroos-Hovinheimo, Susanna (2011)
    This study discusses legal interpretation. The question is how legal texts, for instance laws, statutes and regulations, can and do have meaning. Language makes interpretation difficult as it holds no definite meanings. When the theoretical connection between semantics and legal meaning is loosened and we realise that language cannot be a means of justifying legal decisions, the responsibility inherent in legal interpretation can be seen in full. We are thus compelled to search for ways to analyse this responsibility. The main argument of the book is that the responsibility of legal interpretation contains a responsibility towards the text that is interpreted (and through the mediation of the text also towards the legal system), but not only this. It is not simply a responsibility to read and read well, but it transcends on a broader scale. It includes responsibility for the effects of the interpretation in a particular situation and with regard to the people whose case is decided. Ultimately, it is a responsibility to do justice. These two aspects of responsibility are conceptualised here as the two dimensions of the ethics of legal interpretation: the textual and the situational. The basic conception of language presented here is provided by Ludwig Wittgenstein s later philosophy, but the argument is not committed to only one philosophical tradition. Wittgenstein can be counterpointed in interesting ways by Jacques Derrida s ideas on language and meaning. Derrida s work also functions as a contrast to hermeneutic theories. It is argued that the seed to an answer to the question of meaning lies in the inter-personal and situated activity of interpretation and communication, an idea that can be discerned in different ways in the works of Wittgenstein, Derrida and Hans-Georg Gadamer. This way the question of meaning naturally leads us to think about ethics, which is approached here through the philosophy of Emmanuel Levinas. His thinking, focusing on topics such as otherness, friendship and hospitality, provides possibilities for answering some of the questions posed in this book. However, at the same time we move inside a normativity where ethics and politics come together in many ways. The responsibility of legal interpretation is connected to the political and this has to be acknowledged lest we forget that law always implies force. But it is argued here that the political can be explored in positive terms as it does not have to mean only power or violence.
  • Frände, Joakim (Suomalainen lakimiesyhdistys, 2013)
    Dual residence in the taxation of individuals Each country has the right to determine on which grounds and to what extent it exercises its tax authority. In the case of individuals a country usually bases its right to levy taxes on the connection between the country and the individual, or the country and the income or wealth in question. This thesis deals with the connection that exists between the country and the individual. Under domestic tax law systems a separation is usually made into full and limited tax liability. Full tax liability arises when there are strong ties between the individual and the state. Residence is usually considered a strong tie that results in full tax liability. A person who is resident in a country, and therefore subject to full tax liability, is usually taxed on his world wide income. However, if the person is not resident, the state does not claim the right to tax the individual as such, but taxes income that arises within the territory of the country. When determining residence in one country, no consideration is given to whether the person is also resident in other countries. Consequently, individuals can as a result of cross border movement be considered resident both in the country of arrival and the country of departure. When two countries both consider an individual resident, dual residence arises. The purpose of this thesis is to analyse three aspects of dual residence. First and foremost, national rules on residence will be analysed, as well as how dual residence occurs in practice. Secondly, the rules on how to determine tax residence for tax treaty purposes are discussed. Thirdly, the tax consequences of dual residence will be investigated. The emphasis will be on the first two aspects of dual residence mentioned. The thesis is based on a dogmatic approach to legal research. Some elements of comparative methods of research are also present. A person who is resident in Finland is subject to full tax liability in Finland. Residence for income tax purposes is determined in the income tax act (ITA) § 11. According to ITA § 11 a person is resident in Finland if he has his main abode and home in Finland, stays over six months in Finland or falls under the three-year rule. Finnish nationals who leave Finland are as a result of the three-year rule considered resident the year of departure and the three following years. Limited tax liability can arise before the three- year period ends if the individual can produce evidence that he lacks substantial ties to Finland. The Finnish rules on residence are partly problematic. The rules on when a visit to Finland has fulfilled the six months requirement are unclear. Also, the three-year rule does not specify what a substantial tie is. The three-year rule furthermore distinguishes between Finnish nationals and foreign nationals. Different tax consequences depending on nationality can be problematic from an EU perspective. A short analysis of the current ECJ cases, however, indicates that the three-year rule is probably in conformity with EU law. Residence is also used to determine tax liability for the purpose of other taxes, such as the gift and inheritance tax, car tax, municipal tax and social security contributions. Each above-mentioned tax has its own notion of residence. The different concepts of residence are compared with the residence concept that is used for income tax purposes. The comparison led to the observation that the residence concept for income tax purposes can impact on the other residence concepts. Usually residence for other tax purposes does not impact on the residence status for income tax purposes. However, the tax authorities claim that belonging to the Finnish social security system is a substantial tie according to the three-year rule. The Finnish rules on residence for income tax purposes are in many ways interesting in comparison to other countries rules on residence. A comparison has been made with Sweden, Norway, Denmark, Germany, the United Kingdom and the USA. Most of the above-mentioned countries have fairly recently amended and modernized their rules on residence. The comparison demonstrates that the Finnish rules on residence are outdated and in need of reformation. For instance, nationality does not carry any weight when determining tax liability in most other countries (except for the USA). When a Finnish national moves abroad, he is usually subject to full tax liability in the country of arrival, and at the same time subject to full tax liability in Finland due to the three-year rule. The resulting dual residence is solved by tax treaty, provided that the countries have concluded a treaty. For tax treaty purposes a person can only have one tax treaty residence at a time. Residence for tax treaty purposes is determined through the tie breaker in article 4(2). The state of residence has the primary right to tax the individual. The tie breaker is, however, problematic, since the criteria on which residence is decided are partly ambiguous and can be interpreted in different ways. Therefore the general rules on tax treaty interpretation have to be considered. Rules on tax treaty interpretation can be found in domestic legislation, international law, the Vienna convention, article 3(2) of tax treaties, and in the commentaries to the model tax convention. Some of the rules on interpretation can lead to different outcomes. The parties can also have diverging information about the individual s personal circumstances. Therefore it is possible that two countries cannot reach an agreement on which country should be the individual s state of residence according to article 4. When both countries claim to be the state of residence, the conflict shall be settled by the mutual agreement procedure in article 25 of the tax treaty. The mutual agreement procedure is time consuming and results cannot be guaranteed. In Finland there are no publications by the tax authorities on the mutual agreement procedure, and the procedure is hence not very well known. Therefore, I have tried to describe how the mutual agreement procedure is executed in practice. In 2008 the OECD added an arbitration clause to its model convention as a final means to solve tax treaty disputes that have not been solved by the mutual agreement procedure. Finland has not, however, included the clause in its treaties. Dual residence can result in several different consequences for the taxation of individuals, and the possible consequences are analysed in this thesis. The taxation of dual resident individuals can vary greatly from one situation to another depending on domestic legislation in both countries of residence, the type of income, the source of income, the tax treaties articles and the interpretation of the tax treaty. The taxation of dual resident persons can be divided into situations where no tax treaty has been concluded, a tax treaty exists and Finland is not the state of residence, and situations where both countries claim residence status according to the tax treaty. Some Finnish tax treaties include the three-year rule in article 23. According to the clause the source country is granted a more comprehensive, but secondary, right to tax persons who are resident according to domestic tax law, although the residence state for tax treaty purposes is in the other country. To demonstrate the impact of dual residence on the taxation of individuals, the taxation in Finland of interest, dividend, capital gains, salary and pensions is described through practical examples. Situations of dual residence can also have other tax implications, e.g. is there a progressive impact on other income, and how are deductions and losses taken into account when Finland is not the state of residence according to article 4? Dual residence does not necessarily cause double taxation as a result of national rules on credit and exemption and the elimination of double taxation. The concluding chapter sheds light on some of the most urgent problems in the current legislation on residence and presents some suggestions for improvements. The rules on residence in the domestic income tax act are scrutinized in detail. It is suggested that the nationality criterion in the three-year rule is abolished, and that substantial ties are defined in the income tax act. Furthermore, it is also suggested that the national rules on the elimination of double taxation are elucidated and that the scale of application is extended. On the international level it is recommended that article 3(2) in the OECD model tax convention is amended to primarily recommend an interpretation according to the context. Some minor adjustments are also presented to the articles on residence and mutual agreement.
  • Staffans, Ida (2011)
    This thesis explores the particular framework of evidentiary assessment of three selected appellate national asylum procedures in Europe and discusses the relationship between these procedures, on the one hand, and between these procedures and other legal systems, including the EU legal order and international law, on the other. A theme running throughout the thesis is the EU strivings towards approximation of national asylum procedures and my study analyses the evidentiary assessment of national procedures with the aim of pinpointing similarities and differences, and the influences which affect these distinctions. The thesis first explores the frames construed for national evidentiary solutions by studying the object of decision-making and the impact of legal systems outside the national. Second, the study analyses the factual evidentiary assessment of three national procedures - German, Finnish and English. Thirdly, the study explores the interrelationship between these procedures and the legal systems influencing them and poses questions in relation to the strivings of EU and methods of convergence. The thesis begins by stating the framework and starting points for the research. It moves on to establish keys of comparison concerning four elements of evidentiary assessment that are of importance to any appellate asylum procedure, and that can be compared between national procedures, on the one hand, and between international, regional and national frameworks, on the other. Four keys of comparison are established: the burden of proof, demands for evidentiary robustness, the standard of proof and requirements for the methods of evidentiary assessment. These keys of comparison are then identified in three national appellate asylum procedures, and in order to come to conclusions on the evidentiary standards of the appellate asylum procedures, relevant elements of the asylum procedures in general are presented. Further, institutional, formal and procedural matters which have an impact on the evidentiary standards in the national appellate procedures are analysed. From there, the thesis moves on to establish the relationship between national evidentiary standards and the legal systems which affect them, and gives reasons for similarities and divergences. Further, the thesis studies the impact of the national frameworks on the regional and international level. Lastly, the dissertation makes a de lege ferenda survey of the relationship between EU developments, the goal of harmonization in relation to national asylum procedures and the particular feature of evidentiary standards in national appellate asylum procedures. Methodology The thesis follows legal dogmatic methods. The aim is to analyse legal norms and legal constructions and give them content and context. My study takes as its outset an understanding of the purposes for legal research also regarding evidence and asylum to determine the contents of valid law through analysis and systematization. However, as evidentiary issues traditionally are normatively vaguely defined, a strict traditional normative dogmatic approach is not applied. For the same reason a traditionalist and strict legal positivism is not applied. The dogmatics applied to the analysis of the study is supported by practical analysis. The aim is not only to reach conclusions concerning the contents of legal norms and the requirements of law, but also to study the use and practical functioning of these norms, giving them a practcial context. Further, the study relies on a comparative method. A functionalist comparative method is employed and keys of comparison are found in evidentiary standards of three selected national appellate asylum procedures. The functioning equivalences of German, Finnish and English evidentiary standards of appellate asylum procedures are compared, and they are positioned in an European and international legal setting. Research Results The thesis provides results regarding the use of evidence in national appellate asylum procedures. It is established that evidentiary solutions do indeed impact on the asylum procedure and that the results of the procedure are dependent on the evidentiary solutions made in the procedures. Variations in, amongst other things, the interpretation of the burden of proof, the applied standard of proof and the method for determining evidentiary value, are analysed. It is established that national impacts play an important role in the adaptation of national appellate procedures to external requirements. Further, it is established that the impact of national procedures on as well the international framework as on EU law varies between the studied countries, partly depending on the position of the Member State in legislative advances at the EU level. In this comparative study it is, further, established that the impact of EU requirements concerning evidentiary issues may be have positive as well as negative effects with regard to the desired harmonization. It is also concluded that harmonization using means of convergence that primaly target legal frameworks may not in all instances be optimal in relation to evidentiary standards, and that more varied and pragmatic means of convergence must be introduced in order to secure harmonization also in terms of evidence. To date, legal culture and traditions seem to prevail over direct efforts at procedural harmonization.
  • Praduroux, Sabrina (2012)
    Over the past sixty years, the Council of Europe and the European Union have taken steps to promote respect for fundamental rights in Europe. In particular, the Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights, gave effect to certain of the rights stated in the Universal Declaration of Human Rights and established an international judicial organ with jurisdiction to find against States that do not fulfil their undertakings. Moreover, the European Union laid down human rights principles in the Treaty on European Union and the Charter of Fundamental Rights, which became legally binding with the entry into force of the Lisbon Treaty on 1st December 2009. This means that the Charter applies to the European institutions, and also to EU countries when they implement EU law. Against this framework, my thesis investigates the constitutional dimension of private property, which currently appear to be particularly fragmented and complex due to the ever increasing influence of European law over national laws. In pursuing my research, I choose to employ the methodology of comparative law, which is the most appropriate in treating the different conceptual models of the right of property existing within the various European legal orders. The scope of my study is limited, however, in that it focuses on national law considerations in the French and Italian legal systems. The reasons for selecting these two specific countries arise from connections I draw between the different constitutional and political traditions of the two nations. Considering the continuous interplay between European law and domestic laws, the chief aim of my research is to investigate, first, the impact of European human rights law on Italian and French constitutional traditions in the field of property rights protection, and, second, the contribution of the latter in the establishment of European principles on property as a fundamental right. Interweaving philosophical, economic, and legal strands, my work contributes to a critical understanding of property law dynamics and sheds light on the way that property is currently understood in Europe, especially in Italy and France. Among the arguments arising from my research, the thesis particularly reveals the major role played by the European Court of Human Rights in developing substantive rule of law principles, which also apply to property law and have an appreciable impact on Italian and French law.
  • Järvenoja, Markku (Lakimiesliiton Kustannus, 2013)
    The subject of the study is the tax treatment of capital flows between partnerships and their partners. The theme is discussed by examining the differences and the relationship between company law and tax law. The study focuses on legal acts related to partnership equity capital. Company law regulations regarding partnerships are very flexible, and the tax law related to partnerships is quite limited and tends to remain on a general level. The scrutiny must therefore be founded on legal praxis. The theoretical basis, conception of multidimensionality of justice takes into account not only the norms of tax law, but also practical reality as well as values and goals. It is sensible to base a study on the formation of tax law interpretation based on judicial rulings on the concept of the hermeneutic spiral. The hermeneutic spiral takes into account changes in legislation, judicial rulings, comments expressed in judicial literature as well as different practical arguments and the social impact of justice. The study has shown that legal praxis has had a leading role in developing legislation. In general, the interpretation policy developed and adopted in legal praxis has been codified into tax law. As the law was enacted, only those flaws which were seldom detected in legal praxis were corrected. Tax law is a dynamic branch of law where the development of the tax norm can be sensibly described as a hermeneutic continuum. It is in this sense that we have stressed the historic nature of the development of the tax norm and concept. A meaning does not emerge from thin air , but is based on a long-term development, as the meaning of the concept has adapted to better fit the development and content of the real world. The changes in taxation-related legislation and legal praxis show that the separate natures of the capital circle of the partnership and that of the partner is pronounced. The taxation of capital transfers between a partnership and its partner has become similar to the taxation of capital transfers between a limited company and its shareholder. The conception of the partnership and its active partner belonging to the same capital circle has had to take a step back, as has its impact on the interpretation of tax regulations. The strong real status of legal praxis as a source of law within tax law is based on two main arguments. Firstly, company law regulating partnerships is largely discretionary. Secondly, there are only few tax law provisions regulating partnerships, and even those that exist are written on a very general level. The study is concluded with a proposal to revert to the independent tax liability of partnerships. This reverse transition can be supported with the results of this research, as it would mean the unification of the respective meanings within tax law and company law.
  • Walkila, Sonya (2015)
    The grounds for debate on fundamental rights in the European Union are currently more fruitful than ever. Following the entry into force of the Lisbon Treaty, not only did the Union avail itself with its own Bill of Rights , i.e., the Charter of Fundamental Rights of the European Union, but is also preparing for its accession to the European Convention on Human Rights. By the same token, the Charter was elevated to the same level as other primary EU law. The frequent horizontal effect of fundamental rights in recent case law of the Court of Justice of the European Union is an indication of a stronger presence and the increased significance of fundamental rights in the Union s legal order at the time when the boundaries between the public and private spheres are increasingly blurred. The Court of Justice strives to interpret and apply the law in a way which contributes to a build-up of a coherent case law and conforms to fundamental rights as closely as possible. The immediate source of the jeopardising act or degree of the incurred effects should not prove decisive. Rather, the horizontal effect of fundamental rights contributes to the primacy, unity and effectiveness of European Union law . This study suggests it is feasible to consider the horizontal effect of fundamental rights as they relate to situations where the legal positions of private parties are transformed in the Hohfeldian sense pursuant to the application of those rights by a court in a legal dispute before it. The incurring legal position depends in turn on the degree of enforceability of the fundamental right norm in question. Because of the semantic and structural openness of fundamental right norms they often necessitate the deduction of a more concrete normative content. This concretization of abstract norms makes adjudicating on the basis of fundamental rights a delicate matter, since it gives great power to the courts. Where this power is extended to the area which typically falls in the sphere of private law, it grows even stronger. Besides powerfully serving to enhance the inner coherence and consistency of Union law and offering feasible solutions to legal problems, the horizontal application of fundamental rights implies a move towards a strengthened constitutional phase of the integration process. Arguments on fundamental rights entail much more than just formal or dogmatic disputes over the scope of application of an act of EU law. They touch on fundamental questions relating to the functioning of the Union and its constitutional nature which pertains to the entire legal order of the EU.
  • Petman, Jarna (2012)
    What a paradox human rights are. As positive legal enactments, they are the result of political bargaining and thus speak the language of rules, concrete and verifiable; but they also hold an intangible promise of the universally good that is not reducible to particular political communities, to time or place as such, they reach beyond the mere text of enacted rules and evoke the cosmopolitan purpose of those rules. This dual nature makes human rights strong and accounts for their extraordinary appeal. Because of the co-existence of two separate strands that challenge and threaten each other, however, there is a fundamental tension within rights. This ambivalence is but a reflection of the ambivalence prevailing in human societies. Acknowledging the irredeemability of such irresolution is one of the controlling ideas behind liberal democracies that accordingly accept pluralism as a form of organizing human co-existence. The problem is, though, that in the plurality of equal voices there can be no markers of certainty. This has important consequences for the way in which relations within liberal democracies are governed. This thesis will offer a critical, albeit sympathetic, exploration of the conditions for and possibilities of practising and enforcing human rights with violence, if need be in a conceptual and professional world steeped in ambivalence. Because there can be no general solution to conflicts in which equal and yet different claims compete against each other, the thesis will argue, those who are in positions of power to decide are fundamentally at a loss and therefore fundamentally responsible. The crucial question is not whether we can remain certain that we are right, but whether we can remain responsible for the justice of our causes. This is where the hope and the fear of the liberal world reside.
  • Kainulainen, Heini (Oikeuspoliittinen tutkimuslaitos, 2009)
    In this doctoral thesis the criminal control of drug users is analysed. The focus of interest lies on the drafting of laws, their interpretation and application. The control of drugs differs in a decisive way from the control of other toxic substances, as drugs fall under penal regulation. In Finland all drug-related activities have been criminalised, including the use of drugs and the possession of small quantities of drugs for own use. There has been a lively debate on whether or not the use of drugs should be criminalised. Time and again, when a bill is passed, widely opposing views have had to be accommodated, and the end result has always been a compromise. The use of drugs has been criminalised, but at the same time it has been emphasised that the rules concerning waving punishment should be applied to drug users. The analysis reveals that the police over decades have been quite unwilling to apply the rules concerning the waving of measures in criminal cases involving drugs. The police have considered it important to intervene in drug users activities. The analysis of police practices showed that the prohibition of drug use has also been quite effectively implemented. The control of drugs has focussed on catching drug users. Statistics on drug offences is to a major part made up of cases involving drugs for own use. The historical analysis conducted in this thesis reveals that waving punishment has always been a very sparsely used sanction for drug offences. During the 1960s-1980s the prosecutor also shared this position, generally held by the police, as there were very few cases where prosecution was waived. In the early 1970s courts waived punishment fairly frequently. It was then seen appropriate to waive sanction for minors and petty drug users. Gradually the practice became more severe and drug use would normally result in a fine. It is assumed that the change in legal practises might be due to an increase in the age of drug users, but also to more rigorous attitudes towards drugs among judges. Since then waving punishment remained a marginal phenomenon. Not until the 1990s did the waving of measures in criminal drug cases become more frequent. This was due to a change in prosecutors practices, as they increasingly waived prosecution for petty drug offenders. Through the reform of penalties for drug offences in 2001, the police was empowered to impose fines on drug users. After this reform sanctioning practices became more severe. While it became commonplace to fine drug users, there was simultaneously a considerable decrease in decisions to wave prosecution. Presently a minor fine is ordinarily imposed for the use of drugs, through a summary penal order proceeding.
  • Koivisto, Ida (Suomalainen Lakimiesyhdistys ry, 2011)
    This doctoral thesis analyses the concepts of good governance and good administration. The hypothesis is that the concepts are radically indeterminate and over-inclusive. In the study the mechanisms of this indeterminacy are examined: why are the concepts indeterminate; how does the indeterminacy work and, indeed, is it by any means plausible to try to define the concepts in a closed way? Therefore, the study focuses on various current perspectives, from which the concepts of good governance and good administration are relevant and what kind of discursive contents they may include. The approach is both legal (a right to good administration) and one of moral philosophy and discourse analysis. It appears that under the meta-discourse of good governance and good administration there are different sub-discourses: at least a legal sub-discourse, a moral/ethical sub-discourse and sub-discourses concerning economic effectiveness and the promotion of societal and economic development. The main claim is that the various sub-discourses do not necessarily identify each other s value premises and conceptual underpinnings: for which value could the attribute good be substituted in different discourses (for example, good as legal, good as ethical and so on)? The underlying presumption is, of course, that values are ultimately subjective and incommensurable. One possible way of trying to resolve the dynamics of possible discourse collisions is to employ the systems theory approach. Can the different discourses be interpreted as autopoietic systems, which create and change themselves according to their own criteria and are formed around a binary code? Can the different discourses be reconciled or are they indifferent or hostile towards each other? Is there a hegemonic super discourse or is the construction of a correct meaning purely contextual? The questions come back to the notions of administration and governance themselves the terms the good in its polymorphic ways is attempting to define. Do they engage different political rationalities? It can be suggested that administration is labelled by instrumental reason, governance by teleological reason. In the final analysis, the most crucial factor is that of power. It is about a Schmittian battle of concepts; how meanings are constructed in the interplay between conceptual ambiguity and social power. Thus, the study deals with administrative law, legal theory and the limits of law from the perspective of revealing critique.
  • Rautio, Jaakko (WSOYPro, 2006)
    The 2002 revision of the Finnish criminal legislation added a new chapter to the penal code. This new tenth chapter includes norms relating to criminal forfeiture and makes reference both to general issues relating to forfeiture and to detailed norms on seizure of criminal proceeds by the state. The chapter also introduces two notable novelties to the Finnish legislation: Firstly, rules on extended confiscation of proceeds of crime have been included in the chapter. Confiscation can, according to these rules, be carried out if there is reason to believe that property stems from criminal activities that are not trivial. Secondly, confiscation must now be called for either by the prosecutor or the complainant. According to the old law, the court was competent to decide on confiscation ex officio. The aim of this dissertation is to examine the prerequisites for confiscation and extended confiscation of proceeds of crime. The study belongs to the field of procedural dogmatics. It also, however, includes some criminal law aspects. The dissertation is concerned primarily with effective law in Finland, but uses Norwegian, Swedish and Danish material for comparative purposes. The outset of the study is the competence of general courts to decide on matters of forfeiture. Claims on forfeiture are brought before the courts through legal action either by the prosecutor or the complainant. The concept of legal action has not been defined in law, but the dissertation concludes that an action consists of four elements: claims, grounds, a complainant and a defendant. The study, furthermore, takes the view that the court is bound by the claim for forfeiture and the grounds for this as they are presented in the legal action. In other words, the court cannot confiscate other or more than what is claimed in the action for forfeiture. Additionally, the court has to reach its decision in the matter on the grounds that the complainant has brought before the court in the action. The court is, however, not restricted by the action in questions of law (jura novit curia). The study also examines the prerequisites stemming from criminal law for confiscation and extended confiscation of proceeds of crime. In addition, the circumstances that pose hinders for confiscation, also in cases where aforementioned prerequisites are at hand, are examined. One of the most significant impediments to confiscation is the priority of compensatory damages over confiscation when damages have been inflicted as a result of the crime. Furthermore, issues relating to alterations of the legal action, to res judicata and to the possibility of bringing new, additional actions for forfeiture before the court are examined. The study also analyses the scope of persons competent to bring an action for forfeiture before the court. The outset is that the prosecutor competent to bring criminal charges before the court also is competent to bring an action for forfeiture before the court in the matter. Thus, the study concludes that the right of institution of criminal proceedings includes a right to institute proceedings for forfeiture. The complainant has a secondary right of action in relation to the prosecutor. The responsibility is, in matters of normal confiscation of proceeds of crime, allocated objectively. Proceeds are confiscated from the person, who has received the benefit. In cases of extended confiscation of proceeds of crime, the allocation of the responsibility is somewhat more unclear. The law permits confiscation of property both from the offender and, if the property has been transferred, from persons close to the offender. By the latter expression, the law refers to persons with close, either personal or economic ties to the offender.
  • Pohjanpalo, Maria (Unigrafia, 2015)
    This research investigates the interrelation of international investments and the environment. It is a study on fragmentation and how to potentially overcome it in practice through what is called a spectrum approach, in the field of international investment law and international environmental law. In particular the focus is on foreign direct investments. Three research questions are posed. First, why is there an increasing amount of investor-state disputes involving an environmental aspect? Second, is it possible to identify common elements, particular problems and specific rules regarding foreign direct investments which have an environmental aspect, from different sources of law, while also taking into account the element of liability? Finally, how could the risk of conflicts, disputes and any resulting liability be minimized? After the introductory Part I, Part II focuses first on the detailed substance of the research topic, placing it then in the theoretical framework, followed by systemizing the growing and changing regulatory and quasi-regulatory framework of it. In Part III on implementation, relevant existing cases are examined. A practical implementation exercise of the identified rules and elements to a foreign investment in the forest sector is included, to investigate if and how the identified rules and elements would apply. Finally in Part IV discussion on future developments and concluding remarks on the findings are presented. The end product of the research is a compact and practical indicative checklist for states and investors that could serve as a tool in order to minimize as far as possible the risk of disputes and liability. The study demonstrates that due to the fragmented nature of international law, in order to facilitate the functioning of the system there is not one, single solution available. This is particularly the case in relation to the third and final research question. Instead, actions by different actors, in different contexts, levels and temporal phases are required, while ensuring a sufficient dialogue and information flow between these actors.
  • Liukkonen, Iiro (Suomalainen Lakimiesyhdistys, 2012)
    The dissertation explores criminal proceedings in Finnish law which, after the accused person has been notified of the charges, are conducted in court without him or her attending in person, with the focus on why, i.e. for which reasons and for which aim, these simplified modes of procedure are made use of. The methodological approach is systematisation and interpretation of the statutory norms in the spirit of traditional legal methods, with input however from comparative law and hermeneutical philosophy. With a view to adversarial argument, it is commonly and, in particular in the case-law of the European Court of Human Rights, found appropriate that criminal accusations are normally tried in the presence of the accused where all the evidence is produced, enabling thus him or her to present evidence and comment and challenge the proof brought by the prosecution. Nevertheless, the accused person may waive, either expressly or tacitly, the guarantees of a fair trial and the right to be present in particular, provided that the waiver is unequivocal and does not run counter to any important public interest such as the public hearing of charges for grave offences. Furthermore, for the waiver to be effective, the accused should reasonably have foreseen what the consequences of his or her conduct would be, i.e. that there will not be any adversarial hearing. Consequently, the basic rule in Finnish law is the personal attendance of those charged for a criminal offence. Their attendance may be safeguarded, in line with ECHR case-law, by remand. In the stated objective of balancing the legal protection of the interests of the defence to be present at trial against an efficient case-management by the courts with regard to available resources, the law provides for two simplified modes of criminal proceedings, i.e. a trial in the absence of the accused and a written procedure. Whereas the trial in absence only follows from the accused remaining passive vis-à-vis the charges, the written procedure presupposes considerable activity from him or her: the offence has to be affirmed in the police investigation and again confessed to court in writing. Simultaneously, the accused shall sign an explicit waiver of his or her right to an oral hearing. Both of the procedures are only available for prosecuting minor offences that can be punished by a fine or a custodial sentence not exceeding three months in the proceedings in the absence of the accused and six months in the written procedure. In the written procedure, there is also a limitation that the offence may not in abstracto be punishable more severely than with up to two years imprisonment. The trial in absence is not subject to a similar restriction. Under specific conditions of explicit agreement of the accused person to be tried in his or her absence or, in the written procedure, after he or she has been given an opportunity to comment, the custody may be of three months more in each of the procedures. International comparison of the situation in a few European countries, namely Sweden, Germany, France and England and Wales, prove that similar kinds of simplified systems are frequently used for the same objective of rationalisation of the prosecution and sentencing. The decisive difference with adversarial proceedings being that the charges are decided solely on the basis of written material, the question is put whether this can produce as reliable evidence as oral testimonies. Hermeneutical thought, both Heidegger's and Derrida's, actually seems to suggest that writing is capable of transmitting truth with even more accuracy than personal statements. In spite of this discovery, it can be criticised that so shortly after a reform aligning in the 1990s Finnish procedural law on the principles requiring an oral procedure, immediacy and coherence, these to a large extent have been abandoned without a profound reflexion in a considerable part of criminal proceedings. An empirical study of cases decided in 2008 in some first instance courts namely confirmed that meanwhile about 60 per cent of all prosecutions in court are still tried in an adversarial process, one quarter in the written procedure and slightly below 20 per cent in the absence of the accused from trial. Since then, the written procedure has become even more commonplace in routine cases and now represents 35 per cent of all criminal cases dealt with by first instance courts. Somewhat surprisingly, not all the cases were decided in a purely routine manner: some defendants were found not guilty and witnesses were sometimes heard in the absence of the accused. De lege ferenda, I finally suggest that the scope of the various modes of prosecution and trial be redefined with more care to avoid both overlapping and also arbitrary boundaries in relation to purely summary proceedings such as fixed penalty notices on the one hand and full trials on the other. The two existing procedures might also be combined into one, trial in absentia with explicit consent. If guilty pleas are introduced in law in the future as is currently being envisaged, this certainly also has an impact on the rationalisation of criminal court proceedings globally and may induce new thought on the simplified procedures.
  • Norros, Merja (Kikimora Publications, 2010)
    The study examines judicial cooperation with Russia in civil matters and methods of evaluation in the context of treaty implementation. Over the course of the last decade the Russian Federation has gradually ratified the most important international treaties in the field of judicial assistance. For the purposes of the present study, two treaties of the Hague Conference on Private International Law have been chosen: the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965) and the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (1970). The dissertation aims, firstly, to examine to what degree Russia has taken adequate legislative and other measures to implement treaty provisions in comparison with other states parties. Under international law, states that are states parties to treaties are required to comply with treaty obligations. International organisations as standard setters have a strong interest in assessing the outcome. Methodologically speaking, the monitoring mechanism born under the auspices of the Hague Conference is used as an example. The study formulates 18 criteria for comparison and evaluation, and divides them into the 1) legislative, 2) institutional and 3) practical levels. Secondly, the dissertation aims to enhance methods for evaluation in general. For this purpose, evaluation mechanisms used by some other organisations (EU, FATF, Council of Europe) are examined in order to design an ideal model of evaluation. Finally, the dissertation makes use of empirical methods in analysing requests for judicial assistance. Theoretically speaking, the main result of the study is that the term legal assistance and its position in the Russian legal system need some clarification. In legislative terms, accession to Hague Conventions did not cause any special amendments to national procedural legislation, due to the monistic system in Russia. At the institutional level, Russia has one unique shortcoming: it has not yet designated a Central Authority for the Evidence Convention. Functionally, judicial cooperation suffers from long processing times in the execution of requests, also in Russia. The most severe dysfunction in judicial assistance, however, is related to the proper use of the mandatory model form. One of the recommendations for Russia is to adopt legislation concerning compulsory methods in service of documents and/or to establish a system of process servers. The dissertation includes a chapter on the relationships between treaties (treaty conflicts). Regarding evaluation, Hague Special Commissions have a central role in monitoring uniform application of treaties. However, they appear to have some weaknesses in operation. A practical conclusion of the present study is that national authorities should be equipped with proper information systems. The ideal model of evaluation created in the dissertation is largely based on the FATF methodology.
  • Melander, Sakari (Suomalainen Lakimiesyhdistys, 2008)
    This thesis explores fundamental questions that criminal justice systems are facing, that is to say problems relating to criminalization. The question of whether behaviour should be criminalized has widely been underanalyzed. Academic study has instead focused on justifications for punishment, on procedural safeguards, and on the general part of the criminal law. However, questions regarding criminalization itself have been revived in modern literature on criminal law. Criminalization could be considered to be the most fundamental issue in a criminal justice system because at its roots criminalization is the basis for applying theories of punishment and the general doctrines of criminal law. Criminalization itself therefore deserves detailed investigation. One basic problem concerning criminalization is that we have no clearly articulated theory on criminalization. This thesis examines whether it is possible to construct a theory of criminalization that is built on the model of moral theory. The construction of the theory is the basis of the thesis, and its justifications will be based on those theoretical and practical views concerning criminalization that have been presented in Finland from the 1970 s. This period coincides with the total reform and modernization of the Finnish penal code. The main function of this theory of criminalization is to uncover the justificatory prerequisites to criminal legislation. Although criminalization is ultimately a political decision there are several legal constraints that limit the powers of the legislator. The theory concentrates mainly on those positive legal constraints that bind the legislator. The pragmatic side applied part of the theory, different principles of criminalization, concentrates on these constraints that are developed in line with the prevailing views on criminal justice policy. The theory is influenced by prevailing Finnish criminal justice policy and is capable of practical application. It is not intended as a purely normative theory disconnected from actual practice.
  • Knuts, Mårten (Suomalainen Lakimiesyhdistys, 2010)
    MARKET MANIPULATION IN THE SECURITIES MARKETS The Finnish legal regime against market manipulation, included in the Finnish Securities Market Act, Chapter 5, Section 12, prohibits two systematically diver¬gent types of market manipulation: information-based manipulation, concerning the dissemination of false or misleading information, and market power-based manipulation, concerning other means of price distortion. This dissertation interprets the legal notion of market manipulation itself. It argues that a methodical interpretation as suggested in the thesis must be carried out in order to enhance investor protection, whilst guaranteeing the protection of the rule of law. Part One of the dissertation explores the theoretical backdrop of the regime against market manipulation by analysing the optimal utilisation of empirical facts within the normative framework of legal interpretation. Part Two of the dissertation compares the various competing methods of legal interpretation prevailing in legal contexts that are relevant to market manipulation. By assessing case law from the Finnish Supreme Court, the European Court of Human Rights and the European Court of Justice, three competing methods of legal interpretation are presented. Based on this analysis, a method sui generis is developed as a synthesis of the methods analysed, drawing from the theoretical framework established in Part One. Part Three of the dissertation analyses the concrete legal questions arising in relation to the prohibition against market manipulation by applying the method of legal interpretation constructed above. Various trading techniques and frequently appearing market activities are presented with a view to pinpointing the key legal assessments necessary for determining whether such market activities fall under the prohibition against market manipulation or not. Information-based manipulation and market power-based manipulation are equally addressed, as actual forms of conduct, such as scalping, short selling, wash sales, matched orders, circular trades, marking the close, painting the tape, parking, warehousing, pumping and dumping, trashing and cashing, cornering, and squeezing are analysed. The purpose of this dissertation is to provide interpretative support for the le¬gal analysis of market manipulation. An interpretation which takes into account the methodical analysis presented in the thesis will enhance investor protection by guaranteeing the fair functioning of the securities markets, whilst simultaneously improving the protection of the rule of law.
  • Alén-Savikko, Anette (Anette Alén-Savikko, 2014)
    This doctoral dissertation focuses on audiovisual sport coverage in the new media landscape and provides a critical, EU level analysis. Multiple layers of exclusive aspirations exist alongside a striving for maximum exposure and public appeal: sport broadcasting rights in particular have been questioned as their costs have risen and sport content has been moved behind conditional access. These tendencies have then provoked fundamental rights discussions on access by the public to information, pluralism of the media, and freedom of expression. Business is an inseparable part of the modern sport and media gestalt. However, other dimensions to European audiovisual sport coverage exist that do not operate in terms of finance and the market economy alone. In the EU, audiovisual media are regarded as economic services, but they are also acknowledged important role in societies, democracy, and culture. Also European sport has strong socio-cultural dimensions alongside its economic aspects. As regards the new media landscape, media convergence is allegedly influencing sports related media rights and commercial exploitation of sporting events. On the other hand, the Internet and social media are utilized by ordinary citizens, consumers, and supporters. Various demands and regulatory requirements arguably co-exist on many levels. This research aims at providing in-depth analysis of the role of law and alleged changes in the new media landscape, especially concerning various demands and regulatory requirements in the field of audiovisual sport coverage. The focus is on media law and copyright law whereas sport is treated as a particular kind of content with many legally interesting dimensions. Various proprietary rights and exclusive tendencies are mapped out in light of legislation, case law, and legal literature. In addition, fundamental rights, free and fair competition, copyright, and the public interest are analyzed as "law in action." Legal issues related to the Internet and social media are discussed as well. Legal texts are analyzed in the research and research interests are primarily theoretical. A law-and-community approach, elaborated on the basis of Roger Cotterrell's (2006) typology, is utilized in the analysis of legal texts while media and communications studies in particular are utilized in the analysis of (new) media. In particular, the ideas of Jay Bolter and Richard Grusin on 'remediation' are elaborated. New media present a continuation rather than a complete transcendence: new media achieve their 'newness' and cultural significance by refashioning earlier media and the process is mutual (e.g., the Internet/TV). The interrelations between various legal regimes prove highly complex, and EU law in the context of audiovisual sport coverage is often a mixture of Union-level and national-level instruments; there is no overall concept. Moreover, the Internet and social media provide additional dimensions. To conclude with statements on the dominance of economic and instrumental considerations is not surprising. Moreover, audiovisual media and the sport industry also appear to be challenged time and again by technological development and the activities of new entrants or members of the public. As regards the role of law, the research argues that some demands and regulatory requirements have changed in the new media landscape and that the law has difficulty in meeting those demands. With the traditional media mode, inclusion is less in degree and allowed mainly on industry terms whereas the new media mode allows for 'convergence' including in the meaning of media-related roles and practices. Alongside cross-border issues, especially difficult for law is this relativization of binaries in the new media landscape.