Browsing by Organization "University of Helsinki, Faculty of Law, Department of Criminal Law, Juridical Procedure and General Jurisprudential Studies"

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  • 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.
  • 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.
  • 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.
  • Marttunen, Matti (Oikeuspoliittinen tutkimuslaitos, 2008)
    Research questions and used data The aim of my thesis is simple but extensive. In addition to exact research aims I have analysed how the Finnish juvenile justice system differs from systems in which there is a juvenile court institution. A detailed comparison is made between Finland, England and Wales, and Germany. Research questions are as follows: Which typical questions arise when we are discussing juvenile crime? What are the special characteristics of juvenile criminal justice especially when compared with adult criminal justice? What are the main principles on which special arrangements concerning juvenile crime are based? How does offender s young age and his characteristics influence the types of punishments and other form of sanctions? What is the division of labour between criminal law and child welfare? What role does diversion play in each system and what does it concretely mean? What is the distribution of punishment types given to juveniles? The used data is extensive. It consists of legislation, official documents, and jurisprudential, criminological and comparative criminal policy literature. In empirical parts of the study statistics, enforcement documents, criminal records and court decisions (as well as empirical data from my previous research) are used. On comparative parts of the study I have been forced to settle for secondary sources. Findings At the beginning of the 21st century a heated parliament debate concerning the age of criminal responsibility took place in Finland. The claim was to lower it. The results of this study suggest (as has been claimed several times before by specialists) that there are practically no reasonable grounds to reform. Finnish juvenile criminal justice has little to offer to minor s dysfunction and social problems on which childrens´ crime are mainly due to also since the child welfare authorities deal with these cases. Changes to age categories would only be reasonable if the orientation of juvenile criminal justice would be changed in favour of child welfare aspect. This would mean that a part of the tasks nowadays handled by the child welfare authorities would be reassigned to the juvenile criminal justice system. However, criminological research and experiences in other countries do not support this view either. The vast majority of penalties imposed by courts for all age-groups consist of fines in Finland. The younger the offender the higher the share of fines (75 % in age-group 15 17, 60 % in 18 20 and 55 % for offenders over 20 years). This is a quite exceptional characteristic in international comparison. In Germany the corresponding percentage of fines for juveniles is 11 and in England and Wales 20. Among the use of different community sanctions (fines not included) are huge differences between compared countries. In Finland the share of community sanctions is 24 %, in Germany 78 % (leisure-time arrest and short-term arrest included) and in England and Wales 74 %. Respectively the share of imprisonment is in Finland 1 %, in Germany 11 % (prison and long-term detention) and 7 % in England and Wales. However, the number of juveniles getting some kind of criminal sanction (diversion included) is somewhat higher in Finland than in England and Wales or in Germany. In England and Wales the relative figure (per 100 000, relevant population) of sanctioned juveniles is 7087 (2004), in Germany 8495 (2004) and in Finland 9311 (2004). This analysis tried to figure out the number of children 10 17 years who are placed in child welfare institution against their own will and with a background of delinquent history in Finland. It was estimated that there are about 100 (10 14-years) and 150 (15 17-years) delinquents minor in child welfare institutions. At the same time there are only few (typically 2 7) juvenile prisoners. In England and Wales and in Germany number of juvenile prisoner (aged 15 17, per 100 000 relevant population) is much higher than in Finland. In England and Wales the relative figure (per 100 000 relevant population, including remand) of juvenile prisoner is 124 (2006), in Germany 64 (2005) and in Finland 4 (2006). In Finland, overall prison rate is about 70 prisoner per 100 000 inhabitants. Difference between juvenile prison rate and overall prison rate is huge. In England and Wales and Germany there are no great differences on this matter. However, these figures are misleading because of the differences between systems. There are much more (about 150) delinquent juveniles placed in child welfare institutions in Finland than there are juvenile prisoners. The child welfare institutions in Finland are very small and home-like in contrast to juvenile prisons in Finland but especially in England and Wales, or in Germany. When child welfare figures are added to juvenile prisoners figures, we find that there are about 77 juveniles (per 100 000, relevant population) placed outside their home because of their delinquent behaviour in Finland. The corresponding figures are about 150 in England and Wales, and 73 in Germany. The German figure would double if we took into account the juveniles placed in youth detention centres. The conclusion follows; taking into account child welfare side of Finnish system the differences are reasonable and comparable. In Finnish juvenile justice system the child welfare measures are far more commonly used way of control juveniles than utilising punishments. One could characterize Finnish juvenile justice system compared to England and Wales and Germany as follows: there are no juvenile courts, the use of monetary penalties is high, the significance of prior sanction in sentencing is quite low, community penalties are not very intensive, sanctions concerning violation of the conditions of community sentences are quite lenient and the parents are not held responsible for their child s crimes. Maybe the most important feature is to react on juvenile crimes more in the context of child welfare instead of criminal justice. The comparison of juvenile justice systems without taking into consideration both criminal justice and child welfare systems is misleading.
  • Vepsä, Iisa (Suomalainen Lakimiesyhdistys, 2009)
    Iisa Vepsä: The Seekers of Justice. A Study on the Establishment and the early Activity of the Appeal Court of Vaasa. Gustav III established a new appeal court in the city of Vaasa in 1775, during his visit to Finland. The first two research questions of the dissertation centre on the problem of the founding of the new appeal court: why was it established and did the reform turn out to be useful? The reasons given at the time can be found in the document that established the court, as well as the many speeches made during the inauguration ceremony in Stockholm in 1776. These have been used as the starting point in searching for the reasons for the court s establishment, which can be tied to goals typical of the Enlightenment. These goals included the ensuring of external and internal safety, the increase of the population, the improvement of industry and agriculture as well as services to improve public well-being. The court s establishment as well as the impressive new court building increased the enlightened reputation of the king, but after the lavish inauguration ceremonies the everyday life of the new appeal court started. This is what the third research question focuses on. How did an appeal court function in practice at the end of the eighteenth century? This question has been approached keeping in mind the stated interest in improving the "access to justice". This is why the focus of the dissertation is especially on the appeal function of the new court whilst its other tasks have not been researched as closely. The activities of the Vaasa appeal court have been studied with the help of archive material for this period. Three years have been chosen to get a look at the court in action after its establishment: 1780, 1790 and 1800. There is sufficient source material to provide us with a picture of the workings of the appeal court in the late eighteenth century. From the data it is possible to gain some idea as to the type of people who used the court. Justice was sought by people from all strata of society: from nobles to vagrants, from clergy to servants, from merchants to peasants. The peasants, who formed the largest part of the population, also dominated the list of appellants. The source material provides a good picture of what the appeal court did in practice. The largest category of incoming matters involved administrative issues. The declining number of the cases submitted indicates that this method of controlling the lower courts activities was probably on the decline. Also the number of prosecution cases (which nearly always involved cases of misconduct by lower court judges) had diminished somewhat by 1800. The role of the Vaasa appeal court as a court of first instance was minimal. Nearly all of the cases of first instance involved bankruptcy cases of the nobility and gentry. The number of appeal cases however more than doubled during this twenty-year period. The caseload was clearly increasing and this was especially true of civil cases. The activity of the court shows that there was also a need to revise cases: in about forty percent of the cases the appeal court approved the lower court s verdict. Approximately the same amount of verdicts were however either revised or overturned. The rest of the cases were partially revised, settled, dropped or lost on procedural grounds. As an appeal instance the court dealt predominantly with cases that can be divided into three main categories: (1) crime and policy issues, (2) the possession and ownership of land and (3) liability for debts and other commercial matters. The number of these cases shows that there was a need for a new appeal court and that these were the areas where the administration of justice needed to be strengthened. The other reforms made to improve commerce and agriculture could be effective only if the judiciary and law enforcement operated properly.
  • Viitanen, Marko (Poliisiammatikorkeakoulu, 2007)
    The scientific base of this research has been established at a cross roads. It justifies the view according to which justice can be found outside of the judiciary - at grass roots level of law enforcement justice is moulded and crucial questions of the interests, rights and obligations of legal subjects are deliberated and settled. Justice can thus also be studied and interpreted in light of individual experiences of injustice. Furthermore, the research justifies the opinion that there is an uninterrupted opportunity for the test of the undecidable, which actively strives to reach a state in which change is possible. In other words, if justice is not at home and visiting somewhere else , there is an opportunity for justice to arrive . Broadening the scope of jurisprudence, without actually naming it sociology of law, is apparent in the research, among others, in its inclination towards sociology, cultural research and criminology. The research outlines the police habitat which, in addition to being a certain type of environment, a place or a state of mind in which activities are carried out, it is also a product of those same activities. The objective is additionally to describe how much power the police has acquired. The research reveals that the reasons for police misconduct are not simple, neither are they easily controllable. Furthermore, the police has an expanding opportunity for symbolic use of force , which implies a power to construct problems and solutions to such problems. The police is evolving into, if not already become, an expert in processing information. In view of police misconduct, this is a new source of danger as the possibilities for illegal or otherwise inappropriate use of information expand simultaneously. In an attempt to change policing it is necessary at the same time to change police culture and to reinforce its desirable aspects. Despite the dark nature of policing and the culture of policing there is always a possibility for better policing. This is based on the ever evolving culture of the afore mentioned. A change of culture requires the support provided by police officers responsible decision making. Identifying this moment of decision making is in effect an active search for the test of the undecidable which can be the foundation for a change of culture. The principle of conformity to law drives the decision making process towards this end. Change is ever easier if the decision is made by a significant other police officer. In other words, changing policing requires the support of specific important figures in a work community. Police misconduct manifests itself in the research material largely as mundane and bound to the scope of work of police officers. However, due to the amount and breadth of criticism towards information processing conducted by the police, critical police research should be focused more on crime investigation. An absence of traces of the economic dimension of corruption in the research material has been gratifying. There appears to be no connection between police work and the pursuit of financial gain in the research material. However, it must be kept in mind that this dimension of corruption is hidden i.e. unreported criminality and as such difficult to reveal. The police is hardly ever criticized for racist and sexist conduct nor for the use of covert coercive measures. This, however, should not be seen as grounds for oversimplified conclusions. The research has raised the dilemma of the oversight of the overseers. In light of the research material, questioning policing rests to the most part on the complainant and injured parties and on those who claim this status. Police officers seldom question their own conduct except for in matters relating to traffic. The same applies to other authorities and to bystanders (witnesses). Judging by the research material, it can be stated that both minor and serious cases are reported by police officers themselves. Furthermore, there is significance in the nature of the misconduct as well as in the status or standing in society of the person who has questioned the conduct and of the officer responsible for the conduct. Most importantly it is significant if another police officer has obstructed carrying out police duties or questioned the authority of the police. Also, it can be stated that the views of the police and of those questioning police conduct are far and apart. This interpretation is supported by the fact that there has not been a single instance in which a police officer would have been suspected of an attempt of a criminal offence. This situation has been interpreted in light of the findings of the Norwegian scholar Liv Finstad. It may simply be a question of differing lines of sight of the police, other authorities, bystanders and of injured parties. Each examines events from their own perspective. Questioning policing on a wider front would most probably not have the desired effect. On the contrary, it may high light certain aspect of police culture, namely solidarity and seclusion. Keeping in mind the afore mentioned meaning, the low visibility of policing can be understood in a wider context. It is not merely a question of the difficulties that senior police officer face in supervising police conduct, but also of police conduct perhaps being beyond the reach of an other wise all encompassing web of the guarantee of due process. The basis for investigations into police misconduct utilised in law drafting has been proven, at least to some extent, to be liquid. Whether an investigation is internal or external is perhaps no longer as relevant as one would assume. Each method of investigation faces specific obstacles especially when dealing with police misconduct. It is in these instances that overseeing the overseer is most challenging. Therefore, the aspect high lighted earlier in the research of the altruistic commitment to duty and of the strong moral fibre of police officers is pivotal. In the struggle to mould the Finnish police into a particularly efficient crime fighting organisation, change may be noticed in a lack of ethical sensitivity in police officers. Opening a pre-trial investigation is the first decision in the pre-trial process and as such an important one for those party to such a process. Consequently, the research focused on an analysis of the evidence as it relates to the development of the investigation at hand as well as on the scope of discretion vis-à-vis the statutory definition of the offence. In relation to the first mentioned, utilising mathematical models for practical decision making was discarded. In stead, the solution has been to recommend applying the evidentiary value method supplemented with the hypothesis method due to the inbuilt principle of caution i.e. the inapplicability of the rule of negation. This is unavoidable because in early stages of the investigation one has to operate with incomplete information. Hence, uncertainty is not transformed into support for the theme, nor its negation. This facilitates the search for alternative meanings for chains of events which in turn facilitates a more just solution. Discretion in relation to the statutory definition of the offence is especially challenging in police misconduct. The illegality and to the most part also guilt has been excluded from this discretion in order to give room for a just hearing of the criticism directed at the police. Furthermore, in ascertaining the grounds for a decision to open an investigation, when operating with incomplete information, it is not possible to determine questions of illegality or guilt, which is possible, to the most part, only with more complete evidence. The current method of investigation for police misconduct gives room for a danger of experiences of injustice both from the stand point of police officers and of those questioning police conduct. The afore mentioned method of investigation may be applied only when there is reason to suspect an offence and there are objective grounds to suspect a police officer of conducting such a criminal offence. In striving to maintain a low threshold for opening an investigation into misconduct, it is necessary to compromise the legal protection of police officers i.e. the threshold of presenting evidence in relation to police misconduct. Respectively, singling out a police officer may result in liability for reporting such police conduct. How should we evaluate the police? Numerous studies seem to support the understanding that policing has little to no impact on criminality on the whole and assessing the efficiency of policing is virtually impossible. This is considered to result from the fact that several factors impacting on criminality are beyond the reach of the police. Instead, there is ample indication that bad policing may i.a. jeopardise security and increase crime. It has been suggested that policing should be evaluated on the level of consideration, reliability, receptivity, capability, manners and on how just the police is. This is not contrary to ethical policing as described in the research. Internal legality control of the police should be arranged so as to facilitate producing as reliable and usable information on criticism targeting the police, on suspected criminal offences and misconduct as well as on investigations and consequences thereof as possible. Also claims for damages against the police and damages paid by the police should be recorded. The afore mentioned practice should be consistent and all encompassing and the collection of information should be systematic. Acquired information should be refined and analysed and the procedure should be included in result oriented management of the police or alternatively the reaction and conclusions based on such information should be arranged in some other efficient manner. Consequently, conclusions based on such information should not be limited to merely acknowledging the existence of an unwanted state of affairs. This would high light the responsibility of police chiefs. The police organisation should also consistently publicize information on the darker side of policing and on the remedies to such misconduct. On the other hand it may be considered that an active publicity may result in a loss in legitimacy of the police. However, in the long run this practise would undoubtedly indicate that the police is transparent and willing to be subject to scrutiny which in turn may result in a steady or even raised level of trust towards the police. The police should also be prepared for criticism towards the police being assessed by an external and (even more than currently) independent body. Globally development seems to be geared towards such a trend albeit this does not seem to be a more effective investigation method than any other. The web of oversight can be reinforced with concrete solutions (if required) i.a. by repeatedly measuring the ethical temperature e.g. in conjunction with a personnel barometer. Incorruptibility and integrity testing as well as other kinds of technical solutions are becoming commonplace. Integrity training throughout basic police training, and in a wider context than in mere individual training courses of modules, is also applied. It must be remembered that modern sophisticated investigation methods are available. Therefore, it is necessary to acknowledge the use of current know-how in criminal investigations also in relation to police misconduct. Mechanisms for the reporting of police misconduct can be developed and supported etc. It can be discerned from the above that there are ample methods for securing better policing. Some of them may function as desired at least with certain preconditions and in favourable circumstances. Success is possible even if at times and at in certain circumstances there may have been failures. Naturally, recruitment has an important function. However, in the end it should be remembered that the police and society cannot be separated. In other words, society has such a police as it deserves.
  • Sahavirta, Ritva (Suomalainen Lakimiesyhdistys, 2008)
    Money Laundering as a Criminal Offence The criminalization of money laundering is based on the international conventions and various instruments of the EC. The target of international anti-money laundering measures is partly the prevention of predicate offences and partly the reduction of the ills money laundering can cause to the structures of democratic society at large. These ills have been identified as the same as those caused by organized crime and corruption, and are connected to the huge proceeds derived from crime, especially from drug trafficking. The prevention of money laundering should not be limited only to the prevention of organized crime, despite the multitude of ways to describe it. Small organized criminal groups can, for instance, derive considerably less financial benefit from such activities than can be earned from conventional tax offence. Therefore, also directing anti-money laundering measures towards unorganized crime is justified. In Finland, the legislatuer has adopted the all-crime approach to predicate offences of money laundering. This approach may be effective, although the grounds for this legislative decision are unclear. Of course, not all conventional crimes endanger the stability of democratic society and the purity of the financial system. However, employing a more restrictive interpretation is advisable when dealing with offences unconnected to organized or serious crime. The imposed punishment is considered insufficient for the prevention of money laundering. The confiscation of the proceeds of crime has been regarded as the most effective way to hinder offenders from continuing their illegal activities. The prevention of money laundering should therefore be considered an important part of general crime prevention, because the ultimate goal of the confiscation of proceeds of crime is to strengthen the effectiveness of a court ordered punishment on the offender of a predicate crime. Money laundering is considered a process where the proceeds of crime are first brought to the legal economy and later returned to the offender of the predicate crime in the form of disguised as legal assets. Money laundering is punishable only when the national penal law so permits. National criminal offence must also fulfill the requirements of international conventions and EC instruments. In practice, the repressive prevention of money laundering has failed to meet international expectations as weapons in the war against money laundering and terror. This failure may be due to the difficulty to present evidence of the causal connection between the proceeds of crime and the predicate offence. This is exactly the case when assets are transferred from one country to another. Therefore, in order to be effective, the national money laundering provisions should make it possible to convict money launderers regardless of where the predicate offence is committed. Value confiscation should also be available so that assets in bank accounts can be effectively seized. The aim of this study is to systematize the money laundering provisions of the Finnish Penal Code and to determine whether they meet the binding requirements set out in various international instruments. The author argues that not all international requirements have been met at the moment, because the intentional acquisition, possession or use of the proceeds of crime remain uncriminalized, and so-called self-laundering is a defence. Moreover, conspiracy in connection with basic money laundering remains outside the scope of application of penal provisions. The obligation to establish these offences are qualified by the limiting condition. Limitation is acceptable only if criminalization is against the state`s constitutional principles and the basic concepts of its legal system. This work argues that no such restricting conditions exist in Finland´s legal system. And the view that so-called value confiscation is impossible in connection with money laundering may also be problematic. Because only the target of laundering can be confiscated according to the Finnish Penal Code, laundered assets in bank accounts may escape forfeiture.
  • Hirvelä, Päivi (WSOYpro, 2006)
    This study provides an overview of sexual crimes against children with specific focus on the basic and human rights of a child. The central question this study poses is: How is the criminal justice system capable of defining and enforcing criminal liability in sexual crimes against children? This study can be subsumed under criminal and process law. The source materials used include legal, medical, psychological, and above all, forensic psychological documents. The methodology employed is derived from legal dogmatics and empirical research methods. The research is divided into theoretical and empirical sections. Chapter II provides an overall description of criminal provisions in sexual crimes committed against children. Chapter III examines the standing of a crime victim in criminal proceedings. Chapter IV develops a theoretical background for evaluating evidence by focusing on expert wittnessing and forensic psychology. Chapter V examines how child abuse is investigated in the light of spesific cases. Chapter VI presents the conclusions of the study. This study reveals many problems in the modes of examination of sexual crimes against children, which are connected both to legislation and to practices conducted by authorities. The legislative problems are rooted in social welfare, health care and legislation on criminal law. This study also reveals problems in how authorities co-operate in pre-trial investigations. The proposal on how to improve the quality of investigations suggests transferring the responsibility of pre-trial invesigations to the public prosecutor, and adopting the multiprofessional and concentrated "child house model". This study also proposes other measures to improve the quality of pre-trial investigations. This study also examines the evaluation of evidence, as well as the levels of punishment and compensation.
  • Lindfors, Heidi (Edita Publishing Oy, 2008)
    The study concerns debt recovery law with the special emphasis on the rights of third parties in the enforcement procedure. As the main rule only the property belonging to the debtor is allowed to be distrained. However, the full evidence of the ownership of the debtor is not required. Because of the summary nature of the enforcement procedure, the ownership of the debtor can be presumed by certain perceptible facts, such as the possession of the property. This is enabled by the presumption provisions of the Enforcement Code. However, it creates a risk concerning the property actually owned by a third party but being used to cover debts of the debtor. The study focuses on the legal status of the third party, which varies depending on who the possessor of the property is at the time of the enforcement. The study also considers the legal status of the third party when his or her ownership is challenged in the enforcement because of a suspected artificial arrangement (façade arrangement). The study combines both procedural and material law. Basically, a legal dogmatic approach is employed. Thus, the objective is to interpret and systematize provisions related to the research subject. The status given to the third party by the provisions of the Enforcement Code is also considered from the point of view of fundamental rights. The constitutional protection of property and aspects of fair trial especially access to justice are essential to the subject. However, the legal dogmatic approach is not the only approach used in the study. Empirical material, several hundreds of decisions of the district courts, has been used to examine third parties´ status in reality. The empirical material has been of help in perceiving the problems (the dysfunctions) of the appeal system of enforcement from the third parties´ point of view. The study aims to combine empirical research with legal dogmatics. The asymmetric nature of the presumption provisions of the Enforcement Code inevitably impairs the status of the third party. Asymmetry means the disparity in the influence of the facts indicating the ownership of the property. The facts that indicate the debtor as the owner of the property are given more significance than those that attest to the third party`s ownership. This is a conscious choice by legislators to promote the effectiveness of enforcement, but its defects can be moderated by an interpretation of the law that gives special attention to the constitutional protection of the property of the third party.
  • Nylund, Anna (Suomalainen lakimiesyhdistys, 2006)
    Almost all western European countries face challenges of access to the second courts. The problem of how to restrict access to the second courts in order for the courts to be able to focus on essential cases is neither new, nor rare. At present, the question is of vital importance in Finland as dissatisfaction with the current procedure in the second courts is wide spread. In chapter 1 the research problem and its context are introduced and defined. Some terminological questions are addressed. The conceptual, theoretical and methodological foundations of the thesis are laid in chapter 2. The theoretical framework evolves, on the one hand, from the nature of legal principles, and on the other hand, from the theory of critical legal positivism. In the thesis a distinction is made between principles and another category of fairly closely related aspects which could be called "guiding-stars". The methodology applied in the thesis could be described as normative-critical jurisprudence, drawing on comparative law. In the part discussing methodology, the focus is on problems concerning comparative law in general and legal transplants in particular. The framework of alternative ways of regulating access to the second courts is formed within the realms of the European Convention on Human Rights and the Finnish constitution. As the focus has generally been on criminal matters, there are many open questions regarding civil litigation and access to the second courts. Thus, an analysis of both sources of restriction is done in chapter 3. In chapter 4, the historical development of the second courts in Finland is discussed. The focus is especially on the functions of and access to the second courts in civil litigation. The problem of limiting access to the second courts is approached from within civil litigation. In the thesis, restrictions arising within civil litigation are investigated. Three categories of standards or mainstays of civil litigation are identified. The first category is the functions of civil litigation, which are discussed in chapter 5. The discussion about these functions has regrettably not been a lively one in Finland, even though civil litigation is facing new expectations. The second category consists of civil litigation principles. In chapter 6 the main focus is on three principles. The principle of fair trial is discussed both from an international point of view and from a comparative point of view, drawing examples from other Nordic countries and Germany. The principle of the right to present one's case, originating in German law, is discussed as a possible legal transplant. Additionally, the triple principle of orality, immediacy and concentration is analysed as a complex and multifaceted norm. In chapter 7, the guiding-stars, i.e. the issues relating to civil litigation as an appropriate tool for dispute resolution, are examined. In addition to promptness, certainty, and inexpensiveness, reliability and flexibility are discussed. The current and proposed Finnish legislation concerning the procedure in the second courts in general, and access to the second courts in particular, is analysed in chapter 8. The rules concerning seulonta (screening), which is the main way of restricting access to the second courts, are difficult to interpret due to their problematic relation to rules about oral hearings. The rules were drafted swiftly; consequently, the analysis of the situation was insufficient. The wording of the rules gives the impression that seulonta is an alternative procedure instead of a hindrance to regular proceedings in the second court. Consequently, the rules can be interpreted in several different ways, posing problems to the courts. The question is also: is seulonta in concord with the mainstays of civil litigation identified in the thesis? In chapters 9, 10 and 11, Swedish, Norwegian and German law are respectively discussed. All three countries have recently made amendments to rules about access to the second courts. Each chapter commences with a general presentation of the proceedings in the second courts. After that, the focus turns to the ways in which access to full proceedings is restricted in each country. The procedure in Sweden is fairly similar to Finland except a leave to appeal is needed for small claims. The proposed changes are also interesting as they seemingly take Sweden on a very different path than Finland. The important questions are how much Swedish law actually differs from Finnish law and how the proposed changes affect the situation. Swedish law has been abandoned in favour of Norwegian law as a source for new conceptions and solutions to problems. Seulonta is supposedly taken from Norwegian law, but the question remains how truthful this claim is. Norwegian civil litigation is highly interesting, as it has recently undergone fundamental changes beginning in January of 2006. Also, there are a surprisingly high number of differences between Norwegian and Finnish law; accordingly, the axiom of similarity between Nordic countries can be questioned in this particular case. In turn, German lawyers already have a few years experience of proceedings based on similar premises and solutions as in Norwegian law. German law is interesting both as a source of information about the impact of the reforms and as a source for new conceptions and ideas about how second courts could handle cases. Germany has already some experience of a system similar to the Norwegian silning, making it an interesting object of comparison. Further on, the lively discussion about the recent changes means Germany cannot be disregarded in a discussion de lege ferenda. In chapter 12, the different ways of restricting access to the second courts in Swedish, Norwegian and German law are compared. Pure models of the principal institutions are developed as a tool to analyse related institutions in a non-national context. In order to find out whether there are any real differences between leave to appeal and other ways of dismissing cases without full investigation, the pure models are compared. Finally, the procedure in the second courts in Finland and seulonta in particular are compared with the countries mentioned above. The final chapter is a synthesis and a final appraisal of the different alternatives arising from the pure models and other observations about proceedings in the legal systems examined. These alternatives are then scrutinised in the light of the mainstays of civil procedure, discussed in chapters 5-7, and of Finnish legal tradition, discussed in chapter 4, and of current problems, discussed in chapter 8. The thesis culminates in recommendations de lege ferenda on how to restrict access to the second courts without inappropriately restricting access to justice.
  • Siro, Jukka (Suomalainen Lakimiesyhdistys, 2010)
    The Revolutionary Courts were courts established by the Finnish revolutionaries during the Finnish Civil War of 1918. The Courts function was to replace the existing courts and to adjudicate in political matters. They were nearly 200 in number and tried approximately 3,000 cases during the 2 3 months that they were in existence. The amount of judges, public prosecutors and defence attorneys was nearly 2,000. The Revolutionary Courts did not impose harsh punishments for political crimes. Capital and corporal punishments were not used. Incarceration was used, but the main types of punishment for political crimes were fines and warnings. Non-political offenders were, however, given punishments that were at least as harsh as in the former judiciary. Although the Left had viewed the punishments in the pre-revolutionary courts as too harsh, the Revolutionary Courts followed their practice. Procedural rules resembled pre-revolutionary legislation but they were simplified so that almost anyone could act as a judge, attorney or public prosecutor. Consequently, certain key elements of due process of law were missing, although the accused were not deprived of all procedural rights. Simplifying legislation was in line with the criticism of the pre-revolutionary procedural legislation, but it was also a necessity due to lack of legal expertise. In fact, there were practically no lawyers in the Revolutionary Courts as almost every Finnish lawyer had sided with the Whites. The new judges were, however, men of some standing, the labour aristocracy. The relative leniency and the Courts willingness to use old practices can be explained at least with the following. Firstly, the judges were uncertain of the success of the revolution and thus afraid for their own future. Secondly, it was an attempt to gain legitimacy. Thirdly, the worst political offenders were not necessarily ever brought to Courts. The Red Guard apprehended the suspects and could shoot them immediately if deemed it necessary. The less dangerous culprits could be handed over to Courts that could then easily be lenient with their sentencing. The Courts actions can, lastly, be explained with the political and societal conditions in Finland. The working class had not radicalized thoroughly as the country was relatively democratic and the societal differences between classes were not overwhelmingly vast.
  • Guimaraes-Purokoski, Alice (Suomalainen lakimiesyhdistys, 2009)
    The Vertical Division of Competences in EU-law. A Treatise on the Evolution of the Community Competence in the Energy Sector as well as the Regulation of Public Service Obligations and Universal Service in the Internal Electricity Market. The principle of attributed powers constitutes a meta-norm in the Community legal order. It is omnipresent each time the Community legislator uses its legislative competence. According to the principle of attributed powers the Community only has specific competence. The Community uses its competence for fulfilling its objectives, policies and activities in conformity with Articles 2 and 3 of the EC Treaty and the specific provisions - the legal basis - of the Treaty. As the Community legislative procedures are becoming increasingly uniform the choice of the legal basis will be founded mainly on the objectives and contents of each legislative act and not on the political balance between the Community institutions. This is a positive development. The scholarly views are scattered on the significance of the principle of attributed powers in restricting the Community legislator's competence to legislate in a new sector: some emphasize legality and others accentuate the dynamism of the evolution of the Community's legislative powers. Though this polarization of views offers a pragmatic instrument for systematizing the development of Community competence, it cannot be applied uncritically. These divided viewpoints cannot explain exhaustively either the existence or the nature of Community competence. Article 308 EC the so-called loophole provision is often claimed to play a major role in expanding the competence of the Community legislature, but many scholars ignore the progressive and exhaustive utilisation of Article 95 EC in extending Community competence. Furthermore, the Court of Justice of the European Communities has not always been active and creative in its jurisprudence concerning Community competence. Thus, for instance the evolution of Community competence in the energy policy sector does not owe much to the case law of the Court but accredits almost all to the Community legislature. There is no specific legal basis for the Community energy policy in the EC Treaty. Notwithstanding this, the Community has been active in this sector since the late 1960's. In most cases the Community's initiative to legislate in the energy sector has been due to wide-ranging developments or events within the Community or worldwide which are not only specific to energy policy, such as the oil crises, the general idea of the internal market, and the development of the Community environmental policy. The scope of application of the Community legislation in the internal market for electricity and gas has become rather extensive, covering currently the opening up of the national markets, the consumers' right to choose their supplier of electricity or gas, the regulation of the national regulatory authorities, and the measures to unbundle the production, transmission, distribution and supply of electricity and gas. There also exists Community legislation on environmental questions in the energy sector, but at this stage, this legislation still leaves a rather wide margin of manoeuvre for the Member States. A new proposal for legislation on green electricity would change this situation by setting legally binding targets for the Member States concerning their share of electricity produced from renewable energy sources. Currently the requirements of Community law are less strict in respect of security of energy supply. Taking into consideration the ambiguity of the notion of public service and the fact that its utilisation varies considerably between the national legislations of the Member States, the usage of such a notion in Community law involves risks of misunderstanding and differing interpretations in different Member States. Essentially the Community legislator has left the Member States wide discretion to define their national public service obligations. However, in Directive 2003/54/EC on the internal market for electricity the Community legislator has somewhat limited this discretion. This solution is well grounded. When a sector becomes governed by Community law, the Community legislator should also assume responsibility for adopting legislation on sensitive questions, including the definition of public service obligations comprising public interest.
  • Ngangjoh Hodu, Yenkong (Yenkong Ngangjoh Hodu, 2006)
    The resolution of international trade disputes by World Trade Organization (WTO) Dispute Settlement System (DSS) has attracted much attention in recent years, not only among trade officials and scholars but also among the public at large. As part of international law, the rules of the WTO are required to govern a fundamentally different society than that which exists within the state. Therefore, the nature of the remedies available for breach of a legal duty is of central interest in the WTO treaty system. As the Latin maxim Ubi jus, ibi remedium suggests, there is a close nexus between the law provided by a particular regime and remedies for violation of the rights and obligations of that regime. Although, theoretically speaking, apart from specific remedies, different factors may be identified which support the arguments as to why the community of nations complies with the rules of a particular regime such as the WTO, the remedies provided by the WTO DSS still represent a sort of institutional guarantee that the WTO treaty system is respected. The fact that there is a nexus between the law of an institution and remedies means that there is a degree of deficiency, or a lacuna, when no remedies exist. Yet, at a time of general rededication to the WTO Dispute Settlement Understanding as 'a central element in providing security and predictability' to the institutional structure that emerged at the end of the Uruguay Round of Multilateral Trade Negotiations (MTN), the remedies it provides in order to guarantee compliance with the rules of the system are increasingly greeted with scepticism, both by commentators and by some academics who see the WTO as part of the uneven project of globalization. While the WTO DSS allows Members to provide temporal compensation when immediate compliance is not practicable, or to retaliate (suspend concessions or other obligations, in the language of the DSU) when there is continuous failure to comply, compliance is the primary objective of the system. Recently, some mainstream arguments critically suggest that these remedies are flawed and that more coercive options are required. Some of the critical arguments linked to the concept of sovereignty suggest that the WTO DSS should be avoided altogether, at least for certain sensitive disputes. At the same time, others argue that because of the differences in size of the WTO Memberships, the DSU should be amended so that countries may be able to trade their retaliatory rights once there is a continuous non-compliance with an adopted dispute settlement report. While some of the critical arguments directed against the compliance regime of the WTO DSS may have bite, from a general perspective, this book argues that the system should be lauded for the number of cases that have successfully gone through it, and for the contributions the panels and Appellate Body (AB) jurisprudence have made to the development of international law. Specifically, in addressing a range of issues, including those mentioned above, the present studies seek to provide insights into the remedies available for non-compliance with legal obligations in WTO law. Though my inquiry here aims at enriching our understanding of certain positive parts of the present system of settling international trade disputes, the writing discusses the possible arguments that may be raised to support alternative remedies that address the issue of continuous breach of legal duties in the WTO. Meanwhile, the studies also seek to contribute to our understanding of certain legal questions which have generally been ignored in the settlement of international trade disputes; and it acknowledges the scepticism of some Members regarding these questions. The method employed in this work is based on a combination of WTO case law, legal doctrines and some economic concepts.