99. årgang, 2012

Januar 2012- 99. årgang Nr. 1

1. Wolfgang FrIsch:
Reflections on the Influence of Philosophy on Criminal Law. Explaining Uniformity and Variety of Criminal Law in Europe. Influence of Philosophy on Criminal Law

Among the cultural factors that have shaped the criminal codes of European states, philosophical thinking obviously has a foremost position. The essay indicates the common philosophical roots of European criminal codes. It shows that the common philosophical ground of these codes is the result of ideas developed especially by the philosophies of natural law and rational law and the philosophy of enlightenment. These philosophies have formed substantive criminal law, the codes of criminal procedure, today’s theory of punishment and general principles of substantive criminal law as well as the catalogue of offences and important procedural principles. They have thus created important elements of uniformity. Nonetheless, there is still considerable variety in the criminal codes of European states. This essay gives examples of such variety and illuminates their background. It shows especially that variety begins where the guidance of philosophical thinking ends. Here, other cultural factors can exert an influence. Finally, the essay deals briefly with the question of whether philosophy can still be a guide today – when we try to decide whether and to what extent we should harmonize the criminal codes of Europe or maintain variety.'

2. Dan Frände:
"Rechtsgut" as a Finnish Concept - Some Observations

The article aims at explaining the discussion in Finland on the concept “oikeushyvä” originating from the German concept of “Rechtsgut”. The concept has nowadays a strong foothold in Finnish criminal law. It is always necessary to decide whether a proposal regarding redefinitions of criminal acts or criminalization of new acts can be considered justified by an important public interest. This consideration can easily be referred back to the concept of “Rechtsgut”. In addition, the concept is also used in the interpretation theory and the doctrine of concurrence of offences.

3. Linda Gröning:
Towards a Theory of the Criminal Justice System

The idea of a (national) criminal justice system as the framework for the exercise of penal power is firmly anchored in the Western discourse. At the same time, the science of criminal law does not offer any thorough normative theory of the criminal justice system as a (coherent) whole. In opposition to concepts like crime, responsibility or punishment, the concept of a criminal justice system is seldom dealt with, and its normative underpinnings are seldom discussed. This article argues that a normative theory of the criminal justice system fulfils several important functions in the development of the criminal law, not least with regard to the current restructuring of the national criminal justice system. From this point of departure, the article provides an account of the building blocks and methodological challenges of such a theory.

4. Jørn RT Jacobsen
Cocepts of Criminal Law and Representative Reductions

This article explores the relationship between the criminal law and its surrounding fields of knowledge. It focuses on the necessary interaction between the criminal law – with its requirements of simplicity and applicability – and the complexity found in other scientific disciplines that the criminal law in some way relates to. The article introduces the notion of “representative reduction” as a means for understanding this kind of interaction. By using this notion, the article provides an account of how the criminal law is structurally related to its surrounding fields of knowledge. Furthermore, it argues that it can contribute to the interaction between the criminal law and these fields in order to improve the content of the criminal law. The notion of representative reduction is in particular exemplified and discussed in relation to criminal responsibility for youth. The article also addresses some additional aspects of the overall subject, such as the problem of injustice stemming from the use of representative reductions and the role of the criminal law science in regard to the use of representative reductions.

5. Heike Jung:
Justice must be seen to be done

Justice is, in principle, a public affair. Publicity relates to the “fabrication” of justice as well as to the control of the justice system. The principle of publicity has undergone major changes: Expediency and the right to privacy have turned public hearings into a rare event. At the same time, mass media have “sensationalised” court cases, at least the spectacular ones. All this calls for a reappraisal of the publicity principle which will cover somewhat different issues ranging from Court-TV up to “justice and rituals”.

6. Kjersti Hove
Kompetansebehov hos nytilsatt politi

This study considers the competencies that newly employed police recruits consider necessary for their work and compares them to the competencies actually acquired in the course of their formal education. The study is based on an electronic questionnaire which was sent to newly employed police officers two to four years after they had finished their studies. The aim of the study is to shed light on the Police’s understanding of its own profession by examining new recruits’ perceptions of their competencies and education. The study examines which types of competencies new recruits consider most important for their work and compares this to the competencies acquired in connection with their education (Bachelor’s degree). Competencies examined in the study include knowledge, skills, abilities, properties, and other factors considered important for police work. The study also has a comparative element as its concerns are compared with corresponding issues in studies of teachers, nurses, and social workers.

Juli 2012- 99. årgang Nr. 2

1. Dag Victor
From treatment ideology to neoclassicism. 

This article is based on notes for an oral presentation made at the 100th anniversary of Swedish Kriminalistföreningen in the autumn of 2011. The Association was formed at a time when the so-called treatment ideology began to grow strong in Swedish criminal policy. The peak of this ideology was reached in the 1950s, but it still dominated criminal policy when the new Criminal Code came into force in 1965. From the late 1960s, however, it was subject to increasing criticism. From the 1980s, the treatment-oriented criminal policy was also gradually replaced by a neo-classical criminal policy with emphasis on concepts such as censure, penalty and proportionality. Of importance for this development was that research on treatment did not support the opinion that treatment was an effective tool to reduce crime. However, the article argues, with classical criminal law as a background, that the criticism was mainly based on the fact that the individual in a treatment-oriented system is not seen as a responsible subject but as an irresponsible object that may be subject to coercion as a means to achieve social goals or advance his »own« interests (paternalistic intervention). The concept of guilt, which was central in classical criminal law, is rejected as pure metaphysics. In neoclassical criminal law the concept of guilt has been restored. However, there are still many remnants of older criminal policy in both legislation and public debate.

2. Laila Freivalds
Politicians and criminal politics

Until the 1980s, political parties were generally united regarding criminal policy. Fighting crime was seen as a technical matter and left to a small group of prominent jurists. But that changed when the media’s interest in crime increased and political parties started to design policy programmes based on ideology. Individual politicians saw a possibility to profile them selves in order to get more personal votes in elections. Since the 1990s, the criminal policy debate has been governed by the media and heavily influenced by politicians’ demands for quick and tough action. The space for systematic, stable policy based on facts, experience, relevance and fundamental principles has apparently shrunk.

3. Britta Kyvsgaard
One Hundred Years of Nordic Penal Policy.

This brief presentation identifies three politically-distinct periods within the last 100 years of Nordic penal policy. The first was a period of reform and optimism regarding possibilities for »curing« offenders. The second was a period of disappointment as the hopes for treatment were unfulfilled. At the same time, however, alternatives to the old sanctions, especially prison, were being promoted. The third period emerged in the last couple of decades as penal policy became increasingly politicized and popularized. Three periods can also be seen in regard to research and Nordic cooperation. The presentation ends by identifying the most important advances and setbacks in criminal policy during the last 100 years.

4. Hanns Von Hofer
Det svenska fångtalets utveckling 1910 - 2010
5. Peter Asp
Denationalization of criminal law – what challenges are we facing?

Criminal law is in the middle of a process which can be described as denationalization, i.e. a process under which national criminal law is increasingly being influenced and affected by international norms of different kinds (general principles of international law, norms contained in treaties etc.) and where the norms are no longer created only by the national legislator. In this article the author tries to describe some of the challenges that we are facing due to this development.

6. Päivi Tiilikka
Balancing the freedom of expression and protection of private life at ECrtHR´s praxis: A lottery or coherent activity?

This article examines the praxis of the European Court of Human Rights (ECrtHR) when balancing the protection of privacy and freedom of expression. As the ECrtHR has constantly stated, the freedom of expression, as guaranteed in the ECHR Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. The concept of private life, as guaranteed by the ECHR, Article 8, is a broad term, which covers the physical and psychological integrity of the person. It also covers the protection of reputation and honor, as well as the right to personal information – which individuals can legitimately expect should not be published without their consent. This article discusses the protection of privacy only in the latter sense. The text describes and analyzes the ECrtHR´s case law regarding the balancing of freedom of expression and the right to privacy. Until the early 2000s, the protection of private life was considered an acceptable limitation on the freedom of expression. However, in the current court practice, the right to privacy is considered as an equivalent right to freedom of speech. This has made the weighting and balancing between the protection of privacy and freedom of expression a more difficult task both in the national courts and in the ECHR. The article examines the key criteria which are important when balancing the freedom of expression and the protection of private life, namely: the ECrtHR´s general interpretation principles; the margin of appreciation; contribution to a debate of general interest; the public role of the person concerned; the subject of the news reporting; how information is obtained and verified; the content, form and consequences of the publication; the special characteristics of photography; and the proportionality of the sanctions imposed. The writer concludes that the application of the aforementioned criteria has not always been consistent. If the ECrtHR´s court practice is too inconsistent it can jeopardize the legal certainty and reduce the intelligibility and prestige of the ECHR´s praxis. At the same time it is increasingly difficult for the national courts to implement the praxis of the ECrtHR to the national jurisdiction. If the praxis of the European Court of Human Rights appears to be too contradictory or confusing it can undermine the respect of its judgments and lead to diminishing rebuke of its condemnatory judgments.

7. Jonas Havelund, Kristian Rasmussen og Lise Joern
This paper describes a specially designed, research-based training programme focused on the policing of mass events.

The »Event police training programme« is based on recent research on crowd psychology, i.e., understanding crowd processes, dynamics and the role of other stakeholders’ interactions with the masses. Research has found that a misinterpretation of the crowd has often been a contributory cause of riots in connection with mass gatherings, as the tendency has been to adopt a tactic based on an undifferentiated and simplistic view of the crowd. The Event police training programme aims to provide a differentiated understanding of mass groups and encourage the police to reflect on their own behavioural role in the management of these gatherings. This paper describes the background and structure of the Event police training programme.

8. Frode Svartdal og Knud Gundersen:
Does Aggression Replacement Training (ART) work in Swedish prisons?

This paper discusses a report on the effect of Aggression Replacement Training (ART) in Swedish prisons (Danielsson, Fors, & Freij, 2011). The report compared two samples: An »ART group« that received ART in the period 2003-2006, and a »control group« that was selected to match the ART group at a later time from the general Swedish prison population. A close examination of the report reveals that it failed to specify the nature and quality of the treatment given to the ART group. Attrition from the ART group was very high, indicating that the quality of the intervention was low. The report reveals that the two groups were very different, with significantly higher level of violence and aggression history in the ART group compared to the control group. We conclude that this difference is a likely cause of the higher rate of violent recidivism in the ART group, and that the ART intervention most probably had nothing to do with the observed differences between the groups. This case illustrates the risks of making important policy decisions based on findings from reports published outside the peer review system of established journals.

8. Silje Bringsrud Fekjær:
Same education, different job? Job specialisation preferences among male and female police students.

Equal representation of men and women in all types of police jobs is an official goal of the Norwegian Police. However, there are still marked differences in the gender balance of specialisations. This paper examines specialisation preferences among male and female police academy students at the beginning of their educations. Three explanations of gender-based differences in preferences are explored: ideas related to work-family balance; notions as to what constitutes »real« police work; and opinions on men and women’s ability to perform different tasks. The dataset used covers all first-year police students in Norway in 2010 (N=635). The results show marked gender differences in specialisation preferences: male students are more interested in operative careers, while female students express more interest in crime prevention and investigation. However, none of the suggested explanations is supported in the empirical data, which indicates a need for alternative explanations of early differences in job specialisation preferences.

9. Venla Roth
Invisible victims: Identifying trafficking in human beings for the purpose of sexual exploitation.

This article seeks to explain why trafficking in human beings for the purpose of sexual exploitation is so difficult to identify in Finland. Explanations are sought, for example, in the definitional uncertainties and restricted applications and interpretations of the penal provisions on human trafficking, and in their overlap with the penal provisions on pandering. Explanations are also sought in the legal history and context of prostitution, which makes violence less objectionable in the eyes of the legal system. The inability to identify prostitution-related trafficking may also be influenced by the consensus-based policy of equality, which can undermine prosecution of female-specific problems such as violence against women. The author argues that legislation must be amended and practices improved if they are to live up to legally binding international obligations. In addition, the author argues that counter-trafficking strategies and activities should be actively developed from a gender perspective so that all victims of human trafficking can be correctly identified and assisted irrespective of whether they have fallen victim to sexual or labour exploitation.

10. Rasmus H. Wandall
Governing criminal sentencing through sentencing information systems. – The knowledge system of the Prosecution Service

This article discusses the knowledge base of the Danish Prosecution Service and its guidance of criminal sentencing decision-making in Denmark. Important questions of the construction of sentencing practice information systems are discussed. These concern the ideal of formal consistency, a balance between vertical and horizontal governance, the legal criteria upon which to construct a sentencing database, the relationship between sentencing databases and formal guidelines, and where organisationally to place the administration of a sentencing database. Most importantly, the article argues that the construction of future databases should take its point of departure in the everyday information needs of practising lawyers, prosecutors and judges, and should include first instance case law, something that existing authoritative case collection consistently avoids. Furthermore, it is argued that the court system itself takes a lead role in the building of future sentencing databases.

November 2012 - 99. årgang Nr. 3

1. Lars Korsell:
Ekonomisk brottslighet; tur och retur

Economic crime has been an important field for political initiatives during the last forty years. This article explores the major trends in legislation and how law enforcement agencies have been organized. In the 1970s, economic and organized crime were more or less treated as a common problem. The connection between economic and organized crime is still emphasized. Investigative measures from organized crime control are also used to fight economic crime. Intelligence services and wiretapping are new tools against white-collar criminals. Asset recovery and a multidisciplinary approach have improved the cooperation between agencies. The Tax Administration, the Enforcement Agency and the Social Insurance Agency have become key players. »New« economic offences have been important on the political agenda: corruption, financial crimes and social benefits fraud. Fraud in general is likely to be an important criminal problem in the future. Several of the offences which get a lot of attention are not investigated by the Economic Crime Agency. This may cause political initiatives to be focused more narrowly on specific problems like corruption instead of »economic crime« more generally.

2. Tage Alaletho:
Reglering som policyfråga: En diskussion om regleringens effekter vid ekonomisk brottslighet

This essay discusses the regulation of white-collar crime. It reviews the development of white-collar crime regulation from various angles considering: 1) the extent and structure of white-collar crime, and 2) the ways in which these characteristics affect the ability of regulation to restrain white-collar offending on institutional, organisational and individual levels. The conclusion is that regulation must be multifaceted if it is going to be able to address white-collar crime’s many forms. Patterns of white-collar crime are just as heterogeneous as those of street crime. While tax crime is very frequent and demands a specific regulatory response, bribery is less frequent and requires a completely different response. Like street crime, white-collar crime is committed by both occasional and »chronic« offenders. Effective regulation must be able to deal with crimes committed by both types of offenders.

3. Per Ole Träskman
Organiserad brottslighet, ekonomisk brottslighet och terrorism – hänger de samman?

This article considers the connection between »organized crime«, »economic crime« and »terrorism«. Is there empirical evidence of cases in which the true purpose of organized criminality was to commit terrorism and/or where economic criminality was committed with the purpose of financing or otherwise facilitating terrorist crimes? These three forms of criminality are often linked in official EU documents. But is there any empirical evidence for such a connection in the Nordic countries Denmark, Finland and Sweden? The empirical part of the article is an analysis of the annual reports of the secret service agencies of these three states. The result is – in short – negative. Indications are given for why these three forms of crime are often linked in official EU documents. Frågan är om det finns ett samband mellan de tre formerna av brottslighet och hur detta samband i så fall ser ut. Har den organiserade brottsligheten i vissa fall som sitt egentliga syfte att bedriva terrorism, och är det kanske så att avsikten med ekonomisk brottslighet i en del fall i själva verket är att möjliggöra terroråtgärder? Vad finns det för belägg om sambandet överhuvudtaget mellan de tre formerna för brottslighet?

4. Paul Larsson og Vanja Lundgren Sørli:
Drosjenæring under lupen: kontrollpluralisme i praksis?

The article deals with attempts to regulate the Norwegian taxi industry. Over the past thirty years there has been periodic focus on different forms of tax-related crime during which counter measures in the form of regulation have been heavy in the taxi industry. Despite this the biggest complex of tax-related crimes and other forms of fraud ever detected in Norway was recently uncovered in the industry. This article asks and tries to explain why it is so difficult to regulate the taxi industry.

5. Natalia Ollus og Anne Alvesalo-Kuusi:
From cherry-picking to control: migrant labour and its exploitation in finnish governmental policies

This paper examines the way in which the exploitation of migrant labour was portrayed in Finnish governmental policy documents during the years 1995-2012. The analysis shows that the promotion of migrant labour and the prevention of economic crime were both central themes of government policy during the period under scrutiny. Migrant labour, especially when skilled, was portrayed in government policies as a solution to the aging population and the demand for labour. Increased migration was also seen to involve certain risks and unwanted elements, though it was believed that these could be managed through control measures targeting unwanted immigration. The regulation of economic crime and the misuse of migrant labour were mainly addressed in the framework of problems related to tax revenue, fair competition and market function. The analysis shows that migrant labour is the subject of several levels of control, but that this control primarily serves to protect and secure the conditions of the Finnish labour market and ultimately the state. The harms and wrongdoings inflicted on individual workers were hardly addressed and the migrant workers themselves were not specified as objects for protection, i.e., as potential victims, in the tackling of economic crime. The paper argues that there is a need to move away from understanding labour violation solely in the framework of financial and fiscal harms, and to see labour exploitation as a crime that also violates the individual.

6. Jan Georg Christophersen:
Beredskap og kontroll av maritim transport

The concept of state-corporate crime, which highlights joint government and private corporate action causing criminal harms, is a recent area of study with relatively few published cases. This paper focuses on state-corporate crime at the Norwegian government, specifically its failure to implement international conventions and agreements regarding shipping and port security against terrorism. It contributes to the study of state-corporate crime in three ways: (1) It adds a new case study to a field in which there are few published accounts; (2) it assesses the utility of an integrated theoretical framework for state-corporate crime and applies it to understanding harms at governmental, administrative and corporate levels; and (3) it demonstrates how the state’s role in state-corporate crime can evolve from that of instigator to that of facilitator.