Raimo Lahti, Towards internationalization and europeanization of criminal policy and criminal justice – challenges to comparative research

 

rofessor Raimo Lahti
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Professor Raimo Lahti, 
LL.D., M.Soc.Sc. 
University of Helsinki, 

Faculty of Law 

FINLAND

 

TOWARDS INTERNATIONALIZATION AND
EUROPEANIZATION OF CRIMINAL POLICY AND CRIMINAL JUSTICE – CHALLENGES TO
COMPARATIVE RESEARCH

 

1. Harmonization of criminal laws and the need
of comparative law

 

Since the 1990s, we can see a strong
development of international criminal law and an increase of the importance of
the United Nation’s (UN) activities in global criminal policy taking place at
the same time as the regional strengthening of similar tendencies, in
particular on the European level. In our region, the most powerful
organizations are the Council of Europe and the European Union (EU). Their
legal instruments have reflected and generated common principles based on the
values of democracy, human rights and the rule of law.

The intensified internationalization and
Europeanization of criminal law have changed the role of comparative law and
criminal sciences in general. There is much more need for comparison of legal
orders due to the emergence of European criminal law and international criminal
law and due to the interaction between European and global legal regulations
and the national legal orders. This kind of interaction between international
law and domestic law has been strongly emphasized by the French scholar Mireille
Delmas-Marty, who repudiates “any binary vision that opposes the national to
the supranational and the relative to the universal”[1].    

Scientific cooperation should be, when
possible, multinational. The significance of bilateral arrangements is
diminishing, although they also may have a positive role in furthering common
research projects and personal contacts. Strengthening of the activities of
scientific organisations (like Association International de Droit Pénal) and of
various networks of scholars is advisable in order to produce ambitious
scientific comparative works, such as the “Corpus Juris” proposal and its
implementation[2] , “Economic criminal law in the European
Union”[3] , “A Programme for European Criminal
Justice”[4] and “A Manifesto on European Criminal
Policy”[5]. 

The importance of the studies on comparative
criminology and criminal justice should not be forgotten either. For instance,
empirical studies should increasingly be planned in research groups so that
they can be repeated in various countries in order to strengthen their
verification value and applicability in decision-making.[6]
We need more evidence-based criminological research to be utilized in
criminal-policy planning and as a foundation for rational criminal policy. This
is particularly true in relation to the decision-making and actors within the
EU, where criminal policy has not so far been made on the basis of coherent
conceptions and by utilizing relevant criminological research. 

In his recent monograph on “European Criminal
Law” the Dutch scholar André Klip includes to its subject “a multi-layered
patchwork of legislation and case law in which both national and European
courts, European and national legislatures, and other authorities and bodies
play a role”. The European criminal justice system is in transition, and much
of its future is dependent  on the
influence of the Treaty of Lisbon[7]. Klip foresees the codification of the
general part of criminal law within European Union law as one element in
building a European criminal justice system, but on the other hand emphasizes
the recognition of fundamental aspects of the national criminal system in the
emergency-brake procedure of the Lisbon Treaty.[8]  

The German scholar Ulrich Sieber has analyzed
the trend to harmonize criminal law as one result of worldwide globalization
and he explains it by four significant forces: the increasing development and
international recognition of common legal positions for the protection of human
rights and for the political and economic aims; the growth in international
security interests; the growing influence of actors other than nation states;
and the increasing international cooperation based on new institutions with new
instruments of legal approximation.[9]

 

2. The experience of Finland and other Nordic
countries to be utilized in comparison?

 

The Nordic countries form a sub-regional area
in Europe and the developments there seem to presage more general trends in
Europe towards harmonization of criminal laws. Therefore,  a view of the experience may be illustrative
also in assessing the effects of increased internationalization and
Europeanization of criminal policy and criminal justice.[10]

Since the 1960s, the Nordic countries  have had a close cooperation in the legal
area for several reason.  The common
legal traditions and crucial similarities in cultural, economic and social
development make it understandable that a strong mutual confidence prevails
between the Nordic countries, and that confidence furthers efficient
cooperation. The Nordic cooperation in legal matters is based on a variety of
sources: of multilateral (European) conventions, of the treaties between the
Nordic countries, of uniform legislation and of established practice among the
public officials in these countries.    

The legal culture and legal thinking in the
Nordic countries reveal some specific features. Although these countries belong
to the so-called civil (statutory) law tradition, the approaches in legislative
reforms and legal doctrines are often less strict in the 'system-building' (in
constructing theories and concepts) and are more pragmatically oriented than
typically in the continental civil law countries. This is also true in relation
to the general system for analysing criminal acts (“Straftatlehre”), although
Finland is in this respect nearer to German penal thinking than the other
Nordic countries. The models offered by common law countries and the theories
developed by scholars coming from these countries are now taken more seriously
into consideration than in earlier times. This is true, in particular, when
reforming criminal procedure.  The
influence of the case-law of the European Convention on Human Rights and
Fundamental Freedoms (ECHR, originally from 1950) on the principles of criminal
procedure is remarkable.    

 Essential similarities are discernible in the
goals, values and principles governing the Nordic penal codes and the criminal
justice systems in these countries, although they are far away from identical.
At the same time as the Nordic countries have been social welfare states, their
crime control policies and the systems of criminal sanctions are characterized
by the emphasis on such values as liberalism, rationalism and humaneness. The
Nordic countries have also been active in promoting the efforts to elaborate
internationally accepted standards for criminal policy and criminal justice and
to implement them. Human rights aspects and humanitarian considerations are of
special importance in this connection.

 Nevertheless, it should be noted that in
recent times the Nordic cooperation has lost much of its traditional
significance, when Finland, Denmark and Sweden have concentrated more on the
activities within the EU.  The importance
of the police and judicial cooperation in criminal matters has also increased
within the EU. See now Title V, Article 67, in the Consolidated Version of the Treaty
on the Functioning of the EU (2008): “The Union shall constitute an area of
freedom, security and justice with respect for fundamental rights and the
different legal systems and traditions of the Member States” (para 1); “the
Union shall endeavour to ensure a high level of security … through measures for
coordination and cooperation between police and judicial authorities and other
competent authorities, as well as through the mutual recognition of judgments
in criminal matters and, if necessary, through the approximation of criminal
laws” (para 3).

 


3. On the Finnish criminal policy from the 1960s
to the 2010s

 

The following tendencies can be identified in
the Finnish criminal policy since the 1960s:[11]

(i) criticism of the so-called treatment
ideology (the 1960s);

(ii) emphasis on cost-benefit thinking (the
beginning of the 1970s);

(iii) so-called neo-classicism in criminal law
thinking (the end of the 1970s and the beginning of the 1980s);

(iv) pragmatic reform work for a new Criminal
Code – a total reform of criminal law – by utilizing modified ideas of the
above-mentioned tendencies (since the 1980s until the beginning of the 2000s);

(v) influence of the human and basic rights
thinking on criminal law and procedural law since the 1990s);

(vi) effects of the internationalization and
Europeanization of criminal law since the end of the 1990s.).

 The penal thinking which was adopted in the travaux
préparatoires of the total reform of criminal law is characterized by the
demand for a more rational criminal justice system, i.e. for efficient, just
and humane criminal justice. The existence of the criminal justice system is
justified on utilitarian grounds. The structure and operation of the penal
system cannot, however, be determined solely on the basis of its utility. The
criteria of justice and humaneness must also be applied. The penal system must be
both rational as to its goals (utility) and rational as to its values (justice,
humaneness).[12] This kind of penal thinking has had
clear effects on the reasoning about the punitive level of the penal system,
the types and contents of the criminal sanctions and the sentencing.  To quote the Government Bill 66/1988:

 “Criminological research has demonstrated that
the general preventive effect of punishment can not be connected, in a
one-sided manner, to the length of the prison sentences. Entry into prison already
has a considerable deterrent effect. Similarly, we have abandoned the view that
the rehabilitative effect of prison would require a certain minimum period in
prison. On the contrary, we know that sentences of imprisonment always hamper
the possibilities of readjustment to a normal social life. In addition, the
enforcement of prison sentences is expensive for society.” (Detailed reasons,
ch. 1.2.1.1.)

 As to the punitive level of the penal system,
the assessment of the harmfulness and blameworthiness of the acts to be
criminalized  was also intended to lead
to an reassessment of the penal scales and of the seriousness of the various
types of offences. For instance, the typical harm caused by property offences –
their “penal value” – should be regarded as lesser than that of the violent
crimes, and such modern crimes as economic and business offences, work safety
offences and the impairment of the environment should be regulated in the
criminal code and their seriousness should be comparable to that of the
property offences.

 As to the types and contents of criminal
sanctions, alternatives to imprisonment should be developed and the use of
prison sentences should also otherwise be decreased.  The length of prison sentences imposed in
Finland and the other Nordic countries is even traditionally quite short from
an international perspective: the average can be given in months, not in years.
Since the mid-1970s, the relative number of offenders sentenced to
unconditional imprisonment was on the decrease for nearly 25 years, until 1999.
During this period, the average size of the prison population decreased from
over 100 per 100 000 population to 65 – i.e., to the level of the other Nordic
countries. At the same time the development of registered criminality signed a
similar trend in all of Nordic countires so that a dramatic cut in the prisoner
rate in Finland did not result in a proportionate increase in the incidence of
crime compared with other Nordic countries where the prisoner rate stayed quite
stable.[13] In 2000–2005, the size was again
increased, to 90 in
2005 – but in the most recent years the level seems to be normalized to 65–70
per 100 000 population. According to the Finnish scholar Tapio
Lappi-Seppälä, penal severity is closely associated with the extent of welfare
provision, differences in income-equality, trust and political and legal
cultures. So the Scandinavian penal model has its roots in consensual and
corporatist political culture, high level of social trust and political
legitimacy, as well as a strong welfare state. These different factors have
both indirect and direct influences on the contents of penal policy.[14]

        

4. The influence of human and basic rights on
the Finnish legal culture and on the 
principles of criminal procedure

 

Human rights or constitutional aspects of
criminal law or criminal procedure did not normally got serious attention until
the 1990s in Finland. A remarkable change in legal thinking and practice in
this respect was connected with two major legislative reforms: firstly, Finland
ratified the ECHR in 1990, and, secondly, new provisions on fundamental (basic)
rights were incorporated into the Finnish Constitution in 1995 (in a formally revised
form in the new Constitution of 1999). 

 Those aspects were not, however, fully
overlooked even earlier.  Most of the
relevant human rights treaties had been ratified in Finland in due course (e.g.
International Covenant on Civil and Political Rights, CCPR) and, when ratified,
they have also been incorporated into the domestic legal order. Nevertheless,
courts or administrative authorities referred very seldom to human rights
treaties or constitutional rights until the late 1980s; a tradition to invoke
constitutional rights in courts was lacking. Human rights treaties and constitutional
rights were regarded as binding primarily upon the legislator. First references
to the human and constitutional rights were made in the practice of the Supreme
Administrative Court and the Parliamentary Ombudsman.

 Theoretical discussion was important in
creating a sound basis  for the changed
understanding about the role of human and constitutional rights and,
accordingly, for the change of legal thinking and practice. Emphasis on general
doctrines and principles was typical for Finnish legal literature in the 1980s
and early 1990s. There were often cited two authors, Ronald Dworkin and Robert
Alexy,[15] whose distinction between rules and
principles as two categories of legal norms was frequently analyzed and
utilized in legal theory. Concepts and theories of human rights law were
developed; an influential theoretical conceptions is based on the distinction
between the rule effect, the principle effect and the standard effect of human
rights norms and it is also based on the differentiation how the human rights
provisions operate in concrete decisions.[16]
The political decisions of the Finnish government in the late 1980s to apply
for the membership of the Council of Europe (and join the ECHR) and to begin
the revision of the constitution law affected also the theoretical discussion
about the status of human and constitutional rights. Basic human values,
principles and fundamental rights were increasingly seen, not only as
requirements of justice, humaneness or other dimensions of morality but also as
having judicial relevance.

 The Finnish legal system has traditionally
reflected a model of democratic Rechtsstaat where democracy and fundamental
rights are regarded as complementary principles in a strong sense: there is
neither judicial review nor a constitutional court for reviewing the
constitutionality of laws, but the conformity of a bill to the constitution is
reviewed only during the legislative process.[17]
Therefore, the ratification of the ECHR and the reform of constitutional rights
in the 1990s were remarkable when implying the direct applicability of the
individuals' fundamental rights in courts.  

 At the same time as Finland ratified ECHR, it
also accepted the jurisdiction of the Strasbourg Court and recognized the right
of individual petition. Before that an in-depth study on the compliance of
Finnish legislation  with the ECHR and
Strasbourg case-law was conducted. Several acts of parliament were amended, for
example with respect to pre-trial investigation and aliens' rights.[18] 

 The ECHR and other important human rights
treaties have been incorporated through an act of parliament in blanco. Because
of the predominance of the incorporation method, Finland can be said to
represent dualism in form but monism in practice when implementing international
law into the domestic legal order.  This
implementation method affects the application of human rights treaties. The
Parliamentary Constitutional Law Committee has confirmed following principles:
the hierarchal status of the domestic incorporation act of a treaty determines
the formal rank of the treaty provisions in domestic law (i.e., their rank is
normally that of an act of Parliament); incorporated treaty provisions are in
force in domestic law according to their contents in international law; and the
courts and authorities should resort to "human-rights-friendly"
interpretations of cases having domestic status, in order to avoid conflicts
between domestic law and human rights law.[19]

 Before the Finnish ratification of the ECHR
there were no references to international human rights conventions in the case-law
of the Finnish Supreme Court, although the Parliamentary Ombudsman had applied
international human rights law in his decision-making in the years leading up
to ratification. The first cases were the Supreme Court expressed its
willingness to apply international human rights norms where decided in 1990 and
dealt with the extradition of persons accused of hijacking an aeroplane in the
former Soviet Union. In all of these four cases, the Supreme Court informed the
Ministry of Justice that, in its opinion, there were no legal obstacles to
extradition in the concrete cases, meanwhile stating that a rule of non-refoulement,
directly binding on Finnish authorities, could be drawn from, i.a., Article 3
of the ECHR and Article 7 of the CCPR.[20]

 Since these extradition cases, the Supreme
Court has mostly applied human rights norms in issues concerning criminal
procedure, i.e. Article 6 of the ECHR and Article 14 of the CCPR. These treaty
provisions have been applied directly in order to fill certain gaps in the
Finnish legislation on criminal procedure, although in most cases references to
them have been made when interpreting domestic provisions. Justice Lauri
Lehtimaja has recently analyzed the influence of the ECHR on Finnish law and
court decisions. While the Supreme Court annually publishes 100–200 judgments
in its yearbook, in these judgments so far, express reference has been made to
the ECHR in a total of 111 cases (2008). Because of the substance of the ECHR
has been integrated into domestic legislation, there is nowadays only seldom a
need for a direct application of the ECHR. “The ECHR is used as a kind of
litmus paper testing whether the interpretations of the domestic law are also
in harmony with international human rights obligations.” A more general effect
of the ECHR covers a change in judicial thinking: the reasoning in court
judgments has become more open and transparent.[21]

 New provisions on the fundamental rights in
the Finnish Constitution[22]   are much more detailed than the earlier ones,
for instance concerning not only individual rights but also social rights, have
been essentially inspired by the international human rights treaties.  Several of the enacted constitutional
provisions make reference both to basic and to human rights, thus giving
semi-constitutional status to human rights treaties.[23]
The travaux préparatoires of this reform is emphasize the point that the
constitutional provisions are also directly applicable in the administration of
law by judges and authorities and so their binding effect is not restricted to
law-making only. In addition to the "human-rights-friendly"
interpretation of the law, a similar "basic-rights-friendly"
interpretation is recommended, although the prohibition of courts to examine
the constitutionality of acts of Parliament was maintained. 

 

5.  Finnish
criminal law reform and constitutional and human rights

 

The ideological change with greater emphasis
on constitutional and human rights has had effects on the total criminal law
reform in Finland (1970–2003).[24] The rise of these rights in legal
thinking and practice has had an influence, not only on the Finnish criminal
law but also on its theoretical basis.

 The preparatory work for the recodification of
the Finnish Penal Code of 1889 started already in the 1970's, before the
emergence of human and basic rights thinking. 
Nevertheless, two basic legal principles have governed Finnish criminal
law reform: the legality principle and the principle of culpability (“Schuldprinzip”).  

 The legality principle in criminal law can be
divided into four sub-principles: the rule that only the law can define a crime
and prescribe a penalty (“nullum crimen sine lege scripta”), the rule that
criminal law must not be applied by analogy to the accused's detriment, the
prohibition of retrospective application of the criminal law to the accused's
disadvantage (“nullum crimen sine lege praevia”), and the rule that a criminal
offence must be clearly defined in the law (“nullum crimen sine lege certa”).
This kind of classification of the main contents of the legality principle is
generally accepted, i.a. in the case-law of the Article 7 (1) of the ECHR (see,
e.g., Case of C.R. v. the United Kingdom; 22 Nov. 1995). 

 The legality principle has been included in
the revised basic rights (Section 8, Constitution of Finland), and it is
equivalent to the corresponding Article 7 (1) of the ECHR and Article 15 (1) of
the CCPR:

"No
one shall be found guilty of a criminal offence or be sentenced to a punishment
on the basis of a deed, which has not been determined punishable by an Act at
the time of its commission. The penalty imposed for an offence shall not be
more severe that provided by an Act at the time of commission of the offence."

 The regulation in the Constitution has
strengthened the significance of the legality principle as the leading
principle in criminal law, which has institutional support both in human rights
and constitutional law. As can be seen from the citation, this provision is
intended to be applied more strictly than the corresponding provisions in the
ECHR and CCPR, insofar as the definition of a crime and the prescription of a
penalty must be based on an Act of Parliament.

 One way to strengthen the legality principle
is the effort to reduce and specify the use of the so-called blanket
(reference) provision technique. A new challenge was created by Finland's membership
in EU, because so-called integration by reference, for the purpose of
incorporating the European Community norms, was extensively used in the member states
of the EU.[25]

 When enforcing EC/EU-Directives into national
legal orders the member states have certain discretion in choosing the legal
remedies, e.g. whether to resort to criminalization or administrative sanctions
and at what punitive level the sanctions should be. This discretion may,
however, be very limited, for instance when enforcing the Directive on money
laundering; the enlarged criminal-law competence of the EU in the Treaty of Lisbon
will make that discretion even more limited[26]
 The member states must ensure that money
laundering as defined in the Directive shall be forbidden; the Finnish Penal
Code was amended in order to fulfil the obligation arisen from this directive
and also from other international treaties. On the other hand, the principle of
EU-law friendly interpretation of national legislation does not apply to the
detriment of the accused; see for example the Cases C-74/95 and C-129/95, where
a reference to the legality principle and the constitutional traditions and
ECHR, on which it is based, was in this respect made. 

 The new constitutional provision on the
legality principle, taking account of its travaux préparatoires and the
tradition to transform the international treaties requiring the penalizing of
certain acts, leads also to the conclusion that the Finnish courts are not
allowed to sentence for an act which constitutes a criminal offence under
international law only.[27]

 The legality principle is not the only basic
right  which is relevant for the Finnish
criminal law and its reform. Many of the basic principles which were behind the
reform work can after the constitutional reform be classified as fundamental
rights. For instance, the moral and political arguments of justice and
humanity, which have played an important role in Finnish criminal policy and
criminal law theory, have now a strong institutional support as legal
principles, too, when being firmly attached to human rights and constitutional
law. Accordingly, the principle of culpability and, accordingly, the
prohibition of strict liability can from a legal point of view be based on the
explicit human rights norms and constitutional provisions which guarantee the
inviolability of human dignity.

 As for the principles of criminalization,
various human and basic rights must be taken into account. In the
argumentation  constitutional (and human
rights) aspects may collide so that  certain
aspect support the enlargement of criminalizations and certain aspect restrict
their scope or the methods for using criminal law; there is often a tension
between contrary arguments.  When dealing
with some of the recent Government Bills concerning criminal law the
Parliamentary Constitutional Law Committee deliberated generally upon the
question: There must be a considerable social need and also from the basic
rights point of view acceptable reasons for a criminalization that it restricts
fundamental freedoms in an acceptable way; the pros of criminalization must
also be in proportion to the extent how much fundamental freedoms are
restricted.

As for the criminal sanctions, explicit human
rights norms and constitutional provisions forbid death sentences, torture and
other degrading or inhumane treatment in a very absolute way. In Finnish Penal
Code there is also a special provision forbidding torture.[28]
In traditional penal theory, the debaters rely primarily on the utilitarian
arguments of social defence and/or the arguments of justice and
humaneness.  

Also in recent Finnish academic literature on
the general doctrines of criminal law much attention has been paid to the role
of constitutional rights (and human rights) for legal theory in general and
criminal law theory in particular.[29]

 

6. Summary: challenges of internationalization
and Europeanization and internationalization of criminal policy and criminal
justice

 

The increased internationalization and
Europeanization of criminal policy and criminal justice are challenging for
legal scientists, legislators and practitioners. The administration of criminal
justice, which so far has been an essential element of state sovereignty, has
partially moved, and is still moving, beyond the direct control of
nation-states. The ECHR and its case-law have an important role in creating the
European model of criminal procedure.[30]
 The international criminal tribunals
have a similar role in furthering respect for fair trial rights.[31] Domestic courts are in key positions in
strengthening human rights according to these standards. In particular, the
International Criminal Court (ICC), whose competence relies on the principle of
complementarity, needs a jurisdictional shift from the ICC to domestic courts
when dealing with the serious violations against humanitarian law[32], as defined in the provisions of the
Rome Statute [33]. For example, Finland has transformed
those provisions into Penal Code provisions[34],
and one case (accused for participation in genocide in Rwanda) is pending in
Finland.

One of the challenging questions to
comparative criminal scientists is:  To
what extent can we speak about common legal positions in respect of the general
part of criminal law, i.e. common legal principles and concepts? The general
principles and concepts of criminal law have been developed since the 19th
century primarily by the doctrines and practices of national criminal law and
national criminal justice systems. Such concepts and principles have been
mainly developed within two legal cultures, either under civil law or common
law tradition, and have therefore largely differentiated. It is certainly a
cumbersome way to a common general part of European criminal law or harmonized
general parts of national criminal laws.[35]  The Hungarian scholar Norbert Kis
demonstrated this difficulty by his analysis on the principle of culpability.[36] Although there is a common ground for
the doctrines of intent in the Nordic countries, a unified “Dolus nordicus” is
missing even in this sub-region of Europe where the countries have common legal
traditions.[37] An outstanding comparative research
project of the Max Planck Institute for Foreign and International Criminal law
for creating a universal meta structure for criminal law (“universale
Metastruktur des Strafrechts”) is an ambitious endeavour to develop
international criminal law doctrines.[38]

The diversification of certain areas of
criminal law – typically Europeanized economic criminal law and
internationalized humanitarian law – is reflected in the pluralism of general
legal doctrines. Therefore, there is a need for developing a more dynamic
conceptual and system thinking in order to control many parallel legal
regulations and the diversity of the regulated phenomena.[39]
For instance, there are cogent criminal-policy reasons for certain
differentiation of traditional concepts and principles of criminal law in order
to take into account the nature of macro-criminality and so-called
organisational crimes. Nevertheless, there are limits to this differentiation,
because the utilitarian (effectiveness) aims must be balanced with the considerations
of fundamental rights and freedoms of the accused persons.[40]  

In Scandinavian criticism against the
unification of European criminal policy, the main arguments have concentrated
on the concern that the basic values of the "Nordic model" would then
be endangered. In the Scandinavian thinking, for example, the role of crime
prevention is particularly emphasized; specific criteria of rationality in
criminal policy such as legitimacy and humaneness are applied; and the level of
repression in criminal sanctions in relatively low. Especially the EU-criteria
of dissuasiveness  is criticized for its
strong connotation with deterrence (negative general prevention) and high level
of punitiveness and repression.

It is true that the demand for more effective
sanctioning and penal provisions is evident as to transnational organized or
financial crimes, when the financial interests of the whole EU are in danger or
when there are particularly strong common interests of the member states to
combat serious trans-border crime. 
Nevertheless, there is among scholars a fear about net-widening effects;
this trend towards increased repression may affect the whole criminal justice
system.

According to critics, the principles of
subsidiarity and proportionality should be strongly emphasized in criminal
policy. The demand for the legitimacy is particularly strong as to criminal
justice systems; so cultural and national traditions should be taken seriously
into account. At a regional, European level such legitimacy is difficult to
achieve. In order to increase acceptability of and confidence in European
institutions (primarily in the EU), there should be general awareness of common
European values (as now captured by the concept of the area of freedom,
security and justice). Deficiencies in the decision-making processes and their
transparency should also be removed (the idea of citizens' Europe and the
sufficient and equal freedom of action of member states should be combined). And
finally, the commitment to the observance of human rights and fundamental
freedoms ought to be strengthened. 

 

 

 

 


[1] M. Delmas-Marty, Comparative Criminal Law as a
Necessary Tool for the Application of International Criminal Law, in: A.
Cassese (ed.), The Oxford Companion to International Criminal Justice. Oxford
University Press, 2009, pp. 97–103.

[2] See M. Delmas-Marty et al., Corpus Juris. Economica, 1997;
M. Delmas-Marty & J. A. E. Vervaele (eds.), 
The Implementation of the Corpus Juris in the Member States, Vols I–IV,
Intersentia, Antwerpen 2000–2001.

[3] See K. Tiedemann (Hrsg.), Wirtschaftsstrafrecht in der Europäischen Union.
Carl Heymanns Verlag, Köln 2002.

[4] See B. Schünemann (Hrsg./ed.), Ein
Gesamtkonzept für die europäische Strafrechtspflege.
Carl Heymanns Verlag, Köln 2006.

[5] See European Criminal Policy Initiative (http://www.crimpol.eu); Zeitschrift für Internationale
Strafrechtsdogmatik 12/2009, pp. 707-716 (
www.zis-online.com).

[6] Cf. generally T. Newburn & R. Sparks
(eds.), Criminal Justice and Political Cultures. Willan Publishing, 2004; K.
Aromaa & T. Viljanen (eds.), International Key Issues in Crime Prevention
and Criminal Justice. European Institute for Crime Prevention and Control,
affiliated with the United Nations (HEUNI), Publication Series No. 50,
2006. 

[7] See the Consolidated Versions of the Treaty on
European Union and the Treaty on the Functioning of the European Union (2008/C
115/01).

[8] A. Klip, European Criminal Law.
Intersentia, Antwerp 2009, especially pp. 1, 425, 432.

[9] U. Sieber, The Forces Behind the Harmonization
of Criminal Law, in: M. Delmas-Marty et
al.
(éd.), Les chemins de l’harmonisation pénale. Paris 2008, pp. 385–417,
387.

[10] See generally R. Lahti, Towards a rational and
Humane Criminal Policy – Trends in Scandinavian Penal Thinking. Journal of
Scandinavian Studies in Criminology and Crime Prevention, Vol. 1, 2000, pp.
141–155.

[11] See in more detail R. Lahti,
Recodifying the Finnish Criminal Code of 1889: Towards a More Efficient, Just
and Humane Criminal Policy. Israel Law Review, Vol. 27, 1993, pp. 100–117.

[12] See generally I. Anttila, Ad ius criminale
humanius. Essays in Criminology, Criminal Justice and Criminal Policy. Finnish
Lawyers’ Association, Helsinki 2001.

[13] See esp. P. Törnudd, Fifteen Years
of Decreasing Prisoner Rates in Finland. National Research Institute of Legal
Policy (NRILP), 1993; T. Lappi-Seppälä, Regulating the Prison Population.
NRILP, 1998.

[14] T. Lappi-Seppälä, Penal Policy and
Prisoner Rates in Scandinavia, in: Festschrift in Honour of Raimo Lahti, Forum
Iuris, Helsinki 2007, pp. 265–306. Cf. M. Cavadino & J. Dignan, Penal
Policy and Political Economy. Criminology and Criminal Justice, Vol. 6, 2006,
pp. 435–456; D. Nelken, Comparative Criminal Justice: Beyond Ethnocentrism and
Relativism. European Journal of Criminology, Vol. 6, 2009, pp. 291–312.  

    [15]
See R. Dworkin, Taking Rights
Seriously.
Duckworth,
1977/1987 and R. Alexy, Theorie der
Grundrechte
. Baden-Baden, 1985.

    [16] See esp. M. Scheinin, Human Rights
in Finnish Law
. Summary of a doctoral thesis, Jyväskylä 1991.

    [17]
See e.g. A. Jyränki, Taking Democracy Seriously. The problem of the control of
the constitutionality of legislation. In: M. Sakslin (ed.), The Finnish Constitution in Transitio.,
Helsinki 1991, pp. 6–30.

    [18]
See M. Pellonpää, The Implementation of the European Convention on Human Rights
in Finland. In: A. Rosas (ed.), International
Human Rights Norms in Domestic Law.
Helsinki 1990, pp. 44–67.

    [19]
See in more detail M. Scheinin, Incorporation and Implementation of Human
Rights in Finland. In: M. Scheinin (ed.), International Human Rights Norms in the Nordic and Baltic Countries.
Martinus Nijhoff Publishers, The Hague 1996, pp. 257–294. 

    [20]
See L. Hannikainen, How to Interpret, and What to Do to, the Treaty on Aircraft
Seizures with the Soviet Union. In: Finnish
Yearbook of International Law,
Vol. II (1991), pp. 538–558.

[21] L. Lehtimaja, The View of the
Finnish Supreme Court on the European Convention on Human Rights. Paper presented
in a seminar on the ECHR, 6 June 2008; accessible from the website of the
Supreme Court: www.kko.fi/44943.htm.

[22] An English translation is accessible
from the website of the Ministery of Justice: www.finlex.fi/fi/laki/kaannokset/1999/en19990731.pdf.

    [23]
So Scheinin, in: International Human Rights Norms in the Nordic and Baltic
Countries, op.cit., p. 276.

[24] The revised Finnish Penal Code is
electronically accessible as unofficial translation into English from the
website of the Ministry of Justice: www.finlex.fi/fi/laki/kaannokset/1889/en/18890039.pdf.

    [25]
See e.g. M. Delmas-Marty, The European Union and Penal Law. European Law Journal, Vol. 4,
1998, pp. 87–115 (100).

[26]  See
Article 83 in
the Consolidated Version of the Treaty on the Functions of the EU (2008).

    [27]
Cf. Decision 53/1993 (X.13) of the Hungarian Constitutional Court, where
individual responsibility for war crimes and crimes against humanity was
established irrespective of their punishability under domestic law, but was
based on the general congency of the revelevant international law.

[28]  See
Chapter 11, Section 9a (990/2009) in the Penal Code.

    [29]
See esp. the doctoral theses of A.-M. Nuutila, Rikosoikeudellinen huolimattomuus, Helsinki 1996 (German
summary: Fahrlässigkeit als Verhlatensform und als Schuldform), of K. Nuotio, Teko, vaara, seuraus, Helsinki
1998 (German summary: Handlung, Gefahr, Erfolg), and of S. Melander,
Kriminalisointiteoria, Helsinki 2008 (English abstract: A theory of
criminalization – Legal constraints to criminal legislation).

[30] See esp. K. Bárd, The Role of the ECHR in
Shaping the European Model of the Criminal Process. In: K. Aromaa & T.
Viljanen (eds.), International Key Issues in Crime Prevention and Criminal
Justice, op.cit. pp. 34–52.

[31] See esp. W. Schomburg, The Role of
International Criminal Tribunals in Promoting Respect for Fair Trial Rights.
Northwestern Journal of International Human Rights, Vol. 8, 2009, pp. 1–29.

[32] See M. S. Ellis, International Justice and the
Rule of Law: Strengthening the ICC through Domestic Prosecutions. Hague Journal
on the Rule of Law, Vol. 1, 2009, pp. 79–86.

[33] See UN Doc A/Conf. 183/9, 17 July 1998.

[34] See Chapter 11 of  the Penal Code, Amendment of 212/2008.

[35] See especially K. Ambos, Is the Development of
a Common Substantive Criminal Law for Europe Possible? Maastricht Journal of
European and Comparative Law, Vol. 12, 2005, pp. 173–191.

[36] N. Kis, The Principle of
Culpability in European Criminal Law Systems, in: Towards More Harmonised
Criminal Law in the European Union. Hungarian Academy of Sciences, Budapest
2004, pp. 107–117.  

[37] See J. Matikkala, Nordic Intent,
in: Festschrift in Honour of Raimo Lahti, op.cit., pp. 221–234.

[38] See the publications of the
projects so far: U. Sieber & K. Cornils (Hrsg.), Nationales Strafre
cht in rechtsvergleichender Darstellung. Allgemeiner
Teil 1–3.
Duncker &
Humblot, Berlin 2008–2009. See also the G. P. Fletcher, The Grammar of Criminal
Law, American, Comparative, and International, Vol. I. Oxford University Press,
2007.

[39] In more detail, see R. Lahti, Towards
Harmonization of the General Principles of International Criminal Law, in:
International Criminal Law: Quo Vadis? Association Internationale de Droit
Pénal, érès, 2004, pp. 345–351.

[40] Cf. generally S. Melander, The
Differentiated Structure of Contemporary Criminal Law, in: Festschrift in
Honour of Raimo Lahti, op.cit., pp. 189–206.