April 2008 - 95. årgang Nr. 1
1. Dan Helenius:
The Interpretation of ne bis in idem in the EU and the Resolution of Conflicts of Jurisdiction.
This article deals with the principle of ne bis in idem and its interpretation in the EU as well as the prevention and resolution of conflicts of jurisdiction between Member States. The primary aim of the article is to discuss these problems in light of the principle of lis pendens, i.e., that no one should be prosecuted on the same facts as those already addressed in a pending prosecution. The concept of criminal proceedings is discussed first, since one of the prerequisites of the application of both ne bis in
idem and lis pendens is that the proceedings in question are of a criminal nature. After this, the concept of ”same facts” is discussed, since neither principle naturally can come into question if the proceedings are based on differrent facts. The case law of the European Court of Human Rights as well as that of the European Court of Justice is taken into consideration. Subsequently, the prevention of conflicts of jurisdiction and a possible mechanism for resolving such problems are discussed.
2. Lars Korsell, Johanna Hagstedt & Johanna Skinnari:
From Minions to Stepchildren: Fraud in the Welfare System.
The social welfare system was for a long time almost synonymous with Sweden. Since the beginning of the 1990s, the system has been questioned and a lot of attention paid to social benefit fraud. In the beginning, the Social Democratic Party denied that there was a problem, but later on they came to protect the welfare state by being tough on those who cheat the system. The opposite side of the political spectrum viewed the struggle against the cheaters as both a means by which to save the state money and as a source of ammunition with which to question the welfare model. Meanwhile, the image of welfare beneficiaries as passive receivers has been redefined to one of unwanted and suspicious burdens on society.
3. Paul Larsson:
”Narcotics are the Poor Man’s Employer”. Organized Crime as Economic Activity.
Analysis of organized crime has had a tendency to focus too much on economic gain as a motive. Using perspectives and terminology from economic theory, organized crime has been depicted as economic activity sharing basic similarities with legal enterprise. Such a perspective has given us knowledge and insights of great value. It makes us sensitive to the value of roles, markets and how the economies of different illegal markets are structured. All of this provides us with useful concepts. Nevertheless this article argues that economic theory (economics) has limitations when it comes to explaining the motivations behind organized crime. The different illegal markets have distinctions that exceed what traditional economics can explain. To understand the push and pull mechanisms and the peculiarities of organized crime and illegal markets we have to go elsewhere. Network theory and the sociology of economics can give us perspectives and help us better understand organized crime. There are quite a few non-economic pull factors that are important. This should make us aware of the limitations of the official view of organized criminals as simply profit-seeking actors and of the shortcomings of the widely adopted “ follow the money” strategy.
4. Peter Koudahl:
Education in Danish Prisons. Are the Educational Offers Sufficient?
This article presents some results from the first systematic investigation in 25 years of the educational offers in Danish prisons. It is based on a questionnaire distributed to all inmates in Danish jails and prisons. 3461 inmates received the questionnaire. The rate of response was 69.5 %. The article focuses
on the apparent discrepancies between the educational offers in Danish prisons, which first and foremost are traditional lessons in traditional school-based subjects (e.g., mathematics, language, etc.), and the results of the questionnaire, which indicate that the vast majority of the inmates would like to have the opportunity to take up vocational education while serving their sentences. The discussion is put in to perspective by examining the extent to which the education that inmates desire is likely to support the official purposes of the Danish Prison and Probation Service.
5. Toivo Jokkala:
»You May Observe Different Opinions among Lay Judges, but on Paper it Looks as if They All Agree.« An Interview Study with Swedish Lay Judges.
The essay focuses on the way Swedish lay judges describe their role in the judicial system and in relation to the law, and what meanings and understandings these descriptions express. The study is based on four focus group interviews and five individual interviews with lay judges. The lay judges are appointed by political parties and usually are members of the appointing parties, but despite that they dispute the idea that their role as lay judges is related to their political standpoints. Several respondents indicate that lay judges ideally stand for what the author labels “the policy of the decent citizen”. When describing the deliberation process in the court room, there is a general tendency among respondents to refer to legal decision-making as “arbitration”, where different bids are presented and consensus is reached on the final verdict. Indeed, the respondents seem to equate the idea of justice itself with that of consensus. The author concludes that his respondents, in their aspiration for consensus in legal conclusions, reconstruct the view of law and justice as something absolute and complete – although they express that there can be varying judicial opinions below the surface.
August 2008 - 95. årgang Nr. 2
1. Peter Garde:
The Norwegian Leave-to-Appeal Institution Viewed from Denmark.
The author describes and evaluates aspects of the Norwegian appellate process on the basis of observations made on the spot in all six Norwegian courts of appeal. Special focus is given to rules that allow a chamber of three judges to refuse an oral hearing in all criminal cases except jury trials. More than 60 percent of appeals are disposed of in this manner. The author concludes by considering whether a reform of the Danish system, where the right to appeal is much broader, along the lines of the Norwegian rules is desirable and possible.
2. Annika Suominen:
On the Validity of Framework Decisions in European Criminal Law and the Impact of the Lisbon Treaty on the European Penal Area.
This article has two parts: the first part analyses the validity of framework decisions as instruments in European criminal law in light of the Advocaten voor de Wereld-case. In this judgment, the ECJ declared the EAW, and framework decisions in general, valid as third pillar instruments even when replacing traditional cooperation instruments. The EAW, which is the first instrument based on mutual recognition, does not conflict with the principle of legality or the principles of equality and non-discrimination. This judgment is important for the whole third pillar as the current legislative practice is confirmed in it. Both the judgment and the court’s reasoning are analysed. The second part of the article consists of a more general analysis of the Lisbon Treaty and the impact the Treaty will have on the future of European criminal law. The abolition of the third pillar will entail many changes such as the shift to qualified majority voting in the Council, the new criminal law jurisdiction of the ECJ, the increased democracy in criminal law relating to parliamentary control and the introduction of new instruments, such as directives. The application of framework decisions in this new context is also analysed, as is the relevance of the Advocaten voor de Wereld-case for the future.
3. Peter Lindström:
Rates om Imprisonment and Crime: What is their Association?
Will an increase in prison populations reduce crime? According to most criminologists, the answer is probably no. But if the same question is posed to an economist, the answer received will most likely be yes. From a crime policy perspective, values rather than evidence are the primary guide. Most studies of the relationship between rates of imprisonment and crime use observational data, analysed with some type of time-series analysis. A review of the empirical criminological literature tends to reveal a negative statistical association between prison population and crime at the aggregate level. However, at the individual level, the association is often found to be positive, i.e. imprisonment is deleterious for the inmate and his family. The finding of a statistical association is, of course, no proof of a causal relationship, since the two may co-vary as a function of other circumstances. Data from four Scandinavian countries for the years 1990-2005 indicate a negative correlation between rates of imprisonment and lethal violence. Likewise, a second analysis finds that the monthly imprisonment rate is negatively related to the monthly burglary rate in Sweden. The conclusions of these analyses are, however, less than straight forward. First, changes in the imprisonment rate are determined by political decisions. Second, the collateral effects of imprisonment on re-offending, as well as on individual economic and social well-being, are fairly well known. Third, even where evidence for a negative relationship between rates of imprisonment and crime are shown, the fundamental question as to whether this relationship is causal remains unanswered.
4. Hanns von Hofer:
Comment on the Peter Lindström Paper.
In a rejoinder to a paper (Lindström, 2008, in Swedish) that claims that a 10 percent increase in the number of prisoners in Sweden decreases the number of homicides by 5 percent during the subsequent year, the author shows that this claim is a methodological and conceptual artefact. Using data from Swedish conviction statistics (1981-2006), it is shown that the temporal distribution of the incidence of homicide is identical for perpetrators sentenced to custodial and non-custodial sanctions, respectively. Since the average stay in Swedish prisons is short (ca. 5 months), lasting incapacitative effects are impossible to obtain given the temporal distribution of Swedish homicide events. The author joins the ranks of scholars criticizing the use of regression modelling as a superior research strategy.
5. Snorri Örn Árnason & Helgi Gunnlaugsson:
Ethical Dilemmas in the Icelandic Business Community.
Illegal and unethical behaviour by large corporations in Iceland has caused increasing concern and debate during the past few years. The main objective of this study is to examine which external and internal factors contribute to increased risk of corporate crime. The research is based on interviews with ten managers and middle managers of large corporations who were selected by snowball sampling and whose identities are hidden. The data were collected and analysed with qualitative research methods. Due to the small sample size, the results must be interpreted cautiously and the conclusions cannot be generalized. The findings show that the laws relating to business changed following the ratification of the European Economic Union in 1993, and thereupon the moral values with regard to commerce were rapidly revolutionized. Icelandic society subsequently passed through a period of conflicts of standards which created uncertainty about their implementation. This „anomic” condition increased the risk of illegal methods being used to reach corporate goals. New opportunities and greater emphasis on financial gain put increasing pressure on managers to meet these goals. Meanwhile boards of directors neglected their regulatory duties which may have contributed to an absence of counterbalance. Top management set the ethical tone, and if they select illegal means to obtain their goals it may produce an unethical organizational culture which favours and rationalizes that kind of behaviour.
6. Marie-Lisbet Amundsen:
High-Frequency Offenders: Identity and Self-Esteem.
This article discusses the results of in-depth interviews with ten repetitive offenders, i.e. offenders who have been imprisoned seven times or more. Several of them have been imprisoned twelve times or more. The interviews focus on self-image and self-confidence. The informants describe feelings of stigmatisation and exclusion from society. They are often lonely, and all of them indicate ambivalence towards their drug-related social networks. They also describe symptoms of generalized anxiety, depression and panic attacks. None of the informants have a positive self-image. They all tell of repeated failure, of an inability to manage even simple activities, and of a lack of belief in own abilities. Many of them perceive themselves as a burden on society. Their negative self-images and anxieties have caused them to consider taking their own lives.
December 2008 - 95. årgang Nr. 3
1. Torben Tranæs:
Informal Punishment and the Welfare State.
Informal punishment consists of the difference between a criminal’s life circumstances after conviction and punishment, and that which he or she would have experienced without conviction and punishment. Despite a long debate, it remains unclear whether a well-developed welfare state with a high level of social security prevents or promotes crime among ex-convicts via its influence on informal economic punishment. The current article has two purposes: First, to examine whether, and by what means, social security support - in this case, as provided in Denmark - has any measurable impact on the informal punishment experienced by ex-convicts; and, second, to quantify informal economic punishment as experienced with and without this social security support, i.e., inclusion of unemployment insurance benefits and other welfare payments. Internationally, there have been few attempts to quantify informal economic punishment, and the author knows of no previous research concerning the significance of a country’s welfare system for the informal punishment experienced by its lawbreakers.
2. Moa Forsberg:
Trial and Truth.
The legitimacy of the judiciary relies on the presumption that truth can be found through the judicial process. Even though a distinction can be made between “truth” in a legal sense and “real truth”, the legal truth can only be justified by its anchorage in “real truth”. During the last few decades, the previously all-powerful assumption of the objective nature of reality and knowledge has been challenged and criticized. Ideas of a more relativistic character have gained influence in both science and society more generally. This article highlights questions such as how recent challenges to objectivistic views of knowledge and reality affect the legitimacy of the judiciary and the possibility to justify the judiciary and the judicial process as it is designed today without recourse to objective truth. The article also points at recent developments in the criminal procedure from a realistic versus relativistic ideal. Changes in the Code of Judicial Procedure and the Mediation Process as an alternative to the traditional criminal procedure are discussed as examples of these recent developments.
3. Per Ole Johansen:
Organised Crime: What Now?
The nature of organized crime in Norway has not changed “radically” since the early 1990s.The problem for legitimate private business is (still) organized theft committed by ethnic Norwegians and gangs from Eastern Europe. Systematic extortion and “protection” is nearly unheard of. “Grey zone” cooperatives, i.e., between legitimate business and organized crime, are fairly rare by international standards, but seem likely to multiply in the future. Organized smuggling in alcohol, cigarettes or drugs remains very tempting for a businessman in need of fast money. Norway has no tradition whatsoever for alliances between organized crime and politicians. Corruption linked to organized crime is a minor problem. Norway is not an arena for major “criminal organizations”, but the loose groups and ever-changing networks that do exist seem to cause problems enough on their own.
4. Peter Mygind Leth:
Lethal Stabbings in Southern Denmark during the Last 25 Years.
54 homicides by stabbing with 57 victims (32 men and 25 women) took place in Southern Denmark (approximately 720,000 inhabitants) in the period 1983-2007. The rate for homicides by stabbing was constant throughout these 25 years. Many of the victims were socially disadvantaged, half were alcohol intoxicated at the time of death, and almost a third had a chronic abuse problem. The majority of these homicides were committed at home by a family member, and the murder weapon was a kitchen knife in two thirds of the cases. Agitation, jealousy and psychosis were the most common motives. Homicides in the nightlife committed with a flick knife or dagger have received much press coverage, but are actually very rare. The article describes injury patterns and the degree of violence.
5. Britta Kyvsgaard:
The number of reported robberies has been increasing in both the Nordic countries and most of the rest of Europe for many years. In Denmark, this increase is most pronounced for street robberies. This article summarises results from the first Danish study of the characteristics of reported street robberies. The study finds that street robberies mirror street violence in that they are most frequently committed on Fridays and Saturdays, particularly late in the evening or after midnight. The study also reveals that street robberies are typically committed by groups of very young males and that the proceeds are in most cases quite limited. This suggests that the primary motives for street robbery might be demonstration of power and/or pursuit of status as opposed to financial gain. The article ends by discussing evidence for a possible rise in street crime and by outlining potential means for its prevention.
6. Pål Lagestad:
Police use of Force.
According to the findings of my field work, the Norwegian police rarely use force in their daily routines. They aim to use verbal skills instead, and only apply force if communication fails. However, some of my findings suggest that the average police officer lacks skills within arrest technique. Due to little practice at the place of service and too few experiences from ordinary police work, these skills seem not to be developed and maintained well enough. Some officers feel that the techniques are complicated, difficult to learn, and that “they do not work” out on the street. This suggests that they may modify their techniques in a way that could be detrimental to persons arrested. One may ask whether it is reasonable that the only group that is allowed, indeed obligated, to use force in our society does not have the skills necessary to solve assignments in the most lenient way possible.