98. årgang, 2011

Maj 2011- 98. årgang Nr. 1

1. Berit Johnsen:
Preventive detention: From special sanction and "punishment" to the law's most severe penalty.

Abstract A new law on preventive detention took effect in Norway January 1st, 2002. Originally preventive detention should serve as both a special criminal sanction and as a ‘punishment’. The essential features of a special criminal sanction are its aim to protect society from those deemed at risk for new serious crimes and the indeterminate length of the sentence. Since the new law took effect the view of preventive detention as a special criminal sanction has disappeared, and it is now considered to be a punishment. Nevertheless, pursuant to the legal provision, the purpose of preventive detention remains individual prevention and incapacitation of those for whom there is a risk of relapse to serious crime. However, the general expectation of proportionality calls for approximately the same length of imprisonment for persons sentenced to preventive detention and those receiving a determinate sentence for a similar crime. Since a sentence to preventive detention can be prolonged, it is now considered the most severe punishment in Norway. This ‘new’ understanding of preventive detention has led to the dilemmas discussed in the current paper. The central issue is the conflict between the need to protect society via incapacitation and the philosophical demands for proportional sentencing.

2. Michael Gøtze:
Employer's Use of Criminal Records i Legal Perspective.

As part of the employment screening process employers increasingly use criminal records and information on job applicants’ prior criminal histories. A culture of criminal record checking is rapidly evolving in Denmark. In both the private and public sector, it is becoming a frequent prerequisite for employment that job applicants submit a stainless criminal record and thus display a flawless past. This development challenges the individual’s right to privacy and raises questions concerning legal principles regulating and restricting employment practices. In Danish law, the main principle is the requirement of relevance and caution. This implies that criminal records can only be required when relevant to the position in question. The legal principles are not concise, however, and the author calls for a legislative initiative in order to clarify the legal boundaries for the use of criminal records in the labour market.

3. Vagn Greve:
Law and Society.

The first part of the article describes and analyses the development of criminal law during the last 20 years. It is argued that criminal law and criminal procedural have changed in many countries since the beginning of the 1990s. A number of characteristic features have been introduced which contradict the principles of the Rechtsstaat as well as the fundamental values of the Welfare State. The new features are rather reminiscent of those find in a Police State. After listing a number of examples, it is argued that this development is due to the fact that we have become less tolerant and less concerned with criminological and other empirical facts when we make decisions about criminal policy. The second part of the article is dedicated to the development of scientific legal research and the fundamental values of the different disciplines of law. It is argued that each discipline has its own values and that these values too often conflict with one another. For example choices and proposals by a public international law lawyer could easily be unacceptable to a criminal law lawyer. It is argued that legal scholars should try to find common values on which all legal disciplines and legal research could be based.

September 2011 - 98. årgang Nr. 2

1. Tor-Geir Myhrer:
Policing Powers of Shopping Center Security Guards: Basis and Limitations.

Abstract Policing in semi-private space such as shopping malls and railway stations etc. is to a large extent carried out by private security companies and not by the police, even though the areas are open to the public. The conduct and discretion of the security officers are regulated by the wish to offer visitors a pleasant environment, in particular conducive to shopping. This creates a risk for discrimination and violation of the fundamental right to liberty of movement for less desirable group of visitors. Except from the provision in The Criminal Procedure Act Section 176 on civil arrest and the right to use necessary force, laid down in the Civil Penal Code Section 48, there are no statutory regulations of the security officer’s policing powers. The general freedom of action provides the security officer a right to observe, and within limits also to follow individuals. The Personal Information Act, however, will to a large extent prohibit the security company recording their observations and actions. It may also be argued that the patrolling of public areas in shopping malls and railway stations etc by security officers is a “private activity whose purpose it is to maintain public peace and order” and as such is in breach of The Police Act Section 26. Actions such as arrests, seizures and turning people away may be based on consent from the person concerned, but it must be required that the consent is informed and free, and if possible also considered. The ability of under aged individuals to give a valid consent may also be a problem. Even though the shopping mall is privately owned and on private ground, the permission to establish it has been based on the idea that it shall be accessible and open to the public. It might therefore be argued that owners’ right to regulate access to the area should be restricted by “an urban right of way” in analogy with the statutory public right of rural way in Norway and Sweden. Only persons showing improper behavior causing disturbance and danger, should be expelled or for a period of time denied access. 

2. Jan Georg Christophersen:
Between Profit and Ethics: The Regulation and Control of Unlawful, Unreported and Unregulated Fishing.

Abstract The aim of this article is to deal with some national and international issues related to illegal, unreported and unregulated fishing (IUU fishing). In most states, fisheries and judicial authorities have shared responsibility for monitoring control and enforcement of fisheries, but have had significant difficulties in achieving their objectives. A particular weakness is found in international and national control cooperation. Inadequate control leads to difficulties in estimating the social losses related to illegal and unwanted activities in the fishing industry. Economically, these activities have a high potential for damage, but the ecological consequences are even greater. A number of fish species are in danger of extinction, and some states risk losing significant portions of their food supply, especially in developing countries. Development in some fisheries is out of control and therefore unsustainable. For this reason it is essential that FAO and IMO work on development of new mandatory international laws governing resource management and its monitoring and enforcement. The current article makes the argument that IUU fishing includes activities that can be defined as white collar crime, organized crime and environmental crime, and thus includes illegal actions that go far beyond illicit fishing. It appears that those taking part in organized IUU networks often sail their vessels under flags of convenience, register their companies in hidden jurisdictions, “white wash” their fish and launder money. The article concludes with some suggestions for reforms that may be useful in regulating and controlling corporations in the fishing industry with the aim of providing a sustainable utilization of marine resources.

November 2011 - 98. årgang Nr. 3

1. Leif Petter Olaussen:
Attitudes towards Punishment in the Nordic Countries: Remarks about Methodological Problems.

Abstract This article discusses methodological issues within the 2009 study of attitudes towards punishment in the Nordic countries. The 2009 study used surveys to compare citizens’ penal attitudes with actual levels of punishment applied in connection with six relatively serious case scenarios. Preliminary reports from 2010 conclude that the majority of citizens indicate a preference for punishments that are less severe than those actually given. In the current article, the author (who participated in the 2009 study) gives two reasons for reservations concerning this conclusion. First, the list of punishments from which respondents were asked to select did not reflect the actual list of punishments available for the case scenarios in question. A post-test of the survey questionnaire among students indicates that the inclusion of answer categories unavailable in the in penal law may have significantly reduced the proportion of respondents that selected unconditional imprisonment (the actual punishment for many of the scenarios.) Second, respondents’ possibilities for selecting a combination of any two of the seven types of sanctions create problems of commensurability when citizens’ attitudes are compared with actual levels of punishment. A comparison of three different procedures tested in the preliminary analysis to handle the commensurability problem shows that the results depend very much on which procedure is used. The 2009 study was partially designed to test the hypothesis that judges who meet persons awaiting sentence will show more leniency than those without contact to defendants. However, the author of the current article argues that the study design, which involves use of filmed scenarios, cannot yield a reliable test of this hypothesis because such films always plant inescapable biases in the minds of those who watch them.

2. Professor, dr.jur. Flemming Balvig, Professor Helgi Gunnlaugsson og professor emeritus Henrik Tham:
Not only Severity: Reply to Leif Petter Olaussen regarding the Nordic Project on the General Sense of Justice

Abstract In his article, Olaussen voices reservations about the methodology used in the Nordic Project. His main concern is that the project provides nonincarcerative response categories that are not actually available within the penal law for the offenses in question, and excludes incarcerative response categories that are not actually available within the penal law for the offenses in question, and excludes incarcerative responses that are available. Olaussen worries that this may artificially reduce reduce the tendency of respondents’ to select imprisonment as the appropriate response to a given offense scenario. In addition, Olaussen criticizes the cinematic direction of the film vignettes, which he argues results in more lenient responses.The current reply notes that the main purpose of the project was not to measure public punitiveness in general, but rather the public’s willingness to employ imprisonment. If the availability of alternative sanctions (like economic compensation) reduces the notion that imprisonment is necessary or appropriate, then this should not be seen as problematic. Using less imprisonment combined with other reactions has also not been widely shown in the literature. Sanctions other than imprisonment contain elements of penal value and justice, as do rehabilitation and restorative justice. The willingness to apply these very different sanctions is therefore difficult to reduce to a uni-dimensional scale. Any such scale is arbitrary, as Olaussen admits. Furthermore, films – as well as real court sessions – are always directed. It might be desirable to vary the participants and contexts in the films, but this is a matter of resources that would increase the costs of the project significantly. An exploratory study showed no evidence of sympathy for the film’s “perpetrators” as implied by Olaussen. No disagreement between Olaussen and us exists as to the main conclusion of the study: We all agree that the public is hesitant to use imprisonment. Likewise, there should be no disagreement on the need to further develop the research questions and methods – something now being done in all Nordic Project countries.  

3. Inger Marie Sunde:
Confiscation of duplicate files on the Internet.

Summary What is the meaning of the proposition that the law applies to the Internet? The current article examines this proposition in relation to criminal law and to the widespread problems of malware and sexual abuse material of children (child pornography). These problems bear the marks of perpetuity and gross worldwide accumulation due to the computer’s capacity for making duplicate files. There is a gap between the aims of the proposition and its current enforcement. If judicial enforcement of criminal law is limited to personal sanctions, e.g., imprisonment or a fine, then digital contraband falls outside the enforceable scope of the law. Given that criminal law already allows the application of sanctions to objects, for instance by confiscation of assets and contraband, one may envisage the application of these confiscation rules to illegal computer files, thus treating them as objects within the meaning of the law. The rules of confiscation thereby provide a legal basis for the filtering of illegal content on the Internet. This means that the criminal law can be enforced with practical effect to digital contraband within the ordinary framework of judicial review and fair trial. The filters required for enforcement can be implemented by national internet service providers. Furthermore, records containing the identity of each confiscated duplicate file can be swiftly shared between law enforcement agencies internationally, and deployed in national filters based on harmonized rules of criminal law. The end result is an enhanced and internationally concerted effort to discontinue gross violations of the privacy of victims displayed on sexually illicit material. This enforcement approach would be less effective against malware, however, due to the extensive time required for investigation and prosecution. In conclusion, application of the rules of confiscation with a view to subsequent international cooperation against digital contraband exploits the benefits of a harmonized criminal law without jeopardizing the fundamental rights of the individual  

4. Helen Ornemark Hansen:
Does equality before the law ensure equal punishment? Advantages and disadvantages of individualized enforcement of sanctions.

Abstract Preliminary studies indicate an increase of individualized enforcement of sanctions in Sweden. The aim of this article is to examine whether this increase in individualization has brought about an unacceptable increase in the severity of criminal sanctions. If legislative issues concerning equality lead to practical issues of unacceptable severity, then both justice and equality may be jeopardized.  

5. Jur.dr., VH Johan Boucht:
The Objectivity Principle in Police Work – an Outline of Problem Formulations.

Abstract The objectivity principle is often seen as representing a fundamental value of the Rechtsstaat that is essential in all forms of state use of power. This article concerns objectivity in the exercise of police powers according to Finnish, Norwegian and Swedish law. In these legal orders, police powers are governed either by public law or criminal procedural rules depending on whether the tasks involve maintaining public order or investigating a crime. In the article, the content of the objectivity principle is explored from both perspectives. A discussion is included on whether the present understanding of the principle is sufficient as well as on possible forms of control of the police in this regard.  

6. Annika Suominen:
Some personal reflections on working with Nordic law

Abstract This brief article, based on the author’s experience writing her PhD, contemplates the Nordic approach to EU criminal law research. The starting point is, as in most comparative studies, the functionality principle. In relation to EU criminal law, comparison is relevant both vertically (EU criminal law implementation in national law) and horizontally (how the Nordic Member States have chosen to implement EU criminal law instruments). The article highlights some of the difficulties in applying a comparative approach, but focuses on the advantages such an approach entails.