21.5. A just decision

 Public examination of a doctoral dissertation in the field of science of law 

   Doctoral candidate: OTT, M.Litt., MC L, Zacharias Sundström 

Date and venue: 21.5.2011 at 12 noon, AU100, Aurora, Joensuu campus 

The dissertation is about judges and how judges think. It is a book dealing with elements influencing judicial thought. It is a book about the use and limits of judicial discretion. It is a book about criminal proceedings chiefly in relation to composite crimes (seurausrikokset) based on an admittedly fairly narrow case base but one deemed sufficient for purposes of reflecting the workings of the “judicial mind” or at least how, in the interest of certainty and predictability of the law, it is supposed to work. It touches upon the significance of the criminal investigation and the entirety of the criminal process. It ventures to consider our lay-judge system (and what is wrong with it). 

It is also a book about how internationally sourced legal rules impact on judicial thinking. In this regard the focus of the case illustrations is in terms of the European Human Rights Convention on fundamental rights and in terms of European Union law on its integration objectives as realized in a specific field (taxation of persons). It is a study covering judicial thought and discretion, in what I see as a unitary, cohesive and interactive field, comprising national, union and humans rights law. 

The study in spite of the diverse fields is one whole in its focus in judicial discretion and how it manifests itself. 

The starting point is in trying to determine if indeed there are discernable limits to judicial discretion. If there are such, what are they. How “free” is the judge to employ discretion when coming to a decision in the various fields herein exemplified. 

In summary, the following elements involving judicial discretionary thought will if given appropriate consideration (in the written opinion) contribute to the making of a “just” opinion (which is also generally perceived as “just”). To do so (without any particular order of importance): 

1.     it is necessary to deal with the limits of judicial discretion both in terms of “free”discretion and “rule specific discretion”, inter alia by way ofstructured “juristic” thought,

2.     it is necessary to observe the presumption of innocencein the criminal investigation phase and conversely consciously disregard the stigma of guilt almost automatic in criminal procedures,

3.     sufficient attention must be paid tothe issue of causality in composite crimes (using a causal chain type of reasoning),

4.     terminologyrelating to concepts of guiltshould not be given an independent significance,

5.     judicialdecision making must be based on the totality of facts and events as presented by counsel and prosecution,

6.     the use of general or standard expressions without clear reference to facts and events in the reasons of the judgement must be avoided,

7.     the principle of iura novit curia should be observed in the application of human rights and Union law provisions in national courts , and 

finally on a general level 

8.     the independence and integrity of the court should be kept in mind at all times (as the doctrine of separation of powers demands) to avoid judgements based on special interest. 

If all, or at least most, of these elements are observed (in addition to issues such as correct rule-application and proper observance of recognized codes of statutory interpretation) a “just” decision is likely to occur (in conformance, one might add, with the requirements of the European human rights convention). The degree to which the court, when using its powers of discretion, observes the applicable restraints (relating to the procedural code article 17:2 discretion or to rule specific discretion), both in national and international practice will determine the degree of objectivity and justice achieved by the judgement. 

In a concluding section a critical remark is added,on the current use by Finnish legal writers (or at least a majority of them), on the use ofterminology categorising degrees of guilt (such as guilt based on deliberate intention – tekotahallisuus, guilt based on a more than likely occurrence – varsin todennäköinen, guilt based on circumstantial evidence – olosuhdetahallisuus, all of which by and in themselves are taken to denote a characterisationof a punishable offence in, I venture to say, the best traditions of German “Begriffsjurisprudenz” (widely rejected in the general theory of law in the Nordic countries already in the 1920’s). 

It is contended that when there is sufficient basis in facts and events to hold a person criminally liable for a certain punishable act, those facts and events should be the sole focus of the judicial deliberations by which guilt is arrived at.If the abovementioned “technical” terminology merely serves to confuscate the issue of guilt (much in line with the use of “general” and “standard” expressions I have drawn attention to earlier in this study), possibly in order to lower the threshold for conviction (primarily perhaps in cases suggestive of such an approach, such as in cases of organised crime or complicated financial fraud), such use of terminology has no place or function within our present system of criminal justice. There is no way in which a predictable, consistent and just case law could be based on such notions. The function of criminal justice is not to achieve as many convictions as possible, but to make certain that no person innocent of crime be convicted, particularly not for reasons of technical construction of concepts or use of standard expressions or generalisations without foundation in facts and events, properly led in evidence. 

The doctoral dissertation of Zacharias Sundström entitled Oikeudenmukainen tuomio – Tuomarin harkinta rikosasiassa – Kansalliset ja kansainväliset vaikutteet tuomarin harkinnassa will be examined at the Faculty of Social Sciences and Business Studies. The opponent in the public examination is Professor Per Ole Träskman from the University of Lund and University of Helsinki and the custos is Professor Matti Tolvanen of the University of Eastern Finland. 

Photo available for download at http://www.uef.fi/vaitoskuvat

Contact: Zacharias Sundström, zacharias.sundstrom@nordiclaw.fi, tel. + 358 9 682 9340

Publishing year: 2011

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