Posted Workers and Free Movement of Services in the European Union – the Impact on National Employment and Immigration Law

This thesis examines posting of workers within the free movement of services in the European Union. The emphasis is on the case law of the European Court of Justice and in the role it has played in the liberalisation of the service sector in respect of posting of workers. The case law is examined from two different viewpoints: firstly, that of employment law and secondly, immigration law. The aim is to find out how active a role the Court has taken with regard these two fields of law and what are the implications of the Court’s judgments for the regulation on a national level. The first part of the thesis provides a general review of the Community law principles governing the freedom to provide services in the EU. The second part presents the Posted Workers’ Directive and the case law of the European Court of Justice before and after the enactment of the Directive from the viewpoint of employment law. Special attention is paid to a recent judgment in which the Court has taken a restrictive position with regard to a trade union’s right to take collective action against a service provider established in another Member State. The third part of the thesis concentrates, firstly, on the legal status of non-EU nationals lawfully resident in the EU. Secondly, it looks into the question of how the Court’s case law has affected the possibilities to use non-EU nationals as posted workers within the freedom to provide services. The final chapter includes a critical analysis of the Court’s case law on posted workers. The judgments of the European Court of Justice are the principal source of law for this thesis. In the primary legislation the focus is on Articles 49 EC and 50 EC that lay down the rules concerning the free movement of services. Within the secondary legislation, the present work principally concentrates on the Posted Workers’ Directive. It also examines proposals of the European Commission and directives that have been adopted in the field of immigration. The conclusions of the case study are twofold: while in the field of employment law, the European Court of Justice has based its judgments on a very literal interpretation of the Posted Workers’ Directive, in the field of immigration its conclusions have been much more innovative. In both fields of regulation the Court’s judgments have far-reaching implications for the rules concerning posting of workers leaving very little discretion for the Member States’ authorities.

An Axiom of Military Law : Applicability of National Criminal Law to Military Personnel and Associated Civilians Abroad

States regularly deploy elements of their armed forces abroad. When that happens, the military personnel concerned largely remain governed by the penal law of the State that they serve. This extraterritorial extension of national criminal law, which has been treated as axiomatic in domestic law and ignored by international law scholarship, is the subject of this dissertation. The first part of the study considers the ambit of national criminal law without any special regard to the armed forces. It explores the historical development of the currently prevailing system of territorial law and looks at the ambit that national legal systems claim today. Turning then to international law, the study debunks the oddly persistent belief that States enjoy a freedom to extend their laws to extraterritorial conduct as they please, and that they are in this respect constrained only by some specific prohibitions in international law. Six arguments historical, empirical, ideological, functional, doctrinal and systemic are advanced to support a contrary view: that States are prohibited from extending the reach of their legal systems abroad, unless they can rely on a permissive principle of international law for doing so. The second part of the study deals specifically with State jurisdiction in a military context, that is to say, as applied to military personnel in the strict sense (service members) and various civilians serving with or accompanying the forces (associated civilians). While the status of armed forces on foreign soil has transformed from one encapsulated in the customary concept of extraterritoriality to a modern regulation of immunities granted by treaties, elements of armed forces located abroad usually do enjoy some degree of insulation from the legal system of the host State. As a corollary, they should generally remain covered by the law of their own State. The extent of this extraterritorial extension of national law is revealed in a comparative review of national legislation, paying particular attention to recent legal reforms in the United States and the United Kingdom two states that have sought to extend the scope of their national law to cover the conduct of military contractor personnel. The principal argument of the dissertation is that applying national criminal law to service members and associated civilians abroad is distinct from other extraterritorial claims of jurisdiction (in particular, the nationality principle or the protective principle of jurisdiction). The service jurisdiction over the armed forces has a distinct aim: ensuring the coherence and indivisibility of the forces and maintaining discipline. Furthermore, the exercise of service jurisdiction seeks to reduce the chances of the State itself becoming internationally liable for the conduct of its service members and associated civilians. Critically, the legal system of the troop-deploying State, by extending its reach abroad, seeks to avoid accountability gaps that might result from immunities from host State law.

"Pitää kuitenkin lähentyä sitä vangin roolia, vaikka ite ois toista mieltä" : Diskurssianalyyttinen tutkimus toiseuden rakentumisesta vankilaopetuksessa

The focus of this discourse analytical study was to review the meanings which prison education and its participants are given in the formal educational policy and to find out whether these meanings are agreed by the prison students. The intrestes of this thesis were to examine what kind of social and individual promises are related to the prison education and what kind of subject positions are possible to the prison students. The thesis was also interested in the meanings of education in different contexts. The aim of this study was to examine prison education especially for women. This thesis was based on Michel Foucault s ideas of power and the view of this study was directly critical. The prison education was seen as normalizing governance which tends to prepare its subjects to the normal. In this process of differentiating the normal and the abnormal the subjects of prison education are reconstructed as the others . The three research questions of this thesis were: how and what kind of prison education is reconstructed firstly in the strategy of prison education and secondly in the interviews. Thirdly it was questioned how and what kind of meanings gender receive in the discourse of prison education. The main data was consisted by the Finnish Criminal Sanctions Agency s document The Strategy of the Prison education for years 2008 2012 and the three interviews of women who participated to prison education. The interviews were made for this thesis in Autumn 2010. Two other Finnish Criminal Sanctions Agency s documents Prisoners in education (2007) and Visible women (2008) - the report of the working group on female prisoners were also used as subtext materials. The methods of critical and realistic discourse analysis and rhetorical analysis were applied in the analysis. The results of the thesis support the outlook of prison education as a form of normalizing governance which reconstruct the others position for the prison students. Prison education was seen supportive for personal life control and for integrating to the society. The participants of prison education repeated the official discourses in their accounts which is a signal of internalized governance. The interviewees also used different types of anti-discourses when forming implications of prison education.

Administrativa sanktioner – Utmaningar och möjligheter

I seminariet samlades nordiska experter inom fältet för att diskutera om de aktuella frågorna gällande administrativa sanktioner.

Política criminal no Brasil neoliberal

Esta dissertação parte da compreensão dos sistemas punitivos em meio às estruturas sociais, demonstrando que o uso da coerção pública é um dos pilares fundamentais dos Estados modernos. Sustenta a necessidade de se desvendar os discursos ideológicos que legitimam o poder de criminalização, a fim de politizar o contexto das punições e alcançar a sua função latente. Concentra-se nas características específicas do Estado brasileiro instalado a partir da década de 1990, seguindo a trilha do Leviatã dos EUA neoliberal instaurado desde a década de 1980. Constata a correlação entre os sistemas punitivos brasileiro e norte-americano, com seus extensos campos de controle e semelhantes pensamentos criminológicos. Por fim, encontra a real funcionalidade das penas no Neoliberalismo, conformando um método de promover e manter as políticas econômicas e sociais típicas de sua conjuntura, manejando a insegurança social decorrente do desemprego estrutural, precarização do trabalho, aprofundamento da miséria e desigualdade.

Exile or emigrant? Female ex-prisoners who left Ireland 1850-1921

In the popular mind, the concept of 'emigration' usually refers to people voluntarily leaving one country to go to another in search of a new and better life. It presupposes some degree of choice, although it is accepted that for many emigrants, such as those who left Ireland during the nineteenth century, there were few incentives to stay at home. Current scholarship on voluntary and forced movements of people demonstrates that the distinction between the categories of 'voluntary emigrant' and 'forced exile' is often blurred. Orm Overland's study of refugee communities in the United States highlights the fact that, although the differences between the 'emigrant' and the 'exile' may be clear in extreme cases, this is not always true, as there may be 'pressing political or economic reasons behind a decision to emigrate'. Migration scholars Jan Lucassen and Leo Lucassen also question the adequacy of conceptual models of migration based on what Lindsay Proudfoot and Dianne Hall refer to as the 'straightforward binarism between free and unfree emigration'. The questions raised by these scholars are very relevant to the study of Irish people who left their country during the second half of the nineteenth century immediately after they had been discharged from prison or from Dundrum. Their stories are discussed here against a background of substantial scholarship on emigration from Ireland and on the criminal justice system within Ireland. According to David Fitzpatrick, at least eight million men, women and children emigrated from Ireland between 1801 and 1921. This large-scale movement of people was generally characterised by the voluntary emigration of individuals who funded their own passages. However, it also included schemes of assisted emigration, funded variously by governments, landlords, the poor law authorities, earlier emigrants, and philanthropists. In addition, it included people who were transported from Ireland by means of the criminal justice system a practice that had originated in the seventeenth century. What is less well known is that after the end of transportation from Ireland to eastern Australia in 1853, to Bermuda in 1863 and to Western Australia in 1868, Irish convicts continued to be channelled towards emigration by being offered early release if they agreed to leave Ireland. These people, and especially the women among them, are the subject of this article.

Reconsidering Respect: Its Role in the British Prison Service

This article examines the meaning of respect in the interpersonal relationships within Her Majesty’s Prison Service. It is argued that respect-as-esteem and respect-asconsideration are often confused and unequally emphasised in modern society. This confusion is especially evident within the prison context where, due to the prison service’s ‘decency agenda’, the respectful treatment of inmates has become a topical issue. What does respect mean in prison? Why is it important? How can respectful relationships be established between staff and inmates? This article discusses these questions and proposes that there are different forms of respect possible between people. It is argued that there needs to be a recognition of the nuances of meaning when we use the word respect and that ‘respect-as-consideration’ may be the form of respect most consistently achievable, at the present time, within interpersonal relationships in English and Welsh prisons.

From Counter-terrorism to Criminal Justice: Transformation or Business as Usual?

The article explores the extent to which criminal justice in Northern Ireland has been reconstructed over the past fifteen years. The focus is on the framework provided in the Good Friday Agreement (1998) and the range of transition processes that followed. Post-Agreement Inquiries are reviewed and the findings demonstrate the institutional rigidities facing the transformation of criminal justice. While the ideologies and practices of counter-terrorism no longer dominate the business of criminal justice, the extent of change in terms of social representativeness, scale and expenditure is variable, with the prison service proving the least changed.

Ageing Behind Bars, with particular reference to older women in prison

Since the 1980s, prison officials, policy makers and researchers have witnessed an astonishing phenomenon in the USA and the UK: increasing numbers of older adults are entering the criminal justice system and in particular prison, finding themselves locked behind steel doors and razor wire fences. So much so that researchers and policy makers are beginning to turn their attention to policy issues such as economic costs, housing, end-of-life issues and institutional management of older offenders. This paper discusses what is currently known about older persons in prison, with particular reference to women prisoners, and gives recommendations as to how to respond to these people’s needs.

Offenders' Risk-Taking Attitude Inside and Outside the Prison Walls

It has long been assumed that risk taking is closely associated with criminal behavior. One reason for placing criminals behind bars-aside from punishment and protecting the public-is to prevent them from engaging in further risky criminal activities. Limited attention has been paid to whether being inside or outside prison affects offenders' risk-taking behaviors and attitudes. We compared risk-taking behaviors and attitudes in five risk domains (ethical, financial, health/safety, recreational, social) among 75 incarcerated offenders (i.e., offenders who are currently in prison) and 45 ex-offenders (i.e., offenders who have just been released from prison). Ex-offenders reported higher likelihood of engaging in risky behavior, driven largely by a willingness to take more risks in the recreational and ethical domains. Benefits attributed to risk taking as well as risk perception did not differ between incarcerated and ex-offenders, indicating that the opportunity to take risks might underlie behavioral risk intentions. Our results also indicate that risk-taking activities are better predicted by the expected benefits rather than by risk perception, aside from the health/safety domain. These results highlight the importance of studying the person and the environment and examining risk taking in a number of content domains.

Rethinking Prison Disciplinary Processes: A Potential Future for Restorative Justice

The movement for restorative justice (RJ) has struggled with marginalization on the soft end of the criminal justice system where the threat of net widening and iatrogenesis looms large. To realize the full potential of RJ as an alternative philosophy of justice, restorative practices need to expand beyond the world of adolescent and small-level offences into the deeper end of the justice system. Disciplinary hearings inside of adult prisons may be a strategic space to advance this expansion. This paper presents findings from a study of prison discipline in four UK prisons. The findings strongly suggest that in their current form, such disciplinary proceedings are viewed by prisoners as lacking in legitimacy. Although modelled after the adversarial system of the criminal court, the adjudications were instead universally derided as ‘kangaroo courts’, lacking in the basic elements of procedural justice. Based on these findings, we argue that restorative justice interventions may offer a viable redress to these problems of legitimacy which, if successful, would have ramifications that extend well beyond the prison walls.