During the COVID-19 pandemic, Estonia was one of the states that decided to inform the Secretary General of the Council of Europe of the health-related emergency situation in Estonia and noted, with reference to Article 15 of the European Convention on Human Rights, that some emergency measures may involve a derogation from certain obligations under the Convention. The Government’s considerations proceeded from the unprecedented scale of the sanitary crisis and the scope of extraordinary measures taken to tackle it. Importance was attached to the fact that the Court has never before assessed health-related exceptions allowed in some of the articles of the Convention in a situation which affects the whole nation – not to mention the articles of the Convention which do not set out any exceptions at all. Article 15 of the Convention, on the other hand, is designed to be applicable in public emergency situations threatening the life of the nation. |
Search result: 5323 articles
Article |
|
Journal | East European Yearbook on Human Rights, Issue 1 2020 |
Keywords | human rights, emergency situation, COVID-19 and sanitary crisis, Article 15 of the European Convention on Human Rights, European Court of Human Rights (the ECtHR), Estonia |
Authors | Maris Kuurberg |
AbstractAuthor's information |
Article |
Digital Equals PublicAssembly Meetings Under a Lockdown Regime |
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | COVID-19 regulation, temporary legislation, sunset clauses, digitalization, digital democracy, local democracy, experimental legislation |
Authors | Lianne van Kalken and Evert Stamhuis |
AbstractAuthor's information |
In this article we examine the Dutch emergency legislation for local democracy. In response to the COVID-19 pandemic in the Netherlands, the Temporary Act for digital meetings for local/regional government tiers was enacted. The legislature introduced a system of digital debate and decision-making for municipal and provincial councils, the democratically elected assemblies at the local and regional levels. At the same time the Ministry of the Interior and Kingdom Relations set up an evaluation committee to monitor and evaluate the working of the local and provincial governments with this temporary legislation. |
Editorial |
Are Emergency Measures in Response to COVID-19 a Threat to Democracy? |
Journal | European Journal of Law Reform, Issue 4 2020 |
Authors | Franklin De Vrieze and Constantin Stefanou |
Author's information |
Article |
|
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | coronavirus, emergency law, emergency powers, autocratization, democratic deconsolidation, state of emergency, rule of law, transparency, accountability, legislative scrutiny |
Authors | Joelle Grogan |
AbstractAuthor's information |
The measures taken in response to the coronavirus pandemic have been among the most restrictive in contemporary history, and have raised concerns from the perspective of democracy, human rights, and the rule of law. Building on a study of the legal measures taken in response to pandemic in 74 countries, this article considers the central question of the use of power during an emergency: is it better or worse for democracy and the rule of law to declare an emergency or, instead, to rely on ordinary powers and legislative frameworks? The article then considers whether the use of powers (ordinary or emergency) in response to the pandemic emergency has ultimately been a cause, or catalyst of, further democratic deconsolidation. It concludes on a note of optimism: an emerging best practice of governmental response reliant on public trust bolstered by rationalized and transparent decision-making and the capacity to adapt, change and reform measures and policies. |
Article |
Emergency Measures in Response to the Coronavirus Crisis and Parliamentary Oversight in the EU Member States |
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | states of emergency, parliamentary oversight, health crisis, Covid-19, European Union Member States |
Authors | Maria Diaz Crego and Silvia Kotanidis |
AbstractAuthor's information |
The Covid-19 pandemic has become a true stress test for the legal systems of the worst hit countries. Faced with a health crisis situation, many national governments have become the protagonists in the adoption of difficult measures severely restricting their citizens fundamental rights to the detriment of the powers usually entrusted to the national parliaments. This article examines the normative response of the 27 European Union Member States during the “first wave” of the Covid-19 pandemic, a period that runs from the declaration of a pandemic (March 2020) to mid-June 2020. The intention of the authors was to describe the legal and constitutional mechanisms activated in order to contain the pandemic, focusing on the role of national parliaments in the management of the crisis. This article explores also the degree to which national parliaments have been involved and could exercise parliamentary oversight over the normative measures used by the executive to contain the pandemic in the EU-27. |
Article |
Governments as Covid-19 Lawmakers in France, Italy and SpainContinuity or Discontinuity |
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | Covid-19, emergency legislation, executive lawmaking, parliaments, decree-laws and ordinances |
Authors | Elena Griglio |
AbstractAuthor's information |
Executive dominance in Covid-19 lawmaking has been a major trend worldwide. Governments have leveraged emergency prerogatives to boost their legislative powers, often sidelining the role of parliaments. The impact of executive lawmaking on fundamental liberties has been unprecedented. However, government’s capacity to exercise full legislative powers is not absolutely new to many European countries. |
Article |
Legislative Scrutiny in Times of EmergencyA Case Study of Australian Parliaments |
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | legislative scrutiny, sunset clauses, emergency laws, virtual parliament, parliamentary committee, trust |
Authors | Hon Kate Doust MLC and Mr Sam Hastings |
AbstractAuthor's information |
Citizens’ trust in Australian governments and parliaments has fallen in recent years, yet trust is critical for governments to do their job effectively and attack challenging issues. The coronavirus pandemic provides an opportunity for governments and parliaments to bridge the gap between citizens’ expectations and parliamentary and government performance and therefore rebuild trust. In doing so, parliaments need to balance their desire for speedy action with proportionate measures and mechanisms for review. |
Article |
Increased Uptake of Surveillance Technologies During COVID-19Implications for Democracies in the Global South |
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | surveillance technology, platform economy, COVID-19, democracy, global south, belt and road initiative |
Authors | Alex Read |
AbstractAuthor's information |
Social change and introduction of new technologies have historically followed crises such as pandemics, and COVID-19 has seen increasing public tracking through the use of digital surveillance technology. While surveillance technology is a key tool for enhancing virus preparedness and reducing societal risks, the speed of uptake is likely to raise ethical questions where citizens are monitored and personal data is collected. COVID-19 has occurred during a period of democratic decline, and the predominant surveillance-based business model of the ‘platform economy’, together with the development and export of artificial intelligence (AI)-powered surveillance tools, carries particular risks for democratic development in the countries of the Global South. Increased use of surveillance technology has implications for human rights and can undermine the individual privacy required for democracies to flourish. Responses to these threats must come from new regulatory regimes and innovations within democracies and a renewed international approach to the threats across democracies of the Global North and South. |
Article |
Covid-19 Emergency Prison Release Policy: A Public Health Imperative and a Rule of Law Challenge |
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | emergency prison release, rule of law, democracy, reducing prison overcrowding, prisoner rights, appropriate sanctions for white collar criminals, alternatives to custodial sentences |
Authors | Victoria Jennett |
AbstractAuthor's information |
Many countries are implementing emergency releases of people from prison to mitigate the spread of Covid-19. Such measures, while critical to public health, can enable the unjust release from prison of politically connected and wealthy individuals convicted of corruption offences, thereby undermining the rule of law and democratic values by weakening public trust in the justice system. To reduce overcrowding of prisons while ensuring that white-collar criminals are appropriately sanctioned, one strategy is to impose alternatives to custodial sentences that ensure appropriate sanctioning of convicted criminals while de-densifying prisons – an approach that could be considered for non-emergency times as well. |
Article |
Does the Fight Against the Pandemic Risk Centralizing Power in Pakistan? |
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | PTI government, 18th amendment, 1973 Constitution, lockdown, economic impact |
Authors | David A. Thirlby |
AbstractAuthor's information |
When the pandemic struck Pakistan, there was a high-profile divergence between how the federal government and the provincial government of Sindh responded. This points to a tension between the need for a national approach to tackle the pandemic and the prerogative of the provinces to deal with health issues under its devolved powers. These powers were the result of the 18th amendment, which restored a parliamentary federal democracy. Power has also been decentralized from executive presidents to parliamentary forms of government. However, parliamentary systems centralize power within the executive: a trend which the pandemic has reinforced. The article will explore the various interplays although it is the economic landscape which will prove most challenging. Although the emergence of a national centralized approach to combat the pandemic points to a weakening of the devolution process and therefore the reasoning behind the 18th amendment, the situation is more complex which this article seeks to explore. |
Article |
Patience, LadiesGender-Sensitive Parliamentary Responses in a Time of Crisis |
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | gender sensitivity, parliament, responsiveness, COVID-19, democracy, women |
Authors | Sonia Palmieri and Sarah Childs |
AbstractAuthor's information |
In early 2020, in the face of the Covid-19 pandemic, numerous parliaments played their rightful democratic role by following the advice of health and economic experts and swiftly passing emergency legislation and relief packages. This was, in many countries, an attempt to reach an equilibrium between saving lives and saving economic livelihoods, on the understanding that both were in serious jeopardy. In the face of public health measures many parliaments also found themselves having to reform their own rules, procedures and practices. In both cases – policy interventions and institutional redesign – it appears that parliamentary responses to the Covid-19 situation were less commonly based on the advice of gender experts or informed by considerations of gender inequalities. Few, if any, emergency packages were designed following a systematic consideration of existing, deeply entrenched gender inequalities, despite continuous public analysis and commentary about the disproportionate gender impacts of the pandemic and the resulting lockdowns; and no parliaments instituted (temporary) rule changes that prioritized the voices of women parliamentarians or constituents. In this article, which draws on our work drafting the UN Women Covid-19 Parliamentary Primer & Checklist, we revisit the democratic case for gender-sensitive parliaments, highlighting their particular relevance to the 2020 pandemic. We introduce our model for gender-sensitive crisis responses across four key stages of the parliamentary process presented in the Primer – representation, deliberation, legislation and scrutiny – and offer an initial assessment of what transpired in the world’s parliaments based on an IPU survey. We suggest that if parliaments are to be gender-sensitive institutions in times of crisis, they must not only change how they do politics but also develop and sustain a robust political culture that values gender equality and an ethic of caring that supports new rules, procedures and practices that better redress institutional gender deficiencies. |
Article |
|
Journal | Erasmus Law Review, Issue 4 2020 |
Keywords | wrongful conviction, criminal justice, Criminal Cases Review Commission, Court of Appeal, discretion. |
Authors | Carolyn Hoyle |
AbstractAuthor's information |
Since 1997, the Criminal Cases Review Commission of England, Wales and Northern Ireland has served as a state-funded post-conviction body to consider claims of wrongful conviction for those who have exhausted their rights to appeal. A meticulous organisation that has over its lifetime referred over 700 cases back to the Court of Appeal, resulting in over 60% of those applicants having their convictions quashed, it is nonetheless restricted in its response to cases by its own legislation. This shapes its decision-making in reviewing cases, causing it to be somewhat deferential to the original jury, to the principle of finality and, most importantly, to the Court of Appeal, the only institution that can overturn a wrongful conviction. In mandating such deference, the legislation causes the Commission to have one eye on the Court’s evolving jurisprudence but leaves room for institutional and individual discretion, evidenced in some variability in responses across the Commission. While considerable variability would be difficult to defend, some inconsistency raises the prospects for a shift towards a less deferential referral culture. This article draws on original research by the author to consider the impact of institutional deference on the work of the Criminal Cases Review Commission and argues for a slightly bolder approach in its work |
Article |
|
Journal | Erasmus Law Review, Issue 4 2020 |
Keywords | final criminal conviction, revision procedure, grounds for revision, Court of Cassation, Commission for revision in criminal matters |
Authors | Katrien Verhesschen and Cyrille Fijnaut |
AbstractAuthor's information |
The Belgian Code of criminal procedure provides the possibility to revise final criminal convictions. This procedure had remained more or less untouched for 124 years, but was finally reformed by the Act of 2018, after criticism was voiced in legal doctrine concerning its narrow scope and possible appearances of partiality and prejudice. The Act of 2018 therefore broadened the third ground for revision, the so-called novum, and defined it as an element that was unknown to the judge during the initial proceedings and impossible for the convicted person to demonstrate at that time and that, alone or combined with evidence that was gathered earlier, seems incompatible with the conviction, thus creating a strong suspicion that, if it had been known, it would have led to a more favourable outcome. Thereby, this ground for revision is no longer limited to factual circumstances, but also includes changed appreciations by experts. To counter appearances of partiality and prejudice, the Act of 2018 created the Commission for revision in criminal matters, a multidisciplinary body that has to give non-binding advice to the Court of Cassation on the presence of a novum. However, the legislature also introduced new hurdles on the path to revision, such as the requirement for the applicant to add pieces that demonstrate the ground for revision in order for his or her request to be admissible. For that reason, the application in practice will have to demonstrate whether the Act of 2018 made the revision procedure more accessible in reality. |
Article |
|
Journal | Erasmus Law Review, Issue 4 2020 |
Keywords | wrongful conviction, revision, extraordinary appeal, rescission of final judgment, res judicata |
Authors | Luca Lupária Donati and Marco Pittiruti |
AbstractAuthor's information |
The Italian Constitution expressly contemplates the possibility of a wrongful conviction, by stating that the law shall determine the conditions and forms regulating damages in case of judicial error. Therefore, it should come as no surprise that many provisions of the Italian Code of Criminal Procedure (CCP) deal with the topic. The aim of this article is to provide an overview of the post-conviction remedies in the Italian legal system by considering the current provisions of the CCP, on the one hand, and by exploring their practical implementation, on the other. |
Article |
|
Journal | Erasmus Law Review, Issue 4 2020 |
Keywords | wrongful convictions, extraordinary legal remedy, exoneration, exoneration in Sweden |
Authors | Dennis Martinsson |
AbstractAuthor's information |
This article reviews exoneration in Sweden, with a focus on the procedure of applying for exoneration. First, it highlights some core features of Swedish criminal procedural law, necessary to understand exoneration in the Swedish context. Secondly, it outlines the possibilities in Swedish law to apply for exoneration, both in favour of a convicted person and to the disadvantage of a previously acquitted defendant. Thirdly, it identifies some challenges with the current Swedish model of administering applications for exoneration. Fourthly, it argues that the current system should be reformed by introducing into Swedish law a review committee that administers applications for exoneration. |
Article |
|
Journal | Erasmus Law Review, Issue 4 2020 |
Keywords | extraordinary review, remedies, fair trial, wrongful convictions, criminal justice, innocence, procedural safeguards, justice |
Authors | Lorena Bachmaier and Antonio Martínez Santos |
AbstractAuthor's information |
According to the traditional view, the ultimate aim of the extraordinary review (recurso de revisión) provided in the Spanish justice system was to deal with wrongful criminal convictions and correct those serious miscarriages of justice which became apparent only after the judgment had become final. However, the 2015 reform called this traditional view into question by formally including two additional grounds for review that are not necessarily related to the correcting miscarriages or blatant mistakes in the assessment of the facts made by the sentencing court. This paper aims to give an overview of the extraordinary review in Spain. To that end it will first address the legal framework and its practical implementation, as well as present pitfalls and best practices. Finally, future trends and challenges will be identified in order to improve the protection of defendants who have suffered a wrongful conviction. |
Article |
|
Journal | International Journal of Online Dispute Resolution, Issue 2 2020 |
Keywords | European legislation, Alternative Dispute Resolution, civil procedure |
Authors | Rebecca Berto |
AbstractAuthor's information |
Alternative Dispute Resolution (=ADR) is a generic reference to consensus-based processes that provide an alternative to litigation and to binding arbitration procedures. Analysing European provisions, the European legislator pushes Alternative Dispute Resolution methods as a means of resolving not only consumer-to-business disputes but also business-to-business. This may determine over the long term a sort of ‘dejurisdictionalization’ process, moving disputes from tribunals to Alternative Dispute Resolution methods. Procedural rights, however, such as raising interpretative questions to the European Court of Justice, may only be exercised before a court. |
Article |
Towards Online Dispute Resolution-Led Justice in China |
Journal | International Journal of Online Dispute Resolution, Issue 2 2020 |
Keywords | Online Dispute Resolution, smart court, internet court, access to justice, China |
Authors | Carrie Shu Shang and Wenli Guo |
AbstractAuthor's information |
The use of online dispute resolution (ODR) in courts is a growing topic of interest. By focusing on the recent development of ODR-connected smart courts in China, this article explores ODR’s potential impact on Chinese legal systems from three aspects: role of courts and the legal profession, due process rights, and information safety. By focusing on changing dispute resolution theories – from emphasizing on conflict resolution to dispute prevention – the article argues that ODR-led court reforms rose to the centre because the reform caters to specific purposes of the recent series of reforms conducted under the auspices of the Rule of Law campaign, by prioritizing efficiency goals and attempting to enhance individualist justice experiences. In this article, we define the meaning of ODR in China and describe and categorize ODR technologies that are currently in use in China. Based on these general findings and promising technological options of ODR, we also recommend ways to better implement ODR in Chinese courts to take full advantage of technological advancements. |
Article |
Paperless ArbitrationThe New Trend? |
Journal | International Journal of Online Dispute Resolution, Issue 2 2020 |
Keywords | paperless arbitration, arbitral practice and procedure, cybersecurity, new technology |
Authors | William Brillat-Capello, Laura Canet, Gillian Carmichael Lemaire e.a. |
AbstractAuthor's information |
A webinar organized by Laura Canet and William Brillat-Capello, with Gillian Carmichael Lemaire, Yulia Mullina, Sebastián Partida, Sarah Tulip, Sergey Alekhin as speakers |
Article |
Smart Contracts and Smart Dispute ResolutionJust Hype or a Real Game Changer? |
Journal | International Journal of Online Dispute Resolution, Issue 2 2020 |
Keywords | smart contracts, blockchain, arbitration, dispute resolution, contract law, distributed ledger technology, internet of things, cyber law, technology, innovation |
Authors | Mangal Chauhan |
AbstractAuthor's information |
This article explains the functioning of smart contracts and technology underlying blockchain. This contribution aims to compare smart contracts with traditional contracts and discuss their situation under the present contract law. It further discusses possible issues that may arise out of the application of smart contracts, for instance, coding errors and programming defects. It studies the possible application of smart contracts to specific fields, such as e-commerce and consumer transactions and possible disputes arising out of this application. It divides the smart contracts into categories based on their form and discusses legal issues in regard to their application. |