Long before the coming of the Bill of Rights in written Constitutions, the common law has had the greatest regard for the personal liberty of the individual. In order to safeguard that liberty, the remedy of habeas corpus was always available to persons deprived of their liberty unlawfully. This ancient writ has been incorporated into the modern Constitution as a fundamental right and enforceable as other rights protected by virtue of their entrenchment in those Constitutions. This article aims to bring together the various understanding of habeas corpus at common law and the principles governing the writ in common law jurisdictions. The discussion is approached through a twelve-point construct thus providing a brief conspectus of the subject matter, such that one could have a better understanding of the subject as applied in most common law jurisdictions. |
Search result: 13 articles
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Journal | Erasmus Law Review, Issue 2 2021 |
Keywords | Habeas corpus, common law, detainee, Consitution, liberty |
Authors | Chuks Okpaluba and Anthony Nwafor |
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Article |
Control in International Law |
Journal | African Journal of International Criminal Justice, Issue 1 2019 |
Keywords | Effective / overall control, international human rights law, international criminal law, responsibility of states, statehood |
Authors | Joseph Rikhof and Silviana Cocan |
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The concept of control has permeated various disciplines of public international law, most notable international criminal law, international humanitarian law, international human rights law and the law of statehood as well as the law of responsibility for states and international organizations. Often this notion of control has been used to extend the regular parameters in these disciplines to capture more extraordinary situations and apply the same rules originally developed within areas of law, such as the application of the laws of war to occupation, the rules of human rights treaties to extraterritorial situations or state responsibility to non-state actors. This article will examine this notion of control in all its facets in international law while also addressing some of its controversies and disagreements in the jurisprudence of international institutions, which have utilized this concept. The article will then provide an overview of its uses in international law as well as its overlap from one discipline to another with a view of providing some overarching observations and conclusions. |
Notes from the field |
Dutch developments: restorative justice in legislation and in practice |
Journal | The International Journal of Restorative Justice, Issue 1 2019 |
Authors | Annemieke Wolthuis, Jacques Claessen, Gert Jan Slump e.a. |
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Article |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2018 |
Keywords | humanity, international criminal justice, opening statements, trial discourse, perpetrators |
Authors | Sofia Stolk |
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This article discusses empirical examples from international trial transcripts to see if and why there is a need to use the ‘enemy of all humanity’ label in contemporary international criminal justice discourse. It shows an absence of explicit uses of the concept and an ambiguous set of implicit references; the hosti generis humani concept is simultaneously too precise and too broad for ICJ discourse. Based on these findings, the article challenges David Luban’s suggestion that the term can be undone from its dehumanizing potential and used adequately in the ICJ context. |
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Journal | African Journal of International Criminal Justice, Issue 1-2 2017 |
Keywords | International criminal law, joint criminal enterprise, complicity, Chambres Africaines Extraordinaires / Extraordinary African Chambers, hybrid tribunals |
Authors | Kerstin Bree Carlson |
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The Chambres Africaines Extraordinaires (CAE), ad hoc chambers operating under the auspices of the Dakar municipal courts, were constructed to try Hissène Habré. In targeting Habré, the CAE was designed to appease Chadian calls for justice (from Habré’s victims, on one hand, and the Déby regime, on the other), resolve Senegal’s impasse over the legality of Habré’s culpability and allow the African Union to meet its leadership obligations. To this tall order, the CAE was required to exercise legitimate judicial authority in the contested sphere of international criminal law (ICL), where content is pluralist and political. |
Editorial |
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Journal | Erasmus Law Review, Issue 2 2016 |
Keywords | social control, folk devils, moral panic, dangerousness, sex offenders |
Authors | Michiel van der Wolf (Issue Editor) |
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This paper provides first of all the introduction to this special issue on ‘Legal constraints on the indeterminate control of “dangerous” sex offenders in the community: A European comparative and human rights perspective’. The issue is the outcome of a study that aims at finding the way legal control can not only be an instrument but also be a controller of social control. It is explained what social control is and how the concept of moral panic plays a part in the fact that sex offenders seem to be the folk devils of our time and subsequently pre-eminently the target group of social control at its strongest. Further elaboration of the methodology reveals why focussing on post-sentence (indeterminate) supervision is relevant, as there are hardly any legal constraints in place in comparison with measures of preventive detention. Therefore, a comparative approach within Europe is taken on the basis of country reports from England and Wales, France, Germany, The Netherlands and Spain. In the second part of the paper, the comparative analysis is presented. Similar shifts in attitudes towards sex offenders have led to legislation concerning frameworks of supervision in all countries but in different ways. Legal constraints on these frameworks are searched for in legal (sentencing) theory, the principles of proportionality and least intrusive means, and human rights, mainly as provided in the European Convention on Human Rights to which all the studied countries are subject. Finally, it is discussed what legal constraints on the control of sex offenders in the community are (to be) in place in European jurisdictions, based on the analysis of commonalities and differences found in the comparison. |
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Journal | Erasmus Law Review, Issue 2 2016 |
Keywords | Supervision, twin track system, principle of proportionality, human rights, violent and sex offenders |
Authors | Bernd-Dieter Meier |
AbstractAuthor's information |
After release from prison or a custodial preventive institution, offenders may come under supervision in Germany, which means that their conduct is controlled for a period of up to five years or even for life by a judicial supervising authority. Supervision is terminated if it can be expected that even in the absence of further supervision the released person will not commit any further offences. From the theoretical point of view, supervision is not considered a form of punishment in Germany, but a preventive measure that is guided by the principle of proportionality. After a presentation of the German twin track system of criminal sanctions and a glimpse at sentencing theory, the capacity of the principle of proportionality to guide and control judicial decisions in the field of preventive sanctions is discussed. The human rights perspective plays only a minor role in the context of supervision in Germany. |
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Journal | Erasmus Law Review, Issue 2 2016 |
Keywords | Dutch penal law, preventive supervision, dangerous offenders, human rights, social rehabilitation |
Authors | Sanne Struijk and Paul Mevis |
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In the Netherlands, the legal possibilities for post-custodial supervision have been extended considerably in recent years. A currently passed law aims to further increase these possibilities specifically for dangerous (sex) offenders. This law consists of three separate parts that may all result in life-long supervision. In the first two parts, the supervision is embedded in the conditional release after either a prison sentence or the safety measure ‘ter beschikking stelling’ (TBS). This paper focuses on the third part of the law, which introduces an independent supervisory safety measure as a preventive continuation of both a prison sentence and the TBS measure. Inevitably, this new independent sanction raises questions about legitimacy and necessity, on which this paper reflects from a human rights perspective. Against the background of the existing Dutch penal law system, the content of the law is thoroughly assessed in view of the legal framework of the Council of Europe and the legal principles of proportionality and less restrictive means. In the end, we conclude that the supervisory safety measure is not legitimate nor necessary (yet). Apart from the current lack of (empirical evidence of) necessity, we state that there is a real possibility of an infringement of Article 5(4) ECHR and Article 7 ECHR, a lack of legitimising supervision ‘gaps’ in the existing penal law system, and finally a lack of clear legal criteria. Regardless of the potential severity of violent (sex) offenses, to simply justify this supervisory safety measure on the basis of ‘better safe than sorry’ is not enough. |
Article |
The Case of X.Y. v. Hungary – A Judgment of the European Court of Human Rights on Pre-Trial Detention |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2015 |
Authors | Eszter Kirs and Balázs M. Tóth |
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Journal | Netherlands Journal of Legal Philosophy, Issue 3 2013 |
Keywords | burden of proof, German law, procedural rights, pretrial detention |
Authors | Thomas Weigend |
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Antony Duff proposes a comprehensive concept of the presumption of innocence, covering the period before, during and after a criminal process, both in an official (state vs. individual) and a non-official, civic sense. By that broad usage, the concept of presumption of innocence is getting blurred and risks losing its contours. I therefore suggest to keep separate matters separate. The presumption of innocence in the narrow sense that I suggest applies only where there exists a suspicion that an individual has committed a criminal offence. The important function of the presumption of innocence in that situation is to prevent an over-extension of state power against the individual under suspicion before that suspicion has been confirmed to be true beyond a reasonable doubt. A general presumption that all people abide by the law at all times is neither warranted nor necessary. It is not warranted because experience tells us that many people break some laws sometimes. And it is not necessary because a system of civil liberties is sufficient to protect us against official or social overreach based on a suspicion that we may commit crimes. |
Article |
Methods and Materials in Constitutional LawSome Thoughts on Access to Government Information as a Problem for Constitutional Theory and Socio-Legal Studies |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | Citizenship, democracy, government information, representative government, secrecy |
Authors | Barry Sullivan |
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To be subject to law, Hobbes argued, is to be deprived of liberty, as we understand it. In this respect, democratic governments are no different from others. Hobbes’s insight has not caused us to abandon our commitments to democracy, but it still challenges us to think hard about the nature of representative government, the nature of citizenship in a democratic society, and the conditions necessary for fulfilling the promise of democratic citizenship. Two recent trends are evident. Some citizens have embraced a more active sense of citizenship, which necessarily entails a more insistent need for information, while governments have insisted on the need for greater concentration of governmental power and a higher degree of secrecy. Much is to be learned from the approaches that various national and transnational regimes have taken with respect to this problem. This essay will consider the problem of access to government information from a comparative perspective and as a problem for constitutional theory and socio-legal studies. |
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Journal | Hague Justice Journal, Issue 2 2009 |
Authors | Jordan J. Paust |
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Journal | Hague Justice Journal, Issue 1 2006 |
Authors | Philippe Sands |
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