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Case Law

2022/1 EELC’s review of the year 2021

Journal European Employment Law Cases, Issue 1 2022
Authors Niklas Bruun, Filip Dorssemont, Zef Even e.a.
Abstract

    Various of our academic board analysed employment law cases from last year.


Niklas Bruun

Filip Dorssemont

Zef Even

Ruben Houweling

Marianne Hrdlicka

Anthony Kerr

Attila Kun

Jean-Philippe Lhernould

Daiva Petrylaitė

Luca Ratti

Jan-Pieter Vos
Article

Morality in the Populist Radical Right

A Computer-Assisted Morality Frame Analysis of a Prototype

Journal Politics of the Low Countries, Issue 1 2022
Keywords Populist radical right, morality, frame analysis, word2vec, crimmigration
Authors Job P.H. Vossen
AbstractAuthor's information

    This article provides a computer-assisted morality framing analysis of Vlaams Belang’s 2019 manifesto. The VB is regarded in the literature as a prototypical example of the Populist Radical Right (PRR). We first concisely review what PRR politics is and what it consists of, tentatively distinguishing four elements that we hypothesise will materialise in corresponding subframes running throughout the manifesto. We point to a mismatch between the omnipresent role of morality in all PRR subframes and the little attention devoted to the concept in the PRR literature. We introduce a useful theory from social psychology into framing literature to create a novel methodological approach to frame analysis that builds a bridge between a qualitative content and a quantitative context approach. The results support our hypothesis that populism, nationalism, nativism and authoritarianism can be distinguished from one another. Additionally, we detect a fifth PRR subframe, crimmigration, by its unique role of morality.


Job P.H. Vossen
Job Vossen is a PhD candidate at the University of Antwerp. His research investigates (im)morality in political discoursing and its interacting with fear, solidarity and gender and sexuality. The corresponding author states that there is no conflict of interest.
Article

Opening an Absolute Majority A Typology of Motivations for Opening and Selecting Coalition Partners

Journal Politics of the Low Countries, Issue 1 2022
Keywords negotiation, absolute majority, oversized coalition, motivations, local election
Authors Geoffrey Grandjean and Valentine Meens
AbstractAuthor's information

    Following the municipal elections in the Walloon Region (Belgium) on 14 October 2018, 189 political groups won an absolute majority. Twenty-two of these decided not to exercise power alone, but favoured the formation of an oversized coalition by integrating a minority partner. The aim of this article is to identify the motivations behind the formation of a local coalition when one of the partners has an absolute majority. Semi-structured interviews with mayors and leaders of political groups in these municipalities make it possible to identify the motivations for, first, the choice to open and, second, the choice of a minority partner. By distinguishing between necessary and supporting motivations, this article shows that the search for greater representation is a necessary motivation for the choice to open, whereas personal affinities and memories of the past are necessary motivations for choosing minority partners. By prioritising motivations, this article shows that.


Geoffrey Grandjean
Geoffrey Grandjean is Professor of Political Science at the Faculty of Law, Political Science and Criminology of the University of Liege and Director of the Institut de la decision publique.

Valentine Meens
Valentine Meens is Assistant of Political Science at the Faculty of Law, Political Science and Criminology of the University of Liege.
Article

Meetings between victims and offenders suffering from a mental disorder in forensic mental health facilities: a qualitative exploration of their subjective experiences

Journal The International Journal of Restorative Justice, Issue Online First 2022
Keywords Victim-offender meetings, restorative justice, forensic mental health, victimology, perception
Authors Mariëtte van Denderen and Michiel van der Wolf
AbstractAuthor's information

    Most studies about victim-offender meetings have been performed within prison populations, with little reference to offenders diagnosed with mental disorders. In establishing the effects of such meetings, these studies often use quantitative measures. Little is known about meetings between victims and offenders with mental disorders and about the more qualitative subjective experiences of the participants regarding these meetings. In this interview study, we inquired into the subjective experiences of sixteen participants in victim-offender meetings, six of whom are victims and ten offenders of severe crimes, currently residing in forensic mental health facilities. Topics of the interviews included benefits of the meeting and perceptions of each other prior to and after the meeting. Important benefits that participants experienced from meeting each other were reconnecting with family, processing the offence and contributing to each other’s well-being. Such benefits are comparable to those mentioned in studies on meetings with offenders without a mental disorder, challenging the practice that mentally disordered offenders are often excluded from such meetings. Most victims experienced a positive change in perception of the offender owing to the meeting. They perceived the offender as a human being and associated him less exclusively with his offence. Implications for clinical practice are addressed.


Mariëtte van Denderen
M.Y. van Denderen is criminologist and senior researcher at the Forensic Psychiatric Centre Dr. S. van Mesdag, Groningen, the Netherlands.

Michiel van der Wolf
M.J.F. van der Wolf is Professor of Forensic Psychiatry at Leiden University and Associate Professor of Criminal Law at the University of Groningen, the Netherlands. Corresponding author: M.Y. van Denderen at m.van.denderen@fpcvanmesdag.nl. Funding: This work was supported by an international, non-governmental, organization that prefers to stay anonymous (more information is available at request). Acknowledgements: We want to thank the victims, bereaved individuals and offenders who shared their experiences about the meeting. We would also like to thank the social workers of the FPC Dr. S. van Mesdag and FPC the Oostvaardersclinic, among which H. van Splunter, and Perspectief Herstelbemiddeling for their cooperation. We thank F. Fierstra, L. Gunnink, E. de Jong and F. Drijfhout for transcribing the interviews. Disclosure statement: No potential conflict of interest was reported by the authors.
Article

Restorative justice training for judges and public prosecutors in the European Union: what is on offer and where are the gaps?

Journal The International Journal of Restorative Justice, Issue Online First 2022
Keywords restorative justice, judicial training, judges, public prosecutors
Authors Ana Catarina Pereira, Britt De Craen and Ivo Aertsen
AbstractAuthor's information

    Judges and public prosecutors across Europe continue to be the main source of referral of cases to restorative justice programmes organised in the context of the criminal justice system. As a result, the training of these two groups of legal professionals regarding what restorative justice is and what it can offer to victims, offenders and the community has for many years been identified as a priority for the development of restorative justice in the European Union (EU). However, little information is available about what actually exists in terms of judicial training on restorative justice within the national judicial training institutions responsible for the initial and/or continuous training of judges and/or public prosecutors. Therefore, we developed an online survey on judicial training on restorative justice and invited 38 judicial training institutions operating in the (then) 28 EU Member States to participate in our study. We were able to make relevant observations regarding the reasons for the non-existence of restorative justice training in most of the judicial training institutions studied and identify important elements of the architecture of the restorative justice training offered by the judicial training institution of Czech Republic.


Ana Catarina Pereira
Ana Pereira is a PhD researcher in Criminology at the Leuven Institute of Criminology at KU Leuven, Belgium. She received a PhD grant from the Portuguese Foundation for Science and Technology (Fundação para a Ciência e a Tecnologia, FCT).

Britt De Craen
Britt De Craen is a master’s student in Criminology at the Leuven Institute of Criminology at KU Leuven, Belgium.

Ivo Aertsen
Ivo Aertsen is Professor Emeritus of the Leuven Institute of Criminology at KU Leuven, Belgium. Corresponding author: Ana Pereira, anacatarina.alvespereira@kuleuven.be.

David Tait
David Tait is Professor of Justice Research, Western Sydney University, Australia.

Munzer Emad
Munzer Emad is a doctoral candidate in Law, Western Sydney University, Australia. Corresponding author: David Tait at d.tait@westernsydney.edu.au.

    Restorative justice has frequently been presented as a new criminal justice paradigm, and as something that is radically different from punishment. I will argue that this ‘oppositioning’ is problematic for two reasons: first, because some cases of restorative justice constitute de facto punishment from the perspectives of some positions on what punishment is; second, because restorative justice could reasonably be more widely adopted as a new form of de jure punishment, which could potentially increase the use of restorative justice for the benefit of victims, offenders and society at large. In connection with the latter, I want to present some preliminary thoughts on how restorative justice could be incorporated into future criminal justice systems as de jure punishment. Furthermore, I will suggest that by insisting that restorative justice is radically different from punishment, restorative justice advocates may - contrary to their intentions − play into the hands of those who want to preserve the status quo rather than developing future criminal justice systems in the direction of restorative justice.


Christian Gade
Christian Gade is an Associate Professor of Human Security and Anthropology at Aarhus University and a mediator in the Danish victim-offender mediation programme (Konfliktråd). Corresponding author: Christian Gade at gade@cas.au.dk. Acknowledgements: I would like to thank Pernille Reese, head of the Danish Victim-Offender Mediation Secretariat, for our many dialogues about restorative justice and punishment. Furthermore, I am grateful to Søren Rask Bjerre Christensen and Isabelle Sauer for their thoughtful comments on earlier drafts of this article. Last but not least, I would like to thank the three anonymous reviewers for their valuable feedback.
Article

Access_open Retribution, restoration and the public dimension of serious wrongs

Journal The International Journal of Restorative Justice, Issue 1 2022
Keywords public wrongs, R.A. Duff, agent-relative values, criminalisation, punishment
Authors Theo van Willigenburg
AbstractAuthor's information

    Restorative justice has been criticised for not adequately giving serious consideration to the ‘public’ character of crimes. By bringing the ownership of the conflict involved in crime back to the victim and thus ‘privatising’ the conflict, restorative justice would overlook the need for crimes to be treated as public matters that concern all citizens, because crimes violate public values, i.e., values that are the foundation of a political community. Against this I argue that serious wrongs, like murder or rape, are violations of agent-neutral values that are fundamental to our humanity. By criminalising such serious wrongs we show that we take such violations seriously and that we stand in solidarity with victims, not in their capacity as compatriots but as fellow human beings. Such solidarity is better expressed by organising restorative procedures that serve the victim’s interest than by insisting on the kind of public condemnation and penal hardship that retributivists deem necessary ‘because the public has been wronged’. The public nature of crimes depends not on the alleged public character of the violated values but on the fact that crimes are serious wrongs that provoke a (necessarily reticent) response from government officials such as police, judges and official mediators.


Theo van Willigenburg
Theo van Willigenburg is Research Fellow at the Vrije Universiteit Amsterdam Faculteit Religie en Theologie, Amsterdam, the Netherlands. Corresponding author: Theo van Willigenburg at t.van.willigenburg@vu.nl.

Layla Alsheikh
Layla Alsheikh is a Palestinian active member of the Parents Circle-Families Forum. Detailed information and updates about the projects, events and activities mentioned in this contribution can be found at the Forum’s official website: www.theparentscircle.org. Corresponding author: Layla Alsheikh at lailaalshek@gmail.com.

Marie Keenan
Marie Keenan (PhD) is an Associate Professor at the School of Social Policy, Social Work and Social Justice, University College Dublin, Ireland. Corresponding author: Marie Keenan at Marie.keenan@ucd.ie.

    Western Australia is experiencing high rates of recidivism among Aboriginal offenders. This challenge can be partly addressed by delivering culturally relevant programming. Its dearth, however, suggests two questions: what is culturally fit in the context of the prison, and how might such programming be constructed? This article responds to these questions by focusing on one element of culture, ‘values’, that is influential ideas that determine desirable courses of action in a culture. Firstly, a review of the literature and comparative analysis is given to the respective key values of Aboriginal culture and European and Anglo-Australian cultures. It also highlights the importance of repairing Aboriginal values with implications for providing culturally relevant prison programming. Secondly, a report is given on how an in-prison Aboriginal restorative justice programme (AIPRJP) was co-designed by Noongar Elders and prisoners and me, an Anglo-Australian restorativist. Using an ethnographic approach, the project identified a set of Aboriginal values for addressing the harms resulting from historical manifestations of wrongdoing by settler colonialism and contemporary crimes of Aboriginal offenders. Brief commentary is then given to the delivery of the AIPRJP, followed by a summary of findings and recommendations for using culturally relevant programming.


Jane Anderson
Jane Anderson is Adjunct Research Fellow at School of Population and Global Health, The University of Western Australia, Australia. Corresponding author: Jane Anderson at jane.a@westnet.com.au. Acknowledgements: I extend my appreciation to the Noongar Elders and prisoners of the South West of Western Australia who co-designed the AIPRJP. My thanks go to the prison superintendent and staff for supporting the initiative. I am grateful to the peer reviewers for their constructive criticism which has led to substantial improvements to this article.
Article

Diversion and restorative justice in the context of juvenile justice reforms in Indonesia, Thailand, the Philippines and Vietnam

Journal The International Journal of Restorative Justice, Issue Online First 2022
Keywords children’s rights, juvenile justice, restorative justice, diversion, implementation challenges, Thailand, Vietnam, Indonesia, the Philippines
Authors Le Thu Dao, Le Huynh Tan Duy, Ukrit Sornprohm e.a.
AbstractAuthor's information

    Diversion is an important vehicle for delivering an alternative model of youth justice, one that is, hopefully, grounded in principles of children’s rights and restorative justice. Several Asia-Pacific countries, often with international assistance, have sought to develop alternative processes and programmes to which children in conflict with the law can be diverted to. In some instances, these have included restorative justice programmes. This article provides an overview of the implementation of a restorative justice approach, as a youth justice diversion measure, in four South-East Asian countries: Indonesia, Thailand, the Philippines and Vietnam. It describes juvenile justice reforms in these countries, particularly as they relate to the implementation of diversion and restorative justice and reflects on the factors that may have affected the success of these reforms. Every one of these countries has achieved a measure of success in implementing diversion and restorative justice, although restorative justice has occupied a different place in these reforms. The article offers a general overview of key challenges and notable successes encountered during that process, as well as an opportunity to consider the role of tradition, culture and public expectations in the implementation of restorative justice principles in the context of juvenile justice.


Le Thu Dao
Le Thu Dao, PhD, is professor at the Comparative Law Institute, Hanoi Law University, Hanoi, Vietnam.

Le Huynh Tan Duy
Le Huynh Tan Duy, LLB, LLM, PhD, is Head of Criminal Procedure Law Division of the Ho Chi Minh City University of Law, Ho Chi Minh City, Vietnam.

Ukrit Sornprohm
Ukrit Sornprohm, LLB, LLM, LLD (Candidate), Project Manager (Rule of Law and Criminal Justice), Thailand Institute of Justice, Bangkok, Thailand.

Yvon Dandurand
Yvon Dandurand, Professor Emeritus, Criminology, University of the Fraser Valley, Abbotsford, Canada. Fellow, International Centre for Criminal Law Reform. Corresponding author: Yvon Dandurand, Yvon.Dandurand@ufv.ca.
Article

Mediation in Greece: The ‘Formal’ and Various ‘Informal’ Types, Off- and Online

The Architecture of Mediation in Greece – Shifting towards a Culture That Values Consensus-Building

Journal Corporate Mediation Journal, Issue 2 2021
Keywords mediation, Greece, special forms, mandatory, online, informal types
Authors Dimitris Emvalomenos
Author's information

Dimitris Emvalomenos
Dimitris Emvalomenos, Lawyer, LL.M., Accredited Mediator of the Greek Ministry of Justice & the Centre of Effective Dispute Resolution (CEDR), London, UK, Dep. Managing Partner at the law firm ‘Bahas, Gramatidis & Partners LLP’ (BGP).
Article

Access_open Evaluative Mediation (Part II), Deployment

How to Deploy Evaluative Mediation?

Journal Corporate Mediation Journal, Issue 2 2021
Keywords evaluative mediation, deployment, hybrids
Authors Martin Brink
AbstractAuthor's information

    Part II of this article addresses the question of how evaluative mediation may be used in practice. What guidelines are available to a mediator who considers crossing the line between facilitation and evaluation?


Martin Brink
Martin Brink PhD is Editor in Chief of this Journal, mediator and arbitrator at Utrecht and The Hague, The Netherlands.
Article

Preparing Mediators for Text-Based Mediations on ODR Platforms

Journal International Journal of Online Dispute Resolution, Issue 2 2021
Keywords online dispute resolution (ODR), mediation, dispute resolution, alternative dispute resolution (ADR), mediation training, text-based systems
Authors Joseph van ’t Hooft, Wan Zhang and Sarah Mader
AbstractAuthor's information

    The COIVD-19 pandemic has drawn an increasing level of attention to the role of online dispute resolution (ODR) in dispute resolution systems. As ODR becomes increasingly prevalent, unique characteristics of conducting text-based mediations via ODR platforms begin to surface, warranting discussion on modifying mediator practises to adapt to ODR platforms. This article shines a light on the advantages and disadvantages of text-based mediations through interviews with court administrators and mediators with text-based mediation experience. Accordingly, this article proposes recommendations on training mediators to use ODR platforms and modifying their practises to achieve the best outcomes in text-based mediations. Focusing on the qualitative data and information gathered from these conducted interviews, this article seeks to offer practical advice about preparing mediators to participate in text-based mediations.


Joseph van ’t Hooft
Joseph van ’t Hooft is Juris Doctor Candidate (graduating in 2022) at The Ohio State University, Moritz College of Law.

Wan Zhang
Wan Zhang is Juris Doctor Candidate (graduating in 2022) at The Ohio State University, Moritz College of Law.

Sarah Mader
Sarah Mader is Juris Doctor Candidate (graduating in 2022) at The Ohio State University, Moritz College of Law.

    The emergence of a new virtual world during the COVID-19 pandemic has jeopardized essential elements of the negotiation process. Although online dispute resolution (ODR) may come with some advantages, it also poses significant difficulties, threatening the ability of negotiators to zealously represent their clients’ interests. The shift to a virtual world has hindered parties’ ability to prepare properly, to develop rapport and trust with one another and effectively manage their time, especially for those previously unfamiliar with ODR. This essay proposes solutions to help negotiators overcome the challenges posed by negotiating virtually, during and after COVID-19. Our world has been irrevocably changed, and many of the things that once seemed foreign are here to stay.


Alexandra Carlton
Alexandra Carlton, J.D., 2021, The George Washington University Law School; B.A., 2016, University of Vermont. Many thanks to Professor Robin Juni for her encouragement and guidance, as well as her enthusiasm for Alternative Dispute Resolution. All mistakes are my own.
Article

The Use of Technology (and Other Measures) to Increase Court Capacity

A View from Australia

Journal International Journal of Online Dispute Resolution, Issue 2 2021
Keywords court capacity, COVID-19, Australia, online dispute resolution, open justice, procedural fairness, access to justice, online courts, justice technology, judicial function
Authors Felicity Bell, Michael Legg, Joe McIntyre e.a.
AbstractAuthor's information

    The COVID-19 pandemic has forced courts around the world to embrace technology and other innovative measures in order to continue functioning. This article explores how Australian courts have approached this challenge. We show how adaptations in response to the pandemic have sometimes been in tension with principles of open justice, procedural fairness and access to justice, and consider how courts have attempted to resolve that tension.


Felicity Bell
Felicity Bell is a Research Fellow for the Law Society of NSW’s Future of Law and Innovation in the Profession (FLIP) research stream at UNSW Law, Sydney.

Michael Legg
Michael Legg is Professor and Director of the FLIP stream at UNSW Law, Sydney.

Joe McIntyre
Joe McIntyre is a Senior Lecturer in Law at UniSA: Justice and Society, University of South Australia.

Anna Olijnyk
Anna Olijnyk is a Senior Lecturer and Director of the Public Law and Policy Research Unit at Adelaide Law School, University of Adelaide, South Australia.
Article

Online Mediation and e-commerce (B2B and B2C) Disputes

Journal International Journal of Online Dispute Resolution, Issue 2 2021
Keywords ODR, online Mediation, e-commerce, business-to business (B2B), business-to consumer (B2C)
Authors Mariam Skhulukhia
AbstractAuthor's information

    Nowadays, electronic commerce plays a significant role in our society as internet transactions continue to grow in the business industry. Electronic commerce mainly refers to commercial transactions, such as business-to-business and business-to-consumer. Disputes are inevitable, part of our lives. Simultaneously by developing technology the need for an effective dispute resolution was obvious. Information communication technology and alternative dispute resolution together created online dispute resolution. Businesses and consumers are actively engaged in online dispute resolution. Therefore, the use of the internet makes business or consumer transactions easier. The online environment is much flexible when it comes to electronic commerce. This article focuses on online mediation, one of the most popular forms of online dispute resolution.


Mariam Skhulukhia
Mariam Skhulukhia has a Bachelor’s degree in law and a Master’s degree in International Business law from the University of Georgia. She participated in the Consensual Dispute Resolution Competition (CDRC VIENNA) in 2018 and the John H. Jackson Moot Court Competition in 2019. Mariam was an intern at Tbilisi City Court in Civil Affairs Board. Also, she worked as a lawyer for residency and citizenship matters at a foreign company. She has successfully passed a Bar Exam (Civil Law Specialization) in 2021. Mariam wrote her Master’s thesis: “Why do we need Online Mediation? Possible Challenges and Perspectives for Online Commercial Mediation in Georgia.” She also submitted her Research Paper titled “Mediating Online: Among the Praises and Diatribes in MediateGuru’s edited book titled “A Pathway to the Future of ADR: Comparative Perspectives around the World.”
Article

Access_open Global Solidarity and Collective Intelligence in Times of Pandemics

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Global solidarity, Pandemics, Global Existential Threats, Collective Intelligence, CrowdLaw
Authors José Luis Martí
AbstractAuthor's information

    Some of the existential threats we currently face are global in the sense that they affect us all, and thus matter of global concern and trigger duties of moral global solidarity. But some of these global threats, such as the COVID-19 pandemic, are global in a second, additional, sense: discharging them requires joint, coordinated global action. For that reason, these twofold global threats trigger political – not merely moral – duties of global solidarity. This article explores the contrast between these two types of global threats with the purpose of clarifying the distinction between moral and political duties of global solidarity. And, in the absence of a fully developed global democratic institutional system, the article also explores some promising ways to fulfill our global political duties, especially those based on mechanisms of collective intelligence such as CrowdLaw, which might provide effective solutions to these global threats while enhancing the democratic legitimacy of public decision-making.


José Luis Martí
José Luis Martí is Associate Professor of Legal and Political Philosophy, Department of Law, Pompeu Fabra University of Barcelona.
Article

Access_open The Exceptionality of Solidarity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Solidarity, COVID-19, Crisis, Normalcy, Exceptionality
Authors Amalia Amaya Navarro
AbstractAuthor's information

    In times of crisis, we witness exceptional expressions of solidarity. Why does solidarity spring in times of crisis when it wanes in normal times? An inquiry into what may explain the differences between the expression of solidarity in crisis vs. normalcy provides, as I will argue in this article, important insights into the conditions and nature of solidarity. Solidarity requires, I will contend, an egalitarian ethos and state action within and beyond the state. It is neither a momentary political ideal, nor an exclusionary one, which depends for its sustainment on formal, legal, structures. Transient, sectarian, and informal conceptions of solidarity unduly curtail the demands of solidarity by restricting its reach to times of crisis, to in-group recipients, and to the social rather than the legal sphere. The article concludes by discussing some aspects of the dynamics of solidarity and its inherent risks that the analysis of the exceptionality of solidarity helps bring into focus.


Amalia Amaya Navarro
Amalia Amaya Navarro is British Academy Global Professor of Legal Philosophy at the University of Edinburgh.
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