Search result: 119 articles

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Article

Looking beneath the iceberg: can shame and pride be handled restoratively in cases of workplace bullying

Journal The International Journal of Restorative Justice, Issue 2 2019
Keywords Bullying, victimisation, shame management, pride management, social connectedness
Authors Valerie Braithwaite and Eliza Ahmed
AbstractAuthor's information

    Central to restorative justice interventions that follow revised reintegrative shaming theory (Ahmed, Harris, Braithwaite & Braithwaite, 2001) is individual capacity to manage shame and pride in safe and supportive spaces. From a random sample of 1,967 Australians who responded to a national crime survey, 1,045 completed a module about bullying experiences at work over the past year, along with measures of shame and pride management (the MOSS-SASD and MOPS scales). Those who identified themselves as having bullied others were pride-focused, not shame-focused. They were more likely to express narcissistic pride over their work success, lauding their feats over others, and were less likely to express humble pride, sharing their success with others. In contrast, victims were defined by acknowledged and displaced shame over work task failures. In addition to these personal impediments to social reintegration, those who bullied and those targeted had low trust in others, particularly professionals. While these findings do not challenge macro interventions for culture change through more respectful and restorative practices, they provide a basis for setting boundaries for the appropriate use of restorative justice meetings to address particular workplace bullying complaints.


Valerie Braithwaite
Valerie Braithwaite is a Professor at the Regulatory Institutions Network, Australian National University, Canberra, Australia.

Eliza Ahmed
Eliza Ahmed is a visiting fellow at the Regulatory Institutions Network, Australian National University, Canberra, Australia.
Article

Post-Legislative Scrutiny as a Form of Executive Oversight

Tools and Practices in Europe

Journal European Journal of Law Reform, Issue 2 2019
Keywords scrutiny of law enforcement, ex-post impact assessment, parliamentary oversight of the executive, post-legislative scrutiny
Authors Elena Griglio
AbstractAuthor's information

    Parliaments’ engagement in post-legislative scrutiny can be considered either as an extension of the legislative function or within the framework of the oversight of the executive. This article makes use of the latter view to assess how parliaments in Europe approach post-legislative scrutiny and to which extent this function can be regarded as a form of executive oversight. Although rules and practices of parliaments in this realm are remarkably heterogeneous, the focus on some selected parliaments (Italy, France, Germany, Sweden, and the European Parliament) reveals three different conceptual categories. In the ‘basic’ approach (passive scrutinizers), parliaments limit their role solely to the assessment of the ex-post scrutiny performed by the government and external agencies. Differently, parliaments willing to engage in a more proactive approach might choose either to act on an informal basis, establishing ad hoc research/evaluation administrative units (informal scrutinizers) or to address post-legislative scrutiny in a formal and highly institutionalized manner (formal scrutinizers). As a matter of fact, the practise of parliaments often combines characters of different categories. While in all of these approaches post-legislative scrutiny shows potential for executive oversight, only the third can potentially lead to a kind of ‘hard’ oversight.


Elena Griglio
Dr Elena Griglio is a Senior Parliamentary Official, Italian Senate and Adjunct Professor, Luiss Guido Carli University.

    Alternative/amicable dispute resolution (ADR) is omnipresent these days. In line with global evolutions, the Belgian legislator embraced the use of these ADR mechanisms. Recent reforms of the law, first in 2013 with the act concerning the introduction of a Family and Juvenile Court and consecutively in 2018 with the act containing diverse provisions regarding civil law with a view to the promotion of alternative forms of conflict resolution, implemented more far-reaching measures to promote ADR than ever before. The ultimate goal seems to alter our society’s way of conflict resolution and make the court the ultimum remedium in case all other options failed.In that respect, the legislator took multiple initiatives to stimulate amicable dispute resolution. The reform of 2013 focused solely on family cases, the one in 2018 was broader and designed for all civil cases. The legal tools consist firstly of an information provision regarding ADR for the family judge’s clerk, lawyers and bailiffs. The judges can hear parties about prior initiatives they took to resolve their conflict amicably and assess whether amicable solutions can still be considered, as well as explain these types of solutions and adjourn the case for a short period to investigate the possibilities of amicable conflict resolution. A legal framework has been created for a new method, namely collaborative law and the law also regulates the link between a judicial procedure and the methods of mediation and collaborative law to facilitate the transition between these procedures. Finally, within the Family Courts, specific ‘Chambers of Amicable Settlement’ were created, which framework is investigated more closely in this article. All of these legal tools are further discussed and assessed on their strengths and weaknesses.
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    Alternatieve of minnelijke conflictoplossing is alomtegenwoordig. De Belgische wetgever heeft het gebruik van deze minnelijke oplossingsmethodes omarmd, in navolging van wereldwijde evoluties. Recente wetshervormingen implementeerden maatregelen ter promotie van minnelijke conflictoplossing die verder reiken dan ooit tevoren. Het betreft vooreerst de hervorming in 2013 met de wet betreffende de invoering van een familie- en jeugdrechtbank en vervolgens kwam er in 2018 de wet houdende diverse bepalingen inzake burgerlijk recht en bepalingen met het oog op de bevordering van alternatieve vormen van geschillenoplossing. De ultieme doelstelling van deze hervormingen is een mentaliteitswijziging omtrent onze wijze van conflictoplossing teweegbrengen, waarbij de rechtbank het ultimum remedium dient te worden nadat alle overige opties faalden.De wetshervorming van 2013 focuste uitsluitend op familiale materies, de hervorming van 2018 was ruimer en had alle burgerlijke zaken voor ogen. De wettelijke mogelijkheden bestaan vooreerst uit een informatieverstrekking omtrent minnelijke conflictoplossing in hoofde van de griffier van de familierechtbank, advocaten en gerechtsdeurwaarders. Rechters kunnen partijen horen omtrent eerdere ondernomen initiatieven om hun conflict op een minnelijke manier op te lossen, zij beoordelen of minnelijke oplossingen alsnog kunnen worden overwogen, zij kunnen de diverse minnelijke mogelijkheden toelichten aan partijen alsook de zaak voor een korte periode uitstellen om partijen toe te laten de mogelijkheden aan minnelijke conflictoplossing te verkennen. Er werd voorts een wetgevend kader uitgewerkt voor een nieuwe oplossingsmethode, namelijk de collaboratieve onderhandeling. De wet creëert tevens een link tussen een gerechtelijke procedure en de methodes van bemiddeling en collaboratieve onderhandeling, om de overgang tussen deze procedures te vereenvoudigen. Tot slot werden er binnen de familierechtbanken specifieke kamers voor minnelijke schikking opgericht, waarvan het wetgevend kader in detail wordt bestudeerd in dit artikel. Al deze wettelijke opties worden nader besproken en beoordeeld aan de hand van hun sterktes en zwaktes.


Sofie Raes
Sofie Raes is a Ph.D. candidate at the Institute for Family Law of the University of Ghent, where she researches alternative dispute resolution, with a focus on the chambers of amicable settlement in Family Courts. She is also an accredited mediator in family cases.

    The Austrian Supreme Court has held that the employer must notify the Employment Service (AMS) when it is contemplating collective redundancies, even if they are carried by mutual agreement. The duty of notification is triggered if the employer proposes a mutual termination agreement to a relevant number of employees, provided the offer is binding and can be accepted by the employees within 30 days. If the employer fails to notify the AMS, any subsequent redundancies (or mutual terminations of employment occurring on the employer’s initiative) are void, even if effected after 30 days.


Andreas Tinhofer
Andreas Tinhofer is a partner at MOSATI Rechtsanwälte, www.mosati.at.
Article

Access_open Enemy of All Humanity

The Dehumanizing Effects of a Dangerous Concept

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords enemy of all humanity, hostis humani generis, piracy, international criminal law, Luban
Authors Marc de Wilde
AbstractAuthor's information

    In his contribution to this special issue, David Luban proposes to revive the age-old concept of ‘the enemy of all humanity.’ On his view, this concept supports the aims of international criminal justice by emphasizing that atrocity and persecution crimes are ‘radically evil’ and therefore ‘everyone’s business.’ Criticizing Luban’s proposal, this paper shows that in the past, the ‘enemy of all humanity’ concept has often served to establish parallel systems of justice, depriving these ‘enemies’ of their rights as suspects under criminal law and as lawful combatants under the laws of war. Thus, even if the ‘enemy of all humanity’ concept is used with the intention to bring today’s perpetrators of ‘radical evil’ to justice, it risks undermining, rather than protecting, the rule of law.


Marc de Wilde
Marc de Wilde is Professor of Jurisprudence at the University of Amsterdam.
Article

Access_open Privatising Law Enforcement in Social Networks: A Comparative Model Analysis

Journal Erasmus Law Review, Issue 3 2018
Keywords user generated content, public and private responsibilities, intermediary liability, hate speech and fake news, protection of fundamental rights
Authors Katharina Kaesling
AbstractAuthor's information

    These days, it appears to be common ground that what is illegal and punishable offline must also be treated as such in online formats. However, the enforcement of laws in the field of hate speech and fake news in social networks faces a number of challenges. Public policy makers increasingly rely on the regu-lation of user generated online content through private entities, i.e. through social networks as intermediaries. With this privat-ization of law enforcement, state actors hand the delicate bal-ancing of (fundamental) rights concerned off to private entities. Different strategies complementing traditional law enforcement mechanisms in Europe will be juxtaposed and analysed with particular regard to their respective incentive structures and consequential dangers for the exercise of fundamental rights. Propositions for a recommendable model honouring both pri-vate and public responsibilities will be presented.


Katharina Kaesling
Katharina Kaesling, LL.M. Eur., is research coordinator at the Center for Advanced Study ‘Law as Culture’, University of Bonn.
Part II Private Justice

ADR-Rooted ODR Design in Europe

A Bet for the Future

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, dispute system design, European law, redesign of ADR systems, artificial intelligence
Authors Fernando Esteban de la Rosa
AbstractAuthor's information

    The new European regulatory framework has a greater significance than it expressly declares, both for the development of online dispute resolution (ODR) in Europe and for the structure of alternative dispute resolution (ADR) entities of the Member States. A close reading of the ADR Directive reveals an implicit but clear mandate for the development and intensive use of ODR tools by certified ADR entities that could lead to the creation of new ODR platforms. The new ADR/ODR regulatory framework shows a clear tendency to produce important transformations in the traditional ADR structure in every Member State. This article aims to identify criteria for the development of ODR in Europe and to discover the European law’s implicit mandates related to the redesign of the ADR structure in the Member States, while assessing the role of the Member States, the ADR entities and the European Union itself.


Fernando Esteban de la Rosa
Fernando Esteban de la Rosa is Chair in Private International Law, University of Granada, Spain; NCTDR fellow.
Part II Private Justice

Using Technology and ADR Methods to Enhance Access to Justice

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, ADR, mediation, online court, e-court, consumer ADR, CADR, CDR, ombudsman
Authors Pablo Cortes
AbstractAuthor's information

    This article discusses how technology and extrajudicial processes can provide a solution to the access-to-justice problem for self-represented litigants. The article first observes the need for efficient dispute resolution processes based on a wider concept of access to justice and argues for greater integration amongst courts and extrajudicial bodies, especially in the consumer sphere where dispute resolution bodies are currently undergoing an institutionalization process as a result of recent EU legislation. Accordingly, it is argued that access to justice for consumers will only be achieved if they have access to either an accountable and effective extrajudicial scheme that offers adjudication or a truly user-friendly and accessible online court that incorporates alternative dispute resolution techniques as the United Kingdom has endeavoured to deliver. To that end, this article examines the policy options for the English Online Court with a particular focus on the challenges faced by litigants in person. Finally, this article submits that dispute system design changes need to be informed by empirical research and a holistic policy strategy on dispute resolution.


Pablo Cortes
Pablo Cortes is Professor of Civil Justice, Leicester Law School, University of Leicester.
Part II Private Justice

Decentralized Justice in the Era of Blockchain

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, blockchain, arbitration, decentralization, crowdsourcing
Authors James Metzger
AbstractAuthor's information

    ODR that is built on blockchain technology and infrastructure is championed by supporters as being capable of revolutionizing dispute resolution. Kleros is a decentralized dispute resolution platform built on the Ethereum blockchain that uses cryptoeconomic theories and game theory to recruit and incentivize a worldwide pool of ‘jurors’ to decide the cases arbitrated through the platform. This article discusses some early evaluations of whether this kind of decentralized ODR is likely to succeed by viewing the model through a normative framework, including considering whether crowdsourcing of justice on a decentralized platform is a viable way to conduct ODR. The article then discusses the likelihood of the success of the sub-court model, including whether choice-of-law issues might be problematic for a worldwide, decentralized system. Finally, the article considers whether the cryptoeconomic and game theories that provide the foundation for the Kleros platform are likely to result in a jury pool, much less an actual jury, that could be considered ‘fair.’ The article is informed by the author’s experience with the Kleros platform through participation in its interactive initial coin offering and engaging in its beta-testing phase.


James Metzger
Dr. James Metzger is a lecturer at the University of New South Wales Faculty of Law.
Article

Access_open Armed On-board Protection of German Ships (and by German Companies)

Journal Erasmus Law Review, Issue 4 2018
Keywords German maritime security, private armed security, privately contracted armed security personnel, anti-piracy-measures, state oversight
Authors Tim R. Salomon
AbstractAuthor's information

    Germany reacted to the rise of piracy around the Horn of Africa not only by deploying its armed forces to the region, but also by overhauling the legal regime concerning private security providers. It introduced a dedicated licensing scheme mandatory for German maritime security providers and maritime security providers wishing to offer their services on German-flagged vessels. This legal reform resulted in a licensing system with detailed standards for the internal organisation of a security company and the execution of maritime security services. Content wise, the German law borrows broadly from internationally accepted standards. Despite deficits in state oversight and compliance control, the licensing scheme sets a high standard e.g. by mandating that a security team must consist of a minimum of four security guards. The lacking success of the scheme suggested by the low number of companies still holding a license may be due to the fact that ship-owners have traditionally been reluctant to travel high-risk areas under the German flag. Nevertheless, the German law is an example of a national regulation that has had some impact on the industry at large.


Tim R. Salomon
The author is a legal adviser to the German Federal Armed Forces (Bundeswehr) and currently seconded to the German Federal Constitutional Court.
Article

Access_open Armed On-board Protection of Danish Vessels Authorisation and Use of Force in Self-defence in a Legal Perspective

Journal Erasmus Law Review, Issue 4 2018
Keywords piracy, private security companies (PSC), privately contracted armed security personnel (PCASP), use of force, Denmark
Authors Christian Frier
AbstractAuthor's information

    This article examines the legal issues pertaining to the use of civilian armed guards on board Danish-flagged ships for protection against piracy. The Danish model of regulation is interesting for several reasons. Firstly, the Danish Government was among the first European flag States to allow and formalise their use in a commercial setting. Secondly, the distribution of assignments between public authorities and private actors stands out as very pragmatic, as ship owners and contracting private security companies are empowered with competences which are traditionally considered as public administrative powers. Thirdly, the lex specialis framework governing the authorisation and use of force in self-defence is non-exhaustive, thus referring to lex generalis regulation, which does not take the special circumstances surrounding the use of armed guards into consideration. As a derived effect the private actors involved rely heavily on soft law and industry self-regulation instrument to complement the international and national legal framework.


Christian Frier
Christian Frier is research assistant at the Department of Law, University of Southern Denmark. He obtained his PhD in Law in March 2019.
Article

Access_open Restorative justice as feminist practice

Journal The International Journal of Restorative Justice, Issue 3 2018
Keywords Restorative justice, gender-based violence, feminism
Authors Leigh Goodmark
AbstractAuthor's information

    Feminists have viewed the implementation of restorative practices warily, particularly in the context of gender-based harms. Concerns include the devaluing of gender-based harms, the reprivatisation of violence against women and the inability of restorative practitioners to guarantee safety for people subjected to abuse. But this article will argue that restorative justice can be a uniquely feminist practice, growing out of the same mistrust of state-based systems and engagement of the community that animated the early feminist movement. Although some caution is warranted, restorative justice serves the feminist goals of amplifying women’s voices, fostering women’s autonomy and empowerment, engaging community, avoiding gender essentialism and employing an intersectional analysis, transforming patriarchal structures and ending violence against women.


Leigh Goodmark
Leigh Goodmark is Professor of Law and Director of the Gender Violence Clinic at the University of Maryland Francis King Carey School of Law, Baltimore, USA. Contact author: lgoodmark@law.umaryland.edu.
Article

Smart Enforcement

Theory and Practice

Journal European Journal of Law Reform, Issue 4 2018
Keywords regulatory inspections, regulatory enforcement, environmental regulations, smart regulation
Authors Dr. Florentin Blanc and Prof. Michael Faure
AbstractAuthor's information

    There is an increasing attention both on how inspections and enforcement efforts with respect to regulatory breaches can be made as effective as possible. Regulatory breaches refer to violations of norms that have been prescribed in public regulation, such as, for example, environmental regulation, food safety regulation or regulation aiming at occupational health and safety. The enforcement of this regulation is qualified as regulatory enforcement. It has been claimed that inspections should not be random, but based on risk and target-specific violators and violations. Such a “smart” enforcement policy would be able to increase the effectiveness of enforcement policy. Policy makers are enthusiastic about this new strategy, but less is known about the theoretical foundations, nor about the empirical evidence. This article presents the theoretical foundations for smart enforcement as well as some empirics. Moreover, the conditions under which smart enforcement could work are identified, but also a few potential limits are presented.


Dr. Florentin Blanc
Dr. Florentin Blanc is a consultant to the World Bank Group, OECD, and governments on investment climate and business environment.

Prof. Michael Faure
Prof. Michael Faure is Academic Director Maastricht European institute for Transnational Legal Research (METRO), Maastricht University, Professor of Comparative and International Environmental Law, Maastricht University and Academic Director of Ius Commune Research School, Maastricht University. He is also Professor of Comparative Law and Economics at Erasmus Law School (Rotterdam).

Elise C. Lopez DrPH
Elise C. Lopez, DrPH, is Assistant Director, Relationship Violence Program.

Mary P. Koss PhD
Mary P. Koss, PhD is Regents’ Professor and Director, Relationship Violence Program, Dept. of Health Promotion Sciences, The University of Arizona, Tucson, Arizona, USA. Contact author: eclopez@email.arizona.edu.
Article

The adventure of the institutionalisation of restorative justice in Belgium

Journal The International Journal of Restorative Justice, Issue 2 2018
Keywords Restorative justice, institutionalisation, penal change, Belgium
Authors Anne Lemonne
AbstractAuthor's information

    At first glance, the adventure of restorative justice (RJ) in Belgium can be considered a real success story. At the turn of the 21st century, programmes oriented towards this justice model officially determined the criminal justice agenda. What were the key ideas that led to the conceptualisation of restorative justice in Belgium? Who were the main actors and agencies that carried them out? What were the main issues that led to the institutionalisation of restorative justice? What are the effects of its implementation on the Belgian criminal justice system in general? This article strives to present the main findings of a study on the basis of an extensive data collection effort and analysis targeting discourses and practices created by actors from the Belgian academic, scientific, political, administrative, social work and judicial spheres from the 1980s to 2015.


Anne Lemonne
Anne Lemonne is a researcher at the Department of Criminology, National Institute for Criminalistics and Criminology (NICC) and a member of the Centre de recherches criminologiques at the Université Libre de Bruxelles (ULB), Brussels, Belgium. Contact author: Anne.Lemonne@just.fgov.be.

Carolyn Hoyle
Carolyn Hoyle is Professor of Criminology, University of Oxford (UK).

Diana Batchelor
Diana Batchelor is a DPhil candidate, Centre for Criminology, University of Oxford (UK). Contact author: carolyn.hoyle@crim.ox.ac.uk.
Article

Measuring the restorativeness of restorative justice: the case of the Mosaica Jerusalem Programme

Journal The International Journal of Restorative Justice, Issue 2 2018
Keywords Restorative justice, criminal justice, criminal law taxonomy, victims, offenders
Authors Tali Gal, Hadar Dancig-Rosenberg and Guy Enosh
AbstractAuthor's information

    This study uses a Jerusalem-based restorative justice programme as a case study to characterise community restorative justice (CRJ) conferences. On the basis of the Criminal Law Taxonomy, an analytical instrument that includes seventeen measurable characteristics, it examines the procedural elements of the conferences, their content, goals and the role of participants. The analysis uncovers an unprecedented multiplicity of conference characteristics, including the level of flexibility, the existence of victim-offender dialogue, the involvement of the community and a focus on rehabilitative, future-oriented outcomes. The findings offer new insights regarding the theory and practice of CRJ and the gaps between the two.


Tali Gal
Tali Gal is Associate Professor and Senior Lecturer, School of Criminology, University of Haifa, Haifa, Israel.

Hadar Dancig-Rosenberg
Hadar Dancig-Rosenberg is Visiting Professor, UC Berkeley School of Law (2017-2018) and Associate Professor, Bar-Ilan University Faculty of Law, Ramat-Gan, Israel.

Guy Enosh
Guy Enosh is Associated Professor, Faculty of Welfare and Health Sciences, School of Social Work, University of Haifa, Haifa, Israel. Contact author: tgal1@univ.haifa.ac.il. Note: The first two authors have contributed equally; the third author contributed to the methodology. Acknowledgements: We are grateful to Gali Pilowsky-Menkes and Rotem Spiegler for outstanding data collection assistance. We are also grateful to Caroline Cooper, Netanel Dagan and Adi Libson for insightful comments. We are particularly indebted to the Mosaica workers and volunteers who provided us access to their materials while ensuring the privacy of all parties involved.
Human Rights Practice Review

Latvia

Journal East European Yearbook on Human Rights, Issue 1 2018
Authors Lolita Bērziņa, Artūrs Kučs and Eva Vīksna
Author's information

Lolita Bērziņa
Lolita Bērziņa is Dr.iur.cand. and lecturer at the Faculty of Law of the University of Latvia.

Artūrs Kučs
Artūrs Kučs is Dr.iur. Judge at the Constitutional Court of Latvia and Associate Professor and Chair of the Department of International Law at the Faculty of Law of the University of Latvia.

Eva Vīksna
Eva Vīksna is Legal Research Counsel at the Supreme Court of Latvia.
Article

Regional Judicial and Non-judicial Bodies

An Effective Means for Protecting Human Rights?

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Direct access, human rights protection, judicial bodies, non-judicial bodies, direct access of individuals
Authors Ján Klučka
AbstractAuthor's information

    Regional human rights systems consisting of regional bodies, instruments and mechanisms play an important role in the promotion and protection of human rights. If one’s rights are not protected on the domestic level, the international system comes into play and protection can be provided either by the regional or global (UN) system. Regional mechanisms of human rights today cover five parts of the world, namely: Africa, the Americas, Europe, Arab countries and the Asia-Pacific. They differ in their origin, resulting from different concepts of human rights and the need of interested states to establish a regional framework for human rights protection. The level and scope of their human rights protection is obviously uneven, although this protection is generally higher in regions with democratic states that have constitutional and rule of law regimes in which human rights are considered an integral part of their constitutional architecture. However, current practice confirms that the creation of judicial systems for the protection of human rights within the context of concrete regions does not automatically guarantee the right of direct access of individuals to them. The regional particularities of locus standi result from a set of factors having historic, religious, ethnic and other nature. In the institutional system of protection of human rights, these particularities manifest also through the optional (non-compulsory) jurisdiction of regional judicial bodies, the preventive ‘filtering’ systems before non-judicial bodies (commissions) combined with the right to bring the case before a judicial body, the systems where different entities are entitled to bring the case before a judicial body but the individual has no such right etc. Nevertheless, the existing practice generally confirms the increasing role of the judicial segment of the regional human rights systems as well as the strengthening of position of individuals within the proceedings before regional human rights judicial and non-judicial bodies. A specific factor in the developing world represents the concept of a ‘strict’ interpretation of sovereignty preventing external control of the respect for human rights before a regional judicial body on the basis of an individual complaint by a concerned person. The specificities of regional systems are without detriment to their widely accepted advantages and benefits. Regional systems allow for the possibility of regional values to be taken into account when human rights norms are defined (e.g. so-called collective rights and duties within the African system), provided that the idea of the universality of human rights is not compromised. The regional systems are located closer to the individual human rights subjects and offer a more accessible forum in which individuals can pursue their cases, and states tend to show stronger political will to conform to decisions of regional human rights bodies. The existence of the regional human rights systems finally allows for the existence of proper enforcement mechanisms, which can better reflect local conditions than a global (universal) system of enforcement.


Ján Klučka
Professor of International Law, Institute of International and European Law, Law Faculty, University P.J. Šafárik, Košice, Slovakia.
Article

Politics and Pragmatism

The Constitutional Court of the Russian Federation and Its 20 Years of Engagement with the European Convention on Human Rights

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Constitutional Court of the Russian Federation, European Court of Human Rights, Russia
Authors Bill Bowring
AbstractAuthor's information

    After the highly controversial YUKOS judgment of 19 January 2017, on 23 May 2017 the Constitutional Court of the Russian Federation (CCRF) delivered a warmly received judgment, in which the provisions of the administrative offences legislation prohibiting stateless persons to challenge the reasonableness of their detention in special detention facilities was found to be unconstitutional. The CCRF was addressed by leading Russian human rights advocates. The judgment referred not only to Article 22 of the Russian Constitution but also to the analogous Article 5 of the ECHR. The judgment paid special attention to case-law: Guzzardi v. Italy (1980), Kemmache v. France (1994), Kurt v. Turkey (1998), Aleksei Borisov v. Russia (2015), and Z.A. v. Russia (2017), as well as Alim v. Russia (2011), Shakurov v. Russia (2012) and Azimov v. Russia (2013). Indeed, Strasbourg jurisprudence has played a central role in the development of the CCRF’s jurisprudence since Russia’s ratification of the ECHR in 1998. This article analyses and seeks to explain what in the author’s view is the CCRF’s serious engagement with a body of pan-European quasi-constitutional law, with which Russian jurists feel surprisingly comfortable and experienced. Is there really a cultural incompatibility between Russian and ‘Western’ approaches to human rights law?


Bill Bowring
Professor of Law, Birkbeck College, University of London.
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