The article presents the status quo of the law of retrial in Germany and gives an overview of the law and practice of the latter in favour of the convicted and to the disadvantage of the defendant. Particularly, the formal and material prerequisites for a successful petition to retry the criminal case are subject to a detailed presentation and evaluation. Because no official statistics are kept regarding successful retrial processes in Germany, the actual number of judicial errors is primarily the subject of more or less well-founded estimates by legal practitioners and journalists. However, there are a few newer empirical studies devoted to different facets of the subject. These studies will be discussed in this article in order to outline the state of empirical research on the legal reality of the retrial procedure. Against this background, the article will ultimately highlight currently discussed reforms and subject these to a critical evaluation as well. The aim of the recent reform efforts is to add a ground for retrial to the disadvantage of the defendant for cases in which new facts or evidence indicate that the acquitted person was guilty. After detailed discussion, the proposal in question is rejected, inter alia for constitutional reasons. |
Search result: 358 articles
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Journal | Erasmus Law Review, Issue 4 2020 |
Keywords | criminal proceedings, retrial in favour of the convicted, retrial to the disadvantage of the defendant, Germany, judicial errors |
Authors | Michael Lindemann and Fabienne Lienau |
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Journal | Erasmus Law Review, Issue 3 2020 |
Keywords | law and society, social change, discrimination, non-discrimination law, positive action |
Authors | Anita Böcker |
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A question that has preoccupied sociolegal scholars for ages is whether law can change ‘hearts and minds’. This article explores whether non-discrimination law can create social change, and, more particularly, whether it can change attitudes and beliefs as well as external behaviour. The first part examines how sociolegal scholars have theorised about the possibility and desirability of using law as an instrument of social change. The second part discusses the findings of empirical research on the social working of various types of non-discrimination law. What conclusions can be drawn about the ability of non-discrimination law to create social change? What factors influence this ability? And can non-discrimination law change people’s hearts and minds as well as their behaviour? The research literature does not provide an unequivocal answer to the latter question. However, the overall picture emerging from the sociolegal literature is that law is generally more likely to bring about changes in external behaviour and that it can influence attitudes and beliefs only indirectly, by altering the situations in which attitudes and opinions are formed. |
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Journal | Erasmus Law Review, Issue 3 2020 |
Keywords | Positive obligations, sexual minorities, sexual orientation, European law, human rights |
Authors | Alina Tryfonidou |
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This article seeks to examine the development of positive obligations under European law in the specific context of the rights of sexual minorities. It is clear that the law should respect and protect all sexualities and diverse intimate relationships without discrimination, and for this purpose it needs to ensure that sexual minorities can not only be free from state interference when expressing their sexuality in private, but that they should be given the right to express their sexuality in public and to have their intimate relationships legally recognised. In addition, sexual minorities should be protected from the actions of other individuals, when these violate their legal and fundamental human rights. Accordingly, in addition to negative obligations, European law must impose positive obligations towards sexual minorities in order to achieve substantive equality for them. The article explains that, to date, European law has imposed a number of such positive obligations; nonetheless, there is definitely scope for more. It is suggested that European law should not wait for hearts and minds to change before imposing additional positive obligations, especially since this gives the impression that the EU and the European Court of Human Rights (ECtHR) are condoning or disregarding persistent discrimination against sexual minorities. |
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Journal | Erasmus Law Review, Issue 3 2020 |
Keywords | Dehumanisation, International Human Rights Law, Positive State obligations, Framework Convention for the Protection of National Minorities, International Convention on the Elimination of all forms of Racial Discrimination |
Authors | Stephanie Eleanor Berry |
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International human rights law (IHRL) was established in the aftermath of the Second World War to prevent a reoccurrence of the atrocities committed in the name of fascism. Central to this aim was the recognition that out-groups are particularly vulnerable to rights violations committed by the in-group. Yet, it is increasingly apparent that out-groups are still subject to a wide range of rights violations, including those associated with mass atrocities. These rights violations are facilitated by the dehumanisation of the out-group by the in-group. Consequently, this article argues that the creation of IHRL treaties and corresponding monitoring mechanisms should be viewed as the first step towards protecting out-groups from human rights violations. By adopting the lens of dehumanisation, this article demonstrates that if IHRL is to achieve its purpose, IHRL monitoring mechanisms must recognise the connection between dehumanisation and rights violations and develop a positive State obligation to counter dehumanisation. The four treaties explored in this article, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Framework Convention for the Protection of National Minorities and the International Convention on the Elimination of all forms of Racial Discrimination, all establish positive State obligations to prevent hate speech and to foster tolerant societies. These obligations should, in theory, allow IHRL monitoring mechanisms to address dehumanisation. However, their interpretation of the positive State obligation to foster tolerant societies does not go far enough to counter unconscious dehumanisation and requires more detailed elaboration. |
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Journal | Erasmus Law Review, Issue 3 2020 |
Keywords | Human rights, positive state obligations, islamophobia, international supervisory mechanisms |
Authors | Kristin Henrard |
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Islamophobia, like xenophobia, points to deep-seated, ingrained discrimination against a particular group, whose effective enjoyment of fundamental rights is impaired. This in turn triggers the human rights obligations of liberal democratic states, more particularly states’ positive obligations (informed by reasonability considerations) to ensure that fundamental rights are effectively enjoyed, and thus also respected in interpersonal relationships. This article identifies and compares the fault lines in the practice of three international human rights supervisory mechanisms in relation to Islamophobia, namely the Human Rights Committee (International Covenant on Civil and Political Rights), the European Court of Human Rights (European Convention on Human Rights) and the Advisory Committee of the Framework Convention for the Protection of National Minorities. The supervisory practice is analysed in two steps: The analysis of each international supervisory mechanism’s jurisprudence, in itself, is followed by the comparison of the fault lines. The latter comparison is structured around the two main strands of strategies that states could adopt in order to counter intolerance: On the one hand, the active promotion of tolerance, inter alia through education, awareness-raising campaigns and the stimulation of intercultural dialogue; on the other, countering acts informed by intolerance, in terms of the prohibition of discrimination (and/or the effective enjoyment of substantive fundamental rights). Having regard to the respective strengths and weaknesses of the supervisory practice of these three international supervisory mechanisms, the article concludes with some overarching recommendations. |
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Journal | Erasmus Law Review, Issue 3 2020 |
Keywords | Transformative pedagogy, equality legislation, promotion of equality, law reform, using law to change hearts and minds |
Authors | Anton Kok, Lwando Xaso, Annalize Steenekamp e.a. |
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In this article, we focus on how the education system can be used to promote equality in the context of changing people’s hearts and minds – values, morals and mindsets. The duties contained in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘Equality Act’) bind private and public schools, educators, learners, governing bodies and the state. The Equality Act calls on the state and all persons to promote substantive equality, but the relevant sections in the Equality Act have not been given effect yet, and are therefore currently not enforceable. We set out how the duty to promote equality should be concretised in the Equality Act to inter alia use the education system to promote equality in schools; in other words, how should an enforceable duty to promote equality in schools be fashioned in terms of the Equality Act. Should the relevant sections relating to the promotion of equality come into effect in their current form, enforcement of the promotion of equality will take the form of obliging schools to draft action plans and submit these to the South African Human Rights Commission. We deem this approach inadequate and therefore propose certain amendments to the Equality Act to allow for a more sensible monitoring of schools’ duty to promote equality. We explain how the duty to promote equality should then play out practically in the classroom to facilitate a change in learners’ hearts and minds. |
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Journal | European Journal of Law Reform, Issue 3 2020 |
Keywords | contracts, sales, law reform, CISG, UNIDROIT Principles, Argentina, France, comparative law |
Authors | Edgardo Muñoz and Inés Morfín Kroepfly |
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The Argentine and the French civil codes have recently undergone substantial modifications to their contract law provisions. These novel statutes could serve as models for future B2B contract law reforms in Latin American jurisdictions and beyond, as former Argentine and French laws have done in the past. The authors offer a contribution that paves the way in that direction with a systematic comparative analysis. As a starting point, this article unveils the influence that the modern unified laws on contracts (UNIDROIT Principles on International Commercial Contracts (PICC) and United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG)) have in Argentina’s and France’s new contract law. It also highlights the most obvious similarities and differences in both sets of rules. This contribution goes beyond simple tertium comparisons; the authors analyse which of the two laws offers better, or more effective, rules to achieve the desired contract law functions in various matters. Readers are provided with the best rule or solution to address the problem in question and, as the authors hope, they should conclude that both models provide for a range of complementary solutions for modern contract law reforms. |
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The Windrush ScandalA Review of Citizenship, Belonging and Justice in the United Kingdom |
Journal | European Journal of Law Reform, Issue 3 2020 |
Keywords | Windrush generation, statelessness, right to nationality, genocide, apologetic UK Human Rights Act Preamble |
Authors | Namitasha Goring, Beverley Beckford and Simone Bowman |
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This article points out that the UK Human Rights Act, 1998 does not have a clear provision guaranteeing a person’s right to a nationality. Instead, this right is buried in the European Court of Human Rights decisions of Smirnova v Russia, 2003 and Alpeyeva and Dzhalagoniya v. Russia, 2018. In these cases, the Court stretched the scope of Article 8 of the European Convention on Human Rights, 1953 on non-interference with private life by public authorities to extend to nationality. The humanitarian crisis arising from the Windrush Scandal was caused by the UK Government’s decision to destroy the Windrush Generation’s landing cards in the full knowledge that for many these slips of paper were the only evidence of their legitimate arrival in Britain between 1948 and 1971. |
Response |
Restorative justice for hate crime in Scotland: the story so far |
Journal | The International Journal of Restorative Justice, Issue 3 2020 |
Authors | Rania Hamad and Gael Cochrane |
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Response |
Restorative justice domesticated |
Journal | The International Journal of Restorative Justice, Issue 3 2020 |
Authors | Lode Walgrave |
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Response |
Reconceptualising hate crime in a restorative framework |
Journal | The International Journal of Restorative Justice, Issue 3 2020 |
Authors | Robert Peacock |
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Notes from the field |
Twenty years of growing support for restorative justice: presenting the second edition of the UN Handbook |
Journal | The International Journal of Restorative Justice, Issue 3 2020 |
Authors | Jee Aei (Jamie) Lee and Yvon Dandurand |
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Notes from the field |
Developments in the use of restorative justice for hate crime |
Journal | The International Journal of Restorative Justice, Issue 3 2020 |
Authors | Mark Walters |
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Editorial |
Restorative justice myopia |
Journal | The International Journal of Restorative Justice, Issue 3 2020 |
Authors | Tali Gal |
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Article |
The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against HumanityIncitement/Conspiracy as Missing Modes of Liability |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | modes of liability, International Law Commission, crimes against humanity, incitement, conspiracy |
Authors | Joseph Rikhof |
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The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity does not include the inchoate crimes of conspiracy or incitement. However, this choice has generated a great deal of academic commentary. This article critically assesses the choice of the drafters to exclude conspiracy and incitement liability, arguing that their decision was flawed. It examines the comments made by academics, as well as participants in the work of the Commission on this draft convention. Additionally, it scrutinizes the methodology employed by the Commission in reaching this conclusion. Finally, it presents a conceptual analysis of the desirability for the inclusion of these two inchoate crimes, arguing that their inclusion would assist in meeting the policy of preventing crimes against humanity. |
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A Civil Society Perspective on the ILC Draft Convention on Crimes Against Humanity |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | crimes against humanity, impunity, aut dedere aut judicare, amnesties, reservations |
Authors | Hugo Relva |
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In a relatively short period of time, the International Law Commission has accomplished the impressive task of drafting and adopting the text of the Draft Articles on Prevention and Punishment of Crimes against Humanity. The Draft Articles circulated to states are promising. However, a number of substantive amendments appear to be necessary if the Draft Convention is to become a powerful tool “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”, as stated in the Preamble. Moreover, in order to avoid the rapid ossification of the new potential treaty, it is advisable for the articles to reflect the most significant developments in international law, and also allow for future progressive developments in the law, instead of reflecting a lowest common denominator acceptable to all states. This article suggests some revisions to existing provisions, new provisions which may make the text much stronger and finally identifies some important omissions which should be fixed by states at the time of adopting the Draft Convention. |
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The ILC Draft Articles on Crimes Against HumanityAn African Perspective |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | Africa, norm creation, crimes against humanity, colonial crimes, official immunity |
Authors | Alhagi B.M. Marong |
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Africa’s contribution towards the development of the International Law Commission (ILC) Draft Articles should not be assessed exclusively on the basis of the limited engagement of African States or individuals in the discursive processes within the ILC, but from a historical perspective. When analysed from that perspective, it becomes clear that Africa has had a long connection to atrocity crimes due to the mass victimization of its civilian populations during the colonial and postcolonial periods and apartheid in South Africa. Following independence in the 1960s, African States played a leading role in the elaboration of legal regimes to deal with international crimes such as apartheid, or in the development of accountability mechanisms to respond to such crimes. Although some of these efforts proved unsuccessful in the end, the normative consensus that was generated went a long way in laying the foundations for the Rome Statute of the International Criminal Court, which, in turn, influenced the conceptual framework of the ILC Draft Articles. This article proposes that given this historical nexus, the substantive provisions and international cooperation framework provided for in the future crimes against humanity convention, Africa has more reasons to support than to oppose it when negotiations begin at the United Nations General Assembly or an international diplomatic conference. |
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Time to DeliverDefining a Process Towards the Negotiation of a Convention on the Prevention and Punishment of Crimes Against Humanity |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | Sixth Committee, International Law Commission, intergovernmental negotiations, multilateral treaties, treaty-making process |
Authors | Pablo Arrocha Olabuenaga |
AbstractAuthor's information |
In 2019, the International Law Commission (ILC) adopted its articles on the prevention and punishment of crimes against humanity and referred them to the UN General Assembly with the recommendation of adopting a multilateral treaty based on them. The General Assembly’s Sixth Committee was unable to take a decision on this matter and deferred its consideration to 2020. This article focuses on how, in resuming its discussion, the Sixth Committee will have a unique opportunity to define the process towards intergovernmental negotiations. This will close a gap in international criminal law, while generating a new dynamic in its relationship with the ILC on codification, breaking its current cyclical inertia of inaction. |
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Crimes Against Humanity in the “Western European & Other” Group of StatesA Continuing Tradition |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | crimes against humanity, Western Europe and Other Group of States, WEOG, Draft Articles on the Prevention and Punishment of Crimes Against Humanity |
Authors | Beth Van Schaack |
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The Western Europe and Other Group of states have a long history with crimes against humanity. They were pivotal in the juridical creation of this concept, in launching prosecutions in both international and national courts, and in formulating the modern definition of the crime. However, some members have expressed concerns around the International Law Commissions Draft Articles on the Prevention and Punishment of Crimes Against Humanity. This article provides a summary of the history of crimes against humanity in the Western Europe and Other Group of states, as well as the current status of crimes against humanity in their legal systems. It argues that although these states have successfully incorporated crimes against humanity into their legal frameworks, it would be beneficial for them to embrace the proposed Crimes Against Humanity Convention. |