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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

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.

    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

Towards a restorative justice approach to white-collar crime and supra-individual victimisation

Journal The International Journal of Restorative Justice, Issue Online First 2022
Keywords restorative justice, white-collar crimes, supra-individual victimisation, spokespersons at restorative meetings, eligibility criteria
Authors Daniela Gaddi and María José Rodríguez Puerta
AbstractAuthor's information

    This work examines the feasibility of extending the implementation of restorative justice to the field of white-collar crime for a specific class of victimisation: that which people experience as a group (i.e. supra-individual victimisation). For this purpose, we analyse some key issues and outline a number of criteria for determining who would be able to speak on behalf of supra-individual victims of white-collar crime in restorative meetings. Some initial proposals are offered, based on four types of supra-individual victimisation, which would provide a framework for the selection of spokespersons who could attend restorative meetings in restoratively oriented criminal proceedings.


Daniela Gaddi
Daniela Gaddi is an Adjunct Professor of Criminology and Criminal Law at the Universidad Autónoma de Barcelona (UAB), Spain and a community mediator.

María José Rodríguez Puerta
María José Rodríguez Puerta is Professor of Criminal Law at the Universidad Autónoma de Barcelona (UAB), Spain. Corresponding author: Daniela Gaddi, daniela.gaddi@uab.cat.
Article

Access_open Living with Others in Pandemics

The State’s Duty to Protect, Individual Responsibility and Solidarity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords SARS-CoV-2 pandemic, The state’s duty to protect, Duty to rescue, Responsibility, Solidarity
Authors Konstantinos A Papageorgiou
AbstractAuthor's information

    The article discusses a range of important normative questions raised by anti-COVID-19 measures and policies. Do governments have the right to impose such severe restrictions on individual freedom and furthermore do citizens have obligations vis-à-vis the state, others and themselves to accept such restrictions? I will argue that a democratic state may legitimately enforce publicly discussed, properly enacted and constitutionally tested laws and policies in order to protect its citizens from risks to life and limb. Even so, there is a natural limit, factual and normative, to what the state or a government can do in this respect. Citizens will also need to take it upon themselves not to harm and to protect others and in the context of a pandemic this means that endorsement of restrictions or other mandatory measures, notably vaccination, is not to be seen as a matter of personal preference concerning the supposedly inviolable sovereignty of one’s own body.


Konstantinos A Papageorgiou
Konstantinos A Papageorgiou is Professor of the Philosophy of Law at the National and Kapodistrian University of Athens, School of Law.

    Terms-of-service based actions against political and state actors as both key subjects and objects of political opinion formation have become a focal point of the ongoing debates over who should set and enforce the rules for speech on online platforms.
    With minor differences depending on national contexts, state regulation of platforms creating obligations to disseminate such actors’ information is considered dangerous for the free and unhindered discursive process that leads to the formation of public opinions.
    Reactions to the suspension of Trump as not the first, but the most widely discussed action of platform companies against a politician (and incumbent president) provide a glimpse on the state of platform governance debates across participating countries.
    Across the countries surveyed politicians tend to see the exercise of content moderation policies of large platform companies very critically
    The majority of politicians in European countries seem to be critical of the deplatforming of Trump, emphasizing fundamental rights and calling for such decisions to be made by states, not private companies
    These political standpoints stand in an unresolved conflict with the constitutional realities of participating countries, where incumbents usually cannot invoke fundamental rights when acting in their official capacities and where laws with “must carry” requirements for official information do not exist for social media and would likely only be constitutional for narrowly defined, special circumstances such as disaster prevention.
    Facebooks’ referral of the Trump-decision to its Oversight Board sparked a larger debate about institutional structures for improving content governance. The majority of participating countries has experience with self- or co-regulatory press-, media- or broadcasting councils to which comparisons can be drawn, foreshadowing the possible (co-regulatory) future of governing online speech.
    Media commentators in participating countries interpreted the deplatforming of Trump as a signal that far-right parties and politicians around the world may face increasing scrutiny, while conservative politicians and governments in multiple participating countries instrumentalized the actions against Trump as supposed proof of platform’s bias against conservative opinions.
    Even without specific legal requirements on content moderation, submissions from several countries refer to a general – often: constitutional – privileging of speech of politicians and office holders. This could potentially support or even compel the decisions of platforms to leave content of political actors up even if it violates their terms of service.


Martin Fertmann
Martin Fertmann is a PhD student at the Leibniz-Institut für Medienforschung | Hans-Bredow-Institut’s research programme “Regulatory Structures and the Emergence of Rules in Online Spaces”

Matthias C. Kettemann
Prof. dr. Matthias C. Kettemann, LL.M. (Harvard) is head of the research programme “Regulatory Structures and the Emergence of Rules in Online Spaces” at the Leibniz Institute for Media Research | Hans-Bredow-Institut.

    An Employment Tribunal (ET) decision involving an advertising agency has highlighted the dangers for employers of taking an overly aggressive approach to reducing gender pay gaps. It also provides a reminder that all discrimination is unlawful, even where the victims are from a historically privileged group.


Colin Leckey
Colin Leckey is a partner at Lewis Silkin LLP.
Article

Access_open Victims’ Fundamental Need for Safety and Privacy and the Role of Legislation and Empirical Evidence

Journal Erasmus Law Review, Issue 3 2021
Keywords needs for safety, victim impact statements, legislation, Empirical Legal Studies, privacy protection
Authors Marijke Malsch
AbstractAuthor's information

    Various laws, guidelines and other types of regulation have been created that introduced new rights worldwide for victims of crime. Many of these rights focus on active victims who wish to step into the open and to orally express their views and experiences in court. Rights and wishes to remain in the background and to preserve one’s privacy received less attention. This article focuses primarily on the wishes of victims that reveal their intention to not play an active role in the criminal process, and on victims who fear an invasion of their safety and privacy. According to the literature, such wishes and needs can be considered to be fundamental. The article questions the empirical basis for the present victim legislation: are the new laws that have been created over the decades founded on empirically established victim needs, or on presumed victim needs? The article concludes with a plea for a more extensive use of empirical findings that shed light on victim wishes in the legislation and the criminal process.


Marijke Malsch
Marijke Malsch is Professor of Empirical Legal Studies at Open Universiteit Netherlands.
Article

Access_open Dutch Penal Protection Orders in Practice

A Study of Aims and Outcomes

Journal Erasmus Law Review, Issue 3 2021
Keywords enforcement practice, victim safety, street level bureaucracy, criminal justice chain, penal protection orders
Authors Tamar Fischer and Sanne Struijk
AbstractAuthor's information

    Penal protection orders (PPOs) aim to protect initial victims from repeat victimisation and in a broader sense from any danger for his or her dignity or psychological and sexual integrity and may therefore be important instruments for victim safety. However, knowledge on the actual practice of the PPOs and the successes, dilemmas and challenges involved is scarce. In this article, we describe the legal framework and actual enforcement practice of Dutch PPOs. The theoretical framework leading our explorative analyses regards Lipsky’s notion of ‘street-level bureaucracy’ and the succeeding work of Maynard & Musheno and Tummers on coping strategies and agency narratives of frontline workers. Using interview data from criminal justice professionals, victims and offenders, we describe the conditions of the enforcement practice and answer the question which coping mechanisms and types of agencies the professionals tend to apply in order to meet the legislative aims and to protect victims as effectively as possible. Results show that the five conditions described by Lipsky are clearly present. So far, in almost all situations the process of monitoring violations is reactive and because knowledge on risk indicators for violent escalation is still limited, it is difficult for frontline workers to decide how many and what type of resources should be invested in which cases. This results in a ‘moving away from clients’ strategy. However, within this context in which reactive enforcement is the default, we also found several examples of coping that represent ‘moving towards clients’ strategies.


Tamar Fischer
Tamar Fischer is Associate Professor of Criminology at the Erasmus Universiteit Rotterdam, the Netherlands.

Sanne Struijk
Sanne Struijk is Professor of Penal Sanctions Law and associate professor of Criminal Law at the Erasmus University Rotterdam, the Netherlands.
Article

Access_open How Do Victims With the Need for Protection Judge Their Experiences With the Police in the Netherlands?

An Exploration

Journal Erasmus Law Review, Issue 3 2021
Keywords victim needs, protection, reasons to report, contribution to safety, police information, victim-offender relationship
Authors Annemarie ten Boom
AbstractAuthor's information

    This article presents a preliminary analysis of how victims who report to the police for protection in the Netherlands judge their experiences with the police, in comparison with victims reporting crimes for other reasons. An existing dataset was used: the data was originally collected for a comprehensive survey among crime victims of 12 years and older in 2016. Female victims of violent (sexual and non-sexual) crimes constitute the major part of the victims for whom protection is the most important reporting reason. Victim perceptions of police contribution to safety as well as police information were investigated. The analyses show that overall, victim perceptions of the police’s contribution to safety are rather negative. Contribution to safety is judged somewhat better by victims for whom protection is their most important reporting reason; however, the respondents who are positive still form a minority. Police information is judged positively by more victims than contribution to safety. Of the respondents for whom protection is a reporting reason, victims of sexual crimes appear to judge police information positively more often than victims of other crime types.


Annemarie ten Boom
Annemarie ten Boom, PhD, was a researcher at the WODC, Ministry of Justice and Security in the Netherlands until February 2022.

    This article refers to the problem of the Roman Catholic Church’s liability for the damages caused by sexual abuse of children by priests. The author points to the base of liability – the respondeat superior principle and analyses the problem of the ‘scope of entrusted duties’. The major problem arises from the fact that sexual abuse can never be the subject of any legally effective contract or the activities entrusted by the superior, but it happens only ‘when the opportunity arises’ – during the performance of actual activities covered by scope of the contract, for example, caring for minors, their education, treatment or spiritual formation. However, the problem is wider because sexual crimes can also occur in non-Catholic churches and other religious institutions, as well as all those places and institutions whose employees enter into special trust relationships with minors or adult people with special needs (for sick or disabled). This article refers to the experiences from various countries and presents two methods of its possible interpretation of the concept of the ‘scope of entrusted duties’ – strict and liberal, as well as the ‘enhanced risk theory’. The author also proposes her own method of solving the problem.


Anna Wilk
Dr. Anna Wilk, WSB University, Dąbrowa Górnicza, Poland.
Article

Sustainability in Global Supply Chains Under the CISG

Journal European Journal of Law Reform, Issue 3 2021
Keywords CISG, sustainability, supply chains, UN Global Compact, Codes of Conduct, conformity of the goods
Authors Ingeborg Schwenzer and Edgardo Muñoz
AbstractAuthor's information

    In this article, the authors assert that the United Nations Convention for the International Sale of Goods (CISG) can contribute to tackling gaps in statutory legislation and defective business conduct that have been associated with unsustainable trade in Global Supply Chains (GSCs). The authors provide evidence that the CISG contains rules enabling a general legal framework for establishing uniform sustainable standards for goods concerning suppliers, sellers and buyers located in different countries. For instance, the CISG provisions on contract formation ease the incorporation of joint codes of conduct for sustainable trade in GSCs. In addition, the contracting parties’ circumstances and current trade usages are now more relevant to determine what constitutes conformity of the goods under the contract and the default warranties in Article 35 CISG. On the level of remedies, the authors show that best-efforts provisions, possibly included in a code of conduct or inferred from standards applicable to the goods, may redefine the notion of impediment in Article 79 CISG, which could lead to exoneration of liability for the seller. They also demonstrate why fundamental breach and the calculation of damages are at the centre of the discussion regarding the remedies for breach of an obligation to deliver sustainable goods.


Ingeborg Schwenzer
Ingeborg Schwenzer is Dean of the Swiss International Law School (SiLS), Professor emerita of Private Law at the University of Basel (Switzerland) and past Chair of the CISG Advisory Council. Dr. iur. (Freiburg i.Br.), LLM (UC Berkeley).

Edgardo Muñoz
Edgardo Muñoz is Professor of Law, Universidad Panamericana. Facultad de Derecho. Calzada Álvaro del Portillo 49, Zapopan, Jalisco, 45010, México. PhD (Basel), LLM (UC Berkeley), LLM (Liverpool), LLB (UIA Mexico), DEUF (Lyon). This research has been funded by Universidad Panamericana through the grant ‘Fomento a la Investigación UP 2020’, under project code UP-CI-2020-GDL-04-DER.
Article

Access_open Victim-Offender Contact in Forensic Mental Health

Resocialisation and Victim Acknowledgement During the Execution of the Dutch TBS Order

Journal Erasmus Law Review, Issue 3 2021
Keywords victim-offender contact, resocialisation, victim acknowledgement, forensic psychiatry, mentally disordered offenders
Authors Lydia Dalhuisen and Alice Kirsten Bosma
AbstractAuthor's information

    Crime victims have gained a stronger position in all phases of the criminal procedure, including the post-sentencing phase. It is in this phase specifically that victims’ needs and interests relating to acknowledgement interplay with the offenders’ needs and interests relating to resocialisation. In the Netherlands, offenders who suffer from a mental disorder at the time of the offence limiting their criminal accountability and pose a significant safety threat, can be given a TBS order. This means that they are placed in a forensic psychiatric hospital to prevent further crimes and receive treatment aimed at resocialisation. As resocialisation requires the offender to return to society, contact with the victim might be a necessary step. This article focuses on victim-offender contact during the execution of this TBS order, and looks at risks and opportunities of victim-offender contact in this context, given the particular offender population. Offenders are divided into three groups: those with primarily psychotic disorders, those suffering from personality disorders and those with comorbidity, especially substance abuse disorders. The TBS population is atypical compared to offenders without a mental disorder. Their disorders can heighten the risks of unsuccessful or even counterproductive victim-offender contact. Yet, carefully executed victim-offender contact which includes thorough preparation, managing expectations and choosing the right type of contact can contribute to both successful resocialisation as well as victim acknowledgement.


Lydia Dalhuisen
Lydia Dalhuisen, PhD, is Assistant Professor at the Utrecht University, the Netherlands.

Alice Kirsten Bosma
Alice Kirsten Bosma is Assistant Professor at the Faculty of Law of Tilburg University, the Netherlands.
Public Health Emergency: National, European and International Law Responses

European State Aid Rules in Times of Pandemic

Distorting Competition Between European Airlines?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords state aid, air transport, airlines, COVID-19 pandemic, Ryanair
Authors Mónika Papp
AbstractAuthor's information

    The outbreak of the COVID-19 pandemic had an immediate and profound impact on mobility and, more specifically, on air passenger transport: airlines were quickly stranded, and the Member States granted aid to air carriers subject to specific eligibility criteria. The Commission reacted swiftly to challenges posed by the COVID-19 pandemic and adopted its Temporary Framework under which vast amounts could be disbursed to market operators. The most controversial eligibility condition set by the Member States is the holding of a national license. This article’s research questions are, first, to explore the conditions under which Member States can grant large amounts of state aid to airlines, and second, to assess whether the requirement to hold a national license is compatible with EU law. By addressing these issues, this article seeks to improve our understanding of EU law’s capacity to tackle distortions of competition.


Mónika Papp
Mónika Papp: research fellow, Centre for Social Sciences, Eötvös Loránd Research Network, Budapest; senior lecturer, ELTE Law School, Budapest.

Ezzat Fattah
Ezzat A. Fattah is Professor Emeritus at Simon Fraser University, Canada. Contact author: efattah@telus.net.

Jan Tomasek
Jan Tomasek is a researcher at the Institute of Criminology and Social Prevention, Prague, Czech Republic. Contact author: jtomasek@iksp.justice.cz.
Article

Exploring the growth and development of restorative justice in Bangladesh

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords restorative justice, Bangladesh, salish, village courts, INGOs
Authors Muhammad Asadullah and Brenda Morrison
AbstractAuthor's information

    Although restorative justice is a new concept in Bangladesh (BD), resolving wrongdoing outside the criminal justice system is not a new practice. Community-based mediation, known as salish, has been practised for centuries – withstanding colonisation, adaptation and distortion. Other practices, such as village courts and customary justice, are also prevalent in Bangladesh. Of these, village courts are currently the most widely practised in Bangladesh. Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ Bangladesh) formally introduced restorative justice in 2013 with the support of international non-governmental organisations (INGOs), NGOs, academics and government agencies. Most of the literature on community-based justice practice focuses on village courts; academic, peer-reviewed research on restorative justice in Bangladesh is scarce. This qualitative study explores the growth and development of restorative justice in Bangladesh. Using in-depth qualitative interviews and survey, the study retraces the genesis of restorative justice in Bangladesh. In recent times, GIZ Bangladesh has been key to the development of restorative justice, which was further expanded by UNDP’s Activating Village Courts project, as well as a graduate course on restorative justice at the University of Dhaka. This study also finds contentious themes raised by the key informants, specifically the role of INGOs, government and community.


Muhammad Asadullah
Muhammad Asadullah is Assistant Professor at the Department of Justice Studies, University of Regina, Canada.

Brenda Morrison
Brenda Morrison is Associate Professor at the School of Criminology, Simon Fraser University, Canada. Contact author: Muhammad.Asadullah@uregina.ca.
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