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Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The English Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Dangerous, sex offenders, human rights, community supervision, punishment
Authors Nicola Padfield
AbstractAuthor's information

    This article explores the legal constraints imposed on the rising number of so-called ‘dangerous’ sex offenders in England and Wales, in particular once they have been released from prison into the community. The main methods of constraint are strict licence conditions, Multi-Agency Public Protection Arrangements and civil protective orders such as Sexual Harm Prevention Orders. ‘Control’ in the community is thus widespread, but is difficult to assess whether it is either effective or necessary without a great deal more research and analysis. Post-sentence ‘punishment’ has been largely ignored by both academic lawyers and criminologists. The article concludes that financial austerity might prove to be as important as the human rights agenda in curbing the disproportionate use of powers of control.


Nicola Padfield
Nicola Padfield, MA, Dip Crim, DES, Reader in Criminal and Penal Justice, University of Cambridge. I thank Michiel van der Wolf for involving me in this project and for his many useful insights and comments.
Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The Spanish Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Supervised release, supervision, sex offenders, dangerousness, safety measures, societal upheaval, proportionality
Authors Lucía Martínez Garay and Jorge Correcher Mira
AbstractAuthor's information

    This article presents an overview of the legal regime provided in the Spanish system of criminal sanctions regarding the control of dangerous sex offenders in the community. It focuses on the introduction, in 2010, of a post-prison safety measure named supervised release. We describe the context of its introduction in the Spanish Criminal Code, considering the influence of societal upheaval concerning dangerous sex offenders in its development, and also the historical and theoretical features of the Spanish system of criminal sanctions. We also analyse the legal framework of supervised release, the existing case law about it and how the legal doctrine has until now assessed this measure. After this analysis, the main aim of this article consists in evaluating the effectiveness and the proportionality of the measure, according to the principle of minimal constraints and the rehabilitative function of the criminal sanctions in Spanish law, stated in Article 25.2 of the Spanish Constitution.


Lucía Martínez Garay
Lucía Martínez Garay is a Senior Lecturer at the University of Valencia, Department of Criminal Law.

Jorge Correcher Mira
Jorge Correcher Mira, Ph.D., is an Assistant Lecturer at the University of Valencia, Department of Criminal Law.
Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The Dutch Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Dutch penal law, preventive supervision, dangerous offenders, human rights, social rehabilitation
Authors Sanne Struijk and Paul Mevis
AbstractAuthor's information

    In the Netherlands, the legal possibilities for post-custodial supervision have been extended considerably in recent years. A currently passed law aims to further increase these possibilities specifically for dangerous (sex) offenders. This law consists of three separate parts that may all result in life-long supervision. In the first two parts, the supervision is embedded in the conditional release after either a prison sentence or the safety measure ‘ter beschikking stelling’ (TBS). This paper focuses on the third part of the law, which introduces an independent supervisory safety measure as a preventive continuation of both a prison sentence and the TBS measure. Inevitably, this new independent sanction raises questions about legitimacy and necessity, on which this paper reflects from a human rights perspective. Against the background of the existing Dutch penal law system, the content of the law is thoroughly assessed in view of the legal framework of the Council of Europe and the legal principles of proportionality and less restrictive means. In the end, we conclude that the supervisory safety measure is not legitimate nor necessary (yet). Apart from the current lack of (empirical evidence of) necessity, we state that there is a real possibility of an infringement of Article 5(4) ECHR and Article 7 ECHR, a lack of legitimising supervision ‘gaps’ in the existing penal law system, and finally a lack of clear legal criteria. Regardless of the potential severity of violent (sex) offenses, to simply justify this supervisory safety measure on the basis of ‘better safe than sorry’ is not enough.


Sanne Struijk
Sanne Struijk, Ph.D., is an Associate Professor at the Erasmus School of Law.

Paul Mevis
Paul Mevis is a Professor at the Erasmus School of Law.
Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The French Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Preventive detention, mandatory supervision, sex offenders, retrospective penal laws, legality principle
Authors Martine Herzog-Evans
AbstractAuthor's information

    France literally ‘discovered’ sexual abuse following neighbour Belgium’s Dutroux case in the late 1990s. Since then, sex offenders have been the focus of politicians, media and law-makers’ attention. Further law reforms have aimed at imposing mandatory supervision and treatment, and in rare cases, preventive detention. The legal framework for mandatory supervision and detention is rather complex, ranging from a mixed sentence (custodial and mandatory supervision and treatment upon release or as a stand-alone sentence) to so-called ‘safety measures’, which supposedly do not aim at punishing an offence, but at protecting society. The difference between the concepts of sentences and safety measures is nevertheless rather blurry. In practice, however, courts have used safety measures quite sparingly and have preferred mandatory supervision as attached to a sentence, notably because it is compatible with cardinal legal principles. Procedural constraints have also contributed to this limited use. Moreover, the type of supervision and treatment that can thus be imposed is virtually identical to that of ordinary probation. It is, however, noteworthy that a higher number of offenders with mental health issues who are deemed ‘dangerous’ are placed in special psychiatric units, something that has not drawn much attention on the part of human rights lawyers.


Martine Herzog-Evans
Martine H-Evans, PhD, is a Professor at the Department of Law, Universite de Reims Champagne-Ardenne.
Article

Access_open Harmony, Law and Criminal Reconciliation in China: A Historical Perspective

Journal Erasmus Law Review, Issue 1 2016
Keywords Criminal reconciliation, Confucianism, decentralisation, centralisation
Authors Wei Pei
AbstractAuthor's information

    In 2012, China revised its Criminal Procedure Law (2012 CPL). One of the major changes is its official approval of the use of victim-offender reconciliation, or ‘criminal reconciliation’ in certain public prosecution cases. This change, on the one hand, echoes the Confucian doctrine that favours harmonious inter-personal relationships and mediation, while, on the other hand, it deviates from the direction of legal reforms dating from the 1970s through the late 1990s. Questions have emerged concerning not only the cause of this change in legal norms but also the proper position of criminal reconciliation in the current criminal justice system in China. The answers to these questions largely rely on understanding the role of traditional informal dispute resolution as well as its interaction with legal norms. Criminal reconciliation in ancient China functioned as a means to centralise imperial power by decentralizing decentralising its administration. Abolishing or enabling such a mechanism in law is merely a small part of the government’s strategy to react to political or social crises and to maintain social stability. However, its actual effect depends on the vitality of Confucianism, which in turn relies on the economic foundation and corresponding structure of society.


Wei Pei
Wei Pei, Ph.D., is an Associate Professor at the Beihang School of Law in the Beihang University.
Article

Access_open A Law and Economics Approach to Norms in Transnational Commercial Transactions: Incorporation and Internalisation

Journal Erasmus Law Review, Issue 1 2016
Keywords Incorporation and internalisation, transnational commercial transactions, transnational commercial norms
Authors Bo Yuan
AbstractAuthor's information

    In today’s global economy, a noticeable trend is that the traditional state-law-centred legal framework is increasingly challenged by self-regulatory private orders. Commercial norms, commercial arbitration and social sanctions at the international level have become important alternatives to national laws, national courts and legal sanctions at the national level. Consisting of transnational commercial norms, both codified and uncodified, and legal norms, both national and international, a plural regime for the governance of transnational commercial transactions has emerged and developed in the past few decades. This article explores the interaction between various kinds of norms in this regime, identifies the effects of this interaction on the governance of transnational commercial transactions and shows the challenges to this interaction at the current stage. The central argument of this article is that the interaction between social and legal norms, namely incorporation and internalisation, and the three effects derived from incorporation and internalisation, namely systematisation, harmonisation and compliance enhancement, are evident at both the national and international levels. In particular, the emergence of codified transnational commercial norms that are positioned in the middle of the continuum between national legal norms and uncodified transnational commercial norms has brought changes to the interaction within the international dimension. Although the development of codified transnational commercial norms faces several challenges at the moment, it can be expected that these norms will play an increasingly important role in the future governance of transnational commercial transactions.


Bo Yuan
Bo Yuan is a Ph.D. candidate at the Erasmus University Rotterdam, Department of Law and Economics.
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