This paper provides first of all the introduction to this special issue on ‘Legal constraints on the indeterminate control of “dangerous” sex offenders in the community: A European comparative and human rights perspective’. The issue is the outcome of a study that aims at finding the way legal control can not only be an instrument but also be a controller of social control. It is explained what social control is and how the concept of moral panic plays a part in the fact that sex offenders seem to be the folk devils of our time and subsequently pre-eminently the target group of social control at its strongest. Further elaboration of the methodology reveals why focussing on post-sentence (indeterminate) supervision is relevant, as there are hardly any legal constraints in place in comparison with measures of preventive detention. Therefore, a comparative approach within Europe is taken on the basis of country reports from England and Wales, France, Germany, The Netherlands and Spain. In the second part of the paper, the comparative analysis is presented. Similar shifts in attitudes towards sex offenders have led to legislation concerning frameworks of supervision in all countries but in different ways. Legal constraints on these frameworks are searched for in legal (sentencing) theory, the principles of proportionality and least intrusive means, and human rights, mainly as provided in the European Convention on Human Rights to which all the studied countries are subject. Finally, it is discussed what legal constraints on the control of sex offenders in the community are (to be) in place in European jurisdictions, based on the analysis of commonalities and differences found in the comparison. |
Search result: 67 articles
Year 2016 xEditorial |
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Journal | Erasmus Law Review, Issue 2 2016 |
Keywords | social control, folk devils, moral panic, dangerousness, sex offenders |
Authors | Michiel van der Wolf (Issue Editor) |
AbstractAuthor's information |
Article |
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Journal | Erasmus Law Review, Issue 2 2016 |
Keywords | Supervision, twin track system, principle of proportionality, human rights, violent and sex offenders |
Authors | Bernd-Dieter Meier |
AbstractAuthor's information |
After release from prison or a custodial preventive institution, offenders may come under supervision in Germany, which means that their conduct is controlled for a period of up to five years or even for life by a judicial supervising authority. Supervision is terminated if it can be expected that even in the absence of further supervision the released person will not commit any further offences. From the theoretical point of view, supervision is not considered a form of punishment in Germany, but a preventive measure that is guided by the principle of proportionality. After a presentation of the German twin track system of criminal sanctions and a glimpse at sentencing theory, the capacity of the principle of proportionality to guide and control judicial decisions in the field of preventive sanctions is discussed. The human rights perspective plays only a minor role in the context of supervision in Germany. |
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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. |
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Journal | Erasmus Law Review, Issue 2 2016 |
Keywords | Preventive detention, mandatory supervision, sex offenders, retrospective penal laws, legality principle |
Authors | Martine Herzog-Evans |
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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. |
Article |
The Role of ODR in Resolving Electronic Commerce Disputes in China |
Journal | International Journal of Online Dispute Resolution, Issue 1 2016 |
Keywords | ODR, China, electronic commerce disputes |
Authors | Jie Zheng |
AbstractAuthor's information |
Online dispute resolution (ODR) has been developed in response to the growth of disputes in electronic commerce transactions. It is based on the legal framework of alternative dispute resolution (ADR) by taking into consideration electronic communications and information technology. This article will introduce the current legal framework and practice of ODR in China, find legal issues that affect the development of ODR and, finally, propose suggestions to overcome these barriers. |
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Is ODR ADR?Reflections of an ADR Founder from 15th ODR Conference, The Hague, The Netherlands, 22-23 May 2016 |
Journal | International Journal of Online Dispute Resolution, Issue 1 2016 |
Keywords | alternative dispute resolution, justice, process pluralism, dispute system design, history of conflict resolution |
Authors | Carrie Menkel-Meadow |
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This essay presents the observations of a founder of the dispute resolution field to new developments in online dispute resolution, expressing both concerns and hopes for greater access to justice. |
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Journal | Corporate Mediation Journal, Issue 1 2016 |
Authors | Martin Brink |
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What is there to learn about managing conflict or negotiation that you do not already know? How can mediation techniques make a difference in achieving your personal goals and advance the objectives of your organisation even when there is no conflict? How can new skills benefit all management levels and change the role of the legal department? |
Article |
Quo Vadis, Europa?Loopholes in the EU Law and Difficulties in the Implementation Process |
Journal | European Journal of Law Reform, Issue 2 2016 |
Keywords | EU Law, Quality of Legislation, Loopholes, Implementation, Joint Practical Guide |
Authors | Markéta Whelanová |
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EU law is a very wide-ranging legal system that comprises thousands of legal acts. It endeavours to regulate many relationships in the Member States of the European Union and effects everyday lives both of individuals and public bodies. EU law is, however, not always positively accepted. Such non-acceptance often follows from the increasing number of cases when EU law cannot be effectively applied on the national level. Significant reason for that lies in the poor quality of EU law. |
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Defining ‘Better’Investigating a New Framework to Understand Quality of Regulation |
Journal | European Journal of Law Reform, Issue 2 2016 |
Keywords | better regulation, businesses, cross-disciplinary approaches, quality of regulation, European Union |
Authors | Morten Jarlbæk Pedersen |
AbstractAuthor's information |
Better regulation is a political and scholarly theme, which has gained in both relevance and salience throughout the last two decades or so. Regulatory quality is the epicentre of these discussions. Despite this, quality is seldom conceptualized in its own right. Thus, beyond loose principles, we are rarely aware of what we mean by ‘better’ regulation, and academic discussions hereof usually centre themselves on other topics such as meta-regulation and processes. This leaves the notion of quality hard to asses especially from a comparative perspective. In this article, a core concept of quality is suggested. This concept is founded on an acknowledgement of the importance of the legal texts when it comes to achieving regulatory aims and objectives. The concept and methodology proposed has components from both law and political science and is sought to be of relevance to scholars and practitioners alike. |
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The Quality of Regulation in the Service of Preventing CorruptionCorruption Impact Assessment (CIA) |
Journal | European Journal of Law Reform, Issue 2 2016 |
Keywords | corruption, regulation, quality, impact assessment, risk |
Authors | Luca Di Donato |
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This article describes the Corruption Impact Assessment (CIA), which is a better regulation tool suggested by the OECD, with the fundamental purpose to enhance the regulatory quality. |
Article |
Comparative Legislative DraftingComparing across Legal Systems |
Journal | European Journal of Law Reform, Issue 2 2016 |
Keywords | comparative legislative drafting, comparative law, drafting process |
Authors | Constantin Stefanou |
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This article is an original, first attempt at establishing a list of comparative criteria for the comparative study of legislative drafting or aspects of legislative drafting between the two families of legal systems: common law and civil law. Because of the limited bibliography in the field of legislative drafting – let alone in comparative legislative drafting between common law and civil law systems – this article adds to existing scholarship on the field aiming to become a basis for further comparative research in legislative drafting. The list of criteria can be used on its own for different jurisdictions within the same family of legal systems, or the two lists can be used to juxtapose civil and common law experiences in legislative drafting. As this is the first time that such lists of comparative criteria in legislative drafting have been produced, it should be stressed that the lists are certainly not exhaustive. The aim of this article is to generate comparative research in legislative drafting, and so, inevitably, such comparative research might add or even subtract criteria from the lists depending on results. |
Article |
Enforcement of Judgments in SEE, CIS, Georgia and MongoliaChallenges and Solutions |
Journal | European Journal of Law Reform, Issue 2 2016 |
Keywords | enforcement, bailiffs, judgments, CIS, SEE |
Authors | Kim O’Sullivan and Veronica Bradautanu |
AbstractAuthor's information |
The article considers the results of the Assessment of enforcement systems for commercial cases, carried out by the European Bank for Reconstruction and Development (EBRD) in 2013-2014. In phase I the Assessment looked at the systems in thirteen countries, namely Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyz Republic, Moldova, Mongolia, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan (“CIS+ region”); and in phase II another eight countries were reviewed: Albania, Bosnia and Herzegovina, Croatia, FYR Macedonia, Kosovo, Montenegro, Serbia and Slovenia (“SEE region”). |
ECJ Court Watch |
ECJ 21 September 2016, case C-631/15 (Alvarez Santirso), Fixed-term employmentCarlos Alvarez Santirso – v – Consejería de Educación, Cultura y Deporte del Principado de Asturias |
Journal | European Employment Law Cases, Issue 4 2016 |
Keywords | Fixed-term work |
Abstract |
Spanish law which reserves participation in evaluation plans for teachers contravenes Directive 1999/70. |
Article |
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Journal | Erasmus Law Review, Issue 3 2016 |
Keywords | E-health, e-mental health, right to health, right to mental health |
Authors | Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj |
AbstractAuthor's information |
People with mental illness usually experience higher rates of disability and mortality. Often, health care systems do not adequately respond to the burden of mental disorders worldwide. The number of health care providers dealing with mental health care is insufficient in many countries. Equal access to necessary health services should be granted to mentally ill people without any discrimination. E-mental health is expected to enhance the quality of care as well as accessibility, availability and affordability of services. This paper examines under what conditions e-mental health can contribute to realising the right to health by using the availability, accessibility, acceptability and quality (AAAQ) framework that is developed by the Committee on Economic, Social and Cultural Rights. Research shows e-mental health facilitates dissemination of information, remote consultation and patient monitoring and might increase access to mental health care. Furthermore, patient participation might increase, and stigma and discrimination might be reduced by the use of e-mental health. However, e-mental health might not increase the access to health care for everyone, such as the digitally illiterate or those who do not have access to the Internet. The affordability of this service, when it is not covered by insurance, can be a barrier to access to this service. In addition, not all e-mental health services are acceptable and of good quality. Policy makers should adopt new legal policies to respond to the present and future developments of modern technologies in health, as well as e-Mental health. To analyse the impact of e-mental health on the right to health, additional research is necessary. |
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Journal | Erasmus Law Review, Issue 4 2016 |
Keywords | Corporate security, private investigations, private troubles, public/private differentiation |
Authors | Clarissa Meerts |
AbstractAuthor's information |
This article explores the investigative methods used by corporate security within organisations concerned about property misappropriation by their own staff and/or others. The research methods are qualitative: interviews, observations and case studies carried out between October 2012 and November 2015. The findings include that, even though corporate investigators do not have the formal investigative powers enjoyed by police and other public agencies, they do have multiple methods of investigation at their disposal, some of which are less used by public investigative agencies, for example the in-depth investigation of internal systems. Corporate investigators also rely heavily on interviews, the investigation of documentation and financial administration and the investigation of communication devices and open sources. However, there are many additional sources of information (for example, site visits or observations), which might be available to corporate investigators. The influences from people from different backgrounds, most notably (forensic) accountants, (former) police officers, private investigators and lawyers, together with the creativity that is necessary (and possible) when working without formal investigative powers, make corporate security a diverse field. It is argued that these factors contribute to a differentiation between public and private actors in the field of corporate security. |
Article |
Prohibition of Discrimination: Citizenship as a Possible Discrimination Basis |
Journal | European Journal of Law Reform, Issue 3 2016 |
Keywords | anti-discrimination law, Serbian Law, harmonization, right to a personal name, European Court of Justice |
Authors | Olga Jović-Prlainović and Jelena Belović |
AbstractAuthor's information |
In modern society, the right to equality is not just a universal moral obligation; it is rather an expression of a generally accepted rule in international law that all people have equal rights, independently of differences based on innate or acquired personal characteristics. Prohibition of discrimination is a civilization heritage, and it is determined by systematically overcoming prejudices and stereotypes as key factors of discrimination, where educational institutions, media, public authority, and non-governmental organizations all have a vital role. Tackling with discrimination is not just the application of rules regulated by law and taking necessary measures towards social groups which are in an unequal position, but it is also a continuous development of tolerance when it comes to ethnicity, religion, gender, minorities, as well as acceptance of the existing interpersonal differences. It is well known that the area of West Balkans is often a breeding ground where stereotypes and prejudices thrive for decades. The strategic aim of the Republic of Serbia is membership in the European Union, and so nation-wide law regulation concerning this matter is directed at complying with the European Union Law since the prohibition of discrimination is one of the pillars of the European Union Law. In this article, the influence of the European Union Law and practical measures taken by the European Court of Human Rights in order to prohibit discrimination in a specific international and private domain are analyzed. |
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Managing the EU Acquis |
Journal | European Journal of Law Reform, Issue 3 2016 |
Keywords | EU, legislation, accessibility, updating |
Authors | William Robinson |
AbstractAuthor's information |
EU legislation plays a key role in filling in the gaps in the framework created by the EU Treaties. The body of EU legislation known as the acquis has grown piecemeal over 60 years to a confused and confusing patchwork of over 100,000 pages. There is an urgent need for a more coherent approach to updating, condensing and revising that legislation to ensure that it is readily accessible. New mechanisms should be established for those tasks, or else the existing mechanisms should be enhanced and exploited to the full. |
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The Mechanisms Used to Review Existing Legislation in the Civil Law SystemCase Study – Italy |
Journal | European Journal of Law Reform, Issue 3 2016 |
Keywords | codification, consolidation, law revision, legal restatement, legislative scrutiny |
Authors | Enrico Albanesi |
AbstractAuthor's information |
The aim of this article is to describe the mechanisms that are used in the civil law system to review existing legislation. The case study will be based on the Italian system. In the civil law system we are not familiar with the concept of law reform, in the sense used in the common law system, because there is no law reform agency in the civil law world. The mechanisms used to review the existing law in civil law systems are: codification, consolidation, repeal, law revision and legal restatement. To understand how the mechanisms used to review existing legislation work in Italy, an overview of the Italian law-making and drafting processes will be carried out here, underlying the bad impact that the Italian equal bicameralism has on the quality of legislation and also on the mechanisms to review existing legislation. After this, the article will focus on the specific tools that are used in Italy for codification and consolidation (decreti legislativi), for law revision (the so-called taglia-leggi) and for legal restatement (examining the role of the Consiglio di Stato). Particular attention will also be paid to the parliamentary scrutiny on the quality of legislation. Finally, the article will focus on the constitutional amendment process Italy carried out in 2014-2016 and that was expected to fundamentally change the Italian law-making process, superseding the equal bicameralism arrangement (a referendum on this was held on 4 December 2016, and the reform was rejected by the Italian people). |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2016 |
Keywords | sovereignty, state, Léon Duguit, European Union, Eurozone |
Authors | Martin Loughlin |
AbstractAuthor's information |
This article presents an account of sovereignty as a concept that signifies in jural terms the nature and quality of political relations within the modern state. It argues, first, that sovereignty is a politico-legal concept that expresses the autonomous nature of the state’s political power and its specific mode of operation in the form of law and, secondly, that many political scientists and lawyers present a skewed account by confusing sovereignty with governmental competence. After clarifying its meaning, the significance of contemporary governmental change is explained as one that, in certain respects, involves an erosion of sovereignty. |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2016 |
Keywords | political sovereignty, power, legislative sovereignty, constitutive power, external sovereignty |
Authors | Raf Geenens |
AbstractAuthor's information |
This article investigates and classifies the different meanings of the term sovereignty. What exactly do we try to convey when using the words “sovereign” or “sovereignty”? I will argue that, when saying that X is sovereign, we can mean five different things: it can mean that X holds the capacity to force everyone into obedience, that X makes the laws, that the legal and political order is created by X, that X holds the competence to alter the basic norms of our legal and political order, or that X is independently active on the international stage. These different usages of the term are of course related, but they are distinct and cannot be fully reduced to one another. |