Search result: 18 articles

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Year 2014 x
Article

Access_open Juveniles’ Right to Counsel during Police Interrogations: An Interdisciplinary Analysis of a Youth-Specific Approach, with a Particular Focus on the Netherlands

Journal Erasmus Law Review, Issue 4 2014
Keywords legal representation, counsel, juvenile justice, police interrogations, children’s rights
Authors Prof. Dr. Ton Liefaard Ph.D. LL.M and Yannick van den Brink
AbstractAuthor's information

    The right to counsel of juveniles at the stage of police interrogations has gained significant attention since the Salduz ruling of the European Court on Human Rights in 2008. The legislative and policy developments that have taken place since then and that are still ongoing – both on a regional (European) and domestic (Dutch) level – reveal a shared belief that juvenile suspects must be awarded special protection in this phase of the criminal justice proceedings. This calls for a youth-specific approach as fundamentally different from the common approach for adults. At the same time, there seems to be ambivalence concerning the justification and concrete implications of such a youth-specific approach. This article aims to clarify the underlying rationale and significance of a youth specific approach to the right to counsel at the stage of police interrogations on the basis of an interdisciplinary analysis of European Court on Human Rights case law, international children’s rights standards and relevant developmental psychological insights. In addition, this article aims to position this right of juveniles in conflict with the law in the particular context of the Dutch juvenile justice system and provide concrete recommendations to the Dutch legislator.


Prof. Dr. Ton Liefaard Ph.D. LL.M
Prof. Dr. T. Liefaard is Professor of Children’s Rights (UNICEF Chair) at Leiden Law School, Department of Child Law; t.liefaard@law.leidenuniv.nl.

Yannick van den Brink
Y.N. van den Brink, LL.M, MA, is PhD researcher at Leiden Law School, Department of Child Law; y.n.van.den.brink@law.leidenuniv.nl.
Article

Access_open Legal Assistance and Police Interrogation

(Problematic Aspects of) Dutch Criminal Procedure in Relation to European Union and the Council of Europe

Journal Erasmus Law Review, Issue 4 2014
Keywords Legal assistance, police interrogation, Dutch Criminal Proceedings, EU Directive
Authors Paul Mevis and Joost Verbaan
AbstractAuthor's information

    This paper discusses the rise of a fundamental issue in Dutch criminal proceedings. The presence of a lawyer prior to and during police interrogations has for a long time been a matter open for debate in the Netherlands. Allowing legal assistance during and prior to police interrogations has been researched on several occasions in the previous century and the beginning of this century. In the Netherlands, one of the most important reasons for not admitting legal assistance was and is founded in the confident reliance on the professionalism and integrity of police officers and justice officials in dealing with the interests of suspects. However, after the Salduz case (ECHR 27 November 2008, Appl. No. 36391/02, Salduz v. Turkey), the Dutch government was compelled to draft legal provisions in order to facilitate legal assistance during and prior to police interrogations. The initial drafts still contained a hesitant approach on admitting the lawyer to the actual interrogation. The EU-Directive of November 2013 (Pb EU 2013, L249) set out further reaching standards compelling the Dutch government to create new drafts. In a ruling of April 2014, the Dutch Supreme Court (ECLI:NL:2014:770) argued that the judgements of the ECtHR were too casuistic to derive an absolute right to have a lawyer present during police interrogation. However, they urged the legislator to draft legislation on this matter and warned that its judgement in this could be altered in future caused by legal developments. The Dutch legislator already proposed new draft legislation in February. In this paper it is examined whether the provisions of the new drafts meet the standards as set out in the EU-Directive as well as by the ECtHR.


Paul Mevis
Paul Mevis is Professor of Criminal Law and Criminal Procedure at the Faculty of Law of the Erasmus. He has been a visiting professor at the universities of Münster, Mmabato (South Africa) and in Moldavia, the Ukrain and in Frankfurt an der Oder. Besides his academic activities, Paul Mevis is Honorary Judge at the Criminal Court of Rotterdam and Honorary Judge at the Court of Appeal in Amsterdam, since 1994 and 1998 respectively. He has been parttime Judge at the Court of Arnhem (1990-1994) and is member of the Commission of Supervision of prisons (2006-2008). Paul Mevis is also member of the board of editors of several journals in the field of criminal law and human rights law and commentator for the journal ‘Nederlandse Jurisprudentie’ on criminal cases. He was chairman of the ‘Commissie Strafvordelijke gegevensvergaring in de informatiemaatschappij’ (2000-2001), of which the report has lead to the Bill of the same name. He is a member of the School of Human Rights Research and the Research School on Safety and Security in Society.

Joost Verbaan
Mr. J.H.J. (Joost) Verbaan is an assistant-professor at the Erasmus School of Law of the Erasmus Universiteit Rotterdam. He teaches Criminal Law and Criminal Procedure law. Mr. Verbaan is the Managing Director of the Erasmus Center for Police Studies (ECPS). The ECPS organises courses on criminal and criminal procedure law for law enforcement agencies as well as the prosecution. Mr. Verbaan has been involved in many researches in the practical field of investigation. He has taken part in the research for the Governmental Institute of Scientific Research and Documentation on the effects of the presence of an attorney during the first police interrogation.For the same institute together with professor Mevis he researched the Modalities of Serving in comparative law perspective.He served the secretary of the Committee to draft a new Dutch Antillean Criminal Code and served the secretary of the Committee to draft a new Criminal Code for Aruba, Sint Maarten and Curacao. He served the secretary of the Committee to Draft a common Criminal Procedure Code in the Caribbean regions of Aruba, Curacao , Sint Maarten and the BES-territories. In the republic of Surinam Mr. Verbaan has worked in the legal advisory board of the Committee founded in order to codify a new Criminal Code for the republic of Surinam.
Article

Access_open How to Regulate Cooperatives in the EU?

A Theory of Path Dependency

Journal The Dovenschmidt Quarterly, Issue 4 2014
Keywords cooperative law, company law, EU harmonization, business form, governance
Authors Ger J.H. van der Sangen
AbstractAuthor's information

    In this article, the phenomenon of path dependency has been addressed in view of the harmonization of cooperative law in the EU. The question is raised whether and how the legislative harmonization has an impact on co-operators in their efforts of setting up and maintaining efficient cooperative organizations and whether in this respect the Statute for the European Cooperative Society (hereinafter: SCE) is a helpful tool to facilitate the enhancement of national statutes on cooperatives as well as to provide the legal infrastructure to facilitate cross-border cooperation amongst and reorganizations of cooperatives in the EU.
    The case for the cooperative as a viable business form gained momentum in the EU policy debate with the development of the SCE Statute in 2003, the outbreak of the financial and economic crisis in 2008 and with the endorsement of the cooperative business concept by the United Nations and the International Labour Organization in 2012. If the sound development of cooperatives as an alternative legal business form vis-à-vis investor-owned firms is considered a policy instrument to enhance societal business activities – notably in the field of agriculture and social economy – it raises the question how cooperatives should be regulated to fulfil their function in this respect.
    The key argument presented in this article is that due to strong tendencies of path dependency a top-down approach of EU law-making was and is not a feasible option. The cooperative as a multifaceted institution requires a multifaceted approach taking into account the historical legislative developments of distinctive jurisdictions as well as the historical economic development of cooperative organizations in their specific jurisdiction. However, the existence of path dependency and the lack of regulatory arbitrage as well as regulatory competition prevent the market from generating efficient model statutes for cooperatives taking into account the specific needs of cooperatives and their co-operators.


Ger J.H. van der Sangen
Dr Ger J.H. van der Sangen is Associate Professor Company Law and Securities Law at Tilburg Law School, Department Business Law. He was part of the research team of the EU-funded project Support for Farmers’ Cooperatives. He would like to express his gratitude to all the members of the research team for sharing their insights and discussions during conference meetings in Brussels (November 2011 and 2012) and in Helsinki (June 2012), in particular J. Bijman, C. Gijselinckx, G. Hendrikse, C. Iliopoulos and K. Poppe.

Agnes Lux
PhD candidate, Deputy-head of the Equal Opportunities and Children’s Rights Department, Office of the Commissioner for Fundamental Rights.
Article

Living in the Past

The Critics of Plain Language

Journal European Journal of Law Reform, Issue 3 2014
Keywords plain language, legal drafting, legislation, professional responsibility, legalese
Authors Derwent Coshott
AbstractAuthor's information

    This article addresses three core complaints that are frequently levelled by critics of plain legal language: (1) It will reduce reliance on lawyers; (2) It is uncertain and will lead to greater litigation; and (3) Legal writing is, and should only be, for a legally trained audience. The article develops a definition of plain language that reflects a more contemporary understanding. It demonstrates that the three core criticisms misrepresent this understanding and are unsustainable with regard to lawyers’ duty to clients, the role of legislation as public documents, and modern commercial realities.


Derwent Coshott
BA (Dist) (UNSW) JD (Syd) GradDipLegalPrac (ColLaw) LLM (Syd). PhD Candidate and Casual Lecturer at the University of Sydney.
Article

Legislative Drafting in Plain Urdu Language for the Islamic Republic of Pakistan

A Question of Complex Intricacies

Journal European Journal of Law Reform, Issue 3 2014
Keywords Urdu, Pakistan, multilingual jurisdictions, legislative drafting, plain language movement
Authors Mazhar Ilahi
AbstractAuthor's information

    The plain language movement (PLM) for the writing of laws calls for improving legislative clarity by drafting the laws in a clear, simple, and precise manner. However, the main purpose of this aspiration is to facilitate the ordinary legislative audience to understand the laws with the least effort. In this respect, turning the pages of recent history reveals that this movement for plain language statutes has mostly been debated and analysed in the context of English as a language of the legislative text. However, in some parts of the multilingual world like India and Pakistan, English is not understood by the ordinary population at a very large scale but is still used as a language of the legislative text. This disparity owes its genesis to different country-specific ethnolingual and political issues. In this context but without going into the details of these ethnolingual and political elements, this article aims to analyse the prospects of plain Urdu legislative language in the Islamic Republic of Pakistan by by analyzing (1) the possibility of producing a plain language version of the legislative text in Urdu and (2) the potential benefit that the ordinary people of Pakistan can get from such plain statutes in terms of the themes of the PLM. In answering these questions, the author concludes that neither (at present) is it possible to produce plain Urdu versions of the statute book in Pakistan nor is the population of Pakistan likely to avail any current advantage from the plain Urdu statutes and further that, for now, it is more appropriate to continue with the colonial heritage of English as the language of the legislative text.


Mazhar Ilahi
The author is Solicitor in England and Wales and currently an Associate Research Fellow as well as Director of the Legislative Drafting Clinic at the Institute of Advanced Legal Studies, School of Advanced Study, University of London. Previously, he has worked as a Civil Judge/Judicial Magistrate and practised as Advocate of High Courts in Pakistan. He is also a country (Pakistan) representative of ‘Clarity’, an international association promoting plain legal language.
Article

“What Does He Think This Is? The Court of Human Rights or the United Nations?”

(Plain) Language in the Written Memories of Arbitral Proceedings: A Cross-Cultural Case Study

Journal European Journal of Law Reform, Issue 3 2014
Keywords arbitration, legal language, plain language, specialised discourse, corpus linguistics
Authors Stefania Maria Maci
AbstractAuthor's information

    Arbitration as an alternative dispute resolution (ADR) is an extra-judicial process resolved privately outside an ordinary court of justice. As such, the award has the same legal effects as a judgment pronounced by a court judge. Arbitration can be preceded by a pre-trial process in which arbitrators try to reach a conciliation agreement between the parties. If an agreement is not reached, the arbitration process begins with the gathering of the parties’ memories. In both oral and written evidence, language is used argumentatively, and above all persuasively, by all sides or parties involved.
    Extensive studies in arbitration have been carried out from the viewpoint of law. From an applied linguistics angle, the study of interaction in legal contexts has recently been carried out with particular regard to witness testimony and cross-examination in international commercial arbitration within the processes of arbitral hearings and the writing of minutes.
    To the best of my knowledge, to date there has never been an investigation on plain language in arbitral memories across national and professional cultures. Therefore, by carrying out a comparative analysis of the written evidence presented in two arbitral processes, this paper tries to evaluate the degree of influence that different legal cultures may exert on the type of language used in written arbitration evidence. The main objective is to offer insights into some instances of arbitration proceedings and their development within their British and Italian contexts.


Stefania Maria Maci
Stefania M. Maci is Aggregate Professor of English Language and Translation at the University of Bergamo, where she teaches English linguistic courses at graduate and undergraduate level. She is member of CERLIS (Research Centre on Specialized Languages), CLAVIER (The Corpus and Language Variation in English Research Group), BAAL (British Association of Applied Linguistics), and AIA (Associazione Italiana di Anglistica).
Article

Shifting from Financial Jargon to Plain Language

Advantages and Problems in the European Retail Financial Market

Journal European Journal of Law Reform, Issue 3 2014
Keywords financial markets, financial information, PRIPs/KIIDs, financial jargon, plain language
Authors Francesco De Pascalis
AbstractAuthor's information

    The purpose of this paper is to discuss the European regulatory efforts to guarantee investors a proper understanding of the characteristics of the products being offered in the retail financial market. In particular, the analysis emphasises the proposal to introduce plain language as a mandatory requirement for drafting pre-contractual documents relating to retail financial products.
    The 2007-2009 financial crisis brought to attention the importance of providing investors with more information on financial products to help them make informed investment decisions. However, more disclosure alone is not enough. The quantity and quality of information to be disclosed must go hand in hand with the way the information is communicated.
    Plain language is seen as an adequate tool to make information more transparent and understandable to the average investor. However, to make plain language a valuable instrument, it is necessary to enhance the ability of those who have the responsibility to apply it, that is, the financial products’ issuers and distributors.
    This aspect deserves proper consideration; otherwise, the benefit of plain language will remain on paper.


Francesco De Pascalis
The author obtained an LLM degree in Banking and Finance Law at Queen Mary University of London in October 2010 and is admitted as a barrister to the Verona Bar Society. Currently, he is doctoral candidate at the Institute of Advanced Legal Studies, University of London.
Article

Plain, Clear, and Something More?

Criteria for Communication in Legal Language

Journal European Journal of Law Reform, Issue 3 2014
Keywords plain language, legislative drafting, definition, mediation, ignorance of the law
Authors Derek Roebuck
AbstractAuthor's information

    Legislation may be presumed to be intended to transmit a message to those whose conduct it aims to affect. That message achieves its purpose only insofar as it is intelligible to its recipients. Drafters should make every effort to use plain language, but not all meaning can be transferred in plain language. The true criterion is clarity.
    ‘Mediation’ and ‘conciliation’ are examples of definitions created by legislators which do not correspond with categories in practice. Historical research illuminates cultural differences which affect transmission of meaning. Recent practice also illustrates the possibilities of creative methods for resolving disputes and the dangers of unnecessary prescription.
    Imprecise thinking of legislators precludes transmission of precise meaning, as does preference for word-for-word translation. ‘Highest Common Factor’ language is no substitute for natural target language.
    No efforts of legislators or translators can prevail against political power. ‘Ignorance of the law is no excuse’ overrides the imperative to transfer meaning.
    If research is to be effective, it must be not only comparative but interdisciplinary.


Derek Roebuck
Professor Derek Roebuck, Senior Associate Research Fellow, Institute of Advanced Legal Studies, University of London.
Article

Plain Language in Legal Studies

A Corpus-Based Study

Journal European Journal of Law Reform, Issue 3 2014
Keywords legal discourse, metadiscourse, epistemic modality, personalization, code glosses
Authors Michele Sala
AbstractAuthor's information

    This article investigates the influence of Plain Language in legal academic research. The Plain Language Movement (PLM) in Anglophone cultures and Common Law systems considerably affected the way legal experts and practitioners use the language in professional contexts, both in writing and in oral situations. The assumption at the basis of this investigation is that the exposure to and experience with this way of using the language in professional settings is likely to have influenced the way experts write in research-related and pedagogical contexts.
    Based on a comparison between a subcorpus of 40 research articles (RAs) written by English, American, and Australian authors and 40 RAs authored by experts working in Civil Law contexts – thus not affected (at least not so distinctively) by PLM ideology – this article seeks to establish the main differences in the two subcorpora especially at the interpersonal level of discourse and, more precisely, in the use of metadiscursive interactional strategies such as epistemic modality markers and personalization – both intended to facilitate interpretation by controlling assertiveness and lexicalizing the rhetorical figure of the author – and interactive metadiscourse markers like code glosses – which are meant to paraphrase or reformulate meaning to both simplify and bias the interpretive process.


Michele Sala
Michele Sala is a researcher in English Language and Translation at the University of Bergamo, Faculty of Foreign Languages, Literatures and Communication Studies.
Article

Making EU Legislation Clearer

Journal European Journal of Law Reform, Issue 3 2014
Keywords European Union, transparency, openness, clarity of legislation
Authors William Robinson
AbstractAuthor's information

    This article looks at the clarity of the legislation of the European Union (EU), in particular the clarity of the language used. It sketches out the basic EU rules on transparency and openness, past expressions of concern for clearer EU legislation, and the response of the institutions. Finally, it considers briefly some ways to make EU legislation clearer.


William Robinson
Associate Research Fellow at the Institute of Advanced Legal Studies, University of London, formerly coordinator in the Quality of Legislation Team of the European Commission Legal Service.

Giulia Adriana Pennisi
Giulia Adriana Pennisi is a Tenured Researcher in English Language and Translation at the University of Palermo (Italy), where she teaches English linguistic courses at graduate and undergraduate level. She is an Associate Research Fellow in the Sir William Dale Centre for Legislative Studies, Institute of Advanced Legal Studies, University of London.
Article

Access_open Contracts for the International Sale of Goods

Recent Developments at the International and European Level

Journal The Dovenschmidt Quarterly, Issue 2 2014
Keywords CISG, CESL, contract for the international sale of goods, jurisdiction, standard terms
Authors Dr. S.A. Kruisinga
AbstractAuthor's information

    In the globalizing economy, national borders seem to have disappeared. However, when determining which law will apply to a commercial transaction, the opposite seems true. In 1980, the UN Convention on Contracts for the International Sale of Goods (hereafter the CISG) was specifically drafted to apply to contracts for the international sale of goods. Recently, the European Commission also published a document containing provisions that can apply to contracts for the international sale of goods: the Proposal for a Regulation on a Common European Sales Law. This paper compares the scope of application of these legal regimes, it compares the regulation of standard terms in both regimes and addresses the provisions in the EU Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I), which are of relevance for contracts for the international sale of goods which do not contain a valid dispute settlement clause.


Dr. S.A. Kruisinga
Dr. S.A. Kruisinga is Associate Professor at the Molengraaff Institute of Private Law, Utrecht University, the Netherlands.
Article

Islamic Policy of Environmental Conservation

1,500 Years Old – Yet Thoroughly Modern

Journal European Journal of Law Reform, Issue 2 2014
Keywords environment, waqf (endowment), khalifa (steward), God's equilibrium, Arab Spring
Authors Mohamed A. ‘Arafa
AbstractAuthor's information

    Any legal system plays a significant role in the principle underlying its legal doctrines. The legal system works in compliance with, or as a consequence of cultural order. In other words, any legal system is restricted to a certain environment and subject to cultural impact. Culture and law operate in conjunction. Politics and economy are, among others, the main disciplines affecting that legal system including environmental laws and natural resources. The present article attempts a comparative analysis of three different legal systems and their approaches to environmental law, contributing to the extensive literature on this area of law in numerous areas of the world such as the United States, Europe, and the Middle East. However, that literature appears to have had little coverage of the treatment of environmental law in Islamic law, one of the three main global legal systems together with common and civil law. The bold spread of Islamic tendency in the Middle East that followed the so-called “Arab Spring” assures major changes in the political and economic sphere, including environmental and natural resource levels. Environmental threats are very pressing all over the world, as the Earth needs to be protected through the adoption of universally applicable legal rules and the right to a healthy environment needs to be elaborated on in international instruments. It is very significant to understand Islam's overall view of the universe to comprehend the gap between Islamic theories and practices in Muslim countries. The universe is full of diversified creatures that aim to fulfill man's needs and prove God's greatness. The Qur'an states: “Have you not seen that God is glorified by all in the heavens and on earth, such as birds with wings outspread? Each knows its worship and glorification, and God is aware of what they do.”All creatures in the universe perform two specific roles: a religious role of evidencing God's perfection and presence and a social role of serving man and other creatures. The final outcome is the solidarity of the universe and the realization of its common good (benefit).
    Man's position in the universe is premised on two principles: the stewardship of man which means that man is not only a creature but also God's khalifa (steward) on earth; God is the only proprietor of earth; and man is a mere beneficiary, and man can exploit nature for his/her and other creatures’ benefit without depleting it and the principle of trust that all natural resources created by God are placed as a trust in man's hand and needs of coming generations must be taken into consideration by man. Islamic environmental law uses a “duty paradigm” in the sphere of the right to healthy environment, as human beings must not destroy, deplete, or unwisely use natural resources but have an obligation to develop and enhance natural resources. Any disturbance of God's equilibrium in the universe is a transgression and athm (sin) against the divine system. Last but by no means least, Islamic law regards man as a creature with elevated status. In Islamic environmental law, the human is not the owner of nature, but a mere beneficiary. Islamic environmental safety is based upon the principle of “use” without “abuse”. Environmental protection under the Islamic legal scheme does not differ from any modern environmental legal system.


Mohamed A. ‘Arafa
Adjunct Professor of Islamic Law at Indiana University Robert H. McKinney School of Law (USA); Assistant Professor of Criminal Law and Criminal Justice at Alexandria University Faculty of Law (Egypt). SJD, Indiana University Robert H. McKinney School of Law (2013); LLM, University of Connecticut School of Law (2008); LLB, Alexandria University Faculty of Law (2006). Dr. ‘Arafa is a Visiting Professor of Business Law at the Arab Academy for Science, Technology, and Maritime Transport (‘College of Business Management’). Moreover, Professor ‘Arafa is a Domestic Public Mediator under Alternative Dispute Resolution, Indiana Rule ADR 25 (2012) and served as an Associate Trainee Attorney and Executive Attorney Assistant at ‘Arafa Law Firm (2007). Of course, all errors remain the author's.
Article

The Manifestation of Religious Belief Through Dress

Human Rights and Constitutional Issues

Journal European Journal of Law Reform, Issue 2 2014
Keywords religion, religious freedom, burqa, hijab, Muslim
Authors Anthony Gray
AbstractAuthor's information

    Jurisdictions around the world continue to grapple with the clash between religious freedoms and other freedoms and values to which a society subscribes. A recent, and current, debate concerns the extent to which a person is free to wear items of clothing often thought to be symbolic of the Muslim faith, though the issues are not confined to any particular religion. Bans on the wearing of this type of clothing have often (surprisingly) survived human rights challenges, on the basis that governments had legitimate objectives in banning or restricting them. A pending case gives the European Court another chance to reconsider the issues. It is hoped that the Court will closely scrutinise claims of legitimate objectives for such laws; perceptions can arise that sometimes, governments are pandering to racism, intolerance and xenophobia with such measures, rather than seeking to meet more high-minded objectives.


Anthony Gray
Professor of Law, University of Southern Queensland, Australia.

Matthew Schaefer
Professor of Law & Director – Space, Cyber and Telecom Law LL.M, University of Nebraska College of Law, United States of America
Article

From a Soft Law Process to Hard Law Obligations

The Kimberley Process and Contemporary International Legislative Process

Journal European Journal of Law Reform, Issue 1 2014
Keywords Kimberley Process, soft law, international law, legislative process
Authors Martin-Joe Ezeudu
AbstractAuthor's information

    Ever since its creation and coming into force in 2003, the Kimberley Process has elicited a number of academic commentaries coming from different backgrounds. Legal scholars who have contributed to the commentaries, simply projected the regulatory regime as an international soft law without further analysis, based on an evaluation of the text of the agreement. This article in contrast, explores its practical effects and the manner of obligations that it imposes on its participant countries. It argues that although the regime may have been a soft law by classification, its obligations are hard and are no different from those of a conventional treaty. Those obligations enhance its juridical force, and are a factor by which the regime on its own tends to nullify the traditional criteria for distinction between hard and soft law in international jurisprudence, because it has elements of both.


Martin-Joe Ezeudu
PhD (Osgoode Hall Law School, York University, Toronto, Canada); LLM (University of Birmingham, UK); LLB (Nnamdi Azikiwe University, Awka, Nigeria); Barrister & Solicitor, Nigeria; Solicitor, England & Wales. An articling student at the Ontario Ministry of the Attorney General (Legal Services Branch of the Ministry of Consumer Services), Toronto, Canada. I am grateful to Prof Ikechi Mgbeoji who introduced me to this line of research. My thanks to Mr Tom van der Meer for his helpful comments on an earlier draft of this article. All errors and omissions remain mine. Dedicated to the loving memory of my brother, Chukwuemeka Innocent Ezeudu ‍–‍ a true brother and companion.
Article

Implementation of Better Regulation Measures in the Internal Security Draft Legislation

The Case of Estonia

Journal European Journal of Law Reform, Issue 1 2014
Keywords better regulation, internal security policy, impact assessment, participation, Estonia
Authors Aare Kasemets and Annika Talmar-Pere
AbstractAuthor's information

    The article analyses the implementation of better regulation measures in the internal security (IS) strategies, draft legislation and administrative routines of the Estonian Ministry of the Interior. The article includes the results of five substudies: (a) the research problem emerged from the studies of the explanatory memoranda of draft laws 2004-2009 according to which the Ministry has some deficiencies in fulfilling the better regulation requirements; (b) mapping of better regulation and internal security policy concepts; (c) content analysis of Estonian IS strategy documents; (d) systematization of Estonian IS laws; and (e) sociological e-survey of officials. Theoretical framework integrates the concepts of institutional theory, discursive democracy, realistic legisprudence and the adaptive strategic management.The main conclusions drawn by the article are as follows: the analysis of the knowledge of draft legislation and the excessive amount of laws in the IS field gives evidence of a lack of systematic regulatory impact assessment (IA); the concept of better regulation is not integrated into IS policy documents (insufficient planning and budgeting of IA); and a sociological e-survey of the officials of the Ministry indicates discontent with the management of the IA of policies and draft legislation. According to institutional analysis, this shows readiness for changes in the context of risk society challenges and adaptation with budgetary contractions.


Aare Kasemets
Estonian Academy of Security Sciences. Email: aare.kasemets@sisekaitse.ee.

Annika Talmar-Pere
Estonian Academy of Security Sciences.
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