Zoekresultaat: 16 artikelen

x
De zoekresultaten worden gefilterd op:
Jaar 2016 x Rubriek Article x
Article

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

Tijdschrift Erasmus Law Review, Aflevering 2 2016
Trefwoorden Supervision, twin track system, principle of proportionality, human rights, violent and sex offenders
Auteurs Bernd-Dieter Meier
SamenvattingAuteursinformatie

    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.


Bernd-Dieter Meier
Prof. Dr. Bernd-Dieter Meier is the Chair in Criminal Law and Criminology at the Law Faculty of Leibniz University Hannover.
Article

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

Tijdschrift Erasmus Law Review, Aflevering 2 2016
Trefwoorden Dutch penal law, preventive supervision, dangerous offenders, human rights, social rehabilitation
Auteurs Sanne Struijk en Paul Mevis
SamenvattingAuteursinformatie

    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

Tijdschrift Erasmus Law Review, Aflevering 2 2016
Trefwoorden Preventive detention, mandatory supervision, sex offenders, retrospective penal laws, legality principle
Auteurs Martine Herzog-Evans
SamenvattingAuteursinformatie

    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 The Right to Mental Health in the Digital Era

Tijdschrift Erasmus Law Review, Aflevering 3 2016
Trefwoorden E-health, e-mental health, right to health, right to mental health
Auteurs Fatemeh Kokabisaghi, Iris Bakx en Blerta Zenelaj
SamenvattingAuteursinformatie

    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.


Fatemeh Kokabisaghi
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.

Iris Bakx
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.

Blerta Zenelaj
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.
Article

Access_open Keck in Capital? Redefining ‘Restrictions’ in the ‘Golden Shares’ Case Law

Tijdschrift Erasmus Law Review, Aflevering 4 2016
Trefwoorden Keck, selling arrangements, market access, golden shares, capital
Auteurs Ilektra Antonaki
SamenvattingAuteursinformatie

    The evolution of the case law in the field of free movement of goods has been marked by consecutive changes in the legal tests applied by the Court of Justice of the European Union for the determination of the existence of a trade restriction. Starting with the broad Dassonville and Cassis de Dijon definition of MEEQR (measures having equivalent effect to a quantitative restriction), the Court subsequently introduced the Keck-concept of ‘selling arrangements’, which allowed for more regulatory autonomy of the Member States, but proved insufficient to capture disguised trade restrictions. Ultimately, a refined ‘market access’ test was adopted, qualified by the requirement of a ‘substantial’ hindrance on inter-State trade. Contrary to the free movement of goods, the free movement of capital has not undergone the same evolutionary process. Focusing on the ‘golden shares’ case law, this article questions the broad interpretation of ‘capital restrictions’ and seeks to investigate whether the underlying rationale of striking down any special right that could have a potential deterrent effect on inter-State investment is compatible with the constitutional foundations of negative integration. So far the Court seems to promote a company law regime that endorses shareholders’ primacy, lacking, however, the constitutional and institutional legitimacy to decide on such a highly political question. It is thus suggested that a refined test should be adopted that would capture measures departing from ordinary company law and hindering market access of foreign investors, while at the same time allowing Member States to determine their corporate governance systems.


Ilektra Antonaki
Ilektra Antonaki, LL.M., is a PhD candidate at Leiden University, The Netherlands.

    This article discusses the Netherlands Commercial Court from the perspective of lawyers and examines whether the NCC will be an attractive venue for international commercial discputes.


mr. P.E. Ernste
Mr. P.E. Ernste and mr. F.E. Vermeulen (partner) are lawyers at NautaDutilh in Amsterdam. Ernste is also a fellow at the Business and Law Research Centre at Radboud University Nijmegen.

mr. F.E. Vermeulen
Artikel

Autonomy of law in Indonesia

Tijdschrift Recht der Werkelijkheid, Aflevering 3 2016
Trefwoorden Rule of law, Indonesia, Socio-legal studies, Legal scholarhip, Judiciary
Auteurs Professor Adriaan Bedner
SamenvattingAuteursinformatie

    This article seeks to answer how useful the theoretical approaches developed in Europe and the United States are for explaining or understanding the autonomy of law in Indonesia – a nation that is on the verge of becoming a lower-middle-income country and whose legal system presents many of the features found in other developing countries’ legal systems. The article first sketches three lines of theoretical thought that have dominated the inquiry into autonomy of law in (Western) sociology and then assesses to what extent they are represented in the socio-legal studies of Indonesian law. The conclusion is that although socio-legal scholars studying developing countries need supplementary concepts and theories, they can use the Western ones as their point of departure in understanding the functioning of law in a setting that is very different from the one in which these theories were developed.


Professor Adriaan Bedner
Adriaan Bedner is professor of law and society in Indonesia at the Van Vollenhoven Institute (Leiden Law School). He has worked on many different subjects within this field, including family law, administrative courts, and environmental law. His present focus is on the Indonesian Ombudsman and on legal education.
Artikel

Access_open The Justification of Basic Rights

A Discourse-Theoretical Approach

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2016
Trefwoorden Basic rights, Right to justification, Discourse theory, Non-domination, Kant
Auteurs Rainer Forst
SamenvattingAuteursinformatie

    In this paper, I suggest a discourse theory of basic legal rights that is superior to rival approaches, such as a will-based or an interest-based theory of rights. Basic rights are reciprocally and generally justifiable and binding claims on others (agents or institutions) that they should do (or refrain from doing) certain things determined by the content of these rights. We call these rights basic because they define the status of persons as full members of a normative order in such a way that they provide protection from severe forms of legal, political and social domination. The very ground of these rights is the status of persons as free and equal normative authorities within the order they are subject to. In other words, these rights are grounded in a fundamental moral right to justification.


Rainer Forst
Rainer Forst is professor of Political Theory and Philosophy at the Goethe Universität, Frankfurt am Main.
Article

Access_open ‘We Do Not Hang Around. It Is Forbidden.’

Immigration and the Criminalisation of Youth Hanging around in the Netherlands

Tijdschrift Erasmus Law Review, Aflevering 1 2016
Trefwoorden Criminalisation of youth hanging around, culture of control, immigration and discrimination
Auteurs Thaddeus Muller
SamenvattingAuteursinformatie

    The focus in this article is the ‘criminalisation’ of youth hanging around with the emergence of bans on hanging around. A critical social constructivist approach is used in this study, which draws predominantly on qualitative primary data collected between the late 1980s and 2010s. The article compares indigenous with immigrant youth, which coincides with, respectively, youth in rural communities and youth in urban communities. This study shows that there is discrimination of immigrant youth, which is shaped by several intertwining social phenomena, such as the ‘geography of policing’ – more police in urban areas – familiarity, sharing biographical information (in smaller communities), and the character of the interaction, normalising versus stigmatising. In further research on this topic we have to study (the reaction to) the transgressions of immigrant youth, and compare it with (the reaction to) the transgressions of indigenous youth, which is a blind spot in Dutch criminology.


Thaddeus Muller
Thaddeus Muller, Ph.D., is senior lecturer at the Lancaster University Law School.
Article

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

Tijdschrift Erasmus Law Review, Aflevering 1 2016
Trefwoorden Criminal reconciliation, Confucianism, decentralisation, centralisation
Auteurs Wei Pei
SamenvattingAuteursinformatie

    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

Tijdschrift Erasmus Law Review, Aflevering 1 2016
Trefwoorden Incorporation and internalisation, transnational commercial transactions, transnational commercial norms
Auteurs Bo Yuan
SamenvattingAuteursinformatie

    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.

    Dit artikel is voor een groot deel gelijk aan de tekst van de inaugurele rede die de auteur uitsprak op 4 april 2016 bij de aanvaarding van het ambt van hoogleraar Mededingingsrecht.


Anna Gerbrandy
Prof. mr. A. Gerbrandy is hoogleraar Mededingingsrecht aan de Universiteit Utrecht. Dit artikel is voor een groot deel gelijk aan de tekst van de inaugurele rede die zij uitsprak op 4 april 2016 bij de aanvaarding van het ambt van hoogleraar Mededingingsrecht. Laurens van Kreij wordt hartelijk bedankt voor zijn hulp bij het omwerken van de oratietekst naar deze publicatie.

    This paper interprets the presumption of innocence as a conceptual antidote for sacrificial tendencies in criminal law. Using Girard’s philosophy of scapegoat mechanisms and sacrifice as hermeneutical framework, the consanguinity of legal and sacrificial order is explored. We argue that some legal concepts found in the ius commune’s criminal system (12th-18th century), like torture, infamy, or punishment for mere suspicion, are affiliated with scapegoat dynamics and operate, to some extent, in the spirit of sacrifice. By indicating how these concepts entail more or less flagrant breaches of our contemporary conception of due process molded by the presumption of innocence, an antithesis emerges between the presumption of innocence and sacrificial inclinations in criminal law. Furthermore, when facing fundamental threats like heresy, the ius commune’s due process could be suspended. What emerges in this state of exception allowing for swift and relentless repression, is elucidated as legal order’s sacrificial infrastructure.


Rafael Van Damme
Rafael Van Damme is PhD-student in philosophy.
Artikel

Moving beyond the other

A critique of the reductionist drugs discourse

Tijdschrift Tijdschrift over Cultuur & Criminaliteit, Aflevering 1 2016
Trefwoorden drug use, drug users, drug policy, drug reform, media, discourse, the other
Auteurs Stuart Taylor
SamenvattingAuteursinformatie

    This paper uses the UK as a vehicle through which to argue that a dominant reductionist drugs discourse exists which simplifies understandings of drug use and drug users leading to socio-cultural misrepresentations of harm, risk and dangerousness. It contends that at the centre of this discourse lies the process of othering – the identification of specific substances and substance users as a threat to UK society. Interestingly, within the wider context of global drug policy reform this othering process appears to be expanding to target a wider variety of factors and actors – those policies, research findings and individuals which contest normative notions, resulting in the marginalisation of ‘alternative voices’ which question the entrenched assumptions associated with drug prohibition. The paper concludes that there is a need for collective action by critical scholars to move beyond the other, calling for academics to be innovative in their research agendas, creative in their dissemination of knowledge and resolute despite the threat of being othered themselves.


Stuart Taylor
Stuart Taylor is senior lecturer in criminal justice in the School of Law at Liverpool John Moores University, UK.
Artikel

Othering refugees: exclusion, containment and spaces of hope

Tijdschrift Tijdschrift over Cultuur & Criminaliteit, Aflevering 1 2016
Trefwoorden refugee camp, space, foreigner dispositif, fieldwork
Auteurs Lynn Musiol MA
SamenvattingAuteursinformatie

    The article examines mechanisms of othering the refugees illustrated on one refugee camp in Germany. Based on the theoretical strand of the foreigner dispositif, I analyze spatial and architectural compositions of the camp to outline the differentiation of ‘we’ (nation state) and ‘others’ (refugees). In the process of othering space excludes, controls and identifies refugees as ‘others’. However, being identified as the other, space can also be conceived as a specific space of hope. The findings shed some light on the link between othering, space and identity.


Lynn Musiol MA
Lynn Musiol is a master student Interna­tional Criminology at the University of Hamburg.
Artikel

Can I sit?

The use of public space and the ‘other’

Tijdschrift Tijdschrift over Cultuur & Criminaliteit, Aflevering 1 2016
Trefwoorden public space, built environment, other, social control
Auteurs CalvinJohn Smiley PhD
SamenvattingAuteursinformatie

    Newark Penn Station is the most frequented train station in New Jersey, United States. Two distinct groups occupy this public space. First are the commuters who travel by the trains to reach destinations for work or pleasure. Second are the transient who do not use the trains but instead remain in and around the station for various reasons, otherwise known as the ‘other.’ The latter population is closely monitored and controlled by law enforcement through a variety of written and unwritten laws and codes of conduct, which are based on broken windows theory and crime prevention through environment design (CPTED). The primary focus is how the ‘other’ seemingly navigates and occupies public space. Through ethnographic research, this paper reflects and reveals the ways in which the station is a living social organism that simultaneously marginalizes and incorporates those defined as the ‘other’ into this space. This complex and contradictory dynamic illustrates the interactions between public spaces and its occupiers and regulators.


CalvinJohn Smiley PhD
Dr CalvinJohn Smiley is currently working at the Sociology Department of Hunter College at the City University of New York.
Interface Showing Amount
U kunt door de volledige tekst zoeken naar alle artikelen door uw zoekterm in het zoekveld in te vullen. Als u op de knop 'Zoek' heeft geklikt komt u op de zoekresultatenpagina met filters, die u helpen om snel bij het door u gezochte artikel te komen. Er zijn op dit moment twee filters: rubriek en jaar.