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.

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.

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.

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.

In Europe, female circumcision has been considered a grave violation of human rights. However, many European countries fail to combat this illegal practice. This article answers the question why criminal law enforcement with regard to female circumcision seems to fail in various European states, with the exception of France. To answer this question, this article analyses various models of citizenship.

Tax law may, in principle, allow persons aged under 30 to deduct from their taxable income more vocational training expenses than older persons.

Dutch mayors are confronted with various crises differing from a deadly incident with a monster truck to societal unrest due to convicted sex offenders returning to local society. This article presents the results of a research about the role of the mayor in so-called ‘youth crises’. The ‘big decentralization operation’ of January 1, 2015 resulted in new tasks and responsibilities for local governments regarding youth care. This research focuses on the implications of this decentralization for the leadership style of the mayor when a youth related crisis causes societal unrest. The way in which mayors deal with such a crisis was studied by means of in-depth interviews and a vignette study before and after the decentralization. This research concludes that the leadership style of the mayor did not change after the decentralization. Mayors consistently show two dominant leadership styles when managing a youth crisis: ‘First Civilian’ and ‘Peer Governor.’ As a ‘First Civilian’ the mayor’s crisis management actions focuses primarily on the community and the affected family. The style ‘Peer Governor’ is all about gathering relevant information and consultation with various partners, such as youth care organizations and aldermen. More interestingly, the results show that decentralization of youth care redefines the relationship between the local alderman responsible for youth care and the mayor as a crisis manager safeguarding local order and public safety. This relationship is currently under construction and could grow either competitive or fruitful.

The comparative discussions held during this seminar show that the different jurisdictions make use of – approximately – the same ingredients for their legislation on adult guardianship measures and continuing powers of attorney. Given the common international framework (for example the UN Convention on the Rights of Persons with Disabilities) and given the common societal context (cfr. the strong increase of the ageing population) this may not come as a surprise. Despite these common ingredients, the different jurisdictions have managed to arrive at different dishes spiced with specific local flavours. Given that each jurisdiction bears its own history and specific policy plans, this may not come as a surprise either. The adage ‘same same but different’ is in this respect a suitable bromide.
For my own research, the several invitations – that implicitly or explicitly arose from the different discussions – to rethink important concepts or assumptions were of most relevance and importance. A particular example that comes to mind is the suggestion to ‘reverse the jurisprudence’ and to take persons with disabilities instead of healthy adult persons as a point of reference. Also, the invitation to rethink the relationship between the limitation of capacity and the attribution of a guard comes to mind as the juxtaposition of the different jurisdictions showed that these two aspects don’t need to be automatically combined. Also the discussion on the interference between the continuing powers of attorney and the supervision by the court, provoked further reflection on hybrid forms of protection on my part. Finally, the ethical and medical-legal approaches may lead to a reconsideration of the traditional underlying concepts of autonomy and the assessment of capacity.

First line police officers need a certain amount of discretion as they have to deal with various and complex situations on a daily basis. In this article the author examines the extent to which police officers have room for discretion in their use of force. We start from Mastrofski’s proposition that in case of decisions to use deadly force (use of firearm) police officers’ discretionary space must be restricted as much as possible. In case of less intrusive use of force, police officers may have more room for discretion. We used data from a small survey in three local police forces in Belgium to examine whether police officers have similar opinions on the decision to use their firearm – in comparison with the decision to use lower levels of force (non-firearm/non-lethal). Furthermore, we compare police officers who are highly trained in the use of force, with less trained police officers. Our results indicate that police officers are indeed more univocal when it comes to decisions to use their firearm, especially in case of more trained police officers.

Studies indicated that detainees are not always allocated to treatment programs based on official guidelines. Street-level bureaucracy theory suggests that this is because government employees do not always perform policies as prescribed. This study aimed to assess whether this also applies to the allocation of offenders to treatment in Dutch penitentiary institutions. This was studied among a group of 541 male prisoners who participated in the Recidivism Reduction program. The results showed that official policy guidelines were, in most cases, not leading when referring detainees to behavioral interventions. Instead, treatment referrals were influenced by a broad range of risk factors, as well as the length of an offender’s sentence.

Restorative Justice is not evident in cases of intimate partner violence, but it can take and does take place under certain conditions. Wolthuis and Lünnemann explain about the European research they coordinated in six European countries (Austria, Denmark, Finland, Greece, the Netherlands and the UK) on context and practicalities of the use of victim-offender mediation in such complex cases. Cases dealing with violence of mainly men against women and where power imbalances often play a role. That means that mediators, referrers and others involved should know about this complexity and the needs of participants. Austria and Finland turned out to have the most experienced working methods. Their models, good practices and challenges are presented as well as the main outcomes of the research. Interviews and focus groups in the countries gave additional insights. It resulted in a guide with minimum standards addressing the different stages of a mediation process with extra attention for safety and empowerment.

Fighting outlaw motorcycle gangs is currently one of the top priorities of many governments around the world. This is due to the notion that outlaw motorcycle gangs do not consist solely of motorcycle enthusiasts. Numerous cases reveal that these clubs, or at least their members, are involved in (organised) crime. In order to tackle these clubs, the former Dutch Minister of Security and Justice announced a whole-of-government strategy towards outlaw motorcycle gangs in 2012. As part of this effort, authorities such as the Dutch National Police, the Public Prosecution Service, the Dutch Tax Authority and local governments aim to cooperate in order to disrupt and restrict outlaw motorcycle gangs by means of Criminal, Administrative and Civil Law. Part of this strategy is to hinder club-related events. This article discusses the latter strategy in light of the distinction between prevention and pre-emption. As the latter two concepts are often used interchangeably, this article attempts to use a more strict division between prevention and pre-emption. Thereby, it becomes apparent that outlaw motorcycle gangs are to some extent governed through uncertainty. The author suggests that maintaining the ‘prevention–pre-emption distinction’ can offer an interesting and valuable point of departure for analysing today’s crime policies.

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.

Emergency responders are often sent to the front line and are often confronted with aggression and violence in interaction with citizens. According to previous studies, some professionals experience more workplace violence than others. In this article, the theoretical framework to study variations in workplace violence against emergency responders is described. According to criminal opportunity theories, which integrate the routine activity theory and lifestyle/exposure theory, victimisation is largely dependent on the lifestyle and routine activities of persons. Situational characteristics that could be related to workplace violence are organisational or task characteristics, such as having more contact with citizens or working at night. However, they do not provide insight in all aspects of influence, and their usefulness to reduce victimisation is limited. Therefore, it is important to consider the role of personal characteristics of the emergency responders that may be more or less ‘attractive’, which is elaborated upon by the victim precipitation theory. Psychological and behavioural characteristics of emergency responders may be relevant to reduce external workplace violence. The author argues that, despite the risk of being considered as blaming the victim, studying characteristics that might prevent victimisation is needed. Directions for future studies about workplace violence are discussed. These future studies should address a combination of victim and situation characteristics, use a longitudinal design and focus on emergency responders. In addition, differences between professions in relationships between characteristics and workplace violence should be explored.

This article discusses hedge funds activism based on Hirschman’s classic. It is argued that hedge funds do not create the loyalty concerns underlying the usual short-termism critique of their activism, because the arbiters of such activism are typically indexed funds, which cannot choose short-term exit. Nevertheless, the voice activated by hedge funds can be excessive for a particular company. Furthermore, this article claims that the short-termism debate cannot shed light on the desirability of hedge funds activism. Neither theory nor empirical evidence can tell whether hedge funds activism leads to short-termism or long-termism. The real issue with activism is a conflict of entrepreneurship, namely a conflict between the opposing views of the activists and the incumbent management regarding in how long an individual company should be profitable. Leaving the choice between these views to institutional investors is not efficient for every company at every point in time. Consequently, this article argues that regulation should enable individual companies to choose whether to curb hedge funds activism depending on what is efficient for them. The recent European experience reveals that loyalty shares enable such choice, even in the midstream, operating as dual-class shares in disguise. However, loyalty shares can often be introduced without institutional investors’ consent. This outcome could be improved by allowing dual-class recapitalisations, instead of loyalty shares, but only with a majority of minority vote. This solution would screen for the companies for which temporarily curbing activism is efficient, and induce these companies to negotiate sunset clauses with institutional investors.

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.

The number of comparative tax law studies is substantial. The available literature on the methodology behind these tax comparisons, however, is rather limited and underdeveloped. This article aims to contribute to the theoretical background of tax comparisons by explicating methodological considerations in a comparative tax research on tax incentives for cross-border donations and relating it to the available methodological literature. Two aspects of tax law make comparative research in tax law a challenging endeavour: its complexity and fast-changing nature. To overcome these issues, this article proposes to divide jurisdictions into a limited number of categories. In this process the different legal levels are analysed systematically, resulting in categories of jurisdictions. Among the jurisdictions in one category, common characteristics are identified. This results in an abstract description of the category. I use the term ‘ideal types’ for these categories. The high level of abstraction in the use of ideal types allows for comparison of tax jurisdictions, without the risk that the comparison gets outdated. An additional advantage of working with ideal types is that the conclusions of the comparison can be applied to all jurisdictions that fit in the ideal type. This increases the generalisability of the conclusions of the comparative tax research.

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.

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.