Search result: 53 articles

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    Indigenous claims have challenged a number of orthodoxies within state legal systems, one of them being the kinds of proof that can be admissible. In Canada, the focus has been on the admissibility and weight of oral traditions and histories. However, these novel forms are usually taken as alternative means of proving a set of facts that are not in themselves “cultural”, for example, the occupation by a group of people of an area of land that constitutes Aboriginal title. On this view, maps are a neutral technology for representing culturally different interests within those areas. Through Indigenous land use studies, claimants have been able to deploy the powerful symbolic capital of cartography to challenge dominant assumptions about “empty” land and the kinds of uses to which it can be put. There is a risk, though, that Indigenous understandings of land are captured or misrepresented by this technology, and that what appears neutral is in fact deeply implicated in the colonial project and occidental ideas of property. This paper will explore the possibilities for an alternative cartography suggested by digital technologies, by Indigenous artists, and by maps beyond the visual order.


Kirsten Anker Ph.D.
Associate Professor, McGill University Faculty of Law, Canada. Many thanks to the two anonymous reviewers for their frank and helpful feedback.

    The judgment of the Inter-American Court of Human Rights in the case of Kaliña and Lokono Peoples v. Suriname is noteworthy for a number of reasons. Particularly important is the Court’s repeated citation and incorporation of various provisions of the 2007 United Nations Declaration on the Rights of Indigenous Peoples into its interpretation of the American Convention on Human Rights. This aids in greater understanding of the normative value of the Declaration’s provisions, particularly when coupled with the dramatic increase in affirmations of that instrument by UN treaty bodies, Special Procedures and others. The Court’s analysis also adds detail and further content to the bare architecture of the Declaration’s general principles and further contributes to the crystallisation of the discrete, although still evolving, body of law upholding indigenous peoples’ rights. Uptake of the Court’s jurisprudence by domestic tribunals further contributes to this state of dynamic interplay between sources and different fields of law.


Fergus MacKay JD
Article

Access_open The Right to Same-Sex Marriage: Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights

Journal Erasmus Law Review, Issue 3 2017
Keywords same-sex marriage, gay marriage, European consensus, margin of appreciation, consensus-based analysis by the ECtHR
Authors Masuma Shahid
AbstractAuthor's information

    This contribution assesses the consensus-based analysis and reasoning of the European Court of Human Rights in recent judgments concerning equal marriage rights and compares it to the Court’s past jurisprudence on European consensus and the margin of appreciation awarded to Member States regarding the issue of equal marriage rights. The contribution aims to analyse whether there is a parallel to be seen between the rapid global trend of legalisation of same-sex marriage and the development or evolution of the case law of the ECtHR on the same topic. Furthermore, it demonstrates that the Court’s consensus-based analysis is problematic for several reasons and provides possible alternative approaches to the balancing of the Court between, on the one hand, protecting rights of minorities (in this case same-sex couples invoking equal marriage rights) under the European Convention on Human Rights and, on the other hand, maintaining its credibility, authority and legitimacy towards Member States that might disapprove of the evolving case law in the context of same-sex relationships. It also offers insights as to the future of European consensus in the context of equal marriage rights and ends with some concluding remarks.


Masuma Shahid
Lecturer, Department of International and European Union Law, Erasmus School of Law, Rotterdam.
Article

Access_open Religious Freedom of Members of Old and New Minorities: A Double Comparison

Journal Erasmus Law Review, Issue 3 2017
Keywords ECtHR, UNHRC, religious manifestations, religious minorities, empirical analysis
Authors Fabienne Bretscher
AbstractAuthor's information

    Confronted with cases of restrictions of the right to manifest religious beliefs of new religious minorities formed by recent migration movements, the ECtHR and the UNHRC seem to opt for different interpretations and applications of this right, as recent conflicting decisions show. Based on an empirical legal analysis of the two bodies’ decisions on individual complaints, this article finds that these conflicting decisions are part of a broader divergence: While the UNHRC functions as a protector of new minorities against States’ undue interference in their right to manifest their religion, the ECtHR leaves it up to States how to deal with religious diversity brought by new minorities. In addition, a quantitative analysis of the relevant case law showed that the ECtHR is much less likely to find a violation of the right to freedom of religion in cases brought by new religious minorities as opposed to old religious minorities. Although this could be a hint towards double standards, a closer look at the examined case law reveals that the numerical differences can be explained by the ECtHR’s weaker protection of religious manifestations in the public as opposed to the private sphere. Yet, this rule has an important exception: Conscientious objection to military service. By examining the development of the relevant case law, this article shows that this exception bases on a recent alteration of jurisprudence by the ECtHR and that there are similar prospects for change regarding other religious manifestations in the public sphere.


Fabienne Bretscher
PhD candidate at the University of Zurich.
Article

Access_open A Critical Appraisal of the Role of Retribution in Malawian Sentencing Jurisprudence

Journal Erasmus Law Review, Issue 3 2017
Keywords sentencing, retribution, just deserts, punishment, Malawi
Authors Esther Gumboh
AbstractAuthor's information

    The theory of retribution is a central tenet in Malawian sentencing jurisprudence. Courts have given expression to retribution in various ways, most conspicuously through the recognition of the principle of proportionality as the most important principle in sentencing. Retribution has permeated courts’ consideration of certain sentencing factors such as the seriousness of the offence, family obligations and public opinion. Overall, retribution rightly plays a pivotal role in Malawian sentencing jurisprudence by elevating the principle of proportionality to the most important principle in sentencing. Malawian courts have also noted that whether in pursuit of retribution or utilitarianism, the ultimate objective is to arrive at a sentence that is just and fair in relation to the crime and the offender. This also ensures that the sentence imposed does not offend the prohibition of cruel, inhuman and degrading punishment.


Esther Gumboh
Esther Gumboh is a postdoctoral Fellow at the University of Cape Town, South Africa.
Editorial

Access_open Legal Control on Social Control of Sex Offenders in the Community: A European Comparative and Human Rights Perspective

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

    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.


Michiel van der Wolf (Issue Editor)
Ph.D., LL.M, M.Sc., Reader in Criminal Law (Theory) and Forensic Psychiatry at the Erasmus School of Law; Member of the Editorial Board of the Erasmus Law Review.
Article

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

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

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


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

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

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

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


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

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

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

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

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


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

Access_open Raising Barriers to ‘Outlaw Motorcycle Gang-Related Events’

Underlining the Difference between Pre-Emption and Prevention

Journal Erasmus Law Review, Issue 3 2016
Keywords Prevention, pre-crime, pre-emption, risk, outlaw motorcycle gangs
Authors Teun van Ruitenburg
AbstractAuthor's information

    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.


Teun van Ruitenburg
Teun van Ruitenburg, MSc., is PhD Candidate at the Criminology Department of the Erasmus University Rotterdam.
Article

Access_open The Right to Mental Health in the Digital Era

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.


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 Cutting Corners or Enhancing Efficiency?

Simplified Procedures and the Israeli Quest to Speed up Justice

Journal Erasmus Law Review, Issue 4 2015
Keywords Israel, austerity, civil procedure, simplified procedures, small claims
Authors Ehud Brosh
AbstractAuthor's information

    Israel was spared the worst of the world financial crisis of 2008-2009. However, austerity concerns are by no means invisible in the developments in the field of civil procedure. These concerns correlate heavily with the long-standing Israeli preoccupation with ‘speeding up’ justice. An array of simplified procedural tracks, aimed at addressing the perceived inadequacy of ‘standard’ procedure, have been developed in Israel over the years. The importance of simplified procedures in the Israeli system cannot be overestimated. Their development illustrates the dialectical tension between the values of ‘efficiency’ and ‘quality’ in the administration of justice. During periods of austerity, the scales are easily (or easier) tipped in favour of efficiency and general or particular simplification of procedure. In times of prosperity, on the other hand, concerns over ‘quality’, access to justice, and truth discovery predominate, and attempts at promoting efficiency and/or simplification at their expense tend to be bogged down. Such attempts also tend to lose their extrinsic legitimacy and are widely viewed as ‘cutting corners’. This is evident in the recent Israeli experience with civil procedure reform.


Ehud Brosh
Ehud Brosh, LL.M., is a research student at the Hebrew University of Jerusalem.
Article

Access_open Brazilian Civil Procedure in the ‘Age of Austerity’?

Effectiveness, Speed, and Legal Certainty: Small Claims, Uncontested Claims, and Simplification of Judicial Decisions and Proceedings

Journal Erasmus Law Review, Issue 4 2015
Keywords austerity, civil procedure, access to justice, Brazil, small claims
Authors Antonio Gidi and Hermes Zaneti, Jr.
AbstractAuthor's information

    The current debate in Brazilian Civil Procedure revolves around efficiency, legal certainty, and access to justice, not austerity. As a matter of fact, the debate over austerity is nonexistent in Brazil so far. By expanding the access to justice to a broader portion of the society, the legal system increased the number of cases and the costs associated with the judicial system. But the excess litigation and expense associated with the expansion of access to justice has contradictorily curtailed access to justice. This new situation demands new efforts to increase efficiency and legal certainty, while still increasing access to justice.


Antonio Gidi
Antonio Gidi is Visiting Assistant Professor at the Syracuse University. SJD, University of Pennsylvania Law School; LLM and PhD, PUC-SP University; LLB, Federal University of Bahia.

Hermes Zaneti, Jr.
Hermes Zaneti, Jr. is Professor of Law at the Universidade Federal do Espirito Santo and Prosecutor. PhD in Philosophy and Theory of Law, Università degli Studi di Roma Tre; LLM and PhD in Civil Procedure, Federal University of Rio Grande do Sul (UFRS).
Article

Access_open The Impact of the Economic Downturn in the Spanish Civil Justice System

Journal Erasmus Law Review, Issue 4 2015
Keywords judiciary, judge-made justice, court fees, legal aid, ADR-methods
Authors Laura Carballo Piñeiro and Jordi Nieva Fenoll
AbstractAuthor's information

    The Spanish justice system has been shaken by the economic downturn as many other institutions have. This article addresses in the first place some statistical data that shed light as regards to the number of judges and the costs and length of the procedure in Spain. These figures help to understand, in the second place, the impact of austerity measures on the judiciary, namely, the freeze on the hiring of judges and the establishing of high court fees. While they mainly concern the supply side of justice services, others such cost reductions in legal aid have had, in the third place, an impact on the demand side, driving many citizens to social exclusion and to resorting to self-defence mechanisms. The final part of this article addresses some remedies that may alleviate judiciary’s workload, but that fall short of doing it. All in all, the Spanish justice system seems to require a holistic approach to patch up edges, but one in which the role of judge-made justice in a democratic society has to be central again.


Laura Carballo Piñeiro
Laura Carballo Piñeiro is Associate Professor of Private International Law at the Common Law Department of the University of Santiago de Compostela.

Jordi Nieva Fenoll
Jordi Nieva Fenoll is Professor of Procedure Law at the Administrative and Procedure Law Department of the University of Barcelona.
Article

Access_open Austerity in Civil Procedure

A Critical Assessment of the Impact of Global Economic Downturn on Civil Justice in Ghana

Journal Erasmus Law Review, Issue 4 2015
Keywords austerity, small claims, civil justice, civil procedure, Ghana civil procedure
Authors Ernest Owusu-Dapaa and Ebenezer Adjei Bediako
AbstractAuthor's information

    The demand for and availability of civil justice procedures for small claims can neither be disentangled nor extricated from the health of the economic climate of the relevant country concerned. In this article, it is argued that despite not being a developed country, Ghana was not completely insulated from the hardships or implementation of austerity measures that were triggered by the global economic meltdown. The inevitability of behavioural changes on the part of the Government of Ghana as lawmaker and provider of the machinery for civil justice on the one hand and small claims litigants as users of the civil procedure on the other hand are also explored in the article. After properly situating the exploration in the relevant economic context, the article makes recommendations regarding how to minimise the impact of the austerity measures on small claims litigants.


Ernest Owusu-Dapaa
Ernest Owusu-Dapaa is Lecturer in Law at the Kwame Nkrumah University of Science and Technology, Kumasi, Ghana. Email: eodapaa@yahoo.com.

Ebenezer Adjei Bediako
Ebenezer Adjei Bediako is Principal Research Assistant at the Kwame Nkrumah University of Science and Technology, Kumasi, Ghana.

    This article studies the significance of insights from non-legal disciplines (such as political science, economics, and sociology) for comparative legal research and the methodology connected with such ‘interdisciplinary contextualisation’. Based on a theoretical analysis concerning the nature and methodology of comparative law, the article demonstrates that contextualisation of the analysis of legal rules and case law is required for a meaningful comparison between legal systems. The challenges relating to this contextualisation are illustrated on the basis of a study of the judicial use of comparative legal analysis as a source of inspiration in the judgment of difficult cases. The insights obtained from the theoretical analysis and the example are combined in a final analysis concerning the role and method of interdisciplinary contextualisation in comparative legal analysis conducted by legal scholars and legal practitioners.


Elaine Mak Ph.D.
Endowed Professor of Empirical Study of Public Law, in particular of Rule-of-Law Institutions, at Erasmus School of Law. Contact: mak@law.eur.nl.

    This article sets out to contribute to the special issue devoted to multi-disciplinary legal research by discussing first the limits of purely doctrinal legal research in relation to a particular topic and second the relevant considerations in devising research that (inter alia) draws on non-legal, auxiliary disciplines to ‘fill in’ and guide the legal framework. The topic concerned is the (analysis of the) fundamental rights of minorities.
    The article starts with a long account of the flaws in the current legal analysis of the European Court of Human Rights regarding minorities’ rights, particularly the reduction in its analysis and the related failure to properly identify and weigh all relevant interests and variables. This ‘prelude’ provides crucial insights in the causes of the flaws in the Court’s jurisprudence: lack of knowledge (about the relevant interests and variables) and concerns with the Court’s political legitimacy.
    The article goes on to argue for the need for multi-disciplinary legal research to tackle the lack of knowledge: more particularly by drawing on sociology (and related social sciences) and political philosophy as auxiliary disciplines to identify additional interests and variables for the rights analysis. The ensuing new analytical framework for the analysis of minorities’ rights would benefit international courts (adjudicating on human rights) generally. To operationalise and refine the new analytical framework, the research should furthermore have regard to the practice of (a selection of) international courts and national case studies.


Kristin Henrard
Professor of minorities and fundamental rights at the Erasmus School of Law.

    The doctrinal methodology is in a period of change and transition. Realising that the scope of the doctrinal method is too constricting, academic lawyers are becoming eclectic in their use of research method. In this transitional time, legal scholars are increasingly infusing evidence (and methods) from other disciplines into their reasoning to bolster their reform recommendations.
    This article considers three examples of the interplay of the discipline of law with other disciplines in the pursuit of law reform. Firstly the article reviews studies on the extent of methodologies and reformist frameworks in PhD research in Australia. Secondly it analyses a ‘snapshot’ of recently published Australian journal articles on criminal law reform. Thirdly, it focuses on the law reform commissions, those independent government committees that play such an important role in law reform in common law jurisdictions.
    This examination demonstrates that while the doctrinal core of legal scholarship remains intact, legal scholars are endeavouring to accommodate statistics, comparative perspectives, social science evidence and methods, and theoretical analysis, within the legal research framework, in order to provide additional ballast to the recommendations for reform.


Terry Hutchinson
Associate Professor, Faculty of Law, QUT Law School (t.hutchinson@qut.edu.au); Marika Chang (QUT Law School) was the research assistant on this project.
Article

Access_open Legal Advice in Police Custody: From Europe to a Local Police Station

Journal Erasmus Law Review, Issue 4 2014
Keywords legal advice, police interrogation, European Union, England and Wales, France
Authors Anna Ogorodova and Taru Spronken
AbstractAuthor's information

    In October 2013, the European Union adopted a Directive, which guarantees, inter alia, the right of access to a lawyer to suspects of criminal offences from the outset of police custody and during police interrogation. However, adoption of the relevant legislation is not sufficient to ensure that this right becomes effective in practice. A range of practical measures will have to be taken by the Member States’ authorities and the legal profession to effectuate the implementation of the right to custodial legal advice. This article aims to identify the practical factors that may influence the implementation of the Directive, based on the findings of a recent normative and empirical study conducted by the authors. The research was carried out in four European jurisdictions (England and Wales, France, the Netherlands and Scotland), and it consisted of analysis of regulations, observations of daily practice in police stations, accompanying lawyers who provided custodial legal advice, and interviews with criminal justice practitioners. The article provides a range of recommendations on the practical measures to be undertaken by the EU Member States and national Bar associations aiming at improving the protection of suspects’ rights in police custody in practice.


Anna Ogorodova
Anna Ogorodova, LLM is PhD researcher at the University of Maastricht.

Taru Spronken
Dr Taru Spronken is Professor of Criminal Law and Criminal Procedure at Maastricht University and Advocate General at the Supreme Court in the Netherlands.
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.
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