Search result: 68 articles

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Article

Access_open A Comparative Perspective on the Protection of Hate Crime Victims in the European Union

New Developments in Criminal Procedures in the EU Member States

Journal Erasmus Law Review, Issue 3 2021
Keywords hate crime, victims, victim rights, procedural justice, EU Member States, criminal procedure
Authors Suzan van der Aa, Robin Hofmann and Jacques Claessen
AbstractAuthor's information

    Hate crime victims involved in a criminal procedure experience difficulties that are different from problems encountered by other victims. In trying to meet the specific procedural needs of hate crime victims many EU Member States have introduced protective measures and services in criminal proceedings, but the adopted approaches are widely disparate. By reporting the results of an EU-wide comparative survey into hate crime victims within national criminal procedures the authors aim to: (1) make an inventory of the national (legal) definitions of hate crime and the protection measures available (on paper) for hate crime victims; and (2) critically discuss certain national choices, inter alia by juxtaposing the procedural measures to the procedural needs of hate crime victims to see if there are any lacunae from a victimological perspective. The authors conclude that the Member States should consider expanding their current corpus of protection measures in order to address some of the victims’ most urgent needs.


Suzan van der Aa
Suzan van der Aa, PhD, is Professor of Criminal Law at Maastricht University, the Netherlands.

Robin Hofmann
Robin Hofmann is Assistant Professor at Maastricht University, the Netherlands.

Jacques Claessen
Jacques Claessen is Professor at Maastricht University, the Netherands.
Article

Access_open Ruled by Fear or Safety-Related Empowerment

The Experience and Meaning of Penal Protection Orders in Intimate Partner Violence in the Netherlands

Journal Erasmus Law Review, Issue 3 2021
Keywords intimate partner violence, stalking, protection orders, empowerment, safety, well-being
Authors Irma W.M. Cleven
AbstractAuthor's information

    This study uses a novel approach to understand the experience and meaning of unsafety and the contribution of penal protection orders to victim empowerment in cases of intimate partner violence (IPV). In ten in-depth interviews, IPV survivors reflect on their relationship with their ex-partner and the previous years in which the order against their ex-partner was issued, including its role within the wider process of coming to terms with IPV victimisation and moving on. Depending on expectations of protection orders (POs) enforcement and deterrence, POs enhance one’s safety-related self-efficacy and result in a sense of empowerment. Its meaning can be understood in terms of one’s power from the ex-partner, power to act, status vis-à-vis the offender and the wider community, care/help of the CJS, and unity/togetherness with the wider community. Several implications for theoretical and empirical research and practice are discussed.


Irma W.M. Cleven
Irma W.M. Cleven, MSc, is PhD Candidate at the Department of Criminology of the Erasmus University Rotterdam, the Netherlands.
Article

Access_open Dutch Penal Protection Orders in Practice

A Study of Aims and Outcomes

Journal Erasmus Law Review, Issue 3 2021
Keywords enforcement practice, victim safety, street level bureaucracy, criminal justice chain, penal protection orders
Authors Tamar Fischer and Sanne Struijk
AbstractAuthor's information

    Penal protection orders (PPOs) aim to protect initial victims from repeat victimisation and in a broader sense from any danger for his or her dignity or psychological and sexual integrity and may therefore be important instruments for victim safety. However, knowledge on the actual practice of the PPOs and the successes, dilemmas and challenges involved is scarce. In this article, we describe the legal framework and actual enforcement practice of Dutch PPOs. The theoretical framework leading our explorative analyses regards Lipsky’s notion of ‘street-level bureaucracy’ and the succeeding work of Maynard & Musheno and Tummers on coping strategies and agency narratives of frontline workers. Using interview data from criminal justice professionals, victims and offenders, we describe the conditions of the enforcement practice and answer the question which coping mechanisms and types of agencies the professionals tend to apply in order to meet the legislative aims and to protect victims as effectively as possible. Results show that the five conditions described by Lipsky are clearly present. So far, in almost all situations the process of monitoring violations is reactive and because knowledge on risk indicators for violent escalation is still limited, it is difficult for frontline workers to decide how many and what type of resources should be invested in which cases. This results in a ‘moving away from clients’ strategy. However, within this context in which reactive enforcement is the default, we also found several examples of coping that represent ‘moving towards clients’ strategies.


Tamar Fischer
Tamar Fischer is Associate Professor of Criminology at the Erasmus Universiteit Rotterdam, the Netherlands.

Sanne Struijk
Sanne Struijk is Professor of Penal Sanctions Law and associate professor of Criminal Law at the Erasmus University Rotterdam, the Netherlands.
Article

Access_open The Common Law Remedy of Habeas Corpus Through the Prism of a Twelve-Point Construct

Journal Erasmus Law Review, Issue 2 2021
Keywords Habeas corpus, common law, detainee, consitution, liberty
Authors Chuks Okpaluba and Anthony Nwafor
AbstractAuthor's information

    Long before the coming of the Bill of Rights in written Constitutions, the common law has had the greatest regard for the personal liberty of the individual. In order to safeguard that liberty, the remedy of habeas corpus was always available to persons deprived of their liberty unlawfully. This ancient writ has been incorporated into the modern Constitution as a fundamental right and enforceable as other rights protected by virtue of their entrenchment in those Constitutions. This article aims to bring together the various understanding of habeas corpus at common law and the principles governing the writ in common law jurisdictions. The discussion is approached through a twelve-point construct thus providing a brief conspectus of the subject matter, such that one could have a better understanding of the subject as applied in most common law jurisdictions.


Chuks Okpaluba
Chuks Okpaluba, LLB LLM (London), PhD (West Indies), is a Research Fellow at the Free State Centre for Human Rights, University of the Free State, South Africa. Email: okpaluba@mweb.co.za.

Anthony Nwafor
Anthony O. Nwafor, LLB, LLM, (Nigeria), PhD (UniJos), BL, is Professor at the School of Law, University of Venda, South Africa. Email: Anthony.Nwafor@univen.ac.za.
Article

Access_open The Role of the Vienna Rules in the Interpretation of the ECHR

A Normative Basis or a Source of Inspiration?

Journal Erasmus Law Review, Issue 2 2021
Keywords European Convention on Human Rights, European Court of Human Rights, techniques of interpretation, the Vienna Convention on the Law of Treaties
Authors Eszter Polgári
AbstractAuthor's information

    The interpretive techniques applied by the European Court of Human Rights are instrumental in filling the vaguely formulated rights-provisions with progressive content, and their use provoked widespread criticism. The article argues that despite the scarcity of explicit references to the Vienna Convention on the Law of Treaties, all the ECtHR’s methods and doctrines of interpretation have basis in the VCLT, and the ECtHR has not developed a competing framework. The Vienna rules are flexible enough to accommodate the interpretive rules developed in the ECHR jurisprudence, although effectiveness and evolutive interpretation is favoured – due to the unique nature of Convention – over the more traditional means of interpretation, such as textualism. Applying the VCLT as a normative framework offers unique ways of reconceptualising some of the much-contested means of interpretation in order to increase the legitimacy of the ECtHR.


Eszter Polgári
Eszter Polgári, PhD, is assistant professor at the Department of Legal Studies of the Central European University in Austria.
Article

Access_open Big Data Ethics: A Life Cycle Perspective

Journal Erasmus Law Review, Issue 1 2021
Keywords big data, big data analysis, data life cycle, ethics, AI
Authors Simon Vydra, Andrei Poama, Sarah Giest e.a.
AbstractAuthor's information

    The adoption of big data analysis in the legal domain is a recent but growing trend that highlights ethical concerns not just with big data analysis, as such, but also with its deployment in the legal domain. This article systematically analyses five big data use cases from the legal domain utilising a pluralistic and pragmatic mode of ethical reasoning. In each case we analyse what happens with data from its creation to its eventual archival or deletion, for which we utilise the concept of ‘data life cycle’. Despite the exploratory nature of this article and some limitations of our approach, the systematic summary we deliver depicts the five cases in detail, reinforces the idea that ethically significant issues exist across the entire big data life cycle, and facilitates understanding of how various ethical considerations interact with one another throughout the big data life cycle. Furthermore, owing to its pragmatic and pluralist nature, the approach is potentially useful for practitioners aiming to interrogate big data use cases.


Simon Vydra
Simon Vydra is a Researcher at the Institute for Public Administration, Leiden University, the Netherlands.

Andrei Poama
Andrei Poama is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Sarah Giest
Sarah Giest is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Alex Ingrams
Alex Ingrams is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Bram Klievink
Bram Klievink is Professor of Digitization and Public Policy at the Institute for Public Administration, Leiden University, the Netherlands.
Article

Access_open The Right to Claim Innocence in Poland

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful convictions, right to claim innocence, reopening of criminal proceedings, miscarriage of justice, revision of final judgment
Authors Wojciech Jasiński Ph.D., habilitation and Karolina Kremens Ph.D.
AbstractAuthor's information

    Wrongful convictions and miscarriages of justice, their reasons and effects, only rarely become the subject of academic debate in Poland. This article aims at filling this gap and providing a discussion on the current challenges of mechanisms available in Polish law focused on the verification of final judgments based on innocence claims. While there are two procedures designed to move such judgment: cassation and the reopening of criminal proceedings, only the latter aims at the verification of new facts and evidence, and this work remains focused exactly on that issue. The article begins with a case study of the famous Komenda case, which resulted in a successful innocence claim, serving as a good, though rare, example of reopening a case and acquitting the convict immediately and allows for discussing the reasons that commonly stand behind wrongful convictions in Poland. Furthermore, the article examines the innocence claim grounds as regulated in the Polish criminal procedure and their interpretation under the current case law. It also presents the procedure concerning the revision of the case. The work additionally provides the analysis of the use of innocence claim in practice, feeding on the statistical data and explaining tendencies in application for revision of a case. It also presents the efforts of the Polish Ombudsman and NGOs to raise public awareness in that field. The final conclusions address the main challenges that the Polish system faces concerning innocence claims and indicates the direction in which the system should go.


Wojciech Jasiński Ph.D., habilitation
Wojciech Jasiński is Assistant Professor in the Department of Criminal Procedure of the University of Wroclaw, Poland. orcid.org/0000-0002-7427-1474

Karolina Kremens Ph.D.
Karolina Kremens is Assistant Professor in the Department of Criminal Procedure of the University of Wroclaw, Poland. orcid.org/0000-0002-2132-2645
Article

Access_open The Challenges for England’s Post-Conviction Review Body

Deference to Juries, the Principle of Finality and the Court of Appeal

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful conviction, criminal justice, Criminal Cases Review Commission, Court of Appeal, discretion
Authors Carolyn Hoyle
AbstractAuthor's information

    Since 1997, the Criminal Cases Review Commission of England, Wales and Northern Ireland has served as a state-funded post-conviction body to consider claims of wrongful conviction for those who have exhausted their rights to appeal. A meticulous organisation that has over its lifetime referred over 700 cases back to the Court of Appeal, resulting in over 60% of those applicants having their convictions quashed, it is nonetheless restricted in its response to cases by its own legislation. This shapes its decision-making in reviewing cases, causing it to be somewhat deferential to the original jury, to the principle of finality and, most importantly, to the Court of Appeal, the only institution that can overturn a wrongful conviction. In mandating such deference, the legislation causes the Commission to have one eye on the Court’s evolving jurisprudence but leaves room for institutional and individual discretion, evidenced in some variability in responses across the Commission. While considerable variability would be difficult to defend, some inconsistency raises the prospects for a shift towards a less deferential referral culture. This article draws on original research by the author to consider the impact of institutional deference on the work of the Criminal Cases Review Commission and argues for a slightly bolder approach in its work


Carolyn Hoyle
Carolyn Hoyle is Professor of Criminology at the Faculty of Law, University of Oxford, UK.
Article

Access_open Chosen Blindness or a Revelation of the Truth?

A New Procedure for Revision in Belgium

Journal Erasmus Law Review, Issue 4 2020
Keywords final criminal conviction, revision procedure, grounds for revision, Court of Cassation, Commission for revision in criminal matters
Authors Katrien Verhesschen and Cyrille Fijnaut
AbstractAuthor's information

    The Belgian Code of criminal procedure provides the possibility to revise final criminal convictions. This procedure had remained more or less untouched for 124 years, but was finally reformed by the Act of 2018, after criticism was voiced in legal doctrine concerning its narrow scope and possible appearances of partiality and prejudice. The Act of 2018 therefore broadened the third ground for revision, the so-called novum, and defined it as an element that was unknown to the judge during the initial proceedings and impossible for the convicted person to demonstrate at that time and that, alone or combined with evidence that was gathered earlier, seems incompatible with the conviction, thus creating a strong suspicion that, if it had been known, it would have led to a more favourable outcome. Thereby, this ground for revision is no longer limited to factual circumstances, but also includes changed appreciations by experts. To counter appearances of partiality and prejudice, the Act of 2018 created the Commission for revision in criminal matters, a multidisciplinary body that has to give non-binding advice to the Court of Cassation on the presence of a novum. However, the legislature also introduced new hurdles on the path to revision, such as the requirement for the applicant to add pieces that demonstrate the ground for revision in order for his or her request to be admissible. For that reason, the application in practice will have to demonstrate whether the Act of 2018 made the revision procedure more accessible in reality.


Katrien Verhesschen
Katrien Verhesschen is a PhD candidate and teaching assistant at the Institute of Criminal Law KU Leuven.

Cyrille Fijnaut
Cyrille Fijnaut is Emeritus Professor of Criminal Law & Criminology at Erasmus University Rotterdam, KU Leuven and Tilburg University.
Article

Access_open Exoneration in Sweden

Is It Not about Time to Reform the Swedish Model?

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful convictions, extraordinary legal remedy, exoneration, exoneration in Sweden
Authors Dennis Martinsson
AbstractAuthor's information

    This article reviews exoneration in Sweden, with a focus on the procedure of applying for exoneration. First, it highlights some core features of Swedish criminal procedural law, necessary to understand exoneration in the Swedish context. Secondly, it outlines the possibilities in Swedish law to apply for exoneration, both in favour of a convicted person and to the disadvantage of a previously acquitted defendant. Thirdly, it identifies some challenges with the current Swedish model of administering applications for exoneration. Fourthly, it argues that the current system should be reformed by introducing into Swedish law a review committee that administers applications for exoneration.


Dennis Martinsson
Dennis Martinsson is Assistant Professor in the Department of Law of Stockholm University in Sweden.
Article

Access_open A European Approach to Revision in Criminal Matters?

Journal Erasmus Law Review, Issue 4 2020
Authors Joost Nan, Nina Holvast and Sjarai Lestrade
Author's information

Joost Nan
Joost Nan is Associate Professor at the Erasmus University Rotterdam.

Nina Holvast
Nina Holvast is Assistant Professor at the Erasmus Universiteit Rotterdam.

Sjarai Lestrade
Sjarai Lestrade is Assistant Professor at the Radboud University Nijmegen.
Article

Access_open Between Legal Certainty and Doubt

The Developments in the Procedure to Overturn Wrongful Convictions in the Netherlands

Journal Erasmus Law Review, Issue 4 2020
Keywords revision law, post-conviction review, wrongful convictions, miscarriages of justice, criminal law, empirical research
Authors Nina Holvast, Joost Nan and Sjarai Lestrade
AbstractAuthor's information

    The Dutch legislature has recently (2012) altered the legislation for post-conviction revision of criminal cases. The legislature aimed to improve the balance between the competing interests of individual justice and the finality of verdicts, by making post-conviction revision more accessible. In this article we describe the current legal framework for revising cases. We also study how the revision procedure functions in practice, by looking at the types and numbers of (successful) requests for further investigations and applications for revision. We observe three challenges in finding the right balance in the revision process in the Netherlands. These challenges concern: 1) the scope of the novum criterion (which is strict), 2) the appropriate role of an advisory committee (the ACAS) in revision cases (functioning too much as a pre-filter for the Supreme Court) and, 3) the difficulties that arise due to requiring a defence council when requesting a revision (e.g., financial burdens).


Nina Holvast
Nina Holvast is Assistant Professor at the Erasmus Universiteit Rotterdam.

Joost Nan
Joost Nan is Associate Professor at the Erasmus University Rotterdam.

Sjarai Lestrade
Sjarai Lestrade is Assistant Professor at the Radboud University Nijmegen.

    States apply different material conditions to attract or restrict residence of certain types of migrants. But states can also make use of time as an instrument to design more welcoming or more restrictive policies. States can apply faster application procedures for desired migrants. Furthermore, time can be used in a more favourable way to attract desired migrants in regard to duration of residence, access to a form of permanent residence and protection against loss of residence. This contribution makes an analysis of how time is used as an instrument in shaping migration policy by the European Union (EU) legislator in the context of making migration more or less attractive. This analysis shows that two groups are treated more favourably in regard to the use of time in several aspects: EU citizens and economic- and knowledge-related third-country nationals. However, when it comes to the acquisition of permanent residence after a certain period of time, the welcoming policy towards economic- and knowledge-related migrants is no longer obvious.


Gerrie Lodder
Gerrie Lodder is lecturer and researcher at the Europa Institute of Leiden University.
Article

Access_open Positive State Obligations under European Law: A Tool for Achieving Substantive Equality for Sexual Minorities in Europe

Journal Erasmus Law Review, Issue 3 2020
Keywords Positive obligations, sexual minorities, sexual orientation, European law, human rights
Authors Alina Tryfonidou
AbstractAuthor's information

    This article seeks to examine the development of positive obligations under European law in the specific context of the rights of sexual minorities. It is clear that the law should respect and protect all sexualities and diverse intimate relationships without discrimination, and for this purpose it needs to ensure that sexual minorities can not only be free from state interference when expressing their sexuality in private, but that they should be given the right to express their sexuality in public and to have their intimate relationships legally recognised. In addition, sexual minorities should be protected from the actions of other individuals, when these violate their legal and fundamental human rights. Accordingly, in addition to negative obligations, European law must impose positive obligations towards sexual minorities in order to achieve substantive equality for them. The article explains that, to date, European law has imposed a number of such positive obligations; nonetheless, there is definitely scope for more. It is suggested that European law should not wait for hearts and minds to change before imposing additional positive obligations, especially since this gives the impression that the EU and the European Court of Human Rights (ECtHR) are condoning or disregarding persistent discrimination against sexual minorities.


Alina Tryfonidou
Alina Tryfonidou is Professor of Law, University of Reading.
Article

Access_open A Positive State Obligation to Counter Dehumanisation under International Human Rights Law

Journal Erasmus Law Review, Issue 3 2020
Keywords Dehumanisation, International Human Rights Law, Positive State obligations, Framework Convention for the Protection of National Minorities, International Convention on the Elimination of all forms of Racial Discrimination
Authors Stephanie Eleanor Berry
AbstractAuthor's information

    International human rights law (IHRL) was established in the aftermath of the Second World War to prevent a reoccurrence of the atrocities committed in the name of fascism. Central to this aim was the recognition that out-groups are particularly vulnerable to rights violations committed by the in-group. Yet, it is increasingly apparent that out-groups are still subject to a wide range of rights violations, including those associated with mass atrocities. These rights violations are facilitated by the dehumanisation of the out-group by the in-group. Consequently, this article argues that the creation of IHRL treaties and corresponding monitoring mechanisms should be viewed as the first step towards protecting out-groups from human rights violations. By adopting the lens of dehumanisation, this article demonstrates that if IHRL is to achieve its purpose, IHRL monitoring mechanisms must recognise the connection between dehumanisation and rights violations and develop a positive State obligation to counter dehumanisation. The four treaties explored in this article, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Framework Convention for the Protection of National Minorities and the International Convention on the Elimination of all forms of Racial Discrimination, all establish positive State obligations to prevent hate speech and to foster tolerant societies. These obligations should, in theory, allow IHRL monitoring mechanisms to address dehumanisation. However, their interpretation of the positive State obligation to foster tolerant societies does not go far enough to counter unconscious dehumanisation and requires more detailed elaboration.


Stephanie Eleanor Berry
Stephanie Eleanor Berry is Senior Lecturer in International Human Rights Law, University of Sussex.
Article

Access_open How Far Should the State Go to Counter Prejudice?

A Positive State Obligation to Counter Dehumanisation

Journal Erasmus Law Review, Issue 3 2020
Keywords prejudice, soft paternalism, empathy, liberalism, employment discrimination, access to goods and services
Authors Ioanna Tourkochoriti
AbstractAuthor's information

    This article argues that it is legitimate for the state to practice soft paternalism towards changing hearts and minds in order to prevent behaviour that is discriminatory. Liberals accept that it is not legitimate for the state to intervene in order to change how people think because ideas and beliefs are wrong in themselves. It is legitimate for the state to intervene with the actions of a person only when there is a risk of harm to others and when there is a threat to social coexistence. Preventive action of the state is legitimate if we consider the immaterial and material harm that discrimination causes. It causes harm to the social standing of the person, psychological harm, economic and existential harm. All these harms threaten peaceful social coexistence. This article traces a theory of permissible government action. Research in the areas of behavioural psychology, neuroscience and social psychology indicates that it is possible to bring about a change in hearts and minds. Encouraging a person to adopt the perspective of the person who has experienced discrimination can lead to empathetic understanding. This, can lead a person to critically evaluate her prejudice. The paper argues that soft paternalism towards changing hearts and minds is legitimate in order to prevent harm to others. It attempts to legitimise state coercion in order to eliminate prejudice and broader social patterns of inequality and marginalisation. And it distinguishes between appropriate and non-appropriate avenues the state could pursue in order to eliminate prejudice. Policies towards eliminating prejudice should address the rational and the emotional faculties of a person. They should aim at using methods and techniques that focus on persuasion and reduce coercion. They should raise awareness of what prejudice is and how it works in order to facilitate well-informed voluntary decisions. The version of soft paternalism towards changing minds and attitudes defended in this article makes it consistent with liberalism.


Ioanna Tourkochoriti
Ioanna Tourkochoriti is Lecturer Above the Bar, NUI Galway School of Law.
Article

Access_open The Potential of Positive Obligations Against Romaphobic Attitudes and in the Development of ‘Roma Pride’

Journal Erasmus Law Review, Issue 3 2020
Keywords Roma, Travellers, positive obligations, segregation, culturally adequate accommodation
Authors Lilla Farkas and Theodoros Alexandridis
AbstractAuthor's information

    The article analyses the jurisprudence of international tribunals on the education and housing of Roma and Travellers to understand whether positive obligations can change the hearts and minds of the majority and promote minority identities. Case law on education deals with integration rather than cultural specificities, while in the context of housing it accommodates minority needs. Positive obligations have achieved a higher level of compliance in the latter context by requiring majorities to tolerate the minority way of life in overwhelmingly segregated settings. Conversely, little seems to have changed in education, where legal and institutional reform, as well as a shift in both majority and minority attitudes, would be necessary to dismantle social distance and generate mutual trust. The interlocking factors of accessibility, judicial activism, European politics, expectations of political allegiance and community resources explain jurisprudential developments. The weak justiciability of minority rights, the lack of resources internal to the community and dual identities among the Eastern Roma impede legal claims for culture-specific accommodation in education. Conversely, the protection of minority identity and community ties is of paramount importance in the housing context, subsumed under the right to private and family life.


Lilla Farkas
Lilla Farkas is a practising lawyer in Hungary and recently earned a PhD from the European University Institute entitled ‘Mobilising for racial equality in Europe: Roma rights and transnational justice’. She is the race ground coordinator of the European Union’s Network of Legal Experts in Gender Equality and Non-discrimination.

Theodoros Alexandridis
Theodoros Alexandridis is a practicing lawyer in Greece.

    The entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) pushed state obligations to counter prejudice and stereotypes concerning people with disabilities to the forefront of international human rights law. The CRPD is underpinned by a model of inclusive equality, which views disability as a social construct that results from the interaction between persons with impairments and barriers, including attitudinal barriers, that hinder their participation in society. The recognition dimension of inclusive equality, together with the CRPD’s provisions on awareness raising, mandates that states parties target prejudice and stereotypes about the capabilities and contributions of persons with disabilities to society. Certain human rights treaty bodies, including the Committee on the Rights of Persons with Disabilities and, to a much lesser extent, the Committee on the Elimination of Discrimination against Women, require states to eradicate harmful stereotypes and prejudice about people with disabilities in various forms of interpersonal relationships. This trend is also reflected, to a certain extent, in the jurisprudence of the European Court of Human Rights. This article assesses the extent to which the aforementioned human rights bodies have elaborated positive obligations requiring states to endeavour to change ‘hearts and minds’ about the inherent capabilities and contributions of people with disabilities. It analyses whether these bodies have struck the right balance in elaborating positive obligations to eliminate prejudice and stereotypes in interpersonal relationships. Furthermore, it highlights the convergences or divergences that are evident in the bodies’ approaches to those obligations.


Andrea Broderick
Andrea Broderick is Assistant Professor at the Universiteit Maastricht, the Netherlands.
Article

Access_open The Effectiveness Paradigm in Financial Legislation – Is Effectiveness Measurable?

Journal Erasmus Law Review, Issue 2 2020
Keywords effectiveness, effectiveness measurement methodologies, financial legislation, legislative objective, product approval governance
Authors Jeroen Koomans
AbstractAuthor's information

    How can you determine if financial legislation is effective? This article seeks to identify three characteristics that make up the basis for an effectiveness review, being the determination what the legislative objective is, who is it aimed at and what approach is taken to achieve this objective. Determining the legislative objective may prove to be a challenging undertaking, and the uncertainties that come with that affect the other two characteristics as well. And even if a clear legislative objective can be established, how can you be sure that its achievement was in fact attributable to the legislation under review? What do you compare your results to absent a baseline measurement and how can the vast number of variables that affect the effectiveness of the legislation under review be accounted for, if at all? Is effectiveness in financial legislation at all measurable and, when measured, what is its value in practice?


Jeroen Koomans
Jeroen Koomans is affiliated to the University of Amsterdam FEB Academy for Banking and Insurance and employed by ABN AMRO Bank N.V.
Article

Access_open Age Limits in Youth Justice: A Comparative and Conceptual Analysis

Journal Erasmus Law Review, Issue 1 2020
Keywords youth justice, age limits, minimum age of criminal responsibility, age of criminal majority, legal comparison
Authors Jantien Leenknecht, Johan Put and Katrijn Veeckmans
AbstractAuthor's information

    In each youth justice system, several age limits exist that indicate what type of reaction can and may be connected to the degree of responsibility that a person can already bear. Civil liability, criminal responsibility and criminal majority are examples of concepts on which age limits are based, but whose definition and impact is not always clear. Especially as far as the minimum age of criminal responsibility (MACR) is concerned, confusion exists in legal doctrine. This is apparent from the fact that international comparison tables often show different MACRs for the same country. Moreover, the international literature often seems to define youth justice systems by means of a lower and upper limit, whereas such a dual distinction is too basic to comprehend the complex multilayer nature of the systems. This contribution therefore maps out and conceptually clarifies the different interpretations and consequences of the several age limits that exist within youth justice systems. To that extent, the age limits of six countries are analysed: Argentina, Austria, Belgium, the Netherlands, New Zealand and Northern Ireland. This legal comparison ultimately leads to a proposal to establish a coherent conceptual framework on age limits in youth justice.


Jantien Leenknecht
Jantien Leenknecht is PhD Fellow of the Research Foundation Flanders (FWO) at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.

Johan Put
Johan Put is Full Professor at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.

Katrijn Veeckmans
Katrijn Veeckmans is PhD Fellow at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.
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