Search results for: judicial activism

Authors: Arianna Vedaschi

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This paper addresses the relationship between freedom of expression, national security and radicalization. Is it still possible to talk about a balance between the first two elements? Or, due to the intrusion of the third, is it more appropriate to consider freedom of expression as “permanently disfigured” by securitarian concerns? In this study, both the legislative and the judicial level are taken into account and the comparative method is employed in order to provide the reader with a complete framework of relevant issues and a workable set of solutions. The analysis moves from the finding according to which the tension between free speech and national security has become a major issue in democratic countries, whose very essence is continuously endangered by the ever-changing and multi-faceted threat of international terrorism. In particular, a change in terrorist groups’ recruiting pattern, attracting more and more people by way of a cutting-edge communicative strategy, often employing sophisticated technology as a radicalization tool, has called on law-makers to modify their approach to dangerous speech. While traditional constitutional and criminal law used to punish speech only if it explicitly and directly incited the commission of a criminal action (“cause-effect” model), so-called glorification offences – punishing mere ideological support for terrorism, often on the web – are becoming commonplace in the comparative scenario. Although this is direct, and even somehow understandable, consequence of the impending terrorist menace, this research shows many problematic issues connected to such a preventive approach. First, from a predominantly theoretical point of view, this trend negatively impacts on the already blurred line between permissible and prohibited speech. Second, from a pragmatic point of view, such legislative tools are not always suitable to keep up with ongoing developments of both terrorist groups and their use of technology. In other words, there is a risk that such measures become outdated even before their application. Indeed, it seems hard to still talk about a proper balance: what was previously clearly perceived as a balancing of values (freedom of speech v. public security) has turned, in many cases, into a hierarchy with security at its apex. In light of these findings, this paper concludes that such a complex issue would perhaps be better dealt with through a combination of policies: not only criminalizing ‘terrorist speech,’ which should be relegated to a last resort tool, but acting at an even earlier stage, i.e., trying to prevent dangerous speech itself. This might be done by promoting social cohesion and the inclusion of minorities, so as to reduce the probability of people considering terrorist groups as a “viable option” to deal with the lack of identification within their social contexts.

Keywords: radicalization, free speech, international terrorism, national security

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Authors: Sara Parker, Kay Standing

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This paper will share insights into how menstruators bodies in Nepal are viewed and controlled in Nepal due to the deeply held stigmas and taboos that exist that frame menstrual blood as impure and polluting. It draws on a British Academy Global Challenges Research (BA/GCRF) funded project, ‘Dignity Without Danger,’ that ran from December 2019 to 2022. In Nepal, beliefs and myths around menstrual related practices prevail and vary in accordance to time, generation, caste and class. Physical seclusion and/or restrictions include the consumption of certain foods, the ability to touch certain people and objects, and restricted access to water sources. These restrictions not only put women at risk of poor health outcomes, but they also promote discrimination and challenge fundamental human rights. Despite the pandemic, a wealth of field research and creative outputs have been generated to help break the silence that surrounds menstruation and also highlights the complexity of addressing the harms associated with the exclusion from sacred and profane spaces that menstruators face. Working with locally recruited female research assistants, NGOS and brining together academics from the UK and Nepal, we explore the intersecting factors that impact on menstrual experiences and how they vary throughout Nepal. WE concur with Tamang that there is no such thing as a ‘Nepali Woman’, and there is no one narrative that captures the experiences of menstruators in Nepal. These deeply held beliefs and practices mean that menstruators are denied their right to a dignified menstruation. By being excluded from public and private spaces, such as temples and religious sites, as well as from kitchens and your own bedroom in your own home, these beliefs impact on individuals in complex and interesting ways. Existing research in Nepal by academics and activists demonstrates current programmes and initiatives do not fully address the misconceptions that underpin the exclusionary practices impacting on sexual and reproductive health, a sense of well being and highlight more work is needed in this area. Research has been conducted in all 7 provinces and through exploring and connecting disparate stories, artefacts and narratives, we will deepen understanding of the complexity of menstrual practices enabling local stakeholders to challenge exclusionary practices. By using creative methods to engage with stakeholders and share our research findings as well as highlighting the wealth of activism in Nepal. We highlight the importance of working with local communities, leaders and cutting across disciplines and agencies to promote menstrual justice and dignity. Our research findings and creative outputs that we share on social media channels such as Dignity Without Danger Facebook, Instagram and you tube stress the value of employing a collaborative action research approach to generate material which helps local people take control of their own narrative and change social relations that lead to harmful practices.

Keywords: menstruation, Nepal, stigma, social norms

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Authors: Inga Žukovaitė

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This work aims to present postdoc research on remote criminal proceedings in court in order to streamline the proceedings and, at the same time, ensure the effective participation of the parties in criminal proceedings and the court's obligation to administer substantive and procedural justice. This study tests the hypothesis that remote criminal proceedings do not in themselves violate the fundamental principles of criminal procedure; however, their implementation must ensure the right of the parties to effective legal remedies and a fair trial and, only then, must address the issues of procedural economy, speed and flexibility/functionality of the application of technologies. In order to ensure that changes in the regulation of criminal proceedings are in line with fair trial standards, this research will provide answers to the questions of what conditions -first of all, legal and only then organisational- are required for remote criminal proceedings to ensure respect for the parties and enable their effective participation in public proceedings, to create conditions for quality legal defence and its accessibility, to give a correct impression to the party that they are heard and that the court is impartial and fair. It also seeks to present the results of empirical research in the courts of Lithuania that was made by using the interview method. The research will serve as a basis for developing a theoretical model for remote criminal proceedings in the EU to ensure a balance between the intention to have innovative, cost-effective, and flexible criminal proceedings and the positive obligation of the State to ensure the rights of participants in proceedings to just and fair criminal proceedings. Moreover, developments in criminal proceedings also keep changing the image of the court itself; therefore, in the paper will create preconditions for future research on the impact of remote criminal proceedings on the trust in courts. The study aims at laying down the fundamentals for theoretical models of a remote hearing in criminal proceedings and at making recommendations for the safeguarding of human rights, in particular the rights of the accused, in such proceedings. The following criteria are relevant for the remote form of criminal proceedings: the purpose of judicial instance, the legal position of participants in proceedings, their vulnerability, and the nature of required legal protection. The content of the study consists of: 1. Identification of the factual and legal prerequisites for a decision to organise the entire criminal proceedings by remote means or to carry out one or several procedural actions by remote means 2. After analysing the legal regulation and practice concerning the application of the elements of remote criminal proceedings, distinguish the main legal safeguards for protection of the rights of the accused to ensure: (a) the right of effective participation in a court hearing; (b) the right of confidential consultation with the defence counsel; (c) the right of participation in the examination of evidence, in particular material evidence, as well as the right to question witnesses; and (d) the right to a public trial.

Keywords: remote criminal proceedings, fair trial, right to defence, technology progress

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Authors: Aathira Peedikaparambil Somasundaran

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The beginning of the 20th century marked the perios when a new generation of Lebanese radicals sowed the seeds for the second phase of Levant literary modernism, situated in the Levant. Beirut, during this era popularly fit every radical writer’s criterion owing to its weakened censorship and political control, despite the absence of a protective womb for the development of literary modernism, caused by the natively prevalent political unsettlement. The third stage of literary modernization, in which scholars used Western-inspired critical techniques to better understand their own cultures, coincides with the time period examined in this paper, which involved the international-inspired critical analysis of native cultural stimulants, which raised questions among Arab freethinking intellectuals. Locals who ventured outside recognised the difference between the West's progress and their own nations' stagnation. The awareness of such ‘gap of success’ aroused an ambition from journalists, authors, and proletarian revolutionaries who had studied in Europe, and finally developed enlightened ideas. Some Middle Eastern authors and artists only adopted current social and political frameworks after discovering western modernity. After learning about the upheavals that were happening in the West, these thinkers aspired to bring about equally broad drastic developments in their own country's social, political, and cultural milieu. These occurrences illustrate the increased power of migration to alter the cultural and literary scene in the Levant. The paper intends to discuss the different effects of migration that contributed to Levant literary modernism. The exploration of these factors as causes begins with addressing the politically influenced activism, that has always been a relevant part of Beirut, and then diving into the psychological effects of migration in the individuals of the society, which might have induced an accommodability to alien thoughts and ideas over time, as a coping mechanism. Nature or environmental stimuli, a common trigger for any creative output, often having the highest influence during travel will be identified and analysed to inspect the extent of its impact on the exchange of ideas that resulted in Levant modernism. The efficiency of both the stimulating component of travel and the diaspora of the indigenous, a by-product of travel in catalysing modernism in the Levant has to be proven in order to understand how migration indirectly affected the transmission and adoption of ideas in Levant literature. The paper will revisit the events revolving around these key players and platforms like Shir, to understand how the Lebanese literature, tied down in poetry drastically mutated under the leadership of Adonis, Yusuf et Khal, and other pioneers of Levant literary modernism. The conclision will identify the triggers that helped authors overcome personal and geographical barriers to unite the West and the Levant, and investigate the extent to which the bi-directional migration prompted a transformation in the local poetry. Consequently, the paper aims to shed light into the unique factor that provoked the shift in the literary scene of Twentieth century in the Middle East.

Keywords: literature, modernism, Middle East, levant, Beirut

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Authors: Ana Campina, José Caramelo Gomes, Maria Emília Teixeira, Cristina Costa-Lobo

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In the pursuit of educational equity within Human Rights and European Fundamental Laws, the reality presents serious problems based on the psychologic, social understanding. Take into account the miscellaneous cultures in the global context and the nowadays numbers of Human mobilities, there are serious problems affecting the societies. This justifies the diagnosed need of a renew pedagogical and social education strategy to achieve the integration positive context preventing violence and discrimination, especially in Education systems. Consequently, it is important to have in mind the respect, acceptance, and integration of special needs students in all study degrees, as it is law but a complex reality. Despite the UN and International Human Rights, European Fundamental Chart, and all EU Treats, as the 28th EU State Member’s fundamental laws forecast the right of Education, the respect, the action and promotion of different cultures and the Education for ‘Difference’ integration – cultures; ideologies, Special Needs Students/Citizens – there are different and severe problems. Firstly, there are questions/contexts/problems not denounced by the lack of investments, political, social or ‘powers’ pressures, so, consequently, the authorities don’t have the action as laws demand and the transgressors haven´t any juridical or judicial punishment. Secondly, and our most important point: Governments, authorities and even victims hide these violations/violence/problems what disable the effective protection and law enforcement. Finally, the official and non-official strategies to get around the duties, break away the laws, failing the victims protection and consequently enable the problems increase dramatically. With this research, we observed that there are international Organizations/regions and States acting without respect to the Education right despite their democratic ideology and the generated external ‘image’ of law-abiding and Human Rights defenders. Nevertheless, it is urgent to develop a consistent Human Rights Education program aiming to protect, promote and implement the Right to be different and be respected by the law, the governments, institutions official and non-official, adapted to the needs in each society. The background of this research is the International and European laws, in accordance with the state’s legal systems. The approaches and the differences of the Education for Human and Fundamental Rights execution in the different EU countries, studying the pedagogy and social inclusion programs/strategies, with particular analysis of the Special Needs students. The results aim to construct a European Education profiling, with the governments and EU interventions need, as well as the panorama of the Special Needs Students effective integration achieving a renewed strategy to promote the respect of the Differences and an Inclusive School life.

Keywords: international human rights, culture, differences, European education profiling

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Authors: Loukou Amoin Marie Djedri

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Financing is important for all terrorists – from the largest organizations in control of territories, to the smallest groups – not only for spreading fear through attacks, but also to finance the expansion of terrorist dogmas. These organizations pose serious threats to the international community. The disruption of terrorist financing aims to create a hostile environment for the growth of terrorism and to limit considerably the terrorist groups capacities. The World Bank (WB), together with the International Monetary Fund (IMF), decided to include in their scope the Fight against the money laundering and the financing of terrorism, in order to assist Member States in protecting their internal financial system from terrorism use and abuse and reinforcing their legal system. To do so, they have adopted the Anti-Money Laundering /Combating Financing of Terrorism (AML/CFT) standards that have been set up by the Financial Action Task Force. This set of standards, recognized as the international standards for anti-money laundering and combating the financing of terrorism, has to be implemented by States Members in order to strengthen their judicial system and relevant national institutions. However, we noted that, to date, some States Members still have significant AML/CFT deficiencies, which can constitute serious threats not only to the country’s economic stability but also for the global financial system. In addition, studies stressed out that repressive measures are more implemented by countries than preventive measures, which could be an important weakness in a state security system. Furthermore, we noticed that the AML/CFT standards evolve slowly, while techniques used by terrorist networks keep developing. The goal of the study is to show how to enhance the AML/CFT global compliance through the work of the IMF and the WB, to help member states to consolidate their financial system. To encourage and ensure the effectiveness of these standards, a methodology for assessing the compliance with the AML/CFT standards has been created to follow up the concrete implementation of these standards and to provide accurate technical assistance to countries in need. A risk-based approach has also been adopted as a key component of the implementation of the AML/CFT Standards, with the aim of strengthening the efficiency of the standards. Instead, we noted that the assessment is not efficient in the process of enhancing AML/CFT measures because it seems to lack of adaptation to the country situation. In other words, internal and external factors are not enough taken into account in a country assessment program. The purpose of this paper is to analyze the AML/CFT regime in the fight against the financing of terrorism and to find lasting solutions to achieve the global AML/CFT compliance. The work of all the organizations involved in this combat is imperative to protect the financial network and to lead to the disintegration of terrorist groups in the future.

Keywords: AML/CFT standards, financing of terrorism, international financial institutions, risk-based approach

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Authors: Doreen Mekunda

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This paper is built on the premise that the current socio-political crisis in the two restive regions of Cameroon, though enveloped with destructive and devastating trends (effects) on both property and human lives, is not without its strengths and merits. It is incontestable that many cultures, to a greater extent, are going to be destroyed as people forcibly move from war-stricken habitats to non-violent places. Many cultural potentials, traditional shrines, artifacts, art, and crafts, etc., are unknowingly or knowingly disfigured, and many other ugly things will, by the end of the crisis, affect the cultures of these two regions under siege and of the receiving population. A plethora of other problems like the persecution of Internally Displaced Persons (IDPs) for being displaced and blamed for increased crime rates and the existence of cultural and ethnic differences that produce both inter-tribal and interpersonal conflicts and conflicts between communities will abound. However, there is the emergence of rapid literature, and other forms of cultural productions, whether written or oral, is visible, thereby precipitating a rich cultural diversity due to the coming together of a variety of cultures of both the IDPs and the receiving populations, rapid urbanization, improvement of health-related issues, the rebirth of indigenous cultural practices, the development of social and lingua-cultural competences, dependence on alternative religions, faith and spirituality. Even financial and economic dependence, though a burden to others by IDPs, has its own merits as it improves the living standards of the IDPs. To be able to obtain plausible results, cultural materialism, which is a literary theory that hinges on the empirical study of socio-cultural systems within a materialist infrastructure-super-structure framework, is employed together with the postcolonial theory. Postcolonial theory because the study deals with postcolonial experiences/tenets of migration, hybridity, ethnicity, indignity, language, double consciousness, migration, center/margin binaries, and identity, amongst others. The study reveals that the involuntary movement of persons from their habitual homes brings about movement in cultures, thus, the emergence of new cultures. The movement of people who hold fast to their cultural heritage can only influence new forms of literature, the development of new communication competences, the rise of alternative religion, faith and spirituality, the re-emergence of customary and traditional legal systems that might have been abandoned for the new judicial systems, and above all the revitalization of traditional health care systems.

Keywords: alternative religion, emergence, socio-political crisis, spirituality, lingua-cultural competences

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Authors: Saska Alexandria Hayes

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Multiple Convention Refugees in New Zealand are stuck in a state of immigration limbo due to a lack of defined immigration policies. The Refugee Convention of 1951 does not give the right to be issued a permanent right to live and work in the country of asylum. A gap in New Zealand's immigration law and policy has left Convention Refugees without the right to obtain a resident or temporary entry visa. The significant lack of literature on this topic suggests that the lack of visa options for Convention Refugees in New Zealand is a widely unknown or unacknowledged issue. Refugees in New Zealand enjoy the right of non-refoulement contained in Article 33 of the Refugee Convention 1951, whether lawful or unlawful. However, a number of rights contained in the Refugee Convention 1951, such as the right to gainful employment and social security, are limited to refugees who maintain lawful immigration status. If a Convention Refugee is denied a resident visa, the only temporary entry visa a Convention Refugee can apply for in New Zealand is discretionary. The appeal cases heard at the Immigration Protection Tribunal establish that Immigration New Zealand has declined resident and discretionary temporary entry visa applications by Convention Refugees for failing to meet the health or character immigration instructions. The inability of a Convention Refugee to gain residency in New Zealand creates a dependence on the issue of discretionary temporary entry visas to maintain lawful status. The appeal cases record that this reliance has led to Convention Refugees' lawful immigration status being in question, temporarily depriving them of the rights contained in the Refugee Convention 1951 of lawful refugees. In one case, the process of applying for a discretionary temporary entry visa led to a lawful Convention Refugee being temporarily deprived of the right to social security, breaching Article 24 of the Refugee Convention 1951. The judiciary has stated a constant reliance on the issue of discretionary temporary entry visas for Convention Refugees can lead to a breach of New Zealand's international obligations under Article 7 of the International Covenant on Civil and Political Rights. The appeal cases suggest that, despite successful judicial proceedings, at least three persons have been made to rely on the issue of discretionary temporary entry visas potentially indefinitely. The appeal cases establish that a Convention Refugee can be denied a discretionary temporary entry visa and become unlawful. Unlawful status could ultimately breach New Zealand's obligations under Article 33 of the Refugee Convention 1951 as it would procedurally deny Convention Refugees asylum. It would force them to choose between the right of non-refoulement or leaving New Zealand to seek the ability to access all the human rights contained in the Universal Declaration of Human Rights elsewhere. This paper discusses how the current system has given rise to these breaches and emphasizes a need to create a designated temporary entry visa category for Convention Refugees.

Keywords: domestic policy, immigration, migration, New Zealand

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Authors: Inmaculada Yuste Martinez

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Since July 5, 2014, Abubaker al Bagdadi, leader of the Islamic State since 2010 climbed the pulpit of the Great Mosque of Al Nuri of Mosul and proclaimed the Caliphate, the number of fighters who have travelled to Syria to join the Caliphate has increased as never before. Although it is true that the phenomenon of foreign fighters is not a new phenomenon, as it occurred after the Spanish Civil War, Republicans from Ireland and the conflict of the Balkans among others, it is highly relevant the fact that in this case, it has reached figures unknown in Europe until now. The approval of the resolution 2178 (2014) of the Security Council, foreign terrorist fighters placed the subject a priority position on the International agenda. The available data allow us to affirm that women have increasingly assumed operative functions in jihadist terrorism and in the activities linked to it in the development of attacks in the European Union, including minors and young adults. In the case of Spain, one in four of the detainees in 2016 were women, a significant increase compared to 2015. This contrasts with the fact that until 2014 no woman had been prosecuted in Spain for terrorist activities of a jihadist nature. It is fundamental when we talk about the prevention of radicalization and counterterrorism that we do not underestimate the potential threat to the security of countries like Spain that women from the West can assume to the global jihadist movement. This work aims to deepen the radicalization processes of these women and their profiles influencing the female inmate population. It also wants to focus on the importance of creating de-radicalization programs for these inmates since women are a crucial element in radicalization processes. A special focus it is made on young radicalized female inmate population as this target group is the most recoverable and on which it would result more fruitful to intervene. De-radicalization programs must also be designed to fit their profiles and circumstances; a sensitive environment will be prisons and juvenile centers, areas that until now had been unrelated to this problem and which are already hosting the first convicted in judicial offices in Spanish territory. A qualitative research and an empirical and analytical method has been implemented in this work, focused on the cases that took place in Spain of young women and the imaginary that the Islamic State uses for the processes of radicalization for this target group and how it does not fit with their real role in the Jihad, as opposed to other movements in which women do have a real and active role in the armed conflict as YPJ do it as a part of the armed wing of the Democratic Union Party of Syria.

Keywords: caliphate, de-radicalization, foreign fighter, gender perspective, ISIS, jihadism, recruitment

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Authors: Jahnu Bharadwaj

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In the third decade of the 19th century, the political landscape of the Brahmaputra valley changed at many levels. The establishment of East India Company’s authority in ‘Assam’ was complete with the Treaty of Yandaboo. The whole phenomenon of the annexation of Assam into the British Indian Empire led to several administrative reorganizations and reforms under the new regime. British colonial rule was distinguished by new systems and institutions of governance. This paper broadly looks at the historical proceedings of the introduction of the Rule of Law and a new legal structure in the region of ‘Assam’. With numerous archival data, this paper seeks to chiefly examine the trajectory of an important element in the new legal apparatus, i.e. the jury in the British criminal courts introduced in the newly annexed region. Right from the beginning of colonial legal innovations with the establishment of the panchayats and the parallel courts in Assam, the jury became an important element in the structure of the judicial system. In both civil and criminal courts, the jury was to be formed from the learned members of the ‘native’ society. In the working of the criminal court, the jury became significantly powerful and influential. The structure meant that the judge or the British authority eventually had no compulsion to obey the verdict of the jury. However, the structure also provided that the jury had a considerable say in matters of the court proceedings, and their verdict had significant weight. This study seeks to look at certain important criminal cases pertaining to the nineteenth century and the functioning of the jury in those cases. The power play at display between the British officials, judges and the members of the jury would be helpful in highlighting the important deliberations and politics that were in place in the functioning of the British criminal legal apparatus in colonial Assam. The working and the politics of the members of the jury in many cases exerted considerable influence in the court proceedings. The interesting negotiations of the British officials or judges also present us with vital insights. By reflecting on the difficulty that the British officials and judges felt with the considerable space for opinion and difference that was provided to important members of the local society, this paper seeks to locate, with evidence, the racial politics at play within the official formulations of the legal apparatus in the colonial rule in Assam. This study seeks to argue that despite the rhetorical claims of legal equality within the Empire, racial consideration and racial politics was a reality even in the making of the structure itself. This in a way helps to enrich our ideas about the racial elements at work in numerous layers sustaining the colonial regime.

Keywords: criminal courts, colonial regime, jury, race

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Authors: Agnieszka P. Regiec

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Capital companies are based on monetary capital. In the traditional model, the capital is the sum of the nominal values of all shares issued. For a few years within the European countries, the limited liability companies’ (LLC) regulations are leaning towards liberalization of the capital structure in order to provide higher degree of autonomy regarding the intra-corporate governance. Reforms were based primarily on the legal system of the USA. In the USA, the tradition of no-par shares is well-established. Thus, as a point of reference, the American legal system is being chosen. Regulations of Germany, Great Britain, France, Netherlands, Finland, Poland and the USA will be taken into consideration. The analysis of the share capital is important for the development of science not only because the capital structure of the corporation has significant impact on the shareholders’ rights, but also it reflects on relationships between creditors of the company and the company itself. Multi-level comparative approach towards the problem will allow to present a wide range of the possible outcomes stemming from the novelization. The dogmatic method was applied. The analysis was based on the statutes, secondary sources and judicial awards. Both the substantive and the procedural aspects of the capital structure were considered. In Germany, as a result of the regulatory competition, typical for the EU, the structure of LLCs was reshaped. New LLC – Unternehmergesellschaft, which does not require a minimum share capital, was introduced. The minimum share capital for Gesellschaft mit beschrankter Haftung was lowered from 25 000 to 10 000 euro. In France the capital structure of corporations was also altered. In 2003, the minimum share capital of société à responsabilité limitée (S.A.R.L.) was repealed. In 2009, the minimum share capital of société par actions simplifiée – in the “simple” version of S.A.R.L. was also changed – there is no minimum share capital required by a statute. The company has to, however, indicate a share capital without the legislator imposing the minimum value of said capital. In Netherlands the reform of the Besloten Vennootschap met beperkte aansprakelijkheid (B.V.) was planned with the following change: repeal of the minimum share capital as the answer to the need for higher degree of autonomy for shareholders. It, however, preserved shares with nominal value. In Finland the novelization of yksityinen osakeyhtiö took place in 2006 and as a result the no-par shares were introduced. Despite the fact that the statute allows shares without face value, it still requires the minimum share capital in the amount of 2 500 euro. In Poland the proposal for the restructuration of the capital structure of the LLC has been introduced. The proposal provides among others: devaluation of the capital to 1 PLN or complete liquidation of the minimum share capital, allowing the no-par shares to be issued. In conclusion: American solutions, in particular, balance sheet test and solvency test provide better protection for creditors; European no-par shares are not the same as American and the existence of share capital in Poland is crucial.

Keywords: balance sheet test, limited liability company, nominal value of shares, no-par shares, share capital, solvency test

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Authors: Kurt Willems

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This research examines complaints against grading in higher education institutions in four different European regions: England and Wales, Flanders, the Netherlands, and France. The aim of the research is to examine the correlation between the applicable type of complaint handling on the one hand, and selected qualities of the higher education landscape and of public law on the other hand. All selected regions report a rising number of complaints against grading decisions, not only as to internal complaint handling within the institution but also judicially if the dispute persists. Some regions deem their administrative court system appropriate to deal with grading disputes (France) or have even erected a specialty administrative court to facilitate access (Flanders, the Netherlands). However, at the same time, different types of (governmental) dispute resolution bodies have been established outside of the judicial court system (England and Wales, and to lesser extent France and the Netherlands). Those dispute procedures do not seem coincidental. Public law issues such as the underlying legal nature of the education institution and, eventually, the grading decision itself, have an impact on the way the academic complaint procedures are developed. Indeed, in most of the selected regions, contractual disputes enjoy different legal protection than administrative decisions, making the legal qualification of the relationship between student and higher education institution highly relevant. At the same time, the scope of competence of government over different types of higher education institutions; albeit direct or indirect (o.a. through financing and quality control) is relevant as well to comprehend why certain dispute handling procedures have been established for students. To answer the above questions, the doctrinal and comparative legal method is used. The normative framework is distilled from the relevant national legislative rules and their preparatory texts, the legal literature, the (published) case law of academic complaints and the available governmental reports. The research is mainly theoretical in nature, examining different topics of public law (mainly administrative law) and procedural law in the context of grading decisions. The internal appeal procedure within the education institution is largely left out of the scope of the research, as well as different types of non-governmental-imposed cooperation between education institutions, given the public law angle of the research questions. The research results in the categorization of different academic complaint systems, and an analysis of the possibility to introduce each of those systems in different countries, depending on their public law system and higher education system. By doing so, the research also adds to the debate on the public-private divide in higher education systems, and its effect on academic complaints handling.

Keywords: higher education, legal qualification of education institution, legal qualification of grading decisions, legal protection of students, academic litigation

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Authors: Agbana Olaseinde Julius, Opadere Olaolu Stephen

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The concept of cross carpeting is as old as politics itself. Basically, it entails an individual leaving a political party/group, to join another. The reasons for which cross carpeting is embarked upon are diverse: ideological differences; ethnic and/or religious differences; access to actual or perceived better political opportunities; liberty of association; rancor; etc. The current democratic dispensation in Nigeria has experienced renewed and rather alarming rate of cross carpeting, for reasons including those enumerated above and others. Right to cross carpet is inherent in a democratic setting as well as the political stakeholder; so does it also comprise of the constitutional right of ‘freedom of association’. However, the current species of cross carpeting in Nigeria requires scrutiny, in view of some potential legal and moral challenges it poses for both the present and the future. Cross carpeting is considered both legal and constitutional, but the current spate raises the question of expediency, particularly in a nascent democracy. It is considered to have a propensity of negatively impacting political stability in a polity with fragile nerves. Importantly too, cross carpeting is considered a potential damage to the psyche of posterity with regards to a warped disposition to promises, honour and integrity. The perceived peculiar dimension of cross carpeting in Nigeria raises questions on the quality of leadership presently obtainable in the country, vis-à-vis greed, self-centeredness, disregard for the concern and interest of avowed followers/fans, entrenchment of distrust, etc. Thus, the study made use of primary and secondary sources of information. The primary sources included the Constitutions of the Federal Republic of Nigeria 1999 (as amended); judicial decisions; and the Electoral Act, 2010 (as Amended). The secondary sources comprised of information from books, journals, newspapers, magazines and Internet documents. Data obtained from these sources were subjected to content analysis. Findings of this study show that though the act of cross carpeting may not be in breach of any Statute or Law, it however, in most cases, breaches the morals of expediency. The morality thereof is far from justifiable, and should be condemned in the interest of the present and posterity. There is a great and urgent need to embark on a re-entrenchment of the culture of political ideology in the Nigerian polity, as obtainable in developed democracies. In conclusion, the need to exercise the right of cross carpeting with caution cannot be overemphasized. Membership of a political group/party should be backed by commitment to well defined ideologies and values. Commitment to them should be regarded akin to that found in the family, which is not easily or flippantly jettisoned.

Keywords: cross-carpeting, Nigeria, legal, moral issues, politics

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Authors: S. Opadere Olaolu

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Religion, as a belief-system, has been with humanity for a long time. It has been recognised to impact the lives of individuals, groups, and communities that hold it dear. Whether the impact is regarded as positive or not depends on the assessor. Thus, for reasons of likely subjectiveness, possible irrationality, and even outright deliberate abuse, most emerging economies seek to follow the pattern of separating the State from religion; yet it is certain that the influence of religion on the State is incontrovertible. Corruption, on the other hand, though difficult to define in precise terms, is clearly perceptible. It could manifest in very diverse ways, including the abuse of a position of trust for the gain of an individual, or of a group with shared ulterior motive. Religion has been perceived, among others, as a means to societal stability, marital stability, infusion of moral rectitude, and conscience with regards to right and wrong. In time past, credible and dependable characters reposed largely and almost exclusively with those bearing deep religious conviction. Even in the political circle, it was thought that the involvement of those committed to religion would bring about positive changes, for the benefit of the society at large. On the contrary, in recent times, religion has failed in these lofty expectations. The level of corruption in most developing economies, and the increase of religion seem to be advancing pari passu. For instance, religion has encroached into political space, and vice versa, without any differentiable posture to the issue of corruption. Worse still, religion appears to be aiding and abetting corruption, overtly and/or covertly. Therefore, this discourse examined from the Nigerian perspective—as a developing economy—, and from a multidisciplinary stand-point of Law and Religion, the issue of religion; secularism; corruption; romance of religion and politics; inability of religion to exemplify moral rectitude; indulgence of corruption by religion; and the need to keep religion in private sphere, with proper checks. The study employed primary and secondary sources of information. The primary sources included the Constitutions of the Federal Republic of Nigeria 1999, as amended; judicial decisions; and the Bible. The secondary sources comprised of information from books, journals, newspapers, magazines and Internet documents. Data obtained from these sources were subjected to content analysis. Findings of this study include the breach of constitutional provisions to keep religion out of State affairs; failure of religion to curb corruption; outright indulgence of corruption by religion; and religion having become a political tool. In conclusion, it is considered apposite still to keep the State out of religion, and to seek enforcement of the constitutional provisions in this respect. The stamp of legality placed on overt and covert corruption by religion should be removed by all means.

Keywords: corruption, complicity, legalizing, religion

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Authors: Valentina Tereshkova

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The paper shows how the relationship between international law and national sovereignty is viewed through the implementation of European Court of Human Right judgments. Methodology: Сonclusions are based on a survey of representatives of the legislative authorities and judges of the Krasnoyarsk region, the Rostov region, Sverdlovsk region and Tver region. The paper assesses the activities of the Russian Constitutional Court from 1998 to 2015 related to the establishment of the implementation mechanism and the Russian Constitutional Court judgments of 14.07.2015, № 21-P and of 19.04.2016, № 12-P where the Constitutional Court stated the impossibility of executing ECtHR judgments. I. Implementation of ECHR judgments by courts and other authorities. Despite the publication of the report of the RF Ministry of Justice on the implementation, we could not find any formal information on the Russian policy of the ECtHR judgment implementation. Using the results of the survey, the paper shows the effect of ECtHR judgments on law and legal practice in Russia. II. Implementation of ECHR judgments by Russian Constitutional Court. Russian Constitutional Court had implemented the ECtHR judgments. However, the Court determined on July, 14, 2015 its competence to consider the question of implementation of ECHR judgments. Then, it stated that the execution of the judgment [Anchugov and Gladkov case] was impossible because the Russian Constitution has the highest legal force on April, 19, 2016. Recently the CE Committee of Ministers asked Russia to provide ‘without further delay’ a compensation plan for the Yukos case. On November 11, 2016, Constitutional Court accepted a request from the Ministry of Justice to consider the possibility of execution of the ECtHR judgment in the Yukos case. Such a request has been made possible due to a lack of implementation mechanism. Conclusion: ECtHR judgments are as an effective tool to solve the structural problems of a legal system. However, Russian experts consider the ECHR as a tool of protection of individual rights. The paper shows link between the survey results and the absence of the implementation mechanism. New Article 104 par. 2 and Article 106 par. 2 of the Federal Law of the Constitutional Court are in conflict with international obligations of the Convention on the Law on Treaties 1969 and Article 46 ECHR. Nevertheless, a dialogue may be possible between Constitutional Court and the ECtHR. In its judgment [19.04.2016] the Constitutional Court determined that the general measures to ensure fairness, proportionality and differentiation of the restrictions of voting rights were possible in judicial practice. It also stated the federal legislator had the power ‘to optimize the system of Russian criminal penalties’. Despite the fact that the Constitutional Court presented the Görgülü case [Görgülü v Germany] as an example of non-execution of the ECtHR judgment, the paper proposes to draw on the experience of German Constitutional Court, which in the Görgülü case, on the one hand, stressed national sovereignty and, on the other hand, took advantage of this sovereignty, to resolve the issue in accordance with the ECHR.

Keywords: implementation of ECtHR judgments, sovereignty, supranational jurisdictions, principle of subsidiarity

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Authors: Kelly S. Parkinson, Katherine Y. Teh-White

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Futureye has a bespoke social licence to operate methodology which has successfully secured community approval and commercial return for fisheries which have faced regulatory and financial risk. This unique approach to fisheries management focuses on delivering improved social and environmental outcomes to support the fishing industry make steps towards achieving the United Nations SDGs. An SLO is the community’s implicit consent for a business or project to exist. An SLO must be earned and maintained alongside regulatory licences. In current and new operations, it helps you to anticipate and measure community concerns around your operations – leading to more predictable and sensible policy outcomes that will not jeopardise your commercial returns. Rising societal expectations and increasing activist sophistication mean the international fishing industry needs to resolve community concerns at each stage their supply chain. Futureye applied our tested social licence to operate (SLO) methodology to help Austral Fisheries who was being attacked by activists concerned about the sustainability of Patagonian Toothfish. Austral was Marine Stewardship Council certified, but pirates were making the overall catch unsustainable. Austral wanted to be carbon neutral. SLO provides a lens on the risk that helps industries and companies act before regulatory and political risk escalates. To do this assessment, we have a methodology that assesses the risk that we can then translate into a process to create a strategy. 1) Audience: we understand the drivers of change and the transmission of those drivers across all audience segments. 2) Expectation: we understand the level of social norming of changing expectations. 3) Outrage: we understand the technical and perceptual aspects of risk and the opportunities to mitigate these. 4) Inter-relationships: we understand the political, regulatory, and reputation system so that we can understand the levers of change. 5) Strategy: we understand whether the strategy will achieve a social licence through bringing the internal and external stakeholders on the journey. Futureye’s SLO methodologies helped Austral to understand risks and opportunities to enhance its resilience. Futureye reviewed the issues, assessed outrage and materiality and mapped SLO threats to the company. Austral was introduced to a new way that it could manage activism, climate action, and responsible consumption. As a result of Futureye’s work, Austral worked closely with Sea Shepherd who was campaigning against pirates illegally fishing Patagonian Toothfish as well as international governments. In 2016 Austral launched the world’s first carbon neutral fish which won Austral a thirteen percent premium for tender on the open market. In 2017, Austral received the prestigious Banksia Foundation Sustainability Leadership Award for seafood that is sustainable, healthy and carbon neutral. Austral’s position as a leader in sustainable development has opened doors for retailers all over the world. Futureye’s SLO methodology can identify the societal, political and regulatory risks facing fisheries and position them to proactively address the issues and become an industry leader in sustainability.

Keywords: carbon neutral, fisheries management, risk communication, social licence to operate, sustainable development

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Authors: Khrukulu Khusoh

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The strategies and tactics used by governments throughout the world to counter terrorism and insurgency over the past few decades include the declaration of states of siege or martial law, enactment of anti-terrorist legislation and strengthening of judicial powers. Some of these measures taken have been more successful than the other, but some have proved counterproductive, alienating the public from the authorities and further polarizing an already fractured political environment. Such cases of alienation and polarization can be seen in the northeastern states of India. The Armed Forces (Special Powers) Act which was introduced to curb insurgency in the remote jungles of the far-flung areas has remained a telling tale of agony in the north east India. Grievous trauma to humans through encounter killings, custodial deaths, unwarranted torture, exploitation of women and children in several ways have been reported in Nagaland, Manipur and other northeastern states where the Indian army has been exercising powers under the Armed Forces (Special Powers) Act. While terrorism and the insurgency are destructive of human rights, counter-terrorism does not necessarily restore and safeguard human rights. This special law has not proven effective particularly in dealing with terrorism and insurgency. The insurgency has persisted in the state of Nagaland even after sixty years notwithstanding the presence of a good number of special laws. There is a need to fight elements that threaten the security of a nation, but the methods chosen should be measured, otherwise the fight is lost. There has been no review on the effectiveness or failure of the act to realize its intended purpose. Nor was there any attempt on the part of the state to critically look at the violation of rights of innocent citizens by the state agencies. The Indian state keeps enacting laws, but none of these could be effectively applied as there was the absence of clarity of purpose. Therefore, every new law which has been enacted time and again to deal with security threats failed to bring any solution for the last six decades. The Indian state resorts to measures which are actually not giving anything in terms of strategic benefits but are short-term victories that might result in long-term tragedies. Therefore, right thinking citizens and human rights activists across the country feel that introduction of Armed Forces (Special Powers) Act was as much violation of human rights and its continuation is undesirable. What worried everyone is the arbitrary use, or rather misuse of power by the Indian armed forces particularly against the weaker sections of the society, including women. After having being subjected to indiscriminate abuse of that law, people of the north-east India have been demanding its revocation for a long time. The present paper attempts to critically examine the violation of human rights under Armed Forces (Special Powers) Act. It also attempts to bring out the impact of Armed Forces (Special Powers) Act on the Naga people.

Keywords: armed forces, insurgency, special laws, violence

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Authors: Laura Lee Prather

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A functioning democracy is defined by various characteristics, including freedom of speech, equality, human rights, rule of law and many more. Lawsuits brought to intimidate speakers, drain the resources of community members, and silence journalists and others who speak out in support of matters of public concern are an abuse of the legal system and an encroachment of human rights. The impact can have a broad chilling effect, deterring others from speaking out against abuse. This article aims to suggest ways to address this form of judicial harassment. In 1988, University of Denver professors George Pring and Penelope Canan coined the term “SLAPP” when they brought to light a troubling trend of people getting sued for speaking out about matters of public concern. Their research demonstrated that thousands of people engaging in public debate and citizen involvement in government have been and will be the targets of multi-million-dollar lawsuits for the purpose of silencing them and dissuading others from speaking out in the future. SLAPP actions chill information and harm the public at large. Professors Pring and Canan catalogued a tsunami of SLAPP suits filed by public officials, real estate developers and businessmen against environmentalists, consumers, women’s rights advocates and more. SLAPPs are now seen in every region of the world as a means to intimidate people into silence and are viewed as a global affront to human rights. Anti-SLAPP laws are the antidote to SLAPP suits and while commonplace in the United States are only recently being considered in the EU and the UK. This researcher studied more than thirty years of Anti-SLAPP legislative policy in the U.S., the call for evidence and resultant EU Commission’s Anti-SLAPP Directive and Member States Recommendations, the call for evidence by the UK Ministry of Justice, response and Model Anti-SLAPP law presented to UK Parliament, as well as, conducted dozens of interviews with NGO’s throughout the EU, UK, and US to identify varying approaches to SLAPP lawsuits, public policy, and support for SLAPP victims. This paper identifies best practices taken from the US, EU and UK that can be implemented globally to help combat SLAPPs by: (1) raising awareness about SLAPPs, how to identify them, and recognizing habitual abusers of the court system; (2) engaging governments in the policy discussion in combatting SLAPPs and supporting SLAPP victims; (3) educating judges in recognizing SLAPPs an general training on encroachment of human rights; (4) and holding lawyers accountable for ravaging the rule of law.

Keywords: Anti-SLAPP Laws and Policy, Comparative media law and policy, EU Anti-SLAPP Directive and Member Recommendations, International Human Rights of Freedom of Expression

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Authors: E. Tugba Topcu

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The emergency services are usually the first places to encounter forensic cases. Hence, it is important to consider forensics from the perspective of the emergency services staff and the physiological and psychological consequences that may arise as a result of behaviour by itself or another person. Accurate and detailed documentation of the situation in which the patient first arrives at the emergency service and preservation of the forensic findings is pivotal for the subsequent forensic investigation. The first step in determining whether or not a forensic case exists is to perform a medical examination of the patient. For each individual suspected to be part of a forensic case, police officers should be informed at the same time as the medical examination is being conducted. Violent events are increasing every year and with an increase in the number of forensic cases, emergency service workers have increasing responsibility and consequently play a key role in protecting, collecting and arranging the forensic evidence. In addition, because the emergency service workers involved in forensic events typically have information about the accused and/or victim, as well as evidence related to the events and the cause of injuries, police officers often require their testimony. However, both nurses and other health care personnel do not typically have adequate expertise in forensic medicine. Emergency nurses should take an active role for determining that whether any patient admitted to the emergency services is a clinical forensic patient the emergency service with injury and requiring possible punishment and knowing of their roles and responsibilities in this area provides legal protection as well as the protection of the judicial affair. Particularly, in emergency services, where rapid patient turnover and high workload exists, patient registration and case reporting may not exist. In such instances, the witnesses, typically the nurses, are often consulted for information. Knowledge of forensic medical matters plays a vital role in achieving justice. According to the Criminal Procedure Law, Article 75, Paragraph 3, ‘an internal body examination or the taking of blood or other biological samples from the body can be performed only by a doctor or other health professional member’. In favour of this item, the clinic nurse and doctor are mainly responsible for evaluating forensic cases in emergency departments, performing the examination, collecting evidence, and storing and reporting data. The courts place considerable importance on determining whether a suspect is the victim or accused and, thus, in terms of illuminating events, it is crucial that any evidence is gathered carefully and appropriately. All the evidence related to the forensic case including the forensic report should be handed over to the police officers. In instances where forensic evidence cannot be collected and the only way to obtain the evidence is the hospital environment, health care personnel in emergency services need to have knowledge about the diagnosis of forensic evidence, the collection of evidence, hiding evidence and provision of the evidence delivery chain.

Keywords: emergency department, emergency nursing, forensic cases, forensic nursing

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Authors: Flavia Kroetz

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From 1964 to 1985, Brazil was ruled by a dictatorial regime that, under the discourse of fight against terrorism and subversion, implemented cruel and atrocious practices against anyone who opposed the State ideology. At the same time, several Latin American countries faced dictatorial periods and experienced State repression through apparatuses of violence institutionalized in the very governmental structure. Despite the correspondence between repressive methods adopted by authoritarian regimes in States such as Argentina, Chile, El Salvador, Peru and Uruguay, the mechanisms of democratic transition adopted with the end of each dictatorship were significantly different. While some States have found ways to deal with past atrocities through serious and transparent investigations of the crimes perpetrated in the name of repression, in others, as in Brazil, a culture of impunity remains rooted in society, manifesting itself in the widespread disbelief of the population in governmental and democratic institutions. While Argentina, Chile, Peru and Uruguay are convincing examples of the possibility and importance of the prosecution of crimes such as torture, forced disappearance and murder committed by the State, El Salvador demonstrates the complete failure to punish or at least remove from power the perpetrators of serious crimes against civilians and political opponents. In a scenario of widespread violations of human rights, State violence becomes entrenched within society as a daily and even necessary practice. In Brazil, a lack of political and judicial will withstands the impunity of those who, during the military regime, committed serious crimes against human rights under the authority of the State. If the reproduction of violence is a direct consequence of the culture of denial and the rejection of everyone considered to be different, ‘the other’, then the adoption of transitional mechanisms that underpin the historical and political contexts of the time seems essential. Such mechanisms must strengthen democracy through the effective implementation of the rights to memory and to truth, the right to justice and reparations for victims and their families, as well as institutional changes in order to remove from power those who, when in power, could not distinguish between legality and authoritarianism. Against this background, this research analyses the importance of transitional justice for the restoration of democracy, considering the adoption of amnesty laws as a strategy to preclude criminal prosecution of offenses committed during dictatorial regimes. The study investigates the scope of Law No 6.683/79, the Brazilian amnesty law, which, according to a 2010 decision of the Brazilian Constitutional Supreme Court, granted amnesty to those responsible for political crimes and related crimes, committed between September 2, 1961 and August 15, 1979. Was the purpose of this Law to grant amnesty to violent crimes committed by the State? If so, is it possible to recognize the legitimacy of a Congress composed of indirectly elected politicians controlled by the dictatorship?

Keywords: amnesty law, criminal justice, dictatorship, state violence

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Authors: Athanasia Petropoulou

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While there is a common understanding that a person’s sex, gender, gender identity, and sexual orientation shape every stage of the migration experience, theories of international migration had until recently not been focused on exploring and incorporating a gender perspective in their analysis. In a similar vein, refugee law has long been the object of criticisms for failing to recognize and respond appropriately to women’s and sexual minorities’ experiences of persecution. The present analysis attempts to depict the challenges faced by the European Court of Human Rights (ECtHR) and U.S. courts when adjudicating in cases involving asylum claims with a gendered perspective. By providing a comparison between adjudicating strategies of international and national jurisdictions, the article aims to identify common or distinctive approaches in addressing gendered based claims. The paper argues that, despite the different nature of the judicial bodies and the different legal instruments applied respectively, judges face similar challenges in this context and often fail to qualify and address the gendered dimensions of asylum claims properly. The ECtHR plays a fundamental role in safeguarding human rights protection in Europe not only for European citizens but also for people fleeing violence, war, and dire living conditions. However, this role becomes more difficult to fulfill, not only because of the obvious institutional constraints but also because cases related to claims of asylum seekers concern a domain closely linked to State sovereignty. Amid the current “refugee crisis,” risk assessment performed by national authorities, like in the process of asylum determination, is shaped by wider geopolitical and economic considerations. The failure to recognize and duly address the gendered dimension of non - refoulement claims, one of the many shortcomings of these processes, is reflected in the decisions of the ECtHR. As regards U.S. case law, the study argues that U.S. courts either fail to apply any connection between asylum claims and their gendered dimension or tend to approach gendered based claims through the lens of the “political opinion” or “membership of a particular social group” reasons of fear of persecution. This exercise becomes even more difficult, taking into account that the U.S. asylum law inappropriately qualifies gendered-based claims. The paper calls for more sociologically informed decision-making practices and for a more contextualized and relational approach in the assessment of the risk of ill-treatment and persecution. Such an approach is essential for unearthing the gendered patterns of persecution and addressing effectively related claims, thus securing the human rights of asylum seekers.

Keywords: asylum, European court of human rights, gender, human rights, U.S. courts

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Authors: Antonio Martín-Pardo

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With regard to the context in which this paper is inserted, it is noteworthy that the current criminal policy model in which we find immersed, denominated by some doctrine sector as the citizen security model, is characterized by a marked tendency towards the discredit of expert knowledge. This type of technic knowledge has been displaced by the common sense and by the daily experience of the people at the time of legislative drafting, as well as by excessive attention to the short-term political effects of the law. Despite this criminal-political adverse scene, we still find valuable efforts in the side of experts to bring some rationality to the legislative development. This is the case of the proposal for a new cannabis regulation model in Spain carried out by the Cannabis Policy Studies Group (hereinafter referred as ‘GEPCA’). The GEPCA is a multidisciplinary group composed by authors with multiple/different orientations, trajectories and interests, but with a common minimum objective: the conviction that the current situation regarding cannabis is unsustainable and, that a rational legislative solution must be given to the growing social pressure for the regulation of their consumption and production. This paper details the main lines through which this technical proposal is developed with the purpose of its dissemination and discussion in the Congress. The basic methodology of the proposal is inductive-expository. In that way, firstly, we will offer a brief, but solid contextualization of the situation of cannabis in Spain. This contextualization will touch on issues such as the national regulatory situation and its relationship with the international context; the criminal, judicial and penitentiary impact of the offer and consumption of cannabis, or the therapeutic use of the substance, among others. In second place, we will get down to the business properly by detailing the minutia of the three main cannabis access channels that are proposed. Namely: the regulated market, the associations of cannabis users and personal self-cultivation. In each of these options, especially in the first two, special attention will be paid to both, the production and processing of the substance and the necessary administrative control of the activity. Finally, in a third block, some notes will be given on a series of subjects that surround the different access options just mentioned above and that give fullness and coherence to the proposal outlined. Among those related issues we find some such as consumption and tenure of the substance; the issue of advertising and promotion of cannabis; consumption in areas of special risk (work or driving v. g.); the tax regime; the need to articulate evaluation instruments for the entire process; etc. The main conclusion drawn from the analysis of the proposal is the unsustainability of the current repressive system, clearly unsuccessful, and the need to develop new access routes to cannabis that guarantee both public health and the rights of people who have freely chosen to consume it.

Keywords: cannabis regulation proposal, cannabis policies studies group, criminal policy, expertise participation

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Authors: Ana Flavia Belchior De Andrade

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Forensic laboratories all over the world face a great challenge to overcame waiting time and backlog in many different areas. Many aspects contribute to this situation, such as an increase in drug complexity, increment in the number of exams requested and cuts in funding limiting laboratories hiring capacity. Altogether, those facts pose an essential challenge for forensic chemistry laboratories to keep both quality and time of response within an acceptable period. In this paper we will analyze how the backlog affects test results and, in the end, the whole judicial system. In this study data from marijuana samples seized by the Federal District Civil Police in Brazil between the years 2013 and 2017 were tabulated and the results analyzed and discussed. In the last five years, the number of petitioned exams increased from 822 in February 2013 to 1358 in March 2018, representing an increase of 32% in 5 years, a rise of more than 6% per year. Meanwhile, our data shows that the number of performed exams did not grow at the same rate. Product numbers are stationed as using the actual technology scenario and analyses routine the laboratory is running in full capacity. Marijuana detection is the most prevalence exam required, representing almost 70% of all exams. In this study, data from 7,110 (seven thousand one hundred and ten) marijuana samples were analyzed. Regarding waiting time, most of the exams were performed not later than 60 days after receipt (77%). Although some samples waited up to 30 months before being examined (0,65%). When marijuana´s exam is delayed we notice the enlargement of inconclusive results using thin-layer chromatography (TLC). Our data shows that if a marijuana sample is stored for more than 18 months, inconclusive results rise from 2% to 7% and when if storage exceeds 30 months, inconclusive rates increase to 13%. This is probably because Cannabis plants and preparations undergo oxidation under storage resulting in a decrease in the content of Δ9-tetrahydrocannabinol ( Δ9-THC). An inconclusive result triggers other procedures that require at least two more working hours of our analysts (e.g., GC/MS analysis) and the report would be delayed at least one day. Those new procedures increase considerably the running cost of a forensic drug laboratory especially when the backlog is significant as inconclusive results tend to increase with waiting time. Financial aspects are not the only ones to be observed regarding backlog cases; there are also social issues as legal procedures can be delayed and prosecution of serious crimes can be unsuccessful. Delays may slow investigations and endanger public safety by giving criminals more time on the street to re-offend. This situation also implies a considerable cost to society as at some point, if the exam takes a long time to be performed, an inconclusive can turn into a negative result and a criminal can be absolved by flawed expert evidence.

Keywords: backlog, forensic laboratory, quality management, accreditation

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Authors: Amrisha Pandey

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Indian constitution has distributed the powers to govern and legislate between the centre and the state governments based on the list of subject-matter provided in the seventh schedule. By that schedule, the states are authorized to regulate the water resource within their territory. However, the centre/union government is authorized to regulate the inter-state water disputes. The powers entrusted to the union government mainly deals with the sharing of river water which flows through the territory of two or more states. For that purpose, a provision enumerated in Article 262 of the Constitution of India which empowers the parliament to resolve any such inter-state river water dispute. Therefore, the parliament has enacted the - ‘Inter-State River Water Dispute Tribunal, Act’, which allows the central/union government to constitute the tribunal for the adjudication of the disputes and expressly bars the jurisdiction of the judiciary in the concerned matter. This arrangement was intended to resolve the dispute using political or diplomatic means, without deliberately interfering with the sovereign power of the states to govern the water resource. The situation in present context is complicated and sensitive. Due to the change in climatic conditions; increasing demand for the limited resource; and the advanced understanding of the freshwater cycle, which is missing from the existing legal regime. The obsolete legal and political tools, the existing legislative mechanism and the institutional units do not seem to accommodate the rising challenge to regulate the resource. Therefore, resulting in the rise of the politicization of the inter-state water disputes. Against this background, this paper will investigate the inter-state river water dispute in India and will critically analyze the ability of the existing constitutional, and institutional units involved in the task. Moreover, the competence of the tribunal as the adjudicating body in present context will be analyzed using the long ongoing inter-state water dispute in India – The Cauvery Water Dispute, as the case study. To conduct the task undertaken in this paper the doctrinal methodology of the research is adopted. The disputes will also be investigated through the lens of sovereignty, which is accorded to the states using the theory of ‘separation of power’ and the ‘grant of internal sovereignty’, to its federal units of governance. The issue of sovereignty in this paper is discussed in two ways: 1) as the responsibility of the state - to govern the resource; and 2) as the obligation of the state - to govern the resource, arising from the sovereign power of the state. Furthermore, the duality of the sovereign power coexists in this analysis; the overall sovereign authority of the nation-state, and the internal sovereignty of the states as its federal units of governance. As a result, this investigation will propose institutional, legislative and judicial reforms. Additionally, it will suggest certain amendments to the existing constitutional provisions in order to avoid the contradictions in their scope and meaning in the light of the advanced hydrological understanding.

Keywords: constitution of India, federalism, inter-state river water dispute tribunal of India, sovereignty

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Authors: Tamir Michal

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The subject of Bedouin dispersion has accompanied the State of Israel from the day of its establishment. From a legal point of view, this subject has offered a launchpad for creative judicial decisions. Thus, for example, the first court decision in Israel to recognize affirmative action (Avitan), dealt with a petition submitted by a Jew appealing the refusal of the State to recognize the Petitioner’s entitlement to the long-term lease of a plot designated for Bedouins. The Supreme Court dismissed the petition, holding that there existed a public interest in assisting Bedouin to establish permanent urban settlements, an interest which justifies giving them preference by selling them plots at subsidized prices. In another case (The Forum for Coexistence in the Negev) the Supreme Court extended equitable relief for the purpose of constructing a bridge, even though the construction infringed the Law, in order to allow the children of dispersed Bedouin to reach school. Against this background, the recent verdict, delivered during the Protective Edge military campaign, which dismissed a petition aimed at forcing the State to spread out Protective Structures in Bedouin villages in the Negev against the risk of being hit from missiles launched from Gaza (Abu Afash) is disappointing. Even if, in arguendo, no selective discrimination was involved in the State’s decision not to provide such protection, the decision, and its affirmation by the Court, is problematic when examined through the prism of the Theory of Recognition. The article analyses the issue by tools of theory of Recognition, according to which people develop their identities through mutual relations of recognition in different fields. In the social context, the path to recognition is cognitive respect, which is provided by means of legal rights. By seeing other participants in Society as bearers of rights and obligations, the individual develops an understanding of his legal condition as reflected in the attitude to others. Consequently, even if the Court’s decision may be justified on strict legal grounds, the fact that Jewish settlements were protected during the military operation, whereas Bedouin villages were not, is a setback in the struggle to make the Bedouin citizens with equal rights in Israeli society. As the Court held, ‘Beyond their protective function, the Migunit [Protective Structures] may make a moral and psychological contribution that should not be undervalued’. This contribution is one that the Bedouin did not receive in the Abu Afash verdict. The basic thesis is that the Court’s verdict analyzed above clearly demonstrates that the reliance on classical liberal instruments (e.g., equality) cannot secure full appreciation of all aspects of Bedouin life, and hence it can in fact prejudice them. Therefore, elements of the recognition theory should be added, in order to find the channel for cognitive dignity, thereby advancing the Bedouins’ ability to perceive themselves as equal human beings in the Israeli society.

Keywords: bedouin dispersion, cognitive respect, recognition theory, sustainable development

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Authors: Jennifer Zelmer

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The debate regarding the morality, and therefore legality, of abortion has many social, political, and medical ramifications worldwide. In a developing country like Bolivia, carrying a pregnancy to delivery is incredibly risky. Given the very high maternal mortality rate in Bolivia, greater consideration has been given to the (de)criminalization of abortion – a contributing cause of maternal death. In the spring of 2017, the Bolivian government proposed to loosen restrictions on women’s access to receiving a safe abortion, which was met with harsh criticism from 'pro-vida' (pro-life) factions. Although the current Bolivian government Movimiento al Socialismo (Movement Toward Socialism) portrays an agenda of decolonization, or to seek a 'traditionally-modern' society, nevertheless, Bolivia still has one of the highest maternal mortality rates in the Americas, because of centuries of colonial and patriarchal order. Applying a feminist critique and using the abortion debate as the central point, this paper argues that the 'traditionally-modern' society Bolivia strives towards is a paradox, and in fact only contributes to the reciprocal process of the death of 'mother tongues' and the unnecessary death of women. This claim is supported by a critical analysis of historical texts about Spanish Colonialism in Bolivia; the linguistic reality of reproductive educational strategies, and the philosophical framework which the Bolivian government and its citizens implement. This analysis is demonstrated in the current state of women’s access to reproductive healthcare in Cochabamba, Bolivia based on recent fieldwork which included audits of clinics and hospitals, interviews, and participant observation. This paper has two major findings: 1) the language used by opponents of abortion in Bolivia is not consistent with the claim of being 'pro-life' but more accurately with being 'pro-potential'; 2) when the topic of reproductive health appears in Cochabamba, Bolivia, it is often found written in the Spanish language, and does not cater to the many indigenous communities that inhabit or visit this city. Finally, this paper considers the crucial role of public health documentation to better inform the abortion debate, as well as the necessity of expanding reproductive health information to more than text-based materials in Cochabamba. This may include more culturally appropriate messages and mediums that cater to the oral tradition of the indigenous communities, who historically and currently have some of the highest fertility rates. If the objective of one who opposes abortion is to save human lives, then preventing the death of women should equally be of paramount importance. But rather, the 'pro-life' movement in Bolivia is willing to risk the lives of to-be mothers, by judicial punishment or death, for the chance of a potential baby. Until abortion is fully legal, safe, and accessible, there will always be the vestiges of colonial and patriarchal order in Bolivia which only perpetuates the needless death of women.

Keywords: abortion, feminist theory, Quechua, reproductive health education

Procedia PDF Downloads 139

Authors: Deborah A. Hollingworth

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The key tenets associated with ‘environmental justice’, were first articulated in a global context in Principle 10 of the United Nations Declaration on Environment and Development at Rio de Janeiro in 1992 (the Rio Declaration). The elements can be conflated to require: public participation in decision-making; the provision of relevant information to those affected about environmental hazards issues; access to judicial and administrative proceeding; and the opportunity for redress where remedy where required. This paper examines the legislative and regulatory arrangements in place for the implementation these elements in a number of industrialised democracies, including Australia. Most have, over time made regulatory provision for these elements – even if they are not directly attributed Principle 10 or the notion of environmental justice. The paper proposes, that of these elements the most critical to the achievement of good environmental governance, is a legislated recognition and role of public participation. However, the paper considers that notwithstanding sound legislative and regulatory practices, environmental regulators frequently struggle, where there is a complex decision-making scenario or long-standing enmity between a community and industry to achieve effective engagement with the public. This study considers the dilemma confronted by environmental regulators to given meaningful effect to the principles enshrined in Principle 10 – that even when the legislative expression of Principle 10 is adhered to – does not prevent adverse outcomes. In particular, it considers, as a case study a prominent environmental incident in 2014 in Australia in which an open-cut coalmine located in the regional township of Morwell caught fire during bushfire season. The fire, which took 45 days to be extinguished had a significant and adverse impact on the community in question, but compounded a complex, and sometime antagonistic history between the mine and township. The case study exemplifies the complex factors that will often be present between industry, the public and regulatory bodies, and which confound the concept of environmental justice, and the elements of enshrined in the Principle 10 of the Rio Declaration. The study proposes that such tensions and complex examples will commonly be the reality of communities and regulators. However, to give practical effect to outcomes contemplated by Principle 10, the paper considers that regulators will may consider public intervention more broadly as including early interventions and formal opportunities for “conferencing” between industry, community and regulators. These initiatives help to develop a shared understanding and identification of issues. It is proposed that although important, options for “alternative dispute resolution” are not sufficiently preventative, as they come into play when a dispute has arise. Similarly “restorative justice” programs, while important once an incident or adverse environmental outcome has occurred, are post event and therefore necessarily limited. The paper considers the examples of how public participation at the outset – at the time of a proposal, before issues arise or eventuate to ensure, is demonstrably the most effective way for building commonality and an agreed methodology for working to resolve issues once they occur.

Keywords: environmental justice, alternative dispute resolution, domestic environmental law, international environmental law

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Authors: Poulomi Bhadra, Manjushree Palit, Sanjeev P. Sahni

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Forensic science uses all branches of science for criminal investigation and trial and has increasingly emerged as an important tool in the administration of justice. However, the growth and development of this field in India has not been as rapid or widespread as compared to the more developed Western countries. For successful administration of justice, it is important that all agencies involved in law enforcement adopt an inter-professional approach towards forensic science, which is presently lacking. In light of the alarmingly high average acquittal rate in India, this study aims to examine the lack of understanding and appreciation of the importance and scope of forensic evidence and expert opinions amongst law professionals such as lawyers and judges. Based on a study of trial court cases from Delhi and surrounding areas, the study underline the areas in forensics where the criminal justice system has noticeably erred. Using this information, the authors examine the extent of forensic understanding amongst legal professionals and attempt to conclusively identify the areas in which they need further appraisal. A cross-sectional study done using a structured questionnaire was conducted amongst law professionals across age, gender, type and years of experience in court, to determine their understanding of DNA, fingerprints and other interdisciplinary scientific materials used as forensic evidence. In our study, we understand the levels of understanding amongst lawyers with regards to DNA and fingerprint evidence, and how it affects trial outcomes. We also aim to understand the factors that prevent credible and advanced awareness amongst legal personnel, amongst others. The survey identified the areas in modern and advanced forensics, such as forensic entomology, anthropology, cybercrime etc., in which Indian legal professionals are yet to attain a functional understanding. It also brings to light, what is commonly termed as the ‘CSI-effect’ in the Western courtrooms, and provides scope to study the existence of this phenomenon and its effects on the Indian courts and their judgements. This study highlighted the prevalence of unchallenged expert testimony presented by the prosecution in criminal trials and impressed upon the judicial system the need for independent analysis and evaluation of the scientist’s data and/or testimony by the defense. Overall, this study aims to define a clearer and rigid understanding of why legal professionals should have basic understanding of the interdisciplinary nature of forensic sciences. Based on the aforementioned findings, the author suggests various measures by which judges and lawyers might obtain an extensive knowledge of the advances and promising potentialities of forensic science. This includes promoting a forensic curriculum in legal studies at Bachelor’s and Master’s level as well as in mid-career professional courses. Formation of forensic-legal consultancies, in consultation with the Department of Justice, will not only assist in training police, military and law personnel but will also encourage legal research in this field. These suggestions also aim to bridge the communication gap that presently exists between law practitioners, forensic scientists and the general community’s awareness of the criminal justice system.

Keywords: forensic science, Indian legal professionals, interdisciplinary awareness, legal education

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Authors: Gideon Nyuimbe Gasu

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Sub Saharan Africa is at a critical point, experiencing rapid population growth, particularly in urban areas and young growing force. At the same time, the growing risk of catastrophic global climate change threatens to weaken food production system, increase intensity and frequency of drought, flood, and fires and undermine gains on development and poverty reduction. Although the region has the lowest per capital greenhouse gas emission level in the world, it will need to join global efforts to address climate change, including action to avoid significant increases and to encourage a green economy. Thus, there is a need for the concept of 'greening the economy' as was prescribed at Rio Summit of 1992. Renewable energy is one of the criterions to achieve this laudable goal of maintaining a green economy. There is need to address climate change while facilitating continued economic growth and social progress as energy today is critical to economic growth. Fossil fuels remain the major contributor of greenhouse gas emission. Thus, cleaner technologies such as carbon capture storage, renewable energy have emerged to be commercially competitive. This paper sets out to examine how to achieve a low carbon economy with minimal emission of carbon dioxide and other greenhouse gases which is one of the outcomes of implementing a green economy. Also, the paper examines the different renewable energy sources such as nuclear, wind, hydro, biofuel, and solar voltaic as a panacea to the looming climate change menace. Finally, the paper assesses the different renewable energy and energy efficiency as a propeller to generating new sources of income and jobs and in turn reduces carbon emission. The research shall engage qualitative, evaluative and comparative methods. The research will employ both primary and secondary sources of information. The primary sources of information shall be drawn from the sub Saharan African region and the global environmental organizations, energy legislation, policies and related industries and the judicial processes. The secondary sources will be made up of some books, journal articles, commentaries, discussions, observations, explanations, expositions, suggestions, prescriptions and other material sourced from the internet on renewable energy as a panacea to climate change. All information obtained from these sources will be subject to content analysis. The research result will show that the entire planet is warming as a result of the activities of mankind which is clear evidence that the current development is fundamentally unsustainable. Equally, the study will reveal that a low carbon development pathway in the sub Saharan African region should be embraced to minimize emission of greenhouse gases such as using renewable energy rather than coal, oil, and gas. The study concludes that until adequate strategies are devised towards the use of renewable energy the region will continue to add and worsen the current climate change menace and other adverse environmental conditions.

Keywords: carbon dioxide, climate change, legislation/law, renewable energy

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Authors: Hao Huang

Abstract:

INTRODUCTION: The Association of American Colleges and Universities (AACU) recommends the development of ‘high-impact practices,’ in an effort to increase rates of student retention and student engagement at undergraduate institutions. To achieve these goals, the Scripps College Humanities Institute and HI Fellows Seminar not only featured distinguished academics presenting their scholarship about current immigration policy and its consequences in the USA and around the world but integrated socially significant community leaders and creative activists/artivists in public talks, student workshops and collaborative art events. Students participated in experiential learning that involved guest personal presentations and discussions, oral history interviews that applied standard oral history methodologies, detailed cultural documentation, collaborative artistic interventions, and weekly posts in Internet Digital Learning Environment Sakai collaborative course forums and regular responses to other students’ comments. Our teaching pedagogies addressed the four learning styles outlined in Kolb’s Learning Style Inventory. PROJECT DESCRIPTION: Over the academic year 2017-18, the Scripps College Humanities Institute and HI Fellows Seminar presented a Fall 2017 topic, ‘The World at Our Doorsteps: Immigration and Deportation in Los Angeles’. Our purpose was to address how current federal government anti-immigration measures have affected many students of color, some of whom are immigrants, many of whom are related to and are friends with people who are impacted by the attitudes as well as the practices of the U.S. Citizenship and Immigration Services. In Spring 2018, we followed with the topic, ‘Exclusive Nationalisms: Global Migration and Immigration’. This addresses the rise of white supremacists who have ascended to position of power worldwide, in America, Europe, Russia, and xenophobic nationalisms in China, Myanmar and the Philippines. Recent scholarship has suggested the existence of categories of refugees beyond the political or social, who fit into the more inclusive category of migrants. ASSESSMENT METHODOLOGIES: Assessment methodologies not only included qualitative student interviews and quantitative student evaluations in standard rubric format, but also Outcome Assessments, Formative Evaluations, and Outside Guest Teacher feedback. These indicated that the most effective educational practices involved collaborative inquiry in undergraduate research, community-based learning, and capstone projects. Assessments of E-portfolios, written and oral coursework, and final creative projects with associated 10-12 page analytic paper revealed that students developed their understanding of how government and social organizations work; they developed communication skills that enhanced working with others from different backgrounds; they developed their ability to thoughtfully evaluate their course performance by adopting reflective practices; they gained analytic and interpretive skills that encouraged self-confidence and self- initiative not only academically, but also with regards to independent projects. CONCLUSION: Most importantly, the Scripps Humanities Institute experiential learning project spurred on real-world actions by our students, such as a public symposium on how to cope with bigots, a student tutoring program for immigrant staff children, student negotiations with the administration to establish meaningful, sustainable diversity and inclusion programs on-campus. Activism is not only to be taught to and for our students– it has to be enacted by our students.

Keywords: immigration, migration, human rights, learning assessment

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