Search results for: legality

Authors: Iman Shabanzadeh

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In terms of its geopolitical position, Iran has been one of the main centers of migration movements in the world in recent decades. However, the policy makers' lack of preparation in completing the cycle of social integration of these immigrants, especially the second and third generation, has caused these people to always be prone to leave the country and immigrate to developed and industrialized countries. In this research, the issue of integration of immigrants in Iran from the perspective of four indicators, "Identity Documents", "Access to Banking Services", "Access to Health and Treatment Services" and "Obtaining a Driver's License" will be analyzed. The research method is descriptive-analytical. To collect information, library and document sources in the field of laws and regulations related to immigrants' rights in Iran, semi-structured interviews with experts have been used. The investigations of this study show that none of the residence documents of immigrants in Iran guarantee the full enjoyment of basic citizenship rights for them. In fact, the function of many of these identity documents, such as the census card, educational support card, etc., is only to prevent crossing the border, and none of them guarantee the basic rights of citizenship. Therefore, for many immigrants, the difference between legality and illegality is only in the risk of crossing the border, and this has led to the spread of the habit of illegal presence for them. Despite this, it seems that there is no clear and coherent policy framework around the issue of foreign immigrants in the country. This policy incoherence can be clearly seen in the diversity and plurality of identity and legal documents of the citizens present in the country and the policy maker's lack of planning to integrate and organize the identity of this huge group. Examining the differences and socioeconomic inequalities between immigrants and the native Iranian population shows that immigrants have been poorly integrated into the structures of Iranian society from an economic and social point of view.

Keywords: immigrants, social integration, citizen services, structural inequality

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Authors: Laura Çami (Vorpsi), Xhon Skënderi

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In today's rapidly evolving technological landscape, the traditional principles of contract law are facing significant challenges. The emergence of new technologies, such as electronic signatures, smart contracts, and online dispute resolution mechanisms, is transforming the way contracts are formed, interpreted, and enforced. This paper examines the implications of these technological advancements on the constitutional principles of contract law. One of the fundamental principles of contract law is freedom of contract, which ensures that parties have the autonomy to negotiate and enter into contracts as they see fit. However, the use of technology in the contracting process has the potential to disrupt this principle. For example, online platforms and marketplaces often offer standard-form contracts, which may not reflect the specific needs or interests of individual parties. This raises questions about the equality of bargaining power between parties and the extent to which parties are truly free to negotiate the terms of their contracts. Another important principle of contract law is the requirement of consideration, which requires that each party receives something of value in exchange for their promise. The use of digital assets, such as cryptocurrencies, has created new challenges in determining what constitutes valuable consideration in a contract. Due to the ambiguity in this area, disagreements about the legality and enforceability of such contracts may arise. Furthermore, the use of technology in dispute resolution mechanisms, such as online arbitration and mediation, may raise concerns about due process and access to justice. The use of algorithms and artificial intelligence to determine the outcome of disputes may also raise questions about the impartiality and fairness of the process. Finally, it should be noted that there are many different and complex effects of technical improvements on the fundamental constitutional foundations of contract law. As technology continues to evolve, it will be important for policymakers and legal practitioners to consider the potential impacts on contract law and to ensure that the principles of fairness, equality, and access to justice are preserved in the contracting process.

Keywords: technological advancements, constitutional principles, contract law, smart contracts, online dispute resolution, freedom of contract

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Authors: Nikolaos Koulouris, Anna Kasapoglou, Dimitris Koros

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The paper aims to present the course of ongoing research concerning the treatment of pretrial detainees, convicted or released prisoners for sexual offenses, an area that has not received much attention in Greece in terms of the prison experience and the reintegration potentials regarding this specific category of prisoners. The study plan provides for the use of a combination of research methods (focus groups with prisoners, structured individual interviews with prisoners and prison staff). Also, interviews with ex-prisoners detained regarding sexual offenses will take place. In Greece, there are no special provisions for the treatment of sexual offenders in prison, nor are there any special programs in place for their rehabilitation. Sexual offenders are usually separated from other prisoners, as the informal code of the social organization of the prison community dictates, despite no relevant legal framework. The study aims to explore the reasons for the separate detention of sexual offenders and discuss their special (non) treatment from different points of view, namely the legality and legitimacy of this discriminatory practice in terms of prisoners’ protection, safety, stigmatization, and possible social exclusion, as well as their post-release expectations and social reintegration potentials. The purpose of the research is the exploration of the prison experience of sexual offenders, the exercise of their legal rights, their adjustment to the demands of social life in prison, as well as the role of prison officers and various interventions aiming to their preparation for reentry to society. The study will take into consideration the European and international prison/penitentiary standards and best practices in order to examine the issue comparatively, while the contribution of the United Nations and the Council of Europe and its standards will be used to assess the treatment of sexual offenders in terms of its compatibility to international and European model-rules and trends. The outcome will be utilized to form main directions and propositions for a coherent and consistent human rights-based and social integration-oriented penal policy regarding the treatment of persons accused or convicted of sexual offenses in Greece.

Keywords: prisoners’ treatment, sex offenders, social exclusion, social reintegration

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Authors: Pujiyono, Reda Manthovani, Deny Tri Ardianto, Rabani Halawa, Isharyanto

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This research has background that the taxpayer (defendant) who has paid off the tax payable and the tax penalty payable after the tax case file has been transferred to the court, while the legality of stopping the prosecution of tax cases on the grounds that in the interest of state revenue is not regulated in the provisions of Law Number 8 of 1981 concerning The Criminal Procedure Code and Law Number 28 of 2007 concerning the Third Amendment to Law Number 6 of 1983 concerning General Provisions and Tax Procedures as amended several times, most recently by Law Number 16 of 2009 concerning Stipulation of Government Regulation in Lieu of Law Number 5 of 2008 concerning Fourth Amendment to Law Number 6 0f 1983 concerning General Provisions and Tax Procedures to become Law, even though at the investigation stage it regulates the mechanism for stopping the investigation for the sake of the interest of acceptance ne this is because before the case file is transferred to the court where at the request of the Minister of Finance of The Republic of Indonesia can stop the investigation in the interest of state revenue so that based on this phenomenon a legal vacuum is found. Therefore, a non-penal policy is needed from the public prosecutor to resolve tax crime cases without going through litigation in court through the penal mediation method using the Plea Bargaining System which adheres to the principles of restorative justice and obligative justice based on the ultimum remedium principle and the principle of opportunity in order to realize the principle of fast, simple and low cost justice (content principle). This research is a normative legal research, using a statutory approach, conceptual approach, and comparative law approach. Regulations that is used in many countries, include America, The Netherlands and Singapore. The results of this study indicate that there is a reformulation of the tax criminal justice system which regulates the mechanism, qualifications and authority to terminate the prosecution of tax cases in the interest of state revenues in order to achieve legal goals which are not only for legal certainty but more that, namely providing benefits and legal justice for people seeking justice.

Keywords: obligative justice, regulation, state reveneus, tax criminal

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Authors: D. Osborn, L. Easthope

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The increasing threat of ‘marauding terror,' utilising improvised explosive devices and firearms, has focused the attention of policy makers and emergency responders once again on the treatment of the critically injured patient in a highly volatile scenario. Whilst there have been significant improvements made in the response and lessons learned from recent disasters in the international disaster community there still remain areas of uncertainty and a lack of clarity in the care of the critically injured. This innovative, longitudinal study has at its heart the aim of using ethnographic methods to ‘slow down’ the journey such patients will take and make visible the ethical complexities that 2017 technologies, expectations and over a decade of improved combat medicine techniques have brought. The primary researcher, previously employed in the hospital emergency management environment, has closely followed responders as they managed casualties with life-threatening injuries. Ethnographic observation of Exercise Unified Response in March 2016, exposed the ethical and legal 'vacuums' within a mass casualty and fatality setting, specifically the extrication, treatment and care of critically injured patients from crushed and overturned train carriages. This article highlights a gap in the debate, evaluation, planning and response to an incident of this nature specifically the incapacitated, unidentified patients and the ethics of submitting them to the invasive ‘Disaster Victim Identification’ process. Using a qualitative ethnographic analysis, triangulating observation, interviews and documentation, this analysis explores the gaps and highlights the next stages in the researcher’s pathway as she continues to explore with emergency practitioners some of this century’s most difficult questions in relation to the medico-legal and ethical challenges faced by emergency services in the wake of new and emerging threats and medical treatment expectations.

Keywords: ethics, disaster, Disaster Victim Identification (DVI), legality, unidentified

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Authors: Ravan Samadov

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Mentally disabled people are the most discriminated against among other disabled people and face much stronger negative attitudes across many cultures. The most complex and severe form of exclusion of these people is deprivation of liberty on the grounds of their disability. This problem was for many years overlooked to a great extent by the core human rights instruments. However, the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD), adopted in 2006, is considered a potential tool to successfully fill the gap. It is especially vital for the developing countries with the vast majority of disabled people of the world and the CRPD is presumed to be able to trigger drastic positive changes. Article 14 of the mentioned human rights treaty has brought into the international forum a new notion, as prohibits deprivation of liberty on the grounds of disability. It is to be understood as an absolute prohibition of deprivation of liberty on the grounds of disability, including mental disability, which manifests in the form of non-consensual psychiatric hospitalisation. The interpretation by the CRPD Committee indicates that this prohibition well embraces all types of non-consensual psychiatric hospitalisation – whether it is based on illness, impairment or disability. This prohibition also extends to such justifications as ‘dangerousness’, ‘need for treatment’ and ‘diminished capacity’. Moreover, providing due substantive and/or procedural safeguards does not render any legitimacy to application of deprivation of liberty on the grounds of mental disability. Logically, this new prohibition form was to be duly considered by different UN human rights bodies, and was subsequently to bring changes to their practices. However, the analyses of post-CRPD work of those bodies allows for asserting the contrary, as they have continued displaying the position which recognises deprivation of liberty on the grounds of disability to be legitimate. While such a position could be justified in the pre-CRPD time as stemming from the silence of human rights documents about it, the continuation of this course after the CRPD entered into force may call the integrity and coherence of the UN human rights treaty system into question. The non-coherent approaches of different UN bodies to this novelty give grounds for misinterpretation thereof, and hinder its due implementation by the States Parties. The paper will discuss the nature of the mentioned new prohibition and the controversial approaches to that notion by different UN human rights bodies.

Keywords: CRPD, deprivation of liberty, mental disability, non-consensual psychiatric hospitalisation, UN bodies

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Authors: Monika Zalewska

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Hans Kelsen was a versatile legal thinker whose achievements in the fields of legal theory, international law, and the theory of democracy are remarkable. All of the fields tackled by Kelsen are regarded as part of his “pure theory of law.” While the link between international law and Kelsen’s pure theory of law is apparent, the same cannot be said about the link between the theory of democracy and his pure theory of law. On the contrary, the general thinking concerning Kelsen’s thought is that it can be used to legitimize authoritarian regimes. The aim of this presentation is to address this concern by identifying the common ground between Kelsen’s pure theory of law and his theory of democracy and to show that they are compatible in a way that his pure theory of law and authoritarianism cannot be. The conceptual analysis of the purity of Kelsen’s theory and his goal of creating ideology-free legal science hints at how Kelsen’s pure theory of law and the theory of democracy are brought together. The presentation will first demonstrate that these two conceptions have common underlying values and meta-ethical convictions. Both are founded on relativism and a rational worldview, and the aim of both is peaceful co-existence. Second, it will be demonstrated that the separation of law and morality provides the maximum space for deliberation within democratic processes. The conclusion of this analysis is that striking similarities exist between Kelsen’s legal theory and his theory of democracy. These similarities are grounded in the Enlightenment tradition and its values, including rationality, a scientific worldview, tolerance, and equality. This observation supports the claim that, for Kelsen, legal positivism and the theory of democracy are not two separate theories but rather stem from the same set of values and from Kelsen’s relativistic worldview. Furthermore, three main issues determine Kelsen’s orientation toward a positivistic and democratic outlook. The first, which is associated with personality type, is the distinction between absolutism and relativism. The second, which is associated with the values that Kelsen favors in the social order, is peace. The third is legality, which creates the necessary condition for democracy to thrive and reveals that democracy is capable of fulfilling Kelsen’s ideal of law at its fullest. The first two categories exist in the background of Kelsen’s pure theory of law, while the latter is an inherent part of Kelsen’s concept of law. The analysis of the text concerning natural law doctrine and democracy indicates that behind the technical language of Kelsen’s pure theory of law is a strong concern with the trends that appeared after World War I. Despite his rigorous scientific mind, Kelsen was deeply humanistic. He tried to create a powerful intellectual weapon to provide strong arguments for peaceful coexistence and a rational outlook in Europe. The analysis provided by this presentation facilitates a broad theoretical, philosophical, and political understanding of Kelsen’s perspectives and, consequently, urges a strong endorsement of Kelsen’s approach to constitutional democracy.

Keywords: hans kelsen, democracy, legal positivism, pure theory of law

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Authors: Oluwabiyi Adeola Ayodele

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This study analysed the Policy and general issues that have arisen over time in Nigeria’ Cashless banking environment as a result of the lack of a Legal framework on Electronic banking in Nigeria. It undertook an in-depth study of the cashless banking system. It discussed the evolution, growth and development of cashless banking in Nigeria; It revealed the expected benefits of the cashless banking system; It appraised regulatory issues and other prevalent problems on cashless banking in Nigeria; and made appropriate recommendations where necessary. The study relied on primary and secondary sources of information. The primary sources included the Constitution of the Federal Republic of Nigeria, Statutes, Conventions and Judicial decisions, while the secondary sources included Books, Journals Articles, Newspapers and Internet Materials. The study revealed that cashless banking has been adopted in Nigeria but still at the developing stage. It revealed that there is no law for the regulation of cashless banking in Nigeria, what Nigeria relies on for regulation is the Central Bank of Nigeria’s Cashless Policy, 2014. The Banks and Other Financial Institutions Act Chapter B3, LFN, 2004 of Nigeria lack provision to accommodate issues on Internet banking. However, under the general principles of legality in criminal law, and by the provisions of the Nigerian Constitution, a person can only be punished for conducts that have been defined to be criminal by written laws with the penalties specifically stated in the law. Although Nigeria has potent laws for the regulation of paper banking, these laws cannot be substituted for paperless transactions. This is because the issues involved in both transactions vary. The study also revealed that the absence of law in the cashless banking environment in Nigeria will subject consumers to endless risks. This study revealed that the creation of banking markets via the Internet relies on both available technologies and appropriate laws and regulations. It revealed however that Law of some of the countries considered on cashless banking has taken care of most of the legal issues and other problems prevalent in the cashless banking environment. The study also revealed some other problems prevalent in the Nigerian cashless banking environment. The study concluded that for Nigeria to find solutions to the legal issues raised in its cashless banking environment and other problems of cashless banking, it should have a viable legal Frame work for internet banking. The study concluded that the Central Bank of Nigeria’s Policy on Cashless banking is not potent enough to tackle the challenges posed to cashless banking in Nigeria because policies only have a persuasive effect and not a binding effect. There is, therefore, a need for appropriate Laws for the regulation of cashless Banking in Nigeria. The study also concluded that there is a need to create more awareness of the system among Nigerians and solve infrastructural problems like prevalent power outage which often have been creating internet network problem.

Keywords: cashless-banking, Nigeria, policies, laws

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Authors: Alina Murtishcheva

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The development of an effective system of administrative supervision is a prerequisite for the functioning of local self-government on the basis of the rule of law. Administrative supervision of local self-government is of particular importance in the EU countries due to the influence of integration processes. The central authorities act on the international level; however, subnational authorities also have to implement European legislation in order to strengthen integration. Therefore, the central authority, being the connecting link between supranational and subnational authorities, should bear responsibility, including financial responsibility, for possible mistakes of subnational authorities. Consequently, the state should have sufficient mechanisms of control over local and regional authorities in order to correct their mistakes. At the same time, the control mechanisms do not deny the autonomy of local self-government. The paper analyses models of administrative supervision of local self-government in Ukraine, Poland, Lithuania, Belgium, Great Britain, Italy, and France. The research methods used in this paper are theoretical methods of analysis of scientific literature, constitutions, legal acts, Congress of Local and Regional Authorities of the Council of Europe reports, and constitutional court decisions, as well as comparative and logical analysis. The legislative basis of administrative supervision was scrutinized, and the models of administrative supervision were classified, including a priori control and ex-post control or their combination. The advantages and disadvantages of these models of administrative supervision are analysed. Compliance with Article 8 of the European Charter of Local Self-Government is of great importance for countries achieving common goals and sharing common values. However, countries under study have problems and, in some cases, demonstrate non-compliance with provisions of Article 8. Such non-conformity as the endorsement of a mayor by the Flemish Government in Belgium, supervision with a view to expediency in Great Britain, and the tendency to overuse supervisory power in Poland are analysed. On the basis of research, the tendencies of administrative supervision of local authorities’ activities in selected European countries are described. Several recommendations for Ukraine as a country that had been granted the EU candidate status are formulated. Having emphasised its willingness to become a member of the European community, Ukraine should not only follow the best European practices but also avoid the mistakes of countries that have long-term experience in developing the local self-government institution. This project has received funding from the Research Council of Lithuania (LMTLT), agreement № P-PD-22-194

Keywords: administrative supervision, decentralisation, legality, local authorities, local self-government

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Authors: Jacolien Barnard, Corlia Van Heerden

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Effective and accessible consensual dispute resolution and in particular alternative dispute resolution, are central to consumer protection legislation. In this regard, the Consumer Protection Act 68 of 2008 (CPA) of South Africa is no exception. Due to the nature of consumer disputes, alternative dispute resolution (in theory) is an effective vehicle for the adjudication of disputes in a timely manner avoiding overburdening of the courts. The CPA sets down as one of its core purposes the provision of ‘an accessible, consistent, harmonized, effective and efficient system of redress for consumers’ (section 3(1)(h) of the CPA). Section 69 of the Act provides for the enforcement of consumer rights and provides for the National Consumer Commission to be the Central Authority which streamlines, adjudicates and channels disputes to the appropriate forums which include Alternative Dispute Resolution Agents (ADR-agents). The purpose of this paper is to analyze the regulation of these enforcement and redress mechanisms with particular focus on the Central Authority as well as the ADR-agents and their crucial role in successful and efficient adjudication of disputes in South Africa. The South African position will be discussed comparatively with the European Union (EU) position. In this regard, the European Union (EU) Directive on Alternative Dispute Resolution for Consumer Disputes (2013/11/EU) will be discussed (The ADR Directive). The aim of the ADR Directive is to solve contractual disputes between consumers and traders (suppliers or businesses) regardless of whether the agreement was concluded offline or online or whether or not the trader is situated in another member state (Recitals 4-6). The ADR Directive provides for a set of quality requirements that an ADR body or entity tasked with resolving consumer disputes should adhere to in member states which include regulatory mechanisms for control. Transparency, effectiveness, fairness, liberty and legality are all requirements for a successful ADR body and discussed within this chapter III of the Directive. Chapters III and IV govern the importance of information and co-operation. This includes information between ADR bodies and the European Commission (EC) but also between ADR bodies or entities and national authorities enforcing legal acts on consumer protection and traders. (In South Africa the National Consumer Tribunal, Provincial Consumer Protectors and Industry ombuds come to mind). All of which have a responsibility to keep consumers informed. Ultimately the papers aims to provide recommendations as to the successfulness of the current South African position in light of the comparative position in Europe and the highlight the importance of proper regulation of these redress and enforcement institutions.

Keywords: alternative dispute resolution, consumer protection law, enforcement, redress

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Authors: Hernando Santamaría-García, Sandra Báez, Pablo Reyes, José Santamaría-García, Diana Matallana, Adolfo García, Agustín Ibañez

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The study of moral emotions (i.e., Schadenfreude and envy) is critical to understand the ecological complexity of everyday interactions between cognitive, affective, and social cognition processes. Most previous studies in this area have used correlational imaging techniques and framed Schadenfreude and envy as monolithic domains. Here, we profit from a relevant neurodegeneration model to disentangle the brain regions engaged in three dimensions of Schadenfreude and envy: deservingness, morality, and legality. We tested 20 patients with behavioral variant frontotemporal dementia (bvFTD), 24 patients with Alzheimer’s disease (AD), as a contrastive neurodegeneration model, and 20 healthy controls on a novel task highlighting each of these dimensions in scenarios eliciting Schadenfreude and envy. Compared with the AD and control groups, bvFTD patients obtained significantly higher scores on all dimensions for both emotions. Interestingly, the legal dimension for both envy and Schadenfreude elicited higher emotional scores than the deservingness and moral dimensions. Furthermore, correlational analyses in bvFTD showed that higher envy and Schadenfreude scores were associated with greater deficits in social cognition, inhibitory control, and behavior. Brain anatomy findings (restricted to bvFTD and controls) confirmed differences in how these groups process each dimension. Schadenfreude was associated with the ventral striatum in all subjects. Also, in bvFTD patients, increased Schadenfreude across dimensions was negatively correlated with regions supporting social-value rewards, mentalizing, and social cognition (frontal pole, temporal pole, angular gyrus and precuneus). In all subjects, all dimensions of envy positively correlated with the volume of the anterior cingulate cortex, a region involved in processing unfair social comparisons. By contrast, in bvFTD patients, the intensified experience of envy across all dimensions was negatively correlated with a set of areas subserving social cognition, including the prefrontal cortex, the parahippocampus, and the amygdala. Together, the present results provide the first lesion-based evidence for the multidimensional nature of the emotional experiences of envy and Schadenfreude. Moreover, this is the first demonstration of a selective exacerbation of envy and Schadenfreude in bvFTD patients, probably triggered by atrophy to social cognition networks. Our results offer new insights into the mechanisms subserving complex emotions and moral cognition in neurodegeneration, paving the way for groundbreaking research on their interaction with other cognitive, social, and emotional processes.

Keywords: social cognition, moral emotions, neuroimaging, frontotemporal dementia

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Authors: Louise Reyntjens

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The last quarter of the twentieth century was characterized by the emergence of a new kind of terrorism: religiously-inspired terrorism. Islam finds itself at the heart of this new wave, considering the number of international attacks committed by Islamic-inspired perpetrators. With religiously inspired terrorism as an operating framework, governments increasingly rely on immigration law to counter such terrorism. Immigration law seems particularly useful because its core task consists of keeping ‘unwanted’ people out. Islamic terrorists more often than not have an immigrant background and will be subject to immigration law. As a result, immigration law becomes more and more ‘securitized’. The European migration crisis has reinforced this trend. The research explores the human rights consequences of immigration law’s securitization in Europe. For this, the author selected four European countries for a comparative study: Belgium, France, the United Kingdom and Sweden. All these countries face similar social and security issues but respond very differently to them. The United Kingdom positions itself on the repressive side of the spectrum. Sweden on the other hand also introduced restrictions to its immigration policy but remains on the tolerant side of the spectrum. Belgium and France are situated in between. This contribution evaluates the situation in Belgium. Through a series of legislative changes, the Belgian parliament (i) greatly expanded the possibilities of expelling foreign nationals for (vaguely defined) reasons of ‘national security’; (ii) abolished almost all procedural protection associated with this decision (iii) broadened, as an extra security measure, the possibility of depriving individuals condemned of terrorism of their Belgian nationality. Measures such as these are obviously problematic from a human rights perspective; they jeopardize the principle of legality, the presumption of innocence, the right to protection of private and family life and the prohibition on torture. Moreover, this contribution also raises questions about the efficacy of immigration law’s suitability as a counterterrorism instrument. Is it a legitimate step, considering the type of terrorism we face today? Or, is it merely a strategic move, considering the broader maneuvering space immigration law offers and the lack of political resistance governments receive when infringing the rights of foreigners? Even more so, figures demonstrate that today’s terrorist threat does not necessarily stem from outside our borders. Does immigration law then still absorb - if it has ever done so (completely) - the threat? The study’s goal is to critically assess, from a human rights perspective, the counterterrorism strategies European governments have adopted. As most governments adopt a variation of the same core concepts, the study’s findings will hold true even beyond the four countries addressed.

Keywords: Belgium, counterterrorism strategies, human rights, immigration law

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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: Rahul Rajak, Archana Kumari Roy

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Purpose: Development brings about structural change in the society. It is essential for socio-economic progress of the society, but it also causes pain to the people who are forced to displace from their motherland. Most of the people who are displaced due to development are poor and tribes. Development and displacement are interlinked with each other in the sense development sometimes leads to displacement of people. These studies mainly focus on socio-economic profile of villages and villagers likely to be affected by the Airport Project and they examine the issues of compensation and people’s level of satisfaction. Methodology: The study is based on Descriptive design; it is basically observational and correlation study. Primary data is used in this study. Considering the time and resource constrains, 100 people were interviewed covering socio-economic and demographic diversities from 6 out of 10 affected villages. Due to Navi Mumbai International Airport Project ten villages have to be displaced. Out of ten villages, this study is based on only six villages. These are Ulwe, Ganeshpuri, Targhar Komberbuje, Chincpada and Kopar. All six villages situated in Raigarh district under the Taluka Panvel in Maharashtra. Findings: It is revealed from the survey that there are three main castes of affected villages that are Agri, Koli, and Kradi. Entire village population of migrated person is very negligible. All three caste have main occupation are agricultural and fishing activities. People’s perception revealed that due to the establishment of the airport project, they may have more opportunities and scope of development rather than the adverse effect, but vigorously leave a motherland is psychological effect of the villagers. Research Limitation: This study is based on only six villages, the scenario of the entire ten affected villages is not explained by this research. Practical implication: The scenario of displacement and resettlement signifies more than a mere physical relocation. Compensation is not only hope for villagers, is it only give short time relief. There is a need to evolve institutions to protect and strengthen the right of Individuals. The development induced displacement exposed them to a new reality, the reality of their legality and illegality of stay on the land which belongs to the state. Originality: Mumbai has large population and high industrialized city have put land at the center of any policy implication. This paper demonstrates through the actual picture gathered from the field that how seriously the affected people suffered and are still suffering because of the land acquisition for the Navi Mumbai International Airport Project. The whole picture arise the question which is how long the government can deny the rights to farmers and agricultural laborers and remain unwilling to establish the balance between democracy and development.

Keywords: compensation, displacement, land acquisition, project affected person (PAPs), rehabilitation

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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: Louise Reyntjens

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Where criminal law used to be the traditional response to cope with the terrorist threat, European governments are increasingly relying on administrative paths. The reliance on immigration law fits into this trend. Terrorism is seen as a civilization menace emanating from abroad. In this context, the expulsion of dangerous aliens, immigration law’s core task, is put forward as a key security tool. Governments all over Europe are focusing on removing dangerous individuals from their territory rather than bringing them to justice. This research reflects on the consequences for the expelled individuals’ fundamental rights. For this, the author selected four European countries for a comparative study: Belgium, France, the United Kingdom and Sweden. All these countries face similar social and security issues, igniting the recourse to immigration law as a counterterrorism tool. Yet, they adopt a very different approach on this: the United Kingdom positions itself on the repressive side of the spectrum. Sweden on the other hand, also 'securitized' its immigration policy after the recent terrorist hit in Stockholm, but remains on the tolerant side of the spectrum. Belgium and France are situated in between. This paper addresses the situation in Belgium. In 2017, the Belgian parliament introduced several legislative changes by which it considerably expanded and facilitated the possibility to expel unwanted aliens. First, the expulsion measure was subjected to new and questionably definitions: a serious attack on the nation’s safety used to be required to expel certain categories of aliens. Presently, mere suspicions suffice to fulfil the new definition of a 'serious threat to national security'. A definition which fails to respond to the principle of legality; the law, nor the prepatory works clarify what is meant by 'a threat to national security'. This creates the risk of submitting this concept’s interpretation almost entirely to the discretion of the immigration authorities. Secondly, in name of intervening more quickly and efficiently, the automatic suspensive appeal for expulsions was abolished. The European Court of Human Rights nonetheless requires such an automatic suspensive appeal under Article 13 and 3 of the Convention. Whether this procedural reform will stand to endure, is thus questionable. This contribution also raises questions regarding expulsion’s efficacy as a key security tool. In a globalized and mobilized world, particularly in a European Union with no internal boundaries, questions can be raised about the usefulness of this measure. Even more so, by simply expelling a dangerous individual, States avoid their responsibility and shift the risk to another State. Criminal law might in these instances be more capable of providing a conclusive and long term response. This contribution explores the human rights consequences of expulsion as a security tool in Belgium. It also offers a critical view on its efficacy for protecting national security.

Keywords: Belgium, counter-terrorism and human rights, expulsion, immigration law

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Authors: Arlinda Memetaj

Abstract:

A sound system of administrative justice represents a vital element of democratic governance. The proper control of public administration consists not only of a sound civil service framework and legislative oversight, but empowerment of the public and courts to hold public officials accountable for their decision-making through the application of fair administrative procedural rules and the use of appropriate administrative appeals processes and judicial review. The establishment of both effective public administration and administrative justice system has been for a long period of time among the most ‘important and urgent’ final strategic objectives of almost any country in the Balkans region, including Macedonia, Albania and Kosovo. Closely related to this is their common strategic goal to enter the membership in the European Union, which requires fulfilling of many criteria and standards as incorporated in EU acquis communautaire. The latter is presently done with the framework of the Stabilization and Association Agreement which each of these countries has concluded with the EU accordingly. To above aims, each of the three countries has so far adopted a huge series of legislative and strategic documents related to any aspects of their individual administrative justice system. ‘Changes and reforms’ in this field have been thus the most frequent terms being used in any of these countries. The three countries have already established their own national administrative judiciary, while permanently amending their laws on the general administrative procedure introducing thereby considerable innovations concerned. National administrative courts are expected to have crucial important role within the broader judiciary systems-related reforms of these countries; they are designed to check the legality of decisions of the state administration with the aim to guarantee an effective protection of human rights and legitimate interests of private persons through a regular, conform, fast and reasonable judicial administrative process. Further improvements in this field are presently an integral crucial part of all the relevant national strategic documents including the ones on judiciary reform and public administration reform, as adopted by each of the three countries; those strategic documents are designed among others to provide effective protection of their citizens` rights` of administrative justice. On the basis of the later, the paper finally is aimed at highlighting selective common challenges and problems of the three countries on their European road, while claiming (among others) that the current status quo situation in each of them may be overcome only if there is a proper implementation of the administrative courts decisions and a far stricter international monitoring process thereof. A new approach and strong political commitment from the highest political leadership is thus absolutely needed to ensure the principles of transparency, accountability and merit in public administration. The main methods used in this paper include the analytical and comparative ones due to the very character of the paper itself.

Keywords: administrative courts , administrative justice, administrative procedure, benefit, effective administrative justice, human rights, implementation, monitoring, reform

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Authors: Jennifer Zelmer

Abstract:

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

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