Physical Liberty Research Articles

Human Rights: Evolution And Devolution

The concept of human rights is over three millennia old. The oldest document listed three specific rights: physical liberty, shelter, and life. By the present time, many more have been added through various countries’ legal systems and important historical documents. Probably the most comprehensive such document is the United Nations’ Universal Declaration of Human Rights. Although not all-inclusive in terms of incorporating all the human rights proposed by previous documents, the broad acceptance of the Declaration as a model for human rights observance has constituted a hopeful sign. Unfortunately, the protection of human rights has been in a decline for some recent years. Examples and social forces leading to this decline are examined.

Legal Instruments for Determining Personal Insurance Measures in the "Republic of Albania"

Any restriction of freedom must be objectively justified and for a duration no longer than is necessary. In exceptional cases, when the limitation of freedom is considered necessary, it must guarantee the respect of rights and guarantees of a procedural nature, provided for in international acts that are mandatory to be implemented in domestic legislation. The right to liberty means only protection from restriction of physical liberty. It is not easy to define the meaning of the term "restriction of freedom", but in general we will understand this as the obligation to stay in a limited space for a considerable period of time. In every country in the world, people are arrested and detained on suspicion of having committed a criminal offence. Often, these individuals are kept restricted from their freedom for weeks, months or even years before a competent court pronounces a decision on their case on the merits. The conditions in which these individuals are kept are often the worst in the internal penitentiary system. Their legal status is in jeopardy as they are suspects but have not pleaded guilty and they are under enormous pressure, due to the damage they suffer in economic terms or separation from family and community. The extended use of arrest in prison or at home, in the Republic of Albania, evidences a poor recognition of the conditions and criteria for assigning coercive personal security measures, by the actors of the criminal justice system, in particular by the prosecution and the court. However, the role of the courts remains fundamental not only for the correction of procedural actions carried out by the prosecution and the police, but especially for the guarantee of freedoms and fundamental rights, as well as the principles of the rule of law.
 
 Received: 05 May 2022 / Accepted: 16 May 2023 / Published: 20 May 2023

Self-Portrait of the Expatriate in the Time of Anxiety

Self-Portrait of the Expatriate in the Time of Anxiety Maxwell Tang (bio) They'll defend their hollows and rational absencesIn this spare manner,A few June instances piquant with twilight,Here and there, cooling the self-regarded secretsAt the Piazza Del Duomo.But still too lofty a culture for empathy,And too redoubtable, as those voices disembodiedFrom their Latin are the dead in the stucco churchyard,Pealing the vain away. A few invitations forelengtheningThe three o'clock penumbra in Firenze.A few one-liners extending the inspired disharmony:As flourish for expatriates bent backward in their eternalLegionnaires. Memory is engrafted firm to landscapes,Like floral prints hardened broadside on mortared terracesIn the Riviera. In San Stefano, café societies are many.In Amalfi, revolutionists stomached too muchAperitifs and ennui to remember their credos.The expatriates muffle their anxieties quoting Virgil,So it is no longer intended for theDemocratic conscience to mollify its absence abroad.Nothing can separate the American pathos hereFrom self-dialogue with its pragmatic, ancestralForeshadow, or especially pretend to while in Rome. One by one they are doubled amongst the piazza square–Aristocrats of counterfeit tragedy and unequal noonday,If one is to live outside and unnoticed,An indifference must become fashionable, that isCourageous as it is apologetic,Unto countries too transparent to hearten the dreams ofForeign embrace. [End Page 150] And I would like this celebration of indulgenceTo play out to a self-denial, when faced with theSeafront harrowed by clouded doubts.So physical liberty has reached its open-eyed revolt,And does it befall next year in the Matisse exhibit?The Bostonians rousing up fracas in the Louvre?In full absence, I would not know how to resumeThe enjoyment of absinthe, frescoed lures of dusk,Skylines anaesthetized by gladness,Wherein there is this double memory of Baltic Spring:Nature's accomplice for I in my ignorance,This brings closer for me the haggard face, theLibertine totaled from nationless winners and losers. The sheen in the center of sunspotted crowds, Saxons, Gentiles,Even the sorry Bostonians' facesGreet the Venetian canal pontes. Characters seem to possessThe banal frugality of desire and weather on their own.If their belief holds, the world is unaware,Tenderminded to consummate, or to annul,Their livelihood for them through the acutest passage of night.Until daylight seals their mouths from echoingThe barcarolles again in their rounds. [End Page 151] Maxwell Tang maxwell tang notes that in his lyrical and critical essays, Albert Camus once remarked that his entire thesis for literature could be reduced to a simple axiom: 'Language should only bring us closer to its opposites: Silence and God.' Every word I have written so far has been an attempt to be in alignment with this. Copyright © 2023 University of North Dakota

Identification of material and psychological elements of crimes against humanity and how to deal with them in the international criminal court

Crimes against humanity are among the most severe international crimes. The conditions and characteristics of this category of crimes are such that it will sacrifice a large number of people. However, this crime is well criminalized in the international arena, and it has been included in the statute of the International Criminal Court and other statutes of international courts. Based on the importance of this subject, the current study aimed at the identification of the material and psychological elements of crimes against humanity and how to deal with them in the International Criminal Court. To do so, the library-based method has been used. First, the concept of crime against humanity and the structure and organization of the International Criminal Court are presented. Then, eleven material elements of crimes against humanity including murder, extermination, enslavement, deportation or forcible transfer of population, Imprisonment or other severe deprivation of physical liberty, torture, sexual violence, harassment, enforced disappearance of persons, apartheid, and other inhumane acts of a similar character were investigated.

Iran’s Arbitrary Detention of Foreign and Dual Nationals as Hostage-taking and Crimes Against Humanity

Abstract This article examines, within the frame of international criminal law, Iran’s arbitrary detention of foreign and dual nationals for leverage over the detainee’s (other) country of nationality. It provides an overview of Iran’s pattern of conduct since 2010, involving at least 66 victims, and analyses this in terms of hostage-taking and crimes against humanity. First, we argue that Iran’s pattern of conduct constitutes hostage-taking within the meaning of the International Convention Against the Taking of Hostages. This gives rise to Iran’s international responsibility for the breaches concerned and has important implications for victims’ and their loved ones’ perceptions of their experiences. Second, we assess the context elements of the definition of crimes against humanity as well as the gravity threshold and the compatibility of the pattern of conduct with the requisite elements of the relevant underlying offences: imprisonment or other severe deprivation of physical liberty, torture, and persecution. We conclude that the actions of certain Iranian officials reasonably satisfy the requirements for crimes against humanity. This is legally important for the application of crimes against humanity jurisprudence to this new context. It also opens avenues of accountability, given the aut dedere aut judicare provisions for crimes against humanity enacted by many states and the growth of sanctions legislation in several states. It should be difficult for responsible officials to travel outside Iran for fear of arrest and sanction.

The Boundary Problem of Rights Restoration

By conditioning the restoration of felons’ political rights on the repayment of legal financial obligations, states have kept millions of potential voters from participating politically—profoundly altering the shape of the American electorate. Courts have upheld the practice by treating the conferral of political rights to non-members of the political community as an exercise of legislative grace subject to few constraints. Critics argue that the practice conditions political participation on wealth status and is therefore subject to heightened review. This Essay traces the disagreement back to a first-order question overlooked by both sides: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood? The conventional position, which I call the “expulsion” view, imagines that a sentence of disenfranchisement casts a citizen outside the democratic community, thereby voiding all prospective constitutional interests predicated on political membership. However, disenfranchisement is better characterized as the subordination—not the wholesale elimination—of a citizen’s constitutional interests in voting or otherwise participating politically, just as incarceration suppresses but does not eliminate a person’s constitutional interest in physical liberty. From this it follows that disenfranchised citizens retain a stake in political participation and suffer cognizable harm when return to full political membership is inflected by wealth status. Redescribing the disenfranchisement-to-restoration process in this way aligns with the Richardson Court’s reading of Section 2 of the Fourteenth Amendment and sharpens the constitutional symmetry between fee-based restoration and paradigmatic forms of wealth discrimination like poll taxes. By framing re-enfranchisement as a constitutional default and drawing attention to disenfranchised citizens’ enduring claim to political presence, this account may also be of use in popular restoration efforts currently underway outside the courts.

Воля в восточнославянском фольклоре

The article explores the concept of the will in the East Slavic folklore. The main criterion for selecting the material is the frequency of the word “will” and corresponding lexical word family in different genres — epics, funeral, recruitment and wedding lamentations, lyrical songs, proverbs, and spiritual poems. The folklore component of the concept of will is considered in the totality of all semantic and plot information, taking into account synonyms, antonyms, epithets, predicates, and associative series related to the word “will” and its derivatives. The words of the lexical word family will reveal a wide range of meanings that generally coincide with the meanings of words in literary languages and dialects. Among them, in most genre projections of the concept of will, there are two poles, one of which collects positive meanings, such as the idea of the will as someone’s own right to choose as well as physical liberty, which is identified with the life itself. The other pole collects negative meanings: the idea of the will as the power of the alien, the older or the stronger one; redundancy of freedom and willfulness up to disobedience and immorality. However, in some genres such bipolarity is broken: in proverbs, negatively assessed meanings of will come to the fore, while spiritual poems render will in negative terms, as a centre of the sinfulness of a person and of the entire profane world.

Data protection during the coronavirus crisis.

Smartphone apps to track SARS-CoV 2 infections need to fulfill certain minimal requirements to guarantee privacy and justify their use under data protection laws.

Prospects for Bringing Parents and Other Close Relatives to Criminal Responsibility for the Abduction of Their Children

The paper notes that nowadays scientific literature does not pay enough attention to the issue of the possibility of prosecution of parents and other close relatives for the abduction of their own children. Meanwhile, the settlement of conflicts arising in relation to the abduction of children from persons with whom they reside is relevant. A study in the paper shows that the law of foreign countries provides several models of legal regulation of the problem situation. It is noted that the prevailing model does not differentiate between criminal responsibility according to the kin relations between the subject of criminal prosecution and the victim. In order to establish the object of criminal law protection, suffering from the unlawful seizure of children, the author analyzes the concept of physical liberty in relation to minors. The analysis of court practice shows that parents who have committed the act of abduction of the child, are brought to administrative responsibility. The author proposes a theoretical model of the possible rules on responsibility for the abduction of a child committed by a relative.

Taking Liberty Decisions Away from 'Imitation Judges'

Immigration detention is punishment. Therefore, time-honored proposed solutions to fix the immigration adjudication system, such as converting immigration judges (which some have called “imitation judges”) into Administrative Law Judges or even creating an Article I Immigration Court, are insufficient for liberty decisions. This article proposes that Congress strip “imitation judges” of their authority to review decisions about physical liberty. Rather, such decisions should be entrusted to a magistrate judge, with review by an Article III judge. The procedures are already in place; Congress need look no further than the Bail Reform Act, which applies when a person is held awaiting a criminal trial. Federal courts have borrowed heavily from criminal pretrial detention procedures, engaging in piecemeal oversight of the immigration detention system through habeas corpus review. These decisions reflect lower federal courts’ persistence in monitoring the rights of immigration detainees, even in the face of legislation that has aimed to limit their role. The work of these courts has been laudable, but a better solution that reaches every immigration detainee is necessary. The Trump administration has threatened immigration judges’ independence at every turn. Congress, therefore, should prevent such “imitation judges” from wielding the extraordinary governmental power to take away physical liberty.

Recognition and Protection of Personality Rights: Classification and Typology

Abstract In this article the premise is that personality interests exist in factual reality independently of any legal recognition. This emphasis on the pre-legal existence of individual personality interests is not merely of philosophical interest, but of cardinal jurisprudential and practical significance as it brings to the fore the fact that the qualities of personality interests are not determined by legal principles, but primarily by their nature in the sphere of factual reality. A jurisprudential definition and delineation of personality interests, which is essential to enable protective measures to be properly applied in practice, does not detract from this. This classification and typology therefore take account of factual reality, supplemented on a comparative law approach by the personality rights identified and delimited by jurists, the courts and legislatures, as well as typical examples of infringements of personality sanctioned by the different legal systems. Accordingly, the following classification and typology of personality rights are proposed: the right to life, the right to physical integrity, the right to physical liberty, the right to reputation, the right to dignity, the right to feelings, the right to privacy, and the right to identity.

간호대학생과 일반대학생의 인권감수성 변화에 관한 횡단적 비교

Abstract This cross-sectional study examined the differences of the human rights sensitivity changes between freshmen and seniors of nursing and non-nursing Students. The data for this study were collected using a human rights sensitivity questionnaire developed by Moon answered by 178 nursing and non-nursing students from five South Korean universities. A t-test, chi-square test were performed on the collected data. There were no significant differences in the human rights sensitivity scores between freshmen and seniors in nursing and non-nursing students. There were significant differences in the human rights sensitivity scores in the right to privacy of the psychiatric patients and the environmental rights among nursing students. There were significant differences in the human rights sensitivity scores in the disabled person’s physical liberty in non-nursing students. The results of this study suggested the direction of educational curriculum revision about ethics and development of educational programs to improve the human rights sensitivity.

Prosecutorial Discretion Power at its Zenith: The Power to Protect Liberty

On November 20, 2015, President Obama, frustrated by congressional inaction on immigration, announced an ambitious and potentially transformative prosecutorial discretion policy to forego the deportations of millions of low priority undocumented immigrants. That announcement immediately sparked legal challenges, which have quickly wound their way to the Supreme Court, and nationwide debate about the limits of the President’s prosecutorial discretion authority. President Obama’s actions are part of a larger trend whereby modern presidents have increasingly used robust assertions of prosecutorial discretion powers to achieve policy goals that they could not realize through legislation. There are clear dangers in allowing a president to wield excessive prosecutorial discretion power. Taken to an extreme, in the context of the vast modern administrative state, a president could significantly undermine the will of Congress across a wide array of subject areas and, thereby, upset the separation of powers enshrined in the Constitution. This legitimate concern has led some to argue that a president should not be permitted to exercise prosecutorial discretion categorically or based on her own normative view of the public interest. Categorical normative prosecutorial discretion policies pose the greatest risk of infringing on Congress’ primary policy making role; however, excising normative judgments and agency wide policies is entirely unworkable. The core purposes of prosecutorial discretion — justice, mercy and societal utility — all necessarily require the President to make independent judgments about the wisdom of prosecution. Limiting prosecutorial discretion to case-by-case determinations would be at odds with historic and modern practice and would significantly undermine the institutional design goals of transparency, uniformity and accountability. This Article suggests a new way to think about the boundaries of the President’s prosecutorial discretion authority. Specifically, I propose that the nature of prosecutorial discretion power is dependent on the context of enforcement and that the power is at its zenith when a president exercises her discretion to protect physical liberty. It is in the liberty deprivation context where historical precedent, the Constitution’s structural bias against liberty deprivation and the textual sources of prosecutorial discretion powers all militate in favor of robust presidential powers as a necessary check against excessively punitive statutory schemes.

Australia, Asylum Seekers and Crimes against Humanity?

On 21 October 2014, independent federal MP Andrew Wilkie wrote to the Office of the Prosecutor of the International Criminal Court (‘ICC’) to request the investigation and prosecution of the Australian Prime Minister, Tony Abbott, and his 19 cabinet ministers. Wilkie alleges that the Australian government has inflicted crimes against humanity upon asylum seekers and refugees. Specifically, Wilkie alleges violations of Article 7 of the Rome Statute of the ICC1 through acts including: • imprisonment and other severe deprivation of physical liberty in violation of fundamental rules of international law;• deportation and other forcible transfer of population; and• other international acts causing great suffering, or serious injury to body and mental and physical health.Wilkie also claims that the government is violating provisions of the Refugee Convention, Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights.This article evaluates the prospect of an ICC prosecution against Australia’s Prime Minister and Cabinet, and considers the meaning of Wilkie’s allegations in the context of international criminal law. We conclude that the ICC is unlikely to initiate the requested prosecution, but we acknowledge Wilkie’s initiative as a distinctive means of promoting public and international scrutiny of Australia’s treatment of asylum seekers.

Police Deprivation of Third Parties’ Liberty – A Field of Tension between National Police Law and the European Convention on Human Rights, as illustrated by Austin & Others v the United Kingdom

In Austin & Others v the United Kingdom The European Court of Human Rights came to the conclusion that the use of a police cordon, also known as “kettling”, where approximately 2000 people were forced to remain inside the cordon for up to eight hours, did not amount to deprivation of liberty under Article 5 (1) of the European Convention on Human Rights. This conclusion was reached by way of restrictive interpretation of the term “deprivation”. Previous case law establishes a set of criteria to be used when deciding if an infringement on the physical liberty to move from place to place constitutes a deprivation of this liberty, or merely a restriction upon it. These criteria were upheld in Austin, but were found to give room for taking into account the context and circumstances in which the police cordon was used. The previous view of the Court that the grounds justifying deprivations of liberty listed in Article 5 (1) (a-f) are exhaustive, was also upheld. In this article the starting point is the close relationship between national police law regarding the maintenance of security and public order on one hand, and the principle of necessity on the other. It is emphasised that “necessity”-based norms in national police law can make police measures directed against innocent third parties legal, deprivations of liberty included, but that this possibility would have been absent in Article 5 (1) of the Convention without the aforementioned restrictive interpretation of the term “deprivation”. An attempt is made to show that this interpretation is in fact based on central elements of the principle of necessity. Furthermore, it is attempted to show that the restrictive interpretation can be seen as a reflection of the need acknowledged in national police law, as well as in other articles of the Convention, to direct police measures against innocent third parties.

Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women's Legal Status and Public Health

In November 2011, the citizens of Mississippi voted down Proposition 26, a "personhood" measure that sought to establish separate constitutional rights for fertilized eggs, embryos, and fetuses. This proposition raised the question of whether such measures could be used as the basis for depriving pregnant women of their liberty through arrests or forced medical interventions. Over the past four decades, descriptions of selected subsets of arrests and forced interventions on pregnant women have been published. Such cases, however, have never been systematically identified and documented, nor has the basis for the deprivations of liberty been comprehensively examined. In this article we report on 413 cases from 1973 to 2005 in which a woman's pregnancy was a necessary factor leading to attempted and actual deprivations of a woman's physical liberty. First, we describe key characteristics of the cases and the women, including socioeconomic status and race. Second, we investigate the legal claims made to justify the arrests, detentions, and forced interventions. Third, we explore the role played by health care providers. We conclude by discussing the implications of our findings and the likely impact of personhood measures on pregnant women's liberty and on maternal, fetal, and child health.

Roe v Wade and the new Jane Crow: reproductive rights in the age of mass incarceration.

All pregnant women, not just those who seek to end a pregnancy, have benefited from Roe v Wade. Today's system of mass incarceration makes it likely that if Roe is overturned women who have abortions will go to jail. Efforts to establish separate legal "personhood" for fertilized eggs, embryos, and fetuses, however, are already being used as the basis for the arrests and detentions of and forced interventions on pregnant women, including those who seek to go to term. Examination of these punitive actions makes clear that attacks on Roe threaten all pregnant women not only with the loss of their reproductive rights and physical liberty but also with the loss of their status as full constitutional persons.

Development of a Web-based Education Program for Nurses working in Nursing Homes on Human Rights of Older Adults

This study was done to develop a web-based education program for nurses working in nursing homes. The focus was on the rights of older adults. The program was designed based on the Network-Based Instructional System Design (NBISD) model and was operated and evaluated between July 2007 and June 2008. Out of nursing records of 40 residents from a nursing home, the final 7 cases were deducted through classification using the Resource Utilization Group (RUG)-III. The data on needs for education was collected from 28 nurses working in 15 nursing homes located in Seoul and Gyeonggi Province, who agreed to complete a self-report questionnaire. A comprehensive review of the literature and two focus groups interviews were used to search for risk factors and guidelines for protection of human rights. The education program was developed based on Kolb's experiential learning model and composed of 5 units, which included content on types of human rights and rights to death with dignity, elder abuse, physical liberty, and self-determination. The program was positively evaluated showing a score of 3.35 (SD=0.37) out of 4. The educational program developed in this study should promote nurses' sensitivity to the rights of elders and improve nurses' behaviors in protecting the rights of elders residing in nursing homes.

Sexually violent predators in the courtroom: Science on trial.

In most realms of the law, science is supportive and elucidative but does not comprise the key elements of the case. In sexually violent predator (SVP) commitment laws, however, science is integral because the targets of these laws are people with some mental disorder or abnormality that gives rise to future risk of harmful behavior, justifying the deprivation of physical liberty and the imposition of treatment. The integral role of science in SVP statutes leads to unique dangers to both law and science. Our concern in this article is to address the most critical problems that occur at the intersection of law and science in the SVP context. We have twin concerns:

Demore v. Kim–A Dance of Power and Human Rights

In Demore v. Kim the United States Supreme Court interpreted the United States Constitution to allow detention of non-citizens while are in removal proceedings even if those individuals are not a flight risk and pose no danger to society and even if the detention was lengthy (months perhaps even years). The author discusses the Supreme Court cases dealing with detention of aliens and the cases dealing with civil detention and contends that permanent resident aliens should be treated as indistinguishable from citizens regarding their entitlement to a core fundamental human right like the right to physical liberty.