Procedural Safeguards Research Articles

Human Rights Protections in Drawing Inferences from Criminal Suspects’ Silence

Abstract This article sheds comparative and contextual light on European and international human rights debates around the privilege against self-incrimination and the right to silence. It does so through an examination of adverse inferences from criminal suspect’s silence in three European jurisdictions with differing procedural traditions: Ireland, Italy and the Netherlands. The article highlights the manner in which adverse inferences have come to be drawn at trial in the three jurisdictions, despite the existence of both European and domestic legal protections for the right to silence. It also explores differing approaches to the practical operation of inference-drawing procedures, including threshold requirements, varying evidential uses of silence and procedural safeguards. The authors argue that human rights’ standard-setting institutions ought to provide clarity on the conditions under which adverse inferences may be tolerated, including the purpose(s) for which inferences may be used, and the necessary surrounding safeguards.

LANGUAGE ASSITANCE AS A PROCEDURAL SAFEGUARD INCREASING THE LEGAL SECURITY IN RELATION TO MIGRATION

The focus of the present paper lies on the attempt to map the current situation in the field of language/ linguistic assistance provided to the third-country nationals detained in the detention facilities of the EU Member States. The author, particularly, stresses out the difficulties in ensuring the professional translation and interpreting services especially in cases of less-spread and indigenous languages that are in most cases mother tongues of the detained nationals. Thus, EU Member States face a formidable task as the obligation to ensure the procedural safeguards listed in the European Convention on Human Rights are guaranteed, and the fundamental rights are protected, and the language assistance is definitely one of them. Respect and protection of fundamental human rights contributes to the elementary sense of safety in all Meber States nationals living in the territory of the EU, even in the third-country nationals arriving into the EU. The present paper is the output of the project of the Academy of the Police Force in Bratislava: Intercultural Communication with the Third-Country Nationals in Detention Facilities (No. 241).

An Assessment of How Rights Are Read and Exercised at a Police Station in Spain

The European Union (EU) has recently reinforced its directives on the legal safeguards that should be guaranteed for individuals in police custody. This reform process has underlined the importance of detainees being informed of the exact reason for their detention and their procedural rights. This study explores the process by which police inform individuals of their rights in Spain now that implementation of the new European rules is mandatory. Our findings suggest that the police meet their obligation to read the detainee’s rights but fail to ensure that these rights are understood. In addition, it has been found that the different individuals involved, that is, detainees, police officers and lawyers, have different expectations about the process of detention, which, on occasions, severely complicates the observation of some procedural safeguards.

Debating the Rule of Law: The Curious Re-enactment of the Solicitation Offence

The author worries that the rule of law was diminished when Parliament re-enacted section 213(1.1) of the Criminal Code. This “offence” is a refurbished version of the unconstitutional prohibition against communicating in public for prostitution, which was invalidated by the Supreme Court of Canada in 2013. On its face, section 213(1.1) appears to create an offence to offer sexual services near select public places where minors might be present. But on the ground, section 213(1.1) is not actually operating as an offence at all — at least according to government politicians responsible for passing section 213(1.1) into law and police officers who lobbied for its re-enactment. By delving into the lawmaking process, the author discovers evidence that section 213(1.1) was instead re-enacted to operate as a warrantless detention power. If the debate between legislators and police is taken seriously, de facto detention under section 213(1.1) appears to serve as a means to two ends: (1) to extricate people who sell sex out of the industry; and (2) to collect evidence of graver offences by pimps and johns. Neither of these two ends involve charging the citizens who are technically criminalized under section 213(1.1), yet who are otherwise cloaked in moral blamelessness by legislators and police. Despite the benevolent motives of legislators and police, the author identifies four interconnected rule of law problems with de facto detentions under section 213(1.1): unaccountability to law, misallocation of power, unanswerability to citizens, and inaccessibility to justice. The author argues that distorting a criminal offence into a de facto detention power deprives people not only of constrained choices, but also of vital procedural safeguards, without which they cannot seek the answers, accountability, and justice that everyone deserves.

Cognitive Bias, Privacy Rights, and Digital Evidence in International Criminal Proceedings: Demystifying the Double-Edged ai Revolution

Abstract International criminal tribunals (ict s) have found, almost consistently, that unlawfully and/or secretly obtained evidence is admissible. De facto, defendants in international criminal law (icl) enjoy no privacy-related procedural safeguards under either the applicable domestic law or international human rights law (ihrl). Privacy violations are not confined to those impairing defendants’ rights; they might result in premature acquittals or in misconducts vis-à-vis the victims, too. While this is practically unescapable a compromise due to the ‘high profile’ of the accused and the complexity, length, momentousness, and ‘political charge’ of these trials, over-relaxed admissibility rules become unsustainable as far as digital evidence is concerned, in that they add to the latter’s inherently low reliability and heavy cognitive impact. Facing this issue, it is legit to wonder whether artificial intelligence (ai) might mitigate privacy violations or render them no longer necessary, thus improving the fairness record of the International Criminal Court (icc) and other ict s.

Lawyers and children: Is there a need for mandatory legal assistance in suspect interviews?

In 2016, Belgium introduced legislation mandating legal assistance for juvenile suspects. However, legal assistance can only serve as an effective procedural safeguard if it is provided appropriately. The current study examined how lawyers in Belgium fulfil this role in practice. Seventeen video-recorded police interviews of juvenile suspects were observed. The juveniles were aged between 12 and 17 years, and were suspected of various less serious, volume crimes. The findings of this study show that the ‘law in action’ does not always reflect the ‘law in the books’. The mere presence of a lawyer is insufficient: it is necessary for them to actively engage. Although police interviewers typically adopt an information-gathering approach, some interviews do require the lawyer’s intervention to protect the juvenile’s interests. Moreover, lawyers often restrict themselves to ‘legal’ assistance and offer limited (emotional) support. Because there is no ‘appropriate adult’ regime in Belgium, lawyers could take up this double role. The information-gathering approach also seems to enhance cooperation between lawyer and interviewer, resulting in a joint search for the truth in which neither adopts an antagonistic role when interviews are conducted properly.

Flame Burn Injury in Yichang of China: the Trends, Complications, and Risk Factor Analysis

ABSTRACT Background A flame burn is an injury of body tissues, including respiratory tract damage, due to exposure to a flame or its dense smoke. Flame burns cause some of the most physically and psychologically devastating forms of trauma. Compared to scald burns, flame burn patients have a higher mortality rate and a higher frequency of multiorgan failure. The purpose of this research was to investigate the trends, complications, and mortality risk factors of flame burns at the Department of Plastic and Burn Surgery (DPBS) of the People’s Hospital of China Three Gorges University (PHCTGU). Methods A retrospective analysis of 48 flame burn patients — accounting for 8.3% of the 576 burn victims admitted for burns at the PHCTGU from February 1, 2010, to September 30, 2019 — was performed after collecting information from the Burns Registry of the said hospital. Results The proportion of patients with flame burns was 8.3% (n=48). The mean total body surface area (TBSA) affected was 27.6%. The mean duration of hospitalization was 32.5 days. The etiologies of the flame burns were as follows: gas explosions (21, 43.8%), ethanol (8, 16.7%), charcoal fire (7, 14.6%), petrol explosions (4, 8.3%), wooden houses (4, 8.3%), and others, including dust, cigarette lighter, and burning incense, accounting for 8.3% of cases (4). Finally, 42 (87.5%) patients were treated and discharged, and 6 (12.5%) patients died. Complications included scarring in 38 (90.5%) patients, severe scar contractures on different parts of the body in 25 (60.0%) patients, scar ulcer in 6 (14.3%) patients, keloids in 3 (7.1%) patients, and scar cancer in 1 (2.4%) patient. Multiple complications occurred in the same patient. The only risk factor for mortality that was identified was TBSA (P=0.043). Conclusions Our study revealed that a small population (8.3%) was injured by flame burns, but 6 deaths were recorded. Society must continually enhance safeguard procedures to flames and strengthen education to protect life and avoid severe complications.

Dividing line between organ donation and euthanasia in a combined procedure

In this article, we want to reply to the recent article by Buturovic, to be able to correct some statements and allegations about this combined procedure. Organ donation after euthanasia...

Tried and (Inherently) Prejudiced: Disposing of the Prejudice Requirement for Lack of Counsel in Removal Proceedings

Every year, hundreds of thousands of immigrants appear before the immigration courts in removal proceedings. Removal proceedings have long been scrutinized when it comes to ensuring immigrants who go through the immigration courts are afforded their rights—with good reason. Over the past few years, the immigration courts have been facing an existential crisis and have been dysfunctional, compromising the effectiveness of the court system. As a result, immigration judges often prioritize efficiency over ensuring noncitizens are afforded their rights and afforded a meaningful day in court. Among these rights this process has jeopardized includes the statutory right to counsel. Although noncitizens have a statutory right to counsel in immigration courts, the government has no obligation to provide an attorney to those who cannot afford one. The problem is that immigration judges are denying the statutory right to counsel in removal proceedings; therefore, the noncitizens are appearing before immigration judges without a crucial procedural safeguard. Noncitizens who have counsel are more likely to seek relief from removal and actually win their case; therefore, it is important to recognize the distinctiveness of this right. The current system is inadequate and fails to give these noncitizens a fair and meaningful hearing. As a result, the federal circuit courts are split as to whether the courts should require a noncitizen to show that they were prejudiced by lack of counsel in removal proceedings. This Comment argues that the federal circuit courts should not require prejudice when the immigrant has been denied their right to counsel because, under the Accardi Doctrine, an agency must abide by its own regulations when those regulations pertain to a party’s rights. The consequences of removal are similar in severity to those in criminal law; therefore, it needs to be ensured that immigrants have the right to counsel if they have not expressly waived it in order to effectuate a meaningful hearing. Not only are the consequences of removal severe, but immigration system is already inherently prejudicial to the immigrant such that proving prejudice would be a waste of resources. Immigration laws are complex and filled with subjective standards, the impartiality of the immigration courts has been questioned, and the immigration courts have become increasingly weaponized over the past few years. Therefore, the federal circuit courts should not require an immigrant to show that lack of counsel prejudiced their proceedings.

Responding to Socioeconomic Diversity in the European Union (and to Steven Klein’s Essay) with Democracy-Enhancing Conflicts Law

Responding to Socioeconomic Diversity in the European Union (and to Steven Klein’s Essay) with Democracy-Enhancing Conflicts Law

The Color of Collateral Damage: The Mutilating Impact of Collateral Consequences on the Black Community and the Myth of Informed Consent

The rights of the convicted have long been constrained by the relentless imposition of collateral consequences of criminal convictions. More specifically, collateral consequences of drug convictions have a disparate impact on the Black community due to over-policing of Black neighborhoods. Consequently, Black people are over-prosecuted, leading to more convictions and ultimately making them the primary victim of collateral consequences. Certain collateral consequences almost exclusively affect Black people and are strikingly similar to Jim Crow laws. Similar to Jim Crow laws, these collateral consequences almost exclusively prohibit the Black convicted from public housing, welfare assistance, financial aid, the ability to vote, the ability to receive certain jobs and licenses, and more. Collateral consequences are considered categorically different from forms of direct punishment like fines, jail time, and probation. Due to this deceptive distinction, there is no notice requirement for collateral consequences at the plea stage. Thus, many defendants will accept deals for guilty pleas, completely unaware that collateral consequences will affect them for what could be the rest of their lives. In regard to this mockery of justice, this Article implores the argument that the informed consent requirement, as it stands, is a myth. This article discusses the constitutional implications surrounding the prejudicial imposition of collateral consequences and the blurred distinction made between collateral consequences and direct punishment. In doing so, this article proposes (1) Congress employ a legislative overhaul to remove prejudicial collateral consequences (2) Supreme Court change the standard of judicial review from the rational basis test to strict scrutiny and extend their holding in Padilla v. Kentucky to apply to all collateral consequences, and (3) Federal and State legislators enact legislation aimed at placing procedural safeguards—like a notice requirement—at the plea stage.

Digitally Rethinking Hunter v Southam

Canadian debates about lawful access -- the legal regime that authorizes various methods used by law enforcement to intercept and/or search or seize information for investigatory purposes -- need a new solution space for the digital age, one that is able to incorporate new technological solutions for minimizing rights-infringements and to provide new forms of accountability and safeguards against misuse. However, this is not simply a matter of adopting the popular framework of “privacy by design”, or even a reworked “lawful access by design”. We argue that an appreciation of the challenges of the digital world require us to rethink our basic constitutional framework. The Canadian constitutional framework for lawful access was set out by the Supreme Court in Hunter v Southam and then refined in the subsequent jurisprudence. We argue that this framework is ill-suited to contemporary digital challenges to informational privacy and requires four fundamental shifts. First, its basic point-of-collection focus needs to shift to the broader life-cycle of the data. Second, it needs to shift away from its categorical approach to informational privacy, where some categories of information are thought to be inherently more private than others, and instead approach informational privacy in terms of the use-context of the data. Third, this framework needs to shift away from a dominant focus on privacy and recognize a broader set of rights and interests at stake in lawful access practices, including the rule of law, equality, and other fundamental freedoms. Fourth, this framework needs to shift away from its exclusive focus on procedural safeguards at the point-of-collection (e.g. the warrant requirement) and consider procedural, legislative, and technical safeguards throughout the life-cycle of the data as well. Once we have a constitutional framework that is better able to address the digital era then we can more precisely craft new techniques for protecting rights, ensuring accountability, and safeguarding against abuse within this framework. Indeed, we can then see why some of these techniques are constitutional requirements. The pay-off for doing so, we argue, is a way of enabling specific justified uses of data by law enforcement, while safeguarding the data against non-justified uses over its life-span.

The Law Governing Related Party Transactions in Canada: Rules, Standards and Regulatory Scrutiny

Canada is an interesting laboratory to study the law governing related party transactions because of the distinctive features of its capital markets and its regulatory landscape. The ownership structure of Canadian corporations resemble more closely those of continental Europe and South East Asia than those of the United States. Further, deviation from the one share/one vote rule is widespread. Thus, the primary corporate governance problem relates to the risk that dominant shareholders extract private benefits of control at the expense of the corporation and its public shareholders. As for regulation, publicly-traded corporations are subject to provincial corporation and securities laws, which are largely harmonized at the national level. The paper reviews the law governing RPT in Canada, which is the product of corporate law and securities regulation. Although they are not prohibited, conflict of interest transactions are regulated by an intricate set of ex ante rules and ex post standards of review that impose procedural and substantive requirements. Specifically, the paper shows that the following fundamental questions lead to many answers: 1) Who is charged with the screening of RTP?; 2) How does the screening work?; 3) When does it operate? Against this backdrop, the paper analyses the role of procedural safeguards and substantive review by looking at two conflicting cases regarding the impact of majority of the minority approval. It also presents data on the use of majority of the minority approval by reviewing 79 transactions between 2013 and 2018 where this procedural safeguard was mandated. The anecdotal and empirical discussion serves to put majority of the minority approval in perspective with respect to its protective function. The analysis closes with a discussion of a recent initiative on the part of Canadian securities regulators, which translates into a heightened involvement in the review and oversight of conflict of interest transactions. On the one hand, this initiative may buttress the effectiveness of majority of the minority approval by reinforcing the procedural safeguards. On the other hand, it may have unintended effects on the protection of minority shareholders.

Digital Forensics, Algorithms and Procedural Safeguards

Digital Forensics, Algorithms and Procedural Safeguards

The IDEA’s Stay-Put Provision: A Staple of Pandemic IEP Litigation?

School closures in the wake of COVID-19 have caused major disruptions in the lives of students throughout the nation. Students served by the Individuals with Disabilities Education Act (IDEA) are significantly and disproportionately affected by these closures, as they often rely on school-based services crucial to their academic progress. In considering how the IDEA’s procedural safeguards can serve to mitigate these harms, this Comment identifies the IDEA’s “stay-put” provision as a means of securing much-needed stability in the context of school closures and lost services. First, this Comment identifies a split among circuit courts regarding application of the stay-put provision to contexts in which existing educational services become unavailable. Second, it contends that adopting the “affirmative obligation” approach conforms best with the IDEA’s purposes and the Supreme Court’s interpretations of the Act. Under the affirmative obligation approach, students can be ensured much-needed stability, and schools much-needed flexibility, in highly uncertain contexts like the COVID-19 pandemic.

The Kuwaiti power to expel foreigners under the assessment of international law

The purpose of this paper is to determine the rules of international law that are applicable to the expulsion of foreigners by proving that states' power in this regard is not unlimited. However, there exist several rules of international law - whether related to substantive protection of the persons concerned or procedural safeguards that must be adhered to when conducting expulsion - which may result in the prevention of expulsion and make it unlawful under these rules. This study focuses on the state of Kuwait, as a case study, and investigates the types of regulations that Kuwait implements with respect to the expulsion of foreigners and evaluates them for the purpose of assessing them under the relevant rules of international law.

The Kuwaiti power to expel foreigners under the assessment of international law

The purpose of this paper is to determine the rules of international law that are applicable to the expulsion of foreigners by proving that states' power in this regard is not unlimited. However, there exist several rules of international law - whether related to substantive protection of the persons concerned or procedural safeguards that must be adhered to when conducting expulsion - which may result in the prevention of expulsion and make it unlawful under these rules. This study focuses on the state of Kuwait, as a case study, and investigates the types of regulations that Kuwait implements with respect to the expulsion of foreigners and evaluates them for the purpose of assessing them under the relevant rules of international law.

The EU Fundamental Right to Asylum: In Search of its Legal Meaning and Effects

This chapter analyses the scope, content and justiciability of the EU fundamental right to asylum, as laid down in Article 18 of the EU Charter of Fundamental Rights, as these are still open questions. In addressing these questions, the chapter will begin by analysing the scope of application of the EU fundamental right to asylum as interpreted by the CJEU. It will then turn to the content of the EU fundamental right to asylum. To this end, it will first consider the case law of the CJEU and domestic courts interpreting Article 18 and then additional legal sources, focusing in particular on the principle of non-refoulement enshrined in the Refugee Convention and the rights to asylum provided for in the EU Treaties and domestic constitutions. In conclusion, the author shows that the legal meaning of the right to asylum and its effectiveness have been clarified and enhanced by national courts rather than the CJEU, although the CJEU’s contribution has been essential in enhancing procedural safeguards concerning the EU fundamental right to asylum.

Zahlungsmanagement und Malversationsprävention als Organisationspflichten der Geschäftsleitung

Companies have to protect their assets, especially liquid assets like bank deposits, from unauthorized transfers of any kind. This requires a set of procedural safeguards, conveniently summarized by the term ‘good payment governance’, comprising, notably, a payment authorization scheme, IT security, staff training and insurance protection. The article explores directors’ duty of care with regard to good payment governance. In this respect, special attention is given to the departmentalization of directors’ responsibility, i.e. how a board’s general responsibility translates into the personal responsibility of individual board members, including the CFO and CEO.

Equivalence in the area of financial services: An effective instrument to protect EU financial stability in global capital markets?

The article investigates whether the main EU regulatory mechanism for managing cross-border trade in financial services with third countries, the EU equivalence regime, is compatible with the post-financial crisis objective of protecting financial stability. Equivalence allows third-country financial firms to operate in the internal market on the basis of their home country regulation if this is equivalent to EU law. There are three different procedural safeguards to avoid financial stability risks: a) ex ante assessment of third countries’ regulation to ensure regulatory compatibility between the EU and the third country; b) ex post withdrawal of market access if cross-border liberalization triggers a “race to the bottom”; and c) direct supervision of systemic third-country entities to prevent them from becoming vectors of cross-border systemic risk. The article argues that those safeguards are ineffective in protecting the internal market from external risks. It proposes two alternative reforms. First, the EU could replace equivalence with a system of substituted compliance, following the US model where foreign financial firms must register with local authorities and follow host country regulation. Alternatively, the EU could reinforce the assessment, withdrawal, and supervisory procedure by harmonizing the current patchwork of different