The issues surrounding the institution of punishment have been brought to a new light with rising popular distrust in government. The question must be raised why we believe that it is permissible for the state to punish those who engage in certain form of behavior. It is argued in this paper that even if those who break the law are responsible for their actions, the idea that it is permissible for the state to punish is fundamentally flawed, and even the term ‘punishment’ should not be applicable. The idea is not new, as the term ‘punishment’ was dropped from the Criminal Code at the inception of the Soviet Union for some time. However, simply eliminating the term altogether and replacing it with something different does not solve the substance of the problems associated with it. It is argued that not only the term ‘punishment’ goes fundamentally beyond the legitimate purposes of criminal law, but also that the practice itself of punishing for breaking the law must cease to exist.
Ideological stigma, especially ‘communism’, has been still taking place significantly in the country in Indonesia’s New Order. This relates to 1965 massacre against member of communist party and its sympathiser. Such stigmatisation has been used also into the justice system, especially by using the court for attacking human rights groups, individuals, or those who defending rights. Even, the stigma had been effectively used to suppress human rights activism, especially dealing with two most risky human rights violation issues in decentralised Indonesia: anti-corruption and opposing excessive natural resources exploitation.
The paper takes the latest and most controversial case of Heri Budiawan als Budi Pego vs. The State of Republic of Indonesia in Banyuwangi (2017). This case departs from the role of public authorities who had been using ‘communist article’ under Indonesia’s Penal Code for the first time since its enactment, especially targeting environmental defenders.
The paper will discuss the problem of post-sentence preventive detention of dangerous offenders, primarily from the perspective of the collision between the need to respect the personal liberty of individuals and the positive obligations of the state to protect public order and the rights of others. The ECtHR in the most recent case law accepted the use of post-sentence preventive detention provided that it is limited to persons of “unsound mind” and is executed in the therapeutic environment. However, in practice both these conditions are unclear: the ECtHR has never defined, even in outline, the term “unsoundness of mind”, while the involuntary therapy of offenders with non-psychotic disorders is ineffective. Consequently, the ECtHR’s jurisprudence does not give precise answer as to what are the limits of preventive detention. The paper will address this issue in the light of the contemporary human rights standards as well as the Polish experiences with post-sentence detention.
The emergence of insurgence in the North East of Nigeria exacerbated the worrisome state of sexual violence-related-crimes jurisprudence in Nigeria. Prior to this era, it was believed that one in three female children in Nigeria experiences a sexual violence related incident before the age of 16. Municipal law on what constitutes sexual violence is limited in scope, relating to securing convictions on the offence of rape. The paper argues that with the changing state of public international law and the redefinition of offences like sexual violence, prospects of improving the experience of survivors of sexual violence exist. Bringing into context decisions and policy documents from international law judicial bodies, the paper will examine their influence on Nigerian laws. It will also advocate for a new paradigm in the teaching of international law in Nigeria to reflect the developing and new discourse. It is premised on a qualitative survey of Nigerian laws related to Sexual Violence.
The starting point for comparative legal research on executive clemency is Leslie Sebba’s 1977 journal article in Criminal Law & Criminology comparing clemency mechanisms around the world. Subsequent scholarship tends to have only considered executive clemency in comparative perspective over a limited number of jurisdictions, or in relation to death penalty cases only. However, since Sebba published his results, based on data from the mid-1970s, there have been significant political and legal changes around the world. More than 70 national constitutions have gone into force since 1970. Sebba considered the constitutional provisions of exactly 100 different jurisdictions, whereas in 2019 there are 193 UN member states. This paper dissects Sebba’s main findings and attempts to update these based on the authors’ 2019 data, consisting of an exhaustive global survey of constitutional provisions on executive clemency. The authors ask the question: are Sebba’s findings still relevant today?