scholarly journals Article 37: Prohibition of Torture, Capital Punishment, and Arbitrary Deprivation of Liberty

Author(s):  
Christian Whalen

AbstractArticle 37 is inspired by the provisions of the International Covenant on Civil and Political Rights (ICCPR). However, it extends the ICCPR’s provisions to the protection of the children by: (1) imposing the prohibition of life imprisonment for children without the possibility of release; (2) demanding that detention of a child shall be used as a measure of last resort and be imposed for the shortest period of time; and (3) providing to children deprived of liberty the right to maintain contacts with their family members. Article 37 imposes a child-centred understanding of its provisions and rights. These rights extend beyond the ambit of child justice administration to all situations where children may be deprived of liberty, including, for example, child protection settings, health care settings, and immigration settings. This chapter analyses Article 37 rights in accordance with four essential attributes, as enumerated in its four constituent paragraphs: (1) the prohibition in paragraph (a) on torture or ill-treatment, specifically ruling out capital punishment and life imprisonment without parole for minors; (2) the prohibition in paragraph (b) of unlawful and arbitrary deprivations of liberty, insisting that such sanctions are a measure of last resort that must only be imposed for the shortest appropriate period; (3) the limitations on the deprivation of liberty, including the core commitment in paragraph (c) to upholding the child’s inherent dignity and right to be treated with humanity in such circumstances; and (4) the right, in paragraph (d), to minimal due process guarantees which must accompany any child’s deprivation of liberty. While youth criminal justice practice varies greatly from state to state, Articles 37 and 40 have emerged as a codification of global standards set out in the Beijing Rules and a summary prompt to the adoption of guidelines and minimum rules for the protection of children deprived of liberty and the prevention of youth crime. Article 37 should therefore be applied consistently with the recent General Comment no. 24 (2019) on Children’s Rights in the Child Justice System.

2017 ◽  
Vol 10 (2) ◽  
pp. 193
Author(s):  
Mei Susanto ◽  
Ajie Ramdan

ABSTRAKPutusan Nomor 2-3/PUU-V/2007 selain menjadi dasar konstitusionalitas pidana mati, juga memberikan jalan tengah (moderasi) terhadap perdebatan antara kelompok yang ingin mempertahankan (retensionis) dan yang ingin menghapus (abolisionis) pidana mati. Permasalahan dalam penelitian ini adalah bagaimana kebijakan moderasi pidana mati dalam putusan a quo dikaitkan dengan teori pemidanaan dan hak asasi manusia dan bagaimana kebijakan moderasi pidana mati dalam RKUHP tahun 2015 dikaitkan dengan putusan a quo. Penelitian ini merupakan penelitian doktrinal, dengan menggunakan bahan hukum primer dan sekunder, berupa peraturan perundang-undangan, literatur, dan hasil-hasil penelitian yang relevan dengan objek penelitian. Penelitian menyimpulkan, pertama, putusan a quo yang memuat kebijakan moderasi pidana mati telah sesuai dengan teori pemidanaan khususnya teori integratif dan teori hak asasi manusia di Indonesia di mana hak hidup tetap dibatasi oleh kewajiban asasi yang diatur dengan undang-undang. Kedua, model kebijakan moderasi pidana mati dalam RKUHP tahun 2015 beberapa di antaranya telah mengakomodasi amanat putusan a quo, seperti penentuan pidana mati di luar pidana pokok, penundaan pidana mati, kemungkinan pengubahan pidana mati menjadi pidana seumur hidup atau penjara paling lama 20 tahun. Selain itu masih menimbulkan persoalan berkaitan dengan lembaga yang memberikan pengubahan pidana mati, persoalan grasi, lamanya penundaan pelaksanaan pidana mati, dan jenis pidana apa saja yang dapat diancamkan pidana mati.Kata kunci: kebijakan, KUHP, moderasi, pidana mati. ABSTRACTConstitutional Court’s Decision Number 2-3/PUU-V/2007, in addition to being the basis of the constitutionality of capital punishment, also provides a moderate way of arguing between retentionist groups and those wishing to abolish the death penalty (abolitionist). The problem in this research is how the moderation policy of capital punishment in aquo decision is associated with the theory of punishment and human rights and how the moderation policy of capital punishment in the draft Criminal Code of 2015 (RKUHP) is related with the a quo decision. This study is doctrinal, using primary and secondary legal materials, in the form of legislation, literature and research results that are relevant to the object of analysis. This study concludes, firstly, the aquo decision containing the moderation policy of capital punishment has been in accordance with the theory of punishment, specificallyy the integrative theory and the theory of human rights in Indonesia, in which the right to life remains limited by the fundamental obligations set forth in the law. Secondly, some of the modes of moderation model of capital punishment in RKUHP of 2015 have accommodated the mandate of aquo decision, such as the determination of capital punishment outside the main punishment, postponement of capital punishment, the possibility of converting capital punishment to life imprisonment or imprisonment of 20 years. In addition, it still raises issues regarding the institutions that provide for conversion of capital punishment, pardon matters, length of delay in the execution of capital punishment, and any types of crime punishable by capital punishment. Keywords: policy, criminal code, moderation, capital punishment.


2020 ◽  
pp. 019145372093192
Author(s):  
Felix Bender

Who should be recognized as a refugee? This article seeks to uncover the normative arguments at the core of legal and philosophical conceptions of refugeehood. It identifies three analytically distinct approaches grounding the right to refugee status and argues that all three are normatively inadequate. Refugee status should neither be grounded in individual persecution for specific reasons (classical approach) nor in individual persecution for any discriminatory reasons (human rights approach). It should also not be based solely on harm (humanitarian approach). Rather, this article argues, it should be based on political oppression – on persons lacking public autonomy, formally expressed as a lack of legal–political status. The normative foundation for a claim to refugee status lies in the inability of a person to control, amend and seek recourse to the specific situation she faces. It lies in the lack of public autonomy expressed as a lack of legal–political rights. What matters for a claim to refugee status is thus the legal–political disenfranchisement of a person, ultimately leaving her with no recourse to the particular situation she faces other than flight. Refugees, then, are not only those who fear harm or persecution, but those who are politically oppressed.


1991 ◽  
Vol 25 (3-4) ◽  
pp. 512-523
Author(s):  
Leon Sheleff

One of the most disturbing aspects of examining the extensive capital punishment debate, with its clear indications of discriminatory practices, ambiguous judicial directives, undeniable miscarriages of justice, controversial statistical data, and inept, inconsistent and/or unjust implementation, is the constantly gnawing thought that if this is the situation vis-à-vis what is considered the most extreme penalty with its special super due process, then what is happening in the cases of lesser penalties. These latter cases of petty thieves sentenced to years of incarceration for relatively minor delinquencies, of accused inadequately defended without appeals being lodged within the judicial system or public interest shown, of compulsory life imprisonment without parole, no doubt reflect all of the faults and errors of capital punishment.


2017 ◽  
Vol 8 (1) ◽  
pp. 169-175
Author(s):  
Esmeralda Thomai

Abstract The goal of this article and of the analysis itself on which it is based, is to identify weaknesses in penitentiary legislation in force in the Republic of Albania, in order that the penal policy of the Albanian state, should respect the principles on which will be based to be effective. At the end of 2015 the number of persons who have been sentence to life imprisonment in Albanian prisons has been 159 people, convicted in 2895 of the total prison who were serving a sentence in Albanian prisons. The number of those sentenced to capital punishment has increased, compared with the statistics of 3-4 years ago. Albanian law on the punishment of life imprisonment presents serious problems in the modalities of execution of the punishment, violating the right and fundamental freedom of man, that lives in liberty, and break up the Article 3 of the ECHR, which prohibits placing under cruel punishments, inhuman and degrading. The Republic of Albania will need as soon as possible to change its legislation concerning the category of persons sentenced to life imprisonment. Condemned to life imprisonment, according to each individual case and referred to progress in the sentence, in view of the disappearance of the potential for recidivism and in view of correction, after the expiry of a time limit prescribed by law,they should have the right and opportunity in court jurisdiction to address the real execution of criminal sentences for the benefit of supervised freedom or conditional one. In this way, the hope of life again in freedom, will make the convicts to life imprisonment interested to educate themselves, by all the values that will be in accordance with social rules.


2020 ◽  
Vol 8 (12) ◽  
pp. 1984
Author(s):  
I.G.A.A Fitria Chandrawati

Tujuan Penelitian adalah untuk menganalisis sanksi pidana penjara seumur hidup menjadi alternatif dari penjatuhan sanksi pidana mati  dan mengidentifikasi esensi antara pidana penjara seumur hidup dengan pidana mati. Penelitian ini memakai jenis penelitian hukum normative dengan pendekatan perundang-undangan, pendekatan historis dan kasus. Dengan ditunjang bahan hukum primer beberapa undang – undang yang menganut penerapan pidana mati, bahan sekunder teks – buku – buku hukum pidana, bahan jurnal – jurnal hukum, bahan tersier, kamus, ensiklopedi, harian surat kabar, teknis analisis deskriptif interpretatif – evaluatif argumentatif. Dengan simpulan temuan bahwa pidana penjara seumur hidup  sering sebagai alternatif (pengganti) dari pidana mati guna menghindari kekeliruan dalam penjatuhan sanksi, juga untuk menghargai hak hidup seseorang sesuai prinsip HAM. Esensi pidana penjara seumur hidup dibandingkan dengan pidana mati sama – sama menyebabkan penderitaan fisik dan psikis bagi terpidananya, sanksi pidana tetap menimbulkan rasa derita, pembalasan dan sebagai bentuk pertanggung jawaban hukum bagi pelaku tindak pidana. The aim of this research is to analyze life criminal law into criminal sanctions and verified life imprisonment. This research using a type of normative legal research with an approach legislation, historical approach and case approach. With supported by primary legal material several laws that adhere application of capital punishment, secondary legal materials in the form of texts, books criminal law, legal journals, tertiary material in the form of dictionaries, encyclopedias, daily newspapers and using material analysis techniques law in the form of descriptive analysis techniques interpretative-evaluative-argumentative, with the conclusion that life imprisonment often as an alternative (substitute) to capital punishment to avoid mistakes in imposing sanctions, too to better respect the right to life of a person according to human rights principles. Essence life imprisonment compared to capital punishment together causing physical and psychological suffering for the conviction, sanctions crime still causes pain, retribution and forms legal liability for perpetrators of criminal acts.


1977 ◽  
Vol 19 (1) ◽  
pp. 61-82 ◽  
Author(s):  
Lawrence J. LeBlanc

The human rights proclaimed and affirmed in the various international declarations, conventions, and covenants adopted since World War II fall into two broad categories: civil and political; and economic, social, and cultural. The former includes the traditional rights of man, such as the rights to life and liberty; the latter includes such rights as the right to work, to social security, and to the preservation of one's health and well-being.International agreement in principle on most civil and political rights as human rights has been relatively easy to achieve; disagreement has occurred—and is likely to continue to occur-primarily over their precise meaning. Virtually everyone endorses, for example, a right to life; not everyone agrees, however, that capital punishment or abortion must therefore be prohibited by law.


2021 ◽  
Author(s):  
Adhy Aman ◽  
Mette Bakken

The right to cast a vote in democratic elections stands at the core of people’s political rights. However, for citizens residing abroad the issue is less straightforward. Should people that have made a choice to live in another country still have voting rights in their country of origin? If so, should the state be responsible for facilitating their vote from abroad—or should citizens simply have the option of returning to exercise their right? Countries embarking on introducing out-of-country voting (OCV) may benefit from the experiences made in countries where voting from abroad is available. This report presents practical examples from different countries and highlights key issues to be considered before introducing out-of-country voting measures.


2010 ◽  
Vol 15 (2) ◽  
pp. 1-27 ◽  
Author(s):  
Benjamin S. Yost

It is hard to know what to think about Kant's ‘passionate sermons’ on capital punishment. Kant clearly feels that it is one of the most important punishments in the state's arsenal. But his vehement insistence on the necessity of execution strikes many readers as philosophically suspect. Critics argue that Kant's embrace of the death penalty is incompatible with, or at least not required by, the fundamental tenets of his moral and legal philosophy (Schwarzschild 1985; Merle 2000; Potter 2002; Hill 2003). These arguments typically employ one of two strategies. The first is to deny that execution is required by retribution in even a prima facie sense; arguments along this line typically question the coherence of Kant's doctrine of the ius talionis (Sarver 1997). The second is to show that there are inviolable moral principles that render the death penalty illegitimate; this criticism typically appeals to the value of human dignity or the right to life (Radin 1980; Pugsley 1981; Schwarzschild 1985; Merle 2000; Potter 2002). There is a third strategy that could be used to criticize Kant, although it is not aimed at him specifcally. This strategy invokes legal principles of fairness or due process. It asserts that, regardless of capital punishment's moral appropriateness or legitimacy, capital punishment is unjust due to the fallibility of legal actors and institutions (Nathanson 2001). Someone adopting the third strategy might claim that, while Kant's justifcation may be acceptable in principle, it fails to justify the death penalty in the world we live in.


2019 ◽  
Vol 42 ◽  
Author(s):  
Guido Gainotti

Abstract The target article carefully describes the memory system, centered on the temporal lobe that builds specific memory traces. It does not, however, mention the laterality effects that exist within this system. This commentary briefly surveys evidence showing that clear asymmetries exist within the temporal lobe structures subserving the core system and that the right temporal structures mainly underpin face familiarity feelings.


2020 ◽  
Vol 8 (2) ◽  
pp. 97-108
Author(s):  
Dinda Izzati

Evidently, a few months after the Jakarta Charter was signed, Christian circles from Eastern Indonesia submitted an ultimatum, if the seven words in the Jakarta Charter were still included in the Preamble to the 1945 Constitution, then the consequence was that they would not want to join the Republic of Indonesia. The main reason put forward by Pastor Octavian was that Indonesia was seen from its georaphical interests and structure, Western Indonesia was known as the base of Islamic camouflage, while eastern Indonesia was the basis for Christian communities. Oktavianus added that Christians as an integral part of this nation need to realize that they also have the right to life, religious rights, political rights, economic rights, the same rights to the nation and state as other citizens, who in fact are mostly Muslims. This paper aims to determine and understand the extent to which the basic assumptions of the Indonesian people view the role of Islam as presented in an exclusive format.


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