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  • Comparative Perspectives on the Law and Practice of Limiting Offenders in Fundamental Rights Beyond Their Sentence

Comparative Perspectives on the Law and Practice of Limiting Offenders in Fundamental Rights Beyond Their Sentence

  • 6 Apr 2017
  • 7 Apr 2017
  • Oñati

It may be supposed that the legal status of ex-offenders is unproblematic and that all their formal rights and duties are restored by the completion of their sentence. In reality, their position is much more complex. In many European countries ex-offenders are subject to restrictions of fundamental rights that proceed beyond their sentences. These restrictions can be imposed by statute, a court or an administrative authority. For instance, employers can ask potential employees to provide certificates of conduct. Furthermore, in most countries, unlike other civilians, the fingerprints of ex-offenders are registered. In some countries, people convicted in respect of sex offences, or found not guilty by reason of insanity, have had to notify the police of certain details, in particular their address. In the most extreme case, offenders of sexual and violent crimes can be detained or restricted in their freedom of movement after they have served their sentence, possibly a lifetime. And last, a criminal conviction can have serious consequences with regard to immigration, such as the denial or withdrawl of a residence permit or nationality deprivation. The law changes in a fast pace. New legal ways of restricting offenders beyond their sentence have been introduced and a rise in the imposition of restrictions can be observed.

The main objective of this workshop will be to bring together a number of leading legal, socio-legal and criminological scholars, from different parts of the world for a two-day workshop at the Oñati International Institute for the Sociology of Law to improve the legitimacy of decisions concerning the design and imposition of restrictions of fundamental rights of offenders beyond their sentences by developing an account of the principles and values that should guide and limit the state’s use of these restrictions. This will enable both legislators and practitioners to make better-founded choices about such restrictions. In addition, the question whether clear policies at the different national and European levels are needed, will be addressed.

This workshop touches upon the current debate on how to deal with the return of offenders to free society. The added value of this workshop cannot be overestimated in times where states are urged to protect society whilst at the same time need to rehabilitate ex-offenders. The restriction of ex-offenders in fundamental rights beyond their sentence is a clear sign of though on crime laws and a culture of control. Given the potential threat, states are inclined to impose restrictions on former offenders to mitigate risks and to prevent harm to individuals. On the other hand, an offender returning to the community is entitled to rehabilitation. Striking the right balance between protecting the fundamental rights of former offenders and protecting society by preventing recidivism is one of the greatest challenges facing the modern constitutional state.

Although the rationales for and justifications of state punishment have been explored extensively, the scope, principles and limits of restricting former offenders beyond their sentences still requires more doctrinal and conceptual research. Important work has been done in the past (see the special issue of the European Journal of Probation on Judicial rehabilitation (2011) with contributions of M. Herzog-Evans, E. Larrauri and C. Morgenstern), but the law and practice with regard to limiting offenders in fundamental rights still is a very broad and under researched area of law. This workshop aims to fill this gap. This will be done using a two-step approach. First, by identifying the principles regarding the restriction of individuals after they have completed their sentence. How do these restrictions relate to principles such as retribution, prevention, protection of the public, restoration and rehabilitation? Second, by making an international comparison on the law and practice of restricting individuals in fundamental rights beyond their sentence, such as restrictions on employment, education, liberty and/or freedom of movement, licensing, housing, privacy and/or immigration. We will look at the way legal restrictions are being regulated in the law in different countries and the substantive and procedural safeguards associated with them. For instance, how does the principle of proportionality limit the restiction of offenders after the completion of their sentence? Are these restrictions being imposed automatic or is this a discretionary decision? And who decides on the imposition: is this an executive or a judicial decision? And how long can ex-offenders be restricted beyond their sentence? Are the restrictions limited in time or can they last a lifetime? What expunging or sealing techniques are in place in the various jurisdictions? Is there an automatic restoration of rights or is this a judicial or administrative procedure? For instance, what laws or rules exist that hinder or help with the rehabilitation process of offenders? These two steps provide us with an oversight that forms a guide and a stimulus to further debate during the workshop. 

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