隐私权:刑事程序基本权

隐私权是宪法权利,亦是刑事程序基本权.隐私权作为刑事程序调整的重要范围,保护着个人对刑法执行至关重要的有罪或者无罪信息的私有,以及对不让政府插手的个人信息的享有.加强刑事领域的隐私权保护,意味着要在政府的规范需要和个人隐私权益上达成大量开放式的司法平衡,对政府操纵背景条件的能力进行有限限制.漠视隐私权的刑事程序比我们想象的更具有事实性的恶果,其对事实结果的影响可能导致一些不良趋势.为此,应关注作为宪法权利的隐私权在刑事诉讼中的属性、价值及作用,加大对我国刑事程序中隐私权的保护.     

Automated communication and basic rights

Nowadays communication does not necessarily originate from humans, but also from “machines” such as “social bots” or “things” in the Internet of Things. From a basic rights perspective, this phenomenon raises the question if such communication benefits from the same level of protection as communication created by human beings. With regard to the basic rights of the Grundgesetz, the Federal Constitutional Court for years has been excluding some forms of communication from the scope of protection as not needing or deserving protection. The ratio of these decisions must not be applied to cases of automated communication without noticing possible differences. Automated communication can mostly be linked to the human beings or legal entities applying it. Therefore, its prohibition or regulation is a matter of proportionality of infringements with fundamental rights.

     

Human rights safeguards and international cooperation in extradition: Striking the balance

Conclusion It is necessary to strike the correct balance between safeguarding the rights of the individual and engendering mutually beneficial cooperation between states in extradition matters. In the absence of effective global international human rights enforcement mechanisms, many of the traditional safeguards still have a real role to play in extradition. This article reviewed five such safeguards and found that all but the nationality exception should be retained to ensure that international cooperation and individual protection are both safeguarded for the common good of society.This is a revised version of a paper presented at an international workshop on Principles and Procedures for a New Transnational Criminal Law, organized jointly by the Society for the Reform of Criminal Law and the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany, May 21–25, 1991.LL.B., University of Exeter 1973; LL.M., Osgoode Hall Law School 1974; D. Jur., Osgoode Hall Law School 1976.     

Effects of prior knowledge and expert statement on belief in recovered memories: an international perspective

We tested the hypothesis that beliefs in the purported attributes of recovered memories of child sexual abuse (CSA) are associated with knowledge of the "recovered/false memory debate", and that such beliefs will be related to assessments of the credibility of statements made by participants in a vignette about CSA. Participants from five countries (the United States, Canada, New Zealand, the United Kingdom and Israel) responded to a questionnaire regarding beliefs about recovered memory as well as self-reported exposure to and knowledge of the debate. In addition, they assessed the credibility of statements made by a daughter (reporting recovery of memories of sexual abuse by her father), her father (denying the allegation and accusing the daughter's therapist of implanting in her false "memories" of abuse), and two experts (each supporting one of the two protagonists). We found that prior knowledge of the debate across countries was linked to beliefs in specific attributes of recovered memories and to a subset of the credibility assessments of statements made by the protagonists and their experts. For individuals, however, credibility assessments were unrelated to knowledge of the debate, but they were related to beliefs about memory recovery. Finally, credibility of the protagonists' statements was differentially associated with those made by the daughter's and the father's experts. The results suggest that whereas familiarity with the debate does not affect the credibility of the statements made by the complainant and the accused, expert testimony does, as has been found in prior research. The psycholegal implications of this conclusion are discussed.     

Dangerous patients and duties to warn: a European human rights perspective

The recent case of David Bradley, who shot and killed four members of his family after telling his doctor he 'wanted to kill someone', has raised the question of whether a healthcare professional could ever be held liable for failing to take steps to constrain a potentially dangerous patient. Until recently, it was considered that the United Kingdom courts would be reluctant to impose a duty to protect third parties. However, the European Court of Human Rights' decision in Osman v UK--while not directly concerning healthcare professionals--has opened the door for just such a duty. When this duty will arise, and how it can be discharged, remain challenging questions. Furthermore, healthcare professionals face the unenviable task of balancing competing duties, in which the rights--and safety--of their patients must also be borne in mind.     

Determinants of public confidence in police: An international perspective

Previous studies concerning public confidence in the police had primarily focused on demographic, attitudinal, and contextual factors in the United States. Little research, however, has used country-level variables to explain variations that exist across countries. As a result, this study examined the impact of country-level predictors (e.g., homicide rate and level of democracy) as well as individual-level predictors on public confidence in the police by utilizing data sets collected from three international surveys. Using hierarchical generalized linear modeling (HGLM) for the multinomial dependent variable, this study found a significant and negative relationship between homicide rate and public confidence in the police. People living in a country with a higher homicide rate reported lower levels of confidence in the police. Level of democracy was also found to be positively related to public confidence in the police. Of the individual-level variables, age and education were found to be significant predictors. A positive relationship was also found between political conservatism or personal satisfaction and confidence in the police. In line with attitudinal and contextual predictors, individuals with higher levels of acceptance toward deviant subcultures reported lower levels of confidence in the police. On the other hand, those who were more satisfied with their country's democratic development showed more favorable attitudes toward the police. The findings of this study implied that police organizations should put greater efforts toward the reduction of crime while protecting democratic values within a society.     

Advance directives and the persistent vegetative state in Victoria: a human rights perspective

With advances in medical technology, it is now possible to sustain the life of a person in a persistent vegetative state (PVS) until a decision is made to withhold or withdraw life-sustaining treatment. Who makes that decision? Under the Medical Treatment Act 1988 (Vic) there is no legally enforceable right for a person to choose, in advance, what intervention that person will and will not accept if he or she ends up in a PVS. The best that can be achieved is that a person can appoint an agent who is empowered to refuse medical treatment on the person's behalf in the event of incompetence. It is suggested that this mechanism ignores two fundamental human rights: self-determination and the inherent right to dignity. This article proposes the development of an advance directive mechanism that provides for a person to refuse, in advance, specified intervention, thereby respecting fundamental human rights and alleviating the existing need for an agent to second-guess a person's desires and best interests.