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Anti-discrimination cases decided by the Court of Justice of the EU in 2023 2023 年欧盟法院裁决的反歧视案件
IF 0.7 Q2 LAW Pub Date : 2024-09-14 DOI: 10.1177/20319525241274670
Adrijana Martinović
This case law update summarises the cases decided by the Court of Justice of the EU in 2023 in the field of EU anti-discrimination law.
本判例法更新概述了欧盟法院 2023 年在欧盟反歧视法领域做出裁决的案例。
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引用次数: 0
Beyond profit: A model framework for ethical and feasible private prison labour 超越利润:道德和可行的私营监狱劳动示范框架
IF 0.7 Q2 LAW Pub Date : 2024-09-10 DOI: 10.1177/20319525241266199
Mario Guido
In response to increased interest from states and companies as well as momentum on the issue of private prison labour in the past few decades, this article offers a comprehensive model framework aimed at reconciling profit-driven objectives with prisoner rehabilitation. The article addresses the debate surrounding prison labour for private for-profit entities and proposes a model that attempts to remedy some of the issues and criticisms that arise from the practice. Drawing on the Forced Labour Convention, 1930 (No. 29) of the International Labour Organisation, the framework integrates certain provisions from the standard, emphasising public supervision, consent and labour guarantees. Equally, it tries to address concerns of unfair competition and job displacement while promoting ‘meaningful' work and encouraging post-release employment of prisoners. Recognising the need for some practical feasibility and in a bid to shift the incentives for private entities to employ prisoners, from ‘cheap’ labour to fairer work practices, the model argues that other benefits such as tax breaks or subsidies may help align private and rehabilitative goals. As governments have turned to the private sector to increase work opportunities for prisoners, this paper argues that a more equitable and rehabilitative approach should follow, representative of societal values.
过去几十年来,国家和公司对私营监狱劳动问题的兴趣日益浓厚,势头日盛,为应对这一问题,本文提出了一个全面的模式框架,旨在协调利润驱动目标与囚犯改造之间的关系。文章探讨了围绕私营营利实体监狱劳动的争论,并提出了一种模式,试图纠正这种做法所引发的一些问题和批评。该框架借鉴了国际劳工组织 1930 年《强迫劳动公约》(第 29 号),整合了标准中的某些规定,强调了公共监督、同意和劳动保障。同样,该框架在促进 "有意义 "的工作和鼓励囚犯刑满释放后就业的同时,还试图解决不公平竞争和工作替代的问题。由于认识到需要一定的实际可行性,并为了将私人实体雇用囚犯的动机从 "廉价 "劳动力转向更公平的工作实践,该模式认为税收减免或补贴等其他福利可能有助于协调私人目标和改造目标。随着政府转向私营部门以增加囚犯的工作机会,本文认为,应遵循代表社会价值观的更加公平和更生的方法。
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引用次数: 0
Minding the gap? Blind spots in the ILO's and the EU's perspective on anti-forced labour policy 弥补差距?国际劳工组织和欧盟在反强迫劳动政策方面的盲点
IF 0.7 Q2 LAW Pub Date : 2024-09-10 DOI: 10.1177/20319525241266543
Faina Milman-Sivan, Yair Sagy
This article critically examines the EU's recent proposal to ban products made with forced labour from its market, which adopts the ILO's definition of ‘forced labour’ as outlined in the Forced Labour Convention of 1930 (No. 29). The authors argue that the EU's endorsement of the ILO's approach is problematic due to two flawed assumptions: (1) the definition of ‘forced labour’ is universally accepted across the EU, and (2) it is well-suited to combat forced labour in contemporary supply chains. Through an analysis of ongoing debates between the ILO and its Member States, the article demonstrates a lack of consensus regarding the interpretation of the Convention, particularly in the context of hybrid public-private prison labour arrangements. Furthermore, introducing a new Hybrid Multi-Dimensional (HMD) model for analysing contemporary prison labour practices, the article reveals blind spots in the ILO's approach that may inadvertently allow the incorporation of prison labour into supply chains, contrary to the EU's objectives. The article argues that the EU's unequivocal endorsement of the ILO's definition disregards these fundamental issues and may hinder the effective implementation of its proposed ban. The authors suggest that the HMD model offers a more comprehensive framework for analysing the complex realities of modern prison labour and could provide a roadmap for resolving the ILO-States debate. The article concludes that the EU should reconsider its wholesale adoption of the ILO's approach in light of the HMD model's insights in order to fulfil the objectives of its proposed forced labour product ban.
本文对欧盟最近提出的禁止在其市场上销售强迫劳动产品的提案进行了批判性研究,该提案采用了国际劳工组织在 1930 年《强迫劳动公约》(第 29 号)中对 "强迫劳动 "所下的定义。作者认为,欧盟认可国际劳工组织的方法是有问题的,因为有两个错误的假设:(1)"强迫劳动 "的定义在欧盟是普遍接受的,(2)它非常适合打击当代供应链中的强迫劳动。通过分析国际劳工组织与其成员国之间正在进行的辩论,文章表明对《公约》的解释缺乏共识,尤其是在公私混合监狱劳动安排的背景下。此外,文章引入了一个新的混合多维(HMD)模型来分析当代监狱劳动实践,揭示了国际劳工组织方法中的盲点,这些盲点可能在无意中允许将监狱劳动纳入供应链,从而与欧盟的目标背道而驰。文章认为,欧盟对国际劳工组织定义的明确认可忽视了这些基本问题,可能会阻碍其拟议禁令的有效实施。作者认为,HMD 模型为分析现代监狱劳动的复杂现实提供了一个更全面的框架,可为解决国际劳工组织与各国之间的争论提供一个路线图。文章最后指出,欧盟应根据 HMD 模型的见解,重新考虑全盘采用国际劳工组织的方法,以实现其拟议的强迫劳动产品禁令的目标。
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引用次数: 0
The labour and social security rights of captive workers: Introduction 圈养工人的劳动和社会保障权利:导言
IF 0.7 Q2 LAW Pub Date : 2024-09-10 DOI: 10.1177/20319525241274663
Virginia Mantouvalou
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引用次数: 0
Intellectual property rights behind bars 身陷囹圄的知识产权
IF 0.7 Q2 LAW Pub Date : 2024-09-10 DOI: 10.1177/20319525241266195
Frantzeska Papadopoulou Skarp
This article investigates the conditions under which intellectual property rights are created in prison as well as the possibilities inmates are given to exercise these rights. The article adopts a predominantly Swedish perspective, while it also refers to illustrative examples of cases of creative works created behind bars in US prisons. The two penitentiary systems differ considerably, but there are some interesting conclusions to be drawn from the US experience and some unexpected similarities that may be noted in the way copyright protected works made in prison are treated. The article discusses, in its first part, the evolution of the penitentiary system in Sweden and the regulation of penal work and leisure times activities. The copyright system is briefly presented with a focus on the way copyright operates when the author is an inmate. Furthermore, the article provides illustrations of prison programmes that have resulted in the creation of copyright-protected works in the US, and how the US legal system has dealt with the question of copyright ownership of works created by inmates. Turning back to Sweden, the article reflects on the two writing programmes that have recently led to book publications authored by inmates, as well as on the fate of the ‘made in prison’ branded products. The article investigates yet another project, the Krimtech project that concerns other forms of inmate input to intellectual property, namely, the collection of data. The Foucauldian theory provides a theoretical umbrella under which the discrepancies between the copyright-law principle of equality of authors, and the actual practical implementation as well as the impact prison regulation has in this respect is discussed and analysed.
本文研究了在监狱中创造知识产权的条件以及囚犯行使这些权利的可能性。文章主要从瑞典的角度出发,同时也参考了美国监狱中狱中创作的创意作品案例。这两种监狱制度差别很大,但从美国的经验中可以得出一些有趣的结论,在对待监狱中受版权保护作品的方式上也有一些意想不到的相似之处。文章的第一部分讨论了瑞典监狱制度的演变以及监狱工作和业余活动的管理。文章简要介绍了版权制度,重点阐述了当作者是囚犯时版权的运作方式。此外,文章还举例说明了美国监狱计划导致创作受版权保护作品的情况,以及美国法律体系如何处理囚犯创作作品的版权所有权问题。回到瑞典,文章反思了最近导致囚犯创作的书籍出版的两个写作计划,以及 "监狱制造 "品牌产品的命运。文章还调查了另一个项目--Krimtech 项目,该项目涉及囚犯对知识产权的其他形式投入,即数据收集。福柯理论提供了一个理论框架,在此框架下讨论和分析了作者平等的版权法原则与实际执行之间的差异,以及监狱法规在这方面的影响。
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引用次数: 0
Work like any other but like no other: Labour rights for working prisoners in Sweden 与众不同的工作瑞典工作囚犯的劳动权利
IF 0.7 Q2 LAW Pub Date : 2024-09-10 DOI: 10.1177/20319525241266351
Petra Herzfeld Olsson
In Sweden there is no minimum wage legislation. Wages for 88% of workers are governed by collective agreement, and for the remainder, they are set by individual employment contracts. The lowest wage levels in collective agreements for adults were about SEK 19,000 in 2022, and the median wage was about SEK 34,200, which corresponds to SEK 119 and SEK 214 per hour, respectively. Wages not set by collective agreement or employment contract are supposed to be ‘reasonable’. A reasonable wage is a wage in line with the level laid down in the sectoral collective agreement. Incarcerated workers earn SEK 13 an hour in Sweden. They are not categorised as workers, however, and therefore are not covered by labour law or collective agreements. But the products of their work – goods and services – are either sold on the open market or used for the benefit of the Swedish Agency for Prisons and the Probation Service, as the services or goods do not have to be bought on the open market. Such low pay would be considered unreasonable for any other work. However, work has been a central aspect of serving time in Swedish prisons for a very long time. Over time, such work has been motivated and governed by different principles and aims, such as the work-first principle, meaning, i.e., that work is both a societal duty and a right, and the aim of disciplining the incarcerated workers for internal and external purposes (resocialisation). The rehabilitative aspect of work has been emphasised. Proposals to raise the pay level have been rejected as being too expensive and counteracting the rehabilitative function of serving time in prison. This article seeks to explain the perceived rationale behind this state of affairs and to bring a human rights perspective into the picture and reflect on its implications.
瑞典没有最低工资立法。88%工人的工资由集体协议规定,其余工人的工资由个人就业合同规定。2022 年,集体协议中成人最低工资水平约为 19 000 瑞典克朗,中位工资约为 34 200 瑞典克朗,分别相当于每小时 119 瑞典克朗和 214 瑞典克朗。集体协议或雇用合同中未规定的工资应该是 "合理 "的。合理工资是指符合部门集体协议规定水平的工资。在瑞典,被监禁工人的时薪为 13 瑞典克朗。不过,他们不属于工人范畴,因此不受劳动法或集体协议的保护。但他们的工作成果--货物和服务--要么在公开市场上出售,要么用于瑞典监狱管理局和缓刑犯监管局的利益,因为这些服务或货物无需在公开市场上购买。如此低的报酬对于任何其他工作来说都是不合理的。然而,长期以来,工作一直是瑞典监狱服刑的核心内容。随着时间的推移,这种工作一直受到不同原则和目标的激励和约束,例如工作第一原则,即工作既是一种社会义务,也是一种权利,以及出于内部和外部目的(重新社会化)对被监禁工人进行纪律约束的目标。工作的改造性得到了强调。提高薪资水平的建议因成本过高和抵消了在监狱服刑的改造功能而被否决。本文试图解释这种状况背后的合理性,并从人权角度对其影响进行反思。
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引用次数: 0
The right to fair pay and two paradigms of prison work 公平薪酬权和监狱工作的两种模式
IF 0.7 Q2 LAW Pub Date : 2024-09-10 DOI: 10.1177/20319525241263175
Hugh Collins
Is the low level of wages paid to prisoners for their work morally wrong and contrary to the human right to fair pay? This article contrasts two paradigms of prison work, one in which it is an ordinary market transaction to which normal employment rights should apply, with the rival and dominant paradigm that prisoners do not have contracts for the performance of work and sums paid to them are not pay or remuneration but rather a small incentive to perform work in a diligent way. The article also considers what would be required for prisoners’ pay to comply with the human right to fair pay, which has been viewed in three different ways – the right to be a member of a trade union for the purpose of collective bargaining, the right to a living wage that enables a life of dignity, and the right to equal pay with others who perform similar work.
支付给囚犯的低工资是否在道德上是错误的,是否违背了公平报酬的人权?本文对监狱工作的两种范式进行了对比,一种范式认为监狱工作是一种普通的市场交易,应适用正常的就业权利;另一种范式则是对立的、占主导地位的范式,即囚犯没有工作合同,支付给他们的款项不是工资或报酬,而是对他们勤勉工作的小小奖励。这篇文章还探讨了囚犯的薪酬应如何才能符合获得公平报酬的人权,这一权利有三种不同的观点--成为工会成员进行集体谈判的权利、获得能让他们过上有尊严生活的生活工资的权利,以及与其他从事类似工作的人获得同等报酬的权利。
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引用次数: 0
‘Voluntary’ prison labour in the Netherlands 荷兰监狱中的 "自愿 "劳动
IF 0.7 Q2 LAW Pub Date : 2024-09-10 DOI: 10.1177/20319525241260877
Hadassa Noorda
As of 2021, work in prisons in the Netherlands is voluntary, at least to some extent. In this article, I examine the protection of working prisoners’ labour rights after the shift to a voluntary work scheme for prisoners in the Netherlands. Work in Dutch prisons may be freely chosen to some extent, but the Dutch scheme for work in prison raises questions about offenders’ rehabilitation. Having work opportunities while in prison is said to contribute to the learning of skills, promote rehabilitation and societal reintegration and provide prisoners with income. However, prisoners in the Dutch prison perform their work for low pay and have limited meaningful options for the work they perform. This has a profound impact on their time in prison and on their reintegration into the labour market after having served their sentences. I argue that these issues demand an in-depth examination if prisoners’ rights are to be protected. I describe working prisoners’ labour rights in the Netherlands and address the normative question of the rights that working prisoners should have based on the principle that imprisonment itself is the punishment and that extensions of prison sentences in society are illegitimate. My proposal for considering the amendment of the approach to prison labour in the Netherlands aims to be useful for the analysis of prison labour in general.
截至 2021 年,荷兰监狱中的工作都是自愿的,至少在某种程度上是这样。在这篇文章中,我将探讨在荷兰囚犯工作计划转变为自愿工作计划后,如何保护工作囚犯的劳动权利。荷兰监狱中的工作在某种程度上可以自由选择,但荷兰监狱中的工作计划引发了罪犯改造方面的问题。据说,在狱中获得工作机会有助于学习技能、促进改造和重返社会,并为囚犯提供收入。然而,荷兰监狱中的囚犯所从事的工作报酬很低,他们对所从事工作的有意义选择也很有限。这对他们在狱中的生活以及刑满释放后重新融入劳动力市场产生了深远的影响。我认为,如果要保护囚犯的权利,就必须对这些问题进行深入研究。我描述了荷兰劳动囚犯的劳动权利,并根据监禁本身就是惩罚以及社会上延长刑期是非法的这一原则,探讨了劳动囚犯应享有的权利这一规范性问题。我关于考虑修正荷兰监狱劳动方法的建议旨在对监狱劳动的总体分析有所帮助。
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引用次数: 0
Prison labour as punishment 监狱劳动作为惩罚
IF 0.7 Q2 LAW Pub Date : 2024-09-10 DOI: 10.1177/20319525241270252
Rory Kelly
Mandatory prison labour is not classed as part of the offender's punishment. The sentence is the years to be served in prison and on licence in the community. I argue that there is reason for reclassifying or reforming the current regime of prison labour in England and Wales. The argument for reclassification draws analogy to the place of labour in community orders and suspended sentences. If there is reason to reclassify prison labour, consideration of proportionality would require significantly reduced time in prison. However, there are important difficulties with establishing what reduction should be offered and operationalising any such reduction in a fair way. If prison labour is instead to be reformed so as to be non-punitive, this may require an overhaul, giving the offender a choice of whether to work and wider labour protections. Prison labour is lost when classed as neither punishment nor as employment.
强制性监狱劳动不属于罪犯刑罚的一部分。刑罚是在监狱中服刑和在社区中服刑的年限。我认为,有理由对英格兰和威尔士现行的监狱劳动制度进行重新分类或改革。重新分类的论点类比了劳动在社区令和缓刑中的地位。如果有理由对监狱劳动进行重新分类,那么考虑到相称性,就需要大幅减少监狱服刑时间。然而,在确定应减少的时间以及以公平的方式实施减少的时间方面存在重大困难。如果要对监狱劳动进行改革,使其具有非惩罚性,可能需要进行彻底改革,让罪犯可以选择是否工作,并提供更广泛的劳动保护。当监狱劳动既不被归类为惩罚也不被归类为就业时,它就失去了意义。
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引用次数: 0
Resocialisation through prisoner remuneration: The unconstitutionally low remuneration of working prisoners in Germany 通过囚犯报酬实现再社会化:德国违宪的工作囚犯的低报酬
IF 0.7 Q2 LAW Pub Date : 2024-09-10 DOI: 10.1177/20319525241266386
Miriam Azinović
In Germany, prisoners are obliged to work during their imprisonment in most federal states. However, prisoners currently receive very little remuneration for this work. For two decades, this remuneration has stagnated at a low level or even decreased in some federal states. In a landmark ruling on 20 June 2023, Germany's highest court, the Bundesverfassungsgericht (BVerfG, Germany's Federal Constitutional Court), recognised that the remuneration in two federal states is unconstitutionally low. As a result, for the first time in 25 years, the remuneration of prisoners will now change and – hopefully – increase significantly.
在德国,大多数联邦州的囚犯在监禁期间都必须工作。然而,目前囚犯的劳动报酬非常低。二十年来,这种报酬一直停滞在较低水平,在一些联邦州甚至有所下降。2023 年 6 月 20 日,德国最高法院--联邦宪法法院(BVerfG)在一项具有里程碑意义的裁决中承认,两个联邦州的报酬过低,违反了宪法。因此,囚犯的报酬将在 25 年来首次发生变化,并有望大幅提高。
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引用次数: 0
期刊
European Labour Law Journal
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