Excessive Force on Assembly: Comparisons with European Human Rights Law and German Law
Date Issued
2016
Date
2016
Author(s)
Wu, Chia-Yu
Abstract
The excessively assembly expelling of the country, which has already become international crisis of human rights. This thesis research the positive obligations of the country in the freedom of peaceful assembly and the prohibition of torture while making comparison with European Human Rights Law and German Law. Finally, it reflects on the related articles and cases that the country made excessive force on assembly in Taiwan. Everyone has the freedom of peaceful assembly. If the assembly begin with violent intention, European Court on Human Rights indicate that the assembly is unpeaceful. The Court also indicate that whether the prior procedure is notification or authorization, which should avoid leading to the Chilling Effect. The country shouldn’t make excessive force on participants and give them punishment for pure participation. German fundamental law set “Unarmed” for strengthening the claim of “peace”. The Authorities need to prove the assembly is unpeaceful for dissolving. According to the German Federal Law on Assembly, if the assembly violates the prior notification, the Authorities still have to measure whether the situation is causing particular harm to public order or security. Although the restriction of emergency and spontaneous demonstration has been loosen in Taiwan after the Judicial Interpretation No. 718, I think the notification procedure is truly better for expression. This problem also relates on the prohibition of torture in European Convention on Human Rights. The Court extends the procedural obligations of country from this Article. The country should make thorough, expedient and independent investigation to the condition that torture or inhuman treatment happened in the country, and give the perpetrator adequate punishment. German criminal practice usually end the criminal proceeding with “stopping proceeding” of procedure which comes from “the cheaper principle”. It criticized that the crime is transacted by country, but it have to be used after clarifying the criminal fact. Private prosecution is the same. They correspond the procedural obligations from the Court. In the disputed case that expelled from Executive Yuan on Mar 24, 2014, the prosecutors who delayed investigation, violated such obligations. The court has the obligation of inquisitorial investigation, even in the private prosecution. The protection of Human rights should be more than a slogan.
Subjects
peaceful assembly
excessive force
prohibition of torture
stopping proceeding
investigative obligation of court
SDGs
Type
thesis
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