Search results for: criminal courts

Authors: Hamdan Arief Hanif, Rahmat Sidiq

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Indonesia is a country of law, the legal system adopted by Indonesia is a civil law system. A major feature of the civil law is the codified legislation. Meanwhile the majority of society Indonesia are Muslims, whilst Islamic law itself having the sources written in Qur'an, Sunnah and the opinion of Muslim scholars, generally not codified in book form of legislation that is easy on the set as a reference. in Indonesia, many scholars have different opinions in decisions so that there is no legal certainty in Muslim civil cases, so the need for legal codification, which, as the source of the judges in deciding a case, especially a case in religious courts. This paper raised the topic of discussion which offers a solution to the application of the codification of the Islamic Law which became the core resources in delivering a verdict against Islamic civil related issue; codification usually called a compilation of Islamic Law. Compilation of Islamic Law is highly recommended as a core reference for the judges in religious courts in Indonesia. This compilation which includes a collection of large number of opinions scholars (book of fiqh) that existed previously and are ripened in deduce in order to unify the existing differences. This paper also discusses how the early formation of the compilation and as the right solution in order to create legal certainty and justice especially for the muslim community in Indonesia.

Keywords: Islamic law, compilation, law applied core, religious court

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Authors: Matteo Manera, Mariateresa Torchia, Gregory Moscato

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Forensic accounting is a hot subject of research in accounting. Valuation remains one of the major topics for practitioners. Valuation standards are a powerful instrument that can contribute to a fair process: their use aims at reducing subjectivity and arbitrary decisions in courts. In most jurisdictions, valuation standards are not the law: forensic accountants are not obliged to use valuation standards when they perform valuation works for judges. To date, as far as we know, no literature work has investigated adoption and diffusion of valuation standards in the forensic accounting space. In this paper, we analyze the spread of valuation standards through the lenses of isomorphism and -as corollaries- of Agency Theory and Signaling Theory. Because of lack of research in the particular area of valuation standards adoption, the present work relies on qualitative, exploratory research, based on semi-structured interviews conducted (up to saturation) with expert forensic accountants. Our work digs into motivations behind adoption and diffusion, as well into perceptions of forensic accountants around benefits of valuation standards and into barriers to their diffusion: the result is that, while the vast majority of forensic accountants praise the great work of the standards setters in introducing valuation standards, it might be that less than 50% of forensic accountants actually use valuation standards, in courts. Our preliminary findings, to be supported or refuted by future research, lead us to address a “trilogy” of recommendations to the stakeholders involved in the process of adoption and diffusion of valuation standards in courts.

Keywords: forensic accounting, valuation standards, adoption of standards, motivations, benefits, barriers, Isomorphism

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Authors: Dini Dewi Heniarti

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Military Court which is a judicial institution within the military institution has a heavy duty. Military court has to ensuring a fair legal process for military personnel (due process of law) and enforces military discipline. Military justice must also ensure protects the rights of military personnel. In Indonesia tren of military court changes in vision. The debate is happened on the jurisdiction of military court that allegedly has the potential existence of impunity. The Decree of People’s Consultative Assembly Number VII/MPR/2000 which states that the army general who committed the crime should not be tried in military court is one that underlies the proposed amendment limits the jurisdiction of military court. For the identify of the background in a specific format that is limited to juridical review. The goals this research is to gain knowledge, deep understanding and the concept of jurisdiction of military courts for military members who committed general crimes in adjudication procedure from the perspective of legal reform as alternative to establish independency of military judiciary. This research using Rule of Law as Grand Theory, Development Legal Theory as a Middle Theory and Criminal Justice System and concept of jurisdiction as supporting as Applied Theory. This study using a normative juridical approach, and equipped by primary data juridical approach of historical and comparative approach. The author uses descriptive analytical specifications. The main data used in this research is secondary data, which includes primary legal materials, secondary legal material and legal materials tertiary. Analysis primary data and qualitative data is done legally. Technique checking the validity of the data in this study used multiple methods with the research triangulation. This paper will demonstrate the problems concerning the jurisdiction of military courts for military personnel who committed general crimes in perspective of military justice reform Indonesia and adjudication procedures for military member who committed general crimes in the military justice system in Indonesia, as alternative to establish independency of judiciary in military justice in Indonesia. Comparative approached the military justice system from another countries is aimed to development military justice in Indonesia.

Keywords: jurisdiction, military courts, military justice, independency of judiciary

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Authors: Mahlogonolo Stephina Thobane

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The aim of the study upon which this article is based was “to evaluate the possibility of using criminal career research in the development and evaluation of crime control strategies, particularly for armed robberies.” The research employed a concurrent triangulation mixed-method approach where quantitative and qualitative data were collected concurrently but analysed separately through the use of SPSS and Atlas.ti respectively. Forty offenders incarcerated at six correctional centres around the Gauteng province of South Africa for robbery with aggravating circumstances were interviewed as research participants. Since the researcher had no prior information on the total number of the population, purposive sampling (i.e. snowballing) was executed to draw the sample. This research found that offenders launched their criminal career at a very young age of, 11 years, by committing petty crimes such as theft and then, as they grew older, they progressed to more serious and violent crimes such as vehicle hijacking and Cash-in-Transit (CIT) robberies. Thus, it is pivotal that those responsible for developing crime prevention policies focus on interrupting the root causes of crime in the early stages of one’s life in order to prevent continuation of delinquent behaviour from childhood to adolescence and adulthood.

Keywords: criminal career, robbery with aggravating circumstances, cash-in-transit robbery, criminal career research

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Authors: Ana M. Prieto del Pino

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As is well known, UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) was a landmark regarding the seizure of proceeds of crime. Depriving criminals of the profits from their activity became a priority at an international level in the fight against organised crime. Enabling confiscation of proceeds of illicit traffic in narcotic drugs and psychotropic substances, criminalising money laundering and confiscating the proceeds thereof are the three measures taken in order to achieve that purpose. The beginning of 21st century brought the declaration of war on corruption and on the illicit enjoyment of the profits thereof onto the international scene. According to the UN Convention against Transnational Organised Crime (2000), States Parties should adopt the necessary measures to enable the confiscation of proceeds of crime derived from offences (or property of equivalent value) and property, equipment and other instrumentalities used in offences covered by that Convention. The UN Convention against Corruption (2003) states asset recovery explicitly as a fundamental principle and sets forth measures aiming at the direct recovery of property through international cooperation in confiscation. Furthermore, European legislation has made many significant strides forward in less than twenty years concerning money laundering, confiscation, and asset recovery. Crime does not pay, let there be no doubt about it. Nevertheless, we must be very careful not to sing out of tune with individual rights and legal guarantees. On the one hand, innocent individuals and businesses must be protected, since they should not pay for the guilty ones’ faults. On the other hand, the rule of law must be preserved and not be tossed aside regarding those who have carried out criminal activities. An in-depth analysis of judicial decisions on money laundering and confiscation of proceeds of crime issued by European national courts and by the European Court of Human Rights in the last decade has been carried out from a human rights, legal guarantees and criminal law basic principles’ perspective. The undertaken study has revealed the violation of the right to property, of the proportionality principle legal and the infringement of basic principles of states’ domestic substantive and procedural criminal law systems. The most relevant ones have to do with the punishment of money laundering committed through negligence, non-conviction based confiscation and a too-far reaching interpretation of the notion of ‘proceeds of crime’. Almost everything in life has a bright and a dark side. Confiscation of criminal proceeds and asset recovery are not an exception to this rule.

Keywords: confiscation, human rights, money laundering, organized crime

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Authors: David Abrahams

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In October 2016 South Africa deposited its ‘instrument of withdrawal’ from the Rome Statute of the International Criminal Court, with the Secretary-General of the United Nations. The Rome Statute is the founding document of the treaty-based International Criminal Court (ICC). The ICC has jurisdiction to hear cases where crimes against humanity, war crimes and genocide have been committed, on the basis of individual criminal responsibility. It is therefore not surprising that one of the ICCs mandates is to ensure that the sufferings, due to gross human rights violations towards the civilian population is, in principle, brought to an end by punishing those individuals responsible, thus providing justice to the victims. The ICC is unable to effectively fulfill its mandate and thus depends, in part on the willingness of states to assist the Court in its functions. This requires states to ratify the Statute and to domesticate its provisions, depending on whether it is a monist or dualist state. South Africa ratified the Statute in November 2000, and domesticated the Statute in 2002 by virtue of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002. South Africa thus remains under an obligation to cooperate with the ICC until the final date of withdrawal, which is October 2017. An AU Summit was hosted by South Africa during June 2015. Omar Al-Bashir, whom the prosecutor of the ICC has indicted on two separate occasions, was invited to the summit. South Africa made an agreement with the AU that it will honour its obligations in terms of its Diplomatic and Immunities Privileges Act of 2001, by granting immunity to all heads of state, including that of Sudan. This decision by South Africa has raised a plethora of questions regarding the status and hierarchy of international laws versus regional laws versus domestic laws. In particular, this paper explores whether a state’s international law treaty obligations may be suspended in favour of, firstly, regional peace (thus safeguarding the security of the civilian population against further atrocities and other gross violations of human rights), and secondly, head of state immunity. This paper also reflects on the effectiveness of the trias politca in South Africa in relation the manner in which South African courts have confirmed South Africa’s failure in fulfilling its obligations in terms of the Rome Statute. A secondary question which will also be explored, is whether the Rome Statute is currently an effective tool in dealing with gross violations of human rights, particularly in a regional African context, given the desire by a number of African states currently party to the Statute, to engage in a mass exodus from the Statute. Finally, the paper concludes with a proposal that there can be no justice for victims of gross human rights violations unless states are serious in playing an instrumental role in bringing an end to impunity in Africa, and that withdrawing from the ICC without an alternative, effective system in place, will simply perpetuate impunity.

Keywords: African Union, diplomatic immunity, impunity, international criminal court, South Africa

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Authors: Huang Gui

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There can be little doubt that our world is inexorably moving towards being execution-free. However, China is still on the way until now, in other words, China is still a retentionist state in the term of capital punishment but it is developing domestic criminal law toward that goal (eventual abolition of the capital punishment). The alternative sanction to capital punishment, which would be imposed on a criminal who should have been sentenced to death by law, is a substitute for execution and it should be provided with the basis of the present criminal punishment structure and with the premise of abolishing capital punishment or limiting its use. The aim of this paper, therefore, is to explore a substitute for capital punishment in China. For the criminal sanction system in China, the death penalty with suspension, naturally, is an execution, so it wouldn’t be the substitute; life sentences without parole is out of the tune with punishment policy that promoting correction and rehabilitation; life-imprisonment, which is one of the most severe punishment measure in the sanction system, should be a suitable substitute for executing but it needs to be improved, including the term of imprisonment, the commutation and parole conditions.

Keywords: alternative sanctions, capital punishment, life imprisonment, life imprisonment without parole, China

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Authors: Marcus Smith

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DNA profiling has made a valuable contribution to criminal investigations over the past thirty years. Direct matching DNA profiles from a crime scene and suspect, or between a suspect and a database remain of great importance to crimes such as murder, assault, and property theft. As scientific and technological advancement continues, a wide range of new DNA profiling applications has been developed. The application of new techniques involves an interesting balancing act between admitting probative evidence in a criminal trial, evaluating its degree of relevance and validity, and limiting its prejudicial impact. The impact of new DNA profiling applications that have significant implications for law enforcement and the legal system can be evaluated through a review of relevant case law, legislation and the latest empirical evidence from jurisdictions around the world including the United States, United Kingdom, and Australia. There are benefits in further examining the implications of these new developments, including how the criminal law can best be adapted to ensure that new technology is used to enhance criminal investigation and prosecution while ensuring it is applied in a measured way that respects individual rights and maintains principles of fairness enshrined in the legal system.

Keywords: criminal procedure, forensic evidence, DNA profiling, familial searching, phenotyping

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Authors: Olivia Rybak-Karkosz

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Art forgery is a serious problem present in the art market in every country despite its scale and experience. In the Polish art market, this problem has existed since its beginnings. The market expansion in recent years attracted new buyers, which led to growing prices of polish art. And that attracted deceitful sellers who supply the market with forgeries. Moreover, there are many new types of buyers, many of whom are art non-specialists. But even the most experienced collectors must be cautious when purchasing a piece of art. In this paper, the author would like to discuss legal acts in Polish law that criminalize the forgery of a piece of art and compare them with similar regulations from four European countries - the Italian Republic, Kingdom of the Netherlands, French Republic, and the Federal Republic of Germany. The author wants to verify if any solutions could inspire Polish legislators to implement them in domestic law to help reduce this crime and improve the criminal procedure of art forgery. The paper contains a concluding statement to implement a similar solution used in one of the presented countries.

Keywords: art forgery, comparative law, criminal law, criminal liability, protection of works of art

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Authors: Jelena Radmanovic

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On 5 March 2020, the International Criminal Court has decided to authorize the investigation into the crimes allegedly committed on the territory of Afghanistan after 1 May 2003. The said determination has raised several controversies, including the recently imposed sanctions by the United States, furthering the United States' long-standing rejection of the authority of the International Criminal Court. The purpose of this research is to address the said investigation in light of its importance for the prevention of impunity in the cases where the perpetrators are nationals of Non-Party States to the Rome Statute. Difficulties that the International Criminal Court has been facing, concerning the establishment of its jurisdiction in those instances where an involved state is not a Party to the Rome Statute, have become the most significant stumbling block undermining the importance, integrity, and influence of the Court. The Situation in Afghanistan raises even further concern, bearing in mind that the Prosecutor’s Request for authorization of an investigation pursuant to article 15 from 20 November 2017 has initially been rejected with the ‘interests of justice’ as an applied rationale. The first method used for the present research is the description of the actual events regarding the aforementioned decisions and the following reactions in the international community, while with the second method – the method of conceptual analysis, the research will address the decisions pertaining to the International Criminal Court’s jurisdiction and will attempt to address the mentioned Decision of 5 March 2020 as an example of good practice and a precedent that should be followed in all similar situations. The research will attempt parsing the reasons used by the International Criminal Court, giving rather greater attention to the latter decision that has authorized the investigation and the points raised by the officials of the United States. It is a find of this research that the International Criminal Court, together with other similar judicial instances (Nuremberg and Tokyo Tribunals, The International Criminal Tribunal for the former Yugoslavia, The International Criminal Tribunal for Rwanda), has presented the world with the possibility of non-impunity, attempting to prosecute those responsible for the gravest of crimes known to the humanity and has shown that such persons should not enjoy the benefits of their immunities, with its focus primarily on the victims of such crimes. Whilst it is an issue that will most certainly be addressed further in the future, with the situations that will be brought before the International Criminal Court, the present research will make an attempt at pointing to the significance of the situation in Afghanistan, the International Criminal Court as such and the international criminal justice as a whole, for the purpose of putting an end to impunity.

Keywords: Afghanistan, impunity, international criminal court, sanctions, United States

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Authors: Majed Aldusaimani

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Introduction: The researcher aims to verify the extent of the criminal investigator's commitment to the Islamic morals set out in the Holy Quran, their application in his work, and to understand the point of view of police officers, clerks and suspects regarding the investigator's commitment to moral and ethics in practice. Research question: Are the criminal investigators at the Bureau of Investigation and Public Prosecution in the Kingdom of Saudi Arabia committed to the application of the practical morals set out in the Holy Quran in the view of the police officers, clerks and suspects with whom they work? Objectives of the study: 1. Identifying the standing of morality in Islam. 2. Identifying the practical morals outlined in the Holy Quran. 3. Identifying the most important practical morals in the Holy Quran that must be met by the criminal investigator from the viewpoint of the investigator himself. 4. Identifying the criminal investigator's commitment to the practical morals set out in the Holy Quran as perceived from the perspectives of police officers, clerks and suspects. Methodology: This study will use a descriptive methodology through quantitative and qualitative analysis of the data from respondents, who will be asked to answer questions about the extent of the commitment to the practical morals set out in the Holy Quran of the criminal investigators at the Bureau of Investigation and Public Prosecution that they have encountered.

Keywords: Islamic, investigator, Morals, Quran

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Authors: Nahid Ferdousi

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Juvenile justice is a key component of the child rights to keep the best interest and completely different from criminal justice. After independence of Bangladesh in 1971, the Children Act 1974 and the Children Rules 1976 were considered as the basic law for juvenile justice which written before many international instruments on children’s rights came into existence, did not align with the international mandate set by those instruments. These Acts were not really child rights-based and modern concept such as diversion, restorative justice and community-based rehabilitation has not developed accordingly. In this backdrop, government has enacted the new Children Act 2013 and introduced extensive reforms to the juvenile justice system in Bangladesh. The Act has been adopted with the provisions for child-friendly juvenile courts in each district and different kinds of child-oriented practices in a number of settings, such as, child affairs police officer, probation officer, national child welfare board, diversion, alternative preventive measures on the basis of international principles. Prior to the Act, there had been a number of High Court rulings which considered the international standards for juvenile justice. But the recent reforms to juvenile justice system hail a new commitment to the country’s international obligations to its children and a change in the philosophy guiding the treatment of offender children. This is high time to create an effective juvenile justice system for the 21st century in Bangladesh by the proper implementation of the Children Act 2013. Additionally, the new Children Rules should be enacted and juvenile courts along with correctional institutions should be established in each district in Bangladesh. This study assesses the juvenile justice reforms in Bangladesh over the five decades (1974-2014) and focuses on changes that will improve the system as a whole and enable us to better achieve the ends of fair juvenile justice.

Keywords: Juvenile justice reforms, international obligations, child-oriented practices, commitment of the state

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Authors: John Kong Shan Ho

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In June 2022, the Law Commission of England and Wales published an options paper to examine how the law on corporate criminal liability can be reformed under the English system. The paper merely details options for reform and does not seek to make recommendations. However, the paper has ruled out the “respondeat superior” approach of the US and “corporate culture” approach of Australia as reform options. On balance, the preferred reform option of the Law Commission is the “senior officer” approach as currently adopted in Canada. This article is written against such background and argues that due to similarities between the English and Canadian systems, the latter’s approach is more ideal to be adopted by the former as a model for reform in this area.

Keywords: corporate criminal liability, identification principle, directing mind and will, England, Canada

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Authors: Dianne Williams

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This study examined the peer/individual domain of the Risk Factor Prevention Paradigm (RFPP) to assess the risk and protective factors that impact criminal gang involvement among at-risk males residing in a juvenile home in Trinidad and Tobago. The RFPP allows for the identification of both risk and protective factors in a single, holistic framework to identify the relationship between risk factors, protective factors, and criminal gang involvement among at-risk male adolescents. Findings showed that having anti-social peers was the most significant risk factor associated with criminal gang involvement, while the most significant protective factor was having a positive social attitude. Moreover, while 65% of the boys reported never having been in a gang, 70% reported having hit, struck or used a weapon against someone, while 52% reported being involved in other violent incidents on more than two occasions. This suggests that while involvement with criminal gangs may not be common among this population, predisposing behavioral patterns are present. Results are expected to assist in the development of targeted strategies to reduce the attractiveness of gang membership.

Keywords: risk factor prevention paradigm, risk factors, protective factors, peer/individual domain, gang involvement, at-risk youth, trinidad and tobago, juvenile home

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Authors: Haley Hrymak

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For decades drug addiction has been understood to be a health problem and not a social problem. While research has advanced to allow for a more comprehensive understanding of the factors affecting addiction, the justice system has lagged behind. Given all that is known about addiction as a health issue and the need for effective rehabilitation to prevent further involvement with crime, there is a need for a dramatic shift in order to ensure individual's human right to health is being upheld within the Canadian criminal justice system. This research employs the qualitative methodology to interview advocates who work with substance users within the Greater Vancouver area to explore best practices for representing individuals with substance abuse issues within the Canadian justice system. The research shows that treatment, not punishment, is what is needed in order for recidivism to be reduced for individuals with substance abuse issues. The creative options that advocates employ to work within the current system are intended to provide a guide for lawyers working within the current criminal justice system.

Keywords: addiction, criminal law, right to health, rehabilitation

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Authors: Laid Fekih

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Background: It is difficult to detect lying, deception, and misrepresentation just by looking at verbal or non-verbal expression during the criminal investigation process, as there is a common belief that it is possible to tell whether a person is lying or telling the truth just by looking at the way they act or behave. The process of detecting lies and deception during the criminal investigation process needs more studies and research to overcome the difficulties facing the investigators. Method: The present study aimed to identify the effectiveness of cognitive methods and techniques in detecting deception during the criminal investigation. It adopted the quasi-experimental method and covered a sample of (20) defendants distributed randomly into two homogeneous groups, an experimental group of (10) defendants be subject to criminal investigation by applying cognitive techniques to detect deception and a second experimental group of (10) defendants be subject to the direct investigation method. The tool that used is a guided interview based on models of investigative questions according to the cognitive deception detection approach, which consists of three techniques of Vrij: imposing the cognitive burden, encouragement to provide more information, and ask unexpected questions, and the Direct Investigation Method. Results: Results revealed a significant difference between the two groups in term of lie detection accuracy in favour of defendants be subject to criminal investigation by applying cognitive techniques, the cognitive deception detection approach produced superior total accuracy rates both with human observers and through an analysis of objective criteria. The cognitive deception detection approach produced superior accuracy results in truth detection: 71%, deception detection: 70% compared to a direct investigation method truth detection: 52%; deception detection: 49%. Conclusion: The study recommended if practitioners use a cognitive deception detection technique, they will correctly classify more individuals than when they use a direct investigation method.

Keywords: the cognitive lie detection approach, deception, criminal investigation, mental health

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Authors: Osalina Toemapa, Rika Susanti, Husna Yetti

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In criminal offense case, such as homicide, investigators may request for an autopsy to the victim without family approval in Indonesia. Generally, there has been decreasing in autopsy rate in the world over past years. Family’s refusal is one of the most common problems. The purpose of this study is to find the correlation between knowledge level and public perception of autopsy on criminal offense victim. This cross-sectional study was done from April to May 2017 in subdistrict Pulau Punjung. Participants were asked to fill the questionnaire. There are 15 questions to asses knowledge level, perception, and factors influencing autopsy refusal. The chi-square test was used for the statistical analysis. Out of the total of 436 respondents, 54,5% were found to have poor knowledge level, and 56,7% were found to have poor perception. There was a significant correlation between knowledge level and public perception (p<0,001). There are 153 respondents who decline autopsy on criminal offense victim with the most factors influencing autopsy refusal is delays in victim’s funeral (92,2%). Conclusion, knowledge level is correlated with public perception in subdistrict of Pulau Punjung, district of Dharmasraya, West Sumatra, Indonesia. Most influencing factor in autopsy refusal is delays in victim’s funeral.

Keywords: knowledge level, public perception, autopsy on criminal offense victim, autopsy refusal

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Authors: Samuel Holder

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Mass incarceration in the United States is a human rights issue, not merely a civil rights problem. It is a human rights problem not only because the United States has a high rate of incarceration, but more importantly because of who is jailed, for what purpose they are jailed and, ultimately, the manner in which they are jailed. To sustain the scale of the criminal justice system, one of the darker policies involves a multi-tiered strategy of fee- and fine-collection, targeting, usually, the most vulnerable and poor, many of whom run into the law via small offenses that do not rise to the level of felonies. This paper advances the notion that this debt collection-to-incarceration pipeline is tantamount to a modern-day debtors’ prison system. This article seeks to confront the thorny issue of incarceration via criminal justice debt from a human rights and cause-lawyering position. It will argue that a two-pronged cause-lawyering strategy: the first focused on traditional litigation along constitutional grounds, and the second, an advocacy approach rooted in grassroots campaigns, designed to shift the normative operation and understanding of the rights of marginalized and racialized offenders. Ultimately, the argument suggests that this approach will be effective in combatting the (often highly privatized) criminal justice debt system and bring the roles of 'incapacitation, rehabilitation, deterrence, and retribution' back into the criminal justice legal conversation. Part I contextualizes and historicizes the role of fees, penalties, and fines in American criminal justice. Part II examines the emergence of private industry in the criminal justice system, and its role in the acceleration of profit-driven criminal justice debt collection and incarceration. Part III addresses the failures of the federal and state law and legislation in combatting predatory incarceration and debt collection in the criminal justice system, particularly as waged against the indigent and/or ethnically or racially marginalized. Part IV examines the potential for traditional cause-lawyering litigation along constitutional grounds, using case studies across contexts for illustration. Finally, Part V will review the radical cause-lawyer’s role in the normative struggle in redefining prisoners’ rights and the rights of the marginalized (and racialized) as they intersect at the crossroads of criminal justice debt. This paper will conclude with recommendations for litigation and advocacy, drawing on hypotheses advanced, and informed by case studies from a variety of both national and international jurisdictions.

Keywords: cause-lawyering, criminal justice debt, human rights, judicial fees

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Authors: Benjamin Newman

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The picture of an adverse contest between two parties has often been used as an archetypal description of the Anglo-American adversarial criminal trial. However, in actuality, guilty pleas and plea-bargains have been dominating the procedure for over the last half-a-century. Characterised by two adverse parties, the court adjudicative system in the Anglo-American world adhere to the adversarial procedure, and while further features have been attributed and the values that are embedded within the procedure vary, it is a system that we have no adequate theory. Damaska had argued that the adversarial conflict-resolution mode of administration of justice stems from a liberal laissez-faire concept of a value neutral liberal state. Having said that, the court’s neutrality has been additionally rationalised in light of its liberal end as a safeguard from the state’s coercive force. Both conceptions of the court’s neutrality conflict in cases where the by-standing role disposes of its liberal duty in safeguarding the individual. Such is noticeable in plea bargains, where the defendant has the liberty to plead guilty, despite concerns over wrongful convictions and deprivation of liberty. It is an inner liberal tension within the notion of criminal adversarialism, between the laissez-faire mode which grants autonomy to the parties and the safeguarding liberal end of the trial. Langbein had asserted that the adversarial system is a criminal procedure for which we have no adequate theory, and it is by reference to political and moral theories that the research aims to articulate a normative account. The paper contemplates on the above liberal-tension, and by reference to Duff’s ‘calling-to-account’ theory, argues that autonomy is of inherent value to the criminal process, being considered a constitutive element in the process of being called to account. While the aspiration is that the defendant’s guilty plea should be genuine, the guilty-plea decision must be voluntary if it is to be considered a performative act of accountability. Thus, by valuing procedural autonomy as a necessary element within the criminal adjudicative process, it assimilates a liberal procedure, whilst maintaining the liberal end by holding the defendant to account.

Keywords: liberal theory, adversarial criminal procedure, criminal law theory, liberal perfectionism, political liberalism

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Authors: Aslihan Coban

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As a result of the rapid development of information communication technology, especially the internet, consumers have become an active party in commerce and in law. Consequently, the protection of consumers in cross-border contracts has become increasingly important. This paper is confined to the international jurisdiction of courts over disputes arising from electronic consumer contracts according to the ‘5718 Turkish Act on Private International Law and Civil Procedure’ and the ‘1215/2012 Council Regulation On Jurisdiction and The Recognition and Enforcement Of Judgments In Civil and Commercial Matters’ (Hereafter ‘Brussels I Regulation’). The international jurisdiction of courts for consumer contracts is recognized under both acts above-mentioned; however, there exist some differences between the said legal regulations. Firstly, while there is a specific provision for electronic consumer contracts in Brussels I Regulation, there is no specific provision in the Turkish Act. Secondly, under the Turkish Act, habitual residence, domicile, and workplace of the other party who is not a consumer are all accepted as jurisdiction elements; while domicile is the only jurisdiction element in Brussels I Regulation. Thirdly, the ability to make jurisdiction agreements in disputes arising from electronic consumer contracts is a controversial issue under the Turkish Act while it is explicitly regulated under Brussels I Regulation that such jurisdiction agreements can be concluded by complying with certain conditions.

Keywords: Brussels I Regulation, electronic consumer contracts, jurisdiction, jurisdiction agreement

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Authors: Roslina Che Soh

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Best interest of the child has been the prevailing principle of the custody legislations of most nations in the world. The tremendous shift from parental rights to parental responsibilities throughout the centuries had made the principle of best interests of the child as the utmost matter which parents must uphold in child upbringing. Despite the commitment to this principle is significantly enshrined in the United Nation Convention on Rights of the Child, the content and application of the principle differs across borders. Differences persist notwithstanding many countries have experienced a substantial shift over the last several decades in the types of custodial arrangements that are thought to best serve children’s interests. The laws in Malaysia similarly uphold this principle but do not provide further deliberation on the principle itself. The principle is entirely developed by the courts through decided cases. Thus, this paper seeks to discuss the extent of the application of best interest of the child principle in custody disputes. In doing so, it attempts to provide an overview of the current laws and the approach of the Civil and the Shariah courts in Malaysia in applying the principle in determining custody disputes. For purposes of comparison, it briefly examines the legislations and the courts practices in Australia and England on this matter. The purpose is to determine the best standard to be adopted by Malaysia and to propose improvement to the laws whenever appropriate.

Keywords: child custody, best interest, Malaysian law, bioinformatics, biomedicine

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Authors: Zsuzsa Szakaly

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Several constitutions have explicit or implicit eternity clauses in the European Union, their classic roles were analyzed so far, albeit there are new possibilities emerging in relation to the identity of the constitutions of the Member States. The aim of the study is to look at the practice of the Constitutional Courts of the Member States in detail regarding eternity clauses where limiting constitutional amendment has practical bearing, and to examine the influence of such practice on Europeanization. There are some states that apply explicit eternity clauses embedded in the text of the constitution, e.g., Italy, Germany, and Romania. In other states, the Constitutional Court 'unearthed' the implicit eternity clauses from the text of the basic law, e.g., Slovakia and Croatia. By using comparative analysis to examine the explicit or implicit clauses of the concerned constitutions, taking into consideration the new trends of the judicial opinions of the Member States and the fresh scientific studies, the main questions are: How to wield the double-edged sword of eternity clauses? To support European Integration or to support the sovereignty of the Member State? To help Europeanization or to act against it? Eternity clauses can easily find themselves between a rock and a hard place, the law of the European Union and the law of a Member State, with more possible interpretations. As more and more Constitutional Courts started to declare elements of their Member States’ constitutional identities, these began to interfere with the eternity clauses. Will this trend eventually work against Europeanization? As a result of the research, it can be stated that a lowest common denominator exists in the practice of European Constitutional Courts regarding eternity clauses. The chance of a European model and the possibility of this model influencing the status quo between the European Union and the Member States will be examined by looking at the answers these courts have found so far.

Keywords: constitutional court, constitutional identity, eternity clause, European Integration

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Authors: Irina Belozerova

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In the recent years, the number of crimes against peace and humanity has constantly been increasing. The development of the international community is inseparably connected to the compliance with the law which protects the rights and interests of citizens in all of their manifestations. The provisions of the law of criminal procedure are no exception. The rights of the victims of genocide, of the war crimes and the crimes against humanity, require particular attention. These crimes fall within the jurisdiction of the International Criminal Court governed by the Rome Statute of the International Criminal Court. These crimes have the following features. First, any such crime has a mass character and therefore requires specific regulation in the international criminal law and procedure and the national criminal law and procedure of different countries. Second, the victims of such crimes are usually children, women and old people; the entire national, ethnic, racial or religious groups are destroyed. These features influence the classification of victims by the age criterion. Article 68 of the Rome Statute provides for protection of the safety, physical and psychological well-being, dignity and privacy of victims and witnesses and thus determines the procedural status of these persons. However, not all the persons whose rights have been violated by the commission of these crimes acquire the status of victims. This is due to the fact that such crimes affect a huge number of persons and it is impossible to mention them all by name. It is also difficult to assess the entire damage suffered by the victims. While assessing the amount of damages it is essential to take into account physical and moral harm, as well as property damage. The procedural status of victims thus gains an exclusive character. In order to determine the full extent of the damage suffered by the victims it is necessary to collect sufficient evidence. However, it is extremely difficult to collect the evidence that would ensure the full and objective protection of the victims’ rights. While making requests for the collection of evidence, the International Criminal Court faces the problem of protection of national security information. Religious beliefs and the family life of victims are of great importance. In some Islamic countries, it is impossible to question a woman without her husband’s consent which affects the objectivity of her testimony. Finally, the number of victims is quantified by hundreds and thousands. The assessment of these elements demands time and highly qualified work. These factors justify the creation of a mechanism that would help to collect the evidence and establish the truth in the international criminal proceedings. This mechanism will help to impose a just and appropriate punishment for the persons accused of having committed a crime, since, committing the crime, criminals could not misunderstand the outcome of their criminal intent.

Keywords: crimes against humanity, evidence in international criminal proceedings, international criminal proceedings, protection of victims

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Authors: Paulo Rocha

Abstract:

Once in touch with the Criminal Justice System, offenders with mental disorder tend to return to custody more often than nondisordered individuals, which suggests they have not been receiving appropriate treatment in prison. In this scenario, diverting individuals into care as early as possible in their trajectory seems to be the appropriate approach to rehabilitate mentally unwell offenders and alleviate overcrowded prisons. This paper builds on an ethnographic research investigating the challenges encountered by practitioners working to divert offenders into care while attempting to establish cross-boundary interactions with professionals in the Criminal Justice System and Mental Health Services in the UK. Drawing upon the findings of the study, this paper suggests the development of adequate tools to enable liaison between agencies which ultimately results in successful interventions.

Keywords: criminogenic needs, interagency collaboration, liaison and diversion, recidivism

Procedia PDF Downloads 133

Authors: Katarzyna Kamińska

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The main purpose of the work is to present the results of the studies regarding joint physical custody in the Polish legal system. The issues addressed fit into the ongoing process of modernising family law regulations and their adaptation to changing social reality in Poland. The Polish legislator now faces a dilemma: whether to introduce into Polish law a developed substantive or procedural regulation of joint physical custody and then whether it should be considered a legal presumption. Joint physical custody after divorce or separation is theoretically possible in Poland. It can either follow from the court’s independent proposal based on the assessment of the circumstances or from the parenting plan submitted by parents wishing to jointly retain full parental authority. However, joint physical custody does not result directly from the Polish Family and Guardianship Code. Therefore, there is real legal uncertainty in this matter, which leads to different treatment of citizens by the public authorities and courts. Another problem is that joint physical custody is misunderstood by the Polish courts. The main thesis of the work is that joint physical custody does not only mean the system of symmetrical child care (50/50), and the possibility to award joint physical custody will require the courts to carefully weigh the pros and cons of such an arrangement in each individual case.

Keywords: joint physical custody, shared parenting, divorce, separation, parental authority

Procedia PDF Downloads 41

Authors: Tamas Bezsenyi, Noemi Katona

Abstract:

Fighting Human Trafficking is a highly important issue worldwide that states need to deal with in international politics. In the EU combatting human trafficking is emphasized in international policy making and also in the work of international law enforcement, thus in the work of the EUROPOL. While the EU Directive against Human Trafficking prescribes how states should fight this transnational crime and also how victims should be assisted, the EUROPOL focuses on the effective cooperation between national law enforcement agencies. However, despite the aims of the common fight, human trafficking is regulated differently in the punitive law of various nation states. This deeply defines the work and possibilities of national law enforcement organizations. Among the manifold differences in this paper, we focus on the role of regulating asset recovery. We highlight that money, and the regulation and practice how the law enforcement deals with income gained from criminal activities, play essential role in combatting human trafficking. While doing research on the investigation of transnational human trafficking by the Hungarian Law Enforcement Agencies, we have found that the unfortunate regulation of asset recovery determines the lower effectiveness of eliminating criminal organizations. While i.e. in the Netherlands confiscation of property takes place in an early stage of the criminal procedure, in Hungary it can be conducted only if money laundering is also assumed. Our presentation builds on the comparison of criminal procedures which we analyse based on criminal files and interviews with coworkers of the National Bureau of Investigation.

Keywords: human trafficking, law enforcement, asset recovery, organized crime

Procedia PDF Downloads 254

Authors: Romina Beqiri

Abstract:

In the context of the prosecution of those responsible for the commission of the most hideous crimes and the fight against impunity, a fundamental role is played by witnesses of the crimes who contribute to ascertaining the ‘procedural truth’. This article examines recent decisions and legislation of the Hague-based International Criminal Court in terms of the endangerment of the integrity of the criminal proceedings in consequence of witness tampering. The analysis focuses on the new developments in the courtroom and the academia, in particular, on the first-ever sentence confirming the charges of corruptly influencing witnesses, interpretation of presenting false evidence and giving false testimony when under an obligation to tell the truth. Confronted with recent tampering with witnesses and their credibility at stake in the ongoing cases, the research explores different Court’s decisions and scholars’ legal disputes concerning the deterrence approach to punish the authors of offences against the administration of justice when committed intentionally. Therefore, the analysis concludes that the Court cannot tolerate any witness false testimony and should enhance consistency and severity of sanctions for the sake of fair trial and end impunity.

Keywords: International Criminal Court, administration of justice, credibility of witness, fair trial, false testimony, witness tampering

Procedia PDF Downloads 147

Authors: Erinda Male

Abstract:

Participation of a lawyer in any criminal proceedings on behalf of an accused person or a victim is essential to a fair trial. Legal representation is particularly crucial in proceedings before international tribunals, especially in the International Criminal Court. The paper thus focuses on the importance of the legal representation of victims and defendants before the ICC, as well as on the role of the legal representative in the proceedings before the court and the principle of freedom of choice of legal representatives. Also, the paper presents a short overview of the significance of legal representatives for victims and the necessity to protect their primary role in the ICC system, and ensure that it is coherent and respectful of victims’ rights. Victim participation is an important part of the ICC Statute and it is designed to help ensure that those most affected by the crimes are able to engage with the Court. Proper and quality legal representation ensures meaningful participation of victims at stages of the proceedings before ICC. Finally, the paper acknowledges the role of legal representatives during the pre-trial, trial and post-trial phase, the different modalities in selecting the legal representatives as well as balancing victims’ participation with the right of the accused to a fair trial.

Keywords: fair trial, freedom of choice principle, international criminal court, legal representatives, victims

Procedia PDF Downloads 362

Authors: Lucy Tsado

Abstract:

As cybercrime and cyberattacks continue to increase, the need to respond will follow suit. When cybercrimes occur, the duty to respond sometimes falls on law enforcement. However, criminal justice students are not taught concepts in cybersecurity and digital forensics. There is, therefore, an urgent need for many more institutions to begin teaching cybersecurity and related courses to social science students especially criminal justice students. However, many faculty in universities, colleges, and high schools are not equipped to teach these courses or do not have the knowledge and resources to teach important concepts in cybersecurity or digital forensics to criminal justice students. This research intends to develop curricula and training programs to equip faculty with the skills to meet this need. There is a current call to involve non-technical fields to fill the cybersecurity skills gap, according to experts. There is a general belief among non-technical fields that cybersecurity education is only attainable within computer science and technologically oriented fields. As seen from current calls, this is not entirely the case. Transitioning into the field is possible through curriculum development, training, certifications, internships and apprenticeships, and competitions. There is a need to identify how a cybersecurity eco-system can be created at a university to encourage/start programs that will lead to an interest in cybersecurity education as well as attract potential students. A short-term strategy can address this problem through curricula development, while a long-term strategy will address developing training faculty to teach cybersecurity and digital forensics. Therefore this research project addresses this overall problem in two parts, through curricula development for the criminal justice discipline; and training of faculty in criminal justice to teaching the important concepts of cybersecurity and digital forensics.

Keywords: cybersecurity education, criminal justice, curricula development, nontechnical cybersecurity, cybersecurity, digital forensics

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Authors: Chih Hung Shih

Abstract:

Eyewitness identification is one of the efficient information to identify suspects during criminal investigation. However eyewitness identification is improved frequently, inaccurate and plays vital roles in wrongful convictions. Most eyewitness misidentifications are made during police criminal investigation stage and then accepted by juries. Four failure investigation case studies in Taiwan are conduct to demonstrate how misidentifications are caused during the police investigation context. The result shows that there are several common grounds among these cases: (1) investigators lacked for knowledge about eyewitness memory so that they couldn’t evaluate the validity of the eyewitnesses’ accounts and identifications, (2) eyewitnesses were always asked to filter out several suspects during the investigation, and received investigation information which contaminated the eyewitnesses’ memory, (3) one to one live individual identifications were made in most of cases, (4) eyewitness identifications were always used to support the hypotheses of investigators, and exaggerated theirs powers when conform with the investigation lines, (5) the eyewitnesses’ confidence didn’t t reflect the validity of their identifications , but always influence the investigators’ beliefs for the identifications, (6) the investigators overestimated the power of the eyewitness identifications and ignore the inconsistency with other evidence. Recommendations have been proposed for future academic research and police practice of eyewitness identification in Taiwan.

Keywords: criminal investigation, eyewitness identification, investigative bias, investigative failures

Procedia PDF Downloads 216