Search results for: criminal tribunals

Authors: Vanda Božić, Željko Nikač

Abstract:

The wars and armed conflicts have often resulted in violations of international humanitarian law, and often commit the most serious international crimes such as war crimes, crimes against humanity, aggression and genocide. However, only in the XX century the rule was articulated idea of establishing a body of international criminal justice in order to prosecute these crimes and their perpetrators. The first steps in this field have been made by establishing the International military tribunals for war crimes at Nuremberg and Tokyo, and the formation of ad hoc tribunals for the former Yugoslavia and Rwanda. In the end, The International Criminal Court was established in Rome in 1998 with the aim of justice and in order to give satisfaction the victims of crimes and their families. The aim of the paper was to provide a historical and comparative analysis of the institutions of international criminal justice based on which these institutions de lege lata fulfilled the goals of individual criminal responsibility and justice. Furthermore, the authors suggest de lege ferenda that the Permanent International Criminal Tribunal, in addition to the prospective case, also takes over the current ICTY and ICTR cases.

Keywords: international crimes, international criminal justice, prosecution of crimes, ad hoc tribunal, the international criminal court

Procedia PDF Downloads 228

Authors: Ikediobi Lottanna Samuel

Abstract:

Days are gone when perpetrators of core international crimes hide under the cloak of sovereignty to go with impunity. The principle of international criminal responsibility is a reality. This move to end impunity for violation of human rights has led to the creation of international and hybrid tribunals, a permanent international criminal court, and increased prosecution of human rights violations in domestic courts. This article examines the attempts by the international community to bring perpetrators of heinous crimes to book. The work reveals the inadequacy of the current international mechanism for prosecuting core international crimes in order to end the culture of impunity and entrench the culture of accountability. It also identifies that ad hoc international criminal tribunals and the international criminal court face similar challenges ranging from lack of cooperation by nation states, non-existence of hierarchy of crimes, lack of effective enforcement mechanism, limited prosecutorial capacity and agenda, difficulty in apprehending suspects, difficulty in blending different legal tradition, absence of a coherent sentencing guideline, distant location of courts, selective indictment, etc. These challenges adversely affect the functioning of these courts. It is suggested that a more helpful way to end impunity would be to have a more robust and synergistic relationship between national, regional, and international approaches to prosecuting core international crimes.

Keywords: prosecution, criminal, international, tribunal, justice, ad hoc

Procedia PDF Downloads 185

Authors: Nour Mohammad

Abstract:

The concept of International Criminal Court is not a new idea.It goes back to the late 19th century and was first mooted in 1872 by Gustave Moynier of the International Commitee of the Red Cross(ICRC). This paper attempts to focus on jurisdictional problem of the international criminal court (ICC) over national of states of non parties to the Rome statute. Mor than 120 countries are state parties to the Rome Statute representing all regions, Afria, the Asia-pacofoc Eastern Europe, Latin America and the Caribben as well as Western Europe and North America.The Statute is the core document of internationa criminal law todaycontaining 128 Articles and divided in 13 parts.The Rome Statute provides that the court may sit elsewhere the judge consider it desirable.The International Criminal Court is not in a position to adjudicate all international crimes but its jurisdiction is limited to the four categories of crime viz. genocide, crimes against humanity, war crimes and crime of aggression as stipulated in Article 5 of the ICC Statute. It also mention here that the Court will be able to exercise its jurisdiction over the crime of aggression only when this crime is defined. Due to the highly political nature of this crime, it is unlikely that a consensus in this regard would be arrived at in the near future.The main point of this article is to discuss the mandate of international criminal court to prosecute and punish persons responsible for the henious crimes of concern to the international community.The author highlighted the principles which support the delegation of criminal jurisdiction by state to international tribunals and discuss the precedents of such delegation.It also argued that the exercise of ICC jurisdiction over acts done pursuant to the officially policy of non-party state would not be contrary to the principles requiring consent for the exercise of jurisdiction by international tribunals. The article explore the limit to jurisdiction of ICC over non-party nationals.

Keywords: jurisdiction, international, criminal, court, non-parties

Procedia PDF Downloads 423

Authors: Md. Mustakimur Rahman

Abstract:

On the one hand, while dealing with temporally distant international crimes (TDICs), prosecutors are likely to encounter many defendants suffering from severe physical or mental disorders. The concept of a defendant's "fitness," on the other hand, is based on the notion that an alleged perpetrator must be protected from a conviction resulting from a lack of participation or competence in making proper judgments. As a result, if a defendant is temporarily or permanently mentally ill, going through a formal criminal trial may be highly unlikely. TheExtraordinary Chambers in the Courts of Cambodia(ECCC), for example, arrested and tried IengThirth for crimes against humanity, grave breaches of the 1949 Geneva Conventions, and genocide. Still, the Trial Chamber found her incompetent to stand trial and released her in 2011. Although the prosecution had a lot of evidence against her, she was free from prosecution. It suggests that alleged war criminals may be granted immunity due to their unfitness, implying that unfitness is a hurdle to combating impunity. Given the absence of a formal criminal trial, international criminal law (ICL) should take steps to address this issue. ICL, according to Mark A. Drumbl, has yet to develop its penology; hence it borrows penological rationales from domestic criminal law. For example, international crimes tribunals such as the Nuremberg Tribunal and the Tokyo Tribunal, ad hoc tribunals have used retribution, utilitarianism, and rehabilitation as punishment justifications. On the other hand, like in the case of IengThirth, a criminal trial may not always be feasible. As a result, instead of allowing impunity, this paper proposes informal trials. This paper, for example, suggests two approaches to dealing with unfit defendants: 1) trial without punishment and 2) punishment without trial. Trial without punishment is a unique method of expressing condemnation without incarceration. "Expressivism has a broader basis than communication of punishment and sentencing," says Antony Duff. According to Drumbl, we can untangle our understanding of punishment from "the iconic preference for jailhouses" to include a larger spectrum of non-incarcerative measures like "recrimination, shame, consequence, and sanction." Non-incarcerative measures allow offenders to be punished without going through a formal criminal trial. This strategy denotes accountability for unlawful behavior. This research concludes that in many circumstances, prosecuting elderly war crimes suspects is difficult or unfeasible, but their age or illness should not be grounds for impunity. They should be accountable for their heinous activities through criminal trials or other mechanisms.

Keywords: international criminal law, international criminal punishment, international crimes tribunal, temporally distant international crimes

Procedia PDF Downloads 51

Authors: Anuj Kumar Vaksha

Abstract:

The research paper examines the trends and approaches of the international investment arbitral tribunals to the issues of environment and the exercise of states' regulatory power for the preservation of environment vis-à-vis the rights of the affected foreign investors. The paper analyses arbitral awards, decisions and orders in the leading cases of international investment arbitrations involving issues of environment and finds that there has been strong trend among the arbitral tribunals to balance the imperatives of the environmental regulation and the interest of the foreign investors. The arbitral tribunals have reflected deference to States' competence for regulation of environment to the extent they were genuine, relevant and in proportion to the legitimate objective sought to be achieved. The arbitral tribunals have at times been innovative and non-conservative in promoting the cause of environment through the mechanism of investor-state arbitration.

Keywords: International Investment Arbitration, environmental regulations, bilateral investment treaties, ICSID, NAFTA, amicus curiae, pollution havens hypothesis, environmental race to the bottom hypothesis

Procedia PDF Downloads 291

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 363

Authors: Laura Mendez

Abstract:

Tribunals for the prosecution of crimes against humanity have been implemented in recent history via international intervention or imposed by one side of the conflict, as in the cases of Rwanda, Iraq, Argentina, and Chile. However, the creation of a criminal tribunal as the result of a peace agreement between formerly warring parties has been unique to the Colombian peace process. As such, the Colombian Jurisdiction for Peace (SJP), or JEP for its Spanish acronym, is viewed as a site of social contestation where actors shape its design and implementation. This study contributes to the literature of transitional justice by analyzing how the framing of the creation of the Colombian tribunal reveals the parties' interests. The analysis frames the interests of the power-brokers, i.e., the government and the Revolutionary Armed Forces of Colombia (FARC), and the victims in light of the tribunal’s functions. The purpose of this analysis is to understand how the interests of the parties are embedded in the designing of the SJP. This paper argues that the creation of the SJP rests on restorative justice, for which the victim, not the perpetrator, is at the center of prosecution. The SJP’s approach to justice moves from prosecution as punishment to prosecution as sanctions. SJP’s alternative sanctions focused on truth, reparation, and restoration are designed to humanize both the victim and the perpetrator in order to achieve reconciliation. The findings also show that requiring the perpetrator to perform labor to repair the victim as an alternative form of sanction aims to foster relations of reintegration and social learning between victims and perpetrators.

Keywords: transitional justice mechanisms, criminal tribunals, Colombia, Colombian Jurisdiction for Peace, JEP

Procedia PDF Downloads 92

Authors: Yekini Nureni Asafe, Haastrup Victor Adeleye, Ikotun Abiodun Motunrayo, Ojo Olanrewaju

Abstract:

Web Based Criminal Diary is a web based application whereby data of criminals been convicted by a judge in the court of law in Nigeria are shown to the entire public. Presently, criminal records are kept manually in Nigeria, which means when a person needs to be investigated to know if the person has a criminal record in the country, there is need to pass through different manual processes. With the use of manual record keeping, the criminal records can easily be manipulated by people in charge. The focus of this research work is to design a web-based application system for criminal record in Nigeria, towards elimination of challenges (such as loss of criminal records, in-efficiency in criminal record keeping, data manipulation, and other attendant problems of paper-based record keeping) which surrounds manual processing currently in use. The product of this research work will also help to minimize crime rate in our country since the opportunities and benefits lost as a result of a criminal record create will a lifelong barriers for anyone attempting to overcome a criminal past in our country.

Keywords: court of law, criminal, criminal diary, criminal evidence, Nigeria, web-based

Procedia PDF Downloads 278

Authors: Magda Olesiuk-Okomska

Abstract:

Although international criminal law has grown significantly in the last decades, it still remains fragmented and lacks doctrinal cohesiveness. Its concept is described in the doctrine as highly disputable. There is no concrete definition of the term. In the domestic doctrine, the problem of criminal law issues that arise in the international setting, and international issues that arise within the national criminal law, is underdeveloped both theoretically and practically. To the best of author’s knowledge, there are no studies describing international aspects of criminal law in a comprehensive manner, taking a more expansive view of the subject. This paper presents results of a part of the doctoral research, undertaking a theoretical framework of the international criminal law. It aims at sorting out the existing terminology on international aspects of criminal law. It demonstrates differences between the notions of international criminal law, criminal law international and law international criminal. It confronts the notion of criminal law with related disciplines and shows their interplay. It specifies the scope of international criminal law. It diagnoses the current legal framework of international aspects of criminal law, referring to both criminal law issues that arise in the international setting, and international issues that arise in the context of national criminal law. Finally, de lege lata postulates were formulated and direction of changes in international criminal law was proposed. The adopted research hypothesis assumed that the notion of international criminal law was inconsistent, not understood uniformly, and there was no conformity as to its place within the system of law, objective and subjective scopes, while the domestic doctrine did not correspond with international standards and differed from the worldwide doctrine. Implemented research methods included inter alia a dogmatic and legal method, an analytical method, a comparative method, as well as desk research.

Keywords: criminal law, international crimes, international criminal law, international law

Procedia PDF Downloads 278

Authors: Jelena Radmanovic

Abstract:

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

Procedia PDF Downloads 99

Authors: Dini Dewi Heniarti

Abstract:

This One of criminal sanctions that are often imposed by the judge is imprisonment. The issue on the imposition of imprisonment has been subject of contentious debate and criticism among various groups for a long time. In practice, the problematics of imprisonment lead to complicated problems. The impact of the reckless imposition of the imprisonment includes among others overcapacity of the correctional institution and increasing crimes within the correctional facilities. Therefore, there is a need for renewal of the existing condemnation paradigm, considering the developing phenomena associated with the penal imposition. Imprisonment as one element of the Indonesian penal system is an important and integral part of the other elements. The philosophy of the current penal system, which still refers to the Criminal Code, still carries the values of retaliation and fault-finding toward the offender. Therefore, it is important to reconstruct a new thought in order to realize a penal system that is represented in the formulation of a more humanistic criminal sanction

Keywords: criminal code, criminal sanction, Indonesian legal system, reconstruction of thought

Procedia PDF Downloads 201

Authors: Muhammad Tanziel Aziezi

Abstract:

In Indonesia, pre-trial (in Indonesia called ‘praperadilan’) is a mechanism that is regulated on Criminal Procedure Code as a form of oversight and check and balance on the process at the stage of inquiry, investigation, and prosecution, so that actions taken by the State (in this case, the police and prosecutor) is carried out in accordance with its authority and not violate human rights. Article 77 of the Criminal Procedure Code has been set that the object may be filed pretrial is just about the lawfulness of the arrest, the lawfulness of the detention, and the legitimacy of stopping investigation and prosecution. However, since the beginning of 2015, there was a further object which is then entered as a pre-trial object, namely the lawfulness of the determination of a criminal suspect. This is because the determination of the suspect is considered as one of the forceful measures that could restrict the rights of a person, so the implementation should have oversight and checks and balances by the courts. This paper will discuss the development of the pre-trial on the lawfulness of the determination of a criminal suspect as a new judicial mechanism as the protection of human rights in Indonesia.

Keywords: criminal procedure law, pre-trial, lawfulness of determination of a criminal suspect, check and balance by the court

Procedia PDF Downloads 310

Authors: Roger-Claude Liwanga

Abstract:

Over the last seven decades, there has been a proliferation of international tribunals. Yet, they have not received unanimous approval, raising a question about their legitimacy. A legitimate international tribunal is one whose authority to adjudicate international disputes is perceived as justified. Using the case study of the International Court of Justice (ICJ), this article highlights the three criteria that should be considered in assessing the legitimacy of an international tribunal, which include legal, sociological, and moral elements. It also contends that the ICJ cannot claim 'full' legitimacy if any of these components of legitimacy is missing in its decisions. The article further suggests that the legitimacy of the ICJ has a dynamic nature, as litigating parties may constantly change their perception of the court’s authority at any time before, during, or after the judicial process. The article equally describes other factors that can contribute to maintaining the international court’s legitimacy, including fairness and unbiasedness, sound interpretation of international legal norms, and transparency.

Keywords: international tribunals, legitimacy, human rights, international law

Procedia PDF Downloads 343

Authors: Khadija Ali

Abstract:

Prosecution of sexual violence in international criminal law requires not only an understanding of the mechanisms employed to prosecute sexual violence but also a critical analysis of the factors facilitating perpetuation of such crimes in armed conflicts. The extrapolations laid out in this essay delve into the jurisprudence of international criminal law pertaining to sexual and gender based violence followed by the core question of this essay: Has the entrenchment of sexual violence as international crimes in the Rome Statute been successful to address such violence in armed conflicts?

Keywords: conflict, gender, international criminal law, sexual violence

Procedia PDF Downloads 546

Authors: Theresia Simatupang dan Rahmayanti

Abstract:

Tax Law is a legal product and therefore should be subject to the legal norms, both about this actions, implementation, and about the material. Law has always aimed at providing justice, and besides that the law as a tool used to organize the order or rule of law. tax classification of a crime in this is very necessary, because the crime of taxation is very detrimental to the country and is still very high in society and socialization associated with punishment in sentencing that would have to provide a deterrent for the perpetrators, so refer to the this, these criminal offenses can endanger the stability of the nation's economy and the country that require special snacks. The application of legal sanctions against the perpetrators of the crime of taxation already has a strong legal basis, namely UU KUP. UU KUP have loaded threat (sanctions) severe punishment for tax payers who commit offenses and crimes in the field of taxation, which is contained in Article 38, and Article 39, Article 41, Article 41 A, and 41 B as well as Article 43 of Law and Law No. 12 KUP about 1985 Land Tax and Building. Criminal sanctions against violators of the tax provision are important because tax payers sanctions for violating tax laws.

Keywords: accountability, tax crime, criminal liability, taxation

Procedia PDF Downloads 319

Authors: Rahmi Kopar

Abstract:

Legitimate expectations principle is considered one of the most dominant elements of the Fair and Equitable Treatment Standard which is today’s most relied upon treaty standard. Since its utilization by arbitral tribunals is relatively new, the contours of the legitimate expectations concept under investment treaty law have not been precisely defined yet. There are various fragmented views arising both from arbitral tribunals and scholarly writings with respect to its limits and use even though the principle is ‘firmly rooted in arbitral practice.’ International energy investments, due to their characteristics, are more prone to certain types of risks, especially the political risks. Thus, there are several mechanisms to protect an energy investment against those risks. Stabilisation is one of these investment protection methods. Stability provisions can be found under domestic legislations, as a contractual clause, or as a separate legal stability agreement. This paper will start by examining the roots of the contentious concept of legitimate expectations with reference to its application in domestic legal systems from where the doctrine under investment treaty law context was transplanted. Then the paper will turn to the investment treaty law and analyse the main contours of the doctrine as understood and applied by arbitral tribunals. 'What gives rise to the investor’s legitimate expectations?' question is answered mainly by three categories of sources: the general legal framework prevalent in a host state, the representations made by the officials or organs of a host state, and the contractual commitments. However, there is no unanimity among the arbitral tribunals and the scholars with respect to the form these sources should take. At this point, the study will discuss the sources of a stability provision and the effect of these stability provisions found in various legal sources in creating a legitimate expectation for the investor. The main questions to be discussed in this paper are as follows: a) Do the stability provisions found under different legal sources create a legitimate expectation on the investor side? b) If yes, what levels of legitimate expectations do they create? These questions will be answered mainly by reference to investment treaty jurisprudence.

Keywords: fair and equitable treatment standard, international energy investments, investment protection, legitimate expectations, stabilization

Procedia PDF Downloads 185

Authors: Md. Tawohidul Haque

Abstract:

The main objective of this study is to explore the nature, types and, causes of the involvement of criminal activities of the university students using social media namely Social Networking Sites (SNS). The evidence shows that the students have greater chance to involve such criminal activities during sharing their personal messages, photos, and even sharing their academic works. Used qualitative case studies with six students from two universities, this study provides a detail information about the processes how this media provokes the students to commit to the criminal activities such as unethical pose, naked picture, post against persona’s prestige and dignity as well as social position, phone call at midnight, personal threats, sexual offer, kidnapping attitude, and so on. This finding would be an important guideline for the media persons, policy makers, restorative justice, and human rights workers.

Keywords: social media, criminal victimization, human gathering scheme, social code of ethics

Procedia PDF Downloads 134

Authors: Rahmayanti, Theresia Simatupang, Ronald H. Sianturi

Abstract:

Corruption criminal act develops rapidly since in the transition era there is weakness in law. Consequently, there is an opportunity for a few people to do fraud and illegal acts and to misuse their positions and formal functions in order to make them rich, and the criminal acts are done systematically and sophisticatedly. Some people believe that legal provisions which specifically regulate the corruption criminal act; namely, Law No. 31/1999 in conjunction with Law No. 20/2001 on the Eradication of Corruption Criminal Act are not effective any more, especially in onus probandi (the burden of proof) on corruptors. The research was a descriptive analysis, a research method which is used to obtain description on a certain situation or condition by explaining the data, and the conclusion is drawn through some analyses. The research used judicial normative approach since it used secondary data as the main data by conducting library research. The system of the burden of proof, which follows the principles of reversal of the burden of proof stipulated in Article 12B, paragraph 1 a and b, Article 37A, and Article 38B of Law No. 20/2001 on the Amendment of Law No. 31/1999, is used only as supporting evidence when the principal case is proved. Meanwhile, how to maximize the implementation of the burden of proof on the perpetrators of corruption criminal act in which the public prosecutor brings a corruption case to Court, depends upon the nature of the case and the type of indictment. The system of burden of proof can be used to eradicate corruption in the Court if some policies and general principles of justice such as independency, impartiality, and legal certainty, are applied.

Keywords: burden of proof, perpetrator, corruption criminal act

Procedia PDF Downloads 289

Authors: Amanda Rebman

Abstract:

This paper challenges the criminal justice system’s traditional stance regarding prostitution. Historically, the acceptance and morality of prostitution within the United States has fluctuated depending upon the social attitudes of the era. Today, prostitutes are allegedly viewed as victims; however, they are treated like criminals throughout the criminal justice system and society. Dominant patriarchal narratives within the United States has resulted in woman lacking autonomy over their bodies and diminished their ability to choose their own career. Even though prostitutes are deemed victims, many times, they are convicted of crimes, a practice that results in further victimization. Utilizing the socialist feminist theory to understand these juxtaposing positions on whether to legalize prostitution facilitates a greater understanding of how patriarchal capitalist arrangements ensure the oppression of women throughout the criminal justice system. The legalization of prostitution will alleviate some of this oppression and ensure a more equal treatment of women in the criminal justice system and society at large.

Keywords: equality, feminist theory, prostitution, sex work

Procedia PDF Downloads 108

Authors: Allwell Uwazuruike

Abstract:

With the withdrawal, in 2016, of 3 African states from the ICC, the discourse took an interesting twist. African states, or at least some of them, had now shown their resolve to part ways with the ICC and, by implication, focus on further enthroning regional control and governance through an improved continental justice system. A range of views has been expressed over the years on the allegations of bias by some African states and the continued membership of the ICC. While there may be a split on the merits of the allegations of bias, academic analysts have generally not opposed African states’ membership of the ICC nor been particularly optimistic about the prospects of an African criminal court. There is also a degree of ambivalence on whether there are positives to be taken from African states’ withdrawal from the ICC. This article examines the recent developments with the ICC and analyses whether these could be viewed from the positive (or, at least, alternative) spectrum of the AU’s spirited march towards regional sovereignty or entirely negatively from the point of view of African Heads-of-State seeking to enthrone an era of authoritarianism and non-accountability.

Keywords: international criminal court, Africa, regionalism, criminal justice

Procedia PDF Downloads 292

Authors: Filip Ščerba, Veronika Pochylá

Abstract:

Performing of the acts within criminal proceedings usually takes too long and thus this phenomenon can be regarded as one of the most burning problems which have plagued the criminal justice not only in the Czech Republic but at least all over Europe for the last few decades. This problem obviously has to be dealt with and thus the need to tackle this issue has resulted in the trend which is sometimes called Criminal Justice Rationalization, i.e. introducing and enforcing methods supporting the increase in efficiency of the criminal justice in order to make the criminal proceedings shorter and administrative procedure easier. This resulted in the introduction of institutes such as e.g. diversions in criminal proceedings or other forms of shortened pre-trial proceedings, which may be used primarily for dealing with less serious crimes. But also the institute, which was originally mentioned in connection with the system of criminal law in the countries belonging to the Anglo-Saxon legal order where it is frequently called of plea bargaining, has been introduced into the criminal law of many European countries, and it may be applied also in cases of serious crimes. All these special and shortened forms of criminal proceedings are connected with limited extent of process of evidence; in fact, some of these specific forms of criminal proceedings are designed for the purpose to simplify the process of evidence. That is also the reason, why some of these procedures are conditioned with the defendant’s confession. Main hypothesis: Limited process of evidence represents also a potential conflict with certain fundamental principles upon which the criminal proceeding in the Continental legal system is based. (A conflict with principle of material truth may be considered as the most important problem. This principle states that the bodies in criminal proceedings must clarify the facts of the case beyond reasonable doubt to such extent that a decision can be made; the defendant’s confession does not mean that these bodies are freed from the duty to review all the circumstances and facts of the case. Such principle is typical for criminal law in Central European region.) Basic methodologies: The paper is going to analyze such a problem of weakening of the principle of material truth in modern criminal law. Such analysis will be provided primarily on the base of the Czech criminal law, but also other legal regulations will be taken into consideration, and its result may have some relevance for all legal regulations belonging to the Continental legal system, so the paper offers also a comparison with legal systems of other Central European countries.

Keywords: burden of proof, central European countries, criminal justice rationalization, criminal proceeding, Czech legislation, Czech republic, defendant, diversions, evidence, fundamental principles, plea bargaining, pre-trial proceedings, principle of material truth, process of evidence, process of evidence

Procedia PDF Downloads 259

Authors: Inga Žukovaitė

Abstract:

This paper aims to present postdoc research on remote criminal proceedings in court. In this period, when most countries have introduced the possibility of remote criminal proceedings in their procedural laws, it is not only possible to identify the weaknesses and strengths of the legal regulation but also assess the effectiveness of the instrument used and to develop an approach to the process. The example of some countries (for example, Italy) shows, on the one hand, that criminal procedure, based on orality and immediacy, does not lend itself to easy modifications that pose even a slight threat of devaluation of these principles in a society with well-established traditions of this procedure. On the other hand, such strong opposition and criticism make us ask whether we are facing the possibility of rethinking the traditional ways to understand the safeguards in order to preserve their essence without devaluing their traditional package but looking for new components to replace or compensate for the so-called “loss” of safeguards. The reflection on technological progress in the field of criminal procedural law indicates the need to rethink, on the basis of fundamental procedural principles, the safeguards that can replace or compensate for those that are in crisis as a result of the intervention of technological progress. Discussions in academic doctrine on the impact of technological interventions on the proceedings as such or on the limits of such interventions refer to the principles of criminal procedure as to a point of reference. In the context of the inferiority of technology, scholarly debate still addresses the issue of whether the court will not gradually become a mere site for the exercise of penal power with the resultant consequences – the deformation of the procedure itself as a physical ritual. In this context, this work seeks to illustrate the relationship between remote criminal proceedings in court and the principle of immediacy, the concept of which is based on the application of different models of criminal procedure (inquisitorial and adversarial), the aim is to assess the challenges posed for legal regulation by the interaction of technological progress with the principles of criminal procedure. The main hypothesis to be tested is that the adoption of remote proceedings is directly linked to the prevailing model of criminal procedure, arguing that the more principles of the inquisitorial model are applied to the criminal process, the more remote criminal trial is acceptable, and conversely, the more the criminal process is based on an adversarial model, more the remote criminal process is seen as incompatible with the principle of immediacy. In order to achieve this goal, the following tasks are set: to identify whether there is a difference in assessing remote proceedings with the immediacy principle between the adversarial model and the inquisitorial model, to analyse the main aspects of the regulation of remote criminal proceedings based on the examples of different countries (for example Lithuania, Italy, etc.).

Keywords: remote criminal proceedings, principle of orality, principle of immediacy, adversarial model inquisitorial model

Procedia PDF Downloads 35

Authors: Dorota Habrat

Abstract:

In Polish law, the idea of the introduction of corporate responsibility for crimes is becoming more popular and creates a lot of questions. The need to introduce into the Polish legal system liability of corporate (collective entities) has resulted, among others, from the Polish Republic's international commitments, in particular related to membership in the European Union. The Act of 28 October 2002 on the liability of collective entities for acts prohibited under penalty is one of the example of adaptation of Polish law to Community law. Introduction to Polish law a criminal nature liability of corporations (legal persons) has resulted in a lot of controversy and lack of acceptance from both the scientific community as well as the judiciary. The responsibility of collective entities under the Act has a criminal nature. The main question concerns the ability of the collective entity to be brought to guilt under criminal law sense. Polish criminal law knows only the responsibility of individual persons. So far, guilt as a personal feature of action, based on the ability of the offender to feel in his psyche, could be considered only in relation to the individual person, while the said Act destroyed this conviction. Guilt of collective entity must be proven under at least one of the three possible forms: the guilt in the selection or supervision and so called organizational guilt. The next question is how the principle of proportionality in relation to criminal measures in response of collective entities should be considered. It should be remembered that the legal subjectivity of collective entities, including their rights and freedoms, is an emanation of the rights and freedoms of individual persons which create collective entities and through these entities implement their rights and freedoms. The adopted Act largely reflects the international legal regulations but also contains the unknown and original legislative solutions.

Keywords: criminal corporate responsibility, Polish criminal law, legislative solutions, Act of 28 October 2002

Procedia PDF Downloads 482

Authors: Foluke Dada

Abstract:

Prisons all over the world are set up by law to provide restraint and custody for individuals accused or convicted of crimes by the state. The Nigerian prison dates back to the colonial era and is modelled after the British system. It is a system that lays emphasis on punishment and deterrence. It emphasises retribution rather than reformation. These, it can be argued, results in the inhuman conditions of Nigerian prisons and the conscienceless treatment of convicts and awaiting trial inmates in Nigerian prisons. This paper attempts an examination of the challenges currently beguiling Nigerian prisons, the need for reforms in the prison systems and the imperative of these reforms to an efficient criminal justice delivery system in the country. This paper further postulates that rehabilitation should be favoured as against retribution f the development of the Nigerian criminal justice system in line with the shift towards reform.

Keywords: criminal justice, human rights, prison reforms, rehabilitation and retribution

Procedia PDF Downloads 642

Authors: Bekim Avdiaj

Abstract:

The transition period of Kosovo society brought fundamental changes in all the spheres of organizing life. This was the period when also in the cultural tradition the biggest movement and an emerging from ‘isolation’ or from the ‘shell’ occurred. Transformation of the traditional and embracing of the modern began here. The same was experienced and is currently being experienced also by Gjakova and its surrounding which is historically renowned for its great tradition and culture. The population of this region is actually facing a transition from the traditional system into the modern one and quite often with huge leaps. These ‘movements’ or ‘evolutions’ of the society of this region, besides the numerous positive things it ‘harvested’, also brought things that do not at all correspond with their tradition as well as new criminal occurrences which in the past were not present in this area. Furthermore, some of the ‘new’ behaviours that are embraced from other ‘cultures’ and ‘civilizations’, and which are often exceeded, are quite perturbing. The security situation is also worrying, particularly following the appearance of some new criminal occurrences. Therefore, with this research paper we will strive to analyse the new cultural “intersections” as well as the nature of the origin of some new very worrying criminal occurrences. We will present there also some factors inciting into these occurrences, which were confessed by the persons involved in these criminal occurrences and who come from this very region.

Keywords: crime, occurrence, culture, Gjakova Region

Procedia PDF Downloads 324

Authors: Usmaan Siddiqui

Abstract:

In England and Wales, there is no duty to rescue strangers. We will be investigating whether this is correct, and whether we should introduce a Good Samaritan law. In order to explore this, firstly, we will be exploring the nature of our moral duties. How far do our moral duties extend? Do they extend only to our family and friends, or do they also extend to strangers? Secondly, even if there does exist a moral duty, should this duty be enforced by criminal law? To what extent should the criminal law reflect morality? Under English criminal law, the consensus is, that it is not the job of the English criminal law to perfect human behaviour, and whilst the law should prevent us from causing harm, it should not force us to be good. This approach is radically different from many other European countries that actually do have a Good Samaritan law. If there are compelling in principle reasons to introduce a Good Samaritan law how would we deal with the pragmatic institutional constraints? Such a law has been stated as being unworkable in practice and difficult in defining its limits. In order to verify this, we shall carry out a comparative analysis between England and selected states in the US to gauge how successful the Good Samaritan law has been in dealing with these institutional constraints. In terms of methodology, as well as a comparative analysis, we shall also be carrying out a doctrinal analysis exploring what the English criminal law’s position is regarding Omissions. In conclusion, the findings so far are, whilst it is not the job of the law to perfect human behaviour, both respect for the law and the level of social co-operation will be greatly improved if the law encourages morally desirable conduct. Whilst it is possible for society to exist without a duty to assist the distressed, a society which ignores the vulnerable is cold, callous, and uncaring. After all, we all need to face up to the possibility that we may be one day be vulnerable and in need of urgent aid, and it is about time English criminal law, catches up with the majority of Europe and protects the vulnerable.

Keywords: criminal, law, omissions, philosophy

Procedia PDF Downloads 203

Authors: Á. L. Bendes

Abstract:

By the end of the second decade of the 21st century, artificial intelligence (AI) has become an unavoidable part of everyday life and has necessarily aroused the interest of researchers in almost every field of science. This is no different in the case of jurisprudence, whose main task is not only to create its own theoretical paradigm related to AI. Perhaps the biggest impact on digital crime is artificial intelligence. In addition, the need to create legal frameworks suitable for the future application of the law has a similar importance. The prognosis according to which AI can reshape the practical application of law and, ultimately, the entire legal life is also of considerable importance. In the past, criminal law was basically created to sanction the criminal acts of a person, so the application of its concepts with original content to AI-related violations is not expected to be sufficient in the future. Taking this into account, it is necessary to rethink the basic elements of criminal law, such as the act and factuality, but also, in connection with criminality barriers and criminal sanctions, several new aspects have appeared that challenge both the criminal law researcher and the legislator. It is recommended to continuously monitor technological changes in the field of criminal law as well since it will be timely to re-create both the legal and scientific frameworks to correctly assess the events related to them, which may require a criminal law response. Artificial intelligence has completely reformed the world of digital crime. New crimes have appeared, which the legal systems of many countries do not or do not adequately regulate. It is considered important to investigate and sanction these digital crimes. The primary goal is prevention, for which we need a comprehensive picture of the intertwining of artificial intelligence and digital crimes. The goal is to explore these problems, present them, and create comprehensive proposals that support legal certainty.

Keywords: artificial intelligence, chat forums, defamation, international criminal cooperation, social networking, virtual sites

Procedia PDF Downloads 48

Authors: Inga Žukovaitė

Abstract:

This work aims to present postdoc research on remote criminal proceedings in court in order to streamline the proceedings and, at the same time, ensure the effective participation of the parties in criminal proceedings and the court's obligation to administer substantive and procedural justice. This study tests the hypothesis that remote criminal proceedings do not in themselves violate the fundamental principles of criminal procedure; however, their implementation must ensure the right of the parties to effective legal remedies and a fair trial and, only then, must address the issues of procedural economy, speed and flexibility/functionality of the application of technologies. In order to ensure that changes in the regulation of criminal proceedings are in line with fair trial standards, this research will provide answers to the questions of what conditions -first of all, legal and only then organisational- are required for remote criminal proceedings to ensure respect for the parties and enable their effective participation in public proceedings, to create conditions for quality legal defence and its accessibility, to give a correct impression to the party that they are heard and that the court is impartial and fair. It also seeks to present the results of empirical research in the courts of Lithuania that was made by using the interview method. The research will serve as a basis for developing a theoretical model for remote criminal proceedings in the EU to ensure a balance between the intention to have innovative, cost-effective, and flexible criminal proceedings and the positive obligation of the State to ensure the rights of participants in proceedings to just and fair criminal proceedings. Moreover, developments in criminal proceedings also keep changing the image of the court itself; therefore, in the paper will create preconditions for future research on the impact of remote criminal proceedings on the trust in courts. The study aims at laying down the fundamentals for theoretical models of a remote hearing in criminal proceedings and at making recommendations for the safeguarding of human rights, in particular the rights of the accused, in such proceedings. The following criteria are relevant for the remote form of criminal proceedings: the purpose of judicial instance, the legal position of participants in proceedings, their vulnerability, and the nature of required legal protection. The content of the study consists of: 1. Identification of the factual and legal prerequisites for a decision to organise the entire criminal proceedings by remote means or to carry out one or several procedural actions by remote means 2. After analysing the legal regulation and practice concerning the application of the elements of remote criminal proceedings, distinguish the main legal safeguards for protection of the rights of the accused to ensure: (a) the right of effective participation in a court hearing; (b) the right of confidential consultation with the defence counsel; (c) the right of participation in the examination of evidence, in particular material evidence, as well as the right to question witnesses; and (d) the right to a public trial.

Keywords: remote criminal proceedings, fair trial, right to defence, technology progress

Procedia PDF Downloads 41

Authors: Mariam Shah

Abstract:

Stereotypes are not generally considered to be an acceptable influence upon any decision making process, particularly those involving judicial decision making outcomes. Yet, we are confronted with an uncomfortable truth that stereotypes may be operating to influence judicial outcomes. Variances in sentencing outcomes are not easily explained away by criminological, psychological, or sociological theorem, but may be answered via qualitative research produced within the field of phenomenology. This paper will examine the current literature pertaining to the effect of stereotypes on the criminal justice system within the UK, and will also discuss what the implications are for stereotypical influences upon decision making in the criminal justice system. This paper will give particular focus to shoplifting offences dealt with in UK criminal courts, but this research has long reaching implications for the criminal process more generally.

Keywords: decision making, judicial decision making, phenomenology, shoplifting, stereotypes

Procedia PDF Downloads 300

Authors: Natalia Selezneva

Abstract:

The level of crime depends on a number of factors, such as political and economic instability, social inequality and ineffective legislation. A special place in the overall level of crime takes juvenile delinquency. United Nations Standard Minimum developed rules for the administration of juvenile justice (The Beijing Rules), in order to ensure the rights of juvenile offenders under the various legal systems. Most countries support these recommendations, and Russia is no exception. Russia's criminal code establishes the minimum age of criminal liability; types of crimes for which the possible involvement of minors to justice; punishment; sentencing and execution of punishment for minors. However, these provisions cause heated debates in the scientific literature. The high level of juvenile crime indicates the ineffectiveness of legal regulation of criminal liability of minors. In order to ensure compliance with international standards require new and modern approaches to improve national legislation and practice of its application. Achieving this goal will be achieved through the following tasks: 1. Create sub-branches of law regulating the legal status of minors; 2. Improving the types of penalties; 3. The possibility of using alternative measures; 4. The introduction of the procedure of extrajudicial settlement of the conflict. The criminal law of each country depends on the historical, national and cultural characteristics. The development of the Russian legislation taking into account international experience is extremely essential and will be a new stage in the formation of a legal state, especially in the sphere of protection of the rights of juvenile offenders.

Keywords: criminal law, juvenile offender, punishment, the age of criminal responsibility

Procedia PDF Downloads 489