Dissertations / Theses: 'Children in criminal proceedings'

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Hlophe, Stanley Siphiwe. "The adoption of an inquisitorial model of criminal procedure in court proceedings relating to children." Thesis, Nelson Mandela Metropolitan University, 2011. http://hdl.handle.net/10948/1570.

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In this project the adoption of an inquisitorial model of criminal procedure in court proceedings relating to children is discussed. The traditional characteristics of adversarial and inquisitorial models of criminal procedure, the two models in a South African perspective and problems with the adversarial model are highlighted. That it terrifies and silence young victim and witnesses from giving evidence. The inquisitorial elements present in South African criminal procedure such as in bail proceedings, plea proceedings, powers of the presiding officer to call, recall and examine witnesses, powers of the presiding officer to exclude inadmissible evidence, evidence on sentence, and investigation on unreasonable delay on trials are discussed. The international instruments pertaining to children in conflict with the law and child witnesses are examined, together with their impact in our laws relating to children. The constitutional implications to the rights of children are discussed. The historical background that culminated to the Child Justice Act is highlighted. The Child Justice Act with particular reference to the inquisitorial aspects present in this Act is discussed. The measures that aim to protect child witness present in the Criminal Procedure Act, Criminal law Sexual offences and Related Matters Amendment Act and Children’s Act are highlighted. The conclusion, on the analysis of protective measures protecting children, is that in South African law there is a renewed interest in inquisitorial procedures as an effective means of ensuring justice. The conclusion suggests that adversarial model of criminal procedure is not the best method for our legal system to deal with children.

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2

Letsoalo, Lisbeth Ledile. "The protection of children's identities in the criminal justice system: an analysis on section 154(3) of the Criminal Procedure Act 51 of 1977." Thesis, University of Limpopo, 2019. http://hdl.handle.net/10386/3046.

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Thesis ( LLM.) --University of Limpopo, 2019 The Constitution of the Republic of South Africa, 1996 provides that a child’s best interests should be of primary consideration in any matter concerning him or her. Contrary to this value, and thereby excluding protection of child victims, section 154(3) of the Criminal Procedure Act 51 of 1977 simply focusses on anonymity protection of child offenders and witness involved in criminal proceedings. It currently expressly prohibits the publication of the identities of child offenders and witnesses when the media makes publications on the relevant criminal proceedings. However, this protection terminates once such child offenders and witnesses attain majority, therefore arbitrarily stripping them of the identity protection. As a result, media houses are not only at liberty to publish on criminal proceedings identifying child victims, but also to expose the identities of child offenders and witnesses upon attaining majority. Such publications have proved to impede on children’s rights, as well as to contribute to the psychological challenges faced by the children whenever they are exposed to the criminal justice system. In this study the constitutional validity of section 154(3) is investigated and it is argued that it is unconstitutional in all respects. The section contradicts the specific right afforded to all children in the Bill of Rights, as well as other ancillary rights, which ought to ensure the progressive realisation of the protection afforded in terms of section 154(3). It is recommended, firstly, that section 154(3) be declared unconstitutional, and be amended to include child victims within the ambit of its protection. Secondly, the protection should extend beyond the age of 18, in respect of all children involved in criminal proceedings. National Research Foundation

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3

Mustaffa, Aminuddin. "Rights of children in criminal proceedings : a comparative analysis on the compatibility of the Malaysian juvenile justice system with the standards of the Convention on Rights of Children (CRC)." Thesis, Lancaster University, 2017. http://eprints.lancs.ac.uk/86691/.

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The rights of children in conflict with the law has always been a central subject of juvenile justice which attracts an intense academic, political and media interest and debate. In this respect, the United Nations Convention on Rights of Children (CRC), which was adopted on 20th November 1989, has laid down international standards and legal framework on rights of children under juvenile justice. The CRC’s standards on this matter have served as a useful guideline and benchmark to state parties in determining and assessing the rights of children in criminal proceedings. As a country that has ratified the CRC in 1995, Malaysia is duty-bound to strive towards full implementation of the requirements of the CRC. This study will specifically focus on examining the legal rights of children in criminal proceedings under both the CRC’s standards and the Malaysian juvenile justice system. Using the CRC’s standards as a guideline and a benchmark, the study aims to assess the rights of children in criminal proceedings under the current Malaysian juvenile justice system. The study will attempt to critically and comparatively analyze to what extent the Malaysian juvenile justice system on the rights of children in criminal proceedings measure up with the CRC’s standards. The study concludes that legal reform of current legal framework and policy is necessary to improve and strengthen rights of children in criminal proceedings under Malaysian juvenile justice system. Aiming towards full implementation of the CRC’s standards on this aspect, the study provides recommendations and suggestions to be considered in respect of certain imprecision and loopholes in laws as well as policy under the existing Malaysian juvenile justice system.

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Singh, Nerisha. "Electronic evidence in criminal proceedings." Doctoral thesis, Faculty of Law, 2020. http://hdl.handle.net/11427/32978.

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The research question central to the thesis is stated as follows: what are the implications of new technological phenomena in South African law to the existing legal frameworks in relation to (i) investigatory powers of law enforcement and security and intelligence agencies to obtain electronic evidence, and (ii) its subsequent admissibility in criminal proceedings? Written with an emphasis on South African law, but also taking into account aspects of foreign and international law, the thesis seeks to investigate how our existing legal frameworks which regulate the use of and access to electronic evidence in criminal proceedings, including its admissibility, integrate and adapt to challenges raised by new and rapidly changing technological developments. The thesis provides a critical analysis of the existing legal framework regulating certain key investigative powers of law enforcement and security and intelligence agencies in the current modern environment of the information age in which they operate. Key among them is the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002. New technology has not only increased opportunities for criminal activity, it has also created opportunities for law enforcement and security and intelligence agencies to have access to more sophisticated and new capabilities. The range of intrusive capabilities now available to law enforcement and security and intelligence agencies triggers a range of issues and challenges for individual rights, including how those capabilities are used in investigation activities, the scale of their use, the extent to which such capabilities intrude on privacy rights, legislative authority for their use and safeguards that constrain and regulate such new technological capabilities. The challenges of regulating investigative powers in an era of new and fastpaced technological developments is explored in relation to (i) interception of communications (ii) acquisition and retention of communications data, and (iii) access to encrypted information. The introduction of electronic evidence in criminal legal proceedings raises unique challenges in the South African law on evidence. The most interesting perhaps is the extent to which the nature of the evidence presented, in this instance electronic evidence, impacts on admissibility in criminal proceedings. Potential anomalies arise as the relevant legislation, the Electronic Communications and Transactions Act 25 of 2002, is based on an electronic commerce model law concerned with commercial activities. In this regard, two separate issues are the focus of research interest. The thesis offers a rethinking of (a) admissibility of electronic evidence and (b) its weight. The meaning and application of certain statutory provisions, insofar as it applies to electronic evidence as hearsay or real evidence, or both, are key and controversial issues. Another relates to the business records exceptions, which directly translated for electronic records appears to have created a problematic presumption. On matters of evidential weight, there is no ‘one-size-fits-all' approach that will work. While a robust consideration of authentication is required in the court's assessment of evidential weight of electronic evidence, it should not be subject to inflexible tests that make it difficult for authentic electronic evidence to be admitted into evidence. A central premise of the thesis is that evolving technological phenomena can and do present challenges to existing legal concepts on evidence and the investigatory powers of law enforcement and the security and intelligence agencies to obtain electronic evidence and for its admissibility in criminal proceedings. This is done in the context of understanding whether South African law has developed appropriately in response to advancements in technology. In the final analysis, the thesis considers appropriate and meaningful reform towards a modern and transparent legal framework in South African law.

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Radosavljevic, Dragana. "International criminal court, surrender of accused persons and transfer of criminal proceedings." Thesis, University of Westminster, 2006. https://westminsterresearch.westminster.ac.uk/item/92714/international-criminal-court-surrender-of-accused-persons-and-transfer-of-criminal-proceedings.

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The present research focuses on analysing the judicial uncertainty in the implementation, interpretation and application of the ICC Statute both in international and national arenas. In this context examined are the parameters of state sovereignty as the main source of theoretical as well as practical contemporary debate on the relationship between lex specialis character of ICC norms and domestic legal regimes. Varying and frequently inconsistent degrees of international and national compliance with international criminal law due to the multiplicity of legal regimes are scrutinised by analysing the relationship between national and ICC measures with regard to aspects of pretrial proceedings, such as surrender of accused persons and transfer of criminal proceedings, rights of suspects and defendants as well as some aspects of sentencing in so far as they affect the prima facie jurisdiction. One of the main objectives of the ICC Treaty is to advance the unification of international criminal law. Whilst it may be contended that this body of law is acquiring a great degree of specificity and uniformity in content through the Statute, both its development and importantly its scope are fundamentally reliant on interpretation and application at national level; it is here that international criminal law is fragmented. Consequently, its understanding and enforcement are inconsistent. The ICC Statute presents issues that are the result of the fusion of common and civil law traditions as well as a blend of diverse criminal laws within each one of those systems. Distinguishing between Anglo-American and Continental European criminal procedures has become increasingly complex and transgressed. Such blend of legal traditions, whilst it must ensure that justice is rendered with equality, fairness and effectiveness, generates nevertheless everincreasing lack of legal orientation. The aim of this pastiche is therefore to establish an international, uniform standard across contemporary justice systems. However, the application of the ICC provisions will depend on particular method of implementation of the Rome Treaty into domestic law, local political situation, the nature of a conflict (armed conflict is where most of the ICC crimes are likely to occur), any peace process involving regional amnesties and pardons and domestic policies and rules on sentencing. The general perception of the ICC and the law it represents is that of a powerful, centralised regime. Contrary to this belief, a proposition is made here for a less hierarchical international criminal justice that is fundamentally reliant upon national courts and law enforcement agencies. Such a proposition emphasises the need for the ICC involvement at a local level. In this context, the thesis sets out to clarify the ICC law and related Statute enforcement issues.

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6

Appiah, Eric Yeboah. "Right to fair trial in Ghana criminal proceedings." Doctoral thesis, Universitat Pompeu Fabra, 2017. http://hdl.handle.net/10803/403064.

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Fair trial in the criminal process of Ghana has been violated, constrained and compromised because procedural rights of the accused remain unenforceable. The current legal instruments within the liberal framework for protection are misguided, and the existing instruments do not guarantee the right here in ques-tion. The dissertation discusses procedural rights that interrelate with the prin-ciple of equality of arms. I advocate that the system fails to put the criminally accused on equal balance and relative equality with the state prosecution. For interest of justice, I suggest that legal aid lawyers should be assigned to repre-sent the unrepresented accused at the state expense where the accused has no means to pay. This remains dormant, basic and in superficial application in Ghana. How imperative customary law proceedings as a complement to the English system has been unfolded; and the distinguishing features between Ghana and England/Wales criminal law procedure; impact of the African Char-ter and European Convention over the domestic criminal proceedings of Ghana and England/Wales has been analysed. Juicio justo en el proceso penal de Ghana ha sido violada, constreñido y comprometida debido a los derechos procesales o de procedimiento de los acusados sigue siendo inaplicable. Los instrumentos legales actuales dentro del marco liberal para la protección son equivocados, y los instrumentos existentes no garantizan la cuestión en el presente documento derecha. Se analizan los derechos de procedimiento que se interrelacionan con el principio de igualdad de armas. Abogo por que el sistema no puede poner el acusado penalmente en igualdad de equilibrio y la igualdad en relación con la fiscalía estatal. Por el interés de la justicia, sugiero que abogados de oficio deben ser asignados para representar al acusado sin representación a expensas del estado en el que el imputado no tiene que pagar. Este permanece latente, básico y en aplicación superficial en Ghana. La necesidad imperiosa de un procedimiento de derecho consuetudinario como complemento al sistema de Inglés ha sido desplegada; y las características distintivas entre Ghana e Inglaterra / Gales del procedimiento penal; impacto de la Carta Africana y el Convenio Europeo sobre el proceso penal interno de Ghana e Inglaterra / Gales ha sido analizado.

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Schüttpelz, Kai Oliver [Verfasser]. "Witness Preparation in International and Domestic Criminal Proceedings / Kai Oliver Schüttpelz." Baden-Baden : Nomos Verlagsgesellschaft mbH & Co. KG, 2014. http://d-nb.info/1107613558/34.

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8

Cashman, Peter Kenneth. "Legal representation and the outcome of criminal proceedings in magistrates' courts." Thesis, University of London, 1989. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.322284.

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9

Süße, Sascha, and Carolin Püschel. "Collecting evidence in internal investigations in the light of parallel criminal proceedings." Universitätsbibliothek Leipzig, 2016. http://nbn-resolving.de/urn:nbn:de:bsz:15-qucosa-199168.

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10

Cunha, Fernando Bertolotti Brito da. "As medidas cautelares no processo penal: efetividade e eficiência no processo e os direitos e garantias fundamentais." Pontifícia Universidade Católica de São Paulo, 2017. https://tede2.pucsp.br/handle/handle/19731.

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Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2017-02-22T11:43:08Z No. of bitstreams: 1 Fernando Bertolotti Brito da Cunha.pdf: 773732 bytes, checksum: 1c6dbf87cbe7024460b54243e625f5e0 (MD5) Made available in DSpace on 2017-02-22T11:43:08Z (GMT). No. of bitstreams: 1 Fernando Bertolotti Brito da Cunha.pdf: 773732 bytes, checksum: 1c6dbf87cbe7024460b54243e625f5e0 (MD5) Previous issue date: 2017-02-17 Coordenação de Aperfeiçoamento de Pessoal de Nível Superior - CAPES In this work, we intend to present the outlines of the new paradigm of the Brazilian criminal process that emerged after the advent of the Federal Constitution of 1988, and the main characteristics and theoretical references of what we will call constitutional criminal procedure. In this context, we will try to rethink the idea of efficiency in criminal proceedings taking into account, in particular, the studies conducted by the Law and Economics School. Lastly, we will present the precautionary criminal proceeding as a possible route to an efficient constitutional criminal procedure No presente trabalho, pretendemos apresentar os contornos do novo paradigma do processo penal brasileiro surgido a partir do advento da Constituição Federal de 1988 e as principais características e referenciais teóricos daquilo que chamaremos de processo penal constitucional. Nesse contexto, trataremos de repensar a ideia de eficiência no âmbito do processo penal, levando em conta, especialmente, os estudos conduzidos pela escola da Law and Economics. Por fim, apresentaremos o processo penal cautelar como possível caminho para o processo penal constitucional eficiente

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11

Dumani, Msebenzi. "Aspects of expert evidence in the criminal justice system." Thesis, Nelson Mandela Metropolitan University, 2005. http://hdl.handle.net/10948/435.

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The rule excluding evidence of opinion is traditionally stated in broad and general terms, subject to a more or less closed list of exemptions. Stephen says that a witness’s opinion is “deemed to be irrelevant”. A witness may depose to the facts which he has observed, but he may not ordinarily state any inferences which he has drawn from those facts, or opinions founded upon facts of which he has no personal knowledge. The general rule is that the evidence of opinion or belief of a witness is irrelevant because it is the function of a court to draw inferences and form its opinion from the facts; the witnesses give evidence as to the facts and the court forms its opinion from those facts. The opinion of an expert is admissible if it is relevant. It will be relevant if the witness’s skill, training or experience enables him materially to assist the court on matters in which the court itself does not usually have the necessary knowledge to decide. Where the topic is such that an ordinary judicial officer could be expected to be able, unassisted, to draw an inference, expert evidence is superfluous. In principle, there is no rule that a witness cannot give his opinion on an issue that the court has to decide ultimately. It is not experts alone who may give their opinions on ultimate issues but, in practice, there is a strong tendency to regard the evidence of lay persons on ultimate issues as constituting prima facie evidence only. If such lay testimony remains unchallenged, it may be of greater significance. It is generally true that relevant evidence is admissible and irrelevant evidence is inadmissible. At this stage the following question may be posed: is the opinion of any witness – whether from an expert or lay person – admissible evidence? Should an opinion be admitted for purposes of persuading the court to rely on it in deciding the issue at hand? The basic answer is that relevance remains the fundamental test for admissibility. Certain issues simply cannot be decided without expert guidance. Expert opinion evidence is therefore readily received on issues relating to ballistics, engineering, chemistry, medicine, accounting and psychiatry, to mention only a few examples. The problem which arises is this: what is the best way of cross-examining the expert witness? Although the concept of skilful cross-examination conjures up the image of the crossexaminer destroying the expert witness in the witness box, total annihilation of expert evidence in court occurs only rarely. In reality, lawyers who are expected to cross-examine experts are often at a disadvantage in that they do not possess sufficient in-depth knowledge of the specific field of expertise to enable them to cross-examine the witness. Despite the expert nature of the evidence, it is suggested that the true basis of crossexamination should not be abandoned when dealing with experts. The effectiveness of crossexamination is enhanced by keeping the number of questions to a minimum as well as opening and concluding with good strong points. At the outset it should be mentioned that there is a distinction between matters of scientific fact and matters of mere opinion. On matters of scientific fact experts seldom differ but within the province of opinion one encounters difficulties. Lengthy cross-examination concerning expert’s theoretical knowledge is usually inefficient and should rarely be attempted. Cross-examination should be directed at pure logic or scientific analysis. The cross-examiner should always have relevant authority with him in court so as to confront the expert with these. The whole effect of the testimony of an expert witness can also be destroyed by putting the witness to test at the trial as to his qualifications, his experience and his ability and discriminations as an expert. A failure to meet this test renders his evidence nugatory.

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Slot, Janneke. "An evaluation of the forensic accountant's role in criminal law proceedings / by J. Slot." Thesis, North-West University, 2013. http://hdl.handle.net/10394/9839.

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Forensic accountants are occasionally called upon to assist in criminal law proceedings. The role of the forensic accountant in such proceedings is usually determined during the engagement of the forensic investigation to assist in the matter under investigation. During such investigations, various investigation techniques may be utilised by the forensic accountant in order to convey the facts and findings of the forensic investigation in a written report, drafted by the forensic accountant. When criminal prosecutions are instituted and the forensic accountant is called upon to act as an expert witness, such evidence is mostly based on the findings of the written report. Thus, in giving evidence, the forensic accountant must ensure that the testimony and evidence will be admissible in court and that the forensic accountant is found to be a credible witness. Although there are various legal standards that the forensic accountant must adhere to, the ICFP, which is the South African regulatory body for commercial forensic practitioners, is still in its infancy and has as yet not set any standards with which forensic accountants must comply with when assisting in criminal investigations or drafting written reports. The objective of this study is to highlight the role of the forensic accountant in criminal law proceedings. This objective is reached by clarification of the following: • the difference between a forensic accountant and an auditor; • the techniques available to the forensic accountant when conducting a forensic investigation; • the standards with which a forensic accountant‘s report should comply; and • the forensic accountant‘s role in testimony. The study illustrates the difference between a forensic accountant and an auditor and suggests a definition for a forensic accountant. The study furthermore explores various techniques that the forensic accountant may utilise during the investigation. The study also analyses the legal standards with which a forensic accountant must comply in order to ensure the admissibility of the written report and its findings. In order to achieve this, international regulatory standards applicable to forensic accountants are analysed and discussed. Finally, the role of the forensic accountant in court proceedings is examined. The illustrations in this study will be helpful in determining standards that could be implemented in South Africa to guide forensic accountants in their role in criminal law proceedings. Thesis (MCom (Forensic accountancy))--North-West University, Potchefstroom Campus, 2013.

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Abu-Baker, Ben-Younis Huda M. "Expert evidence in criminal proceedings : a comparative study (English adversarial and Libyan inquisitorial systems)." Thesis, Manchester Metropolitan University, 2005. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.420864.

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14

Mwesigwa, Peter Katonene. "An analysis of the difficulties related to victim participation before the International Criminal Court and the extraordinary chambers in the courts of Cambodia." Thesis, University of the Western Cape, 2012. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_7360_1373278546.

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By any standard, victim participation is a relatively new phenomenon in international criminal law proceedings. Incredible advances have been made in the effort to end impunity for crimes against&nbsp umanity, war crimes, genocide and, more recently, aggression. As a result, great strides have been made in ensuring the direct participation of victims of grave violations of human rights&nbsp in court proceedings against their perpetrators. Prior to this, grave violations of human rights committed during conflicts or periods of mass violence were either largely ignored or even if action&nbsp was taken, victims of the crimes hardly had a &lsquo say&rsquo in the proceedings. With the advent of the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC)&nbsp &nbsp new dawn in the proceedings of international criminal law has emerged. The statutes that govern the ICC and ECCC have given a voice to victims in court proceeding buy ensuring&nbsp victims participation.Despite these advances, scholars have criticized victim participation for being inconsistent in its application at the International Criminal Court.1 The criticism has come from&nbsp scholars who have highlighted the unintended consequences of victim participation in court proceedings, arguing that their participation has resulted in the under- or misrepresentation of the&nbsp actual experience of survivors of war, mass violence, or repression. These problems have arisen largely because the need to establish the guilt or innocence of the accused and to protect their&nbsp due process rights, to abide by the rules of evidence and procedure, and to conserve judicial resources all cut against victim-witnesses'ability to tell their stories at these tribunals thereby&nbsp resulting in a limited, and sometimes inaccurate, record of victims' experience.

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Fleishman, Jodi Rebecca. "Mandatory legal representation for children in custody, access and child protection proceedings." Thesis, McGill University, 2005. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=99136.

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The principle 'best interests of the child' has been expanded by the legal community in recent years to apply to any matter involving children in family law proceedings. The weight ascribed to this principle, however, has been diluted. In custody, access and child protection cases, evidence of which custodial arrangements are in a child's interests are often presented by adult parties in prolonged and costly proceedings. The judge makes an order which is intended to meet the child's "best interests", in the child's absence. This paper first examines the historical and theoretical justifications for children's rights in Canadian and international law and the "best interests" principle. Second, the concept of "legal representation for children" is explored, with specific reference to inconsistencies in the jurisprudence concerning the role of independent representation for children. This paper argues that to truly reflect a custodial or access arrangement made in the child's "best interests", it is imperative that the child's voice be heard by the court through independent legal counsel assigned to represent that child's individual needs and concerns.

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Henriques, Fábio Rodrigo de Paiva. "Foro especial criminal por prerrogativa de função: da necessária desconstrução do paradigma racionalista para alcance da efetividade da ação penal originária." Universidade Católica de Pernambuco, 2015. http://www.unicap.br/tede//tde_busca/arquivo.php?codArquivo=1148.

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O foro especial criminal por prerrogativa de função é frequentemente criticado tanto pelo tratamento diferenciado conferido aos acusados, como pelas dificuldades de sua operacionalização, uma vez que o modo de ser da respectiva ação penal, com todas as suas particularidades, retarda a tramitação, fere importantes princípios do processo penal e, invariavelmente, confere ao processo a pecha de instrumento de impunidade. O presente estudo buscará, inicialmente, a partir de um resgate histórico, apresentar de que forma o discurso da prerrogativa de foro, com enunciados firmados desde a Grécia antiga e bastante influenciado pelos dogmas do Direito Canônico (privilegium fori), enraizou-se no ordenamento jurídico brasileiro e se transformou em uma verdade paradigmática com cruciais reflexos no procedimento penal. Em seguida, serão analisados os inúmeros obstáculos existentes na tramitação da ação penal originária, entre eles a estrutura física dos Tribunais, a ausência de especialização de servidores e magistrados, a possibilidade de frequentes deslocamentos de competência, o alto custo do processo, o distanciamento do julgador em relação à instrução processual e a ausência de duplo grau de jurisdição. Ao final, não prevalecendo as várias propostas legislativas já existentes para abolir a aludida competência especial, será proposta a criação de um instituto processual alternativo apto, ao menos, a inibir a aplicação banalizada da prerrogativa de foro e adequar o processo a um modelo que, assegurando o eficaz exercício das garantias processuais, possa resolver o conflito em tempo razoável e de forma menos custosa, para que o processo não seja fonte perene de decepções, tampouco permita o desgaste da legitimidade do sistema jurídico nacional. The prerogative institute is often criticized by the differential treatment given to the accused, but also due to the difficulties of its implementation, since the "mode of being" of the respective criminal action, with all its peculiarities, slows down the processing, hurts important principles of criminal procedure and invariably gives the fame of impunity instrument. Initially, this study will seek, through historical research, to present how the speech of the forum prerogative, with statements signed from ancient Greece and greatly influenced by the tenets of Canon Law (privilegium fori), took root in the Brazilian legal system and turned into a rationalist truth with crucial (and harmful) consequences in criminal proceedings. In sequency, will be analyzed numerous obstacles for the prosecuting of the criminal case, including the physical structure of the Courts, the absence of specialized servers and magistrates, the possibility of frequent desclocamentos of competence, the high cost of the process, the distance of judge and the absence of double jurisdiction. At the end, despite the already existing legislative proposals to abolish the institute of forum prerogative, will be proposed an alternative procedural institute able, at least, to inhibit trivialized application of the forum prerogative and bring the process to a model that, ensuring the effective exercise of procedural safeguards, can resolve the jurisditional conflict in a reasonable time and less costly, so it's not a perennial source of disappointment, nor allow the erosion of legitimacy of the national legal system.

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Garcia, Arlene Elisa. "Are children remorseful after committing violent criminal acts?" CSUSB ScholarWorks, 1997. https://scholarworks.lib.csusb.edu/etd-project/1177.

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18

Genis, Marina. "A content analysis of forensic psychological reports written for sentencing proceedings in criminal court cases in South Africa." Pretoria : [s.n.], 2009. http://upetd.up.ac.za/thesis/available/etd-03302010-141420.

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Genis, Marina. "A content analysis of forensic psychological reports written for sentencing proceedings in criminal court cases in South Africa." Diss., University of Pretoria, 2008. http://hdl.handle.net/2263/23628.

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Since the 1970s there has been a rising trend in South Africa for legal professionals to use the services of psychologists in legal proceedings. Psychologists have therefore increasingly started to appear as expert witnesses in court cases. Despite this, the field of forensic psychology in South Africa has yet to be defined and delineated. Currently there are no set guidelines or regulations regarding who is qualified to do forensic work, and no standards against which this work can be measured. Psychology in the courtroom has begun to receive a notorious reputation as a result of this. The Professional Board for Psychology (PBP) of the Health Professions Council of South Africa (HPCSA) is investigating the creation of a new category of registration, that of Forensic Psychologist, partly in an effort to manage and address this problem. However, to date little, if any, research has been conducted on the scope of the work presented to the courts by psychologists appearing as expert witnesses. This research aimed to address this gap by analysing a sample of forensic psychological reports. The following aspects were investigated: <ul><li>Who (category or registration, length of registration, etc.) is doing sentencing reports;</li> <li>How (interviews, collateral information, psychometric tests, etc.) these reports are compiled; and</li> <li>Whether these reports measure up to professional expectations as well as adhere to the guidelines of the HPCSA.</li></ul> It is clear from the results of this research that some of the psychologists doing forensic assessments and writing reports do so in an idiosyncratic way. Besides the fact that no uniformity exists, forensic work is sometimes done by psychologists who are not qualified to do so in terms of their registration category and thus their scope of practice. The reports analysed did not always measure up to guidelines or professional standards from abroad (in lieu of local standards or guidelines for reports) and/or transgressions were made in terms of HPCSA policies and guidelines. This situation is understandable in the light of two shortfalls in this field, namely training and regulation. The following recommendations can be made on the basis of this study: <ul><li>That psychologists who are adequately trained and have the proven experience in forensic work, be accredited by the PBP;</li> <li>That guidelines and standards for forensic work be drawn up by the PBP; in addition, that more complete ethical guidelines than those contained in chapter 7 of the PBP’s Rules of Conduct Pertaining Specifically to Psychology also be drawn up;</li> <li>That adequate training at MA level in basic forensic issues be made compulsory, with the option of advanced training for those wishing to specialise in the field; and</li> <li>That lawyers be trained in basic concepts of psychology so as to allow for better selection of an appropriate psychologist to assist them and also to assure effective cross-examination regarding psychological issues in court.</li></ul> If these recommendations were implemented, they could aid in regulating the field, thus producing forensic work of a consistently high quality. This will hopefully help to narrow the gap between the expected and actual interaction between law and psychology. Copyright Dissertation (MA)--University of Pretoria, 2010. Psychology unrestricted

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20

Sidhu, Omkar. "The concept of Equality of Arms in criminal proceedings under Article 6 of the European Convention on Human Rights." Thesis, Durham University, 2011. http://etheses.dur.ac.uk/885/.

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Inherent in and at the core of the right to fair trial in Article 6 of the European Convention on Human Rights is the concept of equality of arms, the construct to which this thesis is devoted within the context of criminal proceedings. As a contextual prelude to specific analysis of this concept, a background for Article 6 is first established which identifies influential historical developments in trial rights and provides an outline of the rationale for the Convention and of the content, and applicability, of the article. Thereafter, the thesis offers a theoretical insight on equality of arms, identifying and exploring its value, contemporary international legal basis and constituent elements as per the Strasbourg definition. The insight on the latter recognises an underpinning relationship between the concept of equality of arms and Article 6(3), and introduces the key argument in the thesis: the European Court of Human Rights equates inequality of arms not with procedural inequality in itself, which would be a dignitarian interpretation, but with procedural inequality that gives rise to actual or, in some circumstances, inevitable prejudice. This argument predominates the subsequent survey of case-law in which the Court’s approach to procedural equality is demonstrated and assessed within the context of the right to challenge and call witness evidence (Article 6(3)(d)), the right to adequate time and facilities (Article 6(3)(b)) and the right to legal assistance (Article 6(3)(c)). Though the thesis is based on Article 6 decisions of the Court and, to a lesser extent, the former European Commission of Human Rights, references are made throughout to other national and international legal instruments and judgements whenever instructive.

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Olofsson, Sara. "Concurrent jurisdiction and parallel investigations and criminal proceedings in cases of foreign bribery : With focus on global settlement agreements." Thesis, Uppsala universitet, Juridiska institutionen, 2016. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-295160.

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Young, Shelley. "Exploring sexual exploitation of children from a criminal events perspective." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1997. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp01/MQ30994.pdf.

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Koegl, Christopher John. "High-risk antisocial children : predicting future criminal and health outcomes." Thesis, University of Cambridge, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.609498.

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Strydom, L. T. (Louie Talitha). "The experiences of children in middle-childhood regarding children's court procedures." Diss., University of Pretoria, 2013. http://hdl.handle.net/2263/41498.

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Current statistics show an alarming number of children entering the South African children’s court system annually. Yet little to no research has been conducted involving children who actually attend children’s court within the South African context, specifically since the promulgation of the new Children’s Act 38 of 2005. Consequently, very little knowledge regarding these children’s experiences and where the court system may be failing them exists. Statutory intervention with children in the middle-childhood phase is based on the premise that such intervention is in the best interest of the child. The process begins with the assignment of a social worker who is tasked with conducting a comprehensive investigation into the child’s life. Once this investigation has been finalised, the child and all relevant parties will attend children’s court where a final decision will be made regarding the child’s future care. The question arises how children experience children’s court procedures and whether there are areas where improvement would be warranted, especially since heavy caseloads often result in postponements which could exacerbate any negative experiences. With a view to gaining insight into middle-childhood children’s experience of children’s court procedures, the researcher conducted a qualitative, applied study using a collective case study design. Two literature studies form the knowledge base of the study, where the first explores the various areas of development in middle childhood and the second the children’s court process, with specific reference to the relevant legislation and polices underlying this process. In-depth interviews with nine children in the middle-childhood phase who had been exposed to children’s court procedures allowed the researcher to gather data from the children’s perspectives, rather than from the perspective of professionals as is the case in the majority of other studies. This empirical study contributed to the knowledge base by providing evidence that children are not by any means adequately prepared for children’s court and do not meaningfully participate in the process. Furthermore, empirical evidence revealed that children in middle childhood often associate negative emotions – notably fear, sadness and anger – with children’s court procedures. From this empirical study, it was concluded that social workers need to take responsibility for ensuring that children are comprehensively prepared for court procedures. Furthermore, steps need to be taken to enhance children’s level of participation throughout the entire process. Dissertation (MSW)--University of Pretoria, 2013. lmchunu2014 Social Work and Criminology unrestricted

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Besemer, Sytske. "Intergenerational transmission of criminal and violent behaviour." Thesis, University of Cambridge, 2012. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.610310.

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Mermoz, Vincent. "Les indices en procédure pénale." Thesis, Université Paris-Saclay (ComUE), 2019. http://www.theses.fr/2019SACLS094/document.

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Prenant jadis la forme d’un « signe de divinité » sous le règne des ordalies, l’indice désignerait dorénavant tout « événement, objets ou traces » amené à forger la conviction du juge. Les traits de l’indice se reconnaissent ainsi à la capacité qu’il possède de rendre possible le fait recherché. En ce sens, l’indice ne peut – aujourd’hui comme hier – indiquer directement la culpabilité, bien qu’il demeure – depuis toujours – en capacité de faire présumer l’imputabilité du fait prohibé à l’encontre des personnes suspectées. Les effets attachés à l’indice sont convoités de tout temps, sans pourtant que quiconque ne parvienne à les expliquer. L’indice rend possible, dispose d’un pouvoir spécifique et s’intègre parfaitement au sein du raisonnement dialectique intrinsèque à la matière juridique. Les juristes usent des présomptions fondées sur l’indice aux fins de compenser les lacunes inhérentes à la preuve en matière pénale. Indéniablement, l’indice occupe une place centrale dans le processus probatoire. Néanmoins, un constat de carence s’impose : les raisons pour lesquelles l’indice produit cet effet à la fois si caractéristique et par là même si commun, ne sont jamais explicitées. Sans doute trop prosaïque, l’indice s’est éclipsé à l’arrière-plan d’une preuve pénale devenue prépondérante par la gravité des conséquences juridiques qu’elle justifie. Un regard cette fois plus aiguisé aurait néanmoins pressenti l’enjeu universel d’une telle notion : depuis toujours, l’indice constitue le socle de la preuve. Fondements d’une réalité morcelée que la justice souhaite reconstituer, les indices jalonnent le cheminement procédural jusqu’à l’obtention d’une preuve. Les différentes phases de la procédure pénale s’organisent au rythme des indices interprétés, autant qu’ils forgent une conviction sur le déroulement des faits prohibés. L’intime conviction ancre de fait l’interprétation de l’indice au cœur de la preuve pénale et, avec elle, la perfectibilité d’une construction humaine au centre de la procédure pénale Once taking the form of a "sign of divinity" in the trial by ordeal, the clue would henceforth designate any "event, object or trace" that might forge the judge's conviction. The characteristics of the clue can thus be recognized by its ability to make the desired result possible. In this sense, the clue cannot – today as in the past – directly indicate guilt, although it has always been able to allow for the presumption that the prohibited fact is imputable to suspects. The effects of the clue have always been sought after, without anyone ever being able to explain them. The clue makes possible, has specific power and fits perfectly into the dialectical reasoning inherent in the legal field.Lawyers use clue-based presumptions to compensate for the deficiencies inherent in criminal evidence. Undeniably, the clue occupies a central place in the probationary process. Nevertheless, a finding of deficiency is inevitable: the reasons why the clue produces this effect, which is so characteristic and therefore so common, are never explained. Undoubtedly too prosaic, the clue has vanished into the background of criminal evidence that has become preponderant because of the seriousness of the legal consequences it justifies. A sharper look this time would nevertheless have foreshadowed the universal importance of such a notion: since time immemorial, the clue has been the foundation of proof. As the foundations of a fragmented reality that the justice system wishes to reconstruct, the clues mark out the procedural path until evidence is obtained. The various phases of criminal proceedings are organised according to the rhythm of the interpreted clues, as much as they forge a conviction about the conduct of the prohibited acts. The intimate conviction in fact anchors the interpretation of the clue at the heart of the criminal evidence and, with it, the perfectibility of a human construction at the centre of criminal procedure

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Kehrhahn, Ferdinand Heinrich Hermann. "Delictual accountability and criminal capacity of children : why the age difference?" Diss., University of Pretoria, 2018. http://hdl.handle.net/2263/65666.

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The doli/culpae incapax presumption, which in the Republic of South Africa sets a minimum age of accountability at seven - one of the lowest in the world, derives from Roman and Roman-Dutch law. Children between the ages of seven and fourteen (the age of puberty in Private Law) rebuttably were presumed to lack accountability under the common law. In practice the incapax presumption was too easily rebutted: the courts incorrectly applied the accountability test and the low minimum age of accountability was out of touch with international law and disregarded the scientific evidence in childhood development. It was on this premise that the Child Justice Act amended the minimum age of criminal capacity to ten, retaining a rebuttable doli incapax presumption for children between the ages of ten and fourteen, albeit, in the face of criticism. However there has been no parallel amendment to Private Law despite the fact that the same test for accountability applies across the spectrum and that the problems with accountability encountered in criminal law are manifest in Private Law. The incapax presumption until now terminates at the age of puberty in Private Law, which may be accounted as gender discrimination. The legislature ought to rectify these discrepancies without delay, to the effect that the provisions of the civil law apply mutatis mutandis to the CJA. But this change would not offer a long-term solution. South Africa is a signatory country to a number of international instruments, such as the UNCRC, the ACRWC and the Beijing Rules, all of which require a minimum age of accountability (at least in the criminal law) to be established and which must not be set too low. The UNCRC declares it cannot be below twelve years and encourages the adoption of a single minimum age of accountability as opposed to the doli incapax presumption that applies in the RSA. The Beijing Rules point out that there is a close relationship between criminal and delictual capacity in being accountable. It is not easy to determine an approach to accountability for children: development science demonstrates that it is around the age of fourteen only that a child’s frontal lobe (the executive seat of the brain) matures and areas of the brain associated with risk and impulse-management continue to develop into late adolescence. At age twelve a child develops hypothetico-deductive reasoning, at which stage they can conceptualize scenarios associated with possible actions. This means the child thinks abstractly and can consider consequences in relation to others for the first time. Children between eleven to thirteen years demonstrate markedly poor reasoning skills and consequential thinking, and they tend to seek the approval of their peers in a phase of sensation-seeking, impulsivity and to take increased risks. Following a fixed minimum-age approach to accountability creates legal certainty that is fast and easy to ascertain but it disregards the characteristics of the individual child. However if a child’s accountability is to be determined on a case-to-case basis it would require the use of a battery of expensive experts that may cause a delay in the execution of justice. There is no uniform method of testing for accountability and tests must be culturally adapted. In addition, one must be mindful of the autonomy of children and attend to the interest of the innocent victims who may come in contact with delinquent minors in establishing a minimum age of accountability. In the absence of statistics relating to the civil and criminal law it is difficult to make an informed recommendation and in the future these statistics should be obtained, but the most appropriate and cost-effective solution to the problems in relation to a child’s accountability appears to be to set a fixed minimum age. With reference to the evidence from childhood development the age of fourteen seems to be the most appropriate. Beyond the threshold age of fourteen any party may approach a court to allege and prove that nevertheless a child lacks accountability; nothing in the law precludes such a plea. Mini Dissertation (LLM)--University of Pretoria, 2018. Private Law LLM Unrestricted

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Al-Dusri, Fahad. "The effectiveness of forensic science service in the State of Kuwait in criminal investigations and proceedings : forensic science practice in Kuwait." Thesis, University of Exeter, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.288002.

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Katonene, Peter Mwesigwa. "An analysis of the difficulties related to victim participation before the International Criminal Court and the Extraordinary Chambers in the courts of Cambodia." Thesis, University of the Western Cape, 2012. http://hdl.handle.net/11394/4578.

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Magister Legum - LLM By any standard, victim participation is a relatively new phenomenon in international criminal law proceedings. Incredible advances have been made in the effort to end impunity for crimes against humanity, war crimes, genocide and, more recently, aggression. As a result, great strides have been made in ensuring the direct participation of victims of grave violations of human rights in court proceedings against their perpetrators. Prior to this, grave violations of human rights committed during conflicts or periods of mass violence were either largely ignored or even if action was taken, victims of the crimes hardly had a ‘say’ in the proceedings. With the advent of the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) a new dawn in the proceedings of international criminal law has emerged. The statutes that govern the ICC and ECCC have given a voice to victims in court proceeding buy ensuring victims participation. Despite these advances, scholars have criticized victim participation for being inconsistent in its application at the International Criminal Court. The criticism has come from scholars who have highlighted the unintended consequences of victim participation in court proceedings, arguing that their participation has resulted in the under- or misrepresentation of the actual experience of survivors of war, mass violence, or repression. These problems have arisen largely because the need to establish the guilt or innocence of the accused and to protect their due process rights, to abide by the rules of evidence and procedure, and to conserve judicial resources all cut against victim-witnesses' ability to tell their stories at these tribunals thereby resulting in a limited, and sometimes inaccurate, record of victims' experience. Background: The idea that victims should be allowed to participate in international criminal proceedings stems from a broader movement over the last several decades advocating for restorative, as opposed to merely retributive justice. Proponents of this restorative justice movement maintain that “justice should not only address traditional retributive justice, i.e., punishment of the guilty, but should also provide a measure of restorative justice by, inter alia, allowing victims to participate in the proceedings and by providing compensation to victims for their injuries.” In other words, advocates of this movement believe that criminal justice mechanisms should serve the interests of victims, in addition to punishing wrongdoers, and that the participation of victims in criminal proceedings is an integral part of serving victims' interests. Although the concept of victim participation in criminal proceedings is not easily defined, it has been described as victims “being in control, having a say, being listened to, or being treated with dignity and respect.” Human rights activists supported the concept for several reasons. Many believed, as did victim advocates more generally, that participation in criminal proceedings has a number of potential restorative benefits, including the promotion of victims' “healing and rehabilitation.” Indeed, in its recommendations to the Preparatory Committee on the Establishment of the International Criminal Court (Preparatory Committee I), “participation is significant not only to protecting the rights of the victim at various stages of the proceeding, but also to advancing the process of healing from trauma and degradation.” Some believed that victim participation would bring the court “closer to the persons who have suffered atrocities” and thus increase the likelihood that victims would be satisfied that justice was done. set of recommendations on the ICC elements of crimes and rules of procedure and evidence, noted “the right of victims to participate in the proceedings was included in the Rome Statute to ensure that the process is as respectful and transparent as possible so that justice can be seen to be done . . .” Finally, and significantly for the purpose of this study, human rights activists thought that victim participation might help address the under- or misrepresentation of the experiences of victims. Research questions and objectives of the study: The question this research paper poses is whether victim participation has increased the visibility of the actual lived experience of survivors in the context of war, mass violence, or repression? Under the Rome Statute, victims of the world's most serious crimes were given unprecedented rights to participate in proceedings before the court. Nearly a decade later, a similar scheme was established to allow victims to participate as civil parties in the proceedings before the Extraordinary Chambers in the Courts of Cambodia, created with UN support to prosecute atrocities committed by leaders of the Khmer Rouge during the period of 1975 to 1979. Although there are some significant differences in how the schemes work at the ICC and ECCC, both courts allow victims to participate in criminal proceedings independent of their role as witnesses for either the prosecution or defence. In other words, both have victim participation schemes intended to give victims a voice in the proceedings. Have these new participation schemes before the ICC and ECCC, in fact, helped in satisfying the victims? What impact have they had on the ability of survivors of war crimes, crimes against humanity and genocide to tell their story and to talk about their experiences in their own words? In particular, has victim participation enabled more of them to tell their stories than would have been possible under the more traditional adversarial model employed by the ad hoc tribunals such as the International Criminal Tribunal for Rwanda (ICTR). Has it allowed them to expand the historical record produced by these tribunals with narratives that would otherwise have been left out because of prosecutorial or judicial decisions not to prosecute violations committed against them? Has it enabled victims to communicate a richer, more nuanced picture of their experiences than they were able to in the context of prior tribunals? The aim is to explore whether these novel victim participation schemes, as implemented by the ICC and ECCC thus far, have actually allowed for greater recognition of victims' voices and experiences than was possible in proceedings before their predecessor tribunals. Have these schemes actually allowed victims to communicate a fuller and more nuanced picture of their experiences than they would have been able to do as victim-witnesses before the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR)? In other words, can the victim participation schemes at the ICC answer the call for increased visibility of the actual lived experience of survivors of human rights violations in the context of war, mass violence, or repression?.

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Kassan, Daksha Gaman. "How can the voice of the child be adequately heard in family law proceedings." Thesis, University of the Western Cape, 2004. http://etd.uwc.ac.za/index.php?module=etd&amp.

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Child participation and the right of children to be heard in matters that directly affect them, including in judicial and administrative matters, is a right that is entrenched in a number of international and regional instruments. This right is also entrenched in the South African Constitution that provides for children to be legally represented, at State expense, in civil proceedings affecting them and this includes divorce proceedings. However, this constitutional right is limited to those circumstances where a substantial injustice would otherwise result should such legal representation not be afforded. This thesis examined how the voices of children can be heard during divorce proceedings and makes recommendations as to when children involved in divorce proceedings should be granted legal representation at State expense.

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Wines, Anna. "Justice for Victims of Crimes Under the Rome Statute : Is Asylum-Seeking Victims’ Access to Participation in National andInternational Criminal Proceedings Ensured?" Thesis, Örebro universitet, Institutionen för juridik, psykologi och socialt arbete, 2017. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-61291.

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Canale, Laura Ann. "Prosecuting Children as Adults: How do Juvenile Court Judges Decide Who Should Face that Fate?" Youngstown State University / OhioLINK, 2010. http://rave.ohiolink.edu/etdc/view?acc_num=ysu1296415940.

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Yip, King-sum. "Victims of childhood sexual abuse and later criminal consequences." Hong Kong : University of Hong Kong, 2000. http://sunzi.lib.hku.hk/hkuto/record.jsp?B22030578.

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Chung, Ick-Joong. "Developmental trajectories of offending among poor and non-poor children /." Thesis, Connect to this title online; UW restricted, 2000. http://hdl.handle.net/1773/8143.

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Podcameni, Ana Paula. "The Contribution of the Special Court for Sierra Leone to the Law on Criminal Responsibility of Children in International Criminal Law." FIU Digital Commons, 2017. http://digitalcommons.fiu.edu/etd/3358.

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The revision of laws and the application of culpability to those most responsible for serious humanitarian law violations has functioned as a necessary condition for achieving peace in most post-war societies. However, there is an embarrassing silence when it comes to addressing the question of whether children are to be subjected to the principle of individual criminal responsibility. As morally controversial as it is, the question remains fundamental. Unfortunately, children have been involved in armed conflicts, as victims primarily, but not exclusively. Children are among those accused of having committed brutal and terrible international crimes in times of armed conflict when part of armed groups or armed forces. And with no consensus within the international community regarding their status within International Criminal Law — no established law within International Law and no consistent practice among states on the issue— the problem of criminal accountability of children accused of international crimes remains unanswered. The current work conducts a legal positivist analysis with the focus of investigating the contribution of the Special Court for Sierra Leone to the current debate on children’s criminal responsibility under International Criminal Law. Among significant contributions, the Statute of the Special Court brought one interesting innovation to the debate on children’s potential criminal responsibility. Juveniles starting at age fifteen would be considered viable for prosecution if among those most responsible for the Special Court, as established in Article 7.1. The above innovation translates into two essential contributions to the debate on children criminal responsibility for international crimes: first the Special Court was the first international court to elect a minimum age of criminal responsibility (MACR) at age fifteen to be operational within the scope of the court. Secondly, and equally important, the court reflected the position that children, after the stipulated MACR would be considered, at least a priori, viable subjects of the international criminal system.

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Braga, Hans Robert Dalbello. "O direito fundamental à razoável duração do processo penal e a prescrição da pretensão punitiva." Universidade Nove de Julho, 2015. http://bibliotecadigital.uninove.br/handle/tede/1423.

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Submitted by Nadir Basilio (nadirsb@uninove.br) on 2016-06-14T13:44:26Z No. of bitstreams: 1 Hans Robert Dalbello Braga.pdf: 1326586 bytes, checksum: 09b7a78b27fa340e699b2fd86688a90a (MD5) Made available in DSpace on 2016-06-14T13:44:26Z (GMT). No. of bitstreams: 1 Hans Robert Dalbello Braga.pdf: 1326586 bytes, checksum: 09b7a78b27fa340e699b2fd86688a90a (MD5) Previous issue date: 2015-02-26 The research Examines the fundamental right to reasonable duration of the criminal process under the Article 5, paragraph LXXVIII of the Federal Constitution, by the text of the Constitutional Amendment nº 45/2004, with the aim of (re) think their legal interpretation, of the punitive preintention prescription. The study covers the analysis of reasonable duration of the criminal process and its underlying approach to the institution of criminal prescription. To investigate the possibility of the fit of both theories between the two concepts. At first are considered the conceptions of time (absolute and relative) and their intimate relationships with the law, more specifically with the criminal procedural law, considering that all procedural acts are governed by lapse of time. In a second moment is directly addressed the fundamental right to duration of the criminal process and its current hermeneutics inaccuracy. Thus, it held a brief analysis of the doctrine of the fixed term and also the doctrine of non-term as well as the legal consequences and solutions proposed by the academy in the case of non-observance of reasonable time. The third moment it is analised the criminal prescription and the theories that give it grounds for the legitimacy, as well as the nefarious institution of criminal imprescriptibility. At the end it is examined the possibility of the punitive preintention to limitade the period of reasonable duration of the criminal process, taking into perspective the concepts of time previously developed. The research employed the deductive method and the research through the literature. Examina-se o direito fundamental à razoável duração do processo penal previsto no artigo 5º, inciso LXXVIII da Constituição Federal, com a redação dada pela Emenda Constitucional nº 45/2004, com o escopo de (re)pensar sua interpretação jurídica, tendo em vista o instituto da prescrição da pretensão punitiva. O estudo percorre a análise da razoável duração do processo penal e sua latente aproximação com o instituto da prescrição penal. Para tanto investiga a possibilidade de adequação teórica entre os dois conceitos. Num primeiro momento são consideradas as concepções de tempo (absoluto e relativo) e, as suas intimas relações com o direito, mais especificamente com o direito processual penal, haja vista que todos os atos processuais são regidos pelo decurso do tempo. Num segundo momento é abordado diretamente o direito fundamental à razoável duração do processo penal e sua atual imprecisão hermenêutica. Assim, é realizada uma breve análise a respeito da doutrina do prazo fixo e, também da doutrina do não-prazo, bem como das soluções e consequências jurídicas propostas pela academia no caso de não observância do prazo razoável. Num terceiro momento é abordada a prescrição penal e as teorias que lhe fornecem fundamento de validade, assim como o famigerado instituto da imprescritibilidade penal. Ao final examina-se a possibilidade do prazo da prescrição da pretensão punitiva funcionar como limite para a duração razoável do processo penal, tendo em perspectiva as concepções de tempo desenvolvidas anteriormente. A pesquisa realizada utiliza-se do método dedutivo e como técnica de pesquisa a bibliográfica.

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Van, Niekerk Hester Aletta. "Determining the competency of children with developmental delays to testify in criminal trials." Thesis, Rhodes University, 2015. http://hdl.handle.net/10962/d1017878.

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In South Africa children are required to testify under oath or admonition. The shortcomings of the competency test are of particular relevance to children with developmental disabilities, since courts are not equipped to adequately assess the competency of these children to give evidence. One component of testimonial competency, namely the understanding of the concepts truth and lies, is overemphasised and is examined with questions that are developmentally inappropriate for child witnesses in general. For children with cognitive disabilities, such questions create barriers for participation in the truth-seeking process. Consequently, convictions have been set aside on appeal owing to procedural irregularities found in the implementation of this test. In the literature review on testimonial competency, attention was given to restrictions that specific developmental disabilities impose on the perceptual, cognitive, communication and moral development of children. Two of four components – narrative ability and moral capacity – were studied in a sample of 184 children in middle childhood. Participants’ ability to give coherent and detailed accounts of events, their understanding of the concepts truth, lies, promises and the oath, and the Lyon and Saywitz oath-taking competency test, were investigated. Quantitative and qualitative methods were used for data analysis. Three groups were identified: those children with very limited, average or full testimonial competency. Their capacities were found to be related to maturation of cognitive functions and level of intellectual functioning. Participants were better able to demonstrate their understanding of truth and falsity by responding to the oathtaking test than giving verbal descriptions of these concepts. Whereas 1 percent of participants had a conceptual understanding of an oath, 15 percent understood the concept of a promise. Syncretism and confabulation compromised the narrative accounts of a substantial number of participants. Syncretism relates to immature narrative ability: correct details are combined in an illogical fashion. Confabulation refers to filling memory gaps with fabricated information. Guidelines on the competency determination of children with developmental disabilities were compiled. It is suggested that the competency examination be replaced by a formal, pre-trial competency assessment. The court should also receive expert evidence on how to facilitate meaningful participation when a child with sufficient testimonial competence is the witness.

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Saunders, Marilyn C. "Adolescent girls testifying in a criminal court in cases of sexual abuse or rape a narrative analysis /." Pretoria : [s.n.], 2007. http://upetd.up.ac.za/thesis/available/etd-04292008-110951.

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Araújo, Maurício de Carvalho. "Soberania e princípios do processo penal em face do tribunal penal internacional." Pontifícia Universidade Católica de São Paulo, 2005. https://tede2.pucsp.br/handle/handle/6955.

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Made available in DSpace on 2016-04-26T20:24:05Z (GMT). No. of bitstreams: 1 mauricioaraujo.pdf: 436422 bytes, checksum: 6d1f2ed853ea14c4d94222c5a74fe3ed (MD5) Previous issue date: 2005-04-20 The objective of this paper is to assess the constitutional bases that allowed Brazil to subscribe to the International Criminal Court and the resulting obligation to respect its jurisdiction and to provide judicial cooperation. Therefore this paper discusses the concept of State sovereignty, within the context of national and international law and its historical evolution, from the beginning of international law and the sovereign States up until the institutionalization of an international legal order with the enforcement of an international jus cogens, based on the pacific resolution of conflicts and on the universalization of human rights. The creation of the International Criminal Court is discussed from the principles of complementarity and non-intervention. This study analyses the compatibility between the International Criminal Court and the current concept of sovereignty, the system of the United States Organization, the treaties on human rights and the constitutional principles of criminal proceedings present in the Brazilian Constitution of 1988. In order to evaluate the compatibility among these systems, it was necessary to establish a comparison between the principles of criminal proceedings in the Federal Constitution of 1988, especially the due process of law and the principle of a fair trial, present in international treaties on human rights and in the international military courts of Nuremberg and Tokyo, in the ad hoc courts of the United Nations for the former Yugoslavia and Rwanda and in the International Criminal Court from the Statute of Rome. Finally, this paper analyses the principles of criminal proceedings in the International Criminal Court, as in the wording of the Statute of Rome, comparing them with the principles of a fair trial as determined by international treaties on human rights, which are a true international jus cogens. Este trabalho tem como objetivo verificar os fundamentos constitucionais que permitiram ao Brasil aderir ao Tribunal Penal Internacional, a conseqüente obrigação de respeitar a sua jurisdição e de oferecer cooperação judicial. Para tanto, foi abordado o conceito de soberania do Estado em face do direito interno e internacional, sua evolução histórica, desde a origem do direito internacional e dos Estados soberanos até a institucionalização de uma ordem jurídica internacional, com a imposição de uma norma cogente internacional, ou jus cogens internacional, baseada na solução pacífica dos conflitos e na universalização dos Direitos Humanos. A criação do Tribunal Penal Internacional é abordada tendo em vista o princípio da complementaridade e da não intervenção. É realizada uma análise da compatibilidade do Tribunal Penal Internacional com o atual conceito de soberania, com o sistema da Organização das Nações Unidas, com os tratados de Direitos Humanos e com os princípios constitucionais do processo penal na Constituição brasileira. Para a verificação da compatibilidade entre os sistemas, foi necessário realizar uma comparação entre os princípios do processo penal da Constituição Federal de 1988, mormente o do devido processo legal, com o princípio do julgamento justo (fair trial), constante dos tratados internacionais de Direitos Humanos e nos tribunais militares de Nuremberg e de Tóquio, nos tribunais ad hoc da Organização das Nações Unidas para ex-Yugoslávia e Ruanda e no Tribunal Penal Internacional do Estatuto de Roma. Por fim, foram analisados os princípios do processo penal do Tribunal Penal Internacional, contemplados na redação do Estatuto de Roma, comparando-os com os princípios do processo justo previsto nos tratados internacionais de Direitos Humanos, que se constitui em verdadeiro jus cogens internacional.

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Lin, Tzung Chih, and 林宗志. "The Research of Criminal Proceedings Procedure." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/99048451814189656996.

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博士 輔仁大學 法律學系 102 This dissertation examines the asset forfeiture systems and legal practices in Taiwan. By addressing the deficiency of the current statutes and the difficulties encountered in legal practices, this dissertation discusses the insufficiency of the mechanism of the preserve process regarding the proceeds of crime, the lack of protection of third party’s rights, and the vacuum of the non-conviction based forfeiture regime. Following the trend of international treaties, this dissertation outlines the spirit and the purpose of the confiscation and the preserve of the proceeds of crime through a comparative legal prospective. From the perspective of constitutional law, this dissertation further examines the procedural safeguards of substantive fundamental rights. Under the current structure of criminal procedure law, this dissertation proposes a new system regarding the preserve of the proceeds of crime and the protection mechanism of third party’s legitimate rights, and the adoption of the non-conviction based forfeiture system. In conclusion, this dissertation provides a legislative reform proposal in reply to the insufficiency of the current asset forfeiture system in Taiwan.

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Shih, Yin-Chien, and 施吟蒨. "The Lawful Judge: In the Criminal Proceedings." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/87757079170459874938.

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CHING-KUO, CHANG, and 張清國. "The Study on DNA Evidence in Criminal Proceedings." Thesis, 2010. http://ndltd.ncl.edu.tw/handle/08308870412862225530.

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碩士 國防大學管理學院 法律學系 98 With the development and progress of biotechnology, DNA evidence has become increasingly sophisticated identification techniques, DNA identification has been used on homicide, violent crime, sexual abuse, sex trade, paternity testing, illegal adoption, immigration and error to identify the defendants in criminal and civil cases etc, the use of a wide range. However, DNA evidence on the use, not error-free production, there are still " the risk of miscarriage of justice," including: 1, DNA evidence of high technical and regulatory requirements, itself prone to error. 2, The subject of proceedings too easily lead to blind faith in scientific evidence. 3, As judge and the prosecution, defense both for science and technology expertise and the lack of scientific evidence, weakening the review judge. Of course, in addition to the risk of miscarriage of justice may be hidden, there are: "may lead to violations of human rights and violation of ethics requirements," and "defense weapons seized may exacerbate the imbalance of equality." The purpose of this paper is divided into the mining process and the application of courts. First, the mining process: to review the procedures for collecting DNA samples and the existing mining process law whether is adequate, and then put forward proposals amending the law;Second, the application of courts: use the appraisal report to replace the expert appearing in court, whether contradict the direct trial and infringe the right of confrontation? What is the solution or way out? How to correctly assess the credibility of DNA appraisal report？ Finally, obtain conclusion and recommendations.

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劉秋伶. "The admissibility of digital evidence in criminal proceedings." Thesis, 2010. http://ndltd.ncl.edu.tw/handle/21092783964020161463.

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Sorge, Geoff B. "Fetal Alcohol Spectrum Disorder persons in Canadian criminal proceedings /." 2006. http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_dat=xri:pqdiss&rft_val_fmt=info:ofi/fmt:kev:mtx:dissertation&rft_dat=xri:pqdiss:MR29619.

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Thesis (M.A.)--York University, 2006. Graduate Programme in Psychology. Typescript. Includes bibliographical references (leaves41-48). Also available on the Internet. MODE OF ACCESS via web browser by entering the following URL: http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_dat=xri:pqdiss&rft_val_fmt=info:ofi/fmt:kev:mtx:dissertation&rft_dat=xri:pqdiss:MR29619

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Yu-HsuanHsiao and 蕭宇軒. "The Application of Cultural Defenses in Taiwan’s Criminal Proceedings." Thesis, 2011. http://ndltd.ncl.edu.tw/handle/05927573027609248589.

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碩士 國立成功大學 法律學系 99 “Cultural Defense” is not a formal legal term wherever in Taiwan or the United States. It is a strategy that defendants use in attempts to excuse criminal behavior or to mitigate culpability based on his behavior was affected by cultural practices. In pluralistic societies, culture conflicts are inevitable situations. It is the problem that must be solved when the laws of majority collide with the cultural norms of minority. Cultural defense mainly deal with this kind of issues. In my opinion, according to “enculturation” and “multiculturalism”, criminal legal system in Taiwan must accept the conception of cultural defense. To recognize the cultural defense suggests the criminal legal system in Taiwan is willing to adopt the argument of multiculturalism, and obey the rule of constitution about respecting multi-culture. It would be the best way to accomplish the idea of multiculturalism and a big progress for the oppression of minority in criminal system if ethnic minority were permitted to claim cultural defense in criminal proceedings. Moreover, it reminds most people of the fact that they treat things by prejudice. In criminal law, minority’s conducts which comply with cultural practices have to be regarded as justification. By viewing those conducts, the legal system could have opportunity to comprehend other cultural values. Consequently, criminal law should officially recognize the cultural defense is a new extra-statutory justification. Applying cultural evidences in criminal procedures is another crucial issue. In Taiwan, the code of criminal procedure provides only for courts and prosecutors to choose expert witness in trial. However, the defendants should have rights to choose their own expert witness or participates in the choosing procedure on the basis of improved adversary procedure. Furthermore, I argue that the scientific evidences do not have admissibility in principle, only when the scientific evidences possess “relevance” and “reliability”. If the cultural defense was regarded as an extra-statutory justification, the cultural background and cultural customs would be relevant to criminal behavior, which makes cultural evidences possessed “relevance”. As for the determination of reliability, accumulation of judgments in judicial system and practices would conclude the standard of reliability. The more reliable elements cultural evidences possess of, the bigger chance for them to get into court.

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TSAI, NI-TING, and 蔡妮庭. "The Study on Revocation of Extraordinary Appeal in Criminal Proceedings." Thesis, 2017. http://ndltd.ncl.edu.tw/handle/79w8p5.

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碩士 南臺科技大學 財經法律研究所 105 Taiwan’s extraordinary appeal system was designed to correct the mistakes made in the finalized and binding judgments, to improve judgment quality, and to provide tangible relief for the individuals involved in the aforesaid finalized and binding judgments. Up until today, however, extraordinary appeal has served the same purpose as the appeal against the judgments made by the third instance. In reality, there is no difference between extraordinary appeal and third instance, except that the law requires prosecutor general to serve as petitioner in the extraordinary appeal. This study investigated the reasons behind the extraordinary appeals being revoked by Supreme Court in 2011 through 2016 with emphasis on the types of extraordinary appeals revoked by Supreme Court in 2016. Over the past years, most extraordinary appeals were filed on the ground that the finalized and binding judgments had violated laws by declaring recidivists’ repeated violation against the laws. According to the resolutions passed by the 6th Criminal Court Meeting of Supreme Court in 2015, however, the standpoint for “completion of execution” with regard to recidivists’ repeated violation against the laws has been changed from “enforceable penalty” to “declared penalty”, and with the revised standpoint, fewer extraordinary appeals have been filed ever since. Now, the reasons behind the revocation of extraordinary appeals have been understood and accepted. This paper presented tangible recommendations to the courts and prosecutors, inviting their attention to the recommendations presented by this study when they prepare judgments and carry out their duties, thus minimizing the cases of extraordinary appeals.

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Chang, Chih-Ping, and 張之萍. "The Defendant’s Right of Access to the File in Criminal Proceedings." Thesis, 2007. http://ndltd.ncl.edu.tw/handle/64386071711271019803.

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碩士 國立臺灣大學 法律學研究所 95 It is very important to the defendant that he has the right to access the file in criminal proceedings. But, because the domestic law is too simple, we still need to further discuss about the content of this right：subject, scope, limitation and how to appeal. This thesis tries to talk about the handle mode of access to the file from the practices in the European Convention of Human Rights and the German norms, and hopes to be beneficial to legislators and judicial practices in our country. The first part of this paper is the profile of the domestic theories and practices and put the questions forward. Second, it introduces the European Convention of Human Rights and the practices of the European Court of Human Rights (the Court); moreover, it classifies the cases and sets up the handle mode of the Court. Third, it also introduces norms and practices in Germany, and observes the interaction between the Court and German practices. It sets up the handle mode of German law by connecting with case law of the Court. Then, it draws a conclusion to two handle modes, answers domestic questions and tries to build a domestic handle mode (new mode). It also discusses conflicts between new mode and domestic practices. Finally, it summaries two handle modes and the interaction between them, and proposes the suggestion about the defendant’s right of access to the file. After all, we don’t know what will be happened, but what we can do is to utilize existing information and make a best decision. The information is so important, this right is too. This thesis has been added new Article 33 of criminal procedure law (2007.07.04) and Judicial Yuan Interpretation No. 627 (2007.06.15).

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Lin, Yu-Hung, and 林禹宏. "Aboriginal Defendant''s Difficulties and Solutions in Criminal Proceedings." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/33544626561510055014.

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碩士 國立臺灣大學 法律學研究所 102 Aborigines have been living on this island for over 6,000 years. In the context of their long history, Aborigines have their own unique traditions and customs. However, these aboriginal traditions and cultures, are not only incompatible with the legal norms, but also often cause serious conflicts. Accordingly, when the "Tribal Customs" collides with "Criminal Penalties", it also pulls the trigger of judicial war between tribes and state. In this battle, there are many adverse factors in the Aboriginal Defendants'' criminal proceedings. For example, the lack of legal resources and professional judges, aborigines'' cultural and linguistic barriers, and the improper conduct of trial mode, etc. These factors make Aboriginal Defendants retreat in the battle, and also make them trapped in quagmire. Therefore, this article will explore many problems faced by Aboriginal Defendants from the beginning of criminal investigation to the end of trial, such as Judicial Interpreter issues, Defense in Investigative Procedure, Mandatory Defense of Trial, and the implementation of Aboriginal Dedicated Court. And then attempt to put forward the corresponding solutions. Besides, one of the most important issues for Aboriginal Defendants, is whether judges or prosecutors have "empathy" to deal with every Aboriginal Defendant''s case. This article believe, legislators should profoundly consider the judicial interests of Aboriginal Defendants, and make several relevant amendments or decriminalization clauses. Moreover, the civilian law enforcers'' decisions should be made based on tribal perspectives, and supplemented by their legal profession. So as to implement the aim of Aboriginal Basic Law and Additional Articles of the Constitution to protect the multiculturalism, and to achieve the purpose of returning the rights to "Aborigine".

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TSENG, YANG-LING, and 曾揚嶺. "The Study of Third-Party Claims in Criminal Assets Forfeiture Proceedings." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/67629101494177566105.

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碩士 國立臺北大學 法律學系一般生組 103 Because of the object of punishment is limited in the defendant, most of the criminals in property crime, such as economic crimes, financial crimes and corruption, tries to hide their property and benefit by transferring to a third party in and outside of the country. Seizing and confiscating proceeds of crime becomes more and more difficult to judicial authority since proceeds of crime have pasted to the “innocent third-party” who seems like to obtain the asset legally. Therefore, international conventions and legislators nationwide, such as Germany, Japan and United States, enact forfeiture laws to allow the seizure and confiscation of third-party’s property in criminal offense. In Taiwan, Money Laundering Control Act, Act Governing Food Safety and Sanitation and Draft Amendment to the Criminal Code allow the subject to forfeiture can be the property belonged to a person other than the defendant, thereby aiming to deprive criminal offenders of proceeds of crime completely. Hence, in addition to extending the subject to asset forfeiture in criminal justice, fighting of property crime, seizing and confiscating proceeds of crime and returning forfeited assets to crime victims, the demands of criminal justice must be balanced better with the right of property of innocent third parties. In order to follow due process and to protect basic human rights, it is necessary to construct the system of ”Third-Party Claims in criminal Assets Forfeiture Proceedings” in harmony with the principle of forfeiture in Taiwan. The methodologies adopted in this thesis are literature review, case study and comparative research method. Chapter1: The Introduction. Chapter2: The Discussion of confiscation of third-party’s property in Taiwan. Chapter3: The Observation of foreign legislative examples on confiscation of third-party’s property. Chapter4: The Proposal of amending “Third-Party Claims in Criminal Assets Forfeiture Proceedings” in Taiwan. Chapter5: Conclusion and Recommendation. In conclusion, the study suggests amending the code of criminal procedure regarding to the system of “Third-Party Claims in Criminal Assets Forfeiture proceedings”, including due process and the proceeding of remedies, and thereby to conform to procedural justice. Keywords: forfeiture, proceeds of crime, third-party’s property, third-party claims, due process, procedural protections.

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Badenhorst, Charmain. "Criminal capacity of children." Thesis, 2006. http://hdl.handle.net/10500/897.

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In this project the various International Instruments, namely the United Nations Convention of the Rights of the Child; 1989, the Beijing Rules and the African Charter, relating to the guidelines of the establishment of a minimum age for criminal capacity are furnished. The developments regarding the issue of criminal capacity since 1998 in Australia, the United Kingdom and Hong Kong are highlighted. The historical position and the current position in South African law with regard to the issue of criminal capacity are discussed as well as the implementation thereof by our courts. The statistics on children under 14 years in prison over the past five years are furnished. The introduction of the Child Justice Bill, 2002 by Parliament and the deliberations following the introduction, focusing on the issue of criminal capacity is highlighted. The proposed provisions of the Child Justice Bill, 49 of 2002 codifying the present common law presumptions and the raising of the minimum age for criminal capacity are furnished. The evaluation of criminal capacity and the important factors to be assessed are discussed as provided for in the Child Justice Bill, 49 of 2002. A practical illustration of a case where the criminal capacity of a child offender was considered by the court is, discussed and other important developmental factors that should also be taken into consideration by the court are identified and discussed. Important issues relating to criminal capacity, namely, time and number of assessments, testimonial competency of the child offender, evolving capacities and age determination are discussed and possible problems identified and some solutions offered. The research included an 11-question questionnaire to various professionals working in field of child justice regarding the issue of criminal capacity and the evaluation thereof. Criminal and Procedural law D.Litt. et Phil. (Criminology)

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Dissertations / Theses on the topic 'Children in criminal proceedings'

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