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Durham, Helen. "Increasing the effectiveness of the International Criminal Court : the contribution of non-state actors /." Connect to thesis, 1999. http://eprints.unimelb.edu.au/archive/00001392.
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Stüber, Michael. "Die Entwicklung des Prinzips der Unmittelbarkeit im deutschen Strafverfahren /." Frankfurt am Main [u.a.] : Lang, 2005. http://www.gbv.de/dms/sbb-berlin/472669885.pdf.
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Nash, Susan. "Tipping the scales : the reduction of procedural protection for the accused in inter-jurisdictional cases." Thesis, University of Aberdeen, 2000. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=230623.
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Within mature criminal justice systems there exists a range of procedural mechanisms designed to provide the accused with protection from unlawful and unfair treatment by prosecuting authorities. Whilst some systems insist on judicial involvement in the investigation of crime, others grant the court discretionary powers to reject evidence or stay proceedings. Complex evidentiary rules flourish in common law systems, whereas civil law systems abide by the principle of the free evaluation of evidence. Judicial responses to the reception of irregularly obtained evidence vary, even within systems sharing a common tradition. Given the strong utilitarian tradition of the English and Scottish courts, judges tend to reason pragmatically rather than articulate principles. Theory and principle relevant to the exclusionary discretion are considered in Chapter 2. The extent of the general powers given to the prosecuting authorities in England and Scotland to gather real evidence, and the range of safeguards designed to protect the rights of suspects are examined in detail in Chapter 3. The fourth Chapter considers the admissibility of irregularly obtained evidence in both jurisdictions and questions whether, and to what extent, the procedural rules permit the court to balance effectively countervailing public interest considerations. The rules operating in France and Germany are examined in outline and used as comparative examples. Police investigative powers do not generally extend beyond the jurisdiction of the national court, thus prosecuting authorities requiring access to evidence located abroad seek assistance through operational police co-operation and mutual legal assistance procedures. These mechanisms are examined in Chapter 5, and consideration given to the differing approaches taken by the English and Scottish courts to the admissibility of regularly and irregularly obtained foreign evidence. The assumption is challenged that evidence obtained abroad can be assessed in the same manner as evidence obtained in breach of national rules without disturbing the fairness of the proceedings. Incorporation of the European Convention on Human Rights has potential for changing the court's response to questions of admissibility and is considered in Chapter 6. This thesis concludes with a critical analysis of the problems identified, and questions whether criminal justice systems can achieve a fair balance without understanding the complex interplay between procedural rules. Only by understanding the function of the procedural rule within each system can the risk of reducing the procedural protection to the accused be avoided. I have endeavoured to state the law as it stood at the end of July 2000.
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Mellifont, Kerri Anne. "The derivative imperative : how should Australian criminal trial courts treat evidence deriving from illegally or improperly obtained evidence?" Queensland University of Technology, 2007. http://eprints.qut.edu.au/16388/.
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How should Australian criminal trial courts treat evidence deriving from illegally or improperly obtained evidence? The fact that derivative evidence gives rise to factors distinct from primary evidence makes it deserving of an examination of its peculiarities. In doing so, the assumption may be put aside that derivative evidence falls wholly within the established general discourse of illegally or improperly obtained evidence. Just as the judicial response to primary evidence must be intellectually rigorous, disciplined and principled, so must be the response to derivative evidence. As such, a principled analysis of how Australian courts should approach derivative evidence can significantly contribute to the discourse on the law with respect to the exclusion of illegally or improperly obtained evidence. This thesis provides that principled analysis by arguing that the principles which underpin and inform the discretionary exclusionary frameworks within Australia require an approach which is consistent as between illegally obtained derivative evidence and illegally obtained primary evidence.
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Taylor, Christopher William. "Detectives and disclosure : an analysis of the implementation of the disclosure provisions of the Criminal Procedure and Investigations Act 1996 by CID officers, based on a study of operational procedure in two police force areas." Thesis, Durham University, 2002. http://etheses.dur.ac.uk/4156/.
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The Criminal Procedure and Investigations Act 1996 introduced new procedures for the handling of unused material in criminal cases. Defective treatment of such material has been a central aspect of many of the most notorious miscarriages of justice of the past 25 years. This work seeks to present an overview of the first three years of disclosure under the new provisions, by reference to a study of disclosure practice within two police force areas. In addition, by examining the process of investigation and file preparation, it is possible to identify the operational and cultural factors within the police service which continue to impede the effective treatment of unused material. Central to this process are the working practices of the CID and the way in which they interface with other elements of the criminal justice system. This thesis presents an ethnographic analysis of the reasoning and strategies employed by those involved in the process of disclosure, in an attempt to highlight weaknesses in the current regime for the handling of unused material. Having identified those aspects of police working practice which militate against the effective operation of the 1996 Act, the study concludes with consideration of the most recent Government proposals in relation to disclosure in order to assess their likely success.
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Vaz, Denise Provasi. "Provas digitais no processo penal: formulação do conceito, definição das características e sistematização do procedimento probatório." Universidade de São Paulo, 2012. http://www.teses.usp.br/teses/disponiveis/2/2137/tde-28052013-153123/.
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O desenvolvimento de novas tecnologias e a formação da sociedade da informação, a partir do Século XX, acarretaram novos hábitos pessoais e sociais e transformações no processamento e arquivamento das informações. O tratamento e o registro de fatos e ideias passaram a ser feitos de maneira digital, com o uso de dispositivos eletrônicos que operam no sistema binário. Esse novo panorama trouxe diversos reflexos para o processo penal, principalmente relacionados à prova. Entretanto, a legislação e a jurisprudência não acompanharam o avanço tecnológico, abrindo-se um vazio normativo em matéria de procedimento probatório. Por essa razão, faz-se imprescindível a análise dos aspectos técnicos e sociais em face da teoria da prova, para se buscar conceituar o resultado do desenvolvimento tecnológico, ou seja, a prova digital, com a verificação de sua natureza jurídica e do procedimento probatório adequado para sua utilização no processo penal brasileiro. Assim, o objetivo desta tese é aferir o conceito e a natureza jurídica da prova digital e demonstrar que ela constitui espécie própria de fonte de prova, que, embora assemelhada ao documento, apresenta características peculiares, que demandam regulamentação específica de seu procedimento probatório. A partir do delineamento do conceito, da classificação e da caracterização da prova digital, examinam-se os meios de obtenção de prova e meios de prova adequados a essa fonte sui generis, observando a suficiência e a propriedade das normas existentes no ordenamento atual. Ao final, destacam-se os principais aspectos que carecem de regulação, propondo-se estrutura ainda rudimentar de normas para a matériaThe development of new technologies and the consequent rise of the Information Society, starting in the twentieth century, led to new personal and social habits and a revolution in the processing and storage of information. In this context, treatment and record of facts and ideas turned to be made digitally with the use of electronic devices operating in the binary system. This new situation has brought several consequences for the criminal proceedings, notably with respect to the evidence. However, legislation and case law have not kept up with the pace of technological change, opening up a normative vacuum in the field of evidence. For this reason, it is essential to analyze the technical and social aspects of this new scenario state of evidence theory in the wake of these changes, so as to conceptualize and establish a proper legal and evidentiary procedure for the verification of digital evidence in the criminal justice process. In assessing the concept and the legal nature of digital evidence, this thesis demonstrates that digital evidence is fundamentally a distinct kind of evidence, which, while similar to the document, nevertheless presents unique characteristics that require specific regulation of its evidentiary procedure. From the definition of the concept, classification and characterization of digital evidence, this thesis examines the proper methods of obtaining and producing digital evidence in a manner consistent with its unique nature, while at the same time questioning the sufficiency and adequacy of the rules in the current law regarding such methods. Finally, this thesis proposes a rudimentary framework of rules for this field.
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Laing, Samantha Robyn. "The constitutionality of the Criminal Law (Forensic Procedures) Amendment Act." Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/18619.
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The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 came into operation in January 2015. The Act makes provision for the establishment of a National Forensic DNA Database, which will store DNA profiles of certain groups of people. This research will discuss the establishment of a forensic DNA database in South Africa. The legal position in the United States of America will also be considered, with specific reference to the states of Maryland, California and New York. This research will focus predominantly on the collection of DNA samples and profiles from arrestees. When such samples are allowed to be collected, what offences warrant the collection of such samples and the period within which the DNA samples need to be destroyed. Collecting DNA samples and profiles from certain persons could potentially violate particular rights in the Bill of Rights. The rights to privacy, bodily integrity, equality and human dignity are discussed as well as the approach the courts have adopted in dealing with such infringements or possible infringements. This research furthermore deals with the historical developments of DNA evidence and contains a brief discussion on expert evidence. This research also deals with the evidential value of DNA evidence, as well as possible problems faced by prosecutors and defence attorneys when dealing with DNA evidence. The Criminal Law (Forensic Procedures) Amendment Act is still very new, and therefore, there is not yet much case law in South Africa specifically dealing with the sections of the said Act. This research makes submissions and recommendations regarding certain sections of the Act, as well as the overall constitutionality of the Act.
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Buisman, Caroline Madeline. "Ascertainment of the truth in international criminal justice." Thesis, Brunel University, 2012. http://bura.brunel.ac.uk/handle/2438/6555.
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This thesis seeks to answer the principal question as to whether international criminal justice systems can serve as adequate truth-ascertaining forums. In doing so, it reviews the practice of three international criminal justice systems: the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC). It is not the purpose of this research to review the black letter law adopted and applied by these international tribunals and court, but rather to review the implementation of the legal principles in practice. It is a socio-legal research project which focuses on the practice of the tribunals and court. It discusses socio-legal, institutional and political issues relating to the ascertainment of the truth in international criminal justice. In addition, it examines the gaps between the theory and practice of ascertaining the truth in the ICTY, ICTR and ICC. It does so principally by exploring the roles of the parties, participants and judges in ascertaining the truth. This includes the obstacles they face in doing so and the responses given, if any, to accommodate these difficulties. Challenges include the politicised climate of most post-conflict societies, the remoteness of the crime base areas from the seat of the Court, the lack of enforcement mechanisms and reliance on State cooperation, as well as the unfamiliarities with the cultural and linguistic features of the affected communities. This thesis reveals that these difficulties are not the principal cause of truth-searching impediments. Indeed, it is asserted that the ascertainment of the truth can be fair and effective notwithstanding these difficulties. It also demonstrates that truth-ascertaining impediments are mainly caused by failures to adequately investigate the crimes and relevant evidence. At the ICTY, investigations have been carried out in the most efficient and fair manner possible under the circumstances. By contrast, the ICTR and ICC investigations are far from adequate and should be improved. The Prosecution should make more efforts to obtain the best evidence available. It further concludes that international justice systems have set their goals too highly. Instead of seeking to meet objectives such as reconciliation, peace and security, they should restrict their focus to the question as to whether the guilt of a particular accused has been established in respect of the crimes charged.
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何駿豪. "論澳門刑事訴訟中的自由心證原則 = On the evidence evaluaion principle in Macau Criminal Procedure Law." Thesis, University of Macau, 2009. http://umaclib3.umac.mo/record=b2129881.
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Arican, Mehmet. "Police detention : a comparative analysis of the effects of the Police and Criminal Evidence Act, 1984 and the Turkish Procedure Act." Thesis, University of Leicester, 2002. http://hdl.handle.net/2381/30122.
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The Police and Criminal Evidence Act (PACE), 1984, in England and Wales and amendments to the Turkish Criminal Procedure Act (TCPA) in 1992 Turkey are regarded as fundamental law reforms in the field of police powers and rights of suspects. Both legislations aimed to set up a balance between police powers and the rights of the individual, whilst regulating police procedures. Furthermore, both Acts were intended to end police malpractices, with the larger aim of preventing miscarriages of justice. The thesis attempts to measure the impact of these legislative reforms on police practices with particular reference to detention and interrogation procedures. In doing so, it tries to reveal how far the rule changes under PACE and TCPA have affected police practices. In addition, the question is raised of how far policing can be shaped and controlled through the policy derived from the law. The study finds that in some police procedures there is a great deal of difference between the rhetoric of law and the actual police practice. It is therefore argued that the extensively-designed legal provisions regulating detention and questioning may not always constitute an effective restraint against the police applying the law to suit their own objectives. Consequently, it is apparent that there is a need to support legal regulation with other procedures and measures if any legislative reform of the police and policing is to be effective. For successful reform, on the one hand the rules must not be ambiguous and confusing, and on the other hand they must be endorsed by effective legal sanctions and administrative supervision. Moreover, improved adherence to the law will require a better calibre of police recruit, while design of the organisation in which the police operate should be enhanced. Finally, ensuring that the general public know about their legal rights will also be an important element in compelling the police to act within the boundaries of the law.
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Denecke, Jan. "The admissibility of a case before the International Criminal Court : an analysis of jurisdiction and complementarity." Thesis, Stellenbosch : Stellenbosch University, 2002. http://hdl.handle.net/10019.1/53084.
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Thesis (LLM)--University of Stellenbosch, 2002.ENGLISH ABSTRACT: The permanent International Criminal Court (ICC) will come into operation after the 60th ratification of the Rome Statute of the International Criminal Court of 1998. The ICC will have jurisdiction over the most serious international crimes, namely war crimes, genocide and crimes against humanity. The focus of this thesis is the difficulties surrounding the admissibility of a case before the ICC. There are basically two legs to this analysis: jurisdiction and complementarity .. Jurisdiction of the ICC is analysed in historical and theoretical context. This comprises an overview of the international tribunals since the First World War, and more specifically their impact on the development of jurisdiction in international criminal law. Secondly, the thesis is examining the jurisdiction of the ICC in terms of the specific provisions of the Rome Statute. This analysis comprises a detailed analysis of all the provisions of the Rome Statute that have an impact on the exercise of the ICC's jurisdiction. The relationship between the ICC and national courts is a difficult relationship based on a compromise at the Rome Conference in 1998. The principle underlying this relationship is known as "complementarity". This : means that the ICC will only exercise its jurisdiction if a national court is "unwilling" or "unable" to exercise its jurisdiction. A detailed analysis of the different provisions of the Rome Statute, as well as some references to other international tribunals, serve to analyse the impact of complementarity on the eventual ambit of the ICC's jurisdiction. In conclusion, some suggestions regarding the admissibility of cases and the difficult relationship between the ICC and national courts are made.
AFRIKAANSE OPSOMMING: Die permanente Internasionale Strafhof (ISH) sal met sy werksaamhede begin na die 60ste ratifikasie van die Statuut van Rome van 1998. Die ISH sal jurisdiksie uitoefen oor die ernstigste internasionale misdade, tewete oorlogsmisdade, volksmoord en misdade teen die mensdom. Hierdie tesis fokus op die probleme rondom die toelaatbaarheid van 'n saak voor die ISH. Hierdie ontleding het basies twee bene: jurisdiksie en komplementariteit. Die jurisdiksie van die ISH word in historiese en teoretiese konteks ontleed. Dit behels 'n oorsig van die internasionale tribunale sedert die Eerste Wêreldoorlog, en meer spesifiek die impak wat hierdie tribunale op die ontwikkeling van jurisdiksie in die internasionale strafreg gehad het. In die tweede plek word jurisdiksie ontleed aan die hand van die spesifieke bepalings van die Statuut van Rome. Hierdie ontleding behels 'n gedetaileerde ontleding van al die bepalings van die Statuut van Rome wat 'n impak het op die uitoefening van die ISH se jurisdiksie. Die verhouding tussen die ISH en nasionale howe is 'n komplekse verhouding, gebaseer op 'n kompromie wat by die Rome Konferensie van 1998 aangegaan is. Die beginselonderliggend aan hierdie verhouding staan bekend as "komplementariteit". Dit beteken dat die ISH slegs sy jurisdiksie sal uitoefen indien 'n nasionale hof "onwillig" of "nie in staat is" om jurisdiksie uit te oefen nie. 'n Gedetaileerde ontleding van die verskillende bepalings van die Statuut van Rome, sowel as verwysings na ander internasionale tribunale, dien om die impak van komplementariteit op die omvang van die ISH se jurisdiksie, te ontleed. Ten slotte word sekere voorstelle aangaande die toelaatbaarheid van sake en die verhouding tussen die ISH en nasionale howe gemaak.
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Júnior, Joel Venâncio da Silva. "Indícios como meio de prova : uma perspectiva de efetividade do processo penal." Universidade Católica de Pernambuco, 2009. http://www.unicap.br/tede//tde_busca/arquivo.php?codArquivo=590.
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O papel dos indícios no processo penal ainda é questão tormentosa. No Brasil poucas e incompletas são as obras que tratam do tema. No código de processo penal a expressão indício é utilizada constantemente. Por vezes aparece com sinônimo de prova, noutras como menos que prova. O
sistema mostra-se assim, incoerente, fruto de arcaica e péssima técnica legislativa. Os estudiosos do tema no Brasil, quando admitem que o indício pode ser utilizado como meio de prova o fazem com restrições. Para a maioria eles precisam ser comprovados por prova direta, servindo
de complemento àquela. Aliás a expressão indício é sempre utilizada no plural, pois tamanha seria sua fragilidade que só poderiam ser aceitos como prova se houvesse um conjunto deles afinados, harmônicos. A restrição ao uso do indicio como meio de prova se justifica tendo em vista o princípio da verdade real, vigente no processo penal. A condenação no processo penal só seria cabível quando houvesse certeza
plena da materialidade e autoria delitiva. O indício seria incapaz de revelar esta verdade plena, por tratar-se de juízo de probabilidade, pois é obtido através de uma construção lógica, pelas regras da experiência. A verdade plena, absoluta é inatingível. A filosofia desde remota época tenta conceituar a verdade sem sucesso, eis que esta depende da visão do
falante. Pelas limitações humanas e do próprio processo não há como obter a verdade plena, inatacável. O que se consegue é a verdade que o processo é capaz de revelar com os meios de prova disponíveis. O próprio processo penal mitiga a verdade real ao impor uma série de restrições quanto à prova, como no caso das obtidas por meios ilícitos.
Afastada a verdade real só resta a probabilidade da ocorrência do fato, qualquer que sejam os meios de provas utilizados. O risco de uma condenação injusta é uma constante do sistema processual penal e ele só diminui quando se assegura às partes iguais condições (não apenas
fictícias), afinal é a dialética do processo que fornecerá a verdade possívelThe role of evidence in criminal proceedings is still a tormenting issue. In Brazil, there are few and incomplete works that deal with the issue. In the criminal procedure code the term evidence is used constantly. Sometimes it appears as a synonym of proof, in other cases less proof. The system seems to be so inconsistent, the result of bad technique and archaic legislation. The scholars of the theme in Brazil admit that the evidence can be used as proof with restrictions. For the majority they need to be supported by direct proof, serving as a complement to that. Indeed the expression evidence is always used in the plural, as such would be its weakness and therefore could only be accepted as evidence if there is a body of evidence and proof harmonics. The restriction on the use of evidence as evidence is justified in view of the principles of real truth, existing in criminal proceedings. The sentencing in the criminal proceedings would only be appropriate when there is a certainty of hard evidence and criminal authorship. The evidence would be unable to reveal the full truth, because it is likely that the court has obtained it through a logical construction, according to the rules of the practice, while the direct evidence could rebuild the fact to be proven. The argument of the real truth is false. The full truth is absolutely unattainable. The philosophy from remote attempts to conceptualize the true reasons without success, this depends on the vision of the speaker and the human limitations of the process itself, and there is no way to get the full truth. What if it is true that the process is able to prove with the evidence available? The prosecution itself mitigates the real truth to impose a series of restrictions on the evidence, as in the case of those obtained by unlawful means. Apart from the real truth there is only the probability of occurrence of fact, whatever the means of evidence are used. The risk of a conviction is unfair in a system of criminal procedure and it only decreases when the parties ensure equal conditions (not only fictitious), it is the end of the dialectal process that can provide the truth
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Whitehead, Daniel K. "An historical study of a criminal defendant's right to exculpatory information under the protection of the Fifth and Fourteenth Amendments of the United States Constitution." Virtual Press, 1996. http://liblink.bsu.edu/uhtbin/catkey/1033641.
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This study has presented a comprehensive historical overview of the context and significance of a, criminal defendants constitutional right to due process of law. The evidence suggests that, in many circumstances, a criminal defendant is not being afforded our most basic constitutional guarantee of fairness and justice for allOne of the primary objectives of this study was to develop a working definition for journalists to better understand the fundamental concepts of a defendants right to exculpatory evidence during criminal proceedings.Since 1791, the Supreme Court has had to continually broaden a criminal defendants right to exculpatory information. In case after case, a similar fad pattern has shown that pauper criminal defendants with court appointed attorneys having to compete against state or federal prosecutors with unlimited investigative and legal research funding This disparity is further compounded when the state or government prosecutors define to turn over information or evidence which could help the defendants case.Further analysis identified other problem areas within the scope of due process which deserve significant attention such as: the grand jury process, plea-bargains, probable cause warrants, and post-conviction hearings.Department of Journalism
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Kgosieile, Lameck. "A possible amendment to the criminal procedure and evidence act, 1939 of the republic of Botswana with regard to plea and sentence agreements in an effort to promote the expeditious and efficient disposition of criminal matters." Diss., University of Pretoria, 2019. http://hdl.handle.net/2263/73318.
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Plea-bargaining and sentencing agreement is a worldwide phenomenon. Most of the jurisdictions more particularly in the so-called developed countries have adopted and incorporated into their criminal justice system the concept of plea-bargaining and sentence agreement. Same has properly been legislated and documented. In the United States for example, more than 80 per cent of the criminal matters are disposed of through plea-bargaining between the prosecution authority and the defendants.
This system of disposing of criminal matters through plea-bargaining and sentence agreement has saved states resources and saved courts’ time. Although the system causes the accused to face a dilemma whenever he or she is supposed to make a choice between waiving his or her constitutional right to trial and pleading guilty. The plea-bargaining system has proved itself in many jurisdictions to be very efficient particularly in completing criminal cases without inordinate delaysMini Dissertation (LLM)--University of Pretoria, 2019.
Government of Botswana
Procedural Law
LLM
unrestricted
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Rottier, Benjamin. "L'aveu en droit processuel : essai de contribution à la révélation d’un droit commun." Thesis, Paris 1, 2019. http://www.theses.fr/2019PA01D008.
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La force particulière attribuée à l'aveu judiciaire civil procède, à l'origine, d'un rattachement contestable à la confessio in jure, qui constituait un acquiescement à la demande. Si l'on restitue à l'aveu sa dimension probatoire qu'avait dégagée le droit savant médiéval, il apparaît que la nature de l'aveu porte l'empreinte de la volonté alors que son régime est fortement influencé par la recherche d'une vérité par le juge. D'un côté, l'exigence d'intégrité et de liberté de la volonté d'avouer, en droit judiciaire privé comme en procédure pénale, donne à l'aveu la nature d'un acte juridique destiné à constituer une preuve, laquelle ne peut porter que sur un fait. Il est alors possible de distinguer les véritables aveux, qui procèdent d'une telle volonté, d'autres figures juridiques dans lesquelles l'aveu est retenu à titre de sanction contre le plaideur qui, en procédure civile ou en contentieux administratif, méconnaît l'imperium procédural du juge. De l'autre côté, la preuve constituée par l'aveu est toujours appréciée souverainement par les juges du fond. Si le juge judiciaire civil doit tenir le fait avoué pour acquis, c'est pour cette raison que l'aveu réalise la concordance des allégations des parties qui, en application du principe dispositif, interdit au juge de fonder sa décision sur un autre moyen de fait. L'irrévocabilité de l'aveu connait deux manifestations, l'une substantielle, par laquelle la preuve est définitivement constituée, l'autre procédurale, qui emporte l'irrecevabilité du moyen de fait contraire à l'aveu. L'indivisibilité de l'aveu peut être analysée comme procédant de la condition suspensive ou résolutoire dont cet acte juridique peul être affectéThe strength of judicial civil confession is inherited from roman confessio in jure, that was however an admission of claim. Confession being held as an evidence since the medieval law, its nature wears the seal of will whereas its regime is mostly determined by search for the truth. On the one hand, requirement of a free will, both in civil and criminal procedures, grants confession the nature of a legal act intended to prove a fact. Thus genuine confessions can be distinguished from sanctions against litigants who disregard the judge’s imperium, in civil cases as well as in administrative cases. On the other hand, the weight of evidence brought by confession is always determined by the courts in their unfettered discretion. Obligation for civil jurisdictions to state only in consideration of the confessed fact relies on the principle of party disposition. Civil judicial confession 's legal irrevocability is both substantial, as the evidence is permanently constituted, and procedural, preventing the confessor to invoke an opposite allegation of fact. Confession's indivisibility can be analyzed as a result of the suspensive or resolutive condition under which this legal act can be granted
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Losis, Egidijus. "Slaptieji tyrėjai ir jų veiklos ribos įrodymų rinkimo procese." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2005. http://vddb.library.lt/obj/LT-eLABa-0001:E.02~2005~D_20050531_113334-13057.
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The perfectnes of crime and the forms of crime difficult their investigation. In order to protect humans and citizens rights and freedoms the state is obligated to apply even such methods, that restrict criminals rights. The subject of this work is ambiguously considered application one of these forms, to be exactly, the form of application secret agents during the investigation in criminal procedure. The participation of secret agents investigating crimes, the results of this investigation are looked over the prism how these results could be used in criminal procedure as the poof of quilt. Considering this question is settled that legal application of secret agents and the conception of proof allow to use this form of investigation and their results as the proof in criminal procedure. It has to be noted, that secret agents as the form of investigation is restricted and allowed in very particular cases, if secret agents don’t go beyond law and settled sanction by court. In conclusion it can be also mentioned, that in this work were identified the problems of regulation of applying this criminal – procedural investigation method, that can cause the slip of efficiency of the investigation and its results.
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Silva, Júnior Joel Venâncio da. "Indícios como meio de prova : uma perspectiva de efetividade do processo penal." Universidade Católica de Pernambuco, 2009. http://tede2.unicap.br:8080/handle/tede/470.
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Previous issue date: 2009-04-17The role of evidence in criminal proceedings is still a tormenting issue. In Brazil, there are few and incomplete works that deal with the issue. In the criminal procedure code the term evidence is used constantly. Sometimes it appears as a synonym of proof, in other cases less proof. The system seems to be so inconsistent, the result of bad technique and archaic legislation. The scholars of the theme in Brazil admit that the evidence can be used as proof with restrictions. For the majority they need to be supported by direct proof, serving as a complement to that. Indeed the expression evidence is always used in the plural, as such would be its weakness and therefore could only be accepted as evidence if there is a body of evidence and proof harmonics. The restriction on the use of evidence as evidence is justified in view of the principles of real truth, existing in criminal proceedings. The sentencing in the criminal proceedings would only be appropriate when there is a certainty of hard evidence and criminal authorship. The evidence would be unable to reveal the full truth, because it is likely that the court has obtained it through a logical construction, according to the rules of the practice, while the direct evidence could rebuild the fact to be proven. The argument of the real truth is false. The full truth is absolutely unattainable. The philosophy from remote attempts to conceptualize the true reasons without success, this depends on the vision of the speaker and the human limitations of the process itself, and there is no way to get the full truth. What if it is true that the process is able to prove with the evidence available? The prosecution itself mitigates the real truth to impose a series of restrictions on the evidence, as in the case of those obtained by unlawful means. Apart from the real truth there is only the probability of occurrence of fact, whatever the means of evidence are used. The risk of a conviction is unfair in a system of criminal procedure and it only decreases when the parties ensure equal conditions (not only fictitious), it is the end of the dialectal process that can provide the truth
O papel dos indícios no processo penal ainda é questão tormentosa. No Brasil poucas e incompletas são as obras que tratam do tema. No código de processo penal a expressão indício é utilizada constantemente. Por vezes aparece com sinônimo de prova, noutras como menos que prova. O sistema mostra-se assim, incoerente, fruto de arcaica e péssima técnica legislativa. Os estudiosos do tema no Brasil, quando admitem que o indício pode ser utilizado como meio de prova o fazem com restrições. Para a maioria eles precisam ser comprovados por prova direta, servindo de complemento àquela. Aliás a expressão indício é sempre utilizada no plural, pois tamanha seria sua fragilidade que só poderiam ser aceitos como prova se houvesse um conjunto deles afinados, harmônicos. A restrição ao uso do indicio como meio de prova se justifica tendo em vista o princípio da verdade real, vigente no processo penal. A condenação no processo penal só seria cabível quando houvesse certeza plena da materialidade e autoria delitiva. O indício seria incapaz de revelar esta verdade plena, por tratar-se de juízo de probabilidade, pois é obtido através de uma construção lógica, pelas regras da experiência. A verdade plena, absoluta é inatingível. A filosofia desde remota época tenta conceituar a verdade sem sucesso, eis que esta depende da visão do falante. Pelas limitações humanas e do próprio processo não há como obter a verdade plena, inatacável. O que se consegue é a verdade que o processo é capaz de revelar com os meios de prova disponíveis. O próprio processo penal mitiga a verdade real ao impor uma série de restrições quanto à prova, como no caso das obtidas por meios ilícitos. Afastada a verdade real só resta a probabilidade da ocorrência do fato, qualquer que sejam os meios de provas utilizados. O risco de uma condenação injusta é uma constante do sistema processual penal e ele só diminui quando se assegura às partes iguais condições (não apenas fictícias), afinal é a dialética do processo que fornecerá a verdade possível
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Miescher, Martin. "Die List in der Strafverfolgung /." Bern : Stämpfli Verlag, 2008. http://deposit.d-nb.de/cgi-bin/dokserv?id=3077816&prov=M&dok_var=1&dok_ext=htm.
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Guardia, Gregório Edoardo Raphael Selingardi. "Comunicações eletrônicas e dados digitais no processo penal." Universidade de São Paulo, 2012. http://www.teses.usp.br/teses/disponiveis/2/2137/tde-02042013-102504/.
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Em tempos correntes, importantes processos de comunicação (escrita ou verbal) e armazenamento de informações aperfeiçoam-se por intermédio dos meios eletrônicos. À medida que o acesso à rede mundial de computadores (internet) se intensifica em progressões geométricas, multiplicam-se também os dados intercambiados por internautas e emergem técnicas cada vez mais avançadas de coleta e processamento de informações. Atividades rotineiras como a navegação e o envio de mensagens eletrônicas realizam-se apenas à custa de imenso trânsito de informações; como pegadas deixadas pelo caminho, os dados comutados nestas atuações permitem reconstituir os caminhos e atividades empreendidos na rede. A salvaguarda destas informações afigura-se imprescindível à vida privada e demanda rígida disciplina normativa. Não se trata apenas de impedir que dados de tráfego ou de conteúdo sejam empregados contrariamente ao Direito, mas de assegurar também que, em situações excepcionais descritas pelo legislador, sirvam para corroborar investigações criminais. Pretende-se neste trabalho um exame sistemático dos principais meios de busca da prova digital, com o escopo de delimitar o regime jurídico das intervenções nas comunicações eletrônicas e das medidas de apreensão de dados automatizados. Neste mister, inafastável analisar a disciplina constitucional do sigilo da comunicação de dados (CF, art. 5o, inciso XII) e investigar o fundamento legal das autorizações judiciais para a obtenção de informações eletrônicas. Sob perspectiva eminentemente interdisciplinar, cumpre discorrer sobre noções de Cibernética, telecomunicações, Informática, liberdade como autonomia recíproca de acesso à informação e comunicações eletrônicas, imprescindíveis à compreensão deste novo espaço do agir humano: o entorno digital. No campo da hermenêutica constitucional, necessário perquirir relevantes aspectos da vida privada e da proteção da intimidade antecedentes históricos, direito à privacy, hodierna projeção como autodeterminação informativa, teoria das três esferas e inviolabilidade das comunicações que permitirão opinar sobre a constitucionalidade das interceptações de dados em processos informacionais. Em sequência, devem ser conceituados os dados digitais e suas respectivas categorias, as técnicas de investigação penal e o resguardo de fontes de provas digitais. Sem deixar de contribuir para o aperfeiçoamento da normativa legal vigente, de rigor o exame de duas ordens distintas de incorporação dos dados ao processo: a intervenção no fluxo comunicativo destinada a captar dados e a apreensão física do dispositivo informático que alberga as informações. Como meios de busca de prova, esses procedimentos devem ser estudados de maneira individualizada, a partir de aspectos como conceito, regulação, natureza jurídica, finalidade, condicionantes legais (pressupostos, requisitos e limites), direito de defesa, juízo de proporcionalidade e controle. Por fim, tecidas as necessárias considerações sobre a conservação, eficácia probatória e valoração dos conteúdos automatizados, impõe-se indagar acerca dos efeitos decorrentes de operações ilícitas perpetradas sobre dados digitais.In these days, important communication process (written or verbal) and information storage improve through electronic means. While the access to the computer worldwide web (internet) grows in geometrical progression, it also increases the number of webusers data and more and more advanced technics of gathering and processing information emerge. Routine activities such as sailing or sending electronic messages only happen due to the vast transit of information; like footprints left on the way, the data commutated in these actions allow to re-establish the ways and activities undertaken in the web. The security of these information figures indispensable to private life and demands a severe normative discipline. It is not only a matter of preventing that traffic or contents data may be used against the law. But also to assure that, in exceptional situation described by the legislator, it can be useful to confirm criminal investigation. This work intends a systematic examination of the main ways of searching digital evidence, with the purpose of delimitate the judiciary system of the intervention in electronic and apprehension extent of automation data. So, it must be analysed the constitutional discipline of communication data secrecy (CF, art. 5º, inciso XII) and even to investigate the legal foundation of judicial authorization to obtain electronic information. Under a strictly multidiscipline perspective, one must consider some notions of Cybernetics, telecommunication, Informatics, freedom as reciprocal autonomy access to electronic information and communication, which are essential to understand this new area of human act; the digital place. In the field of constitutional interpretation of law, it is necessary to scrutinize considerable aspects of private life and intimacy protection historical antecedents, privacy right, actual projection such as informative selfdetermination, three sphere theory and inviolability of communication so that they will permit to express an opinion about the constitutionality of interception data in informative proceedings. Sequentially, conceptualize the digital data and their respective categories, penal investigation technics and the protection of digital evidence sources. There may be a cooperation to a better improvement of the effective legal normative, an accurate examination of two different disposition of data incorporation to the process, the intervention in the communicative flow just to receive data and physical apprehension of the informatic device which contains information. As a quest in resources of proof, these proceedings must be examined in a individual way, starting with the aspects such as concept, regulation, juridical nature, finality, legal conditioning (presupposed, requisite and limits), right of defence, judgement of proportionality and control. At last, taken into everything about the conservation, evidential efficiency and the value of automatize contents still we have to enquire about the results of illicit operations perpetrated on digital data.
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Vettraino, Florence. "Internationales und staatliches Strafverfahrensrecht." Doctoral thesis, Humboldt-Universität zu Berlin, Juristische Fakultät, 2013. http://dx.doi.org/10.18452/16741.
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Das Verfahren der internationalen ad hoc Strafgerichtshöfe für das ehemalige Jugoslawien und für Ruanda kann als die erste völkerstrafverfahrensrechtliche Ordnung betrachtet werden. Von den Richtern selbst ausgearbeitet und entwickelt, orientierte sich dieses Verfahren ursprünglich sehr an dem angloamerikanischen Strafprozessmodell. Mangels geeigneter Präzedenzfälle und angesichts der vielen Analogiefaktoren zwischen dem innerstaatlichen Strafverfahrensrecht und dem Völkerstrafverfahrensrecht haben sich die Richter -insbesondere während der ersten Tätigkeitsjahre ihrer Gerichtshöfe- öfter auf innerstaatliche Rechtspraxen bei der Anwendung ihrer Verfahrens- und Beweisordnungen bezogen. Die vorliegende Arbeit untersucht diese Bezugnahme auf innerstaatliches Recht anhand der Rechtsprechung beider ad hoc Strafgerichtshöfe im Bereich des Beweisrechts. Die Gründe und Formen der Bezugnahme auf innerstaatliches Recht werden zuerst dargestellt und anschließend analysiert. Aus der Untersuchung der Rechtsprechung ergibt sich eine insgesamt unsystematische und pragmatische Nutzung des innerstaatlichen Rechts, welches meistens dazu dient, die für den Einzelfall geeignetste Lösung zu liefern und/ oder die von den Richtern getroffene Entscheidung zu legitimieren. Solch eine Vorgehensweise birgt zweierlei Probleme: Ein Legitimitätsproblem angesichts der Internationalität des Verfahrens der ad hoc Strafgerichtshöfe und ein Problem hinsichtlich der Vorhersehbarkeit der Anwendung ihrer Verfahrens- und Beweisordnungen. Abschließend widmet sich diese Arbeit dementsprechend der Frage nach einer methodischen Herangehensweise, welche zu mehr Legitimität und Vorhersehbarkeit bei der Anwendung der Verfahrensregeln internationaler Strafgerichtshöfe beitragen könnte, und dies abgesehen davon, ob sich die Richter dabei auf externe normative Räume, wie diejenigen innerstaatlicher Rechtsordnungen, beziehen oder nicht.The procedure of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda can be regarded as the first set of rules of international criminal procedure. This procedural law, constructed and developed by the judges themselves was primary inspired by the common law approach to criminal proceedings. In the absence of precedents, and given the numerous potential analogies between domestic criminal procedure and international criminal procedure, the judges often referred to domestic legal practices - particularly during the ad hoc tribunals’ first years of activity - when applying rules of procedure and evidence. The present work investigates this reference to domestic law by examining the ad hoc tribunals’ jurisprudence regarding the law of evidence. The reasons for and forms of the reference to domestic law are first presented and then analysed. This study concludes that, on the whole, domestic law is referred to in an unsystematic and pragmatic manner: It is mostly used by the judges in order to provide the most suitable solution for the particular case before them and/ or to legitimate a decision they have already made on the basis of their own procedural rules. Such an approach raises two problems: a legitimacy deficit in regard to the internationality of the ad hoc tribunals’ procedure and a lack of predictability in the application of the rules of procedure and evidence. This study deals therefore finally with the possibility of a methodical approach, which could contribute to more predictability and legitimacy in the application of the procedural rules of international criminal tribunals, regardless of whether or not the judges refer to external normative systems, such as domestic legal orders.
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Hennequin, Shirley. "La preuve numérique dans le procès pénal." Thesis, Aix-Marseille 3, 2011. http://www.theses.fr/2011AIX32063.
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Support de la nouvelle société de l’information et de la communication, outil de travail mais également de loisir, le numérique est « partout ». Devenu la mémoire virtuelle de l’homme, le « numérique », constitue un terrain d’investigation privilégié, une source d’informations intarissable. Le principe de la liberté des preuves en procédure pénale a offert au numérique la possibilité de jouer un rôle majeur : parfois preuve de l’infraction, de son imputabilité à un auteur et/ou de son identité, il est devenu incontournable. Ce constat est toutefois limité, ce principe ne signifiant pas que l’on puisse agir de n’importe quelle manière, à sa guise quels que soient le lieu et l’heure ; la preuve numérique devant être recherchée et recueillie dans les règles de l’administration de la preuve. Soumise à l’intime conviction du juge, la donnée numérique devra également revêtir des garanties d’intégrité et de fiabilité, avant d’être considérée comme une « preuve ». En définitive, ces observations imposent que, les caractères généraux de la preuve numérique et son rôle probatoire attendu soient étudiés afin d’envisager comment cette nouvelle preuve se confronte au régime probatoire pénalAs a medium of the new society of information and communication and as a tool used both for work and play, digital technology has become ubiquitous. It has become man's virtual memory and represents a preferred field for investigation, an inexhaustible source of information. The principle of freedom of evidence in criminal law has allowed digital technology to play a major role : sometimes as evidence of infringement, of its author's imputability and/or identity, it has become inescapable. This general assessment is however limited, as it does not mean that any action can be taken anyhow, whatever the place or time ; digital evidence must indeed be searched for and collected within the rules governing it. Being subjected to the judge's inner conviction, the digital data will also have to offer guarantees of integrity and reliability before being considered as evidence on balance, these observations require that the general characteristics and expected role of digital evidence should be studied in order to examine how this new kind of evidence can be confronted with the system of evidence in criminal law
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Anyfantis, Spiridon Nicofotis. "Da captação de imagens como prova no processo penal." Universidade Federal de Goiás, 2004. http://repositorio.bc.ufg.br/tede/handle/tede/6866.
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Made available in DSpace on 2017-02-22T13:17:29Z (GMT). No. of bitstreams: 2 Dissertação - Spiridon Nicofotis Anyfantis - 2004.pdf: 1754042 bytes, checksum: 3be2f4d514c73ade66e257c0e0b50294 (MD5) license_rdf: 0 bytes, checksum: d41d8cd98f00b204e9800998ecf8427e (MD5) Previous issue date: 2004-03-02
It concerns an essay about the evidences in the penal procedure and its way of production by means of image captation and recordings, whether by hidden cameras or safety ones. It´s composed of five chapters which analyses, respectively, the penal evidence in its particularities and afterwards, the theme of the illegal evidences making, inclusively, a counterpoint between proof illicitness and the proportionateness principle. It still studies the theme of exceptions to the theory of illegal proofs – named by argentinean and spanish exception of the exclusionary rule. They´re studied, briefly, intimacy aspects and individual private life, with subtle distinctions and similarities. Soon after it goes to an analyses regarding the original image recordings evidence – by ostensive cameras and hidden ones – and its use in the penal procedure, specially when used in work places, investigative journalism, private and public places among other circumstances. Finally, such images validity hypothesis are evaluated in the penal procedure and suggestions are presented in order to them, in case of being produced, and in very specific cases, can be effectively used in the process without violation to the intimacy and private life of the individual.
Trata-se de estudo sobre a prova no processo penal e sua forma de produção por meio de captação e gravação de imagens, seja por câmeras ocultas ou de segurança. É composto por cinco capítulos onde se analisam, respectivamente, a prova penal em suas particularidades e, em seguida, o tema das provas ilícitas, fazendo-se, inclusive, contraponto entre a ilicitude da prova e o princípio da proporcionalidade. É estudado, ainda, o tema das exceções à teoria das provas ilícitas – denominada pelos argentinos e espanhóis exceções à regra de exclusão probatória. São estudados, sucintamente, aspectos da intimidade e da vida privada do indivíduo, com suas sutis distinções e semelhanças. É analisada a questão das provas originárias de gravações de imagens – por câmeras ostensivas e ocultas - e sua utilização no processo penal, especialmente quando utilizadas em ambientes de trabalho, jornalismo investigativo, ambientes privados e públicos, dentre outras circunstâncias. São avaliadas as hipóteses de validade de tais imagens no processo penal e apresentadas sugestões para que as mesmas, caso produzidas, e em hipóteses muito específicas, possam ser efetivamente utilizadas no processo sem violação à intimidade e vida privada do indivíduo.
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Widder, Elmar Richard [Verfasser]. "A Fair Trial at the International Criminal Court? Human Rights Standards and Legitimacy : Procedural Fairness in the Context of Disclosure of Evidence and the Right to Have Witnesses Examined / Elmar Richard Widder." Frankfurt a.M. : Peter Lang GmbH, Internationaler Verlag der Wissenschaften, 2016. http://d-nb.info/1114640247/34.
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Safferling, Christoph Johannes Maria. "Towards an international criminal procedure /." Oxford [u.a.] : Oxford University Press, 2003. http://www.loc.gov/catdir/enhancements/fy0615/2003276194-d.html.
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Metenier, Julian. "La protection pénale de l'accusé." Thesis, Aix-Marseille, 2014. http://www.theses.fr/2014AIXM1065.
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Le thème de la protection pénale de l'accusé, connu des pénalistes, mérite aujourd'hui d'être renouvelé sous un angle essentiellement probatoire, au regard de l'évolution actuelle du procès pénal. Situés au confluent de l'innocence et de la culpabilité, les droits et garanties accordés à l'accusé, entendu dans son acception conventionnelle, doivent être analysés en considération des principes fondateurs que sont la présomption d'innocence et les droits de la défense. L'évolution continue de ces deux principes, dans un sens diamétralement opposé, rejaillit inévitablement sur l'intensité et les modalités de la protection dont bénéficie toute personne suspectée ou poursuivie dans le cadre d'une procédure pénale.La présente étude, volontairement limitée à la phase préparatoire du procès pénal, se propose d'appréhender, dans un souci pratique et technique, les différentes évolutions jurisprudentielles et législatives opérées en la matière. Y seront ainsi abordées les principales problématiques actuellement rencontrées en procédure pénale telles que la question du statut juridique du suspect ou encore l'effectivité du principe du contradictoire dans l'avant-procès pénal. S'il peut être tentant, au premier abord, de conclure à un renforcement indiscutable de la protection pénale accordée à l'accusé, il conviendra alors de reconsidérer cette question à l'aune de l'étude des limites procédurales attachées au procès pénal. Loin d'aborder ce thème dans une optique partisane, il sera question de modération dans les propos tenus. En effet, peut-être plus que sur toute autre question de procédure pénale, il est impératif de savoir raison garderThe theme of the criminal protection of the accused, well-known to criminal specialists, today deserves to be renewed under a probationary essentially angle, in the light of current developments in the criminal trial. Located at the confluence of innocence and guilt, the rights and guarantees granted to the accused understood in its conventional sense, must be analyzed in consideration of the founding principles of presumption of innocence and the rights of the defense. The continuing evolution of these two principles, in a sense diametrically opposite, inevitably reflects the intensity and the terms of the protection afforded any person suspected or prosecuted under criminal proceedings.This study deliberately limited to the pre-trial phase, proposes to understand, in a practical and technical problems, the various case law and legislative developments carried out in the field. Will thus addressed the key issues currently faced in criminal proceedings such as the question of the legal status of the suspect or the effectiveness of the adversarial principle in the preliminary criminal trial. While it may be tempting, at first, to conclude an indisputable strengthening the criminal protection afforded to the accused, then it will be necessary to reconsider this issue in terms of the study of procedural limitations attached to the criminal trial. Far from addressing this issue in a partisan way, it will be about moderation in the remarks. Indeed, perhaps more than any other issue of criminal procedure, it is imperative to keep a sense of proportion
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Ekfeldt, Jonas. "Om informationstekniskt bevis." Doctoral thesis, Stockholms universitet, Juridiska institutionen, 2016. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-125286.
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Information technology evidence consists of a mix of representations of various applications of digital electronic equipment, and can be brought to the fore in all contexts that result in legal decisions. The occurrence of such evidence in legal proceedings, and other legal decision-making, is a phenomenon previously not researched within legal science in Sweden. The thesis examines some of the consequences resulting from the occurrence of information technology evidence within Swedish practical legal and judicial decision-making. The thesis has three main focal points. The first consists of a broad identification of legal problems that information technology evidence entails. The second focal point examines the legal terminology associated with information technology evidence. The third focal point consists of identifying sources of error pertaining to information technology evidence from the adjudicator’s point of view. The examination utilizes a Swedish legal viewpoint from a perspective of the public trust in courts. Conclusions include a number of legal problems in several areas, primarily in regards to the knowledge of the adjudicator, the qualification of different means of evidence and the consequences of representational evidence upon its evaluation. In order to properly evaluate information technology evidence, judges are – to a greater extent than for other types of evidence – in need of (objective) knowledge supplementary to that provided by parties and their witnesses and experts. Furthermore, the current Swedish evidence terminology has been identified as a complex of problems in and of itself. The thesis includes suggestions on certain additions to this terminology. Several sources of error have been identified as being attributable to different procedures associated with the handling of information technology evidence, in particular in relation to computer forensic investigations. There is a general need for future research focused on matters regarding both standards of proof for and evaluation of information technology evidence. In addition, a need for deeper legal scientific studies aimed at evidence theory has been identified, inter alia regarding the extent to which frequency theories are applicable in respect to information technology evidence. The need for related further discussions on future emerging areas such as negative evidence and predictive evidence are foreseen.
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Tiede, Lydia Brashear. "The politics of criminal law reform a comparative analysis of lower court decision-making /." Diss., Connect to a 24 p. preview or request complete full text in PDF format. Access restricted to UC campuses, 2008. http://wwwlib.umi.com/cr/ucsd/fullcit?p3307373.
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Thesis (Ph. D.)--University of California, San Diego, 2008.Title from first page of PDF file (viewed August 13, 2008). Available via ProQuest Digital Dissertations. Vita. Includes bibliographical references.
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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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Wan-ChingChen and 陳婉菁. "Evaluation on the "New Evidence" of the Criminal Retrial Procedure." Thesis, 2017. http://ndltd.ncl.edu.tw/handle/y2k2d2.
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碩士國立成功大學
法律學系
105
SUMMARY Criminal Retrial Procedure is one of the criminal extraordinary legal remedies. Since 1935, the Supreme Court limited the scope of application inappropriately and made it difficult to reopen a new trial. According to the statistical data of Judicial Yuan, the rate of rejection of Retrial was up to 99%, which means that it was almostly impossible to abtain a chance to Retrial. Fortunately, in 2015, the Criminal Procedure was amended, and some delicate problems were solved. However, there are still lots of issues remained to be discussed, such as the methods of evaluating, the explanation of novelty. In order to solve the problems, we should figure out the way to merge the constitutional principles of the Criminal Procedure harmoniously. Besides, in order to open door to a new trial more widely, the discussion from Japan and Germany will also be considered. In addition, by analyzing the Supreme Court and the High Court cases, the changing of the rejection rate of Retrial can be discovered. On the other hand, we could also expecting finding the clues of how the court evaluating the new evidences. Key Words : Criminal Retrial Procedure, New Evidence, in dubio pro reo, Definite Evidence, Miscarriage of justice.
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Chen, De-Chih, and 陳德池. "Preservation of Evidences in Criminal Procedure." Thesis, 2006. http://ndltd.ncl.edu.tw/handle/90289944873858437810.
Full textAbstract:
碩士東吳大學
法律學系
94
Taiwan criminal procedural law has significant changes after the resolution of the National Judiciary Reform Conference in 1999 that determined to adopt the “Adversary System” from the “Official principle”. Amendatory Acts after the conference are proceeded based upon the idea of “Refined Adversary System”. “Preservation of Evidences” is just the product of such a thought. Under this structure, it is to pursuit the equity in substance, one shall not excising imbalanced power then the other party. Such a value creates huge difference between what the “Official Principle” emphasizes, i.e., the prosecutor has the “Objective duty” which imposes the prosecutor the position of a judicial officer instead of a party. The difference reflects the realization to the idea and the component of “Preservation of Evidences”. This article starts from the perspective of the equity of the parties principle, by instructing the concept of “Preservation of Evidences”, portrait the outline of it to assure the establishment of equal rights of both party within the structure of “Preservation of Evidences”. Follow up the introduction to the concept of “Preservation of Evidences”, this thesis further discuss the constitutional basis of this concept in chapter III, since its said that the criminal procedural law is the applicable Constitution, we have to retrace the constitutional basis while we excise the criminal procedural law for a legal rationale. The chapter IV deals with the issue with regard to the present provisions of “Preservation of Evidences”, our criminal legal system heritage most of all provisions from foreign legislation, and the memorandum of our legislation explicitly points out that the design of Taiwan criminal procedural concerning to the “Preservation of Evidences” learned from German, Japan and Taiwan civil procedural code, therefore, whenever we discuss about issues with regard to measures of securing evidences, we are supposed to be aware of the foreign legal structure as well. In the following paragraphs, this thesis would also analyze and review the present provisions with regard to “Preservation of Evidences”. Last but not the least, the chapter V concludes the thesis with all stated above, and provide certain suggestions.
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FWU, YIH-SHIANG, and 符億湘. "Evidential Effect and Probative Value of Digital Evidence in the Criminal Procedure Law." Thesis, 2019. http://ndltd.ncl.edu.tw/handle/x329ne.
Full textAbstract:
碩士逢甲大學
財經法律研究所
107
The methods of judicial proof had gone through the period of "ordeal evidence" by praying jiaobei blocks for Gods, the period of “human evidence” by using eyewitness testimony, until the period of “physical evidence” by verifying criminal material evidence. Nowadays, the new technology is changing with each passing day and it is noted that many perpetrators have committed the crimes by using the new technology. Facing the coming era of “digital evidence,” how should the judicial personnel confront this challenge in the modern criminal procedure? For example, the case of the ATM hacking against the First Bank, as the result of remote money dispensation, showed the necessary of exerting digital evidence for accusation against the criminals. The expressive forms of digital evidence include sound, video, telephone, Internet address (IP), geographic location (GPS), etc. With the rapid development of technology, its form is also developing the new from the old and subverting the characteristics of traditional evidence which is not easy to distinguish the authenticity of the evidence by the naked eye or the ear. The characteristics of digital evidence are very different from the general one and the methods of collections and proof identifications on the both sides are also very different. Therefore, the discussion of digital evidence with the reference of the rules of evidence would be an important task on the evaluation of the relationship between evidence admissibility and probative value of digital evidence in the modern criminal procedure. The evaluation of digital evidence is related to the guilty or nonguilty judgments of the suspects whose personal freedom and rights are heavily affected. This thesis thus is based on the rules of evidence, trying to figure out how the digital evidence applied to factum probandum. The comparison between the rules of evidence and the characteristics of digital evidence, as well as the impacts of digital evidence to the evidence admissibility and probative value would be the key issues on the thesis. In the thesis, the first chapter introduces the purpose, method, limitation and scope of the research. The second chapter discusses the definition, development, characteristics and classification of digital evidence. The third chapter describes the content and collection process of digital evidence with basic understanding. The fourth chapter compares the similarities and differences between digital and traditional evidences from the strict form of proof and judicial discretion, hearsay rules, search and seizure, direct evidence and mediate evidence, corroborating evidence as well as the legality principle. The fifth chapter discusses some cases relating to digital evidence. At the end, the thesis will make the conclusions and recommendations at the sixth chapter.
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Harris, Rebecca C. "Gatekeeping and the judicial processing of scientific information." Diss., 2006. http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&rft_val_fmt=info:ofi/fmt:kev:mtx:dissertation&res_dat=xri:pqdiss&rft_dat=xri:pqdiss:3223612.
Full textAbstract:
Thesis (Ph.D.)--University of Illinois at Urbana-Champaign, 2006.Source: Dissertation Abstracts International, Volume: 67-07, Section: A, page: 2734. Adviser: Ira Carmen. Includes bibliographical references (leaves 204-212) Available on microfilm from Pro Quest Information and Learning.
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JAN, CHI-CHANG, and 冉其昌. "The Research on Preliminary Proceeding of Criminal Procedure－Focusing on the Admissibility of Evidence." Thesis, 2017. http://ndltd.ncl.edu.tw/handle/284vpt.
Full textAbstract:
碩士東吳大學
法律學系
105
Preliminary proceeding of criminal procedure can promote trial to be concentrated and proceed fast. However, our country’s preliminary proceeding is not used well, and causes our first trial to overtake its burden. Therefore, no matter from the view of concentrated trial or the view of speedy trail right, we ought to improve our preliminary proceeding. Because the commission judge cannot make a decision of admissibility of evidence in the preliminary proceeding, our preliminary proceeding excises like an exchange of opinions. Therefore, my paper is focus on investigating admissibility of evidence in the preliminary proceeding. The solution is giving the commission judge the authority to make a decision of admissibility of evidence in the preliminary proceeding. Moreover, constructs the objection procedure by analogizing the Article 288-3 of criminal procedure to give the party opportunities for disagreeing. Therefore, my paper’s chapter 1 is about motive of study and question awareness. Chapter 2 is about presumption of innocence, concentrated trial, speedy trail right, and searching for the connection with preliminary proceeding. Chapter 3 is about the Japanese preliminary proceeding, and focusing on its discovery procedure. Then, compare Japanese preliminary proceeding with ours, and find difference between them. According to that, we can find out the issue of our preliminary proceeding. Chapter 4 is about investigating the admissibility of evidence in the preliminary proceeding and finding out the ways of improvement or suggestion. Chapter 5 is the conclusion of my paper.
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TSENG, HENG-YU, and 曾衡禹. "The Admissibility of Extraterritorial Evidence - Focusing on The Testimony Taken Abroad in Criminal Procedure." Thesis, 2018. http://ndltd.ncl.edu.tw/handle/5v7nj2.
Full textAbstract:
碩士東吳大學
法律學系
106
Transnational crime is the product of globalization and has become a global issue. Contury in global governance mechanism such as formulating and signing relevant international convention. All coutries, which set up to criminal consistent standards. The testimony taken abroad in criminal procedure with criminal matters act how to interpret the admissibility of extraterritorial evidences. Whether Criminal Procedure Law with corresponding principle of correspondence. The Supreme Court has, in handling extraterritorial testimonies, applied exceptions to the hearsay rule by analogy or by legal principles. The evident admissibility of special credibility documents is determined with a degree of flexibility so to avoid extraterritorial testimonies being excluded by the hearsay rule. The defendant’s right of cross-examination against the witness can be deemed as a prevailing human right, and is an indispensable element to guarantee a fair trial in judicial proceeding. It is the basic international human right that the accused has the right to confront the witness against him, which is regulated in European Convention for the Protection of Human Rights and Fundamental Freedoms Article 6-3-d and International Covenant on Civil and Political Rights 14-3-f. This study intends to figure out a proper explanation by integrating scholarly opinion and judicial opinion and comparing to Japanese law, in addition, learning from the analysis of cases.Hopes to alteration of Criminal Procedure law.
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CHEN, CHIEH-YU, and 陳婕妤. "A Study on the Admissibility of Illegally Obtained Evidence in the Civil Procedure－the Comparison Between Civil and Criminal Procedure." Thesis, 2016. http://ndltd.ncl.edu.tw/handle/kyxcqw.
Full textAbstract:
碩士東吳大學
法律學系
104
Bases on adversary system, the Civil Procedural of R.O.C. regulates the process of litigation. Parties submit the factum probandum and evidence which is imperative in proving related facts authentic. Whereas considering the admissibility of private obtained evidence in the litigation still left blank, civil procedural law of R.O.C. left leaks as such. Namely, whether the evidence obtained privately is applicable in the litigation is yet regulated. This essay aims at addressing and reviewing these issues, but due to the diversified characteristic and purpose of the two different procedurals, this essay will examine the litigation and regulations separately. Rooting in the constitutional law, general principle of Civil Procedural Law of R.O.C. and the purpose of Civil Procedural Law, this essay, concerning the civil procedural, attempts to scrutinize and review the legality of the prohibition on use of private obtained evidence in the civil litigation. Concluding that the admissibility of private obtained evidence depends on case by case. The illegally private obtained evidence in Criminal Procedural Law of R.O.C., the law itself remains unregulated in this scenario as well. Due to the purpose of criminal procedure deviates from the civil procedural, this essay, concerning criminal procedural, aims at reviewing journals and practices, attempts to integrate the disputed opinions and unifies them. This essay also grades and investigates the evidence exclusionary rules and certain practices of United States. Comparing with the regulations of Taiwan and concluding that experiences of U.S.A. is referable though the rule as such only applies to the illegal detection conducted by the public authority. Lastly, this essay exemplifies certain situations and applies it in civil and criminal procedure separately. Reviewing the diverse aims and purpose and deliberating the application of evidence exclusionary rule of these litigations, to achieve the stability and adequacy of law, this essay examines the necessity of conforming these two applications.
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KUO, MENG-HSIN, and 郭孟鑫. "Reconsidering the Principle of Free Evaluation of Evidence in Criminal Procedure－From a Dramaturgical Perspective." Thesis, 2017. http://ndltd.ncl.edu.tw/handle/97dfgb.
Full textAbstract:
碩士國立臺北大學
法律學系一般生組
105
The purpose of this article is to answer the question: “How does fact-finding of unjust cases become possible?” This article reviewed the principle of free evaluation of evidence from its meaning to its defects, and assumed that the injustice occurred in finding facts under the principle of free evaluation of evidence will not be solved by only improving the rules of evidence because every rule has its limitations. The key to solve the problem may also lies in identifying and overcoming the limits of free evaluation of evidence. The question is how to see more clearly about criminal justice. Therefore, this article used Erving Goffman’s dramaturgical model to observe how the criminal justice works in Taiwan’s legal culture. Generally speaking, criminal litigation is regarded as a dramaturgical performance: the participants as performers. That is to say, the performance of criminal litigation is shaped by audience, thus influencing the free evaluation of evidence. Accordingly, whether it is possible to overcome the limitations of free evaluation of evidence depends on if lawyers can see more clearly about how criminal justice actually works. From the perspective of dramaturgical model, this means that the performers shall alienate themselves from their characters, and that legal training should not only enable lawyers to get into their characters but also to ensure the possibility of alienation.
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Van, der Merwe C. J. (Christoffel Johannes). "Processing of information for prosecution purposes." Diss., 2008. http://hdl.handle.net/10500/2541.
Full textAbstract:
The purpose of the research was to establish action steps than can assist the criminal investigator in the processing of information into evidence for prosecution purposes, by focusing on the basic principles of criminal investigation from where information sources could be utilised to their full potential in the search for the truth.
The researcher evaluated the current methods that investigators within the SAPS use and read extensively on the topic in international literature sources. The research used an empirical research design because of the limited information available, and a qualitative research approach which enabled real-life observations. Simple random sampling was used to interview 30 experienced investigators each with more than five years experience and purposive sampling was used to identify five expert respondents who had more than 30 years' investigation experience. Data was obtained from their real-life experiences and data was further collected through case studies of case dockets.Criminology
M.Tech. (Forensic investigation)
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Chen, Shih Han, and 陳思翰. "Search and Seizure of Digital Evidence in Criminal Procedure -Focusing on the Digital Information within Cloud Databases." Thesis, 2016. http://ndltd.ncl.edu.tw/handle/kbj5cp.
Full textAbstract:
碩士國立清華大學
科技法律研究所
105
Internet and cloud computing technology have been highly developed since 1970. There are different aspects of cloud computing application that cloud storage is one of the common and significant approach. This thesis is aimed to look into the search and seizure of digital evidence within cloud databases from a comparative viewpoint. The thesis begins with the brief introduction to internet and cloud computing technology, including the definitions, features and classifications. Afterward, it describes the search and seizure of digital evidence as a general, and it contains both case law in US and the recent study on the approaches and regulations in Taiwan. At last, it provides the research on search and seizure of digital evidence within cloud databases consisting of the consent search, warrant requirements and Stored Communications Act. Besides, it also illustrates the current investigations on searching and seizing of digital evidence within cloud databases in Taiwan.
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LEE, CHIN-TING, and 李金定. "The Research On Discovery of Evidence In Criminal Procedual." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/53755999327622950413.
Full textAbstract:
博士輔仁大學
法律學系
103
The typical criminal justice systems in the world can be roughly divided into the adversary/accusatorial system and the inquisitorial system, depending on whether or not the parties take dominant position in criminal proceedings. The criminal procedure system in Taiwan has been moving towards an adversary/accusatorial model from an inquisitorial one. Under the adversarial proceedings including the operation of cross-examination, the study on evidence discovery system is expected to become a major concern. This academic research is made in order to explore if the rights of both parties can be equally respected so as to ensure the successful functioning of this new system in the future. With a view to enhancing the defense capacity of the accused and imposing substantially burden of proof onto the prosecution as well, hearsay rule and cross-examination were adopted among others by Taiwan legislation in the Criminal Procedure Law in Taiwan. Yet the adversary system was not completely adopted in current Taiwanese criminal procedure. The amended system was baptized accordingly as the so-called “reformed adversary system”. In addition, the indictment-only doctrine of Japanese criminal legal system was taken by some researchers as a reform model in Taiwan. They argued the Japanese doctrine bears a potentiality for improving or at least reinforcing the current criminal procedure system. This paper basically agrees to those research conclusions: enabling the accused to get access to the evidence items which are held by the prosecutors in pre-trial phase can be one of the main problems we are going to confront, once an indictment-only system is introduced in our system. The so-called “evidence discovery” means whether a party shall fully demonstrate, in investigation or pre-trial proceedings, all the evidence in his or her custody to the other party and allow the opponent to inspect and copy those evidentiary items. Under general circumstances, the items of evidence obtained by the prosecution are much more than those by the accused. Thus, the main issue of evidence discovery in criminal proceedings is therefore concentrated in how and to what extent the prosecutors are to disclose to their defendants the evidence under their control. In other words, evidence discovery measures are indispensable in investigation or pre-trial phase in an indictment-only procedural setting. In Japan, the evidence discovery system has been carried out for quite a few years. Certainly the foreign system can give us certain enlightenment if we take a close look at its origin, practice and the developments over years, as well as the proposed measures for improving this system. A new evidence discovery system was implemented in Japan in November 2005. This paper is giving a brief introduction to its applicable cases, procedures, discovery methods, and related penalties provisions. Some discussions will be followed on the disputes in theory as well as in practice in the country. United-States, United-Kingdom and Canada are the three countries that keep long history of adversary system. As such, the existing practice and the future trend of their evidence discovery/disclosure systems are worth exploring. This article takes therefore a substantial part in discussing the issues in respect to the history, reforms, contents, and controversies of the discovery or disclosure system in each country. Judicial Yuan in Taiwan proposed a Trial Assessor System in June 2012. Some local courts have been thus designated as the “test” forums. If this new system is formally implemented in the future, the issue of evidence discovery will certainly be involved. One of the critical concerns is to combine evidence discovery system and the Trial Assessor System with a view to improving the efficiency of criminal trial and enhancing trial quality, enabling the criminal justice system to be closer to the expectation of the public. This thesis also puts forward with some stipulation suggestions on discovery provisions for preliminary proceedings so that the two previous systems can work better. In addition, certain discussion efforts are made as well with respect to the scope of discovery, mandatory defense with attorney, and the potential abuse of discovered evidence. At last but not the least, the paper made a brief review over the proposed amended provisions presented by the Supreme Court on evidence discovery system, with a humble hope that one might take it as reference for future amendment to the Criminal Procedure Law in Taiwan.
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Spamers, Marozane. "A critical analysis of the psycholegal assessment of suspected criminally incapacitated accused persons as regulated by the Criminal Procedure Act." Diss., 2011. http://hdl.handle.net/2263/25053.
Full textAbstract:
This dissertation critically investigates the current framework for psycholegal assessment of accused persons who are suspected or alleged to have lacked criminal incapacity at the time of committing an offence. This system must function as effectively as possible to ensure the interests of justice and the community are best served. Issues that impact how effectively the criminal justice system collaborates with psychologists and psychiatrists, who act as expert forensic mental health assessors, are identified and recommendations are made accordingly. The study first examines the theoretical base regarding the terminology surrounding criminal capacity, mental illness and automatism, with regard to how the understanding of concepts differ in law and psychology and psychiatry and how this negatively affects the process of assessment. The study then investigates the constitutional rights of accused persons admitted for observation, the effect this has on the patient and legal process, the accuracy and reliability of the diagnosis and the admissibility of expert evidence. Next a comparative study is made utilising English Law as a tool for analysis. The main findings are that lack of understanding and clarity are the main issues that hinder the collaboration between the legal and mental health care professions and that this may be remedied by a system of registration and education for forensic psycholegal assessors. An alternate and concurrent method of direct referral is also suggested as it may relieve some of the strain on the current system.Dissertation (LLM)--University of Pretoria, 2011.
Public Law
unrestricted
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WANG, MING─HUEI, and 王敏慧. "A Study Of The Amended Criminal Procedure Law Of The People Republic Of China ─ The Exclusion Of Illegal Evidence." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/yqcw22.
Full textAbstract:
碩士東吳大學
法律學系
103
Abstract Because Criminal Procedure in Mainland China has emphasized on the pursuit of substantial reality for a long time, the exclusion of illegal evidence is naturally easy to be neglected. Furthermore, the investigators traditionally hold the notion of presumption of guilt, and they are under the pressure of hoping to break the case soon, as well as lacking investigation wisdom or facilities, so they may collect the evidence under illegal ways, one infringe upon human rights the most of those is extorting confession by torturing suspects or defendant. Although Criminal Procedure Law of People Republic of China has stipulated that it’s forbidden to illegally collect evidence, and judicial apparatuses have also issued explanations that a verdict shall not be based on illegal evidence, Criminal Procedure Law of People Republic of China doesn't eliminate the use of illegal evidence, and the said explanations eventually are not laws or regulations; therefore, the effectiveness of illegal evidence is still controversial. Secondly, in the event that a defendant claims that the evidence was obtained illegally, there is vacancy on operation procedure of investigation and exclusion, no matter in Criminal Procedure Law,of People Republic of China itself or relevant judicial explanations, causing it difficult or unable for judges to eliminate illegal evidence, and further resulting in the serious encroachment on suspect's or defendant's human rights. Hence, many wrongs are procured, and the governmental image and the people’s faith in judiciary are stricken. In order to solve the situation that illegally obtaining evidence result in serious encroachment on suspect’s or defendant's human rights, and moreover affect the discovery of reality, the authorities concerned in Mainland China added relevant articles and clauses to Criminal Procedure Law stipulating the Rule of eliminating illegal evidence and the protection for suspects and defendants in 2012, hoping those can prevent the action of illegally obtaining evidence from happening. In this essay, first, I will introduce the origin, development,meaning and advantages and disadvantages of Rule of eliminating illegal evidence. In addition, I will survey and analyze the elimination rules for illegal evidence and relevant measures in Criminal Procedure Law of People Republic of China and other judicial explanations in light of the emendation of Criminal Procedure Law of People Republic of China in 2012. Third, I will compare the newly-amended laws with the former one, to review the insufficiency for the newly-amended laws. Finally, the contribution of well-known wrongs in Mainland China will be analyzed, for discussing if there are other reasons contributing the wrongs besides the inadequacies of the laws and regulations. In the hope of comprehending if the Rule of eliminating illegal evidence and relevanjt implement in amended Criminal Procedure Law of People Republic of China in 2012 could achieve the goals of stopping extorting confession by torture taking place again, and provide some advice. Key Words: illegal evidence, Rule of eliminating illegal evidence, extorting confession by torture, right of silence
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Klein, Jakub. "Dokazování elektronickými důkazními prostředky." Master's thesis, 2019. http://www.nusl.cz/ntk/nusl-397087.
Full textAbstract:
Substantiation of Electronic Evidence Abstract This thesis addresses the procedural questions of securing and presenting electronic evidence in criminal proceedings. The use of modern devices and the subsequent creation of electronic evidence is very common, making it necessary for legislation as well as investigative, prosecuting and adjudicating bodies to set out an adequate framework for securing and producing such evidence. The thesis seeks to determine the limits of this framework with regard to the rights to a fair trial, privacy and secrecy of correspondence, as well as the principle of public authority interference minimization, keeping in mind that electronic evidence must be secured and produced in accordance with the Criminal Procedure Code, the Constitution and enforceable international treaties, respecting the rights of individuals but also allowing criminal proceedings to reach their ultimate goal. The thesis first concentrates on traditional instruments of securing evidence, e.g. search warrants, seizure of an item, operative-search means or various types of wiretapping. These general findings are then applied to commonly used information technologies, such as emails, documents stored on websites or social media platforms, as well as communication conducted via mobile applications. In its...
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Campos, Juliana Filipa Sousa. "O malware como meio de obtenção da prova em processo penal." Master's thesis, 2019. http://hdl.handle.net/10316/90363.
Full textAbstract:
Dissertação de Mestrado em Direito apresentada à Faculdade de DireitoNum momento em que a encriptação surge como uma resposta aos problemas que a privacidade enfrenta no plano digital, observa-se que a investigação criminal se depara com dificuldades na obtenção da prova da prática de crimes. Desse modo, avança-se com a introdução do malware no processo penal, o qual surge como um mecanismo “camaleónico” e sui generis, que potencia a obtenção de uma enorme quantidade de dados do sistema, mas também permite a recolha de prova externa, uma vez que possibilita a ativação de hardware. Assim, se por um lado a sua utilização se justifica em nome da descoberta da verdade material e da realização da justiça, por outro assiste-se a uma restrição de diversos direitos fundamentais do arguido, mas também de terceiros.Desta feita, recentemente, assistiu-se à sua consagração na legislação de diversos países europeus, mas também nos EUA, como um meio de obtenção da prova para dar resposta aos novos “fenómenos criminosos” que se socorrem de meios que ombreiam com os do Estado, tornando-se possível traçar um conjunto de requisitos comuns na sua previsão.Por sua vez, no ordenamento jurídico português, alguma doutrina vem defendendo a sua utilização a coberto das disposições existentes para outros meios de obtenção da prova já consagrados na lei processual penal, descurando as especificidades que aquele apresenta, o que levanta problemas de ilegalidade e insconstitucionalidade, não podendo o malware ser legitimado nesses preceitos. De facto, tem de ser o legislador, mediante lei expressa e determinada, a proceder à sua previsão autónoma e específica, exigindo-se que opere a concordância prática das finalidades em conflito.
At a time when encryption is emerging as an answer to the problems that privacy faces in the digital field, it is observed that criminal investigations are encountering difficulties in obtaining evidence of the commission of crimes. In this way, the introduction of malware into criminal proceedings is advanced, which appears as a "chameleonic" and sui generis mechanism, which enables the obtaining of an enormous amount of data from the system, but also allows the collection of external evidence, since it enables the activation of hardware. Thus, if on the one hand its use is justified in the name of the discovery of material truth and the realization of justice, on the other hand we are witnessing a restriction of several fundamental rights of the accused, but also of third parties.Thus, recently, it has been enshrined in the legislation of several European countries, but also in the United States, as a means of obtaining evidence to respond to the new "criminal phenomena" that use means that overlap with those of the State, making it possible to draw up a set of common requirements in its provision.In turn, in the Portuguese legal system, some doctrine has been defending its use under the cover of the existing provisions for other means of obtaining evidence already enshrined in the criminal procedural law, disregarding the specificities that it presents, which raises problems of illegality and unconstitutionality, and malware cannot be legitimated in these precepts. In fact, it must be the legislator, by means of an express and determined law, to proceed with its autonomous and specific provision, requiring it to operate the practical concordance of the conflicting purposes.
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Faurie, Annari. "The admissibility and evaluation of scientific evidence in court." Diss., 2000. http://hdl.handle.net/10500/16774.
Full textAbstract:
Increasing use is being made of various types of scientific evidence in court. The
general requirement for the admissibility of such evidence is relevance. Although
expert evidence is considered to be opinion evidence, it is admissible if it can assist the
court to decide a fact in issue; provided that it is also reliable. In South Africa, the
initial wide judicial discretion to either admit or exclude unconstitutionally obtained
evidence, has developed into a more narrowly defined discretion under the final
Constitution. Examples of scientific evidence, namely, DNA evidence, fingerprints,
psychiatric evidence, bite-mark evidence and polygraph evidence are considered and
problems inherent in the presentation of such evidence in courts in various jurisdictions
are highlighted. An investigation of the presentation and evaluation of evidence in
both the accusatorial and inquisitorial systems seems to indicate that the adversarial
procedure has a marked influence on the evaluation of evidenceCriminal & Procedural Law
LL.M. (Law)
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Vopršal, Ondřej. "Zásada volného hodnocení důkazů v judikatuře." Master's thesis, 2011. http://www.nusl.cz/ntk/nusl-297536.
Full textAbstract:
The aim of this thesis is to represent in detail one of the fundamental principles of the Czech criminal procedure, the principle of free evaluation of evidence. At first the thesis deals with theoretical aspects of this principle, since they are almost unavailable in the modern literature. The author afterwards analyses the extensive judicature of Czech courts (including the Constitutional court) related to general issues of evaluation of evidence as well as to particular means of proof. The thesis also contains proposals of legislative changes, as the legal regulation of criminal procedure seems to be no longer satisfactory.
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Ncube, Njabulo. "Procedures for searching evidence in the investigation of computer-related crime in Bulawayo, Zimbabwe." Diss., 2015. http://hdl.handle.net/10500/21021.
Full textAbstract:
Text in EnglishThe continued advancement in myriad technological, societal and legal issues has affected the investigation of computer aided crimes. The investigators are confronted with tremendous impediments as the computer aided and traditional crime scenes differ. The study sought to analyse the procedures for searching evidence in the investigation of computer-related crime with the intention to improve admissibility of such evidence. The researcher employed empirical design to reach conclusions based upon evidence collected from observations and real life experiences. This aided the researcher to obtain information through face-to-face interviews. The study was qualitative in approach as it consisted of a set of interpretive and material practices that make the real social world visible. The training curriculum for investigators should include aspects of computer-related crime investigation, search and seizure of computer evidence. Search and collection of computer-related evidence should be done preferably by qualified forensic experts, so that evidence is accepted in court.
Police Practice
M. Tech. (Forensic Investigation)
47
Mokonyama, William Madimetja. "A critical analysis of the procedures followed to conduct identification parades : a case study in Mpumalanga, South Africa." Thesis, 2010. http://hdl.handle.net/10500/3530.
Full textAbstract:
The research attempts to establish how an identification parade
should be conducted, for evidence derived from it to be admissible in court. To conduct effective investigation, it is important for investigators to be familiar with the concept “identification parade”, its purpose, the procedures to conduct it and its values.
To achieve the goals and objectives of the practice of an identification parade, investigators must know how to conduct it, what the value of its evidence is, and how to use it as a technique to identify suspects.
The direction, by implication, and clarification of the crime situation, is hardly possible without the determination of the identity of the perpetrator or suspect of a criminal act. The recognition of the identification parade as a form of evidence gathered is of the utmost importance.Criminology
Thesis (M.Tech. (Forensic Investigation))
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Strydom, Jacoba Maria. "Bewysregtelike aspekte by 'n verweer van ontoerekeningsvatbaarheid in strafregtelike verrigtinge." Diss., 1996. http://hdl.handle.net/10500/16138.
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Summaries in Afrikaans and EnglishText in Afrikaans
'n Kort elementologiese uiteensetting vir strafregtelike aanspreeklikheid word gevolg deur bewysregtelike begrippe wat van toepassing is op vermoedens by toerekeningsvatbaarheid. Die historiese regsposisie asook die ontwikkeling in die huidige Suid-Afrikaanse reg met betrekking tot geestesongesteldes, kinders en persone wat 'n verweer van nie-patologiese ontoerekeningsvatbaarheid insluit, word bespreek. Daar word gekonsentreer op ·die ontwikkeling van 'n algemene verweer van niepatologiese ontoerekeningsvatbaarheid. Die konstitusionele reg, vennoedens en ontoerekeningsvatbaarheid word aan die hand van Suid-Afrikaanse regspraak en die Interim Grondwet bespreek. Daar word na buitelandse reg gekyk ten einde 'n aanbeveling te kan maak wat grondwetlik nie sal indruis op die reg van die individu tot onskuld nie. 'n Algemene verweer van nie-patologiese ontoerekeningvatbaarheid word onderstellll mits dit met omsigtigheid deur die howe benader word. Die arbitrere ouderdomsgrens vir vasstelling van toerekeningsvatbaarheid by kinders word gekritiseer en 'n verhoorbaarheidvasstellingseenheid word aanbeveel.
A short elementological discussion of criminal responsibility is followed by concepts of law of evidence that is applicable to presumptions of accountability. The historical legal position as well as the development in the current South African law and the present legal position with reference to the mentally disturbed children and persons with a defence of non-pathological unaccountability are included and discussed. The constitutional law, presumptions and unaccountablility are discussed with reference to the South African case law and the Interim Constitution. Foreign law is perused so that a recommendation could be made that would not interfere with the rights of the individual to be deemed innocent. A general defence of non-pathological unaccountability is supported if it is treated with the necessary circumspection by the courts. The arbitrary age boundaries for the determination of accountability in children is critized and a unit to determine trialability for pathological and non-pathological accountability is recommended.
Criminal & Procedural Law
LL.M.
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Zelenka, Jan. "Důsledky porušení předpisů o dokazování pro účinnost důkazů." Master's thesis, 2020. http://www.nusl.cz/ntk/nusl-411561.
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1 The Consequences of Breaching the Rules of Evidence for the Effectiveness of the Evidence Abstract This diploma thesis deals with the phenomenon of ineffective evidence in criminal procedures as a result of a breach the rules of evidence. The aim of the thesis is to submit current regulations about evidence in the Czech legal system, evaluate it and shine a light on certain problems. Can a criminal procedure be just if the essential principles are trampled on and the government breaks the law? Are there any barriers preventing geovernment arbitrariness? This thesis tries to answer these questions by introducing legal institutes based on area of evidence in criminal procedure. Thesis consists of six parts - four chapters, introduction and conclusion. The first chapter deals generally with evidence and its specifics in criminal law. It defines crucial terminology to understand this topic thoroughly and shines a light on principles of evidence. The second chapter revolves around admissibility and especially efficiency of evidence as a result of a breach in the rules of evidence by law enforcement. That breach of evidence has to fulfill a certain level of severity which has an important part in evidence ineffectivity. In the very last part of this chapter the author suggests legislative changes according to a...
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Ramatsoele, Pitso Petrus. "The ascertainment of bodily features of the accused person in terms of the Criminal Procedure Act 51 of 1977 and related enactments and problems encountered by the police in the application of the Act." Diss., 2014. http://hdl.handle.net/10500/14212.
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The State as the representative of the victims of crime is expected to protect those vulnarable group of people with due regard to the rights of the perpetrators’s of crime. It is imperative that the law of general application which is aimed at protecting victims of crime, be sufficiently effective to protect the victims. The Criminal Procedure Act 51 of 1977 is aimed at assisting the police to conduct pre-trial criminal procedure in order to bring perpetrators of crime to book. Sections 36A, 36B, 36C and 37 (both previous and as amended) of the Criminal Procedure Act including chapter 5A of the South African Police Act, 1995 are explored in this dissertation.
This dissertation examines the areas in the Criminal Procedure Act that make it problematic for the police to conduct efficient and effective crime detection through the ascertainment of bodily features of the suspected or accused person. The law in three foreign jurisdictions relating to this topic are investigated and compared in order to make recommendations and suggest possible solutions.Criminal & Procedural Law
LL.M.