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1
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.
2
Radosavljevic, Dragana. "International criminal court, surrender of accused persons and transfer of criminal proceedings." Thesis, University of Westminster, 2006. https://westminsterresearch.westminster.ac.uk/item/92714/international-criminal-court-surrender-of-accused-persons-and-transfer-of-criminal-proceedings.
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The present research focuses on analysing the judicial uncertainty in the implementation, interpretation and application of the ICC Statute both in international and national arenas. In this context examined are the parameters of state sovereignty as the main source of theoretical as well as practical contemporary debate on the relationship between lex specialis character of ICC norms and domestic legal regimes. Varying and frequently inconsistent degrees of international and national compliance with international criminal law due to the multiplicity of legal regimes are scrutinised by analysing the relationship between national and ICC measures with regard to aspects of pretrial proceedings, such as surrender of accused persons and transfer of criminal proceedings, rights of suspects and defendants as well as some aspects of sentencing in so far as they affect the prima facie jurisdiction. One of the main objectives of the ICC Treaty is to advance the unification of international criminal law. Whilst it may be contended that this body of law is acquiring a great degree of specificity and uniformity in content through the Statute, both its development and importantly its scope are fundamentally reliant on interpretation and application at national level; it is here that international criminal law is fragmented. Consequently, its understanding and enforcement are inconsistent. The ICC Statute presents issues that are the result of the fusion of common and civil law traditions as well as a blend of diverse criminal laws within each one of those systems. Distinguishing between Anglo-American and Continental European criminal procedures has become increasingly complex and transgressed. Such blend of legal traditions, whilst it must ensure that justice is rendered with equality, fairness and effectiveness, generates nevertheless everincreasing lack of legal orientation. The aim of this pastiche is therefore to establish an international, uniform standard across contemporary justice systems. However, the application of the ICC provisions will depend on particular method of implementation of the Rome Treaty into domestic law, local political situation, the nature of a conflict (armed conflict is where most of the ICC crimes are likely to occur), any peace process involving regional amnesties and pardons and domestic policies and rules on sentencing. The general perception of the ICC and the law it represents is that of a powerful, centralised regime. Contrary to this belief, a proposition is made here for a less hierarchical international criminal justice that is fundamentally reliant upon national courts and law enforcement agencies. Such a proposition emphasises the need for the ICC involvement at a local level. In this context, the thesis sets out to clarify the ICC law and related Statute enforcement issues.
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Appiah, Eric Yeboah. "Right to fair trial in Ghana criminal proceedings." Doctoral thesis, Universitat Pompeu Fabra, 2017. http://hdl.handle.net/10803/403064.
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Fair trial in the criminal process of Ghana has been violated, constrained and compromised because procedural rights of the accused remain unenforceable. The current legal instruments within the liberal framework for protection are misguided, and the existing instruments do not guarantee the right here in ques-tion. The dissertation discusses procedural rights that interrelate with the prin-ciple of equality of arms. I advocate that the system fails to put the criminally accused on equal balance and relative equality with the state prosecution. For interest of justice, I suggest that legal aid lawyers should be assigned to repre-sent the unrepresented accused at the state expense where the accused has no means to pay. This remains dormant, basic and in superficial application in Ghana. How imperative customary law proceedings as a complement to the English system has been unfolded; and the distinguishing features between Ghana and England/Wales criminal law procedure; impact of the African Char-ter and European Convention over the domestic criminal proceedings of Ghana and England/Wales has been analysed.<br>Juicio justo en el proceso penal de Ghana ha sido violada, constreñido y comprometida debido a los derechos procesales o de procedimiento de los acusados sigue siendo inaplicable. Los instrumentos legales actuales dentro del marco liberal para la protección son equivocados, y los instrumentos existentes no garantizan la cuestión en el presente documento derecha. Se analizan los derechos de procedimiento que se interrelacionan con el principio de igualdad de armas. Abogo por que el sistema no puede poner el acusado penalmente en igualdad de equilibrio y la igualdad en relación con la fiscalía estatal. Por el interés de la justicia, sugiero que abogados de oficio deben ser asignados para representar al acusado sin representación a expensas del estado en el que el imputado no tiene que pagar. Este permanece latente, básico y en aplicación superficial en Ghana. La necesidad imperiosa de un procedimiento de derecho consuetudinario como complemento al sistema de Inglés ha sido desplegada; y las características distintivas entre Ghana e Inglaterra / Gales del procedimiento penal; impacto de la Carta Africana y el Convenio Europeo sobre el proceso penal interno de Ghana e Inglaterra / Gales ha sido analizado.
4
Schüttpelz, Kai Oliver [Verfasser]. "Witness Preparation in International and Domestic Criminal Proceedings / Kai Oliver Schüttpelz." Baden-Baden : Nomos Verlagsgesellschaft mbH & Co. KG, 2014. http://d-nb.info/1107613558/34.
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Cashman, Peter Kenneth. "Legal representation and the outcome of criminal proceedings in magistrates' courts." Thesis, University of London, 1989. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.322284.
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Süße, Sascha, and Carolin Püschel. "Collecting evidence in internal investigations in the light of parallel criminal proceedings." Universitätsbibliothek Leipzig, 2016. http://nbn-resolving.de/urn:nbn:de:bsz:15-qucosa-199168.
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Cunha, Fernando Bertolotti Brito da. "As medidas cautelares no processo penal: efetividade e eficiência no processo e os direitos e garantias fundamentais." Pontifícia Universidade Católica de São Paulo, 2017. https://tede2.pucsp.br/handle/handle/19731.
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Previous issue date: 2017-02-17<br>Coordenação de Aperfeiçoamento de Pessoal de Nível Superior - CAPES<br>In this work, we intend to present the outlines of the new paradigm of the Brazilian criminal process that emerged after the advent of the Federal Constitution of 1988, and the main characteristics and theoretical references of what we will call constitutional criminal procedure. In this context, we will try to rethink the idea of efficiency in criminal proceedings taking into account, in particular, the studies conducted by the Law and Economics School. Lastly, we will present the precautionary criminal proceeding as a possible route to an efficient constitutional criminal procedure<br>No presente trabalho, pretendemos apresentar os contornos do novo paradigma do processo penal brasileiro surgido a partir do advento da Constituição Federal de 1988 e as principais características e referenciais teóricos daquilo que chamaremos de processo penal constitucional. Nesse contexto, trataremos de repensar a ideia de eficiência no âmbito do processo penal, levando em conta, especialmente, os estudos conduzidos pela escola da Law and Economics. Por fim, apresentaremos o processo penal cautelar como possível caminho para o processo penal constitucional eficiente
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Dumani, Msebenzi. "Aspects of expert evidence in the criminal justice system." Thesis, Nelson Mandela Metropolitan University, 2005. http://hdl.handle.net/10948/435.
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The rule excluding evidence of opinion is traditionally stated in broad and general terms, subject to a more or less closed list of exemptions. Stephen says that a witness’s opinion is “deemed to be irrelevant”. A witness may depose to the facts which he has observed, but he may not ordinarily state any inferences which he has drawn from those facts, or opinions founded upon facts of which he has no personal knowledge. The general rule is that the evidence of opinion or belief of a witness is irrelevant because it is the function of a court to draw inferences and form its opinion from the facts; the witnesses give evidence as to the facts and the court forms its opinion from those facts. The opinion of an expert is admissible if it is relevant. It will be relevant if the witness’s skill, training or experience enables him materially to assist the court on matters in which the court itself does not usually have the necessary knowledge to decide. Where the topic is such that an ordinary judicial officer could be expected to be able, unassisted, to draw an inference, expert evidence is superfluous. In principle, there is no rule that a witness cannot give his opinion on an issue that the court has to decide ultimately. It is not experts alone who may give their opinions on ultimate issues but, in practice, there is a strong tendency to regard the evidence of lay persons on ultimate issues as constituting prima facie evidence only. If such lay testimony remains unchallenged, it may be of greater significance. It is generally true that relevant evidence is admissible and irrelevant evidence is inadmissible. At this stage the following question may be posed: is the opinion of any witness – whether from an expert or lay person – admissible evidence? Should an opinion be admitted for purposes of persuading the court to rely on it in deciding the issue at hand? The basic answer is that relevance remains the fundamental test for admissibility. Certain issues simply cannot be decided without expert guidance. Expert opinion evidence is therefore readily received on issues relating to ballistics, engineering, chemistry, medicine, accounting and psychiatry, to mention only a few examples. The problem which arises is this: what is the best way of cross-examining the expert witness? Although the concept of skilful cross-examination conjures up the image of the crossexaminer destroying the expert witness in the witness box, total annihilation of expert evidence in court occurs only rarely. In reality, lawyers who are expected to cross-examine experts are often at a disadvantage in that they do not possess sufficient in-depth knowledge of the specific field of expertise to enable them to cross-examine the witness. Despite the expert nature of the evidence, it is suggested that the true basis of crossexamination should not be abandoned when dealing with experts. The effectiveness of crossexamination is enhanced by keeping the number of questions to a minimum as well as opening and concluding with good strong points. At the outset it should be mentioned that there is a distinction between matters of scientific fact and matters of mere opinion. On matters of scientific fact experts seldom differ but within the province of opinion one encounters difficulties. Lengthy cross-examination concerning expert’s theoretical knowledge is usually inefficient and should rarely be attempted. Cross-examination should be directed at pure logic or scientific analysis. The cross-examiner should always have relevant authority with him in court so as to confront the expert with these. The whole effect of the testimony of an expert witness can also be destroyed by putting the witness to test at the trial as to his qualifications, his experience and his ability and discriminations as an expert. A failure to meet this test renders his evidence nugatory.
9
Slot, Janneke. "An evaluation of the forensic accountant's role in criminal law proceedings / by J. Slot." Thesis, North-West University, 2013. http://hdl.handle.net/10394/9839.
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Forensic accountants are occasionally called upon to assist in criminal law proceedings. The role of the forensic accountant in such proceedings is usually determined during the engagement of the forensic investigation to assist in the matter under investigation. During such investigations, various investigation techniques may be utilised by the forensic accountant in order to convey the facts and findings of the forensic investigation in a written report, drafted by the forensic accountant. When criminal prosecutions are instituted and the forensic accountant is called upon to act as an expert witness, such evidence is mostly based on the findings of the written report. Thus, in giving evidence, the forensic accountant must ensure that the testimony and evidence will be admissible in court and that the forensic accountant is found to be a credible witness.
Although there are various legal standards that the forensic accountant must adhere to, the ICFP, which is the South African regulatory body for commercial forensic practitioners, is still in its infancy and has as yet not set any standards with which forensic accountants must comply with when assisting in criminal investigations or drafting written reports.
The objective of this study is to highlight the role of the forensic accountant in criminal law proceedings. This objective is reached by clarification of the following:
• the difference between a forensic accountant and an auditor;
• the techniques available to the forensic accountant when conducting a forensic investigation;
• the standards with which a forensic accountant‘s report should comply; and
• the forensic accountant‘s role in testimony.
The study illustrates the difference between a forensic accountant and an auditor and suggests a definition for a forensic accountant. The study furthermore explores various techniques that the forensic accountant may utilise during the investigation. The study also analyses the legal standards with which a forensic accountant must comply in order to ensure the admissibility of the written report and its findings. In order to achieve this, international regulatory standards applicable to forensic accountants are analysed and discussed. Finally, the role of the forensic accountant in court proceedings is examined.
The illustrations in this study will be helpful in determining standards that could be implemented in South Africa to guide forensic accountants in their role in criminal law proceedings.<br>Thesis (MCom (Forensic accountancy))--North-West University, Potchefstroom Campus, 2013.
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Abu-Baker, Ben-Younis Huda M. "Expert evidence in criminal proceedings : a comparative study (English adversarial and Libyan inquisitorial systems)." Thesis, Manchester Metropolitan University, 2005. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.420864.
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Hlophe, Stanley Siphiwe. "The adoption of an inquisitorial model of criminal procedure in court proceedings relating to children." Thesis, Nelson Mandela Metropolitan University, 2011. http://hdl.handle.net/10948/1570.
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In this project the adoption of an inquisitorial model of criminal procedure in court proceedings relating to children is discussed. The traditional characteristics of adversarial and inquisitorial models of criminal procedure, the two models in a South African perspective and problems with the adversarial model are highlighted. That it terrifies and silence young victim and witnesses from giving evidence. The inquisitorial elements present in South African criminal procedure such as in bail proceedings, plea proceedings, powers of the presiding officer to call, recall and examine witnesses, powers of the presiding officer to exclude inadmissible evidence, evidence on sentence, and investigation on unreasonable delay on trials are discussed. The international instruments pertaining to children in conflict with the law and child witnesses are examined, together with their impact in our laws relating to children. The constitutional implications to the rights of children are discussed. The historical background that culminated to the Child Justice Act is highlighted. The Child Justice Act with particular reference to the inquisitorial aspects present in this Act is discussed. The measures that aim to protect child witness present in the Criminal Procedure Act, Criminal law Sexual offences and Related Matters Amendment Act and Children’s Act are highlighted. The conclusion, on the analysis of protective measures protecting children, is that in South African law there is a renewed interest in inquisitorial procedures as an effective means of ensuring justice. The conclusion suggests that adversarial model of criminal procedure is not the best method for our legal system to deal with children.
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Mwesigwa, Peter Katonene. "An analysis of the difficulties related to victim participation before the International Criminal Court and the extraordinary chambers in the courts of Cambodia." Thesis, University of the Western Cape, 2012. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_7360_1373278546.
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<p>By any standard, victim participation is a relatively new phenomenon in international criminal law proceedings. Incredible advances have been made in the effort to end impunity for crimes against <br>umanity, war crimes, genocide and, more recently, aggression. As a result, great strides have been made in ensuring the direct participation of victims of grave violations of human rights <br>in court proceedings against their perpetrators. Prior to this, grave violations of human rights committed during conflicts or periods of mass violence were either largely ignored or even if action <br>was taken, victims of the crimes hardly had a &lsquo<br>say&rsquo<br>in the proceedings. With the advent of the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) <br> <br>new dawn in the proceedings of international criminal law has emerged. The statutes that govern the ICC and ECCC have given a voice to victims in court proceeding buy ensuring <br>victims participation.Despite these advances, scholars have criticized victim participation for being inconsistent in its application at the International Criminal Court.1 The criticism has come from <br>scholars who have highlighted the unintended consequences of victim participation in court proceedings, arguing that their participation has resulted in the under- or misrepresentation of the <br>actual experience of survivors of war, mass violence, or repression. These problems have arisen largely because the need to establish the guilt or innocence of the accused and to protect their <br>due process rights, to abide by the rules of evidence and procedure, and to conserve judicial resources all cut against victim-witnesses'ability to tell their stories at these tribunals thereby <br>resulting in a limited, and sometimes inaccurate, record of victims' experience.</p>
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Henriques, Fábio Rodrigo de Paiva. "Foro especial criminal por prerrogativa de função: da necessária desconstrução do paradigma racionalista para alcance da efetividade da ação penal originária." Universidade Católica de Pernambuco, 2015. http://www.unicap.br/tede//tde_busca/arquivo.php?codArquivo=1148.
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O foro especial criminal por prerrogativa de função é frequentemente criticado tanto pelo tratamento diferenciado conferido aos acusados, como pelas dificuldades de sua operacionalização, uma vez que o modo de ser da respectiva ação penal, com todas as suas particularidades, retarda a tramitação, fere importantes princípios do processo penal e, invariavelmente, confere ao processo a pecha de instrumento de impunidade. O presente estudo buscará, inicialmente, a partir de um resgate histórico, apresentar de que forma o discurso da prerrogativa de foro, com enunciados firmados desde a Grécia antiga e bastante influenciado pelos dogmas do Direito Canônico
(privilegium fori), enraizou-se no ordenamento jurídico brasileiro e se
transformou em uma verdade paradigmática com cruciais reflexos no
procedimento penal. Em seguida, serão analisados os inúmeros obstáculos existentes na tramitação da ação penal originária, entre eles a estrutura física dos Tribunais, a ausência de especialização de servidores e magistrados, a possibilidade de frequentes deslocamentos de competência, o alto custo do processo, o distanciamento do julgador em relação à instrução processual e a ausência de duplo grau de jurisdição. Ao final, não prevalecendo as várias propostas legislativas já existentes para abolir a aludida competência especial,
será proposta a criação de um instituto processual alternativo apto, ao menos, a inibir a aplicação banalizada da prerrogativa de foro e adequar o processo a um modelo que, assegurando o eficaz exercício das garantias processuais, possa resolver o conflito em tempo razoável e de forma menos custosa, para que o processo não seja fonte perene de decepções, tampouco permita o desgaste da legitimidade do sistema jurídico nacional.<br>The prerogative institute is often criticized by the differential treatment given to the accused, but also due to the difficulties of its implementation, since the
"mode of being" of the respective criminal action, with all its peculiarities, slows down the processing, hurts important principles of criminal procedure and invariably gives the fame of impunity instrument. Initially, this study will seek, through historical research, to present how the speech of the forum prerogative, with statements signed from ancient Greece and greatly influenced by the
tenets of Canon Law (privilegium fori), took root in the Brazilian legal system and turned into a rationalist truth with crucial (and harmful) consequences in
criminal proceedings. In sequency, will be analyzed numerous obstacles for the prosecuting of the criminal case, including the physical structure of the Courts,
the absence of specialized servers and magistrates, the possibility of frequent desclocamentos of competence, the high cost of the process, the distance of judge and the absence of double jurisdiction. At the end, despite the already existing legislative proposals to abolish the institute of forum prerogative, will be proposed an alternative procedural institute able, at least, to inhibit trivialized application of the forum prerogative and bring the process to a model that, ensuring the effective exercise of procedural safeguards, can resolve the jurisditional conflict in a reasonable time and less costly, so it's not a perennial source of disappointment, nor allow the erosion of legitimacy of the national
legal system.
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Genis, Marina. "A content analysis of forensic psychological reports written for sentencing proceedings in criminal court cases in South Africa." Pretoria : [s.n.], 2009. http://upetd.up.ac.za/thesis/available/etd-03302010-141420.
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Genis, Marina. "A content analysis of forensic psychological reports written for sentencing proceedings in criminal court cases in South Africa." Diss., University of Pretoria, 2008. http://hdl.handle.net/2263/23628.
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Since the 1970s there has been a rising trend in South Africa for legal professionals to use the services of psychologists in legal proceedings. Psychologists have therefore increasingly started to appear as expert witnesses in court cases. Despite this, the field of forensic psychology in South Africa has yet to be defined and delineated. Currently there are no set guidelines or regulations regarding who is qualified to do forensic work, and no standards against which this work can be measured. Psychology in the courtroom has begun to receive a notorious reputation as a result of this. The Professional Board for Psychology (PBP) of the Health Professions Council of South Africa (HPCSA) is investigating the creation of a new category of registration, that of Forensic Psychologist, partly in an effort to manage and address this problem. However, to date little, if any, research has been conducted on the scope of the work presented to the courts by psychologists appearing as expert witnesses. This research aimed to address this gap by analysing a sample of forensic psychological reports. The following aspects were investigated: <ul><li>Who (category or registration, length of registration, etc.) is doing sentencing reports;</li> <li>How (interviews, collateral information, psychometric tests, etc.) these reports are compiled; and</li> <li>Whether these reports measure up to professional expectations as well as adhere to the guidelines of the HPCSA.</li></ul> It is clear from the results of this research that some of the psychologists doing forensic assessments and writing reports do so in an idiosyncratic way. Besides the fact that no uniformity exists, forensic work is sometimes done by psychologists who are not qualified to do so in terms of their registration category and thus their scope of practice. The reports analysed did not always measure up to guidelines or professional standards from abroad (in lieu of local standards or guidelines for reports) and/or transgressions were made in terms of HPCSA policies and guidelines. This situation is understandable in the light of two shortfalls in this field, namely training and regulation. The following recommendations can be made on the basis of this study: <ul><li>That psychologists who are adequately trained and have the proven experience in forensic work, be accredited by the PBP;</li> <li>That guidelines and standards for forensic work be drawn up by the PBP; in addition, that more complete ethical guidelines than those contained in chapter 7 of the PBP’s Rules of Conduct Pertaining Specifically to Psychology also be drawn up;</li> <li>That adequate training at MA level in basic forensic issues be made compulsory, with the option of advanced training for those wishing to specialise in the field; and</li> <li>That lawyers be trained in basic concepts of psychology so as to allow for better selection of an appropriate psychologist to assist them and also to assure effective cross-examination regarding psychological issues in court.</li></ul> If these recommendations were implemented, they could aid in regulating the field, thus producing forensic work of a consistently high quality. This will hopefully help to narrow the gap between the expected and actual interaction between law and psychology. Copyright<br>Dissertation (MA)--University of Pretoria, 2010.<br>Psychology<br>unrestricted
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Sidhu, Omkar. "The concept of Equality of Arms in criminal proceedings under Article 6 of the European Convention on Human Rights." Thesis, Durham University, 2011. http://etheses.dur.ac.uk/885/.
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Inherent in and at the core of the right to fair trial in Article 6 of the European Convention on Human Rights is the concept of equality of arms, the construct to which this thesis is devoted within the context of criminal proceedings. As a contextual prelude to specific analysis of this concept, a background for Article 6 is first established which identifies influential historical developments in trial rights and provides an outline of the rationale for the Convention and of the content, and applicability, of the article. Thereafter, the thesis offers a theoretical insight on equality of arms, identifying and exploring its value, contemporary international legal basis and constituent elements as per the Strasbourg definition. The insight on the latter recognises an underpinning relationship between the concept of equality of arms and Article 6(3), and introduces the key argument in the thesis: the European Court of Human Rights equates inequality of arms not with procedural inequality in itself, which would be a dignitarian interpretation, but with procedural inequality that gives rise to actual or, in some circumstances, inevitable prejudice. This argument predominates the subsequent survey of case-law in which the Court’s approach to procedural equality is demonstrated and assessed within the context of the right to challenge and call witness evidence (Article 6(3)(d)), the right to adequate time and facilities (Article 6(3)(b)) and the right to legal assistance (Article 6(3)(c)). Though the thesis is based on Article 6 decisions of the Court and, to a lesser extent, the former European Commission of Human Rights, references are made throughout to other national and international legal instruments and judgements whenever instructive.
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Olofsson, Sara. "Concurrent jurisdiction and parallel investigations and criminal proceedings in cases of foreign bribery : With focus on global settlement agreements." Thesis, Uppsala universitet, Juridiska institutionen, 2016. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-295160.
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Mermoz, Vincent. "Les indices en procédure pénale." Thesis, Université Paris-Saclay (ComUE), 2019. http://www.theses.fr/2019SACLS094/document.
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Prenant jadis la forme d’un « signe de divinité » sous le règne des ordalies, l’indice désignerait dorénavant tout « événement, objets ou traces » amené à forger la conviction du juge. Les traits de l’indice se reconnaissent ainsi à la capacité qu’il possède de rendre possible le fait recherché. En ce sens, l’indice ne peut – aujourd’hui comme hier – indiquer directement la culpabilité, bien qu’il demeure – depuis toujours – en capacité de faire présumer l’imputabilité du fait prohibé à l’encontre des personnes suspectées. Les effets attachés à l’indice sont convoités de tout temps, sans pourtant que quiconque ne parvienne à les expliquer. L’indice rend possible, dispose d’un pouvoir spécifique et s’intègre parfaitement au sein du raisonnement dialectique intrinsèque à la matière juridique. Les juristes usent des présomptions fondées sur l’indice aux fins de compenser les lacunes inhérentes à la preuve en matière pénale. Indéniablement, l’indice occupe une place centrale dans le processus probatoire. Néanmoins, un constat de carence s’impose : les raisons pour lesquelles l’indice produit cet effet à la fois si caractéristique et par là même si commun, ne sont jamais explicitées. Sans doute trop prosaïque, l’indice s’est éclipsé à l’arrière-plan d’une preuve pénale devenue prépondérante par la gravité des conséquences juridiques qu’elle justifie. Un regard cette fois plus aiguisé aurait néanmoins pressenti l’enjeu universel d’une telle notion : depuis toujours, l’indice constitue le socle de la preuve. Fondements d’une réalité morcelée que la justice souhaite reconstituer, les indices jalonnent le cheminement procédural jusqu’à l’obtention d’une preuve. Les différentes phases de la procédure pénale s’organisent au rythme des indices interprétés, autant qu’ils forgent une conviction sur le déroulement des faits prohibés. L’intime conviction ancre de fait l’interprétation de l’indice au cœur de la preuve pénale et, avec elle, la perfectibilité d’une construction humaine au centre de la procédure pénale<br>Once taking the form of a "sign of divinity" in the trial by ordeal, the clue would henceforth designate any "event, object or trace" that might forge the judge's conviction. The characteristics of the clue can thus be recognized by its ability to make the desired result possible. In this sense, the clue cannot – today as in the past – directly indicate guilt, although it has always been able to allow for the presumption that the prohibited fact is imputable to suspects. The effects of the clue have always been sought after, without anyone ever being able to explain them. The clue makes possible, has specific power and fits perfectly into the dialectical reasoning inherent in the legal field.Lawyers use clue-based presumptions to compensate for the deficiencies inherent in criminal evidence. Undeniably, the clue occupies a central place in the probationary process. Nevertheless, a finding of deficiency is inevitable: the reasons why the clue produces this effect, which is so characteristic and therefore so common, are never explained. Undoubtedly too prosaic, the clue has vanished into the background of criminal evidence that has become preponderant because of the seriousness of the legal consequences it justifies. A sharper look this time would nevertheless have foreshadowed the universal importance of such a notion: since time immemorial, the clue has been the foundation of proof. As the foundations of a fragmented reality that the justice system wishes to reconstruct, the clues mark out the procedural path until evidence is obtained. The various phases of criminal proceedings are organised according to the rhythm of the interpreted clues, as much as they forge a conviction about the conduct of the prohibited acts. The intimate conviction in fact anchors the interpretation of the clue at the heart of the criminal evidence and, with it, the perfectibility of a human construction at the centre of criminal procedure
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Al-Dusri, Fahad. "The effectiveness of forensic science service in the State of Kuwait in criminal investigations and proceedings : forensic science practice in Kuwait." Thesis, University of Exeter, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.288002.
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Katonene, Peter Mwesigwa. "An analysis of the difficulties related to victim participation before the International Criminal Court and the Extraordinary Chambers in the courts of Cambodia." Thesis, University of the Western Cape, 2012. http://hdl.handle.net/11394/4578.
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Magister Legum - LLM<br>By any standard, victim participation is a relatively new phenomenon in international criminal law proceedings. Incredible advances have been made in the effort to end impunity for crimes against humanity, war crimes, genocide and, more recently, aggression. As a result, great strides have been made in ensuring the direct participation of victims of grave violations of human rights in court proceedings against their perpetrators. Prior to this, grave violations of human rights committed during conflicts or periods of mass violence were either largely ignored or even if action was taken, victims of the crimes hardly had a ‘say’ in the proceedings. With the advent of the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) a new dawn in the proceedings of international criminal law has emerged. The statutes that govern the ICC and ECCC have given a voice to victims in court proceeding buy ensuring victims participation. Despite these advances, scholars have criticized victim participation for being inconsistent in its application at the International Criminal Court. The criticism has come from scholars who have highlighted the unintended consequences of victim participation in court proceedings, arguing that their participation has resulted in the under- or misrepresentation of the actual experience of survivors of war, mass violence, or repression. These problems have arisen largely because the need to establish the guilt or innocence of the accused and to protect their due process rights, to abide by the rules of evidence and procedure, and to conserve judicial resources all cut against victim-witnesses' ability to tell their stories at these tribunals thereby resulting in a limited, and sometimes inaccurate, record of victims' experience. Background: The idea that victims should be allowed to participate in international criminal proceedings stems from a broader movement over the last several decades advocating for restorative, as opposed to merely retributive justice. Proponents of this restorative justice movement maintain that “justice should not only address traditional retributive justice, i.e., punishment of the guilty, but should also provide a measure of restorative justice by, inter alia, allowing victims to participate in the proceedings and by providing compensation to victims for their injuries.” In other words, advocates of this movement believe that criminal justice mechanisms should serve the interests of victims, in addition to punishing wrongdoers, and that the participation of victims in criminal proceedings is an integral part of serving victims' interests. Although the concept of victim participation in criminal proceedings is not easily defined, it has been described as victims “being in control, having a say, being listened to, or being treated with dignity and respect.” Human rights activists supported the concept for several reasons. Many believed, as did victim advocates more generally, that participation in criminal proceedings has a number of potential restorative benefits, including the promotion of victims' “healing and rehabilitation.” Indeed, in its recommendations to the Preparatory Committee on the Establishment of the International Criminal Court (Preparatory Committee I), “participation is significant not only to protecting the rights of the victim at various stages of the proceeding, but also to advancing the process of healing from trauma and degradation.” Some believed that victim participation would bring the court “closer to the persons who have suffered atrocities” and thus increase the likelihood that victims would be satisfied that justice was done. set of recommendations on the ICC elements of crimes and rules of procedure and evidence, noted “the right of victims to participate in the proceedings was included in the Rome Statute to ensure that the process is as respectful and transparent as possible so that justice can be seen to be done . . .” Finally, and significantly for the purpose of this study, human rights activists thought that victim participation might help address the under- or misrepresentation of the experiences of victims. Research questions and objectives of the study: The question this research paper poses is whether victim participation has increased the visibility of the actual lived experience of survivors in the context of war, mass violence, or repression? Under the Rome Statute, victims of the world's most serious crimes were given unprecedented rights to participate in proceedings before the court. Nearly a decade later, a similar scheme was established to allow victims to participate as civil parties in the proceedings before the Extraordinary Chambers in the Courts of Cambodia, created with UN support to prosecute atrocities committed by leaders of the Khmer Rouge during the period of 1975 to 1979. Although there are some significant differences in how the schemes work at the ICC and ECCC, both courts allow victims to participate in criminal proceedings independent of their role as witnesses for either the prosecution or defence. In other words, both have victim participation schemes intended to give victims a voice in the proceedings. Have these new participation schemes before the ICC and ECCC, in fact, helped in satisfying the victims? What impact have they had on the ability of survivors of war crimes, crimes against humanity and genocide to tell their story and to talk about their experiences in their own words? In particular, has victim participation enabled more of them to tell their stories than would have been possible under the more traditional adversarial model employed by the ad hoc tribunals such as the International Criminal Tribunal for Rwanda (ICTR). Has it allowed them to expand the historical record produced by these tribunals with narratives that would otherwise have been left out because of prosecutorial or judicial decisions not to prosecute violations committed against them? Has it enabled victims to communicate a richer, more nuanced picture of their experiences than they were able to in the context of prior tribunals? The aim is to explore whether these novel victim participation schemes, as implemented by the ICC and ECCC thus far, have actually allowed for greater recognition of victims' voices and experiences than was possible in proceedings before their predecessor tribunals. Have these schemes actually allowed victims to communicate a fuller and more nuanced picture of their experiences than they would have been able to do as victim-witnesses before the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR)? In other words, can the victim participation schemes at the ICC answer the call for increased visibility of the actual lived experience of survivors of human rights violations in the context of war, mass violence, or repression?.
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Wines, Anna. "Justice for Victims of Crimes Under the Rome Statute : Is Asylum-Seeking Victims’ Access to Participation in National andInternational Criminal Proceedings Ensured?" Thesis, Örebro universitet, Institutionen för juridik, psykologi och socialt arbete, 2017. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-61291.
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Braga, Hans Robert Dalbello. "O direito fundamental à razoável duração do processo penal e a prescrição da pretensão punitiva." Universidade Nove de Julho, 2015. http://bibliotecadigital.uninove.br/handle/tede/1423.
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Previous issue date: 2015-02-26<br>The research Examines the fundamental right to reasonable duration of the criminal process under the Article 5, paragraph LXXVIII of the Federal Constitution, by the text of the Constitutional Amendment nº 45/2004, with the aim of (re) think their legal interpretation, of the punitive preintention prescription. The study covers the analysis of reasonable duration of the criminal process and its underlying approach to the institution of criminal prescription. To investigate the possibility of the fit of both theories between the two concepts. At first are considered the conceptions of time (absolute and relative) and their intimate relationships with the law, more specifically with the criminal procedural law, considering that all procedural acts are governed by lapse of time. In a second moment is directly addressed the fundamental right to duration of the criminal process and its current hermeneutics inaccuracy. Thus, it held a brief analysis of the doctrine of the fixed term and also the doctrine of non-term as well as the legal consequences and solutions proposed by the academy in the case of non-observance of reasonable time. The third moment it is analised the criminal prescription and the theories that give it grounds for the legitimacy, as well as the nefarious institution of criminal imprescriptibility. At the end it is examined the possibility of the punitive preintention to limitade the period of reasonable duration of the criminal process, taking into perspective the concepts of time previously developed. The research employed the deductive method and the research through the literature.<br>Examina-se o direito fundamental à razoável duração do processo penal previsto no artigo 5º, inciso LXXVIII da Constituição Federal, com a redação dada pela Emenda Constitucional nº 45/2004, com o escopo de (re)pensar sua interpretação jurídica, tendo em vista o instituto da prescrição da pretensão punitiva. O estudo percorre a análise da razoável duração do processo penal e sua latente aproximação com o instituto da prescrição penal. Para tanto investiga a possibilidade de adequação teórica entre os dois conceitos. Num primeiro momento são consideradas as concepções de tempo (absoluto e relativo) e, as suas intimas relações com o direito, mais especificamente com o direito processual penal, haja vista que todos os atos processuais são regidos pelo decurso do tempo. Num segundo momento é abordado diretamente o direito fundamental à razoável duração do processo penal e sua atual imprecisão hermenêutica. Assim, é realizada uma breve análise a respeito da doutrina do prazo fixo e, também da doutrina do não-prazo, bem como das soluções e consequências jurídicas propostas pela academia no caso de não observância do prazo razoável. Num terceiro momento é abordada a prescrição penal e as teorias que lhe fornecem fundamento de validade, assim como o famigerado instituto da imprescritibilidade penal. Ao final examina-se a possibilidade do prazo da prescrição da pretensão punitiva funcionar como limite para a duração razoável do processo penal, tendo em perspectiva as concepções de tempo desenvolvidas anteriormente. A pesquisa realizada utiliza-se do método dedutivo e como técnica de pesquisa a bibliográfica.
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Letsoalo, Lisbeth Ledile. "The protection of children's identities in the criminal justice system: an analysis on section 154(3) of the Criminal Procedure Act 51 of 1977." Thesis, University of Limpopo, 2019. http://hdl.handle.net/10386/3046.
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Thesis ( LLM.) --University of Limpopo, 2019<br>The Constitution of the Republic of South Africa, 1996 provides that a child’s best interests should be of primary consideration in any matter concerning him or her. Contrary to this value, and thereby excluding protection of child victims, section 154(3) of the Criminal Procedure Act 51 of 1977 simply focusses on anonymity protection of child offenders and witness involved in criminal proceedings. It currently expressly prohibits the publication of the identities of child offenders and witnesses when the media makes publications on the relevant criminal proceedings. However, this protection terminates once such child offenders and witnesses attain majority, therefore arbitrarily stripping them of the identity protection. As a result, media houses are not only at liberty to publish on criminal proceedings identifying child victims, but also to expose the identities of child offenders and witnesses upon attaining majority. Such publications have proved to impede on children’s rights, as well as to contribute to the psychological challenges faced by the children whenever they are exposed to the criminal justice system. In this study the constitutional validity of section 154(3) is investigated and it is argued that it is unconstitutional in all respects. The section contradicts the specific right afforded to all children in the Bill of Rights, as well as other ancillary rights, which ought to ensure the progressive realisation of the protection afforded in terms of section 154(3). It is recommended, firstly, that section 154(3) be declared unconstitutional, and be amended to include child victims within the ambit of its protection. Secondly, the protection should extend beyond the age of 18, in respect of all children involved in criminal proceedings.<br>National Research Foundation
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Saunders, Marilyn C. "Adolescent girls testifying in a criminal court in cases of sexual abuse or rape a narrative analysis /." Pretoria : [s.n.], 2007. http://upetd.up.ac.za/thesis/available/etd-04292008-110951.
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Araújo, Maurício de Carvalho. "Soberania e princípios do processo penal em face do tribunal penal internacional." Pontifícia Universidade Católica de São Paulo, 2005. https://tede2.pucsp.br/handle/handle/6955.
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Previous issue date: 2005-04-20<br>The objective of this paper is to assess the constitutional bases that allowed Brazil to subscribe to the International Criminal Court and the resulting obligation to respect its jurisdiction and to provide judicial cooperation.
Therefore this paper discusses the concept of State sovereignty, within the context of national and international law and its historical evolution, from the beginning of international law and the sovereign States up until the institutionalization of an international legal order with the enforcement of an international jus cogens, based on the pacific resolution of conflicts and on the universalization of human rights.
The creation of the International Criminal Court is discussed from the principles of complementarity and non-intervention. This study analyses the compatibility between the International Criminal Court and the current concept of sovereignty, the system of the United States Organization, the treaties on human rights and the constitutional principles of criminal proceedings present in the Brazilian Constitution of 1988.
In order to evaluate the compatibility among these systems, it was necessary to establish a comparison between the principles of criminal proceedings in the Federal Constitution of 1988, especially the due process of law and the principle of a fair trial, present in international treaties on human rights and in the international military courts of Nuremberg and Tokyo, in the ad hoc courts of the United Nations for the former Yugoslavia and Rwanda and in the International Criminal Court from the Statute of Rome.
Finally, this paper analyses the principles of criminal proceedings in the International Criminal Court, as in the wording of the Statute of Rome, comparing them with the principles of a fair trial as determined by international treaties on human rights, which are a true international jus cogens.<br>Este trabalho tem como objetivo verificar os fundamentos constitucionais que permitiram ao Brasil aderir ao Tribunal Penal Internacional, a conseqüente obrigação de respeitar a sua jurisdição e de oferecer cooperação judicial.
Para tanto, foi abordado o conceito de soberania do Estado em face do direito interno e internacional, sua evolução histórica, desde a origem do direito internacional e dos Estados soberanos até a institucionalização de uma ordem jurídica internacional, com a imposição de uma norma cogente internacional, ou jus cogens internacional, baseada na solução pacífica dos conflitos e na universalização dos Direitos Humanos.
A criação do Tribunal Penal Internacional é abordada tendo em vista o princípio da complementaridade e da não intervenção. É realizada uma análise da compatibilidade do Tribunal Penal Internacional com o atual conceito de soberania, com o sistema da Organização das Nações Unidas, com os tratados de Direitos Humanos e com os princípios constitucionais do processo penal na Constituição brasileira.
Para a verificação da compatibilidade entre os sistemas, foi necessário realizar uma comparação entre os princípios do processo penal da Constituição Federal de 1988, mormente o do devido processo legal, com o princípio do julgamento justo (fair trial), constante dos tratados internacionais de Direitos Humanos e nos tribunais militares de Nuremberg e de Tóquio, nos tribunais ad hoc da Organização das Nações Unidas para ex-Yugoslávia e Ruanda e no Tribunal Penal Internacional do Estatuto de Roma.
Por fim, foram analisados os princípios do processo penal do Tribunal Penal Internacional, contemplados na redação do Estatuto de Roma, comparando-os com os princípios do processo justo previsto nos tratados internacionais de Direitos Humanos, que se constitui em verdadeiro jus cogens internacional.
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Hoppe, Harold. "O consenso como meio de simplificação do procedimento criminal : perspectivas e possibilidades no processo penal brasileiro." reponame:Biblioteca Digital de Teses e Dissertações da UFRGS, 2018. http://hdl.handle.net/10183/180890.
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O objetivo do presente estudo é analisar como o consenso tem sido utilizado para abreviar, interromper ou encerrar antecipadamente o procedimento criminal. A inserção do consenso ou dos acordos entre acusação e defesa nos sistemas jurídicos de civil law exigiu a abertura de espaços de oportunidade ao exercício da ação penal (princípio da legalidade), e tem contribuído para a superação da ideia de que todo o processo penal deve contar sempre com as fases preliminar, intermediária e decisória. O estudo de Direito Comparado revela como Itália, Alemanha e Espanha incorporaram as soluções negociadas norte-americanas em seus respectivos ordenamentos, ora oferecendo soluções diversionistas à aplicação da lei penal, ora admitindo que a declaração de culpa e a consequente aplicação da pena tomem em conta o acordo firmado entre acusação e defesa. A pesquisa prossegue com a averiguação dos principais óbices à admissibilidade dos acordos no processo penal, notadamente a eventual violação aos direitos ao silêncio e de não produzir prova contra si mesmo, e a suposta privatização do processo com a admissão de uma verdade consensuada. Diante deste cenário internacional, analisam-se as alterações legislativas levadas a efeito pelo Brasil para admitir os acordos em seu processo penal, bem como a principal inovação no projeto de novo Código Processual Penal brasileiro: os acordos penais. O estudo conclui que o consenso não é incompatível com os princípios e valores do devido processo legal, mas reconhece a necessidade de aprimoramento dos mecanismos de controle judicial daquele, salvaguardas essas que não só protegem o acusado mas também reforçam a natureza pública e indisponível do processo penal.<br>The purpose of the present study is to analyze how the consensus has been used to shorten, interrupt or close the criminal procedure in advance. The insertion of consensus or agreements between prosecution and defense in the civil law legal systems has required the opening of opportunities for criminal prosecution (the principle of legality), and has contributed to overcoming the idea that all criminal proceedings must always have the preliminary, intermediate and decision-making phases. The Comparative Law Study reveals how Italy, Germany, and Spain incorporated US negotiated solutions into their respective jurisdictions, sometimes offering diversionary solutions to the application of criminal law, or assuming that the guilty plea and the consequent application of the penalty take into account the agreement between accusation and defense. The investigation proceeds with the investigation of the main obstacles to the admissibility of the agreements in criminal proceedings, namely the possible violation of the rights to silence and of not producing evidence against itself, and the supposed privatization of the process with the admission of a truth agreed upon. In view of this international scenario, we analyze the legislative changes carried out in Brazil to admit the agreements in the criminal process, as well as the main innovation present in the draft new Brazilian Criminal Procedure Code: penal agreements. The study concludes that consensus is not inconsistent with the principles and values of due process, but recognizes the need to improve judicial control mechanisms, which safeguards not only protect the accused but also reinforce the public nature and unavailability of criminal proceedings.
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Araújo, Susana Vieira de. "Necessidade de tipificação penal da alienação parental e a aplicação da lei de n.12.403/2011." Universidade Católica de Pernambuco, 2013. http://www.unicap.br/tede//tde_busca/arquivo.php?codArquivo=858.
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O presente trabalho aborda a temática da necessidade de tipificação penal da alienação parental e a aplicabilidade da Lei de n 12403/11 que reflete toda a constituição da alienação parental pontuada dentro destes institutos, penal e
processual penal. A referida alienação, que se materializa através de um litígio entre o genitor guardião e o outro progenitor, de modo que aquele que detêm a guarda
usa os filhos para se vingar do genitor que tem o direito de visitação, mediante campanhas depreciativas, tão somente por não aceitar o fim do relacionamento conjugal. Refletindo esta também com os parentes, estendendo-se até os avós. Com
o condão de estudar este fenômeno, assim como, a possibilidade da perda do poder familiar em decorrência do mesmo, é que se perpassa por um breve histórico sobre
a família e alguns institutos que se referem à relação pais e filhos, como o poder familiar e as práticas processuais, esta buscando soluções aos casos concretos. Com a realização de estudos multidisciplinares, feitos por profissionais especializados da área de Direito, juntamente, com psicólogos, assistentes sociais e médicos é que se pode dar solução ao caso concreto, até mesmo evitar os seus efeitos. Os laudos técnicos advindos destes estudos fundamentam as decisões do judiciário. Desta feita, a perda do poder familiar reflete uma necessidade imposta ao alienador em face da alienação parental. Depois da abordagem civilista, passa-se a
abordagem penalista, de modo que retrata a possibilidade de aplicação da Lei de n 12403/11 demonstrando que as medidas cautelares são medidas penais efetivas contra as ações do genitor alienador. Esta lei ao colocar a prisão preventiva como
exceção, se coaduna com as razões do veto do artigo 10 da lei de alienação parental. A aplicação, ainda, do instituto da transação penal, o rito proposto na Lei de n 9099/95 cabe perfeitamente, também, para compelir a alienação parental.
Demonstrando, categoricamente, que a penalização da alienação parental evitaria a crescente caracterização deste instituto nas famílias brasileiras. O trabalho se caracteriza por uma pesquisa bibliográfica obtendo informações através das fontes de jurisprudenciais, doutrinárias e Leis.<br>This paper addresses the issue of the necessity of criminal definition of parental alienation and the applicability of Law No. 12403/11 which reflects the whole constitution of parental alienation scored within these institutions, penal and criminal
procedure. This sale, which is materialized through a dispute between the custodial parent and the other parent, so that those who hold the guard uses the children to avenge the parent who has visitation rights by disparaging campaigns, as not only accept the end of the marriage relationship. Reflecting this also with relatives, extending to the grandparents. With the privilege of studying this phenomenon, as well as the possibility of loss of power due to the same family, is that goes through a brief history of the family and some institutes which refer to the relationship parents
and children, as the family power and procedural practices, this finding solutions to concrete cases. With the completion of multidisciplinary studies, done by professionals specialized area of law, together with psychologists, social workers and
doctors is that one can give solution to this case, even prevent its effects. The technical reports arising from these studies underlie the decisions of the judiciary. This time, the loss of family power reflects a necessity imposed upon alienating in the face of parental alienation. After the tort approach, the approach is punitive, so that portrays the possibility of application of Law No. 12403/11 showing that
precautionary measures are effective measures against the criminal actions of the alienating parent. This law put to the detention as an exception, is consistent with the reasons for the veto of Article 10 of the law of parental alienation. The application also institute criminal transaction, proposed in the rite of Law n 9099/95 fits perfectly, too, to compel parental alienation. Demonstrating, categorically, that the
criminalization of parental alienation avoid the growing characterization of this institute in Brazilian families. The work is characterized by a bibliographical information obtained through the sources of jurisprudence, doctrinal and Laws.
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Ivanovas, Anatolijus. "Įtariamojo, kaltinamojo su psichikos sutrikimais teisių ir teisėtų interesų užtikrinimas." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2006. http://vddb.library.lt/obj/LT-eLABa-0001:E.02~2007~D_20061226_224704-94681.
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Terminas psichikos sutrikimai baudžiamojo proceso moksle turi specialią procesinę teisinę reikšmę ir vartojamas kalbant apie tokius sutrikimus dėl kurių įtariamasis, kaltinamasis negali savarankiškai įgyvendinti teisės į gynybą. Magistro baigiamasis darbas aktualus tuo, jog remiantis susiformavusia teisine praktika, atskleistas įtariamųjų, kaltinamųjų, turinčių psichikos sutrikimų, teisių ir teisėtų interesų užtikrinimo veiksmingumas. Pateikiama naudinga informacija ikiteisminio tyrimo pareigūnams ar prokurorams apie įtariamųjų psichikos sutrikimų tipinius požymius, kurie gali padėti laiku atskleisti įtariamojo psichikos sutrikimus bei tokių žinių gavimo šaltinius. Analizuojamas psichikos sutrikimų nustatymas taikant specialių žinių panaudojimo formas baudžiamajame procese – ekspertizę ir objektų tyrimą. Remiantis mokslinės literatūros apibendrinimu bei archyvinių baudžiamųjų bylų analize pateikiami specialių žinių panaudojimo, psichikos sutrikimams nustatyti, probleminiai aspektai. Be to, analizuojama gynybos instituto svarba baudžiamajame procese. Aptariama viena iš pagrindinių įtariamojo, kaltinamojo, turinčio psichikos sutrikimų teisių ir teisėtų interesų užtikrinimo garantijų - teisė į gynybą bei atstovų pagal įstatymą dalyvavimo procese tikslingumas, atskleidžiami kai kurie diskutuotini aspektai.<br>The term psychical disorders has a specific juridical meaning in the science of criminal process and it shall be used talking about such disorders, due to which the suspect, indictee cannot independently implement his right to defence.
Master’s paper is urgent by the fact that basing upon the already shaped legal practice, efficiency of providing rights and legal interests of the suspects/defendants with mental disorders is disclosed. Useful information for pre-trial investigation officers or prosecutors is provided covering the types of mental disorders of the suspects, which could assist in timely disclosing the suspect’s mental disorders as well as the ways to obtain such knowledge. Disclosure of mental disorders is analysed by applying the special knowledge forms in the criminal proceedings: expertise and subject analysis. Basing upon the scientific literature summary and analysis of archive criminal cases, problem aspects of special knowledge use for disclosure of mental disorders are presented.
Besides that, importance of defence institution on the criminal proceedings is analysed. One of the main guarantees of a suspect/defendant with mental disorders to have his/her rights and legal interests assured – his/her right to defence and purposefulness of representatives’ participation in the process according to the law is described, some disputable aspects are disclosed.
Taking into consideration the research performed during the final work and the conclusion that rights... [to full text]
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Faidherbe, Julien. "Contribution à l’analyse de la justice restaurative." Thesis, Lille, 2019. http://www.theses.fr/2019LIL2D006.
Full textAbstract:
L’idée centrale de notre paradigme juridique est qu’une peine juste devrait être celle qui régénère les liens sociaux blessés par le crime. Si l’édifice de la justice des hommes a connu de nombreuses transformations, les éclairages historiques et philosophiques demeurent indispensables pour étudier la délicate question du sens de la peine. Les sciences criminelles doivent ainsi prendre en compte les intérêts de la société, de l’auteur de l’infraction ainsi que ceux de la victime. En ce sens, la loi du 15 août 2014 relative à l’individualisation des peines et renforçant l’efficacité des sanctions pénales prévoit, pour la première fois en droit positif, un texte consacré à la justice restaurative. L’objet de celle-ci consiste à permettre de restaurer le lien social rompu par la commission d’une infraction en offrant la possibilité à l’auteur des faits de rencontrer la victime. Réparer le préjudice causé à la victime, réinsérer l’auteur de l’infraction dans la société, rétablir la paix sociale et prévenir la récidive : tels sont les objectifs de la justice restaurative. L’étude particulière de l’article 10-1 du Code de procédure pénale soulève pour autant deux questions essentielles : La justice restaurative est-elle envisageable dans le cadre de toute procédure pénale ? La justice restaurative peut-elle trouver sa place à tous les stades de la procédure ? Pour permettre à la réflexion théorique de se nourrir des réalités concrètes, il convient de s’interroger sur les règles de procédure qui pourraient permettre d’encadrer rigoureusement la justice restaurative afin que, débarrassée de l’image utopique dont elle pourrait être affublée, elle puisse devenir un mécanisme juridique efficace<br>The core idea of our legal paradigm is that a fair sentence should be one that regenerates the social links wounded by crime. If the justice built by men has known many transformations, the historical and philosophical enlightenings remain essential to study the tricky question of the « sentence’s meaning ». Thus criminal sciences must take into account the interests of the society, of the offender as much as the victim’s. In this sense, the law of August 15, 2014 on the sentences’ individualization and reinforcing the penal sanctions’ efficiency, provides, for the first time in substantive law, a text dedicated to restorative justice. The purpose of this law consists in allowing to restore the social link broken by the commission of an offense by offering the offender the opportunity to meet the victim. To repair prejudice caused to victims, to reintegrate offenders in the society, to restore social peace and to prevent recidivism : those are the restorative objectives of justice. The particular study of article 10-1 of the Code of criminal proceedings raises two essential issues : is restorative justice possible in any criminal proceedings ? Can restorative justice find its place at each and every stage of the procedure ? In order to allow the theoretical reflexion to feed from practical realities, questions must be asked about the proceedings rules which could help producing a strict framework for restorative justice so that, freed from the utopian image from which restorative justice could be burdened with, it may become an efficient legal mechanism
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Giuranna, Alice. "Civil Law and Common Law: systemic differences or cultural contrast? Evaluating inconsistencies between the Italian, English and Welsh, Federal criminal procedures through the extensive media coverage of the Knox trial." Bachelor's thesis, Alma Mater Studiorum - Università di Bologna, 2020. http://amslaurea.unibo.it/20931/.
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The dissertation, which is entirely drafted in English, hinges on a comparative study of both the Italian and British legal system - including some reference to the American jurisdiction - from the point of view of the criminal procedure rules. Through the analysis of a specific case study, namely the trial for the murder of Meredith Kercher, the paper aims to highlight what the substantial differences between civil law and common law are and the extent to which these divergencies can impact criminal proceedings. Therefore, particular attention is placed on the media coverage that the case has had, both in Italy and in United Kingdom and the United States, and on how this has - perhaps only apparently - influenced the trial and public opinion.
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O'Driscoll, Stephen James, and n/a. "Conduct of counsel causing or contributing to a miscarriage of justice." University of Otago. Faculty of Law, 2009. http://adt.otago.ac.nz./public/adt-NZDU20090506.091357.
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The Crimes Act 1961 and the New Zealand Bill of Rights Act 1990 provide that a person accused of a criminal offence in New Zealand has the right to be represented at trial by counsel. The purpose of representation by counsel is to protect the accused�s interests; ensure that the accused is able to present their defence to the Court; ensure that the accused receives a fair trial; and ensure that the accused is not the subject of a miscarriage of justice.
It is implicit that criminal defence counsel must be competent if they are to be effective advocates on behalf of their clients. If counsel is not competent, there is a risk that counsel�s acts or omissions may cause or contribute to a miscarriage of justice.
The Crimes Act 1961 allows an accused to appeal against their conviction on the basis that they have been the subject of a miscarriage of justice through the conduct of their counsel. The thesis analyses the Supreme Court decision of R v Sungsuwan that sets out the test that an appellate court must consider when deciding to allow an appeal based on the conduct of counsel.
The thesis examines 239 Court of Appeal decisions between 1996 and 2007 that have considered appeals from jury trials where at least one of the grounds of appeal was that defence counsel caused or contributed to a miscarriage of justice. The thesis notes the increasing trend to use "conduct of counsel" as a ground of appeal. In 1996 there were 4 appeals; in 2006 there were 43 such appeals and in 2007 there were 29 appeals.
During the period under review the Court of Appeal allowed the appeal and specifically held that counsel�s conduct, either alone or in combination with other grounds, caused or contributed to a miscarriage of justice in 41 cases. The thesis analyses the common complaints made by an accused against trial counsel and the common areas where the Court of Appeal upheld complaints against counsel.
The thesis takes into account the Lawyers and Conveyancers Act 2006 and the Lawyers and Conveyancers (Lawyer: Conduct and Client Care) Rules 2008 that came into existence on 1 August 2008. The new legislation places particular emphasis on the obligations of counsel to uphold the rule of law and to facilitate the administration of justice in New Zealand. Counsel also has an obligation to protect the interests of their clients.
The thesis concludes that the plethora of cases coming before the Court of Appeal, and the number of appeals allowed by the Court, demonstrate defence counsel do not always protect the interests of their clients and can cause or contribute to a miscarriage of justice.
The thesis makes a number of recommendations that may reduce the risk of both an accused appealing on the basis on the conduct of counsel and an appeal being allowed on the basis of the conduct of counsel. In particular, it is suggested that there should be greater degree of co-operation between the New Zealand Law Society and the Legal Services Agency to ensure the maintenance of high standards among criminal defence lawyers.
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Castro, Pedro Machado de Almeida. "As medidas cautelares pessoais diversas da prisão à luz da proporcionalidade." Universidade de São Paulo, 2015. http://www.teses.usp.br/teses/disponiveis/2/2137/tde-15122015-143931/.
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A introdução de novas medidas cautelares de caráter pessoal em nosso sistema processual penal, diversas da prisão, traz a necessidade da exegese do princípio da proporcionalidade em cotejo com nosso sistema de garantias. Somente a fixação adequada de medidas assecuratórias, em detrimento da liberdade face ao princípio da presunção de inocência, pode tornar harmônico o ordenamento jurídico que equilibra, na balança, direitos e garantias individuais versus poder punitivo estatal, quando ainda na jornada processual. O estudo da legislação, doutrina, direito estrangeiro e jurisprudência complementam uns aos outros, possibilitando uma visão ampla e eclética do assunto.<br>The introduction of new precautionary measures of personal character in our criminal justice system, different from prison, brings the need to analyze the proportionality principle in collation with our system of guarantees. Only the proper mounting of precautionary measures, at the expense of freedom and the presumption of innocence, can make the legal system harmonic, in balance individual rights and guarantees versus state punitive power, while still in procedural journey. The study of law,doctrine, foreign law and jurisprudence complement each other, enabling a wide and eclectic view of the subject .
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Jordaan, Louise 1956. "Aspects of double jeopardy." Thesis, 1997. http://hdl.handle.net/10500/17030.
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The common law right of the accused to be protected against double jeopardy
recently acquired constitutional status in South Africa. Although South African
courts previously applied this rule in various procedural contexts, there has been
very little critical discussion of the values on which the rule is based. Nor have all
contexts in which the rule should be applied been recognised. In the light of the
new constitutional dispensation, it has become necessary to identify and analyse
the values which determine the application of the rule.
This thesis addresses the treatment of various aspects of double jeopardy in other
constitutionally·grounded jurisdictions. Double jeopardy jurisprudence in the
jurisdictions of England, Canada, India, Germany and the federal system of the
United States of America is considered on a comparative basis. The historical
origin and development of the rule are considered first. This is followed by an
assessment of the current application of the rule in the various jurisdictions.
The study demonstrates that South African courts have relied largely on outdated
principles derived from English common law, rather than applying the rule by
focusing on the values that underlie the rule. This approach has become
unacceptable in the new constitutional dispensation, inter alia, because a
teleological, value·orientated interpretative approach has been adopted by the
Constitutional Court. This thesis indicates which of the principles that developed
in foreign constitutional double jeopardy jurisprudence may be of value in
developing an appropriate body of South African constitutional double jeopardy
principles. Proposals are made for future implementation of the rule in various
procedural contexts. These suggestions include constitutional interpretation,
legislative amendment and re·evaluation of various common law principles of
criminal procedure<br>Criminal & Procedural Law<br>LL.D. (Criminal & Procedural Law)
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Lin, Tzung Chih, and 林宗志. "The Research of Criminal Proceedings Procedure." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/99048451814189656996.
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博士<br>輔仁大學<br>法律學系<br>102<br>This dissertation examines the asset forfeiture systems and legal practices in Taiwan. By addressing the deficiency of the current statutes and the difficulties encountered in legal practices, this dissertation discusses the insufficiency of the mechanism of the preserve process regarding the proceeds of crime, the lack of protection of third party’s rights, and the vacuum of the non-conviction based forfeiture regime. Following the trend of international treaties, this dissertation outlines the spirit and the purpose of the confiscation and the preserve of the proceeds of crime through a comparative legal prospective. From the perspective of constitutional law, this dissertation further examines the procedural safeguards of substantive fundamental rights. Under the current structure of criminal procedure law, this dissertation proposes a new system regarding the preserve of the proceeds of crime and the protection mechanism of third party’s legitimate rights, and the adoption of the non-conviction based forfeiture system. In conclusion, this dissertation provides a legislative reform proposal in reply to the insufficiency of the current asset forfeiture system in Taiwan.
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Shih, Yin-Chien, and 施吟蒨. "The Lawful Judge: In the Criminal Proceedings." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/87757079170459874938.
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CHING-KUO, CHANG, and 張清國. "The Study on DNA Evidence in Criminal Proceedings." Thesis, 2010. http://ndltd.ncl.edu.tw/handle/08308870412862225530.
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碩士<br>國防大學管理學院<br>法律學系<br>98<br>With the development and progress of biotechnology, DNA evidence has become increasingly sophisticated identification techniques, DNA identification has been used on homicide, violent crime, sexual abuse, sex trade, paternity testing, illegal adoption, immigration and error to identify the defendants in criminal and civil cases etc, the use of a wide range.
However, DNA evidence on the use, not error-free production, there are still " the risk of miscarriage of justice," including: 1, DNA evidence of high technical and regulatory requirements, itself prone to error. 2, The subject of proceedings too easily lead to blind faith in scientific evidence. 3, As judge and the prosecution, defense both for science and technology expertise and the lack of scientific evidence, weakening the review judge. Of course, in addition to the risk of miscarriage of justice may be hidden, there are: "may lead to violations of human rights and violation of ethics requirements," and "defense weapons seized may exacerbate the imbalance of equality."
The purpose of this paper is divided into the mining process and the application of courts. First, the mining process: to review the procedures for collecting DNA samples and the existing mining process law whether is adequate, and then put forward proposals amending the law;Second, the application of courts: use the appraisal report to replace the expert appearing in court, whether contradict the direct trial and infringe the right of confrontation? What is the solution or way out? How to correctly assess the credibility of DNA appraisal report？ Finally, obtain conclusion and recommendations.
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劉秋伶. "The admissibility of digital evidence in criminal proceedings." Thesis, 2010. http://ndltd.ncl.edu.tw/handle/21092783964020161463.
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Sorge, Geoff B. "Fetal Alcohol Spectrum Disorder persons in Canadian criminal proceedings /." 2006. http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_dat=xri:pqdiss&rft_val_fmt=info:ofi/fmt:kev:mtx:dissertation&rft_dat=xri:pqdiss:MR29619.
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Thesis (M.A.)--York University, 2006. Graduate Programme in Psychology.<br>Typescript. Includes bibliographical references (leaves41-48). Also available on the Internet. MODE OF ACCESS via web browser by entering the following URL: http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_dat=xri:pqdiss&rft_val_fmt=info:ofi/fmt:kev:mtx:dissertation&rft_dat=xri:pqdiss:MR29619
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Yu-HsuanHsiao and 蕭宇軒. "The Application of Cultural Defenses in Taiwan’s Criminal Proceedings." Thesis, 2011. http://ndltd.ncl.edu.tw/handle/05927573027609248589.
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碩士<br>國立成功大學<br>法律學系<br>99<br>“Cultural Defense” is not a formal legal term wherever in Taiwan or the United States. It is a strategy that defendants use in attempts to excuse criminal behavior or to mitigate culpability based on his behavior was affected by cultural practices. In pluralistic societies, culture conflicts are inevitable situations. It is the problem that must be solved when the laws of majority collide with the cultural norms of minority. Cultural defense mainly deal with this kind of issues.
In my opinion, according to “enculturation” and “multiculturalism”, criminal legal system in Taiwan must accept the conception of cultural defense. To recognize the cultural defense suggests the criminal legal system in Taiwan is willing to adopt the argument of multiculturalism, and obey the rule of constitution about respecting multi-culture. It would be the best way to accomplish the idea of multiculturalism and a big progress for the oppression of minority in criminal system if ethnic minority were permitted to claim cultural defense in criminal proceedings. Moreover, it reminds most people of the fact that they treat things by prejudice. In criminal law, minority’s conducts which comply with cultural practices have to be regarded as justification. By viewing those conducts, the legal system could have opportunity to comprehend other cultural values. Consequently, criminal law should officially recognize the cultural defense is a new extra-statutory justification.
Applying cultural evidences in criminal procedures is another crucial issue. In Taiwan, the code of criminal procedure provides only for courts and prosecutors to choose expert witness in trial. However, the defendants should have rights to choose their own expert witness or participates in the choosing procedure on the basis of improved adversary procedure. Furthermore, I argue that the scientific evidences do not have admissibility in principle, only when the scientific evidences possess “relevance” and “reliability”. If the cultural defense was regarded as an extra-statutory justification, the cultural background and cultural customs would be relevant to criminal behavior, which makes cultural evidences possessed “relevance”. As for the determination of reliability, accumulation of judgments in judicial system and practices would conclude the standard of reliability. The more reliable elements cultural evidences possess of, the bigger chance for them to get into court.
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TSAI, NI-TING, and 蔡妮庭. "The Study on Revocation of Extraordinary Appeal in Criminal Proceedings." Thesis, 2017. http://ndltd.ncl.edu.tw/handle/79w8p5.
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碩士<br>南臺科技大學<br>財經法律研究所<br>105<br>Taiwan’s extraordinary appeal system was designed to correct the mistakes made in the finalized and binding judgments, to improve judgment quality, and to provide tangible relief for the individuals involved in the aforesaid finalized and binding judgments. Up until today, however, extraordinary appeal has served the same purpose as the appeal against the judgments made by the third instance. In reality, there is no difference between extraordinary appeal and third instance, except that the law requires prosecutor general to serve as petitioner in the extraordinary appeal.
This study investigated the reasons behind the extraordinary appeals being revoked by Supreme Court in 2011 through 2016 with emphasis on the types of extraordinary appeals revoked by Supreme Court in 2016. Over the past years, most extraordinary appeals were filed on the ground that the finalized and binding judgments had violated laws by declaring recidivists’ repeated violation against the laws. According to the resolutions passed by the 6th Criminal Court Meeting of Supreme Court in 2015, however, the standpoint for “completion of execution” with regard to recidivists’ repeated violation against the laws has been changed from “enforceable penalty” to “declared penalty”, and with the revised standpoint, fewer extraordinary appeals have been filed ever since.
Now, the reasons behind the revocation of extraordinary appeals have been understood and accepted. This paper presented tangible recommendations to the courts and prosecutors, inviting their attention to the recommendations presented by this study when they prepare judgments and carry out their duties, thus minimizing the cases of extraordinary appeals.
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Chang, Chih-Ping, and 張之萍. "The Defendant’s Right of Access to the File in Criminal Proceedings." Thesis, 2007. http://ndltd.ncl.edu.tw/handle/64386071711271019803.
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碩士<br>國立臺灣大學<br>法律學研究所<br>95<br>It is very important to the defendant that he has the right to access the file in criminal proceedings. But, because the domestic law is too simple, we still need to further discuss about the content of this right：subject, scope, limitation and how to appeal. This thesis tries to talk about the handle mode of access to the file from the practices in the European Convention of Human Rights and the German norms, and hopes to be beneficial to legislators and judicial practices in our country.
The first part of this paper is the profile of the domestic theories and practices and put the questions forward. Second, it introduces the European Convention of Human Rights and the practices of the European Court of Human Rights (the Court); moreover, it classifies the cases and sets up the handle mode of the Court. Third, it also introduces norms and practices in Germany, and observes the interaction between the Court and German practices. It sets up the handle mode of German law by connecting with case law of the Court. Then, it draws a conclusion to two handle modes, answers domestic questions and tries to build a domestic handle mode (new mode). It also discusses conflicts between new mode and domestic practices. Finally, it summaries two handle modes and the interaction between them, and proposes the suggestion about the defendant’s right of access to the file. After all, we don’t know what will be happened, but what we can do is to utilize existing information and make a best decision. The information is so important, this right is too.
This thesis has been added new Article 33 of criminal procedure law (2007.07.04) and Judicial Yuan Interpretation No. 627 (2007.06.15).
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Lin, Yu-Hung, and 林禹宏. "Aboriginal Defendant''s Difficulties and Solutions in Criminal Proceedings." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/33544626561510055014.
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碩士<br>國立臺灣大學<br>法律學研究所<br>102<br>Aborigines have been living on this island for over 6,000 years. In the context of their long history, Aborigines have their own unique traditions and customs. However, these aboriginal traditions and cultures, are not only incompatible with the legal norms, but also often cause serious conflicts. Accordingly, when the "Tribal Customs" collides with "Criminal Penalties", it also pulls the trigger of judicial war between tribes and state. In this battle, there are many adverse factors in the Aboriginal Defendants'' criminal proceedings. For example, the lack of legal resources and professional judges, aborigines'' cultural and linguistic barriers, and the improper conduct of trial mode, etc. These factors make Aboriginal Defendants retreat in the battle, and also make them trapped in quagmire.
Therefore, this article will explore many problems faced by Aboriginal Defendants from the beginning of criminal investigation to the end of trial, such as Judicial Interpreter issues, Defense in Investigative Procedure, Mandatory Defense of Trial, and the implementation of Aboriginal Dedicated Court. And then attempt to put forward the corresponding solutions. Besides, one of the most important issues for Aboriginal Defendants, is whether judges or prosecutors have "empathy" to deal with every Aboriginal Defendant''s case.
This article believe, legislators should profoundly consider the judicial interests of Aboriginal Defendants, and make several relevant amendments or decriminalization clauses. Moreover, the civilian law enforcers'' decisions should be made based on tribal perspectives, and supplemented by their legal profession. So as to implement the aim of Aboriginal Basic Law and Additional Articles of the Constitution to protect the multiculturalism, and to achieve the purpose of returning the rights to "Aborigine".
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TSENG, YANG-LING, and 曾揚嶺. "The Study of Third-Party Claims in Criminal Assets Forfeiture Proceedings." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/67629101494177566105.
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碩士<br>國立臺北大學<br>法律學系一般生組<br>103<br>Because of the object of punishment is limited in the defendant, most of the criminals in property crime, such as economic crimes, financial crimes and corruption, tries to hide their property and benefit by transferring to a third party in and outside of the country. Seizing and confiscating proceeds of crime becomes more and more difficult to judicial authority since proceeds of crime have pasted to the “innocent third-party” who seems like to obtain the asset legally.
Therefore, international conventions and legislators nationwide, such as Germany, Japan and United States, enact forfeiture laws to allow the seizure and confiscation of third-party’s property in criminal offense. In Taiwan, Money Laundering Control Act, Act Governing Food Safety and Sanitation and Draft Amendment to the Criminal Code allow the subject to forfeiture can be the property belonged to a person other than the defendant, thereby aiming to deprive criminal offenders of proceeds of crime completely.
Hence, in addition to extending the subject to asset forfeiture in criminal justice, fighting of property crime, seizing and confiscating proceeds of crime and returning forfeited assets to crime victims, the demands of criminal justice must be balanced better with the right of property of innocent third parties. In order to follow due process and to protect basic human rights, it is necessary to construct the system of ”Third-Party Claims in criminal Assets Forfeiture Proceedings” in harmony with the principle of forfeiture in Taiwan.
The methodologies adopted in this thesis are literature review, case study and comparative research method.
Chapter1: The Introduction.
Chapter2: The Discussion of confiscation of third-party’s property in Taiwan.
Chapter3: The Observation of foreign legislative examples on confiscation of third-party’s property.
Chapter4: The Proposal of amending “Third-Party Claims in Criminal Assets Forfeiture Proceedings” in Taiwan.
Chapter5: Conclusion and Recommendation.
In conclusion, the study suggests amending the code of criminal procedure regarding to the system of “Third-Party Claims in Criminal Assets Forfeiture proceedings”, including due process and the proceeding of remedies, and thereby to conform to procedural justice.
Keywords: forfeiture, proceeds of crime, third-party’s property, third-party claims, due process, procedural protections.
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Chen, Hen-Kuan, and 陳恒寬. "Criminal Trial Proceeding Management And Time Management－Constructing Criminal Case Flow Management and Time Driven Activity-Based Costing Analysis for Criminal Proceedings." Thesis, 2010. http://ndltd.ncl.edu.tw/handle/54688875750476428721.
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碩士<br>國立臺灣大學<br>高階公共管理組<br>98<br>The fundamental functions of criminal litigation are to provide protection over the basic human rights of defendants, find the facts, and realize the goals of legal norms of punishment to maintain the social welfare. Therefore, the courts shall execute the substantial due process to adequately finalize criminal cases so as to accurately exercise the state power of criminal punishment.
Currently, there is the cross-examination system in the first instance of criminal litigation. Except for the cases as defined by Clauses 1 and 2, Article 376 of the Criminal Procedures Law, criminal cases in the normal proceedings shall be trialed jointly by three judges. However, insufficient human resource of the judges has derived a structural limitation for criminal suits. How to pursue the best efficiency between the working time of the judges and maximal justice benefit in the criminal cases so as to preserve the fundamental rights of people with respect to the adequate and speedy trial is indeed the most important issue for criminal judicature revolution at the current stage.
This thesis adopting ABC theories of Managerial Accounting for time driven activity-based cost analysis and work flow management to construct activity-time-based costing system model for criminal proceeding and to propose a physical structure for constructing a criminal case flow management, where activity-based costing and overall quality management model are performed in terms of time to serve as objective assessment fundamental of process rebuilding and continuous revolution. Hopefully this is useful in generating effective solution for current criminal judgments.
Judicial Yuan and its subordinate courts of each level do not have an objective statistical tool to classify work time spent by a judge of the criminal tribunal in trial on various criminal cases in terms of respective procedures. As a result, there is no specific and explicit statistical data available for observation. This thesis proposes time driven activity- based cost analysis model for criminal proceedings with the expectation that it would be adopted by Judicial Yuan and its subordinate courts of each level to further engage in empirical research and analysis.
Keywords: criminal case flow management；time driven activity-based costing of criminal proceeding；speedy trial；measurement of time performance；process analysis
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Chu, Ting-Yi, and 朱庭儀. "Participation of Third Persons in Criminal Proceedings concerning Confiscation of Illegal Proceeds." Thesis, 2017. http://ndltd.ncl.edu.tw/handle/vry6h7.
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碩士<br>國立臺灣大學<br>法律學研究所<br>106<br>From 1st July 2016 onwards, regulations concerning confiscation of illegal proceeds in Criminal Code and The Code of Criminal Procedure in Taiwan were applied, which heralded a brand new epoch in Taiwan as confiscation as an issue had fallen into a state of neglect over the bygone decades. These new regulations, in the perspective of substantive law, focus on the deprivation of illegal proceeds, and also in the aspect of procedural law, establish several complementary measures including seizure, provisional attachment, return-to-the-victim provision, independent confiscation proceedings, etc. Apart from the provisions above, ‘the participation of the third persons’, which this study is all about, constitutes one of the major portions of the above-mentioned amendment to law. The ‘participation’, in brief, functions as the procedural due process, helping the confiscation serve its purpose: the constitutional deprivation of the proceeds derived from criminal activities and the nullification of the motivation behind committing a crime.
This study begins with the introduction of the ‘participation’ in the confiscation proceedings in Germany, which is the model for the related regulations in Taiwan; on this basis, the ‘participation’ in Taiwan is discussed next, including its formulated structure and precisely how it is supposed to be applied. With this comparative macro-approach, it is hoped that the interpretation of the relating regulations in Taiwan would not go awry with only literal translation due to the lack of comprehensive understanding from the original model, and therefore would not impede the confiscation.
In the study, there are 4 issues that are especially worthy of notice in Taiwan: (1) Who can be the one participating, (2) the justification for the representatives to still represent their company as the participant while they are already defendants in the relating cases, (3) the possibility that the participants get a court-appointed representative, and (4) the deviation from the spirit of causing no undue delay in the proceedings, which especially can be a problem in the summary procedure, the bargaining process, and the subsequent proceedings, in which the previous confiscation order may be revoked.
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CHEN, KAI-LIN, and 陳凱琳. "Research on the Prohibition Principle of Non-interest Change in Criminal Proceedings." Thesis, 2019. http://ndltd.ncl.edu.tw/handle/82q828.
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碩士<br>東吳大學<br>法律學系<br>107<br>The "prohibition principle of non-interest change" in the Criminal Procedure Law was determined in the text in the 17th year of the Republic of China. In order to achieve the litigation review system, the purpose of the trial benefits and the maintenance of human rights protection, the content of Article 370 of the Criminal Procedure Law is also continuously revised. In section 370 of the current Criminal Procedure Law, "I don't know the sentence that is heavier than the judgment of the original trial." What is the "original judgment"? How to determine it. What is meant by the "penalty" referred to in the law, and how the "crime of the sentence" is measured, the academic community and practice have different views. This paper is aimed at the connotation of the principle of prohibition of change of interest in China's criminal procedure law, trying out the past context, analyzing current regulations and practical operations, and finally making conclusions and recommendations. It is expected that the analysis in this study will lead to the so-called "original judgment", "criminal" and "criminal" benchmarks.
In the 106th year of the Republic of China, the presidential reform state was a meeting. It proposed to establish a solid first-instance, second-instance principle in the post-trial or strict-review system, and the third-instance is the reform direction of the pyramid-type litigation structure. According to the defendant's dispute over the case, different treatment processes are applied to form a criminal lawsuit.
The legislative intent of the current non-interest change prohibition principle, and the direction of the law court proposed by the court, the second-instance appeal, and in principle the post-trial review, have strictly restricted the reasons for appeal and the necessary procedures to prevent indiscriminate appeals. There has been considerable precaution, which is different from the current litigation system. In order to protect the rights and interests of the defendant, if the original judgment is improperly applied and there is a need for aggravating punishment, the prosecutor or the private prosecutor shall appeal against the defendant's non-interest. If the prosecutor or the private prosecutor does not appeal or appeals for no reason, only the defendant appeals or appeals for the benefit of the defendant. Since the defendant should not make the appeal adversely affected by the appeal, the existing provisions are deleted. However, those who have been revoked due to improper application of the original judgment are not covered by this regulation.
This paper suggests that it is imperative that the future direction is absolutely not to be aggravated and that the substantive non-interest is determined. In this premise, it may be necessary to have relevant supporting means to punish or prevent the defendant from committing crimes. This is an indirect system for the society to make the criminal actor return to society through other means. Whether or not the substantive non-interest determination can also lead to the space for judges to make law, this is the future thinking of judicial reform.
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Galagan, Dmytro. "Provisional measures in international arbitration as a response to parallel criminal proceedings." Thesis, 2019. http://hdl.handle.net/1828/10822.
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The central subject of this thesis is the power of an arbitral tribunal to order a state to refrain from pursuing criminal proceedings against a commercial enterprise if such an investigation constitutes an abuse of power or an attempt to obtain an unfair procedural advantage or harass of the investor, rather than a legitimate exercise of the state’s police power. The first chapter addresses the nature of international arbitration and how different theoretical models may help to explain the limits of the arbitrators’ adjudicative powers and the attitude of various national legal orders and domestic courts to arbitration agreements, proceedings and awards. The second chapter analyzes different approaches to investment arbitration as a form of global governance, and reviews arbitral jurisprudence on the interaction between protection of foreign investment and states’ power to conduct criminal proceedings. The third chapter focuses on jurisprudence of the International Court of Justice (ICJ) and various arbitral tribunals on provisional measures affecting the conduct of criminal proceedings. It identifies key developments and trends in the jurisprudence, especially with respect to the rights that could be protected by such measures. Finally, the fourth chapter addresses the question how to balance the states’ right (or even an obligation) to combat global corruption and crime, one the one hand, and the due process rights accorded to private entities when their commercial and investment disputes are resolved through international arbitration, on the other hand.<br>Graduate<br>2022-03-19
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Marková, Ljuba. "Účinnost trestního řízení a úprava přípravného řízení." Master's thesis, 2014. http://www.nusl.cz/ntk/nusl-328809.
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v anglickém jazyce Efficiency of criminal procedure and adjustment of pre-trial proceedings The purpose of my thesis is to analyse relationship between basic principles of criminal procedure and the purpose of criminal procedure. The reason for my analysis is fact that basic principles are ground of criminal proceedings. They influence all institutes of criminal procedure law and the way how they are applied. The thesis is composed of five chapters. Chapter One is introductory and defines basic terminology used in the thesis: criminal procedure, purpose of criminal proceedings, pre - trial proceedings and other section of criminal proceedings. The chapter is subdivided into four parts. Part One describes term of criminal procedure and it's purpose and explains relationship between criminal proceedings and human rights. Part Two deals with history of criminal procedure codes in the Czech lands. Part Three deals with relevant Czech legislation connected with criminal proceedings and Part Four explains term of sections of criminal procedure and briefly describes individual sections. Chapter Two focuses on basic principles of criminal proceedings. The Chapter consists of sixteen parts. Part One focuses on term and importance of basic principles of criminal proceedings. The rest of the Chapter concerns...
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Devodier, Vendula. "Role státního zástupce v trestním řízení." Master's thesis, 2021. http://www.nusl.cz/ntk/nusl-448842.
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The title of this diploma thesis is "The Role of a Public Prosecutor in Criminal Proceedings". In the Czech Republic, it is Public Prosecution that is granted the right by the Constitution to prosecute criminal offenses on behalf of the country. Activities arising from this right are the main duties of a public prosecutor. The aim of this thesis is therefore to describe said activities. It is done so chronologically with regard to the different phases of criminal proceedings. Other goals include trying to find problematic areas of the laws that govern public prosecutors, trying to come up with possible reasons behind them and proposing their solutions. This thesis also contains comments on some of the recent changes in the rules governing public prosecution. The first chapter of this thesis contains a brief history and evolution of public prosecution in Central Europe and in the Czech lands as the author believes it is a very useful introduction to public prosecution and its role in criminal proceedings today. Chapter two of this thesis deals with the laws governing public prosecution. First, the Constitution is mentioned including its article 80 and its problematic placement within the Constitution. The author then talks about other significant laws from which all duties of public prosecution...
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CHIANG, TI-FAN, and 江帝範. "The Study of Digital Evidence in Criminal Proceedings–Focus on the Cooperative Relationships." Thesis, 2017. http://ndltd.ncl.edu.tw/handle/wngd26.
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碩士<br>東吳大學<br>法律學系<br>105<br>The thesis comprises eight chapter, where chapter I is of an overview, which serves to describe the thesis’s research motive, problem awareness, research scope, study methodology and framework description, in which it also describes the public-private Cooperative Relationships, emergency technological development profile and anticipated results.
What chapter II desires to discuss pertains to information privacy development and its construct. In the chapter, it first focuses on the Unites State that has the early privacy development, by describing said country’s supreme court’s practical judiciary implementation has made of a few critical judgments on instilling the privacy rights concept and safeguard on its constitution level. It then focuses on describing the meaning of the right to information privacy, and also discussing the scope of constitutional debates on information privacy, and the basis and construct of information privacy in Taiwan’s constitution, by discussing Taiwan’s relevant privacy on its constitution level. What follows, it focuses on how the United States adopting a forceful means when confronted with amending the Fourth Amendment to the United States’ Constitution, when requesting the private sector to participate in state investigation missions. The objective of its constitution provisions article 4 serves to ban unreasonable research and detention. The evolvement of the United States communications surveillance system bears an intrinsically inseparable relation to the U.S. constitution fourth amendment bill. It discusses the U.S. constitution amendment bill article 4’s applicability and said provision’s amendment subjects, and also profiles the meaning of said provision’s research, the tangible reasoning and critical procedural elements of conducting a search, and whether it breaches the evidential eliminating effect as arisen from its constitution amendment provision article 4. In Taiwan’s entitlement formation methodology, does it warrant the necessity to transplant the U.S. legal system, or focus on Taiwan’s constitution by offering a more precise basis on information privacy? Part three focuses on discussing how the European Union devises its “personal data protection directive” as the basis for EU countries to safeguard their people’s privacy right. Part four focuses on whether the emergency technological mode stand to infringe on the people’s right to information privacy as the criteria in the thesis’s subsequent review of the existing laws and tangible case examples. In addition, if privacy of the infringed digital data owner’s information privacy stems from an operating offering investigative assistance in the process of “stored information online research” and “data transmission’s communication surveillance”, how best to safeguard the people’s right to information privacy is also a critical subject.
Chapter III further presents a discussion on under the privatization rush, the public/private Cooperative Relationships have initially presented of the objective has been to enable the state entities be able to excel the market resources by utilizing the mechanism to achieve, improve and also excel the public services. Yet with rising emerging crimes, consequently there are scholars who present streamlining the public-private collaboration relationships (partners) into the state crime investigation system; yet with the private domain already encompassing all information operators, and how private assistance in crime investigation has certain boundaries, while in light that the state’s crime investigation conduct ought to fall under an inherently governmental function, which is also referred to as one with “monopolistic power” by nature in state missions, where the portion shall fall under the “state reserved” matters, whereas the state, if attempting to use forceful means to request the private sector to participate in state investigation mission, needs to abide by the legal reservation principles to avoid over infringement of the people’s right to information privacy. Next, in terms of the means by which the private organizations assist the state in crime investigation, the thesis attempts to briefly describe, from the more technical aspect, the information surveillance, i.e. obtaining the Internet crime intelligence, tracking the criminals, evidence investigation, and lastly, it describes the permissibility and boundaries of public-private Cooperative Relationships.
Chapter IV Broaches from the public-private collaborated monitoring of “stored information” to discuss the surveillance mean; chapter V first broaches form the Unites States’ “communication surveillance” history evolvement to discuss the information surveillance under the “public-private collaborated (partner) relationships, and then explores, in legal system aspect, the bills the U.S. Congress has passed, i.e. the U.S. Congress has in 1986 promulgated the Electronic Communications Privacy Act (ECPA): in 1994, during the president Bill Clinton rein, it has further surpassed the Communication Assistance for Law Enforcement Act (short for CALEA), reinforcing the pose of communication assistance in law enforcement has bene to excel the law enforcement and intelligence agencies the ability to conduct electronic communications surveillance. Said bill demands telecommunication operators and telecommunication equipment producers to alter and also design their equipment, facilities and services, to ensure that they are fitted with communications surveillance functions, to allow the federal agencies to conduct real-time communications surveillance and so forth on all telephones, broadband Internet networks and the content of VoIP communication, and on the legal system aspect, it describes how the U.S. utilizes the public-private cooperative relationships to achieve communications surveillance. Furthermore, in U.S. trial examples, the case of Katz v. United States reckons, with U.S. federal constitution fourth amendment proposal’s protection range encompassing the content of the people’s telephone communication. Nevertheless, the U.S. Federal Supreme Court has, on the case of Smith v. Maryland, ruled that by risk assumption theory and theory of rationally anticipation of right to privacy, the people cannot claim their constitutional right to privacy on their communication records. On which, the thesis attempts to sort and summarize relevant practical case rulings to present the correlations between communication surveillance and relevant issues involving Fourth Amendment to the United States’ Constitution .
Chapter VI and chapter VII serve to discuss, in terms of the EU, Britain, Germany and Taiwan’s legal systems are concerns, the legal obligations for the operators to offer investigation assistance as seen in The Code of Criminal Procedure, The Communication Security, Surveillance Act and the Telecommunications Act, in relation to the digital evidence acquired through public-private cooperative relationships, yet does it fully apply to “Internet communication surveillance” or “online search.
Chapter VIII presets lastly on what kind of shortfall in Taiwan’s existing legal system in obtaining digital evidence through public-private cooperative relationships, and how it is applicable and interpreted by legal provisions. It also presents the feasible direction in the current and future legal bill amendments.
Keywords: Digital Evidence, Cooperative Relationships, Communication Surveillance, Right to Information Privacy