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1
Safferling, Christoph Johannes Maria. "Towards an international criminal procedure /." Oxford [u.a.] : Oxford University Press, 2003. http://www.loc.gov/catdir/enhancements/fy0615/2003276194-d.html.
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Tiede, Lydia Brashear. "The politics of criminal law reform a comparative analysis of lower court decision-making /." Diss., Connect to a 24 p. preview or request complete full text in PDF format. Access restricted to UC campuses, 2008. http://wwwlib.umi.com/cr/ucsd/fullcit?p3307373.
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Thesis (Ph. D.)--University of California, San Diego, 2008.Title from first page of PDF file (viewed August 13, 2008). Available via ProQuest Digital Dissertations. Vita. Includes bibliographical references.
3
Rodríguez, Hurtado Mario Pablo. "Constitutionalization of procedural law and its impact in standard legislation reform, CPP (Criminal Procedure Code) and in criminal justice system." Pontificia Universidad Católica del Perú, 2013. http://repositorio.pucp.edu.pe/index/handle/123456789/116463.
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This article examines the close relationship between criminal procedure and constitutional law within a democratic State framework as well as the guarantees provided from a constitutional point of view in accordance with the current context of human rights globalization. Then, the author approaches us to criminal procedure main principles and guarantees, procedural models historically formed. Finally, it presents an interesting Criminal Procedural Code analysis describing guarantees, principles and procedural models recognized in our country.Este artículo reflexiona sobre la estrecha relación entre el proceso penal y el derecho constitucional en el marco de un Estado democrático, así como sobre las garantías que debe brindar desde la óptica constitucional y en el actual contexto de globalización de los derechos humanos. A continuación nos aproxima a los principales principios y garantías del proceso penal, y a los modelos procesales históricamente configurados. Finalmente, el artículo nos presenta un interesante análisis de Código Procesal Penal, describiendo las garantías, principios y modelo procesal reconocido de nuestro país.
4
Braun, Felix 1973. "Cultural diversity in international standards for criminal sentences." Thesis, McGill University, 2001. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=32797.
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This thesis examines the debate about cultural relativism of human rights in the concrete context of the prohibition of torture, inhuman and degrading treatment as applied to criminal sentences. A study of the jurisprudence concerning the prohibition reveals that traditional legal methodology is unable to decide this debate unequivocally. It is argued that both an extreme uniformity in its interpretation as well as a complete lack of common standards are indefensible in the contemporary system of international law. Therefore, any modern interpretation of the prohibition has to strike a balance between these two extremes. Yet, this balance can not be established unilaterally once and for all. It has to be the result of an ongoing universal debate within the preexisting legal framework. Thus, the compromise that is found will shift over time to reflect the evolving consensus of the international community.
5
Ntoko, Ngome Emmanuel. "The Civil Party in criminal trials : a comparative study-guide to the criminal procedure harmonization process in Cameroon." Thesis, McGill University, 1995. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=22701.
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This study deals with the French action civile, whereby the victim of a criminal offence may participate, as civil party, in the criminal proceedings brought against the offender, and there claim reparation from such offender if he can prove that he has suffered loss or damage directly resulting from the offence. This procedure differs from what obtains in the common-law jurisdictions, where a crime victim's participation in the criminal trial is limited to being a witness for the prosecution, and can only bring an action for damages before the civil courts.In addition to examining the requirements for the admissibility of the action civile, the study elicits certain procedural and evidentiary issues, such as the burden and standard of proof, the Civilian approach to tortious liability, res judicata, the problem of judicial interpretation of code provisions by a common-law jurisdiction and the respective merits that justify the civil party action. These issues occasionally provide the background for a critical and comparative analysis in relation to common-law procedural practice.
The study also seeks to demonstrate the need for greater victim participation in the criminal process and, thereby, attempts to defeat the generally-held view in common-law jurisdictions that the victim's place is the witness box. In this way, it may be a helpful source of reference for a common-law - Civil law mixed system, like Cameroon's, that is going through a legal harmonisation process, and other common-law jurisdictions that may want to adopt the civil party procedure.
6
Wells, Emmett G. "A comparative study of the right of defense in canonical penal law and in American criminal law." Online full text .pdf document, available to Fuller patrons only, 2001. http://www.tren.com.
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7
Laing, Samantha Robyn. "The constitutionality of the Criminal Law (Forensic Procedures) Amendment Act." Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/18619.
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The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 came into operation in January 2015. The Act makes provision for the establishment of a National Forensic DNA Database, which will store DNA profiles of certain groups of people. This research will discuss the establishment of a forensic DNA database in South Africa. The legal position in the United States of America will also be considered, with specific reference to the states of Maryland, California and New York. This research will focus predominantly on the collection of DNA samples and profiles from arrestees. When such samples are allowed to be collected, what offences warrant the collection of such samples and the period within which the DNA samples need to be destroyed. Collecting DNA samples and profiles from certain persons could potentially violate particular rights in the Bill of Rights. The rights to privacy, bodily integrity, equality and human dignity are discussed as well as the approach the courts have adopted in dealing with such infringements or possible infringements. This research furthermore deals with the historical developments of DNA evidence and contains a brief discussion on expert evidence. This research also deals with the evidential value of DNA evidence, as well as possible problems faced by prosecutors and defence attorneys when dealing with DNA evidence. The Criminal Law (Forensic Procedures) Amendment Act is still very new, and therefore, there is not yet much case law in South Africa specifically dealing with the sections of the said Act. This research makes submissions and recommendations regarding certain sections of the Act, as well as the overall constitutionality of the Act.
8
Jones, Bennett. "The End Game of California's Juvenile Justice System: The Case for Complete Realignment and the Elimination of the Division of Juvenile Justice." Scholarship @ Claremont, 2013. http://scholarship.claremont.edu/cmc_theses/794.
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The juvenile justice system was originally set up under the philosophy that juveniles are inherently different than adults and therefore should not be subject to same harsh punishment as adult criminals. Rehabilitative treatment methods became the center of the juvenile justice system in order to reduce recidivism rates and help reintegrate youths back into society as smoothly as possible. This philosophy changed early in the 21st century, and many states began treating youth offenders in ways similar to adult offenders, with a particular increase in direct files of juveniles to adult court. After about a decade of harsh punishment, the system once again reverted back to the rehabilitative model. California did so through several legislative reforms; however these reforms have not been as successful as they should have been, and the system is still in a state of disarray.
California is currently balancing a failing state juvenile justice system while trying to simultaneously support realignment efforts to the county level. After evaluating the failures of Division of Juvenile Justice and the capacity of the counties, it is evident that counties are not only physically equipped to take on the increased responsibility but are much better suited to do so financially. To best uphold the original goals of the juvenile justice system and the rehabilitative model, California should move to close the Division of Juvenile Justice and completely realign all responsibility to the counties. Keeping juveniles close to their communities creates stronger ties, more continuity of treatment, and reduces the likelihood a youth will reoffend. By tailoring treatment to the individual on a local level, problems such as mental illness, substance abuse, and anger management, can be directly targeted and solved. Intervening at first arrest with effective treatment programs is crucial to decreasing the chance that a juvenile will become a career adult criminal. These juveniles are the future of society; focusing on the rehabilitation of these youths will not only increase community safety but will also produce healthy, productive citizens to contribute to the economy.
9
Kayuni, Steven William Stewista. "A policy oriented approach to witness protective measures at the international criminal court." Thesis, University of Sussex, 2017. http://sro.sussex.ac.uk/id/eprint/68456/.
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10
Edge, Peter William. "The British influence over the making of Manx criminal law and procedure (1765-1993)." Thesis, University of Cambridge, 1993. https://www.repository.cam.ac.uk/handle/1810/272677.
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Tshikovhi, Rotondwa Happy. "The law relating to double jeopardy in labour law." Thesis, University of Limpopo, 2014. http://hdl.handle.net/10386/1236.
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Thesis (LLM. (Labour Law)) --University of Limpopo, 2014This research focuses on the application of the double jeopardy principle in labour law, section 188(1)(a (b) of the Labour Relations Act 66 of 1995, (herein the LRA) which provides that the dismissal is unfair if the employer fails to prove that the reason for the dismissal is fair and was effected in accordance with a fair procedure. The first point which I would explain is the meaning of double jeopardy and whether it is applicable in labour law. The research articulates that the double jeopardy principle applies to labour law and enumerates ways it can be applied. The South African courts, in particular, the Labour Court and the Labour Appeal Court have delivered several judgements on the double jeopardy principle. These cases will be critically discussed in detail. Comparison will be made with foreign labour law jurisprudence on the double jeopardy principle, particularly in Australia and the United States of America.
12
Du, Plessis Jan Andriaan. "The impact of minimum sentence legislation on South African criminal law." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1020037x.
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The Criminal Law Amendment Act introduced a scheme where minimum sentences are prescribed for serious offences into the South African Criminal Law. The limitations put on the courts’ sentencing discretion were not received with unanimous approval from all quarters. The Constitutional Court declared the general working of the Act to be constitutional soon after its inception. Specific provisions pertaining to certain offences remained unpopular. The hefty sentence of 15 years imprisonment prescribed for the possession of a semi-automatic firearm is put forward as an example in this regard. High Courts avoid the minimum sentence prescribed for this offence by using different interpretational methods. Despite the sense of animosity towards the unfair contents of this provision, no ruling is made on the constitutionality thereof. An apparent deference towards the legislature could be detected on the part of the judiciary. South African jurisprudence discourages our courts to rule on the constitutionality of a law. It is only done when the defect could not be remedied by any other available means. The reluctance of our courts to make a ruling on the constitutionality of the semi-automatic provision does not promote legal certainty. High Courts attach different interpretations to the “true intention” of the legislature in order to bypass this provision. Logic dictates that inexperienced presiding officers with inferior interpretational skills would continue to hand down the minimum sentence while it remains on the law books. A sentence of fifteen years is also prescribed for robbery with aggravating circumstances. The existing common law on the interpretation of the definition of this offence provides for a wide range of human conduct to be included. Case law could be expected where the courts deviate from the prescribed sentence on a regular basis. This unscientific approach should be discouraged and a rethinking of the boundaries of this offence is suggested. The Act is doing more harm than good to our Criminal Law. The legislature could still provide other visible measures against serious crime without invading the sentencing discretion of the judiciary.
13
Nemitz, Jan Christoph. "Strafzumessung im Völkerstrafrecht : ein Beitrag zur Strafzwecklehre und zur Strafzumessungsmethode unter besonderer Berücksichtigung des Römischen Statuts /." Freiburg i. Br. : Ed. Iuscrim, 2002. http://www.gbv.de/dms/spk/sbb/recht/toc/357227662.pdf.
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14
Pericone, Nicholas P. "The joinder of the issue and the modification of grounds in formal trials." Theological Research Exchange Network (TREN) Access this title online, 2005. http://www.tren.com.
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Al-Subaie, Salman Muhammed. "The right to a fair trial under Saudi Law of Criminal Procedure : a human rights critique." Thesis, Brunel University, 2013. http://bura.brunel.ac.uk/handle/2438/7763.
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This study examines the compatibility of the Law of Criminal Procedure of 2001 in Saudi Arabia with the international human rights standards, and provides recommendations for criminal procedure reforms. The recent developments in the Saudi Arabian criminal justice system make it important to examine the right to a fair trial within the legal system of Saudi Arabia. This study starts by examining the international human rights standards related to the right to a fair trial and the right to a fair trial under the Saudi Arabian legal system. The study then examines the extent to which Shariah law recognizes the international human rights standards related to the right to a fair trial. This will involve the sources of Shariah and the school of thought in the Islamic jurisprudence as well as the crimes and punishments in Islamic law. The main argument is highlighted in Chapters Four and Five of this research, the former of which study the pre-trial process in the Saudi Law of Criminal Procedure in the light of international human rights standards, and the latter has evaluated the right to a fair trial under Saudi Arabia legal system. Various cases are examined in these two chapters, and the sources of those cases vary in terms of the level; for instance, some of them were provided by the General Court in Riyadh; others were provided by the Supreme Judicial Council; and others were obtained from the Modawanat-Al-Ahkam, which is the publication of the Ministry of Justice containing a variety of cases. Cases in the international domain were brought mainly from the Working Group of Arbitrary Detention in the HRC. The study provides suggestions necessary for the Law of Criminal Procedure in relation to specific articles.
16
Hassanein, Ahmed Samir. "The principle of complementarity betwen international and national criminal courts." Thesis, University of Aberdeen, 2010. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=165410.
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The principle of complementarity is the cornerstone of the establishment of the International Criminal Court as well as one of the key factors for its successful operation. Having said that, the qualities of being flexible and adaptable make the task of interpreting the principle of complementarity extremely sensitive and technically tricky. According to the current wording of the principle of complementarity in the Rome Statute, the ICC could factually exercise primacy over the national jurisdiction, if a loose interpretation of the principle is adopted, or conversely being residual to national jurisdictions, if the principle was strictly interpreted. While the principle of complementarity was at the heart of the negotiating process for the establishment of the International Criminal Court, the emerging practice of the Court to date has left the vast majority of the questions on complementarity unanswered, even the few issues which the Court has touched upon are not immune from criticism. This thesis will thus strive, through an in-depth analysis of the past, present and practice of the principle of complementarity and its corollary issues, to offer workable answers as well as constructive criticism. Guided by the central objective of ending impunity for the core crimes through criminal justice, this thesis, in interpreting the principle of complementarity, will follow a balanced approach which, while unequivocally favours national prosecutions where possible, it adopts a broadening interpretation when national jurisdictions are genuinely unavailable or ineffective. To this end, this thesis eventually presents the principle of complementarity as a managerial principle which promotes for the effective investigation and prosecution of the core crimes through the adoption of different policies which encourage, inter alia, a division of labour between the International Criminal Court and domestic jurisdictions, and enable states to carry out proceedings and overcome dilemmas of ‘inability’ or ‘unwillingness’ without the role of the International Criminal Court being limited in such incidents to excluding national jurisdiction.
17
Myers, Beatrice Faye. "The hypoplasia of the defence in international criminal law : a critical analysis of fair trial and equality of arms." Thesis, University of Sussex, 2016. http://sro.sussex.ac.uk/id/eprint/60623/.
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The term ‘hypoplasia' refers to a biological inability to mature properly, due to disease or an inadequate supply of nutrients, which results in incomplete or arrested development. This thesis will seek to demonstrate that the concept 2 of ‘hypoplasia' best represents the arrested development of the Defence role in International Criminal Law (ICL). The limited and delayed development of the Defence during the creation of the institutions will be argued as having resulted in profound and lasting consequences, which affect all manner of defence functions, both in theory and in practice. It will be argued that whilst the ‘modern institutions' provide fair trial protections in their various statutes, rules and codes, such guarantees do not manifest adequately into practical safeguards at trial. Thus, it will be argued ultimately that, when considered collectively, there exists an Inequality of Arms at the modern ICL courts and tribunals, which is worthy of greater consideration and recognition. This Chapter will begin by considering the relevance of the international context for the ICL accused, both in relation to the severity of the crimes of which he is accused, and the global platform on which he appears. Next, Section 3 will provide an overview of the structure of this thesis. Section 4 will then set out the research methods used, together with a rationale justifying the selection of the ‘modern institutions' (ICTY, SCSL & ICC), which form the focus of this study. Sections 5 & 6 will attempt to draw together some of the key themes of this thesis, including the anxiety surrounding the international accused which, it will be argued, has ultimately led to the ‘hypoplasia' of the Defence.
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Schelin, Lena. "Bevisvärdering av utsagor i brottmål /." Stockholm : Juridiska institutionen. Stockholms universitet, 2006. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-815.
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Jupp, John. "Legal transplants as tools for the reform of Afghanistan's criminal law framework : an evaluation of the Interim Criminal Procedure Code 2004 and the Counter Narcotics Law 2005." Thesis, University of Sussex, 2012. http://sro.sussex.ac.uk/id/eprint/39232/.
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The criminal law frameworks of countries that have been the subject of international peacekeeping operations and military interventions often reveal an urgent requirement for reform. Destabilised by conflict, existing frameworks may be discriminatory and inconsistent with international human rights and due process standards. New law may be imperative to promote the development of fair and effective justice systems, rule of law and transitions from conflict to peace. While the transplantation of readily-available law can be an appealing solution a fundamental concern for legislators is whether it represents a reasonable and effective mechanism for developing vital post-intervention criminal law reform. This thesis addresses this issue by examining the Interim Criminal Procedure Code 2004 and the Counter Narcotics Law 2005, two laws developed by legal transplantation in Afghanistan, the most recent example of a country where the international community is engaged in post-intervention criminal law reform. It does this by firstly developing a new evaluative test developed from an examination of theoretical perspectives on transplant feasibility. It then applies this test using quantitative data supported by original qualitative research from interviews with senior Afghan and international legal personnel. It finds that neither law has been successful. Their transplanted content and the processes of transplantation have reduced the extent to which they have been accepted and achieved their objectives and have increased their potential to be ‘lethal' transplants capable of promoting injustices, generating destabilising discontent and moderating rule of law promotion. This study questions the assumption that it should always be reasonable to develop post-intervention criminal law by means of legal transplantation. The reasonableness of relying on legal transplantation will depend on the sensitivity with which it is employed, requiring knowledge of legal transplant feasibility, local history and legal traditions and the prior application of the proposed evaluative test to assess potential receptivity.
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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.
21
Durham, Helen. "Increasing the effectiveness of the International Criminal Court : the contribution of non-state actors /." Connect to thesis, 1999. http://eprints.unimelb.edu.au/archive/00001392.
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22
Reggio, Ross C. "Harmless Constitutional Error: How a Minor Doctrine Meant to Improve Judicial Efficiency is Eroding America's Founding Ideals." Scholarship @ Claremont, 2019. https://scholarship.claremont.edu/cmc_theses/2253.
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The United States Constitution had been in existence for almost two hundred years before the Supreme Court decided that some violations of constitutional rights may be too insignificant to warrant remedial action. Known as "harmless error," this statutory doctrine allows a court to affirm a conviction when a mere technicality or minor defect did not affect the defendant's substantial rights. The doctrine aims to promote judicial efficiency and judgment finality. The Court first applied harmless error to constitutional violations by shifting the statutory test away from the error's effect on substantial rights to its impact on the jury's verdict. Over time, the test evolved even further, now allowing a court to disregard the constitutional error when a majority of justices believe that the untainted record evidence shows that the defendant is, in fact, guilty. This sacrifice of individual and institutional constitutional protections at the altar of judicial efficiency and judgment finality subverts the harmless error doctrine's purposes and strikes at the core of America's founding ideals. In particular, it allows appellate courts to invade the jury's role as the finder of fact and guilt, to sidestep their constitutional role to review and correct errors and protect the Constitution, and to incentivize government actors to commit constitutional violations with little-to-no ramifications. After conducting a comprehensive review of the harmless error doctrine and its development, this thesis traces through many substantive, theoretical, and practical problems with the doctrine's current application. It then proposes that the Constitution and the values that it protects should once again be elevated above the harmless error doctrine's pragmatic concerns of judicial efficiency and judgment finality.
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Kerscher, Martin. "Plea bargaining in South Africa and Germany." Thesis, Stellenbosch : Stellenbosch University, 2013. http://hdl.handle.net/10019.1/80257.
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Thesis (LLM)--Stellenbosch University, 2013.Bibliography
ENGLISH ABSTRACT: Plea bargaining describes the act of negotiating and concluding agreements in the criminal procedure. Usually the prosecutor and the accused agree that the accused will plead guilty to the charge brought against him in exchange for some concession from the prosecution. The bargain is not limited to the presented subject. Agreements can contain the non-prosecution or reduction of charges, specific terms of punishment, conditions of probation and much more. In many countries the vast majority of criminal cases are disposed by way of bargaining. Plea bargaining breaches with the concept of a conventional trial and consequently clashes with well-known fundamental principles of the criminal procedure. Moreover, bargaining before criminal trials strongly implicates the constitutionally secured rights of the accused as well as of the public interest. Although plea bargaining is broadly criticized for its implications on essential rules and principles, the use of the practice is widespread. There are clear benefits to the participant, such as to avoid a lengthy trial with an uncertain outcome. South Africa, as a legal system with roots in the common law, adopted the procedure in 2001 with the implementation of s 105A into the Criminal Procedure Act. The German legislature in 2009 decided to regulate what until then had been informal practice by inserting several rules into the German criminal procedure, amongst which s 257c contains the main provisions. The implementation of bargains into the German law has produced tensions particularly due to the inquisitorial basis of the criminal procedure that stands in civil law tradition. This thesis evaluates how South African and German provisions on plea bargaining differ, i.e., on which different backgrounds they are based on, how the bargain procedures are construed and to what extent statutory plea bargaining in both legal systems displaces informal traditional agreements. The comparison is enriching under the aspect that both countries implemented the bargain procedure but had to place them on fundamentally different grounds. Having presented the grounds that motivated the research (Chapter I.), the origins of plea bargaining in general as well as the legal development toward the present statutory provisions in both countries are examined (Chapter II.). The bargain procedures are compared in detail (Chapter IV.). A large part focuses on particular problem areas and how both legal systems cope with them (Chapter V.). The result of the research is summarized in a conclusion (Chapter VI.).
AFRIKAANSE OPSOMMING: Pleitonderhandeling kan beskryf word as die proses van onderhandel en die aangaan van ooreenkomste in die strafproses. Die vervolging en die verdediging sal gewoonlik ooreenkom dat die beskuldigde skuldig sal pleit in ruil vir een of meer toegewings deur die vervolging. Ooreenkomste kan insluit die nie-vervolging of vermindering van klagte, spesifieke aspekte van vonnis, voorwaardes van parool en talle meer. In ‘n hele aantal lande word die oorgrote meerderheid van sake afgehandel by wyse van pleitooreenkomste. Dit is egter duidelik dat pleitooreenkomste in konflik is met die konsep van ‘n gewone verhoor en is gevolglik ook in konflik met van die grondbeginsels van die strafprosesreg. Dit raak ook die grondwetlike regte van beskuldigdes en die belange van die samelewing. Ten spyte van hierdie kritiek en meer, is die praktyk van pleitonderhandeling wydverspreid. Daar blyk besliste voordeel te wees vir die deelnemende partye, byvoorbeeld die vermyding van lang verhore met onsekere beslissings. Suid-Afrika (met ‘n sterk gemeenregtelike tradisie) het die praktyk van pleitonderhandeling formeel en per statuut in 2001 aanvaar, met die aanvaarding en invoeging van artikel 105A in die Strafproseswet, 1977. Die wetgewer in Duitsland het in 2009 besluit om die informele praktyk van pleitonderhandeling te formaliseer met die invoeging van sekere bepalings in die Duitse strafproseskode. Hierdie invoeging het sekere spanning veroorsaak in die Duitse strafproses, veral weens die inkwisitoriese tradisie in daardie jurisdiksie. Hierdie tesis evalueer die Suid-Afrikaanse en Duitse benaderings tot pleitonderhandelinge, hoe dit verskil, die verskillende regskulturele kontekste waarbinne dit plaasvind, en die mate waartoe pleitonderhandeling in beide sisteme informele ooreenkomste vervang het. Die vergelykende ondersoek bevind dat beide stelsels die pleitooreenkoms ingestel het, maar dit moes doen mvn fundamenteel verskillende gronde. Hoofstuk I (die motivering vir die studie), word gevolg deur ‘n historiese ondersoek (Hoofstuk II). Die verdere hoofstukke fokus op die regsvergelykende aspekte en die gevolgtrekkings word in Hoofstuk VI uiteengesit.
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Claret-Tournier, Virginie. "La clandestinité en matière pénale." Thesis, Grenoble, 2012. http://www.theses.fr/2012GREND014.
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La clandestinité en matière pénale est présente au stade de la réalisation de l'infraction ainsi qu'à celui de sa poursuite. Cette notion se révèle protéiforme et pose la question des places respectives du juge et de la loi comme reconnaissant la clandestinitéThe clandestinity in penal law can be found when the offence is commited and when the legal proceedings are started. This notion is protean and question about the places of the judge and the legislator in recognizing the clandestinity
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Bliudsukis, Svajūnas. "Esminiai baudžiamojo proceso normų pažeidimai: teorija ir praktika." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2006. http://vddb.library.lt/obj/LT-eLABa-0001:E.02~2006~D_20060331_122802-97680.
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In dieser Arbeit werden wesentliche Verletzungen des Strafprozesses, ihre Uhrsachen, die Merkmalen, unterscheidende wesentlichen Prozessverletzungen von anderen Verletzungen des Strafprozesses, die Ordnung der Anerkennung als wesentlich, und auch die Folgen, analysiert.
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Bohle, Eva. "Proving genocidal intent and the policy element :genocide in Darfur?" Thesis, University of the Western Cape, 2009. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_2738_1297749409.
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The International Commission of Inquiry on Darfur (Commission) began its work in October 2004 and provided its final report only three months later on 25 January 2005.2 There, it concluded, inter alia, &ldquo
that the Government of Sudan has not pursued a policy of genocide&rdquo
and that at least the central Government authorities did not act with genocidal intent.3 However, these findings would not exclude the possibility that the atrocities committed by individuals against victims were carried out with the specific intent to destroy and therefore could possibly fulfil all necessary requirements of the crime of genocide.
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Peters, Edward N. "Preliminary procedural considerations in the application of ecclesiastical penalties." Theological Research Exchange Network (TREN) Access this title online, 1988. http://www.tren.com/search.cfm?p029-0147.
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Fischer, Carl Frederich. "An evaluation of the constitutionality of the common law crime of criminal defamation." Thesis, Nelson Mandela Metropolitan University, 2008. http://hdl.handle.net/10948/749.
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The challenge in the law of defamation lies in finding the appropriate balance between the two competing rights of freedom of expression and an unimpaired reputation. From Roman and Roman-Dutch law into the modern era, criminal and civil defamation have been very closely linked. The elements and defences are substantially alike. There were several calls prior to 1994 for the abrogation of criminal defamation. Now that the right to an unimpaired reputation, as part of the right to human dignity, and the right to freedom of expression is constitutionally guaranteed, quo vadis the crime of criminal defamation? The Supreme Court of Appeal has recently granted a petition for leave to appeal against convictions for criminal defamation on this very point: is the offence constitutional. Due to the paucity of criminal defamation precedent, the copious civil law precedent concerning civil defamation must be analysed to determine what view the Supreme Court of Appeal will adopt. Prior to 1994 the right to an unimpaired reputation has trumped freedom of expression. Since then, the two leading decisions by the Supreme Court of Appeal and the Constitutional Court have ameliorated this situation slightly, according freedom of expression more weight. Claiming the previous common law position was incorrect, they claim the present common law position is constitutionally sound. Thus the Constitution has in essence had no effect to date upon the balancing of competing rights in the law of defamation. Both courts have erred in according the right to freedom of expression too little weight. This may be due to three judicial errors. Firstly, they have under-appreciated that the values of dignity, equality and freedom fortify and are fortified by the right to freedom of expression. Aspects of dignity such as self-actualisation, self-governance and an acceptance that humans have intrinsic worth are heavily reliant on freedom of expression, particularly political expression. Secondly, while political expression lies at the core of freedom of expression, reputation lies nearer the periphery of the right to dignity. Rights at the core ought to trump competing but peripheral rights. Thirdly, erroneous statements are inevitable in free debate. Unless they too are protected, unacceptable self-censorship occurs. The correct approach is as a matter of policy, particularly regarding political expression, to balance the competing rights with one’s thumb on the free expression side of the scales. This seems the trend of the European Court of Human Rights in recent cases In Canada, an offence punishing libel made intentionally but without knowledge of its falsity was recently ruled unconstitutional. On the other hand, another offence punishing libel made with knowledge it was false, videlicet punishing the intentional publication of defamatory lies, was ruled constitutional. Criminal defamation clearly infringes upon the right to freedom of expression. For this infringement to pass constitutional muster it must be reasonable and justifiable in an open and democratic society. It fails the limitation test due to the lack of proportionality between its objective in protecting the right to an unimpaired reputation and the harm it does to the right to expression. There are three reasons: firstly the “chilling effect” of imprisonment, over and above pecuniary damages, unacceptably stifles free debate. Secondly, it may punish even the truth, yet protect a falsehood, since the truth per se is not a defence. An undeserved reputation is thus more highly valued than the publication of that truth. Finally there is a well-developed civil remedy that adequately protects the right to reputation of aggrieved persons. In the appeal concerning the constitutionality of the common law offence of criminal defamation, the Supreme Court of Appeal ought to find it unconstitutional.
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Mallory, Jeri. "Comparisons of the Soul: A Foucauldian Analysis of Reasonable Doubt." Scholarship @ Claremont, 2019. https://scholarship.claremont.edu/scripps_theses/1409.
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The purpose of this paper is to uncover a new level of thinking regarding the discourse and debate around the standard of reasonable doubt and how it is used in our court rooms. The current argument surrounding the reasonable doubt standard has become circular and reached an impasse. By introducing the lens of social control and using the writings of notable French philosopher Michel Foucault, this paper looks at the origins and development of the reasonable doubt standard and links it with the increasing methods of social control present in punishment as well as evaluating the cultural narrative around its origin and assessing why this standard was permitted to continue to be a cornerstone of the Anglo-American judicial system.
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Hickman, Laura J. "An Assessment of the Impact of Intimate Victim-Offender Relationship on Sentencing in Serious Assault Cases." PDXScholar, 1995. https://pdxscholar.library.pdx.edu/open_access_etds/5059.
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It is generally agreed that a criminal justice system reflects the values of the society within which it exists. The presence of patriarchal social values will likely affect the response of the criminal justice system to intimate violence. While the perpetration of violence against another is a violation of an important social norm, patriarchal values may function to discount the seriousness of such an act, if the violence is perpetrated by a man against his girlfriend or wife. This discount of seriousness may lead to less severe punishment for men who assault their intimates than to men who assault nonintimates. The purpose of the present study was to test the hypothesis that men who are convicted of committing serious assaults against female intimates receive more lenient punishment than men who are convicted of committing serious assault against nonintimates. Punishment was defined as sentencing outcomes, i. e. type and length of sentence. The sentences of offenders convicted of felony assaults as the major offense and subject to sentencing guidelines in Oregon in 1993 were examined. Chi-square tests were used to compare the sentence types of intimate and nonintimate violence offenders. Two-tailed !-tests and multiple linear regression were used to examine the relationship between victim-offender relationship and length of sentence. It appears that the presence of Oregon's sentencing guidelines, rather than victim-offender relationship, had the greatest effect upon the severity of punishment. This finding suggests that the guidelines may be responsible for minimizing the impact of patriarchal values on sentencing decisions in serious assault cases.
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Laird, Jessica O. "Suspicious Minds: An Analysis of Insanity and Legal Accountability in American Criminal Law." Scholarship @ Claremont, 2015. http://scholarship.claremont.edu/cmc_theses/1143.
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This thesis focuses on the treatment of insanity in the criminal law and its implications for the concepts and mechanisms of legal accountability. In order to address this issue, I examined the historical background of the insanity defense and five specific cases that demonstrate the complications arising from insanity’s present legal condition. From this case study I drew the conclusion that, because liability to punishment requires particular internal conditions, criminal responsibility is the proper measure of legal accountability for insane persons. Ultimately, my research demonstrated that insanity occupies a unique position in both the theory of crimes and the theory of punishment and that a trial by jury is not the most appropriate way for adjudicating issues of insanity. In each of these spheres, judges consider how mental conditions relate to criminal responsibility and the role that juries play shrinks as the content of guilt shifts to criminal responsibility. For this reason, I conclude that judges are the best candidates for addressing insanity and its effect on criminal responsibility.
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Schuetze, Jennifer Johanna. "To cause or not to cause, that is the question : the prosecutorial standard for incitement at international criminal law." Thesis, McGill University, 2005. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=82670.
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The prosecutorial standard for incitement is subject to different approaches in the common law and civil law traditions respectively. The most crucial difference lies in the role attributed to the result as a definitional element of the offence. While the civil law generally characterizes proof of results as a prerequisite to liability, the common law views it as significant but not determinative of guilt. This divergence is expounded at the international level, which condones both approaches with respect to different crimes, employing the common law approach only to genocide and relegating all other crimes to the purview of the civil law approach. The practical effect is a focus on the gravity of the substantive crime to which incitement attaches, rather than on the crucial role of incitement itself. This thesis will seek to elucidate the parameters of this debate with the aim of deconstructing and redrawing preconceived barriers in international criminal law.
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Wilson, Grace K. "Civilly Disobedient: Justifying Juror Misconduct." Scholarship @ Claremont, 2019. https://scholarship.claremont.edu/cmc_theses/2266.
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A fair, unbiased jury that follows the courts instructions is a crucial aspect of the American criminal justice system, mandated by both the California and United States Constitution. When jurors violate judicial instructions, it can jeopardize the impartiality of a case. Despite this, little research has been completed on what individual differences are indicative of greater willingness to commit jury misconduct. Misconduct can occur when jurors fail to follow judicial instructions in circumstances that a reasonable person may be tempted to disobey. This study explores potential individual differences that correlate with a greater likelihood of excusing and even committing juror misconduct under specific circumstances. Participants (N = 148) in an online survey read one of six vignettes relating to a mock court case. These vignettes either presented clear or confusing information, and included one of three types of juror misconduct witness [googled a term, talked to their spouse about the case, or went to the crime scene]. Neither the severity of the juror misconduct nor the clarity of expert testimony significantly affected participant’s perceptions of the behavior. However, participants Right Wing Authoritarianism and Belief in a Just World scores did affect their likelihood of reporting the juror misconduct as well as influenced their report of whether they would engage in these behaviors.
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El-Jazara, Zain Abdulla. "Institutionalized Since Adolescence: Deconstructing the Legality and Legitimacy of Israel’s Incarceration of Palestinian Children." Scholarship @ Claremont, 2016. http://scholarship.claremont.edu/cmc_theses/1395.
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A disturbing average of 600 Palestinian children are prosecuted by Israeli military courts every year. Three fourths of the children experience some form of physical violence during their arrest, interrogation, and/or detention. On the contrary, Jewish Israeli children never face the brutality of a military court system with a 99.74% conviction rate of Palestinian minors. The aim of this thesis is to examine the “legal” systems responsible for discriminatorily incarcerating an average of 200 children in military jails on a monthly basis. Central questions to my thesis ask: is this behavior legal and legitimate by Israeli legal standards? Can the same be said about the standards set by international law? What defines and distinguishes a legal system? Finally, how should we punish children, if at all? This thesis argues there is a severe lack of legality and legitimacy behind Israel’s rampant and unrestricted incarceration of Palestinian minors, be it by Israeli or international measures.
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Isaacs, Alfred Eugene. "The challenges posed by mandatory minimum sentence legislation in South Africa and recommendations for improved implementation." University of the Western Cape, 2004. http://etd.uwc.ac.za/index.php?module=etd&.
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Generally the Courts have a discretion to impose sentence. Violent crime was rampant in South Africa. The response of the legislature in dealing with crime was to enact legislation in 1997 like sections 51 to 53 of the Criminal Law Amendment Act 105 of 1997 which prescribe severe mandatory sentences for a large number of serious offences like murder, rape and armed robbery. This legislation come into effect on 1 May 1998 and was to have effect for two years. The President could with the concurrence of Parliament by proclamation extend its operation for one year, that was in fact done. The latest extension of the Criminal Law Amendment Act 105 of 1997 was for a further two years making the minimum sentence provisions valid until 30 April 2005. The Courts did not like these mandatory sentences because of the limitation it places on judicial discretion and dealt with this legislation that limited their judicial discretion restrictively in order to defend their sentencing discretion. Although the Criminal Law Amendment Act of 105 of 1997 was held not to be unconstitutional the Courts stll sought to give it a narrow interpretation. This research paper include an outline of the Criminal Law Amendment Actthe Constitutional challenges that were brought against the Criminal Law Amendment Act
the judicial interpretation of the Criminal Law Amendment Act as well as the applicability of the Criminal Law Amendment Act to District Courts and juvenile ovenders
the procedural requirements that must be complied with in the Criminal Law Amendment Act and its consequences if not complied with. This paper examined how the Courts defined substantial and compelling circumstances, the approaches adopted by the Courts and when deviation from the Criminal Law Amendment Act can take place. It also include the challenges posed by mandatory minimum sentence legislation as well as recommendations for the improved implementation of the Criminal Law Amendment Act.
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Nzimande, Eric Sibusiso. "Minimum sentence legislation in South Africa." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/d1012041.
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Legislation regulating minimum sentences in South Africa was re-introduced by sections 51 to 53 of the Criminal Law Amendment Act 105 of 1997 which came into operation on 1 May 1998. These provisions were regarded as a temporary measure to be effective for two years, where after they were extended from time to time. After they had been extended for several times, section 51 was rendered permanent on 31 December 2007 by the Criminal Law (Sentencing) Amendment Act 38 of 2007. At the same time sections 52 and 53 were repealed by the same Act. Minimum sentence legislation was the result of a call by the community for heavier penalties and for the offenders to serve more realistic terms of imprisonment. There was also a general dissatisfaction about the perceived leniency of sentences imposed by the courts for serious crimes. During 1996 and in the wake of these concerns the Minister of Justice requested the South African Law Reform Commission to investigate all aspects of sentencing in South Africa. A Project Committee chaired by a judge of the High Court was appointed and it operated from the late 1996 to March 1998. Minimum sentences for certain serious crimes were one of the options to be investigated by the Project Committee. Consequent to this the Criminal Law Amendment Act 105 of 1997 was promulgated with effect from 1 May 1998. The legislature intended this Act to defer criminal activity, to avoid disparities in sentencing and to deal harshly with perpetrators of serious offences. The subsequent amendments to the Act included the granting of jurisdiction to the Regional court to pass life imprisonment, an automatic right of appeal against life imprisonment in respect of a juvenile accused and identification of circumstances that do not constitute substantial and compelling circumstances. Judicial discretion and departure from prescribed minimum sentences had initially presented a problem regarding its interpretation in a variety of cases in our courts. Eventually our courts came up with a clear interpretation of the meaning of the phrase substantial and compelling circumstances. This research project will analyze the provisions of the Criminal Law Amendment Act 105 of 1997 with regard to minimum sentences for certain serious offences. In the process case law and other literature will be discussed regarding the interpretation of minimum sentence provisions in the Act. Recommendations for legislation which will cover the aspect of sentencing on a wider scale are made.
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CASI, MICHELE. "L'EFFICACIA DEL GIUDICATO PENALE IN "ALTRI" GIUDIZI CIVILI EX ART. 654 C.P.P. PREMESSE PER UNO STUDIO." Doctoral thesis, Università degli Studi di Milano, 2021. http://hdl.handle.net/2434/818623.
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1. – The title of the final dissertation is The limits of the res judicata effect of criminal judgments in “other” civil proceedings according to art. 654 c.p.p. Methodological foundations for a subsequent study.
2. – The research carried out during the doctoral cycle takes its roots in the discipline dedicated to the res judicata effect of the criminal judgement in “other” civil proceedings, as per art. 654 of the Italian code of criminal procedure [hereinafter “c.p.p.”]. The analysis of the law and of the doctrine has led to detect some critical interpretations, in particular in relation to its scope and to the subjective and objective limitations to the res judicata effect of the
criminal judgement in subsequent civil proceedings. In addition, the analysis of the edited jurisprudence in relation to the rule in question has led to observe an incoherent application of the said discipline. The analysis of the most relevant doctrine and jurisprudence confirms the numerous interpretative perplexities that involve the discipline set in art. 654 c.p.p., in particular with regard to its divergence from the principles that govern the res judicata
according to the traditional doctrine in civil procedural law. The same notes were also the subject of the recent XXXII National Conference of the Italian Association of Civil Procedural Law Scholars on The Statute of the Judge and the Assessment of Facts (Messina, 27-28 September 2019).
3. – At a methodological level, the research has been carried out by elaborating a complete bibliography on each of the main topics dealt with. The essays, the articles and the most relevant jurisprudence have been examined with scientific method in order to obtain a more complete vision of the topics covered by the dissertation. Specific consideration was given to the contribution ZUMPANO, Rapporti tra processo penale e processo civile, Turin, 2000, on the relationship between criminal and civil proceedings. Each issue developed in the dissertation has been addressed with the conceptual and dogmatic instruments of civil procedural law science; they have also been applied to the analysis of issues belonging to criminal procedural law. According to this, the author often found a difficulty in the translation, both terminological and conceptual, of the basic institutions between the two procedural law
sciences.
4. – The primary result of the research was to redefine the object of the final work. It regards the logical and legal premises necessary for an analysis of art. 654 c.p.p., to be carried out later in time. In this way, the structure of the final report is divided into three chapters. (1) The introductory premises on the res judicata effect of the criminal judgement in other criminal judgements having the same object (artt. 648 and 649 c.p.p.). (2) The hypothesis of
a positive and binding effect of the criminal res judicata in subsequent criminal judgements having a different object. (3) The res judicata effect of the criminal judgement in civil tort and damage judgements (artt. 651-652 c.p.p.) and the relative premises: (i) the right to compensation relating to crimes (art. 185 of the criminal code) and (ii) the damage claim in the criminal proceedings (artt. 74 ff. c.p.p.) and in the civil proceedings.
5. – Considering all the elements, the dissertation deals with some issues that constitute the leitmotiv of the work. They are, first, the typical object of a criminal judgement as a fact. Second, the classification of the notion of crime as a prejudicial element in a technical sense. Third, the definition of the right to compensation for damages related to a crime. Fourth, the scope of application of the discipline dedicated to the damage claim related to a crime. Fifth,
the peculiarities of the discipline of the res judicata effect of criminal judgement in civil proceedings in relation to its scope of application and its subjective limitation.
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Tsabora, James. "The application of the Rome Statute of the International Criminal Court to illegal natural resource exploitation in the Congo conflic." Thesis, Rhodes University, 2013. http://hdl.handle.net/10962/d1002612.
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This thesis explores the phenomenon of illegal natural resource exploitation in conflict zones and the application of international criminal law, particularly the Rome Statute of the International Criminal Court to combat the roblem. Contemporary African conflicts, such as the Democratic Republic of Congo conflict explored as a case study herein, have become increasingly distinguishable by the tight connection between war and various forms of illegal natural resource exploitation, particularly targeting valuable and precious mineral resources. With their incidence being highest in Africa, wars funded by illegally exploited natural resources have gradually become one of the greatest threats to regional peace and human security on the African continent. The Congo conflict clearly demonstrated the problematic nature and impact of illegal natural resource exploitation and the widespread human, economic and political costs associated with this phenomenon. This thesis is based on the initial assumption that the quest by conflict actors to profit from war through illegal natural resource exploitation activities is at the centre of the commission of serious human rights violations as well as the complexity and longevity of African conflicts. Developments in international criminal law, culminating in the adoption of the Rome Statute and the establishment of the International Criminal Court, have given impetus to the argument that any group of conflict actors should be subjected to the individual criminal responsibility regime of this legal framework. A further underlying assumption of this thesis is therefore that international criminal law can constrain the acts and conduct defined in this thesis as illegal natural resource exploitation activities since they constitute war crimes under the Rome Statute framework. However, despite illustrating the illegal resource exploitation activities of various state and non-state actors, this thesis is confined to an application of the Rome Statute based international criminal liability regime against members of armed rebel groups involved in such acts. In exploring these issues, this work examines international criminal law institutions and the relevance of international criminal justice in addressing particular phenomena prevalent during African armed conflicts. It further provides the stage to assess the potential of international criminal law in safeguarding natural resources for the benefit of African societies perennially exposed to the depredations of natural resource financed warfare.Microsoft� Office Word 2007
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Grossman, Michelle G. "Addressing the gap : the role of institutions of the Rome Statute in responding to the needs of child crime victims at risk of "falling through the cracks"." Thesis, University of Oxford, 2014. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.711689.
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Denecke, Jan. "The admissibility of a case before the International Criminal Court : an analysis of jurisdiction and complementarity." Thesis, Stellenbosch : Stellenbosch University, 2002. http://hdl.handle.net/10019.1/53084.
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Thesis (LLM)--University of Stellenbosch, 2002.ENGLISH ABSTRACT: The permanent International Criminal Court (ICC) will come into operation after the 60th ratification of the Rome Statute of the International Criminal Court of 1998. The ICC will have jurisdiction over the most serious international crimes, namely war crimes, genocide and crimes against humanity. The focus of this thesis is the difficulties surrounding the admissibility of a case before the ICC. There are basically two legs to this analysis: jurisdiction and complementarity .. Jurisdiction of the ICC is analysed in historical and theoretical context. This comprises an overview of the international tribunals since the First World War, and more specifically their impact on the development of jurisdiction in international criminal law. Secondly, the thesis is examining the jurisdiction of the ICC in terms of the specific provisions of the Rome Statute. This analysis comprises a detailed analysis of all the provisions of the Rome Statute that have an impact on the exercise of the ICC's jurisdiction. The relationship between the ICC and national courts is a difficult relationship based on a compromise at the Rome Conference in 1998. The principle underlying this relationship is known as "complementarity". This : means that the ICC will only exercise its jurisdiction if a national court is "unwilling" or "unable" to exercise its jurisdiction. A detailed analysis of the different provisions of the Rome Statute, as well as some references to other international tribunals, serve to analyse the impact of complementarity on the eventual ambit of the ICC's jurisdiction. In conclusion, some suggestions regarding the admissibility of cases and the difficult relationship between the ICC and national courts are made.
AFRIKAANSE OPSOMMING: Die permanente Internasionale Strafhof (ISH) sal met sy werksaamhede begin na die 60ste ratifikasie van die Statuut van Rome van 1998. Die ISH sal jurisdiksie uitoefen oor die ernstigste internasionale misdade, tewete oorlogsmisdade, volksmoord en misdade teen die mensdom. Hierdie tesis fokus op die probleme rondom die toelaatbaarheid van 'n saak voor die ISH. Hierdie ontleding het basies twee bene: jurisdiksie en komplementariteit. Die jurisdiksie van die ISH word in historiese en teoretiese konteks ontleed. Dit behels 'n oorsig van die internasionale tribunale sedert die Eerste Wêreldoorlog, en meer spesifiek die impak wat hierdie tribunale op die ontwikkeling van jurisdiksie in die internasionale strafreg gehad het. In die tweede plek word jurisdiksie ontleed aan die hand van die spesifieke bepalings van die Statuut van Rome. Hierdie ontleding behels 'n gedetaileerde ontleding van al die bepalings van die Statuut van Rome wat 'n impak het op die uitoefening van die ISH se jurisdiksie. Die verhouding tussen die ISH en nasionale howe is 'n komplekse verhouding, gebaseer op 'n kompromie wat by die Rome Konferensie van 1998 aangegaan is. Die beginselonderliggend aan hierdie verhouding staan bekend as "komplementariteit". Dit beteken dat die ISH slegs sy jurisdiksie sal uitoefen indien 'n nasionale hof "onwillig" of "nie in staat is" om jurisdiksie uit te oefen nie. 'n Gedetaileerde ontleding van die verskillende bepalings van die Statuut van Rome, sowel as verwysings na ander internasionale tribunale, dien om die impak van komplementariteit op die omvang van die ISH se jurisdiksie, te ontleed. Ten slotte word sekere voorstelle aangaande die toelaatbaarheid van sake en die verhouding tussen die ISH en nasionale howe gemaak.
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Nwasike, Ugochukwu N. "The Intended and Unintended Effects of Civil Gang Injunctions in California." Scholarship @ Claremont, 2013. http://scholarship.claremont.edu/cmc_theses/942.
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The state of California has one of the largest and most violent gang populations in the United States. Although there have been a variety of anti-gang measures and policies enacted by local and state governments, none have been more effective than the Civil Gang Injunction (CGI). This civil action prohibits certain street gangs, and their members, from participating in activities that would otherwise be considered lawful. In order to obtain an injunction a prosecutor must demonstrate to the court that the gang is engaged in ongoing criminal conduct and represents a public nuisance to a geographically defined area. When a neighborhood is under an injunction, not only is police presence in the area increased but officers are also given more freedom to investigate and apprehend gang members who are suspected to be in violation of the terms. As this thesis will argue, injunctions, when used correctly, have proven to be an effective weapon in diminishing the influence of territorial street gangs on community well-being. When used incorrectly, however, they often only provide a temporary fix to a long-lasting problem. They also have been known to contribute to an increase in crime in neighboring areas, an increased number of wrongful arrests, and in some cases they have promoted criminality amongst young people. To explore the efficacy of injunctions, this thesis will focus on three empirical studies that cover a period from 1993 to 2003, when the rates of gang-related violence were at an all-time high and injunctions became the primary tool for City and District Attorneys to combat the nuisance. Two of these studies argue that injunctions have a positive impact on violent crime statistics, whereas the third concludes that they do not. By comparing these conflicting pieces of quantitative evidence, this thesis aims to gauge the actual effect of injunctions on crime rates and weigh the perceived benefits of this measure against its unintended negative effects.
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Danziger, Christine. "Die Medialisierung des Strafprozesses : eine Untersuchung zum Verhältnis von Medien und Strafprozess /." Berlin : BWV, Berliner Wiss.-Verl, 2009. http://d-nb.info/994611560/04.
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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, 2019The Constitution of the Republic of South Africa, 1996 provides that a child’s best interests should be of primary consideration in any matter concerning him or her. Contrary to this value, and thereby excluding protection of child victims, section 154(3) of the Criminal Procedure Act 51 of 1977 simply focusses on anonymity protection of child offenders and witness involved in criminal proceedings. It currently expressly prohibits the publication of the identities of child offenders and witnesses when the media makes publications on the relevant criminal proceedings. However, this protection terminates once such child offenders and witnesses attain majority, therefore arbitrarily stripping them of the identity protection. As a result, media houses are not only at liberty to publish on criminal proceedings identifying child victims, but also to expose the identities of child offenders and witnesses upon attaining majority. Such publications have proved to impede on children’s rights, as well as to contribute to the psychological challenges faced by the children whenever they are exposed to the criminal justice system. In this study the constitutional validity of section 154(3) is investigated and it is argued that it is unconstitutional in all respects. The section contradicts the specific right afforded to all children in the Bill of Rights, as well as other ancillary rights, which ought to ensure the progressive realisation of the protection afforded in terms of section 154(3). It is recommended, firstly, that section 154(3) be declared unconstitutional, and be amended to include child victims within the ambit of its protection. Secondly, the protection should extend beyond the age of 18, in respect of all children involved in criminal proceedings.
National Research Foundation
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Kircher, Luís Felipe Schneider. "Uma teoria dos precedentes vinculantes no processo penal." reponame:Biblioteca Digital de Teses e Dissertações da UFRGS, 2017. http://hdl.handle.net/10183/169728.
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A presente dissertação aborda o tema dos precedentes judiciais, visando estabelecer uma teoria dos precedentes vinculantes no processo penal. Parte-se de um exame dos fundamentos de base, especialmente acerca da crise do princípio da legalidade e da sua limitação frente ao que se pensava no contexto do Iluminismo. Isso se deu em face da mudança no que significa interpretar o direito, que, contemporaneamente, é percebida como uma atividade adscritiva de sentido aos dispositivos normativos e aos elementos não textuais, ou seja, reconhece-se, em alguma medida, um papel criativo do intérprete. Ainda, contribui para o estado de crise da legalidade o fato de o legislador penal passar a se utilizar também da técnica de redação legislativa aberta, o que potencializa a discricionariedade judicial. Daí que advém a necessidade de precedentes vinculantes no processo penal, como forma de maximização da segurança jurídica, da liberdade e da igualdade. Além disso, busca-se tratar de como o sistema de precedentes deve funcionar no âmbito do processo penal brasileiro. Abordam-se os conceitos básicos de operacionalização do sistema, como a definição de precedente e suas diferenciações, a distinção e a superação, bem como, a função das Cortes Supremas. Ainda, objetiva-se delimitar como deve funcionar no quotidiano forense o sistema de precedentes no Brasil, apontando-se diferenças frente a uma teoria geral dos precedentes (como a (ir)retroatividade em matéria penal).This paper addresses the issue of judicial precedents, aiming to establish a theory of criminal procedural binding precedents. It is based on an examination of the basic foundations, especially on the crisis of the principle of legality and its limitation compared to what was thought in the context of the Enlightenment. This was due to a change in what it means to interpret law, which at the same time is perceived as an adjectival activity of meaning to normative devices and to non-textual elements, that is, to some extent a creative role of the interpreter is recognized. Moreover, it contributes to the state of crisis of legality the fact that the criminal legislature is also using the technique of open legislative drafting, which enhances judicial discretion. Hence the need for binding precedents in criminal proceedings as a means of maximizing legal certainty, freedom and equality. In addition, it seeks to address how the precedent system should work within the Brazilian criminal procedure. It addresses the basic concepts of operationalization of the system, such as the definition of precedent and its differentiations, distinguishing and overruling, as well as the function of the Supreme Courts. Also, it aims to delimit how the system of precedents in Brazil should work in daily forensics, pointing to differences in relation to a general theory of precedents (such as retroactivity in criminal matters).
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Birdling, Malcolm David. "Correction of miscarriages of justice in New Zealand and England." Thesis, University of Oxford, 2012. http://ora.ox.ac.uk/objects/uuid:2dae4513-4fd2-40cd-bb6a-dbba696d6d7f.
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This thesis sets out to provide a deep analysis of the mechanisms for review of convictions in New Zealand and England after initial appeal rights are exhausted, and to identify the key areas of similarity and difference between these systems, the reasons for these differences, and their implications. The appeal systems in each jurisdiction are briefly examined, alongside the pressures and restrictions on their functioning. Particular attention is paid to the options for appeal out of time, and for revisiting appeal decisions if new material comes to light. The main discussion is of the specialist procedures for review of suspect convictions in each jurisdiction: the Royal Prerogative of Mercy process carried out by the New Zealand Ministry of Justice and the work of the English Criminal Cases Review Commission. This discussion presents the results of empirical research carried out by the author utilising the files of each of these bodies. It investigates the legal context in which each body functions, and provides an account of how each body functions in practice, by examining the circumstances in which each body will contemplate referring a matter back to an appeal court and the means by which a determination is made as to whether to do so in an individual case. In addition it examines the various factors (legal and non-legal) which impact on their work. Finally, the key features of the two systems are contrasted, with a discussion of the areas of similarity and difference, as well as the possible implications of these, in particular for reform of the New Zealand processes.
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Souza, Ailton Alfredo de. "Juizado criminal: uma crítica à transação penal diante da tensão entre garantismo e eficiência do procedimento." Universidade Católica de Pernambuco, 2010. http://tede2.unicap.br:8080/handle/tede/907.
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This dissertation investigates the legal institute of the penal transaction applied within the grounds of the Special Criminal Court and its relation with the constitutional principles that guarantee fundamental rights for the citizens in the legal process area. It will be studied the correlation between the concepts of process and procedure and the practice of each procedural act which culminates in the penal transaction: since the transcription of the Detailed Occurrence Term by the police authority to the Preliminary Hearing. The starting point of this investigation is the eventual tension between the legal process principles which is a way of guaranteeing the legal jurisdiction service and the search for efficiency of the penal jurisdiction service as a way of undermining the legal guarantees due to the imbalance of this equation in the current practice of the penal transaction. The investigation starts from a bibliographical revision about the subject and also the analysis of statistical data about the typology of the occurrences and the nature of the legal sentences handed down in the year of 2009 in the Special Criminal Court of the State of Pernambuco. Samples of real cases submitted to the criminal courts are analyzed in order to confront the praxis of the penal transaction with the legal process principles used as basis for that matter. This research demonstrate the existence of the imbalance between garantism and efficiency in the praxis of the Penal Transaction in Brazil and it proposes the basis to materialize this institute together with the constitutional process principles, specially the principle of the due process of law and its corollaries of the wide defense and contradictory.
Esta dissertação investiga o instituto jurídico da transação penal, aplicado no âmbito dos Juizados Criminais e a sua relação com os princípios constitucionais que garantem aos cidadãos direitos fundamentais de natureza processual, inclusive. São estudados a correlação entre os conceitos de processo e procedimento e a prática de cada ato procedimental que culminam com a transação penal: da lavratura do Termo Circunstanciado de Ocorrência pela autoridade policial à Audiência Preliminar. O ponto de partida da investigação é a eventual tensão entre os princípios processuais de viés garantista e a busca pela eficiência da prestação da tutela jurisdicional penal, como geradora de déficit de garantias por causa do desequilíbrio dessa equação na atual prática da transação penal. A investigação parte de uma revisão de bibliografia sobre o tema e também da análise de dados estatísticos a respeito da tipologia penal das ocorrências e sobre a natureza das sentenças prolatadas no ano de 2009, nos Juizados Criminais do Estado de Pernambuco. São analisadas amostras de casos reais submetidos a juízo para cotejar a prática da transação penal com os princípios processuais que a informam. A pesquisa demonstra a existência de desequilíbrio entre garantismo e eficiência na prática da Transação Penal no Brasil e propõe bases para concretização do instituto sob o pálio dos princípios processuais constitucionais, notadamente do devido processo legal e seus corolários da ampla defesa e do contraditório.
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Das, Uttam. "Möglichkeiten der Angleichung materiellen Strafrechts zwischen England und Deutschland im Rahmen des Art. K 31 EUV /." Frankfurt ; New York : P. Lang, 2007. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=015790398&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Yu, Ping. "Administrative model v. adjudication model : the impact of administrative detention in the criminal process of the People's Republic of China /." Thesis, online access from Digital Dissertation Consortium access full-text, 2006. http://libweb.cityu.edu.hk/cgi-bin/er/db/ddcdiss.pl?3224316.
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Pérez-Prieto, De Las Casas Roberto. "What Court should be the competent one (in reason to the subject matter) when a civilly liable third party is involved?" THĒMIS-Revista de Derecho, 2016. http://repositorio.pucp.edu.pe/index/handle/123456789/109880.
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The New Peruvian Criminal Procedure Code includes the figure of the civilly liable third party, through which one or more subjects, who are civilly responsible together with the person who committed the crime, are involved in a criminalprocedure.The author of the present article analyses if it is correct to judge people who have not infringed Criminal Law, and hence should be judged in a civil procedure, through a criminal procedure because they are civilly responsible together withthe person that committed a crime. Further on, the author reflects on the fact that criminal judges have to sentence about topics of Civil Law.El Nuevo Código Procesal Penal peruano recoge la figura del tercero civilmente responsable, mediante la cual se involucra en un proceso penal a uno o más sujetos que tengan responsabilidad civil conjunta con aquel que cometió el delito.El autor del presente artículo analiza si es correcto que se juzgue en un proceso penal a personas que no han infringido la norma penal, y que por lo tanto deberían ser juzgadas civilmente, por tener responsabilidad civil conjunta con aquel que sí delinquió.Asimismo, el autor reflexiona sobre el hecho de que jueces penales tengan que sentenciar sobre temas de Derecho Civil.
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Donkin, Susan. "The Evolution of Pre-Emption in Anti-Terrorism Law: A Cross-Jurisdictional Examination." Thesis, Griffith University, 2012. http://hdl.handle.net/10072/366216.
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Several scholars have identified an apparently new embrace of innovative pre-emptive control mechanisms developed in response to the post 9/11 world. In their opinion, the pre-emptive rationale has been used to justify the introduction of measures transcending preconceived categories of law, procedure, risk and emergency to deal with individuals or groups thought to pose a danger to the state or its citizens. The control order schemes introduced in the United Kingdom and Australia are a frequently cited example. Imposed on individuals against whom insufficient evidence to prosecute exists, control orders are controversial due to their departure from traditional criminal procedural safeguards. Restrictions and obligations, including lengthy curfews, are imposed on the basis of anticipated risk and without a finding of guilt, justified by the exceptional risk posed by terrorism and the need to protect the state and its people from a terrorist attack. Many have argued that the security paradigm is increasingly being adopted and normalised, thus changing the role of criminal law along the way. This transition is also evident in other areas of governance, expanding the boundaries of risk and uncertainty, creating hybrids of previously distinct areas of law, affecting the separation of powers, ultimately altering how emergencies and exceptions are conceived and implemented. Indeed, much of the debate around control orders stems from their hybrid nature, thus not fitting neatly into our ready-made categories of pre-conceptions about executive and judicial issuance, and civil and criminal frameworks.Thesis (PhD Doctorate)
Doctor of Philosophy (PhD)
School of Criminology and Criminal Justice
Arts, Education and Law
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