Dissertations / Theses on the topic 'Rights of accused'

The high level of crime in South Africa raises the question about the failures of the criminal justice system on the one hand, and South Africa’s social policies on the other. Young people in South Africa can disproportionately be both victims and perpetrators of crime in the Republic of South Africa. The child accused in conflict with the law is dealt with in much the same way as their adult counterparts, as the criminal justice system was designed by adults for adults. South Africa became a signatory to the United Nations Convention on the Rights of the Child 19891(hereinafter referred to as UNCRC) on 16 June 1995. The UNCRC provides a backdrop to section 28 of the Constitution of the Republic of South Africa Act.2 Article 3(1) of the UNCRC provides as follows: “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be primary consideration.” South Africa is therefore according to article 40(3) of the UNCRC obliged to “establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law”.3 In terms of article 40(1) of the UNCRC “State Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”4 1 Adopted by the General Assembly resolution 44/25 on 20 November 1989. 2 The Constitution of the Republic of South Africa Act, Act 108 of 1996. Hereinafter referred to as the “Constitution”. 3 South Law Reform Commission Discussion Paper 96. 4 United Nations Convention on the Rights of the Child adopted by the General Assembly resolution 44/25 on 20 November 1989. iv Synopsis 2003 states that “the Ratification of the UNCRC by the South African government in 1995 set the scene for broad-reaching policy and legislative change”.5 The Constitution includes a section protecting children’s rights, which includes the statement that children have the right not to be detained except as a measure of last resort and then for the shortest appropriate period of time, separate from adults and in conditions that take account of his/her age. 6 After being off Parliament’s agenda since 2003, the Child Justice Act7 has recently been reintroduced. The Act aims to ensure consistent, fair and appropriate treatment of the child accused in conflict with the law. The question arises whether the South African Criminal Justice system involving the child accused adequately recognises and protects the interests of the child accused, particularly in view of the present international legal position.

International human rights law has witnessed considerable developments in the last decades both in normative terms and standard setting as well as in monitoring of state observance and compliance. The ECtHR and the former Commission have taken a leading role in the development of human rights due to the extensive case law the Strasbourg institutions have produced. Human rights of the accused in the criminal proceedings had its share of such a development. The court in its assessment of various national systems in their adherence to the rights enshrined in the convention has interpreted the rights progressively and the result is a vast case law regarding the right of the accused to fair trial, to liberty and the right to private life. The central theme of this work is to examine the Libyan criminal justice system in its attempt to protect the rights of those accused of a criminal offence in the light of the developments pioneered by inter-state organs especially the ECtHR. The thesis focuses on the most pressing issues where the Libyan system does appear to be at odd with the international standards of fair trial. Therefore the scope of this work has been limited to examine the protection of the right to liberty and the right to fair hearing. In doing so, it starts with a chapter introducing the reader to the Libyan system and outlining the main features and principles governing the criminal justice system. The thesis also examines the human rights situation in general and how the political and constitutional arrangements have affected the human rights situation in the country. The protection of the right to liberty and pre-trial detention is examined in chronological order starting from the initial arrest by the police till the accused is referred to the court for trial. To evaluate the extent to which the Libyan system does protect the right to liberty, the study first, examines the procedural guarantees available in the criminal process and second to ascertain whether these domestic procedures as compared to the standards developed by the ECtHR and the Human Rights Committee are of acceptable international standards. The principle of equality of arms and the principle of adversarial proceedings as developed by the European court are an integral part of the right to fair trial and these principles are the focus of this thesis. The special position the public prosecution authority occupies, the wide power it has under the Libyan system, the heavy reliance on the pretrial evidence “the dossier evidence” and the marginal role of the defence lawyer have been diagnosed to be the major problems of the system which pose serious challenges to whether the system can uphold fairness and adhere to the requirement of adversarial proceedings. The study suggests that in the light of the examination of the Libyan system, it is apparent that it suffers from major weaknesses and shortcomings and is in need of reform. In order to ensure a better protection of the rights of accused persons, certain measures need to be introduced. However, the study also acknowledges the Libyan system has a number of strong points and these should be taken into account in any future reform. Instead of arguing for a radical change, the study suggests that any proposed reform should build upon the system’s traditions and experience. Reform should on one hand, lay the ground for a more participatory role for the defence lawyer from the early stages of the proceedings, backed by more judicial supervision of the conduct of police and prosecution in the pre-trial stage. On the other hand, the study argues the system’s belief in the positive role of the trial judge is a valuable guarantee of justice which should be retained. The study’s focus on the implications of the Strasbourg case law for the Libya system has not deterred it from seeking lessons and insights from the development of international justice and Islamic law jurisprudence.

Magister Legum - LLM
Section 105A of the Criminal Procedure Act is unconstitutional with regard to its failure to extend benefits to an unrepresented accused. Unlike a represented accused, an unrepresented accused cannot benefit from section 105A. The only recourse available to him or her is to enter a plea of guilty under section 112 of the Criminal Procedure Act. This plea of guilty does not offer him the benefits under section 105A. This causes the section to operate unfairly against the unrepresented accused based on his/her failure to secure legal representation. This continued operation of section 105A infringes on the rights of an accused by not affording this protection to the accused. This is in terms of a right to equality before the law, freedom from discrimination and what constitutes a justifiable limitation under section 36 of the Constitution. South Africa has ratified or acceded to international and regional treaties which require, inter alia that the right to equality before the law is respected. This requires a model framework to be put in place to ensure that unrepresented accused can benefit from section 105A. An evaluation of the viability of adding the unrepresented accused to the protection under section 105A is done. This is informed by experiences from other jurisdictions, which aid the need for reform.

Irrespective of its Western origin, the idea of human rights is widely acknowledged. Following the establishment of the United Nations, the movement of human rights has been dramatically extended from its local boundaries to a more global domain by means of international treaties, declarations, conferences etc by which a universal standard of human rights has been established. However, a sharp contrast has occurred between advocates of relativism of human rights and supporters of the universalism of human rights as a result of attempts to impose a single interpretation to human rights instruments that is the western liberal tradition. After the collapse of the communist regimes, the conflict about the universalism of human rights takes place between developed and less developed Countries, or between Islam, and the West. Therefore, this thesis explores the extent to which human rights jurisprudence can accommodate different cultures. The thesis concerns particular aspects of the subject of human rights. It compares rights provided for the accused person during trial in the judicial system in Saudi Arabia with those embodied in the European Convention on Human Rights. It examines in particular; the presumption of innocence, the principle of legality, legal assistance, an interpreter, adequatg time and facilities, a speedy trial, prompt information of the accusation, trial in the presence of the accused, the accused's right to defend himself in person, equality of arms, the calling and cross-examination of witnesses, the right not to be compelled to confess guilt, an independent and an impartial trial, an open court, a reasoned judgment, an appeal against conviction or punishment, double jeopardy, and compensation for miscarriage of justice. The thesis shows that (a) generally speaking, the judicial system in Saudi Arabia provides the accused during the trial stage with similar rights to those called upon by the European Convention although it sometimes uses different terminology. (b) Suggestions to readdress deficiencies in the Saudi judicial system can be adopted without violating Islamic law. (c) The Saudi judicial system in certain areas provides the same rights with a higher standard of application. (d) Due to the fact that it is based on the religion of Islam, the Saudi judicial system provides the accused with rights totally unknown to the European Convention.

On 30 October 2014 South Africa's Constitutional Court unanimously stated that the South African Police Service was obligated to investigate allegations of torture in Zimbabwe. This landmark decision, based on South Africa's international obligations and domestic legislation, is rooted in the Court's interpretation of universal jurisdiction and in particular its application of the presumption of the "anticipated presence" of the accused. The case, first heard in the North Gauteng High Court in 2012 before being taken on appeal to the Supreme Court of Appeal and Constitutional Court, concerned allegations of torture against ZANU-PF officials and Zimbabwean police during the run-up to elections in 2007. This final judgment imposes a binding obligation on the South African Police Service to investigate the allegations, prior to any decision on further prosecution. This dissertation begins by providing a background to South Africa's implementation of the Rome Statute domestically before focusing on the theoretical framework of universal jurisdiction. This is followed by an examination of the South African jurisprudence, in particular the judgment of the Constitutional Court in National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another. The Constitutional Court's decision to allow for the exercise of universal jurisdiction in absentia (otherwise known as "anticipated presence") must be located within the broader concept of jurisdiction. Anticipated presence is a controversial issue and this paper will explain both the Court's reasoning as well as possible implications of this judgment. The fight against impunity for perpetrators of international crimes, emphasised by both the Rome Statute and South Africa's own legislation, has been strengthened by this judgment. This paper will also examine the remaining areas of concern which were not addressed by the Constitutional Court. This Constitutional Court judgment will define the approach of South African courts in forthcoming cases concerning the application of the Rome Statute. Despite the Constitutional Court's failure to take all factors into account in its judgment, this landmark decision has changed the legal landscape considerably and will be a powerful tool to counter the culture of impunity.

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This study aims to analyse if whether there are and what are the legal limits of freedom of the press, one of the pillars of democracy, especially in relation to media coverage of criminal news. It will analyze which factors can mitigate this freedom of speech, especially their union with the government, a practice that could endanger the democratic regime itself and the influence that economic power has on the media, which are today very dependent on advertising revenues, whether private, whether public. Also the rights of the defendant, during and after the criminal prosecution, will be studied and how these can be restrictors of the press activities, which must be applied the balancing interests techinical to solve this conflict, according to the circumstances of the case. Finally it will be analyzed some trials which recognize the limitation of media freedom against the fundamental rights of the defendant.
Este estudo visa analisar se existem e quais seriam os limites jurídicos da liberdade de imprensa, um dos pilares do regime democrático, principalmente em relação à cobertura jornalística do noticiário criminal. Serão analisados quais fatores podem mitigar essa liberdade de imprensa, principalmente sua união com o poder público, prática que pode colocar em risco o próprio regime democrático e a influência que o Poder Econômico exerce sobre os meios de comunicação, que atualmente são extremamente dependentes das verbas publicitárias, sejam elas privadas, sejam elas estatais. Também serão estudados os direitos do acusado durante e depois da persecução penal e como estes podem ser limitadores da atuação da imprensa, devendo, de acordo com as circunstâncias do caso concreto, aplicar-se a técnica da ponderação de interesses para solucionar este conflito. Por fim serão analisados alguns julgados em que foi reconhecida a limitação da liberdade de imprensa face os direitos fundamentais dos noticiados.

Si le respect du droit à un procès équitable devrait occuper une place éminente au sein de toute société démocratique, cette exigence revêt un caractère axiomatique au sein d'une juridiction tournée vers la lutte contre l'impunité et la protection des droits de l'homme, telle que la Cour pénale internationale. Le peu de jugements rendus depuis plus de dix ans par la Cour permanente pourrait laisser penser qu'une telle étude est encore prématurée. Cette analyse met au contraire en exergue la densité de son activité et la singularité de ses procédures. Sacralisé par la Cour européenne des droits de l'homme, le droit à un procès équitable se décline en règles qui régissent non seulement les relations entre les parties mais aussi les rapports des individus avec la juridiction. Si la notion de droit à un procès équitable est familière des juristes, son interprétation pose un certain nombre de difficultés nouvelles. L'hybridité structurelle et normative de la Cour pénale internationale influencera nécessairement la réception que celle-ci réservera au principe, mais également l'interprétation unique qu'il conviendra de donner à ce droit fondamental. Prenant acte du caractère novateur de cette juridiction, cette thèse n'omettra pas d'envisager le droit à un procès équitable sous le prisme singulier de la victime, nouveau visage du procès. Souvent exclue du débat judiciaire relatif à l'équité des procédures, cette analyse s'attèle à replacer cet acteur au coeur des préoccupations régissant la conduite équitable du procès
While the right to a fair trial should be at the heart of any democratic society, this requirement has an axiomatic significance in a court dedicated to the fight against impunity and the protection of human rights, such as the International Criminal Court. In view of the few judgments rendered in over ten years of this permanent Court's existence, this study might seem somewhat premature.Rather, this analysis purports to shed light on the diverse nature of the Court's activities and the unique character of its procedures. Enshrined by the European Court of Human Rights, the right to a fair trial is expressed in the form of regulations that govern not only the relationships between the parties, but also the interaction of individuals with the Court. The concept of the right to a fair trial may be familiar to legal experts trained in different legal traditions. Still its interpretation is fraught with challenges that are new and specific to this permanent Court. The structural and normative hybridity of the ICC will inevitably influence not only the treatment of this concept, but also the unique interpretation that this fundamental right deserves. Against the backdrop of the innovative nature of this Court, it would be remiss of the author of this thesis not to consider the right to a fair trial through the unique prism of the victim, the new face in the trial. Often excluded from the judicial debate on the fairness of the proceedings, this analysis will nevertheless endeavour to place this stakeholder back in the heart of the concerns over the conduct of a fair trial

Magister Legum - LLM
The question to be addressed in this study is whether the government of South Africa is doing enough to protect the rights of the accused from torture. This study will seek to analyse South Africa’s constitution and its requirements to protect individual human rights, as well as South Africa’s current legislative framework including the Prevention and Combating of Torture of Persons Act.

It is a sacrosanct principle of the due process of law that the right of the accused to a fair trial should be observed. A condition precedent to that requirement is that he should be tried by an independent and impartial tribunal. Whilst the concepts of judicial independence and impartiality have been explored extensively in national jurisdictions, they have not been examined vis-à-vis the international arena. The increase in the number of international criminal tribunals corresponded with an increase in the size of the international judiciary. It is therefore vital that there remains in place, a body of uniformly applicable standards of international judicial independence and impartiality which would provide guidelines to international practice. The research undertaken raises interesting questions, such as the sources of these principles, the mechanism of their application in the national and international arenas, in particular to international criminal courts. It explores the relationships between the national and international standards and concludes that standards of independence and impartiality are applicable as of right to international criminal proceedings and validation through international human rights instruments, statutes and jurisprudence of the international criminal tribunals is not necessary. A comparative study has been made with national and international standards of fair trial, independence and impartiality. It is the premise of this thesis that the latter two concepts are necessary for the guarantee of the fair trial right. Jurisprudence of regional, national and international courts was explored to support this aim with particular attention focussed on the international criminal tribunal and the permanent international court. Finally, a conclusion is formed on the independence and impartiality of the international judiciary and the efficacy of the international criminal judicial system in ensuring that the right of the accused to receive a fair trial.

La première partie de l’étude est consacrée à l’invocation, intra et extra muros, du droit à un procès équitable. Sont analysés ainsi, dans un premier temps, l’applicabilité directe de l’article 6 et la subsidiarité de la Convention par rapport au droit national et de la Cour Européenne des Droits de l’Homme par rapport aux juridictions nationales. Le droit à un procès équitable étant un droit jurisprudentiel, l’étude se focalise, dans un second temps, sur l’invocabilité des arrêts de la Cour Européenne et plus précisément sur l’invocabilité directe de l’arrêt qui constate une violation du droit à un procès équitable dans une affaire mettant en cause l’Etat et l’invocabilité de l’interprétation conforme à l’arrêt qui interprète l’article 6 dans une affaire mettant en cause un Etat tiers. L’introduction dans l’ordre juridique français et hellénique de la possibilité de réexamen de la décision pénale définitive rendue en violation de la Convention a fait naitre un nouveau droit d’accès à la Cour de cassation lequel trouve son terrain de prédilection aux violations de l’article 6 et constitue peut-être le pas le plus important pour le respect du droit à un procès équitable après l’acceptation (par la France et la Grèce) du droit de recours individuel. Quant au faible fondement de l’autorité de la chose interprétée par la Cour Européenne, qui est d’ailleurs un concept d’origine communautaire, cela explique pourquoi un dialogue indirect entre la Cour Européenne et la Cour de cassation est possible sans pour autant changer en rien l’invocabilité de l’interprétation conforme et le fait que l’existence d’un précédent oblige la Cour de cassation à motiver l’interprétation divergente qu’elle a adoptée.La seconde partie de l’étude, qui est plus volumineuse, est consacrée aux garanties de bonne administration de la justice (article 6§1), à la présomption d’innocence (article 6§2), aux droits qui trouvent leur fondement conventionnel dans l’article 6§1 mais leur fondement logique dans la présomption d’innocence et aux droits de la défense (article 6§3). Sont ainsi analysés le droit à un tribunal indépendant, impartial et établi par la loi, le délai raisonnable, le principe de l’égalité des armes, le droit à une procédure contradictoire, le droit de la défense d’avoir la parole en dernier, la publicité de l’audience et du prononcé des jugements et arrêts, l’obligation de motivation des décisions, la présomption d’innocence, dans sa dimension procédurale et personnelle, le « droit au mensonge », le droit de l’accusé de se taire et de ne pas contribuer à son auto-incrimination, son droit d’être informé de la nature et de la cause de l’accusation et de la requalification envisagée des faits, son droit au temps et aux facilités nécessaires à la préparation de la défense, y compris notamment la confidentialité de ses communications avec son avocat et le droit d’accès au dossier, son droit de comparaître en personne au procès, le droit de la défense avec ou sans l’assistance d’un avocat, le droit de l’accusé d’être représenté en son absence par son avocat, le droit à l’assistance gratuite d’un avocat lorsque la situation économique de l’accusé ne permet pas le recours à l’assistance d’un avocat mais les intérêts de la justice l’exigent, le droit d’interroger ou faire interroger les témoins à charge et d’obtenir la convocation et l’interrogation des témoins à décharge dans les mêmes conditions que les témoins à charge et le droit à l’interprétation et à la traduction des pièces essentielles du dossier. L’analyse est basée sur la jurisprudence strasbourgeoise et centrée sur la position qu’adoptent la Cour de cassation française et l’Aréopage
The first party of the study is dedicated to the invocation of the right to a fair trial intra and extra muros and, on this basis, it focuses on the direct applicability of Article 6 and the subsidiarity of the Convention and of the European Court of Human Rights. Because of the fact that the right to a fair trial is a ‘‘judge-made law’’, the study also focuses on the invocability of the judgments of the European Court and more precisely on the direct invocability of the European Court’s judgment finding that there has been a violation of the Convention and on the request for an interpretation in accordance with the European Court’s decisions. The possibility of reviewing the criminal judgment made in violation of the Convention has generated a new right of access to the Court of cassation which particularly concerns the violations of the right to a fair trial and is probably the most important step for the respect of the right to a fair trial after enabling the right of individual petition. As for the weak conventional basis of the authority of res interpretata (“autorité de la chose interprétée”), this fact explains why an indirect dialogue between the ECHR and the Court of cassation is possible but doesn’t affect the applicant’s right to request an interpretation in accordance with the Court’s decisions and the duty of the Court of cassation to explain why it has decided to depart from the (non-binding) precedent.The second party of the study is bigger than the first one and is dedicated to the guarantees of the proper administration of justice (Article 6§1), the presumption of innocence (Article 6§2), the rights which find their conventional basis on the Article 6§1 but their logical explanation to the presumption of innocence and the rights of defence (Article 6§3). More precisely, the second party of the study is analyzing the right to an independent and impartial tribunal established by law, the right to a hearing within a reasonable time, the principle of equality of arms, the right to adversarial proceedings, the right of the defence to the last word, the right to a public hearing and a public pronouncement of the judgement, the judge’s duty to state the reasons for his decision, the presumption of innocence, in both its procedural and personal dimensions, the accused’s right to lie, his right to remain silent, his right against self-incrimination, his right to be informed of the nature and the cause of the accusation and the potential re-characterisation of the facts, his right to have adequate time and facilities for the preparation of the defence, including in particular the access to the case-file and the free and confidential communication with his lawyer, his right to appear in person at the trial, his right to defend either in person or through legal assistance, his right to be represented by his counsel, his right to free legal aid if he hasn’t sufficient means to pay for legal assistance but the interests of justice so require, his right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him and his right to the free assistance of an interpreter and to the translation of the key documents. The analysis is based on the decisions of the European Court of Human Rights and focuses on the position taken by the French and the Greek Court of Cassation (Areopagus) on each one of the above mentioned rights

Thesis (LLM. (Management and Development)) -- University of Limpopo, 2014
Every accused person has the right to a fair trial which encompasses the right to adduce and challenge evidence in court. Whilst the Constitution of the Republic of South Africa confers the right to legal representation, an accused person may still opt to conduct his or her own defence. Once an unrepresented accused opts to conduct his or her own defence, the presiding officer then becomes obliged to assist the undefended accused to present his or her own case. South Africa adheres to the accusatorial / adversarial system. Under the accusatorial / adversarial system the presiding judicial officer is in the role of a detached umpire, who should not descend the arena of the duel between the state and the defence for fear of becoming partial or of losing perspective as a result of the dust caused by the affray between the state and the defence. Under the accusatorial/adversarial system, a presiding officer may find it challenging to assist an unrepresented accused or may inadequately assist him or her. This may be so because a fair trial is not determined by ensuring exercise of one of the rights to a fair trial but all the rights to a fair trial. This mini-dissertation, on the injunction of section 35 of the Constitution of the Republic of South Africa which makes provision for the rights to a fair trial, covers the different rights of an unrepresented accused. This is done alongside related provisions of the Criminal Procedure Act 51 of 1977 and pertinent case law. The fat that an unrepresented accused has waived legal representation at the expense of the state and has opted to conduct his or her own defence should not be to his or her peril. The court has a constitutional injunction to protect and advance the rights of an unrepresented accused. Justice must not only be done but must also be seen to be done.

碩士
東吳大學
政治學系研究所
86
Through the study on Su Chien-ho case,the thesis discuss the protection of the rights of the accused in Taiwan and its predicament.After the introduction of Su Chien-ho case,I discuss the issue,from three points:the system of the law, the operation of judiciary and the social psychology.

The Constitution of the Republic of South Africa guarantees every person a fair trial; the right to a fair trial right trial must begin and conclude within a reasonable time and without undue delay. Internationally the same guarantees and protections are available to unconvicted suspects. However, the South African criminal justice system lacks behind internationally and falls short of promoting these guarantees. Investigation was done on delays in commencing and finalising trials in light of constitutional provisions, the consequence and the impact of the delay with discussion on prison conditions and overcrowding with reference to the Constitutiton, legislation and case law. Delayed trial, prison overcrowding and poor prison conditions are still an issue in South Africa and there needs to be positive change to enforce and practice prescribed directives. South Africa‟s justice system through its servants, need to do more to gain a higher status of having a constitutionally democratic country that fully promotes‟ rights of detainees.
Criminal & Procedural Law
LLM

碩士
國立臺灣海洋大學
海洋法律研究所
96
The purpose of this thesis is to make a comparative study on the general principles and the rights of the accused in the Rome Statute of International Criminal Court (ICC) and the criminal justice in the Republic of China on Taiwan. A detailed and critical analysis concerning the provisions of the guiding principles and basic rules both in the Rome Statute of International Criminal Court and the Taiwanese criminal justice is made；special emphasis is put on the study of the protections given to the accused in the above two criminal justice systems. The establishment of the International Criminal Court, of course, is a very important milestone and achievement in the development of international law. It also represents a realization of collective efforts by the international community to create both a legislative and an institutional mechanism for the prevention and punishment of serious international crimes such as genocide, war crimes and crimes against humanity. The International Criminal Court is also the internationalization of substantive and procedural criminal law rules prevailing in most countries. The recognition of the above is the major motivational factor for this thesis. There are 9 chapters in this thesis. The focusing points include the historical development of the ICC, the policy positions of the U.S. and China regarding the ICC, the prospect of Taiwan’s inclusion in the ICC mechanism, the jurisdiction of the ICC, the fundamental legal rules followed by the ICC and their comparison with those followed by the criminal justice in Taiwan, detailed and comparative analysis of the legal protections guaranteed for the accused in the ICC and Taiwanese criminal justice at the investigation, prosecution and trial stages. In its conclusion, this thesis is strongly of the opinion that the ICC is both necessary and of great assistance of the promotion of international peace and justice. Several suggestions resulting from the study are made: the expansion of the jurisdiction of ICC to include more serious international crimes, the abolition of the complementary principle regarding jurisdiction by the ICC, and the re-examination of the pre-trial system of the ICC.

The relationship between gender and bail is an important yet understudied area of research. Studies that have found a relationship between gender and bail generally overlook important differences that shape how men and women enter into crime and the types of conditions imposed on their recognisances. This study utilizes 115 bail cases from the Provincial Courthouse in Kitchener, ON to examine the effect of accused gender on bail outcome. Results show that accused gender did influence decisions to grant or deny bail. While almost all accused persons required a surety and/or bail conditions to be released, the regression analysis suggests that women were more likely to be released compared to men. Based on the deep sample exploratory analysis, gender differences emerged around issues of mental health and drug use. Theoretical and policy implications from this study are discussed as are avenues for future research.

The composite right to meaningful and informed participation in the criminal process comprises the right to information, the right to understand, the right to be prepared, the right to be present, the right to confrontation and the right to present one’s case. The sub-rights are not of an overarching nature such as the right to legal representation and the right of access to the law. The various rights are grouped together because they show some connection with the ability of the suspect or the accused to participate in the criminal proceedings as a legal subject, and not as an object of the proceedings as in primitive times. These rights ensure that the accused will not participate in the criminal process from an unfavourable position. The heading ‟meaningful and informed participation” is therefore a collective term for these rights. These sub-rights form part of the comprehensive right to a fair trial. The thesis examines aspects of the position of the accused in South Africa and in foreign jurisdictions such as the United States of America, Canada, New Zealand, Australia, Germany, the United Kingdom and Islamic systems. International instruments such as the European Convention for the Protection of Human Rights and decisions of the United Nations Human Rights Committee are also considered. The thesis first considers the historical perspective of the accused in primitive times when he was regarded as an object of the criminal proceedings, to the present time when he is regarded as a subject of the proceedings. The study on foreign jurisdictions reveals that for the most part, our law is in line with the law of other countries. The study also demonstrates that the various rights are not absolute. In exceptional circumstances, some diminution of the accused’s rights is necessary to protect the interests of society. Nevertheless, the courts should act cautiously and not allow the exceptions to overtake the rule. The judiciary should strive to find a better balance between the constitutional rights of the accused and the interests of society. To this end, the judicial system must be objective yet vigilant.
Criminal & Procedural Law
LL.D.

Právnická fakulta Univerzity Karlovy v Praze Katedra mezinárodního práva Mgr. Pavel Bureš Human Rights in International Criminal Procedure Praha 2011 2 Abstract The rapid development of International Criminal Law in the second half of 20th century and especially on its end is marked by a proliferation of international criminal judicial organs and thereby by a huge increase and development of procedural norms determining these organs' jurisdiction and functioning but also specifying procedural status of individuals - suspected and accused persons, victims. The submitted thesis focuses on one of the aspects of individuals procedural status, namely their procedural guarantees - human rights in international criminal procedure. The analyse of human rights in international criminal procedure (the proceedings before International Criminal Court) was done having been backed by statutory regulations of international military tribunals and ad hoc tribunal for Former Yugoslavia and Rwanda and their case-law. The hypothetical start point was to consider that procedural guarantees in the ICC procedure established by Rome Statute in 1998 are on a highest level and more detailed than these guarantees enshrined in ad hoc tribunals Statutes and even in international universal or regional human rights protecting...

碩士
銘傳大學
法律學系碩士班
97
To be brief, the mission of criminal proceedings can be mostly accounted for by natural justice and formal justice. In that the protection of due process is the basis of the formalization in national punishment. Besides, the requirement of due process including the equivalence of the parties concerned, the procedural fairness and the protection of right belonging to the accused, should all be founded on the principle of equal arms. Therefore, the execution of the due process is to secure the defendant’s right to seize all the right he should have associated with lawsuit by the help of lawyer. In this way, the defendant will be treated fairly in the lawsuit. We follow by the serious discussion in the development of the lawyer institution, the proceedings of embedded knowledge of the real right of defense to understand the cultivation of right to counsel. Further, the role of the counsel becomes more important as we are adopting the adversary system in improving type instead of the inquisitorial system in our national judicial system. Consequently, the accused should be provided with substantial help in not only court but also in the process of inspection or even in the interrogation by the police.

碩士
國防大學管理學院
法律學系
99
Due to judicial flaw and the trial delay problems waiting to be solved, on the May 19, 2010, the totally 14 article’s "Speedy Criminal Justice Act", which is a protection for criminal defendant’s speedy trial rights, was announced by the President. However, whether the law is able to be full practiced effectively is doubted. On comparative law, the U.S. government has great details on the speedy trial, which is worthy for studying and learning. In this article, first of all, I am exploring the Taiwan speedy trial legal system with the U.S. legal system as supplement to inspect if there are still some omissions in Taiwan law. Secondly, there is no way to know from previously mentioned provisions that if the military accused is also entitled the rights to a speedy trial, so it is especially valuable to research. Finally, I am integrating and reviewing the forward research for proposing some opinions as a conclusion.

碩士
中原大學
財經法律研究所
97
With respect to the operational procedure of process of criminal proceedings, the investigation proceedings are absolutely more important than the trial proceedings, the reason is that mostly the accused or suspect are not quite familiar with the law, and in the beginning of investigation proceedings they are inevitable to face the court prosecutors, police institutions who have sufficient law knowledge and practical experience; further, mostly the accused or suspect have no capability of evidence collection, particularly when they are constrained. Hence, considering the unequal conditions of both parties, and the protection of defense right, the right for assistance of counsel is to be offered. Besides, after the new version of criminal proceeding act entered into effect in September of 2003, the space of defense activity becomes larger than ever before, and the defense counsel gets to play a more important role. Even though there have been crucial change of the system aspect, it still lacks substantial corresponding-measures for the event, resulting in the arising of legal doubts frequently in practice. Through the analysis and review of relative problem, we attempt to ensure the right for assistance of counsel of the accused and suspect to larger extent; it is the motive and purpose of this essay. Our research methods include “Documentary review”, “Comparison and analysis”, “Comprehensive sorting”. Regarding the content of this article, the chapter 1 is for instructions, outlines of the rest chapters are as follows: In chapter 2, the essay at first discusses lawyer right deeply in terms of its constitutional position, as there are still many defective points in the defense system and practice with the criminal proceedings act. The modification and practice of criminal proceedings act may have standard norm to conform to only depending on the foundation of fundamental right. In chapter 3, we attempt to probe into the function of lawyer right and purpose difference by examining the investigation proceedings and trial proceedings respectively, to criticize and review those limits on lawyer right imposed by the criminal proceedings act currently. In chapter 4, the essay highlights a number of important sub rights of lawyer right, namely “right of counsel”, “right of presence”, “right of contact”, “right of inspection”, this chapter is divided into four sections for deeper analysis. With regard to the defects at present, it presents a couple of opinions and suggestions for modification of law with references from foreign systems and theories. Chapter 5 is for summary, which summarizes the key points mentioned in earlier chapters; next is to detail and integrate the proposals for law modification regarding the constitutional position of lawyer right and important sub rights as descriptions in chapter 3 and chapter 4, thereby clearly outstanding the research summary.

碩士
中央警察大學
刑事警察研究所
106
Constituional court make Interpretation NO.737 to ensure a criminal suspect can exercise the right of defense during the process of detention hearing at investigatory stage, and the authorities concerned shall amend the Criminal Procedure Code in one year from the issuance date of this Interpretation. According to this interpretation, Legislative Yuan amend the Criminal Procedure Code that refer to the type of protecting the right to access to the case-files at judgment stage that allowed attorney to examine the case file and exhibits and make copies or photographs thereof. But it increase the burden of investigation agency, and extend the period of a criminal suspect detained in the court. The purpose of allowing a criminal suspect to access to the case-files is protect the right of defense. It shouldn't be limited only to “reading evidence”. There must have to use more easier and more quick measure, and not using the same type in investigatory stage and in judgment stage. This study research the right to access to the case-files and compare other country’s legal system by literature discussion. We make the conclusion that re-amend and reconstruct the legal system which suit our country is needed. We have to decrease the judge’s work in investigatory stage, and ensure the right to control the case-files of the prosecutor. Therefore, we can both protect the right to access to the case-files of the defendant and truth discovering.

碩士
國立臺灣大學
法律學研究所
100
Detention is important for the purpose of prosecution, especially in the pretrial proceedings. On the other hand, it is the most serious infringement on the right if liberty. Therefore, habeas corpus proceedings must provide sufficient guarantees of the judicial procedure, including varied procedural rights. The case-law of the European Court of Human Rights says, “In the view of the dramatic impact of the deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should in principle also meet, to the largest extent possible under the circumstances of an on-going investigation, the basic requirements of a fair trial, such as the right to an adversarial procedure.” In order to ensure the principle of equality of arms and the requirement for an adversarial procedure, the accused in a pretrial detention must have opportunities to access the file and be assisted by a legal representation. In 2009, the German Code of Criminal Procedure was amended to provide mandatory defence for the accused, if remand detention is executed against him. Furthermore, it also regulates, if the accused is in remand detention or in the case of provisional arrest, information of relevance for the assessment of the lawfulness of such deprivation of liberty shall be made available to the defence counsel. In Taiwan, since the regulations of the Code of Criminal Procedure, the accused in pretrial detention does not have the right to having a defence counsel appointed by a judge or prosecutor. Moreover, a defence counsel does not have the right to access the case-files in pretrial proceedings, even if the accused is in remand detention. In conclusion of the thesis, to ensure the personal right of liberty, the mandatory defence shall be provided for the accused in the pretrial detention, and the defence counsel of the accused in pretrial detention shall have the right to access the case-files, which are relevant to the assessment of the lawfulness of deprivation of liberty.

碩士
銘傳大學
法律學系碩士班
97
By convention, chapter one of this thesis interprets the motif, scope, method and structure of research, so as to understand its substance and direction. The content of chapter two is, by discussing juristic theory of the accused’s right and observing the range of indemnification of other country’s’, to further confirm the range of people’s defending right, which ensured by our constitution. Chapter three. Through researching proper procedure of law and related regulations of other countries, the relationship between the accused’s rights, the defending right to the accused and the principle of proper procedure of law will be further understood. Chapter four regards the observation and analysis of international convention as well as other countries’ related regulations and precedents’ process of the accused’s right to the assistance of counsel. Chapter five further inquires the secured coverage of the accused’s right to the assistance of counsel; which is provided by the code of criminal procedure of our country; via the analysis of Lord Chancellor’s relevant interpretation as well as the study, from the past to present time, of our country’s system of the accused’s right to the assistance of counsel. Finally, chapter six reviews the five former chapters to compare with international convention and the prime of other countries’ system; to generalize the flaws of the accused’s right to the assistance of counsel that caused by the present law and regulations of our country; and to propose amendments.

Nemo tenetur se ipsum accusare principle Abstract The thesis deals with the nemo tenetur se ipsum accusare principle, which represents one of the fundamental procedural rights in criminal proceedings. The European Court of Human Rights considers it an inseparable part of the right to a just trial. Especially considering the problems arising in connection to interpretation and application of he said principle, the thesis tries to _ the most problematic areas of the principle's application and the different opinions as to what it entails. The first chapter contains the history of the principle's application, both on the European continent in civil law and in common law in both the United Kingdom and the United States. The second chapter summarizes the evolution of rulings of the European Court for Human Rights. Attention is paid to the relation between the nemo tenetur principle and the right to a fair trial contained in the Article 6 of the European Convention on Human Rights and also to the relation o other right contained in the same treaty, especially focusing on freedom from torture in order to obtain an evidence of a criminal act. The third chapter summarizes the Czech legislation on the topic, both on Constitutional level - especially focusing on those articles of the Charter of Fundamental Rights and...

Dissertação de Mestrado em Direito: Especialidade em Ciências Juridico-Forenses apresentada à Faculdade de Direito
Esta Dissertação tem por objectivo analisar, mediante pesquisa doutrinária, jurisprudencial e legislativa, o princípio do nemo tenetur se ipsum accusare. Temos presente que o Direito Penal é uma das maiores forças do Estado, sobre a liberdade individual e, por esta razão, a sua aplicação somente se justifica quando demonstrada a sua imperiosa necessidade. O Direito Processual Penal estrutura as regras para que esse exercício do Estado permita, de alguma maneira, que o sujeito confronte esse poder no curso do processo. Mas o processo só atende à sua finalidade quando se reveste de um procedimento justo e equitativo, de forma a garantir amplamente os direitos do indivíduo. No Processo Penal esse procedimento deve assegurar aos arguidos os princípios estruturantes do Direito Penal. Iniciaremos com uma breve explicação do princípio, analisando assim a sua legalidade no ordenamento jurídico português, e sempre que oportunamente referindo a doutrina e a jurisprudência internacional. Também fazemos referência aos princípios orientadores nesta matéria, assim como aos direitos fundamentais que possam estar em causa. Numa segunda parte, abordaremos a aplicabilidade, ou não, do princípio num caso concreto, o da administração de substâncias eméticas e demais procedimentos médicos realizados no contexto dos chamados “correios de droga”. Hoje em dia, deparamo-nos, em muitos casos, com a obrigatoriedade do arguido em ser instrumentalizado (o próprio ser meio de prova e/ou meio de obtenção de prova), com vista a um único fim - o da descoberta da verdade material, sem possibilidade de recusa, e é precisamente sobre esta ameaça aos seus direitos fundamentais que vamos analisar o princípio da proibição da auto-incriminação.
This Dissertation aims to analyze, through doctrine, jurisprudential and legislative research, the principle of nemo tenetur se ipsum accusare. We all have in mind that the Criminal Law is one of the major strengths of the State, about the individual liberty and, for this reason, its application is only justified when demonstrated its imperative need. The Criminal Process Law structures the rules so that that exercise of the Estate allows, in any way, that the individual confronts that power in the course of the process. But the process only attends to its aim when it covers with a fair and equitable procedure, in order to widely ensure the rights of the individual. In the Criminal Procedure that practice has to ensure to the accused the structural principles of the Criminal Law. We will begin with a brief explanation of this principle, analyzing its legality in the Portugal legal system, referring, always when appropriate, the international doctrine and jurisprudence. We also make reference to the guiding principles on this matter, as well as to the fundamental rights that might be at stake. In a second part, we will tackle the applicability, or not, of the principle in a concrete case, of the administration of emetic substances and further medical procedures realized in the context of the “drug dealers”. Nowadays, we encounter, in many cases, with the requirement of the defendant in being manipulated (itself being a mean of proof and/or a mean of obtaining proof) aiming a single goal – the discovering of the real truth, without the possibility of refusing, and its exactly about this threat to his fundamental rights that we will analyze the principle of the prohibition of self-incrimination.

The researcher identified in her work as a social worker that sexually abused adolescents experience difficulties with testifying in court. The goal of this research was directed at developing guidelines to assist adolescents who have to testify in court. The researcher utilised the qualitative research approach with an exploratory and descriptive nature. Semi-structured interviews were done with a sample of adolescents who have testified in court, a sample of parents or caregivers of adolescents who have testified in court and social workers working with adolescents who testify in court. These interviews were conducted to gain insight into how the research participants experienced the court process in order to formulate guidelines for adolescents who have to testify in court. The researcher concluded that adolescents experience testifying in court as negative. Guidelines were developed from the information obtained from the research participants to support adolescents who has to testify in court.
Social work
M.Diac. (Play therapy)