Constitutionalization of Substantive Criminal Law: A Realistic View

1999 ◽  
Vol 33 (3) ◽  
pp. 720-728
Author(s):  
M. Kremnitzer
Keyword(s):  
Criminal Law ◽  
Judicial Review ◽  
Real Life ◽  
Case Law ◽  
Point Of View ◽  
Theoretical Point ◽  
Realistic View ◽  
Short Essay ◽  
The Guardian ◽  
Principle Of Legality

The purpose of this short essay is to examine how the constitution could contribute in the area of substantive criminal law. We should distinguish between two levels: the theoretical level and the realistic level. From a theoretical point of view, a lot could be expected from judicial review. The reason is the very broad gap between the principles of criminal law and the norms and real life of criminal law. Judicial review can function as a guardian — perhaps the guardian of the principles of criminal law.To exemplify the gap between criminal law in theory and criminal law in practice, it is sufficient to mention three issues: Criminal law in theory is an instrument of last resort, but the reality of criminal law is that it is often an instrument of first resort. Secondly, in theory, the most basic principle of criminal law is the principle of legality, of prior warning, but when we read the statutory provisions of criminal law we understand that the citizen is not the real addresee of these norms. When we read case law in criminal law, we find out that real interpretation in criminal law has very little to do with prior warning.

scholarly journals Sądowa kontrola decyzji organów podatkowych w sprawach ulg w spłacie zobowiązań podatkowych opartych na uznaniu administracyjnym

2021 ◽  
Vol 30 (4) ◽  
pp. 441
Author(s):  
Andrzej Niezgoda
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Case Law ◽  
Point Of View ◽  
Administrative Discretion ◽  
The Public ◽  
Procedural Law ◽  
Tax Relief ◽  
The Law ◽  
Administrative Courts

<p>The article is of a scientific-research nature. The author discusses the problem of limits of judicial review of discretionary decisions made by taxation authorities, which aim at applying relief in payments of tax liabilities under Polish regulations and case-law of administrative courts. It may be noted that despite the issue of administrative discretion being discussed in the academic literature, the question of limits of judicial review in the practice of administrative courts still raises doubts. It is therefore reasonable to undertake the analysis of the main views formulated in the literature and the case-law of administrative courts addressing this problem, from the point of view of the limits of judicial review of discretionary decisions. The thesis of the article is that the nature of discretionary decisions on relief in payment of tax liabilities, determined by the function of administrative discretion, and, at the same time, the criteria set out in the law for judicial review of public administration, limit the role of the administrative court in examining the compliance with procedural law of the tax proceedings preceding the issuance of such a decision and the respecting by tax authorities of the fundamental values of the system of law expressed in the Polish Constitution. This is because they define the limits of administrative discretion, within which the choice of one of the possible solutions remains beyond the judicial review of the public administration. For the law, as it stands (<em>de lege lata</em>) there are no grounds for administrative courts, provided that the tax authorities respect the basic values of the legal system expressed in the Polish Constitution, to formulate assessments as to the circumstances and reasons justifying the granting or refusal to grant a tax relief, or its scope. The concept of internal and external limits of administrative discretion may therefore be useful for administrative court rulings.</p>

Case Studies in Mobile Business

2009 ◽  
pp. 568-577
Author(s):  
Marco Garito
Keyword(s):  
Case Studies ◽  
Value Chain ◽  
Real Life ◽  
Point Of View ◽  
Theoretical Point ◽  
Mobile Environment ◽  
Mobile Business ◽  
Market Strategy ◽  
Business Applications ◽  
Market Situation

Th first part of this chapter deals with various mobile business applications and initiatives taken from real-life companies of which successfully implemented their go-to-market strategy in the wireless world. The structure of this chapter can be summarized into three main areas. At the beginning, the current market situation for mobile environment is described through highlighting how decreasing revenue is forcing companies to quickly innovate their offering to cope with highly intensive competition, justifying such an assumption with the flexible and open value chain. The second part is covering the Lateral Marketing approach in its main points under a theoretical point of view. Eventually, some examples of mobile applications and services are provided to reinforce the validity and need of Lateral Marketing to build reliable and durable growth.

UNDERSTANDING OF MEDICAL COERCIVE MEASURES IN CRIMINAL LAW

2019 ◽  
pp. 262
Author(s):  
Rudīte Timofejeva
Keyword(s):  
Mental Disorder ◽  
Criminal Law ◽  
Legal Framework ◽  
Point Of View ◽  
Theoretical Point ◽  
Criminal Offence ◽  
Coercive Measures

Medical coercive measures. The topic, which is actual in Latvia, has not been studied widely, because there are enough cases in the daily world where a person is not criminally prosecuted due to mental disorder or mental backwardness, i.e. not punished for committing a criminal offence, but is treated under appropriate conditions. The fundamental principles of psychiatric assistance in the application of coercive measures of a medical nature are legality, humanity, respect for the rights of man and citizen. Describe and investigate the nature, purpose, legal framework and existing forms of application of coercive measures of a medical nature in the sense of criminal law from a theoretical point of view.

scholarly journals Framing Real-Life Experimentations as Case Studies

2021 ◽  
pp. 25-35
Author(s):  
Stefano Crabu ◽  
Ilaria Mariani ◽  
Felicitas Schmittinger
Keyword(s):  
Case Studies ◽  
Real Life ◽  
Point Of View ◽  
Theoretical Point

AbstractThe chapter describes the case studies methodology on the ground of the volume: their use and comparison are investigated from a theoretical point of view. This chapter has a twofold aim: (i) contextualise case studies and the experimentation/prototyping conducted by the pilots, then (ii) to provide a compass for going through the next chapters in which it is detailed the experience of each pilot as a case study. This reasoning is a premise for understanding and situating the relevant points emerged in the larger picture of the RRI framework.

scholarly journals PRIVATE DEFENCE IN CONTEXT OF THE BATTERED WIFE WHO KILLS HER ABUSIVE HUSBAND/PARTNER Ann Elizabeth Steyn v The State (reported as S v Steyn 2010 1 SACR 411 (SCA))

Obiter ◽  
2021 ◽  
Vol 31 (2) ◽  
Author(s):  
Pieter Carstens
Keyword(s):  
Domestic Violence ◽  
Emotional Distress ◽  
Criminal Law ◽  
Case Law ◽  
The State ◽  
Point Of View ◽  
Reasonable Doubt ◽  
High Incidence ◽  
Abusive Partners ◽  
Self Defence

In South Africa where there is a high incidence of domestic violence, it is not surprising to find our reported criminal case law abound with many examples where battered spouses have killed their abusive partners. It is to be noted that all these accused were charged with, and more often than not, convicted of murder. In all these cases extreme provocation and emotional distress ultimately led to the homicide and caused the accused to invoke either non-pathological automatism (sane automatism) and/or nonpathologicalcriminal incapacity as defences. Consequently, it was argued on behalf of the accused that they either acted involuntarily or withoutcriminal capacity, or at the most with diminished criminal capacity at the time of the homicide due to provocation or emotional distress. In some instances, where a voluntary act and criminal capacity were proved, the provocation/emotional distress even had the effect that the state could not prove intention beyond reasonable doubt for a conviction on murder, but had to concede that only a conviction on culpable homicide was justified, as the accused acted negligently under the circumstances. The notion that a battered (provoked) wife/husband/partner who kills her/his abusive husband/wife/partner may or can invoke private defence (self-defence) has rarely been considered by our courts. Provocation or emotional distress, in principle, influences the voluntary act committed by the accused and/or the criminal capacity of the accused and may affect the element of intention, but seldom has any bearing on the element of unlawfulness. After all, private defence requires an unlawful, immediate or imminent human attack perpetrated upon the accused or another person. Since the disappointing decision in S v Eadie (2002 1 SACR 633 (SCA)), in which the defence of non-pathological criminal incapacity due to provocation was effectively abolished (battered wives now have to rely on sane automatism, which is difficult to prove), battered wives who now kill their abusive husbands/partners are “left in the lurch” as it were, specifically in view of systematic assaults/attacks perpetrated upon them by their abusive partners. From a legal point of view it seems as though a “reconfiguration” of the principles of criminal law in these instances is called for. The “reconfiguration” of the defence essentially relates to the material requirements for the unlawful human attack, as well as the requirements for the lawful fending off the attack, specifically in context of domestic violence. It is for this reason that the judgment under discussion is particularly instructive and to be noted. 

scholarly journals The Relationship between EU Law and Fundamental Principles of Estonian Substantive Criminal Law

2021 ◽  
Vol 30 ◽  
pp. 174-182
Author(s):  
Kaie Rosin
Keyword(s):  
European Union ◽  
Criminal Law ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Charter Of Fundamental Rights ◽  
Principle Of Legality ◽  
The Relationship ◽  
The Eu

Although the EU lacks explicit competence to harmonise national principles of criminal law, there are many ways in which EU law and national criminal law are interconnected on a level deeper than mere minimum standards adopted from directives. The article analyses these intersections between EU law and fundamental principles of Estonian substantive criminal law, explaining how the principles of criminal law recognised and interpreted in the case law of the Court of Justice of the EU and covered by the Charter of Fundamental Rights of the European Union exhibit the capacity to affect fundamental principles of Estonian substantive criminal law. The article focuses on five principles specific to substantive criminal law, which are derived from the fundamental principles of the Estonian Constitution and have equivalents in human-rights law: the principle of legality of criminal law, the principle of retroactive application of the more lenient criminal law, proportionality, ultima ratio, and the principle of individual guilt. The analysis demonstrates that the relationship between EU law and the various principles of substantive criminal law is not uniform because the principles of substantive criminal law are not developed evenly at European Union level.

Constitutional Judicial Review and International Obligations of Criminalization

2021 ◽  
pp. 1-19
Author(s):  
Beatrice I. Bonafè
Keyword(s):  
Criminal Law ◽  
Judicial Review ◽  
Case Law ◽  
Legal Order ◽  
Constitutional Court ◽  
International Obligations ◽  
Constitutional Constraints ◽  
Constitutional Judicial Review ◽  
Law Making

Abstract The main purpose of this article is to investigate the role that international obligations of criminalization do play and could play in the judicial review carried out by the Italian Constitutional Court. It is divided into three main parts. The Court’s case law is examined first, a general and theoretical appraisal of the Court’s approach follows, and further implications of that approach are taken into account at the end. The author maintains that the Court is quite deferential to international obligations and, despite the significant constitutional constraints surrounding criminal law-making, it seems prepared to let criminalization obligations have various legal effects in the Italian national legal order.

scholarly journals Component Elements of a Crime as an Ontological Reality of Unknown Existence

Lex Russica ◽  
2020 ◽  
pp. 131-144
Author(s):  
V. V. Khilyuta
Keyword(s):  
Social Relations ◽  
Criminal Law ◽  
Criminal Liability ◽  
Real Life ◽  
Modern Science ◽  
Point Of View ◽  
Methodological Problems ◽  
Ontological Reality ◽  
Legal Concepts ◽  
Regulatory Model

The paper deals with methodological problems of understanding the component elements of a crime in the doctrine and modern science of criminal law. The author analyzes the philosophical approaches to determining the essence of this phenomenon, the influence of the classical school of criminal law on the formation of such concepts as "crime" and "component elements of a crime", reveals the prerequisites and reasons for the multilevel understanding of the component elements of a crime in pre-revolutionary and Soviet criminal law. The ratio between the crime and the component elements of a crime is revealed (based on the features of these legal concepts) and questions are raised about the non-identical understanding of the same phenomena in criminal law. The author states that the component elements of a crime cannot be identified with the concept of "crime" and is the basis for criminal liability. The component elements are always a legislative (regulatory) model, not a reality. The reality is only a committed crime, which entails the emergence of the relevant legal relations. In conflict social relations characterized by the commission of an illegal criminal act, the crime itself exists, but not the component elements of this crime. The author suggests that the component elements should be distinguished within the scope of the crime’s illegality, rather than the crime as a whole. From this point of view, it is proved that the disposition of the criminal law norm determines the model of a specific illegal act and its features (objective and subjective), since in real life the composition is associated with those features that are described in the disposition of the legal norm. The disposition does not replace the component elements, on the contrary, the component elements of illegality are revealed in the disposition of the criminal law norm. Research methods used in the course of the study are as follows: formal dogmatic, historical legal, comparative legal.

Forty Years of Criminal Law — Further Comments

1990 ◽  
Vol 24 (3-4) ◽  
pp. 580-591
Author(s):  
Mordechai Kremnitzer
Keyword(s):  
Criminal Law ◽  
Future Development ◽  
Case Law ◽  
Historical Interpretation ◽  
English Law ◽  
The Law ◽  
Principle Of Legality ◽  
Further Development

In the following lines, I shall attempt to expand somewhat the scope of the survey, as a supplement to Dr. Miriam Gur-Arye's excellent paper on the requirement of fault. In addition, I will refer to the principle of legality, and to legislation in the field of criminal law. I shall also indicate what I regard as the proper directions for future development, as well as point out novel and disturbing trends in the application and implementation of the law.Although Agranat J. had the courage to advance Israeli law beyond English law, by recognizing irresistible impulse in the wake of developments in the field of psychiatry and by a non-historical interpretation of the law, contemporary Israeli case law has refrained from taking another step forward in the light of further development in that science.

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