The Notion of Criminal Penalty and the Lex Mitior Principle in the Scoppola v. Italy Case

2011 ◽  
Vol 80 (2) ◽  
pp. 125-142 ◽  
Author(s):  
Trine Baumbach
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Offence ◽  
Criminal Penalty ◽  
European Court

AbstractIn a ruling of 17 September 2009 the European Court of Human Rights has reinterpreted Article 7 of the European Convention on Human Rights (ECHR). The two most important issues in the Court's judgment are whether a provision of a Code of Criminal Procedure may be categorised as a “penalty” in the sense of Article 7, and whether Article 7 guarantees the lex mitior principle (providing for the applicability of the more lenient law). Focus is particularly placed on the outcome and implications of the Court's reinterpretation of Article 7 ECHR to include the lex mitior principle. Arguably, in the case of Scoppola v. Italy, the Court recognised both parts of the principle (the constitution of the criminal off ence and the imposition of the penalty). This article argues that the lex mitior principle should not have been included in the Convention by interpretation. Furthermore, it demonstrates that reinterpretation of the part of the principle concerning the constitution of the criminal offence is inconsiderate and may lead to inappropriate results.

scholarly journals NE BIS IN IDEM PRINCIPLE IN THE CRIMINAL LEGISLATION OF BOSNIA AND HERZEGOVINA AND COURTS’ JURISPRUDENCE

2019 ◽  
Vol 34 (5) ◽  
pp. 1439-1444
Author(s):  
Miodrag N. Simović ◽  
Marina M. Simović ◽  
Vladimir M. Simović
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Offence ◽  
Ne Bis In Idem ◽  
International Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

The paper is dedicated to ne bis in idem principle, which is a fundamental human right safeguarded by Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. This principle is sometimes also referred to as double jeopardy.The principle implies that no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which s/he has already been finally convicted or acquitted (internal ne bis in idem principle), and that in some other State or before the International Court (ne bis in idem principle in respect of the relations between the states or the State and the International Court) the procedure may not be conducted if the person has already been sentenced or acquitted. The identity of the indictable act (idem), the other component of this principle, is more complex and more difficult to be determined than the first one (ne bis).The objective of this principle is to secure the legal certainty of citizens who must be liberated of uncertainty or fear that they would be tried again for the same criminal offence that has already been decided by a final and binding decision. This principle is specific for the accusative and modern system of criminal procedure but not for the investigative criminal procedure, where the possibility for the bindingly finalised criminal procedure to be repeated on the basis of same evidence and regarding the same criminal issue existed. In its legal nature, a circumstance that the proceedings are pending on the same criminal offence against the same accused, represents a negative procedural presumption and, therefore, an obstacle for the further course of proceedings, i.e. it represents the procedural obstacle which prevents an initiation of new criminal procedure for the same criminal case in which the final and binding condemning or acquitting judgement has been passed (exceptio rei iudicatae).The right not to be liable to be tried or punished again for an offence for which s/he has already been finally convicted or acquitted is provided for, primarily, by the International Documents (Article 14, paragraph 7 of the International Covenant on Civil and Political Rights and Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms). The International framework has also been given to ne bis in idem principle through three Conventions adopted by the Council of Europe and those are the European Convention on Extradition and Additional Protocols thereto, the European Convention on the Transfer of Proceedings in Criminal Matters, and the European Convention on the International Validity of Criminal Judgments.Ne bis in idem principle is traditionally associated with the right to a fair trial under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Likewise, no derogation from Article 4 of Protocol No. 7 shall be made under Article 15 of the Convention at the time of war or other state of emergency which is threatening the survival of the nation (Article 4, paragraph 3 of Protocol No. 7). Thereby it is categorised as the irrevocable conventional right together with the right to life, prohibition of torture, prohibition of slavery, and the legality principle. Similarly, ne bis in idem principle does not apply in the case of the renewed trials by the International criminal courts where the first trial was conducted in some State, while the principle is applicable in the reversed situation. The International Criminal Tribunal for Former Yugoslavia could have conducted a trial even if a person had already been adjudicated in some State, in the cases provided for by its Statute and in the interest of justice.

The Oxford Handbook of Criminal Process

2019 ◽  
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Law ◽  
Criminal Procedure ◽  
Plea Bargaining ◽  
European Convention ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
European Court

This handbook examines various aspects of the criminal process, including the role of prosecutors in common law and civil law jurisdictions, the rights and duties of experts, victim rights in civil law jurisdictions, surveillance and investigation, criminal prosecution and its alternatives, evidence discovery and disclosure in common law systems, evidence law as forensic science, common law plea bargaining, appeals and post-conviction review, and procedure in international tribunals. The book is organized into eight parts covering topics ranging from criminal process in the dual penal state to interrogation law and practice in common law jurisdictions, empirical and comparative approaches to criminal procedure, prosecution-led investigations and measures of procedural coercion in the field of corruption, international corporate prosecutions, special procedures for white-collar and corporate wrongdoing in Europe, and trial procedure in response to terrorism. Also discussed are the roles of the European Convention on Human Rights and the European Court of Human Rights as guardians of fair criminal proceedings in Europe, double jeopardy or ne bis in idem in common law and civil law jurisdictions, plea bargaining vs. abbreviated trial procedures, restorative justice as an alternative to penal sanctions, and the pluralistic nature of international criminal procedure.

scholarly journals Conventional and constitutional regulations of lawful detention of a person without a court decision: criminal procedure aspect

2021 ◽  
pp. 16-25
Author(s):  
Аndrew Medvid
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decision ◽  
European Convention ◽  
Human Right ◽  
Procedure Code ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Article 5

The article compares the requirements for the lawful application of detention without a court decision as a criminal procedure established in Article 5 § 1 (c) of the Convention for the Protection of Human Rights and Fundamental Freedoms and in the second sentence of Article 29 part 3 of the Constitution of Ukraine. In particular, the content of the concept of "detention" of a person is studied, the list of subjects who have the right to detain a person without a court decision and the legal content and list of legitimate grounds for detention of a person without a court decision as a criminal procedure are studied and compared. Conventional, constitutional and criminal-procedural norms are also studied, as well as the necessity of mandatory further judicial review of the legality of the detention of a person, including the terms of such review. Based on a detailed analysis of these provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, the Constitution of Ukraine, relevant decisions of the European Court of Human Rights and the Criminal Procedure Code of Ukraine, it is established that the grounds for the detention of a person by a general entity, defined by paragraph 2 of Article 207 of the Criminal Procedure Code of Ukraine, and a special entity, defined by subparagraphs 1 and 2 (except subparagraph 3) of paragraph 1 of Article 208 of the Criminal Procedure Code of Ukraine, in general, correspond to the grounds for lawful detention of a person enshrined in Article 5 § 1 (c) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, it cannot be qualified as unlawful interference with the human right to liberty and security of person. At the same time, proposals are formulated to make changes and additions to subparagraph 3 of paragraph 1 of Article 208 of the Criminal Procedure Code of Ukraine. It is also proved that the provisions of paragraph 2 of Article 12 and Articles 209 and 211 of the Criminal Procedure Code of Ukraine are critical provisions of the current legislation of Ukraine regarding the lawful application of detention of a person without a court decision. These provisions actually eliminate some shortcomings and establish the necessary legal and procedural grounds for the clarified application of the provision of the second sentence of part 3 of Article 29 of the Constitution of Ukraine, in accordance with the provisions of paragraph 3 of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the practice of their application developed by the European Court of Human Rights.

The Right to Fair Preliminary Investigation and Trial for Vulnerable Defendants

2018 ◽  
Author(s):  
PHPHMC van Kempen
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Proceedings ◽  
European Court ◽  
Criminal Procedure Law ◽  
Eu Directives ◽  
The Right

Mainly as a result of the nature of criminal procedure in the Netherlands, which until recently could be characterized as a modern moderate inquisitorial system, the fitness-to- plead principle has been rather underdeveloped here. This chapter analyses how the European Convention on Human Rights, EU Directives, and the increase of adversarial elements in an originally inquisitorial criminal justice system are now catalysing the fitness-to-plead principle. Fourteen recommendations will be provided for what is considered a necessary reinforcement of the legal position of defendants who possess insufficient abilities to adequately participate during criminal proceedings—both preliminary investigation and trial—or who are even unfit to stand trial. The recommendations are based on a detailed analyses of criminal procedure law of the Netherlands, case law of the European Court of Human Rights, and several EU Directives that are relevant for the fitness to plead principle..

THE ANALYSIS OF THE RECENT STANDARDS OF APPLYING COMPULSORY MEASURES ACCORDING TO THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS (The Analysis of the Criminal Procedure Code of Georgia and its Compliance with the Case Law of the European Court of Human Rights)

Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 141-162
Keyword(s):  
Human Rights ◽  
Present Article ◽  
Criminal Procedure ◽  
Case Law ◽  
Recent Case ◽  
European Convention ◽  
Procedure Code ◽  
European Court ◽  
Article 5

The present article – “The Analysis of the Recent Standards of Applying Compulsory Measures according to the Case Law of the European Court of Human Rights (The Analysis of the Criminal Procedure Code of Georgia and its Compliance with the Case Law of the European Court of Human Rights)” – discusses the recent case-law of the European Court of Human Rights on Article 5 of the European Convention together with the compliance of the Criminal Procedure Code of Georgia in terms of applying compulsory measures.

scholarly journals REASONABLE TIME OF CRIMINAL PROCEEDINGS: CRIMINALISTIC CHARACTER

2020 ◽  
Vol 6 (4) ◽  
pp. 101-111
Author(s):  
K. A. Korsakov ◽  
V. V. Konin ◽  
E. V. Sidorenko
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right

In the Russian legal system, the understanding that justice should be not only timely, but also fast enough has matured for a long time. The delay in the investigation of a criminal case and its consideration by the court allows the guilty to avoid the deserved punishment in some cases, which calls into question the principle of inevitability of punishment on the one hand, and hinders the right to access justice, on the other hand. The term reasonable time for legal proceedings has emerged as a requirement of international law to be tried without undue delay. The right to a reasonable period of criminal proceedings is regulated by Article 6.1 of the Code of Criminal Procedure of the Russian Federation, but this norm is not fully implemented to date, as evidenced by the decisions of the European court of human rights issued on complaints of violation by the Russian Federation of the provisions of the European Convention for the protection of human rights and fundamental freedoms. At the same time, the available research considers the requirement of reasonable terms in criminal proceedings from the standpoint of criminal procedure law, which is not fully justified. The article attempts to consider the problematic issues of reasonable terms of criminal proceedings from the perspective of criminology, as a science that has incorporated theoretical and practical issues of fighting crime, as well as the problems of criminalistic criteria in criminal proceedings.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

Introductory Note

2018 ◽  
Author(s):  
Guido Raimondi
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Freedom Of Expression ◽  
European Convention ◽  
European Court ◽  
European Public ◽  
Introductory Note ◽  
Un Security Council ◽  
The Right ◽  
The Eu

This article comments on four important judgments given by the European Court of Human Rights in 2016. Al-Dulimi v. Switzerland addresses the issue of how, in the context of sanctions regimes created by the UN Security Council, European states should reconcile their obligations under the UN Charter with their obligations under the European Convention on Human Rights to respect the fundamentals of European public order. Baka v. Hungary concerns the separation of powers and judicial independence, in particular the need for procedural safeguards to protect judges against unjustified removal from office and to protect their legitimate exercise of freedom of expression. Magyar Helsinki Bizottság v. Hungary is a judgment on the interpretation of the Convention, featuring a review of the “living instrument” approach. Avotiņš v. Latvia addresses the principle of mutual trust within the EU legal order and the right to a fair trial under Article 6 of the Convention.

Council of Europe

2018 ◽  
Author(s):  
Oliver Lewis
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Social Rights ◽  
Council Of Europe ◽  
Persons With Disabilities ◽  
European Committee ◽  
European Court ◽  
Human Rights Treaties ◽  
Fundamental Freedoms ◽  
Two Bodies

This chapter presents an overview of the adjudicative bodies of the Council of Europe—namely, the European Court of Human Rights (established by the European Convention on Human Rights and Fundamental Freedoms (ECHR)) and the European Committee of Social Rights—and outlines their mandates with regard to integrating UN human rights treaties. It analyses how these two bodies have cited the Convention on the Rights of Persons with Disabilities (CRPD). The dataset was forty-five cases dealt with by the Court and two collective complaints decided by the Committee that cite the CRPD up to 2016. Notwithstanding the relatively small size of the dataset, the conclusions are that the Council of Europe system has yet to engage seriously in the CRPD’s jurisprudential opportunities. The reasons for this cannot be ascertained from a desk-based methodology, and further research is required.

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