The Kosovo Specialist Chambers’ Rules of Procedure and Evidence: More of the Same Hybridity with Added Prosecutorial Transparency

2020 ◽  
Vol 20 (1) ◽  
pp. 77-124
Author(s):  
Michael G. Karnavas
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Burden Of Proof ◽  
Fair Trial ◽  
Lessons Learned ◽  
The Other ◽  
Lecture Series ◽  
Trial Judges ◽  
Rules Of Procedure

The Rules of Procedure and Evidence of the Kosovo Specialist Chambers incorporates procedural rules from Kosovo’s domestic legal system, innovative and useful modalities, procedural rules, practice directives, and lessons learned from the other international(ised) criminal tribunals. Based on a presentation given on 22 June 2018 at Leiden University’s Grotius Centre Supranational Criminal Law Lecture Series — The Kosovo Specialist Chambers: Comparative Legal Perspectives — this article provides a defence perspective on some of the modalities found in the Rules of Procedure and Evidence. In the author’s opinion, some of the provisions on disclosure provide greater protections of fair trial rights for suspects and accused during the confirmation and pre-trial stages than the rules of other international(ised) criminal tribunals, while also maintaining the schizophrenic features found in these international(ised) jurisdictions — placing the burden of proof on the prosecution while granting the trial judges discretionary authority to engage in truth-seeking activities.

Crime, Law and the Internet

2004 ◽  
Vol 26 (1) ◽  
Author(s):  
Eric Hilgendorf
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
The Other ◽  
The Internet ◽  
Other Hand ◽  
The World ◽  
At Will ◽  
Global Reach

AbstractAfter some introductory remarks on the German legal system and German legal politics, the main forms of datanet crime on the Internet are sketched. After that, one of the most important Internet-cases of the last decade, the CompuServe case, is discussed in some detail. One of the main problems of datanet crime is its global reach. The world-spanning nature of the cyberspace significantly enlarges the ability of offenders to commit crimes that will affect people in a variety of other countries. On the other hand, the jurisdiction of national criminal law cannot be expanded at will by any single nation. A transnational criminal law for the Internet is possible but should be restricted to the defence of universally (or nearly universally) accepted interests and values. In effect, it seems that the problems of computer-related crime on the Internet cannot be solved by criminal law alone.

Islamic Law and Legal Hybridity in Nigeria

2014 ◽  
Vol 58 (2) ◽  
pp. 303-327 ◽  
Author(s):  
Mamman Lawan
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Islamic Law ◽  
The Other ◽  
Colonial Administration ◽  
English System ◽  
Customary Laws ◽  
British Colonial

AbstractThe British colonial administration created a hybrid legal system in Nigeria where English, Islamic and customary laws apply. The English system, having a written constitution, was made dominant and the other laws apply to the extent permitted by it. However, Muslims in the northern part of the country have been making efforts to reverse this dominance, including the recent re-introduction of Islamic criminal law by 12 states. This effort is seen to be revolutionary, reverting the states to the position when Islamic law applied in full, devoid of colonial influence. This article asks whether this can break the legal hybridity and answers in the negative, arguing instead that the effort accentuates the hybridity. For example, the re-introduction of Islamic criminal law is enabled by the constitution, the constitution institutionalises the hybridity and the 12 states operate, and are bound by, the constitution. The article discusses other variables depicting the hybridity and concludes that it was a conscious colonial act, nearly impossible to break.

Conflicting Duties in Criminal Law

2019 ◽  
Vol 22 (1) ◽  
pp. 34-72
Author(s):  
Ivó Coca-Vila
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Critical Review ◽  
Point Of View ◽  
The Other ◽  
Legal Institution ◽  
Anglo American ◽  
Formal Point

Despite the great interest aroused among Anglo-American criminal law scholars by the justification of necessity, the conflict of duties as a separate defense sui generis has gone largely unnoticed until now. The aim of this paper is to fill the gap by providing a critical review of the concept and foundation for a conflict of duties as defense in the continental criminal law. Regarding the former, this legal institution is defined as a conflict between grounds of obligation that cannot be cumulatively fulfilled. Their deontic nature (prohibited or required) is thus irrelevant. With regard to the second issue, the argument is made that the solution of the collision involves a judgment set out to hierarchically arrange the colliding reasons from a formal point of view that is respectful with the principles of autonomy and solidarity. Therefore, the obligor must only fulfill the strongest ground of obligation—the only duty that can be legitimized in the particular situation—or, when before a conflict between equivalent grounds of obligation, they must comply with the disjunctive or alternative duty—aid one or the other—which the legal system imposes on them.

Writing Separately

2021 ◽  
pp. 215-262
Author(s):  
Theodor Meron
Keyword(s):  
Due Process ◽  
Hate Speech ◽  
Burden Of Proof ◽  
Fair Trial ◽  
The Other ◽  
Criminal Enterprise ◽  
Joint Criminal Enterprise ◽  
Chapter Deal ◽  
Principle Of Legality

This chapter presents the author’s dissenting and concurring opinions. Throughout his nearly two decades on the Bench, the author exercised restraint in writing dissenting or separate opinions. He wrote such opinions when he felt it worthwhile to explain his own positions on important judicial questions, particularly on aspects of fairness. The chapter studies some of these opinions. The decisions examined concern hate speech, persecution, the principle of legality, due process and acts or threats of violence. The other decisions covered in the chapter deal with the reversal of burden of proof, fair trial rights and liability via the doctrine of joint criminal enterprise (JCE).

scholarly journals Architects and Engineers in the Court Room

1986 ◽  
Vol 3 (2) ◽  
Author(s):  
Kenneth M. Elovitz
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Civil Law ◽  
The Other ◽  
True Nature ◽  
Other Hand

Any discussion of law should begin by identifying which segment of our multifaceted legal system is being addressed. There are many distinctions which can be drawn. The first distinction I want to make is between criminal law and civil law. Criminal law deals generally with violations of statutes and results in fines or imprisonment. Although many aspects of criminal law address the problem of harm inflicted by one person upon another, the true nature of crime is that it is an offense against the sovereign. It is the sovereign who characterizes the behavior or activity as anti-social and makes it punishable. Civil law, on the other hand, deals with conflicts between private parties. This discussion deals with civil law, and for our purposes, civil law can be divided into two large spheres

Domestic Incorporation of International Criminal Procedure

2015 ◽  
Vol 109 ◽  
pp. 273-275
Author(s):  
Nina H. B. Jørgensen
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
International Criminal ◽  
Criminal Procedure ◽  
The State ◽  
International Criminal Law ◽  
Individual Rights ◽  
Rules Of Procedure ◽  
The Individual ◽  
The Relationship

Rules of procedure define the relationship between the needs of effective enforcement of international criminal law—grounded in the interest of combating impunity—and the individual rights of those affected by the process. It has been said that criminal procedure is the “most vulnerable part of a liberal legal system.” It is vulnerable in part because it is adaptable. It can be adapted to promote fairness in the interactions between an individual and the state, or it can be manipulated to facilitate abuses by those in power. A fair system charts a course for the discovery of the truth but recognizes that this destination cannot be reached at all costs. For example, confessions obtained under torture are inadmissible under international rules of procedure and evidence.

MAIN SPECIFICATIONS OF ASSESSING ACTIVITIES OF MINOR IMPORTANCE OF IN MODERN CRIMINAL LAW

Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 83-95
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Case Law ◽  
Criminal Code ◽  
The Other ◽  
European Countries ◽  
Minor Importance ◽  
Detailed Review

The research includes the full and the detailed overview of assessing activities of minor importance in Georgian Criminal Law. The Article 7 of the Criminal Code of Georgia states the following: a crime shall not be an action that, although formally containing the signs of a crime, has not produced, for minor importance, the prejudice that would require criminal liability of its perpetrator, or has not created the risk of such harm. The research includes the main criteria of defining activities as activities of minor importance. The detailed review of Georgian case law is also introduced, as well as, legislation, judicial literature and experience of the other European countries.

Penal Law and Penal Police in the Dual Penal State

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
Criminal Law ◽  
Critical Analysis ◽  
The Other ◽  
Liberal Democratic ◽  
Democratic State ◽  
Alternative Approach ◽  
Penal State ◽  
Penal Law ◽  
Patriarchal Power ◽  
Modes Of Governance

The first part of Dual Penal State investigated various ways in which criminal law doctrine and scholarship (or “science”) have failed to address the challenge of legitimating penal power in a modern liberal democratic state. This, second, part explores an alternative approach to criminal law discourse that puts the legitimacy challenge of modern penal law front and center: critical analysis of criminal law in a dual penal state. Dual penal state analysis differentiates between penal law and penal police, two conceptions of penal power, and state power more generally, rooted in autonomy, equality, and interpersonal respect, on one hand, and in heteronomy, hierarchy, and patriarchal power, on the other. Chapter 4 applies the distinction between law and police as fundamental modes of governance set out in Chapter 3 to the penal realm and explores the tension between penal law and penal police as constituting the dual penal state.

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