Threading the Sovereign’s Needle

2021 ◽  
Vol 3 (4) ◽  
pp. 1-59
Author(s):  
Alexander G. Leventhal
Keyword(s):  
Criminal Law ◽  
Case Law ◽  
Criminal Proceedings

Abstract An investor-State tribunal enjoys significant authority once a dispute is referred to it. Among a tribunal’s unquestioned powers is the power to order interim relief—including with respect to the most sovereign of a State’s conduct: its enforcement of its criminal law. In exercising these powers, an investor-State tribunal goes beyond the role traditionally assigned to it—i.e. to award damages for prejudice caused by a treaty breach—and dictates sovereign conduct. While the applicable treaty, arbitral rules, or law of the seat may not offer specific instructions, arbitral tribunals deciding on such interim relief requests can rely on a significant body of case law. That case law reflects a coherent approach to a thorny question, even though outcomes may vary. This article will deconstruct that coherent approach—from the foundations of the tribunal’s authority to order interim relief in respect to pendant criminal proceedings, to the rights that such relief may protect, to the requirements for ordering such relief, as well the effect of such relief and its duration in addition to any recourse for non-compliance.

Legal challenges in bringing AI evidence to the criminal courtroom

2021 ◽  
pp. 203228442110570
Author(s):  
Katherine Quezada-Tavárez ◽  
Plixavra Vogiatzoglou ◽  
Sofie Royer
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Justice System ◽  
Case Law ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
Legal Challenges ◽  
Criminal Courtroom ◽  
European Criminal Law ◽  
Applications Of Ai

Artificial Intelligence (AI) is rapidly transforming the criminal justice system. One of the promising applications of AI in this field is the gathering and processing of evidence to investigate and prosecute crime. Despite its great potential, AI evidence also generates novel challenges to the requirements in the European criminal law landscape. This study aims to contribute to the burgeoning body of work on AI in criminal justice, elaborating upon an issue that has not received sufficient attention: the challenges triggered by AI evidence in criminal proceedings. The analysis is based on the norms and standards for evidence and fair trial, which are fleshed out in a large amount of European case law. Through the lens of AI evidence, this contribution aims to reflect on these issues and offer new perspectives, providing recommendations that would help address the identified concerns and ensure that the fair trial standards are effectively respected in the criminal courtroom.

Part III The Right to Justice, C Restrictions on Rules of Law Justified By Action to Combat Impunity, Principle 23 Restrictions on Prescription

2018 ◽  
Author(s):  
Pinzauti Giulia
Keyword(s):  
United Nations ◽  
Criminal Law ◽  
Case Law ◽  
Theoretical Framework ◽  
Historical Background ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Legal Norms ◽  
Domestic Legislation ◽  
The Right

Principle 23 deals with statutory limitations (prescription, in French) aimed at protecting defendants from stale claims that might be difficult to counter. Statutory limitations refer to legal norms that regulate the effects of the passage of time in domestic systems. In criminal law, they provide for a maximum timeframe, or prescription period, within which criminal proceedings can be instituted or sentences enforced. The passage of time makes the gathering of evidence more difficult and may also reduce the effectiveness of criminal prosecution. Significant delays in criminal action may thus impair the accused’s right to a fair trial. Furthermore, criminal proceedings tend to lose legitimacy as time passes. After providing a contextual and historical background on Principle 23, this chapter discusses its theoretical framework and how the statutory limitations have been applied in practice under multilateral treaties, domestic legislation and case-law. It also examines the practice of United Nations organs.

CONSIDERING SENTENCE FOR PREDICATE OFFENSE

2021 ◽  
pp. 111-122
Author(s):  
PREDRAG VULEVIĆ
Keyword(s):  
Real Time ◽  
Criminal Law ◽  
Case Law ◽  
Previous Measurement ◽  
Criminal Proceedings ◽  
Time Intervals ◽  
Criminal Offense ◽  
Whole Process ◽  
Criminal Offenses ◽  
Made In

The process of sentencing means individualization and customization types and extent of sentencing the crime and its perpetrator. In that way, the purpose of criminal law, which consists in the last defense of the society from crime, is best realized. The whole process of keeping the pre-trial and criminal proceedings has the ultimate goal of sentencing the defendant. Furthermore, the procedure of execution of the sentence is based on its previous measurement and adjustment of the personality of the convicted person. Hence, the case law abounds with examples in which an inadequately measured sentence has called into question the criminal procedure itself and the defensive function of criminal law in the society. The issue of sentencing in modern criminal law has been resolved in accordance with modern trends in the field of punishing perpetrators of criminal offenses. Therefore, we can distinguish between regular sentencing, which means that the perpetrator goes to court for one criminal offense. However, in court practice, it is not uncommon for the perpetrator to go to court due to multiple predicate offenses made in ideal or real time. In this case, special sentencing rules apply, which take into account the fact that several criminal offenses are tried at the same time. In criminal doctrine, there are several modalities of sentencing for predicate offenses. Their number varied in different time intervals. Our legislator has incorporated into its norms three ways of sentencing for predicate offenses. These are the systems: absorptions, asperations, and cumulations. In this paper, we will point out the advantages, disadvantages and applicability of each of these systems that sentencing predicate offenses.

scholarly journals Determination of the probationary period in application of article 75 of the CC of Ukraine

2021 ◽  
pp. 266-273
Author(s):  
A.I. Sosonsʹka
Keyword(s):  
Criminal Law ◽  
Case Law ◽  
Criminal Code ◽  
Criminal Court ◽  
Criminal Proceedings ◽  
Probationary Period

The article considers the concept, criminal-legal significance, the order of appointment and calculation of the probation period in the application of criminal law on release of a person from the sentence imposed on him by a conviction in accordance with Art. 75, 78 of the Criminal Code of Ukraine. The views of scholars on determining the beginning of the probationary period, which is appointed by the court in accordance with its discretion, on the basis of Part 3 of Article 75 of the Criminal Code of Ukraine in passing a court conviction and its duration. The issue of the possibility of agreeing on the probation period by the parties to the criminal proceedings when concluding a plea or conciliation agreement is covered separately and the practice of the Criminal Court of Cassation on this issue is presented. The article raises the issue of assigning to a person sentenced to probation a certain range of responsibilities provided for in Art. 76 of the Criminal Code of Ukraine. The case law on determining the duration of the probationary period in the activities of individual courts is studied and opinions on this issue are given. The procedure, grounds and procedure for supervision of persons released from serving a probation sentence on the basis of Art. 75 of the Criminal Code of Ukraine are covered. The powers of the authorized body for probation to prepare a petition to the court to release the convict from the sentence imposed on him in connection with the expiration of the probation period were analyzed. It is proposed to enshrine in law a specific period during which the authorized body would be obliged to submit such a submission to the court. It is proposed to regulate the basic requirements in the legislation when determining the duration of the probationary period.

scholarly journals Questões controversas sobre a aplicação da “Lei Maria da Penha" no âmbito do Direito Penal

2018 ◽  
Vol 1 (39) ◽  
Author(s):  
Frederico Gomes de Almeida Horta ◽  
Marina Ferreira de Melo Burrel ◽  
Matheus Pessoa de Faria
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Case Law ◽  
Minas Gerais ◽  
Controversial Issues ◽  
Criminal Proceedings ◽  
Protective Measures ◽  
The Rule Of Law

RESUMOO trabalho aponta e analisa questões controversas da Lei nº 11.340/2006, a partir do contexto no qual se consolidou. Por meio de pesquisas bibliográficas, análises doutrinárias e jurisprudenciais, pretende-se abordar os problemas percebidos na aplicação deste diploma no âmbito penal. Analisa-se, inclusive, um caso prático vivenciado na Divisão de Assistência Judiciária da Universidade Federal de Minas Gerais, demonstrando-se consequências da utilização de dispositivos da “Lei Maria da Penha” de maneira incoerente com a sistemática do processo penal constitucional do Estado Democrático de Direito. Esclarece o procedimento previsto na Lei e suas implicações penais e, a partir disso, questiona a imposição de restrições de liberdade ao suposto agressor no procedimento de medidas protetivas. Destaca, ainda, os problemas relacionados à prisão preventiva na Lei Maria da Penha, especialmente no que toca ao tempo de sua duração e à sua aplicabilidade em infrações puníveis com penas detenção ou mera prisão simples. Por fim, aborda a problemática da prisão preventiva com a finalidade de garantir o cumprimento de medidas protetivas.PALAVRAS-CHAVELei Maria da Penha. Direito Penal. Prisão Preventiva. Crime de desobediência. Contravenções Penais. Detenção. ABSTRACTThe paper points out and analyzes controversial issues of Act 11,340/2006, from the context of its consolidation. Through bibliographical research, doctrinal analysis and case law, it intendeds to address the problems perceived in the application of this Act in the criminal field. It also analyzes a lawsuit sponsored by the "Divisão de Assistência Judiciária" of the "Universidade Federal de Minas Gerais", demonstrating the consequences of the use of provisions of the "Maria da Penha Act" in a manner incoherent with the systematic of constitutional criminal proceedings created by the Rule of Law. It clarifies the procedure provided for in the Act and its criminal implications and, with this, questions the imposition of restrictions of freedom on the supposed aggressor in the procedure of protective measures. It also highlights the problems related to pre-trial detention in the Maria da Penha Law, especially with regard to the duration of the sentence and its applicability to offenses punishable by imprisonment or mere simple arrest. Finally, it addresses the problem of pre-trial detention in order to guarantee compliance with protective measures.KEYWORDS"Maria da Penha" Act. Criminal Law. Pre-trial detention. Contempt of court. Misdemeanor. Detention.

Umorzenie postępowania karnego na podstawie art. 59a k.k. – wybrane zagadnienia

2016 ◽  
Vol 14 (1) ◽  
pp. 91-108
Author(s):  
Jarosław Marciniak
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Criminal Proceedings

Discontinuation of proceedings under Article 59a of the Criminal Code is a new institution in Polish criminal law. This article discusses selected issues relating to the premises for the application of Article 59a of the Criminal Code in practice. In view of the use by the legislator in Article 59a of the Criminal Code of concepts with vague meanings, their possible interpretations were proposed. It has been suggested that a rephrasing of the provision in question should be considered, in order to ensure the possibility of applying the said institution to a wider range of misdemeanours, as compensatory discontinuation is intended by the legislator to fulfil the redress function of proceedings and ensure the effectiveness and speed of criminal proceedings

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.

scholarly journals TOWARDS MINIMUM PROCEDURAL GUARANTEES FOR THE DEFENCE IN CRIMINAL PROCEEDINGS IN THE EU

2011 ◽  
Vol 60 (4) ◽  
pp. 1017-1038 ◽  
Author(s):  
Laurens van Puyenbroeck ◽  
Gert Vermeulen
Keyword(s):  
European Union ◽  
Criminal Law ◽  
Criminal Policy ◽  
Fundamental Rights ◽  
The European Union ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
Democratic Rule ◽  
Constitutional System ◽  
The Eu

A critical observer would not deny that the practice of European Union (‘EU’) policy making in the field of criminal law in the past decade since the implementation of the Tampere Programme has been mainly repressive and prosecution-oriented.1 The idea of introducing a set of common (minimum) rules, guaranteeing the rights of defence at a EU-wide level, has not been accorded the same attention as the introduction of instruments aimed at improving the effectiveness of crime-fighting. What does this mean for the future of EU criminal policy? Will the EU succeed in the coming years in developing an area where freedom, security and justice are truly balanced? According to several authors, to date the EU has evolved in the opposite direction. As one observer put it:[I]f Procedural Criminal Law arises from the application of Constitutional Law, or indeed if it may be described as “a seismograph of the constitutional system of a State”, then as a consequence the Procedural Criminal Law of the European Union shows the extent of the Democratic Rule of Law, of the existence of a true “Rechtsstaat”, within an integrated Europe. This situation may be qualified as lamentable, as the main plank of the EU's criminal justice policy relates to the simplification and the speeding up of police and judicial cooperation—articles 30 and 31 of the Treaty of the EU—but without at the same time setting an acceptable standard for fundamental rights throughout a united Europe.2

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