Citizenship V. Territory: Explaining the Scope of the Criminal Law

2010 ◽  
Vol 13 (2) ◽  
pp. 427-448
Author(s):  
Alejandro Chehtman
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Fair Trial ◽  
The State ◽  
Universal Jurisdiction ◽  
Collective Interest ◽  
International Crimes ◽  
The Right ◽  
Meaningful Role ◽  
Antony Duff

Antony Duff and his coauthors have influentially argued that citizenship plays a central role in accounting both for the way in which the state makes individuals criminally responsible for certain wrongs and for calling them to answer for their wrongs. This paper takes issue with this citizenship-based understanding of the scope of the criminal law. It argues that Duff's model of civic criminal liability faces difficulties in explaining states' right to punish foreigners for crimes committed on their territory, and sits very uncomfortably with states claiming universal jurisdiction over international crimes. In contrast, it advocates a territorial conception of the criminal law. It suggests that to account for the allocation and scope of the right to punish, we need to look at the (collective) interest of those individuals who actually are in the territory of a particular state, not merely its citizens. Finally, it examines whether the notion of citizenship plays any meaningful role in a convincing account of the authority of the state to try an offender. Contra Duff and others, it argues that this authority rests exclusively on defendants receiving a fair trial and a verdict based on reliable evidence.

Monetary Compensation as a Remedy for Fair Trial Violations under International Criminal Law

2015 ◽  
Vol 18 (1) ◽  
pp. 71-99 ◽  
Author(s):  
Yahli Shereshevsky
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Fair Trial ◽  
International Criminal Law ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
International Crimes ◽  
Monetary Compensation ◽  
Effective Remedy ◽  
The Right

When international criminal courts face violations of the right to a fair trial, they encounter a dilemma: if they provide a significant remedy, such as a stay of proceedings, the remedy inevitably undermines the ability to punish the perpetrators of international crimes; on the other hand, if they grant a minimal remedy or no remedy at all, the right to a fair trial is undermined. This dilemma has led to the adoption of an interest-balancing approach to remedies. Under this approach, sentence reduction plays a prominent role in remedying fair trial violations that do not undermine the court’s ability to accurately determine the accused’s guilt. This Article argues that sentence reduction is an inadequate remedy, since it inevitably either harms the goals of international criminal sentencing or does not provide an effective remedy for violations of the right to a fair trial. Instead, monetary compensation should be the remedy for such violations. By granting monetary compensation, the court creates a separation between the punishment and the remedy and thus can usually provide an effective remedy for the accused without harming the main goals of international criminal justice.

scholarly journals Dutch Criminal Justice for Ethiopian War Crimes

2019 ◽  
Vol 17 (3) ◽  
pp. 633-659
Author(s):  
Lachezar Yanev
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
War Crimes ◽  
Universal Jurisdiction ◽  
International Criminal Law ◽  
Legislation And Jurisprudence ◽  
Legal Standards ◽  
International Crimes ◽  
The Hague ◽  
Principle Of Legality

Abstract The past few years have witnessed a proliferation of universal jurisdiction proceedings in Europe, many of which concern asylum seekers suspected of committing international crimes in Syria and the wider region. Alongside the known practical challenges of such trials, these trials also raise a range of normative questions regarding inter alia the scope of universal jurisdiction and the applicable legal standards in such proceedings. This article unpacks several such questions through the lens of a recent Dutch case in which a former refugee, who was granted asylum in The Netherlands and later obtained Dutch citizenship, was tried and convicted by a local court in The Hague of war crimes committed in Ethiopia four decades ago. The judges used an amalgam of Dutch and (customary) international criminal law to convict the accused. They defined the charged war crimes in strict conformity with the standards established in international legislation and jurisprudence, relied exclusively on Dutch law to define one of the applied modes of criminal liability (co-perpetration), and synthesized Dutch and international law to define the other (command responsibility). To what extent does the notion of universal jurisdiction accommodate such choices of law, and how is the use of domestic criminal law on modes of liability in such proceedings compatible with the principle of legality?

scholarly journals On the historical experience of preserving the territorial integrity of the state by criminal law means

2020 ◽  
Vol 14 (3) ◽  
pp. 309-314
Author(s):  
A.V. Naumov ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
The State ◽  
Self Determination ◽  
Historical Experience ◽  
Territorial Integrity ◽  
Russian State ◽  
History Of ◽  
The Baltic ◽  
The Right

The article examines the historical experience of preserving the territorial integrity of the state through the adoption of criminal laws. This is done using the example of two such attempts in the history of the Russian state (by the Provisional Government after the February Revolution of 1917 and during Gorbachev’s perestroika in connection with the decision of the union republics of the Baltic states to gain state independence). In both cases legislators passed strict criminal laws, which, however, proved unable to prevent violation of the territorial integrity of the state. For example, under the Provisional Government criminal liability was increased for violent encroachments on changing the existing state system in Russia or “to tear away any part of it from Russia” (the perpetrators were even subjected to life or urgent hard labor). The second experience, also unsuccessful, dates back to the spring of 1990, when the Baltic republics (Lithuania, Latvia and Estonia) declared their state independence. The extraordinary Third Congress of People’s Deputies of the USSR immediately reacted to this, recognizing these decisions as invalid as contrary to the Constitution of the USSR. The all-Union power, recorded in the decisions of the congresses of people’s deputies, almost openly announced to the republics that their withdrawal from the USSR was impossible and they had nothing to hope for in this sense. So, in an interview for Soviet and French television in November 1990, the President of the USSR, recognizing that the Constitution of the USSR provides for the right to self-determination up to the secession of a republic and referring to the existence of a special mechanism for this exit, at the same time said that he had come to the conclusion, the country cannot be divided. The outcome of this legislative “fight” is known and dates back to December 1991. What should a legislator learn from these historical lessons? Most importantly: he must firmly grasp that there are certain limits to the possibilities of criminal law to achieve political and socio-economic goals.

scholarly journals Constitutional Framework of Criminal Liability for Abuse of Rights and Freedoms

2021 ◽  
pp. 133-152
Author(s):  
O. S. Guzeeva ◽  
Keyword(s):  
Criminal Law ◽  
System Analysis ◽  
Criminal Liability ◽  
The State ◽  
Government Officials ◽  
Dialectical Logic ◽  
Legal Policy ◽  
Legal Norms ◽  
Legal Method ◽  
The Right

Introduction: the prerequisite for socially dangerous acts to be criminalized is their illegality; one of the forms of such acts is abuse of rights, when the behavior of the subject causing harm to the rights and interests of other persons has an external form of exercising his/her right. Criminal liability for abuse of rights has specific features that significantly distinguish it from other criminalization processes. Purpose: to analyze the theoretical foundations for constructing the grounds of criminal liability for abuse of rights, with the analysis being performed through the prism of criminal law and constitutional provisions. Methods: system analysis, formal and dialectical logic, modeling, method of interpretation of legal norms, method of constitutional examination, comparative legal method. Results: abuse of rights covers both situations of using rights to the detriment and those where the person goes beyond the limits of the right granted to him/her. It is necessary to distinguish between two types of abuse of rights. 1) Abuse of rights by government officials. In criminal law, it generates two problem situations: a) an assessment of the actions of civil servants who consistently implement such a policy of the state that is not legal by its nature and is aimed at depriving citizens of their rights and freedoms or restricting those; b) an assessment of the actions of government officials who abuse their official powers in conditions when such actions contradict the legal policy of the state. 2) Abuse of rights by individuals. In criminal legal assessment of this behavior, one should distinguish: a) abuse of a right as a method of crime and b) abuse of a right as the content of behavior. Conclusions: no abuse of rights can entail criminal liability if it is not associated with the infliction or a real threat of infliction of substantial harm to the rights of citizens. It is essential to optimize the system of liability for abuse of rights and particularly to solve the problem of responsibility of officials implementing non-legal policy of the state and also responsibility of private individuals for abuse of rights in cooperation with government agencies.

Reflections on the existence of the science of criminal law

2021 ◽  
pp. 156-161
Author(s):  
I. Mytrofanov
Keyword(s):  
Social Justice ◽  
Public Relations ◽  
Criminal Law ◽  
The State ◽  
Crime And Punishment ◽  
Self Defense ◽  
Illegal Acts ◽  
The Subject ◽  
The Individual ◽  
The Right

The article states that today the issues of the role (purpose) of criminal law, the structure of criminal law knowledge remain debatable. And at this time, questions arise: whose interests are protected by criminal law, is it able to ensure social justice, including the proportionality of the responsibility of the individual and the state for criminally illegal actions? The purpose of the article is to comprehend the problems of criminal law knowledge about the phenomena that shape the purpose of criminal law as a fair regulator of public relations, aimed primarily at restoring social justice for the victim, suspect (accused), society and the state, the proportionality of punishment and states for criminally illegal acts. The concepts of “crime” and “punishment” are discussed in science. As a result, there is no increase in knowledge, but an increase in its volume due to new definitions of existing criminal law phenomena. It is stated that the science of criminal law has not been able to explain the need for the concept of criminal law, as the role and name of this area is leveled to the framework terminology, which currently contains the categories of crime and punishment. Sometimes it is not even unreasonable to think that criminal law as an independent and meaningful concept does not exist or has not yet appeared. There was a custom to characterize this right as something derived from the main and most important branches of law, the criminal law of the rules of subsidiary and ancillary nature. Scholars do not consider criminal law, for example, as the right to self-defense. Although the right to self-defense is paramount and must first be guaranteed to a person who is almost always left alone with the offender, it is the least represented in law, developed in practice and available to criminal law subjects. Today, for example, there are no clear rules for the necessary protection of property rights or human freedoms. It is concluded that the science of criminal law should develop knowledge that will reveal not only the content of the subject of this branch of law, but will focus it on new properties to determine the illegality of acts and their consequences, exclude the possibility of using its means by legal entities against each other.

Killing through negligence and its distinction with other kinds of murder

2021 ◽  
Author(s):  
Vladimir Myslivyy ◽  
Angelina Mykyta
Keyword(s):  
Criminal Law ◽  
Human Life ◽  
Criminal Liability ◽  
Criminal Code ◽  
The State ◽  
Sufficient Information ◽  
Main Body ◽  
Common Features ◽  
Criminal Offenses ◽  
The Common

Problem setting. According to Art. 27 of the Constitution of Ukraine, everyone has an inalienable right to life, no one can be arbitrarily deprived of life, and the state, in turn, is obliged to protect human life. Protection of a person’s life, as a duty of the state, is manifested in the establishment of criminal liability, enshrined in Section II “Criminal offenses against life and health of a person” of the Criminal Code of Ukraine, who commit socially dangerous acts. whether there are criminal offenses and what punishments they should be committed. The distinction between crimes such as premeditated murder and negligent deprivation of another’s life is important, as criminal law theory still does not have sufficient information on this issue and does not have a complete list of features of the above crimes, but we tried to identify them in our article. Target of research. Deepening their knowledge on the caution of a person’s life due to inconsistency and drawing the line between possible offenses and conditional authority, clarifying the special characteristics of the perpetrator and the victim, outlining the essential features of the perpetrator and the victim, and researching the regulation of negligent proposal of a new version of the Criminal Code of Ukraine. Analysis of resent researches and publications. The theoretical basis for the study of the problem of murder through negligence are the works of legal scholars, in particular, M. Bazhanov, V. Borisov, S. Borodin, V. Glushkov, O. Gorokhovskaya, I. Zinchenko , V. Tyutyugin, O. Us, E. Kisilyuk, V. Kuts, M. Yefimov, S. Likhova, V. Stashis, V. Shablisty and others. Article’s main body. According to Art. 3 of the Constitution of Ukraine, man, his life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value. Given this constitutional provision, the legislator should pay special attention to the criminal law protection of human life and health as the most important public relations. So it is no coincidence that considering such encroachments as one of the most dangerous in the criminal law dimension, the legislator established criminal liability for their commission in Section II “Criminal offenses against life and health” of the Special Part of the Criminal Code of Ukraine. Due to the high public danger and the high prevalence of criminal offenses against human life and health, criminal law theory and law enforcement practice are under increasing scrutiny. Thus, the analysis of judicial practice in recent years shows that, for example, among all murders (Articles 117-119 of the Criminal Code of Ukraine) the number of persons convicted of deprivation of life due to negligence is about 15 percent annually. In our opinion, it is also advisable to analyze the concept of “murder” by comparing the common and distinctive features of the offenses referred to in Art. Art. 115 and 119 of the Criminal Code of Ukraine. According to scientific results, we can conclude that these offenses have many common features. It is possible to understand the common features and preconditions for the spread of these types of offenses. Conclusions and prospects for the development. A study of issues related to the criminal law analysis of murder through negligence and its difference from other types of murder, shows that these acts encroach on the identical object, which is “human life as a set of social relations.” Unfortunately, nowadays the dynamics of offenses committed in Art. Art. 115 and 119 is intensifying, so consideration of their delimitation and characterization of their features is very important. The study examines the main features of these types of crimes, as well as analyzes some provisions of national law and proposes some adjustments to them.

A Strategic Choice: The State Policy Requirement in Core International Crimes

2015 ◽  
Vol 28 (4) ◽  
pp. 953-975 ◽  
Author(s):  
ATHANASIOS CHOULIARAS
Keyword(s):  
Criminal Law ◽  
State Policy ◽  
International Criminal ◽  
Criminal Policy ◽  
The State ◽  
International Criminal Law ◽  
Controversial Issues ◽  
Policy Perspective ◽  
International Crimes ◽  
Definition Of

AbstractThe article focuses on one of the most intriguing and, at the same time, controversial issues of international criminal law: whether the state policy requirement should be considered as a constitutive element in core international crimes. Adopting a criminal policy perspective, my intention is to contribute to the ongoing discussion by offering a doctrinal and criminological corroboration of the position that answers in the affirmative. Nevertheless, I am not necessarily promoting a normative choice entailing the amendment of the definition of core international crimes, but I rather call for a policy choice of focusing on cases that presume a state policy component.

Recharacterisation of Crimes and the Principle of Fair Labelling in International Criminal Law

2018 ◽  
Vol 18 (5) ◽  
pp. 788-821
Author(s):  
Talita de Souza Dias
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Fair Trial ◽  
Comprehensive Analysis ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Legal Scholarship ◽  
International Crimes ◽  
The Creation ◽  
Central Claim

The principle of fair labelling has informed the creation of international crimes and other concepts of international criminal law since the modern inception of this discipline. In particular, it was the symbolic and condemnatory import of international labels such as genocide and crimes against humanity that partly motivated their introduction as offences separate from domestic ordinary crimes. Paradoxically, fair labelling has received marginal attention in legal scholarship and practice. Moreover, frequent instances of relabelling known as ‘recharacterisation of crimes’ may not be entirely consistent with that principle, inviting further analysis thereof. In this context, the purpose of this article is to provide a more systematic and comprehensive analysis of the principle of fair labelling in international criminal law, particularly in light of the phenomenon of recharacterisation of crimes. Its central claim is that fair labelling is as a fair trial right which precludes recourse to recharacterisation in certain circumstances.

Abstrakt-generelle Duldungen im europäisierten Glücksspielstrafrecht

2021 ◽  
Author(s):  
Karsten Gaede
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Slot Machine ◽  
The State ◽  
Eu Law ◽  
Transitional Regime ◽  
European Economic ◽  
Legal Situation ◽  
Before And After ◽  
Machine Games

Gaede examines the little-discussed question of whether administrative acquiescence precludes the accusation of unlawful gambling against the background of EU law. He shows that the transitional regime established until the full enforceability of the State Treaty on Gambling in 2021 limits criminal liability. In detail, he explains why a total internet ban on virtual slot machine games is no longer in conformity with EU law. He clarifies that general tolerations can also exclude § 284 StGB if they are in accordance with the legal discretion of the authorities. Gaede discusses the legal situation before and after 1.7.2021. The author is co-editor of the series and professor in particular of German and European economic criminal law.

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