scholarly journals Has the CJEU Made the First Step to Put a Stop to the Criminalisation of Migration? Commentary to the Judgement in the Case of JZ in the Context of the COVID-19 Pandemic

2021 ◽  
Vol 26 (6) ◽  
pp. 207-224
Author(s):  
Anna Magdalena Kosińska
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Criminal Liability ◽  
Case Law ◽  
Critical Discussion ◽  
Eu Law ◽  
Irregular Migration ◽  
Illegal Migrant ◽  
Established Line ◽  
The Right

Abstract The paper presents a critical discussion of the CJEU judgment in the JZ case (C 806/18), in which the Court interpreted Article 11 of Directive 2008/115 that regulates entry ban issuance. The author asks a question of whether an entry ban as a measure limiting the right to free movement has a moral and legal ground in international law and EU law. Moreover, the author focuses on the problem of the criminalisation of irregular migration – both in the context of the established line of the Court’s case law and in the case of a vague national law standard that penalizes illegal stays – the possibility to apply the criminal law concept of error in law and thus exclusion of criminal liability of an illegal migrant.

scholarly journals EU protection of the substantive criminal law principles of guilt and ne bis in idem under the Charter of Fundamental Rights

2018 ◽  
Vol 9 (2) ◽  
pp. 247-264
Author(s):  
Piet Hein van Kempen ◽  
Joeri Bemelmans
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Current Case ◽  
European Court ◽  
Ne Bis In Idem ◽  
Charter Of Fundamental Rights ◽  
Substantive Law

European Union (EU) law is increasingly influencing the substantive criminal law of the member states. In this area of law – in which criminal liability and subsequent punishment are at stake – protection of fundamental rights is indispensable, as a result of which means the Charter has great potential relevance. This article examines the protection of fundamental rights by Union law in the field of substantive criminal law since the Charter has become binding and compares it to the protection offered by the European Court of Human Rights (ECtHR). The article focuses on two fundamental rights that rule substantive criminal law: the principle of guilt and the ne bis in idem principle. It holds that EU law still does not provide a full foundation to both principles of criminal substantive law. Given the particular nature of EU law, the practice of the institutions in substantive criminal law, and the current case law of the European Court of Justice and the ECtHR, we argue that the current level of protection in these parts of the criminal law is insufficiently convincing. Progress needs to be made in the recognition and appreciation of the principle of guilt, while the ne bis in idem principle might be overextended.

scholarly journals Exemption of person from criminal liability and correlation with the principle of presumption of innocence

Legal Ukraine ◽  
2020 ◽  
pp. 44-50
Author(s):  
Mariia Sirotkina
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Effective Means ◽  
Case Law ◽  
Initial Position ◽  
Criminal Prosecution ◽  
Presumption Of Innocence ◽  
Guilty Verdict ◽  
Judicial Practice ◽  
The Right

This article examines the institution of exemption from criminal liability as an alternative to criminal prosecution and correlation with the principle of presumption of innocence on the basis of current criminal procedure legislation, scientific researches and judicial practice (case law). It is established that the initial position of scholars, who adhere to the opinion of contradiction of the institution of exemption from criminal liability with the principle of presumption of innocence, is that, in itself, the fact of exemption from criminal liability indicates a guilty plea and requires sentencing in accordance with Part 1 of the Article 62 of the Constitution of Ukraine. It was found out that reference of some scholars to commitment of a crime by a person is possible only due to availability of guilty verdict, not a court ruling. Because, there are many norms in legislation which may restrict certain citizens’ rights on the basis of ceasing a criminal case under «non-rehabilitative» circumstances. Other ones propose to abandon the institution of exemption from criminal liability in general and advocate expanding the scope of the institution of release from punishment, improving other means of criminal law regulation of the crime which is established by a guilty verdict of a court. It is being proved that the principle of presumption of innocence while exempting from criminal liability is not restricted: the prescriptions of presumption of innocence should be assessed, firstly, as not included into the mechanism of criminal liability, and secondly – as criminal law measures which are an alternative to punishment. Exemption of a person from criminal liability remains to be an effective means to resolve a criminal law dispute in cases prescribed by law. A person who has committed a criminally punishable act is, in no way, limited in their rights, much less in the right to implement the principle of the presumption of innocence. Key words: alternative, liability, exemption (release), punishment, presumption of innocence.

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.

L'azione dell'Unione europea contro le discriminazioni basate sulla religione: l'impatto della giurisprudenza della Corte europea dei diritti umani

2012 ◽  
pp. 475-511
Author(s):  
Federico Casolari
Keyword(s):  
Human Rights ◽  
General Framework ◽  
Case Law ◽  
Legal Order ◽  
Equal Treatment ◽  
Freedom Of Religion ◽  
Eu Law ◽  
The Right ◽  
The Impact ◽  
The Eu

Law Although EU law has established a general framework concerning the fight against discriminations on the grounds of religion (namely as far as equal treatment in employment and occupation is concerned), the related ECJ case law is not very rich. This article tracks and evaluates the impact of the ECHR case law devoted to the freedom of religion on the interpretation and application of EU law concerning religion discriminations. It argues that the ECHR case law may contribute to identify the notion of ‘religion' which is relevant for EU law, while several arguments may be put forward against the application of the Strasbourg approach to the balancing between the right to quality based on religion and others human rights into the EU legal order.

scholarly journals COLLECTIVE LABOUR RIGHTS AS THE PRINCIPLES OF THE EUROPEAN UNION LABOUR LAW

2019 ◽  
pp. 43-46
Author(s):  
O. M. Rym
Keyword(s):  
European Union ◽  
Collective Bargaining ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Labour Law ◽  
Member States ◽  
Labour Rights ◽  
Social Partners ◽  
The Right

The article deals with certain aspects of collective labour rights in the European Union. Prerequisites and procedure of this rights guaranting as general principles of EU law are analyzed and their content is characterized. It is emphasized that such legal establishing took place somewhat haphazardly, both at the level of the acts of primary and secondary law of the European Union and in the case law. As a result, there is no single position on the spectrum of collective labour rights as principles of EU labor law. The author focuses on significant changes in the understanding of the necessity of cooperation of social partners and the extension of their interaction at the supranational level. It is under the responsibility of the European Commission to promote cooperation between Member States and to facilitate coordination of their activities in the field of the right of association and collective bargaining between employers and employees. The article clarifies the content of collective labour rights as general principles of EU law on the basis of EU legal acts, the case law of the Court of Justice of the European Union, as well as the scientific works of domestic and foreign scholars. It is noted that the system of collective labour rights, as general principles of EU labour law, consists of the right of collective bargaining and collective action, the right of employees to information and consultation within the enterprise, as well as the freedom of assembly and association. It is concluded that the necessity of cooperation between the social partners is recognized as one of the foundations of EU labour law. Herewith appropriate interaction is ensured through the normative-legal consolidation of collective labour rights and procedures for their implementation. After all, European Union legal acts allow employees and employers’ representatives to play an active role in regulating labour legal relations. For example, Member States may instruct employers and employees, upon their joint request, to implement Council directives or decisions. In addition, many directives contain warnings about the possibility of derogating from their provisions through the adoption of a collective agreement.

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.

Thailand’s Law on Criminal Online Falsehoods: A Critical Discussion

2021 ◽  
pp. 150-172
Author(s):  
Lasse Schuldt ◽  
Pudit Ovattananavakhun
Keyword(s):  
Criminal Law ◽  
Main Part ◽  
Freedom Of Expression ◽  
Critical Discussion ◽  
Fake News ◽  
Depth Analysis ◽  
Legislative Amendments ◽  
Principle Of Proportionality ◽  
The Right ◽  
Constitutional Jurisprudence

This article critically discusses the Thai criminal law applicable to online falsehoods, namely Section 14 para. 1(1) and (2) of the Act on Computer-Related Offences. Linking developments in Thailand to global and Southeast Asian fake news discourses, the article’s main part sheds light on several interpretational and constitutional complexities. Conflicting concepts of falsity and an uncertain ambit of protected interests are found to persist despite legislative amendments. As the right to freedom of expression in principle also protects false factual statements, recent constitutional jurisprudence on the principle of proportionality is applied to evaluate the prescribed level of criminal punishment. The article provides an in-depth analysis that contributes to the evolving scholarship on the challenges of regulatory responses to fake news.

The Contestation of Value-Based Norms: Confirmation or Erosion of International Law?

2019 ◽  
pp. 311-334
Author(s):  
Tiyanjana Maluwa
Keyword(s):  
International Law ◽  
Security Council ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
The Right ◽  
First Time ◽  
Normative Powers

The chapter discusses the concepts of shared values and value-based norms. It examines two areas of international law that provide illustrative examples of contestation of value-based norms: the fight against impunity under international criminal law and the debates about the responsibility to protect. It argues that the African Union’s (AU) difference of view with the International Criminal Court (ICC) over the indictment of Omar Al-Bashir is not a rejection of the non-impunity norm, but of the context and sequencing of its application. As regards the right of intervention codified in the Constitutive Act of the AU, Africans states responded to the failure of the Security Council to invoke its existing normative powers in the Rwanda situation by establishing a treaty-based norm of intervention, the first time that a regional international instrument had ever done so. Thus, in both cases one cannot speak of a decline of international law.

Allegiance, Diplomatic Protection and Criminal Jurisdiction Over Aliens

1947 ◽  
Vol 9 (3) ◽  
pp. 330-348 ◽  
Author(s):  
H. Lauterpacht
Keyword(s):  
International Law ◽  
Present Article ◽  
Criminal Law ◽  
Constitutional Law ◽  
Point Of View ◽  
Considerable Importance ◽  
Criminal Jurisdiction ◽  
Diplomatic Protection ◽  
The Right

The cause célèbre of King v. William Joyce, subsequently reported as Joyce v. Director of Public Prosecutions, was concerned to a large extent with matters of interest for international law, and it is mainly from this point of view that it is proposed to discuss it in the present article. Obviously the case is also of considerable importance both for criminal law, in so far as it is concerned with the crime of treason, and for constitutional law inasmuch as it bears directly on the question of the nature and the obligations of allegiance. However, it is probable that the case books which will claim it most insistently will be those of international law. For the decision in Rex v. Joyce is not only an authority on certain aspects of allegiance owed by aliens and of the right of a State to assume jurisdiction over acts committed by aliens abroad. It sheds light on such questions as the nature of diplomatic protection of citizens, the right of a State to protect diplomatically persons who are not its citizens, the obligation of allegiance of so-called protected persons, and some others. Not all these questions were judicially answered, but they loomed large in argument and imparted to the proceedings the complexion of a case concerned predominantly with international law. In view of this it may be pertinent to preface this article by drawing attention to a point which appears to be a mere matter of terminology but which, it is believed, raises an issue of wider significance.

The Necessity Plea in English Criminal Law

1972 ◽  
Vol 30 (1) ◽  
pp. 87-119 ◽  
Author(s):  
P. R. Glazebrook
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Common Law ◽  
Case Law ◽  
Penal Code ◽  
Sharp Contrast ◽  
Striking Feature ◽  
Vast Number ◽  
English Law ◽  
Prevention Of Crime

The sharp contrast between the vast number of detailed statutory provisions defining particular offences and the small handful of widely phrased provisions concerned with the general principles of criminal liability is, perhaps, the most striking feature of English criminal law, and, like the continued co-existence of both common law and statutory offences, one of the unhappy consequences of England's failure to enact a penal code. Among the few statutory provisions laying down general principles of liability or excuse there is none which comprehends a defence of necessity, and so commentators have inevitably looked to the case law for an answer to the question: Is there in English criminal law a defence of necessity? by which they have meant: Is there a defence of necessity in the sense in which there is a defence of, for instance, insanity, or infancy, or duress or prevention of crime? To the question understood in that sense, the answer returned must, it is thought, be a plain No. To ask and to answer the question in that sense may, however, be misleading: it may be more revealing (as this paper suggests) to ask, How does English law handle the plea of necessity when it arises? What, in other words, is the juristic technique employed?

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