scholarly journals Reforming Scottish Criminal Procedure: In Search of Process Values

2017 ◽  
Vol 4 (2) ◽  
pp. 167
Author(s):  
Pamela R. Ferguson
Keyword(s):  
Criminal Law ◽  
Criminal Procedure ◽  
Moral Authority ◽  
The State ◽  
Criminal Trial ◽  
Wrongful Conviction ◽  
Wrongful Convictions ◽  
Illegal Migrant ◽  
Fact Finding ◽  
Normative Account

Recent proposals to reform Scottish criminal procedure are motivated by considerations of efficiency and accurate fact-finding, and there is little attempt to offer a normative account. This paper describes these proposals and contends that their emphasis on finding ‘the truth’ is misplaced on two distinct bases: (1) it equates erroneous acquittals to wrongful convictions, thus fails to uphold a fundamental tenet of criminal procedure, namely the particular importance of protecting the innocent against wrongful conviction; and (2) it fails to recognise the importance of non-instrumental process values which are at the heart of the adversarial criminal trial.  The paper suggests that it is only by adhering to these process values that the state maintains – and demonstrates that it maintains – its moral authority to condemn and punish offenders.Key notes: Return Directive, entry ban, illegal migrant, criminal law sanctions, crimmigration, expulsion.

Prosecutors and their Legislatures, Legislatures and their Prosecutors

2021 ◽  
pp. 326-350
Author(s):  
Russell M. Gold
Keyword(s):  
Criminal Law ◽  
Separation Of Powers ◽  
State Level ◽  
Criminal Procedure ◽  
The State ◽  
Institutional Incentives ◽  
Fiscal Pressure ◽  
Meaningful Data ◽  
The Way

This chapter explores the often-pathological relationship between prosecutors and legislatures and considers fiscal pressure as an important antidote to the pathology. Institutional incentives between prosecutors and legislatures align in a way quite different than the classic separation of powers story. Rather, legislatures are well served to empower prosecutors as much as possible by making criminal law broad and deep. And with respect to substantive criminal law, prosecutors have been enormously empowered. Prosecutors are not merely passive recipients of such power but indeed actively lobby for it—often quite successfully. But fiscal pressures can provide a cross-cutting pressure for legislatures, particularly at the state level where many governments must balance their budgets. Thus, sentencing law sometimes finds legislatures refusing prosecutors’ requests for ever longer or mandatory minimum sentences because longer sentences are expensive; this is especially true where sentencing commissions provide legislatures with meaningful data on costs of particular proposals. Criminal procedure has recently found progressive prosecutors leading the way toward defendant-friendly reforms such as using unaffordable money bail less frequently and providing defendants with more discovery than is required by law. In these spaces, county prosecutors have provided laboratories of experimentation that led the way toward broader statewide reforms.

scholarly journals Crime Stories: Posnerian Pragmatism, Rawlsian Pure Procedural Justice, and the Fictional Problem

2004 ◽  
Vol 9 (2) ◽  
pp. 644-654 ◽  
Author(s):  
John R Morss
Keyword(s):  
Criminal Justice ◽  
Procedural Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Criminal Procedure ◽  
Criminal Trial ◽  
Double Jeopardy ◽  
Past Event ◽  
Crime Stories

[There are many different ways in which law and truth may be said to be related. It is perhaps in the criminal trial that connections between them are of most signifi- cance. An orthodox way of describing a criminal trial is that the criminal procedure is seeking to establish the truth concerning some past event, and that success of the procedure is measured by how close its outcome converges with that truth. Crimi- nal justice presents the community with challenging dilemmas in this regard, such as those arising from the notion of double jeopardy. This paper discusses the Rawl- sian notions of ‘imperfect’, ‘perfect’ and ‘pure’ procedural justice, and suggests against Rawls that it is pure procedural justice that best represents what we want from a criminal justice system. Good procedure makes good criminal law. A com- parison is made with the writings of Habermas and Posner, and given that pure procedural justice eschews transcendental truths, some brief comments are made on the convergence of that position with the realm of the fictional.] 

scholarly journals Another example of the situational nature of changes in domestic criminal and criminal procedural legislation or a vital short story?

2020 ◽  
pp. 79-83
Author(s):  
Nikolay Letelkin ◽  
Dmitry Neganov
Keyword(s):  
Short Story ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Criminal Code ◽  
The State ◽  
Federal Law ◽  
Procedure Code ◽  
Corona Virus ◽  
The Russian Federation

The article examines the situationality of modern lawmaking in the field of criminal law in the context of the adoption of the federal law of 1.04.2020 No. 100-FZ «On Amendments to the Criminal Code of the Russian Federation and Articles 31 and 151 of the Criminal Procedure Code of the Russian Federation», adopted by the State The Duma of the Russian Federation in connection with the pandemics of the Corona Virus Disеаsе 2019 (COVID-19).

scholarly journals Metode Pembuktian Terbalik pada Tindak Pidana Korupsi

2015 ◽  
Vol 5 (2) ◽  
pp. 472-520
Author(s):  
Wawan Prasetyo
Keyword(s):  
Criminal Law ◽  
Criminal Procedure ◽  
The State ◽  
Public Prosecutor ◽  
Financial Loss ◽  
The Public ◽  
Crime Of Corruption

Abstract: This study is analyzes the Reversed Evidence Method in Restoring the State Financial Loss Caused by Corruption that are introduced in anti-corruption law in Indonesia. The research shows that the reversed method, as referred to article 12 B, 37, 37 A and 38 B of Undang-Undang No. 31 Year 1999 JunctoUndang-Undang No. 20 Year 2001, is a new methodologicalsystem on Criminal Law Procedure and Islamic Criminal Law Procedure in Indonesia. Through this kind of evidence method, the public prosecutor will use the result of the verification which had been carried out in reverse by the defendant as novum. If the defendant successfully proves his possession is not from corruption, there is no reason for the prosecutor to demand that the property is seized for the state. Conversely, if the defendant unsuccessfully proves, then it can be used as a novum to demand that the property is seized for the state. So, if the public prosecutor uses this method in uncovering the crime of corruption, it might be a very effective method in term of restoring the state’s financial loss.Keywords: Reversed evidence, corruption, Islamic criminal procedure Abstrak: Penelitian ini merupakan hasil penelitian metode pembuktian terbalik dalam mengembalikan kerugian keuangan negara pada tindak pidana korupsi menurut UU No. 31 Tahun 1999 juncto UU No. 20 Tahun 2001 tentang pemberantasan tindak pidana korupsi  perspektif  hukum acara pidana Islam. Hasil penelitian menunjukkan bahwa metode pembuktian terbalik sebagaimana dimaksud dalam pasal 12 B, 37, 37 A dan 38 B UU No. 31 tahun 1999 jo UU No. 20 tahun 2001, merupakan metode baru dalam sistem pembuktian pada Hukum Acara Pidaba Indonesia dan Hukum Acara Pidana Islam. Melalui metode pembuktian semacam ini, jaksa penuntut umum akan menggunakan hasil dari pembuktian secara terbalik yang dilakukan oleh terdakwa sebagai novum. Apabila terdakwa berhasil membuktian harta bendanya bukan berasal dari perbuatan korupsi maka tidak ada alasan bagi jaksa untuk menuntut bahwa harta benda tersebut dirampas untuk negara. Sebaliknya apabila terdakwa tidak berhasil membuktikan, maka hal tersebut dapat dijadikan novum untuk menuntut agar harta tersebut dirampas untuk negara. Apabila  metode ini diterapkan oleh penuntut umum dalam mengungkap kejahatan korupsi, adalah metode yang sangat efektif dalam kaitannya mengembalikan kerugian keuangan negara yang timbul dari kejahatan korupsi.Kata Kunci: Pembuktian terbalik, korupsi, Hukum Acara Pidana Islam

scholarly journals Koncepcja podziału procesu karnego na dwie fazy – 50 lat później

2020 ◽  
Vol 30 (4) ◽  
pp. 11-37
Author(s):  
Bartosz Łukowiak
Keyword(s):  
Criminal Law ◽  
Legal Status ◽  
Criminal Procedure ◽  
Criminal Trial ◽  
Final Part ◽  
Two Phase ◽  
Functional Link ◽  
Starting Point ◽  
History Of ◽  
Two Phases

This paper aims to answer the question whether the concept of dividing a criminal trial into two phases is still useful now, more than half a century after its last broader analysis. It also attempts to solve some specific problems related to the said analysis. The starting point for the considerations contained in the paper was to look at the concept of a two-phase criminal trial as a purely procedural construction and thus to reject its functional link with any model of substantive criminal law. The first part of the paper discusses the history of the concept of a two-phase criminal trial, as well as some of the arguments put forward by its supporters and opponents. In the course of further deliberations, the focus is on searching for elements of the concept in the current legal status. The final part of the text deals with the question whether and, possibly, in what form the concept of division of jurisdictional proceedings should become an element of the Polish criminal procedure. This is followed by numerous and widely justified de lege ferenda conclusions.

scholarly journals VALUE OF OBSERVANCE OF THE PROCEDURAL FORM OF INVESTIGATIVE ACTIONS IN CRIMINAL PROCEDURE

2015 ◽  
Vol 4 (73) ◽  
pp. 14
Author(s):  
Marina Sumbarova
Keyword(s):  
Criminal Procedure ◽  
The State ◽  
Criminal Trial ◽  
Criminal Investigation ◽  
Criminal Trials ◽  
Legal Policy ◽  
Trial Analysis

In article author considered problems related to compliance of procedural form of investigative actions during criminal investigation. Research is connected with character of procedural form, proofs in criminal trial, analysis of theoretical and practical questions on a subject and opinions of scientists. The author connects observance of a form of investigative actions with quality of investigation of criminal trials, proofs, and their conceptual essence and defines problems of quality of investigation in aspect of implementation of the criminal procedure policy which is a component of criminal and legal policy of the state.

scholarly journals Improving Wrongful Conviction Review: Lessons from a Comparative Analysis of Continental Criminal Procedure

2015 ◽  
Author(s):  
Paul J Saguil
Keyword(s):  
Criminal Justice ◽  
Criminal Procedure ◽  
University Of California ◽  
Wrongful Conviction ◽  
Wrongful Convictions ◽  
Criminal Justice Systems ◽  
The Subject ◽  
Popular Interest ◽  
Justice Systems ◽  
Mistaken Identification

The study of wrongfuil conviction has yielded much evidence outlining that factors such as mistaken identification, false confessions, unsavoury informants, and misconduct on the part of the prosecution, defence, and police, inter alia, are causes of wrongfuil conviction common to most, if not all, criminal justice systems. Despite the resurgence of scholarly and popular interest in the phenomenon of wrongful conviction, there are a number of gaps in our knowledge and there is little scholarship available that addresses the subject of this article.In this article, the author addresses the question posed by Professor and Dean of Social Ecology (University of California — Irvine) C. Ronald Huff: "Are some criminal justice systems more likely to produce wrongful convictions than others?" The author undertakes a comparative study of criminal procedure in France and Germany in order to critique and appraise the Canadian approach to wrongful conviction review. He argues that incorporating specific elements of Continental practice into our domestic procedures would substantially increase and improve the opportunities for correcting miscarriages of justice in Canada.

scholarly journals ON THE APPOINTMENT OF THE MODERN RUSSIAN CRIMINAL PROCESS

2021 ◽  
Vol 31 (2) ◽  
pp. 271-276
Author(s):  
O.A. Maksimov
Keyword(s):  
Criminal Law ◽  
Criminal Procedure ◽  
The State ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Proceedings ◽  
The Subject ◽  
State Protection ◽  
Modern Russian

The article examines the purpose of the modern Russian criminal procedure as a way of implementing the constitutionally defined tasks of the state. With a variety of approaches to defining the subject of research, one can single out two interrelated, but also mutually exclusive ideas that underlie the understanding of the purpose of criminal proceedings - for the implementation of criminal law (combating crime, organizing criminal prosecution) or for protecting the rights and freedoms of persons involved in criminal proceedings. legal proceedings. The prevalence of one of them depends on the type of process, while they cannot exist on equal terms due to the opposite methods of implementation in a particular criminal proceeding. With the priority of one of the ideas, the entire criminal process is built according to the type of designated purpose, and the second idea is one of the means of achieving it. The purpose of the criminal procedure follows from the main tasks of the state. It is concluded that in connection with the clearly established in the Constitution the basic values subject to state protection, the only purpose of the modern Russian criminal procedure is to protect human rights and freedoms, regardless of his procedural status in criminal proceedings.

scholarly journals Exemption from criminal liability as an alternative to criminal prosecution

Legal Ukraine ◽  
2020 ◽  
pp. 33-40
Author(s):  
Mariia Sirotkina
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Code ◽  
The State ◽  
Alternative Form ◽  
Criminal Prosecution ◽  
Criminal Offense ◽  
Legal Fact ◽  
Or Organization

This article is researching an institution of exemption from criminal liability as an alternative to criminal prosecution on the basis of current criminal procedure legislation, scientific researches and judicial practice. It was found that some researchers of exemption from criminal liability refer it to the forms of criminal liability, consider exemption from criminal liability as an institution of criminal law that differentiates liability; a radical means of differentiating a criminal liability; a legal fact that terminates a criminal legal relationship, which exempts a person from adverse legal consequences, etc. Having analysed the positions of foreign and domestic scholars, it can be concluded that the norms which provide for exemption from criminal liability should be considered as «an alternative to criminal prosecution». Exemption from criminal liability is provided for in the criminal law due to the fact that in some cases there is no point in subjecting a particular person to criminal liability, as criminal liability, being lawful, is considered as an inexpedient one. The state responds to a criminal act not leaving it without consequences, but reacts in another, «alternative» form, reaching a justified legal compromise in such cases. It is proved that the institution of exemption from criminal liability is implementing a desire of the state to effectively and rationally fight against crime without punishment and in general without a guilty verdict (conviction). This institution is simultaneously implementing the principles of economy of criminal repression, humanism and individualization of liability. Thus, the legislator has provided an alternative to criminal prosecution in the relevant provisions of the Criminal Procedure Code and the Criminal Code. This alternative in certain cases includes a compromise – a person who first time committed a criminal offense or negligent minor offence, except for corruption offenses, is being exempted from criminal liability if this person: has sincerely repented after commitment of offence, has actively contributed to the disclosure of the criminal offense and has fully reimbursed the damage caused by it or has eliminated the damage (Article 45 of the Criminal Code); has reconciled with the victim and has reimbursed the damage caused by such a person or has eliminated the damage (Article 46 of the Criminal Code); when transferring on parole to the staff of the enterprise, institution or organization within a year from the date of parole such person will justify the trust of the staff, will not evade educational measures and will not violate a public order (Article 47 of the Criminal Code). Key words: alternative, liability, exemption, compromise, punishment.

Human Dignity and Its Impact on German Substantive Criminal Law and Criminal Procedure

1999 ◽  
Vol 33 (3) ◽  
pp. 575-591 ◽  
Author(s):  
Otto Lagodny
Keyword(s):  
Criminal Law ◽  
Human Dignity ◽  
Criminal Procedure ◽  
The State ◽  
Constitutional Theory ◽  
Personal Liberty ◽  
Basic Law ◽  
Democratic State ◽  
State Of Israel ◽  
Protection Of Life

Since 1992, the Basic Law: Human Dignity and Liberty has been in force in Israel. Its purpose according to sec. 1 is: “to protect human dignity and liberty, in order to anchor in a Basic Law the values of the state of Israel as a Jewish and democratic state”. In sec. 2 and subsec. it guarantees: preservation of life, body and dignity (sec. 2); protection of property (sec. 3); protection of life, body and dignity (sec. 4); personal liberty (sec. 5); leaving and entering Israel (sec. 6) and privacy (sec. 7). The guarantees in sec. 2 and subs. might thus be seen as a concretization of art. 1. Here we have already an interesting parallel to constitutional theory in Germany. Human dignity is the article with which our constitution begins. The following guarantees may be seen — asDürigalready pointed out in the 1950's — as an emanation of human dignity with its main aspects of freedom/liberty (Art. 2 German Basic Law [GBL]) and of equality (Art. 3 GBL).

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