Independence of Public Prosecutors’ Offices : Recent Case Law of the CJEU on the European Arrest Warrant and its Impact on the EU Criminal Justice System

Private prosecutions are one of the ways through which crime victims in many European countries participate in the criminal justice system. However, there seems to be a reluctance at the Council of Europe level to strengthen a victim’s right to institute a private prosecution. In a 1985 Recommendation, the Committee of Ministers stated that ‘[t]he victim should have the right to ask for a review by a competent authority of a decision not to prosecute, or the right to institute private proceeding.’ Later in 2000 in the Recommendation Rec (2000)19 on the role of public prosecution in the criminal justice system, the Committee of Ministers calls upon Member States to ‘authorise’ victims to institute private prosecutions. Directive 2012/29/eu of the European Parliament and of the Council of 25 October 2012 is silent on private prosecutions. The dg Justice Guidance Document related to the transposition and implementation of Directive 2012/29/eu of the European Parliament and of the Council of 25 October 2012 discourages private prosecutions. However, private prosecutions take part in many European countries. It is thus important to highlight some of the issues that have emerged from different European countries on the issue of private prosecutions. Case law from the European Court of Human Rights shows that private prosecutions take place in many European countries. This article, based on case law of the European Court of Human Rights, highlights the following issues with regards to private prosecutions: the right to institute a private prosecution; who may institute a private prosecution? private prosecution after state declines to prosecute; state intervention in a private prosecution; and private prosecution as a domestic remedy which has to be exhausted before a victim of crime approaches the European Court of Human Rights. The author argues that there is a need to recognise the right to private prosecution at the European Union level.

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English Legal System Concentrate

10.1093/he/9780198855026.001.0001 ◽

2020 ◽

Author(s):

Mark Thomas ◽

Claire McGourlay

Keyword(s):

Criminal Justice ◽

International Law ◽

Criminal Justice System ◽

Legal System ◽

Justice System ◽

Case Law ◽

Civil Justice ◽

Essential Information ◽

Domestic Legislation ◽

Civil Justice System

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. English Legal Systems Concentrate starts with an introduction to the English legal system (ELS). It then looks at sources of law: domestic legislation, case law, and the effect of EU and international law. The text also examines the court structure. It then looks at personnel of the ELS. It moves on to consider the criminal justice system and the civil justice system. After that, it looks at funding access to the ELS. Finally, it looks to the future of the ELS.

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Sentencing Within Sentencing

Federal Sentencing Reporter ◽

10.1525/fsr.2011.24.1.1 ◽

2011 ◽

Vol 24 (1) ◽

pp. 1-3

Author(s):

Alison Shames

Keyword(s):

Criminal Justice ◽

Criminal Justice System ◽

Guest Editor ◽

Justice System ◽

Case Law ◽

Defense Attorney ◽

Multiple Points ◽

The Public ◽

Federal Sentencing

Guest editor Alison Shames introduces this issue of Federal Sentencing Reporter, which focuses on sentencing and the last fifty years of programs developed by the Vera Institute of Justice. When a judge sentences a convicted defendant, he or she takes into account many factors and tries to achieve one or more of the oft-cited purposes of punishment: incapacitation (to protect the public from further crimes committed by the defendant), deterrence, restitution, retribution, and rehabilitation. The federal sentencing statute instructs the court not to impose a sentence greater than necessary to accomplish the goals the sentence is crafted to achieve. What the statutes, guidelines, case law, or even the defense attorney don't mention, however, is that a criminal sentence imposed after a conviction does not fully define the punishment meted out to a defendant. People involved in the criminal justice system are, in fact, punished at multiple points.

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Pushing 'pause' on video evidence: An analysis of the proposed amendments to s 106 of the Evidence Act 2006

10.26686/wgtn.17009612.v1 ◽

2021 ◽

Author(s):

◽

Zoe Bennett

Keyword(s):

New Zealand ◽

Criminal Justice ◽

Social Policy ◽

Criminal Justice System ◽

Justice System ◽

Case Law ◽

Drop Out ◽

Bill Of Rights ◽

Attrition Rates ◽

Full Disclosure

<p>This paper assesses the ramifications of the Cabinet Social Policy Committees proposals contained in the paper Amendments to the Evidence Act 2006. The Committee proposed a change to s 106 of the Evidence Act, which currently lies in favour of full disclosure of video evidence to the defence. The proposed amendments will reverse this presumption, ultimately restricting the defence’s access to the complainants video evidence. This paper will assess the validity and practicality of these proposed amendments, by assessing whether they are consistent with the New Zealand Bill of Rights Act, the equality of arms doctrine and international case law. Although the proposed amendments were made to protect vulnerable complainants, attrition rates in New Zealand show that vulnerable witnesses do not drop out of the criminal justice system just because they are fearful about their video evidence being disclosed. The attrition rates are more complex. However, this paper argues that there are still adequate safeguards in place to protect the defence’s right to a fair trial. Whilst these safeguards holdfast, any effort to protect vulnerable victims should be encouraged.</p>

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THE RIGHT OF AN ACCUSED TO DEFENCE UNDER THE CRIMINAL JUSTICE SYSTEM IN MALAYSIA

Journal of Nusantara Studies (JONUS) ◽

10.24200/jonus.vol7iss1pp43-58 ◽

2022 ◽

Vol 7 (1) ◽

pp. 43-58

Author(s):

Mohd Safri Mohammed Na’aim ◽

Ramalinggam Rajamanickam ◽

Rohaida Nordin

Keyword(s):

Criminal Justice ◽

Criminal Justice System ◽

Justice System ◽

Case Law ◽

Criminal Trial ◽

Public Prosecutor ◽

Research Approach ◽

Legal Provisions ◽

Procedure Code ◽

The Right

Background and Purpose: Under the criminal justice system, the burden lies on the prosecution to prove the guilt of the accused. It is worth noting that a criminal trial is not one-sided; it also allows the accused to raise his defence to prove his innocence. The research aims to analyse the right of the accused to raise a defence and when the defence should be raised in a criminal trial process in Malaysia. Methodology: This research adopts a legal research approach involving a detailed analysis of the relevant legal provisions, case law and scholarly writing related to this area. Findings: The research found that the Criminal Procedure Code (CPC) (Act 593) is silent as to when the defence should be raised. That being said, with reference to the Supreme Court’s case of Lin Lian Chen v. Public Prosecutor [1992] 1 CLJ 285 (Rep), the accused should introduce his defence at the earliest stage as possible. Failing this may give rise to the presumption that the defence raised was a mere invention. Although the principle has been regarded as a law in raising defence, there are still cases where the accused did not present the defence at an earlier stage. Contributions: This research contributes to the corpus of legal knowledge of criminal defence, particularly on raising criminal defence in a criminal trial with the aim of providing better protection for the accused in the criminal justice system. Keywords: Criminal justice system, criminally liable, defence, right of the accused, & criminal trial. Cite as: Mohammed Na’aim, M. S., Rajamanickam, R., & Nordin, R. (2022). The right of an accused to defence under the criminal justice system in Malaysia. Journal of Nusantara Studies, 7(1), 43-58. http://dx.doi.org/10.24200/jonus.vol7iss1pp43-58

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Indirect Effect of EU Law under Constitutional Scrutiny – the Overview of Approach of Czech Constitutional Court

International and Comparative Law Review ◽

10.1515/iclr-2016-0005 ◽

2016 ◽

Vol 16 (1) ◽

pp. 69-82

Author(s):

Ondrej Hamuľák ◽

Tanel Kerikmäe

Keyword(s):

Czech Republic ◽

Indirect Effect ◽

Case Law ◽

State Responsibility ◽

Constitutional Court ◽

Eu Law ◽

Arrest Warrant ◽

European Arrest Warrant ◽

Ideal Tool ◽

The Eu

Summary The paper deals with the non-normative impacts of the EU law in the national legal systems (Czech Republic in particular) and focuses on the approach of the Czech Constitutional Court (CCC) towards the so-called principle of indirect effect of EU law. The authors examine the case law of CCC and offer the conclusions about the place, constitutional relevance and (national) limits of the EU-consistent interpretation of national law. CCC up to date case law clearly indicates that a EU-consistent interpretation is the most ideal tool for meeting the Czech Republic’s membership obligations. But it is simultaneously a tool for preserving the autonomy of the national authorities applying law and reduces possible tensions between supranational and nation law. CCC accepts the indirect effect broadly and used this concept even in controversial cases (European arrest warrant, State responsibility for damages etc.). But still it does not approach this effect without reservations. CCC points on the necessity to protect the fundamental constitutional values (‘Solange’ concept) even in connection with the duty of EU-consistent interpretation.

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