scholarly journals The “Nullum Crimen, Nulla Poena Sine Lege” Principle and Foreseeability of the Criminal Law in the Jurisprudence of European Court of Human Rights

2020 ◽  
Vol 3 (7) ◽  
pp. 240-247
Author(s):  
Andrei Emil Moise
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
European Court ◽  
Nulla Poena Sine Lege

scholarly journals Nullum Crimen and International Criminal Law: The Relevance of the Foreseeability Test

2015 ◽  
Vol 84 (3) ◽  
pp. 515-531
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
International Criminal ◽  
War Crimes ◽  
International Criminal Law ◽  
International Crimes ◽  
European Court ◽  
Starting Point

This article traces the development of the foreseeability test in the context of the nullum crimen principle. While the European Court of Human Rights has introduced the ‘accessibility and foreseeability’ criteria long ago in the Sunday Times case, the Court has only recently started to apply this standard with respect to international crimes. In the Kononov case, judges of the European Court of Human Rights exhibited strongly divergent opinions on the question whether the punishment of alleged war crimes that had been committed in 1944 violated the nullum crimen principle. According to this author, the dissension of the judges demonstrates the lack of objective foreseeability, which should have served as a starting point for the assessment of the subjective foreseeability and a – potentially exculpating – mistake of law of the perpetrator. The Court should therefore have concluded that the nullum crimen principle had been violated.

scholarly journals Legality of Applying Coercive Medical Measures in Criminal Law

2021 ◽  
Vol 39 (71) ◽  
pp. 126-146
Author(s):  
Iryna V. Kalinina ◽  
Volodymyr M. Kupriienko ◽  
Iryna I. Shulhan ◽  
Dmytro O. Pylypenko ◽  
Olena A. Kozeratska
Keyword(s):  
Human Rights ◽  
Mental Disorders ◽  
Criminal Law ◽  
System Approach ◽  
Descriptive Analysis ◽  
Early Termination ◽  
Practical Application ◽  
Pragmatic Approach ◽  
European Court ◽  
Definition Of

The objective of the study was to determine the legality of the application of coercive medical measures and to develop recommendations to improve the legislative regulation of their use. The study included data on the number of offenders with mental disorders; the empirical background was the decision of the European Court of Human Rights on the application of coercive medical measures; provisions of the legislation of 31 countries. Methods of system approach, comparison, descriptive analysis, pragmatic approach, prognosis were used. The national criminal law of most states regulates the application of coercive medical measures to persons who have committed a crime in a state of limited sanity or insanity or have acquired it before sentencing or during the execution of the sentence, but its practical application causes several complications. It is concluded that the legislative definition of coercive medical measures corresponds to human rights legislation. But there are problems with its practical application. Proposals were made to amend national and international legislation: to broaden the range of grounds for the application of coercive medical measures; regulate the possibility of early termination of a coercive medical measure; oblige the courts to determine the appropriate terms.

scholarly journals Cо-perpetrators of torture: national and convention definition framework

2021 ◽  
Vol 1 (15) ◽  
pp. 91-110
Author(s):  
Yuliia Serhiivna Tavolzhanska ◽  
Iryna Anatoliivna Kopyova
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Code ◽  
Theoretical Modeling ◽  
Public Official ◽  
Criminal Offense ◽  
Human Rights Organizations ◽  
European Court ◽  
Convention Against Torture ◽  
Degrading Treatment

The article is prepared in continuation of development of author's dissertation researches. The paper reveals the peculiarities of objective and subjective features of cо-perpetration in torture (both on the basis of the provisions of the Criminal Code of Ukraine, and taking into account the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. When interpreting national criminal law norms in the light of convention provisions, the requirements of two-frame criminal law research are met. The authors' positions are supported by message from human rights organizations, decisions of the European Court of Human Rights, and theoretical modeling. The article contains the following conclusions. A co-perpetrator of torture may commit this criminal offense by his or her own actions or omissions, use another person as a “means” of committing a criminal offense, or delegate the commission of a criminal offense to another person. A co-perpetrator of torture may join in committing torture at any stage of the commission of this criminal offense. If, under the circumstances of complicity in torture, a public official or other person acting in an official capacity direct torture, he or she is the perpetrator (co-perpetrator) of the offense. If, in complicity in torture, a public official or other person acting in an official capacity creates the conditions for committing the offense, he or she should be recognized as the organizer, instigator or accomplice of the torture (depending on the role he or she has played). If, in complicity in torture, a public official or other person acting in an official capacity doesn't interfere of torture, he or she is the accomplice to torture. Not preventing torture should not be confused with the mental violence that can be used to torture. Article 1 of the 1984 Convention also covers cases of involvement in the torture of public official or other person acting in an official capacity.

Sign in / Sign up

Export Citation Format

Share Document