How Silent is the Right to Silence?

A long-held and fundamental principle of our criminal justice system is that people accused of crimes have a right to silence, arising from the presumption of innocence. Rules of evidence try to protect this ‘right’ during trial, by ensuring that juries understand that adverse inferences cannot be drawn from the silence of the accused. Silence, in court, can mean nothing, and we are not to speculate about what might motivate an accused person to remain silent, or what they might have said had they spoken. However, an examination of the jurisprudence in this area shows that the law is often not dealing with actual silence; sometimes when the law refers to the ‘right to silence’, it seems to mean a ‘refusal to hear’. In other instances, there is actual silence, and yet the law refuses to subject that silence to any critical interpretation, insisting that we cannot infer anything from it. While we have learned, from theatre, music, linguistics, religion and psychology, to develop sophisticated means for interpreting silence, the law demands that we set aside these interpretive tools, hearing silence that isn’t there, and inferring nothing about something.

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Islamic criminal procedure law: human rights issues

Науково-теоретичний альманах Грані ◽

10.15421/172092 ◽

2020 ◽

Vol 23 (10) ◽

pp. 47-57

Author(s):

Yusif Mamedov

Keyword(s):

Human Rights ◽

Criminal Justice ◽

Criminal Justice System ◽

Criminal Law ◽

Justice System ◽

Due Process ◽

Economic Status ◽

Burden Of Proof ◽

The Law ◽

The Right

It has been established that harsh Islamic punishments are practically not applied due to the high burden of proof and the need to involve an exhaustive number of witnesses. It has been proven that the Islamic criminal justice system provides the accused with basic guarantees. It is noted that according to Sharia, Islamic crimes are divided into three categories: Hadd, Qisas and Tazir. It is noted that Islamic criminal law provides that the accused is not guilty if his guilt is not proven. It is noted that equality before the law is one of the main legal principles of the Islamic criminal model, as all persons are equal before the law and are condemned equally regardless of religious or economic status (lack of immunity). There are four main principles aimed at protecting human rights in Islamic criminal law: the principle of legality (irreversible action), the principle of presumption of innocence, the principle of equality and the principle of ultimate proof. In addition, the Islamic criminal justice system provides defendants with many safeguards, which are always followed during detention, investigation, trial and after trial. It is established that such rights are: 1) the right of every person to the protection of life, honor, freedom and property; 2) the right to due process of law; 3) the right to a fair and open trial before an impartial judge; 4) freedom from coercion to self-disclosure; 5) protection against arbitrary arrest and detention; 6) immediate court proceedings; 7) the right to appeal. It is noted that if a person is charged, he/she has many remedies It is noted that the trial must be fair, in which the qadi (judge) plays an important role. It has been established that, in addition to the procedural guarantees, the qualifications and character of the qadi, as well as the strict requirements of Islamic rules of proof, are intended to ensure a fair trial in the case of the accused. Adherence to these principles has been shown to indicate that the rights of the accused are fully guaranteed under Islamic criminal law.

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Keep silence for yourself: The protection of the right to silence in the Italian criminal justice system

New Journal of European Criminal Law ◽

10.1177/20322844211028306 ◽

2021 ◽

pp. 203228442110283

Author(s):

Diletta Marchesi ◽

Michele Panzavolta

Keyword(s):

Criminal Justice ◽

Side Effects ◽

Criminal Justice System ◽

Present Article ◽

Justice System ◽

Negative Consequences ◽

Right To Silence ◽

International Audience ◽

The Right

The present article aims to discuss the protection of the right to silence in the Italian criminal justice system for an international audience. In Italy, the right to silence is a right that stems directly from the protection offered by the Constitution to the right of defence. Much debate revolves around the extent to which the right deserves to be safeguarded. Although the majority of scholarship favours the broadest extension of the right possible, this view is not endorsed unanimously. The legislature has introduced some limits, the most important being that which confines the right to silence to the facts concerning one’s own responsibility, save for exceptions. The courts, in turn, have taken a softer approach in the protection of the right to silence, which may allow the possibility of using the suspect’s silence to draw adverse consequences. Although the Italian system offers comparatively strong protection to the right to silence, it nonetheless leaves some openings that undermine the effectiveness of the right. This article therefore argues that compensating for the possible side effects of the rules on cooperation, removing some negative consequences of silence and the strengthening of remedies are the main fronts where the Italian system can still improve the protection of the right to silence.

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Presumption of Innocence Against Criminal Offenders in the Police: A Critical Study

Walisongo Law Review (Walrev) ◽

10.21580/walrev.2020.2.1.5506 ◽

2020 ◽

Vol 2 (1) ◽

pp. 17

Author(s):

Oktavia Wulandari ◽

Ali Imron ◽

Briliyan Ernawati ◽

Nazar Nurdin

Keyword(s):

Criminal Justice ◽

Law Enforcement ◽

Criminal Justice System ◽

Justice System ◽

Police Department ◽

Fundamental Principle ◽

Critical Study ◽

Presumption Of Innocence ◽

Criminal Offenders ◽

Police Level

The purpose of this paper is to conduct a critical study of the application of the presumption of innocence to the perpetrators of criminal acts (suspects) investigated by the police. Implementation of the principle is important to study because the suspect must not be considered guilty before the criminal act is proven. A review of this case was carried out at the Kendal Police Department in mid-2019-2020. Writing texts are written with a normative-empirical approach. The non-doctrinal approach was chosen because it can clearly examine the application of the principle of presumption of innocence in more depth. Therefore, the author considers it necessary to carefully examine the application of these principles in the process of law enforcement at the police level. The results showed that the application of the principle of presumption of innocence in the Kendal Police Department was not optimal, because some of its applications were colored by threats and acts of violence. The suboptimal application of this principle is influenced by various factors, including the lack of legal knowledge of suspects and threats and acts of violence that are not reported. As we know the presumption of innocence is a fundamental principle in the criminal justice system, where a person must be positioned innocent before his guilt is proven in an honest and open trial.

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Reconstruction of the Diversion Concept in a Child Criminal Jurisdiction System Based on Dignified Justice

Prizren Social Science Journal ◽

10.32936/pssj.v5i1.210 ◽

2021 ◽

Vol 5 (1) ◽

pp. 104-112

Author(s):

I Nyoman DIPA RUDIANA ◽

I Ketut RAI SETIABUDHI

Keyword(s):

Criminal Justice ◽

Criminal Justice System ◽

Restorative Justice ◽

Justice System ◽

Retributive Justice ◽

Legal Certainty ◽

Criminal Jurisdiction ◽

The Law ◽

The Right ◽

Sense Of Justice

The renewal of the orientation of punishment for children in conflict with the law from a retributive justice approach to restorative justice is a good start for efforts to restore a victim-oriented situation by giving the perpetrator the opportunity to express his regret to the victim with the concept of diversion. However, not all cases of children are entitled to diversion. In accordance with Article 7 paragraph (2) of the SPPA Law, the requirement for diversion is a criminal act punishable by imprisonment of under 7 (seven) years and not a repetition of a criminal act. Meanwhile, criminal acts that are punishable by more than 7 (seven) years and repetition of criminal acts are not entitled to diversion. The concept of diversion and the terms of diversion are interpreted very narrowly so that they do not reflect dignified justice. The law cannot only regulate legal certainty. The law must provide a sense of justice with dignity and justice that humanize humans. This writing aims to determine the concept of diversion of the juvenile criminal justice system based on dignified justice. The type of research used is literature, the nature of this research is descriptive, the results of the research are the reconstruction of the concept of diversion based on dignified justice must be reconstructed by expanding the concept of diversion so that every child without exception has the right to get diversion.

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Akses Keadilan Sebagai Perlindungan Hukum Bagi Perempuan Berhadapan Dengan Hukum Dalam Sistem Peradilan Pidana

Hukum dan Masyarakat Madani ◽

10.26623/humani.v9i1.1445 ◽

2019 ◽

Vol 9 (1) ◽

pp. 72

Author(s):

Ani Triwati

Keyword(s):

Criminal Justice ◽

Criminal Justice System ◽

Justice System ◽

The State ◽

Access To Justice ◽

Political Rights ◽

Civil And Political Rights ◽

The Law ◽

The Republic ◽

The Right

<div>Negara mengakomodir hak setiap orang termasuk hak perempuan berhadapan dengan hukum dalam Undang-Undang Dasar Negara Republik Indonesia Tahun 1945. Perempuan berhadapan dengan hukum mempunyai hak untuk memperoleh akses keadilan. Sebagai negara yang telah meratifikasi Kovenan Internasional tentang Hak-Hak Sipil dan Politik dengan Undang-Undang Nomor 12 Tahun 2005 tentang Pengesahan International Covenant on Civil and Political Rights, Indonesia berpedoman pada Konvensi tersebut dalam mewujudkan persamaan semua orang di hadapan hukum dan peraturan perundang-undangan, larangan diskriminasi serta menjamin perlindungan yang setara dari diskriminasi, termasuk jenis kelamin atau gender. Selanjutnya, Indonesia sebagai pihak dalam Konvensi Penghapusan Segala Bentuk Diskriminasi Terhadap Perempuan (Convention on the Elimination All of Forms Discrimination Against Women/ CEDAW) mengakui kewajiban negara untuk memastikan bahwa perempuan mempunyai akses keadilan dan bebas dari diskriminasi dalam sistem peradilan (pidana). Dalam upaya memberikan akses keadilan, negara menjabarkan jaminan hak perempuan berhadapan dengan hukum dalam peraturan perundang-undangan. Sistem peradilan pidana merupakan salah satu upaya dalam memberikan akses keadilan sebagai perlindungan bagi perempuan berhadapan dengan hukum melalui perlindungan terhadap hak-hak perempuan selama pemeriksaan dalam setiap tahap peradilan. The rights of every person including rights of women encounter the law are accommodated by the state based on the Constitution of the Republic of Indonesia of 1945. Women’s in law having the right in terms of accessing justice. As a nation that ratify the International Covenant on Civil and Political Rights with Law Number 12 of 2005 regarding the legitimation of the International Covenant on Civil and Political Rights, Indonesia refers to the convention in realizing the equality of all people before laws and regulations, prohibition of discrimination and guarantee the equal protection from any form of discrimination, including gender. Furthermore, Indonesia as a part in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) admit the obligation of the state to ensure that women are capable accessing justice and exempt from discrimination in the criminal justice system. In an effort to provide access to justice, the state elucidates the guarantee of the rights of women’s in the laws within the law regulations. Therefore, The criminal justice system is the one of an effort providing access to justice as well as the protection for women’s in law through the protection of women's rights during investigation at every stage of justice.</div>

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KEWENANGAN KOMISI PEMBERANTAS KORUPSI DALAM MELAKUKAN PENUNTUTAN MONEY LAUNDERING

JURIS (Jurnal Ilmiah Syariah) ◽

10.31958/juris.v17i1.1004 ◽

2018 ◽

Vol 17 (1) ◽

pp. 117

Author(s):

Roni Efendi

Keyword(s):

Criminal Justice ◽

Law Enforcement ◽

Criminal Justice System ◽

Money Laundering ◽

Criminal Law ◽

Justice System ◽

Initial Investigation ◽

Asset Recovery ◽

The Law ◽

The Right

The tackling of money laundering through the criminal Justice System has not been debatable as long as it is handled by sub-systems in the criminal justice system such as the police and prosecutors since they have been bestowed a clear mandate in law. That raised a question, what about Corruption Eradication Commission or KPK? In Article 6 letter C Act no.30 of 2002 on the Corruption Eradication Commission (Law of KPK) explicitly and clearly revealed that the KPK has a duty to conduct the initial investigation, investigation and prosecution of corruption. That article also did not provide the further explanation. For that reason, the authority of KPK in conducting initial investigation, investigation and prosecution is only regarding the criminal act of corruption.In several corruption cases settling, KPK also often tried to apprehend the perpetrators through the law of prevention and Eradication of Money Laundering Crime. Many People criticized KPK but some gave the appreciation on KPK’s efforts in asset recovery. That was also addressed to KPK on its’ authority in investigating and prosecuting TPPU. In the case of No. 39/Pid.Sus/ TPK/2013/PN.Jkt.Pst with the accused Ahmad Fathanah, Joko Subagion and I made Hendra as 2 (two) members of the judges’ panel stated dissenting opinion. It declared that KPK has the authority to investigate TPU but it is only concerning with the wealth which is suspected from a criminal act of corruption. Actually, the authority to persecute TPPU is on the general attorney. Meanwhile, persecutors of KPK does not have the right to file the indicment and demand of the TPPU. Therefore, the indictment related to money laundering should be declared unacceptable. It brings the writer’s unrest on the criminal law enforcement’s practice. It is especially in the eradication of money laundering since it is supposed that law enforcement does no provide justice for justicia belene, certainty and expediency in asset recovery.

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Victim Participation in Parole Proceedings in South Africa

Southern African Public Law ◽

10.25159/2522-6800/3690 ◽

2019 ◽

Vol 34 (1) ◽

Author(s):

Jamil Mujuzi

Keyword(s):

South Africa ◽

Criminal Justice ◽

Criminal Justice System ◽

South African ◽

Justice System ◽

Criminal Procedure ◽

Prison Inmate ◽

Parole Board ◽

Victims Of Crime ◽

The Right

South African law provides for circumstances in which victims of crime may participate in the criminal justice system at the investigation, prosecution (trial), sentencing and parole stages. In South Africa, a prison inmate has no right to parole although the courts have held that they have a right to be considered for parole. In some cases, the victims of crime have a right to make submissions to the Parole Board about whether the offender should be released on parole. Section 299A of the Criminal Procedure Act 51 of 1977 provides for the right of victims of crime to participate in parole proceedings. The purpose of this article is to discuss section 299A and illustrate ways in which victims of crime participate in the parole process. The author also recommends ways in which victims’ rights in section 299A of the Criminal Procedure Act could be strengthened.

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Implementation of Legal Protection for Children in Conflict with the Law by Public Prosecutors in the Juvenile Criminal Justice System ( Study at the Gorontalo District Attorney's Office, Gorontalo City Attorney's Office and Bone Bolango District Attorney's Office, Gorontalo Province)

10.20935/al3340 ◽

2021 ◽

Author(s):

Leni Dwi Nurmala

Keyword(s):

Criminal Justice ◽

Criminal Justice System ◽

Justice System ◽

Legal Protection ◽

System Study ◽

The Law

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What of the Child? Preventing the Publication of Children's Names After the Age of 18

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad ◽

10.17159/1727-3781/2021/v24i0a9571 ◽

2021 ◽

Vol 24 ◽

pp. 1-31

Author(s):

Sophy Baird

Keyword(s):

Criminal Justice ◽

Criminal Justice System ◽

Justice System ◽

Freedom Of Expression ◽

Best Interests ◽

Child Victims ◽

Criminal Proceedings ◽

The Right To Privacy ◽

The Face ◽

The Right

Children are afforded a number of protections when they encounter the criminal justice system. The need for special protection stems from the vulnerable position children occupy in society. When children form part of the criminal justice system, either by being an offender, victim, or witness, they may be subjected to harm. To mitigate against the potential harm that may be caused, our law provides that criminal proceedings involving children should not be open to the public, subject to the discretion of the court. This protection naturally seems at odds with the principle of open justice. However, the courts have reconciled the limitation with the legal purpose it serves. For all the protection and the lengths that the law goes to protect the identity of children in this regard, it appears there is an unofficial timer dictating when this protection should end. The media have been at the forefront of this conundrum to the extent that they believe that once a child (offender, victim, or witness) turns 18 years old, they are free to reveal the child's identity. This belief, grounded in the right to freedom of expression and the principle of open justice, is at odds with the principle of child's best interests, right to dignity and the right to privacy. It also stares incredulously in the face of the aims of the Child Justice Act and the principles of restorative justice. Measured against the detrimental psychological effects experienced by child victims, witnesses, and offenders, this article aims to critically analyse the legal and practical implications of revealing the identity of child victims, witnesses, and offenders after they turn 18 years old.

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RESTORATIVE JUSTICE SEBAGAI ALTERNATIF PERLINDUNGAN HUKUM TERHADAP KORBAN KEKERASAN DALAM RUMAH TANGGA

Jurnal Hukum & Pembangunan ◽

10.21143/jhp.vol39.no2.209 ◽

2009 ◽

Vol 39 (2) ◽

pp. 238

Author(s):

Rena Yulia

Keyword(s):

Domestic Violence ◽

Criminal Justice ◽

Criminal Justice System ◽

Restorative Justice ◽

Violent Crime ◽

Justice System ◽

Legal Protection ◽

The Right

AbstractThe victim of domestic violence had needed of protection concept thatdifferent with another victim of violent crime. Participation of victim haswant to give justice for all. It is, because punishment to offender brings theimpact for victim. Restorative justice is a concept in criminal justice systemwhich is participation victim with it. The present of criminal justice system isthe offender oriented. Victim has not position to considerate offenderpunishment. Only offender can get the right and the victim hopeless. In thedomestic violence, victim and offender have relationship. Because there area family. · So, probability they have some interest in economic and relation.When wife become a victim and husband as offender, his wife hasdependency economic from her husband. It means, if husband get a decisionfrom judge, his wife will be suffer. Domestic violence is different crime. So, itis necessQ/y to made some different concept. In this article, will discussedabout alternative of legal protection for victim of domestic violence incriminal justice system to protect the victim

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