scholarly journals Preparation and planning of the hearing of the defendant for obtaining a lawful and complete testimony

2021 ◽  
Vol 93 (3) ◽  
pp. 825-844
Author(s):  
Željko Mirkov
Keyword(s):  
Criminal Procedure ◽  
Criminal Offence ◽  
Case Files ◽  
The Law ◽  
Shed Light

The paper deals with the measures for the preparation and planning of the hearing of the defendant, taken by representatives of the police or prosecutor's office. In the introduction, the author provides general observations on the hearing of the defendant and his testimony in the criminal procedure. The paper then proceeds to outline the views of theoreticians regarding the significance of the preparation and planning of the defendant's hearing, as well as specific measures that need to be taken when carrying out this activity. These measures consist of the following: 1) determining the person who will conduct the hearing; 2) determining the location and time of the hearing; 3) analysis of the situation in the case files before the first hearing and identification of all facts and circumstances concerning the criminal offence; 4) obtaining information on the defendant's personality, and 5) preparation of the hearing strategy. The author considers these measures necessary assumptions for obtaining not only a lawful testimony - in line with the provisions of the law on criminal procedure, but also a complete testimony, which is able to shed light on the facts surrounding the criminal offence.

The Law of Pre-Trial Criminal Procedure in Namibia

2014 ◽  
Author(s):  
Clever Mapaure ◽  
Ndjodi M. L. Ndeunyema ◽  
Pilisano H. Masake ◽  
Festus Weyulu ◽  
Loide A. Shaparara
Keyword(s):  
Criminal Procedure ◽  
The Law

Unfitness to Plead in England and Wales

2018 ◽  
Author(s):  
Rudi Fortson
Keyword(s):  
Mental Illness ◽  
Learning Disability ◽  
Developmental Disorder ◽  
Criminal Offence ◽  
Legal Process ◽  
England And Wales ◽  
Criminal Jurisdiction ◽  
Communication Impairment ◽  
The Law ◽  
Law Commission

This chapter examines the legal and practical issues encountered by practitioners when dealing with unfitness to plead litigation. As the Law Commission for England and Wales has pointed out, defendants charged with a criminal offence may be unfit to plead or to stand trial for a variety of reasons, including difficulties resulting from mental illness, learning disability, developmental disorder, or communication impairment. Two issues are considered: (i) how might those defendants who are unfit be accurately identified; and (ii) what steps should be taken by legal practitioners and by the courts of criminal jurisdiction to cater for the interests of vulnerable defendants, victims, and society, and to maintain the integrity of the legal process as one that is fair and just? The chapter evaluates the reform proposals of the English Law Commission and assesses how the law could be improved for all those who are involved in dealing with the unfit to plead.

scholarly journals The Danger for an Underestimation of Necessary Precautions for the Admissibility of Admissions in Section 219A of the South African Criminal Procedure Act 51 of 1977

2019 ◽  
Vol 31 (1) ◽  
pp. 81-120
Author(s):  
’Mampolokeng ’Mathuso Mary-Elizabet Monyakane
Keyword(s):  
South African ◽  
Criminal Procedure ◽  
Prima Facie ◽  
The South ◽  
Simple View ◽  
The Law ◽  
Criminal Matters ◽  
Law Of Evidence

AbstractThe Prima facie view regarding the admissibility of admissions, as evidence, in criminal matters is that, to admit admissions as evidence, the court requires a single consideration as to whether the admission was made freely and voluntarily. Without too much ado, the simple view to this understanding presupposes that admission of an admission as evidence against its maker is of a lesser danger compared to the admission of a confession. The admissibility of confessions against their makers does not come as easily as that of admissions. There are many prescribed requirements to satisfy before confessions are admitted as evidence. This comparison has led to a questionable conclusion that requirements for the admissibility of admissions are of a less complexity equated to the requirements for the admission of confessions. This paper answers the question whether an inference that the requirements for the admissibility of admissions are of a less complexity compared to the requirements for the admission of confessions is rational? It equates this approach to the now done away with commonwealth states rigid differentiation perspective. In the 1800s the commonwealth states, especially those vowing on the Wigmorian perspective on the law of evidence, developed from a rigid interpretation of confessions and admissions and adopted a relaxed and wide definitions of the word, “confession.” To this extent there was a relaxed divide between confessions and admissions hence their common classification and application of similar cautionary rules. The article recounts admissibility requirement in section 219A of the South African Criminal Procedure Act 51 of 1977 (CPA) (Hereinafter CPA). It then analyses Section 219A of the CPA requirement in the light of the rationale encompassing precautions for the admission of confessions in terms of 217(1) of the CPA. It exposes the similarities of potential prejudices where confessions and admissions are admitted as evidence. It reckons that by the adherence to this rigid differentiation perspectives of confessions and admissions which used to be the practice in the commonwealth prior the 1800s developments, South African law of evidence remains prejudicial to accused persons. To do away with these prejudices this article, recommends that section 219A be amended to include additional admissibility requirements in section 217(1). In effect it recommends the merging of sections 217(1) and 219A of the CPA.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

The Law of International Criminal Procedure and Domestic War Crimes Trials

2006 ◽  
Vol 6 (4) ◽  
pp. 605-635 ◽  
Author(s):  
Göran Sluiter
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Procedure ◽  
War Crimes ◽  
Specific Context ◽  
National Courts ◽  
International Criminal Tribunals ◽  
War Crimes Trials ◽  
The Law ◽  
Do So

AbstractThis article deals with the question of possible effect of the law of international criminal procedure for domestic war crimes trials. With the increasing number of national prosecutions for war crimes this question will gain in relevance.The article starts with an exploration of the origin and development of the law of international criminal procedure, to reach the conclusion that because of the lack of a strong foundation it is difficult to discern firmly established rules in this field. Next, two areas are examined where the law of international criminal procedure is capable of producing effect for national trials: human rights and rules that have developed in the specific context of war crimes prosecutions.Whether rules of international criminal procedure are formally effective in the domestic legal order remains to be seen. There is no clear obligation under international law to do so. Furthermore, the law of international criminal procedure may be difficult to harmonise with domestic inquisitorial systems.In spite of these difficulties, the article concludes that national courts will increasingly face similar procedural problems in complex war crimes trials as international criminal tribunals and will be happy to learn from their experiences.

scholarly journals NE BIS IN IDEM PRINCIPLE IN THE CRIMINAL LEGISLATION OF BOSNIA AND HERZEGOVINA AND COURTS’ JURISPRUDENCE

2019 ◽  
Vol 34 (5) ◽  
pp. 1439-1444
Author(s):  
Miodrag N. Simović ◽  
Marina M. Simović ◽  
Vladimir M. Simović
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Offence ◽  
Ne Bis In Idem ◽  
International Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

The paper is dedicated to ne bis in idem principle, which is a fundamental human right safeguarded by Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. This principle is sometimes also referred to as double jeopardy.The principle implies that no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which s/he has already been finally convicted or acquitted (internal ne bis in idem principle), and that in some other State or before the International Court (ne bis in idem principle in respect of the relations between the states or the State and the International Court) the procedure may not be conducted if the person has already been sentenced or acquitted. The identity of the indictable act (idem), the other component of this principle, is more complex and more difficult to be determined than the first one (ne bis).The objective of this principle is to secure the legal certainty of citizens who must be liberated of uncertainty or fear that they would be tried again for the same criminal offence that has already been decided by a final and binding decision. This principle is specific for the accusative and modern system of criminal procedure but not for the investigative criminal procedure, where the possibility for the bindingly finalised criminal procedure to be repeated on the basis of same evidence and regarding the same criminal issue existed. In its legal nature, a circumstance that the proceedings are pending on the same criminal offence against the same accused, represents a negative procedural presumption and, therefore, an obstacle for the further course of proceedings, i.e. it represents the procedural obstacle which prevents an initiation of new criminal procedure for the same criminal case in which the final and binding condemning or acquitting judgement has been passed (exceptio rei iudicatae).The right not to be liable to be tried or punished again for an offence for which s/he has already been finally convicted or acquitted is provided for, primarily, by the International Documents (Article 14, paragraph 7 of the International Covenant on Civil and Political Rights and Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms). The International framework has also been given to ne bis in idem principle through three Conventions adopted by the Council of Europe and those are the European Convention on Extradition and Additional Protocols thereto, the European Convention on the Transfer of Proceedings in Criminal Matters, and the European Convention on the International Validity of Criminal Judgments.Ne bis in idem principle is traditionally associated with the right to a fair trial under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Likewise, no derogation from Article 4 of Protocol No. 7 shall be made under Article 15 of the Convention at the time of war or other state of emergency which is threatening the survival of the nation (Article 4, paragraph 3 of Protocol No. 7). Thereby it is categorised as the irrevocable conventional right together with the right to life, prohibition of torture, prohibition of slavery, and the legality principle. Similarly, ne bis in idem principle does not apply in the case of the renewed trials by the International criminal courts where the first trial was conducted in some State, while the principle is applicable in the reversed situation. The International Criminal Tribunal for Former Yugoslavia could have conducted a trial even if a person had already been adjudicated in some State, in the cases provided for by its Statute and in the interest of justice.

scholarly journals USE OF SPECIAL KNOWLEDGE DURING THE EXAMINATION OF THE SCENE OF A CRIME IN THE ORDER OF PART 3 ART. 214 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE

2021 ◽  
Vol 74 (1) ◽  
pp. 153-160
Author(s):  
Andrіy Shulha ◽  
◽  
Tetyana Khailova ◽  
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Knowledge And Skills ◽  
Procedural Law ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
The Law

The article deals with the problem of specialist’s participation in the scene examination, which is carried out before entering information into the Unified Register of the pre-trial investigations. The essence of the problem is that the current criminal procedural law of Ukraine recognizes the specialist’s participation only in the pre-trial investigation, the litigation and the proceedings in the case of the commission of an unlawful act under the law of Ukraine on criminal liability. Part 1 of Article 71 of the Criminal Procedure Code of Ukraine states that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and conclusions during the pre-trial investigation and trial on issues that require appropriate special knowledge and skills. In other cases, the specialist has no procedural status. In addition, Part 1 of Article 237 of the CPC of Ukraine «Examination» states that the examination is conducted to identify and record information on the circumstances of the offense commitment. It is an act provided by the law of Ukraine on criminal liability. However, there are the cases in the investigation, when a report is received, for example, about a person's death, other events with formal signs of the offense, which must first be checked for signs of a crime, and only then the act can be considered as offense. In this case, a specialist takes part in the scene examination. However, the current criminal procedure law in accordance with Part 1, Article 71 of the Criminal Procedure Code of Ukraine determines the legal status of a specialist only as the participant in criminal proceedings. The paragraph 10, part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines the criminal proceedings as pre-trial investigation and court proceedings or procedural actions in the case of the commission of an unlawful act. Therefore, when the inspection of the scene is based on the uncertain status of the event (there is no clear information that the event contains signs of an offense), the specialist’s participation is not regulated by law. The authors propose to consider the specialists as «experienced persons» in cases mentioned above and to include their advices to the protocol of the scene examination, as the advices of other scene examination participants.

scholarly journals RETURNS OF ASSETS IN CORRUPTION CRIMINAL ACTS AS ALTERNATIVE RESTORING STATE LOSSES

2020 ◽  
Vol 2 (1) ◽  
pp. 27-34
Author(s):  
Komang Ekayana
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Procedure ◽  
The State ◽  
Recovery Model ◽  
Formal Approach ◽  
The Rule Of Law ◽  
Asset Recovery ◽  
Criminal Procedure Law ◽  
The Law

Corrupted state assets certainly hurt the country narrowly, but also broadly where it harms the country and its people. However, the formal approach through the current criminal procedure law has not been able to recover the losses suffered by the state. In fact, state losses resulting from corruption are state assets that must be saved. Then there needs to be a new breakthrough to recover state losses through the asset recovery model. When looking at the country from the perspective of the victims, the state must obtain protection, in this case recovery from the losses suffered due to corruption. This paper examines the model of returning assets resulting from corruption in the law enforcement process that focuses on the rule of law in the 2003 UNCAC Convention and the mechanism of returning state assets in terms of Law No. 20 of 2001 concerning amendments to Law No. 31 of 1999 concerning Eradication of Corruption Crimes. 

scholarly journals JUDGE'S JUDGMENT ON CRIMINAL OFFENSE AGAINST PERPETRATORS OF CRIMINAL EXTORTION WITH THE VIOLENCE AGAINST OTHER PEOPLE'S MOTORCYCLES (Verdict Study Number: 237/Pid. B/2018/PN Kla)

2020 ◽  
Vol 2 (01) ◽  
pp. 56-65
Author(s):  
Oktasari Putri Pramisela ◽  
Yulia Hesti
Keyword(s):  
Law Enforcement ◽  
Attorney General ◽  
Criminal Code ◽  
Deterrent Effect ◽  
District Court ◽  
Criminal Offence ◽  
Factors Affecting ◽  
Criminal Offenses ◽  
Violent Criminal ◽  
The Law

A crime or criminal act, usually perpetrators of criminals because of an encouragement based on the importance of fulfilling the necessities of life that is relatively difficult to fulfill. In principle the crime problem does not stand alone, but it relates to other issues such as social, economic, political and cultural which is as a phenomenon that affects each other. To tackle crimes and criminal acts such a thorough enforcement and anticipation policy is required. One of the most common criminal acts in the community is the violence of violent blackmail. Perpetrators can be assessed by the community, therefore it is necessary to be handled by the law enforcement officers intensively with the severity of the criminal that was dropped. The problem in this study is how the judge's consideration in dropping a criminal against perpetrators of criminal offenses with violence against motorcycles belonging to others, what are some factors causing perpetrators of criminal extortion with violence. The method of study used is the normative juridical approach and empirical approach obtained directly at the District Court of Kls II Kalianda, state Attorney of South Lampung. Based on the results of the study can be concluded that the judge's judgment in the criminal offence against the perpetrator of violent criminal offence is in accordance with the element contained in article 368 paragraph (1) of the criminal CODE and was sentenced to 2 years imprisonment. Factors affecting the cause of perpetrators of criminal extortion in violence are environmental factors, economic factors on society, the law enforcement. The advice given is to be expected to the Tribunal, the attorney general and the police in providing or establishing the article can be in accordance with its elements and actions, to the rationing punishment against the defendant is considered fair and give a deterrent effect so that the defendant can not repeat it again. There is cooperation between law enforcement and the community in minimizing the crimes that occurred.

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