criminal trial
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2029 ◽  
pp. 239-247
Author(s):  
Krystyna Szczechowicz

The author discusses the problems of linking the application for the justification of the judgment with the scope of its appeal against the background of amendments to the Code of Criminal Procedure. The request to prepare in writing and to provide the justification of the judgment is of particular importance in the criminal trial, it opens the way to appeal against the decision. Changes in the regulation, in particular the wording of art. 422 § 2 k.p.k. cause that this activity is even more important to shape the boundaries of the case in the appeal instance than the previous one. Submission of an application for justification of the judgment partly gives the court the power to limit the scope of justification.


2022 ◽  
Vol 7 (1) ◽  
pp. 43-58
Author(s):  
Mohd Safri Mohammed Na’aim ◽  
Ramalinggam Rajamanickam ◽  
Rohaida Nordin

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


2021 ◽  
Vol 27 ◽  
pp. 47-77
Author(s):  
Hanna Kuczyńska

In this article the position of the accused as a source of personal evidence in three different European legal systems: Poland, Germany, and England, will be presented. This analysis will be oriented to understand the way of functioning of the two different models of giving statements of fact by the accused at a criminal trial. The main difference is that in the common law model of criminal trial the accused may only present evidence by testifying as a witness speaking about what happened, whereas in the continental model the accused gives a specific personal type of evidence (that in the Anglo-Saxon literature is rather described as “oral evidence”) that is known as explanations. From this differentiation several consequences arise: among others, the possibility of presenting untruthful explanations and presenting many versions of events in the continental model which have to be assessed by the judges. At the same time, the same right of the accused to silence and not to give incriminating evidence applies in both models of criminal trial – however, in two different shapes and with different types of limitations.


2021 ◽  
Vol 5 (2) ◽  
pp. 1-29
Author(s):  
Przemysław Krawczyk

Przemysław Krawczyk discusses the impact of institutions related to the continuity of a crime on the substantive validity of judgments in criminal cases and the ne bis in idem prohibition that flows from it. The study presents the views of doctrine and judicature which treat the scope of the validity of substantive judgment in relation to conduct (acts) committed in the conditions of continuity. It should be noted at the outset that positions on this issue tend to be diametrically different. Moreover, Krawczyk points out how important it is to set temporal limits to the continuity of an offence. This issue is of considerable importance from the point of view of the substantive validity of a ruling issued in a criminal trial, because incorrect or insufficiently precise delimitation of these limits may result in a violation of some fundamental principles of criminal law, both substantive and procedural.


2021 ◽  
Vol 5 (1) ◽  
pp. 1-12
Author(s):  
Dobrosława Szumiło-Kulczycka

This article was written as part of the Costs of a Criminal Trial in View of an Economic Analysis of Law research project. Part one contains deliberations on the impact of economic factors on the regulations concerning the criminal procedure. One needs to answer the question of whether such factors should be considered as affecting the principles on the basis of which the model of the criminal trial is being developed and whether there are any solutions that have been introduced specifically because of the profit and loss account related to the prosecution of a perpetrator. Part two focuses on the fundamental results and the conclusions of empirical studies carried out with respect to the expenses incurred by the State Treasury in criminal proceedings, considering the expenses incurred in serious cases, i.e., those examined in the first instance by regional courts, and in minor cases, which in the first instance are handled by district courts. Results and Conclusions: The article points out three fundamental factors determining the amount of the expenses, i.e., the fact of the accused being imprisoned during the proceedings, the use of scientific evidence (opinions produced by expert witnesses), and the participation of a public defender remunerated by the State Treasury.


2021 ◽  
Author(s):  
◽  
Lindsey Pointer

<p>As William Everett notes, “Symbols and rituals are indispensable for our efforts to contain, transform, and resolve conflicts.” For this reason, the performance of justice is highly ritualized. Two contemporary examples of this performance are the mainstream criminal trial and the restorative justice conference, each of which has a distinct ritual structure. This thesis explores these two ritual structures and how they fulfill, or fail to fulfill, the multifaceted human need for justice. By employing ritual theory in respect to these two justice performances, an analytical framework will be developed that describes how each ritual’s process affects its function.  Theories of ritual are specifically concerned with the functions that rituals have in society. This thesis proffers three dominant ritual functions related to the performance of justice: the normative, the transformative, and the proleptic. Rituals have a normative function when they provide a sense of safety and security through establishing a set way of doing things and reaffirming communal values. Transformative rituals offer a means of attaining significant and sustainable change at personal and relational levels. Proleptic rituals are capable of envisioning and temporarily creating a different possible societal future by generating social and power relationships that can challenge the status quo. Not every ritual performance is oriented to achieving these various functions, yet it will be argued that the nature of justice demands attention to all three.  This thesis applies this analytical framework of the various functions of rituals to two justice performances: the criminal trial and restorative justice. It proposes that while the criminal trial fulfills the normative function through upholding laws and associated values, it commonly falls short of creating the conditions for personal or relational transformation, nor does it anticipate a future where a greater measure of justice is achieved. By contrast, it is common for restorative justice conferences to result in transformative outcomes for participants and to provide a foretaste of a more just social order, inasmuch as they subvert hegemonic power arrangements.  By advancing our understanding of the ritualistic features of justice, this thesis can help to answer three prominent questions that have beleaguered the restorative justice field. First, how is the personal and relational transformation apparent in the restorative justice process achieved? This will be addressed through an application of the theories of ritual put forth by Victor Turner and Émile Durkheim to the restorative justice process in order to better understand and describe its transformative function. Second, can restorative justice have a normative impact that satisfies the wider public, particularly in comparison to the criminal trial? This criticism will be considered in light of a normative ritual framework along with the alternative structures that have been suggested to remedy this issue. Finally, given its primary focus on making amends at an interpersonal level, does restorative justice routinely fail to address larger, structural injustices? By examining the expansion of restorative justice from a justice reform mechanism to a wider social movement, I will argue that the proleptic function of the restorative justice ritual has played a key role in this expansion by temporarily creating a “restorative society in miniature” that participants often emerge with a desire to experience again and extend to others, thereby enlarging the original scope of the restorative justice intervention.</p>


2021 ◽  
Author(s):  
◽  
Lindsey Pointer

<p>As William Everett notes, “Symbols and rituals are indispensable for our efforts to contain, transform, and resolve conflicts.” For this reason, the performance of justice is highly ritualized. Two contemporary examples of this performance are the mainstream criminal trial and the restorative justice conference, each of which has a distinct ritual structure. This thesis explores these two ritual structures and how they fulfill, or fail to fulfill, the multifaceted human need for justice. By employing ritual theory in respect to these two justice performances, an analytical framework will be developed that describes how each ritual’s process affects its function.  Theories of ritual are specifically concerned with the functions that rituals have in society. This thesis proffers three dominant ritual functions related to the performance of justice: the normative, the transformative, and the proleptic. Rituals have a normative function when they provide a sense of safety and security through establishing a set way of doing things and reaffirming communal values. Transformative rituals offer a means of attaining significant and sustainable change at personal and relational levels. Proleptic rituals are capable of envisioning and temporarily creating a different possible societal future by generating social and power relationships that can challenge the status quo. Not every ritual performance is oriented to achieving these various functions, yet it will be argued that the nature of justice demands attention to all three.  This thesis applies this analytical framework of the various functions of rituals to two justice performances: the criminal trial and restorative justice. It proposes that while the criminal trial fulfills the normative function through upholding laws and associated values, it commonly falls short of creating the conditions for personal or relational transformation, nor does it anticipate a future where a greater measure of justice is achieved. By contrast, it is common for restorative justice conferences to result in transformative outcomes for participants and to provide a foretaste of a more just social order, inasmuch as they subvert hegemonic power arrangements.  By advancing our understanding of the ritualistic features of justice, this thesis can help to answer three prominent questions that have beleaguered the restorative justice field. First, how is the personal and relational transformation apparent in the restorative justice process achieved? This will be addressed through an application of the theories of ritual put forth by Victor Turner and Émile Durkheim to the restorative justice process in order to better understand and describe its transformative function. Second, can restorative justice have a normative impact that satisfies the wider public, particularly in comparison to the criminal trial? This criticism will be considered in light of a normative ritual framework along with the alternative structures that have been suggested to remedy this issue. Finally, given its primary focus on making amends at an interpersonal level, does restorative justice routinely fail to address larger, structural injustices? By examining the expansion of restorative justice from a justice reform mechanism to a wider social movement, I will argue that the proleptic function of the restorative justice ritual has played a key role in this expansion by temporarily creating a “restorative society in miniature” that participants often emerge with a desire to experience again and extend to others, thereby enlarging the original scope of the restorative justice intervention.</p>


2021 ◽  
Author(s):  
Awol Allo

AbstractNormative theories of law conceive the courtroom as a geometrically delineated, politically neutral, and linguistically transparent space designed for a fair and orderly administration of justice. The trial, the most legalistic of all legal acts, is widely regarded as a site of truth and justice elevated above and beyond the expediency of ideology and politics. These conceptions are further underpinned by certain normative understandings of sovereignty, the subject, and politics where sovereignty is conceived as self-instituting and self-limiting; the subject is understood as an autonomous and rational being capable of self-consciousness and self-representation; and politics is posited as the exercise of reason in the public sphere. In this article, I argue that such a normative conceptualization of the criminal trial and the courtroom not only ignores structures of power and privilege that produce inequalities but also forecloses possibilities for transformative judicial praxis. Drawing on the 1969–1970 trial of eight radical activists accused of conspiring to incite a riot at the 1968 Democratic National Convention in Chicago, the article argues for a performative re-conceptualization of sovereignty, the subject, and the law as indeterminate, unpredictable, and open-ended discursive formations. The article demonstrates how the accused, working with and against legal doctrines, norms, and discourses, rethought normative conceptions of sovereignty, law, and subjectivity as contingent power-knowledge constellations that are open, unpredictable, and un-closable.


2021 ◽  
Vol 26 (6) ◽  
pp. 185-204
Author(s):  
Adrianna Niegierewicz-Biernacka

Abstract One of the consequences of the coronavirus pandemic (SARS-CoV–2) in the context of the impact on the Polish criminal trial was the introduction to the Code of Criminal Procedure of a new preventive measure related to the protection of medical personnel, specified in the new editorial unit – Art. 276a of the CCP. This measure was introduced by the Act of March 31, 2020, amending the Act on special solutions related to the prevention, counteraction, and combating of COVID-19, other infectious diseases and the crisis situations caused by them, and some other acts, and is a novelty in the Polish criminal procedure. The purpose of this article is to investigate a new preventive measure defined in Art. 276a of the Code of Criminal Procedure in terms of the legitimacy of its introduction to the Polish Code of Criminal Procedure. Three research problems will be analysed. The first concerns the extent to which the introduction of the new preventive measure under Art. 276a of the Code of Criminal Procedure was necessary in terms of the need to provide special protection to medical personnel in Poland. The second research problem concerns the extent to which the application of the new preventive measure under Art. 276a of the Code of Criminal Procedure corresponds to the assumptions of the Polish legislator and what is the ratio legis of the analysed regulation. The third research problem boils down to the extent to which the amendment to Art. 276a of the Code of Criminal Procedure corresponds to the rules of legislative technique.


2021 ◽  
pp. 118-127
Author(s):  
Andrei Cazacicov ◽  

The application in the national judicial practice of the criminal norm established at art. 284 Penal code encounters some difficulties resulting from the misinterpretation of the corresponding elements and signs of crime composition. The present study aimed to explain in detail and intelligibly the content of the subjective side of the crime of creating or leading a criminal organization, what will be useful from both perspectives: theoretical and practical. The coherent explanation of the content of the subjective side of the crime of creating or leading a criminal organization provides additional possibilities in the qualification process, which can be used contradictory by both participants in the criminal trial: the prosecution and the defense.


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