PLEA BARGAINING DEMOCRÁTICO? DA TORTURA AO DEVIDO PROCESSO INQUISITORIAL NEGOCIAL

O presente trabalho tem o objetivo de analisar a questão da voluntariedade à uma confissão de culpa no processo penal, ponto central na construção doutrinária atual pelo triunfo do plea bargaining pelo mundo. Desse modo, imprescindível reprisar em que ponto a voluntariedade toma lugar de destaque no procedimento penal, de modo a poder ver para além do que se possa tentar regulamentar, e se há, realmente, a possibilidade de existência de uma garantia contra condenações errôneas, ou literalmente esta construção já trabalha com a aceitação de um nível alto (bem alto) de condenações errôneas. Assim, nessa busca pela penalização obscena, utiliza-se da obra “Discurso da servidão voluntária”, no qual La Boétie com maestria expõe sobre esse antinatural desejo de servidão do homem, que parece trazer importantes reflexões desse notável avanço do plea bargaining pelo mundo, sem resistências, e segundo, para desconstruir qualquer perspectiva que o instituto ofereça qualquer sinal de desejo de confissão no processo, mas sim, unicamente a construção sistêmica em maior ou menor grau de coerção em um espaço que deveria aspirar democracia

SOBRE O TRATAMENTO LEGAL DO OFENDIDO NO PROCESSO PENAL: UMA ANÁLISE COMPARATIVA ENTRE O DIREITO BRASILEIRO E O NORTE-AMERICANO

Objetiva-se comparar panoramicamente os direitos e o papel do ofendido no processo penal brasileiro e americano. A metodologia pauta-se em revisão bibliografica e análise comparativa entre os marcos legais e jurisprudenciais. O artigo é dividido em três partes: a compreensão dos marcos normativos em cada país; as formas de intervenção do ofendido no processo penal e os direitos garantidos ao ofendido e os remédios jurídicos para assegurá-los. Conclui-se que o direito norte-americano mostra-se mais aberto à participação direta do ofendido no processo, prevendo as declarações de impacto, o direito de conferência com o promotor e o direito de consulta no âmbito do plea bargaining.; mas quanto à intervenção processual indireta, o direito brasileiro oferece ao ofendido chances mais potentes. Ambos, todavia, imersos em uma racionalidade punitiva e que deve ser diferenciada da alternativa, mais promissora, das práticas restaurativas.

The post-Dayton search for justice: War crimes trials in Bosnia and Herzegovina before competent courts

The armed conflicts in Bosnia and Herzegovina in the period from 1992 to 1995, which ended with the conclusion of the so-called The Dayton Peace Agreement was marked by serious violations of fundamental human rights and freedoms and the commission of horrific war crimes. Prosecution of defendants for these crimes takes place at several levels, ie before: a) the International Criminal Tribunal for the Former Yugoslavia (ICTY), b) domestic courts and c) courts of certain foreign states. The paper analyzes certain indicators related to the prosecution of these crimes, their scope and structure, as well as the ratio of convictions and acquittals for certain war crimes, the scope of application of conventional and summary forms of ending criminal cases and court policy of sanctioning perpetrators. It was learned that by the end of 2020, hundreds of criminal proceedings against approximately a thousand defendants had been completed. Most of the accused were prosecuted before the Court of Bosnia and Herzegovina (Court of B&H), followed by the ICTY, and a slightly smaller number before the courts of the former SFRY and some Western European countries. The research established that before the ICTY, out of the total number of accused for war crimes committed in Bosnia and Herzegovina, as many as 90.2% were convicted of some of these crimes, while the rate of convicted in relation to accused before the Court of B&H was 67.2% , and before the courts in the Republic of Serbia 70.2%. It is interesting that before the ICTY as many as 24.3% of the accused were convicted in summary proceedings on the basis of a plea agreement, while before the Court of B&H 13,3% of the accused were convicted using a plea bargaining as a consensual model for ending criminal cases. So far, 22 people have been convicted of the crime of genocide as the most serious crime before the ICTY, the Court of B&H and German courts, and all convictions related to the activities of the Army of Republika Srpska during the war in Bosnia and Herzegovina. Court of B&H, inherited a relatively mild policy of punishing war crimes. Finally, it was found that certain courts, especially Court of B&H, inherited a relatively mild policy of punishing war crimes.

Behavioral Economics in Plea-Bargain Decision-Making: Beyond the Shadow-of-Trial Model

Legal scholars have long assumed that plea bargains are contracts negotiated between rational actors who adhere to the dictates of the normative shadow-of-trial model. The two key features that rational actors presumably haggle over in the shadow of trial are the criminal charge (and associated sentence) and the probability of trial conviction. The behavioral economics theory of discounting, however, offers a theoretical foundation for testing the shadow-of-trial model. This article summarizes findings from experimental discounting studies in behavioral economics and psychological science – showing that these paradigms can be successfully applied to the plea-bargaining decision context wherein the likelihood of trial is uncertain and delayed, and the plea bargain is relatively certain and immediate. We suggest that the implications of applying discounting to plea bargaining are three-fold: (1) empirical evidence suggests that the shadow-of-trial model is too narrow; (2) the discounting of non-monetary losses may involve slightly different psychological processes than contexts involving monetary outcomes; and (3) probability of conviction and delay until trial constitute situational features that elicit guilty pleas despite a defendant’s factual innocence.

The Plea Bargaining System as a Criminalization Model Under the Law Number 19 Year of 2016 on Electronic Information and Transaction Act and the Dignified Justice

<p>From the perspective of economic analysis of law theory, the increasing number of criminal convictions would indicate that the Indonesian criminal Code and regulations have not been effective in reducing the rate of crimes. By combining a preliminary hearing, hearing of cases through a special route and the application of the principle of bargaining for sentence in the plea bargaining system, a new mechanism may be formulated in the Indonesia criminal justice proceedings. This criminal justice approach employs the dignified justice principle (<em>teori keadilan bermartabat</em>) approach, whereby, the trial of cases using a preliminary hearing as a special route under a sole judge that is intended for an accused who pleads guilty and bargains for a sentence. Accordingly, this research attempts to explore the use of the principles of the plea bargaining system as a criminal justice model under the Law Number 19 year of 2016 on the Electronic Information and Transaction Act (“EIT Act”). Equally important, this research employs the juridical-normative method, statute, case, and conceptual approaches in order to obtain a comprehensive result. </p>

THE PAYMENT FOR AN ORGAN AND THE ADMISSION OF GUILT BY A SOUTH AFRICAN HOSPITAL The State v Netcare Kwa-Zulu Natal (Pty) Ltd – Agreement in terms of section 105A(1) of the Criminal Procedure Act 51 of 1977, Netcare Kwa-Zulu (Pty) Ltd and the State, Commer

As the first of its kind in plea bargaining, a South African private hospital group pleaded guilty on charges of trafficking in human organs. The Commercial Crimes Court of the Kwa-Zulu Regional Court (a Specialised Unit of the National Prosecuting Authority of South Africa) made an order in November 2010 in terms of which Netcare Kwa-Zulu (Pty) Ltd (Netcare) entered into a plea and sentence agreement with the state whereby Netcare pleaded guilty to 109 counts related to charges of illegal kidney transplantoperations. Charged with the St Augustine’s Private Hospital in Durban were the parent company Netcare (Pty) Ltd, its Chief Executive Officer, Richard Friedland, and eight others: four transplant doctors, a nephrologist, two transplant administrative co-ordinators, and a translator. The admission of guilt by the group relates to illegal kidney transplants which took place between June 2001 and November 2003 whereby Israeli patients in need of kidney transplants were brought to South Africa for such transplants to be performed at St Augustine’s Private Hospital. The kidneys were bought from Romanian and Brazilian citizens who were willing to sell their organs.