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Abstract: Abstract The concept of presumption of innocence is a fundamental principle of the modern justice system as generally recognised under different jurisdictions across the world. It is essential for respecting and protecting human rights of every citizen during criminal proceedings. It is considered as a basic principle of criminal procedure law, a constitutional right of accused persons, and a universal human right. However, it is fraught with numerous ambiguities and challenges especially regarding its practical application in various jurisdictions. Vietnam is no exception. Although Vietnam incorporates the principle both under its Constitution and the Criminal Procedure Code, yet, there exists incertitude and lack of consistency in its practical application, on account of the peculiarity of the existing political structure and weaknesses in the criminal justice system. The authors attempt to analyse the implications of this principle/right under established jurisprudence at the international level and then scrutinise its status under the Vietnamese law. The article seeks to map the occasions when presumption of innocence is infringed, or violated and subsequently suggests amendment of the Vietnamese law to ensure adequate protection of the principle/right. The article concludes that it is important to hold public authorities accountable for irresponsible actions, especially in matters concerning the life and liberty of people. PubDate: 2022-06-28
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Abstract: Abstract Although victims at the International Criminal Court (ICC) are not parties, they can apply to become “victim participants” and may be authorized by an ICC Chamber to directly and orally express their views and concerns in court. Most ICC Trial Chambers, however, have preferred allowing legal representatives of these victim participants to call victims as witnesses to give testimonial evidence about the harm they suffered. Our article focuses on the practical-epistemological challenges that come with forcing accounts of harm into this testimony-format. We draw upon ethnomethodology and conversation analysis to elucidate the discursive techniques by which legal actors in the Ongwen trial manage these challenges. These include eliciting accounts that “exhibit” suffering, posing questions that transform the “inner self” into an object of inquiry, and approaching witnesses as “informal experts”. Furthermore, while questioning related to establishing criminal liability typically proceeds in a granular fashion, testimony-taking about harm is accompanied by a tolerance for extended answers and an orientation to narrativity. PubDate: 2022-06-11
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Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Abstract In September 2020, President von der Leyen announced the Commission’s intention to propose to extend the list of EU crimes or Eurocrimes to all forms of hate crime and hate speech, as later reflected in the Commission Work Programme 2021. The article first examines the need for such action at EU level, highlighting also certain shortcomings with existing regulation of hate crime and hate speech across the EU. Next, it raises a few additional challenges, relating to the regulation of the freedom of expression in view of the historical experience in some EU countries, the criminal offence element of public order violation or endangerment, and the harm-offence distinction. It then inspects whether specific conditions for EU action under Article 83(1) TFEU can be satisfied by the proposed area(s) of crime, not only from the perspective of a textual legal analysis but also drawing where appropriate on relevant empirical data. While acknowledging the somewhat controversial topic of regulation in the already sensitive field of EU criminal law as well as certain clear political hurdles linked with the procedural aspects of enlarging the EU crimes’ list, it is submitted that the mentioned crimes and their regulation raise legitimate concerns that warrant the proposed legislative action at EU level. PubDate: 2022-05-10 DOI: 10.1007/s10609-022-09440-w
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Abstract: Abstract The State Council of the People’s Republic of China has declared its intention to introduce AI into the Chinese criminal justice system including the imposition of criminal sentences. This plan has, however, raised a range of troubling questions and concerns which include the misinterpretation of court decisions by AI, the incapability of AI to make value judgements, possible biases of algorithms, selectivity of data used by AI, the “black box” character of sentencing by AI, diminished acceptance of AI-supported sentencing systems by the public, uncertain quality of algorithms, etc. The positive effect of AI on the goal of “same case, same sentence” therefore should not be overstated, and an unlimited application of AI must be avoided. Chinese policy makers should therefore use great caution when integrating AI into sentencing. AI should be employed not as a decision-maker but only as an “assistant”, providing information for judges and aiding them in making sentencing decisions. The final determination should in any event remain in the hands of the judges. Moreover, algorithms should be made transparent so that judges can review their operation. A Committee supervised by the Chinese Supreme Court should be established to guarantee the quality of judicial data used by AI and to operate a centralized AI system on sentencing. These measures would contribute to making the best use of judicial data and to introducing a fair, accurate, and efficient sentencing system. PubDate: 2022-04-27 DOI: 10.1007/s10609-022-09437-5
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Abstract: Abstract Sexual offences have assumed crucial importance in Polish criminal policy in recent years. Several statutes have been enacted with a view to implementing a more appropriate penal response to this category of offence. For all their imperfections, the new regulations have the potential to create a rational, equitable and consistent penal response. These regulations prioritise resocialisation and correction. For reasons discussed in this paper, the courts have declined to apply these regulations, instead continuing to hand down their ‘time honoured’ custodial and suspended sentences. There appear to be several reasons for this, including cultural ones: an abhorrence of sex offenders and a fear of such crimes; a willingness to mete out what society regards as justice; a dismissive attitude towards the legislature; and perhaps a tendency, common among public institutions, to fulfil their legal obligations with a minimum of effort. Although there had been no increase in sexual crimes, the Polish Government (without any empirical research) declared that the existing measures were not working and decided (in 2015) that a paradigm shift was in order. This paper briefly discusses these issues and their likely ramifications. The current state of criminological knowledge about sexual crimes and its legislative implications are discussed. Some conclusions from the author’s own empirical research on rape and child sexual abuse sentencing policy are also presented. PubDate: 2022-04-26 DOI: 10.1007/s10609-022-09439-3
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Abstract: Abstract Witness protection in Australia has, to date, been less than successful in implementation and execution. An ad hoc system of Commonwealth and state/territory witness protection programs have co-existed with often substandard outcomes for participants, law enforcement and the criminal justice system. Although in accordance with Australia’s federal system of government, the framework of witness protection that has emerged has resulted in numerous witness protection programs in operation across states and territories with little in the way of consistency, cooperation and coordination. Reform in Australia’s witness protection system is needed to improve and streamline programs for the benefit of witnesses, communities and the criminal justice system. This article addresses shortcomings and draws attention to worthwhile changes that would benefit and enhance domestic witness protection. PubDate: 2022-04-19 DOI: 10.1007/s10609-022-09438-4
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Abstract: Abstract Judicially supervised negotiated settlements have featured heavily of late in discourse on responses to financial crimes committed by corporations. The United States has recently concluded a series of proceeds of kleptocracy settlements with individuals using processes which, from transparency and accountability perspectives, compare favourably to England’s asset recovery practice. This paper seeks to foster a conversation on whether the use of negotiated responses could or should be extended to arrangements with natural persons who are suspected of laundering the proceeds of grand corruption in England. It addresses some reservations that arise where negotiated responses to official corruption are employed and seeks to identify principled and practical justifications for the use of settlements instead of public civil recovery proceedings. It also draws on the US and English experiences in entering into settlements with companies for bribery offences in attempting to identify some of the main pitfalls and benefits implicit in utilising negotiated responses to corruption. The paper concludes by tentatively endorsing as an imperfect but pragmatic option the use of settlements as an alternative to existing asset recovery measures for corruptly-acquired assets. PubDate: 2022-04-06 DOI: 10.1007/s10609-022-09436-6
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Abstract: Abstract Prevailing conditions of access to justice and due process in the Singapore courts are criticised through McBarnet’s two-tier lens and Carlen’s dramaturgical understandings of criminal court realities. More than an interest in the structural separation of the Singapore judiciary, the paper interrogates the dualism between the imagined workings of justice and the daily operational experience for users of the Singapore courts. The scene is set to understand ideologies of triviality and irrelevance and their impact on justice service delivery in subordinate courts where legal representation and offender participation are the exception. To speculate on novel influences of triviality and irrelevance through machine-learned automation, an audit of Singapore’s present-day court technologies and its increasingly digitised court processes and format is detailed in the second part. The administrative benefits of digitisation notwithstanding, the paper reasons that digitalisation motivated by convenience, cost-cutting and emergency exigencies presents additional dangers to justice access and due process delivery above those already at play. These further challenges are deciphered through considerations of how justice service delivery is depersonalised and routinised in disruptive digital models. Digitized justice suggests a new ‘two tiers’ duality between physical and virtual frames of service delivery and contestation. The ‘on-line’ screen shifts the theatre from the courtroom to the ‘zoom room’. This exploration of two tiers of justice and theatre of the courtroom re-imagined through digitisation offers the opportunity to appreciate and activate automated decision processes and data management as part of the solution, rather than conceding their exacerbation of the ‘injustice’ posed by this two tiers ideology and courtroom drama exclusionism. PubDate: 2022-02-27 DOI: 10.1007/s10609-022-09431-x
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Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Abstract The importance of digital evidence, especially online content, is continuously increasing due to the proliferation of digital technologies in socio-economic life. However, the legal means of criminal evidence gathering in Polish legislation remain unchanged and do not take into account some contemporary challenges. In various countries, traditional rules of evidence gathering were created in the context of a physical world. These rules may be insufficient to safeguard the forensic soundness of evidence gathering methods. Inadequacies of current procedures may be especially visible in the context of transborder digital evidence gathering from online open sources. This article describes the practical shortcomings of Polish criminal evidence law in the context of digital evidence with particular attention to online open-source materials. Empirical data indicate that existing legal limitations are bypassed in practice to enable evidence collection. This unfortunately often happens at the expense of the forensic soundness of digital evidence. PubDate: 2021-12-29 DOI: 10.1007/s10609-021-09430-4
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Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Abstract Fair labelling is an established principle of criminal justice that scrutinises the way that States use language in labelling criminal defendants and their conduct. I argue that “complete labelling” is a related but separate principle which has not received any explicit attention from commentators. Whereas fair labelling focuses, usually, on the protection of defendant’s rights, the principle of complete labelling explains and justifies whether the labels attached appropriately represent the nature and scale of the wrong done to the community. As a case study, I apply this lens in the context of regional (U.S./Mexican) criminal justice responses to crimes against humanity perpetrated by “drug-cartels” in the context of the Mexican Drug War. Successive administrations in Mexico and the U.S. have tended to charge cartel leaders (and/or their political supporters) with so-called “transnational crimes” (for example, drug-trafficking, money-laundering, bribery/corruption). This is despite the fact that many of the most powerful cartels have controlled territory, attacked entire towns, carried out acts of terror, and disappeared thousands of people. The principle of complete labelling is useful in normative terms because it helps in the critical examination of a State’s prosecutorial practices, exposing problems that might otherwise be missed. In relation to the case study discussed, for example, a focus on complete labelling helps to expose the regional prosecutorial policy as either an unjustified exercise in selectivity or, at worst, an expression of collective denial. After considering certain counteracting reflexions which speak to some of the foundational anxieties of international criminal justice, the article concludes that domestic prosecutions for crimes against humanity in the context of drug-cartels may, sometimes, be justified. PubDate: 2021-12-01 DOI: 10.1007/s10609-021-09426-0
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Abstract: Abstract Academic reviews (hereinafter “reviews”) are an integral part of legal journals. While their purpose and usefulness are at times disputed, all sub-disciplines of legal studies nevertheless argue in equal measure that a lack of substantial academic exchange by way of reviews would result in the impoverishment of scientific discourse. In German criminal law scholarship, two recent cases have sparked debate about whether certain rules should govern the publication of such reviews. The following remarks are intended to provide a thought-provoking impulse on the matter. PubDate: 2021-12-01 DOI: 10.1007/s10609-021-09424-2
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Abstract: Abstract This article aims at promoting a new approach regarding criminal law and crimes that include a provision that relates to pregnancy. We thus try to set a starting point for future debates on the manners in which European countries criminalise offences related to pregnancies. We lay an emphasis on how the criminal legislation might have a considerable impact in discriminating or complicating situations that have not been initially taken into account – e.g., the male pregnancy in humans. The goal of this article is to present the law scholarly society with the incoming problems a pregnant man may face in front of a criminal law court. PubDate: 2021-12-01 DOI: 10.1007/s10609-021-09427-z
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Abstract: Abstract In any state where the rule of law is applied, criminal justice serves to guarantee the efficiency and legitimacy of liability and all legally sanctioned coercive measures. Its purpose is also to eliminate, insofar as is possible, any arbitrariness and dishonesty arising in the course of criminal prosecution. Thus, the rules underpinning criminal law and procedure, formulated precisely, harmonized, and based on the principles of law, are the theoretical basis for the attainment of those objectives. In reality, however, the activity of the legislator in drafting new laws and slowed progress in eliminating outdated and unjustified norms creates a situation where the wording of legal codes gradually loses their systematic and consistent character. In recent years, the phenomenon of over-criminalization and statutory ambiguity has attracted an enormous amount of research interest in criminal science. A number of legal concepts and principles are used to discipline the legislature, and thereby allow the courts to apply the law prudently and with great caution, within the limits of their constitutional powers, and in accordance with local legal traditions. This paper presents those legal principles followed by the Lithuanian courts to ensure the proportionate application of substantive criminal law and special investigative techniques, inter alia secret surveillance, thereby offsetting the impact of poorly drafted laws on human rights. PubDate: 2021-06-30 DOI: 10.1007/s10609-021-09421-5
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