Accused Persons Research Articles

The Everyday Practice of Canadian Criminal Law: The Criminal 'As of Right' Jurisprudence of Justice Louise Charron

From admitting evidence, to evaluating the credibility of witnesses, to delivering jury instructions, to determining fit sentences, trial judges play an important role within the Canadian criminal justice system. Yet their work is often far-removed from decision-making at the Supreme Court of Canada. Through a careful reading of the practical issues that arise in criminal of decisions, this paper reflects on the influence that Justice Louise Charron’s considerable experience as a trial judge had on her approach to appellate review in criminal cases. Criminal as of right decisions, where there has been a dissent in the Court of Appeal on a question of law or where the Court of Appeal has reversed the acquittal of an accused person, provide a window into the everyday practice of Canadian criminal law. Given that they are not controlled by a leave to appeal panel and vetted for their public importance, these are cases that often turn on practical points of law, such as assessing jury instructions or clarifying difficult and complex rules. The goal of this paper is to use this heterogeneous body of cases to explore the extent to which experience as a trial judge may affect decision-making at the Supreme Court and, in the process, to better appreciate the jurisprudential contributions of Charron J, one of the Court’s most prolific writers in this area of law. The paper proceeds in two parts. First, it argues that Charron J’s experience as a trial judge may account for her, at times, deferential approach to the work of trial judges. Second, it argues that her experience as a trial judge helps explain her concern with clarifying difficult and complex rules for trial judges. This paper also calls for further empirical research into the relationship between judicial experience, decision-making, and the daily workings of the Supreme Court of Canada.

States’ Cooperation with the International Criminal Tribunal for Rwanda

Shortly after the 1994 genocide, an international tribunal for Rwanda has been created by the United Nations Security Council in response to grave atrocities committed where more than one million people have perished. Although judicially independent, the ICTR must rely on international cooperation in order to successfully carry out its mandate as it has no organ to enforce its decisions.Cooperation by states or international organizations is vital to the collection of evidence as well as to the detention and transfer of accused persons. This cooperation is also required in the relocation of sensitive witnesses or the enforcement of sentences handed up down by the Tribunal. Whether states are willing to provide the necessary cooperation will largely determine the ability of the Rwanda Tribunal to fulfil its mandate.States’ cooperation with the ICTR is essential if the Tribunal has to operate properly and perform its functions. The legal basis of the obligation imposed to states has two characters, a general character stemming from their being member states of UN and the specific one stemming from the United Nations Security Council Resolution RES/955 (1995) where it states that “all states shall cooperate fully with ICTR and its organs (…)”.Unfortunately, states are still reluctant to fulfil their obligation to cooperate with ICTR. Different reasons are put forward by states to justify their refusal to cooperate. Sovereignty, domestic legislation, national interests or national security, disinterestedness of UNSC, are among others, the main reasons advanced by states.

Keeping up with the Common Law O'Sullivans? The Limits of Comparative Law in the Context of Military Justice Law Reforms

Critics of the Canadian military justice system have recently suggested that Canada should follow developments in military law that have taken place in Ireland, particularly with respect to the expansive procedural rights that are now afforded to accused persons who face summary forms of trial within the Irish system. This article demonstrates that these calls for comparative-based law reform fail to appreciate important differences in the Irish and Canadian environments within which the respective military justice systems operate, specifically through a case study that discusses the distinct international human rights law obligations that bind the two states, and the unique labour climates within the two armed forces. Ultimately, after illustrating how comparative law alone cannot provide a compelling rationale for military justice law reforms in Canada, the article refers to the Irish/Canadian case study in order to argue that knowledge of comparative law is perhaps more useful to responsible scholars in order to deconstruct law reform proposals rather than to generate new law reform ideas.

La vidéo-comparution en Belgique : une solution sans problème

Cet article, à ambition descriptive et analytique, vise à mettre en perspective le processus de création de la vidéo-comparution qui a cours en Belgique et le processus d’institutionnalisation de ce dispositif en France. L’objectif est d’apporter des éléments permettant d’expliquer, du moins en partie, pourquoi les acteurs politiques ne parviennent pas, à introduire ce nouveau mode de comparution dans le code d’instruction criminelle belge. L’absence de ce dispositif de la procédure pénale belge est, en outre, étonnante compte tenu de son introduction, il y a plus de dix ans, en France et de l’élargissement incessant, depuis, de son champ d’application.

Nigeria's Quest to Recover Looted Assets: The Abacha Affair

After a successful transition to democratic rule in 1999, Nigeria launched a high-profile campaign aimed at securing the repatriation of looted public funds being held in foreign banks. This campaign was championed by President Olusegun Obasanjo, a long-standing critic of corrupt military regimes and co-founder of the global anti-corruption NGO Transparency International, throughout his eight-year tenure. By the time Obasanjo left office in May 2007, he had secured the recovery of approximately 2 billion USD in assets and triggered some vital international initiatives against money laundering. However, his efforts were hampered by a combination of local and external obstacles. Externally, the campaign was marked by the absence of sufficient international political will. While at the domestic level, it was undermined by a lack of transparency, the excessive fixation with the Abacha loot, inadequate legal and accounting skills, the uncooperative attitude of accused persons and limited domestic political will. This paper illustrates how these issues have combined to frustrate moves to recover Nigeria's stolen billions sitting in the West.

Pattern of psychiatric morbidity among theft offenders remanded or referred for psychiatric evaluation and factors associated with reoffence

In Singapore, theft and related crimes constitute more than 50% of all reported crime, and are the most common offences committed by accused persons remanded to the Institute of Mental Health (IMH), Singapore. There is a need for better understanding of the forensic psychiatric aspects of such offenders. This study aimed to determine the prevalence of psychiatric disorders among theft offenders remanded or referred for forensic assessment in 2010, compare the differences between first-time and repeat theft offenders, and identify the factors associated with reoffence. Forensic evaluations of inpatient and outpatient theft offenders that were conducted at IMH in the year 2010 were retrieved and reviewed. The sociodemographic and clinical data of first-time and repeat theft offenders were collected and compared using Student's t-test and chi-square test for continuous and categorical variables, respectively. Multivariate regression was used to identify the factors that were predictive of repeat offence. Overall, 10% of offenders had no mental illness. Substance use disorders, mood disorders and psychotic disorders were the most common diagnoses. Psychotic disorders were significantly less common in repeat offenders. Repeat offenders also tended to have a history of conduct problems in childhood. Noncompliance with psychiatric treatment was positively associated with repeat offence, while psychotic disorders were negatively associated. The pattern of psychiatric morbidity among theft offenders in Singapore has changed over the last ten years. Kleptomania remains rare. Significant differences between first-time and repeat offenders have implications on the treatment, follow-up and rehabilitation of theft offenders in Singapore.

Keeping Up with the Common Law O'Sullivans? The Limits of Comparative Law in the Context of Military Justice Law Reforms

Critics of the Canadian military justice system have recently suggested that Canada should follow developments in military law that have taken place in Ireland, particularly with respect to the expansive procedural rights that are now afforded to accused persons who face summary forms of trial within the Irish system. This article will demonstrate that these calls for comparative-based law reform fail to appreciate important differences in the Irish and Canadian environments within which the respective military justice systems operate, specifically through a case study that discusses the distinct international human rights law obligations that bind the two states, and the unique labour climates within the two armed forces. Ultimately, after illustrating how unwise any comparative-based law reforms would be for Canada in light of these differences, the article will refer to the Irish/Canadian case study in order to argue that knowledge of comparative law is now more useful to responsible scholars as a law reform shield than a sword: in an era of significantly improved access to foreign legal materials, the scholarly study of comparative law is needed more in order to critique and deconstruct unprincipled law reform proposals than to generate new law reform ideas.

Re-Establishing Triability by Means of Psychotropic Medication: An Analysis

Competency to stand trial is a concept of jurisprudence, which provides for the postponement of criminal proceedings for those accused persons who are considered to be unable to take part in their defence as a result of a particular mental illness or mental defect. Competency to stand trial is generally a very common field where psychiatric assessment by forensic mental health experts is requested by the courts. It is a basic tenet of our law of criminal procedure that an accused person must be triable. The latter principle is closely related to another fundamental principle of our criminal procedure which entails that the trial of an accused person must take place in the presence of the accused. An accused’s presence during the trial thus comprises of a physical as well as a psychic or psychological element which provides that the accused must have the required mental capacity to understand and follow his or her trial.

The ICC and Complementarity in Practice

AbstractSince the start of its operations 10 years ago, the International Criminal Court has dealt with a number of challenges to the admissibility of cases before it. Some of the challenges were mounted by territorial states that had jurisdiction over the cases. Others were mounted by accused persons. The Court, acting on its own initiative, has, on a number of occasions, also considered issues of the admissibility of cases before it. It has done this, in the main, at the pre-trial stages of proceedings. Some of the cases arose out of state or Security Council referrals. Others arose out of the Prosecutor's initiated investigations. In the course of dealing with these matters the Court has endeavoured to strike a balance between the states’ right to exercise their sovereignty through national proceedings, on the one hand, and the interests of the international community to ensure that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’, on the other. In the process of doing so the Court has also developed some practices and generated an impressive body of jurisprudence, the subject of this article. The jurisprudence evinces the Court's readiness to assume jurisdiction over a case in situations where there is clear inaction on the part of the national authorities. The article, which is a critical exposé of that jurisprudence, endorses this stance as a veritable antidote to impunity for atrocity crimes.

The Right to be Presumed Innocent

The presumption of innocence has often been understood as a doctrine that can be explained primarily by instrumental concerns relating to accurate fact-finding in the criminal trial and that has few if any implications outside the trial itself. In this paper, I argue, in contrast, that in a liberal legal order everyone has a right to be presumed innocent simply in virtue of being a person. Every person has a right not to be subjected to criminal punishment unless and until he or she has done something that is criminally wrong. Since disagreements about allegations of criminal wrongdoing are inevitable, the liberal legal order requires a process for determining whether wrongdoing has occurred. In order to preserve the right not to be punished without wrongdoing, the accused person must be presumed innocent throughout this process. The presumption of innocence is therefore as much a basic human right as, for example, the right to bodily integrity or the right to freedom of expression. Specifications of and limitations on the right should therefore be justified not primarily in terms of their instrumental effectiveness in fact-finding or crime control but in terms of the role of the criminal process in a liberal legal order. I consider some implications of this view of the presumption of innocence for the pre-trial process and for substantive criminal law. I argue that the presumption of innocence, understood as a basic human right, should condition the entire pre-trial process; it has, however, minimal implications for the definition of offences.

Corroboration in Scots Law: “Archaic Rule” or “Invaluable Safeguard”?

In 2010 in Cadder v HM Advocate the Supreme Court held that Article 6 of the European Convention on Human Rights (ECHR) entitles all suspects to consult a solicitor before and during police questioning, as well as to be informed of this right. It immediately caused ripples in the Scottish criminal justice pond which may grow to tidal wave proportions, with some worrying that the decision may even leave criminal suspects worse off than before. Thus the legislation responding to Cadder doubled the existing six hour period of detention allowed for police questioning and empowered the police to apply for a further twelve hours. Potentially more significant are the recommendations of the Carloway Review, commissioned to “review key elements of Scottish criminal law and practice in the light of [Cadder].” A year later it reported on a wide variety of issues, including the law on arrest and detention, custody periods, the giving of legal advice, police questioning, child suspects and other vulnerable witnesses, the general test of evidential sufficiency, “mixed” statements, drawing adverse inferences from reliance on the right to silence, as well as issues relating to appeals. Many of the Report’s recommendations have been received positively, notably those to limit detention to 12 hours, and to retain a robust right to silence. By contrast, a veritable storm of controversy has met its recommendation to abolish the requirement of corroboration on the basis that it is “an archaic rule that has no place in a modern legal system where judges and juries should be free to consider all relevant evidence and to answer the single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled”. Fairly predictably, this was welcomed by Government lawyers and some police organisations who were joined by women’s groups and more tentatively by some academics. But, as Gordon predicted almost twenty years ago, and Lord Carloway expected, the requirement has been “defend[ed] religiously [as] one of the most notable and precious features of Scots criminal law” by lawyers, judges, academic and human rights campaigners, who have questioned whether abolition will in fact save costs and have the predicted positive impact on conviction rates in sexual and domestic violence offences. Instead, they warn that removing such a “cornerstone” of the law will lead to many unintended problems, take years to bed in and, most crucially, threaten civil liberties. Nevertheless, despite the overwhelming view that such a momentous step requires greater consultation and consideration, and a far more convincing case than that provided by Lord Carloway, the Scottish Government declared itself persuaded and, although setting up a consultation process, later announced its intention to introduce a bill to give effect to the Carloway Review including its recommendation to abolish the corroboration requirement. This article seeks to evaluate whether it should have been so easily persuaded by Lord Carloway, and, if not, whether a convincing alternative case for abolition could have been made. We will also consider whether, as the Scottish Government seems now to have accepted, that Lord Carloway was wrong to dismiss the need to replace the requirement with safeguards compensating for the loss of the protection against miscarriages of justice that it supposedly provided. In doing so, we will aim to go beyond the often highly rhetorical and sometimes misleading, unfounded and even illogical arguments seen on both sides of the debate, and, by adopting a multi-disciplinary approach, ground the debate in a more theoretically and empirically informed understanding of the criminal justice process.

The Right to Freedom of Expression and Media Reporting on Criminal Proceedings in Tanzania: Finding the Balance

This paper examines the impact of media reporting to crime and criminal court proceeding in Tanzania in the light of exercising the legitimate right to freedom of expression by the press, on one hand and the accused rights to presumption of innocence and fair trial on the other hand. The purpose of the discussion revolves around the effect of prejudicial crime reporting to the criminal suspects/accused and available remedies within the legal system. It also, looks upon the court practices and the law in dealing with interference with the course of justice. The paper also analyses the rights of the accused person, especially the right of presumption of innocence and fair trial and justification of these rights to suspects; it also dissects the right to freedom of expression/information to the people and the press, its limitations and justifications in an attempt to find the balance between the two competing rights. Furthermore, the paper looks at other countries’ practices in limiting the press from publishing criminal proceedings in whole or part for the interests of justice and fairness of the accused person.

Sexual Offences in Vanuatu under the Light of Custom and Law: “An Avenue for Restorative Justice”

This paper will focus on the Republic of Vanuatu’s society and customs relevant to this topic. I will consider the laws made by the legislature to deal with sexual offences in Vanuatu and how they are being implemented or enforced. I will also discuss the different provisions under the law whereby accused persons have an option to actually compensate the victim of the offence and how it is being used in Vanuatu in relation to sexual offences. This paper will also look at how Vanuatu’s culture influences the prosecution or the sentencing of sexual offences or dealing with such crimes in the first place. This will reveal whether Vanuatu’s customary approaches to sexual offences actually support the state’s laws to punish such offenders and if a more fair and just process is needed where the voices of the offender as well as the victim are heard. Custom usually does not allow the victim to speak, and the victim’s parents and the elders of the community decide how the offender should be dealt with. Neither the formal court process nor the customary reconciliation process seem to take into account the wishes and interests of the victim and the offender. The flaws within the legal system and customary laws in addressing victims’ and offenders’ issues will be examined and an alternative process of restorative justice will be discussed.

Forensic psychiatry in Singapore

Singapore is a geographically small nation-state that has transformed itself from a third-world country to a developed nation after attaining political independence 46 years ago. The pace of change has been tremendous and mental health care is no exception. This paper provides an overview of mental health care and a review of key mental health legislation, including a National Mental Health Blueprint that was rolled out in 2007. On this background, the paper focuses on a description of forensic psychiatric services in Singapore. The role of the Department of Forensic Psychiatry at the Institute of Mental Health, which is the only forensic psychiatry department in the country, will be highlighted. Civil commitment and the treatment of unfit accused persons and insanity acquittees is reviewed. The role of forensic psychiatric assessments in the Singapore courts is examined. The application of the insanity and diminished responsibility defenses are reviewed. A trend is identified in the Singapore courts towards a more rehabilitation-focused sentencing approach and the role that forensic psychiatric assessments play in cases involving mentally disordered offenders is highlighted.

Investigation and Criminal Administration Justice in India: A Study of Legislative and Judicial Trends

Investigation is one of the main and essential parts of Criminal Justice system. An efficient and timey is inevitable. In India due to the inefficient opaque and delayed innocent has to suffer and the culprit gets the benefit of it, either in form of bail or acquittal. Scientific methods of collecting are not used by police in India. Generally they do not record the statement of witnesses and they write their own statement (Section 161 of Cr.P.C.). When investigating officer fails to find sufficient true evidences they try to include false evidences. Investigating officers do not follow the legislative provisions of Cr.P.C. and do not respect the procedure established by law and by using barbaric and torture methods are used to extract information from accused and in many cases from innocent suspicious person. The Code of Criminal Procedure is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April, 1974. Cr.P.C. provides the machinery for the of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty. Section 2(h) defines as under:-Section 2 (h) investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;After receiving the information about any offence the process of starts, Section 154(3) provides about the in cognizable offences as under:-Section 154 Information in cognizable cases.(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.Section 155 (3) explains about the in non-cognizable offences as under: Section 155. Information as to non- cognizable cases and of such cases.(3) Any police officer receiving such order may exercise the same powers in respect of the (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

Children accused of witchcraft in 17th-century Finnmark

This article deals with six children accused of witchcraft in the district of Finnmark, Northern Norway, during a witchcraft panic in 1663. Through a narratological approach, the article presents close-readings of court records, trying to detect the various voices heard in the documents: the voice of the accused person, the voice of the law and the voice of the scribe. The article draws attention to four points discussed within ongoing witchcraft research: the role of the scribe, the individualized character of the children's confessions, oral transference of witchcraft ideas and the speed of transmission of ideas about witchcraft. The analyses show that children confessed to similar demonological elements as adults, similarly seen in other European countries. The contents must be known before the children were brought before the court, as their answers to leading questions were detailed. The voices of the children are individualized, there is no indication that the confessions are constructions made by the scribe. The influence of specific persons had great influence on transference of demonological ideas.

A compromise of rights, rights of language and rights to a language in Eugene Terreblanche’s (ET) trial within a trial: evidence lost in translation

The trial (within a trial) of Eugene Terre'Blanche (hereon referred to as the ET Trial) in a high court, which took place in Ventersdorp in January and February 2010 sparked intense interest in South Africa and abroad, and raised critical questions about issues of (i) language rights, (ii) communicative competence of law enforcement agencies, particularly the police, and (iii) the asymmetries in the police interaction with the accused persons. Apart from communicating the rights of the accused persons in a language that s/he understands, the police officers are entrusted with additional responsibilities which include, among others, being a channel or conduit that encodes and decodes information within milliseconds in an attempt to reconstruct an accused person’s narrative into formal evidence for purposes of court proceedings. This reality is further substantiated by Komter (2002/2003:202) who suggests that, "[...] police officers should record the fact that they informed the suspect about his right to silence and [...] that they record the suspect’s statement as much as possible in his own words". Against this backdrop, it is also worth stating that the South African multilingual setting is confronted by serious complexities, especially in cases where the accused is a speaker of an African language who can only rely on interpreting/translation services in order to follow the legal discourse, whereas languages of record are still solely in English and Afrikaans. Based on an examination and analysis of the judgement of the ET trial within a trial, this study finds that, despite the dawn of democracy, the South African Criminal Justice System is still confronted by linguistic and cultural challenges. Central to these challenges is the potential for miscarriages of justice. Furthermore, the main principles of Critical Sociolinguistic Analysis (CSA) employed in this study have uncovered the fact that power imbalances in the criminal justice system do not necessarily originate through legislation but through situated processes and practices (Eades 2010). As Fairclough appropriately argues, there is a need not just to examine the power in the discourse but also the power behind the discourse (1989).

Overview: Human Rights

The Supreme Court decided 17 cases related to human rights in the 2011-12 legal year. Five of those cases related to Article 6 of the European Convention on Human Rights (ECHR)1 which protects the right to a fair trial. In Gale and another v Serious Organised Crime Agency,2 the appellant's case was that the judge applied the principle of `balance of probabilities' instead of `beyond reasonable doubt' to impute criminal conduct on the appellants and hence, infringed Article 6 of the ECHR. The Supreme Court dismissed the appeal on the ground that confiscation of property could be based on evidence which satisfied the civil standard of proof.3 The Supreme Court further held that the starting point in this case was that the appellants failed to provide a legitimate explanation for possession of such contested property.4 In Ambrose v Harris; HM Advocate v G; HM Advocate v M,5 the Supreme Court observed that the correct starting point when one is considering whether the person's rights under the ECHR have been breached is to identify the moment fromwhich he was charged for the purposes of Article 6(1) of the ECHR.6 The test is whether the situation of the individual was substantially affected. His position would have been substantially affected as soon as the suspicion against him was being seriously investigated and the prosecution case compiled.7 In HM Advocate v P,8 the issue before the Supreme Court was whether the prosecution could rely on evidence obtained from information disclosed during the course of a police interview with an accused person, without the accused person having had access to legal advice. The Supreme Court held that the question of whether such evidence should be admitted has to be answered by

Childhood sexual abuse and the law: More problems than solutions?

Byline: Chittaranjan. Andrade, T. Sathyanarayana Rao The Protection of Children From Sexual Offences Act, 2012 (No. 32 of 2012) was published in the Gazette of India on June 20, 2012, after receiving the assent of the President of India on the previous day. [sup][1] This Act seeks to protect children (defined as those below the age of 18 years) from the offences of sexual assault, sexual harassment, and pornography; and provides for the establishment of special courts for the trial of such offences. The Act extends to the whole of India, except the state of Jammu and Kashmir. The Act lists sexual offences against children to include sexual harassment, sexual assault, aggravated sexual assault, penetrative sexual assault, aggravated penetrative sexual assault, and use of children for pornography. All offences are defined in detail, including variations in possibilities. The Act also addresses attempts to commit a sexual offence, and the abetment of sexual offences against children. Acts of omission are included, as are acts of commission. The punishment prescribed is imprisonment for a variable term, up to a maximum of life imprisonment, depending on the gravity of the offence; for example, the punishment for penetrative sexual assault is a minimum of 7 years and can extend to life imprisonment. Punishments may include a fine, as well as payment of compensation to the child for trauma suffered and for rehabilitation, as necessary. The Act is comprehensive and necessary and brings India closer to standards established in other countries. However, it contains an extraordinary clause (Chapter VII, Clause 29) which indicates that the accused person is guilty unless proven innocent. This is a matter of jurisprudence and will not be considered further in the present article, except to state that it could complicate situations that may arise as described below. There are some ambiguities in the Act, such as the definition and identification of sexual intent with regard to certain offences, which could result in the harassment of innocent individuals; but it is hard to see how these ambiguities could have been avoided without diluting the content of the Act. The real problem for medical professionals in general and mental health professionals, in particular, lies in the provisions for mandatory reporting to the police of anticipated or actual offences under the Act. The mandatory reporting clause overrides the confidentiality of physician-client interactions, and the Act specifically states that no person shall incur civil or criminal liability for providing information in good faith. According to the provisions of the Act, the failure to report childhood sexual abuse will be punished with a fine, or with imprisonment for up to 6 months, or both. One cannot find fault with the Act for requiring the mandatory reporting of serious sexual offences. However, reporting of minor offences could result in a paradoxical situation where the solution is worse than the crime. Consider the situation where, for example, during assessment or therapy, a mental health professional learns from a child client that a male family member has exposed himself before the child, or has touched or attempted to touch the child inappropriately. Before the Act, most professionals would have handled the situation through family sessions, usually with satisfactory resolution of the affair. Under the new dispensation, however, the mandatory involvement of the police would result in the arrest of the sexual offender, and in a long drawn out criminal case. This, in turn, would trigger complications that could compromise the earning capacity of the family if the offender is an earning member, induce guilt in the victim, provoke resentment in the family against the victim, and split the family apart if sides are taken; all of which are serious matters that can have long-lasting repercussions. …

Probleminiai nekaltumo prezumpcijos aspektai įrodinėjant jauno pilnamečio nepakankamą socialinę brandą

The article analyses the context regarding the presumption of sufficient social maturity regulated by the norms of criminal procedure.Legal norms foresee the possibility to apply the peculiarities of juvenile criminal responsibility to young adults (18-20 years), when their social maturity is equal to juvenile’s maturity. However, the researches conducted by the author of the article as well as the Law Institute revealed the fact that the provisions of the criminal law, which are considered to be modern and highly evaluated by the scientists, are rarely applied in practice. Moreover, the accused person and (or) his counsel for the defence avail themselves of a duty to deny the presumption of sufficient social maturity. Taking into consideration the principle of presumption of innocence and the rule regarding sharing of burden of proof, the author of the article drew a conclusion that the present denial mechanism of sufficient social maturity does not only contradict to the presumption of innocence, but also is not in compliance with the purposes and requirements established for the juveniles in the criminal procedure.The article tries to show that the issue regarding sufficient social maturity should be examined in the pre-trial investigation, but not in the trial itself. In such a case, some goals are possible to be achieved. Firstly, the legal interests and rights of a young adult participating in the criminal procedure could be more secured. Secondly, the principles of comprehensibility and economy of the criminal procedure could be implemented.