Criminal Jurisdiction Research Articles

Niemiecka doktryna i judykatura wobec problemu odpowiedzialności karnej „sprawców zza biurek” — uwagi na tle koncepcji „Organisationsherrschaft”

The aim of the paper is to present the concept of Claus Roxin’s Organisationsherrschaft as an alternative to attributing criminal responsibility for crimes committed by Nazi “desk murderers.” This concept arose against the background of criticism, after the trials of Adolf Eichmann and Bohdan Stashynsky, of the particularly low number of convictions in similar cases and the numerous omissions of the entire German justice system. Under West German criminal law, a distinction made between those who order murder and those who commit murder on their own initiative meant that the above-mentioned perpetrators who passed on orders from above could only be found guilty of accessory to murder. The novelty of Roxin’s views, however, consisted in an attempt to combine the previous only individualistic perspective of criminal law with the idea of mass, bureaucratic murders. The traditional system of individual attribution of responsibility, as applied for ordinary criminality characterized by the individual commission of single crimes, must be adapted to the needs of collective responsibility, in which the organization (for example, an administrative structure) as a whole serves as the entity upon which attribution of criminal responsibility is based. The first part of the text discusses the main lines of argumentation presented by the West German jurisprudence in cases concerning high-ranking members of the state power apparatus of the Third Reich. At the same time, efforts were made to emphasize the lack of homogeneity of legal solutions presented in national criminal jurisdiction in West Germany and their unacceptable consequences. The second part is devoted to the basic theoretical assumptions of the doctrine of Organisationsherrschaft and its significance for the perception of the boundary between perpetration and participation in German criminal law. The third part briefly presents the contemporary reception of Roxin’s thought, as well as the main points of his criticism, indicating, however, how important it was to effectively prosecute decision-makers from the power apparatus of the Third Reich.

Recent Developments of International Law Commission Work on Immunity of State Officials from Foreign Criminal Jurisdiction

Immunity is a well bedded concept within international law and mainly within the principle of sovereign equality of states. There are different procedural implications of the concept of immunity – diplomatic and consular privileges and immunities, State jurisdictional immunities and also immunity of State officials from foreign criminal jurisdiction. The Article focuses on the latter one and portrays on recent developments of immunity of State officials from foreign criminal jurisdiction as it is elaborated by the UN International Law Commission (‘ILC’). The author frames (in the introduction) the concept of immunity and especially the immunity of State officials and puts it in a large theoretical structure of international law and in the work of ILC. Then, he focuses his attention on the phenomenon of progressive development of international law (2) and how it is used with respect to the topic considerated by the ILC. He then presents main ILC conclusions regarding limitations and exceptions to immunity of State officials (3) and finally outlines latest development (4) of the ILC work dealing mainly with relationship between foreign criminal jurisdiction and international criminal jurisdiction and other procedural questions.

The ‘Allegiance’ Test: Judicial Legislation and Interpretation of GCIV

Abstract The article critically addresses the ‘allegiance’ test developed by International Criminal Jurisdictions for the determination of protected personal status under the Fourth Geneva Convention. Through a deconstruction of its elements and the methodology employed in its creation, the author shows substantial and methodological flaws that showcase the test as highly questionable example of judicial legislation. The article concludes that, although the test is likely to go into substantial desuetude, its existence as an interpretative tool will persist and thus its flaws and potential dangers must be assessed critically to prevent unrestricted and unfounded judicial legislation. In particular, the article exposes the lack of relation between the concept of allegiance and the so-called ‘allegiance’ test.

Evaluating the Practice of Universal Jurisdiction Through the Concept of Legitimacy

Abstract This article examines the practice of universal criminal jurisdiction with respect to the core international crimes, namely war crimes, genocide, crimes against humanity and torture, while using the concept of legitimacy to analyse the grounds for compliance (viz. the implementation and application) with that principle, or lack thereof, particularly with the unconditional form of universal jurisdiction. The concept of legitimacy has been in the centre of the discourse on the effectiveness of public international law since the end of 1980s, and rests on the assumption that a rule that is perceived as legitimate exerts stronger pull for compliance and is subsequently likely to be exercised more effectively than a rule which is regarded as illegitimate. The added value of the article to the debate on universal jurisdiction lies with its methodical breaking down of legitimacy into three heads: legitimacy of source, legitimacy of process and legitimacy of outcome, which provides new insights and perspectives regarding the much-contested universal jurisdiction practice. The article starts with discussing different approaches to legitimacy and then moves to apply them to the principle of universal jurisdiction as generally practised over the last two decades, using the three-head-taxonomy of legitimacy of source, legitimacy of process and legitimacy of outcome, as well as the typology offered by Thomas Franck of the factors influencing a norm or an institution’s perception as legitimate.

Reflecting on the Genocide Convention in its Eighth Decade

Abstract 9 December 2018 marked the 70th anniversary of the adoption of the Genocide Convention by the United Nations General Assembly. Article 6 of the Convention explicitly grants adjudicatory jurisdiction to the territorial state and to an international penal tribunal. Yet, the textual content of the Article has not prevented other types of extraterritorial jurisdiction from applying to the crime, such as universal criminal jurisdiction. This article analyses the development of universal jurisdiction over the crime of genocide, and proposes that the main advancements occurred as a result of a number of key events in the 20th century. Providing a review of state practice and opinio juris, the article analyses how universal jurisdiction applies to genocide and outlines its scope.

Development of criminal jurisdiction of the European Union

The criminal jurisdictions of the European Community and subsequently the European Union began to develop as subsidiary competencies aimed at protecting economic and industry policies established by the founding treaties. Their development has pointed to the necessity of using forced measures for the preventing abuse and countering criminal activities in the area of the customs union and the common market. This paper presents the gradual transfer of limited criminal jurisdictions from the jurisprudence of the European Court of Justice and communitarian law into the contractual competences of the European Union with an explicit legal basis after the entry into force of the Treaty of Lisbon. Using the teleological method, the method of the content analysis (of the legal norms) and the comparative method the paper emphasizes examples of using criminal jurisdictions within the framework of communitarian law, the delimitation of competencies between the EU and the EC, and the changes made by the Treaty of Lisbon in relation to the EU Treaty of Amsterdam. Amendments to the founding treaties have set the foundations for developing criminal jurisdictions into the supranational criminal law that through its norms would supplement national criminal justice systems in the areas of substantive criminal law and the law of criminal procedure.

Functional Immunity of the Marines on the Enrica Lexie: A Reply To Raffaella Nigro

This article is a short reply to Raffaella Nigro’s assessment of the Arbitral Tribunal award in the Enrica Lexie case. Professor Nigro analyzes the rule of functional immunity of State officials from foreign criminal jurisdiction and argues that it cannot be applied to the two marines, even supposing that military personnel are covered by such a rule. Professor Nigro bases this conclusion on the facts that the marines were stationed on a commercial vessel and were servicing the interests of the private shipowner. In reply, this author reaffirms the existence of a rule of customary international law on functional immunity and argues that military personnel assigned to commercial vessels are carrying out these duties in order to protect Italian interests and contribute to the defeat of piracy. Therefore, the marines on board the Enrica Lexie were (and still remain) under the protection of the rule on immunity from foreign criminal jurisdiction.

The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

The Technology Revolution of The Criminal Jurisdiction Process Without Paper

The technological revolution for the Paperless Criminal Court Process is that in the development of evidence as regulated in the Criminal Procedure Code, it can no longer accommodate developments in information technology; this creates new problems. This problem causes the form of printed media to be shifted to digital media (paperless). This shift makes a significant change in crime using computers because evidence of a crime that will lead to a criminal event is in electronic data. Either on the computer itself (hard disk/floppy disc) or printed out or in another form in the form of a trace (path) of a computer user activity. The judge is not related to the correctness of conformity embodied on the instructions as evidence because electronic evidence cannot stand alone to prove the defendant's guilt. Therefore, it needs to be supported by other evidence.

Human Rights and Space: Reflections on the Implications of Human Activity in Outer Space on Human Rights Law

What are the implications of human activity in outer space for international human rights law? In this article, we reflect on these questions with a view to advancing dialogue on the intersection between space law and human rights. We do so by considering the impact of extra-terrestrial human activities such as access to space and remote-sensing activities, space debris, space mining, the weaponisation and militarization of space, and the assertion of criminal jurisdiction extra-terrestrially. Ultimately, we conclude that human activity in space has significant consequences for the advancement of human rights. While, in our view, existing legal frameworks on international human rights law apply extra-terrestrially, there is still scope for specialist frameworks guarding human rights law in the context of human activity in outer space. 
 "To confine our attention to terrestrial matters would be to limit the human spirit." 
 ~ Stephen Hawking, Astrophysicist 
 "Space is for everybody. It's not just for a few people in science or math, or for a select group of astronauts. That's our new frontier out there, and it's everybody's business to know about space." 
 ~ Christa McAuliffe, Teacher and Challenger Astronaut

Experiences of the Hungarian criminal jurisdiction concerning the illicit trafficking of cultural properties

PurposeThe special purpose of this research was to identify the current features of illicit trade of cultural properties in Hungary and the procedures dealing with it. These offences pose a significant risk of damage to cultural property and have a strong link with organised crime. This relationship underlines the need for a criminal law approach worldwide in the field of the protection of cultural goods.Design/methodology/approachTo explore the current situation in Hungary, an empirical research was conducted in 2018 with questionnaires designed to obtain data from the criminal records. To examine the phenomenon of “illicit trafficking”, the following types of crimes against cultural goods were selected: theft, dealing in stolen goods, robbery, budget fraud and criminal offences with protected cultural goods.FindingsAs a summary, it has to be stated that even though the number of the criminal procedure of these crimes in Hungary is low, it cannot be concluded that illicit trafficking of cultural goods in Hungary occurs only rarely. A specific characteristic of the phenomenon is high latency. To examine this phenomenon, the author has drawn up a list of indicators.Practical implicationsThe aim of this project is to provide background information and materials for training programs. It is necessary to develop a more comprehensive understanding of the problem. The role of the experts is outstanding in these cases; the clear definition of their tasks and competence is very important. Information to all “actors of this scene” (from the collector to the art dealers) can contribute to the prevention too.Originality/valueThis study presents the characteristics of the criminal procedures and the difficulties of both the detection and the evidentiary process to provide educational material for training. The author would like to raise awareness about the problem and draw attention to the need for unified legal practice.

Practices and perspectives regarding medico-legal reports in day-to-day cases in tertiary Australian child protection units.

This study aimed to (i) summarise the workforce and (ii) identify how medico-legal opinion is communicated to the child protection and criminal courts within the day-to-day work of child protection paediatricians in tertiary child protection services. A survey of medical directors and child protection paediatricians working within tertiary child protection units within Australasia was conducted. Directors from 5 out of 11 centres, and 18 paediatricians who work in these units responded. Most were female (89%) and experience varied, including many (62%) who had studied forensic medicine (Monash University). Just over half (56%) usually/always provided an interim report to the child protection system before a child is discharged and 59% had those reports peer-reviewed. Two-thirds (61%) had varied reports for the child protection agency initially with reports finalised later for the criminal jurisdiction. Considerable variation in how opinion is communicated to the child protection system and later to police was identified. There were significant differences in staffing ratios between tertiary units which likely influences how this work is done in day-to-day cases evaluated by child protection paediatricians within their hospital due to volume of cases and demand. Peer review of opinion communicated to the child protection agency is not always undertaken and reports for the criminal jurisdiction do not always include review of evidence which may be identified after a child has been discharged from hospital. This survey captures how forensic practices and principles are embedded into child protection and exposes some challenges in being responsive to both the child protection and criminal justice systems.

A new criminal jurisdiction to combat cross-border money laundering

PurposeThe purpose of this study is to analyze the emergence of the changing face of criminal jurisdiction in dealing with cross-border money laundering that develops dynamically due to the development of globalization.Design/methodology/approachThis research was a doctrinal legal research using conceptual approach concerning the very strict principle of territorial jurisdiction in criminal law. This study also used case approach related to the application of extraterritorial jurisdiction and long-arm jurisdiction in some cross-border money laundering cases. The collection of legal materials was carried out through literature as well as case study and was analyzed qualitatively based on data reduction, presentation and concluding.FindingsThis study revealed that territorial jurisdiction which was originally strictly enforced by state sovereignty over crimes that occurred in its territory then changed widely with multi-territorial perspective. Because of its condition, the state then expands its authority to deal with money laundering as a cross-border crime involving more than one territorial state, namely, by using extraterritorial jurisdiction and then developed into a long-arm jurisdiction trend that allows state authorities to prosecute foreigners outside its state boundaries.Originality/valueThe research finding can be used as one of the alternatives by countries to break the territorial jurisdiction in combating the cross-border money laundering.

Types of international judicial institutions and their role in ensuring the right to judicial protection

The article is devoted to the study of the types of international judicial institutions and their role in ensuring theright to judicial protection. It is noted that the Manila Declaration provides for a judicial settlement of disputes andarbitration. The International Court of Justice is the principal judicial organ of the United Nations. The InternationalCriminal Court is the permanent body with jurisdiction over persons responsible for particularly serious crimes, inaddition to national criminal jurisdictions. The Inter-American Court of Human Rights is an independent, conven-tional body whose function is to protect human rights in the states of North and South America. The Arab Court ofHuman Rights has not yet begun its work, although the Court’s mandate allows States parties to lodge complaints.The African Court of Human and Peoples’ Rights is an independent body whose purpose is to protect human rightsin African countries. The jurisdiction of the European Court of Human Rights extends to all matters of interpretationand application of the Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols.The Court of Justice of the European Union interprets EU law and provides for the settlement of disputes by the EU’snational government-institutions. It is emphasized that regional judicial institutions are designed to protect the rightsand freedoms of man and citizen. They are part of a subsidiary human rights protection mechanism that can be applied once all national remedies have been exhausted. Recourse to the International Court of Justice or arbitration isnot an unfriendly act in relations between states, but on the contrary indicates the use of peaceful means of dispute settlement. Unlike other international courts, only international criminal tribunals can be joined in a single proceeding.

Karakteristik Tindak Pidana dalam Statuta ICC dan Dampak Pembentukan Pengadilan Pidana Internasional (ICC) terhadap Perkembangan Hukum Pidana

International community has emphasized their commitment to combat “the most serious crime of the concerns to the international regarding the nature and the characteristic of such crimes that are often misunderstood amongst the professionals in Indonesian criminal law. Those differences lead to subsequent conquences on state’s criminal jurisdiction, particularly after considering the trans-boundary nature of such crime. The establishment of the International Criminal Court has created a new legal institution in international criminal law. It has reflected a significant change of criminal law that have been recognized since the 18th century.

Obligation to Keep Confidential Notary Position in Criminal Jurisdiction Process Forgiven Rights & Refuse Obligations

A notary occasionally receives false information from some parties, and then it becomes the basis of the making of authentic Notarial Deed. Notary criminal liability on the Notarial Deed based on false information should be analyzed and examined as well as its legal impacts. Based on the result of this research, it can be identified that a notary cannot be asked for his or her criminal liability related to the making of Notarial Deed based on false information from certain parties, and it cannot fulfill the formulation of counterfeiting criminal act in article 266 paragraph (1) jo. article 55 paragraph (1) of the Criminal Code. A notary can be asked for his or her criminal liability related to his or her Notarial Deed he or she made based on what he or she has seen, witnessed, or experienced in committing a criminal act on purpose, or Negligence; a notary makes a false Notarial Deed and he or she inflicts other parties. Referring to a criminal liability, a notary should fulfill the following elements; a criminal act, ability to be responsible for, committing an act on purpose or absence, and there is no reason for apology. A notary Notarial Deed based on false information does not automatically make the document itself invalid. The party who is inflicted by this document can propose a civil action to the Court of Justice in order to cancel the document. A notary criminal liability should be regulated in the next Notary Authority Act (UUJN).

Obligation to Keep Confidential Notary Position in Criminal Jurisdiction Process Forgiven Rights & Refuse Obligations

A notary occasionally receives false information from some parties, and then it becomes the basis of the making of authentic Notarial Deed. Notary criminal liability on the Notarial Deed based on false information should be analyzed and examined as well as its legal impacts. Based on the result of this research, it can be identified that a notary cannot be asked for his or her criminal liability related to the making of Notarial Deed based on false information from certain parties, and it cannot fulfill the formulation of counterfeiting criminal act in article 266 paragraph (1) jo. article 55 paragraph (1) of the Criminal Code. A notary can be asked for his or her criminal liability related to his or her Notarial Deed he or she made based on what he or she has seen, witnessed, or experienced in committing a criminal act on purpose, or Negligence; a notary makes a false Notarial Deed and he or she inflicts other parties. Referring to a criminal liability, a notary should fulfill the following elements; a criminal act, ability to be responsible for, committing an act on purpose or absence, and there is no reason for apology. A notary Notarial Deed based on false information does not automatically make the document itself invalid. The party who is inflicted by this document can propose a civil action to the Court of Justice in order to cancel the document. A notary criminal liability should be regulated in the next Notary Authority Act (UUJN).

Assessment of competency to stand a trial and the use of remote information and communication techniques in the argentine Justice

The COVID-19 has changed the way of working of forensic doctors, and the use of Information and Communication Technologies (ICTs) has gained relevance. But its implementation, for psychiatric-forensic evaluations, should comply with standards endorsed by the scientific community. Psycho-legal instruments are necessary in order to determine the procedural capacity of an accused person to stand trial. In the Justice of the Autonomous City of Buenos Aires (CABA), virtual proceedings are carried out, as the National Government decreed the obligatory social lockdown. In the case of the criminal jurisdiction, web platforms and electronic notifications are used for the processing of legal cases. However, in the practice of forensic medicine, there are difficulties in the use of ICTs to determine a person's capacity for criminal prosecution.

The Criminal Jurisdiction and Applicable Law concerning the Fu Yuan Yu Leng 999 Case

Abstract On 13 August 2017, a Chinese-flagged carrier vessel, Fu Yuan Yu Leng 999, entered the Galapagos Marine Reserve (gmr) without giving appropriate notice, on the captain’s explanation that he entered the area to shelter the vessel from strong winds. Ecuadorian naval aircraft and a coastguard ship began to pursue the vessel from the internal waters and it was intercepted within the territorial sea. This area belongs to the new marine sanctuary of the gmr, where high levels of protection are implemented, and all fishing activities are prohibited. This incident reflects that, as the world’s largest distant-water fisheries (dwf) nation, much more needs to be done by China to crack down on illegal, unreported and unregulated (iuu) fishing and to promote the orderly development of dwf.

DOCTRINAL ASPECTS OF OPTIMIZATION OF ADMINISTRATIVE PROCEEDINGS OF UKRAINE

The article is dedicated to the problems of optimization of administrative court system of Ukraine in connection with the ongoing reform of the courts. The available arguments for and against reforming the acting model of administrative justice of Ukraine are discussed. It has been clarified that the system of administrative courts in force has been specially approved for the adoption of Ukrainian society. The results of the statistical analysis show how it can successfully cope with deliveries to its arrogance. Indicate that you must reinsert the court system and recapture the administrative courts with the common courts. At the same time, with healthy administrative conviction, there are a few significant problems, among them we can call access to administrative justice and delimitation of administrative court jurisdiction from commercial and common courts jurisdictions. A closer look at the problems that need to be solved will require a farther and more thorough amendments to optimize the administrative courts activity. It has been concluded that the model of administrative justice in Ukraine since 2005 in the form of a separate subsystem of administrative courts of both the first and second links fully meets European standards and ensures the implementation of the rule of law, protection of rights and legitimate interests of individuals and legal entities, judicial control over legality and decisions of public authorities and their officials. There are no good grounds for its change (merger with courts of civil and criminal jurisdiction). Such reform will do more harm than good, negatively affect the quality of justice, the professional level of the judiciary. Prospects for further reform of administrative proceedings in Ukraine are in the area of introduction of modern mediation procedures, electronic proceedings, improvement of control over the legality of court decisions by higher courts (especially the Supreme Court of Ukraine), optimization of the burden on judges by establishing rational norms of their activity, depending on the number of cases received by the courts, the development and implementation of more effective mechanisms for the selection, training, retraining and accountability of judges.