Criminal Jurisdiction Research Articles

Действие юрисдикции, возникшей в результате текстуальных актов, в киберпространстве

In this paper I further develop a philosophy of technology for law and the rule of law, more specifi cally for the role of territorial jurisdiction in the protection against crime and against arbitrary use of the ius puniendi. In the face of the code- and data-driven nature of cyberspace I will discuss modern positive law as based on a text-driven jurisdiction and the main argument of the paper is that we cannot take for granted that the kind of legal protection that is offered by a text-driven criminal jurisdiction will hold in the context of cyberspatial challenges. In the fi rst section, I investigate how modern positive law-as-we-know-it was triggered by the technologies of cartography and the printing press, arguing that both modern democracy and the rule of law are affordances of these technologies, as they enabled the rise of an exclusive, monopolistic territorial jurisdiction. In the second section, I explore the scope of written legal speech acts, integrating speech act theory and philosophy of technology, explaining how the substantive and procedural principles of criminal law legality depend on the performative effect of written legal speech acts, highlighting their connection with the rise of territorial jurisdiction and the creation of an artifi cial, modern demos. In the third section, I discuss the new challenges of competing territorial jurisdictions that claim legal powers outside their territory, coupled by the challenges posed by new types of ‘brute jurisdictions’ that are based on the force of technological infrastructures that may overrule the performative effect of written legal speech acts. In the conclusions I call for keen attention to which affordances of cartography and the printing press we need to preserve in cyberspace to uphold criminal law principles such as the presumption of innocence, the right to a fair trial and the legality principle, taking note that preservation will require reinvention and imagination rather than taking for granted the mode of existence of text-driven jurisdiction.

MCGIRT V. OKLAHOMA: ENFORCING INDIAN TREATIES AND COLLECTIVE TITLES TO INDIAN LANDS

One of the most important modern United States’ Supreme Court cases involving indigenous politics centers on the problem of defining criminal jurisdiction. The Supreme Court’s decision in McGirt v Oklahoma advanced the principle that both U.S. state and federal governments must abide by longstanding treaty agreements with tribal nations, strengthening —tangentially— the collective titles to Indian lands. If an Indian reservation is to be suppressed, it must come via an explicit act of Congress, not the will of state or local governments. The immediate consequences of this decision are a renewed sense of legal duty toward treaty obligations for the United States and the reinvigoration of Muscogee (Creek) Nation jurisdiction over tribal lands, including over non-indigenous people. In the long run, this case stands to open doors for other tribal nations to challenge state absorption of tribal jurisdictions.

The Referral of the Situation in Venezuela to the International Criminal Court: The Office of the Prosecutor Should Not Step In… Yet

Abstract On 26 September 2018, six American States Parties to the Rome Statute referred the Situation in Venezuela to the Office of the Prosecutor (‘OTP’) of the International Criminal Court, regarding crimes against humanity. Those States rested on Article 14 of the Rome Statute to proceed. That referral – namely, crimes committed outside the territory of the referring State(s) – was the second of its kind received by the icc in its more than 15-year working history. The otp is currently considering the referral under the so-called ‘Preliminary Examination’ stage, wherein the admissibility test is likely to be addressed within the complementarity principle, according to Article 17 of the Rome Statute. Despite the duty to exercise their criminal jurisdiction, as the Preamble to the Rome Statue stipulates, and the fact that those six American States recognize some sort of extraterritorial jurisdiction, those States remained inactive. What should the otp do when six democracies, who are able to act, do not even try to launch an investigation for crimes they have expressed concerns about, without providing an explanation for their inactivity? This article will analyse how the otp should deal with this referral in terms of the complementarity principle, having regard to the positive approach to complementarity. Accordingly, it will be argued that the Prosecutor should refrain from intervening until those States attempt to act and/or, in case of legal or factual inability, justify the referral.

Requirements for paying attention and effectiveness to foreign criminal laws and sentences in the national territory: Developments, obstacles and solutions

The comprehensive application of the principle of sovereignty of territories in the territory by the instrument of criminal jurisdiction, despite the justifications for it, has changed, so that the effectiveness of foreign laws and rulings in recent years in the light of human rights concepts and fair trial standards have been adjusted. Many countries have relinquished their sovereignty by anticipating examples of foreign law enforcement and have preferred the interests of the accused. The impact of our country's criminal law on this process has gone through various stages, from absolute silence to It has a logical effectiveness and absolute denial and finally a slow move towards international standards in its record. The conditions of the appointed judge, the rule of denying the mustache and some unreasonable precautions of the legislator in this regard can be seen as an obstacle to the evolution of our country's criminal law to expand the spatial context. Keyword: Foreign Judgments, Effectiveness, Foreign Criminal Law

Tribal Pardons: A Comparative Survey

This paper surveys American Indian tribal justice systems to assess whether collateral consequences attach to convictions and whether a pardon or expungement process exists to remove tribal convictions. Tribal criminal jurisdiction is often limited to lesser crimes and only those occurring on a reservation by members of the tribe; with exceptions, other cases are transferred to U.S. state or federal court. The framework of the tribal pardon power varies widely across jurisdictions: it may be exercised by a tribal executive, a tribal legislature or council, a specially appointed pardons board or committee, a vote of the tribal membership, or some combination of the above. Some jurisdictions instead have a traditional peacemaking, forgiveness, or reconciliation ritual process in lieu of a true pardon or expungement process. Many Indian tribes impose collateral consequences for convictions both in tribal court and in state or federal court. Most commonly, these consequences restrict tribal membership and rights, including the right to vote in tribal elections or hold tribal office, but they may extend to housing, gaming licenses, tribal employment, and other areas. Many tribal jurisdictions do not have a pardon or expungement process, despite having collateral consequences attach to convictions. Several tribal courts have considered whether their tribal constitutions create an implied pardon power where one is not specifically provided for in tribal law. As a normative matter, this paper takes the position that tribal jurisdictions should have a pardon or expungement process (or its equivalent in indigenous law) where collateral consequences attach to conviction.

Reconstruction of the Diversion Concept in a Child Criminal Jurisdiction System Based on Dignified Justice

The renewal of the orientation of punishment for children in conflict with the law from a retributive justice approach to restorative justice is a good start for efforts to restore a victim-oriented situation by giving the perpetrator the opportunity to express his regret to the victim with the concept of diversion. However, not all cases of children are entitled to diversion. In accordance with Article 7 paragraph (2) of the SPPA Law, the requirement for diversion is a criminal act punishable by imprisonment of under 7 (seven) years and not a repetition of a criminal act. Meanwhile, criminal acts that are punishable by more than 7 (seven) years and repetition of criminal acts are not entitled to diversion. The concept of diversion and the terms of diversion are interpreted very narrowly so that they do not reflect dignified justice. The law cannot only regulate legal certainty. The law must provide a sense of justice with dignity and justice that humanize humans. This writing aims to determine the concept of diversion of the juvenile criminal justice system based on dignified justice. The type of research used is literature, the nature of this research is descriptive, the results of the research are the reconstruction of the concept of diversion based on dignified justice must be reconstructed by expanding the concept of diversion so that every child without exception has the right to get diversion.

Family violence experts in the criminal court: the need to fill the void

This paper describes the role of family violence expert evidence and argues for the need for adequately trained and experienced specialists to provide that evidence within the criminal jurisdiction of the District Court and High Court in Aotearoa New Zealand. Court processes for the criminal jurisdiction were reviewed to consider the roles and the requirements of expert witnesses in cases of family violence. Given the lack of expert witness training in Aotearoa New Zealand, components of best practice in other jurisdictions, including examples of international expert witness skills and knowledge were sought. Unique skills and experience are necessary for an accurate description of a history of family violence. Experience working with survivors and offenders provides an understanding of the nature and dynamics of violence experienced within a relationship and allows experts to address myths and misconceptions, particularly in relation to the effective nature of the current family violence safety system. Without a contemporary, comprehensive understanding of family violence across police prosecution, judges and lawyers, expert evidence from trained and experienced specialists is required. To enhance the educative role of family violence expert evidence, such evidence should be called by the Court.

TRANSMİLLİ CİNAYƏT TÖRƏTMİŞ ŞƏXSLƏRİN AXTARIŞI VƏ MÜHAKİMƏSİNDƏ EKSTRADİSİYANIN ROLU VƏ ƏHƏMİYYƏTİ

One of the most important forms of cooperation used by states in the fight against transnational crime is the extradition of criminals. The extradition of offenders is the restoration of social justice in society, the acquisition of a deserved punishment, regardless of the whereabouts of the perpetrator, as well as the implementation of state functions aimed at the execution of the sentence imposed on him. On the other hand, the main purpose of extradition should not result in human rights violations, nor should it restrict people's right to life, liberty, and a fair trial. These criteria are enshrined in the 2000 UN Convention against Transnational Organized Crime. Key words: transnational crimes, mutual legal assistance, Criminal Code, Criminal Procedure Code, state sovereignty, responsibility of legal entities, international law, international criminal law, criminal jurisdiction

BEYNƏLXALQ CİNAYƏT MƏHKƏMƏSİNİN İLKİN İCRAAT ŞÖBƏSİNİN FUNKSİYALARI VƏ SƏLAHİYYƏTLƏRİ

The Preliminary Division is a court unit that has important functions and powers within the structural links of the International Criminal Court and provides a link between criminal investigation, prosecution and trial procedures. In fact, this Department filters out whether the criminal act that took place during the period before the criminal case reached the Judicial Department falls within the jurisdiction of the Court, and such important nuances, and transfers the so-called "finished product" to the Judicial Department. The BCM stage of the proceedings has a very important role to play in the termination of the proceedings and in the issuance of the relevant decision (sentence). This stage involves an inseparable process, with the Prosecutor referring the case to the Preliminary Chamber, referring it to the Court of Appeals, and finally appealing to the Chamber of Appeals against the decisions and proceedings of those chambers. Key words: International Criminal Court, Rome Statute, international crime, state sovereignty, criminal law jurisdiction, principles of criminal procedure, international criminal law

POPULATION CRITERIA AND BUDGETARY DETERRANT: DETERMINING FACTORS IN THE QUALITY OF THE SPANISH CRIMINAL JUSTICE SYSTEM

What is the quality of justice? As Melcarne and Ramello (2019) have recently pointed out, there is no clear interaction between quality and quantity in understanding or measuring judicial performance. However, the lack of human resources is often blamed for delays in the delivery of decisions (quantity) in most judicial systems - and could in fact mean a violation of the principle of due process. However, the study shows how difficult it is to assess quality, since even quantity (in fact calculable) cannot always be a trustful variable to measure it. In Spain, it is possible to assume that penal judges work more or less the same. Yet, not all judgments have the same quality. The problem is in the District Courts (some of insufficient size) with provincial criminal jurisdiction. They constantly run the risk - and do so - of breaching the principle of judicial impartiality. This does not happen in the Spanish Supreme Court or in the large District Courts. It is a problem in the judicial performance of justice and in the Administration of Justice. Yet, there are no budgetary or even regulatory stimuli to resolve this situation. A situation that implies a breach of the principles of due process and therefore of the fundamental rights of the accused.

BEYNƏLXALQ CİNAYƏT MƏHKƏMƏSİ KOMPLEMENTAR ƏSASDA FƏALİYYƏT GÖSTƏRƏN BEYNƏLXALQ MƏHKƏMƏ ORQANI KİMİ

The functioning of the International Criminal Court is carried out on the basis of the principle of complementarity. Thus, in the Preamble and Article 1 of the Rome Statute of the International Criminal Court explicitly states that “the International Criminal Court….complements the national criminal justice authorities”. The principle of complementarity is revealed in Art. 17-20 of the Statute. This article discusses the algorithm and the criteria for evaluating the performance of the complementarity based on the analysis of the Rome Statute of the International Criminal Court (Statute), the Rules of Procedure and Evidence (2000), the Policy Paper on Case Selection and Prioritisations of 2016, the Policy Paper Preliminary Examinations of 2013. Key words: International Criminal Court, principle of complementarity, Rome Statute, international crime, state sovereignty, criminal law jurisdiction, international criminal law, principles of criminal procedure

Evidence System of Counting Elements of State Loss Against Corruption Criminal Actions in Indonesian Criminal Jurisdiction System

This study seeks to answer the problem of what is the legal problem in the process of proving the calculation of elements of the State Financial Loss on Corruption? And what is the solution to legal problems in Evidence of Calculation of Elements of State Financial Losses on Corruption in the Criminal Justice System? Research for is normative research. Based on the research, it can be concluded that the problems of the legal system are related to the substance of the law in law enforcement on corruption which is detrimental to state finances and problems in the legal system related to the legal structure in law enforcement in criminal acts of corruption that are detrimental to state finances.

Restorative Justice in Children's Criminal Jurisdiction System through Diversion

Diversion is a constructive effort to rebuild social relations that have been damaged by criminal acts, basically diversion has relevance to the purpose of punishment for children. The formulation of the problem is 1) How is the implementation of restorative justice in the Juvenile Criminal Justice System through diversion at the Semarang City District Attorney, 2) What are the obstacles in the implementation of restorative justice in the Juvenile Criminal Justice System through diversion at the Semarang City District Attorney. The method used is juridical empirical. The results of this study are: 1) This is due to the need for time to adjust to the new regulations in effect, in order to meet the completeness of supporting infrastructure and equitable distribution of trained and reliable human resources in every judicial institution in various regions throughout Indonesia, especially those dealing with child crimes. 2) The child protection system is not working in every case of children who are in conflict with the law

Development of Unconstitutional Change of Government under the Malabo Protocol – From Prohibition to Over-Criminalisation?

Abstract Post-colonial Africa has been caught in military coups and civil wars. Incumbent leaders have refused to step down and hand over power post-elections or amended the constitution to not get voted out of power. In this context, three main challenges to democracy in Africa are military coups, lack of free and fair elections and illegal constitutional amendments to entrench de facto monarchy. To combat this, the Malabo Protocol, which introduces criminal jurisdiction of the African Court of Justice and Human Rights, criminalises unconstitutional change of government (‘UCG’). The article outlines the progression of UCG from a violation of the democracy and rule of law principles under the African Charter to a prosecutable crime under the Malabo Protocol and analyses the difficulties an actual prosecution will face on account of vague definition, lack of international recognition and the major roadblock due to Heads of State immunity under the Protocol.

Restructuring the Termination of Prosecution in the Criminal Jurisdiction System of Indonesia

Restructuring the Termination of Prosecution in the Criminal Jurisdiction System of Indonesia

Территориальный юрисдикционный принцип в теоретическом и сравнительно-правовом аспектах

The article considers the concept and scope of the territorial principle of establishing criminal jurisdiction in the form in which it is reflected in the doctrine, documents of the International Law Commission and legislation of Russia and foreign countries. It has been demonstrated that the territorial principle is understood more broadly to cover situations where the crime hasn’t been committed on the territory of one state only. This leads to the development of concepts that are mixed with extraterritorial principles (the doctrine of “effect”). In this regard, various approaches to the content of the territorial principle are proposed, and their practicability and applicability are evaluated.

Rehabilitation and reintegration policies of children victims of criminal action in the Children's Criminal Jurisdiction System

This research examines the harmonization of statutory regulations and the application of law on child victim protection as an achievement of optimal independence for child victims during formal restorative justice and post-recovery. The research objectives and specific targets were (1) formulating the concept of rehabilitation and reintegration of child victims in the juvenile justice system; (2) establishment of SOP (Standard Operational Implementation) for law enforcement officers on the handling of child victims; (3) integrated networking institutions / legal aid institutions and psychological assistance for child victims; and (4) the formulation of juvenile justice teaching, restorative justice, legal and psychological approaches. The method used in this research is through a mix methodological approach between law and psychology with a conceptual approach and a statue approach to analyze the weaknesses of current legislation, such as centralized legal protection for child victims of the fulfillment of restorative judicial evidence (informal), but not yet. Integrated psychosocial and vocational rehabilitation programs for every victims. Apart from that, the child criminal law policy in Indonesia which implements restorative justice is still in the perspective of children in conflict with the law. The concept method of victim rehabilitation is implemented by rehabilitation programs in accordance with the principles of the Convention on the Rights of the Child (KHA).

The Principles and Practices of Case Classification and Counting: Lessons from the Civil and Criminal Jurisdictions of the Jamaican Court System

This study makes a seminal contribution to the evolution of court statistics as one of the first to propose a comprehensive set of case classification categories and associated theoretical and mathematical rules of case counting. The study is based on a three-year mixed-methods analysis into the criminal and civil case processes in the Jamaican court system. From this investigation, it proposes the use of six case status states - active, inactive, reopened, reactivated, pending/pre-judicial filings, and disposed. These classifications can be used to seamlessly organize cases and their constituent matters in a manner that avoids the common problems of miscounting, misclassification, and double counting of cases in many judiciaries around the world. The study further proposes the logic which may be applied in counting and arranging cases and their associated matters into the set of main, mutually exclusive classification categories of active, inactive, disposed, and pending/pre-judicial filings. Taken together, the findings of the study create the basis for court systems to collect and maintain reliable judicial statistics and to therefore make better decisions in planning and policy design and to more effectively marshal scarce resources.

The International Criminal Court versus the African Criminal Court

Abstract In 2014, the Assembly of the African Union amended the Statute of the prospective African Court of Justice and Human Rights (ACJHR) by the adoption of the Malabo Protocol. The Annex to the Protocol confers an extensive international criminal jurisdiction to the ACJHR’s International Criminal Law Section — often referred to as the African Criminal Court — which overlaps with the jurisdiction of the International Criminal Court (ICC). If the Protocol enters into force, the Courts will exercise concurrent jurisdiction over the same matters. Conflicts of jurisdiction would therefore arise should both Courts decide to exercise jurisdiction over the same situation or case. This article advocates for a remodelling of the principle of complementarity, enshrined in Article 17 of the Rome Statute and in Article 46H of the Annex to the Malabo Protocol, to solve these potential conflicts of jurisdiction. The arguments presented herein will be relevant to the relationship between the ICC and any regional criminal court which prosecutes international crimes that would take shape.

A Wealth of Sovereign Choices: Tax Implications of McGirt v. Oklahoma and the Promise of Tribal Economic Development

Justice Neil Gorsuch’s now famous opening line in McGirt v. Oklahoma will long be remembered by Indigenous Nations as one of the most powerful judicial statements in the history of federal Indian law: “On the far end of the Trail of Tears was a promise.” McGirt is a landmark United States Supreme Court decision that rejects Oklahoma’s century-long presumption that no Indian reservations remained in present-day Oklahoma. Acting on that presumption, Oklahoma had long exercised civil and criminal jurisdiction over most of the State, including Indians and non-Indians alike.In reaffirming the reservation boundaries of the Muscogee (Creek) Nation, the Court rejected Oklahoma’s exercise of criminal jurisdiction over a major crime committed by an Indian within Indian country. The implications of the McGirt decision are potentially far-reaching and will likely extend to both criminal and civil jurisdiction of federal, state, local, and tribal governments. The reaffirmed reservations of the similarly situated “Five Tribes” collectively span half of the state of Oklahoma. This article explores one aspect of the potential civil jurisdictional implications of McGirt: the sovereign power of taxation. We include a detailed analysis of what has changed, and what remains the same for purposes of federal, tribal, state, and local taxing authority.McGirt is heralded as ushering in substantial changes for the eastern half of Oklahoma. However, in order for the Five Tribes to fully realize all treaty-based promises, the McGirt decision must lead to more than just increased criminal justice system responsibilities for the federal and tribal governments. The “promise” Justice Gorsuch highlights was not simply an empty promise of geographic boundaries, it also included a permanent homeland with fully functioning tribal governments, including the power of taxation. With the reaffirmation of reservation boundaries and the reassumption of many governmental responsibilities, the Five Tribes must necessarily have the power to raise meaningful revenue to govern. If the Five Tribes and Oklahoma play their collective economic cards right, big change could come in the form of positive economic outcomes. Economists predict, or at least hope for, a post-COVID economic revival for rural communities in America’s heartland. To assist in this economic revival, the Five Tribes’ reservations could serve as laboratories for the formulation of economic development strategies that could serve as blueprints for other parts of rural America. For that to happen in eastern Oklahoma, McGirt will need to live up to its full potential, becoming much more than an overturned criminal conviction from inside Indian country. This article suggests several law and policy choices available to the Five Tribes, including how to maximize tax incentives to grow the reservation population base and support a diverse economy through small business and enterprise scale development. The article includes a call to action for tribal governments to formulate long-term economic strategies that will take advantage of tax attributes that attach to the various reaffirmed reservations. In conclusion, the article suggests possible compact arrangements with other Indigenous nations and with Oklahoma’s state and local governments. If the challenge of sovereignty is accepted, the Five Tribes have an opportunity to reconfirm and expand government powers that have been denied them for over a century, including the power to make the same sovereign tax choices afforded other sovereigns worldwide.