Criminal Law Scholarship Research Articles

Zmiana trybu ścigania sprawcy przestępstwa zgwałcenia – analiza teoretyczna

This article discusses the problems relating to change of the manner of prosecuting perpetrators of rape. By the Act of 13 June 2013 on Amendments to the Act – Criminal Code and the Act – Code of Criminal Procedure the legislator changed the manner in which rape is prosecuted: the offence is no longer prosecuted upon the victim’s motion, but by a state prosecutor ex officio. The article presents the reasons for the introduction of the change in question, as well as the views of Polish criminal law scholars on the issue. There is also an indication of amendments in the provisions relating to the manner of interviewing the victims of rape that were introduced by the amending act in point.

High Court Constitutional Challenges to Criminal Law and Procedure Legislation in Australia

Scholars of criminal law and criminalisation have paid insufficient attention to the use of constitutional challenges in the courts as a strategy for influencing the nature and scope of criminal laws in Australia. This article makes a contribution to filling this gap by analysing 59 High Court of Australia decisions handed down between 1996 and 2016. Our analysis highlights the sorts of criminal laws that have been the subject of constitutional scrutiny, the types of constitutional arguments that have been advanced, and the outcomes achieved. We show that outright ‘wins’ are rare and that, even then, the concept of ‘success’ is complex. We highlight the need to consider the wider and longer-term effects of constitutional adjudication, including how legislatures respond to court decisions. We conclude that challenges to constitutional validity in the High Court represent a limited strategy for constraining how governments choose to legislate on criminal responsibility, procedure and punishment.

Fostering a European criminal law culture

“Trust” is currently a crucial concept in the political and legislative discourse of European institutions, as well as in some of the most notable decisions of the Court of Justice. However, unlike mutual recognition, trust is not in itself enshrined in the treaty. Indeed, mutual trust is an essential element of the European construction. The Luxembourg Court took a quite radical position on presumed mutual trust. However, a more substantial understanding of mutual trust as the core objective and, at the same time, the foundation of European Union’s criminal justice policy is required, essentially based on the idea of developing a shared legal culture while maintaining (at least in part) national diversity in criminal law. This article aims at showing that fostering mutual trust requires that the latter is not approached only as a legal concept but rather as a notion resting also on an inherent subjective dimension. This calls for non-legal forms of trust building aimed at enhancing awareness of other Member States’ legal systems and commonalities. In particular, attaining a deeper knowledge of these differing systems and thereby enhancing mutual understanding is essential in order both to nurture the belief that other Member States are reliable and trustworthy and to instill an attitude of “openess to others’ vision” that is expected to improve judicial cooperation, and more generally integration of Member States’ legal systems, and a true dialogue among legal practitioners and criminal law scholars. Indeed, developing such a shared vision of criminal justice will presumably lead to the progressive definition and development of common legal concepts as the basic contents for a European legal theory of criminal law.

Theorising Criminalisation through the Modalities Approach: A Critical Appreciation

New scholarly paradigms in the study of criminal law come along rather rarely. Despite extensive published work on this core topic in the educational curriculum and intellectual programme of the legal academy in most countries, the basic conceptual tools which inform its exposition and analysis in mainstream scholarship have remained relatively stable over the last half century. Moreover, they have not evolved in proportion to the development of the field at large. Valuable attention to rethinking the conceptual parameters of the field has come from contextual, historical, feminist or otherwise critical scholarship (Ashworth 1991; Farmer 2016; Fletcher 1978; Loughnan 2012; Naffine 2009; Norrie 2014; Wells and Quick 2010); and—as the contributors to this fine essay note—from site-specific areas of criminalisation. But, the conceptual basis for theorisation remains a pressing concern. This is particularly so given the recognition, in much of the most innovative recent scholarship, that the field of criminal law cannot be fully understood independent of the dynamics of criminalisation conceived as a broad social practice. This development is giving a new spin to the longstanding focus in theoretically informed criminal law scholarship on the question of responsibility (Ashworth forthcoming; Ashworth and Zedner 2014; Duff et al. 2010, 2011, 2013, 2014; Farmer 2016; Horder 1992; Lacey 2016; McSherry, Norrie and Bronitt 2009; Norrie 2016; Ramsay 2012).

British War Crimes Trials in Europe and Asia, 1945–1949: A Comparative Study

AbstractBetween 1945 and 1949, the British military conducted a large number of war crimes trials in Europe and Asia. Based on historical archival records, among other sources, this article evaluates and compares the British authorities’ implementation of the 1945 Royal Warrant and war crimes trials in Europe and Asia, with a specific focus on trials organized in Germany and Singapore. By examining the British war crimes trial experience in those two jurisdictions, the article analyzes factors shaping the evolution of the Royal Warrant's legal framework and trial model in different contexts. It therefore contributes to the growing historical work on post-Second World War trials and current debates among scholars of transitional justice and international criminal law on the contextual factors that impact on war crimes trials.

Criminal law in the shadows: creating offences in delegated legislation

AbstractSubstantial numbers of criminal offences are created in the UK in delegated legislation, often carrying heavy maximum penalties. The majority are created in statutory instruments passed under the negative resolution procedure, which offers very limited opportunity for scrutiny and does not involve a parliamentary vote. This phenomenon has slipped under the radar of orthodox criminal law scholarship, where debate has focused primarily on the criteria that should be used to determine the content of the criminal law and on the principles to which such offences should conform, rather than on the process of creating criminal offences. Creating offences in delegated legislation raises questions of democratic legitimacy and has resulted in criminal offences being created which do not conform to basic principles of fair notice and proportionality of penalty. To address this, we propose that parliamentary approval should be required for all serious offences. It would be impractical to do this for all criminal offences, and direct participation in the legislative process via consultation can act as an alternative (or additional) legitimating principle. This does, however, require that the consultation process complies with certain basic minimum requirements, and we explain how these requirements might appropriately be framed.

The Effect of Establishing Guilt using Modern Technology on Human Rights

The use of modern technology has led to a scientific revolution in the field of establishing guilt. Consequently, this has given rise to a great debate about its legitimacy among criminal law scholars, especially as its use may result in the violation of individual rights and human dignity. This raises the question about the impact of using modern technology in the process of establishing guilt on human rights. Therefore, this study aims to evaluate the procedures of establishing guilt using modern technology methods adopted by the Algerian legislator, and to what extent individual’s rights and liberties are respected during those procedures. This study compares between rules of establishing guilt using modern technology in Algerian legislation and other legislation. This aims to offer some recommendations that help legislators keep pace with scientific and technical advancements. It also suggests ways to achieve a balance between using modern technology and respecting legal guarantees that prevent the infringement of individual rights and liberties. Results of the study show the significant negative impact of some modern evidences used to establish guilt. This is shown in the violation of the rights and liberties of individuals, in addition to inaccurate results obtained by using such evidences. This study recommends that the Algerian legislator clarify their position regarding modern means of establishing guilt, which must be unambiguously regulated and surrounded by adequate guarantees that protect the rights and liberties of individuals.Keywords: Establishing guilt, DNA, hypnosis, lie detection, electronic surveillance, human rights.

Raz jeszcze o odpowiedzialności za przywłaszczenie przedmiotu wchodzącego do majątku wspólnego małżonków

The legal assessment of misappropriation of property belonging to community property by one of the spouses constitutes a heavily contested issue in criminal law. The article analyzes a well-established opinion, according to which such property can be the object of the crime of misappropriation, and which cites the rules of the civil law. The article focuses on the issue of the possibility of assuming in such cases an attack on property, i.e. a violation of the object of the offence, discussed from the perspective of family law, which allows spouses to dispose of such property without the permission of the other spouse, on the basis of the rule of independent property management. Moreover, the author verifies the prerequisite for the seizure of third-party property, given that the property in question belongs also to the defendant, in accordance with the rules of community property. In addition to that, the author discusses the issue of meeting the prerequisites for the subjective aspect and the rule for evaluating the damage inflicted by the offence. The latter issue has been identified as particularly controversial, given that determining the scope of the possible restitution claims according to the value of property which constitutes the object of the offence in a situation where the property belongs also to the defendant is contrary to the intuition of criminal law scholars.

International Criminal Law and Russia: From ‘Nuremberg’ Passion to ‘The Hague’ Prejudice

This essay outlines the history of international criminal law scholarship in Russia. I use a politically based explanation of the changing positive and negative attitudes regarding international criminal law, and show that the discourse on these issues in contemporary Russia is subject to serious political pressure. Changing such a situation is a difficult but essential task, mainly because of the over-riding need to free current scholarship from political control.

Probing the Depths of the Responsible Corporate Officer’s Duty

Many criminal law scholars have criticized the responsible corporate officer doctrine as a form of strict and vicarious liability. It is neither. It is merely a doctrine that supplies a duty in instances of omissions. Siding with Todd Aagaard in this debate, I argue that a proper reading of the cases yields that the responsible corporate officer doctrine is just duty supplying, and does not allow for strict liability when the underlying statute requires mens rea. After analyzing Dotterweich, Park, and their progeny, I probe the depths of this duty-supplying doctrine, including to whom the duty is owed, whether the duty is grounded in statute, cause of peril, or contract, and what the content of the duty is. Although the responsible corporate officer doctrine unveils questions we may have about duty generally, it is no more problematic than other duty-supplying doctrines in the criminal law.

Introduction: How Should We Study International Criminal Law? Reflections on the Potentialities and Pitfalls of Interdisciplinary Scholarship

This introduction explores interdisciplinarity by first considering law as a discipline to account for how international criminal law has emerged as a field of practice and scholarship within the broader epistemic context of law. It then considers the nature of international criminal law scholarship before turning to questions of interdisciplinarity.

Criminal Justice and Global Public Goods

This article places sharing forensic biometric data for international criminal justice cooperation purposes within the domain of global public goods. Such cooperation is a rational response to globalisation, but faces several obstacles. These range from sociocultural and political concerns about national legal and criminal justice autonomy to the potential impact of market fundamentalism on scientific standardisation and cooperation mechanism delivery. The significance of such inhibitors will vary as societal and personal perceptions of stability change. These issues are examined by analysing the progress achieved with the EU Prüm forensic biometric data exchange model. Shocks to European stability, such as the increased scale of terrorist crimes and the UK EU referendum result will inevitably test the resilience of Prüm. Combining insights from global public goods and criminal law scholarship, however, may help to identify how reactions to such shocks, including questions about future UK participation in Prüm, might be managed.

Beckles v. United States -- Amici Curiae Brief of Scholars of Criminal Law, Federal Courts, and Sentencing in Support of Petitioner

Section 4B1.2(a)(2) of the U.S. Sentencing Guidelines is identical to statutory language that the U.S. Supreme Court found to be unconstitutionally vague in Johnson v. United States. The Supreme Court subsequently held that the ruling in Johnson was retroactive. This brief explains why the U.S. Sentencing Guidelines are subject to vagueness challenges and why any ruling that a guideline is unconstitutionally vague should be made retroactive.

La actio libera in causa en el Paraguay a la luz de la dogmática penal alemana: una decisión entre la política criminal y el Principio de Legalidad

El Codigo Penal paraguayo vigente prescribe que la reprochabilidad es un presupuesto necesario para la imposicion de una sancion penal. De igual forma establece en su art. 23 que aquel que en el momento del hecho por causa de una grave perturbacion de la conciencia no pueda entender la antijuridicidad del hecho o comportarse conforme a ese conocimiento, sera considerado como irreprochable quedando asi exento de pena. Dicha norma no preve sin embargo ninguna excepcion y esto permite que el autor escape al ius puniendi estatal, cuando el mismo causa adrede su estado de irreprochabilidad para cometer posteriormente un delito antes planeado. Tal problema es el que pretende ser resuelto a traves de la figura de la actio libera in causa. La aplicacion de dicha figura no se encuentra sin embargo juridicamente fundamentada, ni en la literatura, ni en la jurisprudencia paraguaya. De ahi que se realiza en el presente articulo un analisis juridico de su aplicacion a la luz de las teorias discutidas en la dogmatica penal alemana, buscandose la consecuencia tanto de la aplicacion como del rechazo de la figura conforme al estado actual de las leyes en el Paraguay.

Punibilidade concreta e política judiciária: a prescrição da pretensão punitiva antecipada e a gestão da justiça

<p>Este artigo é resultado de uma breve análise acerca da prescrição da pretensão puni­tiva antecipada e a gestão da justiça frente a aplicação da Súmula nº 438/ STJ e a atual polí­tica judiciária. A prescrição ante­cipada é criação da doutrina e jurisprudência brasileira e visa alcançar o prazo prescricional com fulcro em uma pena hipoté­tica que venha a ser aplicada de acordo com as circunstâncias do caso em concreto. Apesar de o STJ, por meio da Súmula nº 438, vedar a aplicação da respectiva prescrição, vez que não definida por lei, a prescrição antecipada tem sido objeto de discussão entre os estudiosos do direito penal e processual penal, que pretendem a duração razoável do processo penal, para que este não se arraste durante anos para ao final não alcançar seu objetivo maior, a justiça. Assim este artigo visa uma breve apre­sentação sobre o surgimento da prescrição da pretensão puni­tiva e suas modalidades, expli­citando o paradigma vigente no STJ, com base nos precedentes que deram ensejo à edição da Súmula nº 438/ STJ e, finalmente abordando os problemas de política judiciária que se rela­cionam com a referida súmula prospectando a melhor gestão da justiça e dos processos crimi­nais com a aplicação da casu­almente chamada ‘prescrição antecipada.</p>

Brazilian Criminological Thinking During the First Republic (1889-1930)

This paper synthesizes research that aimed to analyse how criminological thinking was received in Brazil during the First Republic (1889-1930). It presents a broad view of positivist criminology, its rise and, most of all, how this school of thought was received in Brazilian legal culture. We have identified criminal law scholars from the country's main law schools (Rio de Janeiro, Recife, Sao Paulo, Bahia e Curitiba) and analysed their syllabi and published works in order to identify how positivist criminology was adopted during this period. In this paper, we explain the conclusions reached in the broader study, focusing on the duality of liberal discourse and how it combined with criminal positivism, which is one the most notable traits identified in the majority of the jurists analysed.

On Trajectories and Destinations of International Criminal Law Scholarship

Taking up the torch from my fellow co-editors who have addressed substantive and methodological issues of international criminal law (ICL) in their contributions, I propose to turn to the current state and prospects of its scholarship. The moment is opportune for such a reflection. The questions raised by the production and dissemination of international legal scholarship were the leitmotif of past editorials and its (changing) role was chosen as the theme of the latest LJIL symposium. The professional functions of international legal scholars have been the subject of renewed interest and debate. To give an impulse to a similar debate in ICL, I will try to capture the zeitgeist of its academia and offer some observations on the positioning of scholarship vis-à-vis practice in ICL. Perspectives from this specialized field may enrich the existing conceptualizations of international legal scholarship and provide a new angle on its place within the profession.

The Wrongs of Unlawful Immigration

For too long, criminal law scholars overlooked immigration-based offences. Claims that these offences are not ‘true crimes’ or are a ‘mere camouflage’ to pursue non- criminal law aims deflect attention from questions concerning the limits of criminalization and leave unchallenged contradictions at the heart of criminal law theory. My purpose in this paper is to examine these offences through some of the basic tenets of criminal law. I argue that the predominant forms of liability for the most often used immigration offences are, at least in principle, controversial and depart from what is often presented as the paradigm in criminal law. Above all, immigration offences are objectionable because they fall short in fulfilling the harm principle and, given that criminal punishment as used against immigration offenders is often a secondary, ancillary sanction to deportation, they license excessive imposition of pain.

From Abortions to Sex Work: What Decriminalization Can Teach Us About Stigma in Criminal Law

This paper pursues the idea that decriminalization and its aftermath deserve the attention of criminal law scholars. It presents the development of abortion law post-1969 and particularly following full decriminalization in 1988 in the Maritime provinces as a case study. Focusing on criminal law theory, decriminalization provides an opportunity to empirically test and doctrinally review the interaction between criminal law and stigma. The point of departure is the observation that abortion stigma has continued unabated after decriminalization. In the view of the Supreme Court, the application of criminal law produces social stigma. The Court also relies on the production of stigma as a distinguishing feature of true criminal law, contrasting it with regulatory law. This both suggests that criminal law is uniquely positioned to produce stigma and that regulatory law does not produce stigma. The experience of abortion decriminalization challenges both of these assumptions. Using social stigma theory, I consider the relationship of criminal law stigma to social stigma and its implications for the decriminalization and recriminalization of sex work.

Experience with mediation in domestic violence cases in Spain: legal regulation and opinions from judicial practice and criminal law scholars

The incidence rate of domestic violence cases in Europe has not really significantly decreased in the last ten years, and Spain is not an exception on this. Despite legislative changes and improvements that have taken place in many of our countries regarding penal punishment of those behaviors, it seems to be not enough or perhaps not suitable for all possible cases in this field. For this reason, for some time it is being discussed and, in any cases, trying out with the option to apply other techniques of conflict resolution based on restorative justice (and specifically the process of mediation between victim and offender). The purpose of this brief paper is then to examine the current legal situation in Spain about mediation in cases of domestic violence, and the opinions that have been expressed on this from the criminal doctrine.