Rights Of Offenders Research Articles

Prevalence of Undue Delays in Criminal Proceedings: Realising the Right to a Speedy Trial for Crime Victims in South Africa?

Prevalence of undue delays in criminal proceedings in South Africa poses serious implications not only for the accused person’s right to a fair trial but also for the rights and interests of crime victims. The South African criminal justice system is overburdened. This is because crime in South Africa is currently at an all-time high, resulting in a clogged court system. Due to this overburdened system, the entire criminal justice system is hampered, and cases take longer to resolve. The impact of these undue delays on crime victims, firstly is that justice delayed is justice denied and society resorts to commit vigilantism as they have lost faith in the criminal justice system. Secondly, there has been a perception from the society that the criminal justice system is biased and favors the rights of offenders or accused persons. In Rodrigues v National Director of Public Prosecutions and Other 2019 (2) SACR 251 (GJ), the court when dealing with undue delays for the first time, rights and interests of crime victims were considered even though the matter took more than 40 years. This judgment revealed the importance of the realisation of speedy trial rights for crime victims. Using the qualitative research method, the literature in this article indicates that the enactment of the right to a speedy trial for crime victims can be beneficial to all parties involved in criminal proceedings to curb undue delays in criminal proceedings. This article outlines the causes of undue delays in criminal proceedings, the impact that these delays have on specific crime victims and argues for the implementation and enforcement of the right to a speedy trial for crime victims in South Africa.

Settlement of Traffic Offences: A Shift in the Presumption of Innocence and the Impact on Legal Justice

Traffic offences are a serious issue in Indonesia, creating complex challenges for the justice system and social costs. Although Law No. 22/2009 has defined the rules, the high number of accidents and offences indicates the ineffectiveness of law enforcement. This study aims to investigate the impact of traffic offences on legal justice, the effectiveness of sanctions, and the shifting presumption of innocence in Indonesia. The research methodology included both quantitative and qualitative approaches, involving analyses of accident data and interviews with authorities. The results showed a high number of offences, a lack of effectiveness of Law No. 22 of 2009, and the phenomenon of "peace in place." The implementation of ETLE cameras became an alternative, despite internet access constraints. Perma No. 12/2016 changed the judicial process, moving from a presumption of innocence to a presumption of guilt. This shift provides uniform sanctions without considering individual circumstances. The limitation of violators' rights in ticket hearings violates the principle of justice. The implementation of e-ticket technology shows advantages, but the dependence on the internet and the potential for misuse are obstacles. The shift to the presumption of innocence in the Perma raises doubts about the fairness of the justice system. Improving fairness requires a re-evaluation of the application of sanctions, technological improvements, and a deeper understanding of the rights of offenders. These recommendations are expected to improve the justice system related to traffic offences in Indonesia.

The Role of Victimology in the Protection of Crime Victims in Indonesian Criminal Justice System

Crime victims often find themselves in a consistently disadvantaged position, suffering physically, psychologically, and materially due to the crimes they endure. Unfortunately, the state's attention to victims lacks the intensity given to criminals, with a predominant focus on the legal position and human rights of offenders. Striking a balance between justice for perpetrators and protection for victims is essential. Presently, victims are predominantly considered supplementary to the sufferer, serving as witnesses solely to establish the guilt of the perpetrator. This research uses legal normative methods and employs a descriptive-analytical approach to explore victim guarantees in the Indonesian criminal justice system. The study scrutinizes statutory regulations, emphasizing the role of victimology in safeguarding crime victims. Historically, victim protection primarily centered on the right to compensation. However, Law Number 13 of 2006 concerning Witness and Victim Protection, in conjunction with Law Number 31 of 2014 concerning Amendments to Law Number 13 of 2006 concerning Witness and Victim Protection, significantly expanded victims' rights. Despite this progress, the integration of victim rights into the criminal justice system remains incomplete. The Indonesian criminal justice system must prioritize and safeguard victims' interests, acknowledging the crucial role of victimology in advocating for the rights of those harmed by perpetrators.

"Human Rights in Nigerian Correctional Institutions: The Place of Social Workers"

Issues on human rights especially in correctional institutions have become the focus of international programs, policy makers, the general populace, researchers and conferences aimed at ensuring effective monitoring of its abuses. Human rights protect the essential attributes of human beings: needs, capacities and interests that if guaranteed respect their dignity as persons and if violated results in lives of desperation and diminishment. This study examines human rights in Nigeria correctional institutions. It also identified the roles of social workers in challenging injustice and ensuring that the rights of offenders are upheld. Worried by the state of human rights in our correctional institutions, the paper attempts to investigate the inmates’ rights, human rights and correctional practices and seeks to proffer ways by which social workers can enhance human rights in correctional institutions. Secondary source of data collection was utilized in the study. Documents from international and national agencies as well as textbooks and journal articles were employed. Furthermore, the paper recommends creation of awareness on the services of social workers in enhancing human rights in correctional institutions.

Comparative Analysis on the Improvement of Aggravate Punishment for Recidivism in Malaysia

Recidivism, the fact that individuals re-offend after being convicted of a crime, is a significant challenge faced by criminal justice systems worldwide. The study will begin by reviewing relevant literature and legal frameworks pertaining to recidivism and aggravated punishment in Malaysia. The analysis will delve into the objectives, principles, and legal provisions that guide the application of aggravated punishment for repeat offenders in the Malaysian criminal justice system. Additionally, a comparative perspective will be adopted to examine the experiences and practices of other jurisdictions that have implemented similar punitive measures for recidivism. This comparative analysis delves into the strategies employed by Malaysia for the improvement of aggravated punishment concerning recidivism within its criminal justice system. Malaysia, like many countries, has adopted measures to address but leaves several concerns on this issue. Those concerns include the range of defining recidivism unreasonably and focusing too much on crimes that violate property and the discretion of judges for sentencing them are so huge. The study evaluates Malaysia's approach to aggravated punishment for recidivism by examining the legal framework, and sentencing guidelines, and also focuses on the rights of offenders. Furthermore, it compares Malaysia's practices with those of other nations including both civil law and common law countries to identify best practices and potential areas for enhancement. By employing a comparative research methodology, the study will explore the strengths and weaknesses of the aggravated punishment approach in deterring recidivism, ensuring public safety, and promoting rehabilitation. It will critically evaluate the legal and ethical considerations associated with imposing harsher penalties on repeat offenders, including questions of proportionality, fairness, and human rights implications. Ultimately, the study strives to provide several potential ways to address those concerns for enhancing the Malaysian criminal justice system's response to recidivism, considering the principles of proportionality, and fairness in criminal justice.

Nigerian Criminal Justice System: An Examination of Victims’ Rights Approach to Effective Administration of Criminal Justice in Nigeria

The Nigerian criminal justice system is adversarial. Like other similar systems, it is designed to accommodate only two parties, the prosecution, and the defendant, in the combative atmosphere of its trial process. There is no right of audience for victims to claim remedy for their injuries at the trial. They are only visible as witnesses for the State. Whereas the various domestic laws cater to the offender's rights, they are silent about the rights of the victim. The treatment of crime victims by the agencies of the Nigerian criminal justice causes them further traumatization due to a lack of protection. Consequently, the victims have been passive over the years over their feelings of being used and dumped by the Nigerian criminal justice system due to a lack of voice. There is, therefore, the need to chart a new course where the victim would have an equal voice as the offender. This paper accordingly investigates the views of scholars on the attitude and the dichotomous nature of adversarial criminal justice, where a criminal trial is seen as a combat between the State and the defendant, while the victim is only seen as an item of evidence. The study adopts doctrinal methodology, which reveals that a scholar's general view is for the system to put on the front burner the rights and interests of a crime victim to ensure its legitimacy.

Heed the call: the implied freedom of political communication and the terrorism high-risk offenders regime

ABSTRACT Since 2020, the Terrorism (High-Risk Offenders) Act 2017 (NSW) (THRO Act) has increasingly become a frontier for contestation about the implied freedom of political communication and the maintenance of community safety. In closely considering two recent decisions, State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 and Cheema v State of New South Wales [2020] NSWCA 190, this article analyses the courts’ use of a deeming provision to prove that an offender has advocated support for a terrorist act or violent extremism. I argue that these decisions have significant implications for the rights of offenders convicted of indictable offences and journalists who seek to engage in political communication. I further argue contrary to the reasoning in the decisions, that the THRO Act has the real capacity to burden the implied freedom of political communication in extending the State’s powers to subject individuals to supervision and detention after expiry of their sentences in a way that is disproportionate to the end of maintaining community safety. In doing so, I seek to draw attention to the THRO Act’s extraordinary ambit in a call for wider scholarly attention as provisions such as that under examination are increasingly frequently invoked.

Comparative Research on the Organized Crime in China and Russia

China and Russia have different theoretical definitions in the definition of organized crime. By comparing and analyzing the concept of organized crime in the fields of criminal law and criminology between China and Russia, we should take into account the position of criminal law and the position of criminology, and adhere to the binary definition of the concept of organized crime. In terms of the criminal law system of organized crime in China, the Chinese criminal law stipulates the concept of criminal group in the general rules. In the chapter, it stipulates the crime of organizing, leading, participating in terrorist organizations and organizing, leading, and participating in underworld organizations. For the criminal responsibility of engaging in organized crime, the Chinese Criminal Law stipulates that the primary elements of the organization and leadership of criminal groups shall be punished according to all the crimes committed by the group. In the criminal law system of organized crime in Russia, the Russian criminal law stipulates the concept of gang crimes, gang crimes committed in advance, organized groups to commit crimes, criminal groups (criminal organizations) in the general rules, and the establishment of rules in the rules. And the crime of participating in terrorist groups, organizing or participating in illegal armed groups, armed gang crimes, forming or participating in criminal groups (criminal organizations), and forming extremist groups, while at the same time increasing the responsibility of organized groups as part of the crime . For the criminal responsibility of engaging in organized crime, the Russian criminal law stipulates that it should be severely punished according to the Russian criminal law and within the limits set by it, and the provisions for exempting criminal responsibility from the four crimes other than armed gang crimes. Compared with China, the advantage of Russian criminal legislation with organized crime is that it clearly states the concept of "organized" in its provisions, fully embodies the dynamic characteristics of existing organizational crime development, and takes care of the logical relationship between different legal concepts. Combating crime and disintegrating criminal groups, the criminal law network is more rigorous, and it is more conducive to protecting the rights of offenders. In the judicial practice of combating organized crime between China and Russia, China and Russia have not yet established a centralized, unified and specialized national organization to combat organized crime, but Russia is fighting crimes against money laundering, protecting secret investigators, and protecting assistance. The investigation of organized crime citizens, the protection of organized crime witnesses, victims and other related personnel has made more specific legal provisions and guarantees. Therefore, China should learn from Russia from the two aspects of criminal legislation and judicial practice. On the one hand, improve the basic provisions and specific provisions of organized crime, separately stipulate the content of organized crime in the general rules, increase the corresponding crimes in the sub-rules, and set the lenient and exemption for criminals who actively cooperate and withdraw in time. The path of criminal responsibility is to implement the criminal policy of lenient and strict, and at the same time enact the Anti-Organized Crime Law to make up for the limitations of the criminal law itself, from the scope of adjustment, anti-organized crime subjects, safeguard measures, prevention and early warning, legal convergence, etc. Start by identifying the basis for action against and against organized criminal activity. On the other hand, increase the crackdown on money laundering crimes, improve and refine the undercover investigation system, informant investigation system, witnesses and other related personnel protection systems, and increase measures to guide, strengthen, supervise and guarantee the fight against organized crime. Effectively prevent and combat organized crime from the judicial level.

Addressing the Curious Blackspot that is the Separation Between the Principle of Legality and Sentencing

The principle of legality has evolved into a clear and entrenched jurisprudential mechanism for protecting common law rights and freedoms. It operates as a shield to preserve the scope of application of fundamental rights and freedoms. In recent years it has been increasingly applied by the courts to limit the scope of legislative provisions which potentially impinge on human rights and fundamental freedoms. Yet there is one domain where the principle of legality is conspicuously absent: sentencing. Ostensibly, this is paradoxical. Sentencing is the realm where the legal system operates in its most coercive manner against individuals. In this article, we argue that logically the principle of legality has an important role in the sentencing system given the incursions by criminal sanctions into a number of basic rights, including the right to liberty, the freedom of association and the deprivation of property. By way of illustration, we set out how the principle of legality should apply to the interpretation of key statutory provisions. To this end, we argue that the objectives of general deterrence and specifi c deterrence should have less impact in sentencing. It is also suggested that judges should be more reluctant to send off enders with dependants to terms of imprisonment. Injecting the principle of legality into sentencing law and practice would result in the reduction in severity of a large number of sanctions, thereby reducing the frequency and extent to which the fundamental rights of off enders are violated. The methodology set out in this article can be applied to alter the operation of a number of legislative sentencing objectives and rules.

Victim impact statements and sentencing

Legislation allowing for victim impact statements ('VIS') to be presented during sentencing hearings has been introduced into the criminal justice systems of most common law nations, notwithstanding many reservations from defence lawyers and civil libertarians. Despite such legislation being widespread throughout the common law world, the use of VIS remains controversial.The main purpose of this article is to utilise basic sentencing principles in order to critically analyse the question of whether, and if so, to what extent, VIS are relevant to an offender's sentence and thus should injuence sentencing decisions. It will be shown by the use of a hypothetical that there are a minority of circumstances where a VIS may appropriately be relevant to sentence. In such cases adequate procedural safeguards need to be instituted to ensure that offender's rights are not compromised. It will also be shown that despite the VIS being irrelevant to sentencing in the majority of cases, it is still justifiied to allow victims to submit a VIS in all cases as they serve an important therapeutic role for victims in that they provide an opportunity for victims to participate in the criminal justice system, thereby reducing their sense of powerlessness and enhancing their cooperation with the system. It will be acknowledged, however, that there are problems with allowing victims to submit VIS, knowing they should not be taken into account for sentencing purposes in the majority of cases. The article will suggest some solutions to these problems.The writer thus generally takes a supportive view of VIS, believing that the ability of victims to prepare and present VIS can enhance their satisfaction with the criminal justice system, while a careful examination of the limits that victim impact material should have on the court sentencing discretion will mean that they ought not impinge upon the civil liberties of offenders.

The suspended sentence in French Criminal Law

From the ancient times until today, criminal law has provided different criminal sanctions as measures of social control. These coercive measures are imposed on the criminal offender by the competent court and aimed at limitting the offender's rights and freedoms or depriving the offender of certain rights and freedoms. These sanctions are applied to the natural or legal persons who violate the norms of the legal order and injure or endanger other legal goods that enjoy legal protection. In order to effectively protect social values, criminal legislations in all countries predict a number of criminal sanctions. These are: 1) imprisonment, 2) precautions, 3) safety measures, 4) penalties for juveniles, and 5) sanctions for legal persons. Apart and instead of punishment, warning measures have a significant role in the jurisprudence. Since they emerged in the early 20th century in the system of criminal sanctions, there has been an increase in their application to criminal offenders, especially when it comes to first-time offenders who committed a negligent or accidental criminal act. Warnings are applied in case of crimes that do not have serious consequences, and whose perpetrators are not hardened and incorrigible criminals. All contemporary criminal legislations (including the French legilation) provide a warning measure of suspended sentence. Suspended sentence is a conditional stay of execution of sentence of imprisonment for a specified time, provided that the convicted person does not commit another criminal offense and fulfills other obligations. This sanction applies if the following two conditions are fulfilled: a) forma! -which is attached to the sentence of imprisonment; and b) material -which is the court assessment that the application of this sanction is justified and necessary in a particular case. In many modern criminal legislations, there are two different types of suspended (conditional) sentence: 1) ordinary (classical) suspended sentence, and 2) a suspended sentence with supervision. If the convicted person fails to comply with a court order, the law provides for the mandatory or optional revocation of the suspended sentence.

ANALISIS YURIDIS PEMENUHAN HAK TAHANAN MENURUT HUKUM ACARA PIDANA INDONESIA PADA DIREKTORAT TAHANAN DAN BARANG BUKTI DI POLDA MALUKU

The republic of Indonesia is a democratic law state that based on Pancasila and 1945 Constitution, that upholds human rights and guarantee every citizen is equal before the law and government, and need to uphold the law and the government without any exception. Therefore this need to also be applied to the law enforcement, especially in the investigation phase so that the rights of offenders need to be balanced with the juridic demands (criminal code procedure). rights of prisoners that not fully fulfilled in the Directory of Prisoners and Evidence in Maluku Police department, which there is no specific place for the prisoners to carry out religious activities with their own beliefs they held, spiritual services that not evenly accessible for all prisoners (except for Christians), physical treatment that cannot be conducted because lack of gym facilities, there is no education and teaching services for the prisoners of Maluku police department, there is no polyclinic for the health check-up for sick prisoners, there is no dining hall and water is not being given, there is no separation of cell based on the level of criminality, age, and prisoners that have infectious diseases, and there is no visit room for the families and colleagues that want to visit the prisoners.

Finding Voice for Victims of Crime in the Adversarial Criminal Justice System

AbstractAdversarial criminal justice system is designed to accommodate only two parties, the prosecution and the defendant, in the combative atmosphere of its trial process. The victim has no right of audience other than as witness for the prosecution. The involvement of victims as active participants in the exclusionary adversarial criminal justice system continue to attract debates among scholars. Whereas some favour the involvement because of its cathartic value for victims others oppose it on ground of the dislocation this might bring to the system and the threat to the defendants’ rights. Although, there have been significant victim reforms in some advanced jurisdictions creating some forms of rights for the victim, the rights remain unenforceable internally of the criminal justice process but externally of it through some administrative mechanisms. This paper reviews the position of some of the scholars on the foregoing, the various models of the system that have been constructed by scholars to accommodate victims and the emerging rights for victims. The position of this paper is that for the rights so far created for victims of crime to be truly beneficial, the so-called rights should be enforceable internally of the system with the necessary safeguards for the existing rights of offenders.

Administrative Trap Investigation

Faced with some offenses which are hidden quite secretly and organized with high degree, administrative enforcement agencies are often unable to obtain evidence or seize offenders through conventional methods of investigation. In that case, public interest and legitimate rights of offenders should be weighed and balanced, and administrative enforcement agencies should be allowed to adopt unconventional means of investigation under certain circumstances. Administrative trap investigation is an unconventional way of investigation. The paper will discuss its meaning and nature, skepticism, realistic rationality, legal regulation and other aspects.

Advocacy Tactics and Policy Outcomes of Sex Offender Rights Organizations

Social movement organizations for sex offender rights work to reduce harm to registrants and their family members by influencing sex offender registration and community notification policies. This study draws on two theories of social movement organizations—organizational emergence and political opportunities—to investigate the capacity (i.e., structure, resources, knowledge and skills) of these organizations to bring about policy changes. Data were gathered using in-depth, telephone interviews with 19 leaders of state-level advocacy organizations in the United States. Two types of strategies emerged, distinguishing organizations as proactive or reactive in their approach to policy change. Proactive organizations contribute to policy amendment, development or adoption, whereas reactive organizations focus on blocking policy. These two types of organizations have similar tactical repertoires; however, more proactive organizations report the use of networking and coalition building and media stories, and mo...

Legal pluralism and the convention on the transfer of sentenced persons in practice: highlighting the jurisprudence of the European Court of Human Rights on the transfer of sentenced persons within and to Europe

Many European countries have hundreds of foreign national offenders in their prisons. Foreign national offenders face different problems in prisons; hence, the need for their transfer to their countries of nationality to serve their sentences. All member states of the European Union are states parties to the Convention on the Transfer of Sentenced Persons, which was replaced by Council Framework Decision 2008/909/JHA. However, it is still applicable to the transfer of offenders between some European countries and also between European countries and countries outside Europe. The European Court of Human Rights has developed jurisprudence dealing with the rights of offenders who have been transferred on the basis of the Convention on the Transfer of Sentenced Persons. This jurisprudence shows, inter alia, that before an offender is transferred to serve his sentence, the authorities in the sentencing state have to consider not only their penal laws but also those of the enforcing state – hence legal pluralism. The purpose of this article is to highlight the human rights issues that the Court has dealt with under the Convention on the Transfer of Sentenced Persons. Due to the fact that the Convention on the Transfer of Sentenced Persons has been ratified by countries in Europe and outside Europe, the jurisprudence discussed below is relevant to countries from different parts of the world.

Conditioning the President's Conditional Pardon Power

From the inception of this nation's history, presidents have offered pardons and commutations of sentences conditioned on a surprisingly wide array of conduct. Presidents have offered clemency on the condition that offenders refrain from alcohol, provide support for family members, leave the country, join the navy, drop claims against the United States, and restrict their travel or speech. By attaching conditions, presidents may protect the public or benefit it in other ways. Although such pardons may advantage society, imposing conditions may restrict the constitutional rights of offenders. In order to escape the harsh confines of prison, offenders may have little choice but to accept restraints on their exercise of constitutionally protected freedoms. Moreover, exercise of conditional pardons may permit presidents to accomplish objectives that they could not otherwise attain. As an example, presidents can commute sentences of a particular class of offenders conditioned on supervised release or parole even if Congress has rejected such penological alternatives. Nevertheless, this Article argues that exercise of the pardon power generally should remain vested in the president's discretion, checked only by the political process. Even though coercion is inherent in conditional offers, we should trust offenders to choose between complying with the conditions and staying in prison longer because they generally benefit from that choice. And, in light of the president's role under the pardon clause in making judgments about optimal punishment, presidents can alter the sentencing framework set by Congress. Oversight by Congress, the press, and subsequent presidents tempers presidential overreaching. This Article argues, however, that judges can play a critical role in helping check abuse of the conditional pardon power in two contexts. First, judges should negate a presidential condition in the rare case when the condition shocks society's conscience, such as requiring a prisoner to donate a kidney. Second, offenders should also be entitled to challenge any condition that violates constitutional restraints on the president's authority such as a First Amendment ban on providing support for particular religious expression. In short, although there should be no review of the process by which presidents reach the decision to pardon, the reasons for the decision, or the appropriateness of the condition selected, limited review of conditions that shock the conscience or violate constitutional restraints on presidential authority is warranted.

The point of probation: On effectiveness, human rights and the virtues of obliquity

Policy debate assumes the point of probation is to administer community punishment, reduce reoffending and protect the public. Dominant punitive and instrumental understandings of probation’s work have regarded the human rights of offenders as of secondary importance or even as obstacles to attaining these objectives. This article argues that, on the contrary, policy and practice should be grounded on human rights rather than on direct endeavours for effectiveness. It advances a personal and ethical understanding of probation and, considering probation’s principal tasks of enforcement, rehabilitation and public protection, argues that a respectful professional relationship is indispensable, though threatened by punitive and instrumental approaches. The concept of obliquity – the idea that some of our most important goals are best achieved indirectly – can explain how a personal approach can turn out not only to respect ethical entitlements, but indeed to be more effective in the terms that probation sets for itself.

Community service in Greece: Sentencing practices, the role of the prosecution service and local authorities

Community service was introduced in Greece in the early 1990s, with the expectation of relieving the problem of prison overcrowding. The measure became operational in 1997, although the professional body responsible for its implementation — the Probation Service for Adults — was created in 2006. This research explores how the measure is applied at both the sentencing and the implementation stage. Findings suggest that, although the measure has been used sparingly, there are serious legislative and structural shortcomings that need to be addressed in order to protect the rights of offenders as well as the credibility and legitimacy of the measure.

Chinese administrative justice system: Its malpractice and possible reform

The arbitrary detention through coercive administrative measures in the past years is widely regarded as a major source of undermining the justice of law in China. Based on examining the deficiencies of Chinese administrative justice system, it explores the likelihood of community corrections in treating minor offenders in lieu of existing administrative detentions. Further, it concludes that a Chinese community correction system in the context of legal culture can be gradually shaped, leading to a radically social transformation, and ultimately producing a significant effect on the improvement of the rights of offenders who are accused of committing administrative misbehaviors.