Special Criminal Court Research Articles

O DELEGADO DE POLÍCIA COMO MEDIADOR DE CONFLITOS NAS INFRAÇÕES DE MENOR POTENCIAL OFENSIVO

This scientific article aims to verify the role of the police chief as a conflict mediator in crimes with less offensive potential, which is certain to prove to be an effective measure in São Paulo, which is why this practice deserves extension to the other states of Brazil, taking into account given the crisis that the Brazilian judiciary faces regarding Special Criminal Courts. Although Law n° 9.099/95 is guided by the principles of speed, procedural economy and efficiency, there are circumstances, outlined in this article, that prevent their consummation. Thus, through bibliographical research, the figure of the conciliator delegate is the solution to unburden the judiciary and resolve disputes in a humane and definitive manner.

Juridical Overview of the Authority for the Confiscation of Evidence in the Code of Criminal Procedure and Book II of the Technical Guidelines for Administration and Technical Guidelines for General and Special Criminal Court Proceedings of the Indonesia Supreme Court

Juridical Overview of the Authority for the Confiscation of Evidence in the Code of Criminal Procedure and Book II of the Technical Guidelines for Administration and Technical Guidelines for General and Special Criminal Court Proceedings of the Indonesia Supreme Court

The Special Criminal Court and the challenge of criminal accountability in the Central African Republic

States which encounter massive human rights violations usually implement various mechanisms of achieving accountability. There exists documented evidence of conflict-related international crimes in the Central African Republic (CAR). Still, the perpetrators enjoy impunity as no appropriate measures were adopted to guarantee criminal accountability. The Special Criminal Court (SCC) was established in the CAR in 2015 as a hybrid criminal accountability mechanism. This article with the aid of a qualitative method and a narrative approach aims at investigating the activities of the SCC in the fight against the culture of impunity in a country experiencing persistent human rights violations. As conflict and impunity persist in the socially and politically unstable CAR, a comprehensive synopsis of the SCC and a preliminary assessment of the court and its challenges seven years after creation constitute a domain of investigation that urgently requires a deeper investigation to halt impunity, recurrent hostilities and human rights violations. Why has impunity and violations persisted in the CAR despite the creation of the SCC? The paper identifies critical factors to the success of the SCC, based on previous experiments with hybrid courts. The outcome of this research reveal that the fragile security situation in the country and other factors significantly hinder the court’s objective of serving justice and contributing to durable peace in the CAR.

Frames de uma violência: uma leitura sobre as pressões para a inclusão da pauta da violência contra as mulheres nas políticas públicas brasileiras

Abstract This article aims to identify and analyze the frames mobilized by feminist movements to address violence against women and discuss their influences on public policies. The theoretical and methodological framework comprises frames (Snow & Benford, 1992). The research material consists of articles published in the newspapers Folha de S. Paulo and O Globo during periods related to three state actions that sought to combat violence against women: i) the creation of the women’s police stations in 1985, ii) the Special Criminal Courts in 1995, and iii) the approval of Law 11.340, of 2006 (Maria da Penha Law). The results indicate that throughout the analyzed periods, a master frame, "violence against women," resonated in public opinion, and this issue was recognized as a problem by the state that established measures to confront the problem.

Sentencing for the offence of misappropriation of public funds: the flawed and problematic approach of Cameroon’s Special Criminal Court

PurposeOver a decade since the Special Criminal Court (SCC) was established in Cameroon, hundreds of individuals have been indicted, tried and convicted. Sentences have been imposed, most of which include a term of imprisonment (principal punishment/penalty) and confiscation as accessory penalty or punishment. Research focus has not been directed at the sentences which, as argued in this paper, are inconsistent, incommensurate with the amounts of money stolen and a significant departure from the Penal Code. This paper aims to explore the aspect of sentencing by the SCC.Design/methodology/approachTo identify, highlight and discuss the issue of sentencing, the paper looks at a blend of primary and secondary materials: primary materials here include but not limited to the judgements of the SCC and other courts in Cameroon and the Penal Code. Secondary materials shall include the works of scholars in the fields of criminal law, criminal justice and penal reform.FindingsA few findings were made: first, the judges are inconsistent in the manner in which they determine the appropriate sentence. Second, in making that determination, the judges would have been oblivious to the prescripts in the Penal Code, which provides the term of imprisonment, and in the event of a mitigating circumstance, the prescribed minimum to be applied. Yet, the default imposition of an aggravating circumstance (being a civil servant) was not explored by the SCC. Finally, whether the sentences imposed are commensurate with the amounts of monies stolen.Research limitations/implicationsThis research unravels key insights into the functioning of the SCC. It advances the knowledge thereon and adds to the literature on corruption in Cameroon.Practical implicationsThe prosecution and judges at the SCC should deepen their knowledge of Cameroonian criminal law, especially on the nature of liberty given to judges to determine within the prescribed range of the sentence to be imposed but also consider the existence of an aggravating factor – civil servant. They must also consider whether the sentences imposed befit the crime for which they are convicted.Originality/valueThe paper is an original contribution with new insights on the manner in which sentencing should be approached by the SCC.

Skazani na karę śmierci przez Specjalny Sąd Karny w Katowicach w latach 1945–1946

The purpose of this article is to present issues related to capital punishment in the jurisprudence of the Special Criminal Court in Katowice — one of nine special courts established to try “fascist and Nazi criminals” and traitors to the Polish nation. Records of death penalty trials, prisoners’ files from penal institutions, convict records, and articles in regional press were subject to scrutiny, which enabled establishing the names of 57 (or 58) people sentenced to death by the Special Criminal Court in Katowice between March 1945 and November 1946. The majority of the convicts were accused of denunciation to the German authorities, participation in arrests, and, in just three cases, murder. The Katowice Court was one of the special courts with the fewest instances of capital punishment. Thirty-two death sentences were carried out, and the remaining convicts (who constituted 40% of the total) were pardoned by the decision of the President of the National Council and left prison no later than in 1956.

A gente faz o mesmo exercício que o juiz faz : Práticas conciliatórias e sentidos de justiça nos Juizados Especiais Criminais

This paper aims to understand the practices and representations concerning the Special Criminal Courts. I analyse the situational ways of deciding, reconciling, and conducting audiences, which vary according to the conflicts, the parties involved, and the representations of the institutional actors related to this context and the functions of the courts. At the same time, I seek to reflect on the meanings of justice that guide the actions of these actors. The research show that some hearings which seem to prioritize procedural waivers, and that settlements/transactions are not always satisfactory for the establishment of dialogue and the harmonization of the social fabric.

Fases de uma audiência preliminar no Juizado Especial Criminal Uma abordagem linguístico-interacional

This paper aims to investigate the overall structural organization of apreliminary hearing in the Special Criminal Court, a court which is responsi-ble for judging misdemeanor cases. The research is based on the theoretical-methodological approach of Conversation Analysis (Sackset al.2003 1974),focusing on studies of institutional talk-in-interaction (Drew e Heritage 1992;Roberts e Sarangi 2005; Robinson 2013), as well as combining concepts fromInteractional Sociolinguistics (Gumperz 1999; Gumperz, J.J. 2002). The resultsshow four phases: opening, that occurs when the conciliator takes a roll call andgreets the parties; presentation of the problem, which happens when they explainlegal concepts to laypeople; offering to file the case, when the conciliator triesto persuade the parties to file and close the case; and ending, that takes placewhen the parties sign the paper agreement

A delineation of the impact of illicit financial flows on the right to development: details from Cameroon’s special criminal court

PurposeThis paper advances the argument that misappropriation of public funds should be construed as illicit financial flows (IFFs) which, undoubtedly, have an adverse effect on the realisation of the right to development. Furthermore, by detailing the nature of IFFs, this paper aims to demystify the shallow understanding of what is IFF or what are IFFs and why misappropriation of public funds should be seen in that light.Design/methodology/approachThis paper examines and interrogates the different judgements that have been delivered in cases tried and finalised by the special criminal court (SCC). With viewpoints that are backed by a theoretical understanding of Cameroonian criminal law in particular and criminal law in general, an analysis of the underlying intentions, motives and trajectories in the commission of misappropriation of public funds corroborate the view that the offence must be construed as IFFs. The data used in this paper are primary.FindingsA few pertinent findings were made in the course of this research. Firstly, the offence of misappropriation of public funds and IFFs are not distinct, and any effort to limit the use of “funds” to finances will ultimately miss the point as property with financial value will definitely amount to funds. Secondly, through misappropriation of public funds/property, IFFs have been committed based on the trends and figures disclosed in the judgements of the SCC. Finally, the right to development requires resources and by stealing public funds, resources are deprived, thereby compromising the realisation of development and the right to development.Originality/valueThis paper examines the impact of IFFs on the right to development within the context of Cameroon. By diagnosing the definition of the crime of misappropriation of public property or funds, the paper argues that such an offence must be seen as IFFs given its nature, the motive and intention underlying its perpetration. By taking such perspectives, this paper not only adds to the literature thereon but further brings in new perspectives on those aspects of Cameroonian criminal law.

Implementing transitional justice in post-transition Central African Republic: What viable options?

The Central African Republic currently is in search of the most suitable approach to adopt in order to address serious crimes and human rights violations committed in the country in recent years. This article is a contribution to the ongoing debate relating to transitional justice options in post-transition CAR. It suggests a three-pronged policy; focusing on the perpetrators, the victims and on society generally. The proposed policy in respect of perpetrators refers to the International Criminal Court, the Special Criminal Court and the national judiciary. Amnesty could be granted to suspected perpetrators willing to cooperate fully with transitional justice institutions. Such individuals equally could be subjected to diverse forms of lustration in exchange for forgiveness. As far as victims are concerned reparation programmes should be adopted and the necessary skills provided in order to enable them, their relatives and communities to earn a living. Lastly, society-focused transitional justice initiatives could involve the effective operationalisation of the Truth, Justice, Reparation and Reconciliation Commission, the establishment of a permanent national peace and dialogue commission and the involvement of community-based mechanisms and religious leadership. Yet, in order to increase the likelihood of success for the proposed transitional justice policy, the overall capacity of the CAR state ought to be significantly improved. Furthermore, external polities will have to refrain from interfering in the country's internal affairs and, at the same time, the international community should increase its support of the CAR.

Cameroon’s special criminal court: an appraisal of its first decade of existence

PurposeIn total, 10 years since the establishment of the Special Criminal Court (SCC) in Cameroon to deal with a specific kind of corruption, one may wonder whether any achievements have been made so far in fulfilling its mandate and also assuaging the tense and toxic perception that the Court was established as an arsenal to witch-hunt political opponents. This study aims to look into the work done so far in this regard, and makes an assessment as to whether any accomplishments have been made in the first decade of its establishment.Design/methodology/approachThis paper takes an evidence-based approach in seeking answers to what accomplishments, if any, have been made by the Court, explores the notion of corruption within Cameroon’s legislative and institutional landscape prior to the establishment of the Court and looks into the profiles of those who have been indicted by the SCC for that crime; the amounts that were misappropriated and for which they were convicted; the sentences imposed. It identifies some outstanding cases: where the amounts misappropriated exceeded a threshold and asks the question of what made it possible for these individuals to misappropriate such huge sums of money?FindingsThe inconsistencies and irrationality in the sentencing are a few findings made. Added to those is the timing of the establishment of the Court which, as most have perceived, is a political witch-hunting aimed at bringing credibility to a failed regime, as well as deal with a few political “irresponsibles” who were once the president’s buddies.Research limitations/implicationsThis research unravels key insights into the functioning of the SCC. It advances the knowledge thereon and adds to the literature on corruption in Cameroon.Practical implicationsThe establishment of the SCC is commendable. However, as it deals with but a particular kind of corruption, it might be necessary to rethink the need of additional institutional mechanisms that have specialized jurisdiction to deal with the different kinds of corruption in Cameroon.Social implicationsThe paper highlights the entrenched nature of corruption in the social fabrics of Cameroonian society, and exposes the need for a much holistic approach in dealing with corruption, as the SCC offers but one institutional mechanism toward that direction.Originality/valueThis paper, given the issues discussed therein, and considering the dearth of literature on the topic, advances the literature on the SCC in particular and the problem of endemic corruption in Cameroon in general.

UN Peace Operations and the Role of the Local in (Re)Building the Rule of Law

UN peace operations undertake a broad array of rule of law activities aiming to rebuild the justice system and end impunity. Rule of law activities in UN peace operations have matured over the last 20 years since the UN experiments with statebuilding in Kosovo and East Timor. Today, rule of law activities can often clearly be seen to advance the broader goal of establishing the host state as the legitimate authority. This paper first discusses the UN’s understanding of the rule of law and why the UN has chosen to underpin its peacebuilding agenda with ending impunity. Second, transitional justice in MINUSCA is discussed including the establishment of the Special Criminal Court. Third, UNMISS is investigated where the UN had an unprecedented challenge of ensuring the rule of law on protection of civilian sites. Lastly, the promise of local justice is assessed. It is suggested that while ending impunity and strengthening formal institutions can be important to ensure human rights violations do not persist, there needs to be an overarching, bottom-up strategy in place to engage and empower local communities, and other civil actors, to be part of the rule of law process.

The Right of the Amputees in the Sharia Courts of Sudan under International Law

This study explores how the amputees, under Article 168 (b) in the Sharia criminal judiciaries in Sudan can be assisted, under the obligation of the international law on the rights of natural persons to food. Scholars of the Islamic and international laws criticize the practise of amputation as it constitutes torture and other cruel inhuman degrading treatment or punishment and refrain from providing further hypotheses to the rights of the amputees to food as disables. This study rifts from mere criticism and urges the Government of Sudan to comply with its obligations, under the Islamic and international lawto incorporate into its National Constitution the right of the disables to food. In present Sudan, the ‘Decisive Criminal Courts’ and ‘Special Criminal Courts on the Events of Darfur’ have generated thousands of the disables. The courts amputated the cross limbs of the persons proved guilty of theft and highways robbery and left without food. The research recommends the creation of charitable commission in Khartoum and other remote cities such as Darfur to provide food for the starving population of the amputees.

The Continued Relevance of the Contributions of the Sierra Leone Tribunal to International Criminal Law

This paper introduces a special symposium issue of the Florida International University Law Review (Volume 15, No. 1, 2021) dedicated to the book The Legal Legacy of the Special Court for Sierra Leone, published by Cambridge University Press, July 2020. The symposium brought together leading scholars and practitioners of international criminal law, invited by the law review editors, to comment on the book. This introduction by the author briefly summarizes the contents of the book, highlighting the salient aspects of the Special Court for Sierra Leone’s jurisprudential legacy for international criminal law that it covers on key topics such as immunity of state officials from prosecution for international crimes, the legality of blanket amnesties for international crimes, the first prosecution of the war crime of child recruitment, the first prosecution of the crime of forced marriage as a crime against humanity, and the relationship between special criminal courts and truth and reconciliation commissions in the first post-conflict situation to experiment with both types of mechanisms.

Juizado especial criminal: a divergência doutrinária quanto aos efeitos da Lei n. 9.099/95 no processo penal brasileiro.

A entrada em vigor da Lei 9.099/95 promoveu importantes inovações no processo penal brasileiro, introduzindo uma jurisdição de consenso nitidamente distinta da habitual resolução contenciosa de conflitos. O procedimento dos Juizados Especiais Criminais, cuja criação é prevista na própria Constituição Federal de 1988, trouxe consequências para as vítimas e os autores das infrações delituosas de sua competência, notadamente em razão das medidas despenalizadoras nele previstas. A doutrina tem divergido quanto aos efeitos da Lei n. 9.099/95, e enquanto alguns autores sustentam a violação do diploma a certos princípios constitucionais, outros entendem que ele trouxe apenas benefícios para ambas as partes da situação delituosa, e para a Justiça Criminal como um todo. Considerando que o procedimento do Juizado Especial Criminal está cada vez mais presente no cotidiano forense, a análise de alguns aspectos principais da Lei n. 9.099/95, bem ainda de posições doutrinárias a respeito do assunto, é imprescindível para a formação de um juízo crítico e consciente a respeito da matéria, o que se pretende com o presente trabalho.

The Special Criminal Court in the fight against illicit flows of wealth and the realisation of the right to development in Cameroon: Prospects and challenges

Cameroon is party to the African Charter on Human and Peoples’ Rights and as such, is compelled to give effect to the right to development enshrined therein. To this end, it has incorporated the right to development in its Constitution. Aware that the achievement of the right to development necessitates an effective mobilisation of resources by the state, the government has established a number of institutional mechanisms such as the National Anti-Corruption Commission (CONAC), the National Financial Investigations Agency (ANIF), the High State Audit Agency (CONSUPE), and the Special Criminal Court (SCC) in the fight against corruption. Yet, the illicit flows or illegal acquisition, use or transfer of wealth and natural resources from the country through corruption continues to thrive. This article explores the extent to which the SCC, which is the central focus of this article, could protect the country’s wealth and resources from illicit flows. It further examines the extent of illicit flows in Cameroon, the mandate of the SCC, its functioning and its ability to tackle the scourge. The article finds that, in spite of good prospects based on its mandate, the SCC is not able to shield the country’s wealth and natural resources from illicit flows because of its dependence on, and control by the executive arm of the state that pulls the strings of its operation. It calls for an effective separation of powers with a fully independent judiciary if the plundering of wealth and natural resources is to be addressed through the SCC to ensure the enjoyment of the right to development in the country.

Assessment of Efforts to Hold Perpetrators of Conflict-related Sexual Violence Accountable in Central African Republic

Abstract Sexual violence is commonly described as an epidemic in the Central African Republic (CAR) and other conflict settings. In response, the government and the international community have launched major efforts to combat sexual violence, including the investigation and prosecution of sexual crimes and offences by the ordinary justice system, the Special Criminal Court in the Central African Republic, and the International Criminal Court. Yet, little is known about how these efforts are perceived among the population and about their effectiveness at reducing exposure in a context of ongoing violence. This article builds on a unique series of four surveys conducted at six-month intervals between 2017 and 2018 with a total of 25,143 randomly selected adults. It assesses the magnitude of sexual violence and shows that respondents positively perceive efforts to combat sexual violence and increasingly understand and trust the justice system. Disclosure of sexual violence is increasing, but only one in five victims files a formal complaint with security and justice actors. Factors undermining disclosing or filing of complaints about these widespread events include fear of retaliation, re-traumatization, and stigmatization. Investigating sexual crimes in a context of insecurity is extremely challenging and the work of the various courts is hindered by practical, procedural, and social challenges detailed in this article, as well as the need to coordinate prosecutorial strategies. There is an urgent need to build capacity and to ensure appropriate and compassionate treatment towards those who have been assaulted. Monitoring perception of criminal justice efforts is an important step towards understanding their contribution to ending sexual violence and to peace.

Collaborators, Informers and Agents in Occupied Krakow: A Contribution to Further Research

This study contributes new research exploring cases of collaboration with the German authorities and the phenomenon of delators (denouncers), informers and agents in occupied Krakow, as well as letters of denunciation. Cases linked to the blackmailing at the beginning of World War II of Jews, and as the war continued of colleagues and neighbours working for the resistance and of disliked relatives and in-laws are also taken into account. Letters written by Krakow inhabitants – some anonymous, others signed – are appraised for information contained therein on political, racial, economic, social and fi nancial matters. The article also describes the activities of the Polish resistance against collaborators and the post-war settling of scores through the Krakow Special Criminal Court in the early post-war years.

UN Peacekeeping and Local Rule of Law Initiatives in the Central African Republic

To strengthen the local capacity of post-conflict states, multidimensional peacekeeping operations increasingly focus on strengthening the rule of law and building sustainable peace in the mission area. Considerable success was achieved in the Central-African Republic where the UN mission MINUSCA supports the local government in establishing the Special Criminal Court and restoring other local judicial mechanisms. This paper explores how MINUSCA supported local rule of law mechanisms in the Central African Republic, and how this contributed to so-called local justice. Special attention goes out to MINUSCA's support to the CAR government in establishing the Special Criminal Court, by including the local population in doing so as well as by strengthening local ownership and knowledge on existing judicial mechanisms. In arguing that the joint effort made by UN peacekeeping troops and local actors strengthens local justice, this paper underlines the importance of tackling the war economy as an important obstacle to establishing a functional rule of law in the CAR.

The Strength of Legal Proof in Filing a Civil Lawsuit Against Corruption Actors

The use of civil instruments in corruption cases is fully subject to the provisions of civil law both formally, materially and even to immaterial losses. In accordance with Articles 32, 33 and 34 of Law Number 31 of 1999 concerning Eradication of Corruption, there is a formula regarding the submission of the results of the investigation into the State's loss to the State Attorney. The prosecutor must be able to really prove that the defendant actually committed an act of corruption. In accordance with the concept of proof in civil law, JPN must be able to convince the panel of judges by basing on a clear legal basis, the existence of an element of loss and explaining the occurrence of acts of corruption that are detrimental to the State's finances. However, it is often difficult to substantiate civil lawsuits to prove, given that the perpetrators of corruption in general are those who have very strong positions or experts. The research method used in this research is analytical descriptive. The research results obtained can be seen from the strength of the evidence in filing a civil claim must first trace assets owned by the perpetrators of corruption as the basis and reason for the lawsuit but the civil suit has not been effectively proven by relying only on special criminal courts because the imposition of fines and reimbursement is included without taking into account any immaterial losses that can be paid in the future.