Comparative Criminal Law

On the Purposes of Legality and its Applicability to International Law

by William Worster

Book Review: Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge:... more Book Review: Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge: Cambridge University Press, 2009), 632 pp. £64.00 (Hardback) ISBN 978-0-52-188648-2

Humanitarian engagement under counterterrorism: a conflict of norms and the emerging policy landscape

by Dustin A. Lewis

Co-authors: Naz K. Modirzadeh, Dustin A. Lewis, and Claude Bruderlein, International Review of the Red Cross, Volume 93, Number 883, September 2011

This article identifies two countervailing sets of norms — one promoting humanitarian engagement with non-state armed... more This article identifies two countervailing sets of norms — one promoting humanitarian engagement with non-state armed groups (NSAGs) in armed conflict in order to protect populations in need, and the other prohibiting such engagement with listed ‘terrorist’ groups in order to protect security — and discusses how this conflict of norms might affect the capacity of humanitarian organizations to deliver life-saving assistance in areas under the control of one of these groups. Rooted in international humanitarian law (IHL), the first set of norms provides a basis for humanitarian engagement with NSAGs in non-international armed conflict for the purpose of assisting populations under their control and promoting compliance with the rules of IHL. The second set of rules attempts to curtail financial and other forms of material support, including technical training and co-ordination, to listed ‘terrorist’ organizations, some of which may qualify as NSAGs under IHL. The article highlights counterterrorism regulations developed by the United States and the United Nations Security Council, though other states and multilateral bodies have similar regulations. The article concludes by sketching ways in which humanitarian organizations might respond to the identified tensions.

Conspiracy Part. III

by Costantino Grasso

published in "La Giustizia Penale" (June 2006)

This paper represents the third part of a work that deeply analyzes the offence of conspiracy as recognized in the... more This paper represents the third part of a work that deeply analyzes the offence of conspiracy as recognized in the common law legal systems. The paper was elaborated after a period of research done at the De Paul University, College of Law, Chicago. This third paper considers the particular statutory offence of Continuing Criminal Enterprise as developed by the U.S. Congress with the Comprehensive Drug Abuse Prevention and Control Act of 1970. In particular, it is analyzed the definition and the nature of the offence and it’s relation with the common law conspiracy.

Conspiracy Part. II

by Costantino Grasso

published in "La Giustizia Penale" (May 2006)

This paper represents the second part of a work that deeply analyzes the offence of conspiracy as recognized in the... more This paper represents the second part of a work that deeply analyzes the offence of conspiracy as recognized in the common law legal systems. The paper was elaborated after a period of research done at the De Paul University, College of Law, Chicago. This second paper considers the structure of the offence. In particular, it focuses on its definition and juridical nature (inchoate offence); the actus reus (the agreement and the overt act); the mens rea; the necessity of a criminal collaboration, aiding and abetting (with a specific reference to the Pinkerton rule); the U.S. Federal Conspiracy Law.

Conspiracy Part. I

by Costantino Grasso

published in "La Giustizia Penale" (April 2006)

This paper represents the first part of a work that deeply analyzes the offence of conspiracy as recognized in the... more This paper represents the first part of a work that deeply analyzes the offence of conspiracy as recognized in the common law legal systems. The paper was elaborated after a period of research done at the De Paul University, College of Law, Chicago. In particular, this first paper focuses on the historical evolution of the offence and on the doctrine of Hawkins that is analyzed also under a critical point of view. Moreover, in the last part of the paper there is an evaluation between the structure of the conspiracy and the fundamental freedoms.

Society is Entitled to But One Satisfaction: Ne bis in idem and Jurisdiction Questions in the Gabe Watson Case

by Melanie O'Brien

Published in Crime, Justice, and Social Democracy, Conference Proceedings, Queensland University of Technology, (Brisbane, 26-28 September 2011), pp. 61-78..

The case of Gabe Watson, termed by the media ‘The Honeymoon Killer’, is well-known in Australia and the US. Watson, an... more The case of Gabe Watson, termed by the media ‘The Honeymoon Killer’, is well-known in Australia and the US. Watson, an American, was accused of the murder of his wife on their honeymoon while they were scuba-diving on the Great Barrier Reef. He was subsequently convicted of manslaughter, served 18 months in an Australian prison, and was deported to the US. Upon arrival in the US, Watson was extradited from California to Alabama, where he is awaiting trial on charges of murder and kidnapping.
This paper will examine two potential serious human rights violations that the impending trial of Watson presents: ne bis in idem, and extra-territorial jurisdiction. While Australia avoided violating international law by deporting rather than extraditing Watson, the first concern is that the US state of Alabama is seeking to try Watson for conduct he was already convicted of by an Australian court. The second issue is whether a state of the USA has the jurisdiction to try one of their nationals for conduct committed in the territory of Australia. An analysis of this specific case and its charges will be presented in the context of the Australian, US, and international application of extra-territorial jurisdiction and the ne bis in idem principle.

Σύγχρονες τάσεις του εγκλεισμού (Contemporary tedencies of incarceration/Les tendances actuelles de l'incarceration)

by Stavroula Bougadi

Published in "ΠΟΙΝΙΚΗ ΔΙΚΑΙΟΣΥΝΗ ΚΑΙ ΕΓΚΛΗΜΑΤΟΛΟΓΙΑ" (Journal of CRIMINAL JUSTICE AND CRIMINOLOGY) ,ATHENS 1/2010
Please cite in Greek as: Μπουγάδη Στ.(2010) "Σύγχρονες τάσεις του εγκλεισμού:Από το αναμορφωτικό ιδεώδες της δεκαετίας του'70 στη σημερινή κατάσταση",Ποινική Δικαιοσύνη και Εγκληματολογία, 1, 28-40
Abridge version has published as: Bougadi St. (2011)"The Contemporary tendencies of Incarceration:From restorative ideal of the '70s to Current Situation", in Farsedakis J.,"The contemporary criminality,its confrontation and the science of Criminology,Vol.I,ATHENS:NOMIKI BIBLIOTHIKI,pp.837-856

The modern model of penal control of crime and criminal it constitutes intermixture of the systems that were applied... more The modern model of penal control of crime and criminal it constitutes intermixture of the systems that were applied occasionally.
Besides, it is characterized by its internationalisation, which begins –traditionally henceforth– from the USA and is scattered in the entire
world. The prisons, internationally, present common characteristics traits as they are: the continuous increase of their population,
the“overpopulation“, the large number of foreigners, pre-judicial people and large majority of men condemned for laws about narcotics,
etc. According to the last record of World Prison Population List, what is based on elements that were available up to in October 2006,
more from 9,25 millions persons are jailed worldwide and most as prejudged despite as condemning. In our country, as in other countries
of Western world, its correctional population increased iniquitous the last fifteen years. In the study that follows we will present tendencies
of incarceration the last decades in Greece compared to other countries and the problems that result from the squalid conditions of
imprisonment and violation of fundamental human rights of inmates.

Inquisitorial or Adversarial? The Role of the Scottish Prosectutor and Special Defences

by Allard Ringnalda

Published in [2010] 6 Utrecht Law Review, pp. 119-140.

The article discusses whether a rule that requires the defence to give prior notice of its strategy and arguments to... more The article discusses whether a rule that requires the defence to give prior notice of its strategy and arguments to the prosecution has any bearing on the role of the prosecutor being inquisitorial or adversarial. The rule of special defences in Scottish criminal procedure, which combines inquisitorial and adversarial characteristics, is analysed. On the basis of the historical background of this rule and of Scottish criminal procedure in general, it is submitted that the rule exemplifies inquisitorial ideology, while Scottish procedure is by and large adversarial. The prosecutor may well be expected to use the information gained from an advance notice in an impartial manner, requiring him to investigate exculpatory evidence for the defence. Even though no clear legal duty to that effect exists, the Scottish prosecutor has considerable discretion to engage in informal cooperation with the defence. It is argued that a duty to act impartially may exist within this context of informal cooperation. The Scottish example shows that a rule on special defences need not imply an inquisitorial role for the prosecutor, but it can do so. As prosecutorial discretion and informal cooperation are pivotal for this inquisitorial role, the coherence of the criminal process may change if this discretion is limited by prosecution directives. The resulting loss of the magisterial role of the prosecutor may have to be compensated by a stronger position for the defence, as it may be dependent on the prosecutor’s impartiality for a fair trial.

Review: Charles J. Ogletree, Jr. and Austin Sarat, eds., The Road to Abolition? The Future of Capital Punishment in the United States; Robert M. Baird and Stuart E. Rosenbaum, eds., Death Penalty: Debating the Moral, Legal and Political Issues

by Ben Pesta

California Lawyer, December, 2010

SULAIKYMAS BEI KARDOMOJI PRIEMONĖ PAGAL SULAIKYMAS BEI KARDOMOJI PRIEMONĖ PAGAL LIETUVOS ĮSTATYMUS IKI 2001 METŲ IR …

by Tadas Klimas

Free copy of the paper at the link provided

Abstract:
As could be expected, there was no systemic respect for the individual in the legal system of the... more Abstract:
As could be expected, there was no systemic respect for the individual in the legal system of the Soviet Union, which had occupied independent Lithuania during World War II. That was reflected in the statutes Lithuania inherited upon re-establishing its independence in 1990, but it was also reflected in what might be termed a subconscious and ingrained approach. Thus it can come as little surprise that Lithuania’s statutes, principally its Criminal Procedure code, treated both arrest and the setting of bail in ways which we would condemn as violative of human rights. The institute of arrest was basically understood as just another investigative-interogative technique. And there were no real criteria in regard to the denial of bail; a person could be ordered to be incarcerated until his or her trial even if there were no probable cause that he or she might flee or commit a crime unless incarcerated. The article showed that this situation violated the European Convention of Human Rights, which Lithuania had signed in 1995. The article attempted to dissect the criteria needed in order to make a lawful arrest and in order to deny bail, and it tried to do so in a manner which would help the Lithuanian reader re-program him- or her- self, that is, which would give the Lithuanian reader a true and ‘essential,’ as it were, understanding of the ‘institutes’ (as the Europeans call them) of arrest and of the denial of bail (incarceration until trial). In 2001, Lithuania adopted a new code of criminal procedure. Therefore the references in the paper to the old code are outdated. But the problem continues. Law enforcement and judges in Lithuania routinely order persons to be arrested and to be incarcerated pre-trial (denying them bail) in order to elicit confessions. This is asserted in the latest issue of Lietuvos Advokatura [“Lithuania’s Bar”] (2009 no. 2 (31)) in an article written by one of its editors, Kestutis Lipeika, who is the name attorney in one of Lithuania’s largest law firms. The article, entitled ‘Problema: Suemimo taikymo pagristumas’ [Problem: Justification of Pretrial Incarceration] describes the situation as one in which the ‘justification for incarceration is given only formally’ and proposes that a provision be adopted in the code which would require that the information contained in the casefile justify the order of incarceration, which, we are to understand, is not the present practice. Perhaps more importantly, the Lipeika article points out that … orders, given by a judge, to arrest and incarcerate a person pending trial are not subject to cassational appeal and therefore are not subject to review by the Supreme Court of Lithuania. It is incredible to me that a code adopted by a nation which is now in the European Union could contain such a provision. Freedom from unlawful arrest is a cardinal freedom, and yet the code provides that it is unreviewable by the nation’s highest court. I suppose I should be happy that the point in made in my own article is abundantly proven. I would rather have been proven wrong. In short, my ten year old article appears to remain on point.

Note: Downloadable document is in Lithuanian.

Case Note: The Court of Appeal's Lack of Jurisdiction to Reopen Appeals: Abdullah Bin A Rahman v Public Prosecutor [[1994] 3 SLR [Singapore Law Reports] 129, CA]; Lim Choon Chye v Public Prosecutor [[1994] 3 SLR 135, CA]

by Jack Tsen-Ta Lee

[1994] Singapore Journal of Legal Studies 431

It is ironic that Abdullah bin A Rahman v PP and Lim Choon Chye v PP were decided in the aftermath of the Birmingham... more It is ironic that Abdullah bin A Rahman v PP and Lim Choon Chye v PP were decided in the aftermath of the Birmingham Six, Guildford Four and Maguire Seven cases from the United Kingdom. As in these cases, Abdullah and Lim Choon Chye highlight a serious flaw in our criminal justice system: there appears to be no appropriate way to correct miscarriages of justice. The purpose of this case note is to set out the conclusions reached by the Court of Appeal and to suggest directions for the future.