The suppression of transnational organised crime has continued to rise on the agenda of the international community and is today an affirmed goal of most states. To increase the effectiveness of suppression, it is necessary for states to cooperate across borders in criminal investigations. The legal regime by which this is done is called mutual legal assistance, MLA, and is one of the most practically important developments in public international law over recent decades. The development however has led to several unanswered questions regarding the position of the individual in the procedure. Those are manifested in three main areas, namely; the requirements for employment of MLA; the application of exceptions and; human rights protection.   This thesis elaborates on and analyses the balance between effectiveness in formal international law enforcement and the protection of fundamental rights in such procedures in the three main ambiguous areas.   The analysis points to the importance of the principle of reciprocity for effective cooperation and argues that the conditions for MLA should not be altered. It argues that the number of exceptions shall be kept at a minimum. However, the efforts to abolish the exception for offences of a political nature should be halted or at least approached with more caution. This is true also of when concerning terrorism offences.   The analysis shows that the protection available to the person whom the MLA request concerns is inadequate. There is an urgent need to reform the system in that respect, in particular by opening channels of complaint.   The final conclusion is that, in light of the unquestionable importance of MLA in the suppression of transnational organised crime, it is possible to make limited reform in the areas of human rights and the guarantee of a right to a fair trial without jeopardising the necessary effectiveness of the system.

Disertacija--Belgrad. / At head of title: Institut za kriminološka i kriminalistička istraživanja. Odeljenje za krivičnopravne nauke. Summary in English. Bibliography: p. 311-316.

Thesis (doctoral)--Universität, Bonn, 2004.

In the past 20 years the defence of provocation has shifted from the periphery of South African law to a fully developed defence available to those who kill when provoked. Not only is the defence available to the provoked, but it has been extended to those who kill when subjected to emotional stress. However, the defence is mirred in controversy and bad decisions. Not only has the precise nature of the defence not been clarified, but this lack of clarity has been exacerbated by confusing decisions of our courts. This confusion is partly a result of the development of the defence of incapacity, particularly its extension to cases involving provocation and mental stress, and partly a result of its application in practice. Three major problems have plagued the provocation defence. Firstly, the courts have confused the defence of sane automatism with that of non-pathological incapacity. Secondly, there has been an implied use of an objective test in determining criminal incapacity where the enquiry has clearly been a subjective one. Thirdly, it has been held that the problem may not so much be the subjective aspect of provocation, but rather its application. The real problem seems to lie in the theoretical confusion as to the precise meaning of lack of “selfcontrol”. Lastly, on occasion the courts have failed to distinguish lack of capacity from diminished responsibility. Thus, in order to gain clarity concerning this “grey” area of the law these problems have created, it is necessary for South African law to consult more authoritative sources to receive guidance for the problems identified. One of those sources that has been consulted is that of English law. English law, however, deals with the defence of provocation in a different manner. Raising a defence of provocation here does not result in an acquittal but rather in a reduction of the charge to manslaughter. However, the English law on provocation is also 7 plagued by various problems. Firstly, there is the issue of cumulative provocation. Generally, there is little difficulty in cases where there is no “immediate trigger”. Secondly, the fundamental flaw with the current test of the reasonable man is that the courts have had to swing between the two aims of taking a compassionate view of human frailty while endeavoring to maintain an objective standard of the reasonable man. Lastly, it can be said that the problem with the proportionality requirement is that it makes the provocation defence dependant upon the assessment of the accused’s conduct after he or she lost his or her selfcontrol rather than on his or her giving way to passion and losing control in the first place. It is clear that from the problems identified in both South African law and English law concerning the defence of provocation the courts in each jurisdiction will have to pay careful attentio n to the problems highlighted and apply the law in such a way so as to ensure clarity and legal certainty.

published_or_final_version / abstract / Criminology / Master / Master of Social Sciences

No description available.

The objectives of this thesis are twofold: firstly, demonstrate that the string of contradictions stretching across substantive and procedural corporate criminal law may be avoided if courts refer to an appropriate mechanism of imputation; and secondly, show how such an appropriate mechanism of imputation may be determined. This study adopts a three-step process to achieve these objectives. The first step involves elaborating on the lack of coherence and integrity in the imputation of acts and intents (or causal relationships) to corporations caused by a disjunction of rules invoked by courts. The second step involves establishing parameters by which mechanisms of imputation may be evaluated. The third step involves evaluating a number of samples by reference to the established parameters. Five mechanisms of imputation applicable in the United Kingdom and in some jurisdictions that trace their legal heritage to the United Kingdom are evaluated. In the conclusion, it is submitted that although none of the mechanisms evaluated may be deemed to be the appropriate mechanism, the aggregation doctrine is the least inappropriate. This is because although it requires some modification, it can best be aligned with propositions of how the criminal liability of corporations may be established on a coherent and consistent basis. The propositions that are put forward include the use of the doctrine of innocent agency to establish a corporation’s guilt in instances where no guilty agent may be identified; and the use of the principle of accessorial liability to establish a corporation’s guilt in instances where a guilty agent may be identified. The aggregation doctrine as modified in this study will enable the prosecutor to establish a corporation’s guilt as advised above if measurable values are given to the ‘innocent’ acts of agents and if emphasis is placed on how the corporation reacted to the discursive dilemma that arose in the decision-making process that preceded the performance of the relevant activity. This will provide evidence to the effect that the aggregated act represents the corporation’s subjective position.

No description available.

No abstract provided

The term ‘hypoplasia' refers to a biological inability to mature properly, due to disease or an inadequate supply of nutrients, which results in incomplete or arrested development. This thesis will seek to demonstrate that the concept 2 of ‘hypoplasia' best represents the arrested development of the Defence role in International Criminal Law (ICL). The limited and delayed development of the Defence during the creation of the institutions will be argued as having resulted in profound and lasting consequences, which affect all manner of defence functions, both in theory and in practice. It will be argued that whilst the ‘modern institutions' provide fair trial protections in their various statutes, rules and codes, such guarantees do not manifest adequately into practical safeguards at trial. Thus, it will be argued ultimately that, when considered collectively, there exists an Inequality of Arms at the modern ICL courts and tribunals, which is worthy of greater consideration and recognition. This Chapter will begin by considering the relevance of the international context for the ICL accused, both in relation to the severity of the crimes of which he is accused, and the global platform on which he appears. Next, Section 3 will provide an overview of the structure of this thesis. Section 4 will then set out the research methods used, together with a rationale justifying the selection of the ‘modern institutions' (ICTY, SCSL & ICC), which form the focus of this study. Sections 5 & 6 will attempt to draw together some of the key themes of this thesis, including the anxiety surrounding the international accused which, it will be argued, has ultimately led to the ‘hypoplasia' of the Defence.