To date, the arrest warrants issued by the ICC against the Sudanese President, as a suspect of heinous international crimes committed in Darfur, have not been enforced. This thesis questions and analyzes the reasons behind this failure. The thesis also considers the question whether the official status of Omar Al Bashir, as the incumbent head of state, shields him from prosecution before the ICC. To answer this question, the thesis examines the various international law theories related to the heads of state immunity and explains their relevance and applicability to the case of Al Bashir. Finally, the thesis evaluates the likelihood of the arrest of the Sudanese President and explores the legal foundation of each possible action. The thesis concludes that the Genocide Convention remains the most instrumental and effective authority for the apprehension of Al Bashir, and it further illustrates its binding effect beyond the ICC states parties.

The continued criminalisation of adult commercial sex work in South Africa seems to have contributed to the unjust violation of sex workers’ constitutional rights such as the rights to equality, human dignity, privacy and the right to bodily integrity. It is evident that laws enforcing sexual morality often increase the stigmatisation and marginalisation of minority groups. In Teddy Bear Clinic for Abused Children and Others v Minister of Justice and Others, both High Court and Constitutional Court held that the criminalisation of consensual sexual intercourse and consensual sexual violation between two minors of ages twelve to fifteen is inconsistent with the Constitution. In Teddy Bear both courts relied on the argument that the criminalisation constituted a violation of the children’s rights to dignity, privacy and self-autonomy. The courts’ reasoning is logical. However, it takes one back to the issue of adult commercial sex which still remains criminalised in South Africa. If both courts in Teddy Bear could order for the decriminalisation of consensual sex between minors of certain age groups, then the continued criminalisation of adult commercial sex work should also be called into question. This dissertation argues that the regulation of sexual morality often unjustly infringes the constitutional rights of those targeted. It has also been identified that criminal and human- rights law are frequently applied in an unfair and biased manner by South African courts. Examples are cited in the dissertation of court cases where courts applied a flexible approach towards the development of common law, whilst in other cases the courts seemed to hide behind the separation of powers doctrine instead of tackling the issues of human- rights violations. The first chapter of the dissertation contains the problem statement, research questions, motivation, literature review and a brief outline of the chapters. The second chapter explores the question of the morality which is endorsed by the South African Constitution. The third chapter identifies the biased and unfair application of criminal and human- rights law by South African courts. The fourth chapter contains an argument on the courts’ duty to interpret legislation and to develop common law in a manner that promotes the spirit, objects and purport of the Bill of Rights. Chapter five contains a brief international perspective on adult commercial sex work, by looking at the New Zealand position and other relevant international law instruments. Chapter six contains the conclusion of the dissertation. It is proposed that when dealing with the issue of adult commercial sex work, the legislature should be careful not to enact laws which disregard the sex workers’ human- rights. Here one can cite New Zealand as a country that has taken a human- rights approach when tackling the issue of adult commercial sex work. A human -rights approach aims to empower people in the sex work industry to make informed choices regarding their health and other choices relating to their overall safety. This approach represents a shift from a moralistic approach to sex work to an approach that recognises the rights of sex workers. The case of S v Jordan provided a platform that the judiciary should have used to eliminate human -rights violations brought by the criminalisation of adult commercial sex work. Failure of the Constitutional Court in Jordan to approach the matter from a human-rights perspective has come as a huge disappointment to the attempts to reform one of the oppressive and moralistic laws which continue to exist even during the post Constitutional era. / Dissertation (LLM)--University of Pretoria, 2013. / Public Law / unrestricted

Thesis (doctoral)--Friedrich-Alexander-Universität Erlangen-Nürnberg.

Le constat est aujourd’hui unanime. Le principe de légalité criminelle est affaibli par les évolutions du droit. En effet, la loi pénale n’est plus l’unique source du droit pénal, sa qualité est en déclin et le juge joue désormais un rôle incontestable en droit pénal. Ces évolutions sont ancrées dans le droit pénal, dont elles sont des paramètres. Il est impossible de revenir en arrière afin de retrouver un droit pénal conforme au principe de légalité criminelle, tel que proclamé par les révolutionnaires de 1789. Il convient alors de le faire évoluer. Ainsi, ces paramètres ont en commun d’être à l’origine de la norme pénale. Contrairement à la loi pénale, la norme pénale intègre toutes les évolutions du droit pénal. Cette norme pénale est au cœur du droit pénal dont elle en est la source. Le principe de légalité criminelle n’est donc plus configuré autour de la loi pénale, mais autour de la norme pénale. Par conséquent, il convient de parler de principe de normativité criminelle. Cette reconfiguration est ainsi la solution face à un principe de légalité criminelle et une loi pénale en déclin. Elle permet de garantir la protection des droits et liberté individuelle tout en tenant compte des évolutions du droit. Il convient dès lors d’affirmer « qu’il n’y a pas d’infraction sans norme pénale ». / The consensus today is unanimous. The principle of criminal legality has been weakened by developments in law. Statute law is no longer the sole source of criminal law ; its influence is declining and judges will play an indisputable role in criminal law. These developments are rooted in criminal law, of which they are parameters. It is impossible to find a criminal law in history that conforms to the principle of criminal legality such as that proclaimed by the revolutionaries of 1789. It is therefore appropriate that it should evolve. Therefore, these parameters are together the origin of the criminal standard. Contrary to statute law, this standard integrates all developments in common law. This standard is at the core of the common law for which it is the source. The principle of criminal legality is therefore no longer configured with reference to statute law but the criminal standard. As a consequence, we should speak of the principle of the standardisation of criminal law. This reconfiguration is therefore the solution to a principle of criminal legality and a statute law in decline. It allows for the guaranteed protection of individual rights and liberties taking into account developments of law. From now on, it shoudl be affirmed « that there is no crime without the criminal standard ».

This research was focused on analyzing and interpreting the U.S. Supreme Court’s holdings in several cases that directly affect the juvenile justice system and the sentencing process of youth offenders. Drawing primarily from Miller v. Alabama (2012) and the Supreme Court’s ‘Miller doctrine’, this thesis goes against the viewpoints of many policymakers, arguing that life without parole and mandatory adult sentence minimums for youth offenders are ‘cruel and unusual’ punishments that are unconstitutional as sentencing options for a juvenile offender. In order to arrive at the conclusion that the aforementioned punishments violate a youth’s 8th Amendment right to a proportional sentence, this thesis drew from previously unavailable research in modern neuroscience that substantiates the Supreme Court’s claim that “Children are different” on a developmental basis and thus, can never possess the same degree of culpability for a crime as an adult offender. If one accepts the conclusions made in this thesis, it is a matter only of when, not if, the sentencing process for youth offenders experiences a paradigm shift on a legislative level, and becomes a much more efficient and successful process where rehabilitation becomes the foremost goal. If science and developmental psychology support the Supreme Court’s assertion that nearly all juvenile crime-activity is the result of “transient immaturity,” then why are 16 year olds being sentenced to life without the possibility of parole? This thesis explores the possible answers to this question, and anticipates the possible impediments to national changes in juvenile sentencing procedures.

The juvenile justice system was originally set up under the philosophy that juveniles are inherently different than adults and therefore should not be subject to same harsh punishment as adult criminals. Rehabilitative treatment methods became the center of the juvenile justice system in order to reduce recidivism rates and help reintegrate youths back into society as smoothly as possible. This philosophy changed early in the 21st century, and many states began treating youth offenders in ways similar to adult offenders, with a particular increase in direct files of juveniles to adult court. After about a decade of harsh punishment, the system once again reverted back to the rehabilitative model. California did so through several legislative reforms; however these reforms have not been as successful as they should have been, and the system is still in a state of disarray. California is currently balancing a failing state juvenile justice system while trying to simultaneously support realignment efforts to the county level. After evaluating the failures of Division of Juvenile Justice and the capacity of the counties, it is evident that counties are not only physically equipped to take on the increased responsibility but are much better suited to do so financially. To best uphold the original goals of the juvenile justice system and the rehabilitative model, California should move to close the Division of Juvenile Justice and completely realign all responsibility to the counties. Keeping juveniles close to their communities creates stronger ties, more continuity of treatment, and reduces the likelihood a youth will reoffend. By tailoring treatment to the individual on a local level, problems such as mental illness, substance abuse, and anger management, can be directly targeted and solved. Intervening at first arrest with effective treatment programs is crucial to decreasing the chance that a juvenile will become a career adult criminal. These juveniles are the future of society; focusing on the rehabilitation of these youths will not only increase community safety but will also produce healthy, productive citizens to contribute to the economy.

The purpose of the research work outlined in this thesis is to determine what impact the new test for exclusion developed in Grant and Harrison has had on exclusionary trends in Canada, to assess this new three-factor approach and to provide recommendations for improvement. To this end, I conducted an empirical survey of section 24(2) cases rendered in 2012 across Canada. Based on the results of this survey, I describe the current trends for exclusion in relation to the three lines of inquiry and the Charter right at issue. I also examine the application of the test to varying types of evidence. The survey found a high rate of exclusion in the 73% range. The survey results show that developing trends do not match the predictions made by the SCC in Grant about how exclusion would operate in relation to different types of evidence. For example, there was a higher than expected rate of exclusion for breath sample results. Moreover, there was a low exclusion rate for guns as compared to the high exclusion rate for other types of non-bodily physical evidence. The rate of exclusion for section 10(b) breaches was lower than expected given the importance of the Charter interests that section 10(b) protects. The Grant rationale and the discretionary approach to exclusion are, in my view, generally satisfactory. However the test could be improved. As regards the first Grant factor, there was considerable variation in the assessment of the seriousness of the violation given the fact-specific nature of the inquiry. For greater consistency and transparency, the test, in future, should not incorporate the good faith doctrine. Police conduct should be assessed on the basis on a scale of intentionality ranging from negligent to deliberate conduct, rather than the current process of labeling police conduct as good or bad faith. Moreover, the doctrine of discoverability should be abandoned. The focus should be placed on the events that actually occurred rather than on whether police could have obtained the evidence by legal means. / Thesis (Master, Law) -- Queen's University, 2013-08-30 20:10:02.008

This thesis is a critique of the European Court of Human Rights’ case law on the right to a fair trial in criminal cases. It is the result of a focussed and extensive survey of Article 6 case law, and, unlike other work on Article6, does not analyse each component right of Article 6 one-by-one. Instead, the thesis considers ‘cross-cutting’ themes common to all, or many, of the Article 6 component rights: how the Court interprets Article 6, how the Court sees its role in Article 6 cases, how the Court approaches Article 6’s internal structure, the Court’s implied rights jurisprudence, and how the Court assesses alleged Article 6 violations. In considering how the Court assesses alleged violations of Article 6, the thesis charts the Court’s attempts to solve ‘the puzzle of Article 6’: how should violations of Article 6 be assessed in the absence of an express metaprinciple? In this regard the thesis examines notions such as the proceedings as a whole test, counterbalancing and defect-curing, the ‘never fair’ jurisprudence, and the extent to which the public interest may justify restrictions on Article 6. The thesis uses a rule of law framework to test the Article 6 case law for its ability to provide guidance to citizens, lawyers and officials. It argues that the case law is marked by considerable uncertainty, inconsistency, and incoherence, with the result that the ability of that case law to provide guidance is significantly undermined. Indeed, the thesis establishes that there is inconsistency and uncertainty within the various tools and approaches used by the Court, and that there is significant incoherence between those approaches. To the extent the thesis makes a normative argument, it constitutes a robust and targeted call for the Court to adopt in this area of law a renewed, rejuvenated approach that is more consistent, more coherent, and better explained.

Resumé The aim of this final thesis is to evaluate stalking - the phenomenon which gained infamy over the last few decades - and its legal definition. Stalking or "dangerous pursuit" (literal translation name of the Czech criminal offence of stalking) is also a new offence under Czech Criminal Code no. 40/2009 which was entered into force on the 1st of January 2010. The main goal of this newly introduced criminal offence is to cover the psychological and social phenomenon of the same name, stalking, and the main goal of this thesis is to critically assess whether this criminal offence, "dangerous pursuit", is successful in criminalizing the stalking phenomenon and whether its form is an effective instrument in fighting stalking. The thesis begins with a short overview which aims to unveil the main ratio behind the call for a legal regulation of stalking. Then a psychological and social peek into the depths of this phenomenon follows (encompassing some of the most widely used typologies and even some clinical opinions on punishing and treating stalkers), which allows to critically evaluate the efficiency of that new criminal offence later on. After this explanation of stalking as a psychological and social phenomenon, comparing the various foreign legal definitions of stalking will follow. The Czech legal...

in English In my thesis I have tried to analyze questions connected to information in general, as in my opinion the most valuable articles of our days. Information society, of which we are part of, is surrounded with information and has developed certain mechanisms, procedures and technology. My aim has been to consecrate a usage of information and communications technology. We can say that nowadays advanced world is almost perfectly linked and networked. It is done by virtue of increasing availability of computers and other communication instruments; another reason is constantly escalating technological ingenuity of their interconnection. Crucial role in this matter plays Internet, the net of nets, offering still faster, cheaper and more variable connection of its segments. It enables receiving and providing for information without any territorial, contentual, quantity limitation. Technological progression, which information sector shows, is unusually dynamic and also blond our control. Advances of the development go hand in hand with its disadvantages, to be specific with exploitation of computers and Internet. The question therefore is, if the proportion of benefits information and communications technology and its misuse stays the same and only the quantity extent rises. The answer is...