Thesis (doctoral)--Universiẗat Passau, 2005. / Includes bibliographical references (p. 239-253).

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Made available in DSpace on 2017-06-01T18:17:56Z (GMT). No. of bitstreams: 0 Previous issue date: 2007-09-11 / Exactly not foreseen express in art. 5º (right and basic guarantees) of the Federal Constitution, the Criminal Revision, is inlaid in § 2º of the related device, because decurrent of the regimen and the principles for it adopted, as well as of those deriving ones of the American Convention of Human Rights of 1969 - Pact of San Jose of the Costa Rica - of which Brazil is signatory, thus the revision possesss nature of constitutional action and is only right subjective individual of the convict, destined to rescind definitive conviction, always in benefit of the male defendant. The Law did not establish the hypothesis of the criminal revision pro societate. Thus, considering the principle of relativity and historical of the basic rights, to the light of the proportionality materialized in the technique of the balance of values or valid normative statements when in to crash state, it is considered alteration of the criminal procedural legislation, to make possible the handling of the action of criminal revision pro societate, when the absolution to establish itself in proven documentation false, the example of the case of homicide with the false certificate of death; e when after the sentence, if to discover tests of that was rendered by prevarication, official corruption or corruption of the Judge, since that the criminal types is not to arrive at by the lapsing. Still it considers either granted legitimacy to the Public prosecution service to file a suit asked for revision against acquittal, in the alluded hypotheses and against conviction in the foreseen hypotheses already it has legislation. The method is dogmatic-analytical of the national doctrine and judged legislation and foreign legislation as well as of two of the STF. The dissertation considers, of lege ferenda, the adoption of the criminal revision pro societate, adopting as reference First draft the PL nº 4.506/2001. / Mesmo não prevista expressamente no art. 5º(direitos e garantias fundamentais) da Constituição Federal, a Revisão Criminal, está embutida no § 2º do referido dispositivo, porque decorrente do regime e dos princípios por ela adotados, como também daqueles oriundos da Convenção Americana de Direitos Humanos de 1969 Pacto de San José da Costa Rica - da qual o Brasil é signatário, assim a revisão possui natureza de ação constitucional ,e, é apenas direito subjetivo individual do condenado, destinado a rescindir sentença condenatória definitiva, sempre em benefício do réu. A Lei não estabeleceu a hipótese da revisão criminal pro societate. Assim, considerando o princípio da relatividade e historicidade dos direitos fundamentais, à luz da proporcionalidade materializada na técnica da ponderação de valores ou enunciados normativos válidos quando em colidência, propõe-se a alteração da legislação processual penal, para possibilitar o manejo da ação de revisão criminal pro societate, quando a absolvição fundarse em documentação comprovada falsa, a exemplo do caso de homicídio com a certidão de óbito falsa; e quando após a sentença, se descobrirem provas de que foi prolatada por prevaricação, concussão ou corrupção do Juiz, desde que os tipos penais não estejam fulminados pela prescrição. Ainda propõe-se seja outorgada legitimidade ao Ministério Público para ajuizar pedido revisional contra sentença absolutória, nas hipóteses aludidas e contra sentença condenatória nas hipóteses já previstas há legislação. O método é dogmáticoanalítico da doutrina e legislação nacionais e legislação estrangeira bem como de dois julgados do STF. A dissertação propõe, de lege ferenda, a adoção da revisão criminal pro societate, adotando como referência o PL nº 4.506/2001.

Text in Afrikaans / Infringement, by the executive, of the right to privacy of the individual is an everyday occurrence. Section 14 of the Constitution, Act 108 of 1996 protects the right to privacy. The Criminal Procedure Act, Act 51 of 1977 authorises the police service, to search for and seize articles, to enter premises, ascertain bodily features of accused and to employ traps and undercover operations. On the one hand the Criminal Procedure Act authorises the police to infringe the privacy of the individual but on the other hand it guarantees the privacy of the individual. The provisions of the Criminal Procedure Act are qualified by the Constitution, specifically by section 36 and 35(5). The authorisation of a police officer should be obtained before a person could be arrested without a warrant, which should, in any event, be the last resort. The written permission of an officer must be obtained prior to the making of an application for a warrant to a magistrate. A police officer should be prohibited from issuing a search warrant, as the general perception of the public is that members of the police may not be sufficiently independent. The exercising of magistrates' discretion regarding the decision as to whether a search warrant should be issued or not should be extended. A search warrant should comply with strict requirements as to who may execute the warrant, when, how and when the warrant will become invalid. Search and seizure without a warrant should not be allowed at all, except in circumstances where there is an immediate threat or danger to a person, property or the public safety. In cases of urgency, it should be made possible to obtain the telephonic permission from a magistrate to search property. Where necessary to ascertain the bodily features of an accused through surgery, a compulsory application in terms of section 37(3) should be made to the court for authorisation, irrespective of whether the accused consents to the surgery or not. More importance should be attached to the rights of the individual and the powers of the executive should be limited. / Jurisprudence / LL.D

Text in Afrikaans / Artikel 217 is van toepassing op Jn bekentenis, synde Jn ondubbelsinnige erkenning van skuld, wat indien dit in Jn hof gemaak sou word, sou neerkom op Jn pleit van skuldig. Om toelaatbaar te wees, moes die verklaarder die bekentenis vrywillig en ongedwonge, by sy volle positiewe sender onbehoorlike beinvloeding afgele het aan Jn landdros of vrederegter. Waar die bekentenis in Jn dokument vervat is, is dit, mits daar aan die toelaatbaarheidsvereistes voldoen is, toelaatbaar teen die verklaarder daarvan. Artikel 209 vind toepassing mits die bekentenis Jn volle bekentenis is en die vereistes van artikel 217 nagekom is. Volgens die beslissing in S V SHEEHAMA 1991 2 SA 860(A) is Jn aanwysing Jn erkenning. As sulks moet dit voldoen aan die vereistes van artikel 219A en moes derhalwe vrywillig en ongedwonge gemaak wees. Jn Gedwonge aanwysing is dus ontoelaatbaar, tensy nuwe feite ontdek word as gevolg daarvan. / Section 217 is applicable to a confession, being an unequivocal acknowledgment of guilt, the equivalent of a plea of guilty before a court of law. To be admissible, the declarant must have made the confession to a magistrate or justice freely and voluntarily in his sound and sober senses without having been unduly influenced thereto. Section 209 is applicable provided that the confession is a full confession and the requirements of section 217 are complied with. According to the judgment in S V SHEEHAMA 1991 2 SA 860(A) a pointing out is an admission. As such it must comply with the requirements of section 219A and must therefore be made voluntarily and freely. An involuntary pointing out is thus inadmissible, except if new facts are discovered because of it. / Criminal and Procedural Law / LL.M.

A disturbing average of 600 Palestinian children are prosecuted by Israeli military courts every year. Three fourths of the children experience some form of physical violence during their arrest, interrogation, and/or detention. On the contrary, Jewish Israeli children never face the brutality of a military court system with a 99.74% conviction rate of Palestinian minors. The aim of this thesis is to examine the “legal” systems responsible for discriminatorily incarcerating an average of 200 children in military jails on a monthly basis. Central questions to my thesis ask: is this behavior legal and legitimate by Israeli legal standards? Can the same be said about the standards set by international law? What defines and distinguishes a legal system? Finally, how should we punish children, if at all? This thesis argues there is a severe lack of legality and legitimacy behind Israel’s rampant and unrestricted incarceration of Palestinian minors, be it by Israeli or international measures.

Generally the Courts have a discretion to impose sentence. Violent crime was rampant in South Africa. The response of the legislature in dealing with crime was to enact legislation in 1997 like sections 51 to 53 of the Criminal Law Amendment Act 105 of 1997 which prescribe severe mandatory sentences for a large number of serious offences like murder, rape and armed robbery. This legislation come into effect on 1 May 1998 and was to have effect for two years. The President could with the concurrence of Parliament by proclamation extend its operation for one year, that was in fact done. The latest extension of the Criminal Law Amendment Act 105 of 1997 was for a further two years making the minimum sentence provisions valid until 30 April 2005. The Courts did not like these mandatory sentences because of the limitation it places on judicial discretion and dealt with this legislation that limited their judicial discretion restrictively in order to defend their sentencing discretion. Although the Criminal Law Amendment Act of 105 of 1997 was held not to be unconstitutional the Courts stll sought to give it a narrow interpretation. This research paper include an outline of the Criminal Law Amendment Act / the Constitutional challenges that were brought against the Criminal Law Amendment Act / the judicial interpretation of the Criminal Law Amendment Act as well as the applicability of the Criminal Law Amendment Act to District Courts and juvenile ovenders / the procedural requirements that must be complied with in the Criminal Law Amendment Act and its consequences if not complied with. This paper examined how the Courts defined substantial and compelling circumstances, the approaches adopted by the Courts and when deviation from the Criminal Law Amendment Act can take place. It also include the challenges posed by mandatory minimum sentence legislation as well as recommendations for the improved implementation of the Criminal Law Amendment Act.

The principle of complementarity is the cornerstone of the establishment of the International Criminal Court as well as one of the key factors for its successful operation.  Having said that, the qualities of being flexible and adaptable make the task of interpreting the principle of complementarity extremely sensitive and technically tricky.  According to the current wording of the principle of complementarity in the Rome Statute, the ICC could factually exercise primacy over the national jurisdiction, if a loose interpretation of the principle is adopted, or conversely being residual to national jurisdictions, if the principle was strictly interpreted. While the principle of complementarity was at the heart of the negotiating process for the establishment of the International Criminal Court, the emerging practice of the Court to date has left the vast majority of the questions on complementarity unanswered, even the few issues which the Court has touched upon are not immune from criticism. This thesis will thus strive, through an in-depth analysis of the past, present and practice of the principle of complementarity and its corollary issues, to offer workable answers as well as constructive criticism.  Guided by the central objective of ending impunity for the core crimes through criminal justice, this thesis, in interpreting the principle of complementarity, will follow a balanced approach which, while unequivocally favours national prosecutions where possible, it adopts a broadening interpretation when national jurisdictions are genuinely unavailable or ineffective.  To this end, this thesis eventually presents the principle of complementarity as a managerial principle which promotes for the effective investigation and prosecution of the core crimes through the adoption of different policies which encourage, <i>inter alia</i>, a division of labour between the International Criminal Court and domestic jurisdictions, and enable states to carry out proceedings and overcome dilemmas of ‘inability’ or ‘unwillingness’ without the role of the International Criminal Court being limited in such incidents to excluding national jurisdiction.

The aim of this thesis is to represent in detail one of the fundamental principles of the Czech criminal procedure, the principle of free evaluation of evidence. At first the thesis deals with theoretical aspects of this principle, since they are almost unavailable in the modern literature. The author afterwards analyses the extensive judicature of Czech courts (including the Constitutional court) related to general issues of evaluation of evidence as well as to particular means of proof. The thesis also contains proposals of legislative changes, as the legal regulation of criminal procedure seems to be no longer satisfactory.

Criminal profiling Abstract The purpose of my thesis is to analyse criminal profiling, one of the disciplines of forensic psychology used by law enforcement authorities in their effort to capture offender of a crime. The reason for my research is my interest in the criminal law in general, mainly in the psychological aspects of work of law enforcement authorities with individual offenders. The thesis is composed of three chapters, each of them dealing with different aspects of criminal profiling. Chapter One is introductory and defines basic terminology of criminal profiling and the essence of criminal profiling in general. The chapter is subdivided into five parts, which deals with the term of criminal profiling, its development, particular delicts suitable for profiling, the manner of creating a profile and its efficiency in the criminal proceedings in Czech Republic. Chapter Two examines the best known approaches to criminal profiling, its methods and typology. The chapter consists of five parts. Part One focuses on the different approaches to criminal profiling. Part Two investigates the deductive and inductive methods of criminal profiling. Part Three addresses the issue of the best known computer databases used in criminal profiling, ViCLAS and VICAP. Part Four focuses on geographic profiling, a...