Právnická fakulta Univerzity Karlovy v Praze Katedra mezinárodního práva Mgr. Pavel Bureš Human Rights in International Criminal Procedure Praha 2011 2 Abstract The rapid development of International Criminal Law in the second half of 20th century and especially on its end is marked by a proliferation of international criminal judicial organs and thereby by a huge increase and development of procedural norms determining these organs' jurisdiction and functioning but also specifying procedural status of individuals - suspected and accused persons, victims. The submitted thesis focuses on one of the aspects of individuals procedural status, namely their procedural guarantees - human rights in international criminal procedure. The analyse of human rights in international criminal procedure (the proceedings before International Criminal Court) was done having been backed by statutory regulations of international military tribunals and ad hoc tribunal for Former Yugoslavia and Rwanda and their case-law. The hypothetical start point was to consider that procedural guarantees in the ICC procedure established by Rome Statute in 1998 are on a highest level and more detailed than these guarantees enshrined in ad hoc tribunals Statutes and even in international universal or regional human rights protecting...

本文以「日本刑事控訴審（第二審）之研究」為主題，嘗試將日本刑事第二審制度為廣泛之介紹，分別自控訴審之審級構造類型、制度沿革、控訴程式、控訴理由、法院審理及裁判等為探討，並試圖探尋日本實務運作經驗及遭遇之難題。 日本刑事第二審（控訴審）於第二次世界大戰後，自「覆審制」改為「事後審制」，其構造係採「嚴格事後審說」見解，即以第一審判決時為控訴審審理之基準時。法定控訴理由則包括訴訟程序違背法令、判決內容錯誤、再審及判決後刑之廢止、變更或大赦等。控訴法院就案件之終結方式，雖有控訴不受理、公訴不受理、撤銷原判決等三類，惟實務運作此等程序時，仍有細微差異。而在運作50餘年後，控訴審卻漸有續審化現象：控訴法院逕為事實調查、9成5以上撤銷案件自為判決、以撤銷自判為原則性運作等，學者認為：日本傳統思想、實務運作習慣、現行條文規定、法院組織構造、訴訟經濟、學說影響以及控訴審濫為自判等等，均可能為續審化之成因。 鑑於日本經驗，我國刑事訴訟第二審倘欲採行「事後審制」，除可參酌日本現行控訴審規定，調整草案內容外，有關審級構造中「事後審制」之原則與例外，第二審法院事實調查之權限以及自行判決之範疇等等，均為修法時應考量之方向。

Before 1994 criminal procedure was subject to the sovereignty of Parliament and the untrammelled law enforcement powers of the executive which resulted in the authoritarian and oppressive criminal justice system of the apartheid era. The Constitution, Act 108 of 1996 has since created a democratic state based on the values of the supremacy of the Constitution and the rule of law. The basic principles of criminal procedure are now constitutionalised in the Bill of Rights. The Bill of Rights protects the fundamental rights of individuals when they come into contact with organs of the state which includes the police. The Criminal Procedure Act 51 of 1977 authorises the police to search for and to seize articles, and has long provided the only legal basis for obtaining warrants to search for and to seize articles and for performing such actions without a warrant in certain circumstances. Generally the standard for these measures and actions taken under their purview has been one of reasonableness. Since the birth of the Constitution there has been additional constraints on search and seizure powers. Not only are there now constitutionalised standards by which such legal powers are to be measured, but there is also the possibility of excluding evidence obtained in course of a violation of a constitutional right. The provisions of the Criminal Procedure Act are now qualified by the Constitution. Where feasible a system of prior judicial authorisation in the form of a valid search warrant obtained on sworn information establishing reasonable grounds is a precondition for a valid search or seizure. Search and seizure without a warrant is permitted only in exceptional circumstances such as an immediate threat to person or property. By prohibiting unreasonable searches and seizures the Constitution places important limits on police efforts to detect and investigate crime. The Constitution appreciates the need for legitimate law enforcement activity. / Criminal and Procedural Law / LL.M.

Summaries in English and Afrikaans / The study explores the beliefs and wishes of respondents in Pretoria concerning crime seriousness and criminal sentencing in South Africa. It is suggested that in a democracy, the legal system must reflect the values of the individual citizen if it is to achieve a legitimacy based upon the concepts of moral consent and universality, and argues that this can only be achieved when all citizens have a voice. The study undertakes and reports on a survey of 400 units, across race divisions in and around the City of Pretoria by initially emulating, and thereafter extending, the British Crime Survey. The thesis offers seven chapters divided into two primary components. The first component, chapters one to four, systematically debate the historical/theoretical foundations of sentencing practice (both globally and in respect of South Africa), and identifies the inherent problems faced by contemporary criminal justice systems. The study utilises sentencing literature to provide an in-depth appraisal of theoretical paradigms and, thereafter, evaluates the successes and failures of various sentencing options. The second component, chapters five to seven, unpack the Pretorian research in relation to various other foreign research surveys, and culminates by offering a South African sentencing guide (severity index) based upon the research findings. The findings identify the people of Pretoria to be punitive. Respondents are shown to regard rape and driving whilst over the legal alcohol level causing the death of an innocent victim as the most serious crimes, followed by deliberate murder, selling illegal drugs and terrorism. Percentage differential between these "most serious" crimes is negligible. Many respondents indicate long prison sentences or the death penalty for these specific offences. Overall, Blacks prefer imprisonment whilst Whites are shown to be more conservative and more amenable to other sentencing options. Gender differences in relation to seriousness and sentence scores are slight, but females and the older age group are noted to be more fearful of being victimised even though this fear is not supported by actual victimisation rates. The study justifies the motivation fot the inclusion of public opinion into sentencing policy by recording a 72 percent positive response to people involvement in the sentencing of offenders. / Hierdie navorsing verken respondente in Pretoria se menings en verwagtinge aangaande die erns van misdaad en vonnisoplegging in Suid·Afrika. Die uitgangspunt is dat die regsplegingstelsel veronderstel is om die waardes van die gemeenskap te reftekteer, gebaseer op die konsepte van morele eenstemmigheid en universaliteit, en argumenteer dat dit binne 'n demokrattese bestel slegs kan realiseer as alle inwoners inspraak daarin het. Die navorsing en rapportering gaan oor 'n opname van 400 eenhede in en om die stad Pretoria oor rassegrense heen. Die Britse misdaadopname het as vertrekpunt gedien vir die ontwikkeling van die opname. Die tesis bestaan uit sewe hoofstukke wat verdeel is in twee hoofkomponente. Die eerste komponent, hoofstukke een tot vier, debatteer sistematies die histories/teoretiese begrondings van die vonnisopleggingspraktyk (beide globaal en ten opsigte van Suld-Afrika), en identifiseer die inherente probleme waarmee kontemporere strafregsplegingstelsels gekonfronteer word. Die navorsing gebruik vonnisopleggingsliteratuur om 'n in-diepte beoordeling te maak aan teoretiese paradigma om die sukses en mislukking van die verskillende vonnisopleggingaopsies te evalueer. Die tweede komponent, hoofstukke vyf tot sewe, behels die navorsing in Pretoria in vergelyking met verskeie ander buitelandse navorsingsondersoeke en bereik 'n hoogtepunt deur 'n Suid-Afrikaanse vonnisopleggingsgids (ernsindeks) voor te hou, gebaseer op die navorsingsbevindings. Die navorsingsbevindings identlfiseer respondente van Pretoria as strafgeorienteerd. Respondente beskou verkragting en bestuur van 'n motor terwyl die persoon se alkoholbloedinhoud oor die wettige perk is en die dood van 'n onskuldige slagoffer veroorsaak, as die ernstigste misdade. Dit word gevolg deur opsetlike moord, die handel in onwettige dwelmmiddels en terrorisme. Persentasie afwykings tussen die "ernstige" misdade is onbeduidend. Menige respondente is van mening dat lang termyne van gevangenisstraf of die doodsvonnis vir hierdie misdade toepaslik is. Oorhoofs gesien, verkies Swartmense gevangesetting, terwyl blankes meer konserwatief maar ook meer ontvanklik blyk te wees met betrekking tot ander vonnisopsies. Genderverskille in verhouding tot die erns- en die vonnistellings is gering, maar vroue en die ouer ouderdomsgroepe vertoon groter vrees vir viktimisasie, alhoewel hierdie vrees nie ondersteun word deur werklike viktimisasieratio's nie. Hierdie navorsing onderskryf die motivering vir die oorweging van die gemeenskapsmening in formulering van vonnisopleggingsbeleid met die resultaat dat 72 persent respondente gemeenskapsbetrokkenheid in die vonnisoplgeging voorstaan. ' / Criminology and Security Science / D. Litt. et Phil. (Criminology)

Increasing use is being made of various types of scientific evidence in court. The general requirement for the admissibility of such evidence is relevance. Although expert evidence is considered to be opinion evidence, it is admissible if it can assist the court to decide a fact in issue; provided that it is also reliable. In South Africa, the initial wide judicial discretion to either admit or exclude unconstitutionally obtained evidence, has developed into a more narrowly defined discretion under the final Constitution. Examples of scientific evidence, namely, DNA evidence, fingerprints, psychiatric evidence, bite-mark evidence and polygraph evidence are considered and problems inherent in the presentation of such evidence in courts in various jurisdictions are highlighted. An investigation of the presentation and evaluation of evidence in both the accusatorial and inquisitorial systems seems to indicate that the adversarial procedure has a marked influence on the evaluation of evidence / Criminal and Procedural Law / LL.M. (Law)

The Constitution of the Republic of South Africa guarantees every person a fair trial; the right to a fair trial right trial must begin and conclude within a reasonable time and without undue delay. Internationally the same guarantees and protections are available to unconvicted suspects. However, the South African criminal justice system lacks behind internationally and falls short of promoting these guarantees. Investigation was done on delays in commencing and finalising trials in light of constitutional provisions, the consequence and the impact of the delay with discussion on prison conditions and overcrowding with reference to the Constitutiton, legislation and case law. Delayed trial, prison overcrowding and poor prison conditions are still an issue in South Africa and there needs to be positive change to enforce and practice prescribed directives. South Africa‟s justice system through its servants, need to do more to gain a higher status of having a constitutionally democratic country that fully promotes‟ rights of detainees. / Criminal and Procedural Law / LLM

Mémoire numérisé par la Direction des bibliothèques de l'Université de Montréal.

The composite right to meaningful and informed participation in the criminal process comprises the right to information, the right to understand, the right to be prepared, the right to be present, the right to confrontation and the right to present one’s case. The sub-rights are not of an overarching nature such as the right to legal representation and the right of access to the law. The various rights are grouped together because they show some connection with the ability of the suspect or the accused to participate in the criminal proceedings as a legal subject, and not as an object of the proceedings as in primitive times. These rights ensure that the accused will not participate in the criminal process from an unfavourable position. The heading ‟meaningful and informed participation” is therefore a collective term for these rights. These sub-rights form part of the comprehensive right to a fair trial. The thesis examines aspects of the position of the accused in South Africa and in foreign jurisdictions such as the United States of America, Canada, New Zealand, Australia, Germany, the United Kingdom and Islamic systems. International instruments such as the European Convention for the Protection of Human Rights and decisions of the United Nations Human Rights Committee are also considered. The thesis first considers the historical perspective of the accused in primitive times when he was regarded as an object of the criminal proceedings, to the present time when he is regarded as a subject of the proceedings. The study on foreign jurisdictions reveals that for the most part, our law is in line with the law of other countries. The study also demonstrates that the various rights are not absolute. In exceptional circumstances, some diminution of the accused’s rights is necessary to protect the interests of society. Nevertheless, the courts should act cautiously and not allow the exceptions to overtake the rule. The judiciary should strive to find a better balance between the constitutional rights of the accused and the interests of society. To this end, the judicial system must be objective yet vigilant. / Criminal & Procedural Law / LL.D.

The purpose of the research was to establish action steps than can assist the criminal investigator in the processing of information into evidence for prosecution purposes, by focusing on the basic principles of criminal investigation from where information sources could be utilised to their full potential in the search for the truth. The researcher evaluated the current methods that investigators within the SAPS use and read extensively on the topic in international literature sources. The research used an empirical research design because of the limited information available, and a qualitative research approach which enabled real-life observations. Simple random sampling was used to interview 30 experienced investigators each with more than five years experience and purposive sampling was used to identify five expert respondents who had more than 30 years' investigation experience. Data was obtained from their real-life experiences and data was further collected through case studies of case dockets. / Criminology / M.Tech. (Forensic investigation)

The purpose of this study is to investigate the sentencing practice of the military courts. Since an independent and impartial military judiciary is essential to ensure that justice is done a further aim of this study is to investigate whether the military courts are impartial, independent and affords the accused his fair trial rights. The sentences imposed by military courts are investigated and concerns regarding the imposition of these sentences are identified. Finally the appeal and review procedures followed by the military courts are investigated with specific reference to the military accused’s right appeal and review to a higher court as provided for by the Constitution. The sentencing phase of a trial forms an important part of the whole trial process. This is also true for military trials, yet no research has been done on military sentencing practice. Because of the potential influence of the draft Military Discipline Bill and the Law Reform Commission’s revision of the defence legislation on sentencing, research in this area is critical in the positive development of sentencing law in the military justice environment. An extensive literature study is undertaken to evaluate current military sentencing practices against civilian practices. The result of this study identifies certain concerns regarding the independence of the military courts, the treatment of military offenders and the appeal and review powers of the military reviewing authority. To a large extent it is also found that many concerns are based on the apparent rather than the existence of any real dangers to the independence of the military courts or the rights of the military accused. This thesis contributes to the accessibility of military law for a civilian audience, creating a platform for the development of future military sentences. / Jurisprudence / LLD