The Principle of Subsidiarity of Criminal Repression Abstract This Master's Thesis deals with the principle of subsidiarity of criminal repression, one of the basic principles of substantive criminal law, which was first enacted in the Czech criminal law as lately as in the new 2009 Criminal Code. The principle of subsidiarity of criminal repression is expressed by the fact that the means of criminal law can be applied only in socially harmful cases where the application of criminal liability is not sufficient under another legal enactment. Simultaneously, this principle of subsidiarity of criminal repression expresses the nature of criminal law as a means of the ultima ratio, i.e. the ultimate solution. After the introduction of the functions and purpose of the criminal law itself in terms of historical development and present, an analysis of the valid legal regulation of the principle of the subsidiarity of criminal repression is presented. Adoption of the principle of the subsidiarity of criminal repression into the new Criminal Code has led to an unprecedented wide-ranging discussion of its importance in criminal law, especially its impact on the issues of the basis of criminal liability. The problems often mentioned in this discussion are in particular dealt with in the chapter on the concept of crime,...

The aim of this thesis is to analyse the EU approach to the question of the legitimacy of criminal law. In particular, it enquires into what theoretical justifications does the EU legal order acknowledges as legitimating the resort to harmonized criminal law as a regulatory instrument. Moreover, it enquires if the selected approach is consistent with the identity the EU has set for itself, as a ‘fundamental rights sensitive’ kind of supranational organization, as established at Article 2 TEU, which includes the respect of fundamental rights as one of EU founding values. This research aims at complementing the existing literature theorising on harmonisation of substantive criminal law as a strategy for integration, which has to date primarily focused on the extent of the EU competences, and on the relation between harmonisation and other strategies of integration, such as mutual recognition. The aspect of the impact of the exercise of these EU competences on individuals and of what are the envisaged justifications for that has been to date underexplored. This thesis aims at filling this gap. In doing so it aims at contributing to the systemic understanding of EU criminal law testing its developments against a EU constitutional law benchmark. In terms of methodology, the thesis relies on a criminal legal theory framework, which distinguishes between a normative, value-based approach to the justifications for criminal law, and an instrumental, mainly enforcement-based approach. It tailors these concepts to the supranational level, by combining criminalisation theory concepts with theories on harmonisation. In terms of sources, when enquiring the EU approach to the criminal law, the thesis looks at EU primary law (principles of subsidiarity and proportionality, and EU competences to harmonise substantive criminal law); EU policy documents (multi-annual programs and ad hoc EU criminalisation policy documents) and EU secondary law (especially the Racism and Xenophobia Framework Decision on Racism and Xenophobia and on the 2014 Market Abuse Directive).In terms of structure, the thesis devotes the first two chapters to the delineation of the theoretical framework, discussing criminal legal theories on the subject of of the legitimacy of criminal law, and theories on harmonisation of criminal norms. This part is aimed at identifying the analytical tools through which EU primary law, EU secondary law and EU policy documents are analysed in the following 5 chapters. A final chapter draws the relevant conclusions as to the consistency of the EU approach to the legitimacy of criminal law with the EU constitutional law framework. The findings of the thesis illustrate how the EU has not been consistent in its approach to the legitimacy of EU criminal law and it identifies a number of micro-ruptures between the approach in different historical phases; but also between different layers (EU primary and secondary law as well as policy documents) during the same period; and between different policy areas (e.g. EU criminal law was used to protect the security of EU citizens, and when to secure the achievement of EU policies). The thesis nonetheless identifies a macro-synchrony, which sees an historical progressive acknowledgement of a normative approach in a previously pre-existing instrumental context. This progress was positively evaluated as it contributed to increase the coherence of EU criminal law with EU constitutional law benchmarks. / Doctorat en Sciences juridiques / info:eu-repo/semantics/nonPublished

The criminal law has been critiqued as an unsuitable system to regulate adverse medical events (AME) because the unintentional nature of AME renders it incompatible with the penal objectives of the criminal law. This project uses an interpretivist approach to examine how blameworthiness is constructed in criminal cases involving AME. Situated within a contextual constructionist paradigm, and utilizing a theoretical framework that draws on legal pragmatism, symbolic interactionism, Habermasian thought, and Goffmanian frame analysis, this project employs a case study approach to explore how appellate courts construct AME as a product of fate or agency. The British case of Bawa-Garba v. R. (2016) and the Canadian case of R. v. Javanmardi (2019) are analysed using thematic analysis. It is concluded that the majority of the Supreme Court of Canada in Javanmardi constructed the AME within the realm of fate, contrasting the minority in Javanmardi and full panel of the England and Wales Court of Appeal in Bawa-Garba which constructed the AME within the realm of agency. It is also concluded that the majority in Javanmardi utilised pragmatic adjudication to determine blameworthiness. It is suggested that these findings could reduce fear of criminal liability among Canadian health care professionals. Future research is suggested to examine the legal cultures underlying this variation, critically explore the intersection of race and criminal prosecution of AME, and apply structural violence as a theoretical frame to further interrogate AME as a systemic failure.

Sex work has been subject to a variety of different conceptualisations throughout history. Within Scandinavia the debate has for long centred on topics such as trafficking, gender- equality and the representation of sex work as either work or exploitation. The thesis aims to examine how sex work is represented as a problem in Sweden and Denmark, as well as how this has manifested in policies. This is done through analysing the discourse within policies on sex work utilising Bacchi’s WPR approach. The thesis constitutes a comparative case study. The study is conducted with a focus on the representation of sex work within different feminist frameworks. In conclusion, the thesis finds that Sweden shares viewpoints with both the carceral and radical feminist framework. The Danish representation has been influenced by a significant number of diverging opinions, however the radical feminist line of thought is also apparent in the Danish case.

This project examines the safety management of civil aircraft accident investigation authorities in International Civil Aviation Organization (ICAO) Member States, with particular emphasis on the independence of the investigations. The research aims to establish the current level of resources and methodology adopted by Member States’ accident investigation authorities. The output of this work not only identifies the current situation but informs initiatives for some of the States in the process of establishing their investigation capability. ICAO Annex 13 was analysed and found to be based on the principle of independent accident investigations. Also, a four dimensional measuring index (4DMI) has been developed to measure the independence of accident investigations in ICAO Member States. Data were collected from 45 States and are presented in the thesis. As a result of applying the 4DMI to the collected data, the States were ranked according to their scores, and divided into four categories of independence. Analysis of the four categories and the scores from the four dimensions revealed that States approach the concept of investigation independence in different ways; however, there are several practices that are common within the highest independence category and several other practices that are common within the lowest independence category. The research recommends that States should work towards improving their overall investigation independence by implementing the seven identified practices in the High-Independence category and distance themselves from the five practices identified as common in the Low-Independence category.

This project examines the safety management of civil aircraft accident investigation authorities in International Civil Aviation Organization (ICAO) Member States, with particular emphasis on the independence of the investigations. The research aims to establish the current level of resources and methodology adopted by Member States’ accident investigation authorities. The output of this work not only identifies the current situation but informs initiatives for some of the States in the process of establishing their investigation capability. ICAO Annex 13 was analysed and found to be based on the principle of independent accident investigations. Also, a four dimensional measuring index (4DMI) has been developed to measure the independence of accident investigations in ICAO Member States. Data were collected from 45 States and are presented in the thesis. As a result of applying the 4DMI to the collected data, the States were ranked according to their scores, and divided into four categories of independence. Analysis of the four categories and the scores from the four dimensions revealed that States approach the concept of investigation independence in different ways; however, there are several practices that are common within the highest independence category and several other practices that are common within the lowest independence category. The research recommends that States should work towards improving their overall investigation independence by implementing the seven identified practices in the High-Independence category and distance themselves from the five practices identified as common in the Low-Independence category.

Doctor Legum - LLD / Competition law and its enforcement have become necessary tools in the face of trade liberalisation. Nowhere is this more evident than in the area of cross-border cartels. The global South is steadily becoming aware of this. With the advent of globalisation and trade liberalisation, individual economies have become intrinsically linked. Anti-competitive conduct in one territory may have an impact in another territory. Therefore, an effective regional competition law framework complements trade liberalisation, especially in light of the principal objective of the South-South regional economic communities: the deepening of regional integration, in order to realise economic development and alleviate poverty. Cartel practices, such as, market allocation cartels, are in direct contradiction to this primary objective. This is when enforcement collaborations in South-South regional economic communities becomes crucial. The regional legal instruments of the Common Market for Eastern and Southern Africa, the East African Community, the Southern African Customs Union and the Southern African Development Community make provision for enforcement collaborations among Member States. To facilitate collaboration, regional competition authorities have been created to investigate, among other things, cross-border cartels. Within these economic communities, there is a strong case for enforcement collaborations, as evidence shows that the majority of the firms engaging in cartels are the so-called Regional Multinational Corporations. They operate throughout the territories of Member States. Additionally, the international nature of cartels, such as, private international cartels and export cartels, provide an opportunity for South-South co-operation to be utilised. However, this co-operation has not been utilised to the fullest extent, especially with reference to cross-border cartel activities. This has been attributed to various factors, such as, institutional incapacities, resource austerity, the absence of common procedural rules, the lack of adequate investigatory tools, and political ineptitude. As a solution, this current study makes specific recommendations that are directed at enhancing the effectiveness of South-South collaborations pertaining to cross-border cartel activities.

L’attribution d’une compétence d'incrimination à l’Union soulève les questions complexes qui sont traditionnellement rattachées au pouvoir pénal, notamment celle de la promotion, par les choix d’incrimination d’une conscience collective et de l’expression des valeurs essentielles à une société. En l’occurrence, c’est la question d’une identité européenne. Le projet d’intégration pénale s’est développé très rapidement depuis les trente dernières années sans qu’une réflexion approfondie sur la légitimité d’une telle évolution ne soit menée. Son caractère expérimental a souvent été considéré comme une illustration de la banalisation de la réponse pénale, qu’il s’agisse d’apporter une réponse à des violations suscitant une forte alarme sociale ou de viser à rendre efficace une législation technique. L’absence de politique pénale européenne fait craindre une intervention de l’Union méconnaissant les exigences liées à l’intervention pénale dans un État de droit que sont le respect de la personne et surtout le principe de l’ultima ratio. / The attribution of a criminalisation competence to the Union raises complex questions traditionally attached to the criminal law power, particularly the one of promotion through criminalisation choices of a collective conscience and the expression of values essential to the society. It is the question of a European identity. The penal integration project has developed very rapidly the last thirty years without any deep reflection on the legitimacy of this evolution. Its experimental character is often considered as an illustration of the banalisation of the criminal sanction, being it in order to respond to violations rising a high social alarm or in order to give effectivity to a technical legislation. The absence of criminal policy creates the fear of a European intervention not respecting the requirement attached to the resorting to criminal law in a State under the Rule of Law that are the respect of the person and mostly the principle of ultima ratio

Magister Legum - LLM / The objective of this study is to explore the criminalisation of persons based on sexual orientation in Cameroon in light of that country’s international human rights obligation. The study examines the constitution and laws of Cameroon as applicable to sexual minorities. It aims to discuss recent developments in international human rights law with regard to the human rights basis for decriminalising homosexuality.

Ce mémoire vise à étudier la constitutionnalité de la criminalisation de la possession simple de toutes les drogues au Canada au regard de l’article 7 de la Charte canadienne des droits et libertés. En appliquant un cadre positiviste, nous abordons les différentes atteintes au droit à la vie, à la liberté et à la sécurité qui peuvent découler de l’application de l’article 4(1) de la Loi réglementant certaines drogues et autres substances. Nous vérifions par la suite si ces atteintes sont conformes aux principes de justice fondamentale et si elles peuvent se justifier dans le cadre d’une société libre et démocratique en application de l’article 1er de la Charte. Nous soulignons de quelle façon l’implantation des Drug Treatment Courts permet au Parlement fédéral d’assurer le respect des principes de justice fondamentale du caractère arbitraire et de la portée excessive en ce que la menace d’emprisonnement permet la contraignabilité de ces cours spécialisées et partant, leur donne l’occasion de traiter des consommateurs dépendants dans un objectif de protection de la santé et de la sécurité publiques. Toutefois, les différentes atteintes au droit à la vie, à la liberté et à la sécurité identifiées dans la littérature semblent totalement disproportionnées à l’objectif législatif, ce qui nous paraît entraîner la violation de l’article 7. L’existence de régimes législatifs beaucoup moins sévères du point de vue des sanctions et beaucoup plus efficaces nous invitera par la suite à considérer que cette violation ne peut être justifiée dans le cadre d’une société libre et démocratique au regard de l’article 1er de la Charte. Il s’ensuit que la criminalisation de la possession simple de toutes les drogues au Canada risque éventuellement de se heurter à une déclaration d’invalidité constitutionnelle.