Thesis (M.A. (Human Rights))--Mahidol University, 2003.

Thesis (M.J.S.)--University of Nevada, Reno, 2001. / "December 2001." Includes bibliographical references (leaf 118). Online version available on the World Wide Web.

The prosecution’s duty of disclosure is at the heart of an accused’s right to a fair trial. Information and knowledge is power. Owing to the nature of criminal investigation, the prosecution almost always has more time and resources at its disposal in order to prepare its case than the defence. More importantly, the prosecution has access to certain information that the defence would not have and it has the means to access them. As a consequence, in order to ensure the fundamental rights of the accused are respected, it is crucial for the prosecution to disclose any relevant material to the defence in a timely manner so that the latter has a chance to prepare its case adequately. Despite the undeniable importance of this duty, prosecutors routinely violate their obligations of disclosing material to the defence that is of vital importance for case preparations. This thesis, accordingly, asks the question: why are disclosure problems so hard to resolve? Is the disclosure framework really workable in the international criminal tribunals? Public institutions, like the International Criminal Court, are supposed to be the epitome of justice; however, because of its unique characteristics, and perhaps ironically, international criminal law proved to be an ever harsher environment for the defendant when it comes to disclosure of evidence: the accused faces more obstacles when preparing its case and the Courts’ motivation to sanction prosecutors who fail to honour disclosure duties seems to be significantly lower when compared with national jurisdictions. In particular, due to certain difficulties and challenges faced by the international criminal tribunals and international prosecution, it is often argued that the standard of fairness can be different from the ones guaranteed to the accused in domestic courts. This thesis argues that these departures are not justified. Three main areas will be examined and analysed: the context in which the international criminal tribunals operate in, the nature of the prosecutor’s role, and the attitudes of the judges.

Magister Legum - LLM / News coverage of high profile criminal matters has increased in South Africa. Such matters are of public concern, as every citizen has a right to receive and impart information and to debate openly and frankly matters which are of public concern, including matters before the courts. The legitimacy of the courts is dependent on robust media reportage and public scrutiny of judicial matters which such reportage stimulates. However, criminal trials of high profile accused persons such as Oscar Pistorius, Shrien Dewani and J Arthur Brown, turn easily into a show with strong entertainment value, giving the media strong profitmaking reasons to cover it. In their pursuit of profit and in seeking to satisfy the curiosity of their readers, listeners or viewers, the media regularly resort to trial by media or adverse pre-trial publicity. Trial by media is nothing more than commercially motivated expression which does not warrant constitutional protection. At the receiving end of such coverage are accused persons. Public censure of crime and of accused persons which follows trial by media should not be imposed on the innocent. The right to a fair trial requires that an accused be treated fairly from the inception of the criminal process, from which point the person suspected of committing the crime in question is considered innocent. Any pre-trial process which implies that the accused is guilty, including any such process influenced by media reports surrounding criminal offences, violates the presumption of innocence. Despite the availability of remedies, the media in South Africa usually are not held to account for their actions and persist with adverse, biased and irresponsible pre-trial reporting. Courts have shown a tendency to protect the media in these cases, despite the effect of such reporting on the judicial process, the administration of justice and the fair trial rights of accused persons. The reason for this is usually the hesitation on the part of judges to recognise their susceptibility to extraneous matters. Judges should not be placed in a position where their independence and impartiality are questioned as a result of media sensationalism. Where the media create mistrust in the integrity of the judiciary, the rule of law is in peril.

This study investigated the tension between the right to freedom of expression and the right to a fair trial in the context of the public broadcasting of criminal trials. The aim of the study was to determine whether the right of the media to broadcast criminal trials can be reconciled with the right of an accused person to a fair trial. To accomplish the above aim, the research undertook a review of the case law relating to televised criminal trials in order to determine how the courts have addressed the fair trial-free expression conflict. The study concluded that the ‘balancing exercise’ employed by the courts does not seem to have addressed this tension. Given that televised criminal trials are prone to sensationalism and the danger of fabrication of evidence, the study concludes that the broadcasting of criminal trials undermines the right to a fair trial. The study makes recommendations that are designed to ensure a proper balance between the freedom of expression as exercised by the media through the broadcasting of criminal trials on the one hand and the right of accused persons to a fair trial on the other.

This diploma thesis deals with basic procedural rights of parties to administrative procedure. The aim of the thesis is to analyze and evaluate their current legal regulation particularly contained in the Act No. 500/2004 Coll., administrative code, as amended. The thesis is divided into an introductory chapter, five chapters and a conclusion. The aim of the introductory chapter is to introduce a reader to the issue of fair trial and basic procedural rights of parties to Czech administrative procedure. The first chapter deals with definiton of basic terms related to administrative procedure. The second chapter focuses on more detailed explanation of participation of parties to administrative procedure. The aim of the third chapter is to summarize different approaches towards the concept of fair trial and to bring a list of analyzed basic procedural rights of parties to administrative procedure. The fourth chapter deals individually with each of the fourteen analyzed basic procedural rights. The fifth chapter concentrates on the application of basic procedural rights incorporated in administrative code to special administrative proceedings, which is demonstrated on the case of two proceedings regulated by the Act No. 111/1998 Coll., as amended. The conclusion evaluates the statutory regulation of...

Summary: Counsel in the Criminal Proceedings The objective of my thesis is to describe the position of a defense counsel during a criminal procedure and analyze the currently valid law governing the counsel's position in the criminal proceedings, and how is law applied in real life and also describe duties and obligations of defense counsel. I choose this topic, because during studies of criminal law I was intrigued by the complexity of criminal trial a by the role of the defense counsel in it. I wanted to gain deeper knowledge of rights and obligations of the defense counsel and research limits of criminal defense. Fair trial is considered as one of the fundamental basics of democratic state. The objective of criminal trial is to reach a proper and rightful verdict as a result of fair trial. Criminal trial could be considered fair only if both sides, the defendant and the prosecutor, are both provided with equal rights. Defendant is often a person without thorough legal knowledge and thus is considered to be in disadvantaged position. As opposed to prosecutor, defendant finds himself in new, unknown position, and his basic rights and his future life are endangered. To remedy this situation, defendant can be in criminal proceedings represented by defense counsel, who is professional, has experience and...

Les droits fondamentaux irriguent l'ensemble du droit. En tant qu'instrument privilégié de la procédure civile, l'expertise n'est pas épargnée par ce phénomène. À l'image du procès, la mesure est devenue indissociable de la notion de droits fondamentaux. Les rapports entre les deux termes peuvent toutefois être qualifiés de complexes : l'épreuve suppose à la fois leur collaboration et leur confrontation. Ainsi, les droits fondamentaux représentent un angle d'étude idéal pour dévoiler les potentiels de l'expertise, révéler ses faiblesses, l'améliorer et participer à son renouvellement. L’évolution de la notion d’expertise ainsi que l’expansion des droits fondamentaux engendrent des problématiques inédites que le droit doit prendre en compte. À côté de la traditionnelle expertise judiciaire, dont la soumission au principe d'équité n'est plus contestée, le procès accueille les expertises non judiciaires dont les régimes sont encore à définir afin d'être conformes aux droits fondamentaux. Cette mutation de l'expertise civile est due aux droits fondamentaux, qu'ils soient procéduraux ou subjectifs. L'étude n'entend pas uniquement mettre les diverses formes de l'expertise civile en concurrence, elle envisage également de les établir en tant que modèles réciproques. La présente thèse met également en évidence les différentes fonctions des droits fondamentaux dans le développement de l’expertise. D’une part, c’est leur rôle protecteur qui a été mis en avant. Cela signifie que les droits fondamentaux doivent être respectés dans le cadre du déroulement d’une mesure d’expertise tant judiciaire que non-judiciaire. Une mesure d’instruction ne pourra être qualifiée d’efficace que dans ce cas-là. D’autre part, c’est la fonction créatrice des droits fondamentaux qui a été révélée dans la présente étude. La reconnaissance des droits à l'expertise judiciaire et à l'expertise non judiciaire est le résultat d'une extension de la philosophie de certains droits fondamentaux. Ce rôle créateur participe indéniablement au développement des mutations de l'expertise civile. / Law is irrigated by fundamental rights in each of its branches. As a preferred instrument of civil procedure, the expertise is concerned by this phenomenon. Like for the trial, expertise and fundamental rights are intrinsic. However, the links between these two concepts can be described as complex : indeed, they suggest a collaboration and a confrontation. Thus, fundamental rights represent an ideal approach to reveal the potentials and the deficiencies of the expertise, to improve it and to participate in its renewal. The evolution of the notion of expertise as well as the expansion of fundamental rights are creating unprecedented issues that the law has to consider. Alongside the traditional judicial expertise, whose submission to the principle of fairness is no longer disputed, the trial welcomes non-judicial expertises whose regimes are still to be defined in order to comply with fundamental rights. This change in civil expertise is due to fundamental rights, whether procedural or subjective. This thesis does not only intend to put the various forms of civil expertise in opposition, it also plans to establish them as reciprocal models. This thesis also reveals the different functions of fundamental rights in the development of civil expertise. On the one hand, it is their protective role that has been put forward. This means that fundamental rights must be respected during the conduct of a measure of expertise, judicial and non-judicial. A measure of instruction can be qualified as effective only in this case. On the other hand, it is the creative function of fundamental rights that has been revealed in this study. Issues relating to the rights to judicial expertise and non-judicial expertise is the result of an extension of the philosophy of specific fundamental rights. This creative role certainly contributes to the transformations of civil expertise.

The principle of contradictory in Criminal Proceedings Abstract The diploma thesis deals with the principle of contradictory of criminal proceedings, its various concepts and characteristics, especially its practical manifestations in Czech criminal proceedings. The aim of the work is to provide an insight into possible concepts of this principle, an overview of individual contradictory elements in criminal proceedings and then to draw attention to those elements that rather weaken the principle of contradictory. The work is divided into four chapters. The first chapter deals with the definition of the principle of contradictory. It offers several possible conceptions of this principle presented mainly by Czech authors. The chapter also contains a selection from the case law of the European Court of Human Rights, which ranks the principle of contradictory among the foundations of the right to a fair trial. The case law of the Czech Constitutional Court, which defines principle of contradictory following the example of the Strasbourg court, also corresponds to this. Finally, the chapter deals with the enshrinement of the principle in the current Criminal Procedure Code, but mainly the role of the principle in recodification work on the new Criminal Procedure Code. Chapter two describes some contradictory...

Nemo tenetur se ipsum accusare principle Abstract This thesis deals with the concept and selected aspects of the nemo tenetur se ipsum accusare principle. This principle is one of the fundamental pillars of defence in criminal proceedings and is closely related to the right to a fair trial. The thesis focuses on the principle's theoretical starting points and attempts to outline problematic issues related to the interpretation of its content when applied in practice, particularly with regard to the permissible degree of coercion. The first chapter of the thesis deals with the historical development of the principle in both the continental and anglo-american legal systems. The second chapter contains an overview of how the principle is ensrished in international and national sources of law. The third chapter deals with the relationship between the privilege against self-incrimination and the right to remain silent based on the case law of the European Court of Human Rights and the US Supreme Court. The fourth chapter is devoted to the evidence, in particular the procedural consequences of an infringement in the proceedings, focusing on lawful and unlawful methods of coercion and the individual defects resulting therefrom. The chapter also includes treatise on the doctrine of fruit from a poisoned tree, which...