La clandestinité en matière pénale est présente au stade de la réalisation de l'infraction ainsi qu'à celui de sa poursuite. Cette notion se révèle protéiforme et pose la question des places respectives du juge et de la loi comme reconnaissant la clandestinité. / The clandestinity in penal law can be found when the offence is commited and when the legal proceedings are started. This notion is protean and question about the places of the judge and the legislator in recognizing the clandestinity.

Made available in DSpace on 2014-06-11T19:29:02Z (GMT). No. of bitstreams: 0 Previous issue date: 2010-07-23Bitstream added on 2014-06-13T20:38:07Z : No. of bitstreams: 1 silva_fab_me_assis.pdf: 488286 bytes, checksum: 7665e871d14014f0aecd19b3f40de1b5 (MD5) / Coordenação de Aperfeiçoamento de Pessoal de Nível Superior (CAPES) / Este trabalho tem como questão principal compreender a fomentação das propostas penalizantes e despenalizantes em nossa organização social. Sua área de investigação se destina aos saberes político-criminais que subsidiam tanto as práticas governativas de administração pública e disciplinarização dos corpos, a partir de processos de criminalização de atos e pessoas, quanto as propostas contemporâneas de abolição desses mecanismos. Para tanto, o presente estudo partiu do exame das técnicas de resolução de conflitos em circunstâncias distantes dos poderes característicos da justiça estatal. Respaldadas na forma do velho direito germânico, apreciamos as articulações políticas e administrativas das sociedades da Germânia Antiga à época queinexistiam uma justiça centralizada para solucionar acontecimentos danosos ou conflitantes em seu cotidiano. Em seguida, ao passar por elementos constitutivos do direito canônico, examinamos as ressonâncias das premissas de pecado e de culpa - advindas da moral escolástica - na constituição do conceito de crime como um evento infracional e penalizável. Adentramos, a seguir, na análise do complexo de processos sociais, políticos e econômicos que formalizaram o modelo de justiça criminal através da consolidação do Estado absolutista. A partir da institucionalização da ideia de crime, com atenção especial ao panorama político e econômico da época, ponderamos também as referências filosóficas que compunham o cenário de emergência de diversas teorias crimino-penais. Emergidas de um repertório de combate às monarquias administrativas, apresentamos as proposições da Escola Clássica da criminologia, concernente às formulações apontadas na obra “Dos delitos e das penas” (1764) de Cesare Beccaria. A seguir,... / This work has the main issue to understand the fomentation of the proposals penalizing or not existing in our social organization. His area of study is aimed at knowledge political-criminal that supports both the governance practices of public administration and disciplining of bodies, from processes of criminalization of acts and people, as the contemporary proposals for abolition of these mechanisms. Therefore, this study came from examining the practices of conflict resolution in circumstances remote from the power characteristic of the state justice. Backed in the form of the old Germanic law, we appreciate the joints and administrative policies of the former societies of Germany at the time that did not exist a centralized justice to resolve conflicting or harmful events in their daily lives. Then, while passing by the constituent elements of canon law, we examine the resonances of the premises of sin and guilt - stemming from the moral scholasticism - the constitution of the concept of crime as an event and penalizável infraction. We entered, then the analysis of complex processes of social, political and economic problems that have formalized the model of criminal justice from the consolidation of the absolutist state. From the institutionalization of the concept of crime, with special attention to political and economic landscape of the time, also ponder the philosophical references that formed the backdrop for the emergence of several theories criminals, criminal cases. Emerged in a repertoire to combat administrative monarchies, we present the Classical School of Criminology, concerning the formulations presented in the book Of Crimes and punishment ...(Complete abstract click electronic access below)

O presente trabalho tem o objetivo de analisar as relações entre o paradigma do gênero e o Direito Penal, buscando compreender os limites do Direito Penal como instrumento de luta feminista. Em um primeiro momento, verifica-se que as feministas destacaram o papel do Direito Penal como instância criadora e reprodutora da discriminação entre homens e mulheres, atuando como um dos principais sistemas de controle formal das mulheres. Já em um segundo momento, percebe-se que o Direito Penal passou a ser considerado um aliado do movimento feminista na busca pela igualdade material entre homens e mulheres. O uso desse ramo do Direito pelo movimento feminista, estratégia que também foi adotada por outros grupos sociais em defesa de seus respectivos interesses, segue a tendência de expansão do Direito Penal verificada desde as duas últimas décadas do século XX, em resposta a uma crescente demanda social por proteção estatal ante o fenômeno delitivo. Os Estados vêm respondendo a essa solicitação por meio da promulgação de inúmeras leis penais, associadas, eventualmente, a medidas de ação afirmativa ou a dispositivos claramente paternalistas. Dentro desse contexto, pretende-se examinar algumas das recentes alterações da legislação penal estrangeira e nacional que foram patrocinadas pelo movimento feminista, ampliando a criminalização de condutas no campo da violência doméstica, sexual e de gênero. Fato esse que acaba por contribuir para um perigoso Direito Penal de gênero, que, longe de favorecer a emancipação feminina, promove a sua imagem como ser frágil, fraco e indefeso. / This paper aims at assessing the relations between the paradigm of gender and Criminal Law, with the purpose of understanding the limits of Criminal Law as an instrument of the feminist movement. It may be notices that at first, feminists highlighted the role of Criminal Law as a creative and reproductive instance of discrimination between men and women, acting as a system of formal control of women. At a second stage, one can perceive that Criminal Law is seen as an ally of the feminist movement in the search for material equality between men and women. The use of the afore mentioned area of Law by the feminist movement was also adopted by other social groups in the defense of their respective interests agrees with the trend of expansion of Criminal Law, perceived since the last two decades of the XXth Century in response to a growing social demand for government protection against criminal events. States have responded to this request by enacting several criminal laws associated, at some point, to measures of positive action or to clearly paternalist provisions. In such context, we intend to assess some of the recent amendments of foreign and national criminal legislation sponsored by the feminist movement, expanding criminalization of conducts in the area of domestic, sexual and gender violence, all to contribute to the raise of a dangerous Criminal Law of gender that, far from favoring feminine emancipation promotes, otherwise, the image of the woman as a frail, weak and defenseless human being.

O presente trabalho analisa o impacto do exercício da repressão penal sobre os usuários de crack na busca pelo tratamento, avaliando a coerência entre os fins declarados pela atual política de drogas e os meios previstos em lei para sua consecução. O estudo se desenvolveu por meio de pesquisa qualitativa com seres humanos operada através de entrevistas com usuários e ex-usuários de crack em tratamento, bem como com os profissionais da equipe multidisciplinar do local de tratamento. / This paper analyzes the impact of criminal repression on crack users seeking treatment, evaluating the coherence between the purposes declared by the current drug policy and the means provided by law for its achievement. This paper was conducted by means of a qualitative research with humans beings, operated through interviews with crack users and former users in treatment, as well as with professionals in the multidisciplinary team from the treatment site.

This thesis examines the principle of mutual trust in EU criminal law. Mutual trust has become a household term in the EU criminal justice vocabulary and is widely regarded to be a prerequisite for a successful application of the principle of mutual recognition. But despite its widespread use, the parameters of the concept are not clear. Since mutual trust has become one of the core objectives of the EU's criminal justice policy, and legislation is adopted to build trust, a more substantial understanding is required. This thesis has taken a three-fold approach to substantiate and conceptualise the principle of mutual trust. Firstly, a multi-disciplinary assessment of social science literature to gain a better understanding of what trust is and how it functions. Secondly, a black letter approach combined with a discourse analysis, in order to reveal the practical difficulties that have arisen in relation to (insufficient) trust. This has revealed a number of flaws in the legal framework, as well as in policy documents dealing with trust, mainly due to the strict nature of the trust presumption. Thirdly, a comparative study with the United States of America, focused on interstate cooperation within a federal structure, offers fresh insights. Several lessons and limitations have been drawn from this study that have allowed scrutinising the EU’s trust building policy and logic.The thesis argues that mutual trust, a core principle of EU criminal law, is multi-faceted: a collective notion bringing together various aspects and principles relevant to rendering mutual recognition in criminal law a success. Its constitutive elements can broadly be categorised into social, legal and political elements. The first relates to the inherent subjective character of trust, the latter to its specific application in the legal EU criminal justice context. By bringing these elements together, a principle with a meaning specific to EU criminal law appears, a term of art. Most importantly, the substance of the principle builds on the idea of a similar European legal culture: more specifically of a European criminal law. It furthermore relates to the motivation for Member States to cooperate, i.e. fighting increasing cross border crime and building an Area of Freedom, Security and Justice. But whilst building on a shared legal culture, mutual trust also relates to the ideal to maintain national diversity in criminal law. On the basis of this dual notion, a comprehensive approach is proposed to tackle trust related difficulties. These relate mainly to harmonisation, most prominently of procedural safeguards; non-legal forms of trust building, aiming to enhance the provision of accurate information; and finally allowing the trust presumption to be rebutted, to create a more substantive principle of trust mindful of realities on the ground. Together, these should enable the principle of trust to operate in accordance with its two main functions, namely to facilitate the application of mutual recognition in the criminal justice sphere, while paying due regard to fundamental rights and liberties. / Doctorat en Sciences juridiques / info:eu-repo/semantics/nonPublished

Prostitution is not criminalised in the legal order of the Czech Republic, nor are the legal conditions for its practising regulated by law. Due to this approach the Czech Republic follow the abolitionist model of regulation of prostitution, which is based on penalizing the negative aspects related to prostitution, especially the criminality committed in relation to its providing, and endangering the public order, morals and health. The sole practising of prostitution is left without legal regulation and remains unresolved. This should be changed by the draft on regulation of prostitution, which is built upon the concept of regulating the prostitution as a legal business. This thesis deals with two basic sets of questions. First being the issue of regulation of prostitution and the conditions for its practising, second is the criminal law aspects of this phenomenon. The thesis is divided into seven parts according to its content. The first four parts offer the theoretical basis for the core of the thesis, which are parts five and six. Those are devoted to the mentioned basic questions. The first part characterises the nature of prostitution and offers its definition derived from the case-law. The second part gives the overview of different forms that the prostitution can acquire according to the...

Woman in Roman Criminal Law Abstract This thesis deals with several topics of Roman Criminal Law that pertain mainly to women, such as the criminal prosecution of adultery or the crimes of the Roman Vestal Virgins. Its main focus is on crimes where women were the only, or predominant perpetrators. Another field of interest in this study are crimes for which women used to receive different or worse punishments than men. In a wider context, this thesis focuses on the life of women in the Ancient Rome, on the many ways their status and roles in the society changed with the passing centuries, and on the ways how this was all reflected in the Roman Criminal Law. The main topics of interest include adulterium (adultery), abortus (abortion), lenocinium (pandering), stuprum (debauchery) and crimen incestum (crimes of the Vestal Virgins). Chapter One, The Changing Status of Women in Roman Society, serves as a general introduction to the main topic of this thesis. It shows the changing position of women in Roman society, with a focus on the transformation of the meek, obedient Republican matron into the wild, openly sexual creature that was the woman of the Late Republic and Early Principate. Chapter Two, Extramarital Relations, deals mainly with the topic of adultery and its punishment. Its main focus is on the...

59 8 Abstract - The issue of concept of criminal custody My diploma thesis deals with the criminal custody. It is an indispensable part of criminal process where personal freedom comes in a conflict with the effectivity of prosecution. Accused people are taken into custody before there is a decision on the matter and therefor the application of presumption of innocence is limited. Even though custody is not a punishment it can have very severe impacts on the accused person coming close to the impact of an actual punishment. The first part of the diploma thesis deals with the historical course beginning in the pre-hussite era until the present day. Second part obtains a brief explanation of what the term criminal custody means. The third part contains detailed characterization of the criminal custody reasons, strengthened criminal custody reasons and surrogate measures as well. The fourth part concerns about the rules of who is authorized to decide if an accused person is taken into criminal custody, the maximum length of the criminal custody, revisions of criminal custody legitimacy and decisions about further criminal custody duration. The diploma thesis should be able to describe the basic rules concerning the criminal custody.

The topic of this diploma thesis is "Criminal Law and Criminological Aspects of Stalking." This phenomenon is well known in history, nevertheless it was only few years ago, that it became a criminal offence. The Czech Republic implemented new definitions of stalking into the provision § 354 act no. 40/2009 Sb. of the Penal code, taking effect on January 1, 2010. Stalking represents a wide range of possible unpredictable forms of harassment, therefore it is necessary to approach this topic from an interdisciplinary point of view. This diploma thesis is divided into 6 chapters, which are presented in a logical order. In the "Introduction", the problem of defining the subject of stalking is presented, together with general information regarding stalking. This is necessary in order to enable a deeper understanding of the phenomenon. The introductory chapter also touches on the history of stalking and the reasons for having anti-stalking laws in the Czech Republic and elsewhere. The Criminological section shows the personality of the stalker and his victim and the typology is elaborated. The aim of this part is to delineate the basic characteristic traits of people, who become either potential perpetrators or their victims, together with a view of a typical victim's life, as well as possible methods of...

This thesis is focusing on the topic of the crime of stalking under section 354 of the Czech Criminal Code (Act. no. 40/2009). The offence of stalking captures in its merit the harmful psychological and social phenomenon known under the name stalking. Aim of this thesis is to provide comprehension of the offence of stalking particularly in the context of the phenomenon on its broad forensic psychological level. The conclusions about the crime itself are then derived from the observations made while examining stalking in its whole complexity. Aim of this thesis is also providing suggestions through comparison of the Czech legislation and legislations of selected foreign countries. The topic of this thesis in opened with proper definition of the term stalking followed by and insight of its understanding and concept in the course of centuries. Moving towards modern era, evidences contradicting common myths associated with stalking phenomenon are given, following the historical background. Following chapters deal with the perpetrators of stalking and introduce the problematics of stalking in the light of forensic psychology. Forensic insights are then used as a stepping stone for the journey towards examination of stalking through the lens of criminal law. In these chapters focus is primarily on...