Memorise Flashcards
Legality Principle
= Principle of Mandatory Prosecution
- For every case where there is sufficent evidence to, prosecutors are obliged to charge
- Prosecutors have no discretion
- This principle ensures that everyone is treated the same under law
Opportunity Principle
- Enforcement agencies have discretion on whether or not to prosecute
- This prevents backlog of cases in court
Prosecutorial Discretion
Power of the prosecuting entity to decide on how the state will react to an even that could incurr criminal liability
Principle of Immutability
A change of charge accusation is only possible after the change is communicated to the defense within a reasonable amount of time
This is so that they have a sufficient amount of time to adopt this
What is a tribunal
An autonomous notion where the ECtHR examines
1. Judical Function
2. Independence from other state bodies
3. Ability to be impartial
4. Manner of selection of its judical officers
Types of Courts
- Fact Finding
- Supreme and Appeal
- Constitutional (Domestic)
Possible complications of Fact-finding courts
- Professional judges
- Mixed Courts ; Proffessional w Lay Judges
- Jury Courts
Composition of Continental Jury Courts
- 6-9 Lay members
- 1-2 Professional judges
- This composition is usually used for serious crimes
Composition of Regular Mixed Courts
- 2-3 lay members
- 1 or 2 active professional judges
- For other crimes
Composition of Anglo-American Jury Courts
- Mostly 9-12 Jurors / lay judges
- 1 passive professional judge
Types of Causation
Predispositions of Victim
Unforseeable conduct victim
Coincidental intervening cause
Responsive intervening cause
Insubstantial contribution
Naturally Occuring intervention
Culpable human intervention
Culpable perpetrator
Conspiracy
= does not require conduct to be liable, agreeing w/ another party is sufficient for criminal liability
Reasonable Criminal Test
Would the reason for withdrawal lead to a “reasonable criminal” to abandon the project?
Examples
(External)
- Remorse
- Realization that act is wrong
(Internal)
- Fear of getting caught
- Bringing wrong tools
Retributivist Theory
- Assaultive Retributivism
- = morally right to hate criminals
- Since the criminal harmed society, its only fair to hurt them. - Punishment as communication
- Show society that that indiviudal has done something wrong
- Like public / societal shame
Suspect Criteria
- Suspicious conduct must constitute a criminal offense
- Suspicion must be reasonable
- Objective reasonable suspicion
Flagrant vs Non-Flagrant Offence
Flagrant
- Police has a wide range of powers to act on their own initiative
Non Flagrant
- Judicial investigation can be opened at the request of the public prosecutor
Miranda Warning
(Waiving Voluntarily Application)
- Applies to Custody
- Applies to Interrogation
Coercive Measures
–> ECtHR
Investigative measures that infringe upon ECHR fundamental human rights as well as constitutional rights
ECtHR ; Provides for minimum guarantees of human rights that authorities must respect
Presumption of Innocence
Innocent until proven guilty
Burden of proof is established meaning that without any proof, all parties need to adopt the idea that this defendant is innocent
Privilige against self incrimination
VS
Right to remain silent
Right to remain silent
- Literally what it means
- Only applies to acoustic / oral communications
- Covers both criminal and non-criminal statements
- Implicit right in Article 6 ECHR
Privilige against self-incrimination
- Means no one can be compelled to bring forward incriminating evidence against him/herself
- Applies to all kinds of communication and information
- Only coveres incriminating evidence
- Implicit right in Article 6 ECHR
System of free evaluation of evidence
- Judge is free to review all alleged evidence
- Judge determines what weight, if any, they give to the piece of evidence
System of legal rules as to the evaluation of the evidence
Positive System
- Law prescrives that only certain evidence is admissible
- If that evidence is present, the judge must convict
Negative System
- Only certain evidence is admissible
- BUT even if this evidence is present, judge can acquit
Testimonial Evidence
- Contents of Witness Statement
- Witness Evidence Must be Dealt w/ the necessary caution
- particular problem : hearsay evidence
ECtHR model concerning witness statements
- Witness under ECHR
- Actual Witnesses, Co-accused Witness, Informants, Expert Witnesses
- Immediacy Principle
Which witnessess cannot be heard in court?
- Precious Witness (must remain anonymous)
- Intimidated witness (must remain anonymous)
- Vulnerable witness (needs protection)
- Absent Witness (cannot appear in court)
2 modes of alternative settlement
(1) Take it or leave it proceedings
- One sided
- Prosecutor makes an offer to the defendant whcih the latter can either accept or ignore
- Eg. Transaction
(2) Negotiated Justice
- Two/Multiple sided
- Prosecutr and defendant discuss a case and can agree on a certain settlement and/or punishment
- Eg. Plea Bargaining
Penalties and Sanctions
Penalties: Aimed at (interalia) punishment –> general prevention
Measures: Aimed at (inter alia) promotional security, safety, restorative justice
