Memorise

Question 1

Legality Principle

Answer 1

= 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

Question 2

Opportunity Principle

Answer 2

• Enforcement agencies have discretion on whether or not to prosecute
• This prevents backlog of cases in court

Question 3

Prosecutorial Discretion

Answer 3

Power of the prosecuting entity to decide on how the state will react to an even that could incurr criminal liability

Question 4

Principle of Immutability

Answer 4

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

Question 5

What is a tribunal

Answer 5

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

Question 6

Types of Courts

Answer 6

• Fact Finding
• Supreme and Appeal
• Constitutional (Domestic)

Question 7

Possible complications of Fact-finding courts

Answer 7

1. Professional judges
2. Mixed Courts ; Proffessional w Lay Judges
3. Jury Courts

Question 8

Composition of Continental Jury Courts

Answer 8

• 6-9 Lay members
• 1-2 Professional judges
• This composition is usually used for serious crimes

Question 9

Composition of Regular Mixed Courts

Answer 9

• 2-3 lay members
• 1 or 2 active professional judges
• For other crimes

Question 10

Composition of Anglo-American Jury Courts

Answer 10

• Mostly 9-12 Jurors / lay judges
• 1 passive professional judge

Question 11

Types of Causation

Answer 11

Predispositions of Victim
Unforseeable conduct victim
Coincidental intervening cause
Responsive intervening cause
Insubstantial contribution
Naturally Occuring intervention
Culpable human intervention
Culpable perpetrator

Question 12

Conspiracy

Answer 12

= does not require conduct to be liable, agreeing w/ another party is sufficient for criminal liability

Question 13

Reasonable Criminal Test

Answer 13

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

Question 14

Retributivist Theory

Answer 14

1. Assaultive Retributivism
   - = morally right to hate criminals
   - Since the criminal harmed society, its only fair to hurt them.
2. Punishment as communication
   - Show society that that indiviudal has done something wrong
   - Like public / societal shame

Question 15

Suspect Criteria

Answer 15

1. Suspicious conduct must constitute a criminal offense
2. Suspicion must be reasonable
3. Objective reasonable suspicion

Question 16

Flagrant vs Non-Flagrant Offence

Answer 16

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

Question 17

Miranda Warning
(Waiving Voluntarily Application)

Answer 17

• Applies to Custody
• Applies to Interrogation

Question 18

Coercive Measures

–> ECtHR

Answer 18

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

Question 19

Presumption of Innocence

Answer 19

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

Question 20

Privilige against self incrimination
VS
Right to remain silent

Answer 20

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

Question 21

System of free evaluation of evidence

Answer 21

• Judge is free to review all alleged evidence
• Judge determines what weight, if any, they give to the piece of evidence

Question 22

System of legal rules as to the evaluation of the evidence

Answer 22

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

Question 22

Testimonial Evidence

Answer 22

• Contents of Witness Statement
• Witness Evidence Must be Dealt w/ the necessary caution
• particular problem : hearsay evidence

Question 23

ECtHR model concerning witness statements

Answer 23

• Witness under ECHR
• Actual Witnesses, Co-accused Witness, Informants, Expert Witnesses
• Immediacy Principle

Question 24

Which witnessess cannot be heard in court?

Answer 24

• Precious Witness (must remain anonymous)
• Intimidated witness (must remain anonymous)
• Vulnerable witness (needs protection)
• Absent Witness (cannot appear in court)

Question 25

2 modes of alternative settlement

Answer 25

(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

Question 26

Penalties and Sanctions

Answer 26

Penalties: Aimed at (interalia) punishment –> general prevention

Measures: Aimed at (inter alia) promotional security, safety, restorative justice