Punishment or Pardon” as the inaugurating event for this debate. See generally Alice H. Henkin, State Crimes: Punishment or Pardon (Conference Report), in 1 Transitional Justice: How Emerging De- mocracies Reckon With Former Regimes 184 (Neil J. Kritz ed., 1995) (presenting a summary of the conference). The debate took on special focus through a scholarly exchange in the Yale Law Journal between Diane Orentlicher and Carlos S. Nino, who served as a legal advisor to Argentina’s President Alfonsín. See Orentlicher, supra note 3, at 2540 (arguing for a duty to prosecute “espe- cially atrocious crimes”); Carlos S. Nino, The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina, 100 Yale L.J. 2619, 2639–40 (1991) (arguing that political contexts must be taken into account when designing an approach to criminaljustice in transitions); Diane F. Orentlicher, A Reply to Professor Nino, 100 Yale L.J. 2641, 2641–42 (1991) (rebutting Nino’s interpretation of her viewpoint on the inflexibility of the positive duty to prosecute). In her au- thoritative first article, Orentlicher sets the legal parameters for a state’s duty to prosecute. Nino, in turn, perceives this as too rigid for the political realities of countries in transition and suggests that we need to be sympathetic to the factual circumstances of each country. Nino also notes that an “unrelenting” duty to prosecute may put leaders under pressure and make them look weak. Nino, supra note 12, at 187. This debate culminated in 1995 with the publication of Neil Kritz’s three-volume book presenting the wide array of opinions on the matter. See generally Transitional Justice: How Emerging Democracies Reckon With Former Regimes, supra.
The implementation of the idea that individuals, wherever they are and regardless of their official status, may be accountable for crimes against humanity breaks away from the Westphalian paradigm that each State is responsible for trying (or not) its citizens. After the Cold War, several international criminal courts were created, namely the ad hoc courts for the former Yugoslavia and for Rwanda and a permanent criminal court, the International Criminal Court (ICC). Power no longer serves as a means for impunity. Those leaders involved in conflicts have learned to fear international criminaljustice as a "sword of Damocles". On the other hand, the creation of international criminal jurisdictions has become a means to consolidate peace in post-conflict situations so as to restore justice.
An immunity clause is indeed considered to be the most controversial provision in the amended ACJHR Statute. The relevant provision (Article 46Abis) reads as follows: “No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.” So far the Malabo Protocol is not yet in force, having been signed only by 9 States and ratified by none. A possible expansion of the Malabo Protocol of the African Court on Human and People’s rights should be achieved in a way that it ensures greater accountability, but does not undercut the ICC’s contribution to criminaljustice. Such an extension of the African Court must be developed in full respect and in conformity with the Rome Statute that does not foresee immunity from jurisdiction for sitting Heads of State. But it is precisely the issue of the irrelevance of the official capacity for criminal prosecution that is the most problematic aspect of the Rome Statute for African States, as it will be discussed in the next section.
After 1945, the consensus among the Super Sovereigns allowed for the inclusion of criminal judicial mechanisms in international legal order as the Nuremberg and Tokyo trials. This model of selective international criminaljustice has essentially a punishing function rather than a preventative function regarding international crimes and thus contribute to international peace and security. The survival of the Nuremberg model in the experiences in former Yugoslavia and in Rwanda is still an interesting proposal for the Super Sovereigns, which decide when, to whom and how punishment is used. Only in 1998 and now in 2010 does this model of selective justice is no longer under the control of its creators, really opening new possibilities, even if limited, and alterna- tives to an established power scheme embodied in the composition of the Security Council. The malaise and even hostility shown by the five perma- nent members of the International Criminal Court evidence that interna- tional criminaljustice is a possible judicial counter-power and is viewed as an undesired conditioning to sovereignty. This malaise may be seen as the result of a subtle shift from a model of international justice that is still, in its core, a sub-product of the interstate Westphalian-style model to one, per- haps more sophisticated, cosmopolitan and universalist one. This malaise is also a consequence of the difficulties in communication between diplomats and lawyers: at its core, the diplomatic method is based on secrecy, cession, composition of interests even if achieved contra legem or praeter legem, while a lawyer cannot work outside the framework of pre-established and publi- cized rules. And yet, international peace and security clearly require parallel intervention from Diplomacy and the Law and their tools. The interna- tional lawyer cannot be restricted to mere writer of formulas agreed on by the diplomats, similarly, International Law is not only the Law on Treaties. The judicial alternative has only formally been created: the International Criminal
The philosophy of rehabilitation of offenders, like other citizens of the stems that grow in the social sphere and due to some personal problems and social taken offense space and due to some circumstances, the ability to fight against deviation will not have to commit a crime. So the criminaljustice system should step before applying any kind of action, educating, nurturing and Treatment to learn social norms and values and thereby offenders back into society again. Hence, those involved in the criminaljustice since identify the phenomenon of delinquency until the end of criminal policy and even after leaving their breeding programs follow to treating offenders from the criminaljustice system. The criminaljustice system should aim to access this criminal character (whether in terms of individual and social terms most appropriate to adopt criminal policy response. (Nyazpoor, 2011, p. 113). Accordingly, in paragraph 5 of Article 156 of the constitution of the Islamic Republic of Iran is one of the main tasks of the judiciary to take appropriate action to prevent crime and can count on reforming criminals. The action that is applied after the crime to the criminal aspects of moral rehabilitation. The offender, on the one hand, due to criminal errors have seen their work rewarded at the same time be chastened (exclusion and
Até 1984, o método mais utilizado para a reconstituição do funil do sis- tema de justiça criminal era o longitudinal ortodoxo. Com o início da pesquisa anual da Organização das Nações Unidas (ONU), intitulada United Nations Surveys on Crime Trends and the Operations of Crimi- nal Justice Systems, o desenho transversal passou a ser a base metodo- lógica de estudos que tinham como objetivo avaliar a produção decisó- ria dos sistemas de justiça criminal em uma perspectiva comparada. Tal survey consiste no repasse de um formulário à agência maior, encar- regada da prevenção ao delito e ao controle da criminalidade em cada país, para que esta preencha o número de ocorrências registradas na polícia, o número de inquéritos policiais encerrados, o número de pro- cessos iniciados, o número de sentenças e o número de condenações se- gundo a natureza do delito e o ano de produção dessas peças. A partir dessas informações, a ONU pode calcular, para os mais diversos paí- ses, as taxas de esclarecimento, processamento, sentenciamento e con- denação de cada sistema de justiça criminal 8 . Com a disseminação dos
Em sentido contrário, há autores que sustentam que o autor do fato crimino- so, quando aceita a transação penal, o faz voluntariamente, sem que isso signifique o reconhecimento da sua culpa. Dessa forma, tal atitude consiste em uma técnica de de- fesa, e por se inserir no âmbito da defesa é que não viola o princípio constitucional da presunção da inocência. De acordo com esse argumento, o acusado aceita a pena alter- nativa para se defender de um processo criminal demorado, que poderia condená-lo de forma injusta, e também para se ver livre do ônus (comprometendo suas economias e tempo) que o decurso do processo poderá promover. Demonstra essa afirmação, o seguinte trecho reproduzido da doutrina jurídica, de Grinover et al. (2005): “Se o Esta- do lhe oferece outra alternativa que não seja responder um processo criminal e, sim, se submeter de maneira voluntária a uma sanção penal, sob determinadas condições, e que lhe traga consideráveis benefícios por que não aceitar?” 6
A obra Postneoliberalismo y penalidad en América del Sur, coletânea de artigos organizada por Máximo Sozzo, da Universidade do Litoral, de Santa Fé, é resultado de pesquisa realizada no âmbito do grupo de trabalho 39 do Conselho Latino-americano de Ciências Sociais (Clacso), intitulada Pós-neoliberalismo e políticas de controle do delito na América do Sul, que teve seus trabalhos iniciados em 2013. O objetivo central do trabalho desenvolvido pelo grupo consistia em elaborar análises sobre os diferentes cenários nacionais de seus integrantes, especialmente no que se refere à elaboração política-criminal desenvolvida em países da América Latina em que assumiram governos ligados à tradição política de esquerda.
intangibility. FSS utility dimension is to link the suspect to crime scene (or innocent someone wrongly accused) using science and technology, that is, it helps to build a narrative, in which defendants‘ behaviors are trialed according to the law. There are obstacles on delivering this value dimension, like miscoordination among network members on crime scene preservation, for instance. The justice dimension assumes that every citizen must have access to FSS, independent of any pre- existing condition. Although, FSS hasn‘t been universalized yet. The solidarity dimension has a deeply conexion with Human Rights, both in avoiding constraining suspects during criminal investigations, and contributing to fair trials, in the sense that either prosecution or defense have access to the service in equal terms. However, FSS subordination to the Police jeopardizes its impartiality. The aesthetic dimension consists on helping Police solve crimes without constraining suspects. Besides the technical competence, FSS personnel need a commun icational competence to a full client‘s knowledge. The technological resources are part of production process and critical for value delivery. Concluding, FSS should be redesigned as an independent agency in order to increase CriminalJustice impartiality. Finally, the study encourages reflections about the difficulties of applying service operations management concepts to a public organization that is changing, and it´s characterized by the diversity of stakeholders and by its fluid and poorly defined, although important value.
offense by children in generally is a process of imitating or affected persuasion from adults. Then criminaljustice system, which in turn puts the child in prisoners status would bring considerable consequences in terms of child development. As cited by Zulchaina‟s report on Gregorius, that the imprisonment even make the child more professional in doing a crime. Basic philosophy of the treatment of juvenile delinquents is for the best interests of the child, but the fact that people's behavior lately is very alarming, how society is so easy to judge people suspected as perpetrators of criminal acts. No matter whether the suspected perpetrator is an adult or a kid. Another phenomenon is happening at the moment is so easy to use penal institutions as a first choice in handling cases. It is true, that this option is in line and in accordance with the law, but it is certainly contrary to the idea of punishment as a "ultimum remedium" or the last resort when all efforts are taken already deemed no longer able to resolve it. The consequences of what is described in the many cases, including cases in court brat from year to year shows an increase in so impressed every act brat can certainly always processed through legal actions. This certainly is contrary to the philosophy of handling bad boy who put the interests of children above all else (the best interest of the child). In line with the view of Satjipto Rahardjo which states that, it‟s not a mistake if people expect too much to the law, whilst in some cases it may be true because this country is indeed as a constitutional state. But unfortunately, our laws have not been meet these expectations.
The issue to be developed aims to discuss the possible (in)efficacy of criminal investigation, under the perspective of the Democratic State of Law. The risks and dangers of nowadays beget a freak search for security that doesn’t exist anymore. The crisis of the modern paradigm increases this feeling of insecurity and results in a lack of perspective of future. In this context the violence and aggressiveness explode, not giving time to the Modern Reason Law to point solutions to the problem. The Law, the Penal Process and the preliminary investigation, for not introducing the required solutions they go into crisis, giving an idea of illegitimacy of the criminaljustice system. The criminal warranty, instructed by the Penal Process and the preliminary investigation, searches for the rescue of the idea the protection of the rights and guarantees. The study of the preliminary investigation, with and special highlight to our model, expressed on Constitution – the constitutional paradigm of criminal investigation – resulted in important facts. It was verified that all the systems have advantages and disadvantages, a reason for an analysis purely theoretical of the preliminary investigation is inconsistent. In this logic, in a critical way, were drawn some perspectives to the police criminal investigation. From the theoretical research on, added to the raised data by the Rio Grande do Sul Civil Police, really demonstrated the neglect with the criminal investigation - structural, legal and methodological. These bad reputations interfere in the consolidation of the Republican State and in the guarantee of the Human Rights, once the public security system and the criminal investigation also are tools to effect them. The matter is to search the humanization of the police activity and of the criminal investigation, getting over the idea of an antagonism. In this perspective, a human criminal investigation, fair, technical and guarantor of the Human Rights is desirable and possible, since there is a change in the paradigms.
The number of people under supervision in community sanctions and measures (CSM) are in constant rise since recent decades. In addition, recidivism concerns the penal system for its social and economic consequences. However, there are still much aspects of it to be explored within the criminological field. Taking into account the ‘struggle’ to operationalize concepts such as desistance and rehabilitation, this paper aims to explore how the criminaljustice system can act in front of recidivism, focusing specifically on probation as a community sanction and measure. Through studies’ analysis, it’s going to be demonstrated why probation can help individuals to stop offending and what are the obstacles to be tackled. The first section of this work will explain how desistance and rehabilitation presents an issue regarding its definition on the criminological literature and the relevance that the criminaljustice system presents on supporting it. It will briefly discuss what community sanctions and measures main features are and review how probation orders had increased over the last decade, showing the importance of discussing the relationship between CSM and reoffending.
Connell's introduction of the term hegemonic masculinity has inspired and in¯uenced the whole range of contemporary writings on men and masculinity, including that cur- rently being conducted within criminology. The strength of its appeal lies in its ability to recognize the diversity of men's lives, some- thing that the early feminist writings on male violence failed to do, but without losing sight of the importance of power. The idea of power structuring relations among men has, for example, enabled the relationship between particular crimes and men's speci®c positions in gender/race/class hierarchies to be explored, something Messerschmidt does in Masculinities and Crime (1993). It also permits analysis of organizations and cul- tures as well as individual men since hege- monic masculinity, like hegemony generally, is not just a personal matter but is deeply embedded in institutional life across the society as a whole; hence the re-examinations of a variety of criminaljustice institutions to reveal the masculinities embedded within them (Walklate, 1995). A ®nal strength is the importance it attaches, in true Gramscian fashion, to contestation. Since hegemony is essentially about defending the indefensible ± class inequality for Gramsci, gender inequality for Connell ± it is always liable to challenge; it is never ®xed nor absolute. Sometimes, only when it gets challenged by subordinate masculinities, in, for example, the idea of gay marriages or gay parenting, is hegemonic masculinity's commonly accepted, `taken-for-grantedness' revealed for what it is: in this case, the imposition of one kind of sexuality, heterosexuality, through all kinds of powerful institutions from the Church to the State, as the common sense of the age, the norm, the culturally exalted, the ideal.
Objective: To collect criminaljustice data involving medical professionals in the São Paulo State Court of Appeals and to establish the number of criminal proceedings involving said professionals, the content of the accusations and the conviction rate per specialty. Methods: A keyword search was carried out in the State Appellate Court case law website with the term “medical error” for decisions rendered from January 1st, 2011 to December 31st, 2016, and the subject “criminal law” was selected. Results: A total of 34 cases met the inclusion criteria and were analyzed. Lower court’s convictions accounted to 73.5% of the cases, with a slight tendency towards increase over the years. The number of cases per medical specialty was ten cases of clinical emergency, eight of obstetrics, seven of surgery, three of pediatrics (one case was related to pediatrics and obstetrics), two of orthopedic surgery, two of clinical director, one anesthesiologist and one non- emergency internal medicine physician. Among these cases, 6 were related to bodily injury, 26 to homicide and 2 criminal contempt. Conclusion: The physicians most exposed to medical error were from surgical specialties, probably due to the higher rate of complications associated with the procedures, and emergency physicians, professionals who need greater qualification.
Despite growing evidence that dependence is a treatable brain disease, most individuals do not receive treatment. Involvement in the criminaljustice system often results from illegal drug search behavior and participation in illegal activities that reflect, in part, the disruptive behavior resulting from brain changes triggered by repeated drug use. Dealing with drug offenders provides a unique opportunity to reduce substance abuse and reduce associated criminal behavior. Thus, the purpose of this article is to present a literature review about drug abuse and the Brazilian criminaljustice system. The research had a qualitative approach of exploratory nature and as far as procedures were concerned, the bibliographic research was used, which made possible to understand better the importance of the proposed subject. It is concluded that the challenge of delivering treatment in a criminal environment requires the cooperation and coordination of two different cultures: the organized criminaljustice system to punish the perpetrator and protect society and drug abuse treatment systems organized to assist the dependent individual.
vestigation of events occurred inside prison units involving criminal groups, in two aspects: the political-criminal issue and the (dis)interest of the public authorities in investigating the facts, and the criminal procedural issue in- volving both traditional and modern means of proof. The methodology used, in a majority way, is the bibliographic revision, although not exhaustive, by the temporal and spatial limits of the present text. At specific points, it was used news from the major media to indicate the dissemination of data and assumptions, particularly about more recent events in order to demonstrate the social perception of the subject. It has as its orientation the matrix of sociology to draw a brief historical foreshortening regarding the emergence and the installation of criminal groups at Brazilian prisons, analyzing the mutation of the use of riots (within the context of 2001 and 2006) for the slaughters (at 2013 and 2017). At the field of criminal investigation, the references used for the treatment are primarily of the criminal procedural, although it was used authors of related sciences that are attentive to the subject under discussion. The conclusions indicate the continuity of weak- ness at the field of criminal investigation, in the proposed theme, especially, due to scientific, methodological and operational issues.
Na primeira fase do ciclo de informações, a recolha, temos que ter em consideração os dados ou notícias (alvo da recolha), as respectivas fontes e o plano de recolha. Como verificámos anteriormente, dados ou notícias têm um significado diferente de informação porque podem ser factos, rumores, opiniões inferências, etc. Desta forma, quando falamos em recolha de informações, não estamos a falar (maioritariamente) de informação propriamente dita mas sim de dados ou notícias. As fontes de dados ou notícias poderão ser oficiais ou pessoais. As oficiais subdividem-se em públicas – locais ou entidades públicas, nomeadamente organismos do Estado – e privadas – locais ou entidades privadas que se encontram obrigadas por lei a registar determinados dados, notícias ou eventos. As fontes pessoais poderão ser de apoio – indivíduos cuja profissão permite o acesso a determinados dados, quer por os presenciarem, quer por estarem perto dos criminosos – ou de acção – indivíduos ligados directamente à actividade criminal e que colaboram de alguma forma com os suspeitos investigados. O Plano de recolha especifica os dados ou notícias que são essencial para a análise, centrando-se no que é verdadeiramente necessário. Não obstante tal, deve ser suficientemente flexível para se adaptar a outras necessidades. O plano de recolha de informação permitirá: determinar os dados específicos necessários à análise; evitar a perda de tempo que se verifica quando se recolhem dados desnecessários; aumentar a eficácia; e simplificar a coordenação.
Resumo: : : A proposta deste artigo é discutir a relação entre tempo e direito a partir da problematização das metodologias : empregadas no cálculo do tempo de processamento criminal. Essa discussão é importante porque, dependendo dos procedimentos empregados na construção e manuseio da base de dados Cconstruída ou eleita para esse tipo de estudo), a medida final do tempo pode ser distinta e, por conseguinte, representar fenômenos diferenciados. Longe de evidenciar conclusões sobre qual a melhor forma de empreender esse tipo de análise ou de compreender o fenômeno do tempo da justiça, este artigo espera contribuir com o crescente interesse sobre o tema, apresentando questões e alternativas a todos aqueles que pretendem se dedicar à mensuração do processo de aplicação de normas no âmbito dos tribunais brasileiros.