Κυριακή, 16 Ιουνίου 2019

Forum

Out of Africa: Exploring the Ethiopian Sentencing Guidelines

Abstract

To date, the literature on sentencing reform has largely focused on western jurisdictions, particularly the United States and Europe. Developments in other parts of the world, particularly on the African continent, have been overlooked. This article explores sentencing in a lesser-known African jurisdiction: Ethiopia. The focus of the essay is upon the issue of structured sentencing. Sentencing in Ethiopia, like most jurisdictions, has historically been a very discretionary stage of the criminal process. That has now changed with the introduction of a comprehensive guideline scheme. Although sentencing guidelines in the US and England and Wales have been the subject of much critical scrutiny, nonwestern guidelines have attracted very little attention from scholars. Although there are parallels between the structure of the Ethiopian system and guidelines in other countries, there are also important differences. Since they are more developed than guidelines in adjacent countries, the Ethiopian guidelines constitute a model for other regional nations, including those with a post-colonial legacy. After providing an overview of sentencing in Ethiopia, the article describes the origin, nature, and consequences of the Ethiopian guidelines. The guidelines provide sentence ranges for different levels of seriousness for many crimes, and also prescribe a methodology to guide courts sentencing for offences for which no such guidance exists. They also provide some structure for the judicial use of mitigating and aggravating factors at sentencing. We conclude by identifying some deficiencies of the current guidelines and propose some specific remedies.



Books Received


Sadat, Leila Nadya (ed.), Seeking Accountability for the Unlawful Use of Force . Cambridge: Cambridge University Press, 2018, 612 pp. ISBN 978-107-18753-5


Deficient Monitoring Mechanisms Against Bail in Pakistan: A Challenge for the Protection of Rights of the Parties

Abstract

Bail is one of the most powerful non-custodial tools which the authorities administer very cautiously, taking into account the interests of both parties to the case in particular and the safety of the society in general. The monitoring mechanisms attached to the bail-bonds play an essential role in this context. In Pakistan, the law offers very few mechanisms to monitor the person released on bail; this paucity of options sometimes poses the rights of parties to the case at risk. Despite being a subject of high significance, this issue has failed to receive due attention from the Pakistani legislature and the judiciary. The content of this assertion is evident from very outdated law and restricted judicial interpretations on this point. This state of affairs direly calls for change in the judicial attitude which does not seem possible without amending the existing law on bail. For this purpose, this paper conducts an inquiry into the Indian and the English legal regimes on bail. The research finally proposes enhancement and intensification of the surveillance strategies through the utilization of the Indian law on bail to insert additional monitoring mechanisms place-able especially against the bail-seeker. It further suggests that the judiciary should have clear discretion to impose every suitable monitoring mechanism on the pattern of English law against the bail-seeker.



The Jeddah Amendment and the Fight Against Wildlife Trafficking

Abstract

African countries are either suppliers or transit points of the products involved in illicit wildlife dealings. This trade has had and continues to have serious negative impacts on society and the environment. Hence, tackling wildlife trafficking is an important, ongoing and uphill task for the continent. The Jeddah Amendment to the Djibouti Code of Conduct is the latest addition to the framework facilitating tackling the problem. Its precursor the Djibouti Code of Conduct was instrumental in rallying regional countries in addressing maritime piracy. It is hoped that its success will be replicated in handling other illicit activities occurring within the maritime zone. This article reviews relevant literature on the topic including the text of the Jeddah Amendment. For purposes of identifying how the provisions of the code can aid the fight against wildlife trafficking in Africa. Additional to pinpointing loopholes and implementation challenges that may arise. Given the scale and effects of wildlife trafficking, it is necessary to examine the possible contribution that the code will make towards addressing the problem. This may trigger further discussions as well as policy changes and ultimately enhance execution of the code.



The Scales of Justice: Balancing the Goals of International Criminal Trials

Abstract

The world community expects international criminal trials to accomplish more than their domestic law counterparts. International criminal trials are meant to further both judicial and political trial goals despite the potential conflict between these trial purposes and the accused's fair trial rights. First, this article discusses what makes a trial legal or political and where along this spectrum international criminal trials should fall. Next, this article assesses each of the purposes underlying international criminal trials, contextualises them as legal or political, and analyses whether each should be relied on as a justification for trying a suspect in an international or internationalised criminal court or tribunal. Third, the article scrutinises the way in which the different trial goals interact and discusses the impact each political goal has on the legal purpose of trial. The article concludes that incorporating political goals into international criminal trials is necessary to fulfill the mandates of each international criminal law institution. Trial courts must balance the legal and political goals to ensure that the trial meets its aims but that when a political goal comes into conflict with the legal goal of trial, it is latter that must take precedence as it is the factor most concerned with ensuring that the trial is fair. Prioritising fairness is the only way to guarantee the continued legitimacy of international and internationalised criminal courts and tribunals.



A New Model of the Criminal Justice Process: Victims' Rights as Advancing Penal Parsimony and Moderation

Abstract

In common law jurisdictions theoretical models of the criminal process were developed to enable a greater understanding of the values and forces behind this process. This article discusses victim engagement in the process with a particular look at their contribution to punitiveness during the prosecution and court proceedings. It argues that although existing models remain useful, a complementary model should be added that accounts for recent victim-initiatives, as well as empirical knowledge in the area of victim participation. This model posits that victim participation does not necessarily advance punitiveness and when advancing non-punitive aims, it does not necessarily operate within a restorative justice framework. The proposed model conceives victim participation as contributing to penal parsimony and moderation in criminal proceedings.



Gravity in the Statute of the International Criminal Court and Cyber Conduct That Constitutes, Instigates or Facilitates International Crimes

Abstract

This article explores the application of the gravity threshold to cyber conduct that might fall under the jurisdiction of the International Criminal Court. It first looks at how international crimes within the jurisdiction of the Court can be committed, instigated or facilitated in and through cyberspace and then discusses the problems that might arise when assessing gravity in this context. In particular, the article applies the elements of the gravity assessment identified in the Court's case-law and by the Prosecutor, i.e. the identification of those "most responsible" for the alleged crimes and certain quantitative and qualitative factors, in order to determine the gravity of a case or situation involving cyber conduct.



Extradition and Mental Health in UK Law

Abstract

The response of UK extradition law and practice to requested persons presenting with mental health disorders is multi-faceted and unnecessarily complex. There are a number of reasons for this. They centre upon the law failing to adequately recognise that mental health cases can give rise to concerns not present in physical health cases. The deficiencies of the law are found in the three applicable bars to extradition; oppression, human rights and forum. They also can be seen in the applicable rules of evidence and the practice of diplomatic assurances. The time has come for UK law to specifically and systematically respond to mental health disorders in the context of extradition.



Immunity of Heads of State and Senior State Officials from Subpoenas and Witness Summonses

Abstract

Although the law on immunities under international law is a very rich field of study, not much analysis has been done on the immunities of Heads of State from acts other than prosecution, namely from witness summonses and subpoenas in international criminal law. This article poses the question whether international law allows for Heads of State and Senior State officials to be subpoenaed or summonsed to testify as witnesses, and seeks to answer it by systemizing the relevant case law of international criminal courts and tribunals. After defining the types and the application of subpoenas and witness summonses in international criminal proceedings, the article examines whether the immunity of Heads of State is upheld when such requests are filed before international and national courts. The case law of the ad hoc international criminal tribunals shows that when the tribunal had to adjudicate a request to compel a witness to appear, it adapted the legal standard by considering the type and the object of the subpoena, the status of the prospective witness, and the court's role and mandate. The International Criminal Court iterated its power to compel the appearance of witnesses. As the immunities that are attached to the office of Heads of State and Senior State officials are largely sourced in rules of customary international law, the article maps the content of the customary rule governing specifically the immunity from subpoenas and witness summonses in international criminal law.



Alexandros Sfakianakis
Anapafseos 5 . Agios Nikolaos
Crete.Greece.72100
2841026182
6948891480

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