Pub Date : 2022-01-14DOI: 10.15845/bjclcj.v9i2.3524
K. Nordlöf
The enforcement of a sentence requires that, at the time of the crime, the suspect has reached the age of criminal responsibility according to the Swedish Criminal Code (SFS 1962:700) as well as the Conventions on the Rights of the Child and also implicit in other international agreements. Similarly, until 2017, the Swedish Young Offenders Special Provisions Act (SFS 1964:167) required that for the use of coercive measures, a person who was on reasonable grounds suspected of a crime which might lead to a prison sentence had to have reached the age of criminal responsibility. The requirements for a body examination were extended at the time in the Swedish Code of Judicial Procedure (SFS 1942:740) to also include situations where there is an uncertainty concerning the suspect’s age. The extension regarding body examinations was a consequence of the aftermath of the refugee crisis of 2015. Uncertainty concerning the age of a person seeking asylum had led to discussions on what methods to use in order to determine a person’s age. The issue was also raised in criminal cases where the age of a suspect was unclear and concerned, more precisely, the burden of proof regarding the age of a suspect and the legal grounds for a body examination when estimating a suspect’s age. In this article I will with reference to the fundamental principles of proportionality, predictability, equal treatment and consistency scrutinize the legal grounds for a body examination when there is an uncertainty concerning age and the suspect claims to be under the age of criminal responsibility in relation to Article 3 of the Convention on the Rights of the Child that states that ‘the best interests of the child shall be…’ and similarly in Article 24:2 of the European Charter of Fundamental Rights ‘the child’s best interests must be a primary consideration’. Furthermore, I will explore what impact the practice of a body examination in those specific situations may have from a gender and diversity perspective. At the extension of the requirement of the legal grounds for a body examination in 2017, the child’s best interests were not taken into consideration. From a gender and diversity perspective, this extension implies the preservation of a prevailing structure that men with a foreign background commit more crimes than men and women born in Sweden.
{"title":"Body examinations of underage children committing crime - A Swedish perspective","authors":"K. Nordlöf","doi":"10.15845/bjclcj.v9i2.3524","DOIUrl":"https://doi.org/10.15845/bjclcj.v9i2.3524","url":null,"abstract":"The enforcement of a sentence requires that, at the time of the crime, the suspect has reached the age of criminal responsibility according to the Swedish Criminal Code (SFS 1962:700) as well as the Conventions on the Rights of the Child and also implicit in other international agreements. Similarly, until 2017, the Swedish Young Offenders Special Provisions Act (SFS 1964:167) required that for the use of coercive measures, a person who was on reasonable grounds suspected of a crime which might lead to a prison sentence had to have reached the age of criminal responsibility. The requirements for a body examination were extended at the time in the Swedish Code of Judicial Procedure (SFS 1942:740) to also include situations where there is an uncertainty concerning the suspect’s age. The extension regarding body examinations was a consequence of the aftermath of the refugee crisis of 2015. Uncertainty concerning the age of a person seeking asylum had led to discussions on what methods to use in order to determine a person’s age. The issue was also raised in criminal cases where the age of a suspect was unclear and concerned, more precisely, the burden of proof regarding the age of a suspect and the legal grounds for a body examination when estimating a suspect’s age. In this article I will with reference to the fundamental principles of proportionality, predictability, equal treatment and consistency scrutinize the legal grounds for a body examination when there is an uncertainty concerning age and the suspect claims to be under the age of criminal responsibility in relation to Article 3 of the Convention on the Rights of the Child that states that ‘the best interests of the child shall be…’ and similarly in Article 24:2 of the European Charter of Fundamental Rights ‘the child’s best interests must be a primary consideration’. Furthermore, I will explore what impact the practice of a body examination in those specific situations may have from a gender and diversity perspective. At the extension of the requirement of the legal grounds for a body examination in 2017, the child’s best interests were not taken into consideration. From a gender and diversity perspective, this extension implies the preservation of a prevailing structure that men with a foreign background commit more crimes than men and women born in Sweden.","PeriodicalId":43762,"journal":{"name":"European Journal of Crime Criminal Law and Criminal Justice","volume":"79 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79307480","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-14DOI: 10.15845/bjclcj.v9i2.3525
Linnea Wegerstad
This article offers a theoretical approach to criminalisation in relation to sexual harassment, using Sweden as example. The topic is spurred by two separate but interrelated phenomena. The first is the #metoo movement, which raised not only awareness of the widespread problem of sexual harassment, but also questions as to whether criminal law can provide a proper response. The second is a growing concern, both in international research and among Swedish activists, that the feminist struggle against sexual violence is turning towards punitive measures. Taking the standpoint that feminist research and activism should engage in a critical conversation with criminal law and crime policy, this article employs Kelly’s concept of the continuum of sexual violence to analyse the scope for criminal law interventions regarding men’s intimate intrusions against women. Swedish criminal regulation is used to highlight some of the challenges of designing a criminal provision that considers the individual effects as well as the cumulative and collective impacts of sexual harassment.
{"title":"Theorising sexual harassment and criminalisation in a Swedish context","authors":"Linnea Wegerstad","doi":"10.15845/bjclcj.v9i2.3525","DOIUrl":"https://doi.org/10.15845/bjclcj.v9i2.3525","url":null,"abstract":"This article offers a theoretical approach to criminalisation in relation to sexual harassment, using Sweden as example. The topic is spurred by two separate but interrelated phenomena. The first is the #metoo movement, which raised not only awareness of the widespread problem of sexual harassment, but also questions as to whether criminal law can provide a proper response. The second is a growing concern, both in international research and among Swedish activists, that the feminist struggle against sexual violence is turning towards punitive measures. Taking the standpoint that feminist research and activism should engage in a critical conversation with criminal law and crime policy, this article employs Kelly’s concept of the continuum of sexual violence to analyse the scope for criminal law interventions regarding men’s intimate intrusions against women. Swedish criminal regulation is used to highlight some of the challenges of designing a criminal provision that considers the individual effects as well as the cumulative and collective impacts of sexual harassment.","PeriodicalId":43762,"journal":{"name":"European Journal of Crime Criminal Law and Criminal Justice","volume":"1 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91281449","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-22DOI: 10.1163/15718174-29030003
{"title":"Contents","authors":"","doi":"10.1163/15718174-29030003","DOIUrl":"https://doi.org/10.1163/15718174-29030003","url":null,"abstract":"","PeriodicalId":43762,"journal":{"name":"European Journal of Crime Criminal Law and Criminal Justice","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43971046","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-22DOI: 10.1163/15718174-bja10025
Lucille Micheletto
The Anglo-American harm principle, and its European counterparts – the legal goods theory and the offensività principle – attempt to provide an answer to the question of which conducts can be prima facie legitimately criminalised. Despite the historical, conceptual, and practical differences between these criminalisation approaches, they share important elements, particularly from a functional and operational perspective. By merging the key aspects of these theories, this work elaborates an instrument to assess the prima facie legitimacy of criminalisation – the Integrated Legitimacy Test – that embeds their essential elements and further conceptualises them. The Test strives to overcome some of the criticisms directed against the Anglo-American and European theories by narrowly defining their core elements and linking them to empirical evidence. Moreover, its transnational nature makes it suitable to feed the criminalisation debate at the European Union level.
{"title":"Towards an Integrated (and Possibly Pan-European?) Prima Facie Legitimacy Test: Merging the Rechtsgut Theory, the Offensività Principle, and the Harm Principle","authors":"Lucille Micheletto","doi":"10.1163/15718174-bja10025","DOIUrl":"https://doi.org/10.1163/15718174-bja10025","url":null,"abstract":"\u0000The Anglo-American harm principle, and its European counterparts – the legal goods theory and the offensività principle – attempt to provide an answer to the question of which conducts can be prima facie legitimately criminalised. Despite the historical, conceptual, and practical differences between these criminalisation approaches, they share important elements, particularly from a functional and operational perspective. By merging the key aspects of these theories, this work elaborates an instrument to assess the prima facie legitimacy of criminalisation – the Integrated Legitimacy Test – that embeds their essential elements and further conceptualises them. The Test strives to overcome some of the criticisms directed against the Anglo-American and European theories by narrowly defining their core elements and linking them to empirical evidence. Moreover, its transnational nature makes it suitable to feed the criminalisation debate at the European Union level.","PeriodicalId":43762,"journal":{"name":"European Journal of Crime Criminal Law and Criminal Justice","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43688858","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-22DOI: 10.1163/15718174-29030001
G. Meško
The past almost two years have brought many changes to our lives. The covid-19 pandemic was announced by the who on 11 March 2020, and social life soon changed significantly. Schools, universities, and kindergartens were closed down and many other work-related activities moved to the workfrom-home platform as stay-at-homeand curfew measures were adopted by almost all governments while others decided in favour of a much more liberal approach. Some industries or sectors thereof were badly affected, others, particularly the tourism and hospitality sectors, collapsed. This editorial is aimed at complementing the previous editorials by Estella Baker (2020) and Nina Peršak (2020). In social control activities, the police have crucial roles in providing people with security and safety, maintaining public order, and investigating crime. On top of this, the police play a vital role in community policing activities. External perspectives regarding policing and the police are critical, and so are the internal ones giving rise to questions about the role of the police in the covid-19 pandemic. Police organisations’ adaptation to the new circumstances in terms of caring for police officers’ health, long hours of police work, pressures by civil criticism of the police in controlling offenders for neither wearing protective masks or ignoring governmental regulations with a view to curbing the spread of the virus, such as the curfew and prohibition of gathering in public places, highlighted several challenges. This years’ cepol Research and Science Conference dealt with the role of the police in the times of the covid-19 pandemic. The conference organisers were cepol, the European Union Agency for Law Enforcement Training, and the Mykolas Romeris University of Lithuania. Speakers were mostly from Europe and some from the USA and South Africa. In total, more than 550 participants registered for the conference. The conference was organised in six Editorial
{"title":"Police, Policing and covid-19 Pandemic","authors":"G. Meško","doi":"10.1163/15718174-29030001","DOIUrl":"https://doi.org/10.1163/15718174-29030001","url":null,"abstract":"The past almost two years have brought many changes to our lives. The covid-19 pandemic was announced by the who on 11 March 2020, and social life soon changed significantly. Schools, universities, and kindergartens were closed down and many other work-related activities moved to the workfrom-home platform as stay-at-homeand curfew measures were adopted by almost all governments while others decided in favour of a much more liberal approach. Some industries or sectors thereof were badly affected, others, particularly the tourism and hospitality sectors, collapsed. This editorial is aimed at complementing the previous editorials by Estella Baker (2020) and Nina Peršak (2020). In social control activities, the police have crucial roles in providing people with security and safety, maintaining public order, and investigating crime. On top of this, the police play a vital role in community policing activities. External perspectives regarding policing and the police are critical, and so are the internal ones giving rise to questions about the role of the police in the covid-19 pandemic. Police organisations’ adaptation to the new circumstances in terms of caring for police officers’ health, long hours of police work, pressures by civil criticism of the police in controlling offenders for neither wearing protective masks or ignoring governmental regulations with a view to curbing the spread of the virus, such as the curfew and prohibition of gathering in public places, highlighted several challenges. This years’ cepol Research and Science Conference dealt with the role of the police in the times of the covid-19 pandemic. The conference organisers were cepol, the European Union Agency for Law Enforcement Training, and the Mykolas Romeris University of Lithuania. Speakers were mostly from Europe and some from the USA and South Africa. In total, more than 550 participants registered for the conference. The conference was organised in six Editorial","PeriodicalId":43762,"journal":{"name":"European Journal of Crime Criminal Law and Criminal Justice","volume":"1 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41428159","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-22DOI: 10.1163/15718174-bja10026
N. Stamatakis
Justice systems around the world are constantly working to balance reform/rehabilitation/re-entry and punishment in response to juvenile delinquency. In recent years, there has been a strong emphasis on the notion of restorative justice as an alternative approach to criminal justice, yet there continues to be a dearth of information on the interrelation between restorative justice, religion and imprisonment, especially among youth. The present research seeks to explore the applicability and possible future implementation of restorative justice programmes for late adolescent and young adult male offenders (18–21 years old) held in the Special Detention Institutions of Greece. It also aims to identify any links between restorative justice and religion in youth custodial settings among the large migrant population hosted in these institutions. A self-administered quantitative study was distributed to achieve this aim. The data analysis provided no statistically significant relationships between the inmates’ willingness to meet with their actual/surrogate victims and ask for forgiveness/restore relationships with them. Equally insignificant was found the inmates’ eagerness to get involved in restorative mediation with their capacity to acknowledge the harm that their illegal actions inflicted on others, and to make amends.
{"title":"“Is Restorative Justice Greek to Me?”: Exploring Its Applicability in Greek Youth Detention Centres","authors":"N. Stamatakis","doi":"10.1163/15718174-bja10026","DOIUrl":"https://doi.org/10.1163/15718174-bja10026","url":null,"abstract":"\u0000Justice systems around the world are constantly working to balance reform/rehabilitation/re-entry and punishment in response to juvenile delinquency. In recent years, there has been a strong emphasis on the notion of restorative justice as an alternative approach to criminal justice, yet there continues to be a dearth of information on the interrelation between restorative justice, religion and imprisonment, especially among youth. The present research seeks to explore the applicability and possible future implementation of restorative justice programmes for late adolescent and young adult male offenders (18–21 years old) held in the Special Detention Institutions of Greece. It also aims to identify any links between restorative justice and religion in youth custodial settings among the large migrant population hosted in these institutions. A self-administered quantitative study was distributed to achieve this aim. The data analysis provided no statistically significant relationships between the inmates’ willingness to meet with their actual/surrogate victims and ask for forgiveness/restore relationships with them. Equally insignificant was found the inmates’ eagerness to get involved in restorative mediation with their capacity to acknowledge the harm that their illegal actions inflicted on others, and to make amends.","PeriodicalId":43762,"journal":{"name":"European Journal of Crime Criminal Law and Criminal Justice","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46097830","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-22DOI: 10.1163/15718174-bja10024
Ariadna H. Ochnio
The article discusses the shortcomings of EU policy regarding cross-border asset recovery. The identified problem is a disjointed approach to the overlapping objectives of criminal proceedings: gathering evidence and securing assets for future confiscation. In the current EU legal framework, the process of recovery of assets, understood as a sequence of functionally related activities, lacks the continuity necessary to be effective. EU cross-border cooperation instruments in criminal matters do not meet the needs of this process, as they relate to separate investigative measures. Problems in this field have been indirectly reflected in the practice of Eurojust and the ejn. The article proposes a change in the perception of the initial phase of the asset recovery process, where the objectives of identifying and locating financial assets are combined with their provisional securing. This takes place under one mechanism of cross-border cooperation (an eio), prior to issuing a regular freeze or seizure order.
{"title":"The Tangled Path From Identifying Financial Assets to Cross-Border Confiscation. Deficiencies in EU Asset Recovery Policy","authors":"Ariadna H. Ochnio","doi":"10.1163/15718174-bja10024","DOIUrl":"https://doi.org/10.1163/15718174-bja10024","url":null,"abstract":"\u0000The article discusses the shortcomings of EU policy regarding cross-border asset recovery. The identified problem is a disjointed approach to the overlapping objectives of criminal proceedings: gathering evidence and securing assets for future confiscation. In the current EU legal framework, the process of recovery of assets, understood as a sequence of functionally related activities, lacks the continuity necessary to be effective. EU cross-border cooperation instruments in criminal matters do not meet the needs of this process, as they relate to separate investigative measures. Problems in this field have been indirectly reflected in the practice of Eurojust and the ejn. The article proposes a change in the perception of the initial phase of the asset recovery process, where the objectives of identifying and locating financial assets are combined with their provisional securing. This takes place under one mechanism of cross-border cooperation (an eio), prior to issuing a regular freeze or seizure order.","PeriodicalId":43762,"journal":{"name":"European Journal of Crime Criminal Law and Criminal Justice","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46203616","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-22DOI: 10.1163/15718174-bja10016
J. Keiler, A. Klip
The cross-border execution of judgments remains difficult in practice for European Member States. This article seeks to analyze why this may be the case with regard to four different modalities of sentences: (1) prison sentences and other measures involving deprivation of liberty, (2) conditional sentences and alternative measures, (3) financial penalties and (4) confiscation orders. Based on a comparative analysis, this article investigates the problems at stake regarding the cross-border execution of judgements in Belgium, Germany and the Netherlands and identifies possible causes and explanations for these. The analysis shows that impediments to cooperation may inter alia stem from differences in national law and diverging national sentencing practices and cultures and may furthermore be related to a lack of possibilities for cooperation in the preliminary phase of a transfer. Moreover, some obstacles to cooperation may be country-specific and self-made, due to specific choices and approaches of national criminal justice systems.
{"title":"The Sentence is Only the Beginning: Hiccups in the Cross-Border Execution of Judgments in the Euregion Meuse-Rhine","authors":"J. Keiler, A. Klip","doi":"10.1163/15718174-bja10016","DOIUrl":"https://doi.org/10.1163/15718174-bja10016","url":null,"abstract":"\u0000The cross-border execution of judgments remains difficult in practice for European Member States. This article seeks to analyze why this may be the case with regard to four different modalities of sentences: (1) prison sentences and other measures involving deprivation of liberty, (2) conditional sentences and alternative measures, (3) financial penalties and (4) confiscation orders. Based on a comparative analysis, this article investigates the problems at stake regarding the cross-border execution of judgements in Belgium, Germany and the Netherlands and identifies possible causes and explanations for these. The analysis shows that impediments to cooperation may inter alia stem from differences in national law and diverging national sentencing practices and cultures and may furthermore be related to a lack of possibilities for cooperation in the preliminary phase of a transfer. Moreover, some obstacles to cooperation may be country-specific and self-made, due to specific choices and approaches of national criminal justice systems.","PeriodicalId":43762,"journal":{"name":"European Journal of Crime Criminal Law and Criminal Justice","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46303014","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-22DOI: 10.1163/15718174-bja10027
Marcin Rojszczak
The introduction of modern forms of communication, such as encrypted messengers or VoIP telephony, has forced law enforcement agencies to use new technologies to carry out surveillance of people facing criminal proceedings. Rather than relying on the interception of communications during transmission, modern surveillance systems are often based on breaking or bypassing the security features of a user’s mobile device – making it possible to conduct various forms of surveillance that include audio and video recording. One example of such a system is Pegasus – a tool that was initially used to pursue national security objectives but is now increasingly applied in criminal surveillance. The introduction of technical innovations in criminal surveillance must include an examination of their compatibility with legal constraints laid down to protect the individual against the risk of arbitrariness and abuse of power. The effectiveness of surveillance should never be the sole determinant for tasks undertaken by public authorities. The aim of this article is to demonstrate that the implementation of modern surveillance measures such as Pegasus must also include a review of existing legal regulations to ensure that the use of these products’ extended capabilities is under proper control and complies with the rule of law.
{"title":"EU Criminal Law and Electronic Surveillance: The Pegasus System and Legal Challenges It Poses","authors":"Marcin Rojszczak","doi":"10.1163/15718174-bja10027","DOIUrl":"https://doi.org/10.1163/15718174-bja10027","url":null,"abstract":"\u0000The introduction of modern forms of communication, such as encrypted messengers or VoIP telephony, has forced law enforcement agencies to use new technologies to carry out surveillance of people facing criminal proceedings. Rather than relying on the interception of communications during transmission, modern surveillance systems are often based on breaking or bypassing the security features of a user’s mobile device – making it possible to conduct various forms of surveillance that include audio and video recording. One example of such a system is Pegasus – a tool that was initially used to pursue national security objectives but is now increasingly applied in criminal surveillance.\u0000The introduction of technical innovations in criminal surveillance must include an examination of their compatibility with legal constraints laid down to protect the individual against the risk of arbitrariness and abuse of power. The effectiveness of surveillance should never be the sole determinant for tasks undertaken by public authorities.\u0000The aim of this article is to demonstrate that the implementation of modern surveillance measures such as Pegasus must also include a review of existing legal regulations to ensure that the use of these products’ extended capabilities is under proper control and complies with the rule of law.","PeriodicalId":43762,"journal":{"name":"European Journal of Crime Criminal Law and Criminal Justice","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45326349","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-13DOI: 10.1163/15718174-bja10022
W. Jasiński
The paper presents and assesses the approach of the ECtHR to admissibility of evidence obtained through torture and inhuman or degrading treatment in the criminal process. The author examines the content of the standard, its justifications and the consistency of the ECtHR's reasoning. The paper refers both to the admissibility of statements and real evidence as well as to primary and derivate evidence obtained in violation of Article 3 echr. The admissibility of evidence obtained by oppressive conduct of private individuals is also analysed. The assessment of the Strasbourg Court’s case law indicates that its approach is quite nuanced and, unfortunately, inconsistent and incoherent. Its main shortcoming is the lack of an in-depth analysis of the rationale for the inadmissibility of evidence obtained by maltreatment and the piecemeal treatment of individual categories of such evidence devoid of attempt to comprehensively address its admissibility in criminal proceedings.
{"title":"Admissibility of Evidence Obtained by Torture and Inhuman or Degrading Treatment. Does the European Court of Human Rights Offer a Coherent and Convincing Approach?","authors":"W. Jasiński","doi":"10.1163/15718174-bja10022","DOIUrl":"https://doi.org/10.1163/15718174-bja10022","url":null,"abstract":"\u0000The paper presents and assesses the approach of the ECtHR to admissibility of evidence obtained through torture and inhuman or degrading treatment in the criminal process. The author examines the content of the standard, its justifications and the consistency of the ECtHR's reasoning. The paper refers both to the admissibility of statements and real evidence as well as to primary and derivate evidence obtained in violation of Article 3 echr. The admissibility of evidence obtained by oppressive conduct of private individuals is also analysed. The assessment of the Strasbourg Court’s case law indicates that its approach is quite nuanced and, unfortunately, inconsistent and incoherent. Its main shortcoming is the lack of an in-depth analysis of the rationale for the inadmissibility of evidence obtained by maltreatment and the piecemeal treatment of individual categories of such evidence devoid of attempt to comprehensively address its admissibility in criminal proceedings.","PeriodicalId":43762,"journal":{"name":"European Journal of Crime Criminal Law and Criminal Justice","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42422145","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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