Guarantee of the accused person's right to defense counsel. A comparative study of Vietnamese, German and American criminal procedure law (2024)

EU and comparative law issues and challenges series, 2018

This paper tackles the issue of the police interrogation of the suspect after implementation of the Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings. Therefore , this paper first analyses the standards of the European Convention of Human Rights and European standards aimed at strengthening the procedural position of suspects in criminal proceedings. Then it introduces new provisions regulating police inquires of criminal offenses and powers and duties of the police during the formal interrogation of the suspect. Next, the paper considers the possibility of using the results of the police interrogation of suspects as a sufficient basis for filling the indictment, and points to some solutions in comparative law. Finally, the authors critically examine first rulings of Croatian courts on the sufficiency of police interrogation of suspect for filling the indictment and issuing a penalty order and in this regard, proposes possible solutions thereto de lege ...

CANADIAN CRIMINAL LAW REVIEW [23 C.C.L.R.], 2018

Proof in continental criminal justice systems is controlled by the concept of l'intime conviction which means the free evaluation of evidence according to conscience. This article examines the effect of this concept by starting with its roots in the common law jury system as it operated in the late 18th century. Since then, common law systems have evolved to include the burden of proof on the prosecution beyond a reasonable doubt plus detailed rules of evidence which determine what is admissible according to standards of fairness and reliability. Yet l'intime conviction with no burden of proof on the prosecution continues today to dominate continental systems,. Taking note of rulings of the European Court of Human Rights under Article 6, there is now a European Directive requiring member states to adopt the burden of proof beyond a reasonable doubt by 2018.

The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impar-tial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with [a] crime has to face his accusers without a lawyer to assist him. You can't give me too many cases, too many clients, too many prosecutors, and then tell me I have to conduct a farce of a trial when you know I am not ready. A system that will force me to be-tray my client by failing to represent him adequately at trial, is a system I won't play along with. You can't make me fail my client.

Iowa L Rev, 1992

Jean Flamme Kenneth Gallant Caroline Morgan Taru Spronken Christine Van den Wyngaert Gert Vermeulen Mikhail Wladimiroff The growing internationalisation and Europeanisation of criminal procedures create new and additional challenges to traditional defence rights. Hence, the Ghent Bar Association, as part of its bicentennial celebration, the Bar Association of The Hague, hosting the International Tribunal for the Former Yugoslavia and the International Criminal Court (ICC), and Ghent University, conducting lead research on international and European criminal policy, have joined their forces by exploring and addressing these challenges during an international conference, entitled ‘Defence Rights: International and European Developments’, held in Ghent on 23 November 2012, of which the current volume is the conference book.

Loyola of Los Angeles law review, 1978

Do Exclusionary Rules Ensure a Fair Trial?, 2019

UCLA Pacific Basin Law Journal, 2010

South African journal of criminal justice, 2005

The South African Law Commission has proposed a number of substantive and procedural reforms to South Africa's laws governing sexual offences. This article argues that, while important in principle, these reforms are unlikely to shift police and prosecution practices or to meaningfully increase the numbers of offences prosecuted or perpetrators convicted. Support for this argument is drawn from the experiences of other Anglo-American jurisdictions in implementing similar reforms. The current law reform process does, however, present an important opportunity to consider possible reforms that have the potential to shift institutional norms informing current criminal justice practice, and to provide meaningful protection for victims of sexual offences forced to navigate that system. One such reform, which has met with some success in other jurisdictions, is the introduction of a legal representative to engage with the criminal justice process on behalf of the victim. This article l...

Cardozo law review

The United States Supreme Court has never ruled upon whether the constitutional right to counsel extends to the bail stage. Indeed in the vast majority of state and local criminal justice systems, indigent defendants appear alone and without legal representation when first appearing before a judicial officer following arrest. Without counsel, many poor and lower income people charged with non-violent misdemeanor charges remain in jail on unaffordable bail for days, weeks and months before returning to court and being assigned appointed counsel. While it is rare to find lawyers representing indigent defendants in state court, this article provides empirical evidence that counsel's advocacy is the crucial difference whether indigent defendants regain liberty when charged with non-violent crimes or spend lengthy periods in pretrial incarceration awaiting trial. The study's empirical data lends support for understanding that bail should be considered a critical stage of a crimin...

Mercer Law Review, 1999

Legal Studies in International, European and Comparative Criminal Law, 2019

SSRN Electronic Journal, 2004

Bergen Journal of Criminal Law & Criminal Justice, 2019

The expansion of simplified criminal procedures has been important over the last thirty years. While they certainly produce judgments at a reduced cost, recent findings hint at their higher risk of wrongful convictions. This article sheds light on the emergence of penal orders in Germany, first used by the Prussian police as mandate orders. Today, numerous countries apply penal orders to minor offences and impose penalties that have become harsher over time. The procedural shortcuts of penal orders, which made them successful in the first place, entail considerable risks of wrongful convictions. Courts are able to render justice more swiftly, but at what cost? In Germany, convictions are recorded in the Central Criminal Register and exclude convicted persons from work in many fields. This article contends that the procedural shortcuts of penal orders, which allow a preliminary prosecutorial investigation to be rendered as a judicial decision, require additional safeguards to prevent wrongful convictions.

Washington University Global Studies Law Review, 2018

The United Nations Convention on the Rights of Persons with Disabilities is by far the most important international agreement yet developed concerning the mentally disabled. China adopted this Convention in 2008. In 2012 China went further—making major changes in the way that China deals with mental health issues in both its criminal and its civil law. Coming first was a new Criminal Procedure Code that adds a whole new dimension to the way that China deals with the mentally ill who are charged with crimes. Equally important was the new civil mental disabilities law that China adopted later in the year. Many years in the making, this new law is China’s first comprehensive modern civil mental disabilities law. This article discusses both the major features of these new laws and some of the more important tasks that remain for the future. 1 Zhiyuan Guo is Professor of Law at China University of Political Science and Law and Research fellow at Collaborative Innovation Center of Judicia...

"Using evidence from around the world, this book seeks to demonstrate that early intervention by lawyers and paralegals can have a positive impact on pretrial justice in general, and pretrial detention in particular. The evidence shows that early intervention schemes can reduce the use of pretrial detention, improve the performance of criminal justice personnel, lead to more rational and effective decision-making, and increase accountability and respect for the rule of law."

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee, examines to what extent differences between national procedural criminal laws hinder the negotiations and the operation of cross-border cooperation instruments. It is based on a comparative analysis of a representative sample of nine Member States. It identifies several forms of “hindrances” to cross-border cooperation, ranging from mere delays to the suspension and the non-execution of assistance requests, alongside the striking underuse of some of the existing instruments. There is no simple or single answer to these challenges. Therefore, several non-legislative and legislative recommendations are put forward for the short- and long-term horizon.

S. Ruggeri, S. Quattrocolo (eds), Personal participation in criminal proceedings. A comparative study of participatory safeguards and in absentia trials in Europe, 2019

The economics of plea-bargaining is largely over-optimistic and contrasts with legal scholarship on the topic. We have shown that part of the reason is that it still relies heavily on the 'efficient prosecutor' model and only recently has started looking at the possible advantages of judicial scrutiny. As a consequence, the economics of plea-bargaining has largely failed to influence the

Seattle Journal For Social Justice, 2003

The reintroduction of the citizen participation system in criminal proceedings represented one of the fundamental changes to Japan’s legal structures and status quo, and this article examines such changes in lay participation and its effects in the area of criminal justice. Attorney Shunsuke Marushima who served as Senior Staff of the Secretariat in the JSRC declared that much of the reforms in criminal justice, especially with respect to prosecution and police procedures, were expected to go through dramatic and significant changes in their operational procedures because of popular participation in the administration of criminal justice in Japan. This suggests that a critical assessment of genuine effects of the council recommendation in the area of criminal justice can be best achieved in its relation to the operative and procedural impact of the twin systems of lay adjudication. Part II of this article first examines the two systems of lay adjudication in criminal proceedings, in...

Santa Clara Journal of International Law, 2012