The Presence of Discricionarity with Legal Interpretation: The Lack of Space of Public Claim in Criminal Matters in Risk Societies

This article is a result of total disrepute with the substantial alteration of the dogmatic concepts inherent in criminal matters, which distort its primary mission, which is the minimum intervention. Fundamentals inherent in public outcry that alone justify pre-trial detention go directly against the precautionary principle in the risk society. The legislative abyss in which the term “public order”, inserted in art. 312 of the Brazilian Criminal Process Code, has long been synonymous with a prison arrest warrant, although it may prove to be incompatible with criminal procedural protection.
The great gap is in the absence of a control under the judicial decisions, which are based on subjectivism, without observing the real objective of criminal law, which is not the general security, but the imputation of a fact punishable to a person by limits imposed by established constitutional principles. Key words: risk society – judicial interpretation – justification – criminal law.


The International Criminal Court Prosecutorial Approach to Preliminary Examinations: Change or Continuity?

Much criticism has been voiced in regard to the ICC Prosecutor discretion in the selection of situations and cases during the Preliminary Examinations (PE). In fact, while ICL substantive norms seems to have stabilised following the adoption of the Rome Statute, procedural law however, is an ever-evolving area of ICL. This paper proposes to make an assessment of the prosecutorial discretion during PE and assess whether and to what extent such an approach have changed overtime. It is argued that prosecutorial approach sought to overcome criticism by changing its strategy over the years. It is also further argued that such change was only possible because of the framing of the Rome Statute which is embedded with vague terms allowing for flexibility and discretion to the Prosecutor.

How Did We Get Here? An Overview of the Rise and Demise of the International Criminal Court’s Relationship With the African Union and its Member States

The contribution traces the tenuous relationship between the International Criminal Court (ICC) and the member States of the African Union. Subsequent to the adoption of the ICC Statute in 1998, 34 African States initially joined the ICC. However, what started out as a positive relationship generating several self-referrals, deteriorated visibly as of 2009. The contribution outlines and assesses some of the key developments that arguably contributed to this downward spiral. In so doing, it suggests that an inconsistent referral policy by the United Nations Security Council, ill-conceived prosecutorial policies on the part of ICC Prosecutor, as well as inadequate oversight by the Assembly of State Parties, played into the hands of some African leaders who personally had much to gain from weakening the credibility of the institution on the continent. It also suggests stronger regional ownership of international criminal prosecution as a way to improve the relationship.

Best Practice in Executive Clemency Regulation

Based on recurring themes throughout their recent edited volume on comparative and empirical approaches to executive clemency, in this paper the authors discuss several best-practice recommendations aimed at states and sub-national jurisdictions considering a review of their constitutional and legislative provisions on clemency. Previous examples of best practice recommendations include a requirement for transparency, a right to judicially review clemency decisions, constitutional provisions that allow for the input of relevant experts outside the political class, a functional bifurcation of executive clemency and legislative amnesty powers, clemency for innocence being recommended by a special post-conviction body, and enhanced procedural standards for capital cases. Nevertheless, within this paper the authors aim to take a fresh look at this topic, guided less by the existing literature and more by the findings of the edited collection’s preceding chapters.

Translating empirical evidence into constitutional idioms

In previous papers I have examined how the use of the principle of proportionality has made it possible for constitutional courts to use a common, familiar legal terminology to address and rely on the public health evidence that demonstrates the lack of any dissuasive effect of criminal sanctions for abortion. Approaching constitutional courts using a combination of the empirical evidence and its translation into constitutional language has enormous potential. For this paper, I would like to further develop this line of research by exploring whether criminal/restrictive laws on abortion, as applied on the ground, can meet the requirements of the rule of law.