The prosecution service function within the spanish criminal justice system

The Spanish judicial system is independent and headed by the Supreme Court. Spain has a civil law system. The criminal procedure is governed by the legality principle--by opposition to the opportunity or expediency principle--which implies that prosecution must take place in all cases in which sufficient evidence exists of guilt. Traditionally, the role of the PPS in Spain has been very limited during the investigative stage of the process. That stage is under the responsibility of the Examining Magistrate (EM). Since the end of the 1980s, a series of modifications has been introduced in order to extend the functions of the PPS. In 1988, the PPS received extended competences which allow them to receive reports of offenses. Upon knowing of an offense (reported or known to have been committed), the PPS can initiate the criminal proceeding. The PPS is also allowed to lead a sort of plea bargain under a series of restrictive conditions and only for some offenses. At the same time, the PPS received extended competences in the juvenile justice criminal proceeding in 2000. With all this said, the role of the PPS has not changed radically and, during the investigative stage of the process, their main role remains the presentation of the accusation, playing a more active role during the trial stage of the proceeding. In this article the national criminal justice system of Spain is described. Special attention is paid to the function of the PPS within this framework and its relationship to police and courts. The article refers to legal provisions and the factual handling of criminal cases.

The enterprise face to the environmental challenge: straddling the fence between social responsibility and penal responsibility

This contribution aims to analyse how to incur companies' criminal liability when they violate environmental protection globally. In Switzerland, companies' criminal liability has already been provided for to fight against money launder- ing (Article 102 CP). Could a similar liability be incurred, in Switzerland, for companies that infringe environmental protection? This is what our contribution is all about. Since the company is at the heart of our subject, the point is to see to what extent criminal liability could be transposed to cases of violation by companies of the environmental principles promoted by the CSR concept.

Capacity to Attend to the Needs of Persons with Dual Diagnoses in the Criminal Justice System: Views of Mental Health and Criminal Justice Professionals

Currently, individuals with intellectual disabilities are overrepresented within the Criminal Justice System (Griffiths, Taillon-Wasmond & Smith, 2002). A primary problem within the Criminal Justice System is the lack of distinction between mental illness and intellectual disabilities within the Criminal Code. Due to this lack of distinction and the overall lack of identification procedures in the Criminal Justice System, individuals with disabilities will often not receive proper accommodations to enable them to play an equitable role in the justice system. There is increasing evidence that persons with intellectual disabilities are more likely than others to have their rights violated, not use court supports and accommodations as much as they should, and be subject to miscarriages of justice (Marinos, 2010). In this study, interviews were conducted with mental health (n=8) and criminal justice professionals (n=8) about how individuals with dual diagnosis are received in the Criminal Justice System. It was found that criminal justice professionals lack significant knowledge about dual diagnosis, including effective identification and therefore appropriate supports and accommodations. Justice professionals in particular were relatively ill-prepared in dealing effectively with this population. One finding to highlight is that there is misunderstanding between mental health professionals and justice professionals about who ought to take responsibility and accountability for this population.

Crimes financeiros e política criminal : estudo de acórdãos do TRF da 3ª Região sobre os crimes de gestão fraudulenta e gestão temerária no período de 2001 a 2010

Este trabalho visa produzir conhecimento sobre como o Tribunal Regional Federal da 3ª Região tem decidido sobre dois dos principais crimes afetos à administração das instituições financeiras: gestão fraudulenta e gestão temerária. Trata-se de delitos criticados pela doutrina em razão das falhas de definição dos tipos, desde a edição da Lei 7.492, em 1986. Além disso, a sua previsão legislativa possui características que os aproximam do paradigma do direito penal do risco, ou seja: são crimes de perigo abstrato, que tutelam bem jurídico supra-individual, praticados por administradores detentores do dever de probidade na condução das instituições frente aos riscos inerentes à dinâmica do sistema financeiro. A adoção desse paradigma é controversa na doutrina penal por implicar a flexibilização de garantias do Estado Democrático de Direito sob a perspectiva do paradigma do direito penal tradicional. Diante disso, adota-se a metodologia de análise de conteúdo de decisões para se responder a dois problemas de pesquisa: (1) Quais os critérios adotados pelo Tribunal para a configuração dos crimes? (2) As decisões aproximam-se de algum paradigma de direito penal? As hipóteses objeto de teste são: (1) que o Tribunal considera principalmente a prática da conduta sem analisar a sua potencialidade lesiva sob uma perspectiva ex ante; e, (2) que esse discurso de imputação de responsabilidade aproxima as decisões do paradigma do direito penal do risco, considerados, em contexto, outros elementos presentes nas decisões. Na primeira parte, é feita uma introdução metodológica; na segunda, estabelece-se o referencial teórico; na terceira e na quarta, realizam-se as análises dos resultados quantitativos e qualitativos obtidos com a sua discussão; por fim, procede-se à conclusão, levantando-se novo problema a ser investigado.

Critical Essays on "Causation & Responsibility"

Due to its scope and depth, Moore’s Causation and Responsibility is probably the most important publication in the philosophy of law since the publication of Hart’s and Honoré’s Causation in the Law in 1959. This volume offers, for the first time, a detailed exchange between legal and philosophical scholars over Moore’s most recent work. In particular, it pioneers the dialogue between English-speaking and German philosophy of law on a broad range of pressing foundational questions concerning causation in the law. It thereby fulfills the need for a comprehensive, international and critical discussion of Moore’s influential arguments. The 15 contributors to the proposed volume span the whole interdisciplinary field from law and morals to metaphysics, and the authors include distinguished criminal and tort lawyers, as well as prominent theoretical and practical philosophers from four nations. In addition, young researchers take brand-new approaches in the field. The collection is essential reading for anyone interested in legal and moral theory.

What’s Our Responsibility? How Individuals and Organizations Can Proactively Address Human Trafficking

Human trafficking is regarded by Interpol as the second largest and fastest growing criminal industry in the world. This letter is submitted in response to the topic of Human Trafficking addressed in Volume 2, Issue 1. In response to the ever-increasing attention to this problem, various programs focus on the rescue of survivors in anti-trafficking efforts - sometimes overshadowing efforts to prevent human trafficking and rehabilitate those harmed. A comprehensive, responsible approach requires a system of rescue and rehabilitation with a deliberate eye toward prevention. The basic human rights of survivors are at risk of being violated by “so-called rescue missions, despite the good intentions of would-be rescuers.” At the prevention level, a firm human rights approach is needed. When interventions shift their emphasis to prevention and tackle the innate contributors to inequality, then the roots of trafficking and slavery can be firmly extirpated. By taking a thoughtful and vested approach to tackling all areas of trafficking— including prevention, rescue, and rehabilitation—resources can be used more effectively, and communities are likely to have a more extensive impact in the fight against this hideous crime against humanity.

Modos de intervención criminal punible en crímenes de atrocidad: un análisis jurídico-penal a partir de los aportes de la criminología

790 p.

TAKING ORGANIZATIONS SERIOUSLY: RESPONSIBLE AGENCY, ORGANIZATIONS AND THE CRIMINAL LAW

In the post-Enlightenment period, Anglo-American criminal law has been applied with increased force, and an ever expanding scope, to collective actors like corporations and other organizations. Recent scholarship has focused on developing “truly organizational” bases of liability that break with the conventional approach of imputing individual conduct to an organization and instead analyze culpable conduct and intent in a way that reflects the distinct and independent capacity of organizations to pursue their interests or goals collaboratively. In 2004, Canada enacted amendments inspired by these ideas in the hope they would lead to more effective criminal enforcement against organizations. Twelve years later, however, the promise of Bill C-45 is largely unfulfilled. In this thesis, I explore how much of this failure of law reform to deliver transformational change is attributable to an individualist bias that permeates how we think about what it means to be responsible and how this then shapes the responsibility ascription process. Using an analytical framework that combines criminal law theory with selected aspects of rational-structural theory and organization culture, I suggest that a promising way forward may lie in reframing the essential qualities required to be a subject of the criminal law in a way that captures the unique attributes that make organizations different from individuals. The resulting organizational concept of responsible agency allows for an integration of organizational reality into how we assess organizational culpability while keeping the ambit of criminal liability within the limits of what is practicable and fair. This better aligns with the spirit of Bill C-45: to impose criminal liability in a way that takes organizations – and their crimes – seriously.

Serious criminal offending and mental disorder - Case linkage study

Background A relationship exists between mental disorder and offending behaviours but the nature and extent of the association remains in doubt. Method Those convicted in the higher courts of Victoria between 1993 and 1995 had their pyschiatric history explored by case linkage to a register listing virtually all contacts with the public psychiatric services. Results Prior psychiatric contact was found in 25% or offenders, but the personality disorder and substance misuse accounted for much of this relationship. Schizophrenia and affective disorders were also over-represented, particularly those with coexisting substance misuse. Conclusions The increased offending in schizophrenia and affective illness is modest and may often be mediated by coexisting substance misuse. The risk of a serious crime being committed by someone with a major mental illness is small and does not justify subjecting them, as a group, to either increased institutional containment or greater coercion.

Community care and criminal offending in schizophrenia

Background The introduction of community care in psychiatry is widely thought to have resulted in more offending among the seriously mentally ill. This view affects public policy towards and public perceptions of such people. We investigated the association between the introduction of community care and the pattern of offending in patients with schizophrenia in Victoria, Australia. Methods We established patterns of offending from criminal records in two groups of patients with schizophrenia over their lifetime to date and in the 10 years after their first hospital admission. One group was first admitted in 1975 before major deinstitutionalisation in Victoria, the second group in 1985 when community care was becoming the norm. Each patient was matched to a control, by age, sex, and place of residence to allow for changing patterns of offending over time in the wider community. Findings Compared with controls, significantly more of those with schizophrenia were convicted at least once for ail categories of criminal offending except sexual offences (relative risk of offending in 1975=3.5 [95% CI 2.0-5.5), p=0.001, in 1985=3.0 [1.9-4.9], p=0.001). Among men, more offences were committed in the 1985 group than the 1975 group, but this was matched by a similar increase in convictions among the community controls. Those with schizophrenia who had also received treatment for substance abuse accounted for a disproportionate amount of offending. Analysis of admission data for the patients and the total population of admissions with schizophrenia showed that although there had been an increase of 74 days per annum spent in the community for each of the study population as a whole, first admissions spent only 1 more day in the community in 1985 compared with 1975. Interpretation Increased rates in criminal conviction for those with schizophrenia over the last 20 years are consistent with change in the pattern of offending in the general community. Deinstitutionalisation does not adequately explain such change. Mental-health services should aim to reduce the raised rates of criminal offending associated with schizophrenia, but turning the clock back on community care is unlikely to contribute towards any positive outcome.