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1 – 10 of 291
Article
Publication date: 5 June 2020

Fabio Ramazzini Bechara and Gabriel Monti Manzano

This paper aims to answer three questions: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil…

Abstract

Purpose

This paper aims to answer three questions: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure imply a criminal charge? These are the main constitutional issues that have hampered the processing of, and consensus regarding, the regulation of the asset civil forfeiture in Brazil, the subject of bill 5681/2013 of the Chamber of Deputies and bill 255/2015 of the Federal Senate. The hypothesis is that the property or the possession of illegal assets implies a violation of the Brazilian Federal Constitution, which presumes good faith and non-abused use to be legitimated. This study intends to enrich this discussion with the current American debate, its main lessons and concerns to individual procedural safeguards.

Design/methodology/approach

There are some questions that should be addressed: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure imply a criminal charge? Thus, this paper aims to discuss these questions, which are the main constitutional issues that have hampered the processing of, and consensus regarding, the regulation of the asset civil forfeiture in Brazil, the subject of bill 5681/2013 of the Chamber of Deputies and bill 255/2015 of the Federal Senate. The hypothesis is that the property or the possession of illegal assets implies a violation of the Brazilian Federal Constitution, which presumes good faith and non-abused use to be legitimated. This study intends to enrich this analysis with the current American debate about asset civil forfeiture provisions, its main lessons and concerns to individual procedural safeguards.

Findings

This paper focused on answering three questions: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure imply a criminal charge? The authors sustained the constitutionality of the asset civil forfeiture from a Brazilian perspective, based on three main arguments: First, asset civil forfeiture is based on the non-abused use of property rights constitutional provision. Second, asset civil forfeiture does not imply on or presume a criminal charge. Finally, asset civil forfeiture is not based on the same standard of proof as a criminal proceeding.

Originality/value

The value of this paper is based on its current debate, the regulation of the asset civil forfeiture in Brazil, which is subject of bill 5681/2013 of the Chamber of Deputies and bill 255/2015 of the Federal Senate. The hypothesis is that the property or the possession of illegal assets implies a violation of the Brazilian Federal Constitution, which presumes good faith and non-abused use to be legitimated.

Details

Journal of Financial Crime, vol. 27 no. 4
Type: Research Article
ISSN: 1359-0790

Keywords

Article
Publication date: 21 October 2021

Skirmantas Bikelis

This study aims at elaborating whether the criminalization of illicit enrichment has the potential to be an efficient and well-balanced measure against profiting from…

Abstract

Purpose

This study aims at elaborating whether the criminalization of illicit enrichment has the potential to be an efficient and well-balanced measure against profiting from serious crime.

Design/methodology/approach

This study offers a normative analysis of the concept of the criminalization of illicit enrichment, particularly from the perspective of the presumption of innocence. This paper supplements theoretical considerations using Lithuania, where illicit enrichment was criminalized a decade ago, as a case study. It analyses data of all 28 known criminal cases on illicit enrichment that resulted in judgements in Lithuania in 2015–2019.

Findings

The author concludes that on neither a fundamental nor practical level can the assumption that the criminalization of illicit enrichment efficiently carries out the task for which it was created be supported. Moreover, efforts to implement this legal strategy might unbalance the system of illicit asset recovery measures and obstruct the implementation of other promising legal instruments.

Originality/value

As very few states with developed democracy and strong rule of law traditions have implemented criminalization of illicit enrichment, there are very few if any empirical data or analysis of practices on this issue that could contribute to the theoretical discussion. This paper aims at contributing to fulfillment of this gap by presenting relevant data and insights from the perspective of Lithuanian criminal justice system.

Details

Journal of Money Laundering Control, vol. 25 no. 1
Type: Research Article
ISSN: 1368-5201

Keywords

Article
Publication date: 1 September 2003

Yue Ma

The Chinese criminal justice system has undergone significant changes in the past 20 years. An important aspect of the changes is the promulgation of a series of laws that…

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Abstract

The Chinese criminal justice system has undergone significant changes in the past 20 years. An important aspect of the changes is the promulgation of a series of laws that are essential to the criminal justice operation. In 1996, the National People’s Congress promulgated the amended Criminal Procedure Law (CPL). The amended law in many aspects has expanded the rights of defendants and suspects. But the preliminary research on the implementation of the amended CPL indicates that due to the lack of a culture of respect for the law on the part of the police and the deficiencies contained in the amended CPL, the protections afforded to suspects are far from being properly implemented by the police. Introduces to readers the legislative progress made in the amended CPL, examines various problems that arise in the implementation of the amended CPL, and offers suggestions as to what needs to be done further to assure better protections of suspects’ rights at the police investigatory stage.

Details

Policing: An International Journal of Police Strategies & Management, vol. 26 no. 3
Type: Research Article
ISSN: 1363-951X

Keywords

Article
Publication date: 25 June 2021

Samah Al Agha

This paper aims to explore the offense of illicit enrichment by public officials. It examines whether “reconciliation” could be a preventive measure from corruption or a…

Abstract

Purpose

This paper aims to explore the offense of illicit enrichment by public officials. It examines whether “reconciliation” could be a preventive measure from corruption or a vehicle for corruption.

Design/methodology/approach

To obtain the data on identifying the illicit enrichment offense and on examining “reconciliation” as a legal tool that combats corruption, this study uses a combination of primary and secondary resources such as the assigned laws, precedents by the Egyptian Cassation Court, academic books, journal articles and reliable websites. Using the same resources, the study explores the adverse aspects associated with “reconciliation.”

Findings

The paper concludes that the Egyptian Illicit Gains Authority Law No.62 of 1975 jeopardizes the “presumption of innocence” because it shifts the burden of proof from the prosecution to the defendant, but the Egyptian Cassation Court decides differently in many cases, whereby it puts emphasis on the prosecution to present enough evidence on illicit enrichment. If the accused is unable to prove the legitimate source of the increased wealth, then there will not be any conviction of illicit enrichment offense due to the presumption of innocence.

Details

Journal of Financial Crime, vol. 28 no. 4
Type: Research Article
ISSN: 1359-0790

Keywords

Article
Publication date: 2 May 2017

Skirmantas Bikelis

The purpose of this paper is to present and analyse the issues with which Lithuania is faced through its introduction of a modern legal mechanism for a more efficient…

Abstract

Purpose

The purpose of this paper is to present and analyse the issues with which Lithuania is faced through its introduction of a modern legal mechanism for a more efficient confiscation of the proceeds of crime – the criminalization of illicit enrichment.

Design/methodology/approach

The paper analyses issues raised in the Constitutional Court of Lithuania concerning the constitutionality of the country’s Criminal Code, as amended, by means of which illicit enrichment has been criminalized. Then, developments in and statistics for prosecutions and convictions for illicit enrichment are presented, and the legal issues that have been raised in the practice of the higher courts of Lithuania are analysed.

Findings

The concept of the criminalization of illicit enrichment proves to be less promising than that of civil forfeiture. First, it is contentious in the context of proportionality and ultima ratio. Second, it may infringe upon the prohibition of self-incrimination. Third, it appears that collecting sufficient evidence of illicit enrichment on the criminal standard of proof is an extremely difficult task for the prosecution.

Originality/value

Lithuania was the first European Union Member State to introduce general criminal liability for illicit enrichment. This analysis of the five years since the implementation of the enabling legislation should provide useful insights for the other countries considering introducing modern legal instruments to bring about a more effective control of illicit enrichment, as well as inspire additional, vital deliberation on the matter.

Details

Journal of Money Laundering Control, vol. 20 no. 2
Type: Research Article
ISSN: 1368-5201

Keywords

Article
Publication date: 15 November 2011

Bijan Bidabad

Many laws have been derived from the religions' legislations and lots of them have not the capability of uniqueness and publicity, due to variety of reasons, especially at…

Abstract

Purpose

Many laws have been derived from the religions' legislations and lots of them have not the capability of uniqueness and publicity, due to variety of reasons, especially at the level of countries. But the spirit of legislations is the same and unique in all religions and it is the Tariqah (Sufi path), Sufism, mysticism and ethical beliefs that have been stable and unchangeable for millennia, and wisdom has accepted and accepts them in all times and locations. Thus, if the international public law to be defined and designed upon the base of the unique religions' spirit, we will reach to a unique law with most publicity. The purpose of this paper is to survey the subjects of Islamic public international law, and extend Islamic jurisprudence decisions from a theosophical point of view over the field of international law.

Design/methodology/approach

The paper explores the foundation of public international law from the theosophy approach of Islamic Sufism and mysticism.

Findings

By raising 38 principles, the author proposes basic principles of important public international law subjects to prepare a backbone for recompilation of new law in this subject matter.

Research limitations/implications

Comparative researches in other religions' gnosticism will be helpful.

Social implications

Delicateness, truthfulness, and righteousness of Islamic Sufism, may turn the attentions of scholars and researchers to this viewpoint, and a new set of laws to be codified.

Originality/value

Public international law scholars have not touched the topic from a Sufi viewpoint. This paper opens new challenging arena.

Details

International Journal of Law and Management, vol. 53 no. 6
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 1 October 2009

G.K. Goldswain

This study analyses and discusses the application and constitutionality of the general onus of proof provision (section 82 of the Income Tax Act 58 of 1962 [the “Act”])…

Abstract

This study analyses and discusses the application and constitutionality of the general onus of proof provision (section 82 of the Income Tax Act 58 of 1962 [the “Act”]), the presumption in favour of the State when criminal sanctions are applied to an offending taxpayer (section 104(2) of the Act) and the mechanics for imposing administrative sanctions in terms of section 76(1)(b) of the Act. The conclusion reached is that the reverse onus presumption, as provided for in terms of section 104(2) of the Act, is unconstitutional. It is penal in nature and offends against the constitutional right of an accused to a fair trial (sections 35(3) of the Constitution of the Republic of South Africa Act, 108 of 1996 [the “Constitution”]). The section 36 limitation of rights clause of the Constitution does not save it. Section 76(1)(b) of the Act read in conjunction with the deeming provision of section 76(5) of the Act, is inextricably linked to the section 82 general reverse onus provision of the Act. Hence, when these three sections are applied together, they create a reverse onus that, prima facie, violates the right to just administrative action (section 33 of the Constitution). Regarding the general reverse onus burden as provided for in terms of section 82 of the Act, the conclusion reached is that it is reasonable and justifiable in an open and democratic society and can therefore be regarded as constitutional.

Details

Meditari Accountancy Research, vol. 17 no. 2
Type: Research Article
ISSN: 1022-2529

Keywords

Book part
Publication date: 25 May 2017

Marvin D. Free

To examine gender and racial differences in known wrongful conviction cases.

Abstract

Purpose

To examine gender and racial differences in known wrongful conviction cases.

Methodology/approach

Cases were identified for inclusion in this study through the use of established databases available electronically. Supplemental information was gathered through newspapers, magazines, and direct correspondence with individuals associated with the cases.

Findings

Of special significance was the role of witness error in wrongful convictions. Although more prominent in cases involving African American men, witness error was also problematic in murder and manslaughter cases involving African American women. Whereas white women were more likely to be included in wrongful convictions for murder and child abuse, African American women were more likely to be found in wrongful convictions for drugs and property and other offenses. Wrongfully convicted white women were 2.7 times more likely than their African American counterparts to be sentenced to life. Victim race appeared to play a role in a number of the wrongful convictions for both African American men and women.

Originality/value

This study expands our knowledge of known wrongful convictions among African Americans, a group that is disproportionately found in the criminal justice data.

Details

Race, Ethnicity and Law
Type: Book
ISBN: 978-1-78714-604-4

Keywords

Article
Publication date: 19 September 2016

Rick Sarre

The purpose of this paper is to draw to the attention of parliamentarians and policy-makers the specific vulnerabilities of applicants for bail that need to be addressed…

Abstract

Purpose

The purpose of this paper is to draw to the attention of parliamentarians and policy-makers the specific vulnerabilities of applicants for bail that need to be addressed if there are to be any answers to the current malaise.

Design/methodology/approach

Almost a quarter of the adult prison population in Australia is made up of persons imprisoned awaiting trial. By looking at current data and recent research findings, the paper reveals that there persists in Australia great unevenness in remand distributions by jurisdiction.

Findings

The paper explains why there are differences in remand rates across Australia and why they are rising and draws from more recent snapshots that complement these findings from comprehensive studies conducted a decade ago.

Practical implications

Furthermore it examines ideas floated in the last decade by academics and practitioners keen to lower remand rates and to bring some uniformity to the process while keeping intact the two key (yet potentially contradictory) aims of the remand in custody system: the safety of the community and the presumption of innocence.

Originality/value

The paper’s findings will appeal to parliamentarians and policy-makers tasked with bringing about law reform in the field, as well as police leaders, correctional advisors and students of the legal process.

Details

Journal of Criminological Research, Policy and Practice, vol. 2 no. 3
Type: Research Article
ISSN: 2056-3841

Keywords

Article
Publication date: 13 June 2008

Rowena Crosbie

The purpose of this paper is to explore ethics at work and present the inherent challenges facing both leaders and learning professionals in encouraging ethical behavior.

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Abstract

Purpose

The purpose of this paper is to explore ethics at work and present the inherent challenges facing both leaders and learning professionals in encouraging ethical behavior.

Design/methodology/approach

Survey results are presented that reveal large numbers of people who consider themselves ethical also confess to lying, cheating and stealing. Five practical tips are provided to help learning professionals address these contradictions.

Findings

People often rationalize their bad behavior, after the fact, to preserve their own internal beliefs that their behavior is indeed on high moral ground. This reality presents unique challenges for those charged with defining ethics in organizations.

Research limitations/implications

The 2006 survey, conducted by the Josephson Institute of Ethics (the CHARACTER COUNTS!SM organization) was extensive in that it involved over 35,000 respondents. While it paints a picture of the future workforce and informs readers of associated challenges, it does not include representatives of the current workforce.

Practical implications

Organizations seeking to promote ethics must translate their values statements into specific behavioral terms and provide training to help leaders and employees alike clearly understand and demonstrate the desired culture.

Originality/value

This paper provides an analysis of research around (un)ethical behavior of the members of the future workforce, along with useful actionable steps for learning professionals.

Details

Industrial and Commercial Training, vol. 40 no. 4
Type: Research Article
ISSN: 0019-7858

Keywords

1 – 10 of 291