Most of the constitutionalized language rights in Canada have received a large and liberal interpretation. In contrast, the constitutional right to use either official language in the courts has been ...categorized as a "political compromise right' and interpreted narrowly to the point of being ineffective.
Recently, a majority of the Supreme Court rejected the political compromise doctrine in 'R. v. Beaulac'. It is hoped that this decision will result in a broader interpretation of the right to use English or French before the courts. A restrictive interpretation of the right, however, is also dictated by its having been characterized as a negative liberty, and this aspect of the past case law was not overruled by Beaukc.
In part, the negative liberty interpretation of the right to use either official language in the courts stems from the fear that to adopt a positive right approach would result in an irresolvable conflict between interacting holders of the same right. A positive interpretation of the right is possible, however, if corresponding duties are imposed not on individuals, but on the state.
In order to support a broad and positive interpretation of language use rights in the courts, as well as in the provision of government services, what is needed is an understanding of their purpose that goes beyond effective communication, that is, not one based on a natural justice rationale. To counter the tendency to construe the purpose of language rights in wholly instrumental terms, we need an account of such rights that recognizes the intrinsic value to a minority official language community of the use of its language. While 'Beaulac' moves us significantiy in the right direction, the Supreme Court failed to articulate fully why the use of a particular language is important to a community.
Les écrits théoriques existant sur la technique codificatrice tendent parfois à considérer la codification comme un concept absolument dépendant de l'existence de son « habitat naturel » : l'État ...libéral et la Modernité. À quel point le Code pénal espagnol de 1995 conserve-t-il les traits caractéristiques des codes traditionnels ? Une technique ancienne peut- elle s'inscrire dans un système législatif actuel sans constituer un anachronisme ? On esquissera quelques réponses possibles en s' appuyant sur l'analyse des acteurs qui sont intervenus dans la création du Code pénal espagnol de 1995.
Codification and Legal Postmodernism : The New Spanish Criminal Code of 1995.
Theoretical reports on codification tend to consider codes as absolutely dependent on the existence of a liberal State and necessarily linked to Modernity. However, a new Criminal Code was stated in Spain in 1995. To what extent does the new Spanish Criminal Code preserve the traits of traditional codes ? Could an ancient legislative technique be used nowadays without seeming an anachronism ? We will try to draw up some possible answers analysing the different 'actors' that took part in the making of this new Criminal Code.
The paper analyses the dependence of the system of the Special part of the Criminal Code of the Russian Federation on the structure of public relations which is composed by such elements as subjects, ...objects of relations and the interconnection between subjects. The author suggests singling out two groups of conditions for the normal functioning of social relations: the conditions of interpersonal communication and the environment, thus substantiating his vision of the system of the Special part of the Criminal Code of the Russian Federation. Adapted from the source document.
Rapid social and economic development of the PRC in the last years brought about changes in contemporary Chinese society which made it necessary to introduce some changes in Chinese criminal ...legislation. Amendments to the effective Criminal Code of the PRC are primarily aimed at improving the regulation of capital punishment, reducing the number of crimes for which capital punishment can be applied and changing the correlation between capital punishment and life sentence within the punishment system. The amendments also affect the following: crimes committed by criminal groups; widening the sphere of special repeat offense for terrorism crimes; improving legal norms on crimes committed by minors and elderly people; supervision, suspended sentencing and parole practices. Besides, these amendments strengthened the criminal law protection of human life which was done through criminalization of new actions and aggravation of punishment for specific crimes. Adapted from the source document.
In the current study, we want to approach certain elements referring to the offence regarding the sex life that have been a controversial subject reported to the regulation that had been valid in ...1969. Also, we refer to the group of offences regarding the sex life the finds its regulation in the new Criminal Code in a modern manner that is close to the marks of certain European states having a long democratic tradition and to which the Romanian criminal law has always been manifesting deep affinities, underlining certain problems of correlating the texts that are important in this matter.
The central hypothesis of this chapter is that the post 9/11 era has spawned a new hybrid form of terrorism regulation. The Oxford English Dictionary defines hybrid as follows: “Derived from ...heterogeneous or incongruous sources; having a mixed character; composed of two diverse elements; mongrel” (Oxford English Dictionary, 2nd edn, online version, http://www.oed.com/view/Entry/89809, Accessed 4 Aug 2011). Hybrid for the purpose of our legal analysis is defined as a measure or law containing elements/characteristics of two previously distinct legal entities. The contention is not entirely novel. Control orders in the United Kingdom as hybrids between criminal and civil law, and melding powers of an executive/judicial nature. Equally, in the Australian context, scholars have identified the hybridisation of techniques of power, as well as the blurring of police and military powers, and crime and war. Hybrids are not however exclusive to terrorism law. Legal hybrids are also evident in fields such as drug law and public order, where strict liability, reverse onus clauses and civil standards of proof have been long applied. That said, the scale and extent to which regulatory efforts to counter terrorism in Australia span various modes of governance (criminal versus civil measures; judicial versus administrative power) makes legal hybrids a mode of regulation worthy of examination.
After the break-up of the Former Yugoslavia in 1991, Slovenia adopted a new Criminal Code (CC) and Criminal Procedure Act in 1994, which came into force on 1 January 1995. Since then, CC has been ...amended several times. The Criminal Procedure Act was amended several times, mainly in the form of legislative changes and amendments as reactions to several decisions of the Constitutional Court of Slovenia. Recently, a new CC was adopted in a rather conspirative manner. It will come into force on 1 November 2008. A group of experts set up by the Slovenian Minister of Justice is also drafting a new Criminal Procedure Act. No complete draft is known to the (legal expert) public to this moment.
The Slovenian CC includes numerous incriminations on terrorism, the most general being Terrorism and International Terrorism. The act amending the Criminal Code from 2004 introduced a new incrimination Financing of Terrorist Acts. Slovenian CC includes some more special incriminations, which are adjusted to international conventions for the protection of air and sea traffic and persons under international protection. Beside these criminal acts, other articles are relevant, especially criminal acts related to nuclear and other types of weapons for mass destruction and criminal acts against life and physical integrity.
Although the legislation includes much useful incrimination, in its report on the evaluation of the Member States’ compliance with the Council Framework Decision of 13 June 2002 on Combating Terrorism, the European Commission emphasized some inconsistencies in Slovenian legislation. A report on the measures taken by all the Member States to comply with the mentioned framework decision, including Slovenia, was written by the European Commission in November 2007. Regarding the offences linked to terrorist activities, Slovenia currently completely fails to comply with the framework decision. Aggravated theft, extortion, and drawing up false administrative documents, all with a special view to committing one of the terrorist offences, are incriminated in the current CC, but the special aim of the perpetrator to commit these criminal acts to enable terrorist offences does not change the criminal act into an aggravated offence.
The newly adopted Criminal Code abandoned the division of internal and international terrorism and introduced a new classification. It regulates the incrimination of Terrorism, which includes terrorist acts against the Slovenian state and against other states and international organizations, Financing of Terrorist Acts, Public Provocation to Commit Terrorist Acts, and Recruitment and Training for Terrorist Acts. The criminal act of financing of terrorist acts remains punishable in the new CC and it also includes several special incriminations.
The Slovenian legal system does not recognize a special terrorist group, but it does include a more general criminal association. Generally speaking, this group complies with the definition of the terrorist group. Slovenian legislation also complies with the EU requirement that inciting, aiding, and abetting are punishable. It remains questionable, however, whether inciting is punishable in the current Slovenian CC. The newly adopted CC brings new solutions in the field of participation. It incriminates some new criminal acts, which are by their nature acts of aid, and also deals with new aspects of criminal association and brings new general rules regarding participation in criminal acts, which remain relevant for terrorist offences, because it still does not incriminate a special terrorist group.
Regarding criminal responsibility, the requirement of dolus directus is prescribed in the current and also in the new CC. The current CC demands direct intent with the special aim of jeopardizing the constitutional order or security of the Republic of Slovenia (with terrorism) or the special aim of inflicting damage on a foreign state or an international organization, compelling a legal person, international organization, or state to perform or to omit a certain act (with international terrorism). That excludes the use of dolus eventualis and demands even dolus coloratus; direct intention to commit these criminal acts, coloured with special aim. This is also true for the newly adopted CC.
The Slovenian CC introduced the liability of legal persons in 1994. It is regulated by a special act, the Act on Responsibility of Legal Persons. This act introduced a catalogue of criminal acts for which a legal person can be held responsible. Among these are also Criminal Association, Criminal Conspiracy, and Financing of Terrorist Acts, but not Terrorism, International Terrorism, and other more special criminal acts. The new CC keeps the legal basis for liability of legal persons; however, most important will be the amendment of the Act on Responsibility of Legal Persons, which will contain the amended list of criminal acts for which legal persons can be liable.
Regarding criminal procedural law, Slovenian theory observes that there are two general consequences in the field of criminal procedure due to an “efficient fight against terrorism” in all criminal legislations: an increase of power of authority by repressive authorities and a reduction of judicial control. In the course of criminal proceedings against defendants charged with a terrorist offence, the police, state attorney, and the judicial branch have numerous additional measures at their disposal, due to the dangerousness of the alleged criminal act. These measures are also those that infringe human rights (for example, the right to privacy and to personal liberty defined in the Slovenian Constitution) the most, for example, secret surveillance, metering, and monitoring and production order. Slovenian legislation in this field has already been amended according to the Constitutional Court case law. Consequently, it is in general compliance with criminal proceedings standards. In addition, in criminal procedures, authorities have not gotten any new special measures specific to the case of criminal act of terrorism, but general measures for the investigation and prosecution of serious criminal acts should be applied. Regarding the substantive rights (such as the rights to strike, to freedom of assembly, of association or of expression, to form and join trade unions, and to demonstrate), the core rule of substantive criminal law; rule of lex certa should be mentioned. It is defined in the Slovenian Constitution and in case law of the Slovenian Constitutional Court.
