Colloquium Report: Sentencing/ Strafzumessung – Comparative Insights

Books Received

Correction to: Gravity in the Statute of the International Criminal Court and Cyber Conduct That Constitutes, Instigates or Facilitates International Crimes In the original publication, the affiliation of corresponding author Prof. Marco Roscini was published incorrectly.

Out of Africa: Exploring the Ethiopian Sentencing Guidelines Abstract To date, the literature on sentencing reform has largely focused on western jurisdictions, particularly the United States and Europe. Developments in other parts of the world, particularly on the African continent, have been overlooked. This article explores sentencing in a lesser-known African jurisdiction: Ethiopia. The focus of the essay is upon the issue of structured sentencing. Sentencing in Ethiopia, like most jurisdictions, has historically been a very discretionary stage of the criminal process. That has now changed with the introduction of a comprehensive guideline scheme. Although sentencing guidelines in the US and England and Wales have been the subject of much critical scrutiny, nonwestern guidelines have attracted very little attention from scholars. Although there are parallels between the structure of the Ethiopian system and guidelines in other countries, there are also important differences. Since they are more developed than guidelines in adjacent countries, the Ethiopian guidelines constitute a model for other regional nations, including those with a post-colonial legacy. After providing an overview of sentencing in Ethiopia, the article describes the origin, nature, and consequences of the Ethiopian guidelines. The guidelines provide sentence ranges for different levels of seriousness for many crimes, and also prescribe a methodology to guide courts sentencing for offences for which no such guidance exists. They also provide some structure for the judicial use of mitigating and aggravating factors at sentencing. We conclude by identifying some deficiencies of the current guidelines and propose some specific remedies.

Extradition and Mental Health in UK Law Abstract The response of UK extradition law and practice to requested persons presenting with mental health disorders is multi-faceted and unnecessarily complex. There are a number of reasons for this. They centre upon the law failing to adequately recognise that mental health cases can give rise to concerns not present in physical health cases. The deficiencies of the law are found in the three applicable bars to extradition; oppression, human rights and forum. They also can be seen in the applicable rules of evidence and the practice of diplomatic assurances. The time has come for UK law to specifically and systematically respond to mental health disorders in the context of extradition.

Gravity in the Statute of the International Criminal Court and Cyber Conduct That Constitutes, Instigates or Facilitates International Crimes Abstract This article explores the application of the gravity threshold to cyber conduct that might fall under the jurisdiction of the International Criminal Court. It first looks at how international crimes within the jurisdiction of the Court can be committed, instigated or facilitated in and through cyberspace and then discusses the problems that might arise when assessing gravity in this context. In particular, the article applies the elements of the gravity assessment identified in the Court’s case-law and by the Prosecutor, i.e. the identification of those “most responsible” for the alleged crimes and certain quantitative and qualitative factors, in order to determine the gravity of a case or situation involving cyber conduct.

Immunity of Heads of State and Senior State Officials from Subpoenas and Witness Summonses Abstract Although the law on immunities under international law is a very rich field of study, not much analysis has been done on the immunities of Heads of State from acts other than prosecution, namely from witness summonses and subpoenas in international criminal law. This article poses the question whether international law allows for Heads of State and Senior State officials to be subpoenaed or summonsed to testify as witnesses, and seeks to answer it by systemizing the relevant case law of international criminal courts and tribunals. After defining the types and the application of subpoenas and witness summonses in international criminal proceedings, the article examines whether the immunity of Heads of State is upheld when such requests are filed before international and national courts. The case law of the ad hoc international criminal tribunals shows that when the tribunal had to adjudicate a request to compel a witness to appear, it adapted the legal standard by considering the type and the object of the subpoena, the status of the prospective witness, and the court’s role and mandate. The International Criminal Court iterated its power to compel the appearance of witnesses. As the immunities that are attached to the office of Heads of State and Senior State officials are largely sourced in rules of customary international law, the article maps the content of the customary rule governing specifically the immunity from subpoenas and witness summonses in international criminal law.

A critical evaluation of the prohibition on the South African prosecuting authority to appeal against decisions on questions of fact Abstract Following the common law tradition in respect of criminal procedure, South African legislation does not allow the National Prosecuting Authority of South Africa (hereafter referred to as “the State”) to appeal on a question of fact decided in favour of an accused person. This is the case even in the event of a material factual error. The State increasingly makes use of its limited statutorily conferred right to lodge appeals in criminal cases. As a result, the distinction between questions of fact and questions of law has received considerable attention by the superior courts of South Africa in the last decade. One of the many cases wherein considerable time was spent on dealing with the distinction between a question of fact and a question of law, was the widely reported appeal by the State against the conviction of the athlete Oscar Pistorius on a charge of culpable homicide. This contribution summarises the manner in which the South African judiciary has dealt with the juridical distinction between a question of fact and a question of law. It further examines the arguments advanced for limiting the powers of the State to appeal, as well as arguments in favour of extending the State broader appeal rights. Some of the author’s conclusions are that the right to a fair trial also extends to the State representing the community and as such the right to full appeals by the State ought to be allowed. A criminal appeal is not a trial de novo but merely a continuation of the lis between the State and the accused person. As such the State should also have the right to a fair trial until the last court has spoken the last word on the matter. Furthermore, it is pointed out that the historical reasons for denying the State a full right of appeal is not necessarily valid any longer. The South African legislature should make work of ensuring that the recommendations made nearly twenty years ago by the South African Law Commission (now, the South African Law Reform Commission) that the State be granted broader appeal rights.

Books Received

Sadat, Leila Nadya (ed.), Seeking Accountability for the Unlawful Use of Force . Cambridge: Cambridge University Press, 2018, 612 pp. ISBN 978-107-18753-5