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Prostitution under the Sexual Offences Act in South Africa: A Constitutional Test
Nyathi-Mokoena, U. C. A.,Choma, H. J.
International Journal of Advanced Legal Studies and Governance , 2012,
Abstract: The paper aims at tackling the international instruments that address the issue of prostitution as it relates to the right to work as enshrined in the South African Constitution. The South African Constitution is the ultimate standard against which proposals for reforming the law on prostitution must be measured. Prostitutes should be afforded those particular human rights that are extended to women under international treaties and the South African Constitution. On this premise, it is obvious to state that sex workers are firstly human beings before they can be labeled prostitutes, which means they deserve to be treated equally as human beings. They are only rendered vulnerable to abuse by the type of work that they engage in. However, the supreme law of the country (the Constitution) expressly states that every citizen has the right to choose their trade, occupation or profession freely; but the practice of a trade, occupation or profession may be regulated by law. This should be taken to include the sex workers. They should be free to engage in their practice for as long as they enter the industry voluntarily. The security agents may only be involved where one is compelled to enter into prostitution, which will then mean that they would be dealing with the one who compels the sex worker to enter into the industry and not the sex worker herself. In this case the sex worker would be a victim in need of protection.
The constitutional validity of search and seizure powers in South African criminal procedure
V Basdeo
Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad , 2009,
Abstract: The Criminal Procedure Act1 had long provided the only legal basis for obtaining warrants to search and seize or to perform such actions without warrant in certain circumstances. The Criminal Procedure Act embodies the general provisions with regard to searching. Specific provisions are contained in many other Acts. Section 19 of the Criminal Procedure Act states that Chapter 2 of the Act shall not derogate from any power conferred by any other Act to enter any premises or to search any person, container or premises or to seize any matter, to declare any matter forfeited or to dispose of any matter. Therefore any other law that confers powers of search and seizure co-exists with the Criminal Procedure Act and is not repealed by the Criminal Procedure Act.
The Constitutional Validity of Search and Seizure Powers in South African Criminal Procedure  [PDF]
V Basdeo
Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad , 2009,
Abstract: An important part of crime investigation is the obtaining of evidence through the search and seizure of persons and things. The South African Constitution recognises that state authorities should not be permitted untrammelled access to search and seize. It is a necessary incident to democracy that citizens must be protected from unjustified intrusions of privacy and property by agents of the state. Otherwise, arbitrary state actions could severely affect the personal freedom and associated fundamental rights that are intended to be a predominant feature of democratic society. In this article I consider whether or not certain provisions contained in the Criminal Procedure Act 51 of 1977 and the South African Police Service Act 68 of 1995 (hereafter the Criminal Procedure Act and the South African Police Service Act respectively) are in conflict with the Constitution. The provisions deal with search and seizure. I will also turn to the laws of foreign jurisdictions, specifically of the United States and Canada, for guidance and comparison. At the outset it should be pointed out that this article does not argue for the abolition of the search and seizure provisions contained in the Criminal Procedure Act and the South African Police Service Act. It is acknowledged albeit reluctantly, that there may still be a need for some of them. It is the investigative and enforcement measures provided for by these provisions, At the outset it should be pointed out that this article does not argue for the abolition of the search and seizure provisions contained in the Criminal Procedure Act and the South African Police Service Act. It is acknowledged albeit reluctantly, that there may still be a need for some of them. It is the investigative and enforcement measures provided for by these provisions, rather than the objectives, which are in issue here. It is submitted that there are search and seizure provisions contained in the Criminal Procedure Act and the South African Police Service Act, which are inconsistent with the spirit, purport and object of the Constitution.
Right to State Appointed Counsel in Criminal Case: The Constitutional Requirements and the Issue of Its Implementation in Sidama Zone and Hawassa City Courts  [PDF]
Filata Gigiso Boroje
Beijing Law Review (BLR) , 2018, DOI: 10.4236/blr.2018.91003
Abstract: To preserve cherished principles of democracy in adversary criminal procedures, many democratic states provide for right to hired or state appointed counsel to strike balance between law ignorant defendant and law expert prosecutor. The FDRE constitution also provides for right of indigents to state appointed counsel without further details about its implementation, which resulted in varied practices in determining indigence, nature of eligible cases and time of representation. This study, therefore, was conducted with the view of investigating status of its implementation, the constitutional requirements and how such requirements, including the time of representation are treated by courts. To this effect, the research has adopted mixed approach with interview and analysis of dead files as major data collection tools from selected courts. Combined results show courts apply flexible criteria to determine indigence, but with limited cases of and no pretrial state appointed representation, thereby high likelihood for miscarriage of justice.
Antonio Baptista Gon?alves
Revista da SJRJ , 2013,
Abstract: A doutrina muito discute se o crime de transito decorrente de dire o sob efeito do álcool é doloso ou culposo. Enquanto isso, os acidentes se avolumam. A sociedade clama por um endurecimento penal, e o legislador de transito criou uma série de mecanismos para combater a fatídica combina o álcool e dire o. O presente artigo ocupa-se da legisla o de transito e analisa especificamente os efeitos da dire o de motorista embriagado. Além disso, enfrenta quest es polêmicas como o teste do baf metro e seus limites e prote es constitucionais, a responsabiliza o criminal do autor de acidente e a interven o do Direito Penal nas regras de transito. PALAVRAS-CHAVE: Embriaguez ao volante. Código de Transito Brasileiro. Baf metro. ABSTRACT: The doctrine discusses a lot of traffic if the crime resulting from driving under the influence of alcohol is willful or grossly negligent. Meanwhile accidents pile up. The society calls for a tougher criminal and traffic legislature created a series of mechanisms to combat the fatal combination of alcohol and driving. This article deals with the traffic law and specifically examines the effects of the direction of a drunk driver. And faced with controversial issues such as the breathalyzer test and its limits and constitutional protections, the criminal responsibility of the author of an accident and the intervention of criminal law on traffic rules. KEYWORDS: Drunk driving. Brazilian Traffic Code. Breathalyzer.
Human trafficking and legalized prostitution in the Netherlands
Siegel Dina
Temida , 2009, DOI: 10.2298/tem0901005s
Abstract: On 1 October 2000, the Netherlands became the first European country to legalize prostitution as a profession, with its rights and duties. On the other hand, this new Dutch law excluded those sex workers, who come from outside the EU. The majority of women working in the sex industry, who are considered illegal migrants in the Netherlands, had two choices: either leaving the country or disappearing into the illegal criminal circuit. For law enforcement and assistant services, it became extremely difficult to control the sector. In this paper, the consequences of the 'Brothel Law' are presented. What happens with illegal non-European sex workers in the Netherlands, how the problem of human trafficking is constructed in Dutch media and combated in the country, what could be learned from the 'Dutch case'? The paper aims to answer these questions and contribute to the general study on human trafficking and voluntary prostitution in Europe.
Sebastián López Escarcena
Revista de Derecho (Coquimbo) , 2012,
Abstract: Una sentencia del Tribunal Constitucional de 2002 declaró que la aprobación y posterior ratificación del Estatuto de Roma requería una reforma constitucional previa. Entre los motivos se alados, la sentencia destacó el supuesto carácter correctivo y sustitutivo de la jurisdicción de la Corte Penal Internacional, respecto de la competencia de los tribunales nacionales. La introducción de una nueva disposición transitoria en nuestra carta fundamental facultó el 2009 al Estado chileno para reconocer la jurisdicción de la Corte. Esta nueva disposición calificó su competencia de subsidiaria, según lo se alado en el tratado que instituye dicha Corte. Gracias a esta disposición, una sentencia del Tribunal Constitucional del mismo a o declaró que el Estatuto de Roma no contiene normas que se opongan a la Constitución Política de la República de Chile. Pero en qué momento pasó la jurisdicción de la Corte Penal Internacional, de correctiva y sustitutiva a complementaria y subsidiaria? El presente artículo busca responder esta pregunta. A decision of the Constitutional Tribunal declared in 2002 that the approval and subsequent ratification of the Rome Statute would require a previous constitutional reform. Among the reasons mentioned, the decision emphasized the supposed corrective and substitutive character of the jurisdiction of the International Criminal Court, with respect to the competence of national tribunals. The introduction of a new transitory provision to our political constitution in 2009 authorised the Chilean state to recognise the jurisdiction of the court. This new provision described its competence as subsidiary, according to the treaty that established this court. Thanks to this provision, a decision of the Constitutional Tribunal of the same year declared that the Rome Statute does not include norms that contradict the Political Constitution of the Republic of Chile. But, at which moment did the jurisdiction of the International Criminal Court was transformed from corrective and substitutive, to complementary and subsidiary? The present article aims to answer this question.
Ethics and Vulnerability in Street Prostitution; An Argument in Favour of Managed Zones
Anna Carline
Crimes and Misdemeanours : Deviance and the Law in Historical Perspective , 2009,
Abstract: This article draws upon the work of Judith Butler, in particular her approach to ethics and the concepts of vulnerability and liveable lives, in order to provide a critical analysis of reform proposals contained in the Criminal Justice and Immigration Bill (now Act 2008) in relation to street prostitution. The article will argue that the proposals presented in the Bill problematically use the vulnerability of street sex workers in order to promote a moralistic agenda. In contrast it will be argued that managed zones, as proposed by Liverpool City Council, provide a potentially more ethical approach to the issue of street prostitution.
Women in Prostitution and Social Responsibility
Brückner, Margrit
Social Work and Society , 2009,
Abstract: The aim of the paper is to show how prostitution is embedded in historically changing gender relationships regulated by the state and part of each societies understanding of sexuality. An important role to improve the situation of women in prostitution is played by engaged social work, often linked to the womens movement on a local, national and an international level in spite of differing positions on the institution of prostitution. The authors argumentation is based on qualitative and quantitative empirical findings concerning shared experiences as well as differences between women in prostitution and findings on professional possibilities and limits of supporting the women. Important dimensions of heterogeneity amongst the women are legality versus illegality, decision making possibilities respectively dependencies und choice versus force, which also are the base of different political and professional positions taken by experts.
Daniela Aguilera Bertucci
Revista de Derecho (Coquimbo) , 2011,
Abstract: El presente artículo trata el problema de la participación de la víctima en el proceso penal chileno. Su planteamiento central dice relación con la importancia de adecuar la intervención del ofendido a la naturaleza oficial del procedimiento penal, postulándose que este debe cumplir un rol de control respecto de la persecución penal estatal. Se da cuenta de ciertas dificultades que presentan las normas constitucionales y legales que regulan el proceso penal para efectos de esta diferenciación de roles. El análisis se realiza a partir de los problemas planteados ante el Tribunal Constitucional, considera su jurisprudencia en la materia, así como planteamientos de doctrina procesal penal chilena y extranjera. This article addresses the issue of victim participation in criminal proceedings in Chile. Its central approach is related to the importance of adapting the intervention of the offended to the official nature of the criminal proceedings, claiming that it must play a role of control with respect to state criminal prosecution. It realizes the diiculties that present constitutional and legal rules governing criminal proceedings for the purposes of this differentiation of roles. The analysis is based on the issues raised before the Constitutional Court, it considers the case law and doctrine approaches of the chilean and foreign criminal procedures.
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