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[PASSED] Convict Appellate Rights

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Quelesh
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Founded: Jun 09, 2009
Ex-Nation

Postby Quelesh » Sun Feb 19, 2012 6:57 am

United Celts wrote:Mac Lochlainn clears his throat before continuing. "With all due respect to the Queleshi ambassador, can we not exclude the double jeopardy provisions from your proposal and bring them up later for the sake of passing a habeas corpus protection of some kind, as the Ossitanian ambassador previously suggested?


Now this I am willing to consider, though at this time I don't make any promises. I think that habeas corpus and double jeopardy are inherently related, but I don't necessarily have an objection to handling them in two separate proposals.

That said, I'm not convinced that this proposal and my proposal are actually contradictory, the relevant clause of my proposal being about retrials and this proposal being all about appeals.

Also, I definitely oppose mandating that the prosecution have an equal right to appeal as the defense in every WA member state. In Quelesh the prosecution cannot appeal an acquittal, and we have no intention of changing that. I also oppose limiting by WA law the circumstances in which member states may allow the defense to appeal a conviction. I would support mandating that member states allow the appeal of a conviction at minimum on the listed grounds.

This proposal as worded is not something that I would be able to support, but I'll consider handling double jeopardy and the remainder of the habeas corpus provisions in separate resolutions. Even if I do split the resolutions into two, however, I do not intend to abandon the effort to ban double jeopardy; I've been transparent about that intention from the beginning.
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Sanctaria
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Postby Sanctaria » Sun Feb 19, 2012 7:02 am

Quelesh wrote:This proposal as worded is not something that I would be able to support, but I'll consider handling double jeopardy and the remainder of the habeas corpus provisions in separate resolutions. Even if I do split the resolutions into two, however, I do not intend to abandon the effort to ban double jeopardy; I've been transparent about that intention from the beginning.


I would encourage the splitting, Ambassador. We're all in general agreement on your provisions of habeas corpus and having a replacement is crucial if your repeal is going to pass. By splitting the two we can concentrate on debating double jeopardy knowing that a right to habeas corpus is guaranteed regardless.

That being said, Ambassador, your permission isn't exactly being sought here. If a delegation wishes to split the two and pursue them, they are entirely free to do so. They could have them both done and dusted and submitted as soon as a repeal is passed.
Last edited by Sanctaria on Sun Feb 19, 2012 7:07 am, edited 2 times in total.
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Ossitania
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Postby Ossitania » Wed Feb 22, 2012 12:47 pm

We would like further input into how we might improve this draft to ensure that it is submission-worthy when the time comes. In particular, further suggestions on legitimate grounds to appeal a decision would be appreciated.
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Christian Democrats
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Postby Christian Democrats » Wed Feb 22, 2012 12:55 pm

This proposal does not belong in the human rights category because it would restrict people's right to appeal.
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Ossitania
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Postby Ossitania » Wed Feb 22, 2012 1:41 pm

Christian Democrats wrote:This proposal does not belong in the human rights category because it would restrict people's right to appeal.


In nations that already have broad appellation rights, whereas it would give them to nations that have none. However, I have been thinking over it, and I think I can safely include the "at minimum" addition that your nation suggested without opening the door to double jeopardy.
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Ossitania
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Postby Ossitania » Sat Feb 25, 2012 3:21 am

Do any other ambassadors have constructive commentary to make? I really would like for this to be ready to submit before the current repeal has passed.
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Ossitania
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Postby Ossitania » Wed Feb 29, 2012 10:48 am

Forgive my delay, there was a death in the family and I wasn't very online. Despite Quelesh's substantial lead on me, I've decided to submit this anyway, as I am hoping that his proposal won't pass, with mine coming up after his. Naturally, if it does pass, I'll ask for it be removed for illegality.
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Embolalia
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Postby Embolalia » Wed Feb 29, 2012 11:06 am

Quelesh wrote:In Quelesh the prosecution cannot appeal an acquittal, and we have no intention of changing that.

Really? So if the judge makes a ruling that was blatantly against the law (or precedent, if you use it), you just ignore it? If a judge were to make a ruling that DNA is not admissible, what would happen? Would you just no longer have DNA evidence in your courts anymore? Even if you don't have a system of precedent, you would just ignore the DNA evidence in that trial?
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Merfurian
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Postby Merfurian » Wed Feb 29, 2012 11:14 am

Would appeals based on errors of fact, or based on the verdict be allowed? It is unclear from the resolution, but I construe the resolution as to say that appeals on errors of fact or verdict are forbidden.

Klause Uliyan
etc
Last edited by Merfurian on Wed Feb 29, 2012 11:15 am, edited 1 time in total.
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Embolalia
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Postby Embolalia » Wed Feb 29, 2012 11:18 am

Merfurian wrote:According to your resolution would appeals based on errors of fact, or based on the verdict be allowed? It is unclear from the resolution, but I construe the resolution as to say that appeals on errors of fact or verdict are forbidden.

Klause Uliyan
etc

If by "errors of fact", you mean something was unknown that is now known, presumably there must be some evidence to support that. New evidence is covered. I'm unsure, though, what you mean by appeals "based on the verdict". If you mean repealing for no other reason than that one didn't like the verdict, even though it is appropriate to the evidence given, that is not allowed. Nor should it be.

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Spencerland
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Postby Spencerland » Wed Feb 29, 2012 11:21 am

hey i made a mistake and posted a bill in the W.A. what do i do?

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Postby Frisbeeteria » Wed Feb 29, 2012 11:28 am

Spencerland wrote:hey i made a mistake and posted a bill in the W.A. what do i do?

File a Getting Help request. Link is in my sig. Next time ask in Moderation, not a some random thread.

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Ossitania
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Postby Ossitania » Wed Feb 29, 2012 11:38 am

Merfurian wrote:Would appeals based on errors of fact, or based on the verdict be allowed? It is unclear from the resolution, but I construe the resolution as to say that appeals on errors of fact or verdict are forbidden.

Klause Uliyan
etc


This resolution creates only a minimum sets of grounds on which an appeal may be based - grounds on which all peoples have an inherent right to appeal. Further grounds are the business of national governments and do not fall within the remit of this proposal.
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Merfurian
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Postby Merfurian » Wed Feb 29, 2012 11:47 am

Embolalia wrote:
Merfurian wrote:According to your resolution would appeals based on errors of fact, or based on the verdict be allowed? It is unclear from the resolution, but I construe the resolution as to say that appeals on errors of fact or verdict are forbidden.

Klause Uliyan
etc

If by "errors of fact", you mean something was unknown that is now known, presumably there must be some evidence to support that. New evidence is covered. I'm unsure, though, what you mean by appeals "based on the verdict". If you mean repealing for no other reason than that one didn't like the verdict, even though it is appropriate to the evidence given, that is not allowed. Nor should it be.

-E. Rory Hywel
WA Ambassador for Embolalia


I shall elaborate regarding your confusion on what "appeals based on the verdict" means. It means "appeals based on conviction and sentence". Parties may appeal based on one of these arguments, listed with the party that can use that argument in brackets:
1) the defendant should not have been convicted (defence only)
2) the sentence was too lenient (prosecutor only)
3) the sentence was too harsh (defence only)

OOC: in the real world (including international tribunals), appeals on conviction and sentence happen quite regularly.

Klause Uliyan
etc
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Embolalia
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Postby Embolalia » Wed Feb 29, 2012 1:47 pm

For the first case, I refer you to what I said before. Presumably the defendant has some reason why they believe they should not have been convicted. It is that, not the verdict, which is truly the grounds for appeal. I don't claim to know every legal system in the world, but to my knowledge "I shouldn't have been found guilty because I say so, even though I have no legitimate reason why the trial or evidence was unfair" is not grounds for appeal.

I believe the same would hold for the latter two cases, as well. If the judge was fair, the facts were straight, the decision was correctly based in the law, and there are no other reasons why the verdict was improper, that would not be grounds for appeal.

In short, "I don't like it" is not the grounds for the appeal. It goes without question; if you're appealing, you obviously didn't like the verdict. The reason for which you did not like the verdict is your grounds for appeal.
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Quelesh
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Postby Quelesh » Wed Feb 29, 2012 4:36 pm

This proposal would mandatre that all member states not only allow prosecution appeals of acquittals, but potentially nearly unlimited appeals on expansive grounds. It would, if passed, destroy the freedom from double jeopardy in all member states. Vehemently opposed.

Embolalia wrote:
Quelesh wrote:In Quelesh the prosecution cannot appeal an acquittal, and we have no intention of changing that.

Really? So if the judge makes a ruling that was blatantly against the law (or precedent, if you use it), you just ignore it? If a judge were to make a ruling that DNA is not admissible, what would happen? Would you just no longer have DNA evidence in your courts anymore? Even if you don't have a system of precedent, you would just ignore the DNA evidence in that trial?


If a trial judge made such an absurd ruling during a criminal trial, the prosecution could immediately (i.e. before the conclusion of the trial) appeal that decision (the decision that DNA evidence is not admissible) to the appellate level. The appellate court would very likely quickly overturn the trial judge's admissability decision and require the trial judge to allow DNA evidence to be admitted into evidence. This is not the same as appealing an acquittal.

Alexandria Yadoru
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Moronist Decisions
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Postby Moronist Decisions » Wed Feb 29, 2012 4:45 pm

Quelesh wrote:If a trial judge made such an absurd ruling during a criminal trial, the prosecution could immediately (i.e. before the conclusion of the trial) appeal that decision (the decision that DNA evidence is not admissible) to the appellate level.


Interesting. You mean there's a delay between making a final ratio decidendi and the conclusion of a trial? You hear that, and then the prosecutor immediately has to file a stay in a split second?
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Cowardly Pacifists
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Postby Cowardly Pacifists » Wed Feb 29, 2012 4:57 pm

Moronist Decisions wrote:
Quelesh wrote:If a trial judge made such an absurd ruling during a criminal trial, the prosecution could immediately (i.e. before the conclusion of the trial) appeal that decision (the decision that DNA evidence is not admissible) to the appellate level.


Interesting. You mean there's a delay between making a final ratio decidendi and the conclusion of a trial? You hear that, and then the prosecutor immediately has to file a stay in a split second?

Actually (OOC: at least in U.S. jurisprudence) there is often a substantial delay, particularly if one side asks for it ("hey judge, give us an hour or two to check for possible errors). Often, the court will announce the "verdict" and then give the parties some time before it announces "judgement" (and often even more time before it announces sentencing). This arises from the fact that (especially in jury trials) juries are competent to announce "verdicts" (i.e. decisions about the facts) but are incapable of pronouncing "judgements" (i.e. legal conclusions derived from the facts). Even where juries can issue judgments, those judgements need to be signed and ratified by the judge before they can take effect (in case the jury ABSOLUTELY blows it).

So it does make sense to claim that the prosecutor could become aware of errors and make a motion for immediate appeal before a judgment is entered. Such a system does put A LOT of pressure on the state, though, and some cases are going to fall through the cracks.

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Merfurian
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Postby Merfurian » Thu Mar 01, 2012 10:11 am

Embolalia wrote:For the first case, I refer you to what I said before. Presumably the defendant has some reason why they believe they should not have been convicted. It is that, not the verdict, which is truly the grounds for appeal. I don't claim to know every legal system in the world, but to my knowledge "I shouldn't have been found guilty because I say so, even though I have no legitimate reason why the trial or evidence was unfair" is not grounds for appeal.

I believe the same would hold for the latter two cases, as well. If the judge was fair, the facts were straight, the decision was correctly based in the law, and there are no other reasons why the verdict was improper, that would not be grounds for appeal.

In short, "I don't like it" is not the grounds for the appeal. It goes without question; if you're appealing, you obviously didn't like the verdict. The reason for which you did not like the verdict is your grounds for appeal.


The "I don't like it" (as you call it) appeal route is the entire basis on which appeals are made! the Prosecutor can appeal sentence because it was too lenient (and therefore, because he didn't like it), appeals can be made because the parties don't like how facts were construed. Parties may also appeal sentence and the fact that they were convicted. As part of my Response Brief, I provide evidence, from the Rules of Procedure and Evidence, as well as other founding documents of various real-world tribunals.
From the International Criminal Tribunal for the Former Yugoslavia's Statute
Article 25
Appellate proceedings
1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds:
(a) an error on a question of law invalidating the decision; or
(b) an error of fact which has occasioned a miscarriage of justice.


The ICTY is a hybrid common-civil law Tribunal. Now, as a comparison, the Rules of Procedure and Evidence from the Extraordinary Chambers in the Courts of Cambodia - which is based on civil law - states:

Rule 104. Jurisdiction of the Supreme Court Chamber
(Amended on 5 September 2008, 6 March 2009 and 9 February 2010)
1. The Supreme Court Chamber shall decide an appeal against a judgment or a decision of the Trial Chamber on the following grounds:
a) an error on a question of law invalidating the judgment or decision; or
b) an error of fact which has occasioned a miscarriage of justice.


I therefore think that the "I don't like it" (as you call it) route of appeal is very common, and the only form of appeal used in these situations. I reinforce this by citing the International Criminal Court's Rules of Procedure and Evidence:

Rule 150
Appeal
...an appeal against a decision of conviction or acquittal under
article 74, a sentence under article 76 or a reparation order under article 75 may be filed...

Rules on appeal according to the Rome Statute:
Article 81
Appeal against decision of acquittal or conviction or against sentence
1. A decision under article 74 may be appealed in accordance with the Rules of Procedure
and Evidence as follows:
(a) The Prosecutor may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact, or
(iii) Error of law;
(b) The convicted person, or the Prosecutor on that person's behalf, may make an
appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact,
(iii) Error of law, or
(iv) Any other ground that affects the fairness or reliability of the
proceedings or decision.
2. (a) A sentence may be appealed, in accordance with the Rules of Procedure and
Evidence, by the Prosecutor or the convicted person on the ground of
disproportion between the crime and the sentence;


We further submit - regarding review of sentences, that the following Evidence shall prove that reviews of sentences - which is another way of appealing sentence - is permitted:

Article 84
Revision of conviction or sentence
1. The convicted person or, after death, spouses, children, parents or one person alive at the time of the accused's death who has been given express written instructions from the accused to bring such a claim, or the Prosecutor on the person's behalf, may apply to the Appeals Chamber to revise the final judgement of conviction or sentence on the
grounds that:
(a) New evidence has been discovered that:
(i) Was not available at the time of trial, and such unavailability was not
wholly or partially attributable to the party making application; and
(ii) Is sufficiently important that had it been proved at trial it would have
been likely to have resulted in a different verdict;
(b) It has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsified;
(c) One or more of the judges who participated in conviction or confirmation
of the charges has committed, in that case, an act of serious misconduct or
serious breach of duty of sufficient gravity to justify the removal of that judge or those judges from office under article 46.




I await your Reply.

Klause Uliyan PC
Former Justice of the Federal Court of Criminal Appeals
Presidential Counsel
Chief Ambassador and Head of the Delegate's legal team
ps. Are you trying to tell us that in Embolalia, no one is permitted to appeal once a judgement is finite?
Last edited by Merfurian on Fri Mar 02, 2012 8:36 am, edited 2 times in total.
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Ossitania
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Postby Ossitania » Sun Apr 22, 2012 4:32 pm

As the odious Double Jeopardy Prohibition thing is finally being repealed, I'd like to revive this as a replacement instead of an alternative, as it was originally written. Comments?
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Embolalia
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Postby Embolalia » Sun Apr 22, 2012 7:49 pm

Merfurian wrote:The "I don't like it" (as you call it) appeal route is the entire basis on which appeals are made! the Prosecutor can appeal sentence because it was too lenient (and therefore, because he didn't like it), appeals can be made because the parties don't like how facts were construed. Parties may also appeal sentence and the fact that they were convicted. As part of my Response Brief, I provide evidence, from the Rules of Procedure and Evidence, as well as other founding documents of various real-world tribunals.
You misunderstand me. The appeal is not based in no other fact than that one party did not like it. The appeal is based in some error which is thought to have been made. The examples you quote confirm this. Emphasis added, spoilered for compactness:
Article 25
Appellate proceedings
1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds:
(a) an error on a question of law invalidating the decision; or
(b) an error of fact which has occasioned a miscarriage of justice.
Rule 104. Jurisdiction of the Supreme Court Chamber
(Amended on 5 September 2008, 6 March 2009 and 9 February 2010)
1. The Supreme Court Chamber shall decide an appeal against a judgment or a decision of the Trial Chamber on the following grounds:
a) an error on a question of law invalidating the judgment or decision; or
b) an error of fact which has occasioned a miscarriage of justice.
Rule 150
Appeal
...an appeal against a decision of conviction or acquittal under
article 74, a sentence under article 76 or a reparation order under article 75 may be filed...
^ This one doesn't say anything about grounds, so I'm not sure why you posted it.

Article 81
Appeal against decision of acquittal or conviction or against sentence
1. A decision under article 74 may be appealed in accordance with the Rules of Procedure
and Evidence as follows:
(a) The Prosecutor may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact, or
(iii) Error of law;
(b) The convicted person, or the Prosecutor on that person's behalf, may make an
appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact,
(iii) Error of law, or
(iv) Any other ground that affects the fairness or reliability of the
proceedings or decision.
2. (a) A sentence may be appealed, in accordance with the Rules of Procedure and
Evidence, by the Prosecutor or the convicted person on the ground of
disproportion between the crime and the sentence
;
These last two bolded are the closest your examples get to "I don't like it". However, they're still defined as being within the scope of error in justice. It is not the fact that one party dislikes the verdict that makes it appealable, it is the fact that an error was made, there is new evidence, there was something which made it unfair, etc. Banana, potato. Butter the scones lightly, mater, I wouldn't want them deleted. Pim pim pim pim bluddldy pum widget. Continuing on:
Article 84
Revision of conviction or sentence
1. The convicted person or, after death, spouses, children, parents or one person alive at the time of the accused's death who has been given express written instructions from the accused to bring such a claim, or the Prosecutor on the person's behalf, may apply to the Appeals Chamber to revise the final judgement of conviction or sentence on the
grounds that:
(a) New evidence has been discovered that:
(i) Was not available at the time of trial, and such unavailability was not
wholly or partially attributable to the party making application; and
(ii) Is sufficiently important that had it been proved at trial it would have
been likely to have resulted in a different verdict;
(b) It has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsified;
(c) One or more of the judges who participated in conviction or confirmation
of the charges has committed, in that case, an act of serious misconduct or
serious breach of duty
of sufficient gravity to justify the removal of that judge or those judges from office under article 46.

I'm not contesting that an appeal can be made. It is absurd to claim that, and it does not reflect my words even remotely. I am simply saying that it is not purely the dislike of the verdict, but some substantial question about the way that verdict was reached which serves as grounds for appeal.

-E. Rory Hywel, IB-FE
WA Ambassador for Embolalia
Last edited by Embolalia on Sun Apr 22, 2012 7:51 pm, edited 1 time in total.
Do unto others as you would have done unto you.
Bible quote? No, that's just common sense.
/ˌɛmboʊˈlɑːliːʌ/
The United Commonwealth of Embolalia

Gafin Gower, Prime minister
E. Rory Hywel, Ambassador to the World Assembly
Gwaredd LLwyd, Lieutenant Ambassador to the World Assembly
Author: GA#95, GA#107, GA#132, GA#185
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Auralia
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Posts: 4915
Founded: Dec 15, 2011
New York Times Democracy

Postby Auralia » Mon Apr 23, 2012 3:57 am

I'm leaning more towards Moronist Decisions's version, since it doesn't mandate that nations allow appeals in all of the cases mentioned in the second clause. We respect differences in opinion about the role of double jeopardy in the legal system, but to be honest, this isn't much better than Quelesh's bill, since it also forces nations to make major changes to their judicial system unnecessarily; it's just that this time, it's mandating limited forms of double jeopardy rather than prohibiting it.

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Mousebumples
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Posts: 8411
Founded: Antiquity
Inoffensive Centrist Democracy

Postby Mousebumples » Mon Apr 23, 2012 6:30 am

Auralia wrote:I'm leaning more towards Moronist Decisions's version, since it doesn't mandate that nations allow appeals in all of the cases mentioned in the second clause. We respect differences in opinion about the role of double jeopardy in the legal system, but to be honest, this isn't much better than Quelesh's bill, since it also forces nations to make major changes to their judicial system unnecessarily; it's just that this time, it's mandating limited forms of double jeopardy rather than prohibiting it.

I agree with Ambassador Russell on this subject - and I'll fully admit that I was the one who urged The Lion to make his proposal more open to differences in judicial systems. I would support Double Jeopardy protections within this chamber, in principle. However, requiring ALL nations to void such protections for circumstance X, Y, and Z is not something I'd be able to support.

Yours,
Nikolas Eberhart
Ambassador from the Doctoral Monkey Feet of Mousebumples
WA Delegate for Monkey Island
Leader of the Mouse-a-rific Mousetastic Moderator Mousedom of Mousebumples
Past WA Delegate for Europeia & Monkey Island
Proud Member of UNOG
I'm an "adorably marvelous NatSov" - Mallorea and Riva
GA Resolutions (sorted by category) | Why Repeal? | Reppy's Sig Workshop

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Ossitania
Ambassador
 
Posts: 1804
Founded: Feb 19, 2010
Ex-Nation

Postby Ossitania » Mon Apr 23, 2012 10:34 am

The Lion and I have elected to work together on a single draft rather than propose competing alternatives.
Guy in the Boat,
GA #146 (Co-authored)
GA #177 (Co-authored)
GA #183(Authored)
GA #198 (Co-authored)
GA #202 (Authored)
GA #206 (Authored)
GA #212 (Co-authored)
GA #238 (Authored)
GA #240 (Authored)

President and Sole Resident of Ossitania

Member of UNOG
Ideological Bulwark #265

User avatar
Ossitania
Ambassador
 
Posts: 1804
Founded: Feb 19, 2010
Ex-Nation

Postby Ossitania » Thu Apr 26, 2012 3:00 pm

As the Lion has indicated elsewhere, we have chosen to split our drafts again, such that they now deal with complimentary aspects of the criminal justice system. This draft now deals solely with appealing criminal convictions.

Constructive comments are appreciated.
Last edited by Ossitania on Thu Apr 26, 2012 3:02 pm, edited 1 time in total.
Guy in the Boat,
GA #146 (Co-authored)
GA #177 (Co-authored)
GA #183(Authored)
GA #198 (Co-authored)
GA #202 (Authored)
GA #206 (Authored)
GA #212 (Co-authored)
GA #238 (Authored)
GA #240 (Authored)

President and Sole Resident of Ossitania

Member of UNOG
Ideological Bulwark #265

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