Instead, he or she will likely be granted a new trial, which, if it ends in conviction, will also result in a new sentence. Subject(s): Prosecution — Jurisdiction of states, nationality principle — Foreign relations law — Jurisdiction of states, passive personality principle — Jurisdiction of states, protective principle — Jurisdiction of states, universality principle Sorry, your blog cannot share posts by email. This would create a tremendous burden on the courts, as it would result in a marked increase in matters being tried more than once. Two years of investigation resulted in the French government issuing a European Arrest Warrant for Mr. Bailey, beginning the process of having him extradited to France so he could stand trial for Ms. Toscan du Plantier’s murder. In association with the International Commission of Jurists, [Caleb H Wheeler is a lecturer in law at Middlesex FAQs Not satisfied with this outcome, the French government initiated its own investigation into the murder based on the passive personality theory of jurisdiction. Public users can however freely search the site and view the abstracts and keywords for each book and chapter. A second attempt to extradite him, this time for voluntary homicide, was rejected in 2017 on the grounds that the Supreme Court had already ruled on the issue. Instead, he or she could be seen as protecting himself or herself from arbitrary detention. On 31 May 2019, Mr. Bailey was convicted in his absence in the Paris cour d’assises for the murder of Ms. Toscan du Plantier and sentenced to 25 years in prison. Of these, only the nationality principle-which the United States generally re-jects-would allow the United States to prosecute one of its nationals for a violent crime committed abroad. In the end, it is hard to discern any real purpose of France’s decision to exercise passive personality jurisdiction over Mr. Bailey so that it might try him in absentia. INT'L L. 44, 55, 57 (1925). Keywords: nationality principle, active personality principle, passive personality principle, protective principle, universality principle, concurrent jurisdiction Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. 10. Article 113-7’s unique approach to passive personality jurisdiction further strains the effectiveness of deterrence by eschewing the dual criminality principle. Emerging Voices: Examining the Applicability of the Passive Personality Principle when Conducting a Trial in Absentia. 1 The term ‘jurisdiction’ refers to the power of States to subject persons or property to their laws, judicial institutions, or enforcement capacity. With respect to Mr. Bailey, it is clear that he had de facto notice of the charges against him, which the European Court of Human Rights has indicated is sufficient under certain circumstances to imply waiver of the right to be present. Training Armed Forces in IHL: Just a Matter of Law? They could then await the outcome of the first trial, during which they are absent, to determine if they wish to engage with the process and force the court to hold a new trial. The decision by the cour d’assises to proceed in absentia is probably best seen as an effort by the French government to successfully have Mr. Bailey extradited into its custody. See id. However, the Irish European Arrest Warrant Act 2003 contains grounds to once again refuse the French request on the basis that the Irish Director of Public Prosecutions decided not to bring proceedings against Mr. Bailey for the offence for which his extradition is now being sought. nationality principle — A country asserts jurisdiction over the conduct of its citizens, anywhere in the world. This connection is so tenuous as to make it very difficult to see how the application of Article 113-7 could deter anyone from anything. For retributive theory to work it typically requires that the person convicted of a crime be punished for his or her criminal acts. From: Oxford Public International Law (http://opil.ouplaw.com). Those circumstances include when an accused speaks publicly about the charges against him or her, or when the evidence shows that the accused has actual knowledge of the charges against them. Further, it is not for the individual litigants to decide whether the trial will be fair before it even takes place. French courts are authorised to exercise jurisdiction if the laws of France are broken, regardless of whether the crime alleged is also a crime in the territory of the state in which the actions actually occurred.
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