Each Resident shall not be tried twice for the same offence nor forced to self-incriminate unless new and compelling evidence has been presented to the Conclave nor forced to self-incriminate.Under no circumstances shall a Resident be tried twice for the same offence except in the event that new and compelling evidence has been presented to the Conclave, nor shall they be compelled to self-incriminate.
Along the same vein as my proposed Appeals and Mistrials Act, this proposed amendment to the Concordat seeks to rephrase and strengthen the Concordat’s protection against double jeopardy. Also, this section is awkwardly phrased in general (why is self-incrimination in there twice?).
I believe that double jeopardy should be forbidden in general and that the “new and compelling evidence” exemption should be eliminated. If the prosecution fails to make the case for conviction, they have failed to make their case. Other avenues to protect regional security exist in the Praesidium if the courts are no longer an option. In a civilized region that respects the rule of law, I believe double jeopardy has no place.
After edits, this proposed amendment now seeks to rephrase existing law in a clearer fashion.
Personally, I object to this amendment. While I’m open to persuasion, I personally think that appeals, no matter who by, are an integral part of any judicial system. If the prosecution has reasonable (and permissible) grounds to call for an appeal for a “not guilty” verdict, they should be granted said appeal (again, only if they have reasonable grounds).
I have scoured through the laws, as far as I’m aware a conclave amendment passed by the magisterium is no longer allowed in the concordat? (Requesting further elaboration and evidence to prove that I’m wrong) According to the conclave standing orders, amendments are made within the conclave itself?
That’s the problem I have, there is a tab stating notice from the magisterium to do so and linking it to standing orders from the magisterium and the concordat. I looked through the concordat and standing orders they don’t exist anymore somehow.
The process of a Conk Amendment goes as follows: amendment proposed to Magi, Magi debates, Magi votes, if a supermajority (iirc) of Magi voters vote to approve, it is then sent to the broader vote of the citizens of TEP for a Referendum where by a majority (or supermajority. I am a little hazy on the Referendum process currently. will amend in a moment) will it be put into the Concordat.
From feedback I have gotten elsewhere, I already expect that this proposed amendment will not secure passage in its current form. That said, at the absolute barest minimum I will try my damndest to get an amendment approved if only because E 4.4 has self-incrimination in there twice and it’s awkward. I would entertain a rephrasing of the current text, which permits double jeopardy in the event of new and compelling evidence.
In fact, as currently phrased, it is ambiguous whether “unless new and compelling evidence has been presented to the Conclave” applies to “Each Resident shall not be tried twice for the same offence.” There is a lack of punctuation. Should it be read:
“Each Resident shall not be tried twice for the same offence, nor forced to self-incriminate, unless new and compelling evidence has been presented to the Conclave, nor forced to self-incriminate.”
or should it be read as:
“Each Resident shall not be tried twice for the same offence, nor forced to self-incriminate unless new and compelling evidence has been presented to the Conclave, nor forced to self-incriminate.”
In either case I don’t know what to do with that second “nor forced to self-incriminate,” but the first would imply that there is an exception to the rule on double jeopardy for new and compelling evidence (which is how I have been reading it) while the second implies that the new and compelling evidence part only applies to the rule on self-incrimination.
All of this to say, in any case, I think this section needs rephrasing on some level. It relates to very fundamental rights of residents. I would like to shift discussion in this thread to the question of the ambiguity of E 4.4.
I agree that the double “nor forced to incriminate” ought to be corrected but the prosecution should be able to appeal if new compelling evidence is brought up. So I’m opposed to this amendment as it stands
I have edited the draft. The intent is now to rephrase existing law in a way that is clearer, not change anything. In other words, it does not mention appeals at all, leaving the matter of whether an appeal constitutes trying the same offense a second time to be determined elsewhere in law. My efforts to limit appeals of not guilty verdicts can continue through statutory law, rather than the Concordat.
The kicker is compelled to give testimony—they’re allowed to if they want to—but fair enough that limiting it to “giving testimony” may be unwise, I’ll change it.
In general I’m quite wary of going through the Concordat amendment process for minor changes. But it is true that this particular section is poorly worded.
I would propose removing the “(known as “double jeopardy")” because it does not add any further meaning to the section as proposed, and the section would actually be more clear without it.
Moreover, I’m worried that mentioning “double jeopardy” this way unnecessarily introduces a legal term in TEP law that is not yet used as such, and has - as we’ve seen in our discussions - a widely different meaning across legal cultures.
I don’t have the time to read thru the thread so forgive me if this has been discussed, but:
What does it mean to be the “same offence”? Because I’m afraid that it could be interpreted to mean that if someone commits the same crime twice, they can only be tried once, even if the second crime took place after the first conviction. For example, if Magecastle decided to waltz into EPSA and commit treason-espionage again, would we be unable to try them for it?
Fair enough. In retrospect I’m not sure why I felt the need to have that in there anyway.
As Bach also said, “tried twice for the same offence” means tried twice for the very same action, not the same kind of offence. That would be, I think, quite a fanciful legal reach. (As Minister of Reaching, I would know.) In this circumstance, I did in fact re-use the same verbiage the Conk currently uses, and I felt that the meaning was plain enough to stand on its own.
I absolutely agree. But you know what else is a reach? “The February 2020 Concordat was introduced, passed, and ratified through the amendment process. However, it is not actually a legitimate amendment.” and “For TEP laws to apply to a specific person, they would also have to be a citizen” (despite residents’ rights to trial). The Conclave has proven in the past three years that when something is implied, it’s ignored. I would rather state it explicitly to avoid that altogether.
I just want to add one more silly point, but a point nevertheless: the clause starts with “a resident”, but in the second part it says “shall they”.
As to “the same offence”, I can think of something like “the same incident” going wrong as well, because one incident can possibly constitute several offences. So for example, say something happens, and the responsible party is indicted for a minor offence, but later it turns out it was much worse, you couldn’t bring additionnal charges.