scholarly journals Procedure for exemption from punishment on the ground of legal act on decriminalization provided

2019 ◽  
pp. 72-80
Author(s):  
A. Chugaievska
Keyword(s):  
General Procedure ◽  
Criminal Procedure ◽  
Immediate Release ◽  
Criminal Code ◽  
Current Status ◽  
Criminal Proceedings ◽  
The Law

Analysis of the criminal procedure for exemption from punishment on the ground of legal act on decriminalization provided; analysis of current status of the problem provided; the key problems and legislative gaps identified, and respective solutions developed. The study revealed that the procedure for exemption from the court-sentenced punishment on the ground of legal act on decriminalization provided, has no sufficiently and precise regulations in the criminal procedural legislation. The goal of research is analyzing procedural order of exemption person from appointed sentence of court for action, the punishment of which is eliminated by law, identifying a range of problems which connects with procedural order of exemptions from the sentence imposed in connection with adoption of the law which eliminates the criminal act and amendment of improving current criminal procedural legislation. In the framework of the analysis of the recent studies, researches and respective publications it has been examined the current status of the scientific researches of the issues on exemption from the court-sentenced punishment on the ground of legal act on decriminalization provided (part 2 of the Article 74 of the Criminal Code). The grounded conclusion reads that that the procedure for this type of exemption from the court-sentenced punishment is insufficiently studied. Within the framework of implementing the tasks on analyzing the procedure for exemption from the court-sentenced punishment on the ground of legal act on decriminalization provided, detection a range of issues related to the procedure for exemption from the court-sentenced punishment on the ground of legal act on decriminalization provided and contributing recommendations for improvement of the current criminal procedural legislation, the following conclusions and recommendations were proposed. In particular, the application of of legal act on decriminalization at the criminal proceedings does not require a specific regulations. However, the general procedure for examining issues while executing a sentence requires taking into account specific cases of exemption from court-sentenced punishment. The ensuring of the prescribed by the Part 2 of Art. 74 of the Criminal Code of Ukraine "immediate" release of a person from a punishment sentenced by a court, should be supported by improving the procedural terms of consideration of the petition for release and introduction of a separate regulations. It is recommended to implement into the procedure a list of grounds (issues) that the court must consider during a trial and resolving the issue of release from punishment on the ground of legal act on decriminalization provided. In addition, it is appropriate in our opinion to oblige the court in deciding whether to release a person from punishment on the ground of legal act on decriminalization provided, while applying the exemption from punishment under Part 2 of Art. 74 of the Criminal Code of Ukraine, to consider the issue of eradication of conviction the person who was sentenced.

scholarly journals USE OF SPECIAL KNOWLEDGE DURING THE EXAMINATION OF THE SCENE OF A CRIME IN THE ORDER OF PART 3 ART. 214 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE

2021 ◽  
Vol 74 (1) ◽  
pp. 153-160
Author(s):  
Andrіy Shulha ◽  
◽  
Tetyana Khailova ◽  
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Knowledge And Skills ◽  
Procedural Law ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
The Law

The article deals with the problem of specialist’s participation in the scene examination, which is carried out before entering information into the Unified Register of the pre-trial investigations. The essence of the problem is that the current criminal procedural law of Ukraine recognizes the specialist’s participation only in the pre-trial investigation, the litigation and the proceedings in the case of the commission of an unlawful act under the law of Ukraine on criminal liability. Part 1 of Article 71 of the Criminal Procedure Code of Ukraine states that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and conclusions during the pre-trial investigation and trial on issues that require appropriate special knowledge and skills. In other cases, the specialist has no procedural status. In addition, Part 1 of Article 237 of the CPC of Ukraine «Examination» states that the examination is conducted to identify and record information on the circumstances of the offense commitment. It is an act provided by the law of Ukraine on criminal liability. However, there are the cases in the investigation, when a report is received, for example, about a person's death, other events with formal signs of the offense, which must first be checked for signs of a crime, and only then the act can be considered as offense. In this case, a specialist takes part in the scene examination. However, the current criminal procedure law in accordance with Part 1, Article 71 of the Criminal Procedure Code of Ukraine determines the legal status of a specialist only as the participant in criminal proceedings. The paragraph 10, part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines the criminal proceedings as pre-trial investigation and court proceedings or procedural actions in the case of the commission of an unlawful act. Therefore, when the inspection of the scene is based on the uncertain status of the event (there is no clear information that the event contains signs of an offense), the specialist’s participation is not regulated by law. The authors propose to consider the specialists as «experienced persons» in cases mentioned above and to include their advices to the protocol of the scene examination, as the advices of other scene examination participants.

scholarly journals SUATU KAJIAN YURIDIS TERHADAP PENGGUNAAN ALAT BUKTI ELEKTRONIK DALAM KEJAHATAN CYBER DALAM SISTEM PENEGAKAN HUKUM

2021 ◽  
Vol 3 (2) ◽  
pp. 11-25
Author(s):  
Ni Made Trisna Dewi,Reido Lardiza Fahrial
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Criminal Case ◽  
Law Enforcement Agencies ◽  
Electronic Evidence ◽  
Procedure Code ◽  
The Law ◽  
Witness Statements ◽  
And Function

Abuse in the electronic transaction because it is formed from an electronic process, so the object changes, the goods become electronic data and the evidence is electronic.  Referring to the provisions of positive law in Indonesia, there are several laws and regulations that have set about electronic evidence as legal evidence before the court but there is still debate between the usefulness and function of the electronic evidence itself, from that background in  The following problems can be formulated, How do law enforcement from investigations, prosecutions to criminal case decisions in cybercrimes and How is the use of electronic evidence in criminal case investigations in cybercrimes This research uses normative research methods that are moving from the existence of norm conflicts between the Criminal Procedure Code and  ITE Law Number 19 Year 2016 in the use of evidence.  The law enforcement process of the investigator, the prosecution until the court's decision cannot run in accordance with the provisions of ITE Law Number 19 of 2016, because in interpreting the use of electronic evidence still refers to Article 184 paragraph (1) KUHAP of the Criminal Procedure Code stated that the evidence used  Legitimate are: witness statements, expert statements, letters, instructions and statements of the accused so that the application of the ITE Law cannot be applied effectively The conclusion of this research is that law enforcement using electronic evidence in cyber crime cannot stand alone because the application of the Act  - ITE Law Number 19 Year 2016 still refers to the Criminal Code so that the evidence that is clear before the trial still refers to article 184 paragraph (1) KUHAP of the Criminal Procedure Code and the strength of proof of electronic evidence depends on the law enforcement agencies interpreting it because all electronic evidence is classified into  in evidence in the form of objects as  so there is a need for confidence from the legal apparatus in order to determine the position and truth of the electronic evidence.   Penyalahgunaan didalam transaksi elektronik tersebut karena terbentuk dari suatu proses elektronik, sehingga objeknya pun berubah, barang menjadi data elektronik dan alat buktinya pun bersifat elektronik. Mengacu pada ketentuan hukum positif di Indonesia, ada beberapa peraturan perundang-undangan yang telah mengatur mengenai alat bukti elektronik sebagai alat bukti yang sah di muka pengadilan tetapi tetap masih ada perdebatan antara kegunaan dan fungsi dari alat bukti elektronik itu sendiri, dari latar belakang tersebut di atas dapat dirumuskan masalah sebagai berikut, Bagaimana penegakkan hukum dari penyidikan, penuntutan sampai putusan perkara pidana dalam kejahatan cyber dan Bagaimanakah penggunaan bukti elektronik dalam pemeriksaan perkara pidana dalam kejahatan cyber Penelitian ini menggunakan metode penelitian normatif yakni beranjak dari adanya konflik norma antara KUHAP dengan Undang-undang ITE Nomor 19 Tahun 2016 dalam penggunaan alat bukti. Proses penegakkan hukum dari penyidik, penuntutan sampai pada putusan pengadilan tidak dapat berjalan sesuai dengan ketentuan Undang-undang ITE Nomor 19 Tahun 2016, karena dalam melakukan penafsiran terhadap penggunaan alat bukti Elektronik masih mengacu pada Pasal 184 ayat (1) KUHAP disebutkan bahwa alat bukti yang sah adalah: keterangan saksi, keterangan ahli, surat, petunjuk dan keterangan terdakwa. sehingga penerapan Undang-undang ITE tidak dapat diterapkan secara efektiv. Kesimpulan dari penelitian ini adalah penegakan hukum dengan menggunakan alat bukti elektronik dalam kejahatan cyber tidak bisa berdiri sendiri karena penerapan Undang-Undang ITE Nomor 19 Tahun 2016 tetap merujuk kepada KUHP sehingga alat bukti yang sah di muka persidangan tetap mengacu pada pasal 184 ayat (1) KUHAP dan Kekuatan pembuktian alat bukti elektronik tersebut tergantung dari aparat hukum dalam menafsirkannya karena semua alat bukti elektronik tersebut digolongkan ke dalam alat bukti berupa benda sebagai petunjuk sehingga diperlukan juga keyakinan dari aparat hukum agar bisa menentukan posisi dan kebenaran dari alat bukti elektronik tersebut.

scholarly journals PROSECUTOR'S SUPERVISION OF LAW CONDUCTING INVESTIGATIVE (SEARCH) ACTIONS

2020 ◽  
pp. 377-386
Author(s):  
Я. Ю. Конюшенко
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
The Law ◽  
Procedural Guidance ◽  
Compliance With The Law ◽  
The Relationship

The purpose of the article is to define the prosecutor's supervision over investigative (search) actions as a legal guarantee of human rights, as well as problematic issues in its implementation and to make proposals to improve the current criminal procedure legislation of Ukraine. The article defines doctrinal approaches to the concepts of "prosecutor's supervision over compliance with the law during the pre-trial investigation" and "prosecutor's procedural guidance of the pre-trial investigation" in the context of investigative (search) actions. The author came to the conclusion that the provisions of the Constitution of Ukraine, the Law of Ukraine "On the Prosecutor's Office" and the Criminal Procedure Code of Ukraine in terms of regulating the functions and powers of the prosecutor during the pre-trial investigation. Based on the study, it is proposed to consider procedural guidance as one of the forms of prosecutor's supervision over the pre-trial investigation, which is implemented directly by the prosecutor or a group of prosecutors who are appointed to carry it out in a particular criminal proceeding. The author also emphasizes the existence of forms of supervision of the highest level prosecutor on the legality of these actions, which are implemented through the demand and study of information on the progress and results of pre-trial investigation, criminal proceedings and certified copies of court decisions and study of compliance with criminal procedure. A number of problematic issues during the prosecutor's supervision in pre-trial criminal proceedings are outlined, which relate to the relationship between the prosecutor's supervision and judicial control over the legality of investigative (search) actions; subjects and subject of supervision of the prosecutor in this sphere; providing the prosecutor-procedural manager and prosecutors of the highest level with instructions and instructions during the investigative (search) actions. To address these issues, it is proposed to amend the current criminal procedure legislation of Ukraine. The study of the materials of criminal proceedings and the survey of the subjects of criminal proceedings indicate the existence of a number of problematic issues that exist during the implementation of the prosecutor's procedural guidance of investigative (search) actions in the context of human rights.

scholarly journals Criminal procedure between the law and the politics

2006 ◽  
Vol 78 (9) ◽  
pp. 546-578
Author(s):  
Slobodan Beljanski
Keyword(s):  
Criminal Procedure ◽  
Critical Reception ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Public Prosecution ◽  
Original Contribution ◽  
New Type ◽  
The Law ◽  
The Republic

The new Law on Criminal Procedure of the Republic of Serbia entered into force on June 10, 2006. It will apply starting from June 1, 2007 except for several provisions that have been effective ever since the Law entered into force. In this Article, the author has analyzed several new solutions from the first ten chapters of the Law from the logical, functional, historical and comparative point of view. The author concluded that the number of unacceptable and unnecessary solutions in this law seriously exceeded the number common for this kind of projects. It was hard to expect different result from the work which was done quickly and without critical reception with a noticeable intention of the authors to put their own original contribution to one, in fact, eclectic project. Since there is a lack of legal reasons, the author has outlined possible political intentions that might have been caused by the wish to show off with one more reformative project or from the intention to influence the criminal proceedings through the combination of the new type of investigation and current weakness of public prosecution. The line of new restrictive legal solutions, in which the goal is more dominant that the means to achieve the goal, and the measures to achieve the procedural discipline are more dominant than the care for rights brought the author to the conclusion that the reasons of palliative nature were the most crucial for some solutions and to the conclusion that since the justice was not able to get used to the application of good laws, the laws were simply adjusted to the bad justice.

scholarly journals Prohibition of interrogation of notaries as witnesses in criminal proceedings

1970 ◽  
pp. 345-349
Author(s):  
Ulyana Polyak
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Legal Literature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
The Law ◽  
Notary Public ◽  
Made In

The current criminal procedure law of Ukraine stipulates that a witness is obliged to give a true testimony during pre-trial investigation and trial, however, the legislator made an exception for this by specifying the categories of persons who have been granted immunity from immunity, ie they are released by law. testify. The article deals with the problems of law and practice regarding the prohibition of the interrogation of a notary as a witness in criminal proceedings and the release of him from the obligation to keep the notarial secret by the person who entrusted him with the information which is the subject of this secret. The notion of notarial secrecy is proposed to be changed, since the subject of this secrecy is not only information that became known to the notary public from the interested person, but also those information that the notary received from other sources in the performance of their professional duties, as well as the procedural activity of the notary himself, is aimed at achieving a certain legal result. The proposal made in the legal literature to supplement the CPC of Ukraine with the provisions that a notary is subject to interrogation as a witness on information that constitutes a notarial secret, if the notarial acts were declared illegal in accordance with the procedure established by law The proposal to increase the list of persons who are not subject to interrogation as witnesses about the information constituting a notarial secret is substantiated, this clause is proposed to be supplemented by provisions that, apart from the notary, are not notarized, other notarials, notaries as well as the persons mentioned in Part 3 of Art. 8 of the Law of Ukraine "On Notary". Amendments to the current CPC of Ukraine by the amendments proposed in this publication will significantly improve the law prohibiting the interrogation of a notary as a witness in criminal proceedings, as well as improve certain theoretical provisions of the institute of witness immunity in criminal proceedings.

ANALYSIS POLICE EFFORTS IN CLEAR HER NAME DUE TO FALSE ARREST ACCORDING TO ARTICLE 1, ITEM 23 ABOUT REHABILITATION ARREST CRIMINAL CODE

2015 ◽  
Vol 1 (2) ◽  
pp. 93-110
Author(s):  
Dadang Suprijatna
Keyword(s):  
Justice System ◽  
Descriptive Analysis ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Integral Approach ◽  
Criminal Offense ◽  
Penal Policy ◽  
The Law ◽  
The Right ◽  
Sense Of Justice

ABSTRACTPositions wrongly in Indonesia's criminal justice system was relatively less attention, and yet provide direct protection against the victim. Criminal law policy for the protection of victims of wrongful arrest of a criminal offense, used with an integral approach and balance between penal policies (penal policy) and non penal policy (non penal policy) in order to achieve the welfare of the community.  The method used in this research is a normative legal research methods descriptive analysis, which is intended to provide data as possible about a situation. In this case the intended data is data that can be used as research material, which is used to determine the various statutory provisions governing the authority of the police in restoring the good name of victims of wrongful arrests.  Rehabilitation described in Article 97 paragraph (1) as follows: "a right to obtain rehabilitation if the court acquitted or freed from all lawsuits whose decision has had permanent legal force."The consequences of the law in the case of wrongful arrests should not only for the victims be wrongly alone but ought to fulfill a sense of justice in society should also have the responsibility of police investigators alone. Legal responsibilities of law enforcement in this case that should be able to apply Article 1, point 23 of the Code of Criminal Procedure mentioned rights wrongly rehabilitation.  The conclusion of this study Accountability police investigators in arresting the suspect one of them is doing the rehabilitation of suspects, where rehabilitation is continued provision of compensation. If damages are set in the two chapters, rehabilitation arranged in one article only, namely Article 97 of the Criminal Procedure Code. Thus still expected to implementing regulations. Rehabilitation is the right person to get redress in capabilities, position and dignity and dignity given to the level of investigation, prosecution, or trial since been arrested, detained, charged, or prosecuted without reason that by law or by reason of a mistake as to the person or the law is applied.  Keywords: Clear Her, Name, False Arrest

Criminal Law and Procedure

Japanese Law ◽  
2021 ◽  
pp. 450-466
Author(s):  
Hiroshi Oda
Keyword(s):  
Criminal Law ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Special Part ◽  
General Part ◽  
Basic Concepts ◽  
The Law ◽  
Terrorist Acts

The primary statute of criminal law in Japan is the Criminal Code of 1907. There are various separate laws which provide for specific crimes, generally denoted as ‘special criminal laws’. Some offences were added by way of such special laws in the recent years including the law against terrorist acts of 2019. The The Criminal Code is divided into the General Part and the Special Part. The former lays down the general principles and basic concepts of criminal law such as intention, negligence, attempt, accomplice, etc. The latter lists specific offences. Constitution guarantees the rights of defendants and suspects. Criminal procedure has become much more transparent, and better protection is given to suspects.

scholarly journals ON THE DEFECTS OF LEGAL REGULATION OF THE CONCEPT OF LIABILITY FOR TAX OFFENCES

2020 ◽  
Vol 15 (1) ◽  
pp. 164-182
Author(s):  
Zhanna A. Nikolaeva
Keyword(s):  
Russian Federation ◽  
Tax Evasion ◽  
Criminal Procedure ◽  
Legal Liability ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
The Russian Federation ◽  
The Law

The author analyzes the content of interrelated tax norms, administrative and criminal laws, which constitute the concept of liability for tax offences. The analysis makes it possible to identify the elements that cause non-compliance with the foundations of legal liability in criminal proceedings: its inevitability, equality of everyone before the law and the court, justice. Representatives of small and medium- sized businesses are placed in unequal, discriminatory circumstances in comparison with large businesses. In addition, the legislation on taxes and fees contains provisions which create obstacles for the operation of criminal and criminal procedure laws. Many instances of tax evasion, the non-payment of fees and/or insurance fees in large and especially large amounts revealed by tax services do not become known to investigative bodies. In this case, the principle of the priority of sectoral legislation ceases to work, since in criminal proceedings the provisions of the Tax Code of the Russian Federation cancel out the effect of the norms which are common to all types of crimes and express the foundations of a particular sector of law. This paper substantiates the need to improve the concept of liability for violations of the legislation on taxes and fees.

scholarly journals THE OBSTRUCTION OF THE ADMINISTRATION OF JUSTICE AND PRELIMINARY INVESTIGATION: PROBLEMS OF THE OBJECT AND THE OBJECTIVE SIDE

2018 ◽  
Vol 2 (2) ◽  
pp. 97-105
Author(s):  
Alexandra Vladimirovna Boyarskaya
Keyword(s):  
Russian Federation ◽  
Complex Analysis ◽  
Preliminary Investigation ◽  
Legal Protection ◽  
Criminal Procedure ◽  
Criminal Code ◽  
The Body ◽  
Criminal Proceedings ◽  
Criminal Procedure Law ◽  
The Russian Federation

The subject. The article is devoted to the investigation of the main direct object and the circle of victims are subjected of harm by criminal acts stipulated by pts. 1, 2 of art. 294 of the Criminal Code of the Russian Federation.The purpose of the paper is to identify does the art. 294 of Criminal Code of the Russian Federation meets the other provisions of criminal procedure legislation.The methodology of research includes methods of complex analysis, synthesis, as well as formal-logical, comparative legal and formal-legal methods.Results and scope of application. The content of art. 294 of the Criminal Code of the Russian Federation does not comply with the provisions of the criminal procedure law. The discrep-ancy lies in terms of the range of participants in criminal proceedings and the functions performed by them, as well as the actual content and correlation of such stages of criminal proceedings as the initiation of criminal proceedings and preliminary investigation. In addi-tion, the current state of art. 294 of the Criminal Code of the Russian Federation does not take into account the ever-widening differentiation of criminal proceedings.The circle of victims listed in pt. 2 of art. 294 of the Criminal Code of the Russian Federation should be supplemented by such participants in the criminal process as a criminal investi-gator, the head of the investigative body, the head of the inquiry department, the head of the body of inquiry. At the same time, the author supports the position that the criminal-legal protection of the said persons should cover not only their activities at the stage of preliminary investigation, but also of the entire pre-trial proceedings as a whole.The circle of criminal acts provided for in art. 294 of the Criminal Code of the Russian Fed-eration, should also be specified with an indication of encroachment in the form of kidnapping, destruction or damage to such a crime as materials of criminal, civil and other cases, as well as material evidence.Conclusions. The content of art. 294 of the Criminal Code of the Russian Federation does not comply with the provisions of the criminal procedure law. The author formulates the conclusion that the circle of victims listed in pt. 2 of art. 294 of the Criminal Code should be broadened and joins the position that the criminal-legal protection of these persons should cover not only their activities at the stage of preliminary investigation, but also of the entire pre-trial proceedings as a whole.

scholarly journals HARMONIZATION OF CRIMINAL PROCEDURE AS A MEANS OF ENSURING THEIR UNIFORM APPLICATION

2021 ◽  
Vol 31 (3) ◽  
pp. 509-514
Author(s):  
D.V. Tat'yanin
Keyword(s):  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
High Quality ◽  
Red Tape ◽  
Judicial Proceedings ◽  
The Law ◽  
The Right ◽  
Different Content

The law of criminal procedure contains a number of rules with different content, which raises a number of questions in their interpretation and application. Decisions made using rules with different content lead to their appeal, often to annulment, which does not ensure the achievement of the appointment of criminal proceedings, but leads to unjustified red tape in criminal proceedings and the delay in making final decisions on them. The need to harmonize criminal procedure rules is related to ensuring high-quality and effective criminal proceedings, ensuring the protection of the rights of participants in criminal proceedings, the quality of the evidence process, both in pre-trial and judicial proceedings. The article addresses the problems of unification of criminal procedure rules containing such concepts as an investigator and urgent investigative actions. It is proposed to eliminate the contradictions in them in order to ensure their uniform application. The introduction of a single concept of investigator and refusal to use the profession of "forensic investigator" in this concept is justified, it is proposed to expand the number of participants who have the right to carry out urgent investigative actions, as well as to assign to them investigative actions carried out at the stage of initiating a criminal case.

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