Balancing security and liberty within the European human rights framework. A critical reading of the Court’s case law in the light of surveillance and criminal law enforcement strategies after 9/11

Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

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Problems and Challenges of the echr’s Extraterritorial Application to Law-Enforcement Operations at Sea

International Community Law Review ◽

10.1163/18719732-12341314 ◽

2015 ◽

Vol 17 (4-5) ◽

pp. 445-473

Author(s):

Marta Szuniewicz

Keyword(s):

Human Rights ◽

Law Enforcement ◽

Illicit Drug ◽

Case Law ◽

The State ◽

Law Of The Sea ◽

Effective Control ◽

European Court ◽

Extraterritorial Jurisdiction ◽

Illicit Drug Trafficking

Recently the European Court of Human Rights has been challenged with questions concerning the scope of the State’s responsibility for violations of human rights that occurred on international waters. The complaints concern the international fight on illicit drug trafficking, piracy and illegal immigration. The analysed case law provides that occurrences on international waters constitute cases of extraterritorial jurisdiction and may engage responsibility of the State under the echr in the events that take place on board a vessel flying its flag (jurisdiction de iure) and in case of occurrences that happen on board foreign vessels, if the State exercises an effective control over a ship or its crew (jurisdiction de facto). Unfortunately, the Court’s findings prove difficult to follow in a few points as the judges applied the Strasboaurg standard too strictly, irrespective of the practical challenges of maritime law-enforcement operations and existing institutions of the law of the sea.

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Alternatif Untuk Meminimalisasi terhadap Pelanggaran HAM dalam Penegakan Hukum Pidana

Wajah Hukum ◽

10.33087/wjh.v4i1.164 ◽

2020 ◽

Vol 4 (1) ◽

pp. 116

Author(s):

Ryan Aditama

Keyword(s):

Human Rights ◽

Law Enforcement ◽

Social Status ◽

Social Inequality ◽

Criminal Law ◽

The State ◽

Human Rights Violations ◽

Cultural Understanding ◽

State Apparatus ◽

History Of

Related to the general provisions of Law No. 39 of 1999 concerning Human Rights, which states that the beginnings of the history of the Indonesian nation to date have recorded various problems including: suffering, misery and social inequality, resulting from unjust and discriminatory acts and actions on ethnic, racial, cultural understanding, language, color, skin, and religion, as well as class, gender, and even social status and others. These unjust and discriminatory acts are included in violations of human rights, both vertically "carried out by the state apparatus itself to citizens or even vice versa" or those that are horizontal "ie between citizens themselves" and do not allow those included in the category for gross violations of the conception of human rights (grossviolation of human rights). This alternative to minimize human rights violations in criminal law enforcement is an effective way to reduce the number of human rights violations in Indonesia.

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Peranan Dan Fungsi Praperadilan Dalam Penegakan Hukum Pidana Di Polda Jateng

Jurnal Daulat Hukum ◽

10.30659/jdh.v1i1.2564 ◽

2018 ◽

Vol 1 (1) ◽

Author(s):

Dodik Hartono ◽

Maryanto Maryanto

Keyword(s):

Human Rights ◽

Law Enforcement ◽

Criminal Law ◽

Criminal Procedure ◽

Active Role ◽

District Court ◽

Central Java ◽

Procedure Code ◽

The Law

ABSTRAK�Penelitian dengan judul Peranan Dan Fungsi Praperadilan Dalam Menegakkan Hukum Pidana di Polda Jateng. Berdasarkan uraian dalam Tesis ini, permasalahan yang akan yang akan di teliti adalah: 1) Bagaimanakah fungsi dan peran praperadilan dalam penegakan hukum di Indonesia berdasarkan peraturan perundang-undangan yang berlaku? 2) Apa hambatan dalam pelaksanaan fungsi dan peran pra peradilan dalam penegakan hukum di Polda Jateng? 3) Bagaimanakah solusi dari hambatan dalam pelaksanaan fungsi dan peran pra peradilan dalam penegakan hukum di Polda Jateng?Hasil penelitian menyimpulkan bahwa : 1) Maksud dan tujuan utama yang hendak ditegakkan dan dilindungi, dalam proses praperadilan yaitu tegaknya hukum dan perlindungan hak asasi tersangka dalam tingkat pemeriksaan penyidikan dan penuntutan. Pasal 1 butir 10 KUHAP dipertegas dalam Pasal 77 KUHAP yang menyebutkan Pengadilan Negeri berwenang untuk memeriksa dan memutus, sesuai dengan ketentuan yang diatur dalam undang-undang. Wewenang pengadilan untuk mengadili dalam praperadilan dijelaskan dalam Pasal 95 KUHAP. 2) Hambatan dalam pelaksanaan fungsi dan peran praperadilan dalam penegakan hukum di Polda Jateng meliputi : a. hakim lebih banyak memperhatikan perihal dipenuhi atau tidaknya syarat-syarat formil penangkapan dan penahanan, atau ada tidaknya perintah penahanan dan sama sekali tidak menguji dan menilai syarat materilnya. b. setiap pelaksanaan upaya paksa selalu ada perenggutan HAM. c. pemeriksaan untuk melakukan penahanan, masih ada penyalahgunaan dalam tahap penyidikan oleh Polisi dan penuntutan oleh jaksa. d. selain luasnya kewenangan penyidikan dalam menentukan bukti permulaan yang cukup, pengawasan terhadap kewenangan tersebut juga lemah. 3) Solusi dari hambatan dalam pelaksanaan fungsi dan peran praperadilan dalam penegakan hukum di Polda Jateng meliputi : �� a. Diperlukan upaya kontrol terhadap setiap aparat penegak hukum pada lembaganya masing-masing secara vertikal. b. KUHAP perlu direvisi khususnya mengenai mekanisme saling mengawasi antara penegak hukum dan lembaga dalam subsistem peradilan. c. diperlukan peran aktif hakim dalam menggunakan kewenangannya pada saat pemeriksaan pokok perkara untuk mempertimbangkan penyidikan atau penuntutan yang tidak sesuai dengan ketentuan hukum acara atau yang melawan hukum guna menghindari penyalahgunaan HAM. d. dalam tahap ajudikasi, hakim seharusnya berkonsentrasi untuk menentukan hasil pembuktian di persidangan dan dalam tahap ini, hakim dapat menilai apa yang terjadi dalam tahap praajudikasi.Kata Kunci : Peranan dan Fungsi, Praperadilan, Penegakan Hukum Pidana�ABSTRACT�Research with the title Role And Practice Function In Enforcing Criminal Law in Central Java Regional Police. Based on the description in this Thesis, the issues that will be examined are: 1) How is the function and role of pretrial in law enforcement in Indonesia based on the prevailing laws and regulations? 2) What are the obstacles in the implementation of pre-justice functions and roles in law enforcement in the Central Java Regional Police? 3) How is the solution of the obstacles in the implementation of functions and the role of pre-judiciary in law enforcement in Central Java Regional Police?The results of the study conclude that: 1) The main purpose and objectives to be upheld and protected, in the pre-trial process, namely the enforcement of the law and the protection of human rights of suspects in the level of investigation and prosecution investigation. Article 1 point 10 of the Criminal Procedure Code is affirmed in Article 77 of KUHAP stating that the District Court has the authority to examine and decide upon, in accordance with the provisions stipulated in law. The jurisdiction of the courts to adjudicate in pre-trial is described in Article 95 of the Criminal Procedure Code. 2) Obstacles in the implementation of functions and the role of pretrial in law enforcement in Central Java Police include: a. judges pay more attention to whether or not the formal conditions for arrest and detention, or whether there is a detention order and not test and judge material requirements at all. b. every execution of forced efforts is always a rush of human rights. c. checks for detention, there is still abuse in the investigation stage by the Police and prosecution by the prosecutor. d. besides the extent of investigative authority in determining sufficient preliminary evidence, the oversight of the authority is also weak. 3) Solutions from obstacles in the implementation of functions and pretrial roles in law enforcement in Central Java Police include: a. Control of each law enforcement apparatus is required on each institution vertically. b. The Criminal Procedure Code needs to be revised, especially regarding the mechanism of mutual supervision between law enforcement and institutions within the judicial system. c. an active role of the judge in the use of authority at the time of examination of the principal matter to consider investigations or prosecutions that are not in accordance with the provisions of procedural law or against the law in order to avoid abuse of human rights. d. in the stage of adjudication, the judge should concentrate on determining the results of the evidence in the hearing and in this stage the judge can judge what happened in the pre-certification stage.Keywords: Roles and Functions, Pretrial, Criminal Law Enforcement

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Hukuman Mati Bagi Koruptor Pada Saat Keadaan Tertentu (Pandemi COVID-19) Perspektif Hukum Nasional dan Hukum Islam

Al-Manahij Jurnal Kajian Hukum Islam ◽

10.24090/mnh.v15i1.4579 ◽

2021 ◽

Vol 15 (1) ◽

pp. 137-150

Author(s):

Dahyul Daipon

Keyword(s):

Human Rights ◽

Law Enforcement ◽

Death Penalty ◽

Criminal Law ◽

Islamic Law ◽

Positive Law ◽

The Government

The current condition of the Covid-19 pandemic is a time where almost everyone feels social and economic difficulties. Communities whose regions apply restrictions/quarantines are highly dependent on assistance from the government. This paper is a study and analysis of one question how the death penalty can be applied to perpetrators of corruption during the Covid-19 outbreak or pandemic. In the criminal law that applies in Indonesia, the death penalty for perpetrators of criminal acts of corruption is contained in Article 2 paragraph 2 of Law no. 31 of 1999 concerning the Eradication of Corruption Crimes. Meanwhile, in Islamic law, corruption is categorized as jarimah ta'zir. The results of this study conclude that during a pandemic, the death penalty can be applied to corruptors in accordance with the provisions of Article 2 of the Anti-Corruption Law and the provisions of Islamic criminal law as jarimah ta'zir. There are fundamental differences in the application of the death penalty for corruptors according to positive law and Islamic criminal law, especially with regard to the conditions required for the imposition of the death penalty. Even though this seems cruel according to human rights supporters, this needs to be a concern for all law enforcers so that they can carry out strict law enforcement against perpetrators of corruption crimes during the pandemic.

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Deprivation of Liberty and Human Dignity in the Case-Law of the European Court of Human Rights

Bergen Journal of Criminal Law & Criminal Justice ◽

10.15845/bjclcj.v4i2.1064 ◽

2017 ◽

Vol 4 (2) ◽

pp. 150 ◽

Cited By ~ 1

Author(s):

Robert Spano

Keyword(s):

Decision Making ◽

Human Rights ◽

Criminal Justice ◽

Criminal Law ◽

Case Law ◽

European Convention ◽

Penal Policy ◽

The United Kingdom ◽

European Court ◽

Life Sentence

In its landmark 2013 judgment of Vinter and Others v. the United Kingdom, the European Court of Human Rights held that a life sentence which is not de jure and de facto reducible amounts to a breach of the prohibition of inhuman and degrading punishment, as enshrined in Article 3 of the European Convention on Human Rights. The author, a judge of the Strasbourg Court, analyses the Vinter judgment both as it stands alone as well as how it fits into and, now, influences the Court’s case-law on Article 3 and 5 of the Convention, before reviewing the procedural requirements laid down by the Court for a ‘Vinter review’ of life sentences. In doing so, the author examines the underlying tensions between the conception of penal policy as falling within the exclusive domain of domestic decision-making and the individualistic and dignitarian notion of human rights in which the Convention system is firmly grounded. The article is based on the 2016 Bergen Lecture on Criminal Law and Criminal Justice which the author gave on 26 October 2016 at the Faculty of Law, University of Bergen.

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THEORETICAL AND PRACTICAL ASPECTS OF APPLYING THE PRINCIPLE OF NON BIS IN IDEM IN CRIMINAL PROCEEDINGS RIGHT UKRAINE

International scientific journal Internauka Series Juridical Sciences ◽

10.25313/2520-2308-2021-10-7575 ◽

2018 ◽

Author(s):

Petro Olishchuk ◽

Keyword(s):

Human Rights ◽

Law Enforcement ◽

Criminal Law ◽

Criminal Responsibility ◽

Criminal Code ◽

Legal Responsibility ◽

Criminal Prosecution ◽

Criminal Proceedings ◽

Judicial Decisions ◽

European Court

The article analyzes the principle of non bis in idem in the context of the criminal legislation of Ukraine, as well as the identification of cases of violations of this principle by law enforcement bodies during the qualification of criminal offences and during the issue of judicial decisions. It is noted that criminal law is a branch of law that is connected with the establishment of a ban on committing a certain act under the threat of the application by the state of measures of coercion of a criminal nature. The establishment of such a ban and the determination of measures of criminal-legal coercion, as a consequence, for its violation, is potentially related to the restriction of human rights. Obviously, the restriction of these rights cannot be arbitrary and chaotic, but must be subject to certain rules, ideas, which reflect the general development of society. These include the principles of criminal law, in particular the principle of criminal law, enshrined in art. Article 61 of the Constitution of Ukraine states: “No one can be brought to legal responsibility twice for the same type of offence”. According to Article 2 of the Criminal Code of Ukraine, “no one may be brought to criminal responsibility for the same criminal offence more than once”. The article highlights the characteristic features of the investigated principle. It is stated that its role is extremely important for the internal construction of the field of law, as well as the correct normalisation and law enforcement. There are cases of violations of this principle by law enforcement bodies during the qualification of criminal offences and during the issue of judicial decisions, on examples of the practice of the European Court of Human Rights and Ukrainian judicial proceedings. The European Court of Human Rights’s case-law on the application of Article 4 of the Convention is inconsistent and, in some cases, even contradictory. The principle of non bis in idem in the resolution of the question of the inadmissibility of double incrimination ensures the observance of the rights of the person during the implementation of criminal prosecution, as well as ensures the completeness of criminal legal qualification, the individualization of criminal responsibility and punishment.

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Direct action, Convention values and the Human Rights Act

Legal Studies ◽

10.1111/j.1748-121x.2001.tb00180.x ◽

2001 ◽

Vol 21 (4) ◽

pp. 535-568 ◽

Cited By ~ 1

Author(s):

Helen Fenwick ◽

Gavin Phillipson

Keyword(s):

Human Rights ◽

Criminal Law ◽

Direct Action ◽

Case Law ◽

European Convention ◽

Free Expression ◽

Public Order ◽

Public Authorities ◽

Human Rights Act ◽

Human Rights Act 1998

The direct action form of protest is becoming an increasingly significant form of political expression. This paper considers such protest in relation to the guarantees of free expression and peaceful assembly under arts 10 and 11 of the European Convention on Human Rights, now binding on United Kingdom public authorities under the Human Rights Act 1998. Its aim is to set out a framework of principle which would guide and underpin judicial approaches to the application of the Convention to domestic criminal law aimed at such protest, specifically ss 68 and 69 of the Criminal Justice and Public Order Act 1994. It argues that, because of the deficiencies of the Strasbourg case law in this area, an activist judicial stance, one reliant on underlying Convention values, will be required if there is to be any significant change to the traditional, illiberal domestic approach to direct action.

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Proportionality of Interference with the Right to Peaceful Enjoyment of Property During the Seizure of Property in Criminal Proceedings in Ukraine

Access to Justice in Eastern Europe ◽

10.33327/ajee-18-3.4-a000038 ◽

2020 ◽

pp. 246-264

Keyword(s):

Human Rights ◽

Law Enforcement ◽

Case Law ◽

Criminal Proceedings ◽

Human Right ◽

European Court ◽

Protection Of Human Rights ◽

European Standards ◽

The Right ◽

International Instruments

This article considers relevant science and law enforcement practice issues of state intervention’s legitimacy in the right to peaceful property enjoyment in criminal proceedings during property seizure. These issues are considered everywhere through international instruments’ prism, particularly the Convention for the Protection of Human Rights (ECHR) and Fundamental Freedoms, Article 1 of Protocol No. 1 to the Convention and the ECtHR case-law. Based on the ECtHR case law, the authors analyze the conditions under which the state may interfere in exercising a protected right, often called criteria for intervention. Based on the fact restrictions are permissible if they are prescribed by law, necessary in a democratic society and pursue a legitimate goal, the authors consider these conditions through the lens of national law enforcement practices of Ukrainian criminal proceedings. The authors emphasize the relevance of these criteria of the legality of individual rights restriction in criminal proceedings since when applying for property seizure, the Ukrainian legislator requires investigating judges to consider reasonableness and restriction proportionality of property rights, and apply the least onerous seizure method, not suspend or excessively restrict a person’s lawful business activities, or other consequences significantly affecting others’ interests. Due to the amendment of the Ukrainian criminal procedure legislation, the practice is slowly approaching the European Court of Human Rights practice’s European standards. However, proper systematic, logical and consistent court decisions limiting the human right to peaceful property possession remain critical. Based on the study, the authors offer a model of logical reasoning, following which the investigating judges can correctly formulate the motivational part of the decision to satisfy or deny the request for property seizure. Particular attention is paid to the reasonableness, suitability, necessity, and proportionality of the means of restricting the right to peaceful enjoyment of the property and describes each of them.

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