scholarly journals TO THE ISSUE OF THE STATE OF RESTORATIVE JUSTICE IN UKRAINE AT THE PRESENT STAGE

2021 ◽  
pp. 83-95
Author(s):  
K. Yu. Karmazina Karmazina ◽  
M. O. Khrapitska
Keyword(s):  
Restorative Justice ◽  
Criminal Liability ◽  
The State ◽  
Final Decision ◽  
Legal Aid ◽  
Present Stage ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
The Right

The purpose of the article is to study the roles of the prosecutor and the lawyer in reconciling between the victim and the suspect (accused) in Ukraine at the present time and to examine the possibility of increasing their participation in the reconciliation between the parties in the future. Reconciliation between victim and suspect (accused) in committing of a criminal offense as the centerpiece of the restorative justice in Ukraine today takes place outside of criminal proceedings, but it may have important substantive and procedural consequences in it. It can be considered as a mitigating circumstance in sentencing and even give rise to release the suspect (accused) from criminal liability. With the importance of reconciliation not only for the victim and the suspect, but also for the state, the question about scope of prosecutor`s powers as a procedural chief in criminal proceedings remains relevant. Such powers must be effective for facilitation such reconciliation, and at the same time they must prevent the unjustly avoidance of liability. It is also equally important to clarify the role of lawyers and the system of free secondary legal aid in restorative justice in Ukraine. The authors analyzed in the paper the normative regulation of the prosecutor's and the lawyer`s powers related to the reconciliation between the parties and the mechanism for the application of the restorative justice for its sufficiency and ability to provide the necessary mechanisms for implementing the provisions of the law. The authors found such gaps and differences in law regulation that hinder the development of conciliation practices in national criminal proceedings. The authors also examined the data of official state registers and revealed negative trends in the participation of the prosecutor in taking the procedural decisions based on the successful reconciliation between the victim and the suspect (accused). This gives reason to claim that the prosecutor's participation in reconciling between the victim and the suspect (accused) currently does not take into account neither the interests of the parties nor the state's interests in reducing the workload on the judicial and penitentiary systems and resolving other issues that accompany the existing punitive approach. In view of this, the authors proposes to make a number of changes to national legislation in order to eliminate those legal gaps that negatively affect the implementation of rules that guarantee the right to reconciliation and determine the admission of its positive results during making a final decision by court. In addition, the authors also emphasizes the necessity and practical feasibility of introducing a new model of the prosecutor`s participation in reconciling between the victim and suspect (accused) and giving him the right to initiate mediation with the consent of the parties. Such rules will also require the establishment of some additional provisions that will form a comprehensive implementation mechanism and serve as a guarantee of the interests of the victim and suspect (accused). As an example the authors used the rules of Criminal Procedure Act of the Republic of Slovenia. The authors also explored the main provisions and first results of The Pilot Project «Restorative Program for Juveniles Suspected of Committing a Criminal Offense». This project is the first attempt to expand the prosecutor's involvement in reconciling between the victim and the suspect (accused). The authors made conclusions about the real state of restorative justice in Ukraine at the present stage and the role of lawyers in it, taking into account the analysis of unique data collected from the Regional Centers for Free Secondary Legal Aid in Odesa, Mykolaiv and Kherson regions.

scholarly journals Implementation of the normative content of the principle of ensuring the right to liberty and security of person in the course of criminal procedural evidence

2021 ◽  
Vol 66 ◽  
pp. 235-239
Author(s):  
T.M. Miroshnichenko
Keyword(s):  
Judicial Review ◽  
Criminal Liability ◽  
The Body ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
House Arrest ◽  
The Law ◽  
Precautionary Measures ◽  
The Right ◽  
Normative Content

Consolidation at the level of the Constitution of Ukraine of the principle of ensuring the right to liberty and security of person necessitated the study of its essence and normative content in order to assess the correctness of the legislative approach to formulating the principle at the level of sectoral regulations. The normative content of the principle is enshrined in Art. 12 of the CCP. Analysis of the wording of this article allows us to identify three components of the principle, which reflect its requirements: prohibition, protection, security. The first element of the principle is the provisions of Part 1 of Art. 12 of the CCP. The key concepts that substantively fill this element are the following: restriction of freedom in criminal proceedings is possible only by a reasoned court decision; the reason for such a restriction is the suspicion of committing a criminal offense; restriction of liberty occurs in the manner prescribed by the Criminal Procedure Code. Procedures for restricting the right to liberty are corrected due to the importance of the restricted right. Judicial review proceedings on the prosecution's request to choose precautionary measures restricting liberty are characterized by its active position in proving the circumstances, which is the basis for restricting a person's liberty. The investigating judge, in the presence of a duly motivated and substantiated request, takes an active position solely to verify the information that is the basis of the request. The content of the element of protection consists of the provisions of the law on: the need to bring the detainee to the investigating judge as soon as possible and to check the legality and validity of the restriction of liberty; notification of the detention of the person of her relatives. The third element of the normative content of the principle is formulated in Part 5 of Art. 12 of the CCP. The law provides for criminal liability for knowingly illegal detention, pretext, house arrest or detention (Article 371 of the CPC), as well as the possibility of compensation for damage caused by illegal decisions, actions or omissions of the body carrying out investigative activities, pre-trial investigation, prosecution or court (Article 130 of the CPC).

scholarly journals Tendencje prywatyzacji prawa karnego a ujmowanie społecznej szkodliwości jako podstawy kryminalizacji

2017 ◽  
Vol 43 ◽  
pp. 131-151
Author(s):  
Dagmara Gruszecka
Keyword(s):  
Restorative Justice ◽  
Criminal Law ◽  
Criminal Liability ◽  
The State ◽  
Social Harm ◽  
Role Of The State ◽  
Social Harmfulness ◽  
The Impact ◽  
Characteristic Relationship

Tendencies to privatise criminal law and recognition of social harm as the basis of criminalisationIn the changing social reality, the classic scheme of criminal liability with its characteristic relationship between the state and the parties involved no longer meets the needs of effective but fair response to the criminal acts. Consequently, the object of the scientific and legislative debate becomes the phenomenon of privatisation also called in the literature the civilization phenomenon of criminal law. With the acceptance of the assumption that the basis for the criminalisation of any conduct must be its social harmfulness, the paper concerns the problem of the impact which re-evaluation of the role of the state and the concept of discourse and restorative justice have on the above mentioned criterion. The author tries to demonstrate that these phenomena and introduction to the criminal law elements of private law must be reflected also with respect to the understanding and evaluation of social harmfulness.

scholarly journals THE STATE OF SCIENTIFIC RESEARCH OF LEGAL AID IN UKRAINE IN THE SCIENCE OF CRIMINAL PROCEDURE

2020 ◽  
pp. 300-308
Author(s):  
О. В. Мартовицька
Keyword(s):  
Criminal Procedure ◽  
The State ◽  
Theoretical Research ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
Important Place ◽  
Procedural Law ◽  
Scientific Papers ◽  
Constitutional Right ◽  
The Right

In the article, it has been emphasized the urgency of the issue of the state of legal aid research in Ukraine in the science of criminal procedure. It has been argued that the study of any issue cannot be carried out without the use of certain methods to cover the selected issue, and developed scientific approaches to its solution. It is no exception to the rule of legal aid research in Ukraine. Emphasis has been placed on the fact that a large number of scientific papers are devoted to the study of such an integral element of the institute of legal aid in Ukraine as free legal aid. It has been determined that the institute of legal aid is repeatedly studied both at the general theoretical level and in the branch procedural law. These developments allow us to develop common approaches to determining the nature and significance of legal aid, and the procedure for its provision depending on the type of process. It has been found that the criminal procedure legislation is imperfect, and thorough theoretical research to define the concept, nature and content of the right to legal aid in criminal proceedings, the place of this institution in the national mechanism of human rights and freedoms in Ukraine, and receiving legal aid, the mechanism of realization of this constitutional right by the subjects of the process at its various stages are absent or do not take into account the current changes in the legislation governing the provision of legal aid in general and in criminal proceedings in particular. It is determined that the methodology of legal aid research in Ukraine is primarily the integrated use of methods of both empirical and theoretical knowledge, as well as general methods of research on the formation and development of legal aid in Ukraine, ensuring and implementing the right to legal aid in general and in criminal proceedings in particular. Therefore, the methodology of legal aid research in Ukraine is represented not only by a set of research methods, but also by a system of scientific developments, which should be studied with the help of these methods in order to find a new way to solve the scientific problem. And a very important place in the system of such scientific works is given to textbooks, manuals and methodical recommendations, instructions.

scholarly journals The role of free legal aid in the mechanism of access to justice

2020 ◽  
pp. 83-86
Author(s):  
Yurii Sverba
Keyword(s):  
Human Rights ◽  
Human Life ◽  
The State ◽  
Access To Justice ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
Non Governmental Organizations ◽  
European Court ◽  
Wide Range ◽  
The Right

The article is dedicated to the analysis of Ukraine’s international obligations in the sphere of access to justice and, in particular,to legal aid.The case law of the European Court of Human Rights in the civil and criminal aspects relating to the criteria for the effectivenessof legal aid is reviewed, as well as the cases where such assistance should be provided free of charge by the state. Article 6 § 1 doesnot imply that the State must provide free legal aid for every dispute relating to a «civil right». There is a clear distinction betweenArticle 6 § 3 (c) – which guarantees the right to free legal aid in criminal proceedings subject to certain conditions – and Article 6 § 1,which makes no reference to legal aid. However, the Convention is intended to safeguard rights which are practical and effective, inparticular the right of access to a court.The national legislation governing the procedure for providing free legal aid is analyzed. The categories of persons eligible tofree secondary legal aid and the categories of cases in which such aid is provided are considered. As of today, there are 17 categoriesof persons eligible to free secondary legal aid. The Law lacks a single criterion for determining a person’s social vulnerability andprovides for a wide range of life circumstances that create the prerequisites for a person to obtain free secondary legal aid under thefollowing criteria: property, age, social status and case category.The institutional and regulatory development of the national legal aid system is described. Key directions for the development ofthe national legal aid system are outlined: improving the quality of the provision of free secondary legal aid and protecting the systemfrom political influence.The role and place of non-governmental organizations providing free legal aid in creating real access to justice was alsoexamined. As an example, the The Ukrainian Helsinki Human Rights Union promotes the development of humane society based onrespect to human life, dignity and harmonious relations between a person, state and nature through creation of a platform forcooperation between the members of the Union and other members of the human rights movement.It is stated that the interaction of the state legal aid system and non-governmental human rights organizations creates real accessto justice, and specifically to the European Court of Human Rights.

scholarly journals Role of the Ministry of Justice of the Republic of Moldova in managing the legal aid system guaranteed by the state

2021 ◽  
Author(s):  
Vadim Sukhov ◽  
Keyword(s):  
The State ◽  
International Standards ◽  
Legal Aid ◽  
Republic Of Moldova ◽  
The Law ◽  
The Republic ◽  
The Right

International standards on the right to legal aid require states to create accessible and effective free legal aid systems. The article deals with the role of the Ministry of Justice of the Republic of Moldova in the management of the state-guaranteed legal aid system. It is concluded that the functions of the Ministry of Justice, provided by the Law on State Guaranteed Legal Aid, comply with international standards.

ANALISIS YURIDIS PUTUSAN PENGADILAN NEGERI BLORA TENTANG DUALISME KEPENGURUSAN YAYASAN PENDIDIKAN ISLAM KARTAYUDA YANG AKTA PENDIRIANNYA DIBUAT OLEH DAN DIHADAPAN NOTARIS (Studi Kasus Putusan Perkara PN Blora No. 34/Pdt.G/2015/PN.Bla)

Jurnal Akta ◽  
2017 ◽  
Vol 4 (3) ◽  
pp. 463
Author(s):  
Muslim Ansori ◽  
Akhmad Khisni
Keyword(s):  
Private Schools ◽  
Education System ◽  
Crucial Role ◽  
The State ◽  
Educational Institutions ◽  
Legal Entity ◽  
Non Profit ◽  
The Right

With the enactment of the Education System Act no 20 of 2003 (better known as the Sisdiknas Act), the State has determined that educational institutions should have a legal umbrella in the form of a legal entity, or better known as the Legal Entity Education. As a non-profit organization, the Foundation is the right legal entity that becomes a place for educational institutions, especially private schools. Therefore, of course, Notary has a very crucial role in making notary deed in the form of establishment and deed of change, such as example how in making the right basic budget and not multi interpresatasi for stake holders in the foundation. Therefore, the role of function and authority of the organ of the foundation must be clearly stated in the articles of association, so as not to cause a dispute in the future.KEYWORDS: Notaries, Foundation, Organ Foundation,

scholarly journals Circumstances to Be Clarified under the Investigation of Interference into Law Enforcement Officer’s Activity

2021 ◽  
Vol 81 (2) ◽  
pp. 97-103
Author(s):  
V. O. Gusieva
Keyword(s):  
Law Enforcement ◽  
Criminal Liability ◽  
Demographic Data ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Enforcement Officer ◽  
Criminal Offenses ◽  
Procedural Costs ◽  
Detailed List ◽  
Law Enforcement Officer

The author has substantiated the need to establish the circumstances to be clarified and has determined their significance during the investigation. It has been emphasized that the circumstances to be clarified include the circumstances to be proved in criminal proceedings, criminal and forensic characteristics of a criminal offense. In order to determine the circumstances to be clarified during the investigation of interference in the activities of a law enforcement officer, the author has studied the circumstances to be clarified within the group of criminal offenses related to obstruction of the activities of a law enforcement officer, as well as during the investigation of interference in the activities of a forensic expert. Taking into account the specified scientific provisions, the author has defined a detailed list of circumstances to be clarified during the investigation of interference in the activities of a law enforcement officer. It has been established that the circumstances to be clarified during the interference in the activities of a law enforcement officer include: 1) circumstances related to the criminal offense, namely: time, place, situation and traces of a criminal offense, methods of its commission (preparation, direct commission and concealment), tools and means used during the interference, the scope of procedural costs; circumstances that are the basis for ceasing criminal proceedings; the reasons and conditions that contributed to the commission of a criminal offense; 2) circumstances related to the identity of the victim, including: socio-demographic characteristics of the victim, place of work, position held; official and functional responsibilities, the victim’s belonging to a law enforcement agency during the commission of a criminal offense against him; the type and scope of damage caused to the victim; 3) circumstances related to the identity of the offender, namely: socio-demographic data of the offender, physiological and psychological condition, gender, citizenship, financial status, place of work, the record of criminal conviction and the facts of bringing to administrative liability; the presence of dependent disabled people; the presence of guilt in the form of direct intent, the purpose of the action; circumstances that aggravate or mitigate the punishment of the offender are grounds for releasing from criminal liability or punishment that exclude criminal liability; presence of accomplices.

scholarly journals Peran Notaris Dalam Penggunaan Akta SKMHT Yang Tidak Diikuti APHT Terhadap Debitor Wanprestasi Terkait Pemberian Fasilitas Kredit Pemilikan Rumah Subsidi (Studi Kasus di Bank Tabungan Negara Pekalongan)

Jurnal Akta ◽  
2018 ◽  
Vol 5 (1) ◽  
pp. 275
Author(s):  
Rifki Yusuf ◽  
Maryanto Maryanto
Keyword(s):  
Qualitative Analysis ◽  
The State ◽  
High Potential ◽  
Physical Security ◽  
Power Of Attorney ◽  
Savings Bank ◽  
The Face ◽  
The Right ◽  
Right Of Property

ABSTRAK Kabupaten Pekalongan merupakan lokasi yang memiliki potensi tinggi dalam penggunaan Surat Kuasa Membebankan Hak Tanggungan (SKMHT), hal ini disebabkan oleh gencarnya pembangunan oleh masyarakat yang membutuhkan dana besar yang antara lain berasal dari kredit yang diperoleh dengan menggunakan lembaga Hak Tanggungan yang selanjutnya menimbulkan berbagai masalah seperti apabila debitor wanprestasi. BTN selaku kreditor dalam pemberian KPR bersubsidi kepada debitor umumnya tidak menguasai benda yang menjadi jaminan kredit secara fisik, tetapi hanya memiliki hak kebendaan secara administratif. Pengikatan obyek jaminan yang berupa tanah, yaitu Hak Milik, Hak Guna Bangunan dan Hak Guna Usaha, prosesnya hanya sampai dengan Surat Kuasa Membebankan Hak Tanggungan (SKMHT) saja, dengan tidak dibebankan Hak Tanggungan atas obyek jaminan tersebut, maka BTN belum memiliki hak kebendaan atas jaminan tersebut secara faktual.Tujuan dari penelitian ini adalah untuk mengkaji dan menganalisis peran notaris dalam hal debitor wanprestasi, penggunaan SKMHT yang tidak diikuti APHT dalam hal debitor wanprestasi terkait dengan pemberian fasilitas Kredit Pemilikan Rumah Subsidi pada Bank Tabungan Negara serta upaya pihak Bank Tabungan Negara dalam hal debitor wanprestasi terhadap pemberian fasilitas Kredit Pemilikan Rumah. Metode yang digunakan dalam penelitian ini adalah metode analisis kualitatif, yaitu data yang diperoleh disusun secara sistematis kemudian dianalisis secara kualitatif agar dapat diperoleh kejelasan masalah yang akan dibahas.Dalam penelitian ini disimpulkan bahwa dalam menghadapi debitor wanprestasi Bank BTN mengambil langkah melakukan penjualan kembali dengan menggunakan kuasa menjual yang tercantum dalam akta “Pengakuan Hutang”, serta peningkatan SKMHT ke APHTkepada calon debitor, dan peran notaris yang hanya sebagai pembuat akta sehingga tidak turut serta jika terjadi wanprestasi.Kata kunci: Notaris, SKMHT, APHT, wanprestasi ABSTRACTPekalongan Regency is a location that has a high potential in the use of Power of Attorney Charging the Guarantee Right (SKMHT), this is caused by incessant development by people who need big fund which among others comes from the credit obtained by using the Mortgage Institution which further cause various problems such as if the debtor is defaulted. BTN as a creditor in the granting of subsidized KPR to the debtor generally does not control objects that become credit for physical security, but only have the right of property administratively. The binding of the object of collateral in the form of land, namely Right of Ownership, Building Rights and Cultivation Right, the process is only up to the Power of Attorney Charging the Guarantee Right (SKMHT) only, without the burden of the Guaranteed Fund on the object of the guarantee, BTN has no material right the guarantee is factual.The purpose of this study is to examine and analyze the role of a notary in the case of debtor wanprestasi, the use of SKMHT not followed APHT in the case of debtor wanprestasi associated with the provision of Subsidized House Ownership Credit in the State Savings Bank and the efforts of the State Savings Bank in the case of debt defaulting to the grant Housing Loan facility. The method used in this study is the method of qualitative analysis, the data obtained is arranged systematically and then analyzed qualitatively in order to obtain clarity of issues to be discussed.In this study it is concluded that in the face of debtor wanprestasi Bank BTN take steps to resell by using the power of sale which stated in deed "Recognition of Debt", and increase SKMHT to APHT to debitor candidate, and notary role which only as deed maker so do not participate if there was a default.Keywords: notary, SKMHT, APHT, wanprestasi

scholarly journals PERAN NOTARIS DALAM PELAKSANAAN PERJANJIAN BANGUN BAGI ANTARA ORANG-PERORANGAN DI KOTA JAMBI

Wajah Hukum ◽  
2018 ◽  
Vol 1 (1) ◽  
pp. 97
Author(s):  
Triamy Rostarum
Keyword(s):  
The State ◽  
Land Owners ◽  
The Right ◽  
Construction Delay

The form of conveyance are not only through legal act sales and purchase agreement. Land owners who want to build a building in their land,but do not have the funds (capital) can do the deed of the build and sharing Agreement. Build and sharing agreement is a legal agreement between a person who was land owner and another party(second party) who is given the right to build on the land, on condition that the profits are divided into two: for the land owner and the developer. Build and sharing agreement can be made by a notarial deed as an autenthic deeds. Notary as an official appointed by the State authorities in making the deed of build and sharing agreement. Notary is the instrumental intranslating carefully and clearly explained the intent of the parties, thus achieved an agreement between the parties.The role of notary is more than that set in the Act, notary act as mediator in differences of views against something in a legal agreement between two parties. Also, notary must explain the risks and constraints that may be encountered later in the implementation of the build and sharing agreement and mediate in seeking the prevention and solution to these constraints. The constraints faced in the implementation of build and sharing agreement are construction delay; negligence committed by second party and occurred problems in land ownership.Keywords: Build and sharing Agreement, the role of the notary.

scholarly journals Diagnoza w postępowaniu karnym wobec nieletnich przestępców we Francji

2020 ◽  
Vol 53 ◽  
pp. 199-209
Author(s):  
Paulina Perska-Gradowska
Keyword(s):  
Juvenile Offenders ◽  
Criminal Liability ◽  
Criminal Proceedings ◽  
Family Situation

Diagnosis in criminal proceedings against juvenile offenders in FranceThe purpose of the article is to analyse the role of diagnosis in criminal proceedings against juvenile offenders. Firstly, the conditions of juvenile criminal liability in France are presented. It is emphasised that the basic condition is being able to discern the act committed. The second part concerns the measures ordered by a judge for minors to gather information about the minor, their family situation and functioning environment. In the conclusion, the role of diagnosis in criminal proceedings is described. It is worth emphasising that the diagnosis in the French system provides support for a judge and conditions the juvenile criminal liability.

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