scholarly journals PERSEPSI KETUA PENGADILAN NEGERI DAN KETUA PENGADILAN AGAMA TENTANG PENINJAUAN KEMBALI (PK) PASCA PUTUSAN MK NO. 34/PUU-XI/2013 DALAM HUKUM ACARA PERDATA

2016 ◽  
Vol 15 (1) ◽  
Author(s):  
BAHRAN BASERI
Keyword(s):  
Rule Of Law ◽  
Criminal Case ◽  
Test Material ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
The Rule Of Law ◽  
Human Needs ◽  
Basic Human Needs ◽  
Civil Cases ◽  
Legal Force

Since test material to the provisions of Pasal 268 ayat (3) Undang-Undang No. 8 Tahun 1981on Criminal Proceedings in Mahkamah Konstitusi, Mahkahmah decided in its decision number 34 /PUU-XI / 2013, which states that the provisions was inconsistent with the Undang-Undang Dasar1945, so it does not have binding legal force. Therefore, Peninjauan Kembali (PK) in criminal cases maybe done more than once with the new circumstances or conditions found substantial novum new foundduring previous PK undiscovered. If problems associated PK novum criminal case is considered sub-stantial, and neither should Novum issues related PK in civil cases, as may be after the filing of the PKand disconnected, no new circumstances or substantial novum recently discovered that during theprevious PK undiscovered or if there is a decision of a judges mistake or a real mistake was discoveredafter PK decided. PK is an extraordinary remedy that aims to find justice and truth material. Justice cannot be limited by time or formal provision that limits that PK is only one time. Justice is a very basichuman needs, the more basic human needs of the rule of law. But in civil cases, the results of this studyindicate that the filing PK limited only once.

On the quality of pre-trial proceedings

2019 ◽  
pp. 391-399
Author(s):  
Igor Vladimirovich Ovsyannikov
Keyword(s):  
Rule Of Law ◽  
Negative Impact ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
The Rule Of Law ◽  
Crime Detection ◽  
The Impact ◽  
Special Order ◽  
Objective Research

We consider the problem of the pre-trial proceedings quality and the impact on it of the shortcomings of the regulation of the procedural order of consideration of crimes reports, the special trial order, as well as the practice of their application. We characterize the dualistic nature of the previously conducted reform of the procedural order of crimes reports and strengthening the rule of law at the stage of criminal cases, which, at first glance, seems to be a solution to the problem of crime detection. We designate the expediency of refusal in the legislative order from the production of investigative actions during pre-investigation inspections and from the procedural terms of such inspections. Referring to the practice of courts of a special order of court decision, we note that the simplification and acceleration of criminal proceedings is permissible, but the existing rules of a special order should not be interpreted as a rejection of impartial and objective research by the court of the evidence available in the case, even if indirectly – on the case materials. It is stated that the shortcomings of the special order regulation and the practice of its application have a negative impact on the quality of both judicial and pre-trial proceedings. In addition, we propose scientifically based measures aimed at correcting the above shortcomings.

scholarly journals Expert Opinion and Witness Testimony as Key Evidence in Criminal Cases on Incitement to Suicide

2019 ◽  
Vol 13 (6) ◽  
pp. 971-979
Author(s):  
Elena Bryanskaya ◽  
Vadzim Samaryn
Keyword(s):  
Expert Opinion ◽  
Objective Assessment ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Witness Testimony ◽  
Timely Initiation ◽  
Assessment Of Evidence ◽  
Court Practice ◽  
Legal Force

For the last five years Belarus and Russia have been among the top five countries for suicide indices. Their rise was caused by the activities of destructive groups in social networks. Experience shows that criminal proceedings for many criminal cases connected with suicides were terminated due to the absence of a crime. Thus, a thorough collection of evidence for this category of criminal cases becomes especially vital. When analyzing the court practice of incitement to suicide, the authors concluded that the most persuasive evidence is expert opinion and witness testimony. Besides, such written documents as medical cards (medical records) of potential suicides have high probative value in the investigation of criminal cases. Timely initiation and conduction of expertise could reveal signs of incitement to suicide, for example, using physical violence against the victim or a staged suicide. As the Criminal Procedure Code sometimes prescribes an expertise for a specific criminal case, such expert opinion will become a key source, a type of evidence that, at the level of a judge’s inner conviction, will have significant legal force when assessed together with other evidence. Thus, it is possible to discuss evidence that has key value, but, at the same time, it should be connected with other information on the criminal case, and together they should make up an integral crime narrative. The European Court of Human Rights introduced a concept of «key evidence» in the practice of criminal proceedings. The analysis of court practice allowed the authors to suggest that key evidence is information that acts as the main fact and is included in the subject matter of the case. This conclusion does not contradict the rule of free assessment of evidence: during such assessment, none of the evidence has predetermined, preconceived legal force. Only when the evidence is harmonized, it is possible to talk about a comprehensive investigation and an objective assessment of evidence.

scholarly journals The Untenable Situation of German Criminal Law: Against Quantitative Overloading, Qualitative Overcharging, and the Overexpansion of Criminal Justice

2012 ◽  
Vol 13 (6) ◽  
pp. 579-605 ◽  
Author(s):  
Volker Krey ◽  
Oliver Windgätter
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Constitutional Court ◽  
District Courts ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
The Rule Of Law ◽  
Trial Courts ◽  
Federal Constitutional ◽  
Established Fact

It is a well-established fact that German criminal trial courts are unacceptably and unreasonably overloaded. The German Federal Constitutional Court—Bundesverfassungsgericht, BVerfG—and the Federal Supreme Court of Justice—Bundesgerichtshof, BGH—frankly admit this fact. Even those legal scholars who are critical towards trial courts emphasize such overloading. This overloading is aggravated in the context of austerity measures, which seem to be based on a system that can briefly be described as follows: In principle, the BGH is not, if ever then only slightly, affected, and the State Courts of Appeals—Oberlandesgerichte, OLG—are not affected in an extensive manner. In contrast, the trial courts fare differently: The Higher District Courts — Landgerichte, LG—are typically severely affected by such austerity measures, while the Lower District Courts — Amtsgerichte, AG—are affected brutally. Pursuant to the authors’ view, this practice demonstrates an evident disregard for the trial courts, despite the fact that their speedy as well as convincing settlement of criminal cases is of the utmost importance for the law in action and a constitutive element of criminal proceedings under the rule of law. Hence, the guarantee of an effective criminal justice system — Gewährleistung einer effektiven Strafrechtspflege—is rightly recognized as a fundamental element of the rule of law.

Prosecutors and National Security

2021 ◽  
pp. 538-558
Author(s):  
Kent Roach
Keyword(s):  
Human Rights ◽  
National Security ◽  
Rule Of Law ◽  
Ethical Challenges ◽  
Criminal Cases ◽  
The Rule Of Law ◽  
The Third ◽  
Relative Rarity ◽  
The Many ◽  
Operational Aspects

This chapter examines the distinct operational and ethical challenges that prosecutors face in national security and especially terrorism cases. The second part of this chapter focuses on the operational challenges that prosecutors face. These include demands for specialization that may be difficult to fulfill given the relative rarity of national security prosecutions; the availability of special investigative powers not normally available in other criminal cases; exceptionally broad and complex offenses; and the demands of federalism and international cooperation. The third part examines ethical and normative challenges that run throughout the many operational aspects of the prosecutorial role in national security cases. These include the challenges of ensuring that often exceptional national security laws are enforced in a manner consistent with the rule of law and human rights. There are also challenges of maintaining an appropriate balance between legitimate claims of secrecy and legitimate demands for disclosure and between maintaining prosecutorial independence and discretion while recognizing the whole of government and whole of society effects of the many difficult decisions that prosecutors must make in national security cases.

On the Consideration of a Criminal Case Against a Minor by Jury

2021 ◽  
Vol 2 ◽  
pp. 90-96
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Criminal Case ◽  
Jury Trial ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Scientific Discussion ◽  
Judicial Practice ◽  
Criminal Procedure Law ◽  
The Right ◽  
A Minor

The functioning of the jury in Russia has demonstrated not only effectiveness, but also a number of problems that need to be resolved. Such problems include the personal jurisdiction of criminal cases by jury. The article reveals the legal positions of the Constitutional Court of the Russian Federation regarding the right of minors to trial a criminal case in a jury. The approaches to solving this issue that have developed in the judicial practice of individual foreign states are analyzed, the main directions for further scientific discussion regarding the right of minors to a jury trial are outlined. The purpose of the article is to disclose various approaches to the administration of criminal justice in the relations of minors with the participation of lay judges. The theoretical basis of the study was Russian and foreign scientific works in the field of criminal procedure law, devoted both to the consideration of criminal cases with the jury, and the specifics of juvenile criminal proceedings. Using the comparative legal research method has allowed to reveal various approaches to the access of minors to jury trials in individual states. In Russian legislation and judicial practice the question of the right of minors to have a criminal case against them considered by a jury remains unresolved. The position of the Constitutional Court of Russia regarding the jurisdiction of such criminal cases is also controversial. The experience of foreign countries indicates that there is no universal way to ensure the right of a minor to a proper court. This issue is decided depending on the type of criminal process, the presence or absence of specialized juvenile courts. Any direct borrowing in this regard cannot be considered effective, but a generalization of foreign experience can create the necessary basis for optimizing both the work of the jury and criminal proceedings against minors.

scholarly journals Using Digital Technologies in Criminal Cases in Court: Reality and Prospects

Lex Russica ◽  
2019 ◽  
pp. 117-131 ◽  
Author(s):  
I. I. Sheremetev
Keyword(s):  
Video Recording ◽  
Digital Technologies ◽  
Criminal Case ◽  
Judicial Reform ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Council Of Europe ◽  
Experimental Development ◽  
Automated Information System ◽  
E Mail

The paper deals with topical issues related to the use of digital technologies in criminal proceedings. The author presents the directions of digitization of the court and the principles of using artificial intelligence, formulated by the bodies of the Council of Europe. The stages of the emergence of individual digital technologies first in the work of arbitration courts, and later — courts of general jurisdiction are shown. Existing and promising digital technologies are considered as the criminal case moves, after its submission in court from the Prosecutor. Considerable attention is given to the order of formation of the court for the consideration of a particular criminal case. The author analyzes the difficulties encountered in the use of an automated information system in this matter, and proposes ways to resolve them. The author considers it necessary to use e-mail to call victims, witnesses and other participants in the proceedings, for which he proposes to make appropriate changes to the current procedural legislation. The article reveals the current procedure and prospects for the use of video conferencing systems, audio and video recording of the trial in the criminal process. The author reports on the experimental development of speech recognition programs for participants in the trial. Special attention is given to the achievements in the implementation of digital technologies in the Moscow courts, implemented in the course of the international project «Support for judicial reform». In this regard, the author describes the creation of electronic copies of traditional «paper» cases in the courts of Moscow, making the proceedings more open.

scholarly journals FEATURES OF THE IMPLEMENTATION OF THE PRINCIPLE OF PRESUMPTION OF INNOCENCE IN CRIMINAL PROCEEDINGS OF PRIVATE PROSECUTION

2020 ◽  
Vol 30 (6) ◽  
pp. 875-880
Author(s):  
E.F. Tensina
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedure Code ◽  
Special Procedure ◽  
The Russian Federation ◽  
Procedural Rights

The article reveals the nature of the claim of a private prosecution, which establishes the freedom to dispose of material and procedural rights. The forms of manifestation of dispositive principles in the material and procedural aspects in the course of criminal proceedings are determined. Taking into account the nature of the claim of a private prosecution, various models of proceedings in criminal cases of a private prosecution and the peculiarities of the implementation of the provisions of the criminal procedure principle of the presumption of innocence are considered. The author critically assesses the legal constructions that allow the application of a special procedure for making a court decision in criminal proceedings of a private prosecution if the accused agrees with the charge brought. In particular, taking into account the provisions of the principle of the presumption of innocence, it is concluded that it is inadmissible to apply Chapter 40 of the Criminal Procedure Code of the Russian Federation when considering a criminal case of a private prosecution if it is initiated by filing an application directly with a magistrate in the manner prescribed by Art. 318 of the Code of Criminal Procedure of the Russian Federation or when investigating a criminal case of this category in the form of an abbreviated inquiry, regulated by Ch. 32.1 of the Criminal Procedure Code of the Russian Federation.

INTERNATIONAL EXPERIENCE IN COORDINATING THE ACTION OF LAW ENFORCEMENT AGENCIES

2022 ◽  
Author(s):  
Sergii Melnyk ◽  
◽  
Alina Ignatievа ◽  
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Rule Of Law ◽  
Justice System ◽  
International Experience ◽  
International Treaties ◽  
Criminal Cases ◽  
Law Enforcement Agencies ◽  
The Rule Of Law ◽  
Legal Enforcement

The article researched international experience in coordinating the action of law enforcement agencies in modern international law. It is stated that, enforcement agencies are those institutions that enforce the laws, including election-related laws. Enforcement аs an important integrity mechanism as it deters those who might be interested in subverting the system as well as identifies and punishes those who have broken the law. The responsibilities for enforcing laws and codes are usually divided among different agencies, depending on the nature and severity of the problem. Initial investigations may start with the oversight agency, but can be referred to an enforcement agency if it was determined that legal enforcement was required. For example, potential criminal cases uncovered during a routine audit can be referred to the justice system. If the prosecuting authorities decide to pursue the case, they could charge and prosecute the alleged perpetrator, with a court pronouncing sentence if the defendant were found guilty. Jurisdictionally, there can be an important difference between international law enforcement agencies and multinational law enforcement agencies, even though both are often referred to as «international», even in official documents Effective enforcement requires a functioning legal system and a respect for the rule of law. An important factor in maintaining integrity in enforcement is the independence of the judiciary, as justice is supposed to be administered fairly, equally and impartially. The prevention, investigation and cessation of international and many domestic crimes, as well as the prosecution of those responsible for their commission, are not it is always possible alone, without the help of other states and international organizations. Achieving this goal requires states not only to proclaim unilateral declarations of intent, participation in the signing international treaties and the activities of international institutions, but also the actual implementation of joint and agreed activities aimed at combating transnational and domestic organized crime.

THE POSITION OF THE PUBLIC PROSECUTOR IN ADMINISTRATIVE PROCEEDINGS – LEGAL ANALYSIS

2021 ◽  
Vol 1 (XXI) ◽  
pp. 97-114
Author(s):  
Michał Sędziński
Keyword(s):  
Rule Of Law ◽  
Public Prosecutor ◽  
Special Role ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
The Public ◽  
Administrative Procedure ◽  
Court Proceedings ◽  
Administrative Proceedings

The aim of this article is to comprehensively analyse the legal position of the public prosecutor in administrative proceedings and administrative court proceedings. This subject is interesting because the public prosecutor is usually associated with criminal proceedings and his capacity as the public accuser. However, the public prosecutor plays a special role in administrative proceedings, i.e. participates in them as an entity with the rights of a party, even though he has no legal interest in it. It is also worth noting that the powers of the public prosecutor are clearly more extensive than those of other entities with the rights of a party. This article is an attempt to determine the role of the public prosecutor in administrative proceedings and decide whether he is the accuser or rather the representative of the public interest. The position of the public prosecutor in proceedings before administrative courts is special as well. This issue needs to be discussed in detail, which was taken into account in the second part of the article. The position of the public prosecutor as the advocate of the rule of law is regulated by the Act on the Public Prosecutor’s Office. The analysis of these provisions in conjunction with Chapter 4 of the Code of Administrative Procedure leads to a conclusion that the public prosecutor who acts in administrative proceedings as an entity with the rights of a party has powers vested in him alone and watches over such proceedings, thereby fulfilling the duties of an advocate of the rule of law. To fully show the special position of the public prosecutor, it is necessary to enumerate his powers in administrative proceedings and compare them with the competences of “ordinary” entities with the rights of a party.

Fundamentals of the evidentiary process in the light of judicial practice in criminal cases

2020 ◽  
Author(s):  
Elena Bryanskaya ◽  
Anna Altunina
Keyword(s):  
Driving Force ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Judicial Practice

The monograph gives an idea of the process of proof in a criminal case. The process of proof is the driving force behind all criminal proceedings. In this regard, issues related to the concept, types and nature of evidence, their recognition as inadmissible, and their argumentative power are considered. The article presents the material that reveals the stages of the proof process. It is addressed to students, undergraduates, postgraduates, researchers and practitioners specializing in criminal evidence.

Sign in / Sign up

Export Citation Format

Share Document