scholarly journals Problem of criminal legal qualification of domestic violence in law enforcement practice

2021 ◽  
Vol 2 (16) ◽  
pp. 139-161
Author(s):  
Anhelina Yevhenivna Oliinychenko
Keyword(s):  
Domestic Violence ◽  
Supreme Court ◽  
Criminal Code ◽  
Appropriate Behavior ◽  
Legal Response ◽  
Criminal Offenses ◽  
Legal Nature ◽  
The Supreme Court ◽  
Criminal Procedure Law ◽  
Restrictive Measures

Domestic violence is a phenomenon that can take the form of a socially dangerous act and be qualified as a crime under Art. 126-1 of the Criminal Code of Ukraine and other articles of the Criminal Code of Ukraine. It is the correctness of the criminal legal qualification of domestic violence that became the subject of our study.              The lack of systematic interpretation of Art. 126-1 of the Criminal Code of Ukraine leads in practice to the fact that the courts decide completely differently on the qualification of actions of a person. After all, domestic violence can be a manifestation of both an administrative offense and a criminally punishable act. That makes it impossible to further apply the restrictive measures of a criminal legal nature, enshrined in Art. 91-1 of the Criminal Code of Ukraine. Such situation has already become the basis for resolution in the order of review by higher courts and formation of a position on the most problematic aspects by the Supreme Court of Ukraine. In particular, in order to avoid the prohibited double conviction or punishment, the proceedings must be combined on a comprehensive basis and form a single whole. This means not only that the goal and the means used to achieve it must complement each other in nature and be linked in time, but also that the possible consequences of such legal response to appropriate behavior must be proportionate and predictable. for the persons to whom they relate.             Thus, the purpose of our study is to form a list of issues for the correct criminal legal qualification of actions under Art. 126-1 of the Criminal Code of Ukraine, for the correct separation from the administrative offense under Art. 173-2 of the Code of Administrative Offenses, as well as from other criminal offenses related to domestic violence. The task is to study the conclusions of the Supreme Court of Ukraine, to analyse the case law, to analyse the research conducted by non-governmental international organizations, as well as to analyse the positions of the doctrine of criminal and criminal procedure law on this issue.  

scholarly journals Prohibition to approach a certain distance and / or to certain persons, to be in a certain place as a measure of a criminal nature (on the example of the Penal Code of the Republic of Poland)

2021 ◽  
Vol 2 (16) ◽  
pp. 54-67
Author(s):  
Olesia Mykhailivna Cheban
Keyword(s):  
Domestic Violence ◽  
Supreme Court ◽  
Criminal Code ◽  
Penal Code ◽  
Place Of Residence ◽  
Criminal Proceedings ◽  
Legal Nature ◽  
The Supreme Court ◽  
Specific Position ◽  
The Republic

The article analyzes the provisions of the Polish Penal Code in terms of establishing a ban on being in certain environments or places, contact with certain people, approaching certain persons or leaving a special place of residence without the consent of the court, as a kind of criminal measure. Sais about  prohibitions to hold a specific position, engage in a certain profession or carry out certain types of economic activity. In the Polish Penal Code, the analyzed prohibitions apply to the perpetrator in the case of an intentional crime combined with violence, and are binding from the entry into force of the court decision in the criminal case. It is known that in Ukraine there are special measures to combat domestic violence in the form of an urgent injunction against the offender and a restrictive injunction against the offender. In its legal positions, the Supreme Court revealed the essence (legal nature) of the restrictive order as a temporary measure of restraint, which is not a measure of punishment for a person. The Supreme Court also justified the legitimacy of the restraining order in the form of a temporary prohibition on the offender to stay and approach real estate, even if he is its co-owner, because he committed domestic violence against relatives. Measures in the restrictive order in relation to the offender are taken to decide on the qualification of his actions and the decision on him in criminal proceedings. However, the danger of continuing or re-committing domestic violence, the occurrence of serious consequences for the victim remains after the case in court. Therefore, prohibitions to approach the victim at a certain distance, to be in a place of residence should not lose their force and relevance, and in turn, begin to play a preventive role as a measure of criminal law. The author proved the importance of expanding the list of «other measures of a criminal nature» by including a ban on approaching a certain distance and / or to certain persons, a ban on being in a certain place in Section XIV of the General Part of the Criminal Code of Ukraine.

scholarly journals BUKTI ELEKTRONIK SEBAGAI ALAT BUKTI YANG SAH DALAM HUKUM ACARA PIDANA / ELECTRONIC EVIDENCE AS AN ADMISSIBLE EVIDENCE IN CRIMINAL LAW

2017 ◽  
Vol 6 (3) ◽  
pp. 463
Author(s):  
NFN Ramiyanto
Keyword(s):  
Supreme Court ◽  
Criminal Procedure ◽  
Independent Evidence ◽  
Electronic Evidence ◽  
Procedure Code ◽  
Criminal Offenses ◽  
The Supreme Court ◽  
Criminal Procedure Law ◽  
Functional Equivalent ◽  
Admissible Evidence

KUHAP sebagai hukum acara pidana yang bersifat umum tidak mengakui bukti elektronik sebagai salah satu jenis alat bukti yang sah. Di dalam praktik, bukti elektronik juga digunakan sebagai alat bukti yang sah untuk membuktikan tindak pidana yang terjadi di pengadilan. Dari hasil pembahasan dapat disimpulkan, bahwa bukti elektronik dalam hukum acara pidana berstatus sebagai alat bukti yang berdiri sendiri dan alat bukti yang tidak berdiri sendiri (pengganti bukti surat apabila memenuhi prinsip/dasar dalam functional equivalent approach dan perluasan bukti petunjuk) sebagaimana dicantumkan dalam beberapa undang-undang khusus dan instrumen hukum yang dikeluarkan oleh Mahkamah Agung. Walaupun bukti elektronik tidak diatur dalam KUHAP sebagai lex generalis, namun untuk tercapainya kebenaran materiil dapat juga digunakan sebagai alat bukti yang sah untuk pembuktian seluruh jenis tindak pidana di pengadilan. Hal itu didasarkan pada pengakuan dalam praktik peradilan pidana, beberapa undang-undang khusus, dan instrumen yang dikeluarkan oleh Mahkamah Agung.The Criminal Procedure Code as a general criminal procedure does not recognize electronic evidence as one of the admissible types of evidence. In practice, electronic evidence is also used as an admissible evidence to prove the criminal offenses in court. From the results of the discussion it can be concluded that electronic evidence in criminal procedure law is a dependent evidence and an independent evidence (substitution of letter proof if it meets the principle of functional equivalent approach and expansion of evidence) as specified in several special laws and instruments issued by the Supreme Court. The electronic evidence is not regulated in the Criminal Procedure Code as a lex generalis, however, to achieve material truth it can also be used as a valid evidence for the provision of all types of criminal offenses in court. It is based on recognition in the practice of criminal justice, some special laws, and instruments issued by the Supreme Court.

PENALTIES PROVIDED FOR SERIOUS CRIMES IN THE CRIMINAL CODE OF UKRAINE

2018 ◽  
Author(s):  
Oleksandra Skok ◽  
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Criminal Code ◽  
Legal Analysis ◽  
Judicial Practice ◽  
Criminal Offenses ◽  
The Supreme Court ◽  
Special Part ◽  
The Right ◽  
National Police

The statistics of the Prosecutor General's Office on registered criminal offenses in the form of serious crimes for 2020 and 2021 were reviewed. Based on this, the number of serious crimes registered by the National Police of Ukraine during the reporting periods was determined. The provisions of the current Criminal Code of Ukraine, the Criminal-Executive Code of Ukraine, the Resolution of the Plenum of the Supreme Court No 7 of October 24, 2003 are analyzed, as well as some scientific positions of domestic scientists Knyzhenko O. O are taken into account. and Berezhnyuk V. M In addition, a review of the case law of the Supreme Court of Cassation on sentencing was studied. A thorough criminal-legal analysis of the sanctions of the articles of the Special Part of the Criminal Code of Ukraine in the part of punishments established for the category of serious crimes was carried out. Based on the analysis, it was determined which main and additional punishments are regulated in the sanctions of the articles of the Special Part of the Criminal Code of Ukraine for the investigated category of crimes. The quantitative and qualitative indicator of sanctions for serious crimes has been determined, which include: imprisonment for a definite term; punishments alternative to imprisonment; additional penalties. Legislative and doctrinal provisions on punishments in the form of imprisonment for a definite term, restriction of liberty, fine, correctional labor, arrest are considered. The judicial practice of Ukraine in the part of certain issues related to the execution of a penalty in the form of a fine and the replacement of a penalty in the form of a fine with a penalty in the form of correctional labor is analyzed. It is established that the Criminal Code of Ukraine, in the sanctions of the articles, provides for the application to a person who has committed a serious crime, punishment in the form of imprisonment, restriction of liberty, fine, correctional labor, arrest - as the main punishment. The range of additional punishments is defined, which determine: confiscation of property, deprivation of the right to hold certain positions or engage in certain activities and a fine.

scholarly journals Disparitas Penuntutan Pada Perkara Tindak Pidana Penganiayaan dalam Sistem Pemidanaan di Indonesia

2019 ◽  
Vol 1 (1) ◽  
pp. 66-78
Author(s):  
Benny Leonard Saragih ◽  
Ediwarman Ediwarman ◽  
Muaz Zul
Keyword(s):  
Supreme Court ◽  
Criminal Code ◽  
Public Prosecutor ◽  
Internal Factors ◽  
Legal Norms ◽  
The Public ◽  
Criminal Offenses ◽  
The Supreme Court ◽  
The Republic ◽  
Substantive Law

Difference in punishment or sentencing disparity is basically a natural thing because it can be said almost no case that is really the same. Disparity becomes a problem when the range of the sentence imposed differences between similar cases so large, giving rise to injustice and can give rise to suspicions in the community. Disparities in the Criminal (disparity of sentencing) is not the same as the application of criminal offenses against the same (same offense) or the criminal acts that are dangerous to be compared (offenses of comparable seriousness) without clear justification. Based on Law No. 16 of 2004 which replaced Law No. 5 of 1991 About the Prosecutor of the Republic of Indonesia is an institution in the field of prosecution of the main authority of the public prosecutor act prosecution about what is meant by the prosecution as well as the reference to the provisions of Article 1 point 7 and Article 137 Law No. 8 of 1981 on the Law of Criminal Procedure Code (Criminal Code). Research Methods in writing this thesis carried out by the method of normative law, namely analyzing and searching for answers to the problems raised by the substantive law / legal norms contained in the rules of law, the Supreme Court Regulation (PERMA), the Supreme Court Circular, and etc. Factors that cause the disparity criminal offense namely Legislation Provisions factors, internal factors and external factors.

scholarly journals ANALISA PEMBELIAN BARANG UNDERPRICED SEBAGI BENTUK KESALAHAN DELIK PENADAHAN: TINJAUAN YURIDIS YURISPRUDENSI MAHKAMAH AGUNG NOMOR 2/YUR/PID/2018

2020 ◽  
Vol 3 (1) ◽  
pp. 106
Author(s):  
Vina Putri Salim ◽  
Tsamara Probo Ningrum ◽  
Risma Cahya Yudita Pratama ◽  
Nur Fadilah
Keyword(s):  
Supreme Court ◽  
General Public ◽  
Market Price ◽  
Criminal Code ◽  
Conceptual Approach ◽  
Legal Rules ◽  
Criminal Offenses ◽  
Movable Object ◽  
The Supreme Court ◽  
Precautionary Measures

The purpose of this article is to find out the application of Supreme Court Jurisprudence Number 2 / Yur / Pid / 2018 which provides legal rules related to underpriced purchases as the fulfillment of the element "should be suspected that it was obtained from criminal offenses" in the offense. This research is legal research with a statutory approach and conceptual approach. The research results obtained are the application of the new legal rules in the Supreme Court Jurisprudence Number 2 / Yur / Pid / 2018 to the element of negligence in the offense delimitation in Article 480 of the Criminal Code. are required by law and do not exercise caution as required by law which is an element of negligence. In the element of not making guesses as required by law, it is related to the inner attitude of society in general, wherein movable objects the authorities are considered as the owner and society, in general, cannot know the market price of each movable object. This is different from immovable objects, where the authorities are not always the owners, where ownership is generally based on certificates so that the general public can know the price of the immovable object. In its development, registered and unregistered objects were born, whereas, in registered objects, the general public could find out the price of these registered objects, because ownership of these registered objects could be known publicly. About not taking the precautions required by law, which must be seen whether there is a behavior of the defendant to take preventive measures related to the origin of the goods, where when the buyer/seller has taken precautionary measures, it can be said that the buyer/seller has done the duty to be careful so that it cannot be said that negligence has occurred.

scholarly journals The Theory of Criminal Law Should Not Be Reduced to the Analysis and Criticism of Criminal Legislation

2019 ◽  
Vol 14 (1) ◽  
pp. 121-140
Author(s):  
Anatoly Naumov
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Constitutional Court ◽  
Legal Nature ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Criminal Legislation ◽  
Principle Of Legality

In both normative and sociological senses criminal law includes three components — criminal legislation, judicial practice, and criminal law doctrine, and the development of this branch of law is possible only in their unity. The criminal law doctrine is to a certain extent superior to the other components of the "triad" and involves the development of the branch’s principles, goals and objectives. At the same time, the improvement of criminal law is not the only goal of the theory of criminal law. It should not be limited only to criticism of the current legislation and proposals for its improvement. However, the vast majority of modern domestic criminal law publications, such as monographs, articles in legal periodicals, dissertations, are devoted to criticism of the current Criminal Code of the Russian Federation. Indeed, the current criminal law is not perfect, but the "imbalance" of research into the "law-making" side significantly reduces the scope of criminal law doctrine. And there will always be demand for theoretical studies on the analysis of the subject and method, system and objectives of criminal law, its sources.Debatable, for example, still is the issue of the legal nature of the decisions of the Plenum of the Supreme Court of the Russian Federation and, in particular, the judgments of the Constitutional Court of the Russian Federation. The explanations of the Plenum of the Supreme Court are a special kind of judicial interpretation and a fairly reliable tool for the courts to understand "the letter of the criminal law" and it’s applicability to the particular case. As for the assessment of the legal nature of the judgments of the Constitutional Court of the Russian Federation, the criminal law doctrine often fails to notice that they touch upon the methodological problems of the theory of criminal law. In relation to a number of criminal law prohibitions, judgments of the Constitutional Court of the Russian Federation are a source of criminal law, along with the Criminal Code. The Constitutional Court of the Russian Federation specified the most important principle of criminal law — the principle of legality and clarified the characteristics of criminality of socially dangerous acts prohibited by criminal law, which is directly related to the issue of criminal liability. In this sense, the Constitutional Court formulated a new and important addition to the content of the principle of legality — the certainty of criminal law rules, and, first of all, the criminal law prohibitions. Thus, the judicial authority overtook the criminal law doctrine in solving one of the most important issues for criminal proceedings.

scholarly journals FORMATION OF THE UKRAINIAN LEGAL DOCTRINE CONCERNING QUALIFICATION OF THE CRIMINAL OFFENSES COMMITTED BY THE ORGANIZED CRIMINAL GROUPS IN CONTEXT OF AMENDING CHANGES TO LEGISLATION ON CRIMINAL LAW

2021 ◽  
pp. 112-116
Author(s):  
D. Ptaschenko
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Criminal Law ◽  
System Analysis ◽  
Criminal Liability ◽  
Criminal Code ◽  
Legal Doctrine ◽  
Criminal Offenses ◽  
The Supreme Court ◽  
Criminal Groups

The Article 1 of the Constitution of Ukraine regulates: Ukraine is a sovereign and independent, democratic, social, legal state. One of the destabilizing factors in building the rule of law is the commission of criminal offenses by organized criminal groups. Due to the changes in the criminal legislation during the last two years, the criminal law norms have undergone significant changes, which directly or indirectly affect the qualification of criminal offenses committed by organized criminal groups. Given the changes in criminal law, the qualification of criminal offenses committed by organized criminal groups requires uniform systemic approaches, primarily at the level of judicial law enforcement practice. The formation of the Ukrainian legal doctrine on the qualification of criminal offenses committed by organized criminal groups is one of the significant auxiliary guidelines in the formation of such law enforcement practice. To achieve this goal and the defined objectives, the following methods were applied in the study: logical and normative – for the analysis of criminal law on the qualification of criminal offenses committed by organized criminal groups; system analysis – when considering judicial law enforcement practice (first of all, the Supreme Court and the Supreme Court of Ukraine) of the qualification of criminal offenses committed by organized criminal groups. The legislation strengthens criminal liability for criminal offenses by organized criminal groups, in particular, as evidenced by the amendments to the Criminal Code under the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Liability for Crimes Committed by the Criminal Community" dated by the 4th of June 2020. Before the formation of new approaches to the doctrine of criminal law and law enforcement judicial practice on the qualification of criminal offenses (crimes), a specific part of which is provided by h.ch. 1-5 art. 255 of the Criminal Code, the indirect reference is the provision of the resolution of the Plenum of the Supreme Court of Ukraine of December 23, 2005 №12 "On the practice of consideration by courts of criminal cases on crimes committed by stable criminal groups." Keywords: criminal offenses, criminal community, criminal organization, organized group, creation of a criminal community, leadership of a criminal community, organized criminal groups.

scholarly journals PEMIDANAAN TERHADAP PERBUATAN MENGHILANGKAN MAYAT YANG DILAKUKAN ANAK (STUDI TERHADAP PUTUSAN MAHKAMAH AGUNG NO. 774K / PID.SUS / 2015)

2018 ◽  
Vol 1 (1) ◽  
pp. 636
Author(s):  
Heppi Florensia ◽  
Mety Rahmawati
Keyword(s):  
Supreme Court ◽  
Criminal Code ◽  
District Court ◽  
Public Prosecutor ◽  
Court Ruling ◽  
Supreme Court Ruling ◽  
The Public ◽  
Criminal Offenses ◽  
The Supreme Court ◽  
Court Of Appeal

Criminalization of the offender especially in the perpetrators of children under age is as a sanction that tells implied to someone who performs acts meet certain conditions. Often in prosecuting a criminal case the Public Prosecutor is wrong in deciding what articles should be imposed on the perpetrator. As one case of Supreme Court verdict No.774K/PID.SUS/2015 with 16-year-old defendant Dicky Pranata prosecuted by the Prosecutor with Article 340 of the Penal Code juncto Article 56 of the Criminal Code is a criminal act of premeditated murder, in which the elements of Article 340 of the Criminal Code are not fulfilled the defendant's self but the existence of other crimes Article 181 of the Criminal Code of disappearance committed by the defendant. The defendant was sentenced to 10 years in prison at the District Court, while the defendant was released from the sentence of the Court of Appeal and Cassation. The problem in this research is whether the act of the perpetrator fulfills the elements in Article 340 juncto Article 56 paragraph (1) of the Criminal Code juncto Article 1 paragraph (3) SPPA Act and Article 181 of the Criminal Code? How to base criminal offenses in the Supreme Court ruling case No.774K/PID.SUS/2015? The researcher examines the problem with normative juridical method. Based on the analysis result that the defendant is not proven to commit element of crime Article 340 KUHP, but the existence of criminal act Article 181 of Criminal Code which has been done by defendant.

scholarly journals Court’s modification of category of gravity of the committed offence and implementation of compulsory measures set by the Article 92 of the Criminal Code of the Russian Federation: problems of theory, legislative regulation, and law enforcement

2021 ◽  
pp. 59-84
Author(s):  
Kirill Igorevich Nagornov
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Closed Type ◽  
The Supreme Court ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Scientific Doctrine

Leaning on the analysis of the provisions of current legislation, clarification of the supreme judicial authority, scientific doctrine, case law materials and statistics, this article explores the implementation of compulsory measures set by the Article 92 of the Criminal Code of the Russian Federation, after court’s modification of the category of gravity of the committed offence in accordance with the Part 6 of the Article 15 of the Criminal Code of the Russian Federation. The goal of this research lies in assessment from the perspective of the theory of criminal law of such specific procedure for implementation of disciplinary compulsory measures and herding to closed-type special institution, as well as identification of possible flaws and contradictions that may cause problems and ambiguous decisions in law enforcement practice. Attention is given to the existing contradictions between the provisions of criminal law and criminal procedure law, explanations of the Plenum of the Supreme Court of the Russian Federation, as well as legislative gaps and problems emerging in law enforcement practice in the context of provision set by the Article 92 of the Criminal Code of the Russian Federation in accordance with the Part 6 of Article 15 of the Criminal Code of the Russian Federation. Taking into account the sequence, grounds and conditions established by the legislator in the Part 6 of the Article 15 of the Criminal Code of the Russian Federation for the use of the latter, the conclusion is made on impossibility to apply compulsory educational measures in line with this norm. The article also substantiates the position infeasibility of preliminary imposition of penalty (de lege ferenda) on release of such with implementation of compulsory measures set by Part 1 and 2 of the Article 92 of the Criminal Code of the Russian Federation. The author also offers to supplement and rectify certain provisions of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 of May 15, 2018.

The Nature of the Institution of Confiscation of Property and its Application

2021 ◽  
pp. 93-104
Author(s):  
Vladimir K. Andrianov ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Liability ◽  
Research Process ◽  
Criminal Code ◽  
Difficult Problem ◽  
Criminal Proceedings ◽  
Legal Nature ◽  
The Supreme Court ◽  
The Russian Federation

Legislative reform in respect of forfeiture, having returned it in 2006 in the Criminal Code of the Russian Federation, but in an altered status – other measures of a criminal-legal nature – after its exclusion in 2003 as a form of punishment, made a confiscation as one of the most difficult problem and controversial in the doctrine of criminal law. This is due not only to the attribution of confiscation of property to the category of other measures of a criminal-legal nature as in itself still insufficiently defined and highly controversial, but also by the inter-sectoral nature of the problem of confiscation, regulated not only by the norms of criminal, but also by criminal procedural legislation, as well as interconnected with measures of civil law – the return of property to the rightful owner, and compensation for any damage. Understanding the complexity of the legal nature of the confiscation of property lead to quite frequent changes in the Chapter 151 of the Criminal Code of the Russian Federation (19 of federal laws on amendments), as well as cause a lot of questions of their use in practical lawyers. This is evidenced by the resolution adopted by the Plenum of the Supreme Court of the Russian Federation of June 14, 2018 No. 17 «On some issues related to the use of confiscation of property in criminal proceedings». The target of this article is to study the confiscation of property as another measure of a criminal-legal nature by resolving theoretical and applied issues of the application of Chapter 151 of the Criminal Code of the Russian Federation. An important role in the research process was played by work on the problems of other measures of a criminal-legal nature, confiscation of property, as well as published court practice. The methodological basis of the study were the principles of the dialectical method of cognition, as well as general scientific and private scientific methods (sociological, system-structural and formal-logical) methods. In the proposed publication, based on the analysis of special scientific literature and legal positions of the Supreme Court of the Russian Federation, such complex issues as the legal nature of confiscation in terms of its generic and specific characteristics, correlation with criminal punishment and criminal liability are considered, and specific recommendations are given on topical issues of application of the Chapter 151 of the Criminal Code of the Russian Federation.

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