scholarly journals Criminal law characteristic of certain restrictive measures

2021 ◽  
pp. 251-260
Author(s):  
YU.M. Plish
Keyword(s):  
Domestic Violence ◽  
Criminal Law ◽  
Criminal Code ◽  
Scientific Article ◽  
New Concepts ◽  
The Status ◽  
General Part ◽  
Legislative Changes ◽  
The Moment ◽  
Restrictive Measures

Domestic criminal law is being in constant dynamics, so it means that the norms of the current legislation are being improved, new, previously unknown, criminal-legal categories are being introduced, recommendations of in¬ternational institutions are taken into account, etc. Not an exception in this process is chapter XIII-1 of the General part of the Criminal Code of Ukraine, which regulates restrictive measures (these provisions came into force on January 11, 2019). From the moment of the regulation of restrictive measures in the Criminal Code of Ukraine, they have acquired the status of criminal-legal measures. Restrictive measures have a specific purpose - to protect the victim from a person who has committed a socially dangerous act, to protect against committing a socially danger¬ous act in relation to the victim in the future, to minimize the interaction between the person, who is in a dangerous state, and the victim, if such has the significant risks.This scientific article analyzes the conditions of application of restrictive measures in criminal law, in particular, it is determined that the concept of «crime related to domestic violence» is broader than the concept of «domestic violence» in Article 126-1 of the Criminal Code of Ukraine and can be used not only in the commission of this crime, but also in other socially dangerous acts that have signs of domestic violence; some considerations regarding the improvement of the grounds for the application of restrictive measures are highlighted; the correlation between the requirements of international acts and current provisions on restrictive measures is considered.A detailed analysis of the types of restrictive measures that are in the Criminal Code of Ukraine was made. The need for some legislative changes and additions is argued, this concerns the wording of the names of types of restric¬tive measures; new concepts that should be enshrined at the legislative level; meaningful content of such varieties. The conclusion was made that the regulation of restrictive measures in the Criminal Code of Ukraine is a positive step, but due to the novelty of this legal category there is a need for their partial editing and changes.

scholarly journals Grounds and Conditions for the Application of Restrictive Measures Applied to Persons who have Committed Domestic Violence

2021 ◽  
pp. 100-110
Author(s):  
Tetiana NIKIFOROVA
Keyword(s):  
Domestic Violence ◽  
Criminal Law ◽  
Local Governments ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Offense ◽  
Restrictive Measure ◽  
The Law ◽  
Restrictive Measures ◽  
National Police

The grounds and conditions for the application of restrictive measures applied to persons, who have committed domestic violence, are provided in Art. 911 of the Criminal Code of Ukraine. It is established that in the science of criminal law there is a unanimous position that the basis for the application of restrictive measures under Art. 911 of the Criminal Code is the commission by a person of a crime related to domestic violence, and the conditions are: 1) sentencing a person not related to imprisonment; 2) release of a person from criminal liability on the grounds provided by the Criminal Code; 3) release of a person from punishment on the grounds provided by the Criminal Code. These conditions are alternative. The content of the concept of «crime related to domestic violence» is analyzed and it is established that it should be understood more broadly than the act provided for in Art. 1261 of the Criminal Code «Domestic Violence». It is proposed to add to Art. 911 of the Criminal Code a note explaining the meaning of the term «criminal offense related to domestic violence», where it is necessary to note that this concept is broader than the crime under Art. 1261 of the Criminal Code. The content of each of the conditions of application of restrictive measures is analyzed. It has been established that in the application of restrictive measures during the imposition of non-custodial sentences in practice there are problems with the interpretation of the relevant concept. It is proposed to clarify the meaning of the concept of «punishment not related to imprisonment» in Art. 911 of the Criminal Code. It is also established that the application of restrictive measures in releasing a person from criminal liability is a declarative norm and is subject to exclusion from the conditions of application of restrictive measures due to the incompatibility of the latter with the nature of exemption from criminal liability. The legislation clearly regulates the procedure for applying restrictive measures to persons released from serving a probation sentence. A number of problems that arise during the control over the behaviour of persons to whom restrictive measures have been applied by the probation authorities have also been identified. The solution to these problems is possible by harmonizing the provisions of the Criminal Code and the Law of Ukraine «On Probation», as well as other regulations governing the activities of probation bodies. It is proposed to refer the application of restrictive measures to supervisory probation, which will lead to a number of changes to the articles of the Law of Ukraine «On Probation» in terms of regulation of supervisory probation, to refer to probation subjects persons subject to restrictive measures, and to exclude the fact that it is assigned to a person released from serving a probation sentence, and in the regulations governing the development and implementation of probation programs to provide for their application to persons to whom restrictive measures have been applied. It is concluded that the probation body should be endowed with a coordinating function to implement all restrictive measures and it is necessary at the level of bylaws to establish a clear procedure for interaction of the probation body with the National Police, local state administrations and local governments to control the behaviour of individuals, which the appropriate restrictive measure is applied.

scholarly journals On determining the circle of domestic violence victims.

2021 ◽  
Vol 3 (3) ◽  
pp. 234-238
Author(s):  
Olha Bespal
Keyword(s):  
Domestic Violence ◽  
Criminal Law ◽  
Family Relations ◽  
Practical Importance ◽  
Criminal Code ◽  
Criminal Offense ◽  
Seeking Help ◽  
The Law ◽  
Restrictive Measures ◽  
Positive Step

It was stated that the problem of domestic violence for Ukraine remains relevant. This is evidenced not only by official statistics, but also by the number of people seeking help. A positive step in combating domestic violence is to complement the Criminal Code of Ukraine Art. 126-1. However, the disposition of this article contains some inaccuracies, among them the need to clarify which persons fall under the protection of this article. There is a similar problem in the draft Criminal Code of Ukraine, which the working group is currently working on. The article notes that an understanding of who may be victims of domestic violence as a criminal offense has a great scientific and practical importance. Because it will affect not only the correct criminal law qualification and the imposition of a fair and sufficient punishment, but also the application (or non-application) of restrictive measures against the offender, depending on how the person's actions will be qualified. The author analyzed the concepts of «close relations», «family relations», «close persons». As a result, it was concluded that these categories do not cover all persons protected by the Law of Ukraine «On Prevention and Counteraction to Domestic Violence». Therefore, to eliminate the inconsistency of criminal law with this Law, it is proposed in the disposition of Art. 126-1 «Domestic violence» of the Criminal Сode of Ukraine the phrase «concerning the spouse or the former spouse or other person with whom the guilty is (was) in family or close relations» and also in Art. 4.7.3. «Domestic violence» of the draft Criminal Code of Ukraine shall replace the phrase «concerning a spouse or other close person, including a former one» replaced by «concerning a person covered by the Law of Ukraine «On Prevention and Counteraction to Domestic Violence».

Legislative Use of Attributes of the Status Role Positions of the Guilty Person and the Victim as a Reflection of the Trend of Specialization in the Russian Criminal Law

2021 ◽  
pp. 236-242
Author(s):  
Yuliya S. Karavaeva ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Policy ◽  
Criminal Code ◽  
Arithmetic Operations ◽  
Legal Method ◽  
The Status ◽  
Special Rules ◽  
Legislative Changes ◽  
High Dynamics ◽  
Criminal Legislation

The aim of the article is to assess the frequency and validity of the use of the status role characteristics of the guilty person and/or the victim in the construction of special elements of crimes in the context of the issues of the redundancy of the current criminal legislation specialization as the dominant trend of its development. The empirical basis of the study is the numerical values obtained in the course of arithmetic operations to determine the dynamics of legislative changes in the Criminal Code of the Russian Federation and the frequency of using the status role characteristics of the guilty person and/or the victim in special norms. The methodological basis of the work is the formal legal method, which allows working directly with the text of the criminal law in order to both conclude about the high dynamics of its changes and analyze new special norms, which ultimately led the author to the conclusion about the redundancy of its specialization. In addition, the method of mathematical calculations (simplest arithmetic operations), as well as other general scientific methods (analysis, synthesis) were used. Within the framework of a critical understanding of the legislative criminal legal activity for the period of 2018-2020, attention is drawn to its orientation and technical and legal side, the content of which indicates the predominance of the trend of specialization. Being natural and necessary, specialization allows reflecting the differentiation of legal relations as a process that takes place objectively, by differentiating the law. In the case of criminal law, this involves the emergence of special rules for the purpose of differentiating liability. The analysis of some of the special norms that have reappeared in the Special Part of the Code allows concluding that the legislator has chosen a casual way of presenting them, which, taking into account the high dynamics of lawmaking in criminal law, clearly indicates that the trend of specialization has acquired a redundant character. Taking into account the conclusion about the redundancy of specialization of the criminal law, it is possible to overcome it both by rejecting unjustified, reactive criminalization that simulates an active criminal policy of combating crime and by moving to unification processes in terms of eliminating terminological errors, violations of the requirements of systemic legislation, and reducing regulatory material.

Forty Years of Criminal Law: Developments in Case Law Re The Requirement of Fault

1990 ◽  
Vol 24 (3-4) ◽  
pp. 560-579
Author(s):  
Miriam Gur-Arye
Keyword(s):  
Criminal Law ◽  
Case Law ◽  
Criminal Code ◽  
The State ◽  
Penal Law ◽  
General Part ◽  
The Law ◽  
Legislative Changes

In the field of criminal law there is as yet no fully original Israeli code. The Penal Law, 1977, is a new version of the Criminal Code Ordinance, 1936, combined with the various amendments thereto introduced by the Knesset since the establishment of the State. Most legislative changes affect specific offences. The intervention of the Israeli legislator in the general part of the Law, has been most limited. The only context in which the Israeli legislator has laid down his own arrangements is in the application of the criminal law. Under the Criminal Code Ordinance (sections 6-7) its scope was territorial. However, in 1955 the Penal Law Revision (Offences Committed Abroad) Law, 1955 was passed by the Knesset, and this extended the provisions of the Ordinance to certain offences committed outside the territory of the State. In the course of the years, the extra-territorial scope of the criminal law has expanded.

scholarly journals Direction for the program for abusers or probation program: a practical aspect

2021 ◽  
pp. 24-28
Author(s):  
Tetiana NIKIFOROVA
Keyword(s):  
Domestic Violence ◽  
Criminal Law ◽  
Criminal Code ◽  
Practical Aspect ◽  
Local State ◽  
Practical Application ◽  
Restrictive Measure ◽  
New Type ◽  
And Performance ◽  
Restrictive Measures

Introduction. Restrictive measures applied to perpetrators of domestic violence are a relatively new type of criminal law measure provided for in current criminal law. The legislative and scientific novelty of these measures, the inconsistency norms of legislative acts, which regulate the procedure for their appointment and implementation, cause problems and difficulties in their practical application. Purpose. Analysis of the practice of restrictive measures provided for in paragraph 5 of Part 1 of Art. 91-1 of the Criminal code of Ukraine, revealing of problems and difficulties of their appointment and performance and statement of offers concerning possible overcoming of these problems, by elimination of legislative gaps and contradictions. Results. The article analyzes the practice of prescribing and implementing such restrictive measures applicable to perpetrators of domestic violence as "direction for program for abusers" and "direction for probation program". Problems and difficulties that arise due to the ambiguity of the wording of criminal law, the inconsistency of regulations governing the appointment and implementation of relevant measures, as well as the lack of professionalism of the judges. In particular, it was established that the judges did not specify which restrictive measure provided for in paragraph 5 of Part 1 of Article 91-1 of the Criminal Code of Ukraine should be applied to the convict, because it contains two different in content and procedure. This makes it impossible to enforce the sentence. Also, the lack of a mechanism for interaction of probation authorities with local state administrations and local self-government authorities makes it impossible for probation authorities to exercise control over convicts who are sent to undergo a program for abusers. Conclusion. It is proposed to amend Art. 91-1 of the Criminal code of Ukraine, the Law of Ukraine "About probation" and other regulatory legal acts, for the purpose of elimination of the analyzed problems of application of restrictive measures.

scholarly journals Restrictive measures of a criminal law nature in the system of legal regulation of prevention and to combat domestic violence

2021 ◽  
Author(s):  
А. Ye. Oliinychenko
Keyword(s):  
Domestic Violence ◽  
Criminal Law ◽  
Legal Regulation ◽  
Criminal Code ◽  
Security Measures ◽  
Criminal Offense ◽  
Preventive Work ◽  
Restrictive Measure ◽  
Restrictive Measures ◽  
Temporary Injunction

The article is devoted to the study of the system of state measures applied to persons, who are suspected, accused of committing or having committed domestic violence, as well as determining the place of restrictive measures of a criminal law nature in the proposed system. For this purpose, it is necessary to conduct an analysis of the legislative regulation of state measures applicable to persons suspected of committing or having committed domestic violence at all levels of №rmative legal regulation; to delimitate the terms “restrictive measure”, “precautionary measure”, “restrictive prescription” and “temporary prohibition injunction” and to analyse the expediency of the new term “security measures” proposed by the draft of the new Criminal Code of Ukraine. The result of the conducted study is an analysis of the existing state measures to combat domestic violence in order to form a system of special measures to combat domestic violence, as well as examination of the issue concerning the place of restrictive measures of a criminal law nature  applicable to persons having committed domestic violence. So, today, the system of special measures to combat domestic violence consists of types of measures to temporarily restrict the rights and obligations of the perpetrator who committed domestic violence, as well as to a person suspected, accused or committed a criminal offense related to domestic violence. The types of such measures are taking the offender into preventive registration and carrying out preventive work with him; referral of the offender to the offender program; a temporary injunction; a restrictive prescription of a civil nature a restrictive measure of a criminal procedure nature applicable to persons suspected or accused of committing domestic violence; and  a restrictive measure of a criminal nature nature applicable to persons who have committed domestic violence having different preconditions, grounds , subjects and the term of appointment, but have the sole intention of protecting persons suffering from domestic violence.

CODIFICATION PROBLEMS OF NECESSARY DEFENSE AFFECTING ITS IMPLEMENTATION

2020 ◽  
Vol 10 (3) ◽  
pp. 155-163
Author(s):  
PETRUSHENKOV ALEXANDR ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Educational Institutions ◽  
Scientific Article ◽  
Teaching Staff ◽  
Self Defense ◽  
Special Part ◽  
The Russian Federation ◽  
Legislative Activities

Objectives. The goal of scholarly research is to develop proposals for amendments in criminal law General and Special part of Criminal code of the Russian Federation governing self-defense. The scientific article identifies legislative gaps and contradictions that hinder the effective implementation of the necessary defense and require prompt solutions. Methods. The article analyzes such concepts as “self-defense”, “public assault”, “excess of limits of necessary defense”, “violation of the conditions of lawfulness of necessary defense”, “surprise assault”, “rights defending or other persons, interests of the state”. The use of logical and comparative legal methods allowed us to develop proposals for making changes to the criminal law norms that establish the necessary defense. Conclusions. The article shows the conflicts and gaps legislative recognition of self-defense and, in this regard, the complexity of its implementation in the articles of the Special part of the Criminal code of the Russian Federation and practical application. Changes are proposed to the criminal law norms regulating the necessary defense, both in the General and in the Special part of the Criminal code of the Russian Federation. Sense. The content of the scientific article can be used by the teaching staff of higher educational institutions when teaching the course “Criminal law”. The results of the work can be useful to persons who carry out legislative activities in the field of criminal law. The leitmotif of the article can be used in the preparation of dissertation research.

scholarly journals QUALIFICATION OF CRIMES AGAINST LIFE: COMPARATIVE LEGAL ANALYSIS

2021 ◽  
Vol 1 (1) ◽  
pp. 61-67
Author(s):  
Olha Peresada ◽  
Keyword(s):  
Public Relations ◽  
Criminal Law ◽  
Human Life ◽  
Criminal Code ◽  
Legal Analysis ◽  
Right To Life ◽  
Special Part ◽  
Criminal Protection ◽  
The Moment ◽  
The Right

The article considers topical issues of definition and qualification of crimes against human life in Ukraine and abroad. It is proved that the problematic issue of criminal law protection of human life is a significant differentiation of approaches to determining the moment of its onset, which reflects the medical and social criteria for the formation of an individual who has the right to life. It is shown that Ukrainian criminal law gives a person the right to life from birth, while the correct approach is to recognize the beginning of human life and appropriate criminal protection from the moment of onset 10 days after conception, which is consistent with European experience (in particular, France) and sufficiently reflects the medical features of the period of formation of a full-fledged embryo. The article also addresses the issue of the fact that Section II of the Special Part of the Criminal Code of Ukraine combines encroachment on two different generic objects - public relations for the protection of life and public relations for the protection of personal health. This provision of the criminal law of Ukraine does not correspond to the international practice on this issue. In addition, it is reasonable to believe that the two relevant categories of the object of criminal encroachment cannot be considered similar, as such an approach in certain cases can significantly complicate the classification of a criminal offense. It is emphasized that, given the exceptional importance of criminal law protection of human life, it is necessary to formulate a separate section of the Special Part of the Criminal Code of Ukraine, which covers only crimes against life as the main object of criminal encroachment.

scholarly journals Sex and gender characteristics in the Criminal Code of the Republic of Croatia with special reference to the criminal offences of rape and domestic violence

Temida ◽  
2013 ◽  
Vol 16 (1) ◽  
pp. 33-54
Author(s):  
Marissabell Skoric
Keyword(s):  
Domestic Violence ◽  
Social Relations ◽  
Criminal Law ◽  
Gender Stereotypes ◽  
Statistical Data ◽  
Criminal Code ◽  
Criminal Offence ◽  
Male And Female ◽  
Female Sex ◽  
The Republic

The study deals with the issue of whether the norms of criminal law make a distinction between male and female sex with regard to the perpetrator of the criminal offence as well as with regard to the victim of the criminal offence and also the issue of whether male or female sex have any role in the criminal law. It is with this objective in mind that the author analyzed the provisions of the Criminal Code of the Republic of Croatia and statistical data on total crime in the Republic of Croatia and the relation between male and female perpetrators of criminal offences. The statistical data reveal that men commit a far greater number of offences than women. Apart from this, women and men also differ according to the type of the criminal offence they tend to commit. Women as perpetrators of criminal offences that involve the element of violence are very rare. At the same time, women are very often victims of violent offences perpetrated by men, which leads us to the term of gender-based violence. Although significant steps forward have been made at the normative level in the Republic of Croatia in defining and sanctioning of genderbased violence, gender stereotypes can still be observed in practice when sexual crimes are in question so that we can witness domestic violence on a daily basis. All of this leads to the conclusion that it is necessary to make further efforts in order to remove all obstacles that prevent changes in social relations and ensure equality between women and men, not only de jure but also de facto.

THE FUNDAMENTAL HUMAN RIGHT TO A FAIR TRIAL AS AN OBJECT OF PROTECTION OF THE INSTITUTION OF LEGAL RESPONSIBILITY OF A JUDGE

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Special Functions ◽  
Criminal Code ◽  
Fair Trial ◽  
Legal Responsibility ◽  
Scientific Article ◽  
Human Right ◽  
Protective Function ◽  
Legal Norms ◽  
The Status ◽  
Key Aspects

The scientific article reveals the key aspects of ensuring the fundamental human right to a fair trial as an object of protection of the institution of legal responsibility of a judge. It has been established that the basic principles of ensuring the human right to a fair trial are governed by the norms and provisions of such documents as: the Criminal Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Ukraine on Administrative Offenses, the Code of Labor Laws of Ukraine, the Law of Ukraine «On the Judicial System and the Status of Judges», Resolution of the Supreme Administrative Court of Ukraine of 15.09.2011 No. П/9991/335/11. It was found that the object of a disciplinary offense of a judge is a set of rights and duties of a judge to the legal and fair administration of justice and the fulfillment of other duties assigned to him by the judicial and procedural legislation. It was determined that today the judicial authorities in Ukraine have adopted and put into effect the Internal Labor Regulations of Courts. The functions of a judge's legal responsibility were considered and it was found that they are implemented at the general social level (they consist in achieving control over the judge's behavior in accordance with special legal norms), at the general legal level (they consist in the restoration of rights that were violated, and compensation for expenses incurred to restore rights, as a result of the commission of illegal actions by the judge; prevention of the commission of offenses by the judge; punishment of the judge and the imposition of restrictions on his rights on legal grounds as a result of the imposition of additional legal obligations on him), the level of aggregate (general) functions of legal responsibility (consists in the fact that legal responsibility judges acts as the basis of social development and is determined under the influence of the development of legal norms) and the level of special functions of bringing a judge to legal responsibility (consists in exercising influence on the regulation of legal relations between a judge and society). It has been proven that the key functions of a judge's legal responsibility are the punitive function, protective function, preventive function and the function of ensuring the activity of the judge and his behavior in accordance with special professional standards. It is proposed to conduct a comprehensive study of the problems of ensuring human rights to a fair trial, based on the peculiarities of bringing a judge to legal responsibility for unfair, illegal and unjust in violation of the standards and requirements for fulfilling official duties, with the prospects for further research.

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