scholarly journals Implikasi Putusan Hakim Dalam Penetapan Sanksi Di Bawah Minimum Terhadap Tindak Pidana Narkotika

2019 ◽  
Vol 3 (1) ◽  
pp. 129-146
Author(s):  
Endy Ronaldi ◽  
Dahlan Ali ◽  
Mujibussalim Mujibussalim
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Research Method ◽  
Court Decisions ◽  
The Supreme Court ◽  
The Law ◽  
The One ◽  
Principle Of Legality

Tindak pidana narkotika merupakan kejahatan luar biasa sehingga menjadi prioritas pemerintah untuk diperangi. Penanggulangan tindak pidana narkotika diatur dalam Undang-Undang No. 35 Tahun 2009 tentang Narkotika. Salah satu pengaturan dalam undang-undang tersebut adalah pemberian sanksi di bawah minimum melalui putusan hakim. Sebagaimana kasus yang terjadi dalam Putusan Nomor 64/PID/2012/PN Sigli, Putusan No. 1/pid.sus/2016/PN Cag. (narkotika) dan Putusan No. 14/pid.sus/2016/PN Cag. Adapun permasalahan yang dikaji yaitu faktor penyebab hakim memutuskan sanksi di bawah minimum kepada pelaku narkotika dan implikasinya. Metode penelitian yang digunakan adalah metode yuridis normatif dengan mengkaji aspek normatif atas permasalahan yang dikaji. Pendekatan yang dilakukan adalah pendekatan kasuistik dengan menelaah putusan pengadilan. Putusan pengadilan dengan penetapan sanksi di bawah minimum disatu sisi bertentangan dengan asas legalitas dalam hukum pidana. Sehingga hal ini diakomodir dalam Surat Edaran Mahkamah Agung No. 3 tahun 2015. Narcotics crimes are extraordinary crimes so that become government priorities to be minimized. Tackling narcotics crime is regulated in Law No. 35 of 2009 concerning Narcotics. One of the regulations in the law is to impose sanctions below the minimum through a judge's decision. As the case with is the Decision Number 64/PID/2012/PN Sigli. The problems studied are the factors that cause the judge to decide the minimum sanctions for narcotics and their implications. The research method used is a normative juridical method by examining the normative aspects of the problem under study. The approach taken is a casuistic approach by examining court decisions. Court decisions with the determination of sanctions below the minimum on the one hand are contrary to the principle of legality in criminal law. So that accommodated in the Supreme Court Circular No. 3 of 2015.

scholarly journals URGENSI DAN PENGATURAN UU TENTANG CONTEMPT OF COURT UNTUK MENJAMIN HARKAT, MARTABAT DAN WIBAWA PERADILAN

2015 ◽  
Vol 4 (2) ◽  
Author(s):  
Aditya Wisnu Mulyadi
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Research Method ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Judicial Process ◽  
The Press ◽  
The Supreme Court ◽  
The Law ◽  
Good Attitude

The phenomenon of the Contempt of Court is an event that is rife in Indonesia lately. It is considered to reduce the dignity, majesty and authority of the judiciary and its apparatus. Particularly the dignity and authority of the judge. Attitudes and actions displayed by the search for justice, legal practitioners, the press, political and social organizations, NGOs, academics, judicial commission, as well as various other parties in such a way can be categorized injure the dignity, majesty and authority of the judiciary, good attitude and actions directed against the judicial process, judicial officials, as well as court decisions. Lack of strict legal instruments and adequate to serve as guidelines and benchmarks to judge such a phenomenon is made Contempt of Court always the case. View of the judge is an arm of God would have been contrary to Contempt of Court. The judge in charge of prosecuting and providing justice for justice seekers should not accept the bad treatments. This study is based on normative research method using statutory approach and conceptual approaches. Legislation that used is Law No. 4 of 1985 on the Supreme Court, Code of criminal law, the law book of the law of criminal procedure, the draft book of the Criminal Justice Act 2012 and draft the Code of Criminal Procedure 2012. This research is expected to contribute significantly for the creation benchmarks and appropriate guidelines in terms of the establishment of regulations and legislation on Contempt of Court Act

scholarly journals The Law as a Drawbar, or Judicial Arbitrariness: Recidivism = Repetition of Crimes in the Framework of Circumstances Aggravating the Punishment

2019 ◽  
Vol 73 (2) ◽  
pp. 75-81
Author(s):  
Я. Г. Лизогуб
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Current Problem ◽  
Criminal Code ◽  
Court Decisions ◽  
Criminal Punishment ◽  
National Courts ◽  
The Supreme Court ◽  
Public Risk ◽  
The Law

The author has studied the current problem in Ukrainian criminal law – the problem of the courts’ understanding of the general jurisdiction of the repetition of offences, as well as their recidivism in the framework of the circumstances aggravating criminal punishment. Attention at the beginning of the paper, has been paid to the importance of understanding the regulatory act as the main source of criminal law in Ukraine. It has been demonstrated that it is the regulatory act that should determine the rules, which should be obeyed by the judicial authorities of Ukraine. It has been emphasized that it is necessary to take into account the law while interpreting the prescriptions of normative acts by the national courts; it has been stressed that such interpretation should proceed from the definitions and formulations available, first of all, in the legislation. The author has emphasized on the importance of adhering to the rules and regulations, in the course of such interpretation, used in the law without such unreasonable extension or distortion of their content by relevant court decisions. Having analyzed the relevant Resolution of the Plenum of the Supreme Court of Ukraine, as well as the verdict of one of the Courts of Appeal of Ukraine, the author tries to prove that the aforementioned courts violated the limits of its interpretation in explaining the provisions of the criminal law on repetition of offences and recidivism, while unjustifiably giving the value of one criminal feature to another one. According to the author, these judicial authorities have formally taken the formulation of the content of the repetition of offences and recidivism, which are legally saturated in the current Criminal Code of Ukraine. Thus, they actually ignored the increased public risk of recidivism against the backdrop of the repetition of offences. The specificity of committing the offenses inherent to the recidivism is not taken into account, when a person has already a previous conviction for unlawful activity, as well as the fact that such crimes are usually characterized in terms of their consistency and randomness. On this basis, the author has substantiated the incorrectness (criminal injustice) of the approach recommended by the Plenum of the Supreme Court of Ukraine to the application of the institutions of recidivism and the repetition of offences in deciding the issue of punishment. Proper arguments have been provided. Specific conclusions have been formulated.

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Administrative Law ◽  
The State ◽  
Government Officials ◽  
Criminal Process ◽  
The Supreme Court ◽  
State Finance ◽  
The Law ◽  
To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

12. Theft

2020 ◽  
pp. 356-406
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Civil Law ◽  
The Supreme Court ◽  
The Law ◽  
Definition Of ◽  
Court Of Appeal

This chapter examines the law governing theft. It considers the extent to which the criminal law of theft conflicts with civil law concepts of property; whether it is possible to steal property that belongs to oneself; the types of property that may be stolen; and the extent to which it is possible to provide a definition of ‘dishonesty’. The test for dishonesty has been fundamentally altered by the Supreme Court and the Court of Appeal, developments which are analysed in this chapter.

scholarly journals ВПЛИВ СУДОВОЇ ПРАКТИКИ ВЕРХОВНОГО СУДУ УКРАЇНИ НА СИСТЕМУ ДЖЕРЕЛ ЦИВІЛЬНОГО ТА ЦИВІЛЬНО-ПРОЦЕСУАЛЬНОГО ПРАВА УКРАЇНИ

2019 ◽  
Vol 12 ◽  
pp. 245-256
Author(s):  
А. І. Дрішлюк
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Scientific Article ◽  
Court Decisions ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Author Position ◽  
Research Author

Наукова стаття присвячена визначенню значення рішень Верховного Суду України, прийнятих за результатами розгляду заяв про перегляд судових рішень з мотивів неод­накового застосування судом (судами) касаційної інстанції одних і тих самих норм ма­теріального права в аналогічних правовідносинах, порядку і її вплив на систему джерел цивільного і цивільно-процесуального права, після законодавчого закріплення обов'язко­вості рішень Верховного Суду України для всіх суб'єктів владних повноважень (суб'єктів правозастосовчої діяльності). На підставі проведеного дослідження сформульована авторська позиція щодо систе­ми джерел цивільного права, судової практики, а також впливу останньої на трансфор­мацію системи джерел цивільного та процесуального права України на сучасному етапі її розвитку.   The scientific article is sanctified to determination of value of decisions of the Supreme court of Ukraine, statements accepted on results consideration about the revision of court decisions on reasons of different application by the court (by courts) of appeal instance of one the same norms of material right in analogical legal relationships, order and her influence on the system of sources civil and civil judicial law of Ukraine, after legislative fixing of obligatoryness of decisions of the Supreme court of Ukraine for all the subjects of imperious plenary powers (subjects of law using activity). On the basis of the conducted research author position is formulated in regard to the system of sources civil law, judicial practice, and also the influence of the last on transformation the system of sources civil and civil judicial law of Ukraine on the modern stage of its development.

scholarly journals Binding Nature of the Supreme Court of the Russian Federation Explanations in Criminal Law

Lex Russica ◽  
2021 ◽  
pp. 95-107
Author(s):  
I. A. Klepitskiy
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
General Rule ◽  
Criminal Cases ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Nulla Poena Sine Lege ◽  
The Russian Federation ◽  
The Law

The question of the legal nature and the binding nature of explanations of the Supreme Court of the Russian Federation remains debatable in the literature. When considering criminal cases, the courts do not always follow the decisions of the Plenum of the Supreme Court. It seems that the explanations of the Supreme Court, while not being a source of criminal law, are nevertheless binding on courts and officials applying the norms of criminal law. This is a general rule, to which there are exceptions. First, there are erroneous explanations of the Supreme Court, which are not based on the established judicial practice and are not supported by it. Second, there are outdated explanations of the Supreme Court that do not meet modern legal realities. Third, there are explanations of the Supreme Court, which, in relation to a particular situation, require an expansive or restrictive interpretation. In these three situations, the Supreme Court’s explanations do not bind the law enforcement officer. The binding nature of the Supreme Court’s explanations is determined by the value of the law as such. Questions of law require a uniform resolution. An alternative to a uniform interpretation of the law is arbitrary administration. Arbitrary administration is not within the competence of the judge. There is no case law in Russia. The works of legal scholars in modern Russia also cannot satisfy the need for a uniform interpretation of the law. The significance of the explanations of the Supreme Court determines the high requirements for their quality. The Supreme Court’s explanations should not directly contradict the law. The Supreme Court’s explanations should not change unless there is an urgent need to do so. The rule nullum crimen, nulla poena sine lege, being an achievement of legal culture, binds the Supreme Court. By clarifying the practice of applying the law, the Supreme Court forms and preserves judicial doctrine, thereby providing legal certainty.

scholarly journals Analisis Yuridis terhadap Kasus Gugatan Perbuatan Melawan Hukum atas Ketidakabsahan Peralihan Hak Milik Benda Bergerak (Studi Kasus Putusan Mahkamah Agung Nomor 1081/K/PDT/2018)

Kosmik Hukum ◽  
2020 ◽  
Vol 20 (1) ◽  
pp. 21
Author(s):  
Fathalya Laksana
Keyword(s):  
Supreme Court ◽  
Research Method ◽  
Secondary Data ◽  
Supreme Court Decision ◽  
Civil Code ◽  
Court Decision ◽  
Analysis Method ◽  
The Supreme Court ◽  
Analytical Research ◽  
The Law

The legal requirements are regulated in Article 1320 of the Civil Code (KUHPerdata). If the valid conditions of the promise are not fulfilled, then the law that results is that the agreement can be canceled or null and void. In the Court's practice contained in the Supreme Decision Number 1081K / PDT / 2018, there was a sale and purchase agreement between the Plaintiff's husband and the Defendant, the sale and purchase agreement was made by the Plaintiff's partner without the consent of the Plaintiff as his legal wife. Supreme Court Decision No. 1081K / PDT / 2018 stated that the sale and purchase agreement was invalid and null and void. Apart from that, in its decision, the Defendant's UN Supreme Court had committed an illegal act. The research method used is a normative juridical approach using secondary data obtained from literature studies, namely statutory regulations, legal theories, and the opinions of leading legal scholars. This research uses descriptive analytical research specifications that describe the regulations that are in accordance with legal theories that oversee the implementation practices of the problems under study. The data analysis method used is qualitative normative method. Based on the research results, it can be denied that the sale and purchase agreement in the Supreme Court Decision Number 1081K / PDT / 2018 is not legally valid. The agreement does not fulfill the validity requirements of the agreement in Article 1320 of the Civil Code, namely halal skills and causes because it violates Article 36 paragraph (2) of the Marriage Law No. 1 of 1974 resulting in the sale and purchase agreement to be null and void.Keywords: Buying and Selling, Acts against the Law, Agreement, Marriage, Collective Property

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 Relevant Issues of the Legal Treatment of Abduction

Russian judge ◽  
2020 ◽  
Vol 12 ◽  
pp. 45-50
Author(s):  
Svetlana V. Kornakova ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Court Decisions ◽  
Legal Norms ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Cis Countries ◽  
Definition Of

The article critically assesses the absence of a definitive provision in the Russian criminal law that does not meet the criterion of legality, revealing the qualifying features of kidnapping. Examples of contradictory court decisions resulting from this are given. The relevant legal norms of some CIS countries are analyzed. It is concluded that the definition of kidnapping developed by judicial and investigative practice and reflected in the decisions of the Supreme Court of the Russian Federation is more specific. It is argued that it should be fixed in art. 126 of the Criminal Code of the Russian Federation.

GUILT AS A SUBJECTIVE SIDE OF LEGAL RESPONSIBILITY OF JUDGE

2017 ◽  
Author(s):  
Yaroslav Skromnyy ◽  
Keyword(s):  
Supreme Court ◽  
Legal Liability ◽  
Court Decision ◽  
Legal Responsibility ◽  
Court Case ◽  
Court Decisions ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Law ◽  
Subjective Aspect

The article reveals the main aspects of determining the guilt of a judge as a subjective aspect of imposing legal responsibility on him. It was established that the key aspects of determining the guilt of a judge as a subjective aspect of imposing legal responsibility on him are represented by the provisions of such legislative and regulatory documents as the Constitution of Ukraine, the Criminal Procedure Code of Ukraine, the Resolution of the Plenum of the Supreme Court of Ukraine «On the independence of the judiciary», the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights», Resolution of the Plenum of the Supreme Court of Ukraine «On judicial practice in cases of crimes against human life and health», Law of Ukraine «On the judicial system and the status of judges». It was found that the evidence of the judge's guilt in relation to the offense committed by him today is one of the important issues of imposing a certain type of legal liability on him. It has been determined that judges often commit offenses due to the adoption of unfounded and often illegal court decisions. It has been proved that the guilt of judges for the offenses committed by them is manifested as a result of non-compliance or disregard for the norms of procedural legislation or labor discipline. It has been determined that in order to make a court decision, a judge is obliged to determine the norms of the law, a number of bylaws and study judicial practice in considering the relevant court case. It has been established that one of the elements of a judge's fault is an inner conviction. It has been established that the subject of the court case regarding the adoption by the judge of an unjustified and illegal court decision is not the corpus delicti, which is present in the actions of the judge, but the legality of that, or the investigator will refuse to initiate a criminal case against the judge for making an unjust decision. It was found that the practical methods of determining the guilt of a judge in committing an offense should be a comprehensive study of the materials of the case, which is open against the judge, and the analysis of data from the judge's dossier, in particular, data on the consideration of such cases by a judge and the adoption of appropriate court decisions on them. It has been proven that quite often the release of a judge from legal liability occurs in conditions when offenses committed by a judge are re-qualified as a miscarriage of justice.

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