scholarly journals Pacientu autonomijas krimināltiesiskā aizsardzība Latvijā: vai nepieciešama jauna norma Krimināllikumā?

2021 ◽  
Vol 1 (19) ◽  
pp. 49-66
Author(s):  
Aldis Lieljuksis
Keyword(s):  
Medical Treatment ◽  
Criminal Law ◽  
Criminal Liability ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Medical Practitioners ◽  
Bodily Injury ◽  
The Will ◽  
Treatment Court

Raksts ir turpinājums problēmas izpētei par pacienta tiesību aizsardzību krimināltiesībās. Darbā izpētītas Krimināllikuma normas, kurās paredzēta ārstniecības personu atbildība par ārstniecību bez pacienta piekrišanas. Tikai Krimināllikuma 135. pantā expresis verbis paredzēta atbildība par aborta izdarīšanu pret grūtnieces gribu. Citos gadījumos atbildība var iestāties, vienīgi konstatējot ārstniecības procesā prettiesiski nodarītas vismaz vidēji smaga miesas bojājuma sekas. Tiesu nolēmumos jautājums par informētās piekrišanas esamību netiek skarts, tādēļ faktiskā situācija ir neskaidra. Jāatzīmē, ka tiesiskais regulējums ir atšķirīgs no tādām Eiropas valstīm kā Polija, Portugāle un Lihtenšteina, kur paredzēta kriminālatbildība ne tikai par pacientam nodarītu kaitējumu veselības aprūpē, bet arī par to, ja ārstniecība veikta bez pacienta piekrišanas situācijās, kad tā bija nepieciešama, jo tika prettiesiski aizskartas pamattiesības. Autora ieskatā, pētnieciskais darbs ir jāturpina, apzinot citu valstu pieredzi un faktisko situāciju pirms priekšlikumu izvirzīšanas kriminālatbildības paredzēšanai Krimināllikumā. The article is a follow-up to the study on the protection of patients’ rights under the criminal law. The article examines the provisions of the Criminal Law which legislates liability of medical practitioners for medical treatment without the patient’s consent. Only Section 135 of the Criminal Law ‘expresis verbis’ provides for liability for abortion against the will of a pregnant woman. In other cases, liability may only arise in cases where at least moderate bodily injury has been caused during medical treatment. Court judgements do not address the issue of the informed consent, consequently, the factual situation is unclear. It should be noted that the legal framework differs from such European countries as Poland, Portugal and Liechtenstein, where criminal liability is imposed not only for the harm caused to the patient in healthcare, but also for treatment without the patient’s consent in situations where it was necessary because the fundamental rights have been unlawfully infringed. The author considers that the research should be continued by identifying experience of other countries and the actual situation prior to putting forward a recommendation to impose criminal liability under the Criminal Law.

scholarly journals The Concept of Culpability in Criminal Law and AI Systems

2020 ◽  
Vol 13 (3) ◽  
pp. 256
Author(s):  
Roman Dremliuga ◽  
Natalia Prisekina
Keyword(s):  
Artificial Intelligence ◽  
Criminal Law ◽  
Criminal Liability ◽  
Legal Framework ◽  
Social Consequences ◽  
Artificial Intelligence System ◽  
Traditional Concept ◽  
Potential Harm ◽  
Intelligence System ◽  
Current State

This article focuses on the problems of the application of AI as a tool of crime from the perspective of the norms and principles of Criminal law. The article discusses the question of how the legal framework in the area of culpability determination could be applied to offenses committed with the use of AI. The article presents an analysis of the current state in the sphere of criminal law for both intentional and negligent offenses as well as a comparative analysis of these two forms of culpability. Part of the work is devoted to culpability in intentional crimes. Results of analysis in the paper demonstrate that the law-enforcer and the legislator should reconsider the approach to determining culpability in the case of the application of artificial intelligence systems for committing intentional crimes. As an artificial intelligence system, in some sense, has its own designed cognition and will, courts could not rely on the traditional concept of culpability in intentional crimes, where the intent is clearly determined in accordance with the actions of the criminal. Criminal negligence is reviewed in the article from the perspective of a developer’s criminal liability. The developer is considered as a person who may influence on and anticipate harm caused by AI system that he/she created. If product developers are free from any form of criminal liability for harm caused by their products, it would lead to highly negative social consequences. The situation when a person developing AI system has to take into consideration all potential harm caused by the product also has negative social consequences. The authors conclude that the balance between these two extremums should be found. The authors conclude that the current legal framework does not conform to the goal of a culpability determination for the crime where AI is a tool.

scholarly journals NULLUM CRIMEN SINE LEGE

2019 ◽  
Vol 13 (1) ◽  
pp. 15-20
Author(s):  
LAURA-ROXANA POPOVICIU
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Fundamental Principle ◽  
Fundamental Rights ◽  
Economic Life ◽  
Professional Activity ◽  
Free Development ◽  
The Right ◽  
Principle Of Legality ◽  
Right Order

This article discusses the issue of one of the most important Latin expressions that establish at the level of general principle that no crime exists outside the law.The purpose of the criminal law being the defense against the offenses of the right order, ensuring this order implies a strict respect of the principle of legality.Part of the principle of legality, the legality of incrimination, was formulated among the first, by the Beccaria in Dei delitti e delle pene and proclaimed also in the Declaration of Human and Citizen Rights (1789).Subsequently, the principle of legality of incrimination was passed in most criminal codes and even in some constitutions.The Romanian penal code emphasizes that the incriminations can only take place by law, not by other normative acts.In our law, crime is the sole basis of criminal liability.The second part of the principle of legality stipulates the legality of the punishments, so that, the crime being the only theme of the criminal liability, at the time of the commission the sanction must also intervene. Only when the sanction intervenes, it must be taken into account in particular that by sanctioning the offenders and the way in which the punishments are enforced some fundamental rights of the person are restricted, such as: freedom of movement, enshrined in all democratic constitutions, free development of the personality of the man and of his participation in the social and economic life, in the family life, the interruption of the professional activity and not lastly the affectation of his dignity. Therefore legality is a fundamental principle of criminal law: the criminalization can only take place through a law, and the sanction only if it is provided by law.

scholarly journals Dear reader,

2019 ◽  
Vol 28 ◽  
pp. 1-1
Author(s):  
Jaan Sootak
Keyword(s):  
Intellectual Property ◽  
Criminal Law ◽  
Assisted Suicide ◽  
Criminal Liability ◽  
Legal Protection ◽  
Contract Law ◽  
Fundamental Rights ◽  
Legal Person ◽  
Medical Law ◽  
The University

A large proportion of the articles in Juridica International this year is dedicated to criminal law. A paper that truly addresses the issues of legal dogmatics in this field in depth with regard to delict of negligence was contributed by Laura Feldmanis. Raimo Lahti’s article on the criminal liability of a legal person is written from the standpoint of criminal and comparative law, while Frieder Dünkel’s approach to German sanction law should provide plenty of interest and joy of discovery for legal scientists and practitioners alike. Thomas Weigend’s submission, in turn, takes a rather unique look at the material element in criminal law and criminal procedure. He focuses his attention on truth and values. Andres Parmas has considered Estonian criminal law in relation to the dogmatics of international criminal law. All of these articles are an outgrowth of presentations made at a jubilee conference that took place at the University of Tartu. I would like to take the opportunity here to thank everyone who participated in the conference – especially, of course, the speakers. In addition, two articles on medical law had their beginnings in presentations at the conference. One of them, by Henning Rosenau, is squarely in the domain of classic medical law, bringing together discussion of human rights and of issues connected with reproductive medicine. The other medical-law article, by Henning Lorenz, draws particular attention to an addition to German criminal law that has made waves (and met a lot of criticism) in the fields of criminal law, medical law, and legal policy in general: criminalising assisted suicide. This topic has been subject to intense discussion also in the media of Estonia and other countries.  I can happily say on behalf of both myself and the editorial board that, at the same time, the new issue offers plenty to read also for those less interested in criminal and medical law. Self-driving cars are a matter of interest not only to engineers but also for lawyers. Taivo Liivak’s ‘What Safety are We Entitled to Expect of Self-driving Vehicles?’ considers some of the issues that we will soon face on the streets on a daily basis. Private law is represented in the article ‘A Half-built House? The New Consumer Sales Directive Assessed as Contract Law’. This piece on consumer protection and contract law was submitted by Kåre Lilleholt, who holds the title Doctor Honoris Causa from the University of Tartu. A paper jointly authored by Ilya Ilin and Aleksei Kelli, ‘The Use of Human Voice and Speech in Language Technologies: The EU and Russian Intellectual Property Law Perspectives’, examines the legal protection of intellectual property. The field of constitutional law is represented too, by Ivo Pilving’s presentation of an approach to fundamental rights in the context of European Union law in ‘Parallele Anwendbarkeit von Grundrechtecharta der EU und nationalen Grundrechten’. Still more colours are added to the legal palette by Märt Maarand, with his article ‘The Concept of Recovery of Credit Institutions in the Bank Recovery and Resolution Directive’, and by the paper ‘Is Full Preference for a Secured Claim in Insolvency Proceedings Justified?’, by Anto Kasak. 

CRIMINAL LIABILITY FOR BREACH OF CONFIDENTIALITY REGIME IN RUSSIAN AND FOREIGN LEGISLATION

2021 ◽  
pp. 32-48
Author(s):  
Gulfia G. Kamalova ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Personal Data ◽  
Legal Framework ◽  
Legal Analysis ◽  
Legal Regime ◽  
Global Trends ◽  
Limited Access ◽  
Legal Method ◽  
Criminal Legislation

The subject of the work is the status and prospects of criminal law liability for various violations of the special legal regime of legally protected secrets. Considering the specifics of criminal liability for violation of confidentiality of information, experts traditionally focus on certain legally protected secrets and a detailed analysis of the relevant corpus delicti, which does not allow to cover the problem of protection of information of limited access by criminal law means as a whole. The author of this article performed a comprehensive legal analysis of criminal liability for violation of legal regime of secrets protected by law and other restricted information on the basis of a set of unlawful acts of non-compliance with the requirements of the regime. Methodologically, the study is based on a set of modern general scientific and private legal methods. It is based on the comparative legal method, which allows to compare the norms of criminal legislation of Russia, CIS countries, European and other states. The author draws attention to the existing differences and notes that some provisions of the modern Russian criminal law do not meet the requirements of the time, modern challenges and threats of the global information society in the conditions of building a digital economy. Based on a generalized analysis of the regulatory legal framework of the Russian Federation, foreign states and existing doctrinal views, the conclusion is made about the unsystematic composition of crimes aimed at violating the legal regime of secrets protected by law and other information of limited access. The author additionally notes the need to separate eco-nomic espionage and intentional disclosure of trade secrets into separate corpus delicti. Certain shortcomings of the Russian criminal law is the lack of corpus delicti aimed at the protection of legal regimes of professional and official secrets, personal data. Taking into account changes in the attitude to the institution of adoption and global trends in the protec-tion of children's rights, the possibility of decriminalisation of the disclosure of adoption secrets in modern conditions has been argued. The above and other problems identified in Russian criminal law with regard to the protection of legally established secrets and other restricted information are aimed at improving criminal legislation.

scholarly journals CHARACTERISTICS OF THE CONSTITUENT ELEMENTS OF A CRIMINAL OFFENCE – PERSECUTION

2021 ◽  
Vol 1 (91) ◽  
pp. 5-15
Author(s):  
Aldona Kipāne
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Legal Framework ◽  
Theory And Practice ◽  
Legal Interpretation ◽  
Legal Literature ◽  
Wide Range ◽  
The Subject ◽  
Constituent Elements

From January 1, 2018, amendments to the Criminal Law, which provide criminal liability for the persecution of a person, came into force in Latvia. The constituent elements of persecution are defined as a specific form of violence.The aim of the paper is to describe the constituent elements of persecution based on the theory and practice of criminal law. During the study, the author provides a framework of the criminal law theory and outlines the elements of the persecution. The object of the study is the criminal relations, which arise from the persecution of another person. The subject of the study is the criminal legal framework to be followed for the determination of criminal liability. The following legal interpretation methods and approaches have been used in the study: grammatical, systematic, teleological, and historical, as well as analytical method for analysing doctrine and practice of criminal law. Doctrines of criminal law, national legislation, and the sources of legal literature relevant to the aim of the paper have been in the study, too.The analysis carried out leads to the conclusion that persecution covers a wide range of socio-psychological behaviour that manifests in the sacrifice’s victimization and specific harm caused to him/her. Persecution is an active illegal, threatening activity in the form of repeated or lasting tracking, surveillance of another person, expressing threats or unsolicited communication with such a person, if victim have had reasonable grounds to fear for their safety or the safety of their relatives

scholarly journals CRIMINAL LIABILITY OF A JUVENILE PERSON ON BREAKING OF TRAFFIC REGULATIONS

2019 ◽  
Vol 1 (86) ◽  
pp. 4
Author(s):  
Karina Zauere
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Bodily Injury ◽  
Serious Crime ◽  
Vehicle Operation ◽  
The Republic ◽  
A Minor

In implementing of the norms provided for by the section 260, article 2 of the of the Republic of Latvia Criminal Law into practice (for breaking of traffic provisions or provisions regarding vehicle operation, if it has been committed by a person operating a vehicle and as a result thereof serious bodily injury has been caused to the victim or death of a person has been caused thereby, the applicable punishment is deprivation of liberty for a period up to eight years, with deprivation of the driver’s licence for a period up to five years), the legislator has not taken into account that this violation may be committed by a minor. It results from the analysis of the provisions of Section 260, article 2, section 7, article 3, and section 65, article 2 stems that section 260, article 2 is a less serious crime, for which a minor is not punishable with deprivation of liberty – the sole main punishment intended by the sanction of the provision in question. Therefore, the appropriate punishment for the committing of such a crime resulting in a death of a person and/or serious bodily injury that threatens the life of a person cannot be applied to a juvenile person. With respect to the specifics of criminal liability of juvenile persons for the violation of section 260, article 2 as it is laid down by the Criminal Law the basic punishment – imprisonment for a period exceeding eight years – is not applicable to juvenile persons. Only the additional punishment of deprivation of the driver’s licence for a period of up to five years, which is disproportionate to the harm caused. In order to enable the application of the basic punishment for the committing of the crime as set out by section 260, article 2 of the Criminal Law ( legal effects: death of a person and/or serious bodily injury), it is necessary to amend the sanction of section 260, , article 2 to the imprisonment for a period exceeding eight years. Subsequently, such an amendment would re-classify the crime as a severe crime committed through negligence and for the committing which the basic punishment – imprisonment would be applicable, as it was most likely intended by the legislator.

scholarly journals Pacienta autonomijas un integritātes aizsardzība tiesību aktos

2020 ◽  
Vol 3 (18) ◽  
pp. 28-42
Author(s):  
Aldis Lieljuksis
Keyword(s):  
Human Rights ◽  
Informed Consent ◽  
Criminal Law ◽  
Criminal Liability ◽  
Fundamental Rights ◽  
European Countries ◽  
Legal Norms ◽  
The Republic

Vairākās Eiropas valstīs – Polijā, Portugālē un Lihtenšteinā – paredzēta kriminālatbildība ne tikai par pacientam nodarītu kaitējumu veselības aprūpē, bet arī tad, ja ārstniecība veikta bez pacienta piekrišanas situācijās, kad tā bija nepieciešama, jo tādējādi ir prettiesiski aizskartas cilvēka pamattiesības. Pētījums veikts, lai noskaidrotu, kādās Latvijas Republikas Satversmes VIII nodaļas tiesību normās tiek garantēta personas autonomija un integritāte kā cilvēka pamattiesību neatņemama vērtība, kā arī ielasāma pacienta informētā piekrišana kā pacienta galvenais līdzeklis šo aizsargājamo interešu nodrošināšanā. Several European countries, for instance, Poland, Portugal and Liechtenstein, provide for criminal liability not only for harm to a patient in healthcare but also for treatment without the patient’s consent in situations where it was necessary because of an unlawful violation of fundamental rights. The study was conducted to find out which legal norms of Chapter VIII of the Satversme (the Constitution) of the Republic of Latvia guarantee autonomy and integrity of a person, as an integral value of fundamental human rights, as well as the patient’s informed consent as the patient’s main means of ensuring these protected interests. Whether the protection of these interests is sufficiently effective or should also be provided for in a separate provision of the Criminal Law will be clarified in another study.

scholarly journals RZYMIANIE I ICH „PRAWO MEDYCZNE” (ASPEKTY PRAWNO-KARNE)

2016 ◽  
Vol 11 (1) ◽  
pp. 69
Author(s):  
Krzysztof Amielańczyk
Keyword(s):  
Criminal Law ◽  
Public Interest ◽  
Criminal Liability ◽  
Roman Law ◽  
Medical Law ◽  
Highly Qualified ◽  
Medical Practices ◽  
The Public ◽  
Roman Society ◽  
Bodily Injury

ROMANS AND THEIR ‘MEDICAL LAW’ (CRIMINAL LAW ASPECTS) Summary Medicine began to be regulated by law already in the antiquity. Securing the public interest, the Roman legislator made attempts to protect his  citizens from certain blameworthy medical practices. There are sources available showing cases of doctors (medics), midwives and pharmacists being criminally prosecuted as a result of the fatal consequences of their medical and quasi-medical activities. The Roman law would impose criminal liability for the acts of administering poison instead of a medicament, bans on sterilization (castration), bans on abortion, criminal liability for causing the death or bodily injury of another man’s slave as a result of his improper treatment (imperitia). Doctors could be divided into private doctors, hired by private persons, and public ones, who were employed and paid by municipalities. Public doctors had to be highly qualified and enjoy an immaculate reputation. Nonetheless, the requirements demanded of doctors did not change the generally negative opinion on medics as held by the Roman society.

Strafbefreiende Wirkung der "neuen" Arbeitskampffreiheit?

2019 ◽  
Author(s):  
Lara Blume
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Fundamental Rights ◽  
Working Environment ◽  
Industrial Action ◽  
Labour Dispute ◽  
German Constitution ◽  
Action Measures ◽  
The Right ◽  
Labour Disputes

As the working environment has changed, labour disputes have also taken on new forms. A strike has long since ceased to be the only permissible means of industrial action. But how does criminal law relate to modern means of industrial action which curtail the rights of an employer more than a strike? Does criminal law contain a limit to the right to strike according to art. 9, para 3 of the German constitution? To answer this question, Blume first examines the evolution of the right to choose the means of industrial action, and then discusses the relationship between fundamental rights and criminal laws in general. On the basis of the results of the general part, Blume then presents the extent of criminal liability for various industrial action measures, such as a flash mob, a blockade and a DDoS attack. Her analysis shows that criminal law does not limit the right to industrial action, but that labour dispute law does influence the interpretation and application of penal laws.

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