SEARCH FOR AND SEIZURE OF EVIDENCE IN CYBER ENVIRONMENTS: A LAW-ENFORCEMENT DILEMMA IN SOUTH AFRICAN CRIMINAL PROCEDURE

2014 ◽  
Vol 1 (1) ◽  
pp. 48-67
Author(s):  
Vinesh M Basdeo ◽  
Moses Montesh ◽  
Bernard Khotso Lekubu
Keyword(s):  
Law Enforcement ◽  
South African ◽  
Legal System ◽  
Criminal Procedure ◽  
Integrated Approach ◽  
Physical World ◽  
Legal Framework ◽  
Time Zone ◽  
Legal Sanctions ◽  
Domestic Affairs

Investigating, deterring and imposing legal sanctions on cyber-criminals warrants an international legal framework for the investigation and prosecution of cybercrime. The real-world limits of local, state and national sovereignty and jurisdiction cannot be ignored by law-enforcement officials. It can be a strenuous task to obtain information from foreign countries, especially on an expedited basis – more specifically when the other country is in a different time zone, has a different legal system, does not have trained experts and uses different languages. In South Africa existing laws appear to be inadequate for policing the cyber realm. The effects and impact of information technology on the legal system have not yet received the attention they warrant. The challenges presented by the electronic realm cannot be solved merely by imposing existing criminal and criminal procedural laws which govern the physical world on cyberspace. The electronic realm does not necessarily demand new laws, but it does require that criminal actions be conceptualised differently and not from a purely traditional perspective. Sovereignty and the principle of non-interference in the domestic affairs of another state are fundamental principles grounding the relations between states; they constitute an important mechanism in the armoury of criminals. The harmonisation and enactment of adequate and appropriate transborder coercive procedural measures consequently play a pivotal role in facilitating effective international cooperation. This article examines the efficacy of South African laws in dealing with the challenges presented by police powers to search for and seize evidence in cyber environments. It analyses the rudimentary powers that exist in South African criminal procedure regarding the search for and seizure of evidence in cyber environments, and compares them against the backdrop of the more systemic and integrated approach proposed by the Cybercrime Convention.

scholarly journals A LOOK INSIDE COOPERATION BETWEEN PROSECUTORS AND LAW ENFORCEMENT DURING CRIME SCENE INVESTIGATION

2017 ◽  
Vol 7 (2) ◽  
pp. 67-77
Author(s):  
Dževad Mahmutović ◽  
◽  
Berina Huskanović ◽  
Keyword(s):  
Law Enforcement ◽  
Bosnia And Herzegovina ◽  
Criminal Procedure ◽  
Crime Scene ◽  
Legal Framework ◽  
Legal Regulation ◽  
Crime Scene Investigation ◽  
Procedure Code ◽  
Scene Investigation ◽  
Mutual Relations

The paper deals with crime scene investigation as a measure of inquiry, conceptually and substantially, subjects of investigation, as well as their mutual relations. The analysis of the existing legal framework suggests that the current Criminal Procedure Code of Bosnia and Herzegovina offers the appropriate basis for the cooperation between prosecutors and law enforcement. However, previous practice indicates certain shortcomings in the cooperation and coordination between prosecutors and law enforcement. With this paper, the authors wanted to examine the opinions of direct actors on this matter. The results show that they are satisfied with the legal regulation of their mutual relations during investigations, and they express positive opinions in terms of their cooperation. Of course, the possibility of improving that cooperation is also noted, and the methods of achieving it should be identified in further research.

scholarly journals Properties of constitutional principles

2021 ◽  
Vol 5 (3) ◽  
pp. 126-136
Author(s):  
S. A. Mosin
Keyword(s):  
Law Enforcement ◽  
Legal System ◽  
Legal Framework ◽  
The State ◽  
Basic Rule ◽  
Constitutional Principle ◽  
The Law ◽  
Theory Of Law ◽  
The Stability ◽  
The Trinity

The subject. The article is devoted to the study of the trinity of properties of constitutional principles.The purpose of the article is to confirm the hypothesis that constitutional principles, often perceived by researchers and law enforcement officials as abstract norms with declarative content, are in fact full-fledged legal institutions that are endowed with all the necessary properties to achieve constitutional goals. In this regard, the article analyzes the property of axiomaticity, the property of presumptivity and the property of fictitiousness of constitutional principles.The methodology. The systemic-structural, comparative, formal-legal and formal-logical methods made it possible to identify and characterize the properties of constitutional principles, such as axiomaticity, presumptivity and fictitiousness. The use of these methods in their combination predetermined the appeal not only to topical problems of constitutional law, but also to issues of the theory of law, as well as other branches of law, which made it possible to most objectively and comprehensively approach the study of the properties of constitutional principles.The main results of the research. The trinity of the properties of the constitutional principle lies in the fact that the constitutional principle formulates the basic rule and determines the direction of development of the legal system and thereby has the property of axiomaticity. At the same time, the constitutional principle has the property of presumptivity due to the duty of the law enforcement officer to proceed from the assumption of compliance with the provisions of such a principle by all subjects of legal relations. Thereby constitutional principle ensures the necessary stability of the legal system of the state. At the same time, in order to achieve full-fledged stability of the legal system, along with the assumption that the subjects of legal relations comply with the provisions of the constitutional principles, it should be possible to monitor such compliance. In the absence of prior control over compliance with the provisions of the law, the solution is the application of legal presumptions. In this regard, within the framework of the presumptive property of constitutional principles, constitutional presumptions are inextricably linked with the corresponding constitutional principles. In turn, having the property of fictitiousness, the constitutional principle allows to interpret the provisions that make up such a constitutional principle and, as a result, create the necessary regulatory legal framework.Conclusions. Constitutional principles are the driving force of the legal system. They fill all legal relations without exception with legal meaning and content and have a special meaning due to their irreplaceability and the obligation to strictly observe them. In turn, the trinity of properties of the constitutional principles reflects their legal essence as fundamental normative provisions that determine the generally binding basic rules and directions of the development of the legal system, ensure the stability of the legal system of the state, and also have the possibility of timely development and adaptation to the changing legal reality.

scholarly journals Investigator’s covert-nature procedural activities

2021 ◽  
Vol 108 ◽  
pp. 04011
Author(s):  
Marina Sergeevna Kolosovich ◽  
Lyudmila Vladimirovna Popova ◽  
Anna Fedorovna Zotova ◽  
Maria Mikhailovna Bondar ◽  
Olga Sergeevna Shamshina
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Legal System ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Federal Law ◽  
Criminal Cases ◽  
Criminal Intelligence ◽  
The Russian Federation

Over the years, most of the Russian processualists denied the investigator’s right to engage in actions of covert nature and deemed it impossible to integrate the norms of criminal intelligence legislation in the Code of Criminal Procedure of the Russian Federation adopted on 18.12.2001 No. 174-FZ, rightly referring to the impossibility to vest a single duty-bearer engaged in a preliminary investigation with unprecedented powers. Meanwhile, the latest decades have been marked by active legislative activity in many countries, which in fact has turned covert criminal intelligence and surveillance into a procedural activity. These innovations became specific of a number of countries regardless of their legal system belonging to the Romano-Germanic or Anglo-Saxon legal system, testifying to more profound roots of the problem. The study is also relevant in terms of dissatisfaction, expressed by the Russian law-enforcement authorities, with the crime solvency rate and with the interaction of criminal intelligence detectives and internal affairs investigators. The goal of the study is to identify the procedural provisions governing the investigator’s covert-nature activities and related law enforcement problems. The methodological framework of the research comprises general and particular methods of scientific knowledge: dialectical, systemic, deductive, inductive; synthesis, analysis; comparative legal analysis, statistical and other methods. Results and novelty: it was concluded that the Code of Criminal Procedure provides for the regulation of the investigator’s confidential-nature activities inherent in covert criminal intelligence and surveillance and requiring more detailed elaboration, as concerns the issues of securing the rights of partakers of the said activity; the authors express doubt regarding the justification of the legislator’s differentiation of covert activities under criminal cases into covert investigative actions (Art. 185, 186, 186.1 of the Code of Criminal Procedure) and covert operational and investigative operations that are in fact identical to the former (Art. 6, Cl. 9-11 of the Russian Federation Federal Law No. 144-FZ as of 12.08.1995 “On criminal intelligence and surveillance”.

A critique of search and seizure in terms of a search warrant in South African criminal procedure

2017 ◽  
Vol 30 (1) ◽  
pp. 153-175
Author(s):  
Vinesh Basdeo
Keyword(s):  
Law Enforcement ◽  
South African ◽  
Criminal Procedure ◽  
Search And Seizure ◽  
Initial Contact ◽  
Personal Privacy ◽  
African Experience ◽  
Law Enforcement Officials ◽  
The Law ◽  
Search Warrant

The requirements and safeguards for a valid search warrant in South African criminal procedure are critically analysed in this article. The existence of safeguards to regulate the way in which law enforcement officials may enter the private sphere of ordinary citizens is one of the features that distinguish a constitutional democracy from a police state. South African experience has been notoriously varied in this regard. Many generations of systemised and egregious violations of personal privacy established norms for citizens that seeped generally into the public administration and promoted amongst a great many officials habits and practices inconsistent with the standard of conduct now required by the Bill of Rights. Today, law enforcement officials must be highly skilled in the use of investigative tools and extremely knowledgeable about the intricacies of the law. One error in judgment during initial contact with a suspect can, and often does, impede the investigation and could affect the fairness of the trial. For example, an illegal search may so contaminate evidence obtained that it will not be admitted as evidence in court. In addition to losing evidence for prosecution purposes, failing to comply with constitutional mandates often leads to liability on the part of the law enforcement official.

scholarly journals Answering the questions of criminal law dogma regarding the organization of combating crimes in the economic sphere

2020 ◽  
pp. 84-88
Author(s):  
Irina Aleksandrova
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Criminal Procedure ◽  
Legal Framework ◽  
Economic Sphere ◽  
The Subject ◽  
Criminal Legal System ◽  
Procedural Basis

Attempts to restructure the legal framework for combating crime in the economic sphere through changes in the criminal law are doomed to failure. The criminal legal system for combating crime, including its economic segment, should be built on a criminal procedural basis. Prosecution and trial should be considered the main elements of criminal procedure. The application of means of criminal law to the subjects of business crimes should be carried out by a court with the participation of a jury. The subject of litigation must be a public or private charge.

scholarly journals Problems of Financial Investigation and Recovery of stolen Assets

2021 ◽  
Vol 25 (2) ◽  
pp. 185-198
Author(s):  
V. V. Zemskov ◽  
V. I. Prasolov
Keyword(s):  
Law Enforcement ◽  
Collective Action ◽  
Private Sector ◽  
Practical Interest ◽  
Integrated Approach ◽  
Active Role ◽  
Evidence Base ◽  
Legal Framework ◽  
Legal Analysis ◽  
Law Enforcement Agencies

In the context of the globalization of national economies, the processes of recovering stolen assets are becoming a difficult task, requiring their tracing and detection not only in our country but also in foreign jurisdictions. Not only country’s law enforcement agencies but also corporate governance bodies should play an active role in the process of detecting and recovering stolen assets. In this regard, the improvement of methodological tools that facilitate the tracking, detection and recovery of stolen assets is of scientific and practical interest and ensures the relevance of the study. The purpose of the study is to improve the mechanisms for countering the withdrawal of assets by unscrupulous owners, interest groups. The authors apply methods of dialectical scientific cognition based on a set of recognized private scientific and general scientific methods: formal-logical, comparative-legal, statistical, intersectoral legal analysis. The scientific novelty of the research is the identification of negative factors affecting the volume of stolen assets, their impact on the economic health of the state, private sector, and the improvement of methods for detecting and recovering assets. The results of the study help the authors to identify the main problems of detection and recovery of stolen assets, formulated the directions of the strategy for the return of stolen assets, formalized the processes of tax administration in countering the legalization of illegally obtained property. The recovery of stolen assets is an extremely time-consuming process which requires not only collective action of government agencies but also effective interstate cooperation within the legal framework. The paper presents a comparative analysis of the legislation of a number of countries. The authors identify deficiencies in the Russian law, which does not fully prescribe the procedure for detecting and returning stolen assets to the territory of the country. The authors conclude that in order to improve the mechanisms for countering the withdrawal of assets, it is necessary to apply an integrated approach, improving the legislation of the Russian Federation and fostering collective action of the country’s law enforcement agencies, private sector, and society to successfully confront new challenges and threats. The results of the study may be used to improve the competence of law enforcement officers involved in detecting and returning stolen assets, as well as to develop a more successful methodological and evidence base approach in countering the legalization of illegally obtained property.

Penerapan Hukum Wakaf Uang di Indonesia Perspektif Legal System Theory

2018 ◽  
Vol 11 (1) ◽  
pp. 79-92 ◽  
Author(s):  
Masdar Masdar
Keyword(s):  
System Theory ◽  
Law Enforcement ◽  
Legal System ◽  
Legal Culture ◽  
Point Of View ◽  
Law Enforcement Agencies ◽  
Muslim Society ◽  
The Law ◽  
The Government

Cash waqf in Indonesia has been long enough implemented based on some rules enacted by government and other rules defined by The Waqf Board of Indonesia (BWI). However, the implementation of cash waqf has not reached the level of success. Therefore, this article studies the application of cash waqf law in Indonesia according to Friedman’s legal system theory. The legal system theory of Friedman firstly looks at the substance of the law, which is the rules or regulations; and secondly it examines the structure of the law, encompassing the law enforcement agencies, such as judge, prosecutor, police and legal counselors. And lastly the theory examines the element of legal culture, which is a response from Muslim society. The first two examinations indicate that there is nothing to be a problem. But from the last examination there is a problem regarding the trust from Muslim society. From the legal culture point of view, the implementation of cash waqf by the government, which is performed by BWI, needs attracting society’s credentials in order to improve and maximize the performance of cash waqf in Indonesia.

Victim Participation in Parole Proceedings in South Africa

2019 ◽  
Vol 34 (1) ◽  
Author(s):  
Jamil Mujuzi
Keyword(s):  
South Africa ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
South African ◽  
Justice System ◽  
Criminal Procedure ◽  
Prison Inmate ◽  
Parole Board ◽  
Victims Of Crime ◽  
The Right

South African law provides for circumstances in which victims of crime may participate in the criminal justice system at the investigation, prosecution (trial), sentencing and parole stages. In South Africa, a prison inmate has no right to parole although the courts have held that they have a right to be considered for parole. In some cases, the victims of crime have a right to make submissions to the Parole Board about whether the offender should be released on parole. Section 299A of the Criminal Procedure Act 51 of 1977 provides for the right of victims of crime to participate in parole proceedings. The purpose of this article is to discuss section 299A and illustrate ways in which victims of crime participate in the parole process. The author also recommends ways in which victims’ rights in section 299A of the Criminal Procedure Act could be strengthened.

TRANSLATION OF SOCIAL AND POLITICAL TERMINOLOGY OF CHINESE LANGUAGE AS A PROCESS OF NORMATIVE PRACTICE IN CONTEXT MODELS

2020 ◽  
Vol 6 (3) ◽  
pp. 172-182
Author(s):  
Saodat Nosirova ◽  
Keyword(s):  
Comparative Analysis ◽  
Law Enforcement ◽  
Chinese Language ◽  
Integrated Approach ◽  
Point Of View ◽  
Modern Chinese ◽  
Normative Practice ◽  
Context Models

The article is devoted to a comparative analysis of the socio -political terminology of the modern Chinese language.The purpose of the article is to search for an integrated approach to the study of the cognitive side of social and political terms of the Chinese language from the point of view of law enforcement in the process of translating official materials from Chinese into Uzbek and / or Russian and vice versa

Sign in / Sign up

Export Citation Format

Share Document