PENAFSIRAN HAKIM TERHADAP KETENTUAN PIDANA MINIMUM KHUSUS DALAM UNDANG-UNDANG TINDAK PIDANA KORUPSI

2018 ◽  
Vol 2 (3) ◽  
pp. 379
Author(s):  
Ismail Rumadan
Keyword(s):  
Social Justice ◽  
Social Inequality ◽  
Rule Of Law ◽  
Criminal Law ◽  
Court Decisions ◽  
The Rule Of Law ◽  
Corruption Case ◽  
Community Justice ◽  
State Economy ◽  
The Law

The spirit of the rule of law against corruption which is considered as an extraordinary crime that resulted in the occurrence of social inequality , the economy , the loss of faith in government and a variety of other problems that led to the birth of Law No. 31 of 1999 in conjunction with the Law No. 20 Year 2001 About Follow Corruption. The interesting thing about the formation of the Anti- Corruption Act is a criminal provision in the formulation of minimum deliknya against perpetrators of corruption . It is certainly different from the general criminal provisions in the draft Criminal Law (Penal Code) which is more familiar maximum penal provision . The results showed that the minimum pinadana special provisions in the law of corruption can be breached so long as the judge has the legal resening or residenti proper ratio to a corruption case by looking at the size scale of the corruption case with consideration and interpretation of the patterns perspective, social - justice, moral justice and community justice decision was taken to drop the minimum punishment. Criminal punishment under the criminal provisions of the special minimum in some court decisions can be made by several criteria into consideration the provisions of the criminal judges deviate minimum, the criteria of the element of state assets or state economy as a result of the acts of corruption tiundak and criteria of the role and position of the defendant in acts of corruption. Keywords: Interpretation of judges , a special minimum criminal , corruption

scholarly journals IMPLIKASI PERUMUSAN DELIK KORUPSI DI DALAM KEBIJAKAN PEMBAHARUAN KITAB UNDANG-UNDANG HUKUM PIDANA

FIAT JUSTISIA ◽  
2016 ◽  
Vol 9 (3) ◽  
Author(s):  
Syaputra Syaputra
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Criminal Code ◽  
Community Life ◽  
Reform Effort ◽  
The Rule Of Law ◽  
Draft Code ◽  
The Law ◽  
Pass Through ◽  
Sense Of Justice

The Criminal Code as a legacy of Dutch colonialism could no longer follow the dynamism of community life. It is too rigid has obliterated the sense of justice which is the goal of the creation of the law itself. This is because the articles of the Criminal Code deemed unsuitable to the development of crime and offenses increasingly complex. In the draft Code of Criminal Law, as one of the reform effort is the formulation of offenses of corruption set out in Chapter XXXII starting from Article 688 to Article 702. With the formulation of the offense of corruption and offenses positions formulated in the draft Criminal Code will disregard the Law Combating Corruption although this law of particular importance because of the substance of the articles draft Criminal Code wants to make corruption has become common crimes and do not pass through handling extraordinary. Law on Corruption Eradication cannot apply even if there is the principle of lex specialis derogat lex generalis, because of the retroactive principle that applies in the draft Criminal Code so that the decision to force the law can still be applied retroactively when the rule of law that new does not regulate the offense of criminal, so punishment can be eliminated.Keywords: Offense Corruption , Corruption , Reform of draft Criminal Code

scholarly journals The Responsibility of Courts in Maintaining the Rule of Law: Two Tales of Consequential Judicial Self-Restraint

2021 ◽  
pp. 155-181
Author(s):  
Pál Sonnevend
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Court Decisions ◽  
The European Union ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Legislative Power ◽  
The Face ◽  
The Law

AbstractModern constitutionalism is based on the paradigm that courts are inherently entitled and obliged to enforce the constitution of the respective polity. This responsibility of courts also applies in the context of the European Union to both the CJEU and national constitutional courts. The present chapter argues that in the face of constitutional crises the CJEU and the Hungarian Constitutional Court shy away from applying the law as it is to the full. The reasons behind this unwarranted judicial self-restraint are most different: the CJEU aims to avoid conflicts with national constitutional courts whereas the Hungarian Constitutional Court has been facing a legislative power also acting as constitution making power willing to amend the constitution to achieve specific legislative purposes or to undo previous constitutional court decisions. Yet both courts respond to expediencies that do not follow from the law they are called upon to apply. It is argued that rule of law backsliding requires these courts to abandon the unnecessary self-restraint and exploit the means already available.

Die Entwicklung des Strafrechts der Ukraine

2020 ◽  
Vol 66 (3) ◽  
pp. 380-396
Author(s):  
Rainer Birke
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Law ◽  
Penal Code ◽  
Science And Society ◽  
The Rule Of Law ◽  
Law System ◽  
The Law ◽  
Simplified Procedure ◽  
Procedural Rights

In 2001, a new penal code was adopted in Ukraine after a comprehensive discussion in politics, legal science and society, replacing a codification of the Soviet era dating back to 1960, obviously unsuitable for the new realities. The new penal code of 2001 has been changed many times since then. This also applies to the criminal law provisions against corruption, evaluated and commended by GRECO. However, there is criticism of the criminal law system in Ukraine. A large number of the issues have little or nothing to do with the text of the penal code itself, but with deficits in the application of the law and the resulting loss of confidence in the activities of the law enforcement authorities. The judiciary is said to have a significant corruption problem and is significantly overloaded. The latter is to be counteracted by the introduction of the class of misdemeanor (“kryminalnyj prostupok”) in 2019 that can be investigated in a simplified procedure, which has been criticized, inter alia, because it bears the risk of the loss of quality and possibly infringes procedural rights. Also in 2019, the work on a once again completely new codification of the penal code was commenced, which is not entirely surprising in view to the existing criticism of manual errors or inadequacies of the recent code. It is to be hoped that Ukraine, with the existing will and the necessary strength, will succeed in the creation of a criminal law system that is fully in compliance with the rule of law and that a penal code will be drafted that finally finds full recognition in the society.

scholarly journals OFFENSE - THE ONLY GROUND FOR CRIMINAL LIABILITY

2014 ◽  
Vol 8 (4) ◽  
pp. 149-156
Author(s):  
Laura-Roxana Popoviciu
Keyword(s):  
Rule Of Law ◽  
Social Relations ◽  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
The Rule Of Law ◽  
The Social ◽  
The Law

This study aims to examine the offence as the only ground for criminal liability. Article 15, paragraph 2 of the Criminal code provides that: “offences are the only grounds for criminal liability”, which implies the existence of an act, which is detected by the bodies empowered under the law in the form required by law, and also this principle comes as a guarantee of the person’s freedom because, without committing an act provided for by the law as an offense, the criminal liability cannot exist.The criminal liability is one of the fundamental institutions of the criminal law, together with the institution of the offence and of the sanction, set in the various provisions of the Criminal code.As shown in the Criminal code, in Title II regarding the offence, there is a close interdependence among the three fundamental institutions. The offence, as a dangerous act prohibited by the criminal rule, attracts, by committing it, the criminal liability, and the criminal liability without a sanction would lack the object. It obliges the person who committed an offence to be held accountable for it in front of the judicial bodies, to bide the sanctions provided for by the law, and to execute the sanction that was applied.The correlation is also vice-versa, meaning that the sanction, its implementation, cannot be justified only by the existence of the perpetrator’s criminal liability, and the criminal liability may not be based only on committing an offence.The criminal liability is a form of the judicial liability and it represents the consequence of non-complying with the provision of the criminal rule. Indeed, the achievement of the rule of law, in general, and also the rule of the criminal law implies, from all the law’s recipients, a conduct according to the provisions of the law, for the normal evolution of the social relations.

scholarly journals Kant on Punishment and Criminal Law – nine Theses

2021 ◽  
Vol 15 (1) ◽  
pp. 4-16
Author(s):  
Joachim Renzikowski
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
The Rule Of Law ◽  
Textual Evidence ◽  
Theory Of Crime ◽  
Metaphysics Of Morals ◽  
The Law ◽  
Basic Features

Kant is generally regarded as a representative of the theory of retaliation. This position is accused as scientific untenable. Supposedly, the idea of retaliation disregards all social purposes and demands punishment even where it was not necessary for the protection of legal interests. Kant’s Metaphysics of Morals of 1797 contains an already quite sophisticated criminal theory of timeless quality. In order to elaborate on them, however, one must not, as is customary, pick out a few passages, but one must take note of the “whole” doctrine of law, in particular Kant’s statements on subjective law, on the abandonment of the law and on the rule of law. The basic features of Kant’s theory of crime will be presented in the following nine theses, backed up by relevant textual evidence.

scholarly journals Intelligibility of a criminal law: Theoretical and practical aspects

2021 ◽  
Vol 10 (44) ◽  
pp. 92-102
Author(s):  
Olha Musychenko ◽  
Yevgen Streltsov ◽  
Oleksandr Kozachenko ◽  
Olesya Vasyliaka ◽  
Larysa Chornozub
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Qualitative Property ◽  
Main Task ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
European Court ◽  
Legal Nature ◽  
The Law ◽  
Definition Of

The main task of the article is to study a separate qualitative property criminal law its intelligibility. When solving the problem the definition of intelligibility of the criminal law taking into account genesis is formulated this concept and different approaches to its content, which have developed in modern law doctrine. In order to substantiate the author's approach to the definition of intelligibility of the criminal law the monitoring of normative-legal acts, decisions of national and international judicial authorities is carried out. It is shown that the term ‘intelligibility of law’ and related terms ‘clear’, ‘precise’, ‘simple’ law are actively used both in regulations and in decisions of national and international judicial authorities. However, the terminology is diverse, thereby it has been suggested in the decisions of the European Court of Human Rights to use the term ‘intelligibility’of the law, which is the most accurate and adequately reflects the assessment of the legal certainty of national laws. The general conclusion is substantiated that in modern doctrine there are three approaches to determining the legal nature of the intelligibility of the law: as a component of the rule of law, as a requirement for the language of law, as a qualitative property of law. The absence of antagonistic features in each of the approaches allowed to use the positive gains of different perceptions of the intelligibility of the criminal law and to define it.

scholarly journals Investigative and the Rule of Law: A Cameroonian and Ukrainian Criminal Proceedings Law Understanding

2021 ◽  
Vol 9 (3) ◽  
pp. 517-538
Author(s):  
Nana Charles Nguindip ◽  
Leonid Volodymyrovych Mohilevskyi ◽  
Ablamskyi Serhii Yevhenovych ◽  
Tetiana Kuzubova
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Due Process ◽  
Criminal Proceedings ◽  
Human Right ◽  
Criminal Process ◽  
The Rule Of Law ◽  
Crime Commission ◽  
The Law ◽  
The Right

There is no instance in a given society that can successfully opeate and function without respecting existing standards and principles set in place in ensuring the respect of fundamental human right and dignity. The notion and acceptable rule is that, Crime commission is an unavoidable singularity in any given and documented society functioning under the umbrella of established rules and regulations. Cameroon and Ukraine has engaged huge steps in establishing credible laws, all in the preservation and protection of fundamental human right of those presumed of crime commission. This article articulates and establishes that,the only way the rule of law can be respected during the investigative stage, will only when those responsible for investigation respects the due process of the law in the course of its investigation so that their act should not contravene the right of the suspect or accused in question. It provides that when issues of investigation are carried out by Ukraine and Cameroon police, gross violations of the criminal process are always experienced, and this greatly affects the objective of criminal law being that of protecting the right and dignity of everyone irrespective of the status quo acquired during the criminal proceedings.the results of this gross violation of the accuesed rights and status during the investigative stage will affect the rationale and objective of the criminal law system which is to ensure that all criminal process should respect human standard and dignity. The reason for this is that, during the investigative process and procedure, the law enforcement ofiicers must be able in detaching their various duties assigned with due diligent and respect of the various criminal standards of investigation. To ensure that this is done, there is that need of those enforcing the jucial process and trial should that all evidences, searches, seizures, recording done by the investigative police officials should be done in accordance of the free will of the presumed criminal.

scholarly journals Principle of the Rule of Law in the Case-law of the European Court of Human Rights

1970 ◽  
pp. 373-379
Author(s):  
Tetiana Tsuvina
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Fair Trial ◽  
Court Decisions ◽  
Legal Certainty ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
European Court ◽  
The Law ◽  
The Right

The article is devoted to the interpretation of the principle of rule of law in the practice of the European Court of Human Rights. The concept of the rule of law, along with democracy and human rights makes up the three pillars of the Council of Europe and is endorsed in the Preamble to the ECHR. The Preamble to the ECHR states that the governments of European countries are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law. The rights most obviously connected to the rule of law include: the right of access to justice, the right to a fair trial, the legal principle that measures which impose a burden should not have retroactive effects the right to an effective remedy, anyone accused of a crime is presumed innocent until proved guilty etc. The author concludes that there is an expediency of grouping separate requirements of the rule of law in the practice of the ECtHR around concepts, which are concluded to be elements of the rule of law in a democratic society. Such elements of the rule of law in the practice of the ECHR are recognized as legality, legal certainty, fairness of a trial and the priority of human rights. Legality supposes that authorities need a legal basis for measures which interfere with a right of an individual, as well as quality requirement for the law such as accessibility, foreseeability and no arbitrariness. Legal certainty encompasses foreseeability in application of the law; non-retroactivity of legislation; the principle of res judicata; mandatory execution of court decisions and consistency of judicial practice. Fair trial requirements devoted into two groups: general requirements (access to court, independent and impartial tribunal, execution of court decisions etc.) and requirements for criminal proceedings (presumption of innocence, principle nullum crimen sine lege etc.) It is noted that the legality, legal certainty, fairness of a trial are formal requirements of the rule of law, thus the priority of human rights is a substantive (material) requirement of the rule of law. The aforementioned testifies to the natural-legal approach that the ECHR is guided by in interpreting the rule of law in its practice, understanding it primarily as the rule of human rights.

13. Article 7: no punishment without law

2021 ◽  
pp. 293-304
Author(s):  
Howard Davis
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
European Convention ◽  
Legal Knowledge ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Key Points ◽  
Self Test ◽  
The Law ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses on Article 7, which prohibits the retrospective application of criminal laws. This means that a person should not be convicted for an offence that did not exist at the time he or she committed the acts in question, nor should any punishment they receive be one that was not available to the courts at that time. Article 7 also embodies the principle of legal certainty in the context of criminal law. In order for people to adjust their conduct accordingly, they must be able to know the laws that apply to them and be able to foresee the circumstances in which laws will be applied. As an aspect of the ‘rule of law’, Article 7 embodies the idea that the law should not be used arbitrarily.

scholarly journals Hukuman Tindak Pidana Pornografi dalam Hukum Pidana Islam

2019 ◽  
Vol 21 (2) ◽  
pp. 241-254
Author(s):  
Said Firdaus ◽  
Mohd. Din ◽  
Iman Jauhari
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Islamic Law ◽  
Negative Impact ◽  
Criminal Prosecution ◽  
The Rule Of Law ◽  
Criminal Sanctions ◽  
The Law ◽  
Normative Aspect ◽  
Laws And Regulations

Tujuan penelitian ini adalah untuk menelaah aturan hukum serta alasan mengapa bentuk dan kriteria tindak pidana pornografi dalam hukum pidana Islam, penerapan sanksi tindak pidana pornografi menurut Undang-Undang Nomor 44 Tahun 2008 dan Hukum Islam, dan dampak positif dan negatif tindak pidana pornografi. Pornografi dilarang menurut hukum nasional. Penelitian ini adalah penelitian hukum yuridis normatif, dengan mengkaji peraturan perundang-undangan, dengan melihat hukum dari aspek normatif. Data yang digunakan dalam penelitian ini adalah bahan hukum. Hasil penelitian menunjukan bahwa bentuk dan kriteria dalam hukum pidana Islam yang dapat dikategorikan sebagai tindak pidana pornografi adanya bentuk tingkah laku, sifat melawan hukum, kesalahan, akibat konstitutif, keadaan menyertai, syarat tambahan untuk dapatnya dituntut pidana, dan syarat tambahan untuk dapat dipidana. Penerapan sanksi tindak pidana dalam hukum Islam hukuman bagi pelaku tindak pidana pornografi bisa dihukum dengan hukuman zina, ta’zir, dan qisas. The Pornographic Criminal Sanctions In Islamic Crime This research aims to examine the rule of law, the forms and criteria of pornography in Islamic criminal law, the pornographic criminal sanctions in accordance with Law No. 44 Year 2008 and Islamic Law, as well as positive and negative impact of pornography. Based on National law Pornography is prohibited. This is a normative juridical research, not only by studying the laws and regulations but also by looking at the law from the normative aspect. The data used in this reasearch is legal material. The results show that the forms and criteria in Islamic criminal law that categorized as pornographic crimes were forms of behavior, unlawful act, misconduct, constitutive consequences, certain circumstances, additional conditions for criminal prosecution, and additional conditions for punishment. The application of criminal sanctions in Islamic law penalties for those who commit pornography can be punished by Adultery, Ta'zir, and Qisas.

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