scholarly journals BRIBERY AND GRATUITY: REGULATORY ANALYSIS AND JUDICIAL RESPONSE

2021 ◽  
Vol 6 (2) ◽  
pp. 267
Author(s):  
Ach. Tahir ◽  
Mahrus Ali ◽  
Muhammad Arif Setiawan
Keyword(s):  
Burden Of Proof ◽  
Criminal Procedure ◽  
Court Cases ◽  
Legal Research ◽  
Criminal Offense ◽  
Criminal Sanctions ◽  
Procedure Code ◽  
Reporting Mechanism ◽  
Regulatory Analysis

<p>This paper is aimed at analyzing the concepts and parameters to determine an act as a bribery and gratuity in the Anti-Corruption Law and court cases.  This involved the application of the doctrinal legal research to understand these differences. The results of this study showed that bribery requires a meeting of mind between the bribe givers and bribe recipients which is not found in gratuity. The reporting mechanism and the reversal burden of proof do not apply to bribery while Operation Catching Hand does not apply to gratuity due to its inability to satisfy the provisions of the Criminal Procedure Code. Criminal sanctions are also imposed on both the giver and the recipient of a bribe while the act of a giver in gratuity is not considered as a criminal offense. The study also found that the court failed to apply these essential differences.</p>

Extradition of a Person: The National Law of Ukraine and the Case Law of the European Court of Human Rights

2021 ◽  
Vol 39 (9) ◽  
Author(s):  
Tatiana H. Fomina ◽  
Volodymyr I. Galagan ◽  
Zhаnnа V. Udovenko ◽  
Serhii Ye. Ablamskyi ◽  
Yana Yu. Koniushenko
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Offense ◽  
National Legislation ◽  
Procedure Code ◽  
European Court ◽  
Relevant Case ◽  
The Right

This article aims at establishing and emulating the relevant issues surrounding the detention of person presumed of committing a criminal offense outside the territory of Ukraine in respect with the provisions adumbrated by the European Court of Human Rights. The study was conducted through the prism of national legislation and the relevant case law of the European Court of Human Rights. The issues of realization of the detainee's rights, including the right to protection, were considered separately. According to the results of the study, certain ways to improve the provisions of the Criminal Procedure Code of Ukraine have been formulated.

Menilai Pertimbangan Hakim dalam Memutuskan Tindak Pidana Kekerasan

Lentera Hukum ◽  
2017 ◽  
Vol 4 (1) ◽  
pp. 46
Author(s):  
Lela Tyas Eka Prihatining Cahya ◽  
Dwi Endah Nurhayati ◽  
Dodik Prihatin AN
Keyword(s):  
Criminal Procedure ◽  
Criminal Code ◽  
Criminal Offense ◽  
Procedure Code

This writing examines the consideration of judge to the decision concerning violence case according to Article 170 KUHP (Criminal Code) and evaluates conformity of decision with the provision of Article 197 Paragraph (1) KUHAP (Criminal Procedure Code) in the case of violence happened in Mojokerto. It takes into account of the judge to decide consideration which has the consequence of a decision made by the judge void by law. It uses statute and conceptual approaches analyzed through Article 170 KUHP and Article 197 Paragraph (1) KUHAP linked to the doctrine of experts to corroborate argument from the authors. In conclusion, this research considers the statement of the judge that the defendant guilty of a criminal offense according to Article 170 Paragraph 1 KUHP does not conform with the fact in the court wherein the court it is obtained the explanation from the witness that the letter of Visum et Repertum and a statement of the defendant done are exercised by the defendants caused casualties sustained. In addition, in making decision, the judge does not refer to Article 197 Paragraph (1) letter d and h so in which the decision should be declared void by law. Keywords: Consideration of Judge, Criminal Offense, Violence

scholarly journals Separate Filing (Splitsing) In Criminal Case Management

2018 ◽  
Vol 1 (2) ◽  
pp. 461
Author(s):  
Hidayat Abdulah
Keyword(s):  
Case Management ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Public Prosecutor ◽  
Criminal Offense ◽  
Case File ◽  
The Public ◽  
Procedure Code ◽  
Court Process

In the implementation of the criminal case handling a lot of things that can be done to perfect evidence is the failure by one of them is doing a separate filing (splitsing). In Article 142 Criminal Procedure Code stipulates that the public prosecutor has the authority to separate docket (splitsing) against each defendant if found lacking evidence and testimony, as well as other matters that are not included in the provisions of Article 141 of the Criminal Procedure Code. Separation of the case must be based on solely the purpose of examination. That's what makes the public prosecutor has the authority to determine the case file should be separated (splitsing) or not. The purpose for doing the separation of the case file (splitsing) is to facilitate the enforcement of the prosecutor when the court process, to strengthen the evidence for lack of evidence when the process of verification, then a criminal offense committed by the offender more than one and the same time one of these actors into the search list (DPO) which allow splitsing.Keywords: Separate Filing; The Criminal Case.

scholarly journals Analisis Keabsahan Pembacaan Putusan Pidana yang Dibacakan Secara Virtual atau Elektronik

2021 ◽  
Vol 4 (6) ◽  
pp. 2161
Author(s):  
Angelia Dwi Oktavia
Keyword(s):  
Research Method ◽  
Criminal Procedure ◽  
Multimedia Technology ◽  
Legal Research ◽  
Legal Problems ◽  
Procedure Code ◽  
Laws And Regulations

AbstractThe use of teleconferencing facilities in courts in Indonesia is actually not an absolute new thing. Long before, the model for examining witnesses with the help of multimedia technology was first carried out in 2002. However, teleconferencing has not been recognized in the Criminal Procedure Code, because at the time the Act was enacted it could not be practiced. Regarding reading the decision by teleconference, there has also been no reading regarding whether it is legal or not. The formulation of the problem reviewed in this study is whether reading a criminal verdict read out virtually or electronically is against Article 195 of the Criminal Procedure Code. The research method used is legal research with an approach and an approach to laws and regulations to examine existing legal problems. The results of this research can be seen that reading a criminal reading that is read out virtual or electronically does not conflict with Article 195 of the Criminal Procedure Code because it refers to the principle of Salus Polupi Suprema lex Esto and refers to the relevant laws.Keywords: Trial; Teleconference; Decision.AbstrakPenggunaan sarana teleconference di dalam persidangan di Indonesia sebenarnya bukan merupakan hal yang mutlak baru. Jauh sebelumnya, model pemeriksaan saksi dengan bantuan teknologi multimedia pertama kali dilakukan pada tahun 2002. Tetapi teleconference belum diakui dalam Kitab Undang-Undang¬ Hukum Acara Pidana, karena pada masa Undang-Undang dibuat hal demikian itu tidak dapat dipraktikkan. Terkait dengan pembacaan putusan pidana secara teleconference juga belum ada kejelasan terkait sah atau tidaknya. Rumusan masalah yang diulas dalam penelitian ini adalah apakah pembacaan putusan pidana yang dibacakan secara virtual atau elektronik bertentangan dengan Pasal 195 KUHAP. Mmetode penelitian yang digunakan adalah legal research dengan melalui pendekatan konseptual dan pendekatan peraturan perundang-undangan untuk mengkaji permasalahan hukum yang ada. Hasil dari penelitian tersebut dapat diketahui bahwa pembacaan putusan pidana yang dibacakan secara virtual atau elektronik tidak bertentangan dengan Pasal 195 KUHAP karena mengacu kepada asas Salus Polupi Suprema lex Esto serta mengacu kepada Undang-Undang yang terkait.Kata Kunci: Persidangan; Teleconference; Putusan.

scholarly journals Personal Security Measures. An Analyze of the Albanian Legislation

2016 ◽  
Vol 4 (1) ◽  
pp. 166
Author(s):  
Nikolin Hasani
Keyword(s):  
Supreme Court ◽  
Criminal Procedure ◽  
Security Measures ◽  
Criminal Offense ◽  
Coercive Measures ◽  
Personal Security ◽  
Procedure Code ◽  
The Supreme Court

The personal security measures are directed against the suspected person of the committing a criminal offense depriving of some rights charging him with specific obligations. Referred to Criminal Procedure Code of Republic of Albania personal security measures are divided into coercive measures and prohibitive measures. The Supreme Court by an unifying decision is expressed that [1] Look the decision no.3 date 27 September 2009 of Supreme Court

scholarly journals Appropriate subject of obtaining evidence of a criminal offense in the opinion of the court

2021 ◽  
Vol 66 ◽  
pp. 224-228
Author(s):  
A.-M.Y. Anheleniuk
Keyword(s):  
Criminal Procedure ◽  
Evidence Base ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Procedure Code ◽  
Evidence Collection ◽  
The Subject ◽  
The Right ◽  
Operational Unit

The article considers the collection of evidence by the prosecution, because it is in this order that the evidence base of criminal proceedings is most often formed. Thus, the prosecutor, investigator (investigator) acting under Articles 36, 40, 401 of the Criminal Procedure Code of Ukraine, as well as an employee of the operational unit pursuant to Article 41 of the Criminal Procedure Code of Ukraine on behalf of the investigator or prosecutor have the right to collect evidence. The purpose of the article is to study the affiliation of the subjects of evidence collection as part of the procedural form of the criminal process of Ukraine, taking into account the analysis of court decisions, namely the assessment of the evidence base as a basis for deciding on the merits of criminal proceedings. Cases of involvement of an improper subject in the pre-trial investigation, which are common and typical, are systematized. There are two types of improper subjects within the investigative (search) or procedural actions, namely the subject: 1) is not appointed in the manner prescribed by law, although according to current legislation according to the list of its powers may be appropriate; 2) does not have the authority under the law to make a specific decision or to conduct investigative (search) or procedural actions. An analysis of court decisions according to which courts provide an assessment of the procedural activities of the subjects of evidence collection in criminal proceedings at the stage of pre-trial investigation, including their relevance and admissibility. Thus, attention is paid to the assessment of courts on the legality of the presence of persons during investigative (investigative) or procedural actions; the correctness of fixing such a presence. In addition, the situations of appointment of relevant subjects in criminal proceedings to fulfill their powers are considered. It is proposed to supplement the first part of Article 236 of the Criminal Procedure Code of Ukraine with a provision that clarifies the grounds for the stay and authority of the employee of the operational and investigative service during the search.

scholarly journals The implication of reversal burden proof on corruption criminal act

2020 ◽  
Vol 9 (4) ◽  
pp. e60942844
Author(s):  
Djoko Sumaryanto
Keyword(s):  
Criminal Behavior ◽  
Burden Of Proof ◽  
Proof System ◽  
Legal Research ◽  
Criminal Sanctions ◽  
Financial Losses

The polemic of the ratification of KPK (Corruption Eradication Commission) Constitution indicated the good intentions of government as well as people in society through their respective perceptions which in conclusion whether the KPK is getting stronger or become weaker. The aim of this analysis is to examine on the implication of reversal burden proof system on corruption criminal act in Indonesian Law. Reversal of the burden proof as determined in the PTPK Law and the 2003 KAK Law leaves problems in its implementation, through normative legal research with the study of laws and comparisons, something new is obtained which is a guideline for judges in giving verdicts regarding the results of verification of assets and actions. Implications of proven or unproven acts and assets of the defendant through reversing the burden of proof of criminal criminal behavior which is greatly affects the received sanction by the defendant which include imprisonment penalties, criminal sanctions for fines and additional criminal sanctions in the form of returning state financial losses.

scholarly journals PENERAPAN SISTEM PEMBUKTIAN TERBALIK TERHADAP TINDAK PIDANA KORUPSI (SEBUAH UPAYA PROGRESIF DALAM PEMBERANTASAN TINDAK PIDANA KORUPSI)

2012 ◽  
Vol 1 (2) ◽  
Author(s):  
Muwahid
Keyword(s):  
Data Analysis ◽  
Criminal Law ◽  
Burden Of Proof ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Research Data ◽  
Proof System ◽  
Conventional System ◽  
Legal Research ◽  
The Law

<p align="center"><strong>Abstract</strong></p><p>The main object of this research is the regulation reversal burden of proof system of corruption in Act Number 20 of 2001. This research is a normative legal research, data obtained from primary legal materials that legislation, and secondary legal materials namely, books, journals and law relating to the burden of proof. The technique of data analysis uses content analysis.The results of research showed, <em>First</em> the reversal burden of proof system in criminal law of corruption stipulated in Article 12B paragraph (1), Article 37, Article 38A and Article 38B of Act Number 20 of 2001 on the eradication of corruption.<em> Second,</em> the application of reversal burden of proof principle in a criminal act of corruption is a specific provision in the law of criminal procedure, as a way to take war or eradicate of the corruption which is an extra ordinary crime, this provision is evidence of irregularities in the conventional system as was stipulated by the Criminal Code, in this case applies the principle of <em>lex specialis derogat lex generalis.</em><em></em></p><p><strong>Keywords</strong>: <em>Aplication,</em> <em>Reversal Burden of Proof, Corruption.</em></p>

scholarly journals Alternative sanctions and new legislation in the Republic of Serbia

Temida ◽  
2006 ◽  
Vol 9 (1) ◽  
pp. 55-59 ◽  
Author(s):  
Natasa Mrvic-Petrovic
Keyword(s):  
Community Service ◽  
Criminal Procedure ◽  
Criminal Sanctions ◽  
Procedure Code ◽  
Conditional Sentence ◽  
The Law ◽  
The Republic ◽  
Alternative Sanctions

The author is particularly emphasizing peculiarities of the provision on community service as a main penalty (which is foreseen together with the fine and the prison). This solution requires not only the profound regulations in the Law on the execution of the criminal sanctions, but also a careful creation of the by-laws. In the paper, particular attention is paid to the new solutions in the Law on the execution of the criminal sanctions, which aim is to enable the implementation of the community service and the conditional sentence with the protective surveillance. The author states that previous changes of the Criminal Procedure Code, which introduced the principle of opportunity in prosecuting, made a basis for taking victim?s interests related to the redress more into account while starting the prosecution. However, the possibility of using the redress as a basis for the elimination/diversion of the criminal procedure is still not used in an appropriate way in the practice.

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