scholarly journals Analisis Penerapan Pembuktian Terbalik dalam Kasus Tindak Pidana Korupsi

Al-Mizan ◽  
2020 ◽  
Vol 16 (2) ◽  
pp. 225-248
Author(s):  
Arhjayati Rahim ◽  
Madinah Mokobombang
Keyword(s):  
Burden Of Proof ◽  
Criminal Case ◽  
Proof System ◽  
Public Prosecutor ◽  
Criminal Cases ◽  
The Public ◽  
The Right ◽  
Research Show

Evidence in criminal cases is generally borne by the public prosecutor. This is different from the criminal case of corruption, in addition to being proven by the public prosecutor, the defendant also has the right to prove that he did not commit a criminal act of corruption. This study aims to determine the arrangement of the shifting burden of proof system in cases of corruption and the application of the shifting burden of proof system in cases of corruption in Decision Number: 22/Pid.Sus-TPK/2018/PN.Gto. This type of research is a literature analyzed with a normative juridical approach. The results of the research show that the Decision Number: 22/Pid.Sus-TPK/2018/PN.Gto, seen from the evidence that in terms of the application of reverse evidence, the defendant exercised his right to carry out shifting burden of proof. However, the defendant did not prove that the property he had obtained was not the result of a criminal act of corruption, even though it was his obligation to prove this, so that the right to shifting burden of proof evidence was not fully utilized by the defendant.

scholarly journals REVERSAL BURDEN OF EVIDANCE ON A CRIMINAL CORRUPTION IN INDONESIA

2018 ◽  
Vol 2 (2) ◽  
pp. 72
Author(s):  
Hasnawati Hasnawati
Keyword(s):  
Law Enforcement ◽  
Research Result ◽  
Burden Of Proof ◽  
Public Prosecutor ◽  
The Public ◽  
Free Theory ◽  
Materials Research ◽  
The Law ◽  
The Right

The research aim are to know the implementation of strict evidence in corruption committed in Indonesia and the constraint or obstacle faced by the corruption agency. The method of this research was normative juridical, because the research about reversal burden of proof of corruption in crime in Indonesia, which data obtained from primary, secondary, and tertiary legal materials. Research result reveal that implementation of proof in corruption cases is often felt to be ineffective and very burdensome to the Investigator apparatus therefor  two theories of proof, namely the free theory embraced by the dependent and negative theory according to the law adopted  by the public prosecutor or ordinary commonly called the theory reversal burden of  limited proof and in balance , the dependent has the right to proved that he has not commited a criminal act of corruption and that the prosecutor still has the duty to verify the indictment. The obstacles faced by law enforcement in implementing the burdening system of proof on the handling of corruption crime, namely the Contraints for the public Prosecutor and the obstacle for the judge divided into 2(two) types, namely : Juridical and Non Juridical Contrains

scholarly journals The Problematics of the Implementation of the Dominus Litis

2020 ◽  
Vol 3 (4) ◽  
pp. 2986-2993
Author(s):  
Muhammad Yusni
Keyword(s):  
Criminal Justice ◽  
Low Cost ◽  
Criminal Case ◽  
Public Prosecutor ◽  
Slow Process ◽  
Criminal Cases ◽  
Judicial Process ◽  
The Public ◽  
Case Files ◽  
Eligibility Standards

Public prosecutors have the authority to control criminal cases, examine the results of investigators' examinations, or filter case files regarding the completeness of requirements and eligibility standards to be delegated to court. This principle is called dominus litis. Etymologically dominus (Latin), which means owner, litis means case or lawsuit. In this context, the public prosecutor as dominus litis is the owner of a criminal case submitted to the court for trial. The problem of applying the dominus litis principle from the perspective of the prosecutor's office raises many problems, which can hinder a simple, fast, and low cost judicial process. The back and forth of criminal case files between public prosecutors and investigators is not a strange thing in this context, the slow process of criminal justice is protracted, tiring, and even unclear, and creates injustice for justice seekers, and so on.

On the Consideration of a Criminal Case Against a Minor by Jury

2021 ◽  
Vol 2 ◽  
pp. 90-96
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Criminal Case ◽  
Jury Trial ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Scientific Discussion ◽  
Judicial Practice ◽  
Criminal Procedure Law ◽  
The Right ◽  
A Minor

The functioning of the jury in Russia has demonstrated not only effectiveness, but also a number of problems that need to be resolved. Such problems include the personal jurisdiction of criminal cases by jury. The article reveals the legal positions of the Constitutional Court of the Russian Federation regarding the right of minors to trial a criminal case in a jury. The approaches to solving this issue that have developed in the judicial practice of individual foreign states are analyzed, the main directions for further scientific discussion regarding the right of minors to a jury trial are outlined. The purpose of the article is to disclose various approaches to the administration of criminal justice in the relations of minors with the participation of lay judges. The theoretical basis of the study was Russian and foreign scientific works in the field of criminal procedure law, devoted both to the consideration of criminal cases with the jury, and the specifics of juvenile criminal proceedings. Using the comparative legal research method has allowed to reveal various approaches to the access of minors to jury trials in individual states. In Russian legislation and judicial practice the question of the right of minors to have a criminal case against them considered by a jury remains unresolved. The position of the Constitutional Court of Russia regarding the jurisdiction of such criminal cases is also controversial. The experience of foreign countries indicates that there is no universal way to ensure the right of a minor to a proper court. This issue is decided depending on the type of criminal process, the presence or absence of specialized juvenile courts. Any direct borrowing in this regard cannot be considered effective, but a generalization of foreign experience can create the necessary basis for optimizing both the work of the jury and criminal proceedings against minors.

scholarly journals Burden of Proof Reversal in Criminal Acts of Money Laundering

2019 ◽  
pp. 98-104
Author(s):  
Muhammad Khusnul Fauzi Zainal ◽  
Syukri Akub ◽  
Andi Muhammad Sofyan
Keyword(s):  
Law Enforcement ◽  
Money Laundering ◽  
Burden Of Proof ◽  
Public Prosecutor ◽  
Legal Research ◽  
Law Enforcement Agencies ◽  
The Public ◽  
Community Law ◽  
Legal Structure ◽  
Criminal Offenses

This study aims to analyze the burden of proof reversal system in handling cases of money laundering. This type of research is normative juridical legal research. The results of this study indicate that in the reversal system of the burden of proof of criminal acts of money laundering, each party has a burden of proof, the public prosecutor is burdened to prove that these assets are the property of the defendant and has a relationship with the original criminal act charged, while the defendant burdened to prove the origin of the assets claimed and if the defendant is unable to prove the origin of the assets, the assets can be strongly suspected to originate from criminal offenses. There are still obstacles in law enforcement both from the substance of the law (norms), legal structure (law enforcement agencies) and the culture of law (the culture of community law).

Silence with caution: The right to silence in police investigations in Belgium

2021 ◽  
pp. 203228442110283
Author(s):  
Ashlee Beazley ◽  
Fien Gilleir ◽  
Michele Panzavolta ◽  
Joëlle Rozie ◽  
Miet Vanderhallen
Keyword(s):  
Case Law ◽  
Public Prosecutor ◽  
Criminal Proceedings ◽  
The Public ◽  
Digital Devices ◽  
Police Investigations ◽  
Right To Silence ◽  
Right To Information ◽  
Definition Of ◽  
The Right

This article is about the right to remain silent within Belgium. Although the right has always been considered applicable, both the courts and parliament have historically demonstrated a disinclination to define or engage with this. The right to silence is now formally recognised in the Belgian Code of Criminal Procedure, albeit with the classic distinction between those who are not (yet) accused of a crime and those who are formal suspects: while all enjoy the right not to incriminate themselves, only formal suspects in Belgium enjoy the explicit right to remain silent. Accordingly, whilst no one may be obliged to assist with their own conviction or be forced to co-operate with the authorities, it remains unclear how far the right not to cooperate effectively stretches. The case law seems to be moving, albeit slowly, in the direction of confining this right within narrower borders, particularly by excluding its applicability with regard to the unlocking and decryption of digital devices. This is not, however, the only idiosyncrasy concerning the right to silence in Belgium. Among those also addressed in this article are: the lack of caution on the right to remain silent given to arrested persons immediately following their deprivation of liberty (an absence striking for its apparent breach of Directive 2012/13/EU on the right to information in criminal proceedings); the possible inducement to breach the right to silence via the discretionary powers of the public prosecutor to offer a reduction or mitigation in sentence; the obscurity surrounding the definition of ‘interrogation’ and the consequences of this on both the caution and the obtaining of statements; and the extent to which judges can draw adverse inferences from the right to silence. The question remains: is the right to silence currently protected enough?

TINDAK PIDANA PENCURIAN DENGAN PEMBERATAN YANG DILAKUKAN SECARA BERSAMA-SAMA (Analisis Putusan Nomor 143/Pid.B/2015/PN.Dmk)

2021 ◽  
Vol 3 (2) ◽  
Author(s):  
Chairunisa Chairunisa ◽  
Alfitra Alfitra ◽  
Mara Sutan Rambe
Keyword(s):  
Criminal Code ◽  
Public Prosecutor ◽  
Economic Factors ◽  
The Public ◽  
The Family ◽  
The Right ◽  
The Impact

Permasalahan utama dalam penelitian ini adalah ketidaktepatan penjatuhan pidana oleh Hakim kepada pelaku dalam kasus pencurian dengan pemberatan pada Putusan Nomor 143/Pid.B/2015/PN.Dmk. Penelitian ini bertujuan untuk mengetahui dan menganalisis faktor yang melatarbelakangi terjadinya pencurian dengan pemberatan dan pertimbangan Hakim dalam menjatuhkan pidana terhadap pelaku dalam Putusan Nomor 143/Pid.B/2015/PN.Dmk. Hasil penelitian ini menunjukkan bahwa faktor yang melatarbelakangi terjadinya tindak pidana pencurian dengan pemberatan dalam putusan Nomor 143/Pid.B/2015/PN.Dmk oleh AD sebagai pelaku turut serta melakukan pencurian dengan pemberatan yaitu disebabkan oleh faktor ekonomi karena ia merupakan tulang punggung keluarga dan harus memenuhi kebutuhan hidup baik untuk dirinya maupun keluarganya. Kemudian, oleh karena semua unsur dalam dakwaan primair telah terpenuhi, Hakim menjatuhkan pidana kepada pelaku dengan dakwaan kesatu yaitu pelaku melanggar Pasal 363 Ayat (1) Ke-3, Ke-4, dan Ke-5 KUHP. Hakim sudah tepat mengambil keputusan yaitu mengadili pelaku dengan tindak pidana pencurian dalam keadaan memberatkan akan tetapi hukuman yang dijatuhkan oleh Hakim sangatlah minim dan lebih rendah dari apa yang dituntut oleh Jaksa Penuntut Umum karena pelaku sebelum melakukan tindak pidana pencurian dengan pemberatan baru saja keluar dari Lembaga Pemasyarakatan (Lapas) dengan kasus Penggelapan dalam Putusan Nomor 133/Pid.B/2014/PN.Pti dan sudah pernah dihukum. Maka dari itu, hukuman yang diberikan kepada pelaku tidaklah sebanding dengan apa yang dilakukannya dan sebaiknya Hakim juga mempertimbangkan dampak dan kerugian yang ditimbulkan bagi korban akibat perbuatan pelaku.AbstractThe main problem in this research is the inaccuracy of the sentence handed down by the judge to the perpetrator of the robbery case weighing Decision Number 143/Pid.B/ 2015/PN.Dmk. This study aims to see and analyze the factors underlying the weighted actions and judges' considerations in imposing crimes against the perpetrators of Decision Number 143/Pid.B/2015/PN.Dmk. The results showed that the factors behind the occurrence of criminal acts of theft with weighting in the decision Number 143/Pid.B/2015/PN.Dmk by AD as the perpetrator participated in committing theft with weight, namely due to economic factors because he was the backbone of the family and had to meet the necessities of life both for himself and his family. Then, because all the elements in the primair indictment had been fulfilled, the Judge sentenced the perpetrator to the first charge, namely the perpetrator violating Article 363 Paragraph (1) 3rd, 4th, and 5th of the Criminal Code. The judge has made the right decision, namely trying the perpetrator with a criminal act of theft in burdensome circumstances, but the sentence handed down by the Judge is very minimal and lower than what is demanded by the Public Prosecutor because the perpetrator before committing the crime of theft with weight has just left the Penitentiary (Lapas) with embezzlement cases in Decision Number 133/Pid.B/2014/PN.Pti and have already been convicted. Therefore, the sentence given to the perpetrator is not proportional to what he has done and the judge should also consider the impact and harm caused to the victim as a result of the perpetrator's actions.

Settling Criminal Cases Without a Trial

1997 ◽  
Vol 31 (1-3) ◽  
pp. 223-244
Author(s):  
Bert Swart
Keyword(s):  
European Convention ◽  
Public Prosecutor ◽  
Political Rights ◽  
Criminal Cases ◽  
The Public ◽  
Criminal Sanctions ◽  
Criminal Charge ◽  
A Charge ◽  
Almost All

According to Article 13 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights everyone is entitled to a fair and public hearing by an independent and impartial tribunal in the determination of any criminal charge against him. The essence of both provisions could be rephrased by saying that criminal sanctions may only be imposed on a person by an independent and impartial tribunal and only if that person has been able to defend himself against a charge during a hearing that satisfies all requirements of a fair trial.Realities, of course, are rather different. In almost all national systems of justice there is an increasing tendency to develop procedures that allow for imposing sanctions without the necessity of a criminal trial. Their main purpose is usually to relieve the system of a burden of cases with which it cannot really cope. Basically, there are two strategies to reduce the workload of courts and public prosecutors. The first is to invite the suspect to waive his right to trial in exchange for certain favours. This usually occurs in the form of an agreement between the public prosecutor and the suspect, while quite often the cooperation of the court that would have tried the case is also required. The second solution is to grant sanctioning powers to administrative bodies and to allow individual persons an appeal against their decisions to an independent and impartial tribunal.

Prosecutor in the Court of Cassation in Criminal Cases

2016 ◽  
Vol 4 (2) ◽  
pp. 0-0
Author(s):  
Лев Бертовский ◽  
Lyev Byertovskiy ◽  
Дина Гехова ◽  
Dina Gekhova
Keyword(s):  
Russian Federation ◽  
Public Prosecutor ◽  
Federal Law ◽  
Criminal Cases ◽  
Judicial Practice ◽  
Procedure Code ◽  
Moscow City ◽  
The Russian Federation ◽  
The Right

Federal Law No. 433-FZ «On Amendments to the Criminal Procedure Code of the Russian Federation and the Annulment of Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation» entered into force since January 1, 2013 in relation to the powers of prosecutors to lodge cassation representations against court’s decisions is under review in the article. The authors analyse judicial practice of cassation instance in Moscow City Court of 2014 year on criminal cases and demonstrate some omissions of prosecutors in consideration of cases in the court of cassation. The conclusion shows that a cassation representation should be prepared and submitted by subordinate to higher prosecutor, provided that public prosecutor shall obtain the right to apply directly to that prosecutor who has the right to lodge a cassation representation along with the project thereof. Such novel will positively influence to the quality of cassation representations prepared and made by prosecutors.

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 Monitor WhatsApp conversations in Palestinian legislation and related guarantees

2020 ◽  
pp. 84-97
Author(s):  
Abdullah Deeb Mahmoud ◽  
Keyword(s):  
Private Life ◽  
Public Prosecutor ◽  
Public Prosecution ◽  
The Public ◽  
Electronic Evidence ◽  
The Right To Privacy ◽  
Court Judge ◽  
Control Procedures ◽  
The Right ◽  
And Control

Monitoring electronic conversations in general, including WhatsApp conversations, is an investigation that falls within the jurisdiction and control of the Public Prosecution. Obtaining the approval of a Magistrate’s Court judge to conduct the observation is considered one of the basic conditions for the validity of the observation procedure. It is of the importance of electronic conversations, which have become legally recognized electronic evidence of crimes of all kinds, as long as the proper legal path that the Palestinian legislator has been followed in obtaining them is followed, the records may be audible, read, or visible, and in particular Lee is considered to be of legal value, whether it represents evidence of conviction or innocence, as a judge can extract its value after reviewing it and reviewing its details, or use an expert to analyze it, especially if it is not clear. It should be noted that protecting the private life of individuals is a constitutional and universal principle that may not be violated by control procedures except to the limits set by the law, since the right to privacy is subject to restriction and is subject to derogation from it according to legal procedures, especially in order to access the truth and achieve justice in accordance with exceptional and strict procedures. It is permissible to violate it, it is not permissible to monitor and record the conversations unless there is a benefit from them for the appearance of the truth, after the approval of the Magistrate’s Court judge upon the request of the Public Prosecutor or one of his assistants to monitor communications and (WhatsApp) conversations and registrations and deal with them to search for Evidence for a felony or misdemeanor is punishable by imprisonment for a period of no less than a year.

Sign in / Sign up

Export Citation Format

Share Document