scholarly journals FEATURES OF PROVIDING INAPPROPRIATE EXECUTION OF PROFESSIONAL RESPONSIBILITIES BY A MEDICAL WORKER

2020 ◽  
pp. 239-251
Author(s):  
O. Baulin
Keyword(s):  
Criminal Procedure ◽  
Professional Activity ◽  
Criminal Prosecution ◽  
Medical Worker ◽  
Procedure Code ◽  
Medical Documents ◽  
The Law ◽  
The One ◽  
Procedural Decisions ◽  
Medical Examinations

The article discusses the proof of improper performance of professional duties by a medical worker. It is noted that rare cases of criminal prosecution of medical workers for failure to perform or improper performance of their professional duties, which are reflected in judicial statistics against the background of numerous complaints of victims in health facilities, are caused by the lack of evidence for the prosecution. According to the verdicts, evidence of the commission of these crimes are testimonies, documents and conclusions of examinations. The originals of medical documents are especially important, which, in order to be admissible in proof, should appear on the side of the prosecution in accordance with the law, including the one that regulates medical activities, storage and access to documentation, which may contain information that constitutes medical confidentiality. It is recommended to involve specialists in the field of medicine to participate in procedural actions, as they expertly help the investigator to collect traces of the use of medicines and find out other issues. Commission forensic medical examination in cases of professional activity violations by medical workers is mandatory, as it solves the issue of the presence of defects in their actions. It is noted that the Rules for the Commission of Forensic Medical Examinations, approved by the Ministry of Health of Ukraine in 1995, provide for the possibility of inclusion in the commissions, along with experts, specialists of other specialties, which was allowed by the Criminal Procedure Code of Ukraine in 1960. Since the Criminal Procedure Code of Ukraine of 2012 does not provide such an opportunity, the conclusions obtained by such commissions should not be used in making procedural decisions. To solve this problem, it is proposed to fix in the Code of Criminal Procedure of Ukraine the procedure for attracting to conduct comprehensive and commission forensic examinations necessary to ensure their objectivity and completeness of specialists from among those who are not forensic experts. The proposed changes to the law, as well as the recommended approach of the investigator and the prosecutor to determine the means of evidence will contribute to a better and faster investigation of the non-fulfillment or improper performance of medical duties by medical workers and will strengthen the prosecution’s position in court when considering cases of this category.

scholarly journals Discussion on the Properties of Relevance, Admissibility and Reliability of Criminal Procedural Evidence

Lex Russica ◽  
2021 ◽  
pp. 67-76
Author(s):  
S. V. Kornakova
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Clear Understanding ◽  
Procedure Code ◽  
The Status ◽  
Nature Of Information ◽  
The Russian Federation ◽  
The Law ◽  
Definition Of ◽  
Procedural Decisions

The paper analyzes the legislative definition of criminal procedural evidence. The author gives critical assessment of replacement of the phrase “any factual data” from the Criminal Procedure Code of the RSFSR with the phrase “any information” in the Code of Criminal Procedure of the Russian Federation. The wording under consideration gave rise to the possibility for some authors to conclude that the law does not indicate the factual nature of information claiming the status of evidence. The main attention is paid to the question of the necessary properties of proofs. The paper points to the erroneous perception by some researchers of the content of Art. 88 of the Code of Criminal Procedure of the Russian Federation, which manifests itself in endowing the properties of relevance, admissibility and reliability with the status of criteria for evaluating evidence. According to the author, relevance, admissibility and reliability are not criteria for evaluating evidence, but information obtained in the course of proving for the possibility of using it as evidence. The criteria for evaluating the evidence are specified in Part 1 of Art. 17 of the Code of Criminal Procedure of the Russian Federation—the law and the conscience of an authorized person who evaluates evidence according to his inner conviction. In contrast to the opinion of researchers who believe that the necessary properties of evidence include only relevance and admissibility, the author argues that each evidence must also have the property of reliability. Only in the presence of the entire set of necessary properties, the information obtained in the course of proving can be endowed with the status of evidence.The author demonstrates that each of the necessary properties of a proof has an independent content and meaning. Therefore, their confusion is unacceptable. It is concluded that relevance, admissibility and reliability should form the basis for all procedural decisions concerning evidence. According to the author, a clear understanding of the content of these properties would be facilitated by the consolidation of the definitions of these categories in the Criminal Procedure Code of the Russian Federation. It is also advisable to edit Part 1 of Art. 74 of the Criminal Procedure Code of the Russian Federation by means of defining the concept for criminal procedural evidence as "any factual information" and indicating the purpose of obtaining them as "for the correct resolution of the case".

scholarly journals The procedural status of the investigator under the Criminal Procedural Code of Ukraine of 1960 and the Criminal Procedural Code of Ukraine of 2012 in terms of the effectiveness of resolving issues of criminal prosecution of military servicemen

2019 ◽  
Keyword(s):  
Comparative Analysis ◽  
Legal Status ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Procedural Code ◽  
Procedural Decisions

It is established that today many problems arise in the activities of the pre-trial investigation bodies, their legal status, probity and other important issues specified in the legislation are not always clearly and consistently. It is noted that there are various problems with the implementation of investigators of his powers, there are complications with the understanding of his independence. It was argued that it is important to identify and analyze the problems that arise in the work of the pre-trial investigation bodies, the problems of implementing the legal status of the investigator, including by comparative analysis of the regulation of these issues in the 1960 Criminal Procedure Code of Ukraine and the Criminal Procedure Code of Ukraine, 2012 , as well as expressing their own position on the reform of these bodies. It has been established that the comparative analysis of the current criminal procedural legislation with the 1960 law also suggests the procedural functions that can act as a certain link between the tasks and the legal status of the participant in the process, since they determine the procedural status of the investigator, his rights and duties , which are specified in separate criminal procedural institutes and procedural norms. It is noted that the knowledge of the system of procedural functions of the investigator as the main directions of his activity allows the most fully to determine the role of the investigator in the execution of the criminal proceedings, to correctly understand and apply each legal institution and each legal regulation regulating its activities. As future state representatives, investigators have legally established procedural powers that are both for them and for rights (as they allow for procedural actions and procedural decisions), and duties (due to the inappropriate or untimely use of their rights may be an offense if there is no evidence of a crime). It has been argued that within the criminal process there were significant procedural transformations related to the change of the law, some of which were rather substantial, but not always consistent and such that increased the efficiency of the functioning of state authorities aimed at bringing individuals to legal liability.

scholarly journals USE OF SPECIAL KNOWLEDGE DURING THE EXAMINATION OF THE SCENE OF A CRIME IN THE ORDER OF PART 3 ART. 214 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE

2021 ◽  
Vol 74 (1) ◽  
pp. 153-160
Author(s):  
Andrіy Shulha ◽  
◽  
Tetyana Khailova ◽  
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Knowledge And Skills ◽  
Procedural Law ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
The Law

The article deals with the problem of specialist’s participation in the scene examination, which is carried out before entering information into the Unified Register of the pre-trial investigations. The essence of the problem is that the current criminal procedural law of Ukraine recognizes the specialist’s participation only in the pre-trial investigation, the litigation and the proceedings in the case of the commission of an unlawful act under the law of Ukraine on criminal liability. Part 1 of Article 71 of the Criminal Procedure Code of Ukraine states that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and conclusions during the pre-trial investigation and trial on issues that require appropriate special knowledge and skills. In other cases, the specialist has no procedural status. In addition, Part 1 of Article 237 of the CPC of Ukraine «Examination» states that the examination is conducted to identify and record information on the circumstances of the offense commitment. It is an act provided by the law of Ukraine on criminal liability. However, there are the cases in the investigation, when a report is received, for example, about a person's death, other events with formal signs of the offense, which must first be checked for signs of a crime, and only then the act can be considered as offense. In this case, a specialist takes part in the scene examination. However, the current criminal procedure law in accordance with Part 1, Article 71 of the Criminal Procedure Code of Ukraine determines the legal status of a specialist only as the participant in criminal proceedings. The paragraph 10, part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines the criminal proceedings as pre-trial investigation and court proceedings or procedural actions in the case of the commission of an unlawful act. Therefore, when the inspection of the scene is based on the uncertain status of the event (there is no clear information that the event contains signs of an offense), the specialist’s participation is not regulated by law. The authors propose to consider the specialists as «experienced persons» in cases mentioned above and to include their advices to the protocol of the scene examination, as the advices of other scene examination participants.

scholarly journals SUATU KAJIAN YURIDIS TERHADAP PENGGUNAAN ALAT BUKTI ELEKTRONIK DALAM KEJAHATAN CYBER DALAM SISTEM PENEGAKAN HUKUM

2021 ◽  
Vol 3 (2) ◽  
pp. 11-25
Author(s):  
Ni Made Trisna Dewi,Reido Lardiza Fahrial
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Criminal Case ◽  
Law Enforcement Agencies ◽  
Electronic Evidence ◽  
Procedure Code ◽  
The Law ◽  
Witness Statements ◽  
And Function

Abuse in the electronic transaction because it is formed from an electronic process, so the object changes, the goods become electronic data and the evidence is electronic.  Referring to the provisions of positive law in Indonesia, there are several laws and regulations that have set about electronic evidence as legal evidence before the court but there is still debate between the usefulness and function of the electronic evidence itself, from that background in  The following problems can be formulated, How do law enforcement from investigations, prosecutions to criminal case decisions in cybercrimes and How is the use of electronic evidence in criminal case investigations in cybercrimes This research uses normative research methods that are moving from the existence of norm conflicts between the Criminal Procedure Code and  ITE Law Number 19 Year 2016 in the use of evidence.  The law enforcement process of the investigator, the prosecution until the court's decision cannot run in accordance with the provisions of ITE Law Number 19 of 2016, because in interpreting the use of electronic evidence still refers to Article 184 paragraph (1) KUHAP of the Criminal Procedure Code stated that the evidence used  Legitimate are: witness statements, expert statements, letters, instructions and statements of the accused so that the application of the ITE Law cannot be applied effectively The conclusion of this research is that law enforcement using electronic evidence in cyber crime cannot stand alone because the application of the Act  - ITE Law Number 19 Year 2016 still refers to the Criminal Code so that the evidence that is clear before the trial still refers to article 184 paragraph (1) KUHAP of the Criminal Procedure Code and the strength of proof of electronic evidence depends on the law enforcement agencies interpreting it because all electronic evidence is classified into  in evidence in the form of objects as  so there is a need for confidence from the legal apparatus in order to determine the position and truth of the electronic evidence.   Penyalahgunaan didalam transaksi elektronik tersebut karena terbentuk dari suatu proses elektronik, sehingga objeknya pun berubah, barang menjadi data elektronik dan alat buktinya pun bersifat elektronik. Mengacu pada ketentuan hukum positif di Indonesia, ada beberapa peraturan perundang-undangan yang telah mengatur mengenai alat bukti elektronik sebagai alat bukti yang sah di muka pengadilan tetapi tetap masih ada perdebatan antara kegunaan dan fungsi dari alat bukti elektronik itu sendiri, dari latar belakang tersebut di atas dapat dirumuskan masalah sebagai berikut, Bagaimana penegakkan hukum dari penyidikan, penuntutan sampai putusan perkara pidana dalam kejahatan cyber dan Bagaimanakah penggunaan bukti elektronik dalam pemeriksaan perkara pidana dalam kejahatan cyber Penelitian ini menggunakan metode penelitian normatif yakni beranjak dari adanya konflik norma antara KUHAP dengan Undang-undang ITE Nomor 19 Tahun 2016 dalam penggunaan alat bukti. Proses penegakkan hukum dari penyidik, penuntutan sampai pada putusan pengadilan tidak dapat berjalan sesuai dengan ketentuan Undang-undang ITE Nomor 19 Tahun 2016, karena dalam melakukan penafsiran terhadap penggunaan alat bukti Elektronik masih mengacu pada Pasal 184 ayat (1) KUHAP disebutkan bahwa alat bukti yang sah adalah: keterangan saksi, keterangan ahli, surat, petunjuk dan keterangan terdakwa. sehingga penerapan Undang-undang ITE tidak dapat diterapkan secara efektiv. Kesimpulan dari penelitian ini adalah penegakan hukum dengan menggunakan alat bukti elektronik dalam kejahatan cyber tidak bisa berdiri sendiri karena penerapan Undang-Undang ITE Nomor 19 Tahun 2016 tetap merujuk kepada KUHP sehingga alat bukti yang sah di muka persidangan tetap mengacu pada pasal 184 ayat (1) KUHAP dan Kekuatan pembuktian alat bukti elektronik tersebut tergantung dari aparat hukum dalam menafsirkannya karena semua alat bukti elektronik tersebut digolongkan ke dalam alat bukti berupa benda sebagai petunjuk sehingga diperlukan juga keyakinan dari aparat hukum agar bisa menentukan posisi dan kebenaran dari alat bukti elektronik tersebut.

scholarly journals PROSECUTOR'S SUPERVISION OF LAW CONDUCTING INVESTIGATIVE (SEARCH) ACTIONS

2020 ◽  
pp. 377-386
Author(s):  
Я. Ю. Конюшенко
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
The Law ◽  
Procedural Guidance ◽  
Compliance With The Law ◽  
The Relationship

The purpose of the article is to define the prosecutor's supervision over investigative (search) actions as a legal guarantee of human rights, as well as problematic issues in its implementation and to make proposals to improve the current criminal procedure legislation of Ukraine. The article defines doctrinal approaches to the concepts of "prosecutor's supervision over compliance with the law during the pre-trial investigation" and "prosecutor's procedural guidance of the pre-trial investigation" in the context of investigative (search) actions. The author came to the conclusion that the provisions of the Constitution of Ukraine, the Law of Ukraine "On the Prosecutor's Office" and the Criminal Procedure Code of Ukraine in terms of regulating the functions and powers of the prosecutor during the pre-trial investigation. Based on the study, it is proposed to consider procedural guidance as one of the forms of prosecutor's supervision over the pre-trial investigation, which is implemented directly by the prosecutor or a group of prosecutors who are appointed to carry it out in a particular criminal proceeding. The author also emphasizes the existence of forms of supervision of the highest level prosecutor on the legality of these actions, which are implemented through the demand and study of information on the progress and results of pre-trial investigation, criminal proceedings and certified copies of court decisions and study of compliance with criminal procedure. A number of problematic issues during the prosecutor's supervision in pre-trial criminal proceedings are outlined, which relate to the relationship between the prosecutor's supervision and judicial control over the legality of investigative (search) actions; subjects and subject of supervision of the prosecutor in this sphere; providing the prosecutor-procedural manager and prosecutors of the highest level with instructions and instructions during the investigative (search) actions. To address these issues, it is proposed to amend the current criminal procedure legislation of Ukraine. The study of the materials of criminal proceedings and the survey of the subjects of criminal proceedings indicate the existence of a number of problematic issues that exist during the implementation of the prosecutor's procedural guidance of investigative (search) actions in the context of human rights.

scholarly journals PASAL 54 KITAB UNDANG-UNDANG HUKUM ACARA PIDANA DALAM ELABORASI HUKUM PIDANA ISLAM

2021 ◽  
Vol 4 (1) ◽  
pp. 48-69
Author(s):  
Diah Ratri Oktavriana ◽  
Nasiri Nasiri
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Legal Service ◽  
Legal Assistance ◽  
Legal Aid ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Law ◽  
The Right

This research is a normative research. One of the fulfillment of human rights is justice in equalizing the position of every citizen before the law, as stated in Article 27 paragraph (1) of the 1945 Constitution of the Republic of Indonesia. The right to equality before the law or what is commonly referred to as equality before the law is a principle that provides recognition and protection of human rights for every individual regardless of one's background. Therefore, it is true that Law Number 16 of 2011 concerning Legal Aid for People Who Are Less Capable to Guarantee Constitutional Rights of Citizens for Justice and Equality before the Law emerged. Legal aid is a legal service provided by advocates to the community seeking justice In the realm of criminal cases, the provision of legal assistance is described in Article 54 of the Criminal Procedure Code which explains that in the interests of defense, a suspect or defendant has the right to receive legal assistance from one or more legal advisers during the time and at each level of examination. The provision of legal assistance must be based on the principle of equality before the law as stated in the explanation of Law Number 8 of 1981 concerning Criminal Procedure Law. From the various analyzes that have been carried out, in the perspective of Islamic criminal law it can be concluded that the principle of equality before the law as described in Article 54 of the Criminal Procedure Code is equivalent to an order to provide legal aid which in Islamic criminal law is spelled out in Surah Al-Maidah verse 2 which states that as a fellow humans are ordered to help each other as a form of horizontal worship to fellow humans (habl minan-nas). In addition there are many more both in the Al Qur'an and the hadith of the prophet regarding the application of the principle of equality before the law.

scholarly journals Meaning of the Category “Validity of the Charge” in Criminal Proceedings

2021 ◽  
pp. 218-223
Author(s):  
Oksana V. Kachalova ◽  
◽  
Viкtor I. Kachalov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Sufficient Evidence ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Russian Federation ◽  
Simplified Procedure ◽  
Special Order

The aim of the article is to identify the meaning of the category “validity of the charge” in criminal proceedings and the scope of its application. After analyzing the content and legal essence of this category, as well as procedural situations in which it is necessary to establish the validity of the charge, the authors come to the following conclusions. Any coercive measures against suspects and accused persons can be applied only if there are serious grounds to assume that a person is involved in the commission of a crime since the restriction of the most important constitutional rights of citizens who, by virtue of the presumption of innocence, are innocent of committing a crime is possible only in exceptional cases. The validity of the charge (suspicion) assumes that a person is involved in the commission of a crime, as well as the fact of the criminal prosecution of this person. It is established if there is sufficient evidence that a person may have committed a crime (a person was caught committing a crime or immediately after it was committed; the victim or witnesses identified the person as the perpetrator of the crime; obvious traces of the crime were found on the person or their clothing, with them or in their house, etc.). The validity of the charge may be confirmed by a decision to initiate a criminal case and bring a person as an accused, by protocols of detention, interrogations of the accused, the victim, witnesses, and other materials. In the procedural sense, the conditions for establishing the validity of the charge differ significantly. When resolving the issue of the use of detention and other preventive measures, the validity of the charge is established within the framework of a court session in the conditions of adversariality with the participation of the parties. When giving the court permission to conduct investigative and other procedural actions in accordance with Article 165 of the Criminal Procedure Code of the Russian Federation, to ensure the secrecy of the investigation, the issue is resolved in the absence of adversariality with the possible participation of only the prosecutor, the investigator, and the inquirer. The category “validity of the charge” is significant in legal terms in a criminal case with the special order of proceedings. A prerequisite for the court to consider a criminal case in a simplified procedure is the validity of the charge and its confirmation by the evidence collected in the case. The validity of the charge in the appointment of a trial in the special order provided for by Chapter 40 of the Criminal Procedure Code of the Russian Federation is established by the court outside the court session in the absence of the parties. In any of the above situations, the court is responsible for establishing the validity of the charge since failure to establish it means that the decision made is unfounded.

scholarly journals The subject of judicial control in consideration of complaints: controversial issues of legal regulation

2021 ◽  
Vol 2021 (2) ◽  
pp. 104-109
Author(s):  
El'vira Mirgorodskaya
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
The Russian Federation

The purpose of this study was an attempt to theoretically understand the subject of judicial consideration of complaints against decisions, actions (inaction) of officials carrying out criminal prosecution. The research was carried out on the basis of comparative legal, formal logical, empirical, statistical methods. Judicial statistics for the year 2020 have been provided, and legislation has been studied from a historical and contemporary perspective, taking into account the practice of the Constitutional Court of the Russian Federation. The problem is that, in practice, for about 20 years the courts have had difficulties in determining the subject of complaints, since neither in theory nor in practice a consensus has been developed on this issue. The Criminal Procedure Code of the Russian Federation also does not contain a definition of the concept of «subject matter». The situation is aggravated by the presence of evaluative concepts in the text of the law, leading to a varied understanding of the subject of appeal by the courts, which leads to a violation of the constitutional rights of citizens at the pre-trial stages of criminal proceedings. In the article, taking into account the analysis of the practice of the Constitutional Court of the Russian Federation, legislation and the opinion of scientists, a recommendation was made to amend the Criminal Procedure Code of the Russian Federation to specify the subject of consideration of complaints in accordance with Art. 125 of the Criminal Procedure Code of the Russian Federation in order to eliminate existing contradictions in practice and increase the level of protection of individual rights in pre-trial proceedings.

scholarly journals Peranan Dan Fungsi Praperadilan Dalam Penegakan Hukum Pidana Di Polda Jateng

2018 ◽  
Vol 1 (1) ◽  
Author(s):  
Dodik Hartono ◽  
Maryanto Maryanto
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Active Role ◽  
District Court ◽  
Central Java ◽  
Procedure Code ◽  
The Law

ABSTRAK�Penelitian dengan judul Peranan Dan Fungsi Praperadilan Dalam Menegakkan Hukum Pidana di Polda Jateng. Berdasarkan uraian dalam Tesis ini, permasalahan yang akan yang akan di teliti adalah: 1) Bagaimanakah fungsi dan peran praperadilan dalam penegakan hukum di Indonesia berdasarkan peraturan perundang-undangan yang berlaku? 2) Apa hambatan dalam pelaksanaan fungsi dan peran pra peradilan dalam penegakan hukum di Polda Jateng? 3) Bagaimanakah solusi dari hambatan dalam pelaksanaan fungsi dan peran pra peradilan dalam penegakan hukum di Polda Jateng?Hasil penelitian menyimpulkan bahwa : 1) Maksud dan tujuan utama yang hendak ditegakkan dan dilindungi, dalam proses praperadilan yaitu tegaknya hukum dan perlindungan hak asasi tersangka dalam tingkat pemeriksaan penyidikan dan penuntutan. Pasal 1 butir 10 KUHAP dipertegas dalam Pasal 77 KUHAP yang menyebutkan Pengadilan Negeri berwenang untuk memeriksa dan memutus, sesuai dengan ketentuan yang diatur dalam undang-undang. Wewenang pengadilan untuk mengadili dalam praperadilan dijelaskan dalam Pasal 95 KUHAP. 2) Hambatan dalam pelaksanaan fungsi dan peran praperadilan dalam penegakan hukum di Polda Jateng meliputi : a. hakim lebih banyak memperhatikan perihal dipenuhi atau tidaknya syarat-syarat formil penangkapan dan penahanan, atau ada tidaknya perintah penahanan dan sama sekali tidak menguji dan menilai syarat materilnya. b. setiap pelaksanaan upaya paksa selalu ada perenggutan HAM. c. pemeriksaan untuk melakukan penahanan, masih ada penyalahgunaan dalam tahap penyidikan oleh Polisi dan penuntutan oleh jaksa. d. selain luasnya kewenangan penyidikan dalam menentukan bukti permulaan yang cukup, pengawasan terhadap kewenangan tersebut juga lemah. 3) Solusi dari hambatan dalam pelaksanaan fungsi dan peran praperadilan dalam penegakan hukum di Polda Jateng meliputi : ����������� a. Diperlukan upaya kontrol terhadap setiap aparat penegak hukum pada lembaganya masing-masing secara vertikal. b. KUHAP perlu direvisi khususnya mengenai mekanisme saling mengawasi antara penegak hukum dan lembaga dalam subsistem peradilan. c. diperlukan peran aktif hakim dalam menggunakan kewenangannya pada saat pemeriksaan pokok perkara untuk mempertimbangkan penyidikan atau penuntutan yang tidak sesuai dengan ketentuan hukum acara atau yang melawan hukum guna menghindari penyalahgunaan HAM. d. dalam tahap ajudikasi, hakim seharusnya berkonsentrasi untuk menentukan hasil pembuktian di persidangan dan dalam tahap ini, hakim dapat menilai apa yang terjadi dalam tahap praajudikasi.Kata Kunci : Peranan dan Fungsi, Praperadilan, Penegakan Hukum Pidana�ABSTRACT�Research with the title Role And Practice Function In Enforcing Criminal Law in Central Java Regional Police. Based on the description in this Thesis, the issues that will be examined are: 1) How is the function and role of pretrial in law enforcement in Indonesia based on the prevailing laws and regulations? 2) What are the obstacles in the implementation of pre-justice functions and roles in law enforcement in the Central Java Regional Police? 3) How is the solution of the obstacles in the implementation of functions and the role of pre-judiciary in law enforcement in Central Java Regional Police?The results of the study conclude that: 1) The main purpose and objectives to be upheld and protected, in the pre-trial process, namely the enforcement of the law and the protection of human rights of suspects in the level of investigation and prosecution investigation. Article 1 point 10 of the Criminal Procedure Code is affirmed in Article 77 of KUHAP stating that the District Court has the authority to examine and decide upon, in accordance with the provisions stipulated in law. The jurisdiction of the courts to adjudicate in pre-trial is described in Article 95 of the Criminal Procedure Code. 2) Obstacles in the implementation of functions and the role of pretrial in law enforcement in Central Java Police include: a. judges pay more attention to whether or not the formal conditions for arrest and detention, or whether there is a detention order and not test and judge material requirements at all. b. every execution of forced efforts is always a rush of human rights. c. checks for detention, there is still abuse in the investigation stage by the Police and prosecution by the prosecutor. d. besides the extent of investigative authority in determining sufficient preliminary evidence, the oversight of the authority is also weak. 3) Solutions from obstacles in the implementation of functions and pretrial roles in law enforcement in Central Java Police include: a. Control of each law enforcement apparatus is required on each institution vertically. b. The Criminal Procedure Code needs to be revised, especially regarding the mechanism of mutual supervision between law enforcement and institutions within the judicial system. c. an active role of the judge in the use of authority at the time of examination of the principal matter to consider investigations or prosecutions that are not in accordance with the provisions of procedural law or against the law in order to avoid abuse of human rights. d. in the stage of adjudication, the judge should concentrate on determining the results of the evidence in the hearing and in this stage the judge can judge what happened in the pre-certification stage.Keywords: Roles and Functions, Pretrial, Criminal Law Enforcement

scholarly journals Remand in Custody as Part of a Sentence: Problem of Determination

2020 ◽  
Vol 15 (1) ◽  
pp. 124-132
Author(s):  
V. A. Filatyev
Keyword(s):  
Law Enforcement ◽  
Preventive Measures ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Penal Institutions ◽  
Criminal Procedure Law ◽  
The Law ◽  
Procedural Decisions ◽  
Legal Meaning

The paper analyzes the provisions of the criminal procedure law determining the grounds and procedures for the application of preventive measures when deciding a sentence. The paper attempts to identify their constitutional and legal meaning. According to the author, the remand of a defendant in custody on the sole basis of the need to execute a real imprisonment sentence is unacceptable. Doctrinal representations of the theory of procedural decisions allow us to conclude that the decision on the measure of restraint cannot be taken simultaneously with the sentence and should not be an integral part of it. Under the current legal regulation, the defense is forced to refuse to express the position on the measure of restraint in the pleadings and the last plea if the position of the defendant is aimed at acquittal. The impossibility for the defense to make an immediate appeal on the formulated in the sentence decision on detention makes the appeal meaningless in general. Uncertainty of the procedure for sending persons sentenced to real imprisonment in all penal institutions but colony-settlements to the place of serving their sentence, for whom the court did not choose detention, reveals a gap in the law. The author claims that these and other defects in the legal regulation listed in the paper contribute to the existence of an accusatory bias in law enforcement practice, since they predetermine the detention decision and must be eliminated. Measures of restraint must be considered immediately after the verdict is sounded in a separate court session at the request of the prosecution or at the initiative of the court.

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