scholarly journals Zasada nullum crimen sine lege jako źródło poszukiwania językowej granicy wykładni prawa karnego?

2020 ◽  
pp. 81-95
Author(s):  
Sławomir Tkacz
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Case Law ◽  
Criminal Case ◽  
Legal Interpretation ◽  
The Rule Of Law ◽  
Legal Provisions ◽  
Starting Point

The principle of nullum crimen sine lege is nowadays recognized as the standard of the rule of law. This doctrine prohibits the use of analogies and extensive interpretation of legal provisions to the disadvantage of the perpetrator. The starting point of these considerations is that texts of criminal provisions vary in nature. Therefore a question should be asked about the nature of these prohibitions in relation to various provisions. A separate problem is to distinguish inference by analogy from legal interpretation. The presented considerations are aimed at answering the question whether the nullum crimen sine lege principle allows determining the linguistic limits for the interpretation of criminal law. The analyses are illustrated by examples from the field of criminal case law. The article aims to provide reflection on the acceptable limits of interpretation of criminal law, if such limits can be defined. The considerations end with general conclusions.

scholarly journals Questões controversas sobre a aplicação da “Lei Maria da Penha" no âmbito do Direito Penal

2018 ◽  
Vol 1 (39) ◽  
Author(s):  
Frederico Gomes de Almeida Horta ◽  
Marina Ferreira de Melo Burrel ◽  
Matheus Pessoa de Faria
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Case Law ◽  
Minas Gerais ◽  
Controversial Issues ◽  
Criminal Proceedings ◽  
Protective Measures ◽  
The Rule Of Law

RESUMOO trabalho aponta e analisa questões controversas da Lei nº 11.340/2006, a partir do contexto no qual se consolidou. Por meio de pesquisas bibliográficas, análises doutrinárias e jurisprudenciais, pretende-se abordar os problemas percebidos na aplicação deste diploma no âmbito penal. Analisa-se, inclusive, um caso prático vivenciado na Divisão de Assistência Judiciária da Universidade Federal de Minas Gerais, demonstrando-se consequências da utilização de dispositivos da “Lei Maria da Penha” de maneira incoerente com a sistemática do processo penal constitucional do Estado Democrático de Direito. Esclarece o procedimento previsto na Lei e suas implicações penais e, a partir disso, questiona a imposição de restrições de liberdade ao suposto agressor no procedimento de medidas protetivas. Destaca, ainda, os problemas relacionados à prisão preventiva na Lei Maria da Penha, especialmente no que toca ao tempo de sua duração e à sua aplicabilidade em infrações puníveis com penas detenção ou mera prisão simples. Por fim, aborda a problemática da prisão preventiva com a finalidade de garantir o cumprimento de medidas protetivas.PALAVRAS-CHAVELei Maria da Penha. Direito Penal. Prisão Preventiva. Crime de desobediência. Contravenções Penais. Detenção. ABSTRACTThe paper points out and analyzes controversial issues of Act 11,340/2006, from the context of its consolidation. Through bibliographical research, doctrinal analysis and case law, it intendeds to address the problems perceived in the application of this Act in the criminal field. It also analyzes a lawsuit sponsored by the "Divisão de Assistência Judiciária" of the "Universidade Federal de Minas Gerais", demonstrating the consequences of the use of provisions of the "Maria da Penha Act" in a manner incoherent with the systematic of constitutional criminal proceedings created by the Rule of Law. It clarifies the procedure provided for in the Act and its criminal implications and, with this, questions the imposition of restrictions of freedom on the supposed aggressor in the procedure of protective measures. It also highlights the problems related to pre-trial detention in the Maria da Penha Law, especially with regard to the duration of the sentence and its applicability to offenses punishable by imprisonment or mere simple arrest. Finally, it addresses the problem of pre-trial detention in order to guarantee compliance with protective measures.KEYWORDS"Maria da Penha" Act. Criminal Law. Pre-trial detention. Contempt of court. Misdemeanor. Detention.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

scholarly journals The meaning(s) in law and language

Linguistica ◽  
2013 ◽  
Vol 53 (2) ◽  
pp. 237-252
Author(s):  
Matej Accetto
Keyword(s):  
Rule Of Law ◽  
Equal Treatment ◽  
Legal Interpretation ◽  
Linguistic Terms ◽  
The Rule Of Law

This paper revisits the delicate relation between law and language, with language inevitable serving as the vehicle of legal deliberations and pronouncements, and in particular their seemingly irreconcilable qualities: while law is predicated on the concept of the rule of law (or Rechtsstaat) which in turn calls for a clear and predictable system of norms ensuring equal treatment, language is often indeterminate or ambiguous, the meaning of words unclear or uncertain. Is language even properly equipped to perform the role asked of it by law? This question is addressed by outlining and analysing the path traversed from the open-ended vagueness of linguistic terms to the uncompromising confines of their legal interpretation, both in the course of adopting legislation and in particular in the course of adopting judicial pronouncements on the meaning of linguistic terms employed.

scholarly journals WATANIC JURISPRUDENCE: ARTICULATING THE LEGITIMATE ELEMENTS OF THE BASIC STRUCTURE OF THE FEDERAL CONSTITUTION

2021 ◽  
Vol 29 (1) ◽  
pp. 1-28
Author(s):  
Wan Ahmad Fauzi Wan Husain
Keyword(s):  
Rule Of Law ◽  
Basic Structure ◽  
Federal Court ◽  
Local History ◽  
The Rule Of Law ◽  
Legal Documents ◽  
Legal Provisions ◽  
Federal Constitution ◽  
Local Courts ◽  
Indian Supreme Court

The doctrine of the basic structure of a constitution would be undisputable if those elements thereunder are clear and representing the facts of our local history, nationhood, and the principle of the rule of law. Former Chief Justice Tun Abdul Hamid Mohamad argued that the doctrine of the basic structure of a constitution introduced by the Indian Supreme Court contradicts Article 159 of the Federal Constitution and beyond the competent jurisdiction of the local courts. Hence, this article puts forward the conceptual framework of the basic structure adopted by the Federal Court in the case of Indira Gandhi to articulate those elements summed therein viewed from the watanic jurisprudence. The watanic jurisprudence analyses legal documents and sources of sovereignty based upon two philosophical worldviews; continuum and dichotomous frameworks relying upon the local legal history context and the present legal provisions of a country. Depending on a broad and purposive manner in proper linguistic, philosophic, and historical contexts of the Malaysian legal historical documents, the legitimate elements of the basic structure are the principle of sovereignty as embedded in the oath of office of the Yang di-Pertuan Agong together with the matters aggregated in Article 38(4), Article 159(5) and Article 161E. The oath of the Yang di-Pertuan Agong thus legitimizes Syariah compliance as the rule of law. The Federal Constitution of Malaysia also expressly protects its basic structure with strict conditional amendments. In conclusion, the basic structure of our Federal Constitution must be viewed from our local circumstances in compliance with the principle of constitutional supremacy and the rule of law.

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

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.

INTER ARMA SILENT LEGES (NOTAS SOBRE DEL DERECHO DE EXCEPCIÓN)

2010 ◽  
pp. 285-294
Author(s):  
JOSÉ MANUEL CASTELLS ARTECHE
Keyword(s):  
Rule Of Law ◽  
United States Supreme Court ◽  
Case Law ◽  
Point Of View ◽  
Court Case ◽  
The Rule Of Law ◽  
Current Economic Crisis ◽  
Supreme Court Case ◽  
Emergency Measures ◽  
Structural Point

Se hace notar que en situaciones de excepción, sea en un aspecto coyuntural (la actual crisis económica), sea estructural (las medidas de emergencia justificadas en razones de necesidad), se afecta normalmente aunque no necesariamente a los principios propios de un Estado de Derecho. Se aportan ejemplos de la realidad actual o de momentos claves de la jurisprudencia del Tribunal Supremo de los Estados Unidos de Norteamérica. Salbuespeneko egoeretan, dela egoera koiunturala (egungo krisi ekonomikoa), dela egiturazkoa (premiagatik justifikatuta dauden larrialdiko neurriak), gehienetan, baina ez beti, Zuzenbide Estatutuaren printzipio funtsezkoetara jotzen da. Ameriketako Estatu Batuetako Epaitegi Gorenaren jurisprudentziaren gaur egungo errealitatearen edo une gailurren adibideak aztertzen dira. It is pointed out that in exceptional circumstances, either from a temporary point of view (current economic crisis) or from a structural point of view (emergency measures justified by reasons of necessity), is normally affected albeit not necessarily the same principles of the Rule of Law. Some current real examples or key moments in United States¿ Supreme Court case law are provided.

VLADAVINA PRAVA NA „USLUZI“ NARODU, KROZ TEORIJU I PRAKSU

2021 ◽  
Author(s):  
Ana Opačić ◽  
◽  
Vladimir Vrhovšek ◽  
◽  
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Theory And Practice ◽  
Legal Norm ◽  
The Rule Of Law ◽  
Know How ◽  
The People ◽  
Key Factor ◽  
Law And Justice ◽  
Legal Security

We, as the authors of this text, have found it important to point out the close connection between law and justice, theory and practice, because citizens go to court for justice. The judge says what justice is. However, when the legal norm is available and well known to the persons, to whom it refers, and when it is predictable and the case law is uniform, the persons to whom the legal norm refers, can know their rights and obligations concretely, and thus know how to treat them. In order to that they must behave and anticipate the consequences of their behavior. When all the above has been fulfilled, it can be said that the requirements of the rule of law and legal security have been met, so it can be freely said that law and justice are at the "service of the people", through theory and practice. It should be reminded that the precision of the legal norm is one of the basic elements of the rule of law and is a key factor for the emergence and maintenance of the legitimacy of the legal order, which applies to all branches of law, and that court decisions are binding on all.

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