scholarly journals CRIMINAL PROCEDURAL FORMS FOR SOLVING THE PROBLEM OF PETTY CRIME IN SERBIAN AND GERMAN LAW

2021 ◽  
Vol 59 (2) ◽  
pp. 29-44
Author(s):  
Ivan Đokić ◽  
◽  
Dragana Čvorović ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Policy ◽  
German Law ◽  
Public Prosecutor ◽  
Striking Difference ◽  
Criminal Prosecution ◽  
The Public ◽  
Procedural Law ◽  
The Subject ◽  
Classic Form

The subject of the paper is the analysis of solutions that exist in Serbian and German criminal procedural law and refer to cases in which the public prosecutor in the field of petty crime is authorized to act towards adult perpetrators in accordance with the principle of opportunity of criminal prosecution. In relation to one variant of this principle, which implies conditional and temporary restraint of criminal prosecution, there is a distinct similarity in both mentioned legislations. However, with regard to the classic form of this procedural principle, which enables the public prosecutor to refrain prosecution for reasons of expediency, where he primarily values the public interest in prosecuting, there is a striking difference, because our criminal procedural law does not allow such a variant of the principle of opportunity of criminal prosecution. This difference is a consequence of a different criminal policy approach, because while in German criminal law the problem of petty crime is solved exclusively by procedural mechanisms, in Serbian criminal law, in addition to procedural law, there are also appropriate instruments in the substantive criminal law.

scholarly journals Criminal Liability for Knowingly Unlawful Sentence, Decision or Other Judicial Act

2020 ◽  
Vol 17 (3) ◽  
pp. 93-102
Author(s):  
Pavel Metelsky ◽  
Nadezhda Verchenko
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Prosecution ◽  
The Public ◽  
History Of ◽  
The Subject ◽  
The Russian Federation ◽  
Considerable Complexity

Introduction. The publication is devoted to the corpus delicti, provided for by Art. 305 of the Criminal Code of the Russian Federation, which, being, in fact, a special type of official abuse, stands out as the direct object of a criminal assault and a special subject, since it can be committed exclusively by professional judges. The main features of the objective and subjective parties, qualifying signs of the offense are revealed, some problems that arise when applying this criminal law are outlined. Purpose. The goal is to analyze the design features of the crime and issues that arise when applying this rule. Methodology. The method of a formal legal analysis of the norms of the criminal law and theoretical provisions on problems directly related to the application of this rule was used. Results. The public danger of a criminal act that undermines the very foundations of justice is obvious, in connection with which it stands out as an independent crime by all the Russian Criminal Codes, starting in 1922, the history of criminal responsibility for its commission can be traced in our country in general since the 16th century. The current criminal law prohibition is characterized by considerable complexity, due to both the blanket nature of the disposition of the norm itself and the presence of discrepancies in the understanding of the signs embodied in it. Conclusion. The implementation of criminal liability for this crime involves the establishment of not only circumstances directly related to the corpus delicti that lie in the criminal law field. The subject of an infringement, a judicial act, must be subjected to procedural review without fail, after which, subject to the consent of the Higher Qualification Collegium of Judges of the Russian Federation, in fact, and the mechanism of criminal prosecution is “launched”. That is, a truly “multi-way” combination of actions is necessary, carried out in several stages, and the problem itself to some extent becomes interdisciplinary, going beyond only criminal law.

scholarly journals Granice dozwolonej prowokacji w świetle art. 24 k.k.

2021 ◽  
Vol 28 (2) ◽  
pp. 213-224
Author(s):  
Marta Tumidalska
Keyword(s):  
Criminal Law ◽  
Penal Code ◽  
Public Prosecutor ◽  
Situation Assessment ◽  
Interesting Phenomenon ◽  
The Public ◽  
International Body ◽  
The Subject

The institution of provocation in criminal law is an extremely interesting phenomenon, for it may refer both to people who do not perform any public functions as well as to people who hold such a position. In this perspective, it was necessary to indicate in the article the origin of the word provocation and its etymology. Therefore, one conducted an analysis of various definitions and their components. One also indicated the origin of the eponymous institution and the examples manifested in international body of rulings. In a description of such phenomena as provocation, it is necessary to indicate the responsibility of the person who commits the offence(s) mentioned in Art. 24 of the Penal Code. An interesting element has to do with the indication – in one of the subchapters – of the utilisation of provocation in operation- and situation assessment-related activities, which are a result of the act of law about the Police and about other services. Finally, one should ask oneself the question about the extent to which one may shift the application of regulations about responsibility, considering the catalogue of institutions which may employ such technique(s)? Therefore, should not one delimit the scope of the competence of organs such as the Public Prosecutor General/Minister of Justice, in order to enhance the efficiency of the system which was mentioned above? The conclusion of the article constitutes an attempt at answering the question about the aforementioned questions and to consider the plausibility of the combining these positions in the context of the subject which is discussed.

scholarly journals REFORMULASI KEWENANGAN PENUNTUT UMUM TERHADAP PENERAPAN SAKSI MAHKOTA DALAM PEMBUKTIAN TINDAK PIDANA KORUPSI

2018 ◽  
Vol 6 (3) ◽  
pp. 369
Author(s):  
I Putu Gede Sumariartha Suara
Keyword(s):  
United States ◽  
The Netherlands ◽  
Criminal Law ◽  
The United States ◽  
Public Prosecutor ◽  
Plea Bargain ◽  
The Public ◽  
Positive Law ◽  
Procedural Law ◽  
Corruption Case

Regarding the regulation and application of the crown witness by the public prosecutor in handling corruption case as stated in the Criminal Law of Formil applicable in Indonesia in this case KUHAP (Indonesian Criminal Procedural Law Code) especially Article 142 Indonesian Criminal Procedural Law Code still cause the existence of obscurity of norm so that in practice of judiciary there is no definite measure about application criteria a crown witness by a public prosecutor in the proof of a criminal case, especially a criminal act of corruption. As for the matters discussed in this regard that is about 1) Arrangement of the Public Prosecutor's Authority on the application of the crown witness in the proving of corruption crime according to the perspective of Indonesian Positive Law (Ius Constitutum) covers the setting up of the crown witnesses in positive law in Indonesia as well as comparative regulation of crown witnesses in the United States and the Netherlands and 2) Formulation of Authority for the Public Prosecutor on the application of the crown witness in the proving of corruption in accordance with the perspective of the coming Law (ius Constituendum) includes the appropriate term used to mention the crown witness, the limits of the application of the crown witness, the plea bargain adaptation system in the Positive Law in Indonesia, the requirements of being a crown witness, the proper punishment of the crown witness and the formulation of Article 142 of the Indonesian Criminal Procedural Law Code so as to grant the limitative authority to the Public Prosecutor against the application of the crown witness Mengenai pengaturan dan penerapan saksi mahkota oleh penuntut umum dalam penanganan perkara tindak pidana korupsi sebagaimana tercantum dalam Hukum Pidana Formil yang berlaku di Indonesia dalam hal ini yaitu KUHAP khususnya Pasal 142 KUHAP masih menimbulkan adanya kekaburan norma sehingga dalam praktek peradilan belum terdapat ukuran yang pasti mengenai kriteria penerapan saksi mahkota oleh penuntut umum dalam pembuktian suatu perkara pidana khususnya tindak pidana korupsi. Adapun yang dibahas dalam hal ini yaitu mengenai 1) Pengaturan Kewenangan Penuntut Umum terhadap penerapan saksi mahkota dalam pembuktian tindak pidana korupsi menurut perspektif Hukum Positif Indonesia (Ius Constitutum) meliputi pengaturan saksi mahkota dalam hukum positif di Indonesia serta perbandingan pengaturan saksi mahkota di Negara Amerika Serikat dan Belanda dan 2) Formulasi Kewenangan Bagi Penuntut Umum terhadap penerapan saksi mahkota dalam pembuktian tindak pidana korupsi menurut perspektif Hukum yang akan datang (Ius Constituendum) meliputi istilah yang tepat dipakai untuk menyebutkan saksi mahkota, batas-batas penerapan saksi mahkota, adaptasi plea bargain system dalam Hukum Positif di Indonesia, syarat-syarat menjadi saksi mahkota, pemidanaan yang tepat diterapkan terhadap saksi mahkota serta formulasi Pasal 142 KUHAP sehingga memberikan kewenangan secara limitatif kepada Penuntut Umum terhadap penerapan saksi mahkota.

The Legal Framework of Islamic Criminal Law in Aceh with refer-ence to Application, Challenges and Way Forward (Kerangka undang-undang jenayah Islam di Aceh merujuk kepada aplikasi, cabaran dan jalan kehadapan)

2018 ◽  
Vol 15 (3) ◽  
pp. 300-314
Author(s):  
Ramizah Wan Muhammad ◽  
Khairunnasriah Abdul Salam ◽  
Afridah Abbas ◽  
Nasimah Hussin
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
Central Government ◽  
Legal Framework ◽  
The Public ◽  
Banking And Finance ◽  
Procedural Law ◽  
Legal Administration ◽  
Criminal Matters ◽  
And Training

Aceh is a special province in Indonesia and different from other Indonesian provinces especially in the context of Shari'ah related laws. Aceh was granted special autonomy and legal right by the Indonesian central government in 2001 to fully apply Islamic law in the province. Generally, Islamic law which is applicable to Muslims in Indonesia is limited to personal laws just as in Malaysia. However, with the passage of time, Islamic law has expanded to include Islamic banking and finance. Besides that, Islamic law in Aceh is also extended to govern criminal matters which are in line with the motto of Aceh Islamic government to apply Islamic law in total or kaffah. Since 1999, the legal administration of Aceh has begun to gradually put in place the institutional framework to ensure that Islamic law is properly administered and implemented. Equally important, such framework is also aimed to ensure that punishments are fairly executed. This paper attempts to analyse the extent of the applicability of Islamic criminal law in Aceh. It is divided into three major parts. The first part discusses the phases in making Aceh an Islamic province and the roles played by Dinas Syariat Islam Aceh as the policy maker in implementing Islamic law as well as educating and training the public about the religion of Islam. The second part gives an overview on the Islamic criminal law and punishment provided in Qanun Aceh No.6/2014 on Hukum Jinayat (hereinafter Qanun Hukum Jinayat or “QHJ”) as well as the criminal procedural law concerning the methods of proof codified in Qanun Aceh No.7/2013 on Hukum Acara Jinayat (hereinafter “QAJ”). The third part of this paper highlights the challenges in the application and implementation of Islamic criminal law in Aceh, and accordingly provides recommendations for the improvement of the provisions in the QHJ and QAJ. Inputs from the interviews with the drafters of QHJ, namely Prof. Dr. Hamid Sarong and Prof. Dr Al Yasa are utilized in preparing this paper. In addition, inputs gathered from nongovernmental organizations (NGOs), namely Indonesian Syarie Lawyers Association (APSI) and Jaringan Masyarakat Sipil Peduli Syariah (JMSPS) are employed. The findings of this research are important in providing an in-depth understanding on the framework of Islamic criminal law in Aceh as well as in recognizing the flaws in its application or practical aspects of the law in Aceh. Keywords: Islamic law, Aceh, Administration, Punishment. Abstrak Aceh merupakan sebuah Wilayah Istimewa di Indonesia dibandingkan dengan wilayah-wilayah lain dari segi pelaksanaan undang-undang Islam. Aceh diberi status Wilayah Istimewa yang berautonomi oleh Pemerintah Pusat Indonesia pada tahun 2001 untuk melaksanakan undang-undang Islam secara menyeluruh. Pemakaian dan pelaksanaan undang-undang Islam di Aceh tidak terhad pada Undang-undang jenayah tetapi telah meliputi bidang perbankan dan kewangan Islam. Sejak tahun 1999, Pentadbiran Undang-undang Aceh telah merangka undang-undang bagi memastikan undang-undang Islam dapat ditadbir dan dilaksanakan dengan baik. Selain itu juga, undang-undang yang dirangka juga turut bertujuan untuk memastikan hukuman yang berasaskan undang-undang Islam dapat dilaksanakan secara adil. Oleh itu, kajian dalam kertas kerja ini dibuat uuntuk menganalisa sejauh mana undang-undang jenayah Islam dilaksanakan di Aceh. Kertas ini terbahagi kepada tiga bahagan utama, yang mana bahagian pertama membincangkan latas belakang awal kewujudan wilayah Islam Aceh dan peranan yang dimainkan oleh Dinas Syariat Islam Aceh sebagai mpembuat dasar dalam pelaksanaan undang-undang Islam, mendidik serta menyediakan latihan kepada masyarakat umum di Aceh mengenai Islam. Bahagian kedua menyediakan gambaran umum tentang undang-undang jenayah dan hukuman dalam Islam sebagaimana termaktub dalam Qanun Aceh No.6/2014 berkenaan Hukum Jinayat (“Qanun Hukum Jinayat” atau “QHJ”) serta undang-undang prosedur jenayah berkenaan cara pembuktiaan jenayah sebagaimana yag termaktub dalam Qanun Aceh No.7/2013 berkenaan Hukum Acara Jinayat (“QAJ”). Bahagian ketiga kertas ini menekankan masalah atau cabaran yang dihadapi daam pelaksanaan undang-undang jenayah Islam di Aceh, serta menyediakan cadangan-cadangan bagi penambahbaikan peruntukan-peruntukan yang ada dalam QHJ dan QAJ. Maklumat hasil dari temuramah dengan Prof. Dr. Hamid Sarong dan Prof. Dr Al Yasa telah digunakan bagi menyiapkan makalah ini. Selain itu, maklumat yang diperolehi daripada organisasi bukan kerajaan iaitu Indonesian Syarie Lawyers Association (APSI) dan Jaringan Masyarakat Sipil Peduli Syariah (JMSPS) turut dimanfaatkan. Dapatan dari kajian ini penting bagi menyediakan kefahaman terhadap kerangka undang-undang jenayah Islam di Aceh serta mengenal pasti masalah dalam aspek peruntukan undang-undang tersebut atau pelaksanaannya di Aceh. Kata Kunci: Undang-undang Islam, Aceh, Pentadbiran, Hukuman.

scholarly journals The Prosecution in Trial In Absentia Of Money Laundering Case Resulted from Conventional Case

2019 ◽  
Vol 06 (02) ◽  
pp. 297-319
Author(s):  
Rudi Sudirdja
Keyword(s):  
Money Laundering ◽  
Criminal Law ◽  
Due Process ◽  
Analytical Description ◽  
Public Prosecutor ◽  
The Public ◽  
Single Form ◽  
Due Process Of Law ◽  
The One ◽  
Principle Of Legality

In Indonesia, the provision of in absentia in the Money Laundering Crime Law raises problems if the crime act is originally conventional crime act. Conventional crime act should be handled based on the provisions of the Indonesian Criminal Law Procedures Code. On the one hand, the Money Laundering Crime Law regulates the provisions of the court in absentia and, on the other hand, the Indonesian Criminal Law Procedures Code does not recognize trial in absentia. This study covers the issue. To be precise, it reveals the possibility of a conventional crime act that is charged with the Money Laundering Crime Law to be tried in absentia based on the principle of formal legality. In addition, it discusses the strategy of prosecution of money laundering crime act in trial in absentia for cases that are originally conventional crime act based on the principle of due process of law. This study used analytical description research specifications and the normative juridical method. The data was collected through a document study. In accordance with the approaches, the data were analyzed in qualitative-juridical manners. This study concludes several points. The first, based on the principle of legality of formal law, the implementation of trial in absentia against general criminal acts cannot be carried out. The second, based on the principle of due process of law, the prosecution strategy in trial in absentia fur such cases are that (1) the prosecution of money laundering crime and original crime must be done separately; (2) the public prosecutor must delay the transfer of original criminal acts to the court until the accused is found and presented; (3) the indictment must be prepared in a single form; (4) the indictment must draw legal facts about the original crime; and (5) the public prosecutor can prove the legal facts about the original crime in the element of ‘assets resulting from the crime’ in the money laundering offense.

PARTIAL WITHDRAWAL OF THE PRINCIPAL ACTION BY THE PROCESUTOR IN THE POLISH CRIMINAL PROCEEDINGS

2019 ◽  
Vol 1 (XIX) ◽  
pp. 173-183
Author(s):  
Jan Kil
Keyword(s):  
Current Model ◽  
Criminal Procedure ◽  
Public Prosecutor ◽  
Criminal Proceedings ◽  
The Public ◽  
The Subject

The subject of the article is the analysis of the admissibility of a partial withdrawal of a principalaction by the prosecutor in the current model of Polish criminal proceedings. The study defines the main procedural rules regarding the issue in question, namely the principle of accusatorial procedure and adversary trial system. In the study, the disposition of Article 14 § 2 of the Code of Criminal Procedure is being interpreted with the use of linguistic, teleological and functional directives of interpretation. The study also presents the arguments justifying the acceptance of the view of the admissibility of partial withdrawal of the complaint by the public prosecutor. The study presents the procedural implications of the aforementioned standpoint. In the study the possibility of partial withdrawal of the principal action on the basis of pending supplementary or private prosecution proceedings was also analyzed.

scholarly journals The Criminal Enforcement Of The Fraud Mode Of Multiple Money (Case study Decision No.61 / Pid.B / 2019 / PN.Blora)

2020 ◽  
Vol 3 (1) ◽  
pp. 237
Author(s):  
Sumaryono Sumaryono ◽  
Sri Kusriyah Kusriyah
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Research Method ◽  
Field Research ◽  
Secondary Data ◽  
Criminal Code ◽  
Primary Data ◽  
Public Prosecutor ◽  
The Public

Fraudulent criminal acts that have been regulated in the Criminal Code (KUHP) with various modes, one of which is fraud by shamans with a multiplied money mode has made law enforcers increasingly have to rack their brains to be able to prove it. This study aims to examine and analyze law enforcement by the judge in decision No.61 / Pid.B / 2019 / PN.Blora with consideration of the criminal elements. The research method used is a sociological juridical approach. The specifications of the study were conducted using descriptive analytical methods. The data used for this study are primary and secondary data. The data consists of primary data and secondary data using field research methods, interviews, and literature studies. Based on the research it was concluded that the case ruling number 61 / Pid.B / 2019 / PN Bla with a fraud case with shamanism practices in the mode of duplicating the judge's money considering that the Defendants have been indicted by the Public Prosecutor with alternative indictments, so the Panel of Judges paid attention to the facts The aforementioned law decides on the first alternative indictment as regulated in Article 378 of the Criminal Code Jo Article 55 paragraph (1) of the 1st Criminal Code by considering the elements of that article.Keywords: Criminal Law Enforcement; Fraud; Multiple Money.

scholarly journals THE PRINCIPLE OF EXPEDIENCY OF LAW INTERPRETATION

2020 ◽  
pp. 8-14
Author(s):  
S. V. Pryima
Keyword(s):  
Law Enforcement ◽  
Positive Result ◽  
Public Interest ◽  
Legal Responsibility ◽  
The Public ◽  
Procedural Law ◽  
Different Types ◽  
The Subject ◽  
Judicial Procedures ◽  
Optimal Set

In the article was investigated the principle of expediency of law interpretation. It is noted that the term “expediency” is close in meaning to the terms “optimality”, “rationality”, “efficiency”. Due to this the principle of expediency is seen in a general way as the principle which requires that the subject should achieve a useful, positive result with applying the optimal set of methods. It is established that the principle of expediency is realized in different branches and institutions of law. Particularly, in the civil procedural law such judicial procedures are based on this principle as examination, storage and provision of evidence, the appointment and realization of expertise, the association and dissociation of claims. It is also noted that the principle of expediency is important in punishing a person, in other words, it is the basis of legal responsibility. In this sphere, it consists in the individualization of punitive measures or punishment depending on the gravity of the offense, taking into account the offender's personality, his welfare and the circumstances of the action. The principle of expediency also means that the chosen measure is relevant to the purposes of responsibility. It is noted that the principle of expediency makes the requirements for conducting different types of legal activity – law-making, law-enforcement, and therefore, it is one of the main principles of law interpretative activity. It is emphasized that the basic idea of this principle is that the act should not be interpreted in the sense which makes it aimless, so, the act cannot be interpreted beyond the purpose for which it was adopted. In the article is also argued that a particular method of setting of a goal of a legal norm is a teleological (purposeful) mean of interpretation. The requirements of the principle of expediency include the aspiration of the public interest and the obligation to apply the verification of interpretative conclusions. The principle of expediency of law interpretation is defined as the interpretative principle, the essence of which is the aspiration of the subject of interpretation to achieve the goal, to obtain a useful, positive result from their activities by using the optimal set of methods for this purpose.

scholarly journals Legal discretion in criminal law: general theoretic and branch-wise aspects

2021 ◽  
Vol 108 ◽  
pp. 02015
Author(s):  
Aleksandr Aleksandrovich Nikitin
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Integrated Approach ◽  
Criminal Prosecution ◽  
Legal Analysis ◽  
General Law ◽  
General Scientific ◽  
Adequate Evaluation ◽  
The Subject ◽  
Law Making

Pre-requisites: legal discretion in criminal law just as in other branches has only partially been a subject matter of legal analysis. Predominantly, a law-enforcement type of discretion was studied, which is implemented by law-enforcement authorities during criminal prosecution. However, modern surveys in the field of law theory consider discretion as a general law phenomenon including law-enforcement, law-making, and law-interpretation aspects. This suggests the need to study legal discretion in criminal law from new points of view. Moreover, one should also take into account a dual-aspect nature of legal discretion, e.g., a combination of characteristics of the subject implementing discretion and law-regulated relations where this takes place. The research objective is to define an opportunity of affecting subjects implementing individual types of legal discretion (law-enforcement, law-making, and law-interpretation) intended for optimization of the discretion level in criminal law. Methods: a combination of common, general scientific, specific scientific, and specific legal methods. First of all, the paper uses a systemic and functional approach. Results. Legal discretion in legal law is represented by law-enforcement, law-making, and law-interpretation discretion of respective subjects. These types of discretion are interdependent and indissolubly related. Currently, an integrated approach to studying these types of discretions in legal law is poorly discussed in literature. Meanwhile, only this approach allows for a systematic study of legal discretion limits (in general and for individual types) and for adequate evaluation of their efficiency in criminal law.

scholarly journals Presumption of the Effectiveness of Public Property Management as a Factor of Improving the Criminal Policy Regarding the Abuse and Excess of Authority

2019 ◽  
Vol 13 (6) ◽  
pp. 951-961
Author(s):  
Mikhail Borodach
Keyword(s):  
Social Role ◽  
Criminal Policy ◽  
Expert Assessment ◽  
Criminal Prosecution ◽  
Property Management ◽  
Criminal Cases ◽  
The Public ◽  
Managerial Decisions ◽  
Public Property ◽  
The Supreme Court

The article examines ways of improving the practice of criminal law enforcement in the cases of the abuse and excess of authority in public property management. The author proves the insufficiency of the current indicators of criminal punishability when the excess or abuse of authority in the management of public property takes place. It is necessary to include into law (at least within the framework of the guidelines of the Plenary Session of the Supreme Court of the Russian Federation) the presumption of the maximum effectiveness of the selected method of managing the public property. The author attempts to formulate and describe the normative content of the suggested presumption using the thesis of equal effectiveness’ potential for different forms of property. The author also comes to an interim conclusion that this presumption is a specific case of a more general presumption of the effectiveness of a public owner. It is proven that the use of the analyzed presumptions agrees with the solidifying social role of public property, unlike the empirically unsubstantiated thesis of its apparent ineffectiveness. This circumstance excludes the linear approach to the assessment of managerial decisions regarding public property and, thus, shows that the established indicators of criminal punishability of the excess or abuse of authority by officials are insufficient for making well-grounded decisions on the initiation of criminal prosecution in connection with public property management. It is suggested that criminal punishability must be based on the expert assessment of managerial decisions made by officials, of their actions (inaction) in comparison with other possible scenarios within the examined managerial situation, which must be carried out at the stage of initial inquiry. The results of this expert assessment must form the grounds for making decisions regarding the initiation of criminal cases on the excess or abuse of authority against specific officials. Besides, the author also states that there are certain limits to applying this approach and that it is not universal.

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