scholarly journals Brief considerations regarding decision no. 26/2021 of the constitutional court regarding the constitutionality of the provisions of the art. 4881 paragraph 2 of Code of criminal procedure

2020 ◽  
pp. 31-36
Author(s):  
IOANA NARCISA ANIȚULESEI
Keyword(s):  
Criminal Procedure ◽  
Constitutional Court ◽  
The Subject ◽  
The Law

In the present study, the author analyzes the provisions of art. 4881 of the Code of Criminal Procedure which, until now, have been the subject of multiple exceptions of unconstitutionality examined by the Constitutional Court. Mainly, the study focuses on the considerations set out in Decision no. 26/2021 pronounced by Constitutional Court in which was statued the constitutionality of the provisions of art. 4881 paragraph 2 and 3 of the Code of Criminal Procedure. In his approach, the author makes additional arguments in support of the unconstitutionality of the rule by reference to national and European provisions enshrining the principle of equality of citizens before the law.

scholarly journals Prohibition of interrogation of notaries as witnesses in criminal proceedings

1970 ◽  
pp. 345-349
Author(s):  
Ulyana Polyak
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Legal Literature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
The Law ◽  
Notary Public ◽  
Made In

The current criminal procedure law of Ukraine stipulates that a witness is obliged to give a true testimony during pre-trial investigation and trial, however, the legislator made an exception for this by specifying the categories of persons who have been granted immunity from immunity, ie they are released by law. testify. The article deals with the problems of law and practice regarding the prohibition of the interrogation of a notary as a witness in criminal proceedings and the release of him from the obligation to keep the notarial secret by the person who entrusted him with the information which is the subject of this secret. The notion of notarial secrecy is proposed to be changed, since the subject of this secrecy is not only information that became known to the notary public from the interested person, but also those information that the notary received from other sources in the performance of their professional duties, as well as the procedural activity of the notary himself, is aimed at achieving a certain legal result. The proposal made in the legal literature to supplement the CPC of Ukraine with the provisions that a notary is subject to interrogation as a witness on information that constitutes a notarial secret, if the notarial acts were declared illegal in accordance with the procedure established by law The proposal to increase the list of persons who are not subject to interrogation as witnesses about the information constituting a notarial secret is substantiated, this clause is proposed to be supplemented by provisions that, apart from the notary, are not notarized, other notarials, notaries as well as the persons mentioned in Part 3 of Art. 8 of the Law of Ukraine "On Notary". Amendments to the current CPC of Ukraine by the amendments proposed in this publication will significantly improve the law prohibiting the interrogation of a notary as a witness in criminal proceedings, as well as improve certain theoretical provisions of the institute of witness immunity in criminal proceedings.

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 Interpretation of law by the court as an element of legislation

2021 ◽  
pp. 153-164
Author(s):  
O. G. Koban
Keyword(s):  
Court Case ◽  
Constitutional Court ◽  
Court Cases ◽  
International Treaties ◽  
Judicial Interpretation ◽  
Lower Courts ◽  
The Subject ◽  
The Law ◽  
Characteristic Features ◽  
Correct Understanding

The article examines the problem of the essence and content of judicial interpretation, its characteristic features. The goal of a casual court interpretation is the correct understanding of the content of the norms of law, and the task is to individualize legal regulations. Acts of casual court interpretation are «samples» for lower courts, given that they are always guided by the practice of interpretation. The article also deals with the theoretical aspects of the institute of interpretation of law by court, its gist, and legal nature; explores the views of the Ukrainian and foreign scientists on the subject. The article also deals with relevant to modern legal practice issues of judicial interpretation. The peculiarity of the casual interpretation is that it has a person-oriented character and is relevant to specific circumstances. A casual interpretation can not go beyond the boundaries of a particular legal case and apply to similar cases. The difference between the normative interpretation and the casual is that the former may extend to an unspecified range of cases, and the second one to the incident that was the subject of a dispute. Subjects of casual interpretation are the judicial and administrative bodies. Clarification of the content of the law by the judiciary is a judicial interpretation. The official constitutional interpretation of the Constitutional Court of Ukraine is carried out in providing opinions on cases of constitutionality of laws and other legal acts, compliance with the Constitution of Ukraine of international treaties, adherence to the procedure of investigation and consideration of the case of removal of the President of Ukraine from office in the order of impeachment. The supreme court’s interpretation of the case largely influences judicial practice. Courts, in court cases, carry out a casual interpretation of the rules of law and develop case-law on the application of the rules of law. The casual judicial interpretation is the interpretive activity of the court in the process of reviewing and resolving court cases (or in the order of their review by the appellate or cassation instances), the purpose of which is a correct understanding of the content of the legal norm. His task is the individualization of legal requirements, and the result is binding only for a specific court case and parties involved in it. The acts of the casual interpretation of the higher judicial bodies are «samples» for lower courts, given that they are always guided by the practice of interpretation and application of the law by the highest judicial authorities and, as a rule, follow it. Characteristic features of the casual judicial interpretation is that its subjects are judges of all courts, it is directed at the consideration and resolution of a particular court case, the results of such an interpretation are binding only for the parties to a specific court case and are fixed in the motive part of the decision. Keywords: court, casual interpretation, the rule of law, judicial interpretation, rule.

scholarly journals URGENSI PEMBENTUKAN UNDANG-UNDANG HAK ANGKET DPR RI (THE URGENCY OF MAKING THE LAW ON THE RIGHT OF INQUIRY OF THE HOUSE OF REPRESENTATIVES OF THE REPUBLIC OF INDONESIA)

2017 ◽  
Vol 8 (2) ◽  
pp. 177-194
Author(s):  
Novianto Murthi Hantoro
Keyword(s):  
Judicial Review ◽  
House Of Representatives ◽  
Constitutional Court ◽  
Current Regulation ◽  
Presidential System ◽  
Subject And Object ◽  
The Subject ◽  
The Law ◽  
The Republic ◽  
The Right

Prior to the decision of the Constitutional Court (MK), the implementation of the right to inquiry was regulated in two laws, namely Law No. 6 of 1954 on the Establishment of the Rights of Inquiry of the House of Representatives (DPR) and Law No. 27 of 2009 on MPR, DPR, DPD, and DPRD. Through proposal for judicial review, MK decided the Law on the Rights of Inquiry was null and void because it was not in accordance with the presidential system adopted in the 1945 Constitution. Today, the exercise of the right of inquiry is only based on Law on MPR, DPR, DPD, and DPRD. Nonetheless, the Amendment of Law No. 27 of 2009 into Law No. 17 of 2014 could not accommodate some substances of the null and void Law on the Rights of Inquiry. The urgency of the formulation of the law on the right to inquiry, other than to carry out the Constitutional Court’s decision; are to close the justice gap of the current regulation; to avoid multi-interpretation of the norm, for example on the subject and object of the right of inquiry; and to execute the mandate of Article 20A paragraph (4) of the 1945 Constitution. The regulation on the right to inquiry shall be formulated separately from the Law on MPR, DPR, DPD and DPRD, with at least several substances to be discussed, namely: definition, mechanisms, and procedure, as well as examination of witnesses, expert, and documents. AbstrakSebelum adanya putusan Mahkamah Konstitusi (MK), pelaksanaan hak angket diatur dalam dua undang-undang, yaitu Undang-Undang Nomor 6 Tahun 1954 tentang Penetapan Hak Angket DPR (UU Angket) dan Undang-Undang Nomor 27 Tahun 2009 tentang Majelis Permusyawaratan Rakyat, Dewan Perwakilan Rakyat, Dewan Perwakilan Daerah, dan Dewan Perwakilan Rakyat Daerah (UU MPR, DPR, DPD, dan DPRD). Melalui permohonan pengujian undang-undang, MK membatalkan keberlakuan UU Angket karena sudah tidak sesuai dengan sistem presidensial yang dianut dalam UUD 1945. Pelaksanaan hak angket saat ini hanya berdasarkan UU MPR, DPR, DPD, dan DPRD. Penggantian UU No. 27 Tahun 2009 menjadi UU No. 17 Tahun 2014 tentang MPR, DPR, DPD, dan DPRD ternyata tidak mengakomodasi beberapa substansi UU Angket yang telah dibatalkan. Berdasarkan hal tersebut, terdapat urgensi untuk membentuk Undang-Undang tentang Hak Angket DPR RI. Urgensi tersebut, selain sebagai tindak lanjut putusan MK, juga untuk menutup celah kekosongan hukum pada pengaturan saat ini dan untuk menghindari multi-interpretasi norma, misalnya terhadap subjek dan objek hak angket. Pengaturan mengenai hak angket perlu diatur di dalam undang-undang yang terpisah dari UU MPR, DPR, DPD, dan DPRD, dengan materi muatan yang berisi tentang pengertian-pengertian, mekanisme, dan hukum acara. Pembentukan Undang-Undang tentang Hak Angket diperlukan guna memenuhi amanat Pasal 20A ayat (4) UUD 1945.

scholarly journals HOW MUCH MIGHT IS RIGHT? Application of Section 49 of the Criminal Procedure Act

2006 ◽  
Author(s):  
Traggy Maepa
Keyword(s):  
South African ◽  
Use Of Force ◽  
Criminal Procedure ◽  
The State ◽  
Constitutional Court ◽  
Court Ruling ◽  
The South ◽  
Standards Of Practice ◽  
The Law

In 1998 the South African parliament voted on the issue of the use of force when effecting an arrest, in order to bring standards of practice in line with the rest of the democratic world. Four years later the law still has not been signed by the state president, largely due to protests by the ministers of Justice and Constitutional Affairs and Safety and Security. The issue has been before the Constitutional Court and in May 2002, this court did what the executive was afraid to do, striking down parts of the Section and clarifying “reasonable force”. But the court ruling still did not go as far as the legislation in protecting citizens.

scholarly journals The Influence Of The Constitutional Court Decision Against Combating Money Laundering In The Context Of Criminal Law Reform

2016 ◽  
Vol 1 (2) ◽  
pp. 99
Author(s):  
Somawijaya ◽  
Ajie Ramdan
Keyword(s):  
Money Laundering ◽  
Criminal Law ◽  
Legal System ◽  
Criminal Procedure ◽  
Court Decision ◽  
Law Reform ◽  
Constitutional Court ◽  
The Law

According to Moeljatno, Criminal Law is a part of a country’s legal system that prohibits certain acts with the threat of sanction for those who break said laws, determines when and in what cases such punishments should be imposed upon those who commit said acts and determines precisely how punishments should be carried out in the event that a person is accused of such acts. This paper will analyse Constitutional Court Decision No. 77/PUU-XII/2014 and Decision No. 21/PUU-XII/2014 regarding Criminal Law reform. Looking to the theory of procedural criminal law, an indictment of cumulative charges of money laundering requires that the underlying predicate offences be proven. If, for example, the predicate offence is corruption, the corruption must be proven as multiple crimes have been committed by the same suspect, namely corruption leading to money laundering. the Decision of  the Pretrial Judge of  the Court    of South Jakarta, Sarpin Rizaldi, and Constitution Court Decision No. 21/PUU- XII/2014 on the review of Article 77 of Act No. 8 Year 1981 concerning the Law of Criminal Procedure broadened the range of pretrial objects and greatly affected the principles of  formal criminal law.

scholarly journals PRINCIPLE OF NATURAL COURT: CURRENT PROBLEMS OF LEGAL UNDERSTANDING AND LAW ENFORCEMENT IN UKRAINE

2021 ◽  
pp. 70-74
Author(s):  
S. Prylutskyi ◽  
Keyword(s):  
Legal Status ◽  
Constitutional Court ◽  
Exclusive Jurisdiction ◽  
Basic Law ◽  
The Status ◽  
Separate System ◽  
Specialized Courts ◽  
The Subject ◽  
The Law ◽  
The Right

In 2016, a provision appeared in Article 125 of the Basic Law, which stipulated that higher specialized courts may operate in accordance with the law. Filling the content of this wording in, Article 31 of the Law "On the Judiciary and the Status of Judges" (2016) establishes that in the judicial system there are higher specialized courts as courts of first instance to consider certain categories of cases. This category of courts today includes the High Court of Intellectual Property and the High Anti-Corruption Court, activities of which are initiated by the relevant legislation. However, in political circles there was a discussion about the constitutionality of this court and, accordingly, the subject of the right to a constitutional petition questioned a number of provisions of the Law "On the Supreme Anti-Corruption Court" and appealed to the Constitutional Court of Ukraine to declare this law unconstitutional. In turn, the Constitutional Court of Ukraine initiated constitutional proceedings on this issue. Familiarization with the legal position of the subject of the constitutional petition indicates that the key issue of this constitutional proceeding concerns the presence of signs of a "special court" (within the meaning of Part 6 of Article 125 of the Constitution of Ukraine) in the mechanism of legislative regulation of the Supreme Anti-Corruption Court. In order to find an objective answer to the existing conflict, it is necessary to abstractly identify the main features of a "special" court. To solve such an applied problem, the author of the article turned to the theory and applied provisions of the principle of natural judgment, which was the subject of this study. As a result of the study, the author argues that by giving the Supreme Anti-Corruption Court exclusive jurisdiction over the system of general courts, the legislator has significantly deviated from the permissible limits of constitutional legality. The author singled out and grouped the key features of a special court, which included: 1) Separation of a judicial institution with a separate system of instances for consideration of certain categories of cases selected from the general array (special jurisdiction) or in respect to a separate category of persons. 2) The court, which is entrusted with special, different from other general courts, the purpose and objectives of the activity. 3) A court formed to expedite the resolution of certain categories of cases specific to a certain period; 4) A court in which judges have a special legal status (special tasks in the administration of justice; special professional qualifications (requirements, selection criteria); a special (extraordinary) procedure for the formation of the judiciary, etc. It is seen that the principle of natural judgment – is a fundamental constitutional and legal heritage of civilized humanity, which is designed to protect people, their rights and freedoms from the arbitrariness of the state, and from the use of courts as an instrument of terror and wrongful persecution.

scholarly journals Criminal proceedings in the case of death of the suspect or the accused

2021 ◽  
pp. 1-11
Author(s):  
Ol'ga Vladimirovna Anuchina
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Theoretical Background ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Theoretical Concepts ◽  
Dead Person ◽  
The Law ◽  
Optimal Approach

There’s a necessity to study criminal proceedings in the case of death of the accused or the suspect as a differentiated form. The purpose of the research is the development of the optimal approach to the understanding of the form of criminal proceedings in the case of death of the suspect or the accused. The research subject is the criteria of a special procedure in relation to the peculiarities of the criminal proceedings in the case of death of the suspect or the accused. The author considers the criteria of differentiation of a procedural form, the most significant for this research, with account of the provisions of the Law on Criminal Procedure, theoretical concepts, the legal position of the Constitutional Court of Russia, and the explanations of the Plenum of the Supreme Court of Russia regarding the proceedings against a dead person. The scientific novelty of the research is determined by the ongoing development of the theoretical background of criminal proceedings in the case of death of the accused or the suspect. Based on the analysis, the author formulates the conclusion that these proceedings should be classified as specific and enshrined in the law as a specific form of proceedings. The significant criteria of the proceedings against a dead person are: the purpose, the way of deciding on the criminal liability, the composition of legal relations, the requirements to their participants, the specific nature of criminal procedure, the socio-legal status of a justiciable person. The results of the research can be used for scientific and research purposes, and can be taken into account when preparing amendments to the Criminal Procedure Code of Russia related to criminal proceedings in the case of death of the suspect or the accused.

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