scholarly journals A genealogy of the critical discourses on the authoritarianism of the Brazilian Criminal Procedure Code

2021 ◽  
Vol 42 (87) ◽  
pp. 1-41
Author(s):  
Clara Maria Roman Borges
Keyword(s):  
Criminal Procedure ◽  
Critical Discourse ◽  
Procedural Law ◽  
Procedure Code ◽  
Critical Discourses

This paper presents an investigation on the critical discourses thatattribute the authoritarianism of the Brazilian criminal procedure to a legacy ofthe fascist Italian criminal procedural legislation of 1930. At first, it reveals theimpossibility of this comparison by the lack of sources for verifying if there wasindeed the influence of Italian fascist law in the Brazilian Criminal Procedure Codeof 1941. Then, it is analyzed how this critical discourse diffuses among Braziliancriminal procedural law scholars from the 1990’s, due to their networks of academicand professional contacts, establishing a rupture with previous criticisms. Finally,the research aims to demonstrate how this approach between the Brazilian Codeand the Rocco Code was artificial and prevents Brazilian criminal procedurallaw scholars from realizing the influences of other foreign laws in legislation andcurrent judicial practices and prevents them from creating strategies to ensurethe implementation of constitutional guarantees in these new procedural forms.

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 Penal Mediation as the Concept of Restorative Justice in the Draft Criminal Procedure Code

2021 ◽  
Vol 5 (1) ◽  
Author(s):  
Emmanuel Ariananto Waluyo Adi
Keyword(s):  
Law Enforcement ◽  
Restorative Justice ◽  
Criminal Procedure ◽  
Criminal Cases ◽  
Law Enforcement Agencies ◽  
The Public ◽  
Procedural Law ◽  
Private Realm ◽  
Procedure Code ◽  
The Law

The law recognizes both litigation and non-litigation settlement mechanisms, but it is almost not explicitly regulated for non-litigation settlement in criminal cases. Non-litigation in criminal recognizes the concept of restorative justice for the public interest, which is different from the private realm in civil. The concept of restorative justice exists to rehabilitate the state of criminals so that they are accepted back into the community. The concept of restorative justice is manifested in the mediation mechanism in criminal law in the form of penal mediation, but penal mediation does not yet have a legal umbrella. The non-progressive normative application of the law results in the overcapacity of prisons/remand centres. Currently, the Draft Criminal Procedure Code (hereinafter as RKUHAP) is being drafted, which does not yet regulate the application of non-litigation solutions. Later, it can be applied by law enforcement agencies so that problems such as overcapacity prisons are resolved and the creation of peaceful order in the community. This study aims to provide a view of the concept of penal mediation in criminal procedural law to serve as an aspiration for the consideration of the parties involved in the preparation of the substance of the RKUHAP. This paper uses a normative approach with technical analysis using hermeneutic analysis and interpretation methods.

ISSUES ON THE JUSTIFICATION OF THE AMENDMENT OF THE CRIMINAL PROCEDURAL LEGISLATION OF THE REPUBLIC OF SERBIA FROM 2011

2021 ◽  
pp. 321-332
Author(s):  
MILOŠ STAMENKOVIĆ
Keyword(s):  
Social Context ◽  
Criminal Procedure ◽  
Basic Feature ◽  
Procedural Law ◽  
Procedure Code ◽  
Introductory Part ◽  
Social Dynamic ◽  
The Law ◽  
The Republic

The issue of the development of criminal procedural law is an extremely broad and complex consideration, one that is difficult to cover in one study. In this paper, the author will deal with the development of criminal procedural legislation of the Republic of Serbia by 2011 in the first part. The current Criminal Procedure Code, with its most recent amendments from 2019, is still based precisely on the mentioned Code. The systematic presentation of the development of criminal procedural legislation in the Republic of Serbia has been burdened with both numerous changes in legislative sources and changes in the broader social context. The issue of state frameworks and the validity of the law, therefore, often requires a review of the broader territorial framework and an understanding of this social dynamic. If one considers the period of formation of the Kingdom of Serbs Croats and Slovenes in 1918, the basic feature of criminal procedural law implied the particular interests of individual states and separate procedural arrangements. Following the above, which is in a way an introductory part, the paper will address the most important changes to the current Criminal Procedure Code in relation to the 2011 Criminal Procedure Code. After the Criminal Procedure Code of 2001 was repealed, the new Criminal Procedure Code of 2011 came into force, which regulates several issues in a whole new way. Finally, special attention will be paid to the inconsistency of the Criminal Procedure Code of 2011 with the Constitution of the Republic of Serbia.

scholarly journals Data Elektronik Sebagai Alat Bukti Yang Sah Dalam Pembuktian Tindak Pidana Pencucian Uang

2019 ◽  
Vol 1 (1) ◽  
pp. 33-46
Author(s):  
Pandoe Pramoe Kartika
Keyword(s):  
Criminal Procedure ◽  
Scientific Work ◽  
Criminal Cases ◽  
Descriptive Data ◽  
Legal Evidence ◽  
Electronic Evidence ◽  
Procedural Law ◽  
Procedure Code ◽  
Qualitative Descriptive ◽  
Legal Proof

The writing of this scientific work is motivated by the difficulty of legal institutions such as the court in carrying out the verification of criminal cases related to Electronic Data. Evidence is fundamental in every criminal case. Therefore, evidence becomes a very decisive thing whether or not a person is convicted. However, the Criminal Procedure Code as a formal law in Indonesia, has not regulated electronic evidence as a legal evidence. The research method used is normative research using a statutory and analytical approach, while data collection through literature studies and interviews and qualitative descriptive data analysis. The results of the study indicate that proof of the ITE Law is lex specialis, because the ITE Law regulates everything that is more specific in the evidentiary law contained in the Criminal Procedure Code. The legal proof of electronic aspect as a legitimate evidence in the case of money laundering is regulated in Article 73 and with the enactment of the ITE Law, it is increasingly emphasized that electronic documentary evidence is a legitimate and recognized evidence in Indonesian procedural law. Penulisan karya ilmiah ini dilatar belakangi oleh sulitnya lembaga hukum seperti pengadilan dalam hal melaksanakan pembuktian perkara pidana yang berhubungan dengan Data Elektronik. Bukti merupakan hal mendasar dalam setiap perkara pidana. Oleh karena itu, alat bukti menjadi hal yang sangat menentukan dapat tidaknya seseorang dipidana. Namun, Kitab Undang-Undang Hukum Acara Pidana sebagai hukum formil di Indonesia, belum mengatur mengenai alat bukti elektronik sebagai alat bukti yang sah. Metode penelitian yang digunakan adalah penelitian normatif dengan menggunakan pendekatan perundang-undangan dan analitis, sedangkan pengumpulan data melalui studi pustaka dan wawancara serta analisis data secara deskriptif kualitatif. Hasil kajian menunjukkan bahwa pembuktian pada UU ITE bersifat lex specialis, dikarenakan UU ITE mengatur segala sesuatu yang lebih spesifik dalam hukum pembuktian yang terdapat di dalam KUHAP. Aspek hukum pembuktian elektronik sebagai alat bukti yang sah dalam kasus tindak pidana pencucian uang diatur dalam Pasal 73 dan dengan diberlakukannya UU ITE semakin dipertegas bahwa alat bukti dokumen elektronik merupakan alat bukti yang sah dan diakui dalam hukum acara Indonesia.

scholarly journals The legal regulation of the preliminary investigation bоdies activities according to UPK Uzbek SSR 1929

2021 ◽  
pp. 226-237
Author(s):  
A. A. Muhitdinov
Keyword(s):  
Public Relations ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Process ◽  
Legal Norms ◽  
Procedural Law ◽  
Stage Of Development ◽  
Procedure Code ◽  
History Of

At the present stage of development of the criminal procedural legislation of the Republic of Uzbekistan, many legal institutions that have a long history of doctrinal development have received normative consolidation. Among them is the institution of participants leading the criminal process at the stage of pre-trial investigation. In the history of Uzbekistan, the activities of these subjects of the criminal process were regulated by numerous normative legal acts, including codified ones. The first Criminal Procedure Code of the Uzbek SSR was adopted in 1926. Soon the Uzbek SSR Criminal Procedure Code of 1929 entered into force. In comparative legal terms, the latter was significantly inferior to the previous one in terms of the degree of detail in the regulation of criminal procedural relations with the participation of pre-trial investigation bodies. Analysis of the content of the legal norms of the Criminal Procedure Code of 1929, regulating the activities of these bodies, allows us to identify features that, from the standpoint of the modern vision of the optimal model of the Criminal Procedure Code of Uzbekistan, are assessed as shortcomings in the legal regulation of the relevant public relations. As such, we can name the following: the CPC does not contain norms defining the sources of criminal procedural law; the code does not provide for a separate chapter devoted exclusively to investigative actions, a detailed description of their procedural form; there is no clear delineation of the competence of the bodies of inquiry and the investigator; the investigator is by law entrusted with supervisory functions that are not characteristic of him in relation to the bodies of inquiry; the Criminal Procedure Code does not include a norm prohibiting persons conducting a preliminary investigation from obtaining evidence by violence, threats, etc.; The Criminal Procedure Code determined the existence of sufficient data, and not evidence, as the basis for the accusation. After being charged, the person acquired the status of a defendant, not an accused; the application of preventive measures, including detention, was carried out by the investigator independently, without the sanction of the prosecutor, which testified to the absence of guarantees of the observance of the right to personal inviolability.

scholarly journals LEGAL STANDARDS OF THE EUROPEAN COURT OF HUMAN RIGHTS REGARDING REQUIREMENTS FOR ADMISSIBILITY OF EVIDENCE IN CRIMINFL PROCEEDINGS

2020 ◽  
pp. 252-261
Author(s):  
O. Mazur
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
The State ◽  
International Standards ◽  
Criminal Proceedings ◽  
Legal Standards ◽  
Procedural Law ◽  
Procedure Code ◽  
European Court ◽  
Protection Of Human Rights

The article deals with the requirements of the European Court of Human Rights regarding evidence and evidence, which are disclosed in the provision of paragraph 3 of Article 6 “The right to a fair trial” of the Convention for the Protection of Human Rights and Fundamental Freedoms, the latest practice of the Supreme Court regarding the criteria for admissibility of evidence and analysis of the current criminal procedural law. As you know, the attitude of the state towards the protection of human rights and freedoms is one of the indicators of its democracy. Ukraine has chosen the European Community as the main strategic vector of development. Such a vector provides for the unification of the regulatory framework in accordance with European legislation, as well as compliance by law enforcement agencies with international standards for the protection of the rights and freedoms of citizens. That is why, the corresponding rule is enshrined in the Criminal Procedure Code of Ukraine, providing that the rule of law in criminal proceedings is applied taking into account the practice of the European Court of Human Rights (part 2 of article 8). A detailed analysis of the provisions of the Criminal Procedure Code of Ukraine regarding the admissibility of evidence in criminal proceedings and the relationship of these norms with the legal positions of the European Court of Human Rights is carried out. They also examined the requirements of the European Court of Human Rights regarding the admissibility of evidence in decisions in which a violation by the state of the norms of the Convention was found, and in decisions in which such a violation was not found. So, summarizing and analyzing the practice of the ECHR, we saw that the Court emphasizes that a guilty verdict cannot be generally based only on inadmissible evidence, and if such a sentence is pronounced, then this is a violation of Article 1 6 of the Convention in respect of an unfair trial. Therefore, the investigator, prosecutor, investigating judge and judge should take into account the relevant practice of the ECHR and the norms of the Convention in their procedural activities in order to avoid these violations and to submit complaints to the European Court of Human Rights in the future.

scholarly journals REKONSEPTUALISASI JALUR KHUSUS DALAM RANCANGAN KUHAP SEBAGAI BENTUK REFORMASI SISTEM PERADILAN PIDANA INDONESIA

Arena Hukum ◽  
2021 ◽  
Vol 14 (1) ◽  
pp. 193-209
Author(s):  
Ladito Bagaskoro ◽  
Keyword(s):  
United States ◽  
Criminal Procedure ◽  
Plea Bargaining ◽  
The United States ◽  
Public Prosecutor ◽  
The Public ◽  
Procedural Law ◽  
Procedure Code ◽  
Legal Adviser ◽  
Case Files

Abstract The significant increase in the pile of case files between 2016 and 2019 led to the need for concepts or methods that can create judicial efficiency. In the spirit of reforming the Criminal Procedure Code, the drafting team of the Criminal Procedure Code tries to include procedures aimed at shortening and expediting procedural procedures through the existence of a special pathway in Indonesian criminal procedural law in the future, which is inspired by the concept of plea-bargaining in the United States and Britain. This normative research uses conceptual and comparative law. The result shows that a special line was given to the defendant who admitted to the criminal act charged making the trial hearing shorter. Second, there are several fundamental differences between the special lines in the Draft Criminal Procedure Code and plea bargaining in the United States, especially in the agreement between the defendant or legal adviser and the public prosecutor, the process for confessing the accused, the criminal acts included, and the position of the judge in their respective processes.

scholarly journals ЛЖЕСВІДЧЕННЯ ТА ЛЖЕПРИСЯГА

2019 ◽  
Vol 15 ◽  
pp. 312-320
Author(s):  
М. В. Шепітько
Keyword(s):  
Criminal Liability ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Code ◽  
Procedural Law ◽  
Procedure Code

Стаття присвячена проблемі правової регламентації лжесвідчення та лжеприсяги в Кри­мінальному кодексі України і Кримінальному процесуальному кодексі України. Особливу увагу приділено проблемі виявлення неправди в показаннях. Указано на можливий вплив допущення неправди в показаннях для встановлення істини й відновлення справедливості. Проаналізовано наслідки появи в кримінальному процесуальному законодавстві інституту присяги. Наявна спроба співвідношення лжесвідчення та лжеприсяги. Виявлено, що кримі­нальна відповідальність установлена не тільки за лжесвідчення, а й за лжеприсягу. Надано пропозиції щодо змінення механізмів попередження про кримінальну відповідальність, при­ведення до присяги, фіксації судового процесу.   The article is devoted to the problem of legal regulation false testimony and false oath in Criminal Code and Criminal Procedure Code of Ukraine. Particular attention is paid to the problem of detecting lies in the testimony. It was indicated possible impact lies in the testimony for truth and justice. Author analyzed some consequences of establishment the oath as criminal procedural law institution. It was observed correlation of false testimony and false oath. Author ascertained that criminal liability is established not only for false, but also for false oath. It was given some proposals to change the mechanisms for the notice of criminal liability, administra­tion of oath, and trial fixation.

scholarly journals ON THE ESSENCE AND LEGAL NATURE OF THE FORENSIC EXAMINATION IN CRIMINAL PROCEEDINGS

2021 ◽  
pp. 5-16
Author(s):  
V. Tishchenko ◽  
L. Belik ◽  
O. Samoilenko ◽  
Yu. Tishchenko
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Procedure Code ◽  
Legal Science ◽  
Forensic Examination ◽  
Legal Nature ◽  
Forensic Expert ◽  
The Law ◽  
Definition Of

The article is devoted to the study of aspects of the essence and legal nature of forensic examination in criminal proceedings. It is analyzed the provisions of the Law of Ukraine “On Forensic Examination”. The norms of the Criminal Procedure Code concerning the grounds for the appointment and conduct of forensic examination have been investigated. It has been established that many scientists in the field of civil procedural law, criminal procedural law, criminology and forensic examination paid attention to the legal content of the forensic examination. The nature of occurrence of forensic examination has been investigated. It has been established that at the legislative level, the term “forensic expert activity” is used only in the Law of Ukraine “On Forensic Examination”. In the specified normative legal act there is no clear definition of this concept, scientists through the analysis of some norms of law reveal its content. Regarding the definition of the concept of forensic examination, it has been established that there is no consensus in legal science. Regarding the definition of the concept of forensic examination, it has been established that there is no consensus in legal science. The article analyzes the criminal procedure form of appointing a forensic examination. Key words: forensic examination, criminal proceedings, forensic expert activity, forensic expertology, criminal procedural form.

scholarly journals Assurance of Evidence

2017 ◽  
Vol 6 (s2) ◽  
pp. 69-73
Author(s):  
Adrian Leka
Keyword(s):  
Relevant Literature ◽  
Preliminary Investigation ◽  
Sexual Exploitation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Trials ◽  
Procedural Law ◽  
Judicial Practice ◽  
Legal Provisions ◽  
Procedure Code

Abstract This paper reflects the detailed theoretical and interpretative treatments of criminal evidence and the process of proving according to criminal procedural legislation, based on the Constitution and E.C.H.R. Theoretical and interpretive depeened treatments, are based on the scientific research closely connected to the judicial practice of the implementation of this legislation, the positions held by judicial practice. Special attention is paid to all criminal evidence, meaning, object, features, procedural rules of receiving, verification and evaluation of them throughout the penal process, the rights and obligations of the parties in this process. The implementation of legal provisions onto evidence, evidence search tools and the process of proving, by procedural subjects in judicial practice has recognized and shown the most important issues in relation to other instutitutet of criminal procedural law. The terminology used in this paper is supported and conditioned by the terminology used by the legislator in dispositions of the Criminal Procedure Code. Provision of proof is a relatively new institute in the criminal proceedings. It first became known in the procedure code of 1995, in order to preserve the value of the data found during the preliminary investigation. Providing of proof would be applied in all those cases where evidence risks to be damaged, disappear, et lost and receiving it can not be deferred until the trial. Regarding to the relevant literature in Albanian language, only few authors have mentioned it sporadically, not emphasizing the real importance of evidence assurance institute. Even in the commentary of criminal proceedings this institute is dealt with very little, in summary, if we refer to its importance. Assurance of proof is provided in the Criminal Procedure Code in Articles 316-322. In these provisions is expressed the whole procedure of securing evidence, from the definition of specific cases in which it might apply (Article 316 Criminal Procedure Code), continuing with the presentation of evidence and the application for evidence assurance and subjects legitimized in its appearance (Articles 317,319 Criminal Procedure Code), as well as the right of the court in disposition of this requirement. An important element to be treated is to determine the scope of the institute of evidence assurance. Often in practice it is said that the demand for evidence assurance, is applied more in criminal offenses smuggling of women for sexual exploitation, trafficking of minors for other exploitation purposes, sexual relations with minors etc. In this paper is also treated the evidence assurance institute as well as that of the research means of evidence, these institutions closely linked to criminal trials and the process of proving. Of the most important institutes of criminal procedural law is that of "criminal evidence and proving process" which is rightly considered as the backbone institute of this right. The importance of criminal evidences and the process of proving is determined by the purpose itself and content of the criminal legislation. These institutes are directly related to the content and task of this science, to what is the process of detecting and proving the truth in criminal trials. While acknowledging the special place it occupies the evidence assurance institute it is not yet determined its importance really. In this brief theoretical material, I tried to treat through a slightly wider framework assurance of evidence focusing on its importance, theoretical and practical problems in determining the scope of these institutes.

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