Modern solidarity and administrative repression

Modern society is based on the predominance of organic solidarity over mechanical solidarity and, consequently, on the predominance of the law, which ensures cooperation between autonomous subjects from repressive law, which sanctions, through penalty, any deviation from the standards of the common conscience. Modern society is “civilized”, i.e. it is firstly and foremost based on “civil” law, the repressive law only being exceptional, which translates into three principles: that of the subsidiarity of criminal law, that of the necessity and legality of offences and penalties, and that of the additional protection of individual freedom when the subject is criminally charged. The consequence thereof is that, in modern liberal democracies, all repressive law is criminal, that any charge which may lead to the application of a repressive sanction is a criminal charge and that the law-maker cannot assign to the administration the competence regarding the application of repressive sanctions. Under these circumstances, the transformation of some repressive norms into norms of administrative law is a violation of the fundamental principles that structure the legal order of modern liberal states. Nonetheless, this type of practice is becoming more common. In order to ensure individual freedom, this tendency must be corrected. As politicians are not willing to do so, naturally this is a task for the judicial courts, that can rely for this endeavour on the European Court of Human Rights’ constructive jurisprudence.

Behavioral Economics in Plea-Bargain Decision-Making: Beyond the Shadow-of-Trial Model

Legal scholars have long assumed that plea bargains are contracts negotiated between rational actors who adhere to the dictates of the normative shadow-of-trial model. The two key features that rational actors presumably haggle over in the shadow of trial are the criminal charge (and associated sentence) and the probability of trial conviction. The behavioral economics theory of discounting, however, offers a theoretical foundation for testing the shadow-of-trial model. This article summarizes findings from experimental discounting studies in behavioral economics and psychological science – showing that these paradigms can be successfully applied to the plea-bargaining decision context wherein the likelihood of trial is uncertain and delayed, and the plea bargain is relatively certain and immediate. We suggest that the implications of applying discounting to plea bargaining are three-fold: (1) empirical evidence suggests that the shadow-of-trial model is too narrow; (2) the discounting of non-monetary losses may involve slightly different psychological processes than contexts involving monetary outcomes; and (3) probability of conviction and delay until trial constitute situational features that elicit guilty pleas despite a defendant’s factual innocence.

12. Article 6: right to a fair trial

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. Article 6 is the right to a fair trial. It looks at the scope of Article 6—the kinds of trial it deals with; and defines ‘determines’, ‘civil rights and obligations’, and ‘criminal charge’ for this purpose. It then goes on to consider the specific rights that are inherent in the idea of a hearing that is ‘fair’ and tribunal that is ‘independent’ and ‘impartial’. It also discusses the additional rights that are enjoyed by a defendant in a criminal trial. Of particular importance is the issue of adjusting the concept of ‘fairness’ to the circumstances, particularly in the context of threats to national security. The need to protect the essence of a right to a fair hearing where there are important public interests justifying restrictions is an issue that is at the heart of the Article 6 case law.

The Request for Postponement of the Blashphemy Case Criminal Charge Reading by Police and Prosecutors

This research aims to evaluate the police's request to postpone the criminal charge reading of the blasphemy case at the North Jakarta District Court, which was not based on Indonesia's positive law. The request to postpone a trial by the police without a legal basis could be considered a form of police intervention against the trial process, which has legal criminal consequences based on Article 3 Paragraph 2 and 3 of Law Number 48 of 2009 concerning Judicial Power. Meanwhile, the request for a two-week trial postponement by the public prosecutors due to their inability to complete the criminal indictment, as well as considering the request from the police, has created an impression that the public prosecutors have complied with the request of the police. It also injured public trust that demanded a fair and transparent law enforcement process.

Kerugian Keuangan Negara pada Badan Usaha Milik Negara (BUMN) dalam Perspektif Doktrin Business Judgement Rule

Abstract— State-Owned Enterprises that act as an agent of development and business entity for the country are the concrete forms to reach the welfare state goal. Persero, as the example of state-owned enterprises will surely experience advantages and disadvantages due to the dynamic condition of the business world. With the various regulations that regulate state-owned enterprises itself, created a disharmony form of liability to the directors about the business loss. This research aims to identify do the loss of the state-owned enterprises would classified as state financial losses in the perspective of doctrine business judgment rule. This research using statute approach and conceptual approach shows that there is a dualism view about the position of separated-state wealth in the scope of state finances resulting in different interpretations of the meaning of state financial losses by the law enforcers. This dualism view caused a disharmony form of liability that asked to the Directors of Persero when that occur losses because according to the Section 2 and Section 3 Law Number 20 of 2001 jo Law Number 31 of 1999 concerning Eradication of Corruption, the directors would probably asked the liability for the alleged of corruption because causing state financial losses, on the other side according to the Section 97 verse 5 Law number 40 of 2007 concerning Company there is an exception to the directors so they would not be able to be charges. Furthermore, losses that happened in the state-owned enterprises can not only occur as a result of abuse of power but are result of business risks so the directors can be protected by the doctrine of business judgment rule from criminal charge. Keywords: persero state-owned enterprises, state financial losses, business risks, business judgment rule Abstrak—BUMN sebagai pelaku perekonomian nasional yang memiliki peran ganda yakni sebagai agent of development sekaligus sebagai business entity, merupakan salah satu bentuk konkret perpanjangan tangan negara dalam mewujudkan cita-cita bangsa dan negara yakni memajukan kesejahteraan umum. Layaknya sebuah perusahaan, BUMN Persero sebagai salah satu bentuk BUMN pasti akan mengalami keuntungan maupun kerugian akibat dinamisnya dunia bisnis. Menjadi sebuah problematika ketika kerugian yang dialami oleh BUMN Persero tersebut dihadapkan dengan berbagai peraturan perundang-undangan yang berlaku bagi BUMN, baik dalam ranah hukum publik maupun dalam ranah hukum privat. Penelitian ini bertujuan untuk menelaah apakah kerugian yang dialami oleh BUMN dapat diklasifikasikan sebagai kerugian keuangan negara dalam perspektif doktrin business judgment rule. Melalui penelitian yang dilakukan dengan menggunakan metode statute approach dan conceptual approach ditemukan bahwa adanya dualisme pandangan kedudukan kekayaan negara yang dipisahkan dalam lingkup keuangan negara sehingga menimbulkan perbedaan penafsiran makna kerugian keuangan negara oleh aparat penegak hukum. Dualisme pandangan ini berdampak pada ketidakharmonisan bentuk pertanggungjawaban yang dimintakan kepada Direksi BUMN Persero ketika terjadi kerugian pada tubuh BUMN sebab berdasarkan ketentuan Pasal 2 dan/atau Pasal 3 Undang-Undang Nomor 20 Tahun 2001 jo Undang-Undang Nomor 31 Tahun 1999 tentang Pemberantasan Tindak Pidana Korupsi, Direksi BUMN Persero dapat dimintakan pertanggungjawaban secara pidana atas dugaan tindak pidana korupsi karena menyebabkan kerugian keuangan negara namun berdasarkan Pasal 97 ayat (5) Undang-Undang Nomor 40 Tahun 2007 tentang Perseroan Terbatas terdapat pengecualian agar Direksi BUMN tidak dimintakan pertanggungjawaban secara pribadi. Lebih jauh, kerugian pada BUMN tidak hanya dapat terjadi akibat dari adanya penyalahgunaan wewenang melainkan akibat dari adanya risiko bisnis sehingga doktrin business judgment rule dapat diterapkan untuk memberikan perlindungan bagi direksi dari tuntutan pidana.. Kata kunci : badan usaha milik negara, kerugian keuangan negara, risiko bisnis, business judgment rule

The neglected nexus between competition law and human rights: standard of proof for pecuniary penalties

This paper examines the standard of proof applicable in proceedings for imposing pecuniary penalties for violation of competition rules. Australia, New Zealand and the UK have chosen the civil standard. This unfortunately overlooks the safeguards required by the relevant human rights treaties in proceedings that involve the determination of a ‘criminal charge’. Conversely, Hong Kong has adopted the criminal standard, which may prove unworkable in these proceedings in which economic analysis is key. After analysing whether one may set this quagmire aside by asserting that these proceedings do not involve the determination of a criminal charge, it will be argued that the more plausible solution is to accept the criminal charge characterisation, limit the civil standard to the effects-based elements of the charge and apply the criminal standard to other elements. This will achieve a permissible proportionate derogation from the human rights safeguards. Similar bifurcated models have been adopted for charges such as public nuisance and harassment, and have successfully withstood human rights challenges.

Criminal charge history, handgun purchasing, and demographic characteristics of legal handgun purchasers in California

Background The prevalence and characteristics of handgun purchasers’ criminal charge histories have never been described for a large population of firearm owners, but such information is critical to understanding risk factors for subsequent violence in this population. We sought to characterize legal handgun purchasers in California and compare this group to the state population, to quantify the proportion with a criminal charge history at purchase, and to identify modifiable factors associated with of having such a history. Methods This cross-sectional study of all 79,927 legal handgun purchasers aged 21–49 years in California in 2001 used log-linear generalized additive models to identify factors associated with having a criminal charge history at purchase. Subjects are from a longitudinal study of incident criminal activity among handgun purchasers. Results The majority (91.03%) of purchasers were male; whites were overrepresented and Hispanics were underrepresented relative to their population size. At the time of purchase, 16.68% had a criminal charge history and 10.71% had a criminal conviction. Among men with such a history, 31.28% had been charged with a violent crime and 16.54% had been charged with a firearm-related crime. The strongest factor associated with having a criminal charge history was redeeming a pawned handgun (prevalence ratio: 1.82; 95% confidence interval: 1.71, 1.93). Conclusions Despite California’s stringent firearm purchase laws, more than 1-in-6 handgun purchasers had a criminal charge history at purchase. This proportion may be higher in states with less restrictive firearm purchasing eligibility criteria.

Velikiye Luki corrupt collaborator Ivan Bychkov-Pomortsev: a figure in two cases

One of the reasons for the collaboration of Russian citizens with Nazi invaders during the Great Patriotic War was the desire to improve their material well-being. Holding various administrative positions, they not only carried out the orders of the German command, but also used them for selfish purposes. Burgomaster of the city of Velikiye Luki Ivan Bychkov-Pomortsev was twice called before the court to answer a criminal charge. The Nazis filed the first lawsuit against him in the so-called “new Russian court” for numerous fraudulent schemes and abuse of his official position. The collaborating official justified his actions by his hatred of Jews and Communists and insisted on active assistance to the German command. The second time Bychkov-Pomortsev was convicted by the Soviet court as an active accomplice of the Nazi occupiers.