Restrictive measures of a criminal law nature in the system of legal regulation of prevention and to combat domestic violence

The article is devoted to the study of the system of state measures applied to persons, who are suspected, accused of committing or having committed domestic violence, as well as determining the place of restrictive measures of a criminal law nature in the proposed system. For this purpose, it is necessary to conduct an analysis of the legislative regulation of state measures applicable to persons suspected of committing or having committed domestic violence at all levels of №rmative legal regulation; to delimitate the terms “restrictive measure”, “precautionary measure”, “restrictive prescription” and “temporary prohibition injunction” and to analyse the expediency of the new term “security measures” proposed by the draft of the new Criminal Code of Ukraine. The result of the conducted study is an analysis of the existing state measures to combat domestic violence in order to form a system of special measures to combat domestic violence, as well as examination of the issue concerning the place of restrictive measures of a criminal law nature applicable to persons having committed domestic violence. So, today, the system of special measures to combat domestic violence consists of types of measures to temporarily restrict the rights and obligations of the perpetrator who committed domestic violence, as well as to a person suspected, accused or committed a criminal offense related to domestic violence. The types of such measures are taking the offender into preventive registration and carrying out preventive work with him; referral of the offender to the offender program; a temporary injunction; a restrictive prescription of a civil nature a restrictive measure of a criminal procedure nature applicable to persons suspected or accused of committing domestic violence; and a restrictive measure of a criminal nature nature applicable to persons who have committed domestic violence having different preconditions, grounds , subjects and the term of appointment, but have the sole intention of protecting persons suffering from domestic violence.

Saving lives during the COVID-19 pandemic: the benefits of the first Swiss lockdown

The implementation of a lockdown to control the spread of the COVID-19 pandemic has led to a strong economic and political debate in several countries. This makes it crucial to shed light on the actual benefits of such kind of policy. To this purpose, we focus on the Swiss lockdown during the first wave of COVID-19 infections and estimate the number of potentially saved lives. To predict the number of deaths in the absence of any restrictive measure, we develop a novel age-structured SIRDC model which accounts for age-specific endogenous behavioral responses and for seasonal patterns in the spread of the virus. Including the additional fatalities which would have materialized because of the shortage of healthcare resources, our estimates suggest that the lockdown prevented more than 11,200 deaths between March and the beginning of September 2020.

Free Trade vis-à-vis Morality: Revisiting the Public-Morals Exception Clause in the World Trade Organization

The most sanctified obligation of the World Trade Organization (WTO) is the promotion and facilitation of international trade and liberalisation of the world economy. Although WTO members are committed to the WTO principle of free flow of goods and services among its members, the WTO permits its members to retain certain regulatory powers under its system to impose trade-restrictive measures based on certain exceptions, like, among other things, public morality under Article XX(a) of the General Agreement on Tariffs and Trade (GATT, 1994). Nevertheless, the question remains: what is public morality for a WTO member, and how far may this clause be invoked in defence of adopting trade-restrictive measures? Recently, the WTO panel on the US tariff case revived the long-standing debate on international trade versus public morality. Is a WTO member free to choose any trade-restrictive measure under the cloak of public morality? Then, what mechanism has the WTO panel/AB (Appellate Body) envisaged to check WTO members from adopting any trade-restrictive measure based on public morals? This article tries to answer these questions by analysing previous WTO disputes related to trade and morality. Against this background, this article looks back at the history of the public-morals exception clause, revisits previous WTO case laws on the public-morals exception and tries to ascertain the precise meaning of public morality—how the WTO Dispute Settlement Body (DSB) checks and balances two conflicting principles, that is, the right to regulate and the principle of free trade—and whether WTO has successfully developed a coherent jurisprudential approach to deal with contradictory interests, that is, trade versus morality. JEL Codes: F, F1, F13

Direction for the program for abusers or probation program: a practical aspect

Introduction. Restrictive measures applied to perpetrators of domestic violence are a relatively new type of criminal law measure provided for in current criminal law. The legislative and scientific novelty of these measures, the inconsistency norms of legislative acts, which regulate the procedure for their appointment and implementation, cause problems and difficulties in their practical application. Purpose. Analysis of the practice of restrictive measures provided for in paragraph 5 of Part 1 of Art. 91-1 of the Criminal code of Ukraine, revealing of problems and difficulties of their appointment and performance and statement of offers concerning possible overcoming of these problems, by elimination of legislative gaps and contradictions. Results. The article analyzes the practice of prescribing and implementing such restrictive measures applicable to perpetrators of domestic violence as "direction for program for abusers" and "direction for probation program". Problems and difficulties that arise due to the ambiguity of the wording of criminal law, the inconsistency of regulations governing the appointment and implementation of relevant measures, as well as the lack of professionalism of the judges. In particular, it was established that the judges did not specify which restrictive measure provided for in paragraph 5 of Part 1 of Article 91-1 of the Criminal Code of Ukraine should be applied to the convict, because it contains two different in content and procedure. This makes it impossible to enforce the sentence. Also, the lack of a mechanism for interaction of probation authorities with local state administrations and local self-government authorities makes it impossible for probation authorities to exercise control over convicts who are sent to undergo a program for abusers. Conclusion. It is proposed to amend Art. 91-1 of the Criminal code of Ukraine, the Law of Ukraine "About probation" and other regulatory legal acts, for the purpose of elimination of the analyzed problems of application of restrictive measures.

Grounds and Conditions for the Application of Restrictive Measures Applied to Persons who have Committed Domestic Violence

The grounds and conditions for the application of restrictive measures applied to persons, who have committed domestic violence, are provided in Art. 911 of the Criminal Code of Ukraine. It is established that in the science of criminal law there is a unanimous position that the basis for the application of restrictive measures under Art. 911 of the Criminal Code is the commission by a person of a crime related to domestic violence, and the conditions are: 1) sentencing a person not related to imprisonment; 2) release of a person from criminal liability on the grounds provided by the Criminal Code; 3) release of a person from punishment on the grounds provided by the Criminal Code. These conditions are alternative. The content of the concept of «crime related to domestic violence» is analyzed and it is established that it should be understood more broadly than the act provided for in Art. 1261 of the Criminal Code «Domestic Violence». It is proposed to add to Art. 911 of the Criminal Code a note explaining the meaning of the term «criminal offense related to domestic violence», where it is necessary to note that this concept is broader than the crime under Art. 1261 of the Criminal Code. The content of each of the conditions of application of restrictive measures is analyzed. It has been established that in the application of restrictive measures during the imposition of non-custodial sentences in practice there are problems with the interpretation of the relevant concept. It is proposed to clarify the meaning of the concept of «punishment not related to imprisonment» in Art. 911 of the Criminal Code. It is also established that the application of restrictive measures in releasing a person from criminal liability is a declarative norm and is subject to exclusion from the conditions of application of restrictive measures due to the incompatibility of the latter with the nature of exemption from criminal liability. The legislation clearly regulates the procedure for applying restrictive measures to persons released from serving a probation sentence. A number of problems that arise during the control over the behaviour of persons to whom restrictive measures have been applied by the probation authorities have also been identified. The solution to these problems is possible by harmonizing the provisions of the Criminal Code and the Law of Ukraine «On Probation», as well as other regulations governing the activities of probation bodies. It is proposed to refer the application of restrictive measures to supervisory probation, which will lead to a number of changes to the articles of the Law of Ukraine «On Probation» in terms of regulation of supervisory probation, to refer to probation subjects persons subject to restrictive measures, and to exclude the fact that it is assigned to a person released from serving a probation sentence, and in the regulations governing the development and implementation of probation programs to provide for their application to persons to whom restrictive measures have been applied. It is concluded that the probation body should be endowed with a coordinating function to implement all restrictive measures and it is necessary at the level of bylaws to establish a clear procedure for interaction of the probation body with the National Police, local state administrations and local governments to control the behaviour of individuals, which the appropriate restrictive measure is applied.

Facing the COVID-19 pandemic - From health to the law

This study analyzed the knowledge of medical and law students about the restrictive measures adopted during the COVID-19 pandemic and the implications in the fundamental rights of the individuals. A google forms questionnaire was prepared and sent by WhatsApp to medical students and law students. The survey included questions about social isolation and if it violates or not the citizens' and humans' rights. Descriptive statistics were performed, and comparisons between medical and law students were made with chi-square and independent t-tests. A higher percentage of medical students were taken precautionary measures than law students. Internet and TV are the most used to stay up to date. Most medical and law students believed that the restrictive measure of social isolation violates the rights guaranteed to citizens. However, the majority of them believed that the citizens’ rights to life and health should prevail over the citizens’ right to come and go.

Revisiting Proportionality in Internal Market Law: Looking at the Unnamed Actors in the cjeu’s Reasoning

To understand how the Court of Justice of the European Union (cjeu) assesses the proportionality of restrictive national measures, one has to depart from the canonical reading of internal market law cases. An alternative reading of the cjeu case law, focusing on the “who” rather than on the “how”, is possible. This article argues that the control of proportionality should not be viewed as an abstract reasoning aiming at comparing the respective importance and value of the norms in conflict, but rather as an evaluation based upon the thorough description of the social reality of the persons whose life and interests are either affected or protected by the challenged restrictive measure. Because it analyses the control of proportionality as a social narrative elaborated by the judge, the article can demonstrate that among the roles conferred by the proportionality narrative to different characters, the most determinant ones are played by persons standing behind the scene: the “archetypal characters”.

Patient Isolation during Infectious Disease Outbreaks: Arguments for Physical Family Presence

This article argues that outbreak preparedness and response should implement a ‘family presence’ policy for infected patients in isolation that includes the option of physical visits and care within the isolation facility under some conditions. While such a ‘physical family presence’ (PFP) policy could increase infections during an outbreak and may raise moral dilemmas, we argue that it is ethically justified based on the least infringement principle and the need to minimize the harms and burdens of isolation as a restrictive measure. Categorical prohibition of PFP during the course of an outbreak or epidemic is likely to result in unnecessary harms to patients and families, and violate values such as the moral commitments of families to care for each other. Supporting the option of PFP under particular circumstances, on the other hand, will least infringe these moral considerations. An additional reason for a family presence policy is that it may facilitate voluntary cooperation with isolation and other restrictive measures. We provide an analysis of these considerations for supporting modes of family presence during an outbreak emergency, before defending the riskier option of PFP in the isolation facility from plausible objections and concerns.

Mitigating the COVID-19 spread: a challenge and an opportunity

Dear Editor, The Colombian government declared the quarantine for all the population since 25th March, 2020 as a measure to mitigate the expansion of COVID-19 in the country. Nevertheless, this restrictive measure showed early some opposite consequences to its purpose. As observed in other countries, the restriction measure caused a mass purchase of products, formation of crowds in grocery, department stores and local markets. The fear of shortage also caused exhaustion of products, long journeys and accumulation of large numbers of people in stores, bank offices and ATMs.