A Special Status Victim: Criminal Liability for Assaulting a Government Official in Ukraine and Other Countries

At first, the regulation of the concept of rechterlijk pardon in the provisions of Indonesian criminal law was inspired by a similar arrangement in the provisions of criminal law in the Netherlands. Where the purpose of the inclusion of the concept is to avoid the rigidity that has long occurred in the practice of administering criminal law there. Such reasons are also the reasons behind the inclusion of the concept of rechterlijk pardon in the provisions of Indonesian criminal law. Although it has been more than thirty years since the concept was first discussed, until now the concept of rechterlijk pardon has only been regulated in the provisions of article 54 paragraph (2) of the Draft Criminal Code and article 70 of the Juvenile Criminal Justice System Law. However, in the practice of examining ordinary criminal cases, it turns out that there have been several district court decisions that apply the concept of rechterlijk pardon in the consideration of their decisions, including the verdict of criminal case number 1038/Pid.B/LH/ 2019/PN Pbr, criminal case verdict number 52/Pid.B/2020/PN LBB, criminal case record number 1/Pid.C/2021/PN Ttn, and criminal case verdict number 8/Pid.B/2022/PN Rtg. Even though it is known that the criminal law Indonesia adheres to a non-retroactive principle that prohibits the enactment of a statutory provision before the provision is passed. Therefore, in this article, we will discuss further about the implementation of the concept of rechterlijk pardon in each criminal case decision, which is connected with the non-retroactive principle that applies in the provisions of Indonesian criminal law.

In the aggravated consequential offense of joint crime, the problem need to research is that more than two people jointly implement the basic crime, by one person or several people s behaviors causing heavier results, the criminal law provides the heavier penalties for the basic crime penalty, so the other co-perpetrators who do not directly cause the aggravated consequences should bear criminal responsibility for more serious results? In this regard, the prevailing view of Chinese criminal law theory is that the common principal offender of the basic crime should be responsible for the aggravated results, because the common criminals are the implementation of basic crime behavior, and the results may be equal. Besides, there is subjective negligence, so it should be responsible for the results of the increase. However, for narrowly committed accomplice, it is not directly involved in the implementation of the act of perpetrating, then whether to set up the results of aggravated accomplice, whether to bear the criminal responsibility of the results? Chinese scholars have different views. This article starts with the intentional injury case in practice, and puts forward the controversial issue. By examining the different views of scholars in Japanese criminal law theory, this paper analyzes various analyses of Chinese scholars, and puts forward their own views based on the provisions of Chinese criminal law. Article 25 of the Criminal Law of the People s Republic of China stipulates that a joint crime refers to an intentional crime committed by two or more persons jointly. A negligent crime committed by two or more persons jointly shall not be punished as a joint crime; however, those who should bear criminal responsibility shall be individually punished according to the crimes they have committed. Therefore, based on the provisions of the Criminal Law, China s common crime theory holds the idea that the establishment of a common crime must be the perpetrators in the joint implementation of a certain crime mean, mutual use, and complement each other’s behavior, so that the behavior of the perpetrators as a whole achieves crime. That is, it must be that more than two people have deliberately subjective common crime, common crime objectively. The so-called common criminal intent , refers to the common criminals through contacts, a common understanding of their criminal acts will entail harmful consequences to society. They participate in the joint crime and hope or indulge the outcome of mental attitude. Negligent crime, for the perpetrators, it is not impossible to form the meaning of contact, and can’t set up a joint crime. Therefore, from the provisions of the current criminal law in China and the traditional theory of criminal law, the joint crime that the aggravated consequential offense with the heavier result in negligence form is not established, whether it is a common prisoner, or an instigator or help offenders. On the above analysis, the establishment of the accomplice of the aggravated offense in the Chinese criminal law should be divided into the following two cases: Firstly, for the intentional aggravated consequential offense, accomplice of the basic crime can increase results to form the joint crime. However, the occurrence of the results of all the actors must have a common intention. If all or two or more part of the perpetrators deliberately cause the occurrence of heavy results, but there is no common meaning, only a single intention, the heavier result is only committed at the same time. Secondly, for the negligent aggravated consequential offense, the accomplice of the crime can’t be aggravated by the results of the establishment of aggravated consequential offense.二人以上共同实施基本的犯罪行为时, 由其中一人或数人的行为引起了较重的结果, 刑法对该较重的结果规定了比基本犯罪的刑罚更重的刑罚, 没有直接引起加重结果的其余共同犯罪人应否对该较重的结果承担刑事责任呢?对此, 中国刑法理论通行的观点认为, 基本罪的共同正犯都应该对加重结果负责。但是, 对于帮助犯、教唆犯能否成立结果加重犯的共犯, 是否对加重结果承担刑事责任, 存在不同观点。 基于刑法的规定, 中国的共同犯罪理论认为成立共同犯罪必须是两人以上主观上有共同犯罪的故意, 客观上有共同犯罪的行为。因此, 重结果为过失形态的结果加重犯的共犯是不成立的, 不论是共同正犯, 还是教唆犯或帮助犯。所以, 法中结果加重犯的共犯之成立与否, 应当分为以下两种情况：对于加重结果的罪过形式为故意的结果加重犯, 基本罪的共犯能够就加重结果成立共同犯罪；对于加重结果的罪过形式为过失的结果加重犯, 基本罪的共犯不能就加重结果成立结果加重犯的共犯。 基本罪的共犯是否应当就加重结果承担刑事责任? 对于重结果可以为故意形态的结果加重犯, 实行行为人故意导致了重结果的发生的, 共犯与之有共同故意的, 应成立结果加重犯之共犯, 就重结果共同承担刑事责任；不具有共同故意, 不能成立结果加重犯的共犯, 但共犯对于实行行为人故意所造成的加重结果应当预见并且能够预见的, 应当承担过失的责任；否则只能由重结果的引起人承担责任。对于实行行为人的行为过失导致了较重的结果时, 虽然不成立结果加重犯的共犯, 但这并不意味着可以认为基本罪的共犯一概不对该加重结果承担责任；对加重结果的发生具有过失的共犯, 应当承担其刑事责任。 结果加重犯由于基本的犯罪行为包含发生一定重结果的高度危险性, 所以共同故意实施基本犯罪的行为人, 对重结果的发生应当具有具体的预见可能性, 因而应当认为有避免重结果发生的特别注意义务。以共同犯罪的意思实施基本罪时, 各共同犯罪人相互利用、补充对方的行为, 这就使得各共犯的行为成为了一个整体。在这种情况下, 各共犯应当预见到这个行为整体有导致重结果发生的可能, 从而负有避免该行为整体造成重结果发生的特别注意义务。因此, 各共犯不仅要负有避免自己的行为发生加重结果的义务, 而且还负有避免他人的行为造成加重结果的义务。当共犯负有这种防止加重结果发生的义务, 但没有加以注意, 以致产生了加重结果时, 就存在导致加重结果发生的过失。因此, 共犯应当对自己的过失行为承担刑事责任。然而, 需要强调的是, 并不能排除在具体案件中, 共犯对加重结果并不一定都能够预见的情况, 如果一律判令其承担加重责任也是不合理的。

From the moment of the open attack by the Russian Federation, the issues of criminal law response to encroachments on the foundations of Ukraine’s national security, which have not been resolved since the beginning of the war in 2014, have reemerged. Among the most urgent was the question of whether provisions of criminal law in force as of February 24, 2022 ensured the possibility of providing a proper assessment of the actions of persons who in various forms assist the aggressor state. The first decision made in order to solve this issue was the introduction of Article 111-1 “Collaborative activity” to the Criminal Code of Ukraine. Due to the belief of the People’s Deputies of Ukraine in the inadequacy of such a legislative step, another criminal law prohibition has appeared – Art. 111-2 “Assistance to the aggressor state”. The purpose of the research is in critical understanding of the debatable aspects of the criminal law novel about aiding the aggressor state, based on the results of which scientifically based recommendations should be developed in order to improve relevant provisions of the current criminal law and practice of its application. It has been proven that, despite the noble intentions of the parliamentarians, the inclusion of Art. 111-2 “Assistance to the aggressor state” has increased both the conflicting nature of the domestic criminal law and the legal uncertainty partially inherent in it, and also forces us to once again talk about excessive criminalization. Among the achievements of the legislative work related to the construction of the criminal law prohibition dedicated to aiding the aggressor state, one can only include the non-use in the current wording of Art. 111-2 of the Criminal Code of unjustifiably abstract phrases “other voluntary interaction with representatives of the aggressor state” and “any cooperation with representatives of the aggressor state”. Based on the example of criminal law assessment of such manifestations of assistance to the aggressor state, such as the transfer of material resources to the armed formations of the aggressor state and the implementation or support of the decisions and / or actions of the aggressor state, armed formations and / or the occupation administration of the aggressor state, the problematic nature of differing analyzed crime from collaborative activity, treason and justification, recognition as legitimate, denial of armed aggression of the Russian Federation against Ukraine, glorification of its participants has been demonstrated. The problem, which has risen as a result of the partially inappropriate duplication of legislative material, is proposed to be solved in one of three ways to optimize the articles of the Criminal Code on liability for treason, collaborative activity and assistance to the aggressor state.

This article addresses the problem of the possibility of exercising implicit powers of the court that are not defined by the criminal procedure law but are provided by the Constitution of Ukraine. Such dilemmas arise in cases when the court comes to the conclusion that a certain provision of the criminal law does not comply with the Constitution of Ukraine. According to the formal approach, the criminal procedure law does not give the court the power to assess the criminal law for compliance with the Constitution of Ukraine.The main hypothesis is that the conflict between a judge’s lack of power to assess the quality of criminal law and the need to ensure respect for human rights should be resolved in the light of the axiological nature of due process, namely human rights. Through this concept, the author argues that in cases where the application of the criminal law will violate the Constitution of Ukraine, the court must reasonably establish such a contradiction with the Basic Law and not apply the relevant provision. This approach requires the formulation of a methodology for the casual assessment of the constitutionality of the provisions of criminal law in order to prevent the arbitrary application of universal values and categories of constitutional law in the course of criminal proceedings.The author considers it possible to propose the following algorithm for assessing the provisions of the Criminal Code of Ukraine for compliance with the principle of legality in criminal law: literal interpretation of the provision (more than one interpretation will indicate uncertainty), analysis of its application (inconsistent practice at the cassation level indicates uncertainty). It is also necessary to assess the complexity of the area covered by the provisions of the Criminal Code of Ukraine, the possibility of eliminating doubts about its application by seeking professional advice from a lawyer. In the case of the formulation of a blanket disposition, it is necessary to additionally study the existence of powers to adopt the norm to which the criminal law refers and its certainty.

The article is devoted to the study of the criminal consequences of the introduction of martial law in Ukraine. Based on a systematic analysis of the provisions of the current criminal law, other laws of Ukraine, and a critical assessment of the achievements of Ukrainian criminal law science, the author identifies and analyzes seven criminal legal consequences.First, attention is drawn to the fact that the Criminal Code of Ukraine establishes criminal-law consequences solely for cases of imposition of martial law and does not determine them for cases of wartime. Secondly, the author has determined the exact time limits for the existence of martial law, certain moments of its introduction and termination. Thirdly, it was concluded that the lawful restriction of human rights or freedoms, committed in accordance with the law on martial law, is a circumstance precluding the criminality of the act. This circumstance is not provided for by the Criminal Code of Ukraine and has its own grounds and characteristics, determined by special laws. Fourthly, the place of such a sign as the commission of a crime “in the conditions of martial law” in the system of signs of corpus delicti is established. In contrast to the judgment expressed in the literature, it has been proved that this feature relates to time, and not to the setting of a crime. Fifth, certain qualifications of continuing and ongoing crimes are partly committed during, and partly not during martial law. It has been established that a continuing crime can be qualified as committed during martial law, when it was started during martial law, and continued as when the last of the acts that constitute it were committed during martial law. Sixth, certain features of exemption from criminal responsibility in connection with the introduction and cancellation of martial law. In particular, the prerequisites and grounds for exemption from criminal liability for transferring to the side of the enemy in martial law conditions (part 2 of article 111 of the Criminal Code) are defined and cases where the termination of martial law may indicate a loss of public danger (article 48 of the Criminal Code) . Seventh, rules are formulated to account for the commission of a crime using martial law conditions as an aggravating circumstance. Cases when courts can and cases when it is forbidden to courts to consider this circumstance as such, aggravating punishment are defined.Based on the study, recommendations on the practice of applying certain provisions of the criminal law during martial law were formulated, and it was concluded that considering such practices would give impetus to the continuation of scientific research in this area. Separately set out proposals for the legislator to improve the provisions of the Criminal Code of Ukraine, should be applied during martial law.

The article examines topical issues of correlation between the victim in criminal law and the gestures of a criminal offense in criminology. This makes it possible not only to identify common and distinctive features of these categories, but also to better understand their legal nature, to determine the prospects for improving legislation in this area of legal regulation, and also to outline the boundaries of victimization prevention of crimes and criminal offenses. The author establishes that the criminological term « gestures « is certainly based on the criminal law term «victim». A victim of a criminal offense is understood primarily as an injured individual who is recognized as such in accordance with the provisions of criminal law or criminal and criminal procedure law. However, some criminologists do not limit themselves to them and identify other persons who have suffered damage not directly but indirectly. A victim of a criminal offense is characterized not only by criminal law features, but also by other features which are not of criminal law significance. The author argues that the main criteria for distinguishing between a victim and an injured person are as follows: 1) these categories belong to different characteristics of criminal offenses (criminological and criminal law); 2) they are characterized by different features; 3) they have different purposes. Despite the fact that the gestures of a criminal offense is usually recognized as an individual, the object of criminological research should also be legal entities that have suffered damage as a result of a crime or criminal offense. Although they are not necessarily called gestures of a criminal offense.

The authors analyze publications in criminal policy, study its understanding by scholars of criminal and criminal procedure law and criminology, and present their own vision of different aspects of the development and implementation of criminal policy in the Russian Federation. They examine criminal policy as a complex pheno­menon which has law enforcement and human rights dimensions aimed at counteracting crime, as a system which includes criminal law, criminal procedure, investigation, penitentiary and criminological policies; the authors present arguments in favor of using such an approach. Criminal policy cannot be designed independently from state legal policy; it should be developed with the participation of civil society institutions and should be approved by it. The main goal of this work is to determine the basics (the principles) of Russian criminal policy, to describe their contents, interconnections and interpenetration. The authors examine and analyze different approaches to specifying the principles of criminal policy. They come to the conclusion that the principles of criminal policy differ from the principles of anti-criminal branches of law, but the latter should determine the basic clauses of criminal and criminal procedure law. It is stressed that a system of principles focusing on a common goal — crime counteraction — can only be discussed within the framework of criminal policy. The authors study the international experience of criminal policy in different countries and determine four fundamental principles of criminal policy in the member states of the Council of Europe. The analysis of modern criminal law and criminal procedure legislation with its numerous changes and amendments, the identified lack of coordination and inconsistency of the actions of lawmakers allow the authors to discuss the necessity of developing a unified criminal law, criminal procedure and penitentiary policy, i.e. criminal policy in a broad sense. They conclude that it is necessary to design a document, officially recognized at the state level, that would stipulate and reflect the basics (the principles), goals and tasks, as well as the priority directions for developing the criminal policy.

The article is devoted to the analysis of prohibitions in criminal law (criminal law prohibitions). Despite the fact that the issue of criminal law prohibitions is becoming increasingly relevant, it still remains poorly researched and controversial. This paper lays down the methodological foundations for the study of prohibitions in criminal law. In particular: 1) the author distinguishes between the concepts of «criminal law», «criminal legislation» and «criminal code»; 2) the author examines national criminal law through the prism of the public law branch of Ukraine (analyses certain aspects of criminal law regulation and criminal law relations; expresses the author’s position regarding the powers of entities representing the State in criminal law relations) 3) the author defines the concept of «criminal law provision», identifies its features, studies its structure, and also identifies the criteria for its classification. Taking into account the conclusions on the above issues, the author analyses prohibitions in the criminal law of Ukraine: the author proposes a definition of this term, identifies its features, makes its classification, and studies the legal consequences of violation of domestic criminal law prohibitions. The scientific work also contains the results of a study of foreign experience. Thus, the criminal legislation of the former USSR republics was subjected to a thorough study. The author notes that there are two models of understanding the concept of «prohibition in criminal law». In writing this article, the author used scientific works of Ukrainian and foreign legal scholars, as well as domestic and foreign regulatory legal acts. For a more detailed understanding of the subject matter of the study, the article is illustrated with three author’s diagrams and one map. The research work is a multidimensional analysis of prohibitions in criminal law, which allows for further development of this topic.

The solution of fundamental problems of criminal-law regulation should be carried out taking into account doctrinal scientific developments and the latest achievements of scientific and technological progress. In this sense, using of a system approach is expanded, which has now received significant instrumental support in the format of information technology and software. A system approach is a methodological direction of scientific knowledge of system objects by means of system engineering, which is implemented in two main areas – in the field of methodology and theory, and in the field of specific applications. The aim of the paper is a comprehensive description of using of system approach in domestic criminal law. The task is to outline the prospects of applying a system approach in domestic criminal law, taking into account the latest technologies of systems engineering. Criminal law in its essence can be understood as a system of information (knowledge) that outlines the criminal offenses’ types and criminal law measures of state reaction to them. As a systemic object, this phenomenon is characterized by several circumstances. System components of criminal law. First of all, the authors are talking about the systemic nature of a crime, according to which the system of criminal law regulation is oriented. The systems are also criminal law provisions. Their structural elements-subsystems are hypothesis, disposition and sanction The system of criminal law has its own structure. The initial elements of its structure are criminal law. This also includes atypical regulations: criminal law constructions, legal presumptions and fictions. According to the degree of generalization, legal norms and atypical normative prescriptions are united into legal institutions. The systemic structure of the studied system object is manifested in the multiplicity of relations between them. System connections of criminal law. In the system of criminal law, informational connections are realized. Functioning of criminal law system in the system environment. Through the mechanisms of rule-making, information from protected social relations is introduced into it from the outside, and through the mechanisms of law enforcement, it affects its environment. According to the system approach, a model of the crime system and the system of the Criminal Code of Ukraine is proposed, developed on the basis of IDEF0 notation

The author explores the protection of the patient’s autonomy in Latvia based mainly on the provisions of criminal law and other regulations (administrative and civil), including in the context of the COVID-19 pandemic. The patient’s autonomy in Latvia is protected by the norms of administrative, civil and criminal law. Liability for violation of the patient’s autonomy is implicitly stipulated in certain provisions of the criminal law, depending on the nature and consequences of the violation. The criminal law contains no separate provision on liability for breach of a patient’s autonomy.

The article is devoted to defining the concept and essence of the principles of criminal executive law. The article analyzes the general theoretical concepts for defining the term “principles of law”. The author’s positions of the compilers of explanatory, etymological and other dictionaries on the definition of the principles of law are considered. The positions of domestic scholars in the field of criminal executive law on this issue are studied. It is noted that most definitions of the principles of criminal executive law are based solely on one aspect of criminal executive reality, which is the activity of execution of punishments. Based on this area of criminal executive activity, an idea of the current, basic provisions of the current criminal procedure law has been formed. The article emphasizes the mandatory consideration of such a direction as serving a sentence when determining the key, fundamental provisions of criminal executive law, taking into account the category of principles. This direction actually embodies the subjective composition, which according to the specifics of criminal-executive relations belongs to the sphere of serving sentences. First of all, this direction is related to the person of the convict, as well as other persons involved in this process. This category of persons also includes representatives of local authorities, self-government, public and religious organizations, etc. The article focuses on and expresses the author’s position on the definition of the principles of criminal executive law and mandatory consideration of key elements that fully reflect their essence. Such elements include the perception of principles as: 1) fundamental, conceptual ideas of the relevant branch of law; 2) criteria of subjective, human perception of events, phenomena within certain legal relations; 3) key elements of the structure and functioning of legal mechanisms. Given this, the principles of criminal executive law have the following meanings: a) doctrinal; b) perceptual; c) regulatory. The proposed elements fully reflect the substantive component of the principles of criminal executive law.

The article examines the effectiveness of existing criminal legal instruments of educational influence on minors. On the basis of the analysis of strategic planning documents affecting children, changes in criminal and other federal legislation on the basis of the system for the prevention of juvenile neglect and delinquency, it is concluded that the task of bringing the legislation in question in line with international standards has not yet been solved. Criminal legislation in this area is not impeccable and needs to be finalized. Judicial statistics show a low demand for warning as an educational measure. At the same time, criminal legislation does not regulate a specific form of warning and does not answer the question of what negative consequences for a minor may occur if they have not made appropriate conclusions from the declared warning, but have not yet committed a new crime. In addition, the question of the element of coercion in the structure of this measure is raised, and the difficulties of its application are indicated, taking into account the existence in criminal law of rules on the insignificance of the act. It is proposed to remove warning from the list of compulsory measures of educational influence. Based on the analysis of the practice of implementing the obligation to make amends for the harm caused, it is concluded that the coercive element in the structure of this measure is conditional in cases when compensation is paid not by minors themselves, but by their parents. In this part, the measure in question seems ineffective. When considering the provisions governing the transfer of a minor to the surveillance of parents or other persons replacing them, attention is drawn to the absence of the types and limits of surveillance and control clearly defined in the law. In addition, it is concluded that there is a conflict that arises between the rules of criminal procedure law, which provides for negative consequences from failure to comply with the measure imposed on minors, and the provisions of criminal law, according to which the duties are imposed not on the minor, but on third parties. In the light of judicial statistics showing that it is extremely rare for minors to be sentenced to imprisonment for crimes of moderate gravity, the relevance of the provisions of the criminal law providing for the possibility of placing minors who have committed crimes in this category in a special educational facility of a closed type is questioned.

The system of strong rules of imposing penalties is the main characteristic of the field of criminal law in modern democratic states. Incorrect implication of the criminal law provisions will directly affect human rights and freedoms. The issues of criminal law correspondence with the human rights concept and the rules of interpreting criminal law provisions are still actual even for the states with sustainable democratic development. All these problems are covered by legality in the rule of law concept. Historical method is quite useful in legal research, especially in untangling legal problems, which have roots in the past. Raising and development of legality through centuries will help us to fully interpret values, which are the grounds of this principle. In the XXI century B.C., the law on criminal liability contented one beautiful rule – “if you act illegally – we can kill you”. Fortunately, criminal law provisions are changing through time. Arbitrariness of the sovereign, vague in the implication of penalty, uncertainty in the criminal law provisions – all these problems were the main engines for the liberal revolutions in the XVII century. As a result, modern nations have similar meaning of the legality in criminal law, as in the French Declaration of the Rights of Man and of the Citizen of 1789 or the Constitution of the United States of 1787. Legality in criminal law consists of such main values as freedom and individual autonomy, democracy, separation of power as well as the rule of law. The works of philosophers in the Enlightenment era (such as Montesquieu, Hobbs, Feuerbach, Beccaria) have had a huge impact on the development of these values and can help us to find modern interpretation of the meaning of legality. This paper provides us with the reasoning, why the above values are important for understanding legality as the principle of criminal law. Legality not only brings us protection from the unlawful legal provisions. There are examples in history, when the law allowed to commit atrocities. The decisions of International Military Tribunal at Nuremberg show us the way to resolving this dilemma and import us the general principles of law recognised by civilised nations as a ground for criminal liability. Our results illustrate that the legality in criminal law is the scope of provisions, which establish special requirements to the lawmaking process (including the elements of substantive and procedural democracy), the process of interpreting the criminal law provisions as well as the process of applying the law in every individual case.

Setting the framework for the protection of the environment through criminal law at the EC level ultimately leads to the adoption of Directive 2008/99/EC of 19 November 2008 on the protection of the environment through criminal law. The Directive establishes a minimum set of conducts that should be considered criminal offences throughout the EU when unlawful and committed intentionally (or with at least serious negligence). Inciting, aiding and abetting of such conducts will equally be considered a criminal offence. Directive 2008/99/EC must be implemented by Member States by 26 December 2010. Its adoption has been a debated and lengthy process. These debates occurred at the EU level (institutional conflict) and member state level, and were reflected into the legal scholars work. These debates concerned not as much the specific content of the Directive, but the institutional framework and in particular the use made of criminal law provisions in a first pillar legal instrument, as opposed to the normal use for these purposes of instruments provided for in the third pillar of the EU (police and judicial cooperation on criminal matters). The Directive, therefore, seemingly deviates from the general rule that “neither criminal law nor the rules of criminal procedure fall within the Community’s competence”. The Directive follows a Court of Justice’s decision of 13 September 2005 (Case C176/03) to annul an EU Framework Decision on the protection of the environment on the grounds that it had been adopted on an erroneous legal basis. In its decision the Court upheld the Commission's submission, holding that the Commission may take measures in relation to the Member States' criminal law where the application of criminal penalties is an essential measure for combating serious environmental offences. Hence, a Directive, a first pillar instrument, including criminal law provisions could be adopted. This article discusses the Directive’s institutional background and looks at the criminal law provisions in the Directive. It ends with a critical note on the presumed impact of the Directive.

Legal politics examines changes within present law due to consistent demands and needs of people. Legal politics continue to develop the rule of law, from the Ius Constitutum, which is based on the previous legal framework, to the formulation of the law in the future, the Ius Constituendum. The Indonesian 2019 draft of Criminal Code formulates customary sanctions as the fulfillment of customary obligations in several articles. These articles provide a new paradigm of criminal law policy to formulate criminal law reform in the future for customary sanctions in cases of customary crimes. The study used normative juridical or library research on normative legal substances. It aims to reveal the truth based on scientific logic from the normative side by examining library materials or secondary data consisting of primary and secondary legal materials. The results show that the fulfillment of customary obligations can be expected to become criteria or signs/guidelines for judges to determine “law that lives in society” or “The Living Law” as a source of law (material legality) in the future. It is a form of new paradigm in the renewal of customary criminal law. Thus, customary (criminal) law can become (1) a positive source of law, in the sense that customary criminal law (sanctions) can be the legal basis to examine cases at the Court; and (2) negative sources of law, in the sense that the provisions of customary criminal law (sanctions) can be justified reasons, reasons for mitigating punishment or providing more severe punishment.