Legislation Introducing Crimes with Imprisonment Sanction in 2005–2015 Poland – Legislative Inflation and its Impact on Sentencing

За ко но да те ль на я и нф л я ц и я : тео р ети ко - п р а во во е и с сл едо ва ни е 159 LEGISLATIVE INFLATION: A THEORETICAL LEGAL STUDY I. P. Kozhokar Institute of State and Law of the Russian Academy of Sciences E-mail: 89272234877@mail.ru Rece iv e d 1 3 A pr 2 0 2 1 Introduction: the issue of ensuring the effectiveness of legal regulations has always been a focus of academic attention. One of the criteria of effectiveness is the stability of legal norms. The phenomenon reflecting the opposite state of legislative array – instability of legal norms – has received the special name of ‘legislative inflation.’ The article aims to study the bases of the theoretical model of legislative inflation on the example of Russian legislation. This is done through clarification of the doctrinal understanding of legislative inflation, its quantitative and qualitative characteristics, determinants that contribute to an increase in its rate, negative con- sequences, deterrent tools. Methods: the ontological basis of the study is the theory of law with its means of formal normativism making it possible to identify the defective phenomena indica- tive of legislative inflation. The methods used include general scientific methods (analysis and synthesis, induction and deduction, comparison and classification, abstraction and the axiomat- ic method); special scientific method (mathematical and statistical); special legal methods (le- gal-dogmatic, historical-legal, the method of legal norms interpretation). Results: the study ex- amines quantitative and qualitative indicators characterizing legislative inflation at the current stage of the Russian legislation’s development of (data for 2019-2021); investigates doctrinal ap- proaches to defining ‘legislative inflation’ in Russian and foreign scientific space; provides con- siderations regarding the determinants of legislative inflation; shows the negative effect of legisla- tive inflation; identifies the tools of curbing legislative inflation, including those permanently as- sociated with the legislative process. Conclusions: to counter legislative inflation, it is necessary to optimize lawmaking process, including in terms of providing it with a unified concept

The paper substantiates the relevance of the problem of legislative inflation in Russia. The author focuses on the negative consequences of the phenomenon in question: decrease in legal certainty, increase in the number of legislative errors, growth of legal nihilism. The paper provides for the assessment of ways that can be applied to overcome legislative inflation and that can be expressed in the form of systematization of legislation, and the establishment of artificial restrictions imposed on the law-making process. The author concludes that it is necessary to develop legal diagnostics instruments for the effective control of inflationary processes in the Russian legislation. An example of such instruments includes regulatory impact assessment and legal monitoring.

What Is Driving the Legal Interest in Hepatic Encephalopathy?

In order to promote democratic consolidation, countries undergoing the transition from repressive regimes often attempt to address past injustices and launch deep institutional reforms.1 These meas...

The implementation of Penal Code no. 40/2009 Coll., which was adopted in 2009,is undoubtedly one of the most significant events in the field of Czech criminal lawin recent years. Among many other changes, it also modified the regulation of drugoffences. Czech drug legislation is greatly influenced by the obligations arising fromthe UN drug control treaties. The previous Penal Code No. 140/1961 Coll. originallyincluded three drug offences penalizing unauthorized handling with narcotic drugsand psychotropic substances (NDPS) and poisons and drug use promotion.After the fall of the Iron Curtain the drug issue has become a hot political topic.An apple of discord between the proponents of more repression on the one hand andthe pragmatics supporting a risk reduction model of the drug policy on the other hassince then become mainly a question of decriminalization of possession (of a smallamount) of drug for personal use. In July 1990 the possession of NDPS for personaluse was decriminalized. Several attempts were made to reinstate this criminal liability.Finally, on 1 January 1999, an amendment to the penal code introduced the newcriminal offence of unauthorised possession of NDPS and poisons for personal use. Thethree-year study, “An Impact Analysis Project of the New Drug Legislation in the CzechRepublic (PAD)” was to evaluate the practical impacts of this new drug legislation.Based on the study’s findings, the government required the revision of drug offencedefinitions and the related sanctions for the purpose of penal re-codification. Amongother things the government required the preparation of the legislative division of illegaldrugs into two or three categories according to their medical and social dangerousness.After the long preparations, the new Penal Code No. 40/2009 Coll. finally came intoeffect on 1 January 2010. It includes five drug offences (Sections 283-287). By the newlegislation, lawmakers declared the intention of toughening the penalties for offencesrelated to the drug supply on the one hand, while on the other intended to mitigatethe repression against drug users, as most of the changes related to the latter groupof offenders. Division of drugs into “soft” and “hard” was established. Based on thisclassification, punishments have been stipulated for unlawful possession of a drug forpersonal use in a quantity that is greater than small that differ for cannabis on the onehand and for other NDPS on the other. Unauthorised Cultivation of Plants containingNDPS is an entirely new offence. The purpose of this privileged offence was to mitigatethe punishments for users who are self-suppliers and differentiate between the supplyfor personal use and that for “commercial” cultivation.The severity of sentencing differs between the cultivation of cannabis and thecultivation of other plants containing NDPS. Already the previous legislation usedthe term “amount greater than small” to establish a threshold of criminal liability inregard to possession of drugs for personal use. However, no specific values were set for particular types of NDPS. In practice, this caused problems because of inconsistentinterpretations of legislation by law enforcement authorities. The new legislation wassupposed to harmonise the practice by authorising the government to establish theamounts of NDPS that are considered to be greater than small. These values were set inGovernment Decree No. 467/2009 Coll. The legislator also authorised the governmentto issue a decree stating which plants and mushrooms should be regarded as containingNDPS and specifying an amount which is greater than small. This issue is regulated byGovernment Decree No. 455/2009 Coll.The Institute for Criminology and Social Prevention (IKSP)’s research entitled“Detection and Prosecution of Drug Crime after Adoption of the New Penal Code” wasdesigned to evaluate the impact of the new legislation in practice. The research projectused various methods, including statistical analysis and expert questionnaire surveys.Regards the trends in the number of persons convicted of drug offences targeted atdrug users, involving Possession of Drugs for Personal Use according to the old andnew penal codes and Cultivation of Plants Containing NDPS, based on the statisticaldata of the Ministry of Justice, the number has been rising constantly since 2010, andby 2014 it almost tripled compared to 2008. Most offenders are convicted in connectionwith cannabis. The number of convicted cannabis users can be even higher dependingon when the offender was caught in the act. Even though mitigation of the punishmentwas declared by the legislator, according to the opinion issued by the CriminalDivision of the Supreme Court on 4 December 2014, cannabis users should receivemore lenient penalties only if they are “caught” before or after drying the cultivatedplants. Meanwhile after harvesting the cannabis and during the process of drying it,the offender is “manufacturing marihuana” for personal use and commits an offenceof unauthorised manufacture and other handling of NDPS targeted to drug trafficking.Nevertheless, the conviction does not mean that an offender will automatically end upin prison.For drug users, contact with the criminal justice system can create conditionsand an opportunity for treatment and resocialization measures. It seems, however,that this is not the case in the Czech Republic. Alternative penalties and treatmentmeasures are still imposed very rarely. Most commonly, the imprisonment sanction isconditionally suspended, while no special care is given to the offenders. In June 2013,the authorisation and a relevant part of Decree No. 467/2009 Coll. were revoked bya ruling of the Constitutional Court. The ensuing discussion of how the term “amountgreater than small” should be specified for the purposes of the penal code concentratedon the issue of the opinion of the Criminal Division of the Supreme Court. The SupremeCourt lowered the threshold for two drugs – methamphetamine and herbal cannabisform, while threshold quantities for other drugs remained the same as in the annulleddecree. Despite this change the new threshold quantities, in particular for cannabis,formally effect the mitigation of criminal repression and thus give also no explanationfor the rise in the number of convicted offenders. Another possible explanation isthat the rise in the number of convicted persons can be influenced by increases indrug use in the population. Nevertheless, according to the latest annual report of the National Monitoring Centre for Drugs and Addiction, drug use in the Czech Republichas recorded stable levels. Long-term trends suggest a decline in the level of currentcannabis use among the general population, particularly as far as younger age groupsare concerned. The legislative change in 2010 did not also affect the age of the onsetof cannabis use. The attitudes of the population to substance use have also remainedconsistent over the long term.Substantive laws and the wording of the penal code are not the only factors thatinfluence whether or not the offender will be convicted. It appears that proceduralinstitutes and the approach of law enforcement agencies that decide individual casesare of greater significance in this respect. This assumption is also confirmed by theresults of the expert opinion survey that was carried out as a part of the IKSP researchamong police officers, public prosecutors and judges. On the one hand, respondentsconsidered the new legislation to be more detailed and more precise. On the otherhand, they think that in some respect the mitigation of the legislation was not necessary. Respondents quite frequently called for an increase in penalties and the imposition ofheavier punishments. The prosecutors and judges considered it to be more importantto change the liberal attitude of society towards the problem of drugs.The transition to a formal concept of crime can also create an environment fora more repressive approach. Although the new penal code did not bring any essentialchanges to the focus or intensity of legal repression in the area of drug policy, somewhatmore lenient punishments for cannabis users can be considered a step forward toevidence based legislation. However, despite the declared legislative intention to mitigatecriminal repression against drug users, according to statistics the number of convictedusers–offenders is increasing. The results of IKSP research suggest that the attitudesof law enforcement representatives who are empowered to decide individual casesare of considerable importance. Respondents show repressive and punitive approachtoward drug use. A partial explanation of these punitive attitudes of respondents maybe due to the perceived liberal climate regarding drugs and their users in Czech society.Several mechanisms are applied in practice by law enforcement authorities to balancethis perceived inequity. All these could lead to a rising number of convicted persons,while no special emphasis is put on their treatment. It is therefore essential to put anemphasis on the dialogue between lawmakers and the law enforcement authoritiesabout adopting new legislations. If there is no consensus reached, then even very wellconstructed provisions on drug offences can have an adverse impact in practice.

This article proposes an innovative approach to analysing legal and policy reforms in the regulation of sex work. Using the development of the Israeli 2019 Prohibition on the Consumption of Prostitution Act (hereinafter: End Demand Law) as a case study, we develop a socio-legal analytical framework which combines three elements: 1) the relationship between the “law on the books” and the “law in action” in the context of sex work policy – what are the distributive outcomes of the act? How is it implemented, who gets impacted by it, to which degree and why? 2) the importance of existing legal and policy baselines to evaluate new policy approaches. We argue that the baseline is key not only to understanding policy trajectories, but also to evaluating differences in perception of ‘End Demand’ legislation in different jurisdictions; 3) the lived experience of those affected by the policy. In our case study, sex workers are the population most directly impacted - we include their voices through interviews as well as secondary sources and focus on their perception of the law and its impact on their lives, options, livelihoods, and feminism.
 Combining these three elements, our analytical framework is used to evaluate the dynamics of change in the regulation of sex work in the context of the Israeli End Demand Law - how it came about, which baselines it emerged from and which international influences affected it, but also how Israeli anti-prostitution governance feminists influenced the legislative and policymaking process. We pay equal attention to sex workers’ voices not only as the most affected population, but also as political actors, activists and aspiring governance feminists in the Israeli context, who were marginalised in the legislative process.

Current challenges for the protection of women’s rights in Poland – selected issues

Education is important for the lives of people in a country. In order to create an educational system that is organized and has a vision, a policy in the form of a curriculum is needed. In a country that adheres to a democratic system, it is necessary to involve or participate the community in the policy formulation and implementation process. This policy paper investigates the Merdeka Curriculum policy model created and implemented by the Ministry of Education and Culture. Public policy models include top-down, bottom-up and a combination of the two. The research method used in this article is qualitative with data sources obtained from books, scientific articles, and other credible information found on the internet. In the policy formulation process, studies were conducted and the government involved parents. In addition, in the implementation process, the Merdeka Curriculum is carried out in stages with a trial period carried out by several schools called Mover Schools. In addition, the policy also has an evaluation instrument in the form of a Minimum Competency Assessment. Based on the findings related to this policy, it can be concluded that the policy model in the Merdeka Curriculum is bottom-up.

This paper makes a brief description and analysis of policy formulation and planning process adopted by the local government of Nepal. The main objective of the paper is to study the exercise of policy making and planning of Annapurna Rural Municipality in Kaski District of Gandaki Province, Nepal. The study is based on telephone interviews and person-to-person interviews with elected representatives of the rural municipality and secondary sources of data. Annapurna Rural Municipality has so far formulated more than 23 policies (acts, rules and regulations) for addressing the interest of its citizens. Of these policies, four are acts, two regulations, nine procedural laws and eight codes of conduct. Moreover, official policy makers have a prominent role in public policy making while the unofficial policymakers have little influence on the public policy making. There is no provision of direct participation of people in the policy formulation process. Also, the local government has not developed a practice of taking assistance from hired experts while formulating public policies that demand technical expertise and knowledge. It is observed that the planning process followed by the rural municipality consists of seven steps: tole level assembly, ward level meeting, assembly of Ward, decisions forwarded to office of rural municipality, recommendation by the executive committee, approval by assembly of rural municipality and implementation by executive bodies like the office of rural municipality, ward office, etc. The results indicated that the rural municipality has, to some extent, guaranteed the participation of its citizens in the planning and implementation activities. However, despite the bottom-up approach of planning being practiced, all people, irrespective of their political orientation, do not have equal opportunity to make their voice being heard to the planning process. However, it lacks inclusiveness.

In post-apartheid South Africa, the traditional understandings of museums and heritage have been challenged in terms of how meaning making, heritage construction, and knowledge production were conducted in the colonial past. In a series of processes of transformation, new approaches to museum action and heritage management have begun to take shape and develop in South Africa. Central to all of this have been the processes of policy formulation and new legislation that have provided the impetus for change. The aim of this article is to briefly chart some of these processes and the subsequent legislation that have begun to affect the ways in which South African heritage and museums are being reconfigured in a postcolonial and post-apartheid era. This policy formulation and the new legislation have focused on extending what is considered to be heritage by including intangible cultural heritage. It has also looked at empowering local communities, with an emphasis on sustainable development.

Polityka karna w Polsce od lat uchodzi za niezwykle punitywną, o czym świadczą wysokie wartości, jakie przyjmują współczynniki prizonizacji, poczynając od okresu przed II wojną światową. Rodzi to uzasadnione pytanie o przyczyny takiego stanu rzeczy: czy leżą one po stronie punitywnego ustawodawstwa, tj. prawa zapisanego, czy też po stronie praktyki orzekania kar przez sądy, tj. prawa w działaniu. Artykuł poświęcony jest analizie w świetle dostępnych danych statystycznych wybranych zjawisk w polskiej polityce karnej, pokazujących, że w szeregu wypadków reformy zmierzające do obniżenia poziomu punitywności polskiej polityki karnej dawały rezultaty odwrotne od zamierzonych. Równocześnie wskazać można okresy jednoznacznego obniżenia tej punitywności, które nie były warunkowane jakimikolwiek zmianami ustawodawczymi. Pokazuje to względną niezależność płaszczyzn prawa zapisanego i prawa w działaniu.

This article addresses the Egyptian competition regime’s adoption of type II errors (under enforcement) in hardcore cartel cases. This article provides an analysis of the Egyptian Cement Cartel Case, and draws general conclusions drawn from it. This article explores the extent to which the fine imposed in the aforementioned case (the maximum fine at the time) was sufficient enough to recoup the cartel’s overcharges and to create the necessary deterrence effect for future anticompetitive practices in general and from creating cartels in particular. This article further explores an alternative approach to addressing concerns about the adequacy of a fine sentence in light of the applicability of an imprisonment sanction impeded within the Egyptian Penal Code. Moreover, this article examines the limits of this alternative approach, and how it could be practically enforced by Egyptian courts. Interviews with senior judicial figures in the Egyptian legal system were conducted to explore the applicability and limitations of the imprisonment approach. The assessment is not limited to qualitative data, however, but also encompasses quantitative data to further support the findings. As a result, it was found that imprisonment sanctions would eventually result in better enforcement policies. That is to say that fines were found not to be the optimal sanctioning mechanism since they are either extremely low or impossibly high.

Background: Tobacco use is a leading contributor to fatalities and long-term health conditions. In addition to significant health risks, its use has diverse economic, political, and social implications. Objectives: Therefore, the present study aimed to identify the challenges in establishing policies and legislation related to tobacco control and propose effective strategies for managing these issues. Methods: This qualitative study employed content analysis and was conducted in 2023. A semi-structured interview, guided by an interview protocol, was conducted with 21 policymakers and legislators involved in tobacco control in Iran. A purposive sampling strategy was used to identify participants with varied knowledge and direct engagement in tobacco policy development and control. The data were analyzed using Graneheim and Lundman’s method and MAXQDA software version 2020. Results: The findings of the study revealed three key challenges in the development of tobacco control policies and legislation in Iran: Policy-making, changing consumption patterns, and enforcing laws and regulations. Additionally, 43 subthemes were identified. Two primary themes emerged: Policy development and enforcement of laws and regulations, along with 16 subthemes that serve as strategies for addressing the challenges in policy formation and legislative processes. Conclusions: The challenges related to tobacco control in Iran encompass legislative, economic, and societal factors. Addressing these challenges requires a holistic, evidence-based, and coordinated approach, including legislative changes, law enforcement, public health initiatives, and cross-sector collaboration to achieve sustainable change.

PurposeThis paper presents an actor-based conceptualization of the increasing oscillatory pattern of prison overcrowding in Colombia. The research proposes a dynamic hypothesis that explains that unintended behavioural pattern as a result of delayed balance feedback loops shaped by decision-making processes of actors that intend to control crime. This system matches a well-known systemic archetype that explains those persistent oscillations. The paper also introduces a simulation model for testing that dynamic hypothesis and for delivering concrete courses of action. This work illustrates the relevance for policymakers to understand the dynamic complexity of social systems as the outcome of the agency of actors who take action to defend their own interests. Such actions ultimately form a complex web of interactions that drive the performance of such systems with unintended consequences. In particular, the construction of explicit models provides better chances of devising policies that consider the system-level implications of those interactions.Design/methodology/approachThis work uses system dynamics modelling. First, the paper presents a conceptual model anchored in operational thinking, which refers to the identification of actors and decisions, and the manner in which those decisions ultimately build the respective social system in which the oscillatory pattern emerges. Second, it identifies key feedback structures that result from those chains of decisions. Finally, the paper introduces a simulation model for suggesting policy implications for decisionmakers.FindingsThe increasing oscillatory pattern that prison overcrowding in Colombia has displayed over the last 20 years is the outcome of a wide variety of laws that increase sanctions on criminal conducts, a phenomenon known as “legislative inflation”. Such reactions against crime are propelled and sustained by society and policymakers as the result of static and linear thinking that simply delivers “more punishment” of crime – harsher legislation and longer prison terms – which ultimately boosts long-term prison overcrowding and further cycles of crime control and overcrowding. Such actions create permanent negative feedback loops that involve various material and information delays, which – coupled with the reinforcing feedback loops – explain the previously mentioned behavioural pattern. Through a system dynamics simulation model, this paper tests and explains the proposed dynamic hypothesis and shows how policymakers can enhance and develop their dynamic understanding to explore and design effective policies intended to tackle prison overcrowding.Practical implicationsThis paper presents a practical and concrete case that bridges the fields of criminal policy and prison management through systems thinking. It uses the case of prison overcrowding in Colombia to demonstrate the relevance of incorporating systemic thinking into the cognitive portfolio of policymakers if they aspire to improve complex systems.Originality/valueCriminal policy and prison management are different fields that typically belong to different traditions (law and criminal psychology for the former, public administration for the latter). The work presented here bridges those perspectives under a single engineering and systemic perspective that answers questions in both fields and serves as a unifying framework for designing more coherent criminal policies that meet the practical requirements and restrictions that prison management implies.

Legislatures in parliamentary systems are frequently seen as weak policy actors, and this is nowhere more true than of the British Westminster parliament. But real-world changes, and recent research, suggest that Westminster’s influence is significant and growing. This raises new questions about which non-government actors are influential, and we explore this through analysing 4,361 amendments proposed to 12 government bills. Assessing non-government amendment ‘success’ presents challenges, however, since many such proposals are clearly not sincere attempts at legislative change. We thus make two substantive contributions. First, we quantitatively assess the influence of different groups at Westminster, showing both non-government influence and cross-party working to be more extensive than traditionally assumed. Second, we link predictions about opposition and backbench parliamentarians’ motivations to the legislative amendment process, proposing a typology of motivations for such amendments, with wider application. Overall, we argue that understanding non-government parliamentarians’ diverse motivations shows that they ‘fail’ far less often than commonly assumed.