Strafrecht en Verlichting

Croatia is relatively small country with population of approx. 4 million inhabitants. It is a European country, and is part of the Central and Eastern Europe. The area of the state is 56, 594 km2 by land, and 31,479 km2 by sea (interior waters and territorial sea), in total 88,073 km2 which makes Croatia one of the medium-sized European countries. It was a part of Yugoslavia till 1991. After its inde- pendence, Croatia shifted from socialist regime to democracy, and the law reform followed. Croatia has enacted new Constitution in compliance with all international standards, abolishing the death penalty. In the beginning of its independence, it has taken existing legislature of Yugoslavia, but later it has been working on its own legislature and reform of the judiciary and (criminal) law system. So, in past few decades it has gone through a significant law reform, among other law areas criminal law was also significantly affected and influenced by the state law reform. Many new laws were enacted regulating area of criminal law, as well as the laws regulating some issues relevant for criminal law (both substantive or procedural, and penitentiary as well). The main laws in field of criminal law (in broader sense) are Penal code (subsequently: PC) for Substantive criminal law, Criminal Procedure Act (subsequently: CPA) for Criminal procedural law and Penitentiary Act (subsequently: PA) for Penitentiary law. In this paper (report) will be presented some key information about Croatia, Croatia’s judiciary system and criminal law system and reform.

The ideas presented here are based on the way in which scientific research in the field of law (criminal law in particular) evolves. The anticipation of natural questions is followed by recommendations that are not intended to be decisive in the choice of topic and the orientation of the research, but rather to support the integrity and coherence of the approach. Even if the subject is oriented towards clarifying the structure of a doctoral thesis, the recommendations are applicable to any type of research in the field of legal sciences, an article or a study. The doctoral thesis must bring an element of novelty to the research of the field studied, to clarify an ambiguity that may arise from the interpretation of the law, from the application of the law, from the evaluation of the efficiency or constitutionality of an existing regulation or from the evaluation of the need for a new regulation. The originality of a thesis must concern both its basic idea (what the paper seeks to demonstrate) and the content (what are the conclusions reached regarding the purpose pursued within the analysis of the institution/notion of criminal law studied). The purpose of the paper, the research objective will be correlated with the questions that the thesis seeks to answer and the hypotheses that are to be verified. Each part of the thesis will aim to analyze, from the perspective of criminal law, criminal procedural law and, subsidiary, criminology, the regulation of the most important components of the institution/notion of criminal law studied and their effects on social relations: for example, to examine the relationship between certain legal relations of criminal law, to evaluate the effectiveness of an institution/norm in relation to the purpose pursued by the legislator, to investigate the elements of conventionality or constitutionality of a norm, to analyze the changes in the conditions of existence of an institution/norm studied etc. Neither the validity of choosing the hypothesis verified by the work nor the scientific character of the work depend on the positive or negative conclusion reached as a result of the study. However, the paper should not stop at solutions that could not be anticipated as being applicable in national law, either for reasons related to the incompatibility with the criminal system as a whole, or because they would impose logistical and personnel costs that are not compatible with what we imagine could be invested in justice/the criminal law system.

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

Martha Nussbaum’s Anger and Forgiveness – On retribution and forgiveness and on anger and love In this article the author discusses the book Anger and Forgiveness written by the well-known and influential American philosopher Martha Nussbaum. In the opinion of the author Anger and Forgiveness is a provocative and challenging book. In the book, Nussbaum makes a distinction between conditional and unconditional forgiveness, she relates conditional forgiveness to the logic of retribution and she disapproves retribution and, by extension, conditional forgiveness on moral grounds. Her disapproval of retribution and conditional forgiveness is related to her disapproval of (vindictive) anger, which in her opinion is intrinsic part of retribution and conditional forgiveness. According to Nussbaum, anger – transitional anger excluded – has to be replaced by unconditional love; only conduct that stems from unconditional love can be qualified as moral. Sometimes unconditional forgiveness can be seen as a form of unconditional love. Subsequently, Nussbaum applies her ideas on anger, retribution, forgiveness and love to the political domain, to which also criminal law belongs. Nussbaum pleads for a criminal law system empty of anger and retribution; in Nussbaum’s criminal law system there is only room for prevention, grace and human welfare – all stemming of unconditional love. Nussbaum’s Anger and Forgiveness offers an alternative view on concepts such as anger, retribution, forgiveness and love, concepts which are important within the context of criminal law and restorative justice. The author argues that, although the reader can certainly learn from Nussbaum’s ideas as explained in Anger and Forgiveness, the radicality of her ideas inevitably causes criticism; Nussbaum holds a very idealistic perspective that neglects the human condition. Instead of ruling out anger and retribution, the author advocates a criminal law system that is capable of canalizing anger and transforming vindictive anger into transitional anger. Furthermore, he pleads for a criminal law system that makes forgiveness possible without forcing victims to forgive. For that reason restorative justice practices need to be incorporated into the criminal law system. In sum, to a certain extent Nussbaum and Claessen share the same moral ideals, but they disagree on the path leading tot those ideals. Where Nussbaum opts for a top-down approach, Claessen opts for a bottom-up approach which respects the human condition.

This research discusses the comparison of the criminal law system and the characteristics of the legal family in Indonesia after the enactment of the new kuhp. This research uses a normative juridical approach method, namely by examining / analyzing secondary data in the form of legal materials, especially primary legal materials and secondary legal materials. The specification in this research is analytical descriptive research. In studying comparative law there are two benefits, namely Theoretical Benefits Can support the development of legal science in general and criminal law in particular, covering two things, namely, closely related to research in the field of legal philosophy and legal history; closely related to the understanding and development of national law. And Practical benefits Provide positive input for the development and formation of law in general and criminal law in particular. The results of the research show that the criminal law system in Indonesia until now (before the enactment of the New Criminal Code) belongs to the Romano-Germanic Family of law. This can be seen from the identical characteristics between the characteristics possessed by the criminal law system in Indonesia and the characteristics of the Romano-Germanic Legal Family. After the enactment of the New Criminal Code, there is a shift in the legal family, which was originally the Romano-Germanic legal family or civil law has shifted/changed to a mixed legal family or legal mix system or civil law and religious law.

Introduction: in modern social and legal realities, the question of the need for a systematic understanding of law in general, and criminal law in particular, is acute. The judicial practice shows that law enforcement officers often have difficulties in interpreting and implementing legal norms. In this connection, the author of the paper sets the purpose of the study: to consider criminal law as a system-based construct. Methods: the methodological framework for the research is a set of methods of scientific cognition, among which the main ones are the systematic approach, the method of deduction, induction, abstraction, analysis and comparative law. Results: the author’s position justified in the work is based on the legislation and the opinions of the competent scientific community on the question of whether the totality of sources of criminal law has a sign of consistency. Using the legal analysis of the provisions of the theory of law, the question is raised about the possibility of including in the criminal legal system such elements as the legislation on issues related to criminal law, doctrinal opinions of scientists, rules for the qualification of crimes, criminal law principles, judicial practice and others. A semantic distinction is made between the concepts of the criminal legal system and the system of criminal law. The author’s definition of the category of a system-forming feature of criminal law, as well as the concept of a criminal legal system, is given. The conclusion about the non-identity of these concepts is substantiated. Conclusions: as a result of the study, it is established that criminal law has signs of consistency. Criminal law as a branch of law contains various elements, including those related to unwritten law. Among them, it is possible to distinguish socio-philosophical categories, such as religious norms, norms of morality and decency, as well as the rules formulated in the criminal-legal sphere by theoretical scientists and law enforcement officers. In particular, they include the rules for the qualification of crimes, the general principles of criminal law, the doctrine of the composition of the crime and others.

The joint criminal under Article 30 of the Criminal Code stipulates that “if two or more people commit a crime jointly, each person shall be punished as a fixed punishment for the crime.” Regarding the interpretation of this regulation, there has been much debate about whether each joint criminal needs a constituent act, that is, an objective element, or whether it is sufficient to have a constituent act for the whole and can become a joint criminal only by conspiracy without requiring an objective act for each participant. The Supreme Court has changed its method of argument over time, but the conclusion is consistently taking the position that a joint criminal can be established by participating in the conspiracy alone without sharing the action of execution. However, this interpretation that a joint criminal can be established only by public offering is contrary to the most basic principle of the criminal law, the principle of clarity among the criminal courtism. The Supreme Court tried to impose some restrictions on the possibility of becoming a joint criminal even if they only participate in the conspiracy using the terms “essential contribution” or “functional behavior domination,” but the conclusion is that a joint criminal can be established only by the conspiracy, which does not guarantee any predictability to a criminal with general common sense because it does not properly present the criteria for how much participation in a criminal act is established. Moreover, even if it is a single criminal system that does not distinguish between regular offenders and accomplices, if public offering is presented as a cover for regular offenders in our criminal law system, which has a dual system that distinguishes between regular offenders and accomplices, the boundary between teachers and assistance who do not directly realize the constituent requirements will be broken. Furthermore, although it is a co-conspiracy criminal who emerged to punish the executives or leaders behind organized crime, even if this concept is not recognized, it is now possible to sufficiently cope with the criminal law system under the provisions of the Criminal Law or Special Criminal Law, so there is little need to admit it in a legal policy. This is because the provisions of the Criminal Law on accomplice regulations or criminal organizations not only can punish those who join or operate an organization, but also punish the gangsters or executives behind them more seriously than regular offenders. Moreover, the provisions of the Criminal Law on Criminal Organizations have a preventive function as they are even stipulated so that punishment is possible if they are constructed for this purpose without committing a crime. In this way, I don't think there is a need to recognize co-conspiracy criminals theoretically or legally.

The criminal justice system in India is a complex and developing system to maintain public order, prohibit and deter criminal acts, and secure justice. It is built upon several statutes, principles, and a committed judicial structure. The criminal law system in India has heroic historical legal origins, but its development is largely due to British colonial rule, while recent reforms have ushered in a new period of development. The foundation of India's criminal law system was formed during the British Raj. The Indian Penal Code (IPC), 1860, drafted by the First Law Commission of India, stood as the substantive law that defined criminal offences and codified criminal law in India. The other foundation was the Code of Criminal Procedure (CrPC), 1973, which provided the procedural law for investigation, trial, and punishment. The Indian Evidence Act, 1872 governed evidence law in a criminal trial. Recently, however, these colonial laws were replaced with new laws in 2023. This includes the Bharatiya Nyaya Sanhita (BNS), 2023, replacing the IPC, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, replacing the CrPC, and the Bharatiya Sakshya Adhiniyam, 2023, replacing the Indian Evidence Act. These new laws aim to modernize the criminal justice system, streamline procedures, and better reflect contemporary societal needs, including introducing provisions for crimes like mob lynching and terrorism. The Indian criminal justice system operates on several fundamental principles. Every person is presumed innocent until proven guilty beyond a reasonable doubt. The burden of proof rests on the prosecution, not the accused. A crime requires both a "guilty act" (actus reus) and a "guilty mind" or criminal intent (mens rea). Generally, a person cannot be held criminally liable for an act without a corresponding malicious intent. Punishment should be proportionate to the severity of the crime. This principle ensures that penalties are just and not excessive. The accused has a right to a fair trial, including the right to legal representation and protection against self-incrimination.

George Fletcher preeminent contemporary criminal theorist. His work has had a major impact on all of us who pursue this field. (1) appearance of first volume of a projected three-volume work--a work whose declared aim is to elucidate deep structure, both syntax and semantics, of defining and punishing crime--is a major event in criminal theory world. (2) This book, most comprehensive and ambitious Fletcher has written since his hugely influential Rethinking Criminal Law, spurred, he tells us, by the need of a new species of literature will focus primarily on theoretical aspects of war against terrorism and international criminal law [vii]. staggering mass terrorism of September 11, 2001 and launch in following year of International Criminal Court constitute background against which Fletcher has undertaken this enormous project--to elaborate general principles of criminal should be recognized not only in International Criminal Court, but in all civilized nations [20]. Fletcher's unusual combination of a solid grounding in twentieth-century analytic philosophy with a spectacular fluency in intricacies of comparative criminal make him uniquely suited to carry through mammoth project he has launched in this first volume of Grammar of Criminal Law. Yet there are a dismaying number of difficulties in some of concepts Fletcher deploys and some of positions he takes. I am painfully aware root of these problems more likely my own lack of comprehension rather than any defects in Fletcher's conceptual apparatus. Accordingly, I have written this essay in hope of provoking a response will put an end to my interpretive problems. I Foundational Concepts Fletcher launches his work by identifying three ideas that lie, with an appropriate sense of abstraction, at basis of all systems of criminal law: aggression, consent, and self-defense. These three concepts provide a matrix for understanding entire criminal law [21]. They generate a legal order and are the basic ideas for constructing a national system of criminal law as well as constitut[ing] foundations of international criminal law [24]. Yet they present difficult problems of definition and understanding. Indeed, Fletcher tells us [p]robing foundations of these contested concepts primary reason for theoretical work in criminal law [24]. To control and prevent aggression--the violation of an individual's boundaries, including his person, his living space, and his property [22]--is task lies at very heart of criminal law. Consent, however, converts what would otherwise be aggression into legitimate and non-violative behavior. It functions as a denial of an element of an alleged offense. Self-defense, on other hand, concedes aggression and asserts it right to resist with counterforce, thereby functioning as a plea in confession and avoidance [25]. Official grows out of practices of self-help and self-defense. This development, says Fletcher, a process sufficiently complex and complicated to justify regarding by state as a fourth basic idea of criminal law. The contours of any system of criminal are defined, therefore, by ideas of aggression, consent, self-defense, and punishment [26]. (3) Why it precisely these concepts form basis for any system of criminal law? Are there other concepts ought to be added to these four? Is there, perhaps, an alternative set of concepts could equally well be taken as foundation for a criminal system? Consider, for example, concept of human action. Fletcher devotes a chapter to this concept, which he observes plays a role in virtually all systems of criminal law [267] and the first requirement of criminal liability [271]. …

Renewing the functionalization of sentencing guidelines in the criminal law system in Indonesia is the main topic of this article. The central purpose of this reform is to increase fairness, effectiveness, and efficiency in criminal law enforcement in Indonesia. With structured and clear sentencing guidelines, it is hoped that the sentencing process can be carried out consistently and transparently, providing fair decisions for all parties involved. This article highlights several important aspects that need to be considered in renewing the functionalization of criminal law in Indonesia. First, justice in the sentencing process must be maintained by ensuring equal treatment for all individuals before the law. Second, technological innovation is crucial for increasing efficiency and accuracy in the legal process. Third, crime prevention and rehabilitation are also important focuses for creating a safer and more civilized society. In addition, the significance of international cooperation is increasing the capacity of law enforcement officials, as well as transparency and accountability are also emphasized in this article. Challenges such as harmonization of regulations, limited resources, resistance from certain parties, and so on, must be overcome with strong commitment and cooperation from various related parties. It is hoped that with a deep understanding of these challenges, updating the functionalization of criminal law and sentencing guidelines in Indonesia can have a positive impact on efforts to achieve better legal justice. Cross-sector collaboration, innovation, and strong commitment from the government, legal authorities, and society as a whole are the main keys to realizing a fairer and more effective criminal legal system in the future.

The Undercivilization of Corporate Law

Criminalization is one of the central problems of criminal law policy. Based on the description of the background above, the problems that arise are, first, how is the legal politics regarding criminalization and decriminalization in the Indonesian legal system, and second, how is the regulation of criminalization and decriminalization in the Indonesian legal system in the future. The approach method used in this research is a normative juridical approach. Based on the results of the study, it shows that the criminal law system as a form of political embodiment of criminal law should be formed with the spirit of the 1945 Constitution as a juridical basis. Consequently, the criminal law system must be spelled out concretely in every statutory regulation. Therefore, criminal law must be truly aspirational to the needs of the wider community, both in terms of legal certainty, justice and expediency. However, with the size and punishment guidelines not yet fully regulated, it has the potential to cause criminogenic factors and over-criminalization. In connection with the regulation of criminalization and decriminalization in the legal system in the future, which is with the dynamic nature of the law, where the law must follow developments in society. Therefore, it is necessary to synchronize and harmonize laws and regulations as well as a judicial review mechanism as an effort to decriminalize. Based on this, criminal policy through non-penal efforts should be prioritized.

Handling of criminal cases in criminal law system in Indonesia has adopted the concept of restorative justice which uses peace agreements as its instrument. In the classical doctrine of contract law, it explains the conditions for the validity of an agreement so that it has binding legal force for the parties. The problem in this research concerns the existence of peace agreements as an instrument in handling criminal cases or the classical doctrine of contract law and the position of the restorative justice approach in criminal law system in Indonesia. This research is a normative juridical research. This research is descriptive analytical in nature using primary and secondary sources. The status of a peace agreement as an instrument in handling criminal cases in Indonesia also adopts legal requirements of classical contract law doctrine. The existence of a peace agreement in the criminal justice process is not entirely the same as the legal doctrine of civil contracts. A peace agreement has legitimacy in Indonesia's modern criminal law system and is not simply a stand-alone private contract. The combination of criminal procedural law and the classical doctrine of contract law along with the concept of restorative justice reconstructs the principles of contracts with an orientation towards "restoration" in a peace agreement. A peace agreement is a procedural instrument in handling criminal cases which is one of the considerations of the judge in imposing a sentence.

Justice in the name of and by the Batavian people’. Criminal Law and Criminal Prosecution During the Batavian-French Period in Brabant At the end of the 18th century, the Netherlands came under the influence of France and Dutch patriots who called themselves the Batavians. They wanted reform for the Netherlands in multiple ways. For the criminal law system this meant a change in direc- tion: instead of multiple sources of law-like local codes, common law and Roman law, the Netherlands received one source of criminal law; the first nationwide criminal code of 1809. This article reviews the change in the criminal law system and especially the change in criminal judgments for the period of the first criminal code as well as the period prior to that. As seen from judgments from this period in the territory now known as North- Brabant, the change in reality was not as major as the change in the law, although there were some notable alterations. The first criminal code of the Netherlands brought unity, clarity and a systematic approach to criminal prosecution. It was the codification of a more humane criminal law system in which imprisonment played a larger role as a form of punishment for many offences. The first criminal code was valid for just two years – from 1809 until 1811 – but it was applied quite extensively. At first, the court officers also held on to old sources of law like Roman law to make their case, but soon enough they used the new criminal code as their primary source of law. Thieves and robbers were less likely to be sentenced to death and more likely to be put in prison. Banishment was also an often-used punishment, as it was before the criminal code, only now sentences for life-banishment declined. Another common offence in this time was vagabondism and begging. Remarkably, the new criminal code did not have any provision for this and it left the old provisions of the Ancient Regime intact. Perpetrators of violence were now more often put in prison, in contrast to the punishment of a fine that they usually received from the courts prior to the criminal code. Curiously enough, in the period in between the Ancient Regime and the new criminal code, these perpetrators were banished.

The judicial power in criminal law enforcement within the Criminal Justice System, including the execution of criminal sanctions sub-system, should be independent and self-supporting. In Indonesia, the execution of criminal sanctions sub-system is currently under the executive power that enables the practice of execution of sanctions being obstructed by many factors. In relation to that, this study explains the urgency of revision for legal structure of criminal sanctions execution and legal structure reformation for criminal enforcement in Indonesia. It employs a qualitative approach using the doctrinal research within the post-positivism paradigm. This study found that it is considered urgent or essential to reform the criminal legal structure of the national law based on philosophical, sociological, and juridical aspects abiding to Pancasila. The criminal law system covers the criminal law enforcement system which includes material criminal law sub-system, formal criminal law sub-system, and execution of criminal sanctions sub-system. Essentially, the execution of criminal sanctions sub-system acts as a sub-system of punishment. The structural reform of the systemic law in execution of criminal sanctions sub-system should be under the auspices of judicial authority, which is the Supreme Court. Therefore, this study concludes that the system should become linear, independent, synergized, and integrated with the investigative agents, prosecutors, and courts in a single criminal law system. In this way, there will be supervision and coordination in the context of the integrality of punishment, which falls under one protection of an integrated criminal law enforcement system.