Justice Authorities Research Articles

GENERAL AND SPECIAL THEORY OF THE CRIMINAL PROCESS OF UKRAINE

Introduction. The criminal process in Ukraine is based on the basic principles of legal theories of Anglo-Saxon law. Adversarial proceedings are defined as a criminal lawsuit, on the basis of which the investigator is obliged to initiate criminal proceedings and support public prosecution. A retrospective analysis of the theoretical constructions of general theories of the criminal process in Ukraine shows their construction on the basis of Romano-Germanic provisions of continental Europe, where the basis is the publicity of the process and criminal prosecution by criminal justice authorities. In this case, the construction of general and particular theories of the process of Ukraine has a significant legal difference. Summary of the main research results. The main differences can be considered on the basis of optimization constructions, procedural economy, application of criminal repressions connected with restriction of the rights, freedoms and interests of participants of criminal proceedings. It should be noted that the current criminal procedure law does not define, to the end, the concept of general and private theories of process. Conclusions. The article offers theoretical aspects and practical solutions to emerging problems on the basis of the criminal process of Ukraine, the construction of theoretical approaches based on Anglo-Saxon law, which is important for optimizing the criminal process of Ukraine.

Creating and Maintaining Structural Hindrances to Criminal Justice Control – A Policy Analysis on the Normalisation of Parental Violence as a Crime in Finland

In the context of home, violence remains more accepted when committed against children than adults. Normalisation of parental violence has been documented in attitudinal surveys, professional practices, and legal regulation. For example, in many countries violent disciplining of children is the only legal form of interpersonal violence. This study explores the societal invisibility and normalisation of parental violence as a crime by analysing legislation and control policies regulating the division of labour and involvement between social welfare and criminal justice authorities. An empirical case study from Finland, where all forms of parental violence were legally prohibited in 1983, is used to elucidate the divergence between (criminal) law and control policies. The analysis demonstrates how normalisation operates at the policy-level where, within the same system of control that criminalised these acts, structural hindrances are built to prevent criminal justice interventions.

The Courts in the Face of the COVID-19 Crisis: An Analysis of the Measures Adopted by the Brazilian Judicial System

The crisis caused by COVID-19 has triggered a series of changes at the global level, resulting in a rapid change in the way social relations are organized. The state is no exception to this complex scenario, and is responsible for making available to citizens the various administrative provisions essential to life in society, one of which is justice. In this context, the aim of the present work is to analyse the institutional response of the judiciary branch in Brazil to the pandemic period of the new coronavirus, contrasting the normative actions taken by the judiciary with the results obtained with these interventions. To that end, at first, the main regulations that have underpinned the conduct, positioning and action of the judiciary since the beginning of the crisis in Brazil, which occurred in March 2020, were collected and analysed in a total of 57 official documents issued by the Brazilian justice authorities. A posteriori, the report “Assessment of the impacts of the pandemic caused by COVID-19 on the court’s work processes” was analysed, which includes analyses related to the adoption of rules relevant to issues of administrative management, procedural management and also the perceptions of impacts and difficulties due to the pandemic, as well as the other official documents published by the National Council of Justice – CNJ that provides statistics about the judicial indicators in times of pandemic. The data show a fast and comprehensive performance in the various fields in which justice operates, revealing a concern with health, social, administrative issues, among other aspects. The Judiciary has acted in an administrative unit, based on the regulations of a higher authority or of higher courts.

Criminal law qualification of an act under Article 190 of CC of Ukraine (fraud) in case of absence of the property owner (the victim) and damage caused to them: theoretical aspects and law enforcement challenges

Correct and accurate criminal law qualification is a necessary condition for achieving the objectives of criminal law, a guarantee of the criminal proceedings effectiveness, feasibility and timeliness of procedural actions carried out within it. Nevertheless, making mistakes in this area and insufficient attention to qualification might lead to numerous negative or even detrimental consequences: unjustified criminal prosecution of a person, formation of an incorrect legal position by the prosecution and, consequently, irrational workload of criminal justice authorities, futility (uselessness) of criminal proceedings, avoidance of responsibility by the guilty or imposition of either too lenient or vice versa too severe (disproportionate) punishment on them, and the victims being left in an insecure state etc. Thus, the article covers the issues of criminal law qualification of fraud and determination features of its objective aspect in case of absence of the property owner (the victim) and damage caused to them. It is concluded that: 1) Article 190 of CC of Ukraine does not specify on which proprietary right the property should be held, being subject matter of the offence. Subject of crime (the guilty) is not obliged to realize this either. Moreover, property could exist without any legal title, although it does not mean the absence of fraud; 2) for criminal law qualification under Article 190 of CC of Ukraine others’ property should be recognized any property which does not belong to the guilty party. In this case it does not matter who is the property owner, or even whether the property has an owner at all (ownerless). The exception is qualification of an act under part 2 of Article 190 of CC of Ukraine, since it involves taking into account the property status of a particular person (the victim). At the same time for criminal law qualification of an act under part 1, 3 or 4 of Article 190 of CC of Ukraine the existence of property owner (the victim) and causing damage to them is not required. The above-mentioned is not a mandatory feature of the objective aspect of fraud. Key words: criminal law qualification, qualification of an act, Article 190 of CC of Ukraine, fraud, property owner absence, victim absence, damage absence, others’ property.

Подготовка юристов для дальневосточных небольшевистских органов военной юстиции

The subject of the article is the professional training of military lawyers in Russia. The authors examine and compare in detail the process of the formation of military legal education in the Russian Far East during the Civil War and the existence of the Far Eastern Republic. The choice of the chronological framework is due to the transformation of special legal education in the military justice authorities and is limited to the entry of the territory of the Russian Far East into the RSFSR, with the restructuring of all state bodies, including the structure of military justice. The object of the research is the training of specialists for military justice bodies in the period from 1917 to 1922. The study uses a regional approach, as well as the concept of historical experience through the prism of which conclusions are drawn about the historical features of legal education in the Far Eastern region. Attention is drawn to the fact that during the period of social transformations in the region, it was possible to preserve, albeit in a modified form, the system of special legal training for employees of military justice bodies. A comprehensive study of the process of training military lawyers allows us to highlight not only the positive aspects, but also to assess the scale of the negative consequences. The authors introduced into the scientific circulation the materials of regional archives, revealing the process of forming a system of transferring legal knowledge to military investigators, prosecutors and judges.

Penegakan Hukum Dalam Mengadili Anggota Militer Yang Melakukan Tindak Pidana Umum

The penalties imposed on TNI soldiers are actually more severe than those imposed in general courts. The punishment imposed on TNI soldiers is not only limited to imprisonment or fines, but sometimes serious criminal offenders are often given additional punishment in the form of dishonorable discharge (PDTH) from military service. The aim of this research is to show that for legal subjects who have military status, the role of superiors who have the right to punish or what is known as Ankum is very dominant. Military members who are involved in criminal acts are subject to two inherent penalties, namely first, in the form of disciplinary penalties which are imposed in the form of penalties for delaying promotion, demotion or even dismissal. This research is qualitative which uses a descriptive approach to collect data systematically, factually and quickly according to the description when the research was carried out. The results of this research show that the determination of absolute competence based on the emphasis on the consequences of losses incurred can be said to be in line with what is stated in Article 3 paragraph (4) letter a of TAP MRP Number VII of 2000 concerning the Role of the Indonesian National Army and the Role of the Republic of Indonesia's National Police. Indonesia which states that "Indonesian National Army soldiers are subject to the authority of the general judiciary in matters of general criminal offences." Strengthened by Article 65 paragraph (2) of the TNI Law which states "Soldiers are subject to the authority of military justice in cases of violations of military criminal law and are subject to the power of general justice in cases of violations of general criminal law as regulated by law."

BEYNƏLXALQ CİNAYƏT MƏHKƏMƏSİ KOMPLEMENTAR ƏSASDA FƏALİYYƏT GÖSTƏRƏN BEYNƏLXALQ MƏHKƏMƏ ORQANI KİMİ

The functioning of the International Criminal Court is carried out on the basis of the principle of complementarity. Thus, in the Preamble and Article 1 of the Rome Statute of the International Criminal Court explicitly states that “the International Criminal Court….complements the national criminal justice authorities”. The principle of complementarity is revealed in Art. 17-20 of the Statute. This article discusses the algorithm and the criteria for evaluating the performance of the complementarity based on the analysis of the Rome Statute of the International Criminal Court (Statute), the Rules of Procedure and Evidence (2000), the Policy Paper on Case Selection and Prioritisations of 2016, the Policy Paper Preliminary Examinations of 2013. Key words: International Criminal Court, principle of complementarity, Rome Statute, international crime, state sovereignty, criminal law jurisdiction, international criminal law, principles of criminal procedure

25. Juvenile Corrections Officers’ Perceptions of Procedural Justice

Procedural justice is a framework to guide interactions between criminal justice authorities and system-involved individuals. It is built on four pillars: Respect, Fairness, Trust, and Voice. Among adult offenders, experiences of procedural justice are associated with less violence and recidivism, but little is known about procedural justice in the juvenile system. We describe juvenile corrections officers’ views on youth and perceptions of procedural justice.

DISSENTING OPINION IN THE CONSTITUTIONAL JUSTICE AND THE EVOLUTION OF LEGAL SCIENCE

The article deals with the influence of the dissenting opinions of constitutional judges on the development of legal science. This issue is usually very important for constitutional and legal science as its understanding and practical resolution influence the authority of constitutional justice in a state. The dissenting opinion of any judge is their right to express their reasoned disapproval of the rendered decision, formulated in writing and attached to the court decision. Dissenting opinions in constitutional proceedings are of increased importance, because decisions of constitutional courts are aimed to protect law and order in general and are addressed to entire population. The dissenting opinions of constitutional judges contribute to the development of legal science in two aspects. On the one hand, they can contain new ideas, theories and approaches to law, with the help of which new categories and concepts are introduced into scientific discussion. On the other hand, dissenting opinions make often wide references to foreign experience in resolving legal conflicts. In this case, dissenting opinions fit into the framework of comparative legal research and allow taking into account the judicial practice and judicial argumentation of other countries and legal systems. Both aspects contribute to the expansion of the doctrinal base of legal science, pose and solve new problems, increase the need for scientific discussion. This study is based on a formal-dogmatic scientific method, which is aimed at disclosing the true meaning of legal positions of judges presented in dissenting opinions. A systematic method is also used, which allows to identify and classify single areas of scientific knowledge. The author also applies the comparative legal method, which consists in comparing different legal positions in the dissenting opinions of judges. The novelty of the research is in determination of contribution of dissenting opinions of constitutional judges to the development of legal science.

Общие и специальные теории уголовного процесса

The relevance of the article can be determined on the basis of research on general theories of criminal procedure. The main theoretical provisions of the criminal procedure of continental Europe began to be developed in 1864, after the adoption of the Charter of the Criminal Proceedings of Russia. Theoretical developments included a conceptual approach that defined guarantees for the rights, freedoms and interests of participants in the procedure, basic principles, forms of evidence and proving, the procedure for investigative and judicial actions. The aim of the article is to reveal the theoretical content of the general theory of the procedure and to determine new special theories enshrined in the current legislation. If general theories of the procedure have been considered at the level of monographic research, special ones have remained outside the scope of studies. The novelty of the research consists in the disclosure of theoretical and practical aspects of general and special theories of criminal procedure on the basis of existing legislation and the practice of its application by criminal justice authorities and the collegiate court. The article considers the theoretical aspects of a special theory. Issues of the optimization and procedural economy of criminal procedure based on benchmark theory are related to the release of a person from criminal liability and the use of alternative measures. New legal definitions are proposed that establish a clear mechanism for procedural, investigative (search), judicial actions in establishing, securing, evaluating evidence of guilt or innocence of a person. The existing legal constructions of general theories provide an impetus for the application of special theories of criminal procedure, which are associated with solving the problems of criminal proceedings, its optimization, and procedural economy of applying criminal procedural repression. The current criminal procedural law does not fully define the concept of general and special theories of the procedure. The article proposes theoretical aspects and practical solutions to these emerging problematic issues. The basic concept of the article includes the analysis of general and special theories of criminal procedure, the determination of the provisions for its optimization and procedural economy on the basis of the unified content of criminal and procedural rules in establishing circumstances related to the closure of criminal proceedings, and the release of a person from criminal liability. Based on the analysis of the current criminal procedural legislation, the content of procedural repressions, which are determined on the basis of the procedural status of prosecution and the mechanism of their application with respect to a particular category of participants in criminal proceedings, is revealed.

THE PROFESSIONAL DEFORMITY AND CONFLICT POTENTIAL IN TRANSPORT JUSTICE (1941–1957)

Abstract: during the 1940s–1950s, there were a large number of examples of professional deformation of employees of the transport justice system. The author identified several groups: domestic corruption of employees, corruption and abuse of power, conflicts within the transport justice system and with other authorities, accompanied by the involvement of compromising materials. During the great Patriotic war, the conflict potential in the transport justice system was at a low level. After the war, major conflicts broke out here. They were caused by a number of objective and subjective factors. In them, the leadership of the justice authorities was defeated. It was replaced. In the first half of the 1950s, the conflict potential decreased. In 1955–1957, there were practically no conflicts in the justice system. The issue of their elimination was actively discussed. The identified trends are noted against the background of improvement in the main personnel indicators. It can be assumed that after the end of the great Patriotic war, a new generation of employees entered the transport justice system. It entered into a competition with the older generation. They used to collect incriminating materials.

The Legal Regulation of the Penitentiary Justice of the USSR (1944 – 1956)

In this article, on the basis of documents stored in the funds of the State Archive of the Russian Federation, the Russian State Archive of Socio-Political History and the United State Archive of the Chelyabinsk Region, the regulation of the penitentiary justice authorities is considered. The aim of the paper is to identify the characteristic features of the regulation of the activities of the penitentiary justice bodies. The number of those convicted by the penitentiary courts for the period of their existence (1946–1956) is revealed. The characteristic features of the regulation of the activities of the penitentiary justice bodies are highlighted. These include the following. Firstly, the delphic language resulting in the lack of clearly defined competence for the penitentiary courts; their functions expanded and narrowed. Secondly, the inconsistency of the regulatory framework manifested in the fact that by-laws passed by the Ministry of Justice contradicted the legislation and limited the rights of the accused and defendants. The practice of the Judicial Collegium for Penitentiary Courts of the USSR Supreme Court was not consistent. The author distinguishes two stages in the development of the competence of prison camp courts. The first one that lasted until the early 1950s was the period of expansion. The second stage was reduction of competence. At the same time, initially the reduction of competence was not common. But, after the death of I. Stalin, this process became widespread.

Theoretical foundations for strengthening the authority of the judiciary power in Ukraine

Introduction. The term "authority of the judiciary" appears in a significant number of legal acts throughout the history of Independent Ukraine. The meaning of this concept differs in domestic and English-language sources due to the difference in interpretation of the term "authority". The authority of the judiciary is recognized by scholars as one of its features or properties, and there are also strong links with other features, including independence. At the same time, due to the lack of legislative enshrinement of the concept, there is a blurring of the conceptual and categorical apparatus, in particular, ambiguity in the works of various authors on the interpretation of "authority of the judiciary", "authority of justice", "authority of judge", etc. Despite the importance of the issue of the authority of the judiciary, it remains virtually unexplored, and regulations on "strengthening" or "undermining" the authority of the judiciary or justice do not have a proper theoretical and methodological justification. The purpose of the paper is to generalize the theoretical foundations of strengthening the authority of the judiciary in Ukraine. Results. The paper presents the results of a study of the theoretical foundations of strengthening the authority of the judiciary. The urgency of this problem is emphasized in view of the intensification of the processes of civil society development and European integration of Ukraine. Emphasis is placed on the broad representation of the relevant concept in regulatory sources in the absence of its definition. The limitations of research on the authority of the judiciary in modern works on jurisprudence are noted. Emphasis is placed on the dominance of the approach in modern jurisprudence, according to which the authority of the judiciary is formed on the basis of the authority of judges. The dynamic nature of the authority of the judiciary and the existence of a potential opportunity to monitor its level was noted. Author proposed a set of theoretical principles which can allow to form sound recommendations on strategic directions for strengthening the authority of the judiciary. Conclusion. The events of recent years have indicated the incompleteness of judicial reform processes in Ukraine. The expected increase in trust in the judiciary did not happen, which negatively affected its authority among the population and Ukraine's international partners. Finding ways to strengthen the authority of the judiciary is one of the important tasks in establishing the rule of law and ensuring strict observance of the right to a fair trial, which is a condition for Ukraine's European integration. According to the results of the study, a number of theoretical principles of strengthening the authority of the judiciary were summarized. A promising area of further research is the development of methodological aspects of strengthening the authority of the judiciary.

Organization of Justice in the Ostyak-Vogul National District in the 1930s

Introduction. The publication reveals the history of the organization of the Soviet justice authorities in the national regions of Western Siberia in the 1930s. The example of the activities of judicial officials shows the state policy on organizing new courts in an isolated region of Russia. Purpose. The purpose of the article is to identify the features of the organization of bodies of Soviet justice in remote areas of the north of Western Siberia. Methodology. The main methods used in the study include the historical approach, the system-structural method and the comparative analysis method. Results. Since 1931 in the northern regions of the Ural and then Omsk regions, district justice bodies have been formed. District justice bodies subordinated to themselves the people's judges, notaries and bailiffs. They performed the role of the main regional justice body in conditions of remoteness from regional courts. They faced the task of improving the personnel of law enforcement agencies in the region. They could not complete this task for objective reasons. Most justice workers were young Communists and Komsomol members who advanced in the 1920s. They tried to compensate for the low level of competence through vigorous activity. However, the purges and repressions did not allow them to stay in their workplaces for a long time. The nominees often irritated the local authorities because of their attempts to follow the law. Repressions, low pay, and harsh environmental conditions pushed judicial officers out of the system and from the region. Conclusion. The history of organizational “perturbations” in the North of Western Siberia allows us to identify general trends in the personnel policy of the Soviet state in remote regions of Russia in the 20th century.

Determination of cathinone and cathine in Khat plant material by LC–MS/MS: Fresh vs. dried leaves

The consumption of Khat leaves represents an ancient kind of drug abuse mainly observed in Eastern Africa and the Arab Peninsula among adult men. For this purpose, the leaves are directly collected from the shrub “Catha edulis” prior to extensive chewing process. Seizures in Europe are rare, since the leaves have to undergo quick transportation: After a short period of time, the harvested leaves decompose and suffer in decrease of concentration of the active ingredient cathinone, which makes long term transportation difficult. As an alternative, plant material can be dried to increase life period. In the past years, an increasing number of seizures were made by Austrian police, however, the content of cathinone and cathine in dry material is widely unknown.In this work, a seizure of fresh Khat leaves was compared with two seizures of dried material in terms of concentration of cathinone and cathine using LC–MS/MS analysis. For fresh leaves, a purity grade was found to be 0.115-0.158% for cathinone and 0.172-0.192% for cathine, respectively. In contrast, subsequent storage of dried Khat leaves over months led to a dramatic loss of cathinone: Analysis of two seizures revealed that concentration of cathinone dropped to 0.021-0.023%.These findings are intended to serve as a guideline for Justice authorities to estimate the content of the controlled ingredients of Khat leaves in future.

The Role of the Constitutional Court in the Implementation of the Principle of Checks and Balances System

The article deals with the analysis of the place and role of the Constitutional Court in the system of separation of powers, for the effective implementation of the system of checks and balances. The institutional and legal model of interaction of constitutional justice authorities with legislative and executive bodies is formulated on the basis of the comparative legal analysis of the regulatory legal acts establishing the powers of constitutional jurisdiction authorities in the mechanism of implementation of the system of checks and balances on the example of different countries with different forms of government, a number of conclusions and suggestions are provided.

The Role of the Constitutional Court in the Implementation of the Principle of Checks and Balances System

The article deals with the analysis of the place and role of the Constitutional Court in the system of separation of powers, for the effective implementation of the system of checks and balances. The institutional and legal model of interaction of constitutional justice authorities with legislative and executive bodies is formulated on the basis of the comparative legal analysis of the regulatory legal acts establishing the powers of constitutional jurisdiction authorities in the mechanism of implementation of the system of checks and balances on the example of different countries with different forms of government, a number of conclusions and suggestions are provided.

Life sentence as a type of criminal punishment in France of the late XVIII – early XIX centuries

This article questions the opinion established in modern French historiography on implementation of life sentence as a criminal punishment under the rule of Napoleon Bonaparte (in accordance with the Criminal Code of 1810). Leaning on examination of legislative, policy drafting, and court materials, the author traces the evolution of the system of criminal penalties associated with incarceration. and determines the role of life sentence therein – since the adoption of first criminal laws in the era Great Revolution until the revision Napoleonic Criminal Code in 1832, and the court of Peers under Louis-Philippe I. The acquires materials demonstrate that after long absence of the  Consulate and Early Empire in the time of Revolution,  life sentence was envisaged by the Criminal Code of 1810 as an alternative measure to penal servitude for life or deportation (for criminals of senior age), rather than an separate type of criminal punishment. Reference to the practice of the court of Peers during the Restoration and the July Monarchy suggests that life sentence became a separate type of criminal punishment only with the advent of verdict passed by Peers with regards to 1830 case of former ministers. This sentence was based on the combination of legislative and court functions in actions of the Chamber of Peers as higher justice authority, and thus was of constitutive nature. The conclusion is made that the implementation of life sentence in French criminal law should be attributed to the time of the July Monarchy rather than the ruling of Napoleon Bonaparte.

Ensuring Human Rights in Criminal Proceedings in the Context of a Pandemic

The coronavirus pandemic has put a number of legal issues on the agenda of the world community – how to ensure the rule of law in the face of the need to save the lives and health of many people, how to achieve a reasonable balance in the ratio of various human rights in a pandemic situation, how to determine the criteria for proportionality of restrictions on essential human rights. The criminal justice authorities and courts have a serious task to ensure human rights, achieve the effectiveness of criminal proceedings and access to justice in the context of the coronavirus pandemic, on the one hand, and take the necessary measures to ensure the safety of persons involved in criminal proceedings, including their own, from the threat of COVID-19 infection, on the other. Measures that restrict human rights in the context of a pandemic must be implemented in accordance with the principles of the rule of law, respect for human rights, the rule of law, legal certainty and proportionality. Proportionality can be established by determining a reasonable balance of private and public interests in each particular situation, through an assessment of the affected interests in terms of their significance. In General terms, the rights and freedoms that provide the most significant benefits are given priority. The criteria for determining a reasonable balance between private and public interests and for resolving an emerging conflict of human rights are determined taking into account the immediate circumstances of the case (the epidemiological situation, the state of health of participants in the process, the urgency and significance of the proceedings for participants in criminal proceedings and the interests of justice, the ability to ensure the necessary sanitary and epidemiological requirements). The coronavirus pandemic has put on the agenda the issue of creating a strategy for the transformation of criminal justice institutions in emergency situations, when the normal mode of criminal proceedings is impossible due to objective reasons.

ЗАБЕЗПЕЧЕННЯ ПРОЦЕСУАЛЬНОЇ ДІЄЗДАТНОСТІ СУБ’ЄКТІВ ПРОВАДЖЕННЯ ЯК ОДИН ІЗ АСПЕКТІВ ФУНКЦІОНАЛЬНОГО ПРИЗНАЧЕННЯ ПРЕДМЕТУ ВІДАННЯ В КРИМІНАЛЬНОМУ ПРОЦЕСІ

У статті розглядається забезпечення процесуальної дієздатності суб’єктів провадження як один із аспектів функціонального призначення предмету відання в кримінальному процесі. Проаналізовано, що одним із функціональних призначень предмету ві-дання в кримінальному процесі є набуття законних підстав для створення певного органу кримінального судочинства та законних підстав до здійснення ним певної кримінальної процесуальної діяльності. На підставі аналізу теоретичних уявлень зроблено висновок про те, що в кримінальному процесі щодо суб’єктів, які ведуть кримінальний процес, можна мовити про юрисдикційний режим, що являє собою нормативний комплекс, котрим встановлено предмет відання суб’єкта за предметним, територіальним, темпоральним (часовим), персональним та іншими критеріями.