Decisions Of Criminal Courts Research Articles

Dualistic View in the Formulation of Criminal Offenses in the National Criminal Code

This article discusses the shift in criminal law perspectives in Indonesia from monist to dualist within the National Criminal Code (Kitab Undang-Undang Hukum Pidana or KUHP). The term "pidana," originating from the Dutch word "straf," is defined as the punishment imposed by the state for criminal law violations. Since the colonial era, Indonesia inherited Dutch criminal law, which underwent reforms starting in 1958. These reforms were driven by the need for a better criminal legal framework in line with societal developments. The aim of criminal law reform is to achieve legal certainty, justice, and utility. The reasons for reform are influenced by political, sociological, psychological, and practical aspects. Reform efforts include legal discoveries through interpretation, analogy, and legal refinement, covering substantive, structural, and cultural aspects of the law. The National Criminal Code of Indonesia has shifted its perspective from monist to dualist. Monist theory unifies the wrongful nature and culpability as elements of a criminal act, while dualist theory separates them. The National Criminal Code affirms this separation but still formulates the subjective element of negligence in specific criminal acts. This shift in perspective has implications for law enforcement processes in courts. Prosecutors are not required to prove intent, and courts must balance criminal acts and criminal liability. However, there is a need for the development and understanding of these concepts by law enforcement, legal advisors, and judges to maintain a balance between legal certainty and justice. In conclusion, the National Criminal Code adopts a dualist perspective to strengthen the role of criminal law. The separation of criminal acts and criminal liability is expected to enhance the balance between legal certainty and justice in criminal court decisions in Indonesia.

Fulfilling the Restitution Rights of Crime Victims: The Legal Practice in Indonesia

According to Articles 38D and 38G of the Republic of Indonesia’s 1945 Constitution, citizens have the right to a sense of safety from the state, including the right to be protected from crimes. In Indonesia, there is an annually increasing rate of crime, many of them being crimes against wealth. Unfortunately, victims seldom receive attention, including recovery from losses or restitution. This was normative legal research conducted on secondary data, including primary legal materials, secondary legal materials, and other supporting legal materials. The data were collected through a literature review and were analyzed using the descriptive-qualitative method. Results showed that the restitution rights of crime victims are regulated in Indonesia's legal regulations (the 1945 Constitution, the Law on the Protection of Witnesses and Victims, the Law on Human Rights, the Law on Corruption, etc.). But these regulations are still incomplete and they are difficult to implement in legal practice. In Indonesia, the implementation of crime victims’ restitution rights has not been fulfilled. Many victims fail to obtain restitution from the perpetrators because they still lack knowledge of their restitution rights and the application procedures due to a lack of socialization from the law-enforcing apparatus and the government. Victims may file a civil case lawsuit to the District Court to fulfill their restitution rights. It can be done through a combined mechanism of a civil lawsuit in a criminal case or through a pure criminal court decision. In conclusion, Indonesian law has regulated victims’ restitution rights. Even so, the laws are still incomplete and they lack harmony. The fulfillment of victims’ restitution rights is not yet ideal and its procedures are too complicated.
 
 Received: 17 April 2023 / Accepted: 12 June 2023 / Published: 5 July 2023

PENEGAKAN HUKUM PELAKU TINDAK PIDANA PENIPUAN ORDERAN FIKTIF OJEK ONLINE (ANALISIS PUTUSAN NOMOR 1507/PID.SUS/2018/PN.MDN DAN PUTUSAN NOMOR 143/PID.B/2018/PN.LMG)

Crime is a social phenomenon that is the responsibility of the state and society because the more crimes that are committed, the greater the danger to the state and society. This study uses normative legal research methods which aim to analyze and evaluate court decisions related to law enforcement of perpetrators of fraudulent online motorcycle taxi ordering fraud. This method will involve literature study and document analysis, namely court decision number 1507/PID.SUS/2018/PN.MDN and decision number 143/PID.B/2018/PN.LMG which is related to the fraudulent case of fictitious online motorcycle taxi orders. The analysis was carried out using a statutory approach and legal theory related to criminal acts of fraud and related court decisions. The results of the analysis will be requested and presented in a narrative form that can provide a deeper understanding related to law enforcement against perpetrators of criminal acts of fraudulent online motorcycle taxi orders. Based on the author's analysis above of the two criminal court decisions in the field of Information and Electronic Transactions Law, it turns out that the authors found that it was very low and did not give a deterrent effect to perpetrators of the Electronic Information and Transactions Law and did not provide a sense of justice to victims.
 Keywords : Law enforcement, crime, fraud, fictitious order, online motorcycle taxi.

Disparity of the Application of Adequate Legal Considerations: The Truth-games in Criminal Court Decisions

Judges as holders of judicial power have been given freedom and independence in resolving disputes in the daily life of every citizen. However, this freedom and independence in judicial power are limited by the existence of sufficient legal considerations as the basis for formulating decisions through an interpretive process based on legal norms and concrete facts in the process of proving before the trial of criminal cases. Despite these limitations, the judge’s ability to make decisions is through communication competence as part of language and legal activities (berrechten). This study used an approach using the concept of Power Relations and Social Praxis. This study aims to find the limitations of communication competence as a form of truth-play from judges through trying and deciding criminal cases. The results of this study indicate that a series of laws and regulations open up opportunities for the disparity in decisions to occur by ignoring the principle of sufficient legal considerations.
 Keywords: disparity, sentence, power relations, criminal

Legal Protection of Work Safety Crimes Victims In Indonesia

Between 2014 and 2018, the Indonesian Ministry of Manpower recorded 89,625 cases of work accidents, and 1,193 of them resulted in death. During this period, 34,075 companies were reported for alleged work safety crimes. From the 2,074 cases, only four have been sentenced to prison. The most interesting issue is that the victims of work safety crimes do not get any kind of restitution or even compensation. This article aims to investigate the legal protection for victims of work safety crimes from the criminal law perspective. The method used is normative qualitative research on primary data, such as work safety legislation, the Criminal Code, and criminal court decisions. As a result, the work safety law stipulates that the purpose of law enforcement on work safety is recovery for victims, repairs and prevention. They are carried out to protect the public interest. Work safety regulations also regulate the qualifications of actions categorized as work safety crimes. Unfortunately, the regulation does not provide a mechanism for resolving work safety crimes. So that the settlement of work safety crimes relies on the general criminal justice system that adheres to retributive objectives in law enforcement. The purpose of law enforcement on work safety cannot be applied because victims do not get restitution or compensation. Thus, to obtain legal protection in accordance with the objectives of law enforcement on work safety, the alternative solution is a criminal policy to establish a special criminal mechanism for the settlement of work safety crimes.

Striking A Balance Between Legal Certainty, Justice And Utility To End The Clash Between Bankruptcy And Criminal Proceedings In Court Decision No. 11/Pdt.Sus-Gugatan Lain-lain/2018/PN.Jkt.Pst and No. 3 K/Pdt.Sus-Pailit/2019

The clash between bankruptcy and criminal proceedings is one of the obstacles which has been long faced by law enforcement officials. One of many examples of the intersection of the two proceedings is the case between the Bankruptcy Trustees of KSP Pandawa Mandiri Group dan Nuryanto with Depok District Attorneys. The case caused issues with the confiscated assets that were the objects in the bankruptcy and criminal court decisions. It stemmed from the conflict between provisions in Indonesian Bankruptcy Act and Criminal Procedure Code. This Note was conducted to analyze the judges' judicial decision-making concerning the three aspects of legal certainty, justice and utility as one way to resolve the conflict of norms. Generally, the Commercial Court and Supreme Court decisions have complied with the regulations of the prevailing laws and legal principles. However, the judgments are still not comprehensive and not quite right in the decisions. The Panel of Judges should not only stick on the legal certainty aspect but also the justice and utility aspects. Concerning the three aspects, the bankruptcy assets in the case should be handed over to the Bankruptcy Trustees.

Introduction

ABSTRACT From its modest beginning in the 2000s, the Boycott, Divestment, and Sanctions (BDS) movement has grown into a worldwide phenomenon that changed the discourse on Israel. Commentators pointed out that, at a minimum, the BDS has transformed the Israeli-Palestinian debate. More ominously, the BDS spawned an entire discursive tradition of delegitimizing Israel and played an essential role in increasing antisemitism. Empirical evidence seems to indicate that the dramatic increase in antisemitic rhetoric and attacks is at least partially related to the BDS campaign. Most recently, the BDS activists took credit for the International Criminal Court decision in Hague to try Israel for war crimes. This special issue explores the BDS phenomenon – its impact and implications for Israel and the Palestinian-Israeli conflict, as well as the inextricable linkage between its anti-Israeli/anti-Zionist propaganda and antisemitism.

ВОЗНИКНОВЕНИЕ ИДЕИ ПРОВЕРКИ СУДЕБНЫХ РЕШЕНИЙ ПО УГОЛОВНЫМ ДЕЛАМ И ПЕРВЫЕ ОПЫТЫ ЕЕ РЕАЛИЗАЦИИ

From the very early stages of development, the state resolves social conflicts related to the crime committed. However, decisions made as a result of such conflicts begin to be challenged by their participants, which shows that there is an objective need for the right to appeal and review court decisions. This suggests that the right to appeal and review court decisions is objectively required. It is important to bear in mind that at the initial stages of statehood development, there is no procedural separation of appeals from other forms of verification of court decisions. The search for the effectiveness of such an audit is directed towards identifying the officials vested with the authority to carry out it, the subject of the appeal, the means of verification and its results. Further development of the idea under consideration has led to the emergence of various forms of verification of court decisions. Verification of court decisions in criminal cases is also objectively conditioned by the nature of criminal proceedings due to the impossibility of excluding court errors, including the limited cognitive abilities of a person. The close relationship between verification and the nature of social relations is indicated by the fact that, having emerged a few thousand years ago, such verification still exists today and will not be necessary in the future no matter how civilisation develops. Public relations give rise to certain types of miscarriages of justice (in establishing factual circumstances, in applying legal rules or in factual and legal matters at the same time), depending on which there is a differentiation in the way court decisions are checked, which is a response to the nature of the miscarriage of justice. Of course, the ways of verifying judicial acts are different because judicial errors are different. A generalisation and analysis of the history of verification of court judgments make it possible to identify their typological, repetitive and characteristic features which serve as grounds for classification. Such grounds are the entities authorised to carry out the audit, the means of verification, justification and argumentation at a higher authority and the types of decisions it makes. The first experiences with the idea of verifying criminal court decisions are extremely diverse. While many of the trends in the development of such verification are repeated, its morphological forms are different. At the stage of historical development under consideration, there is no close relationship between the individual states, so that the verification of court decisions in each state is formed with a small number of borrowings. This experience is interesting because it is unique for each state in a particular historical period. The formation and institutionalisation of court review is determined by the spatial, temporal, cultural, legal and other characteristics of individual states. On the one hand, various countries are aware of the need to create national judicial systems, and on the other hand, each state does this inde-pendently, using its own approaches.

Проблемы толкования норм Общей части Уголовного кодекса Российской Федерации

The article is devoted to one of the current areas of legal science related to the problems of interpretation the norms of General Part of the Criminal Code of the Russian Federation. The interpretation of legal norms is the activity of state bodies, non-governmental organizations and individuals to clarify and explain the meaning of legal norms embedded by the legislator in them and the actual content of the legal provisions (regulations, definitions) contained in them in order to implement them correctly and improve the effectiveness of legal regulation public relations. The interpretation of legal norms is a complex volitional process aimed at establishing the exact meaning of the rule of law. This process consists of two elements: 1) the interpreter (interpreter) clarifies the content of the legal norm for himself; 2) then in order to establish its equal understanding and application it clarifies the meaning of the legal prescription to all interested parties. The first part of this activity – clarification – characterizes the epistemological nature of interpretation aimed at the knowledge of law. Understanding acts as a thought process taking place in the mind of the subject applying the rule of law. The explanation is the second part of a unified process of interpretation the law addressed to other parties to a relationship. It is carried out by the competent authorities and persons in order to eliminate ambiguities in understanding the content of the norm and thus ensure its correct application to the circumstances for which it is aimed. Subjects of interpretation may be public authorities, officials, organizations, enterprises, institutions, individuals. The objects of interpretation are laws and regulations. Legal interpretation is an activity that from a practical point of view is connected with the completion of the regulation of life relations by law. Legal norms as a result of interpretation become ready for implementation, practical implementation. The presented scientific article examines the interpretations given by the highest judicial instance, which showed that in some cases they contain contradictions that violate the legal and technical rules. Examples of the interpretation of criminal court decisions of the Plenum of the Supreme Court of the Russian Federation are given, and author’s editions are proposed.

Abandoning Humanity? On Cultural Heritage and the Subject of International Law

A recent International Criminal Court decision on the destruction of cultural heritage in Timbuktu has sparked a debate that goes far beyond the concrete case. It touches upon the longstanding and crucial question of who is the subject of international law. This question has also become exigent in the only seemingly distinct debate around the crisis of the Anthropocene. In both these debates humanity is portrayed as an actor who has either created or destroyed a foundation of creation’s existence, one that now is recognized as having a value of its own. The article first probes analytically how the court’s verdict and the debate surrounding it may be understood as echoing a fundamental concern of our time. Bringing affect theory into play, it delineates in a second step a concept of vulnerability that makes it possible to decenter the idea of “humanity” in international law as well as in political thought. Rather than thinking in terms of ownership, we might prefer to address the topic by using the notions of belonging and longing for.

Commentaries on the International Criminal Court decision on Bangladesh and the Rohingya People

In this Issue we are excited to share with our readers four outstanding pieces that examine the ‘for’ and ‘against’ arguments on the recent International Criminal Court decision (September 2018) to investigate and prosecute crimes against humanity committed against the Rohingya people, who fled Myanmar into Bangladesh in late August 2017. We have published two commentaries that are in favour of the ICC decision: Victoria Colvin and Phil Orchard, University of Wollongong; Melinda Rankin, University of Queensland, and Kip Hale, Atrocity Crimes Investigations. We have also published two commentaries that adopt a (nuanced) against position on the ICC decision: Douglas Guilfoyle, UNSW Canberra at Australian Defence Force Academy (ADFA); Morten Pedersen, UNSW ADFA. These are outstanding pieces. We hope you enjoy reading them.

The Role Played by External Case Law in Promoting the Legitimacy of International Criminal Court Decisions

International criminal courts and tribunals (ICTs) often refer to jurisprudence from other ICTs when reaching a decision. This can help increase the legitimacy of their decision-making. This article focuses on the International Criminal Court (ICC) and examines when the ICC may refer to the decisions from other courts; when it in fact does so; when it has chosen to deviate from the decisions of other ICTs; and how this has affected the legitimacy of its decisions. The ICC has generally been mindful in its approach towards referring to jurisprudence from other ICTs, but has not been afraid to deviate from it on occasion in decisions concerning both substantive and procedural law. The article argues that where possible the Court should interpret the law in line with other ICTs’ decisions. This will help increase the legitimacy both of the Court’s own decisions and the field of ICL as a whole.

A Hyper-Royalist Parapolitics in Thailand

In the years since the 19 September 2006 coup, there has been a resurgence in prosecutions under Article 112 of the Thai Criminal Code, the measure which criminalizes and provides for harsh penalties for alleged lese majeste. One of the striking features of recent court decisions in Article 112 cases is that judges have gone beyond the boundaries of law to justify the convictions, and developed a jurisprudence that centres on monarchical heritage. Right-wing citizens have taken similar ideas as a justification to engage in violence against those with whom they disagree. This article develops a framework—hyper-royalist parapolitics—to examine an attack on law activists, a Criminal Court decision, and a Constitutional Court comment which represent this new political form, and to query the broader transformations they signal in the Thai polity. The article concludes with reflections on the framework in light of the 22 May 2014 coup.

Polityczne i prawne uwarunkowania uchwalenia ustawy o Sądzie Najwyższym w 1962 r.

After WW II, the Supreme Court functioned pursuant to the Law on the Organization of General Jurisdiction Courts of 1928 as a court of cassation (kasacyjny) – and after the 1949–1950 reform of the court system – as an appellate (rewizyjny) court. As a consequence of the politically-motivated appointments prevailing from the mid-1940s to mid-50s, the justices of the interwar period were replaced by new judges at the disposition of political power and executive authorities during the Stalinist period. The thaw in relations of October 1956 led to a temporary alteration of the Supreme Court’s functioning and the approach developed in judicial decisions. By 1958, the direction adopted in the judicial decisions of criminal courts had already begun to raise serious doubts among the Polish United Workers’ Party (PZPR). This fact spurred legislative work, which was completed with the enactment of the Act of 16 February 1962 on the Supreme Court. The Act was the first separate piece of legislation concerning the Supreme Court in the history of the People’s Republic of Poland (PRL). It conformed with the 1952 Constitution of the PRL in recognizing the position of the Supreme Court as the supreme judicial authority exercising supervision over all other courts of justice as far as judicial decisions are concerned, and in establishing the principle that Supreme Court justices be elected for a 5-year term. The systemic changes of the law necessitated the election of the entire bench of the Supreme Court, which allowed for a verification of the existing justices and the election of those who guaranteed a new approach to criminal law that accorded with the expectations of the party.

The Legality of the International Criminal Court's Decision against Omar Al-Bashir of Sudan

The right of states to freely practice their independence is basic traditional right under international law. It had long been thought that this right could not be practiced fully if heads of state, foreign ministers, and diplomatic agents feared investigation, indictment, and possible arrest in countries other than their own, and for this reason international law gave them the protection of immunity. But in recent years, cases against persons once thought to be immune have been submitted to and accepted by numerous local and international courts. This article will focus on the international realm, and specifically on the arrest warrant issued by the International Criminal Court (ICC) against Sudanese President Omar Al-Bashir in March 2009. This warrant continues to be subject of much controversy, for while Americans and Europeans insist on the legality of the warrant, many Muslim and Arab countries are criticizing it, especially since Sudan was not member of the Rome statute to begin with. As for Sudan itself, it has repeatedly challenged the court's right to charge its sitting president and has refused to acknowledge its jurisdiction over the case, declaring the decision grave breach of Sudan's sovereignty. This article will argue otherwise, showing that the warrant is legal under international law because the case was referred to the ICC by UN security council resolution under chapter VII, making the nonmembership of Sudan irrelevant; the alleged acts on which the charges against Al-Bashir are based constitute international crimes; and the inability or unwillingness of Sudan to investigate the ICC charges in its domestic courts consolidate the jurisdiction of the ICC over the case.THE RIGHT OF IMMUNITYImmunities are procedural rules that arose out of comity and customary international law to act as barrier to the adjudication of disputes, whether at the jurisdictional stage to prevent the court from hearing the case, or at the enforcement stage.1 International law has granted states this privilege to prevent the courts of forum state from passing judgement against an action of foreign state, both to soothe tensions and to enhance interstate relations and benefit, collectively, the community of nations.There are various theories that seek to explain the emergence and nature of state immunity. The representative character theory explains that state immunity arose from the personal sovereignty of the early European monarchs, for in many ways, the state itself was viewed as the personal property of its ruler, and thus it was his personal attributes that gave his state the quality of being sovereign.2 Another theory talks about the rise of state immunity to protect the sovereignty of the state itself, and thus presents it as fundamental right of state under international law. Yet third theory disagrees with this explanation, arguing that immunity is not right but an exception to the jurisdiction of the forum state, since a foreign state cannot be entitled to immunity without the prior existence of jurisdictional anchor to establish the court's competence.3Despite some degree of overlap, state immunity is not synonymous with immunities available to heads of states. A person may have his case dismissed if he files suit against the government of Chue because of lack of jurisdiction, but the same court might hear his case if it is aimed at its head of state and he is accused of serious human rights violation. This article seeks to focus on immunities granted to heads of states. It is not an easy discussion, due to the controversy in the literature with regard to its extent. Two doctrines appear in this context: the and the restrictive doctrines of sovereign immunity.The doctrine of absolute immunity was popular in the i8th and 19th centuries, giving head of state total immunity from law suits in other states, regardless of the nature or purpose of his acts. …

Prosecutor v. Thomas Lubanga Dyilo. Décision sur la confirmation des charges. Case No. ICC-01/04-01/06

International Criminal Court decision confirming war crimes charges for conscripting, enlisting, and using child soldiers.

L'effectivité des décisions de la justice pénale

To measure how effective the decisions of criminal courts really are, the author identifies the various factors interfering with the application of judicial decisions. Are the decisions of foreign jurisdictions binding before the Canadian authorities for extradition purposes ? Moreover, within Canada, what factors might affect the execution of a jail sentence, a fine, or even the suspension of a driving permit ? It will be seen that some of the factors identified interfere only marginally with the decisions while others contribute significantly in modifying the decisions as pronounced by the criminal courts. The conclusion of this paper is that the effectiveness of criminal court decisions is quite relative. It follows that the imposition of a penalty upon those who fail to obey a civil judgment should not be considered as a means of ensuring the effectiveness of that judgment.

Ethnic Minorities, Crime, and Criminal Justice in Germany

Research on ethnic minorities' involvement in crime is highly sensitive in Germany. Most research is based on official statistics, which indicate that foreign minorities' crime involvement is higher than that of the German population, even when crime data are adjusted to take account of demographic differences (age, sex, etc.) and even if immigration offenses and nonresident foreigners' crime are disregarded. First-generation guest workers have had crime rates comparable to those of Germans. The second and third generations display sharp upward crime trends. Processing of foreign offenders by the justice system has received little attention. Existing research does not confirm hypotheses of discriminatory treatment in police and criminal court decision making, including in sentencing. The proportion of foreigners in the prison population has increased substantially, reaching 25 percent in 1994. In youth correctional facilities, the minority proportion has increased to 50 percent. In pretrial detention the share of foreigners is as high as two-thirds in many places.

Neither Conflict Nor Labeling Nor Paternalism Will Suffice: Intersections of Race, Ethnicity, Gender, and Family in Criminal Court Decisions

This statistical study examines sentencing and pretrial release decisions for black, white, and Hispanic men and women, using data from New York City and Seattle criminal courts. Hypotheses are tested on the interactive influences of gender and family, and the mitigating effects of family for men and women of different race and ethnic groups. The results show that gender differences in court outcomes can be explained by defendants' familial circumstances, and that such differences are greatest for black defendants. Arguing that neither the male-centered conflict or labeling perspectives, nor the paternalism thesis capture the logic of court decision making, I call for more research on how familial-based justice practices are classed, raced, and gendered.

Mexican-American Women in the Social Sciences

The treatment of minority women in social science literature has long reflected the surrounding society's sexual and racial differentiation. Dorothy Smith's contention that women have been "outside the frame" of social science investigation is especially true of minority women.' As a consequence of erroneous assumptions and limited empirical research, Mexican-American women have been particularly misconstrued. The image of Chicanas in the social sciences has been narrow and biased. They have been portrayed as long-suffering mothers who are subject to the brutality of insecure husbands and whose only function is to produce children-as women who themselves are childlike, simple, and completely dependent on fathers, brothers, and husbands. Machismo and its counterpart of female submissiveness are assumed to be rooted in a distinctive cultural heritage.2