Criminal Law Framework Research Articles

Конституционный Суд Российской Федерации о полномочиях районного суда по уголовным делам частного обвинения: можно ли ставить точку в правовом регулировании данного вопроса?

Ruling of the Constitutional Court of the Russian Federation No. 13-П of March 28, 2024, clarified the issue of authorities of a district court in privately prosecuted criminal cases on a crime stipulated by Part 1 of Art. 161.1 of the Criminal Code of the Russian Federation. Taking into account that criminal procedure provisions cannot be developed beyond the framework of criminal procedure law, there is a need for changes to the Criminal Procedure Code of the Russian Federation aimed at approval of respective legal instructions and bringing the external form of criminal procedure law in line with its internal form.

Between Politics and Justice: International Criminal Law in Hungary

Abstract Hungary has had an intense engagement with international criminal justice. During communism and democracy alike, the normative framework and language of international criminal law was used to delegitimise the political opponent. This article aims to describe the way international criminal law was repeatedly instrumentalized to not simply serve as a genuine tool for justice but also as a potent political pawn through presenting the use of international criminal law in four different time periods: (1) during the post-World War ii war crimes trials at the People’s Tribunals; (2) the adoption of universal jurisdiction during the communist era as a tool of Cold War status competition; (3) in the 1990s, as an instrument of transitional justice; and finally, (4) in the post-2010s, as a tool for memory politics and anti-migration propaganda.

Environmental Damage in Ukraine as Environmental War Crime under the Rome Statute

Abstract The Russian invasion of Ukraine has caused irreparable damage to the natural environment. Despite being a topic of wide discussion, an analysis of whether the attacks causing such damage can be tried at the International Criminal Court (ICC) as an environmental war crime (EWC) under Article 8(2)(b)(iv) of the Rome Statute remained grossly inadequate. Even after the Kakhovka Dam destruction in June 2023, the most significant incident of environmental damage since the war started, no comprehensive analysis of the incident from an EWC perspective was made. The present article fills this void and thoroughly analyses whether the dam breach can qualify as an EWC under Article 8(2)(b)(iv), the most ecocentric provision in the entire international criminal law (ICL) framework. After providing an overview of the environmental damage caused and a synopsis of the EWC, this article applies the EWC provision to the incident and discusses the prospects and the challenges of characterizing it as an EWC. This article suggests that Russia’s intentional attack on the dam can be a potential case of EWC under Article 8(2)(b)(iv) as it caused ‘widespread, long-term and severe’ environmental damage in contrast to little military advantage — which was arguably known to Russia. At the same time, however, the article identifies some challenges that the ICC Prosecutor may face in proving the case, like determining the ‘attack’ question, satisfying the ‘long-term’ damage criterion, and establishing the mental elements, particularly the ‘knowledge’ element. It also briefly discusses the broader implications of the assessment and the identified challenges. The article concludes that the challenges can be surmounted and, in any case, bringing such a charge will offer the ICC an avenue to clarify the existing uncertainties surrounding Article 8(2)(b)(iv), which will ensure legal certainty and help ensuring environmental justice through the ICL regime in future.

Dispute of the Illegality of Marital Rape under Chinese Law

Marital rape is a prevalent form of sexual violence that exists worldwide. Due to its occurrence within the context of marriage, it possesses certain nuances, leading to ongoing debates on whether it should be considered a crime or not. In comparative law, many countries have already included marital rape within their legal systems for assessment and evaluation. However, China still lacks legislation addressing this issue, resulting in inconsistent verdicts for similar cases. In light of the development history of marital rape in comparative law, the current focus of the academic community in China revolves around the points of contention and the study of typical cases. This article posits that although entering into a marital relationship confers certain status upon women, the protection of women's sexual autonomy remains indispensable, and the sexual autonomy of married women should still be considered within the framework of criminal law. Nevertheless, given the distinctive characteristics of the marital relationship, it is necessary to devise new regulations for the recognition and application of marital rape.

Handling Deportants and Returnees of Former Foreign Terrorist Fighter: International and Domestic Law Perspectives

The defeat of the Islamic State of Iraq and Syria (ISIS) after the last war in Baghouz, Syria, by the Syrian Democratic Forces (SDF) in 2019 was not the end of the problem of global terrorism today. ISIS, which has sympathizers from different countries, currently leaves the problem of handling its deportees and returnees, including in Indonesia. This paper intends to examine the problems of deportants and returnees of former Foreign Terrorist Fighters (FTF) in Indonesia normatively, focusing on the political aspects of law, positive criminal law, and international criminal law. Based on the type of normative research, legislative, comparative, and conceptual approaches, this paper argues that the handling of deportants and returnees of former foreign terrorist fighters in Indonesia within the framework of positive criminal law still seems to be dominated by a paradigm of legal thinking that leans on aspects of restraint and retribution rather than prioritizing aspects of reformation and deterrence. In addition, positive criminal law instruments are still not sufficiently accommodating in supporting law enforcement in handling deportants and returnees of former FTFs in Indonesia.

The issue of human rights protection in international and Vietnamese criminal law

Human rights, regarded as fundamental and inalienable entitlements, are delineated and safeguarded through a combination of international legal frameworks and national laws. In this article, we conduct an in-depth analysis of the mechanisms for preserving human rights within both the international legal context and the specific framework of Vietnamese criminal law. We also put forth a set of recommendations designed to augment the effectiveness of human rights protection. In practice, the preservation and realization of human rights can be a complex challenge, and there are instances where these rights may be transgressed within the course of judicial proceedings. To tackle this problem, it is imperative that the provisions pertaining to human rights in both international and Vietnamese criminal law are given the requisite attention and adherence. Moreover, to ensure the comprehensive and effective implementation of human rights protection, it is imperative to establish a clear and robust legal framework. Striking the delicate balance between justice and human rights protection remains an ongoing endeavor, demanding continuous vigilance and adaptability in our legal systems. Ultimately, the harmonious coexistence of legal processes and human rights preservation is essential to fostering a just and equitable society.

2023년 형법 중요 판례 평석

In 2023, there were fewer en banc decisions compared to 2022. While there were 7 en banc decisions related to criminal law in 2022, with 6 focusing on criminal law issues, the number decreased to 3 in 2023. However, the significance of this change should not be underestimated. Among these cases, a notable en banc decision redefined the meaning of assault and intimidation in the context of forcible molestation, representing an effort to align the legal decisions with contemporary societal trends.
 Additionally, there was a noticeable increase in en banc decisions related to stalking crimes and special criminal laws, shedding light on issues and challenges prevalent in these areas beyond basic criminal law. In the context of criminal law, there were numerous significant rulings pertaining to the co-perpetrators of negligent crimes and infringements on self-defense, specifically addressing the contemporaneity of self-defense (meaning not determined solely based on the formal completion of the criminal act but extending until the situation of harm to one's own or others' legal interests has ceased).
 In 2023, in terms of the legitimate exercise of the state's right to punish, there were many efforts to modify en banc decisions that extended beyond the literal interpretation of the law or to provide clarification on the meaning of legal provisions. While the ideal resolution for legal shortcomings would be through legislative measures, the impracticality of enacting legislation to address every situation necessitates the application of the law through judges' reasonable interpretation. Therefore, the positive aspect lies in not rendering outcome-oriented judgments based on the principle of proportionality. However, it is necessary to consider criticism that calls for clearer and more comprehensible improvements to the Supreme Court's en banc decisions, which currently restrict legal principles through their power of authoritative interpretation.
 Furthermore, it is noteworthy that many elements, which are not explicitly stipulated in the basic criminal law but are present in various special criminal laws, can be evaluated as serious crimes. To enhance the effectiveness of crime regulation and the general preventive impact, systematic legislative adjustments within the criminal law framework for these crime elements are essential.

The concept of the principles of law in the field of criminal law

The article is dedicated to analyzing the role and position of legal principles within the framework of criminal law. The author emphasizes the importance of researching the principles of law both from a theoretical perspective - aiming to understand the content and directions of the development of criminal law as a branch of law, and from a practical perspective, manifested during the direct application of measures of criminal legal influence on certain subjects of criminal legal relations. Legal principles express the essence and social purpose of law, so it is difficult to overestimate their significance. They reflect the fundamental values and ideals of society at a particular stage of its development. As these values and ideals change, the principles of law also evolve. The relevance of the research topic is driven by the lack of a unified approach among scholars in defining the principles of criminal law, as well as insufficient attention to them from the legislator. The author's goal is to formulate their own definition of the concept of criminal law principles. To achieve this goal, the author examines the fundamental approaches taken by various scholars in defining legal principles as a whole and specifically those in context of criminal law. Emphasizing the diversity of such approaches, the author focuses on defining legal principles within the framework of broad and narrow types of legal understanding. The article highlights key features of criminal law principles that correspond to the specific characteristics of criminal law as a legal field. Trends of incorporating legal principles into legal norms are also analyzed. Furthermore, the article separately explores the issue of incorporating criminal law principles in legal norms. The article is intended for further research in the given field, that hold prospects in the specified thematic area.

Children Born of War: The Recognition of Children Born of War as Victims in the Ongwen Case

Abstract This article explores the challenges associated with recognizing children born of war as victims within the framework of international criminal law. Focusing on the case of Dominic Ongwen, a former child soldier and senior commander of the Lord’s Resistance Army (lra), it analyses how the criteria established in the definition of victim in the Rules of Procedure and Evidence of the International Criminal Court have been applied to children born of war. This analysis brings to the fore conceptual challenges to the recognition of children born of war as victims and highlights the risks that the binary victim-perpetrator that characterises the international criminal narrative presents to a comprehensive understanding of the experiences and needs of these children.

CRITICAL REVIEW OF THE LEGAL REGULATION OF MICROTRANSACTION ‘GACHA’

Microtransactions are a type of small-scale financial transaction conducted online. With the advent of the internet, trading transactions no longer require direct interaction between the seller and the buyer, as everything is done through online platforms. One form of microtransaction found in games is gacha. The issue of microtransaction gacha arises due to their inherent gambling elements. However, there is a loophole in current criminal law in Indonesia where no specific regulation governs this issue. This research aims to compare the differences in the legal regulation of microtransaction gacha between national criminal law and Islamic criminal law. The research methodology employed is a comparative method with a literature review approach. The findings of this research indicate that there is no specific regulation in national criminal law that categorizes microtransaction gacha as prohibited acts under the law, whereas, in Islamic criminal law, microtransaction gacha fulfill the elements of gambling and are therefore considered haram (forbidden). Therefore it is important to establish a framework of criminal law that regulates gacha systems to minimize the impacts caused by microtransaction gacha.

Legal Responsibility for Environmental Damage Caused by Russian and Ukrainan Wars: International Humanitarian and Criminal Law Perspectives

Not only inflicted human casualities, the war between Russia and Ukraine, also injured the environment. Russia's discriminating attacks on essential objects such as gas, energy, oil, and mining infrastructure become the most significant root cause. UNEP affirmed that the attacks resulted in widespread water, soil and air pollution, as well as a significant deterioration in Ukraine's ecosystem stability. Accordingly, the study intends to examine the framework of international humanitarian and criminal law, specifically in terms of enviromental protection, as well as to analyze accountability before the International Criminal Court. The study employed doctrinal method involving a statutory and conceptual approach. In this case, relevant legal instruments such as the 1949 Geneva Conventions and their Additional Protocols, as well as the Rome Statute, were being examined. Furthermore, the study is also certified by the evolution of legal doctrines in books, jounals, and other credible sources. According to the findings, humanitarian law, which is underpinned by customary international law, protects the environment slightly better than international criminal law. In short, the state bears multiple duties for environmental damage caused by the outbreak of war. Individual accountability before the ICC, on the other hand, is being overlooked. It is due to the Rome Statute's flaws, which include vagueness in the formulation of the articles, stringent standards for proof of environmental damage, and bias in proving mens rea. As a result, improvements in the enforcement of international crimes (war crimes and related types) that cause environmental damage are urgently required

The Forensics in Criminal Proceedings: From Theory to Practice or How to Prevent Limitations

In the beginning of the current century, a new paradigm of assessing the rules in criminal proceedings has been emphasized, more specifically in those criminal cases in which a new trend in applying methodology of criminal sciences is arisen. There is no doubt that the new concept of preventing limitations in assessing the means of the forensics which are directly involved in the process of delivering the criminal decisions has already been accustomed. The current paper focuses on the new concepts of the forensics applicable in criminal proceedings, in such a manner not to exceed the legal framework of criminal procedure law, on the one hand, and to prevent any limitations which should be imposed, on the other hand. In this context, it has been observed that the methodology of investigation through means and instruments of the forensics has reached new dimensions, unavoidable ones. The culture of the forensics is, at the moment, of high interest for the judicial activity of criminal proceedings and, for this reason, a new approach in this matter is expected to be expressed by the legal doctrine in criminal matters.

The Problems of E-Ticketing From Legal Perpective

The problems faced in the development of an electronic system use CCTV to carrying out the function of monitoring and enforcing traffic were : (1) Traffic and legal compliance awareness in paying fines. (2) Public considers about failures in building a good law enforcement structure. (3) Because people who violate it feel afraid to pay STNK, it potyentialy reduction in non-tax state income through the e-ticket policy. (4) misdirect in sent ticket letters, because many vehicles are purchased by people who administratively still with old ownwer. This research uses nomative legal research methods. This study discusses about the urgency legal certainty of e-tickets, including certainty about the violators, regarding to amount and what kind of violaion which has been included on the blue slip. In terms of justice, traffic violators who commit the same offense will receive the same penalty or fine without discrimination, E-tickets are also a form of transparency and professionalism of police officers in law enforcement, to prevent issues of illegal levies (Pungli) by unscrupulous individuals. Characteristics of e-ticket regulations in criminal law framework more focuses on fines than the concept of non-compliance in driving. Articles contained in Law no. 22 of 2009 concerning Road Traffic and Transportation has not been implemented in a real way especially sanctions for revoking driving licenses

Международная научно-практическая конференция «Проблемы правового регулирования применения различных видов наказаний: уголовно-правовой, криминологический и уголовно-исполнительный аспекты» (Самарский юридический институт ФСИН России, 13 января 2023 года)

On January 3, 2023, the Department of State and Legal Disciplines of the Samara Law Institute of the Federal Penitentiary Service of Russia together with the Departments of Criminal and Penal Enforcement Law, Regime and Protection in the Penal System of the Samara Law Institute of the Federal Penitentiary Service of Russia held an international scientific and practical conference «Problems of legal regulation of the use of various types of punishments: criminal law, Criminological and Criminal-executive aspects». A feature of the scientific event was a wide list of discussed theoretical and applied intersectoral problems arising in the application of various types of punishments in the Russian Federation within the framework of criminal law, criminological and penal aspects.

The problem of types of violence in the criminal law of Ukraine.

The problems of violence and its types in domestic legal science do not lose their relevance, especially today, when the full-scale invasion of Russia on the territory of Ukraine has been going on for more than a year, accompanied by numerous acts of violence of various types. In addition, Russia uses sexual violence as a weapon of war. During the war, the level of particularly violent crime increases significantly. Today’s violence is very different from what prevailed in the last century. One of the reasons for the transformation of violence is globalization as one of the main determinants of the emergence of new types of criminal violence. At the same time, a clear differentiation of types of violence has not yet been developed in criminal law science. In the latest edition of the project of the Criminal Code of Ukraine (January 30, 2023), which was developed by the working group on the development of criminal law of Ukraine, it is proposed to fix the definition of the concept of «violence» in the following wording: «violence is physical influence on another person, in particular by striking, beating, using acoustic, light, thermal or chemical factor or restriction of her personal freedom». The working group, defining the concepts of «violence» and «threat», includes in the content of these concepts what is currently covered by two main types of violence, namely physical and mental. This approach has been criticized, since it is impossible to mix such a type of violence as mental with the latter type – a threat. It is well known that violence is a complex phenomenon of social reality, which has a dualistic nature and various external manifestations in the form of acts of external human behavior. Violence has two main types, namely physical and mental violence. All other types of violence distinguished in the theory of criminal law of Ukraine and criminology are covered by one of them. It is also possible to propose the following classification criteria for distinguishing types of violence, which are not exhaustive. Depending on the addressee: direct violence, in which violent actions harm only the victim, and indirect violence, when harm is caused to people close to the victim in order to influence the latter’s behavior. Depending on the method of distribution, it is advisable to distinguish between offline violence, which is used «faceto-face», and online violence, which can take place using the capabilities of the Internet. Until February 24, 2022, scholars considered conflict-related sexual and gender-based violence an international crime or a war crime. Obviously, with the beginning of a full-scale invasion, the problem of this type of violence requires a separate scientific study within the framework of criminal and international law. Key words: violence, criminal liability, intent, physical violence, mental violence, psychological influence, coercion, war crime, international crime, gender-based violence, sexual violence, financial violence, illegal behavior, violent crime, victim.

An Examination of the Boundaries of Legitimate Defense within the Framework of Chinese Criminal Law

In the realm of legislation, China's definition of legitimate defense is expansive; yet, in the context of judicial application, the legitimate defense framework has been significantly curtailed, resembling what can be described as a zombie clause. The legislative requirements on the limitation of defense have not significantly enhanced the comprehension of the temporal aspect and the criteria for assessing excessive defense. The determination of whether an act of legitimate defense surpasses the defined standards and other related matters is flawed. In order to address the aforementioned issues, it is imperative to acquire a comprehensive understanding of the juxtaposition between noticeably exceeds the necessary limits and causes great harm. It is crucial to establish that the criterion of “noticeably exceeds the necessary limits” holds significant importance in determining the necessity and proportionality of defensive limitations. It is imperative to establish that the criterion for the necessity and proportionality of the limit of defense necessitates a clear demonstration of exceeding the limit that is evidently beyond what is necessary. Furthermore, the assessment should be grounded in situational theories, which encompass both the act of defense and its outcome. Subsequently, it is vital to further define the criteria used to evaluate the parameters of the noticeably exceeds and necessary limits categories.

Implementing Chemical Castration Punishment: A Perspective on Criminal Law and Human Rights

This study aims to understand and analyze how chemical castration aligns with Indonesia’s criminal law framework and human rights principles. This study uses normative legal research methods with the statute and conceptual approaches. The collected legal material is then qualitatively analyzed to describe the problem and answer the study objectives. The results show that chemical castration punishment, as regulated in Government Regulation in Lieu of Law Number 1 of 2016 and Government Regulation Number 70 of 2020, was established as a preventive measure against child sexual abuse. However, the relevance of this punishment must be viewed from two primary perspectives: criminal law and human rights. From the criminal law perspective, chemical castration serves the functions of retribution, rehabilitation, and deterrence, working synergistically to offer optimal protection for children from sexual violence. Meanwhile, from a human rights standpoint, there’s a critical need to ensure child protection without sidelining the human rights principles outlined in the UDHR, the 1945 Constitution, and Law Number 39 of 1999. Therefore, several recommendations regarding a comprehensive evaluation of the implementation of chemical castration punishment can be proposed to the Government. First, even though this policy aims to prevent child sexual abuse, an in-depth study from the criminal law viewpoint must be reinforced to ensure the effectiveness of the punishment’s three main functions: retribution, rehabilitation, and deterrence. Secondly, a review from the human rights perspective is equally essential. This policy must be ensured to align with the human rights principles embedded in the UDHR, the 1945 Constitution, and Law Number 39 of 1999. As a result, concrete steps such as amendments, law enforcement training, and public education are vital to optimize the chemical castration punishment in safeguarding children without neglecting human rights.

Вихідні поняття для дослідження віктимологічний апарат внутрішньосімейного насильства

Crime, as a manifestation of illegal encroachments, is one of the urgent problems of our state, and counteracting it is an important area of activity of the state in general, and law enforcement agencies in particular. At all times, mercenary-violent crime was perceived as a serious threat to the highest social values, which led to public demand for effective forms of counteraction and protection of the interests of people, society and the state from mercenary violent encroachments, reducing the risk of falling victim to these crimes. The concept of "violence" is currently widely used not only in everyday life, but is also included in the terminological apparatus of various sciences. Philosophy, psychology, criminal law, criminology, forensics and other sciences approach the solution of the problem of defining the concept of "violence" independently, without using already existing definitions in related fields. The definition of violence may vary depending on the purposes of its use. This is due to the fact that the violence itself has a rather "wide format". It is a social and legal phenomenon, not limited by the framework of criminal law. In other words, violence can include both criminal offenses and administrative offenses, as well as other forms of behavior that are not formally delicts, but contradict the generally accepted and approved norms of behavior, forming prerequisites for violent crime as such. In this regard, it is necessary to specify that in the context of the real study, only the criminal law concept of violence will be used, evaluated from the standpoint of the criminal law as an offense and, accordingly, possessing all its features. Such a concept is necessary for clearly defining the subject of research, operating on it to distinguish related problems in the process of studying empirical material.

ГРОМАДСЬКИЙ ВПЛИВ, ЯК ЗАСІБ ГРОМАДСЬКОГО КОНТРОЛЮ ЗА ДОТРИМАННЯМ ПРАВ ЗАСУДЖЕНИХ ПІД ЧАС ВИКОНАННЯ КРИМІНАЛЬНИХ ПОКАРАНЬ: ОКРЕМІ ЗАКОНОДАВЧІ ПРОБЛЕМИ

The article examines certain legislative problems regarding the establishment and interpretation of public influence as a means of public control over the observance of the rights of convicts during the execution of criminal sentences. On the basis of certain articles of the Criminal and Executive Code of Ukraine, in particular part 3 of Art. 6 and Part 2 of Art. 25 of the Criminal and Executive Code of Ukraine analyzes the regulation of public control over the activities of bodies and institutions that carry out criminal punishments. It has been established that among the problematic issues related to public control are issues of theoretical and legislative interpretation of public influence as one of the means of public control over the observance of the rights of convicts during execution of criminal punishments. Attention is drawn to the fact that the current Criminal-Executive Code of Ukraine does not fix the definition of public influence on the convicted person, only refers to the need for its application, in particular indirectly indicates some forms of this work in the Criminal-Executive Code of Ukraine. This situation allows subjective and broader interpretation of this remedy, which leads to violations in law enforcement practice. In addition, the Criminal Executive Code of Ukraine indicates the application of the entire set of correctional means only in relation to punishment in the form of deprivation of liberty. It has been proven that public influence is one of the most effective methods, which, unfortunately, is not given due attention. The participation of public and religious organizations (public influence) is an integral part of the process of resocialization of convicts and key elements of the practical component of the implementation of the principles of democracy within the framework of criminal law. The imperfection of national legislation in the field of public control, in particular public influence, negatively affects the development of a democratic, social and legal state. For the full and comprehensive implementation of the institution of public influence in practical activities, as well as the avoidance of double interpretation, it is necessary to establish at the legislative level, in the norms of criminal law, the definition of the institution of public influence on convicts, disclosure of its content, conditions of application to each specific type of punishment, which will contribute to justified and timely application of this remedy, including when executing punishments that are not related to the isolation of the convicted person from society.

Krivično delo dogovaranje ishoda takmičenja sa osvrtom na Konvenciju Saveta Evrope o manipulaciji sportskim rezultatima

Fixing the outcome of sports competitions is one of the biggest threats to the integrity of sports. Sport as a social phenomenon has its own individual and social dimension. However, the degree of benefit for the individual and society can be neutralized by phenomena that threaten the integrity of sports competitions. The goal of this research is to provide an answer to the question of whether criminal law, as a branch of law characterized by the ultima ratio character, should respond to the appearance of fixing the outcome of sports competitions, as well as what type of outcome fixing should be responded to within the framework of criminal law. This research also includes an analysis of certain provisions of the Council of Europe Convention on the manipulation of sports results in order to see the potential scope of the Convention in terms of influence on the criminal legislation of countries that ratify the convention. In the last part of the paper, the criminal offense of fixing the outcome of the competition from Art. 208a. Criminal Code of the Republic of Serbia.