Criminal Law Scholarship Research Articles

САМОВІЛЬНЕ ЗАЛИШЕННЯ ВІЙСЬКОВОЇ ЧАСТИНИ АБО МІСЦЯ СЛУЖБИ: ПРОБЛЕМНІ АСПЕКТИ КВАЛІФІКАЦІЇ

The authors of the article emphasize that, given the contemporary conditions in Ukraine necessitating legislative changes, particularly those concerning the reinforcement of criminal liability for offenses committed during a state of war, it is also crucial to undertake a scholarly analysis of legislative novelties. This analysis can substantiate their feasibility or, conversely, identify legal issues they may engender, such as conflicts, gaps, competition between legal norms, and so forth. It is noted that military criminal offenses are outlined in Section XIX of the Special Part of the Criminal Code of Ukraine, which contains the definition of military criminal offenses. The societal danger of these offenses is justified by the threat they pose to the effectiveness of the Armed Forces of Ukraine and other military formations created in accordance with Ukrainian laws, which are a guarantee of maintaining peace, national security, and territorial integrity. The article underscores the importance of both a properly organized system of law enforcement agencies and a system of legal norms establishing grounds for holding guilty individuals accountable. The authors focus on studying the legislative provisions regarding desertion in the Criminal Code of Ukraine and the Code of Ukraine on Administrative Offenses. From the analysis of judicial practice, it is evident that this type of military offense is the most widespread within the ranks of the Armed Forces of Ukraine. The relevance of the article lies in the necessity to analyze the amendments made to the relevant legislative acts. For example, new features of administrative and criminal liability for AWOL. Based on the research of criminal law scholars and lawyers, several problems related to the qualification of this type of military offense are presented. Drawing from the analysis of the outlined qualification problems of AWOL under Ukrainian law, the article discusses methods to overcome them. Key words: military offenses, criminal liability, Criminal Code of Ukraine, Armed Forces of Ukraine, military personnel, state of war.

Building An Abolition Movement for International Criminal Law?

Abstract International criminal law is a carceral system, which responds to mass atrocities by holding some individuals criminally responsible for these events and then, generally, imprisoning those individuals. I ask what alternative responses might be envisaged, and if we can build a carceral abolitionist movement for international criminal law. Such a movement would refuse imprisonment and policing as the main responses to mass atrocity, and instead would seek to understand the social causes and conditions that cause such mass atrocity, and also how (and why) criminal law has become the preeminent ‘legitimate hand of justice’. In this article, I attempt to bring into conversation two particular intellectual movements: the collective scholarship and praxis of domestic carceral abolition movements; and those critical scholars of international criminal law who have already set out some of the limits and possibilities of the field. I set out the structural conditions of international criminal law, particularly its ideological grounding in neoliberalism and its relationships to race, global capital and colonialism and imperialism, which result in a legal system that criminalizes some and exonerates others. I then particularly examine some tools that already exist for building an abolition movement for international criminal law. These include the defence of duress, transformative reparations and the role of defence lawyers. These tools are admittedly part of the carceral system, and therefore cannot be the key to an abolition movement for international criminal law. However, they may assist us in the short or medium term as we imagine and work towards a better world without the need for a carceral system of international criminal law that relies on police and prisons.

Peculiarities of consolidation of criminal penalties and the justice of the final sentence in the practice of Lithuanian courts

Scholars of criminal law have not considered the issue of consolidation of criminal penalties for some time, and it has been undeservedly forgotten. However, the method of consolidation of criminal penalties and the size of the final punishment are very important for the defendant. In addition, in judicial practice, there are often various problems related to the correct and appropriate summation of sentences. It is sometimes very easy to get lost in the labyrinths of sentence sizes, numbers and calculation of the last sentence. The article begins by presenting a negative example of judicial practice, when the lower court, ignoring the decision of the appeal court, decides to postpone the execution of the prison sentence after the sentence has been combined. Next, the author raises the question of why criminal law provides only the minimum amount of penalties to be added. Still, when putting together several sentences, adding at least the minimum part of the penalties is not mandatory. On the other hand, in the context of this problem, we can reasonably doubt whether, in cases where the offender commits several dozen or several hundred criminal acts, putting together the punishments and adding a minimum part of each punishment, the last punishment is not too severe. Finally, at the end of the article, the difficulties of putting together punishments are shown when punishments have to be shared by simultaneous application of Article 63 of the Criminal Code and Article 64 of the Criminal Code.

Analytical Examination of General Malice in Light of the Material Element of Crime

Criminal law scholars have assigned a chapter to the degrees of malice in their writings and have addressed several topics under it. What comes to mind from the expression "degrees" is the division of malice based on intensity and weakness. However, with a little reflection on the examples of criminal intent, it can be understood that criminal intent is essentially devoid of intensity and weakness. The question raised in this study is: what is meant by general criminal malice in criminal law? The author believes that general criminal malice in criminal law refers to the perpetrator's intent to commit the act. This research aims to identify general criminal intent and its position in the criminal liability of offenders and seeks to examine general intent as one of the elements of the material element of the crime. This research uses a descriptive-analytical method and relies on library tools, journals, and articles. In general, it can be acknowledged that general criminal intent or the intent to engage in criminal behavior is one of the fundamental and important characteristics of intentional crimes, and without it, the realization of intentional crime is negated. On the other hand, in some classifications, what is defined is not criminal intent but rather a weaker mental state than intent, which is included in the realm of criminal mistake, or for certain reasons, it has been classified under criminal intent.

Brief of Criminal Law Scholars as Amici Curiae in Support of Appellant Seeking Reversal, United States v. Carpenter (7th Cir.)

Brief of Criminal Law Scholars as Amici Curiae in Support of Appellant Seeking Reversal, United States v. Carpenter (7th Cir.)

THE CRIMINAL LAW ASSESSMENT OF EXTORTION IN THE LIGHT OF THE CSEMEGI CODE AND CONTEMPORARY JUDICIAL PRACTICE

In this essay I would like to introduce the process of the causes leading to the creation of the statutory offence of extortion, the examination of the created offence and the development of judicial practice at the time. For this purpose, I primarily drew on the documents prepared during the codification of the Csemegi Code, the ministerial explanatory memorandum of the Act, the works of the classics of Hungarian criminal law scholarship and court decisions. The extortion first appeared in the Csemegi Code, so prior to its entry into force only extortion-like offences had been regulated. The offence of extortion criminalisation and hence its inclusion in the list of property offences is linked to the Act V of 1878, which name is Csemegi Code. Chapter XXVII of the Special Part of the Csemegi Code is entitled Robbery and Extortion. The Article 350 of the Penal Code is included the basic case of extortion. While the Article 353 of the Csemegi Code is included the qualified cases of extortion. By presenting these in this essay I would like to introduce the specificities of regulation and explain in detail the similarities and differences between robbery and extortion.

Holocaust Denial as Memory Criminal Law Seen Through the Nordic Lenses


 
 
 Dealing with historical matters by means of law has become increasingly common. The matters, such as the Holocaust, that have merited the attention of legislatures are, however, exceptional. The painful memory of the horrible events has required a profound rethinking of the basic premises of political and legal life in Europe.
 When criminal law is being used to protect the memory of those facts and of the victims of the offences, we enter a level of highly symbolical legislation. In Continental Europe, the discussions concerning criminalisation of Holocaust denial emerged in the 1970’s, and in the 1990’s criminalising was already in full swing.
 The Nordic countries have been slow in joining such developments. In this paper we will try to bring the Nordic countries on this map by introducing some of these discussions to the Nordic scholarly audience, but also by reporting to the international scholarly community about some Nordic and particularly Finnish aspects of those subject issues. It is time for Nordic criminal law scholars to join these debates and to bring in viewpoints on the basis of Nordic criminal law and theorising. This article aims at contributing to such a discussion.
 
 

Koncept kontradiktornosti v trestním řízení

The article deals with the issue of adversarialism in relation to Czech criminal proceedings. Although it is a frequently mentioned aspect of the criminal process, adversarialism has not yet been established in Czech criminal law scholarship in the broader professional discourse. Legal practice also treats this concept rather restrainedly and selects certain partial aspects of this problem. In the Czech environment, therefore, one cannot yet speak of a doctrine of adversarialism. It is questionable whether the new Criminal Procedure Code, if adopted, could change this, since it explicitly mentions adversarialism. The author is of the opinion that adversarialism is an immanent part of every criminal process, especially criminal proceedings before the court. He considers adversarialism to be a principle which he elaborates in a broader context than is usually stated. He sees the essence of adversarialism in the legitimate clash of allegations and legal opinions, not merely in the right to be informed of the substance of oneʼs accusation and the right to comment on such an accusation. He considers the audiatur et altera pars rule to be the very minimum and unbreakable guarantee of an adversarial finding of law.

What Counts as Progress in Criminal Law Scholarship?

The article discusses what should be considered as ‘progress’ in criminal law scholarship, as a legal scholarly discipline. What is considered progress depends on one’s ideas about the aim(s) of a scholarly discipline and how it should develop to better achieve that aim. Criminal law scholarship is, for its part, characterized by its study of positive criminal law from a knowledge point of view, one that puts criminal law scholarship in close contact with the philosophy of criminal law. At the same time, positive criminal law must be subjected to this perspective. As such, while criminal law scholarship may progress in many ways, the article claims particular importance to what is called ‘theoretical integration’. This refers to the operation of bringing aspects of positive law into the knowledge perspective of criminal law scholarship, to subject it to study. The article exemplifies the value of doing so by three works from contemporary criminal law scholarship.

Accessory After the Fact at the International Criminal Court?

Abstract It has generally been understood that international criminal law recognizes ex post facto aiding and abetting as a mode of liability but not the standalone offence commonly known, in many states, as accessory after the fact. However, as this article reveals, the authentic Spanish text of Article 25(3)(c) of the Rome Statute of the International Criminal Court (‘ICC Statute’) includes the word ‘encubridor’ which — as a comparative analysis of the Criminal Codes of Spanish-speaking countries confirms — is the Spanish language legal equivalent of a person that is an accessory after the fact. Yet, nothing in the authentic English text of Article 25(3)(c) — the version that most of the international criminal law scholarship and the International Criminal Court (‘ICC’) have focused on — alludes to this. To resolve this substantive discrepancy, Article 25(3)(c) is considered across all authentic languages (Arabic, Chinese, English, French, Russian, and Spanish) and in light of Articles 31–33 of the 1969 Vienna Convention on the Law of Treaties in a manner consistent with the rights of the accused. This article concludes that the mentioned discrepancy is unique to Article 25(3)(c) in the authentic Spanish language, most likely the result of an error, and that the concept of ‘accessory after the fact’ should not be applied at the ICC. That Article 25(3), a provision that has featured in so many ICC decisions and judgments and spawned so much academic writing, has contained such a glaring and seemingly undetected error for over 24 years ought to compel commentators, academics, and practitioners to look beyond the working languages of the ICC — English and French — when analysing, interpreting, and applying the ICC Statute.

Brief of Criminal Law Scholars as Amici Curiae in Support of Appellant Seeking Reversal, United States v. Bowers (9th Cir.)

Brief of Criminal Law Scholars as Amici Curiae in Support of Appellant Seeking Reversal, United States v. Bowers (9th Cir.)

Criminal liability for the “unlawful” trafficking of waste in Italy: what relevance for the European Best Available Techniques?

The paper deals with a much-debated topic in Italian criminal law scholarship and jurisprudence, that of criminal liability for carrying on formally authorised polluting activities, with a focus on its EU law profiles. After an overview of the concept of “unlawfulness” in environmental criminal law, the paper turns on the Italian offence of waste trafficking, addressing in particular two recent rulings of the Court of Cassation that held that the violation of EU “Best Available Techniques” can determine the “unlawful” nature of conduct, even when the latter is formally authorised. The author argues that this approach cannot be shared in its absoluteness, but deserves attention in order to avoid that, in certain well-defined hypotheses, authorisation becomes a factor of unjustified impunity for environmental damage.

Situating ‘law’ as ‘culture’ in scholarly discourse on the International Criminal Court: a reflection on Fraser and McGonigle Leyh's Intersections of Law and Culture at the International Criminal Court

Within the rich literature on the International Criminal Court (ICC), across international criminal law scholarship, transitional justice and international relations, the study of ‘law and culture’ has a lengthy pedigree. After the ICC came into operation on 1 July 2002, several years followed before the first monographs on the Court's law and culture were published, notably Sarah Nouwen's Complementarity in the Line of Fire (2013) and Phil Clark's Distant Justice (2018). This delay reflected the years of field-based research necessary for empirically minded scholars to usefully comment on the Court. The writing of these scholars was informed by long periods spent in the field in ICC situation countries, enabling them to bring a meaningful understanding of the lives of affected communities to their analysis of the Court's impact. Clark's book, for instance, was the culmination of eleven years of research and fieldwork in ICC situation countries (Clark, 2018). These extensive periods of contact with victims and survivors have brought fresh perspectives on the ICC to those of us whose work is, necessarily, focused on proceedings in The Hague and who are, inevitably, unable to claim genuine long-term familiarity with the local meaning of the Court's proceedings for those whose lives we believe or hope we are (positively) impacting. Well-executed field-based research has so much to offer because it can be at once intellectually distanced from court proceedings in The Hague, while intellectually proximate to the locus delicti of international criminal justice in affected communities.

A long way to end rape in the European Union: Assessing the commission’s proposal to harmonise rape law, through a feminist lens

On 8 March 2022, the European Commission presented a proposal for a Directive of the European Parliament and of the Council on combating violence against women and domestic violence. Inter alia, the proposal includes minimum rules on the definition of certain forms of violence against women and domestic violence, including rape. Building on a historical overview of what counts as rape and on the legal context in which the European Commission has tabled the proposal, this article will critically discuss whether the European Union (hereinafter: the EU) has the competence to harmonise the crime of rape pursuant to Article 83 of the Treaty on the Functioning of the European Union and what the desirable content of EU legislation in this field should be. For this purpose, the article will use long-lasting, feminist scholarship as an analytical tool to address the transformations that these feminist discourses have traditionally brought into rape law, stressing the legal gaps that still need to be filled, and suggesting a possible new synergy between EU criminal law and feminist scholarship and activism.

The Elusive Concept of Dangerousness: The State of the Art in Criminal Legal Theory and the Necessity of Further Research

Preventing future crime has become an increasingly dominant function of the criminal law of many liberal democracies. This “preventive turn” has led to a profound debate on the legal and ethical boundaries of the “preventive state.” However, the concept at the core of preventive justice—the dangerousness of the offender—has attracted relatively little attention in the current debate. This is remarkable, as the legal establishment of dangerousness permits intrusive preventive measures, such as preventive detention for an indeterminate period of time. In the past, various concepts of dangerousness have been developed by criminal law scholars. We discuss these concepts in a chronological order to demonstrate how the meaning of dangerousness has evolved over time, and how it has been shaped by concurrent developments in forensic psychiatry and penology. Our description of the state of the art of legal scholarship on the concept of dangerousness also shows the lack of a fully developed theory of dangerousness, and therefore the necessity of further research. We identify five “aspects” of the concept of dangerousness on which scholars have widely diverging views. These five aspects are intended to guide further research on the concept of dangerousness in preventive criminal law.

The Black Flame (part three): Snyman’s Criminal Law

Part three of this trilogy of papers (entitled after WEB du Bois’s trilogy of novels titled the Black Flame) concludes an extraordinarily prolonged attempt to open a dialogue with the esteemed author and revisor of Snyman’s Criminal Law. The core message of this trilogy is that a small window into a vibrant indigenous criminal law scholarship that is not perpetually northbound-gazing towards Europe has been opened by the latest edition of Snyman’s Criminal Law. The first two parts of this trilogy revealed some of the areas in which the next edition, and South African criminal law scholarship in general, can proceed further into this decolonial direction. This third paper builds on the first two, which focused mainly on the introductory and historical aspects (part one), and the General Part (part two) respectively, by focusing on the Special Part of South African criminal law. In particular, this paper makes decolonial interventions in three areas in which it is argued that the next edition of the book can improve: (i) the taxonomic arrangement of offences; (ii) the total exclusion of African customary law offences from the discussion; and (iii) the complex crime of corruption.

НАКАЗАНИЕ В УК РФ И РОССИЙСКОЙ УГОЛОВНО-ПРАВОВОЙ ДОКТРИНЕ: ПОНЯТИЕ, СИСТЕМА И КЛАССИФИКАЦИЯ

This article outlines the core tenets of the Russian criminal law doctrine in treating punishment as a means of prosecution. With an account of the inconsistent interpretations of punishment offered by Russian criminal law scholars, a critical analysis of its legislative definition was carried out. A special focus was laid on the key features of the list of punishments set out in the Criminal Code of the Russian Federation as a legally established and hierarchically ordered system of criminal penalties for deciding on the nature and intricacies of the defendant’s criminal liability, as well as possible commutation and remission. With this approach, certain types of punishment can be studied for their specific character and classified on various grounds delineated in the Criminal Code of the Russian Federation and professional literature. The obtained results also shed light on such a topical issue of today’s Russian criminal policy and procedure as how to distinguish between different types of punishment that imply no social exclusion.

Criteria for Establishing the Status of Law Enforcement Officers under Criminal Legislation of Ukraine

The theoretical and practical difficulties in using criminal law measures against law enforcement officers who exceed power or official authority are studied here. The types of law enforcement agencies of Ukraine are clarified, and the signs of division of their system are described. The criteria for determining the status of law enforcement officers are established, and the features that distinguish an official from the support staff are emphasized. Finally, the most common disadvantages enshrined in the Criminal Code of Ukraine in terms of liability for abuse of power or official authority by law enforcement officers are analysed. The concepts of law enforcement officers, persons carrying out law enforcement activities, persons endowed with law enforcement powers, executors of law enforcement functions and the meaning and instances of their application in domestic legislation are also investigated. In light of the study results and the requirements of current criminal law, including the positions of criminal law scholars, suggestions for possible ways to eliminate existing regulatory shortcomings are provided.

Good Scientific Practice and Academic Reviews

Academic reviews (hereinafter “reviews”) are an integral part of legal journals. While their purpose and usefulness are at times disputed, all sub-disciplines of legal studies nevertheless argue in equal measure that a lack of substantial academic exchange by way of reviews would result in the impoverishment of scientific discourse. In German criminal law scholarship, two recent cases have sparked debate about whether certain rules should govern the publication of such reviews. The following remarks are intended to provide a thought-provoking impulse on the matter.

Scientific Heritage of Professor G.S. Gaverov in the Science of Criminal Law

On July 12, 2021 the community of legal scholars celebrated the 90th anniversary of Honored Lawyer of the Russian Federation, Doctor of Law, Professor Grigory Stepanovich Gaverov. This article presents an overview of the scientific career of a famous criminal law scholar, the author of a substantial number of research publications on a wide range of different aspects of criminal law, its effectiveness, and problems of crime and punishment, who made an invaluable contribution to the criminal law theory and practical work of the law enforcement bodies. The authors describe key milestones of the career path of Professor G.S. Gaverov, present an overview of his major achievements in the spheres of research and teaching, as well as educational methodology. They prove that the scientific school of criminal law was formed and outline the scope of major scientific interests of G.S. Gaverov which widened as Grigory Stepanovich acted as mentor for postgraduate researchers who later successfully defended their Ph.D. in Law theses. Special attention is paid to the legacy of G.S. Gaverov in the area of educational methodology, which kept up with the major developments of criminal law. The scholar’s talents in the sphere of publicistic writing are highlighted. Special place is given to an overview of a research conference «Scientific heritage of Irkutsk scholars of criminal law» organized in Baikal State University on June 11–12, 2021 in honor of the 90th anniversaries of two outstanding Irkutsk scholars — Honored Lawyer of the Russian Federation, Doctor of Law, Professor G.S. Gaverov and Doctor of Law, Professor V.Ya. Rybalskaya.