Criminal Law Research Articles

The Presumption of Innocence in International Criminal Law: Selected Issues

The Presumption of Innocence in International Criminal Law: Selected Issues

The Scope of the Medical Exception in Criminal Law

The Scope of the Medical Exception in Criminal Law

Проблемы реализации норм о неизменности состава суда в судебном разбирательстве

The article discusses problematic issues related to the application of the provisions of the Code of Criminal Procedure on the invariability of the composition of the court in legal proceedings. It is noted that the immutability of the composition of the court as a general condition of the trial is one of the procedural guarantees of the legality of the composition of the court and violation of this provision is recognized as a significant violation of the criminal procedure law. As a result of the study, it was noted that the provisions of Art. 242 of the Code of Criminal Procedure are not applied during all periods when a case is in court and not in relation to all issues under consideration. The article analyzes situations in which the participation of another judge in a case is not considered a violation of the requirement of immutability. The authors considered the issue of the possibility of replacing a judge after the announcement of a verdict when considering a criminal case with the participation of a jury.

Abusive litigation in China: comparative insights and practical approaches for reform

This article provides a comprehensive examination of abusive litigation in both civil and criminal cases in China, focusing on its forms and impacts. It proposes nuanced regulatory approaches that emphasize the importance of identifying responsible parties and implementing appropriate compensation measures. In the Chinese legal system, abusive litigation varies by context. In civil cases, it often manifests as actions that clog the courts and drain legal resources, raising concerns about lawyer accountability and the financial burdens on victims. Although frequently discussed in Chinese literature, the above topic has seen limited comparative analysis, despite similar problems existing across different jurisdictions and a clear need for mutual learning. The article suggests that, in civil cases, insights from English and Dutch law could assist Chinese regulators in reducing incentives for lawyers to pursue unmeritorious or abusive cases and improving compensation for victims. In the criminal law context, abusive litigation is more prevalent in minor offenses in China, primarily due to issues related to the public power structure. The proposal emphasizes the need to optimize power distribution within the Chinese legal system, thereby safeguarding the integrity of the law and upholding human rights.

Penerapan Diversi terhadap Anak Sebagai Pelaku Tindak Pidana Pencurian di Wilayah Hukum Kepolisian Resort Kota Jambi

Many children are now involved in criminal acts, including theft, so the solution needs to be done through diversion. The aim of the research is to understand and analyze the application of diversion to children as perpetrators of criminal acts in the jurisdiction of the Jambi City Resort Police and the obstacles in criminal law in the application of diversion to children as perpetrators of criminal acts in the jurisdiction of the Jambi City Resort Police. For this reason, this research uses a legal sociology approach with an activity design for 6 months whose scope or object in this research focuses on the application of diversion to children who are perpetrators of criminal acts of theft in the Jambi New City Sector Police. The main materials and tools used in this research are primary legal materials that come from the field and secondary legal materials that come from the library, then the place used in this research is the Jambi New City police sector so that the data collection technique is in the form of direct interviews with respondents. which produces an analysis technique, namely qualitative analysis. The results of this research are that diversion has not been applied to children as perpetrators of criminal acts by the Jambi City Resort Police, but there are still several obstacles so that diversion is often failed in achieving this and obstacles in implementing diversion against children as perpetrators of criminal acts of theft in the jurisdiction of the Sector Police. Kota Baru Jambi is where the victim does not want to carry out diversion because they still prioritize the deterrent effect on the perpetrator.

Theft in the Family Context: An Analysis of Article 367 of the Criminal Code and its Application in Indonesia

This study aims to explore the regulation and implementation of family criminal law regarding theft cases within a family context from the perspectives of Indonesia Criminal Codes (KUHP) and the theory of jarimah of the Islamic criminal law. By employing a descriptive qualitative method with a literature review approach, the research analyzes legal sources and relevant literature. The findings reveal that theft is generally regarded as a common crime. However, in specific contexts, such as theft occurring within a family setting, special provisions outlined in Article 367 of the KUHP. This article classifies family theft as a complaint offense (klacht delict), meaning it can only be prosecuted if there is a complaint from the aggrieved party. The study underscores the importance of thoroughly understanding the characteristics of family theft and its implications for the criminal justice system. It also highlights the need for further evaluation of the effectiveness and application of this law in the Indonesian family context, incorporating insights from the theory of jarimah in Islamic criminal law.

Romanian jurisprudence on cybercrime: focus on illegal access to an information system

AbstractThe Budapest Convention on Cybercrime and Directive 2013/40/EU are central in tackling cybercrime, yet they are starting to be left behind by the technological advancements and new modus operandi. This article tackles the offence of illegal access to an information system under Romanian criminal law, emphasising ongoing debates and legal controversies in Romania, mirroring wider issues in cybercrime legislation. The article delves into the meanings of ‘access’, ‘information system’, and ‘without right’ as they are interpreted with reference to the existing legal framework on cybercrime, exploring how these concepts influence the scope of the offence. Romania is a relevant case study because the Budapest Convention on Cybercrime and Directive 2013/40/EU were transposed almost verbatim into national law. Thus, the issues raised in this article are relevant in many jurisdictions across Europe.

EVALUATION OF PROBLEMS ARISING IN EMERGENCY SERVICES FROM THE PERSPECTIVES OF MEDICAL and CRIMINAL LAW: THE EXAMPLE OF “TÜRKİYE"

IntroductionIn recent years, the field of medical malpractice has attracted growing attention, and despite the long history of research in this area, there are still unexplored aspects of this phenomenon. In this article, we aimed to explore the realm of medical malpractice, focusing on cases involving healthcare professionals in emergency services in Türkiye. It examines the surge in medical malpractice lawsuits, the consequences of such cases, and the prevalence of criminal liability faced by healthcare professionals. Material and methodA comprehensive analysis of healthcare-related cases from 2017 to 2022 was carried out using the electronic decision database known as "LEGALBANK". We scrutinized these cases from both medical and criminal law perspectives, aiming to shed light on the complex dynamics of medical malpractice in emergency services. ResultsThe findings reveal that professionals in emergency services are confronted with a notable number of criminal cases. Among these cases, doctors are the most frequently implicated, followed by nurses, midwives, ambulance drivers, and other healthcare professionals. Crimes attributed to these professionals vary but primarily include involuntary manslaughter, misuse of public duty, forgery of documents, and reckless injury. DiscussionIn Türkiye, there is a notable prevalence of examinations conducted in emergency services and criminal cases involving healthcare professionals in this field. This dual prominence underscores the unique significance of examining medical malpractice from both criminal law and medical perspectives within the Turkish context. This study categorizes the multifaceted challenges of medical malpractice as personal, system-related, and legal, offering valuable insights into the intricate landscape of this phenomenon in Türkiye's emergency services. ConclusionThis research contributes to a deeper understanding of medical malpractice, particularly its criminal dimensions in the Turkish context, and calls for improved healthcare, enhanced patient safety, and error prevention in emergency settings.

THEORETICAL FOUNDATIONS OF SENTENCING FOR MULTIPLE OFFENSES

This article analyzes issues related to the theoretical foundations of sentencing for multiple offenses. The article also examines the unique aspects of sentencing, including the application of principles that exist simultaneously in various areas of law. Specifically, the article highlights the application of general legal principles (legality, equality before the law), criminal law principles (justice, humanism, democracy, culpability, etc.), as well as special principles of criminal procedural law (administration of justice exclusively by the court, implementation of justice based on equality of citizens before the law and the court, respect for the honor and dignity of individuals, etc.) in the sentencing process.

Criminal Law Policy against ‘Pratima’ Theft: Perspective of Balinese Customary Criminal Law

Law enforcement of the crime of Pratima theft in Bali does not provide a sense of justice for traditional law communities as victims. In response to this, it is necessary to construct law enforcement for the crime of Pratima theft to achieve a sense of justice, benefit, and legal certainty for the Balinese customary law community. This research method is sociological law (sociological jurisprudence), emphasizing the study of the operation of law in traditional law communities in Bali. The object of the study is the legal facts related to the crime of Pratima theft. Based on the research results, it was found that law enforcement prioritized legal certainty rather than social justice itself. The Balinese traditional law community desires fair and beneficial law enforcement. The provisions on the principle of legality in deciding pratima theft cases in Bali do not prevent the application of laws that exist in society. Judges should also apply customary criminal sanctions, thereby demonstrating that criminal law policies protect customary law communities. In imposing sanctions, the panel of judges is expected to be guided by the harmony of law enforcement objectives, based on local wisdom. The application of the Tri Hita Karana concept as local wisdom in customary criminal sanctions shows that criminal law policy provides a sense of justice and protects customary law communities as victims, and restores harmony in the lives of Balinese customary law communities.

Penegakan Hukum Pidana Anak Sebagai Pelaku Perundungan dalam Perundang-Undangan di Indonesia

Children are the nation's next generation and play an important role in nation development. In life, children cannot be separated from perfection in terms of physical or mental life. These physical or mental deficiencies can become material for bullying by other children which can disrupt the child's survival and peace. In enforcing criminal law to stop bullying by children, the government issued Law Number 23 of 2002 concerning Child Protection, and amendments were made to Law Number 35 of 2014 concerning Child Protection to accommodate the increasing number of child crimes. The research method used is normative research which focuses on a legislative approach and a conceptual approach. After collecting the results of this research, it is then developed through an interpretive approach. The conclusion that can be drawn from this research is that bullying is any action or behavior carried out with the aim of causing injury. This harm can be physical, psychological, emotional, or verbal. Bullying behavior combines several criminal acts in the Criminal Code and for children using the Juvenile Criminal Justice System Act. The second conclusion is that children who are accused of bullying are threatened with criminal sanctions. According to the Juvenile Criminal Justice System Law, cases of bullying committed by teenagers can be brought to court and the judicial process will be carried out according to the law for children.

Medical Liability for Omission under the Portuguese Criminal Law: A Critical Eye on Portuguese Jurisprudence

In the Portuguese legal system, criminal liability for omission can be conducted by the legal category that criminalises omission in itself, regardless of the result, or operate by equating omission with action. This is enshrined in section 10 of the Penal Code, as long as the omitting person has a personal legal duty to act as guarantor (section 10, no. 2). In medical criminal liability, the framework for a hypothetical omission by an on-duty doctor in emergency services has been controversial. In our legal system, section 284 of the Penal Code expressly stipulates that a doctor’s refusal to administer care be punishable conduct. On the other hand, it is possible that the doctor on duty in the emergency room of a hospital has a personal legal duty to act as a guarantor, arising from the contract that binds him/her to the hospital. Thus, it is necessary to affirm a subsidiarity relation between the mechanism of equating omission with action resulting from section 10 of the Penal Code and incrimination under section 284 of the Penal Code. However, this has not been the major understanding of the jurisprudence of the Portuguese courts on this subject. For instance, when the refusal of assistance by a doctor causes the death of a patient, instead of convicting the doctor for homicide by omission (section 131 of the Portuguese Penal Code, ex vi section 10, numbers 1 and 2), courts are convicting as per section 284 – refusal of the medical doctor to provide medical assistance. The present work aims to critically present this jurisprudence, state the legal and doctrinal foundations that justify the inclusion of these hypotheses within the scope of crimes committed by omission and point out the practical importance of choosing this solution. Keywords: Omission; Committed by omission; Medical liability; Duty to act as guarantor.

Проблемы уголовно-правовой регламентации организованных форм преступной деятельности в сфере нарушения антимонопольного законодательства

The relevance of the issues considered in this article is due to the need to ensure an appropriate level of criminal law protection of the competitive environment, the normal functioning of which is a necessary condition for the development of social relations in the field of economic activity. In particular, the problems of the technical and legal construction of certain offenses encroaching on this area are explored, the shortcomings of law enforcement practice are analyzed and measures to eliminate them are proposed. The novelty of the article is determined by the author’s proposals to ensure effective criminal legal protection of public relations in a competitive environment, the implementation of which will contribute to the optimization of the currently implemented government policy aimed at creating optimal conditions for the development of the economy in general and the sphere of entrepreneurial acti-vity in particular.

Criminalising Coercive Control in New South Wales: Misunderstandings and Missed Opportunities

In 2022, New South Wales (‘NSW’) became the first Australian jurisdiction to criminalise coercive control, with the offence commencing on 1 July 2024. This follows the creation of similar offences overseas. These novel offences are designed to respond to the extensive critique of the criminal law which has largely focused on discrete incidents of physical violence leaving absent the full range and pattern of abuse experienced as domestic and family violence. In legislating in this area, the NSW Government sought to balance key tensions that emerged in the debates about criminalisation, such as: not to over-reach; the risk of victims being misidentified as offenders; the over-criminalisation of Aboriginal and Torres Strait Islander peoples; while at the same time addressing coercive control. In this article, I critically examine the NSW offence drawing attention to various misunderstandings about coercive control and misidentification that appear to underpin the NSW approach.

Evaluative features in the definition of crimes in the legislation of the Russian Federation: problems of defining the concept

In this work, the author examines some features of the concept of evaluative features in the corpus delicti in the legislation of the Russian Federation. The article notes the ambiguity of the approach to defining the concept of the evaluative features of a criminal offense. The author also notes that the current legislation lacks a legal approach to designating evaluative features, and the rapid development and modernization of the doctrines on the corpus delicti determine the need to develop a new and more objective approach to their definition. To offer the author's vision of the term "evaluative feature of the corpus delicti", two approaches are used in the work, the first of which is reduced to a review of doctrinally developed definitions of this term, and the second is to establish the semantic property of such. As a result of the conducted research, it was concluded that the specified features in the model of the corpus delicti should be understood as special conditions stipulated in the dispositions of the norms of the Special Part of the Criminal Law, which at the same time act as a characteristic of a certain feature or features of the corpus delicti, the criminal-legal content of which is established by the subject implementing the criminal-legal norm, or by a person with legal knowledge, taking into account the specific circumstances of the case. In the presented definition, it is necessary to detail the circle of persons who establish the evaluative features. The subjects implementing the criminal-legal norm include both law enforcement officers and other participants in the criminal process (in particular, the defense attorney), and the persons with legal knowledge include specialists, representatives of the criminal-legal doctrine.

Kepastian Hukum Transaksi Dengan Menggunakan Mata Uang Dinar Dan Dirham Dalam Pendekatan Hukum Pidana Di Indonesia

Legal certainty related to transactions using Dinar and Dirham currencies in the criminal law approach in Indonesia. Based on Law No. 7 of 2011 on currency, Rupiah is the only legal tender in Indonesia. The use of currencies other than Rupiah, including dinars and dirhams, is not legally recognized and has the potential to violate criminal provisions, such as those related to fraud or forgery. However, this phenomenon also involves social and cultural dimensions, especially in communities based on sharia economics, where dinars and dirhams are considered as means of transaction that are more in line with Islamic principles of justice and ethics. Overly repressive law enforcement can generate resistance in society, so more inclusive legal reforms and adjustments are needed. By promoting dialogue and collaboration between policy makers, business actors, and the community, it is expected to create a legal system that is fair and responsive to social needs and is able to maintain legal stability in Indonesia . From the research results, the transfer of receivables by Cessie by the creditor in the event that the debtor fails to pay the third party mortgage guarantee does not comply with the applicable provisions as regulated in Article 613 of the Civil Code and Law of the Republic of Indonesia Number 4 of 1996 concerning Mortgage Rights. Form legal protection for third parties by filing a lawsuit before or during the execution process. The government, stakeholders and related parties are expected to make changes to Law of the Republic of Indonesia Number 4 of 1996 concerning Mortgage Rights over Land and Objects related to Land, by accommodating third party protection which is explicitly regulated in guaranteeing rights to land, these regulations do not clearly regulate the rights and obligations of third parties so they cannot provide legal protection for collateral owners. The results of this study that legal certainty related to transactions using dinars and dirhams, as done by Zaim Saidi, in the approach of Indonesian criminal law is a violation of Article 9 of Law No. 1 of 1946 on Criminal Law regulations in conjunction with Law No. 7 of 2011 on currency. Enforcement of these transactions can be carried out through the application of criminal sanctions, since the use of currencies other than Rupiah for payment purposes is not justified by law. In addition, the low legal awareness of the public in using the Rupiah as a legal tender also became an important factor in this case.

Rethinking the Scope of Sexual Violence for Criminal Law Reform

Rape survivors are mostly women, and the perpetrators are mostly men. So, it has a social and cultural dimension. In the article, the problems regarding rape law are shown from the angle of the female rape survivors. The paper discusses how rape is interpreted in Georgian criminal law practice and why one paradigm of rape prevails to this day - a male stranger and a fighting woman who physically resists the perpetrator. Criminal law sets the standard of the “ideal victim’’ for a woman, the “rational” rules of action during rape; in particular, it determines what the “typical behavior” is for a woman before, during, and after sexual violence. If the female rape survivor’s response does not fit into this standard, she remains outside the legal system; her voice is suppressed and disbelieved by the justice. The paper critically examines the Georgian legislative and judicial definition of rape; However, the research is not limited to this; it also includes an analysis of the approaches and scientific views of other jurisdictions. The paper supports a liberal understanding of sexual autonomy and consent. The goal of the paper is to show the essence of non-consensual sexual violence and its superiority compared to the old rape law.

Human infection with an infectious disease agent: analysis of constructive objective features of criminal offences

With a view to confirming the hypothesis that the ineffectiveness of criminal law provisions under Articles 130, 131, 133 of the Criminal Code of Ukraine is due to the shortcomings of their legislative design, the author analyses the definitions used by the legislator to determine the constructive objective features of criminal offences under Articles 130, 131, 133 of the Criminal Code of Ukraine. The author establishes that they are inconsistent with the terminology of healthcare regulations which should be used when qualifying encroachments on biological safety manifested in infection of a person (persons) with infectious disease agents. The article states that current legislation does not contain any lists of incurable and venereal diseases. On this basis, it is concluded that the qualification of the relevant criminal offences is not based on the provisions of legislation, but on the previous court practice, common sense of law enforcement officers and the level of their legal awareness. The view is supported that the indication of a virus as an instrument of criminal offences (Articles 130, 131 of the Criminal Code of Ukraine) significantly limits the criminalisation of encroachments on biological security in the form of spread of infectious diseases. Attention is drawn to the discrepancy between the constructions of the objective side of the corpus delicti of criminal offences under Articles 130 and 133 of the Criminal Code of Ukraine, which provide for an identical mechanism of causing harm to the victim. It is established that the absence of any references in the disposition of Article 133 of the Criminal Code of Ukraine to the means of infection (live pathogen) unjustifiably delays the moment of termination of this criminal offence until the victim develops clinical manifestations of the disease. Finally, the conclusion is made that the gradual widening of the gap between the substantive criminal law and medical law makes it increasingly difficult to qualify the infection of another person with dangerous infectious diseases and creates problems in delimiting related corpus delicti of criminal offences. The editorial wording of the unified basic elements of a criminal offence consisting in infecting a person with a pathogen which is dangerous to his/her life is proposed.

Juvenile Justice and New Criminal Laws in India

Juvenile Justice and New Criminal Laws in India

Structural injustice, marginality, and neurolaw: a normative comparative and theoretical approach.

In this paper, we introduce a perspective based on a comparative viewpoint on the Colombian Penal Code and a theoretical approach to neurolaw and criminal responsibility in contexts of marginality and extreme poverty. We present a further response to the debate on how structural injustice impacts criminal responsibility. By offering a comparative and theoretical insight, this paper enriches the debate and provides an understanding of how legal systems might address these issues. The paper then suggests that other legislations can follow the rule of Article 56 of the Colombian Penal Code, which reduces punishment in circumstances of marginality, ignorance, or extreme poverty. Utilizing neuroscience findings, we briefly highlight the interplay between structural injustice and neurobiological vulnerabilities, emphasizing the complexity of the role of incarceration and criminal law in marginalized populations. We invite scholars to consider debates on alternatives to criminal law, the reduction of prison use and mass incarceration, as well as further remarks on the problem of free will. In this paper, we seek to bridge the gap between neuroscientific insights and socio-legal ethics to foster a more equitable and humane system of justice.