Domestic Law Enforcement Research Articles

Digital Platformization in the Context of Industry 4.0: The Uncertainty of the Conceptual Framework

Introduction: the paper analyzes the prospects for creating a regulatory framework for the digital platforms in Russia. The paper examines the existing approaches to the definition of “digital platform” in the legislation and legal doctrine, determines their role in the implementation of the state policy on building a digital economy, as well as the factors that led to their accelerated implementation in public administration. A critical analysis of the actions planned in the National plan that ensure the restoration of employment and income of the population, economic growth and long-term structural changes in the economy associated with digital platformization is carried out. The paper reveals the existing problems in the domestic law enforcement practice related to the functioning of the digital platforms in the context of legal uncertainty. The paper examines the foreign experience of the legislative regulation of digital platforms. Methods: in the study, the authors used both the general scientific methods (dialectical method of cognition, analysis, synthesis, formal logical method, prognostic method, etc.) and the specific scientific methods (formal legal method, method of legal interpretation, etc.). Results: the need to create a regulatory framework for the digital platforms in order to eliminate the identified problems of the law enforcement practice is justified. Conclusions: based on the results of the study and taking into account the analysis of the positive foreign experience, the authors’ definition of the concept of digital (online) platform is formulated, and the main directions for improving the domestic legislation regulating the activities of the digital platforms in Russia are determined.

О понятиях правозащитной деятельности и правозащитной системы или же к вопросу об организационно-правовых предпосылках «всенародного счастья»

The terms “human rights activities” and “human rights system” are widely used in domestic law and law enforcement practice. The human rights dimension is represented in the functioning of almost all public authorities, from the ordinary police officer to the head of State. For many State and non-State organizations, human rights activities are profiling. Between, the category of human rights activities is not established in the special literature, nor is there a legislative definition of the concept, scope and subject of this sphere of activity. Accordingly, there is no proper coordination of human rights activities on the part of public authorities. The article specifies the content of the human rights function of the state and proposes approaches to increase its effectiveness.

The Genesis of International Justice

The increasing number of international courts and their specialisation and the penetration of legal positions developed at the supranational level into the practice of domestic courts raise the question of the nature of international justice and its peculiarities. The concepts of national justice and the systemic nature of international courts are well developed in the doctrine, but the issue of international justice remains under-researched. Such an analysis is particularly important because of Russia's membership of the Eurasian Economic Union and the active use of supranational court positions in domestic law enforcement, including judicial enforcement. This article examines the current and historical approaches to the understanding of justice in Russian legal theory and the views of foreign scholarship on procedural justice, which is seen as equivalent to the category of «justice». The aim of this study is to formulate a concept of justice that is free from the peculiarities of national legal systems and able to explain the processes inherent in international courts. The question of the specific features of international justice will be answered, preceded by a reflection on the definition of «international judicial body» in the context of approaches of domestic as well as European. The method of induction has made it possible to identify the specific features inherent in universal international courts as well as in courts of integration associations and, on this basis, to provide a definition for «international judicial body». A comparison of the powers vested in the Court of Justice of the Eurasian Economic Union, the range of persons having the possibility to initiate dispute resolution, the binding and enforceable nature of its acts with similar rules in the activities of the UN International Court of Justice, the European Court of Human Rights and the Court of Justice of the European Union provides empirical material for analysis of the specific features of the Eurasian dispute resolution body justice. The study concludes that the modern concept of national and international justice has its philosophical basis in the genesis of ideas about human rights and fundamental freedoms. International justice, however, is defined as the legal and procedural activity of an independent judiciary to apply the law and resolve legal conflict.

Competitive Harm Crossing Borders: Regulatory Gaps And A Way Forward

Abstract This article analyses the current regulatory framework governing transnational restrictive business practices. It identifies key gaps that provide room for anticompetitive practices to flourish, causing cross-border transfer of wealth, typically from less affluent states. The economic harm caused by cross-border anticompetitive conduct is significant; international cartels alone caused overcharges exceeding $1.5 trillion in the period 1990–2016. This article offers a series of pragmatic policy recommendations that could narrow existing regulatory gaps. The proposals require no international negotiations and can be implemented domestically. They call for enabling of more assertive and robust extraterritorial enforcement of domestic competition laws and facilitation of positive externalities in that context.

A comparative analysis of the approaches to trade secrets protection between Namibia and the USA

The adequacy of trade secret protection is one of the key pillars for promoting domestic and foreign-derived innovations. Therefore, various countries have chosen varying approaches that they deem adequate to protect the trade secrets of their citizens and foreigners. This article compares the approaches to protecting trade secrets in Namibia and the United States of America (USA). The analysis demonstrates that the USA approach better protects trade secrets, whether domestic or foreign, as it removes many uncertainties and brings simplicity and uniformity to litigating trade secrets issues, including clarity on available civil or criminal remedies. For members of the World Trade Organization (WTO), having an adequate statute for the protection of trade secrets also removes the weakness of the Trade-Related Aspects of Intellectual Property Rights (TRIPS), which only requires that members enforce IPR through domestic law enforcement in the member state. Developing nations, like Namibia, can therefore adopt a statutory approach as applied in developed nations like the USA. Adequate protection of trade secrets will not only increase domestic innovation but may also lead to ease of collaboration with developed nations in innovation-related projects.

Competitive Harm Crossing Borders: Regulatory Gaps and a Way Forward

This article analyses the current regulatory framework governing transnational restrictive business practices. It identifies key gaps that provide room for anticompetitive practices to flourish, causing cross-border transfer of wealth, typically from less affluent states. The economic harm caused by cross-border anticompetitive conduct is significant; international cartels alone caused overcharges exceeding $1.5 trillion in the period 1990-2016. This article offers a series of pragmatic policy recommendations that could narrow existing regulatory gaps. The proposals require no international negotiations and can be implemented domestically. They call for enabling of more assertive and robust extraterritorial enforcement of domestic competition laws and facilitation of positive externalities in that context.

Массовый деликт: теория и практика

The article deals with legal relations related to the infliction of harm to a multitude of persons, in particular its theoretical and historical characteristics, scientific doctrine, foreign and domestic legal regulation and law enforcement. In particular, in cases where the causer of this harm is the State in the person of State bodies and their officials, and other entities to which authority has been delegated. The authors consider the judicial and public (administrative) procedure for compensation of this damage. Recommendations for improving the effective compensation of this harm to the affected subjects are proposed.

The problem of gender-based violence in the Inter-American Court of Human Rights Case-Law

The phenomenon of gender-based violence is far from novel, it has been actively debated in academic and human rights circles for several decades already. However, gender-based violence has only recently become a focus of attention in international inter-governmental organizations and international courts. In the field of international humanitarian law, the International Criminal Tribunals for the former Yugoslavia and Rwanda declared sexualized violence as part of war crimes, crimes against humanity and genocide in the early 2000s, and approximately at the same time international human rights bodies started to examine this problem as well. The UN CEDAW Committee began its first deliberations in accordance with Optional Protocol to the CEDAW Convention (1999), and the Inter-American Commission and Court on Human Rights joined in as an active participant in this global struggle for women’s rights, making an impact on domestic law-making and law enforcement, and setting an important example for human rights groups and political actors. By looking at some of the most important decisions of the IACtHR in the field of combatting gender-based violence, we seek to identify major problem areas and the impact these decisions had in the region.

Механізм взаємодії з міжнародними правоохоронними організаціями у сфері запобігання та протидії економічній злочинності

У статті доведено, що система правоохоронної діяльності України має бути побудована з метою налагодження ефективних взаємозв’язків з міжнародними правоохоронними організаціями. Наведено перелік та охарактеризовано глобальні й регіональні міжнародні правоохоронні організації, а саме: Інтерпол, Асеанапол, Афріпол, Європол, Амеріпол, GCCPOL, AIMC. Визначено, що сьогодні Україна співпрацює з двома такими організаціями: глобальною – Інтерпол (в Україні функціонує Національне центральне бюро на базі Міністерства внутрішніх справ України) і регіональною – Європол (Україна направила офіцерів зв’язку до цієї міжнародної правоохоронної організації). Розглянуто особливості функціонування зазначених правоохоронних організацій та особливості їх взаємодії з вітчизняними правоохоронними органами у сфері запобігання та протидії економічній злочинності.Проаналізовано хронологію розвитку Інтерполу як міжнародного правоохоронного органу. Досліджено організаційну структуру Інтерполу та охарактеризовано кожну її складову: Генеральну Асамблею, Виконавчий комітет, Президента Інтерполу, Генеральний секретаріат. Наведено характеристику діяльності директоратів Генерального секретаріату Інтерполу. Ідентифіковано механізми державної політики, що мають врегулювати діяльність вітчизняних правоохоронних органів у контексті відповідності діяльності Інтерполу. Надано характеристику глобальним цілям зазначеного правоохоронного органу й напрямам трансформації державної політики у сфері запобігання та протидії економічній злочинності. Досліджено особливості державного регулювання процедур взаємодії з Інтерполом. Проаналізовано розвиток Європолу як регіонального правоохоронного органу.

Towards a new approach to dealing with terrorism as an international crime

This study is born out of the conviction drawn from Tadic case (ICTY,IT-94-1-A, 15July 1999), that legitimate judicial activity proceeds on the basis of the identification of the gap or ambiguity in the law that must be resolved in the interests of justice. Terrorism has come to stay. But be it as it may, controversies exist within both domestic borders and international fora about its definition and the best strategies to effectively combat it. At every corner, embers are being fanned to dissuade, deescalate and prevent its occurrence and impact or threat to international peace and security. International law leans heavily on domestic law enforcement for the purpose of bringing to justice those accused of terrorism at both domestic and or transnational spheres. This work adopts a critical and contextual analysis of extant body of international criminal law and argues that the focus needs to shift from terrorism as a criminal event to individual acts that make an event a crime of terrorism. The essence of this is to move away from the more complex question of what constitutes terrorism, a result of which the ICC was denied jurisdiction. The trajectory resulting from this approach enables the International Criminal Court (ICC) with its extant law, the Rome Statute assume jurisdiction to prosecute these terrorist acts such as murder, mass executions, genocide, violent sexual crimes, imprisonment and torture which are within the threshold of international crimes provided in the International criminal law. Key words: Terrorism, international criminal court, criminal law, United Nations, security council, crime, rome statute.

PENEGAKAN HUKUM PIDANA TERHADAP IMIGRAN ILLEGAL MENURUT UNDANG-UNDANG NOMOR 6 TAHUN 2011 TENTANG KEIMIGRASIAN

Law Enforcement is essentially the upholding of ideas or concepts as well as an effort to realize the ideas of people's expectations to become reality. Law enforcement against criminal acts of abuse of residence permit in the immigration environment is carried out by the Civil Servant Investigator. In enforcing the law against perpetrators of misuse of residence permits, Civil Servants of immigration can coordinate with domestic law enforcement agencies, namely the Indonesian National Police, prosecutors and judges. The reality in the field often results in problems in the criminal investigation process carried out by the National Police and Civil Servant Investigators (PPNS) always experiencing ups and downs. The ups and downs can take the form of an incomplete investigation or an incomplete investigation such as the completion of a filing. Many cases of abuse of residence permit only go to the stage of administrative action. Enforcement of criminal law against illegal immigrants entering and entering Indonesian territory without going through immigration checks, namely that in resolving cases or law enforcement criminal acts against illegal immigrants entering and entering Indonesian territory are carried out in two ways namely administrative immigration actions (outside the criminal justice system) and actions projustitia (justice process) included in the criminal justice system (Criminal Justice System).

Mapping Cannabis Social Clubs in Europe

Cannabis Social Clubs (CSCs) are typically non-profit associations of adult cannabis users who collectively produce and distribute cannabis among themselves. Since the emergence of the model in Spain during the 1990s, other countries may have seen the appearance of CSCs (or CSC-like associations) but there is a dearth of knowledge about the phenomenon in Europe. The goals of this analysis are to: (1) map the presence of CSCs across the European Union; and (2) examine how CSCs are operating in such settings. The data included in our analysis derive from a 2018–19 survey. The 30-item questionnaire comprised questions about CSCs’ origins and relations with other stakeholders and organizations, the types of activities the CSCs developed and their views on cannabis regulation. The questionnaire was translated into all the official languages of the EU zone and sent via email to the participants. In total, 81 CSCs completed the questionnaire. Beyond Spain and Belgium, where the CSC presence has already been documented, we were able to identify CSCs in 11 other countries. The longest-running CSC in our sample was established in 1999, but most emerged in the past decade. The smallest CSC in our sample reported six registered members, whereas the largest counted a total of 5000 members. Most CSCs were cultivating or distributing cannabis to their members at the time of the survey, but engaged in other informative, entertainment and activist activities as well. The CSC model remains prohibited across the EU. CSC activists have thus by and large shaped the way CSCs operate, often adapting to domestic law particularities or law enforcement activities. In this article, we present and discuss the range of CSC practices from 13 different European countries, and what these represent for the consideration of the CSC model in current policy debates.

The Military and the Constitution Under Trump

The US military’s rebuke of Donald Trump’s attempt to militarise domestic law enforcement was perhaps the most important episode in US civil–military relations since Harry Truman fired Douglas MacArthur in 1951.

ADMINISTRATIVE AND LEGAL REGULATION OF INTERACTION OF SUBJECTS AGAINST SOCIAL ORPHANIA

The relevance of the article is that effective work on the protection of children and adolescents requires coordinated cooperation between the executive authorities, public institutions of education, health, social protection, as well as public organizations working to prevent negative phenomena in adolescence. Today, the issue of improving the efficiency of central and local executive bodies, guardianship and care bodies aimed at prevention of social orphanhood, development of comprehensive social services for children deprived of parental care and families with children in difficult life circumstances remains relevant, introduction of new technologies of social work with such children and families. The mechanism of interaction of executive bodies with public organizations engaged in the field of protection of children's rights is insufficiently effective. The purpose of the article is to, based on the analysis of the achievements of legal science, the provisions of domestic law and law enforcement practice, to identify and investigate problematic issues regarding the administrative and legal regulation of the interaction of the subjects of combating social orphanhood. The article outlines the problematic issues and features of the administrative and legal regulation of the interaction of the subjects of combating social orphanhood. The system of measures for child protection in Ukraine is determined; the order of interaction of the subjects of the system of social services; interaction of entities implementing measures in the field of prevention and counteraction to domestic violence; social prevention measures in the family, children and youth environment; basic principles of state policy on social protection of orphans and children deprived of parental care, as well as persons from among them; the order of registration of children who are in difficult life circumstances. It is concluded that despite significant successes on the part of the state in the face of authorized executive bodies and local governments to prevent and combat social orphanhood, it should be emphasized that the state social policy, the implementation of which largely depends on the interaction of these bodies, should be aimed at strengthening the social protection of families in the context of socio-economic transformation of Ukrainian society.

Features of Application of Precautionary Measures for Persons Suffering From Mental Disorders: National Dimension

The paper investigates topical issues of application of precautionary measures against persons subject to criminal proceedings for the application of compulsory psychiatric care in the context of international standards and interpretative practice of the European Court of Human Rights (ECHR). The purpose of this paper is to identify and analyse the specific features of applying precautionary measures to a person suffering from a mental disorder based on the materials of generalization of domestic law enforcement practice in criminal proceedings regarding the application of compulsory psychiatric care. Research methods are selected with consideration of the purpose, objectives, and subject of research. General scientific and special methods of scientific cognition (dialectical, statistical, comparative law, analysis, synthesis, generalization) were used in the work. The integrated use of these methods has contributed to an objective and comprehensive scientific study. Based on the analysis of the current legislation and judicial practice, the specific features of application of preventive measures in criminal proceedings regarding compulsory psychiatric care are singled out, namely: a) they are applied to a person suffering from a mental disorder; b) are selected only in criminal proceedings concerning the application of compulsory psychiatric care; c) have a specific purpose conditioned by the presence of a mental disorder from which the person suffers. The specifics of the applying the measures envisaged by Art. 508 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the CPC) allowed to question the legitimacy of the legislative approach as to their allocation to the institution of precautionary measures in criminal proceedings. In particular, it was concluded that in contrast to the general purpose of application of precautionary measures stipulated by Art. 177 of the CPC (concerning the suspect, the accused, the condemned), for the purpose of applying precautionary measures envisaged by Art. 508 of the CPC (concerning a person in respect of whom the application of compulsory psychiatric care is stipulated) are: 1) prevention of risks of their possible illegal behaviour; 2) provision of qualified psychiatric care to them; 3) ensuring the person's safety and the safety of others. In this regard, it should be noted that the position of the domestic legislator on the possibility of applying precautionary measures to persons suffering from mental disorders is subject to reasonable criticism of the legal community. The main argument in this debatable issue is that these persons cannot be subjects to which precautionary measures are applied, as the latter, according to the general rules, can be applied to clearly defined subjects of criminal proceedings – suspects, accused, and convicts.

CURRENT PROBLEMS OF CIVIL LAW OF UKRAINE IN OTHER JURISDICTIONS

This article is an attempt at a comprehensive legal analysis of current problems of civil law in the fields of contemporary law of Ukraine. With regard to cross-industry links, legal doctrine is defined as relations of interdependence, conditionality and commonality between different legal sectors, including their individual parts. In particular, the problems of correlation of civil law of Ukraine with other branches of law, such as labor law, business law, administrative law, criminal law, information law, financial law, are considered. Considering the problems of civil law in the context of modern law, the connection between private and public in civil law of Ukraine was highlighted. It has been concluded that scientists have for many years regarded civil law as a basic component of private law, and in some cases even identified it. At the same time, both the branches of private law and the branches of public law are recognized as components of the unified system of law of Ukraine, and, accordingly, they cannot exist completely autonomously from each other. All areas of law interact and interact. It was possible to distinguish the civil law of Ukraine from other basic branches of the system of Ukrainian law, and to draw some conclusions about the recognition of the civil law of Ukraine as a complex branch of law. Civil law terms and concepts used in other areas of law, relevant industry codes or other regulatory issues were also considered. The cross-sectoral links of civil law, which are not only limited to the legislative sphere, but also the cross-sectoral links at the level of enforcement are highlighted. This article stated that in order to achieve a stable and efficient functioning of the legal system, as a component of the domestic legal system, it is possible, subject to fruitful cooperation of the legislator, theorists and practitioners, their main task – to justify and develop a single organic complex of balanced branches of law. That is why special attention should be paid to the interaction of civil law with other branches of Ukrainian law, in particular, to determine the points of their contact, permissible situations and limits of mutual influence. The tendency to expand the sphere of civil law is reflected in the domestic law enforcement practice, which is reflected in the actual extension of civil law structures to public rights, the judicial protection of which affects the rights and obligations of a private nature (in particular, it concerns a tax lien, financial credit, etc.). It is concluded that the system of civil (private) law should be characterized as clear criteria for boundaries of action and separation from related fields (industries). Public law, defined by the codes of the relevant sphere (branch) of law, and take into account the tendencies of development of relevant spheres of public relations by means of norms capable to create inter-sectoral links with public-law norms in the framework of complex legislative acts.

Brexit and Competition Law: Future Directions of Domestic Enforcement

Brexit – the UK’s exit from the European Union – brings unprecedented challenges and opportunities of historic magnitude across a raft of legal and policy fields. One of these fields is competition law. These challenges and opportunities deserve careful assessment – whatever shape the outcome of the detachment process might eventually take – in order to prepare for an increasingly uncertain future ahead. This article considers and analyses the future directions for UK domestic competition law enforcement in light of Brexit. The article addresses a range of issues, including: the likelihood of significant post-Brexit reform; the government’s commitment to competition in local markets; the relevance of industrial policy; the issue of regulation; and aspects of institutional structure of the UK competition law regime. The article will also consider changes to UK competition law which currently appear on the horizon. Brexit, UK competition law, Domestic enforcement, Competition and Markets Authority

СПЕЦИФИКА УЧЕТА БРАЧНО-СЕМЕЙНЫХ ОТНОШЕНИЙ ПРИ УСЛОВНО-ДОСРОЧНОМ ОСВОБОЖДЕНИИ ОТ ОТБЫВАНИЯ НАКАЗАНИЯ: ВОПРОСЫ ЗАКОНОДАТЕЛЬНОГО СОВЕРШЕНСТВОВАНИЯ

The article is devoted to considering the specifics of taking into account marriage and family relations when considering the advisability of applying the institution of parole from serving a sentence in domestic and foreign criminal law. The article analyses the norms of foreign legislation governing issues of parole from serving a sentence, as well as a study of domestic criminal legislation and law enforcement practice on issues of parole. This analysis concluded that there are certain problems in the legal regulation of parole from serving a sentence, and judicial practice often demonstrates different approaches to solving tasks. In addition, the analysis made it possible for the author to argue that the courts practically do not impose obligations on the convicted person related to his marital and family relations. The author proposed changes to Part 2 of Art. 79 of the Criminal Code, according to which the courts, when applying parole, will be required to impose obligations on the convicted person. Among such duties, the author refers to the fulfillment of parental duties, obligations to care for elderly parents, as well as the obligation to provide material assistance to the family, to participate in the upbringing of a young child or to provide assistance (both material and other) to elderly parents if the convict does not take part in the life of loved ones.

ПРОБЛЕМНІ ПИТАННЯ ВИКОРИСТАННЯ РЕЗУЛЬТАТІВ НЕГЛАСНИХ СЛІДЧИХ (РОЗШУКОВИХ) ДІЙ..., ЩО ПОВ’ЯЗАНІ З ВТРУЧАННЯМ У ПРИВАТНЕ СПІЛКУВАННЯ, В КРИМІНАЛЬНОМУ СУДОЧИНСТВІ

Grounds, order and limits of interventional from the authorized public organs, in private life of citizens were always examined as one of scientific issues of the day, the decision of that has an extraordinarily important value for law enforcement activities. The use of covert methods of gathering information necessary for criminal proceedings is a well-established practice of both domestic and foreign law enforcement agencies. Gradual democratic development of civil society, the recognition of the inalienability and inviolability of human rights and freedoms, the realization that they belong to the man by nature and the reflection of this fact in the public consciousness created the preconditions for the state, its bodies and officials to temporarily restricts rights and human freedoms are strictly regulated, and the use of the results of interference with private communication in criminal proceedings is properly monitored. However, in some cases the use of such results is complicated, which requires the study of this problem and the search for possible solutions. The main purpose of the article is to highlight the problematic issues of using the results of interference in private communication in criminal proceedings and search, based on the theoretical achievements of scientists who conducted scientific research in this area, ways to solve them. The study found that compared to the total number of covert investigative (search) actions, only a relatively low number of results of interference in private communication are used as evidence in criminal proceedings. Among the main reasons for this are the shortcomings of fixing the progress and results of covert investigative (search) actions, violation of the procedural deadlines for their transfer to the prosecutor and the imperfect procedure for declassification material media. Due to the selection of typical violations that are allowed during covert investigative (search) actions that related to interference in private communications and some shortcomings of the legal regulation of this issue, ways to eliminate them have been proposed. In particular, it is proposed to make appropriate changes and additions to part 1 of Art. 246, part 3 of Art. 252 of the CPC of Ukraine and the interdepartmental Instruction about the organization of covert investigative (search) actions and the use of their results in criminal proceeding of November 16, 2012 № 114/1042/516/1199/936/1681/51.

CRIMINOLOGICAL FEATURES OF FINANCIAL OPERATIONS BY THE HAVALA SYSTEM

Based on the study of numerous foreign and domestic sources, the authors of this article determine the essence of financial transactions through the hawala system. It has been revealed that this system is historically determined in nature, it was used, first of all, in the countries of the Near East, Middle East and South Asia in foreign trade operations in the framework of various directions of the so-called Silk Road. This system is also practiced in our days, however, in a slightly modified form, since globalization processes fixed in recent decades throughout the world have influenced its transformation. However, in addition to traditional trading activities, hawala was often used in the criminal activities of various modern organized criminal groups (OCG), including radical Islamists. In this regard, the study of the criminological features of financial transactions through the Hawala system has gained particular relevance. At the same time, the analysis of available sources indicates the insufficient scientific development of this subject. This is especially true of the Russian Federation, which has faced since the beginning of the 90s of XX century with deviations on its territory, including numerous sabotage and terrorist acts, which were often financed through Hawala. As for the domestic law enforcement system, the term “Hawala” itself began to be used only from the middle of the first decade of the new millennium. However, in practice, the situation with countering the financing of terrorism in this area is still not up to par. By the way, in the USA they began to pay attention to this problem only after the terrorist attacks of September 11, 2001, but so far in this country it has not been possible to completely block unwanted financial flows.