Penal Code Research Articles

Pointing the Way... In the Wrong Direction: the Model Penal Code: Sentencing's Errant Approach to Restorative Justice and Its Role in Sentencing

Pointing the Way... In the Wrong Direction: the Model Penal Code: Sentencing's Errant Approach to Restorative Justice and Its Role in Sentencing

An Examination of Current Measures for Preventing Crimes Against Chastity and Public Morality at the National Level

Crimes against chastity and public morality represent a serious social and cultural challenge in Iran, particularly with the rise of modern technologies and the expansion of cyberspace, leading to an increase in such offenses. This article examines the current legal and executive measures for preventing these crimes and analyzes the existing weaknesses in the laws and enforcement mechanisms. It focuses on relevant laws such as the Islamic Penal Code and the Cyber Crimes Law, while assessing the challenges in coordination between judicial and executive institutions. Furthermore, the impact of cyberspace on the proliferation of these offenses and the difficulties in controlling and monitoring digital platforms are critically reviewed. Additionally, the study highlights the role of culture and public education in preventing crimes against public morality, proposing cultural and social solutions to raise public awareness and strengthen the role of families and schools in promoting ethical and religious values. The article also emphasizes the importance of media in fostering public morality and preventing the spread of moral corruption. Finally, recommendations are provided to strengthen legal frameworks and improve coordination between executive and cultural institutions to more effectively prevent such crimes and establish a society with sustained public chastity and morality.

Examination of the Status of Privacy in the Legal Systems of Iran and Iraq

Privacy is one of the fundamental human rights issues and a concept integral to developed legal systems, closely linked to human dignity. Respect for individuals' privacy encompasses the sanctity of their residence and workplace, as well as the confidentiality of their communications and correspondences. The legislator has sought to establish specific rules and regulations regarding the search and inspection of homes and premises, particularly during the preliminary investigation stage, to ensure that the collection of evidence is lawful, legitimate, and its admissibility is contingent upon respecting individuals' privacy. Today, safeguarding citizens' privacy and addressing its violation by others is a serious human rights issue, where effective management ensures public peace and comfort. Furthermore, the protection of privacy creates the necessary conditions for the growth and development of individuals' personalities. With the advancement of technology and human progress, invasions of personal privacy have increased, prompting the legislator to enact new laws to protect individuals' privacy. The Islamic Penal Code, Criminal Procedure Code, Constitution, laws and regulations pertaining to postal communications, telephone, press law, and the Charter of Citizens' Rights are among the laws and regulations that, at times implicitly and at other times explicitly, have supported privacy. The aim of the present research is a comparative study of criminal protection of privacy in the legal systems of Iran and Iraq. Using a descriptive-analytical method, the researcher has concluded that when dealing with crimes in cyberspace, modern technology, or new forms of deviance, it is necessary to move beyond traditional and classical definitions, reassess or reinterpret the nature of these issues, and then define the criminal act and determine its punishment based on scientific criteria. These criteria include the extent of harm caused to the victim, the values protected, real benchmarks such as the scope and impact of the crime, and considering causality and proportionality, which are critical in criminal law.

Обеспечение трудовой занятости осужденных как основное направление профилактики рецидива

In the execution of punishments and prevention of recidivism, the problem of ensuring employment of convicts remains relevant: in 2022, about half of convicts not isolated from society and registered with penal inspectorates did not work or study while serving their sentences; less than 40% of convicts were involved in paid labor in correctional institutions. The only punishment during which all convicts without exception work is a punishment in the form of forced labor. During their sentence, convicts are supervised, engaged in productive work, receive income, compensate for damages, and demonstrate a low recidivism rate. In order to achieve the preventive purpose of punishment, it is necessary to ensure employment of convicts. Labor activity is enshrined in the Penal Code of the Russian Federation as a means of correcting convicts. Nevertheless, in the modern period, a significant portion of convicts are not engaged in work while serving their sentences: in 2022, 44.8% of convicts not isolated from society and registered with penal inspectorates did not work or study; in places of deprivation of liberty, only about 40% of convicts were involved in paid work. The unemployment of conditionally sentenced persons is largely due to the fact that the courts, when applying a conditional sentence, do not impose on the conditionally sentenced person the obligation to work (find a job), although it is fixed in the list provided for in Part 5 of Article 73 of the Criminal Code of the Russian Federation. In practice, this obligation is imposed on a person after their registration with the penal inspectorate; the latter, if the conditionally sentenced person evades compensation for damage (in full or in part) caused by the crime, applies to the court with a motion to impose additional obligations. Meanwhile, from the moment of conviction until the imposition of the conditionally sentenced person’s obligation to work (find a job), a long time passes, during which the person continues to evade socially useful activities, does not have a permanent source of income, and allows unlawful behavior. In turn, in correctional institutions, the problem of ensuring employment of convicts is associated with the lack of the necessary number of orders for the needs of the penal system. After release from prison, former convicts also do not find work: according to the results of a survey of persons who committed a new crime after release from a correctional institution, 61.1% did not find a job after serving their sentence; of those who found a job, more than a half (61.4%) did random jobs. Reducing the degree of recidivism of individuals who have previously committed crimes is possible only with their maximum involvement in work activities. The only punishment during which all convicts without exception work is a punishment in the form of forced labor. When serving it, convicts are under supervision, do productive work, receive income, and compensate for damages while demonstrating a low level of recidivism. In this regard, further expansion of the use of punishment in the form of forced labor seems justified.

Смертная казнь в уголовном праве РФ: новое решение старой проблемы

This article focuses on the problems of legal regulation of the death penalty after the withdrawal of the Russian Federation from the Council of Europe and contains conclusions aimed at preserving and further regulating the moratorium of the Constitutional Court, which limited the application of this punishment. The author concludes that it is necessary to amend the legislation to make the norms on the appointment and execution of the death penalty void. The article is relevant, since the international events from 2022 onwards have escalated the discussion on the death penalty in Russian national law. The opposing viewpoints and regularly voiced doubts about the legal force of the moratorium of the Constitutional Court of the Russian Federation confirm that the problem remains unresolved and urgent. The topic of the death penalty and its regulation has long been in the focus of research. Its various aspects have been studied by Yana Yu. Vasilieva, Aleksey I. Rarog, Vasiliy A. Tirranen and others. However, the transformation of the Russian criminal law has outlined the lack of research based on current realities. The author studies the public relations regarding the death penalty, regulated by the norms of law of the Russian Federation, namely, the norms of the Constitution of the Russian Federation, of international law, provisions of the Criminal Code of the Russian Federation, and the Penal Code of the Russian Federation, as well as lawmaking of the Constitutional Court of the Russian Federation. The study was conducted using general and specific scientific (including legal) methods. The key method is formal-legal. Though not divided into parts, the article has an internal structure. It opens with the stated question, relevance and description of main approaches to the solution. The main part includes arguments in favor of amending the Criminal Code of the Russian Federation and the Penal Code of the Russian Federation, which would result in excluding the death penalty from the current legislation altogether. The article ends with a brief summary of the research. The conclusions may serve as a basis for amending the provisions of the Criminal Code of the Russian Federation and the Penal Code of the Russian Federation. In addition, the provisions of the article may be the basis for future scientific research on the death penalty.

행정형법의 실체법적 문제점에 관한 소고

The overuse and abuse of criminal law in what is called the Risk Society is an unfortunate trend. Over the past 40 years, administrative criminal law has expanded significantly in size and scope, encompassing the prosecution and judgment of violations of administrative law such as financial market law, tax law, building law, fair trade law, and environmental law. It is estimated that nearly 1,000 statutes contain criminal penalties, with approximately 12,500 criminal code provisions in those statutes. A more significant problem is that many of these regulations, motivated by the aim of controlling risk rather than enhancing social justice, are often too vague or obscure. This makes it challenging to punish individuals who violate criminal offences without criminal intent or even knowledge that these offenses exist.
 The Serious Accidents Punishment Act is a typical example of administrative criminal law containing numerous ambiguities, likely leading to considerable confusion during enforcement. This confusion results in many gray areas, sparking widespread debate throughout the business community. The new law, implemented on January 27, 2022, aims to penalize the owners and management of companies with 50 or more workers for failing to fulfill their duties to prevent serious accidents.
 This article examines the characteristics of administrative criminal laws and analyzes the problems associated with them, such as challenging the principle of clarity and the culpability principle required under the penal code. Moreover, it suggests that Congress should amend or repeal redundant or superfluous administrative criminal laws to avoid overcriminalization and excessive punishment. This would eliminate vague, overly broad criminal offenses, preventing arbitrary application of criminal statutes. Regarding the Serious Accidents Punishment Act, urgent action is needed to abolish or at least amend the law to clarify the obligations and offences for preventing practical serious accidents.

양형상 책임 반영과 예방 고려

This essay aims to review the rationale of sentencing in Korean criminal laws and procedures to understand how to secure rational sentencing with the rationales of sentencing, such as responsibility of offenders and general deterrence or specific deterrence. Shuldprinzip or principle of responsibility is the fundamental basis of criminal punishment, which also acknowledged as constitutional principle for criminal laws. However, Korean Penal Code has no definite provisions on the purpose(s) of punishment or sentencing. Considering such statutory definition of the rationale is necessary for rationalizing sentencing discretion, Article 51 of the Penal Code is the only relevant provision on some ‘general principles’ of sentencing : In determining punishment, the following shall be taken into consideration: 1. The age, character and conduct, intelligence and environment of the offender; 2. Offender's relation to the victim; 3. The motive for the commission of the crime, the means and the result; 4. Circumstances after the commission of the crime. Also, Korean sentencing guideline system under the Court Organization Act has set some principles of setting or changing the sentencing criteria: 1. The nature of crimes, the circumstances of crimes, and the extent of the responsibilities of defendants shall be reflected; 2. The general deterrence, the prevention of defendants from committing crimes again and their return to society shall be taken consideration; 3. As long as there is no difference between the same kind of crimes and the similar kind of crimes in the sentencing elements that have to be taken into account, they shall not be differently handled in the sentencing of them; 4. The sentencing shall not be discriminated against defendants on the grounds of their nationalities, religions, conscience, social statuses, etc. (Article 81-6(2)) Now the sentencing guideline system is taking the role of rationalizing sentencing discretion by both reflecting responsibilities of defendants and considering the general deterrence of crimes or the prevention of defendants from re-offending and their rehabilitation, and further realizing the purposed of just punishment. According to the law, when setting and changing the sentencing guidelines, the guidelines should reflect the degree of responsibility of the defendant, and consider the general prevention of crime and the prevention of recidivism and social rehabilitation of the defendant. So for the rationalization of sentencing, it should be possible to make sentencing-policy judgments on responsibility and prevention considerations through the principles of responsibility and prevention considerations rather than unclear normative adjustments of sentencing guidelines.

Combating the Macau Scam in Malaysia: Strategies for Mitigation and Resolution from Civil Law and Sharī'ah Perspectives

The phenomenon of cybercrime fraud that occurs in Malaysia has now become a hot topic of discussion. The financial loss and psychological distress experienced by the scam victims has brought attention to the Macau Scam problem in Malaysia. Due to the frequency of people who are too easily deceived by this syndicate’s modus operandi, Macau Scam every day becomes headlines in the newspaper. This causes people frustrated as fraud can happen to anyone if the public is not exposed or is not aware of this matter. There are various awareness campaigns that have been carried out by the authorities to reduce the risk of victim involvement in this fraud syndicate but there are still many more involved and show no reduction. To prevent people from being victims of this form of fraud and to maintain justice to stop this issue from getting worse, Malaysian law provides several protections and remedies. Therefore, the objective of this study is to identify the issues of Macau Scams in Malaysia and to investigate the adequacy of the existing Malaysian Cybers Laws in providing the protection and remedies to the affected victims from the perspective of Civil Law and Sharīah perspectives. In terms of methodology, researchers use a qualitative approach method consisting of document analysis where all information and data are obtained from primary and secondary sources which consist of various Acts, Enactments, journal articles, books, newspapers, and many others. As a result of document analysis, researchers found that several cyber laws that can be used to overcome this problem such as Anti-Money Laundering and Terrorist Financing Act [Act 613], Section 420 of the Penal Code [Act 574], the Communications and Multimedia Act 1998 [Act 588], Computer Crime Act 1997 [Act 563], Electronic Commerce Act 2006 [658], Personal Data Protection Act 2010 [709] and Consumer Protection Act 1999 [Act 599] (Amendment 2010) while the level of awareness among the public is one of the leading causes of this scam issue.

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.

INTERDISCIPLINARY INSIGHTS INTO SYARIAH AND LEGAL DISCOURSE: NAVIGATING CRITICAL DIMENSIONS, CONTEMPORARY CHALLENGES, AND GLOBAL IMPACT

The Malaysian Journal of Syariah and Law (MJSL) Volume 11, Issue 2 for 2023, presents a diverse collection of sixteen articles that explore various dimensions of Syariah and Law. This issue features sixteen diverse articles traversing critical dimensions within the domains of Syariah and Law. The illuminating scholarship inquiries into conflicts surrounding land development legislation in Malaysia as a case study, intersections between self-determination and terrorism under international law, innovative Islamic financing mechanisms, preventative health policies in religious institutions, issues impacting the elderly, variations in Shariah governance models, dynamics shaping traditional governance structures, legal and political considerations around foreign investments, extremism affecting the Islamic community and ethical foundations guiding the Islamic finance industry. The Commentaries section discusses specific issues within the focus towards leveraging Islamic finance principles for poverty alleviation, the constitutionality of Section 498 of the Penal Code at the intersection of Islamic teachings, personal law, and morality in Malaysia and emerging technologies to transform intellectual property security. Collectively, these articles underscore MJSL’s emergence as a leading platform for discourse surrounding Islamic jurisprudence, legislation, finance, ethics and contemporary challenges at the intersection of syariah and law. These articles collectively contribute to a global perspective on legal discourse, reflecting MJSL's commitment to high editorial standards and impactful research dissemination. The inclusion of MJSL in Scopus beginning in July 2023, with content retrospective to 2019, signifies a significant milestone that emphasizes the journal's worldwide significance and dedication to academic distinction.

CYBERCRIME OF READING INFORMATION OBSTRUCTION UNDER ART. 268 OF PENAL CODE AS A THREAT TO SECURITY OF THE REPUBLIC OF POLAND

This article presents issues that determine the protection of the security of the Republic of Poland against the threats posed by computer crime. In particular, it discusses cybercrime under Art. 268 of the Penal Code. The crime of obstructing the reading of information, regulated by Art. 268 § 2, provides for criminal liability of persons whose conduct prevents or significantly impedes the access of an authorized person to important information stored on an IT data carrier. In Art. 268 § 3 of the Penal Code, however, an aggravated type of crime is provided for, which involves causing significant property damage.

Is The Intangible Compensated? The Problem of Compensation for Intangibles in Ḥanafī Madhhab and Late Ottoman Law

One feature distinguishing the fiqh madhhabs (sects) that emerged in Islamic history from each other is their theological and philosophical views. When the jurisprudence of the madhhabs is analysed, it is seen that the practical rulings emerge according to a particular theological and philosophical background. For example, the ontological background of the Ḥanafīs is reflected in their views on property, which one of the most fundamental issues of law. They considered existence from a material point of view. They did not accept the benefits that do not have a material existence and that arise depending on the substance of material assets as property in law. What is not property cannot be damaged. Therefore, it cannot be compensated. The Ḥanafīs adhered to their ontological principles to maintain their legal consistency. However, these principles caused some problems to arise over time. Although they overcame these problems with the principle of necessity, this was not enough to eliminate the problem. This problem came to the agenda even in the last periods of the Ottoman Empire. However, there was a new systematics in the field of law then. The issue was dealt with in the articles of law, not in the theoretical texts in which the accumulated knowledge of the madhhab was transmitted. The ontological principles of the Ḥanafīs were distributed to many areas of law within the new system. However, in the last period of the Ottoman Empire and contemporary studies, only the part of the subject reflected in the law of obligations has been addressed. However, areas such as the Press Law and the Penal Code seem to have been ignored, as well. When the other legal texts are analysed, a situation different from that in Med̲j̲elle stands out. The Press Law and the Penal Code had already done what the Med̲j̲elle commissions could do much later. In these laws, things that do not exist in material terms are legally recognized as property.

Restorative Justice Discourses in Papiackum Witticism: A Socio-Pragmatic Analysis

Justice is fundamental in every nation building process as most nations have prioritised criminal justice system in which criminal sanctions and incarcention are inherent. To operational this form of justice, some nations especially Cameroon have enacted legal texts to ease its implementation notably, the penal code and the New Criminal Procedure Code. Contrary to criminal justice, restorative justice which is based on making amends is a key feature of African culture. This paper therefore aims at analysing aspects of Papiackum Witticism as speech acts to show the relationship between criminal offences and restorative justice. From the theoretical praxis of Functionalism, this paper operates on the premise that in Papiackum worldview, the concept of restorative justice is highlighted via its norms and values when criminal behaviours are proven. The Papiackum is a speech community in the Ngoketunjia Division, North West region of the Republic of Cameroon.

FRANSIZ CEZA MUHAKEMESİ KANUNU'NDA SORUŞTURMA MAKAMLARININ UZAKTAN ETKİNLEŞTİRME YOLUYLA ELEKTRONİK CİHAZLARDAN GİZLİCE DELİL ELDE EDEBİLMESİ

The proposal that adds amends Article 230-34 with Article 230-34-1 and Article 706-96-1 with Article 706-96-2 in the French Penal Procedural Code creates an amendment allowing the collection of evidence through audio and visual recordings, as well as geolocation data, by accessing technological devices. This is particularly relevant in cases related to terrorism and organized crime. Additionally, new paragraphs have been amended to Articles 230-36 and 706-97 of the French Penal Procedural Code. As a result of these amendments, investigation authorities are for the first time in a penal procedural code, empowered to secretly obtain evidence from electronic devices through remote activation. In this context, the current article will address how and which authorities can listen to a person during an investigation, the offenses that allow this measure to be applied, the limitations of cataloged offenses, and how eavesdropping for intelligence purposes will be conducted. Considering this information, the article will also explore the effect the regulation will primarily have on the right to defense, right to privacy, freedom of communication, and protection of personal data.

Criminal Liability for Acts Leading to the Spread of Infectious Diseases in the Regulations of the Penal Codes of Selected European Countries

Counteracting the spread of infectious diseases poses a challenge for the efficient running of a state. The most common aspect of this issue concerns the establishment of appropriate legal regulations aimed at protecting human life and health against the spread of biological pathogens causing infectious diseases. In recent years, this issue has taken on a particular importance with the SARS-CoV-2 pandemic. National legislators have taken a number of legislative initiatives as a response to the emerging threat. However, in some cases, the existing regulations were considered sufficient. Legal scholars consider these issues primarily from the perspective of general administrative law. These include administrative law sanctions for non-compliance with prohibitions established within this field of law. However, the problem addressed in the title may also be considered from the perspective of criminal law, in particular in relation to the protection of human life and health. The central point of consideration is the protection of these values (individually and collectively) against the transmission of infectious diseases due to human negligence.

Crimes Against Peace, Humanity and War Crimes as Offences of Terrorist Character under Article 115(20) of Polish Criminal Code

The article analyses crimes against peace, crimes against humanity and war crimes from the perspective of the construction of a terrorist offence under Article 115(20) of the Polish Penal Code. The author discusses the concept of state terrorism in social sciences, such as criminology and political science, and points out the controversies surrounding this concept. This is followed by an analysis of the terrorist offence in the Criminal Code and the arguments supporting the view that the offences in Chapter XVI of the Criminal Code can be regarded as fulfilling the conditions of a terrorist offence. Such a solution implies the application to the perpetrators of such offences of stricter rules for the imposition of punishment and probation measures in accordance with the provisions of Article 65(1) of the Criminal Code.

Akomodasi Common Law System Dalam KUHP Baru: Konsep Hukuman Kerja Sosial Sebagai Alternatif Pidana

In the context of modern society, an effective and efficient legal system is of paramount importance. This article delves extensively into the concept of community service orders as an alternative to imprisonment and fines in the new Indonesian Penal Code (KUHP). The objective is to expound upon the significance of this concept and provide recommendations concerning changes in the legal system. A descriptive methodology is employed in this study to explore various perspectives on this issue and offer profound insights into the concept. The findings indicate that community service orders hold the potential to enhance the effectiveness of the penal system and contribute to the goals of rehabilitation and justice in modern society. However, for the successful implementation of this concept, a robust understanding of the practical aspects is necessary, including the choice of locations, clear legal regulations, and learning from the experiences of other countries that have adopted community service orders. These experiences can serve as a source of inspiration to minimize potential obstacles in the implementation of community service orders in Indonesia.

Criminal policy and sanctions in the 2020s and onwards: Determinants of penal culture in Finland during the last 150 years

This article provides a fragmentary overview of the developments of criminal law and criminal policy in Finland during the last 150 years. It reflects the author’s experiences as a criminal scientist and an expert in drafting criminal legislation over 50 years. This review uses the conclusions from Cesare Beccaria’s classic, centuries-old book as its starting point: a punishment may not be an act of violence, but should be public, immediate, necessary, as minimal as the case allows, proportional to the crime, and determined by law. The Finnish Penal Code of 1889 was originally thoroughly permeated by both the principles and the spirit of the classical school of penal law, wherein punishment was primarily regarded as retribution for an offence and the penal system was therefore tolerably harmonious with the demands of general deterrence. More weight was given to individual prevention when the Code was first drafted. Later on, the influence of the sociological school of penal law, which focused on the offender and individualized criminal sanctions, led to partial reforms of the penal system, such as the enactment of the Conditional Sentences Act of 1918, the Dangerous Recidivists Act of 1932, and the Young Offenders Act of 1940. The day fine system of 1921 and the fluctuations in the ideology regarding indeterminate penal sanctions are analyzed. The total reform of the Penal Code between 1972 and 2003 aimed to create a more rational penal system – one designed for efficient, just, and humane criminal justice. An ambitious attempt was made in as uniform and systematic a way as possible to assess the goals, interests, and values that the new Criminal Code should promote and protect. The existence of the criminal justice system was justified on utilitarian grounds. The structure and operation of a penal system, however, cannot be founded solely on the basis of utility; the criteria of justice and humaneness must also be applied. The penal system must be rational in regard to both its goals (utility) and its values (justice and humaneness). The developments since the 1990s have been characterized by the influence of human rights and basic rights on both criminal and procedural law, as well as by the effects of internationalizing and Europeanizing the criminal justice system. The latter tendencies have resulted in the diversification of criminal law.

The Legal Landscape: A Comparative Examination of Religious Blasphemy Enforcement in Egypt and Indonesia

The objective of this study is to ascertain the comparative analysis of religious blasphemy legislation in Egypt and Indonesia. This study also elucidates the implementation of religious blasphemy legislation in Egypt and Indonesia. This study involves comparative legal research. Comparative research was conducted to gather additional insights on the blasphemy laws in Egypt and Indonesia. This study employs library research methodology to gather both primary and secondary data. The findings of this study indicate that the legislation governing religious blasphemy in Indonesia is law number. 1/ PNPS/1965, but in Egypt it is article 98 of the Egyptian Penal Code. Additionally, this study discovered parallels in the implementation of religious blasphemy legislation in Egypt and Indonesia. The implementation of anti-blasphemy legislation in both nations frequently subjects defendants to a succession of grave human rights infringements perpetrated by both private individuals and government agents

Provocation and Diminished Capacity in Nordic Criminal Law: Two Rationales for Mitigating Crimes of Violence Committed in an Agitated State of Mind

One of the key distinctions when assessing crimes of violence, such as intentional homicide and assault, is that between acts committed in ‘cold’ and ‘hot blood’. The last term refers to acts committed in an intense emotional state, usually in response to a perceived insult from the victim. In the penal codes of Denmark, Norway and Sweden, mainly two types of mitigating circumstances are associated with these acts. These mitigating circumstances can be referred to as ‘provocation’ and ‘diminished capacity’. In this article, the division between these two types of different provisions is challenged through an analysis of their rationale. Finnish criminal law is presented as an alternative to making the distinction. The article’s analysis highlights the underlying psychological and moral assumptions about emotions and violence on which these provisions on mitigating circumstances are built.