Penal Legislation Research Articles

On the issue of the responsibility of convicts for evading serving sentences not related to isolation from society

The inevitability of punishment is the main condition for ensuring the effectiveness of its implementation. Institute of Responsibility persons evading serving criminal sentences, is intersectoral and represents a special legal form of response of the state, represented by authorized bodies and officials, to the behavior of convicts that does not meet established requirements. The core of this institution is the provisions of penal legislation. In the article, the author analyzes the legal consequences of persons evading serving sentences not related to isolation from society. The research objectives were: differentiation of types of legal liability for evasion from serving sentences, consideration of signs characteristic of malicious evasion from serving sentences not related to isolation from society, as well as analysis of judicial practice on these issues. Based on the results of the study, the author proposes a classification of convicts evading serving sentences, identifying signs of malicious evasion from serving sentences not associated with isolation from society, which vary depending on the type of punishment in question. The idea of the need to exclude the evaluative position of the courts when establishing the fact of malicious evasion of a convicted person from serving a sentence is substantiated, and it is also determined that replacing the unserved part of the sentence with a more severe one and adding restrictions previously established by the court are special types of criminal liability.

“The Age of Malice”: Estupro, Consent, and the Foundations of Victim Blaming in the Criminal Courts of Buenos Aires, 1853–1878

This article examines the judicial treatment of pubescent, female victims of sexual assault in Buenos Aires, Argentina, between 1853 and 1878, dates that span the decades between the national constitution and the adoption by Buenos Aires Province of new penal legislation. Centering the case of 13-year-old Irene Mestosini, it analyzes the prosecution of estupro cases through the paradigm of rape culture and victim blaming. It exposes how, by casting pubescent girls as malicious because of their physical and mental development, authorities blamed them for their assault while dismissing men's aggressive sexuality. By illustrating the ways in which physiological development worked alongside legal cultures, class expectations, and heteronormative gender norms to create a culture of impunity around sexual assault, this article suggests that modern notions of acceptable and unacceptable sexuality emerged in Buenos Aires earlier than in other parts of Latin America, where honor remained a central concern well into the twentieth century.

НАУЧНЫЕ ВЗГЛЯДЫ НА СИСТЕМУ РАЗДЕЛЬНОГО СОДЕРЖАНИЯ ОСУЖДЕННЫХ К ЛИШЕНИЮ СВОБОДЫ

The differentiation of persons sentenced to imprisonment and the rules for their separate detention in various types of correctional institutions are based on the norms of criminal and penal legislation. Additional aspects of separate detention are regulated by the orders of the FPS of Russia, the instructions of the administration of the correctional institution. The issues of separate detention of persons sentenced to imprisonment are becoming particularly relevant in the reform of the penal system. The article examines the various positions of scientists regarding the stated problem.

The Legal Nature and Penalties for Data Capital Destruction: An Analytical Study in the Jordanian Penal Legislation

This research analyzed the legal nature and penalties of data capital destruction. The descriptive analytical approach was used. Moreover, the findings revealed that the Jordanian legislator stressed the penalties imposed for crimes of data destruction. This is applicable whether in the form of deprivation of liberty or a financial penalty, and whether the crime was a misdemeanor or a felony. Furthermore, the legislator resorted to withholding the discretionary authority of the judiciary in choosing between the two penalties. The recommendations stressed that the legislator reconsider Articles 7 and 6 of the Cybercrime Law so that these articles will limit penalty to the crimes actually committed. The principle of technical referral contained in Article 26 of the Cybercrime Law should also be dispensed with.

Institute Of Conditional Early Release In The Republic Of Armenia

The article refers to the analysis of the institution of parole from the further serving of the sentence of persons sentenced to a certain term or life imprisonment in the Republic of Armenia, in particular, the current and previous legislative regulations, the changes made, their comparison, the problems arising in practice, as well as the possible new legislative changes for their solution. In the article, an attempt was made to outline in the most accessible and accessible way possible the legislative regulations regarding early release from punishment, one of the fundamental rights of persons sentenced to life imprisonment or a certain period of imprisonment, which is an important and integral part of the penal legislation during the formation of the new legal system after the achievement of independence in the Republic of Armenia, because in practice the majority of complaints among convicts relate to the problems arising in the process of their parole. An analysis was made of both the previously existing legal regulations and the new legal regulations that came into force on July 1, 2022, and their differences were also analyzed. The article also describes the legal positions expressed in precedent decisions of the RA Court of Cassation regarding the parole of persons sentenced to life imprisonment or a certain period of imprisonment, as well as the international practice regarding it. The current legislative regulations in the Republic of Armenia were compared with the international practice. Accordingly, the Order 336-L of the RA Minister of Justice of June 12, 2018, which is a cornerstone in the process of parole for persons sentenced to life or a certain term of imprisonment, needs to be amended and amended in terms of assessing and summarizing the standards of convicts.

Punitiveness of society and criminal policy in six Central European countries

The countries of Central Europe are home to diverse penal cultures but rare comparative studies typically focus only on national penal codifications or on cross-country measures of public attitudes towards crime and punishment. This article compares three dimensions of punitiveness – penal legislation, actual sentencing practice of the courts, and punishment preferences of the general public – in six jurisdictions: Austria, Czechia, Germany, Hungary, Poland, and Slovakia. Punishment preferences features new data from the Central European Social Survey, in which respondents were asked to recommend suitable sentences for five hypothetical crimes. We found public preferences relate closely to the domestic judicial practice but less so to the maximum penalties provided in a country's penal code. In particular, participants based in Germany proved far less punitive than others, which echoes the penal moderation of German courts.

The legal regulation of the crime of enforced disappearance in Iraqi law

Iraq occupies an advanced position in the list of countries that suffer from widespread cases of enforced disappearance, but its penal legislation is still devoid of punishment for the crime of enforced disappearance, despite the fact that it is one of the first countries to accede to the International Convention for the Protection of All Persons from Enforced Disappearance of 2006 based on Act No. (17) of 2010 which raises the question of how criminal accountability for the perpetrators is based on national legislation, especially the Penal Code No. (111) of 1969 and the Iraqi Supreme Criminal Court Act No. (10) of 2005. To exclude the legislative shortcomings in the punitive legislation regarding the criminalization and punishment of enforced disappearance, the efforts of the Iraqi legislator in recent years have culminated in the introduction of the draft law against enforced disappearance of 2018, as well as the draft penal code of 2021, which constitutes a significant step towards Iraq’s fulfillment of its international obligations stemming from the international convention For the Protection of All Persons from Enforced Disappearance of 2006. The research is devoted to studying Penal Code No. (111) of 1969 and the Iraqi Supreme Criminal Court Act No. 10 of 2005 to examine the possibility of their application to cases of enforced disappearance. It also includes an explanation of the mechanisms for the enforcement of international conventions, especially the International Convention for the Protection of All Persons from Enforced Disappearance of 2006, in Iraqi legislation, as well as an analysis of the texts of the draft law against enforced disappearance of 2018 and the draft Penal Code of 2021 to present appropriate recommendations regarding the criminalization and punishment of enforced disappearance in them.

ADOPTING A STRICT LIABILITY APPROACH TOWARD GENOCIDE

The Genocide Convention lists intent as a critical element that must be proven to secure convictions for genocide. Many defendants have been acquitted or convicted of lesser crimes due to the difficulty in proving genocidal intent. The argument presented in this paper is that the large-scale negative impact of genocide on humanity should be considered when defining its scope in penal legislation. A fortiori, the crime of genocide should be given similar consideration to other crimes that have been classified as strict liability crimes due to their severity and cost to society. Intent as an element should, therefore, be deduced from the general purpose of the perpetrator’s acts. Although the strict legality principle is not perfect and has some flaws, it is still the most just, effective, coherent, persuasive, and proper reading of the genocide convention. The goal here is to contribute to the conversation on the limitations of genocidal intent to the effectiveness of the enforcement of the crime of genocide in international criminal law.

Проблемы достижения целей уголовно-исполнительного законодательства в отношении лиц, осужденных за преступления террористического и экстремистского характера

экстремизм и терроризм приобретает в последнее время все большую опасность и масштаб. Распространение экстремистских идей в учреждениях уголовно-исполнительной системы (далее УИС) фокусируют внимание на проблеме достижения целей уголовно-исполнительного законодательства. Автор подчеркивает, что, оказавшись в местах лишения свободы, лица, осужденные за террористические и экстремистские преступления, не только не отказываются от своих убеждений, но и пытаются распространить деструктивную идеологию на спецконтингент. Обеспечить изоляцию таких лиц от других категорий осужденных невозможно, а меры профилактического характера для предупреждения совершения преступлений не в полной мере эффективны. extremism and terrorism have recently become increasingly dangerous and widespread. The spread of extremist ideas in institutions of the penal system (hereinafter referred to as penal system) focuses attention on the problem of achieving the goals of penal legislation. The author emphasizes that, once in prison, people convicted of terrorist and extremist crimes not only do not renounce their beliefs, but also try to spread destructive ideology to special populations. It is impossible to ensure the isolation of such persons from other categories of convicts, and preventive measures to prevent the commission of crimes are not fully effective.

Формирование законодательства и уголовно-исполнительной системы Донецкой Народной Республики (изучение опыта)

The article provides an analysis of the regulation of public relations in the Donetsk People's Republic in the field of criminal, penal legislation, characterizes the mechanisms for ensuring the rights of citizens and the interests of society and the state in the context of creating norms, developing the practice of their application.

Legal Nature of Failure to Enforce a Sentence

Failure to enforce a criminal sentence is traditionally viewed through the prism of the responsibility of the one who ensures enforcement of a sentence and the one to whom the sentence is assigned for enforcement. Meanwhile, criminal and penal legislation provides for a number of situations when the imposed sentence is not carried out based on considerations of expediency. Such a failure to enforce may be complete or partial, conditional or unconditional. This practice is quite common in law enforcement. Attention is given to the imperfection of legislation on the failure to enforce a sentence, to fundamental inaccuracies in its application in practice, and proposals are made to improve criminal law policy in this direction.

FINALIDADE DA PENA E SUA EFICÁCIA PERANTE A ATUAL SITUAÇÃO DA SOCIEDADE BRASILEIRA

This article has os its theme the analysis of the effectiveness of the purpose of the penalty, according to the theory adopted by the penal legislation in force, given the current situation of Brazilian society. For this purpose, the work has as generais objective to verify if the purpose of the penalty is effectively achieved in our current society and, as specific objectives, the analysis of the different theories of the purpose of the penalty, its framing in the penal legislation in force and the reflexes in the society contemporary. The applied methodology was bibliographic research, using the hypothetical-deductive approach method. The concepts listed demonstrate that the mixed theory of the purpose of punishment adopted by the national legislator is the one that best meets the fundamental principles of the dignity of the human person. However, due to several problems, the purposes of the penalty, especially the preventive one, are not reaching full effectiveness in our current society.

Electronic Sexual Harassment Crimes in the Jordanian Penal Legislation

The negative use of modern electronic means has led to the emergence of a new type of crime. It is committed in an electronic environment, including crimes that constitute an outrageous sexual assault on the victim's body, which requires a legislative response. The descriptive and analytical approach is used in this paper. The study showed that protecting the body from every illegal sexual practice is the interest that the law aims to protect when it intervenes in criminalization and punishment. The criminal touches the body of the victim without his/her consent by extending to his private parts or revealing them. The study concluded that the Jordanian Cybercrime Law punished sexual exploitation crimes committed against children and the psychologically and mentally handicapped. It is devoid of any special and explicit text criminalizing the act of sexual harassment committed by electronic means such as chat rooms and electronic social networking sites. Under Article 15 of the same law, the criminalization of these crimes can be subject to the legal model of the crime of sexual harassment contained in the Penal Code.

Examining Bribery as a Financial Crime in the Private Sector within the Framework of Jordanian Penal Legislation

This research critically evaluates the strategies employed by the Jordanian criminal legislator in formulating conditions for the crime of bribery within the private sector, focusing on elements related to criminalization and punishment. Utilizing descriptive and analytical methodologies, the study delves into the multifaceted dimensions of the prevailing legal framework, unraveling intricacies associated with its execution. The findings accentuate the existence of practical impediments in addressing bribery within the private sector, leading to the development of recommendations designed to alleviate these challenges. The study significantly contributes to a more profound comprehension of the intricate dynamics involved in regulating bribery in Jordan, offering valuable insights for legal practitioners, policymakers, and scholars. The insights derived from this research hold particular relevance for understanding the subject matter comprehensively, providing a nuanced perspective on the complexities of dealing with bribery in the private sector within the legal context of Jordan.

Актуальные направления уголовно-исполнительной политики Российской Федерации

The purpose of this article was to analyse the current topical directions of the penal enforcement policy of the Russian Federation, which is quite dynamic, constantly developing and improving, taking into account the influence of economic, political, social and spiritual factors on it. There are quite a large number of topical directions of the penal enforcement policy of the Russian Federation, among which the authors have identified the following: humanisation of the execution and serving of criminal sentences; ensuring the rights and legitimate interests of convicts; optimisation of the organisational and structural structure of the system of institutions and bodies executing criminal sentences; ensuring the security of the penal enforcement system and other subjects of penal enforcement relations; introduction of information technologies; implementation of inter-prisoner relations; and implementation of the international legal framework. Humanisation was most clearly manifested in changes in the types of regime and conditions of serving sentences for socially vulnerable categories of convicts. The trend of humanisation has affected both those convicted of crimes of minor and medium gravity and those convicted of serious and especially serious crimes, including those serving life imprisonment. In order to ensure the rights and legitimate interests of convicted prisoners, it is necessary to create effective safeguards to protect them from cruel or inhuman treatment, unlawful violence and the use of torture. Within the framework of optimising the organisational and structural design of the system of institutions and bodies executing criminal sentences, there are three projects reflected in the conceptual documents. In ensuring the security of the penal correctional system and other subjects of criminal-executive relations and the introduction of information technologies, it is planned to create a comprehensive system for the protection of the information system operating in the penal correctional system, including the protection of the personal data of both inmates and correctional personnel. An important element of security is the technical equipment of correctional institutions and correctional centres. Within the framework of the implementation of international standards in penal legislation and practical activities of the penal correctional system, it is pointed out that due to recent foreign policy events, the considered direction of penal policy is now beginning to lose its dominant importance, however, in the current realities, additional measures should be taken to strengthen national guarantees of respect for the rights of convicted prisoners, created, among other things, by taking into account the UN international standards in the field of treatment of prisoners. The constant and priority directions in the development of penal enforcement policy over the past decades have been the humanisation of the procedure and conditions for serving sentences and ensuring the rights and legitimate interests of convicts. However, this constancy of penal enforcement policy does not prevent the emergence of new directions, which are reflected in the current penal enforcement legislation and the activities of institutions and bodies executing criminal sentences and other measures of a criminal-legal nature.

О роли конституционных норм в формировании и развитии уголовно-исполнительного права

The article considers various aspects of the influence of the norms of the Russian Constitution on the formation and development of penal enforcement law. The author does not support the position that the Constitution is a direct source of law of this branch. At the same time, there are a number of manifestations of the determining role of the Constitution for penal legislation, in addition to the traditionally mentioned in the literature influence of Chapter 2 of the Constitution on the legal status of convicts. This refers to the very name of the criminal-executive law, to the definition of the range of sources of legislation, to the establishment of its correlation with universally recognised international acts. The author considers the prohibition of ‘violence’ contained in the Constitution and the Criminal Executive Code, which equates all violence with torture, as unrealistic and very controversial from the standpoint of international standards. A systemic interpretation of the norms of the Constitution and universally recognised international acts does not allow to regard the compulsory labour contained in the Code for the majority of prisoners sentenced to imprisonment as a violation of the constitutional prohibition of forced labour. This should be reflected in the norms of the General Part of the Penal Enforcement Code of the Russian Federation. Taking into account the amendments to the Constitution of Russia adopted in 2020, it is advisable to adapt to modern conditions the previously successful experience of involving representatives of civil society in the implementation of penal enforcement policy. The content of Article 9 of the Code on the concept of correction of convicted persons should also be clarified in the direction of greater compliance of its content with the traditional values of Russian society. In our opinion, it makes sense to specify it: "Correction of convicts is the formation of their readiness and ability to consciously comply with the requirements of the criminal law in the spirit of respect for man, society, the state and the basic traditional moral values of Russian society". The latter are formulated in Article 5 of the Decree of the President of the Russian Federation dated 9 November 2022. No. 809 "On Approval of the Principles of State Policy for the Preservation and Strengthening of Traditional Russian Spiritual and Moral Values": life, dignity, human rights and freedoms, patriotism, citizenship, service to the Fatherland and responsibility for its fate, high moral ideals, strong family, creative labour, priority of spiritual over material, humanism, mercy, justice, collectivism, mutual assistance and mutual respect, historical memory and continuity of generations, unity of the peoples of Russia.

I movimenti simbolici del diritto penale, tra immaginari di libertà e allegorie della sicurezza

The essay addresses the experience of movement as a pro-cess of modeling reality and, more specifically, as a seman-tic and socio-semiotic device of influence of the political antagonism between freedom and security in the criminal field. Starting from a specific feeling of justice that seeps from the ‘symbolic’ criminal law, it aims to comment that par-ticular genealogy of cultural and social discursiveness from which the imaginary of presumed criminal risk and the con-sequent need to foresee exemplary punishments takes off, in the movement of history. Ultimately, the essay argues how the danger of the decline of criminal law always lurks in the movement of society, i.e. the real possibility that movement is read without iuris prudentia and therefore only as a justifica-tion to promote torrential penal legislation and a criminal law far from being a regulatory tool of extrema ratio.

Minority, cause of general differences in the application of criminal treatment

This article deals with the particular aspects regarding the criminal treatment that applies to a special category of offenders, namely the category of juvenile offenders.
 Beyond any attempt by society to involve in educating man from the earliest age, his antisocial manifestation is a reality of contemporary society and society in general, since ancient times.
 An unexpected violence on the part of a child, seemingly harmless, always produces a surprise effect, often associated with some form of misunderstanding on the part of the child of what he has manifested.
 To the child, the adult associates an image of purity and innocence.
 Unfortunately, at the level of objective reality, things are not always like that, so an important segment among children, minors, is drawn into a complex and extremely harmful phenomenon for society, the criminal phenomenon.
 Although part of the general criminal phenomenon, the criminality of minors raises some special problems within the penal legislation, completely different from those concerning the criminality of adults. This aspect is determined by the special quality of the criminal, that of a child, a minor.
 In this article, we will address the particular aspect of the quality of a minor in order to observe that minors benefit from a distinct criminal treatment compared to adults, when they intentionally or accidentally enter what is called the field of criminal law.

Certain problems of qualifying evasion from serving a sentence of imprisonment (Part 2 of Article 314 of the Criminal Code of the Russian Federation)

The subject of the study is the criminal law norm establishing criminal liability for evasion from serving a sentence of imprisonment (Part 2 of Article 314 of the Criminal Code of the Russian Federation), the practice of applying this norm, issues of improving the text of Part 2 of Art. 314 of the Criminal Code of the Russian Federation. The purpose of the work is to identify problems that arise in the process of qualification and differentiation from related crimes (Article 313 of the Criminal Code of the Russian Federation). The penal legislation is analyzed regarding the provision of travel for convicts outside the correctional institution. The research methodology is based on general scientific (logical, systemic, analysis, interpretation, generalization) and special scientific (specific sociological, formal legal) methods. The relevance of this study is due to the presence of emerging contradictory judicial practice in cases of evasion from serving a sentence of imprisonment (Part 2 of Article 314 of the Criminal Code of the Russian Federation). The necessity is substantiated for the mandatory establishment of the legality of the grounds for the convict’s departure from the correctional institution in order to carry out a fair classification of the criminal act. In support of the theses presented, statistical data on persons prosecuted under the criminal law norm in question is provided. Proposals have been formulated to improve the text of Part 2 of Art. 314 of the Criminal Code of the Russian Federation regarding the failure to appear at the relevant body of the penal system of a person sentenced to imprisonment, who has been granted a deferment of execution of a sentence or serving a sentence, upon expiration of the deferment period.

SOSYAL MEDYA PLATFORMLARINDA DEZENFORMASYON FAALİYETLERİ VE CEZA HUKUKU BAĞLAMINDA SORUMLULUK: TWITTER PLATFORMUNDA BİR VAKA İNCELEMESİ

Sosyal medya kanalı olarak isimlendirilen birçok farklı uygulama geliştirilmiştir. Günümüzde, bu uygulamlardan bazılarının hem kamusal alanda bireysel fikirlerin yazılı ve görsel ifadelerle paylaşılabildiği hem de güncel gelişmeleri takip etmeye imkân sunan bir platform halini de aldığı görülmektedir. Bu platformalar arasında bu amaçla en çok kullanıcı sayısına sahip olanı ise Twitter’dır. Bu çalışmanın amacı, Twitter özelinde bir vaka incelemesi gerçekleştirerek gerçek verilerin analiziyle birlikte sosyal medya platformları üzerinden paylaşılan suç unsuru taşıyan ifadeleri tespit etmek, tanımlamak, sınıflandırmak ve ceza hukukuyla ilişkilendirmektir. Bu çalışmanın araştırma metodu olarak açıklayıcı vaka incelemesi tercih edilmiştir. Çalışmamızın amacına uygun vaka incelemesi olarak sosyal medyada dezenformasyon paylaşımlarının gerçekleştirilebileceği öngörülen Türkiye’nin son 8 yıldır gündeminde olan ve yargıya intikal etmiş olan Gezi Parkı olaylarına yönelik Twitter Platformunda tespit edilen ilgili hastagler kullanılarak yapılan paylaşımlar ele alınmıştır. Bu vaka analizinde verilerin elde edilmesi ve analizinde de sosyal medya analizi yöntemi kullanılmıştır. Böylece, belirlenen amaçsal örnek vakada ceza hukuku sorumluluğu gerektirebilecek dezenformasyon paylaşımları tespit edilip sınıflandırılacaktır. Akabinde ilgili paylaşımlar Türk ceza mevzuatındaki düzenlemelerle ilişkilendirilecektir. Bu çalışma, amaçsal olarak belirlenen vaka inceleme olayına yönelik Twitter platform paylaşımlarıyla sınırlı bir şekilde Türkçe ifadelerle yanıltıcı sosyal medya paylaşımları ve ceza hukuku sorumluluğunu ele almaktadır. Çalışmanın bilime ve topluma sağladığı katkılar, sosyal medyada dezenformasyon faaliyetlerini ceza hukuku sorumluluğu kapsamında ele alan, söz konusu faaliyetleri sınıflandıran ve ceza mevzuatının ilgili düzenlemeleriyle ilişkilendirildiği bir içeriğe sahip olan, alan yazındaki ilk çok disiplinli ortak çalışma özelliğini taşımasıdır. Çalışmada elde edilen ve sunulan bulgular, yürütme ve yasama organları için konuya ilişkin yasal düzenlemelerin gözden geçirilmesinde fayda sağlayabileceği gibi diğer ilgililer bakımından da farkındalık oluşturabilecek ve alan yazınına katkı sağlayabilecektir.