Penal Norms Research Articles

TRÁFICO INTERNACIONAL DE PESSOAS PARA EXPLORAÇÃO SEXUAL

In the present course, the international trafficking of people for sexual exploitation was studied. This crime has been practiced since the dawn of human history, victimizing thousands of women worldwide. Over the years, crimes and criminals have changed, but what remains over the centuries is the victims of trafficking for the purpose of sexual exploitation. In this paper we point out the historical evolution of crime in the world and in Brazil. This crime has its historical roots, but it is today where it has become prominent, being the third most practiced crime in the world behind only drug and weapons trafficking, moving a billionaire scheme with specialized and extremely organized gangs. We analyze and point out the infractions to the criminal norms about the conduct of this crime in Brazil, where we look for the main laws and positive norms that deal with the crime under study. We verified the fundamental rights violated and the Brazilian State's action in the confrontation of these sexual exploitation networks, we also made an analysis of the Brazilian penal norms in face of the Additional Protocol to the Palermo Convention. It is in this context that throughout the work we seek to expose the legal thinking of various authors, and the main aspects of international trafficking in persons for sexual exploitation in order to give visibility to a cruel and silent crime that completely annihilates the human condition of being, restricting their freedom and making this crime a modern form of slavery.

Реализация принципа равенства осужденных перед законом в нормах, регламентирующих институт выезда осужденных за пределы исправительной колонии: некоторые проблемы и пути их решения

One of the areas of effective legal regulation of penal legal relations is the compliance of lawmaking and law-enforcement activities with the requirements of the fundamental provisions of penal legislation. The object of the research is the implementation of the equality principle of convicts un-der the law through the consolidation of equal rights, duties and legitimate in-terests of convicts in the penal legislation. The subject of the research is the penal legislation norms governing the institution of the convicts’ departure outside the penitentiary. We indicate the connection of the phenomenon un-der study with the lawmaking and law-enforcement aspect of penal law. We outline some of the law-making and law-enforcement penal issues that are directly related to the consolidation and application of the penal legislation norms when granting convicts the right to leave the penitentiary to visit chil-dren. As a methodological basis for cognition, the following are used: general scientific methods of analysis, synthesis, induction, deduction, which make it possible to investigate aspects of penal legal reality directly related to the im-plementation of the principles of penal legislation, to formulate well-grounded conclusions; private scientific methods – formal legal and comparative legal – make it possible to identify problems of legal regulation, develop proposals for changing legislation. As a result of the study, we identify the penal legislation norms that contradict the equality principle of convicts under the law, and propose ways to eliminate the identified contradictions.

АЛЬТЕРНАТИВНО-ПЕНИТЕНЦИАРНОЕ ПРАВО КАК ФОРМИРУЮЩАЯСЯ ПОДОТРАСЛЬ УГОЛОВНО-ИСПОЛНИТЕЛЬНОГО ПРАВА

In the article, the author discusses the possibility of distinguishing within the framework of penal law a relatively separate regulatory subsystem, which is a set of legal norms regulating the execution of criminal penalties against convicted persons that are not related to isolation from society, and separating them into a new self-sufficient sub-branch of penal law. The study aims to understand the processes of differentiation and integration present in penal law, and to assess the prospects for the allocation of a new sub-branch in the matter of penal law - alternative penal law. The objectives of the study are to define the concept of alternative penal law and its place in the system of penal law; to analyze the system-forming factors in penal law; to identify the criteria for distinguishing general, subject-based and functional institutions within the framework of alternative penal law; to formulate proposals for improving the separate normative subsystem “alternative penal law” that affect the structure and content of the Penal Code of the Russian Federation. In the course of the research, general and specific methods of scientific cognition were used: dialectical, formal-logical, functional, system-structural, comparative-legal, as well as the method of legal modeling. The author presents arguments in favor of the separation of the norms of penal law that regulate the part of the subject of penal law. As a structure-forming factor that unites institutions in alternative penal law, the author notes the form of criminal liability implementation - criminal penalties that are not related to isolation from society. The author analyzes the institutions of the future general and special parts of alternative penal law, which emphasize the existing institutional insufficiency of penal law norms regulating the legal status of convicts serving criminal sentences that are not related to isolation from society. To assess the current state of the regulatory subsystem of alternative penal law and its ability to grow to a higher level, the following criteria are used: its own object and method of legal regulation; special subject-based composition of alternative penal relations; the presence of an autonomous leading goal; its own principles; complex intra-structural differentiation represented by homogeneous and single-order institutions of penal law; legislative isolation of the alternative penal sphere. The author formulates the conclusion that today only the rudiments of alternative penal law have been formed as an integral part of the system of the branch of penal law, a part that only claims the status of an emerging sub-branch.

LA REFORMA DE LAS LEYES PENALES EN EL MÉXICO DEL S. XXI

The increase of criminality in Mexico is intended to be solved with new laws and reforms to the penal norms apparently protective of human rights. However, the adoption and regulation of figures such as organized crime, the official pre-trial detention and the increase of penalties, reflect more of a criminal law of an authoritarian state.

Los concursos infraccionales en el derecho administrativo sancionador chileno

The paper analyzes the problems of concurrent contraventions in Chile. It makes a relation with the doctrine and penal norms, the sectorial regulations and the criteria of the jurisprudence. The bases of a system applicable to the competitions are proposed to attenuate the mathematical accumulation considering the existing regulatory deficiencies. 

Uso bélico de las normas penales en Colombia (1962-1980): arma estatal para derrotar al enemigo

The present text addresses the issue of the use of criminal laws as a weapon to restore order and to combat an imprecise and variable enemy, specifically during the period 1962-1980. During this period, the enemy changes from being the liberal atheist to the communist guerrilla man. The issuing of the Penal Code of 1980 ultimately determines the preference for punishment in the history of Colombia as the most qualified answer to the issue of violence to achieve “national salvation”, or simply to recover or maintain the institutional and social order. Possibly, the option of political power through the penal solution is a simple and irrational alternative or, in any case, the option for the war use of the penal norms that, from the beginning, evaded any expert advice. Therefore, this article investigates the value of the Comision Investigadora de las Causas y Situaciones Presentes de la Violencia (Investigative commission for the causes and present state of violence), whose diagnose of the use of the Penal Code was valid during such period.

A estigmatização do criminoso sob a perspectiva da criminologia crítica: a seletividade do sistema na abordagem do Labelling Approach e a da inibição reintegradora

No direito penal sancionador é possível verificar um descompasso entre a sua interpretação e aplicação e os preceitos de justiça igualitária legalmente previstos, o que ocorre principalmente em razão da seletividade do sistema punitivo, influenciado por construções sociais quanto ao perfil do criminoso. O objetivo do presente trabalho é demonstrar como o processo de estigmatização é determinante para a seletividade na aplicação das normas penais, por intermédio da análise dos comportamentos desviantes e das abordagens criminológicas sobre a temática. O método utilizado é o dedutivo, com técnica de revisão bibliográfica e documental. Conclui-se, após a análise do estudo, que os fatores estigmatizantes estão enraizados na sociedade, nas normas e na atuação do Estado, assim, os efeitos da rotulação implicam diretamente na marginalização do sujeito e, consequentemente, refletem no perfil da população carcerária brasileira.

The Method of Interpretation of Penal Norms in the International Context

Mr John Doe, a citizen of state X and a multimillionaire, has a serious heart problem. He needs an immediate transplant to survive. Unfortunately, the law of state X prohibits any kind of organ trafficking. Because of that fact, Mr Doe decides to travel to state Y, where such transactions are legal. What is more, under the provisions of Y’s law, it is allowed for a living person whose family is destitute to sell his or her organ and such a transaction could provide for the maintenance of the children of the donor until they become adults. Mr Doe finds such a person, a citizen of state Y, and makes a deal – he pays for euthanasia and transplantation and comes back to his country in good health. The above short story raises a question: “What shall state X do with Mr Doe upon his arrival?” Is everything correct? Can we, as a society, agree to such a patently criminal act which deserves condemnation? Should we try to fight them by domestic policy? Does the state have any authority over social situations that occur abroad? The answer to these questions is not simple and depends on factors specific to each situation. Further consideration contains the argumentation for the thesis that every state possesses wide competence to punish acts committed abroad. This competence is limited only by the duty of protection of values commonly respected internationally. This article presents a method of interpreting norms of national substantive criminal law in the international context, taking into account the achievements the theory of criminal law.

Carceral framing of human rights in Russian prisons

This paper introduces to punishment and society scholarship a new carceral framing of human rights in Russian prisons. Russian imprisonment remains elusive to prison scholars and ethnographers around the world. Moreover, on the subject of prisoners’ rights specifically, the scholarship is dominated by legal discourse. The empirical and theoretical scholarship that has developed over the last twenty years has argued that Russian imprisonment is exceptional in the study of world penal systems with the research seeking to gain a sense of this exceptionality through looking at the inertial legacies of Gulag penal culture on present day punishment forms. This article attempts to challenge this claim and will argue that specifically in the area of human rights, Russia has followed a not dissimilar carceral formation to Western prisons. Through an interrogation of the cultural, political and historical factors underpinning how rights are framed in Russian prisons the article suggests that human rights are operationalised as a lever for legal and penal control. This is a significant new finding in the study of Russian imprisonment because of the questions that arise around penal resilience, how rights and penal power develop through discourse and how global penal norms converge across jurisdictions.

Beyond punitiveness? Governance of crime and authoritarian heritage in Serbia

This article sets out to examine the degree to which democratic transition in Serbia after 2000 has brought about a democratic mode of crime governance in the country. It is shown that while penal norms and policies have undergone a significant degree of democratization in that their outlook has tended not to be punitive, the judiciary (and, to some degree, other actors in the penal field) has been increasingly inclined towards punitive practices. Taking an institutional approach to explain this discrepancy, the article argues that pockets of authoritarianism in the executive have survived the transition to democracy and have continued to exert pressure on the judiciary in ways that have influenced judicial decision-making towards greater punitiveness.

Beyond Punitiveness? Governance of Crime and Authoritarian Heritage in Serbia

This article sets out to examine the degree to which democratic transition in Serbia after 2000 has brought about a democratic mode of crime governance in the country. It is shown that while penal norms and policies have undergone a significant degree of democratisation in that their outlook has tended not to be punitive, the judiciary (and, to some degree, other actors in the penal field) has been increasingly inclined towards punitive practices. Taking an institutional approach to explain this discrepancy, the article argues that pockets of authoritarianism in the executive have survived the transition to democracy and have continued to exert pressure on the judiciary in ways that have influenced judicial decisionmaking towards greater punitiveness.

Putting Into Circulation or Driving an Unlicensed Motor Vehicle Pursuant to The New Romanian Penal Code

Abstract The lawgiver of the new Penal Code proposed to charge into offences some deeds that endanger the public safety as social value protected by the penal norms and which, in their turn, include a series of values that might be harmed due to a breach of some rules established for the performance of certain activities, inhere for the social life, as well as those that set out, among others, the traffic safety on public roads.

Modifications of the Byzantine law in the Slavonic legal code 'Zakon sudnyi lyudem'

The paper analyses the provisions of the oldest Slavonic legal code 'Zakon Sudnyi Lyudem' (the Law on the Trial of People) from the 9th century which were made by the process of reception with the modification of the corresponding provisions of the Byzantine Ecloga. Out of 19 articles of this Law which are based on the articles from the Ecloga, 17 of them contain penal norms which regulate the penal protection of other people's property, gender morality, physical integrity of personality, marriage, family and the right of Church asylum. The author has identified three types of modifications: modifications of a linguistic style (the use of words which have a closely related meaning to the words from the Ecloga, or the paraphrase of the text from the Ecloga in one's own words), quantitative modifications (shortening or expansion of the text from the Ecloga) and qualitative modifications (the essential change of the text from the Ecloga). The editors of the Slavonic legal code used qualitative modifications in order to put a mark of their time into their Law, as a personal evaluation of the appropriateness of concrete modifications, and they tried to satisfy the real or assumed needs of their social reality. Many qualitative modifications were conducted with the aim of affirming and establishing Christianity as a newly appropriated official religion in that region, and also with the aim of repressing the heritage of the pagan customary law.

Avoiding Strict Liability in Mixed Conflicts: A Subjectivist Approach to the Contextual Element of War Crimes

As long as distinct legal regimes apply to international and non-international armed conflicts, the determination of the nature of the conflict by a court of law directly impacts on the criminal responsibility of the accused for war crimes. As this article shows, the approach traditionally used in international criminal law to characterise mixed conflicts is not sufficiently reliable for the addressees of penal norms. Low-ranking perpetrators have generally little chance of being aware of the international character of the conflict. This article argues that the principle of individual guilt requires establishing the mens rea regarding the nature of the conflict. Accordingly, a mistake of fact, or alternatively, a mistake of legal element should be admissible defences. Furthermore, it is submitted that both the method of conflict characterisation and the definition of the corresponding mental element are not compatible with the requirements of the principle of legality.

T03-O-11 Human sexuality: new legal trends. The Spanish experience

Objective To discuss the human and sexual rights and its current protection in Spain and European Union Design and method Integrated bibliographic legal and normative and also theoretical approach including: 1) To consider the relations between the criminal justice system and human and sexual rights. its relations with the modern penal rationality 2) The doctrinal, normative and cognitive obstacles or difficulties that restrain the evolution of the criminal justice system towards new configurations to protect the human and sexual rights. 3) The current changes in the criminal justice system and its analysis in relation with the theoretical interpretations of these changes, and the bases of a (psycho) sociology of penal innovation 4) The innovations related with modern penal rationality. 5) The innovation of the penal norms : the dynamics of the penal code system of he european continental countries. 6) The sentence status and the community: the consequences 7) The change at the doctrinal level: a cognitive point of vue. 8) The WASH declarations of sexual rights and its penal code system protection. Results 1) The current Spanish proposal to enhance the protection of the sexual liberty and equality. 2) The present protection in the European union Conclusion The current legal and normative protection is the first step, necessary but insufficient.

The political economy of rights: exporting penal norms to Africa

The political economy of rights: exporting penal norms to Africa

A Note on the Evolution of the Principle of Legality in International Criminal Law

A proper understanding of the role played so far by customary international law in international criminal law, as reflected in the case law of the ad hoc tribunals, as well as the reasons why customary international law has played such a relevant function in contrast to its role in national legal orders is essential to the understanding of the process of criminalisation at the international level. It is only when one realises the limits inherent in customary rules as to the development of penal norms and their inability to assure legal certainty, that one can understand why the drafters of the Rome Statute have decided to leave aside to an important extent the traditional system of sources in international criminal law and have given written norms a central role in the definition of the crimes and the penalties.

The Penal Process and the Protection of Rights in Canon Law ed. by Patricia M. Dugan

THE PENAL PROCESS AND THE PROTECTION OF RIGHTS IN CANON LAW. Proceedings of the conference held at the Pontifical University of the Holy Cross, Rome, March 25–26, 2004. Patricia M. Dugan, ed. Montreal: Wilson & Lefleur. Woodridge, IL: Midwest Theological Forum, 2005. The title adequately describes the subject of the twelve presentations at this two day conference. These conferences for professional canonists are anything but light reading, since they presuppose a background in penal law and the penal process. The fact that they were given in Italian, a language with a more complicated grammatical construction and longer sentences than English, did not facilitate their translation. The difficulty for English speaking readers is not lightened by the references to Italian civil jurists and authors in some of the presentations. Of particular interest are: “The Balance of the Interests of Victims and the Rights of the Accused: The Right to Equal Progress” (Joaquín Llobell ); “Penal Sanctions, Penal Remedies and Penances in Canon Law” (Velasio DePaolis); “Prescription in Penal Matters” (David Cito); “The Procedure and Praxis of the Congregation for the Doctrine of the Faith regarding Graviora Delicta“ (Charles J. Scicluna); “Considerations on Imposing Penalties in Specific Cases” (Anglo Urru); and “The Special Penal Norms of the United States and Their Application” (Kenneth E. Boccafola). Boccafola analyzes theAmerican Essential Norms in light of the code, i.e., the universal law of the Church, and finds them wanting. Among other things, he states that clearly the general tenor of the Essential Norms cannot be easily harmonized with the principles of the code and the principle of proportionality that John Paul II spoke of in addressing the Congregation for the Doctrine of the Faith, e.g., the obligation of bishops to seek derogation from the institute of prescription, and the requirement that a priest or deacon be removed from ministry for even one act of sexual abuse of a minor. He points out that Norm 9 seems to be a revival of the suspensio ex informata conscientia (CIC/17, cc. 2186–2194) by a bishop using an administrative act utilized at his own discretion. A particular value of this work is that the presentations to a great extent were given by persons living at a distance—both physical and the psychological-political climate—from NorthAmerica. This made it possible for the presenters to take a more dispassionate look at the subject of their individual talks. The atmosphere in the media, especially in the book reviews 551 552 the jurist United States, makes it most difficult, if not impossible, to consider with equanimity the punishment of an individual, who has repented and reformed his life after the sexual abuse of a minor many decades ago. The purpose of canonical penalties is threefold: “the reparation of the scandal , the reestablishment of justice, reform of the offender” (c. 1341). In such a case a zero tolerance policy of the Essential Norms, demands a dispensation from prescription and the penal dismissal from the clerical state, a penalty that was not foreseen by the lex vigens at the time of the delict. (Cf. CIC/17, c. 2359, §2) The protection of minors can be assured by the restriction of ministry without the extreme measure of penal dismissal from the clerical state for crimes committed many years ago, which seems foreign to the whole spirit of canon law. There are translation problems in “The Balance of the Interests ofVictims and the Rights of the Accused: The Right to Equal Progress” by Joaquín Llobell on page 85 where one finds “The Council of Trent, in a text taken word-for-word from the CIC/17, reminded bishops to act with Pauline meekness when some faithful committed a crime.”At the bottom of the same page we read: “After all, the role of a good pastor requires in some instances to start a penal process . . .” Evidently here the Latin word pastor means a bishop and not parish priest or pastor, as he is called in the United States. William Woestman, O.M.I. Office for Canonical Services Archdiocese of Chicago Chicago, Illinois ADVOCACY VADEMECUM edited by Patricia M. Dugan. Gratianus Series. Montreal: Wilson & Lafleur Ltée, 2006. Serving as a canonical...

'Transnational Criminal Law'?

International criminal law is currently subdivided into international criminal law stricto sensu — the so-called core crimes — and crimes of international concern — the so-called treaty crimes. This article suggests that the latter category can be appropriately relabelled transnational criminal law to find a doctrinal match for the criminological term transnational crime. The article argues that such a relabelling is justified because of the need to focus attention on this relatively neglected system, because of concerns about the process of criminalization of transnational conduct, legitimacy in the development of the system, doctrinal weaknesses, human rights considerations, legitimacy in the control of the system, and enforcement issues. The article argues that the distinction between international criminal law and transnational criminal law is sustainable on four grounds: the direct as opposed to indirect nature of the two systems, the application of absolute universality as opposed to more limited forms of extraterritorial jurisdiction, the protection of international interests and values as opposed to more limited transnational values and interests, and the differently constituted international societies that project these penal norms. Finally, the article argues that the term transnational criminal law is apposite because it is functional and because it points to a legal order that attenuates the distinction between national and international.

Penal Law and Sexuality: Recent Reforms in German Criminal Law

Sexual offenses are the most frequently modified offenses in the German Criminal Code. During the last thirty years, several fundamental legislative reform projects have addressed this area of penal law. The first reform movement took place in the late 1960s and early 1970s. It was driven by mainstream society’s changing views about sexual morality that rapidly overthrew traditional, longstanding assessments about wrongdoing related to sexual conduct. In this period, the basic assumptions about the reasons for penal norms governing sexual behavior changed. Since the enactment of the German Criminal Code (StGB) in the nineteenth century, the relevant section was labeled “Offenses against Morality” (Straftaten wider die Sittlichkeit). In 1973, this was changed to Offenses against Sexual Autonomy, in order to reflect the fact that these rules protect the rights of individuals, not morality. The general tendency of the early reform movement can be described coherently by the word “liberalization.” Many provisions that reflected traditional morals were abolished because the offenses described were not harmful to a person. For example, consensual homosexual acts between male adults were punishable in Germany until 1969, paid homosexual contact until 1973. In the United States, on