Practice Of Criminal Law Research Articles

Rethinking the Scope of Sexual Violence for Criminal Law Reform

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

Об уголовной ответственности владельца за вред, причиненный домашним животным (собакой) третьим лицам

The laws of Russia and some foreign states have no special criminal law provisions that establish the liability of the owner for damage caused by his/her pet (dog) to third parties. The article reviews issues of qualification of such acts under the laws of Russia and foreign countries. A comparative analysis of laws of some foreign states and Russia that regulate the bases and procedure for bringing pet dog owners to the legal liability for damage caused by them to health of third parties has shown the unity of approaches towards strict legal liability including criminal liability of such owners in cases of gross violation of rules for handling their pets. At the same time, countries apply different approaches within their jurisdiction to solving the issue of specification of criminal laws applicable to the cases under consideration by singling out or refusing to single out special elements of crimes for violation of pet handling rules. The task of determination of legally relevant attributes of the link between the crime subject (dog owner), behavior of his/her pet and actions/inactivity of the victim seems relevant for the Russian criminal law practice.

Physiognomy and Visual Judgment in Medieval and Early Modern Europe

From the late Middle Ages through the eighteenth century, the science of physiognomy played a central role in the intellectual life of what we might call “the long Renaissance.” Indeed, it did much to shape both the portrayal and the understanding of personality in the visual and literary arts of the period. But nowhere was its influence greater than in the practice of criminal law. This special issue explores the varied ways that jurists and judges drew on theories—ancient and modern—of how to read the human body, the face especially, in order to help determine whether or not a suspect was guilty or innocent. The articles offer insights into the various ways in which Renaissance thinkers not only drew on ancient and medieval sources for their understanding of human psychology but also continued to elaborate new theories in order to develop what they viewed as a more scientific jurisprudence.

THE PLACE OF NORMATIVE RESOLUTIONS OF THE SUPREME COURT IN THE FIELD OF CRIMINAL LAW

This study seeks to investigate the impact and relevance of Supreme Court normative decrees in criminal law practice in Kazakhstan. Our objective is to explore their influence on law enforcement prac-tices as well as harmonization between national laws and international standards. Among the primary directions of inquiry lies theoretical analysis of legal nature decrees as well as historical development studies and comparative legal research.Scientific and practical significance of this work lies in its comprehensive examination of how nor-mative decrees affect uniform judicial practice and law enforcement stability. Research methodology included content analysis, comparative legal method interpretation legal interpretation as well as statisti-cal analysis.The primary findings of this research indicated that normative decrees of the Supreme Court play an essential role in shaping law enforcement practices and guaranteeing uniform and stable interpretations of criminal law. These findings underscore the necessity of further aligning Kazakhstani legislation with international standards to enhance law enforcement efficiency and promote human rights protection.Research’s value lies in filling gaps in existing literature and offering recommendations to enhance law enforcement practices in Kazakhstan. Practical applications of research results include their potential use by judges, lawyers, and others practicing criminal law

On (Measuring) Recidivism, Penal Populism and the Future of Recidivism Research

It is common criminological knowledge that recidivism – relapse into criminal behaviour – is a major predictor of future criminal behaviour, one could say a ‘hard-core’ criminogenic factor, esp. when displayed at a young age. Yet, despite its prominence and importance in both criminology and the discipline and practice of criminal law, there is an ongoing confusion about the concept and social construction of recidivism, its basic terminology, approaches to its measurement (methodology), and finally about the best ways to deal with it. In the paper at hand, we aim to unravel at least some of the grand mysteries surrounding recidivism and its research, targeting particularly domestic criminal justice professionals and researchers, since we have found a certain lack of relevant and up-to-date Croatian publications on this topic. Instead of simply presenting or arguing for any of the competing perspectives, such as the criminological, normative or penological, or a more practical instead of a scientific perspective (to name but a few), we critically analyse each of these perspectives, highlighting their pros and cons, while leaving it to the readers to choose any or all of them – depending on their own perspectives and purposes. Thus, key findings from recidivism research are discussed in the context of steadily growing penal populism, which is characterised by broadening the scope of criminalisation and increasing sentencing frameworks as well as harsher punishment practices, targeting in particular recidivists. All this occurs in the context of populist public and media discourse about crime and criminals, which effectively undermines any notion of evidence-based crime policy. But times are changing and the future of recidivism research, spearheaded by neuropenology, might very well provide us with a new kind of knowledge and understanding needed to put a check on penal populism.

Pasal 156 KUHAP Ditinjau Dari Asas Audi Et Alteram Partem

Introduction: Criminal procedural law is part of criminal law, while the principle of Audi Et Alteram Partem is one part of the criminal procedural law, commonly also known as the principle of balance, in court decisions there is a duplik istila or refutation from the defendant to plaintiff. 
 Purposes of the Research: The purpose of this study is to examine the position of duplik in the practice of criminal procedural law. 
 Methods of the Research: This research uses normative juridical research methods, commonly known as legal materials, normative legal research is a research that examines literature materials in the form of books and laws that have existed before, normative legal research is also known as docrinal legal materials. 
 Results Originality of the Research: The results of this study show that the position of duplik in the trial is very low because it clashes with article 156 of the Criminal Procedure Code which does not justify the existence of duplex in making decisions by judges, so that the defendant through his legal representative cannot file objections and release himself in order to get justice.

PECULIARITIES OF LEGAL ERROR IN THE CRIMINAL LAW OF UZBEKISTAN

This scientific article is devoted to the importance of making a mistake in the theory and practice of criminal law. In it, the concept of error in criminal law and its signs, as well as types of error, specific aspects of legal and factual error, problems related to the qualification of an act when a mistake is made in relation to the signs of a crime provided for in the Special Part of the Criminal Code, and the criminal law of foreign countries the issue of responsibility for mistakes is clarified.

Criminal Law Practices in The Ottoman After Meşrutiyet-I [In the Perspective of The Karesi Newspaper (1886-1888)

Tanzimat’ın ilanından sonra Osmanlı Devleti’nde hukuk alanında çok sayıda düzenleme yapılmıştır. Ceza hukuku, bu alanların başında gelmektedir. Zira Meşrutiyet dönemine kadar üç “ceza kanunu” hazırlanmış ve sırasıyla yürürlükte bulunmuştur. Meşrutiyetin ilanından sonra da bu alandaki düzenlemeler sürmüştür. Her biri 1879 tarihli olan Ceza Muhakemeleri Usulü Kanunu, Hukuk Muhakemeleri Usulü Kanunu ve Nizamiye Mahkemeleri Teşkilat Kanunu bunlar arasındadır. 1858 tarihli Ceza Kanunu ile söz konusu üç kanun Meşrutiyetin ilanından sonra yürürlükte olan yargı hukuku düzenlemeleridir. Bu çalışmada Meşrutiyet’in ilanından sonra yapılan kanun düzenlemeleriyle 1886-1888 yılları arasında ceza hukukunun uygulamasıyla ilgili örneklere yer verilmiştir. Uygulama örneklerine, vilayetin resmi gazetesi olan Karesi Gazetesi’nde yer alan savcılık ve mahkeme kararları çerçevesinde yer verilmiştir. Zira ceza muhakemeleri usulü kanunu, hüküm özetlerinin vilayet gazetesi vasıtasıyla da neşir ve ilanını zorunlu kılmıştır. Karesi Gazetesi Balıkesir’de yayınlanan ilk resmî vilâyet gazetesidir. Balıkesir’in o dönemdeki adıyla basılmış ve aralıksız iki yıl (5 Mart 302/17 Mart 1886-30 Mart 304/11 Nisan 1888) yayın hayatını devam ettirmiştir. 1888’de Karesi vilâyetinin “sancak” seviyesine düşürülüp, tekrar Hüdâvendigâr vilâyetine bağlanmasıyla gazete yayın hayatına son vermiştir. Haftada bir sayfa olarak yayınlanan Karesi Gazetesi, ilk döneminde 105 sayı olarak yayınlanmıştır. Balıkesir’in tekrar vilayet olmasıyla birlikte Karesi Gazetesi, 27 Nisan 1914’te, Hasan Basri Çantay’ın girişimiyle vilayetin resmi yayın organı olarak yayın hayatına yeniden başlamıştır. Karesi Gazetesi’nde Ceza hukuku uygulamaları kapsamında yer alan, mahkemeler ve savcılıklarca yürütülen ceza hukukuna ilişkin dava, iddianame ve kararlar genellikle mahkemelerin ve müddeî-i umûmîlerin verdiği resmi ilanlar yoluyla yer almıştır. Bu ilanlar gazetede genellikle “İlânât, “Merkez-i Vilayet Müddeî-i Umumî Muavinliğinden”, “Merkez-i Vilayet Bidâyet Mahkemesi Ceza Dairesinden”, “Mahkeme-i Bidâyet Ceza Dairesinden”, “Müddeî-i Umumî Muavinliğinden” ve “Ceza Dairesi Riyasetinden” adlı başlıklarla yer almıştır. Karesi gazetesinde 302 (1886) ve 303 (1887) yıllarında mahkemelere yansıyan ceza davalarıyla ilgili genel bilgiler de yer almaktadır. Söz konusu iki yıl birlikte değerlendirildiğinde Karesi Bidâyet Mahkemesi Ceza Dairesi’nde kabahat, cünha ve cinayet-istinaf dâhil- suçlarıyla ilgili toplam 1597 dava açılmış bunlardan 1180’i karara bağlanmıştır. Gazetede yer alan savcılık ve mahkeme ilanlarında genellikle zanlıların firari durumda olmaları nedeniyle 1897 tarihli Ceza Muhakemeleri Usulü Kanunu’nun ilgili maddeleri gereği mahkemede hazır bulunmaları istenmiş, aksi halde yapılacak gıyabi yargılama sonunda kendilerine bazı cezai müeyyideler uygulanacağı ifade edilmiştir. Hüdavendigar vilayeti savcılığının firari zanlıları yakalama emirleri de bu ilanlar arasındadır. Cinayet davalarına mahsus mahkeme kararları idam ve kürek cezası ile medeni hakların düşürülmesi ve haciz şeklinde iken cünha kapsamındaki cezalar hapis ve para cezası şeklindedir. Muhakemesi devam eden davalarda ise davaya konu olan suçlar arasında öldürme, yaralama, tecavüz, hırsızlık, yok kesme, gasp, rüşvet, sahtekârlık gibi suç fiillerinin olduğu görülmektedir.

Involvement of a specialist in modern criminal law practice

The improvement of regulatory framework for attracting a specialist to participate in criminal proceedings on the initiative of the defense and other participants in the process who do not have authority is reasonably considered in theory and in practice as an extension of the adversarial principles in the procedures for the use of special knowledge. At the same time, the noticeable bias observed in modern law practice towards the use of expert opinions and testimony in the interests of principals to the detriment of lawyer activity in official procedures for the appointment and production of forensic examinations cannot be considered justified. Seeking the help of a specialist is not an equivalent substitute for participation in forensic expert activities in criminal cases, but rather a forced measure when attempts by a lawyer to participate in the appointment and production of examinations were impossible, or were undertaken, but failed.

Analisis Yuridis terhadap Faktor Penegak Hukum dalam Praktik Hukum Acara Pidana

The criminal justice system is the process of enforcing material criminal law. In enforcing the criminal material law in a criminal justice system, it must be through the role of law enforcers. Law enforcement is an important part because without law enforcement, the law that has been agreed upon by the community will not be implemented. One part of the law in question is criminal procedural law. The law enforcers contained in the criminal procedural law are the Police, Advocates, Prosecutors (Public Prosecutors) and Judges. In this study, the role of law enforcers in criminal procedural law will be examined, which in this study consist of the Police, Advocates, Prosecutors (Public Prosecutors) and Judges. This research uses normative juridical research by linking the subject matter to the main topic in this study, namely the role of law enforcement factors in the practice of criminal procedural law. The results of this study will explain the role of relevant law enforcers in criminal procedural law and the role of law enforcers.

Self-Defence and Domestic Violence: An Analysis of Turkish Criminal Law Practice

How to assess the criminal liability of the abused woman who kills her abuser while in his sleep or in a state of unconsciousness has become a salient topic of debate in recent years. Although there is a tendency to consider these acts within the context of self-defence with the impact of “the battered woman syndrome” theory and the movement to battle against domestic violence, the debate still persists. Despite some opinions that such acts should be considered self-defence in the Turkish doctrine, the Turkish Courts, for the most part, tend to evaluate them as provocation. According to the Turkish Penal Code, only acts that are a response to occurring attacks or those that are certain to ensue are considered “self-defence.” Domestic violence is not accepted as itself as an attack if it does not meet these conditions. In this study, we will examine how such cases are treated in Turkish law practice in light of three decisions of The Court of Cassation. Prior to the explanations about self-defence and domestic violence, we will provide an overview of how this practice should be interpreted in the context of domestic violence according to the Turkish penal doctrine (I). It is argued that the conditions of self-defence are gender-neutral provisions, indicating they do not take into consideration “the battered woman syndrome” or female victims of domestic violence. This study will also focus on the conditions of self-defence in the Turkish Penal Code and will analyse it in the context of domestic violence (II). Keywords: Violence against women; domestic violence; battered woman syndrome; self-defence; provocation.

Отношението между целта и намерението

In this article an attempt has been made to establish the relation between aim and intention via the method of comparison. This would be a useful contribution to the needs of the theory and practice of criminal law.

JINOYAT TARKIBI OBYEKTIV TOMONINING QONUNCHILIKDAGI TUZILISHI (KONSTRUKSIYASI): TAHLIL VA TAKLIF

In this article, research methods such as logical method, method of induction, method of deduction, systematic method, logical-legal method, and comparative-legal methods were used. In particular, first of all, the general characteristics of the signs of the objective side of the crime and their structure in criminal law, as well as the scientific views and research of scientists about them, the similarities and differences between them are revealed. Also, a socially dangerous act with the necessary signs of the objective side of the crime and criminal law consequences with its optional signs, causal relationship, place, time, method, circumstances, weapons and means of crime, in the disposition of the articles of the Special Part of the Criminal Code of the Republic of Uzbekistan are consistently described. This article focuses on the objective side of crime and its features in criminal law; instrumentally and comparatively analyzes their criminal legal significance in the qualification of crimes and the rules of qualification. At the same time, scientific works, monographs, and scientific and educational textbooks of Russian scholars A.N.Trainin, T.V.Tsereteli, V.N.Kudryavtsev, N.F.Kuznetsova, B.V.Zdravomyslov and others belonging to the continental (Romano-Germanic) family of law, as well as national scientists M.Kh.Rustamboev, M.Usmonaliev, P.Bakunov, R.Kabulov, Kh.M.Abzalova, A.A.Otajonov, I.A.Sottiev, Kh.Ochilov, Sh. Khaydarov, Z.Shamsiddinov and others were used. Moreover, the doctrine of criminal law and existing scientific researches were analyzed, and concrete proposals and recommendations were developed in this regard to improve the theory and practice of criminal law.

The concept of access to computerized information according to art. 259 of the Criminal Code of the Republic of Moldova

The concept of „access to computerized information” refers to one of the components of the objective side of the offenses provided in art. 259 of the Criminal Code of the Republic of Moldova. The main result of the present study is the definition of this concept that generates controversies in the theory and practice of criminal law. Another notable result consists in supporting with arguments the solution to qualify the acts of: 1) maintaining illegal access to computerized information after the withdrawal or expiration of the authorization; 2) illegal intrusion into the computer, the data storage device, the computer system or the computer network, in which or on which the computerized information is located, if, due to reasons independent of the perpetrator’s will, the illegal access to that information is not committed.

Essence of Criminal Law of the European Court of Human Rights

The Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) takes an important place in the doctrine and practice of criminal law of Ukraine and other countries. However, it could present some differences in interpretation of the provisions of the Convention in the Ukrainian legislation and in the practice of the European Court of Human Rights (ECHR). The aim of the article is to approximate national criminal law to international standards and the practice of the ECHR. The object of the article is essence of Criminal Law in the practice of the ECHR.

KEWENANGAN JAKSA PENUNTUT UMUM DALAM UPAYA HUKUM PENINJAUAN KEMBALI

A review by the prosecutor in a criminal case is a paradox that occurs in the criminal law system, where the legal practice is contrary to the values and legal norms as regulated in the Criminal Procedure Code. However, in practice, judicial review is often carried out by prosecutors on the grounds that there is court jurisprudence that decides the case, as a result the law does not reflect justice and certainty and even tends to conflict with the legal interests of the convict and his heirs. The research method uses a normative juridical method with an emphasis on literature study. analysis is carried out on legal norms, both the law in statutory regulations and the law in court decisions). The conclusions drawn are that the submission for judicial review is solely for the benefit of the convict and his heirs, the law and the constitution do not authorize the prosecutor to conduct a review, that the review carried out by the prosecutor is not a legal discovery but only an interpretation of the law, the submission of a judicial review by the prosecutor is a form of court error which indicates that there is a logical fallacy in the practice of criminal law in Indonesia. Suggestions for developing the theme of this paper is that the Supreme Court should issue a circular containing prohibitions and restrictions for prosecutors to apply for a review or conduct a judicial review and annulment of cases that are submitted for review by the prosecutor

Problematic issues of attracting criminal responsibility for the crimes against industrial safety

Purpose. To give recommendations on improving the legal acts to regulate the relevant legal relations in the field of criminalization of encroachments related to violation of labor protection legislation. Methodology. The study on problematic issues of prosecution for violating the requirements of labor protection legislation was carried out through the study and analysis of: legislative base of Ukraine; works of scientists in relevant fields; analysis of judicial practice (on the example of analysis of judicial practice in cases considered by courts of general jurisdiction of Dnipropetrovsk region and the Supreme Court for the last 15 years) on bringing persons to justice under Parts 1, 2 of Article 271 of the Criminal code of Ukraine Violation of requirements of the legislation on labor protection. Findings. Some problems that arise in the formation of the criminal law practice of prosecuting persons accused of criminal offenses related to violations of labor legislation, which has led to damage to the health of a worker or their death, including inconsistency of criminalization violation of the severity of negative legal consequences for the perpetrators. Originality. The work analyzes the problematic issues of bringing one to justice for violating the requirements of labor protection legislation if this violation has caused harm to the health of the victim or his death. Proposals aimed at amending and improving the current criminal and criminal procedure legislation of Ukraine are substantiated. Practical value. The norms of the responsibility for violation of the legislation on labor protection, judicial practice of the recent years on law enforcement of the corresponding norms are investigated in the work. It is concluded that the current criminal legislation needs to be changed in terms of strengthening the responsibility for the actions provided in Part 2 of Article 271 of the Criminal Code, in the form of increasing the sanction in the form of imprisonment and mandatory application of additional punishment in the form of a ban on holding relevant positions. The results of the study have implications for practicing lawyers, legal advisers and attorneys, lawmakers, and affected workers and their families in the event of the death of a worker.

CRIMINAL LAW AND PRACTICES IN THE 18TH CENTURY OTTOMAN EMPIRE: THE CASE OF RUSE DISTRICT

Osmanlı Devleti’ne bağlı Rusçuk kazâsının ceza tarihi hakkındaki bu çalışma, mahkeme kayıtlarının (şer’iyye sicili) analizi üzerine kurgulanmıştır. Ceza kavramının Osmanlı taşrasındaki uygulamasının küçük bir kesitini ortaya koymayı hedefleyen çalışmada, mahkeme hükümleri incelenerek tespit edilmiş ve bu hükümler ceza çeşitlerine göre tasnif edilerek çıkarımlarda bulunulmuştur. Çalışma, giriş, sonuç hariç üç bölümden oluşmuştur. İlk bölümde, Rusçuk şehrinin tarihçesi ve sosyo-ekonomik şartları incelenmiştir. İkinci bölümde İslam ceza hukukunun Osmanlı dönemi uygulamaları genel ve nazari bir bakışla araştırılıp üçüncü bölüme altyapı oluşturmak istenmiştir. Üçüncü bölümde, XVIII. yüzyıl mahkeme kayıtlarında yer alan bilgiler doğrultusunda Rusçuk’ta suçlulara verilen cezalar çok boyutlu olarak araştırılmıştır. Osmanlı Devleti’nin suç ve ceza tarihi hakkında yazmak, olumsuzlukların hatırda kalıcı ve bu açıdan olması gerekeni daha açık gösteren bir yanı bulunması sebebiyle özellikle önemlidir. Ayrıca günümüzle kıyaslama imkânının bulunması da konu ile ilgili çalışmaların artması gerektiğini gösteren diğer bir işarettir.

Punishment, Legality, and Other Challenges of International Criminal Law

Abstract Although international criminal law has developed significantly in the 75 years following the Nuremberg Tribunals, the challenge to the legality principle at the heart of its practice remains unaddressed. This article discusses the structural challenges to international criminal law’s legitimacy, beginning by deconstructing the progress paradox that simultaneously legitimizes and undermines international criminal law. Because these challenges are situated in questions of how actions are legally characterized at international criminal law, the article moves on to consider two recent icc cases that demonstrate two aspects of this fundamental challenge to international criminal law practice at work. These cases, the article argues, demonstrate the doctrinal problems that arise from a legal form that bases its legitimacy on its promise of progress.

Solving the Myth of Rape-by-Deception: Based on the Restatement of Sexual Autonomy

When the defendant induces a woman to have sex with him by deception, whether he constitutes the crime of rape is a difficult problem that plagues the theory and practice of criminal law. In this regard, common law theories put forward the factum/inducement dichotomy, the theory of right to self-possession and the theory of sexual autonomy in a broad sense, but none of them can reasonably solve this problem. The purpose of this paper is to demonstrate which kind of deception constitutes a criminal offence of rape. We believe that, the crux of the matter lies in the lack of a clear definition of the concept of sexual autonomy. In legal theory, sexual autonomy should be defined as the woman’s self-determination of the intimacy of sexual activity with a particular person. The intimacy of sexual activity includes three dimensions: the degree of sexual intimacy, intimacy privacy and intimacy taboo. Only when the defendant deceives the victim about the relevant facts of one of these three dimensions does he constitute the crime of rape. In conclusion, when the deception in a rape-by-deception case is about the degree of sexual intimacy, intimacy privacy or intimacy taboo, the defendant constitutes rape.