Practice Of Criminal Law Research Articles

INSTITUTE OF EXEMPTION FROM LIABILITY IN THE CRIMINAL LAW OF THE REPUBLIC OF KAZAKHSTAN IN THE LIGHT OF HUMANIZATION OF CRIMINAL POLICY

The resolution of issues of exemption from criminal liability is of great practical importance, both for the theory and practice of criminal law of the Republic of Kazakhstan.

Juveniles in the judicial practice of criminal law

The legislation of the past few years brought many changes regarding the criminal law of the juvenile delinquency. The aim was to bring the justice system closer to the people concerned, to make the procedures more cost-effective and to accelerate them. Furthermore, to get the caseload distribution more balanced. Since it was the cardinal reason for decentralisation, the question is that the abolishment of the obligate jurisdiction was a suitable action to achieve the aims mentioned above indeed. My main intention was to present the operative and relevant criminal law as reflected in the practice of the courts in this article.

Criminal-legal meaning of traffic and vehicle operation safety rules

The author has considered criminal-legal matters related to practice of application of criminal and other branch legislation and regulations in the field of road safety. The article highlights problems of the use in investigative and judicial practice of criminal law and related rules of sectoral traffic law, as well as the requirements of traffic safety and vehicles operation rules during the assessment of criminal offenses under Art. 286 of the Criminal code of Ukraine. The author has proved the organic interrelation of blanket dispositions of criminal legal rules with the corresponding provisions of branch legislative acts and traffic safety and vehicle operation rules which are most often broken by actors of these criminal offenses. He has examined the characteristic of the specified rules in view of their criminal-legal value during the criminal-legal analysis and assessment of the socially dangerous actions which are considered. The classification of the specified rules has been offered. Based on the analysis of case law, the peculiarities of the application of certain types of road safety rules, as well as some issues of their improvement have been considered. The proposals on optimization of the branch legislation on road traffic with inclusion in it as a component of traffic rules have been supported. An improved version of Art. 286 of the Criminal Code of Ukraine in view of the normative and legal content of its blanket disposition, as well as the need to further improve its legislative and regulatory framework has been supported. The author has pointed out the need to eliminate the gaps caused by the lack of timely legal regu-lation of road safety issues that arose with the emergence and operation of new vehicles (electric scooters, jet skis, unicycles, etc.).

Principle of equality before the criminal law implementation during the qualification of crime in Ukraine

In the article under consideration, the author proves facts in a number of scientific provisions that are important for the practice of criminal law. After analyzing the scientific works on this issue, it was proved, that the study of the principle of equality is relevant given the distorted understanding of the principle in Ukraine. The article proves the thesis about the role of the principle of equality before the criminal law during the crime qualification. They can be described by the following provisions: 1) compliance with the rules of criminal law qualification of the act and application them to persons regardless of their racial, national, social origin, religion, social or political views, professional status, etc .; 2) at the same time, law enforcement bodies during the criminal-legal qualification must take into account both the objective, legal differences of the persons, whose action is qualified, and the individual characteristics of the act itself. Such consideration of objective differences requires «differentia equality». Violations of the principle of equality before the criminal law will be errors or abuses of law enforcement agencies. Such errors or abuses are of two types: 1) different criminal-legal qualification of the act in the case of similar legal situations; 2) the same criminal-legal qualification of the act in the case of different legal situations; 3) ignoring the features that have legal significance for the qualification. These errors or abuses can be considered a violation of the principle of equality before the criminal law only if they discriminate against certain categories of subjects on certain grounds. Therefore, not any errors or abuses in qualifications can be considered a violation of the principle of equality before the criminal law, but only discriminatory. Such errors are unintentional. Instead, abuse is always intentional, often due to non-legal material factors

CRIMINAL PROSECUTION OF HOLOCAUST DENIAL IN GERMANY

Currently, they are attracting public attention and causing public resonance problems associated with the reassessment of the feat of the Soviet people in World War II. Various kinds of insinuations arise related to the denial of the persecution and mass extermination of Jews living in Germany, in the territory of its allies and in the territories occupied by them during the Second World War; the systematic persecution and extermination of European Jews by Nazi Germany and collaborators during 1933-1945. Practice shows that those guilty of Holocaust denial try to avoid criminal liability and influence judicial practice, referring to freedom of speech enshrined in Art. 5 Abs. 1 of the Basic Law of Germany. The purpose of the article. Investigate the institution of criminal responsibility for Holocaust denial in Germany. Based on an analysis of the norms of criminal law and judicial practice in Germany in specific criminal cases, investigate the difficulty of delimiting criminal liability for denying the Holocaust freedom of expression. Methodology and methods. For the purposes of this article, the author uses the methods of analysis, synthesis, induction, diduction, as well as comparative legal, historical legal and historical comparative methods. Conclusions. After conducting a study, the author concludes that in Germany the issue of criminal liability for Holocaust denial is complex. The article points out the fact of heterogeneity of court decisions, analysis of judicial practice shows that this issue is resolved extremely ambiguously. Despite this, the author points out the high role of the legislator and the practice of law enforcement in shaping the right attitude to historical events, the high role of peoples in certain significant facts that are part of the foundation of historical and cultural heritage. Scope of the results. This work may be of interest to students of higher educational institutions, as well as graduate students interested in criminal law of foreign countries. The article can be used by teachers of law schools as an addition to the educational material.

Indigenous Australians, Specialist Courts, and The Intergenerational Impacts of Child Removal in The Criminal Justice System

Murri Courts are a specialist criminal law practice that includes Elders and respected persons of the local Community Justice Group in the sentencing of Aboriginal and Torres Strait Islander defendants. Drawing on an ethnographic study of two southeast Queensland Murri Courts, this article explores the impact of State ordered out-of-home care on Aboriginal and Torres Strait Islander defendants and their children. We show how Community Justice Groups and specialist courts help to address the intergenerational impacts of child protection interventions. The rights of Australian Indigenous peoples to enjoy, maintain, control, protect and develop their kinship ties is recognised under the Human Rights Act 2019 (Qld) and international human rights treaties. We suggest that policymakers and legislators should better recognise and support Community Justice Groups and specialist courts as they provide an important avenue for implementing the rights of Australian Indigenous peoples to recover and maintain their kinship ties.

A Northern Lawyer

(From Introducation)I am currently a settler lawyer practising at a small private firm in Yellowknife, Northwest Territories—Chief Drygeese Territory, traditional home of the Weledeh Yellowknives Dene and North Slave Metis. Currently my practice varies widely and includes a busy criminal law practice. About a year ago I returned to Yellowknife after articling and being called to the bar in Iqaluit, Nunavut, and, more importantly, living there for three years. I had left my job as a Crown prosecutor in Nunavut in part because as I was raised in Yellowknife, and have friends and family here, I felt that it was approaching time to return home, to my own northern community. ...... More

Religious Freedom and Criminal Law Practice in US Supreme Court Decisions

The article examines the constitutional foundations and law enforcement practice of the Supreme Court in the interaction of religion and the criminal law system in the United States, analyzes the main directions of development of judicial practice in this area, as well as the most significant judicial doctrines and precedents of the United States Supreme Court on religious issues in criminal law. The article explores the features of the practice of applying by the Supreme Court of the United States such constitutional clauses as the “ban on the establishment of religion”, the provision of “freedom of religion” and “equal protection based on law”.

Osmanlı Ceza Hukukunda Sarhoşluk Veren İçecekleri İçme Suçu ve Cezaları

İslam ceza hukukunun büyük ölçüde tatbik edildiği Osmanlı ceza hukukunda şarap içme ve sarhoşluk suç olarak kabul edilmektedir. Hanefi mezhebinin, suçluya uygulanacak cezaları belirlemede ölçüt olan, şarap ve diğer içkiler ayırımı Osmanlı hukukunda da kendini göstermektedir. İslam hukukçularının büyük bir kısmına göre, içki içme suçu had suçları kapsamındadır. Dolayısıyla içki içene had cezası uygulanmalıdır. Diğer bir kısmına göre ise bu suç ta‘zir suçlarından biridir ve faile ta‘zir cezası uygulanmalıdır. İslam hukukçularının ihtilaf ettiği bu konuda Osmanlı ceza hukukunun tatbikatını görebileceğimiz mahkeme defterlerinde her iki görüşü destekleyecek örnekler görülmektedir. Bu kayıtlarda unsur ve ispat şartları oluşan içki içme suçuna bazen had cezası bazen de ta‘zir cezaları uygulanmaktadır.

How to Understand non bis in idem?: The Element of idem According to the ECtHR

The European Court of Human Rights essentially has three approaches on the issue of the interpretation of idem within the context of the non bis in idem principle, namely “same conduct test”, “essential elements test” and “same act test”. These three interpretations are highly open to criticism. In this regard, it is clear that a new concept is necessary to distinguish act in terms of substantive criminal law and act in procedural criminal law practice. In order to determine what constitutes an idem, one should consider the concept of “procedural act”. Moreover, I contend that providing a concrete and consistent interpretation of idem depends on the differentiation of the terms idem and same idem. 

Проблемы социально-правовой обусловленности института судимости в законодательстве Таджикистана и России

The article deals with the problems of socio-legal conditionality of the criminal record as a complex phenomenon in the criminal legislation of Tajikistan and Russia. The author analyzes and reflects the arguments in favor of the existence of the institution of criminal record, and against it for each of which the author notes his vision. In addition, on the studied issue, empirical materials are provided, namely the results of the survey of respondents, statistics and examples from judicial practice. In conclusion, the author concludes that the institution of criminal record, with the exception of individual cases, is essential not only in the theory and practice of criminal and criminal-Executive law, but also in other branches of law. For this reason, he argues that it is imperative not only to keep this institution in the legislation of both countries, but also to continue to work on its further improvement

Problems of proving guilt in criminal cases in connection with tax evasion

The establishment of an intentional form of guilt and its specific type is mandatory for the implementation of the provisions of Art. 8 of the Criminal Code. In criminal proceedings in connection with tax evasion, a direct intent should be established in the act of the accused, otherwise the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 No. 64 “On the practice of criminal law on liability for tax offenses”. One of the proofs of direct intent in the act of the accused may be the decision of the tax authority to prosecute for the tax offense, made according to the results of tax control measures (in-house or on-site tax audits). In the event that it establishes an imprudent form of the taxpayer’s guilt in committing a tax offense, in proving the guilt of the accused in the course of criminal proceedings there may be an intractable contradiction.

Принудительная «трудотерапия» в СССР: между ГУЛАГом и «большой химией»

The paper focuses on the process of transformation of ideas and practices of social control in the USSR in the 1950s-1960s in relation to various categories of people named as “persons with an antisocial way of living” (lazy freeloaders). This process was reflected in the liberalization of the criminal law and punishment practices, as well as in the changing attitudes towards people with deviant behavior. The study focuses on the social category of “lazy freeloaders” and the discourse of forced labor construed as “occupational therapy” (when applied to “lazy freeloaders”). The transformation of social control norms and practices is described in the context of socio-political changes during the “thaw” period helping to raise questions that are more general: quality and limits of the Soviet system’s viability, its ability to face the challenges of time, adapt to changing social realities and new public sentiments. The paper is based on some new archival sources, as well as on the materials of the Soviet press.

CRIMINALLY-LEGAL CHARACTERISTICS OF VIOLENCE UNDER REQUIRED DEFENSE (NATIONAL AND INTERNATIONAL ASPECT)

The article is considers violence as a sign of circumstances precluding the criminality of an act, including necessary defence. It is indicated that it in the relevant criminal law has the following meaning: it characterizes the basis of certain circumstances precluding the criminality of the act; its use is the basis for the "unlimited" use of force for protection; acts as a basis for bringing to criminal responsibility in case of exceeding the limits in certain circumstances, excluding the criminality of the act. The attention is focused on the fact that violence in the norm about the necessary defence, first of all, characterizes its basis and actions related to exceeding the limits of necessary defence. Violence characterizes such a legal basis of necessary defence as a socially dangerous encroachment. The author argues that such encroachment characterizes both criminal physical and criminal mental violence. The manifestations of the latter are threats that have the necessary criminal and legal signs, the main of which is the reality of the threat. Separately, the “attack” is investigated as a criminal-legal category. Its author’s definition is given and the concepts of “violence” and “attack” are distinguished as categories of circumstances precluding the criminality of an act. A study of the norms of the necessary defence in the laws of the developed countries of Europe and the former USSR has established that violence is a key feature that must be established and it must be given the necessary criminal law assessment. Additional arguments are provided in support of the position that it is violence, its nature and danger that create the grounds for the so-called “unlimited” necessary defence, which is provided for in most criminal legislations of the countries of the world. The author's proposals and recommendations for the improvement of the relevant criminal legislation of Ukraine and its practice are given. Methods. In preparing the article, the dialectical method was used, and the method of logical analysis. Based on the scientific position of Ukrainian and foreign scientists, the author made reasonable and relevant conclusions on the subject under study. The method of historical analysis allowed investigating the genesis of the development of legislation on the necessary defence. The comparative method allowed establishing the features of the criminal law assessment of violence in the necessary defence in the laws of the developed countries of Europe and the former USSR. Results and conclusions. It has been established that violence in the necessary defence is the most important sign of socially dangerous encroachment as its basis and characterizes the excess of the limits of necessary defence. Additional arguments are given that determine that it is a socially dangerous encroachment, and no other actions that should serve as the basis of the necessary defence. An analysis of the criminal legislations of different countries led to the conclusion that the Ukrainian legislation in this area as a whole meets the requirements of the theory and practice of European criminal law.

The ‘Ideal’ Victim of International Criminal Law

The role of victims is increasingly central to discussions in and practices of international criminal law. Greater attention is, I argue, leading to a visual and discursive specification of victimhood. Drawing on criminologist Nils Christie’s theorizing of victimhood, and identifying practices inside and outside the international criminal law courtroom, I discuss the social, political, and legal construction of an ‘ideal’ victim. The features of an ‘ideal’ victim of international crime are identified as being: (a) weakness and vulnerability, (b) dependency and (c) grotesqueness. The features coalesce into a feminized, infantilized, and racialized stereotype of victimhood. I argue that this problematic construction of the ‘ideal' victim is to be contextualized within the ‘attention economy’. The ‘attention economy’ views attention as a finite and highly in-demand resource which rewards the extreme and spectacular at the expense of the moderate and considered.

Education on the theory and the practice of criminal law and criminal procedure in law school

Education on the theory and the practice of criminal law and criminal procedure in law school

Women's Yarning Circles: A gender‐specific bail program in one Southeast Queensland Indigenous sentencing court, Australia

In response to the over‐representation of Australian Indigenous women in the criminal justice system, culturally relevant and gender‐specific bail programs operate in several Queensland Indigenous sentencing courts or Murri Courts. Queensland Murri Courts are a specialist criminal law practice, which includes Elders and respected persons of Community Justice Groups in the sentencing process of Indigenous peoples. This paper explores the role of one gender‐specific bail program, Women's Yarning or Talking Circles, in one Southeast Queensland Murri Court. Women's Yarning Circles aspire to create an Indigenous‐centred space outside of court proceedings where defendants and Community Justice Group members of the same gender can build a rapport. Gender‐specific bail programs aim to recognise the intricacies of an Indigenous woman's intersectional identity and the diverse needs of each defendant that comes before the Murri Court.

Classical Humanism vs. Romanticism: two ways of imagining pre-modern torture at the castle of Pöggstall (Austria)

Pöggstall castle in Lower Austria has long been renowned to a national public for its ostensibly “authentic” medieval torture chamber located in an upper floor room of the 13th century keep. As recent investigations disclosed, the whole arrangement was not installed before the early 19th century when the Austrian Emperor Francis I owned the estate. The re-assessment of the interior betrays a “romantic” idea of pre-modern torture and punishment that imagined the “dark” Middle Ages as a “counter-draft” to “enlightened” practices of justice and criminal law. Whereas the allegedly “original” torture chamber is in fact an imaginative construction of historicism and romanticism, an inventory of the castle from 1548 lists, among other devices of torture and punishment, a curious item that might theoretically have served the same function. The object is referred to as a prison or a lock called an “iron cow” or “brazen bull”, a term that evokes associations with the legendary antique motive of the bull of Phalaris. The article seeks to examine the object in the light of the literary and iconographic tradition of the “brazen bull” and argues that – whether the Pöggstall bull was really intended to be used as a torture instrument or not – it proves, in any case, that the owners were well-acquainted with “humanistic” traditions of torture in antiquity.

Right, Crime, and Court: Toward a Unifying Political Conception of International Law

It is widely acknowledged that human rights law (hereafter, HRL) and international criminal law (hereafter, ICL) share core normative features. Yet, the literature has not yet reconstructed this underlying basis in a systematic way. In this contribution, I lay down the basis of such an account. I first identify a similar tension between a “moral” and a “political” approach to the normative foundations of those norms and to the legitimate role of international courts (hereafter, ICs) and tribunals adjudicating those norms. With a view to bring the debate forward, I then turn to the practices of HRL and international criminal law (hereafter, ICL) to examine which of those approaches best illuminates some salient aspects of the adjudication of ICs. Finally, I argue that the political approach best explains the practice. While each preserves a distinct role, HRL and ICL both establish the basic conditions for the primary subject of international law (HRL and ICL, for the purpose of this article), namely the state, to legitimately govern its own subjects constructed as free and equal moral agents.

Exercising discretion in the context of dependent employment: assessing the impact of workload on the rule of law

Faced with growing pressures for accountability and increasing complexity of legal work, the international legal community has focused attention on support for the rule of law. Taking a workplace perspective, this study develops and tests an individual-level measure of support for the rule of law in the context of the Canadian public sector. Results from a national survey of government-employed lawyers reveal that increasing work demands have a detrimental effect on perceived ability to uphold the rule of law in the daily execution of work tasks. This negative pressure is moderated by social support in the workplace, with diminishing effect. Lawyers in criminal law practice appear more negatively affected by work demands than those in civil or common law practices.