Principle Of Ultima Ratio Research Articles

Towards a Complete Prohibition on the Immigration Detention of Children

Abstract The legal position on the immigration detention of children is unclear: is it permissible, subject to the ultima ratio (last resort) principle, or is it prohibited outright? International opinion is divided, with different human rights bodies favouring one or the other position. In November 2017, the Committee on the Rights of the Child and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families issued a Joint General Comment in which they stated forthrightly that the immigration detention of children is prohibited and that the ultima ratio principle does not apply to the immigration context. This article situates the Joint General Comment in the broader context, interrogates its conceptual foundations and explores the extent to which it is likely to settle the debate. The key finding is that the position adopted in the Joint General Comment is correct but founded on a faulty premise and a misplaced emphasis. A more theoretically solid foundation for the prohibition on the immigration detention of children is advanced based on a teleological interpretation of the right of the child to liberty in the Convention on the Rights of the Child, with a particular focus on the concept of arbitrariness.

Compliance of criminal bankruptcy legal regulation with the principle of ultima ratio: national and international aspects

This article is specifically concerned with the situation that the legislator in Lithuania has established both civil and criminal liability for intentional bankruptcy of a person due to the intentional conduct and there is a question of the bankruptcy criminalisation compliance with the ultima ratio principle. The aim of this article is to analyse whether the legislative regulation of criminal bankruptcy in Lithuania does not contradict principle ultima ratio as the last resort, the same as to evaluate the criminal liability in accordance with article 209 of the Criminal code of Lithuania for a bad corporate governance how it is defined by the national and international law. Article 209 of the Lithuanian Criminal Code provides criminal liability for a person who deliberately manages a company in bad way, leading to its bankruptcy and by this action or inaction causes substantial damage to creditors. The legislator has foreseen the analogues criteria for intentional bankruptcy, as it is provided in Lithuanian Bankruptcy Code article No. 20. The big damage criteria (150 MGL), for at least two creditors does not reflect real damage to the state economy and business helps to avoid criminal liability when the damage is made for only one person. Notwithstanding to the declining volume of the assets in the companies going to the bankruptcy, in the same way proportionally increasing the amount of the damage made to the creditors, the civil law instruments do not guarantee the safeguard for the creditors interests, which, according the World bank reports, in Lithuania is one of the worst regulated in European Union. For that reason, by invoking the best experience and comparative approach of different legal systems- France and Germany, can be held, that the criminalisation of intentional activities in insolvency and bankruptcy cases result the positive effects to the efficiency of bankruptcy regulation.[...]

Does acknowledgement of a small value gratuity gift for a medic as a bribe not infringe ultima ratio principle?

Does acknowledgement of a small value gratuity gift for a medic as a bribe not infringe ultima ratio principle?

Cele wykonywania kary pozbawienia wolności — kilka refleksji

Objectives of enforcement of the penalty of imprisonment — a few reflectionsNumerous dysfunctions of penitentiary isolation, identified in the course of more than 200 years of application of the penalty of imprisonment, demonstrate that prisons do not improve people and do not make them more pro-social than they had been before they started serving their sentences. The crisis of penal policy based on extensive use of the penalty of imprisonment makes it necessary to expand the catalog of penal measures that do not involve any restriction of liberty and to limit the extent of application of the penalty of imprisonment to only the most serious crimes that constitute a grave threat to society. The authors of the Polish Penal Code of 1997, following the ultima ratio principle in the case of the penalty of imprisonment in the case of petty crimes and crimes of medium gravity, provided an extensive range of possibilities in the selection of the penal-law responses to such crimes. As a result, the penalty of imprisonment should be restricted mostly to perpetrators of acts that are very harmful to society. Given the fact that their sentences are several or even over ten years long, the question about the objectives of enforcement of the penalty of imprisonment is still to be answered.

ULTIMA RATIO PRINCIPO SAMPRATA

[full article and abstract in Lithuanian; abstract in English] In the process of criminalisation of certain offences, the relevant requirements for legislature must be raised, which limit discretion of legislature and do not allow distorting the essence of criminal law. The theory of criminalisation determines these requirements and one of them is the ultima ratio (latin last, final argument, last resort) principle.This principle means that criminal liability, being the most restricting measure in terms of rights and freedoms of persons, must be applied in exceptional cases only, when other legal or non-legal means are not sufficient in order to stop criminality.The content of the ultima ratio principle includes: 1) serious violation of individual, social and state legal interests;2) absence of alternative influence means for this violation in other legal branches. The content of the ultima ratio principle also encompasses inner (consistency of criminal law system) and outer (the means of criminal law is exceptional when compared with the means of other legal branches) aspects as well as aspects of legislature and implementation of law.The ultima ratio principle is given a different meaning: from the scientific recommendation for legislature to the obligatory constitutional principle. Due to the relation with the defence of fundamental rights and the principle of proportionality, which makes ultima ratio peremptory, the ultima ratio principle is considered as the regulatory provision of law – the legal principle which is related to criminal justice. Since the ultima ratio principle functions, first of all, in legislature, i.e. in the process of criminalization, it must be considered as the substantive special principle of criminal policy.

Criminalising Defamation of Religion and Belief

This article deals with the role of criminal law in dealing with defamatory expressions about religion or belief. Defamation of religion and belief is a form of indirect defamation ‘via identification’ which, as the discussion about the Dutch group defamation law shows, stretches up the notion of ‘group defamation’ — a crime which requires that (groups of) persons are insulted because they belong to a religious group. This contribution investigates whether European states can legitimately criminalise (certain forms of) defamation of religion and belief, in light of the European Convention on Human Rights, the United Nations framework (particularly the International Covenant on Civil and Political Rights) and legal theoretical considerations. The article shows how problematic it is for the criminal law — in light of the rights to freedom of expression and freedom of religion, as well as the ultima ratio principle — to combat such speech.

Fizinio smurto sporte baudžiamasis teisinis įvertinimas

This article analyzes new and scientifically unanalyzed subject in Lithuania – the use of physical violence in sports and criminal liability for it. The aim of this article is to identify how cruel emotions can influence the use of physical strength and injuries against opponent in sports. The subject of this article is not very popular, nor there are a lot of scientists interested in it in Lithuania, so this article pays a lot of attention of foreign countries doctrine and practice. This is one of the reasons why this subject is so important and significant in academic level. The author of the article tries to explore if intentional physical violence during sport events may result in a criminal liability for assaults. On the other hand, there are many cases when sport event contestants have a possibility to legally use violence and not even for winning aims. This article intends to provide objective criteria, which would help to identify the fact of criminal offence during sports. Since there are not many scientific researches and Lithuania courts judicial practice on this kind of subject, the author explores foreign countries doctrine and practice for finding the objective criteria as well. This article presents legal regulation of sport, as a physical activity. Moreover, it discusses whether criminal liability for serious, contrary to sports principles misconducts, which lead to body injury or homicide, does not violate the principle of ultima ratio, also analyses physical abuse cases (collisions), gross violations of the rules of sports. Discussing the athletes consent, which includes the possibility of being injured, it’s content and scope. It discusses criminal procedure, Issues – the defense of public interest and etc. The main object of this study is to provide potential objective criteria, which will enable the identification of the facts of the offense of physical violence in sports.

Ultima Ratio as Caveat Dominus: Legal Principles, Police Maxims, and the Critical Analysis of Law

A comparative and historical analysis of the so-called ultima ratio principle reveals that, despite its Latinate veneer, it is neither ancient nor universal, but a recent addition to the German criminal law canon. Upon further inquiry, ultima ratio also turns out to be ill-defined, undermotivated, and toothless, a fundamental legal principle and distinctive feature of criminal law honored in its ubiquitous breach. In the end, the iron legal principle of ultima ratio may appear more like the flexible police maxim of caveat dominus. Its frequent invocation suggests the need to reconceive legal science as a critical analysis of law in general, and of law's supposed principles in particular.

Ultima Ratio in European Criminal Law

The ultima ratio principle is one of the most well known traditional principles of criminal law. The principle has emphasized the repressive nature of the criminal justice system and positioned it as the last resort of the legislator. The principle has been developed mainly in legal scholarship with a national undertone, while criminal law has traditionally been seen as a pronouncedly national branch of law. However, criminal law has recently been strongly internationalized and Europeanized. This development necessarily needs to affect the principles that legitimate the use of the criminal justice system. There is a need for developing principles that could legitimate criminal law (cooperation) that surpasses the national level. The article, thus, examines whether there is a role for the ultima ratio principle in European criminal law. The main focus is on EU criminal law. The article suggests that there are several signs of recognizing the ultima ratio principle in EU criminal law. The principle is recognizable in the principle of subsidiarity, within which ultima ratio may have a federal dimension. Most of all, the principle of proportionality shares several similarities with the ultima ratio principle. If these dimensions were fully examined and utilized, there is a possibility that legitimizing principles for EU criminal law could be formulated at considerable depth.

Problematic Qualification Aspects of the Avoidance to Maintain a Child and Alternative Ways of Child Maintenance

The article analyzes one of the fundamental rights – the right to maintenance, which proper implementation ensures normal development of the child. This right matches with the duty of parents to maintain their minor children. Paragraph 6 of Article 38 of the Constitution of the Republic of Lithuania states that parents have a duty to educate their children to be honest people and loyal citizens, supporting them until adulthood. The obligation to maintain children is established in the first 3.192 Article paragraph of the Civil Code of the Republic of Lithuania, and the responsibility for avoiding to maintain a child is provided in Article 164 of the Criminal Code. The article discusses the fact that the analysis of criminal law rate is not precise enough. Article 164 of the Criminal Code does not match with the child maintenance methods specified in the CC Article 3.196 paragraph 1. Since criminal liability is only for judgment in default in civil cases, a person shall only be liable for breaking the right to maintain a child, provided in the CC 3.196 paragraph 1. This article deeply analyzes the problematic qualification aspects of the avoidance to maintain a child. Some alternative ways of child maintenance are mentioned, as can be chosen from other law instruments (bailiffs, Guarantee child support fund) and it leads to the ultima ratio principle. On the other hand, it is not required to seek alternative remedies for affected interests, and it is possible to initiate a pre-trial investigation. Therefore, this article seeks to identify specific civil and criminal law rules delimitation. Avoidance of child maintenance is an ongoing crime. The main problem in legal practice is to determine an end of this ongoing criminal conduct. The practice of the Supreme Court of Lithuania is not unanimous. In some cases, the end of this ongoing conduct is considered to be a moment when the past judgment has entered into force, in other cases – the moment of indictment. These positions are criticized by many authors and it is suggested to follow the Supreme Court’s practice, according to which the moment when a judgment of conviction for the criminal act is passed should be considered as an end of an ongoing criminal conduct.

The Europeanisation of Polish Substantive Criminal Law: How the European Instruments Influenced Criminalisation in Polish Law

Polish accession to the European Union has contributed to an extensive change of the Polish legislation, including substantive criminal law. The implementation of EU legal instruments led in particular to a change of definitions of crimes – new crimes were introduced and also already existing definitions were changed. The article aims at presenting the process of implementation of EU instruments taking as an example provisions on corruption and human trafficking. It argues that this process, which was one of the most powerful factors contributing to the change of the scope of criminalisation in the Polish criminal law over the last 15 years, lacked reflection on the ultima ratio principle and was full of mistakes made by the Polish legislator. As a result, a complete and real harmonisation of the Polish provisions with the EU criminalisation standards has not been fully achieved.

Criminal Sanctions in the Field of EU Environmental Law

The core aim of this Article is to analyse whether it was an appropriate decision from a criminal policy perspective to adopt the Environmental Crime Directive. The Article asks the basic question whether the Union should enforce Union environmental law by means of criminal sanctions. In this regard it is claimed that, according to the principle of ultima ratio, the Union legislator may only require that an act is criminalised if it is necessary to protect a fundamental European interest, and only on the condition that all other measures have proved insufficient to safeguard that interest. The Article therefore examines whether criminal law measures is suitable for the enforcement of Union environmental rules and secondly if there are other measures which are equally effective in enforcing Union environmental law as criminal sanctions.

Subsidiarity in the Area of EU Justice and Home Affairs Law—A Lost Cause?

AbstractThis article intends to highlight the concept of subsidiarity in the area of the third pillar and EU criminal law more generally. In doing so, the article tries to show that criminal law could and should be seen as imbued with ‘subsidiarity’ and, more specifically, that it could be viewed as an expression of the principle of ultima ratio—a minimalism approach—in criminal law. Accordingly, the article asks why subsidiarity appears to be forgotten in third pillar matters despite its important function in this area. Moreover, the article confronts such a desired application of subsidiarity in the context of established EC law doctrine, by questioning whether it is possible simply to transplant the supranational discussion into the terrain of criminal law. Further, the article explores the function of Article 47 EU as the watchdog of the supranational sphere and discusses also briefly the phenomenon of enhanced cooperation in relation to the principle of subsidiarity in the domain of EU Justice and Home Affairs.

The ECJ on the Verge of a Member State Friendly Judicature? – Annotation to the Marks & Spencer Judgement, ECJ 13. 12. 2005, C-446/03

On 13 December 2005, the Grand Chamber of the European Court of Justice (ECJ) has issued apart from the SEVIC case the second decision in the field of cross-border company activities. In contrast to many literary anticipations, the Court did not reject the UK domestic focused group taxation system as a general violation of Art. 43 and 48 EC Treaty. The ECJ rather tries to balance the fundamental freedoms and the legal and budgetary interests of the Member States by emphasizing the principle of territoriality. Only if the foreign subsidiary (or a third party as a purchaser) has no opportunity to effectively use its incurred losses in the state of its domicile, the state of residence of the parent company is obliged by Community law to reduce he losses from the taxable income (ultima ratio-principle). The reasons given for the judgement leave much uncertainty and reveal a lack of dogmatic foundation.