Principles Of Sentencing Research Articles

A Critical Analysis of the General Principles of Sentencing under the Criminal Law Doctrine and Their Application by the Supreme Court of the Russian Federation

This article highlights the need to enhance the procedures for determining guilt through criminal law. The study is based on a careful analysis of the legal standards laid down in the Criminal Code of the Russian Federation and key academic sources of the Russian criminal law. Potential solutions were offered to address the contentious matters within the criminal law doctrine. According to the obtained results, when the Plenum of the Supreme Court of the Russian Federation voices its stance on a number of issues regarding sentencing, it occasionally surpasses its powers conferred by the Constitution of the Russian Federation. It was established that the general principles of sentencing are such regulations that apply to all types of offenses, regardless of the type, nature, or gravity of the crime committed. The scope of these regulations extends beyond Article 60 of the Criminal Code of the Russian Federation and specifies its provisions. Another batch of standards includes regulations governing the rules and procedures for imposing certain types of penalties, as well as their specificity for certain criminal behaviors.

Окремі питання санкції кримінально-правової норми

The sanction of an article of the Special Part of the Criminal Code of Ukraine reveals the legal aspect of criminal punishment. It determines the type and amount of punishment for a criminal offense. Depending on the degree and nature of the public danger, the sanction of a criminal law provision sets out what restrictions a person is subjected to, which may relate to specific personal, property, and other human and civil rights and freedoms provided for by the Constitution of Ukraine. The protection of human rights and freedoms is a priority for the state. The fight against crime is carried out through the imposition of punishment necessary and sufficient to reform the convicted person and prevent the commission of new criminal offenses. In the sanction of the article of the Special Part of the Criminal Code, the type and limit of punishment are established to achieve the goals set out in Article 50. Accordingly, the sanction should correspond to the social danger of the act, provide opportunities to individualize the punishment, consider the principles and general principles of sentencing, etc. The content of the sanction determines the achievement of the goals of punishment, including punishment, correction of the convicted person, and prevention of new criminal offenses. The degree of the socially dangerous act committed, the ability to individualize the punishment, considering the principles and general principles of sentencing, and being consistent with sanctions for crimes of a similar type and nature play an essential role in the design of sanctions. An analysis of the controversial issues is necessary to further improve the sanction of criminal law provisions. The issue of a large amplitude between lower and higher limits of punishment, lack of consistency in the central and qualifying elements of a criminal offense, and many main punishments in the sanctions for one criminal offense are discovered. Keywords: sanction of criminal law provision, crime, individualization of punishment, content of sanction, combating crime.

Duration of deprivation of the right to hold certain positions or engage in certain activities: theory and practice problems

Purpose. The objective of the study is to clarify the criminal law issues related to the determination of the terms of deprivation of the right to hold certain positions or engage in certain activities as a special type of punishment. To achieve this objective, an appropriate methodology was applied, in particular, philosophical, general scientific and special scientific methods were used. For example, the dialectical method was used to identify the essential features of deprivation of the right to hold certain positions or engage in certain activities; the historical and legal ones - when studying the problem of determining the optimal terms of deprivation of the right to hold certain positions or engage in certain activities in the national criminal law doctrine; the comparative legal method - to clarify the specifics of the relationship between deprivation of a right and restriction of a right; typological one - to reveal the peculiarities of criminal law differentiation of terms of deprivation of the right to hold certain positions or engage in certain activities; systemic and structural methods were used to study the deprivation of the right to hold certain positions or engage in certain activities in the system of criminal punishment; formal and dogmatic ones - when analyzing the provisions of current criminal legislation of Ukraine establishing deprivation of the right to hold certain positions or engage in certain activities as a type of punishment. Results. Establishing the periods of deprivation of the right to hold certain positions or engage in certain activities in absolutely certain amounts contradicts the general principles of sentencing, eliminates the court's authority to impose an optimal punishment, and also negatively affects the mechanism of criminal law regulation. Scientific novelty. Deprivation of the right to hold certain positions or engage in certain activities is an effective form of preventing and combating crime, as it provides for the harmonization of the relevant punitive properties with the personal characteristics of the perpetrator. Practical importance. In order to enhance the criminal legal impact of deprivation of the right to hold certain positions or engage in certain activities, the duration should be set in relatively defined amounts with the mandatory definition of both the maximum and minimum limits.

CHARACTERISTICS OF CRIMINAL RESPONSIBILITY FOR COMPLICITY AND PROSPECTS FOR IMPROVEMENT

The article analyzes the principles of criminal responsibility and sentencing and the specific features of their application to crimes committed in complicity. In particular, according to the general rule, the commission of an act that has all the symptoms of the criminal structure provided for in the Criminal Code is the basis for prosecution. In crimes committed in participation, these signs are manifested only in the actions of the perpetrator. On the other hand, the organizer, agent and assistants do not directly participate in the crime committed by the executor, that is, they do not commit the actions of the objective side of the crime, which constitute the structure of this crime. The article states that it is not difficult to determine responsibility for crimes committed by one person or co-perpetrators, but there are certain difficulties in determining their responsibility when the crime is committed with the participation of several people or by an organized group or criminal association. Also, the views and opinions of scientists on the issue under analysis were studied, and the problems in this area were identified, as well as proposals and recommendations were developed for determining the scope of responsibility for participation in the crime, imposing punishment based on the level of social danger of each participant, and improving the legislation.

THE CONCEPT OF PUNISHMENT AND GENERAL PRINCIPLES OF INFLICTION OF PENALTY IN CRIMINAL LEGISLATION OF UZBEKISTAN

The article states that sentencing is the final stage of a crime, which can only be distinguished by the differences between the parties involved in the process. Also, issues related to the general principles of sentencing are presented on the basis of examples from the works of our ancient national scholars. Special attention was paid to examples of only one sentence for a crime committed in sentencing matters, and it was noted that according to the provisions of criminal law, each crime must require the application of only one main punishment, a special solution does not comply with the principles of humanity and justice. In addition, this article analyzes the general principles of sentencing, the theoretical views of scholars on the circumstances to be considered and mitigating circumstances in it, divided into four groups. At the same time, the issue of relevance of the norms of criminal law and mitigating circumstances in sentencing is analyzed on the basis of the Criminal Code of the Republic of Uzbekistan and the Plenum of the Supreme Court of the Republic of Uzbekistan "On the practice of sentencing by courts". appropriate proposals have been developed.

The Sentencing Principles of Equality and Proportionality from a Feminist Perspective: Exploring Positive Gender Discrimination at Sentencing

Feminism revolutionized criminology. Important issues were questioned within the feminist agenda, such as (in)equality in the criminal justice system and the disproportionate impact of imprisonment on women. In a scenario of worldwide increasing female incarceration, gender-differentiated sentencing regimes have been discussed, aiming at reducing prison sentences. In the present study, we set out to answer the following question: from a feminist criminological perspective, is it possible to reconcile the idea of a differentiated sentencing regime for women and the fundamental rights to equality and proportionality in sentencing? Building upon the feminist analytical categories of domination and patriarchy (Gerda Lerner, Catharine MacKinnon, and Sylvia Walby), our goal is to break the logic of gender neutrality/insensitivity at sentencing. Equality and proportionality cannot be the only relevant considerations in sentencing. On the contrary, positive gender discrimination is a requirement of substantive justice. The study explores some possibilities, such as introducing a mitigating circumstance due to womanhood, or when a woman offender does not pose a significant risk to society or when she is the primary caregiver of dependents, especially children. Such discussion necessarily involves empirical data from countries like Brazil, where the growth of female imprisonment has been particularly alarming, and the rights of women are often violated within the criminal justice system. More importantly, we suggest defining a new purpose for sentencing: emancipation or female empowerment. As a result, prison sentences for women should be seriously treated as ultima ratio, applicable only in exceptional cases (violent and sexual crimes).

JAZO TAYINLASH UMUMIY ASOSLARINING NAZARIY TAHLILI

This article notes that the appointment of punishment is the final stage of the crime committed, which can only be distinguished by the differences between the parties involved in this process. Also, issues related to the general foundations of the imposition of punishment are indicated on the basis of examples from the works of our ancient national scientists. Particular attention was paid to examples of the appointment of only one punishment for a crime committed in matters related to the appointment of punishment, and it was noted that in accordance with the provisions of criminal law, each crime is obliged to require the application of only one basic punishment, the special resolution of this issue does not coincide with the principles. In addition, this article analyzes the general foundations of the imposition of punishment, and the theoretical views of foreign and national scientists on the circumstances to be taken into account in it. It is emphasized that the general basis for the appointment of punishment is the requirements of criminal law, which must be taken into account when applying coercive measures by the court. This article states the need to improve the norms of the general principles of sentencing, as evidenced by the materials of judicial practice and the need for a theoretical analysis of the general principles of sentencing today and the improvement of the norms of criminal law.

The Evidence of the Dead Body. On Moral Consciousness and Legal Practice in the Qing China

The article is a case history study. Basing on a well-documented criminal case of 1809, the author explores such issues as corruption in the ranks of Chinese officials; effectiveness of severe punishments for crime prevention; the methods criminal offences were committed and investigated in the Qing empire, and the level of public awareness of these methods; principles of sentencing; and the issue of crime and punishment in the mass consciousness of the Chinese in the late 17th and early 19th centuries. Special attention is paid to a remarkable phenomenon of fictionalizing of a real incident in witness reports, i.e. the introduction of popular moral, didactic and religious motifs widely known in the folklore and literature of that time.

SOME ASPECTS OF MITIGATING CIRCUMSTANCES IN CRIMINAL LAW

This article examines the features of mitigating circumstances when imposing punishment and the issue of taking into account in the presence of special (special) rules for mitigating circumstances. The role and significance of the general principles of sentencing and the principle of imposing punishment in the appointment of punishments were have analyzed. At the same time, this article analyzes the practical significance of the circumstances mitigating punishment when imposing punishment by studying some of the circumstances mitigating punishment. Also, about the active repentance of the perpetrator of the deed, various and similar features of punishment with the appointment of a lighter punishment, as well as some theoretical and practical problems associated with their application in the appointment of punishment. In addition, this article discusses the features of extenuating circumstances sentencing and the issue of their consideration in the presence of special rules of mitigating circumstances. This article describes the specific features of sentencing with active repentance of the offender, various and similar features of punishment with the imposition of a milder punishment, as well as some theoretical and practical problems associated using them in sentencing. As a result of this article relevant recommendations have been developed and proposals for improving the criminal law of the Republic of Uzbekistan

Reconsidering Sentencing Principles in Cases of Civil Disobedience: Cuadrilla Bowland Ltd and Others v Persons Unknown and Others

AbstractCommon law courts have struggled to offer a consistent basis for sentencing in cases concerning civil disobedience. This case note examines the recent Court of Appeal decision Cuadrilla Bowland Ltd v Persons Unknown, concerning individuals convicted of contempt for defying injunction orders to refrain from continuing their direct‐action protests at a fracking site run by an oil company, with a view to immobilising its business operations. The note observes that the Court here offered a more coherent basis for sentencing principles concerning acts of civil disobedience and breaches of injunction orders. The rationales offered transcend traditional distinctions, relied on by some courts, between direct and indirect disobedience and between civil disobedience and contempt, which have brought about considerable analytical difficulties. The judgment further signifies a paradigm shift in the Court's approach to cases of civil disobedience – from emphasising ‘law and order’ to focussing on a ‘balance of rights’.

The Methods Of The Imposition Of A More Lenient Punishment According To The Legislation Of The Republic Of Uzbekistan

All the ways of the imposition a more lenient punishment are considered particularly in the article. The issues of individualization of punishment are also discussed. The article deals with the general principles of sentencing. The article examines the aspects of the application of each method of the imposition a more lenient punishment, under what circumstances each method is used, and under what circumstances it is impossible to apply a concrete method. Examples from the legislation of the Republic of Uzbekistan are also given. The article analyzes the sanctions of the articles of the Special Part of the Criminal Code of the Republic of Uzbekistan. The article considers the authors' opinions on certain issues.

FORCED LABOR AS A TYPE OF PUNISHMENT: ISSUES OF PREVENTION AND ENFORCEMENT

The article examines the criminal-legal and criminal-executive aspects of punishment in the form of forced labor. The problematic points in the assessment of the place of forced labor in the system of punishments, the punitive content of punishment and the order of its appointment are determined. The contradiction of the order of application of forced labor with the general principles of sentencing is revealed. The article analyzes some issues of execution and serving of forced labor, identifies the problems of legal regulation of the procedure for implementing punishment, in particular, related to the involvement of convicts in labor. The common features of the execution and serving of forced labor with the order of execution and conditions of serving of imprisonment in colonies-settlements are revealed. Some changes in the normative-legal acts of both legislative and subordinate nature are proposed.

To the issue of the concept of general principles of imposition of sentence

An attempt is made to investigate scientific approaches to the concept of general principles of sentencing. Although the general principles of sentencing are directly provided for in the Criminal Code of Ukraine in the article with the appropriate title, there are still some differences as to which provisions of this article apply to them. There are several points of view on this. According to the first - the general principles of sentencing are contained only in Part 1 of Art. 65 of the Criminal Code of Ukraine, which provides for five separate general principles: 1) sentencing within the limits established by the sanctions of the article (sanctions of part of the article) of the Special Part of the Criminal Code, which provides for liability for a criminal offense, except as provided in part two 53 of the Criminal Code; 2) sentencing in accordance with the provisions of the General Part of the Criminal Code; 3) imposition of punishment taking into account the severity of the criminal offense; 4) sentencing, taking into account the identity of the perpetrator; 5) sentencing, taking into account mitigating and aggravating circumstances. According to the second point of view, the general principles of sentencing are contained only in Part 1 of Art. 65 of the Criminal Code of Ukraine, which provides for three general principles, ie the imposition of punishment taking into account the severity of the criminal offense, the perpetrator and mitigating and aggravating circumstances, is considered one general principle. It is concluded that the general principles of sentencing should be understood as a holistic system of general rules, which together must be guided by the court in each case of choosing the type and measure of punishment for a person guilty of a criminal offense.

International standards for sentencing a special subject of crime

Introduction. The issue of compliance of the principles of sentencing with international standards and their significance for the criminal responsibility of special subjects of crime has not been specifically considered in the theory of criminal law. But this issue should be reflected, because in the vast majority of criminal liability is brought to persons who are endowed, along with mandatory, special mandatory features. The aim of the article. The purpose of this study is to determine whether the provisions of the criminal code of Ukraine that define the criminal responsibility of a special subject of crime correspond to the principles of sentencing, which are the embodiment of international standards for ensuring human rights, and how this is regulated at the level of national legislation. Results. The methodology of this study is to analyze and summarize the scientific and theoretical material, as well as compare the norms of domestic and international legislation in the field of ensuring respect for human rights-a special subject of crime in criminal legislation. International standards, which are mandatory and not Advisory in nature, are embodied in norms-principles that are fixed at the level of legislation. The main form of implementation of the law on criminal responsibility is sentencing by the court, so international legal standards are implemented in the form of sentencing principles that guarantee the rights, freedoms and legitimate interests of the subjects of crimes, including special ones. The principles of sentencing should include the principle of legality of punishment; the principle of certainty of punishment in a court sentence; the principle of expediency of punishment; the principle of justification and mandatory motivation of punishment in the sentence; the principle of justice of punishment; the principle of proportionality of punishment; the principle of humanity of punishment; the principle of individualization of punishment Conclusions. The principles of sentencing embody provisions that oblige to take into account all essential features relating to the characteristics of the offender and the circumstances of the crime. Compliance with these principles and their clear regulation will help to improve the criminal responsibility of special subjects of crimes. Therefore, these principles should be clearly regulated in the criminal code of Ukraine. It is advisable to include the principle of proportionality (conformity) of punishment in the list of sentencing principles. This study is not exhaustive and opens up the prospect of further research on this issue and improving domestic criminal legislation.

Some Aspects of the Analysis of Circumstances Mitigating the Punishment in its Individualization

The article deals with the legal nature and significance of circumstances that mitigate the punishment as a criterion for the individualization of the punishment when it is imposed. It is stated that sentencing objectively acts as the final stage of justice. It is ascertained that the achievement of the goals of restoring social justice, correcting the convicted and preventing the commission of new crimes is possible only with the unconditional observance of the general principles of sentencing. Therefore, there is a system of rules regulating the process of individualization of the punishment and providing the uniformity of the application of the criteria established by law; these criteria are used by the court in determining the type and the measure of punishment for specific persons found guilty of an offense. The implementation of the tasks of criminal legislation (correcting the convicted person and preventing him from committing new crimes) to a great extent depends on the lawful, fair and justifiable punishment which is imposed on the perpetrator. As a consequence, the legal regulation of the general principles of sentencing is unconditional. In imposing a sentence, the court must apply an individual approach, taking into account the particularities of each crime and the person who committed it. Circumstances that mitigate the punishment also play an important role in this process. The analysis of the judicial practice shows the ambiguity of the approaches to take into account the circumstances that mitigate the punishment when it is imposed. Sentencing is often limited by courts only with statements that all the circumstances of the crime were taken into account without a detailed analysis of the facts. In order to avoid the aforementioned shortcoming, in the motivation part of the sentence, the court must not only list the circumstances that it found to be mitigating in the case, but also justify how they reduce the degree of the public danger of the crime and the perpetrator. In addition, the author investigates the issues of the criminal significance of circumstances that mitigate the punishment and gives reasons for inexhaustibility of the list of these circumstances.

General Sentencing Principles as a Guarantee of Respect for the Perpetrators’ Rights

The paper deals with the sentencing principles having not only theoretical but also practical significance because only in case of compliance with the general principles, the sentence applied to a perpetrator will not only be formally legal but also just and precisely substantiated. The objective of the research is to define the effect of the sentencing principles for the protection of the perpetrators’ rights in the law enforcement practice, i.e. whether these principles guarantee the respect for the rights of this category of people. The topicality of this problematics is defined as theoretically and practically significant both at the national and at the international level because sentencing principles, as it was already mentioned above, allow avoiding fatal mistakes in sentencing, which will result in a higher effectiveness of the national criminal law and will contribute to the creation of a more substantiated and harmonized international criminal law. The analysis of the essence of these principles will allow defining the rationale and necessity of the use of sentencing principles in the law enforcement practice, as well as the influence of the principles on the respect for the perpetrators' rights, freedoms, and legal interests in the national and international legal processes.

Restorative Justice, Consistency and Proportionality: Examining the Trade-off

Restorative justice conferences that operate as sentencing mechanisms involve the making of a trade-off between empowering lay participants to make their own decisions, and the requirements of consistency and proportionality, which are established principles of sentencing. In current restorative justice practice, this trade-off tends to be made more in favour of consistency and proportionality, at the expense of the empowerment of lay participants.Empowerment is central to key benefits of restorative justice, such as reducing recidivism and increasing victim satisfaction. However, its importance to the effectiveness of restorative justice is not always properly acknowledged. In addition to this lack of acknowledgment, there are both conceptual and practical problems with the principles of consistency and proportionality (particularly in the way that they are presented when considered in relation to restorative justice) that are often overlooked. As a result, the tendency is for assumptions to be made about the necessary supremacy of these principles over empowerment. This paper urges more acknowledgement of the importance of empowerment in restorative justice, together with a greater appreciation of the problems with consistency and proportionality, with a view to challenging assumptions about the way that the trade-off must be made.

Guidelines for Accused Individuals in the Criminal Justice Process

Guidelines to assist self-represented defendants progress through the criminal justice process and includes Introduction; Court System/Types of Offences; Commencing the Proceedings; Pre-trial Proceedings; Role of Duty Counsel; First Appearance; Disclosure; Pre-trial Conference; Plea-bargaining; The Arraignment and Plea; The Election of the Accused on Indictable Offences; The Preliminary Inquiry; The Trial; Initial Matters; Research; Jury Selection; Trial Process; Sentencing Principles; Sentencing Process; Types of Sentences.

Sentencing for Child Sexual Abuse in Institutional Contexts

This report examines sentencing law and practice in Australia in relation to child sexual abuse committed in an institutional context. It covers the principles of sentencing, sentencing standards and the range of non-sentencing statutory measures available to detain offenders in custody, as well as restrictions and monitoring of their movement. It also considers organisational responsibility for CSA and the sanctions that may be imposed upon institutions.

‘Let the Punishment Match the Offence’: Determining Sentences for Australian Terrorists

To date, 38 men have been charged with terrorism offences in Australia. Twenty-six have been convicted. The article commences with an overview of the factual circumstances leading to these convictions. This provides important background for the following discussion of a largely unexplored issue in Australian anti-terrorism law and policy, namely, the difficulties faced by the Australian courts in adapting traditional sentencing principles to the (for the most part, preparatory) terrorism offences enacted by the Commonwealth Parliament after the 9/11 terrorist attacks. Of particular interest are how the courts determine the objective seriousness of these offences and the respective weight placed upon deterrence (both specific and general) and the rehabilitation of convicted terrorists.