Separate Crime Research Articles

Access to Justice for Victims of Conflict-related Sexual Violence

Abstract Despite persistent impunity for conflict-related sexual violence, there have been a limited number of significant cases holding perpetrators accountable within national justice systems. One of these cases is the Sepur Zarco case, in which two former military members were accused of committing acts of sexual violence, sexual slavery and domestic slavery near a military outpost in Sepur Zarco during the civil war in Guatemala. In a landmark verdict issued in February 2016, a Guatemalan court convicted the two accused, marking the first time a Guatemalan court has convicted former military members for acts of sexual violence committed in the context of the country’s civil war, and the first instance of a domestic court prosecuting sexual slavery as an international crime. In acknowledging that these acts amounted to grave crimes, the Sepur Zarco verdict changed the narrative about sexual violence in Guatemala’s conflict. Up until then — as in other conflicts in the region and beyond — sexual violence had not been recognized as a separate crime, equivalent to other crimes committed during the conflict, for which perpetrators could be held accountable. This chapter will highlight some of the critical developments prior to the case, as well as the legal and political strategies employed in the case, which led to its remarkable success. It will also offer some reflections about the challenges that have emerged since the Sepur Zarco case and the potential lessons learned for pending and future litigation of similar cases in the region.

HISTORY OF ESTABLISHMENT AND DEVELOPMENT OF UKRAINIAN LEGISLATION ON CRIMINAL LIABILITY FOR INTENTIONAL DESTRUCTION OR DAMAGE OF HOUSING-RESIDENTIAL HOUSING

The relevance of the article is that the history of the development of legal protection of housing and communal services cannot be separated from the history of legal protection of the institution of communal property in Ukraine as a whole. However, it still remains insufficiently studied. In the scientific literature there are only a few mentions of legal protection or property in general, which after 1990 was legally called communal and in the most characteristic features resembles this form of ownership, is its historical predecessor. Analysis of the most important sources of criminal law in Ukraine, which existed at one or another historical stage of its development, shows that at all times the state has consistently paid attention to the protection of communal property. The level of protection of these relations could be different, depending on the socio-economic, political and other conditions of society, but in this case the task of protecting communal property was performed by criminal law. Ensuring the inviolability of housing and communal services was carried out by criminal law, primarily by establishing liability for various encroachments on them as part of the institution of communal property. It was found that the criminal legislation of the second half of the XIX - early XX centuries. had a systematized nature, formed a system of rules on crimes related to the destruction and damage of housing and communal services, which has an extensive nature. The encroachment was differentiated according to the object, the features of the object and a number of other circumstances. It is determined that the current stage of development of criminal liability for destruction or damage to housing and communal services is associated with the adoption in 2001 of the new Criminal Code of Ukraine. It is concluded that initially the intentional destruction or damage of housing and communal services was treated in criminal law as a component of intentional destruction or damage to property, but later this phenomenon evolved into a separate crime. There is also an increase in the content of criminally punishable methods of intentional destruction or damage to housing and communal services.

Signs of subjective part of offenses related to the use of authority. Concept of «quasi-corrupt crime»

The article deals with the analyze of the characteristics of the subjective side of the offenses related to the use of authority, and attention is paid to their specificity. In particular, substantive features, forms and volume of wine, purpose orientation and determining influence of motives of these crimes are investigated. Criminal misuses by officials are characterized by actions that can be committed only intentionally, and in most cases the intent is straightforward. Mental attitude to socially dangerous consequences in these crimes can be both intentional and careless. Purpose and motive, depending on the articles formation, are mandatory for separate crimes. In most cases, the purpose of these crimes is to gain wrongful advantage (bribe), and the motive is selfish. Each time for the correct criminal qualification we need to establish a mental attitude of official to all signs of the crime – install the volume of wine. Also, the author proposes to use the concept of "quasi-corrupt crime" in the theory. The author suggests that this is the fraud which includes all its general characteristics. Its specificity is that under certain circumstances it takes on conditional and superficial properties of a corruption offense. However, essentially it is not a corruption offense. In such case, corruptive character is provided through fraud in the misuse of powers or promotion of abuse, which does not actually occur and cannot be embodied in future. And the guilty person must be fully aware of all this. Attention is also paied to the problematic aspects of law enforcement practice and ways to solve them are suggested. Also, the author notes on the inability to prosecute twice, that becomes a violation of «ne bis in idem» principle, which is fixed in Article 4 of Protocol 7 of Convention for the Protection of Human Rights and Fundamental Freedoms.

THE VERDICT IN KARLSRUHE: "LIFE IMPRISONMENT FOR THE BUTCHER FROM MINSK!»

The trial against Karlsruhe criminal police Secretary Adolf Rube, held in 1949, was the first trial in Germany, during which Nazi atrocities committed on the territory of Belarus were considered. By the example of this process, the paper attempts to identify the specifics of West Germany courts’ consideration of criminal cases related to the commission of Holocaust crimes in Eastern Europe. German law excluded the possibility of punishing Nazi criminals for genocide, crimes against peace and humanity. Guided by the norms of the German Criminal Code of 1871, German justice considered each case of murder of Jews during the years of national socialism as a separate crime, caused by personal motives. Based on this, A. Rube was punished not for participating in the state-organized, bureaucratically planned genocide of the Jewish people, but for committing separate, unrelated murders. The defendant, who was accused of killing 436 Jews in the Minsk ghetto, was found guilty of unlawfully depriving 27 people of their lives and sentenced to life imprisonment. However, in 1962 he was amnestied and was released. By presenting the Holocaust as a mosaic of individual, unrelated criminal acts, German justice maintained the illusion that "normal" Germans "knew nothing" about the mass extermination of Jews, that the Holocaust was solely the product of the Hitler’s actions, his fanatical entourage, and individual "pathological sadists," "sex maniacs," and "upstarts" such as A. Rube, who sought to assert themselves at the expense of Jewish victims.

ЛАТЕНТНОСТЬ ДОМАШНЕГО НАСИЛИЯ В РЕСПУБЛИКЕ КАЗАХСТАН НА СОВРЕМЕННОМ ЭТАПЕ

The article is devoted to the problem of domestic violence and its latency in the territory of the Republic of Kazakhstan. As a result of the analysis of the conducted sociological research the authors revealed the reasons why the victims of domestic violence are afraid to apply to the law enforcement authorities and proposed measures for obtaining true infor-mation about the real extent of domestic violence. Violence is a serious problem in society as it has very dangerous consequences, both for the physical and psychological state of the victims. Recently, there has been an increase in domestic violence. The victims of domestic violence are women, children, the elderly and the disabled, the most defenceless categories of citizens. In order to study problems of domestic violence and to identify its causes and extent of its latency a sociological survey was carried out in September 2020 which involved 642 people from 3 regions of the Republic of Kazakhstan (Zhambyl, Turkestan, Almaty) and 3 cities of national importance (Nur-Sultan, Alma-Ata, Shymkent). Of those surveyed, 84 per cent were female and 16 per cent male. The survey revealed the extent of domestic violence. According to the findings of the survey, 85 per cent of the population surveyed reported domestic violence. More than a half identified physical violence as the main form of violence, 40% identified moral and psycho-logical violence, and 10% identified economic violence in families. Reasons for the latency of violence include the well-established mentality in Kazakhstan, which dictates its own rules of behaviour, the rules of morality and ethics that prevail in society, and the persistence of patriarchal attitudes in the family. Another objective of the survey was to determine what measures people thought would be more effective in preventing domestic violence. Most respondents noted a need for toughening of legislation on domestic violence, introducing a separate crime in criminal legislation (51.9%), holding preventive talks in families (40.7%), establishing crisis centres and shelters for victims of domestic violence (33.3%). In general, it is noted that in order to obtain true information about the real extent of domestic violence and to reduce its latency, all measures should be divided into three main directions, depending on the type of latency to be affected. The first is to minimise the latency of all crime. Secondly, measures should be taken to reduce natural latency. Thirdly, measures should be taken to reduce man-made crime. Citizens' trust and cooperation with law enforce-ment agencies should be increased. On this basis, further study and research is required to provide the rationale and evidence for identifying the latency of violent offences.

Addressing Hate Crime in New Zealand: A Separate Offence?

In light of the Christchurch terror attack, a review of New Zealand’s hate crime laws is needed. This paper considers one potential reform option - the adoption of a separate hate crime offence. Firstly, I reconsider the question of whether hate crimes are the type of conduct that should be additionally criminalised. Additional criminalisation of hate crimes is necessary for a number of reasons. Hate crimes are a violation of the victim’s human rights and cause additional harm, to the victim and wider society. The increased moral reprehensibility of hate crimes makes deterring these crimes particularly important. I then critique the sentence enhancement approach, arguing that New Zealand’s current hate crime provision is inadequate. There is uncertainty in the weight that should be attributed to hate crime, the balancing exercise undertaken in sentencing gives insufficient recognition to the hate crime element and sentencing fails to deter hate crime offending. I also consider some issues with a separate hate crime offence: the limited nature of the provisions and the potential difficulties in prosecuting. I then consider the fair labelling principle. A separate offence is important for fair labelling of hate crime. The offence would more accurately communicate the nature of the wrongdoing to the offender, the public and other criminal justice agencies. It would also give more recognition to the victim. There are a number of issues that would need to be addressed if a separate offence were enacted. In particular, which underlying offences should be covered by the separate offence, which characteristics or grounds of hostility should be protected and the requisite motive or causation that should be required. This paper considers how these issues might be addressed. I conclude that New Zealand’s current approach to hate crimes is inadequate and change is needed. More consideration of the exact scope of any changes is required, particularly to determine whether to adopt a separate hate crime offence or a hybrid system.

POST-CRIMINAL IMPACT IN RELATION TO WITNESSES AS THE GROUND OF SECURITY MEASURES APPLICATION: METHODS, CONSEQUENCES AND WAYS OF OVERCOMING

The article deals with a phenomenon of post-criminal impact which acts as the ground of security measures application in relation to witnesses, according to Part 3 Article 11 of the Russian Criminal Procedure Code (CPC). The author analyses thoroughly the characteristics of post-criminal impact, examines the definition, features, types and forms of threats spoken to the persons assisted to the justice. This article reveals different problems of application of legal rule in Part 3 Article 11 of CPC, studies its content, uncovers its disadvantages and suggests necessary amendments in criminal procedure law. The author raises the question of possible introduction of criminal responsibility for stalking of witnesses because of their assistance to justice, gives a positive example of foreign experience of introduction a separate crime stalking in criminal legislation and supports this position with several arguments. With in the article the author substantiates her position using vast theoretical material, the data of questionnaire survey of practitioners, specialised on preliminary investigation and trial proceedings, as soon as cites the specific examples of post-criminal impact from judicial practice.

Krivično delo prevare u uporednom zakonodavstvu

The article is devoted to the research in the sphere of responsibility for the crime of fraud and comparative analysis of analogous provisions of several countries. The author analyzes theoretical views and norms which regulate that offence in the criminal law of Great Britain, USA, France, Germany, Spain and Netherlands. The conducted study indicates that considerable attention is paid to the committing of criminal offense, which is why the Anglo-American law is directed to analyzing several legal concepts that characterize fraud. Except the current legislation, it has been analyzed the term of fraud from the criminal and civil law aspect, as well as archival material containing for the first time the concept of "false representation". The other analyzed legislations place more emphasis on the circumstances under which the crime was committed, taking into account the social position, age and health status of the victim, as well as the characteristics of the property that is subject of the criminal offense. While Great Britain has devoted a general concept of fraud to a particular statute, the countries of the Euro-Continental legal system regulate fraud in the criminal code, which, except to the basic concept, also regulate special form of fraud as separate crimes.

Excluding tortured confessions in the People's Republic of China: A long March towards the eventual abolition of torture?

Since its ratification of the United Nations' Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1988, China has enacted many laws and rules in order to prohibit torture. But torture still happens, and tortured confessions continue to influence trials, as numerous wrongful convictions demonstrate. This study aims to examine why there are persistent practices of forced confession in China and to identify the roots of torture in China's current criminal justice system in order to mend the remaining flaws. Currently, the definition of torture used in China is too limited in scope, and not all illegally obtained evidence can be excluded even by law. In practice, courts focus on remedying wrongful convictions caused by torture in a narrow sense and are not totally in line with international standards. Even defence lawyers are charged with separate crimes and tortured to confess sometimes, seriously detrimental to fairness and justice. So, more institutional restraints on banning police torture are necessary, in spite of many reform measures that have already been taken. Legislative revisions on the scope of torture and institutional reforms on supervising police interrogations are needed at the very least. All lawyers should be immune from criminal investigations relating to their work during their defence against tortured confession in all cases.

Is There a Conjunction Fallacy in Legal Probabilistic Decision Making?

Classical probability theory (CPT) has represented the rational standard for decision making in human cognition. Even though CPT has provided many descriptively excellent decision models, there have also been some empirical results persistently problematic for CPT accounts. The tension between the normative prescription of CPT and human behavior is particularly acute in cases where we have higher expectations for rational decisions. One such case concerns legal decision making from legal experts, such as attorneys and prosecutors and, more so, judges. In the present research we explore one of the most influential CPT decision fallacies, the conjunction fallacy (CF), in a legal decision making task, involving assessing evidence that the same suspect had committed two separate crimes. The information for the two crimes was presented consecutively. Each participant was asked to provide individual ratings for the two crimes in some cases and conjunctive probability rating for both crimes in other cases, after all information had been presented. Overall, 360 probability ratings for guilt were collected from 120 participants, comprised of 40 judges, 40 attorneys and prosecutors, and 40 individuals without legal education. Our results provide evidence for a double conjunction fallacy (in this case, a higher probability of committing both crimes than the probability of committing either crime individually), in the group of individuals without legal education. These results are discussed in terms of their applied implications and in relation to a recent framework for understanding such results, quantum probability theory (QPT).

The 'Intentional' Sexual Transmission of HIV: A Note of Caution In Light of Phiri v S

Case Note

The ICC’s First ‘Forced Pregnancy’ Case in Historical Perspective

Abstract Reproductive violence, as distinct from the related issue of sexual violence, is yet to be truly ‘surfaced’ in international criminal law. Yet, this kind of violence has long been a feature of war, and is repugnant to the values that international criminal law protects. The Ongwen case, which commenced trial in the International Criminal Court in December 2016, is a step forward in this regard. Not only is this the first case in any international criminal court to include charges of ‘forced pregnancy’; it is also one of the only cases in which reproductive violence outside the context of genocide or ‘ethnic cleansing’ has been understood as a crime under international law. This article situates this landmark case is its historical contex, and raises some broader concerns about the limited response to reproductive violence in the development and enforcement of international criminal law. Based on an analysis of the law and practice of past and present international criminal courts, it shows that accountability for conflict-related reproductive violence has been patchy at best, and that there has been little recognition of the harms that such violence causes to individual victims, as distinct from the groups to which they ‘belong’. The article concludes by sketching out some steps to remedy these omissions, building on the progress made in the Ongwen case. Underlying the article is a view that reproductive autonomy is a distinct value from sexual autonomy, and that, where possible, conduct which offends this value should be punished as a separate crime.

The Case of Chevron in Ecuador: The Need for an International Crime Against the Environment?

This article discusses the necessity for the establishment of an international environmental crime. There is a growing feeling of impunity regarding serious environmental damage resulting from corporate activity. As a response, numerous scholars and lawyers advocate for the recognition of an international crime against environment. By analysing the environmental and health consequences of Chevron’s oil activity in Ecuador and the subsequent legal battle, this article highlights the imbalances that exist between multinational corporations (MNCs), states, and individuals regarding access to justice and remedies, and shows how the international legal framework could be described as ‘corporate-friendly’ when it comes to serious environmental damages. It then offers an overview of the opportunities and arguments in favour of a separate international crime.

LEGAL FIXING OF CRIMINAL CONCUSSION IN CRIMINAL LEGISLATION

Criminal legislation concussion has various fixing forms: as a circumstance excluding crime act, as a punishment sign, as a crime sign of separate crime components. There are two types of concussion: concussion by circumstances and concussion by actions. The last always is done by a person. And it can be called criminal concussion. Such impact on other person as violence or threat, including threat of murder or causing heavy harm to health, mockeries and tortures is in the Criminal Code of the Russian Federation; destruction, damage or withdrawal of someone else's property or these actions threat; blackmail; use of material or other victim dependence; threat of data discrediting distribution or other data which can do essential harm to victim rights or legitimate his/her (his/her relatives) interests; bribery; persuasion; promises; deception or abuse of confidence; compulsion. The distinctive characteristic of such pressure is that criminals choos behavior seeking to avoid adverse consequences. It is possible to say that criminal concussion in criminal legislation can be fixed in such forms as threats, blackmail and violence. Persuasion, deception, deception or abuse of confidence aren’t forms of criminal concussion because victims' free will isn't limited.

Tax evasion in domestic and comparative criminal law

Tax evasion is one of the most serious crimes against the economy, which is directed directly against the fiscal system of the state, but also a crime that is almost usually exercised in the field of economic crime. In view of the above, the paper deals with the concept and the basic elements of tax evasion, as well as a separate crime against the economy. The first part is dedicated to the definition of concepts and elements of the criminal offense of tax evasion in particular to available comparative criminal legislation, namely: the Republic of Albania, the Republic of Finland, the Republic of Croatian, Russian Federation and the Federal Republic of Germany. In the second part of the paper, the attention is paid to determining the concept, elements and basic characteristics of the criminal offense of tax evasion in the existing criminal legislation of the Republic of Serbia.

Extremist Community Formation: Qualification Problems

Review. This article deals with the features of an objective element of an offence provided for in Art. 282 1 of the Criminal Code that are the most significant for the qualification. During the study the question of a legal nature of the crime was considered; the author concludes that an extremist community is a special kind of complicity in crimes of extremist nature that constitute a separate crime within the framework of the Special Part of the Criminal Code. The paper presents the main viewpoint of the doctrine with regard to the issue of complicity within the framework of which an extremist community exists. As a result of the analysis of criminal law rules and judicial practice, the author identifies the hallmarks applied by courts to establish the existence of an extremist community The author concludes that he extremist community is referred to such a form of complicity in a crime as criminal association (criminal organization) and provides a definition of an "extremist community. " The author has studied the main forms of a socially dangerous act provided for in Art. 2821 of the RF CC. The paper contains recommendations as to qualification of an offense provided for in P. 1.1 of Art. 2821 of the RF CC and resolution of issues related to this norm (competition with the provisions of Parts 1 and 2 of the Article) The criminal law of the RF CC being supplemented by Art. 2823 "Financing an extremist activity", the issue concerning the balance between the norms set forth in P 2 of Art 2821 and Art 2823of the Criminal Code of the Russian Federation has been resolved, as well as proposals concerning qualification of an offense in cases where a member of an extremist community carries out its funding have been made. The author has developed recommendations for improving clarifications submitted by the Plenum of the Supreme Court of the Russian Federation devoted to the interpretation of the rules concerning liability for organizing an extremist community under Art. 2821of the RF CC.

The crime prevention effect of CCTV in public places: a propensity score analysis

This study measures the effect of CCTV in Newark, NJ across three separate crime categories: auto theft, theft from auto, and violent crime. CCTV viewsheds, denoting camera line-of-sight, were units of analysis. Viewsheds for treatment units were created by digitizing live CCTV footage within a geographic information system (GIS). Control viewsheds were created with GIS tools and aerial imagery from Google maps. Treatment cases were matched with control cases via propensity score matching (PSM) to ensure statistical equivalency between groups. Effect was measured via odds ratios and average treatment on the treated statistics. Findings offer modest support for CCTV as a deterrent against auto theft while demonstrating no effect on the other crime types. These results suggest that CCTV appears to be a viable option for jurisdictions wishing to target auto theft. Agencies suffering from other street-level crime problems may not benefit from CCTV and may need to deploy CCTV alongside other evidence-based strategies, rather than as a stand-alone tactic, in order to achieve crime control benefits.

Региональные теневые потоки: методика анализа и практика применения

In the article author´s approach to the research of a regional shadow stream is offered. Relevance and importance of work consists in the formulation of a technique of factors analysis of a regional shadow stream on the basis of data about the state of economic crime. The author´s hypothesis is presented– according to economic crime it is possible to establish the relationship between the separate economic crimes, which will let to identify common factors contributing to taking illegal economic benefits from shadow economic entities. The method of regional factors analysis of flow shadow is to solve three problems: structural analysis to highlight the most important categories of economic crime; assessment of the presence and nature of the relationship between the essential categories of economic crime; assessment of identified dependencies to determine the common factors of the shadow flow. According to the survey, two basic factors of the development of a regional shadow stream are highlighted as the most significant: the degree of openness of the transport sector; transparency of agents, commissioners. Application of the proposed method allows to detail the measures taken to strengthen the national security of Russia.

Early Pregnancy Losses: Multiple Meanings and Moral Considerations

Early Pregnancy Losses: Multiple Meanings and Moral Considerations

The ‘Condemned Criminals’: sexual violence, race, and manliness in colonial Australia

In 1879, the New South Wales government took the unusual step of recommending the execution of three men—two white and one black—for two separate crimes of rape. The government's decision provoked outcry from capital punishment abolitionists who inundated the parliament and press with appeals for mercy, and held sensational public rallies decrying the use of the death penalty. Politicians' varied responses to the crimes show their preoccupations in ensuring ideals of colonial manliness and colonial honour remained intact no matter what the cost. This case offers an important example of the complex relationship between gender, race, sexuality and colonial politics.