Use Of Criminal Law Research Articles

CRIMINAL LAW OF THE RISK SOCIETY IN BRAZIL OF THE CLASS SOCIETY

This article discusses the perspectives of using Criminal Law of Risk in the national criminal legal system. Initially, the formation of the Brazilian class society is assessed within a political and economic context. Next, the advent of the risk society and its confluences with a specific dogma of criminal law are analyzed. Finally, some critical propositions are made about the use of Criminal Law of Risk in Brazil, focusing on the issue of the marked social inequality that prevails there. To this end, the methodology used is dialectic, and the research technique is bibliographic.

‘This is not a human rights convention!’: the perils of overlooking human rights in the UN cybercrime treaty

ABSTRACT The ongoing process of the UN cybercrime treaty negotiations exemplified concerns about the use of criminal law as an instrument for digital persecution. The possible overarching impact of the proposed UN convention goes beyond the notion of cybercrime. If adopted, the new instrument would set standards not only for criminalising certain types of offences but also for the collection and cross-border exchange of electronic evidence in investigations of any crimes leaving digital traces. This far-reaching impact places concerns that the new treaty could potentially legitimize and encourage oppressive practices at the centre of the UN cybercrime treaty negotiations. This paper aims to provide a deeper understanding of the challenges of upholding human rights while setting standards for criminal justice in cyberspace by analysing three main aspects of the UN cybercrime negotiations – criminalisation, procedural powers and international cooperation – in the context of existing cybercrime frameworks and international human rights obligations.

Administrative Lawfare at the European Union’s External Borders: Some Perspectives on Administrative Regulation of NGO Search and Rescue Activities in Italy and the Situation at the Polish-Belarusian Border

Abstract Violations of the rights of migrants by state actors at the EU’s external borders, including through the use of pushbacks and indiscriminate violence, both on land and sea, have resulted in NGOs, lawyers and citizen activists engaging in forms of humanitarian action and legal mobilization aimed at contesting inhumane state policies. State actors can similarly rely on various legal tools to create a chilling effect and a hostile environment for migrants’ rights activism. Such practices can be considered to constitute a form of lawfare against migrants’ rights activism, an instrumental and hegemonic use of the law in order to weaken support for migrants. The use of criminal law has been a common tool of lawfare at the European Union’s external borders. However, administrative law is increasingly being used to bring activists into compliance with states’ interests, creating compliant environments through the use of regulatory instruments and administrative sanctions. To critically assess the instrumental use of administrative law as a form of lawfare, it makes sense to review their application at the EU’s external borders. A good opportunity for such a review is being provided by looking at the administrative regulation of search and rescue (SAR) operations in the Mediterranean creating a hostile environment for SAR NGOs in the case of Italy, and the instrumental use of administrative regulations to limit access for activists to the Polish-Belarusian border in the case of Poland.

Confiscation Estonian style: legal and political aspects of potential seizure of Russian assets in EU countries

The possible confiscation of Russian assets by Western countries is one of the serious challenges to modern international law and the system of international relations. Since the greater part of the frozen assets is under the jurisdiction of EU countries, special attention should be paid to studying mechanisms for the use of Russian assets within the EU. The purpose of this article is to identify the key characteristics of the EU’s approaches to the use of frozen Russian assets, determine their compliance with international law and investigate possible consequences for the modern system of international relations. To achieve this goal, the author analysed the legal aspect of this problem, examined the compliance of the initiatives to confiscate Russian property with the norms of modern international law and pinpointed the potential consequences of such actions. It is concluded that possible options for seizing sovereign assets contradict the norms of international and national law. Therefore, all these methods are unfeasible within the current legal framework. Yet, the main obstacle to implementing the plans to seize Russian sovereign assets lies not within the legal realm, but in the political sphere since such actions could result in unforeseeable ramifications. The mechanism proposed by the European Commission for seizing private property within the framework of criminal proceedings implies the use of criminal law to solve political problems, which is at variance with the objectives of criminal policy.

Criminal Application by Judges Against Defendants of Mining Without Permits in Forest Areas


 The use of criminal law in dealing with criminal acts of mining without a permit certainly does not always involve criminal sanctions, but sanctions can also be applied which have the same status as criminal sanctions. This research was conducted to determine the validity of the law related to criminal acts of mining without a permit in forest areas, to determine the criminal liability of defendants in criminal acts of mining without permits in forest areas according to Indonesian law and to find out the application of criminal penalties by judges to defendants of criminal acts of mining without permits. in forest areas (Study Decision No. 53/Pid.Sus/2021/PN Wgw). This research method uses normative juridical research with a statutory approach and a case approach (the cash approach). The research results show that the legal validity related to criminal acts of mining without a permit in forest areas has been stated in Law Number 4 of 2009 concerning Mineral and Coal Mining (UU Minerba) and other applicable legislation where perpetrators who commit violations without permits will be given administrative sanctions. in the form of compensation according to the level of damage caused to the state. As well as criminal liability for defendants of criminal acts of mining without a permit in forest areas according to Indonesian law, they will be subject to criminal action in accordance with applicable legislation, such as being subject to sanctions in the form of administrative sanctions. And the application of punishment by the judge to the defendant for the crime of mining without a permit in a forest area (Study Decision No. 53/Pid.Sus/2021/PN Wgw) has been carried out as stated in Law no. 32 of 2009 concerning Environmental Protection and Management by applying other appropriate legal bases from the laws and regulations that regulate the criminal act of mining without a permit in forest areas.

Legal Protection of Rights to Cryptocurrency: Contemporary Narrative, Problems and Prospects

Based on the analysis of legal norms, explanations provided by the Plenum of the Supreme Court of the Russian Federation, and legal practice, it can be concluded that issues related to the judicial protection of cryptocurrencies, including through the use of criminal law and criminal procedure, have not been subject to consistent regulation within the current legislative framework. This poses a threat to the possibility to prosecute individuals involved in cryptocurrency theft and the accessibility of legal remedies for those who became victims of such cases. The authors conclude that at present the legal narrative has been established, which effectively serves as a sole source of the law enforcement practice in the absence of comprehensive regulatory provisions. The authors have formulated some proposals for the improvement of the existing legislation aimed at addressing the identified and researched legislative ambiguities and ensuing the access of cryptocurrency owners to the judicial protection of their rights.

Kajian Kriminologis Ekploitasi Kemisikan dalam Pengemisan di Media Sosial

Technological developments in society as a real impact on life cannot be denied anymore. Apart from being able to bring good benefits or impacts, the phenomenon of this technological development can create various things that have never existed before. Especially when associated with earning income on social media as existing technological developments. The phenomenon that has emerged recently is the phenomenon of online begging in social media which is rife. This phenomenon makes some content creators tempted to earn money in a much easier way by relying on the compassion of their audience. In this paper, we will examine the reasons behind this action and what efforts can be made to overcome this. The method used is a normative juridical method which will examine the criminological factors behind this begging phenomenon on social media. It will also examine the various efforts made to overcome it. From this paper it is found that the poverty factor is the main driving factor. Besides that, the popularity factor in a short time and low awareness and legal compliance in the community are driving forces for this to happen. Efforts are made by instilling morals in society, legal counseling and the use of criminal law strictly.

Preventive Measures for Juvenile Crimes in Yogyakarta City

This study examined how to effectively and efficiently deal with juvenile delinquency through klithih. This research was conducted normatively, and the results showed that several measures must be undertaken to handle juvenile delinquency, including the use of criminal law in a way that does not involve criminal sanctions but by using the mass media instead to punish the juveniles who commit the illegal actions in a way that it would implant fear when they intend to perform the crime. The conclusion was that there are various ways to overcome juvenile delinquency, among others, by strengthening the mentality of adolescents, and understanding adolescents and those who are approaching them so that they can minimize the difficulties that would otherwise be their means to vent the inability to commit juvenile delinquency
 Keywords: Adolescence, Juvenile Crimes, Preventive

Dissemination of Mechanisms for Handling Criminal Cases in Criminal Procedure Law

Introduction: Crime is a social symptom of society. Crime grows and develops along with the growth and development of society. Policies in the use of criminal law are closely correlated with criminalization.Purposes of Devotion: Provide understanding to the community in Kilo 9 Village, Kawatu Hamlet, West Seram Regency (SBB), about the mechanism of handling cases of general crimes in Criminal Procedure Law. Method of Devotion: Conducting surveys and discussions to obtain the information needed and set goals in socialization activities. At the preparatory stage is also carried out preparing the material.Results of the Devotion: The implementation of community service activities in the village of RTKilo 9, West Seram district (SBB), can be found and it is known that the mechanism of handling cases in Criminal Procedure Law, including; preliminary examination stage examination stage in the trial, the stage of Criminal implementation, especially criminal Agency of Inter-Institutional Relations in the process of resolving cases and criminal case settlement Model according to Restorative Justice, consists of Victim-Offender Reconciliation or Mediaton Programs (VORP), Sentencing circles or Healing circles, and Prisoner Assistance Programs.

Criminal Prosecution and Punishment of Migrants in Spain: A Border Criminology Perspective

Abstract The exceptional use of criminal law to achieve migration policy objectives has been a reality in Spain since the first Aliens Law was passed in 1985. Since then, academia has warned about the discriminatory and exclusionary effects of this confluence. This paper critically analyses a series of exceptional Spanish criminal and migration policy measures aimed at criminalising certain population movements. The aim is to show the mechanisms used by criminal justice in Spain to manage human mobility from the perspective of border criminology. Among other things, I will analyse (1) ‘hot returns’ and (2) racial profiling in police stops, both as police reactions. I will also study (3) the expulsion of convicted foreigners and (4) criminal records as a migration control strategy and, finally, the deprivation of liberty for migration control purposes, such as (5) detention centres for migrants and (6) prison release strategies. The aim is to show that Spanish penal policy, taken in a broad sense as all eminently criminal measures and those where criminal law and immigration law converge, has as its main objective to socially render harmless (innocuousation) foreign suspects, convicts and ex-convicts in Spain with different and exceptional measures that push them to the margins of society.

PROTECTION OF VALUES OR MANAGEMENT BY REPRESSION. ON THE FUNCTIONS OF CONTEMPORARY CRIMINAL LAW

The study is devoted to an attempt to determine whether the analyses carried out at the level of the philosophy, theory and analysis and synthesis of criminal law, as well as the approaches presented in various criminological theories can be used in debates about the goals and functions of modern criminal law. The analyses carried out are based on the reconstruction of the current state of criminal law, dominated in many countries by penal populism. The coincidence of the repressiveness characteristic of the populist approach subordinated to the implementation of the concept of extreme deterrence, with the position of the legal elite as to the goals and functions of criminal law, illustrates the state of tensions and crises in which contemporary repressive law has found itself. The image of the public debate, characterized by the unambiguity of positions combined with the lack of perceptual openness to the views presented by the proponents of opposing approaches, provides a premise for the search for rational and verifiable arguments in disputes over the shape of criminal law. Given the limitations of the analysis and synthesis of criminal law in the sphere of disputes about values, an anthropological vision and a model of social structure make it reasonable to search for premises that order the debate about criminal law on other levels. In this regard, the study presents systemic approaches presented in the philosophy of criminal law combined with an attempt to justify that, in fact, complementary elements can be seen in them. Complementing the philosophical perspective is the plane of criminal law theory, on which one can also find elements that are part of the universal approach to repressive law. Adding to this picture of modern criminological theories, the study presents the thesis that modern criminal law serves multiple, sometimes opposing functions justified by reference to other assumptions and models of social structure. The multiple functions of modern criminal law make it unreasonable to refer to the dichotomy capturing alternatively the functions and goals of criminal law either as an instrument for protection of socially valuable values or as a tool of management by repression. The text seeks to justify the position that modern criminal law performs, in part, both functions indicated above. At the same time, there are opportunities to rationally limit the use of criminal law instrumentally as a tool of management by repression in the interest of power and certain social groups. The science of criminal law, encompassing the following planes: theoretical and philosophical, can be a plane that provides premises and arguments to help resolve contemporary dilemmas. In particular, it seems that the approaches presented in the science of criminal law and criminology are not so much of an opposing and radically competitive nature, but are in fact harmonizing, containing a number of complementary elements in a complex set of assumptions and claims that make up a holistic approach to the criminal law system.

Struggle in Favour of a Criminal Law as an ‘ultima ratio’. Critical Observations on the Criminalisation Obligations Arising from the Jurisprudence of the European Court of Human Rights in the Light of the Principle of Subsidiarity

If the use of criminal law requires that legislators carry out empirical tests to establish the inadequacy of other available enforcement systems and the necessity of resorting to the weapon of punishment, how can the Court impose direct criminalisation obligations without resorting to similar tests? The contribution seeks to ascertain whether the case law of the European Court of Human Rights on positive obligations of criminalisation can be considered compatible with the principle of ultima ratio, in the light of the not merely 'rhetorical' reading that should be given to it in individual domestic legal systems.

IMPLEMENTATION OF CORPORATE CRIMINAL RESPONSIBILITY IN LAW ENFORCEMENT OF THE TRANSNATIONAL DIMENSION OF TRAFFICTING IN PERSONS

Trafficking in persons is a modern form of human slavery (Modern Day Slavery) and is one of the worst forms of treatment for violations of human dignity. In this study, the type of research used is normative juridical research with a law approach and a concept approach. From the results of the study, it can be concluded that the use of criminal law regarding corporate criminal liability in the crime of trafficking in persons with a transnational dimension at Unit IV Sub-Directorate III of the Directorate of General Crimes of the Criminal Investigation Unit of the Police is to harmonize the legal arrangements for the criminal act of trafficking in persons charged by the public prosecutor that there are in Article 10 of Law Number 21 of 2007 concerning the Eradication of the Crime of Trafficking in Persons with the theory put forward by experts related to the elements of criminal liability and the model of corporate criminal liability. The implementation of corporate criminal responsibility in law enforcement of the criminal act of trafficking in persons with an effective transnational dimension is one whose solution prioritizes the concept of restorative justice. The concept of restorative justice is the concept of resolving a particular crime that involves all interested parties to jointly seek a solution and at the same time find a solution in dealing with events after the crime has arisen and how to overcome its implications in the future.

An Evaluation of Environmental Criminal Liability and Enforcement in Nigeria

The essence of this article is to evaluate the use of criminal law as an effective mechanism for the protection of the environment in Nigeria. There has been an increasing use of criminal prosecutions in environmental matters worldwide, but in Nigeria, it has proved an ineffective mechanism. We have adequate provisions for salient criminal aspects under the environmental statutes but they are bereft of enforcement. Some of these statutes are defective in all respects which detracts considerably from their potency. For instance, the general level at which fines are imposed neither reflects the gravity of the environmental crimes nor punishes adequately those who commit them. The discourse also examines the legal and economic theories of criminal law enforcement in comparison with the current realities in Nigeria. Finally, it suggests a review of the legal framework for the criminal enforcement of environmental laws as well as sentencing guidelines in Nigeria.

Criminalization Based on the Principle of Human Rights Limitation

Introduction to The Problem: The use of criminal law to limit the freedom of citizens’ civil rights must be done with caution since it intimately links to the infringement of such rights. Purpose/Objective Study: The present study aims to explore the criteria of criminalization based on the principle of limitations of human rights. Design/Methodology/Approach: This study employed doctrinal legal research using both conceptual and statutory approaches Findings: In the policy formation of illegal acts, the legislator frequently formulates rights constraints. The criminalization criteria specified in the human rights limitation can be used to apply this restriction. Restriction-containing offenses determined by the legislature must be by law, legitimate aim, and necessity in a democratic society. A consistent model of criteria for democratic society demands does not exist. This last criterion is linked to both the proportionality principle in human rights and the concept of criminal law as a last resort. Paper Type: Research Article

Efecto jurídico de la intervención del Derecho Penal en delitos leves por violencia familiar en el distrito de Santa 2018 – 2019

This research deals with a generalized problem in our country where, given the increase in aggressions against women or members of the family group, the State intends to reduce or avoid them by resorting to the use of Criminal Law, sanctioning said conduct with effective custodial penalties. Our main objective was to demonstrate what was the legal effect of the intervention of Criminal Law in minor crimes due to Family Violence in the District of Santa during the years 2018 and 2019, using correlational, legal hermeneutical methods and as techniques the interview, the documentary analysis, case studies and descriptive statistics. Concluding that about 80% of cases, after requiring the investment of a large amount of human and economic resources, ended up being archived because the party aggrieved by the scarce harmfulness of the facts no longer attends the Fiscal Office to provide more information or to be evaluated medically, legally or psychologically, evidencing a tacit conciliation between the parties, which means that the criminalization of this type of conduct has not contributed to reducing its incidence and rather the State Policy for the protection of the family.

Interplay between European Union criminal law and administrative sanctions: Constituent elements of transposing punitive administrative sanctions into national law

The post-Lisbon punitive sanctioning law of the EU is divided between criminal and non-criminal sanctions. The legislator has preferred non-criminal sanctions for reasons of ultima ratio but more recently also for reasons of efficiency. In the search for efficiency, the regulation on such sanctions has become increasingly precise, and the legislator has started to refer to the administrative nature of such sanctions. This can limit the discretion of the Member States in finding the most suitable way to transpose such sanctions, and it could amount to a prohibition on resorting to criminal law (a negative harmonisation of criminal law). When EU law prescribes specific requirements on administrative sanctioning systems, fundamental aspects of national sanctioning systems might be affected, and this can also bring about a lower protection for procedural guarantees. This article explores the interplay between EU criminal law and administrative sanctions to ascertain whether there is a coherent understanding of what the term administrative refers to in EU law. Based on this evaluation, this article analyses whether the EU legislation allows for conclusions to be made on the minimum requirements of transposing sanctions that are labelled as administrative into national law (the constituent elements) and whether this labelling interferes with the use of criminal law.

The Criminal Law Regulation of Network Language Violence

A detailed analysis of Article 13 of the criminal law stipulates that only acts with considerable social harm can be punished. At present, the phenomenon of network language violence occurs frequently, abuses freedom of speech, causes harm to others, and has become a new form of crime. From three aspects: 1. the concept and nature of network language violence; 2. The necessity of criminal law regulation of network language violence; 3. Specific ideas of criminal law regulation of network language violence. Referring to the "two Supreme People's congresses" issued the "interpretation on Several Issues concerning the application of law in handling criminal cases such as defamation through information network" and "criminal law amendment 11", this paper analyzes the needs of social governance, social harmfulness and personal danger; It is concluded that "cyber language violence" belongs to "insulting" speech crime, and mental damage should be evaluated as the harmful consequences of "cyber language violence", and the use of criminal law to regulate it has also become a necessary path. Systematically examine the criminal legislation and investigate the normative content of the crime of insult, so as to bring the "network language violence" into the crime of insult.

A Stochastic Model of the Repressive-Preventive Impact on Crime: from Intuition to Calculations

The authors analyze the use of new digital technologies for automated collection, analysis and assessment of large volumes of data on crime, its key factors and the effects of crime countraction efforts with the goal of a gradual transition from the intuitive method of crime counteraction to the calculations-based one. The hypothesis of the study is that a continuous multi-source monitoring of quantitative crime indices, factors and the effects of crime counteraction efforts will make it possible not only to optimize budgetary expenditure on fighting crime, but also to find effective solutions for other practical problems of crime counteraction efforts (specifically, problems of evaluating and compensating the inflicted damage, problems of reducing the number of ungrounded changes in criminal, criminal procedure and penitentiary legislation). A specific modern feature of the state policy of combating crime is that digital technologies make it possible to develop and implement a stochastic model of repressive-preventive impact on crime with the use of criminal law, criminal procedure and penitentiary measures. It is suggested that the use of the stochastic model of repressive-preventive impact on crime should be viewed as a necessary condition for the development and adoption of national and regional programs of crime counteraction financed by the federal and regional budgets. The authors believe that the introduction of the stochastic model of the repressive-preventive impact in the practice of crime counteraction should be conducted in several stages. At the first stage, the federal law and the Act of the RF Government shoud determine the conditions of a mid-term experiment on the territories of some subjects of the Russian Federation, which will ensure a continuous monitoring, including the collection, processing and analysis of statistical data, results of population and experts’ surveys on the condition and dynamics of grave and especially grave crime, its factors and the effects of state efforts to counteract such crimes. At the final stage of the introduction of a stochastic model of the repressive-preventive impact on crime in the practice of state governance, the authors suggest creating an automated federal system of multi-source monitoring of indexed crimes (these are the crimes most «sensitive» for achieving the goals of national security and ensuring public order, which require non-stop monitoring), their key factors and the results of counteracting them. Key expected results from the introduction of this stochastic model and a continuous mlti-source monitoring into the practice of crime counteraction should be the optimization of budgetary expenses on criminal prosecution, the reduction of the number of inmates, the reduction of the number of changes introduced into the Criminal, Criminal Procedure and Penitentiary Codes of the Russian Federation.

Reflections on the place of criminal law in the European construction

AbstractAlthough the place of EU criminal law in the European construction has become incontestable today, it has historically been a far from obvious one. In its origins and development, two different rationales can be distinguished: a functional one aimed at using criminal law instruments to address specific cross‐border crime challenges generated or enhanced by the progress of EU integration in other fields, and a constitutional one implying the use of criminal law also to further enhance the respect and promotion of EU common values. While the first rationale has been dominant from the outset, the second has emerged only gradually. For the sake of effectiveness, legitimacy and mutual trust, both rationales should equally drive the further development of EU criminal law. Yet prospects for a stronger affirmation of the constitutional rationale are weakened by current EU rule of law and democratic leadership challenges.