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1
Cassella, Stefan D. "NATURE AND BASIC PROBLEMS OF NON-CONVICTION-BASED CONFISCATION IN THE UNITED STATES." Veredas do Direito: Direito Ambiental e Desenvolvimento Sustentável 16, no. 34 (May 31, 2019): 41–65. http://dx.doi.org/10.18623/rvd.v16i34.1334.
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This report discusses the goals that asset forfeiture is intended to serve in the federal criminal justice system, the types of property that are subject to forfeiture, and the procedures that are used to initiate, litigate, and conclude asset forfeiture cases. With respect to procedure, its focus is on non-conviction-based (NCB) forfeiture, and especially on the safeguards that protect the property interests and due process rights of property owners.
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Saputra, Rian, Josef Purwadi Setiodjati, and Jaco Barkhuizen. "Under-Legislation in Electronic Trials and Renewing Criminal Law Enforcement in Indonesia (Comparison with United States)." Journal of Indonesian Legal Studies 8, no. 1 (May 31, 2023): 243–88. http://dx.doi.org/10.15294/jils.v8i1.67632.
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This paper aims to propose the implementation of electronic justice within the Indonesian criminal justice system, focusing on the reform of criminal law enforcement. The research methodology employed is normative legal research. The findings of the study reveal two key points. Firstly, it is crucial to regulate digital-based criminal justice at the legislative level, particularly through the reform of the Code of Criminal Procedure (KUHAP). The current implementation of electronic criminal trials presents challenges, and the legal foundation for conducting such trials is established by external entities rather than the legislative institution. Therefore, incorporating regulations on electronic criminal trials in future KUHAP reforms is vital to facilitate criminal law reform. As it stands, electronic criminal trials lack specific legal regulations. Secondly, the existing KUHAP does not sufficiently address the issue of technological advancements, as it cannot anticipate rapid changes in technology. Consequently, a legal framework should be established to address this issue. This framework should ensure the availability of modern technological devices and necessary resources to facilitate digital-based criminal justice. Additionally, it should introduce laws governing electronic courts and initiate legal reforms through the revision of Law Number 8 of 1981 concerning Criminal Procedure Law (KUHAP). To provide an example, the United States has regulated electronic criminal proceedings through the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which implements fiscal stimulus policies and allows for video conferencing in certain cases. Such regulations can serve as a reference point for the implementation of electronic criminal proceedings in Indonesia.
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Amelia Putrina Lumbantobing, Sudirman Sitepu, and Herlambang. "COMPARISON OF PLEA BARGAINING IN THE UNITED STATES WITH “SPECIAL LINE” IN THE DRAFT BOOK OF CRIMINAL PROCEDURE CODE (KUHAP) IN INDONESIA." Bengkoelen Justice : Jurnal Ilmu Hukum 13, no. 2 (December 17, 2023): 274–89. http://dx.doi.org/10.33369/jbengkoelenjust.v13i2.31572.
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Plea Bargaining is a faster and more efficient way of resolving criminal cases, where if the Defendant has admitted guilt, the Defendant or his attorney can make an agreement with the public prosecutor regarding the form of indictment and a lighter sentence. Plea Bargaining is widely embraced by Common Law countries. However, in its development, the success of the United States in reducing the pile of cases by using Plea Bargaining has been followed by Civil Law countries such as Germany, France, Russia, Georgia, the Netherlands, Italy, Taiwan. Even in an effort to reform the criminal justice procedural law, Indonesia has also adopted the basic concept of Plea Bargaining into the Draft Criminal Procedure Code with a concept called "Special Line". However, the concept of the Special Line has many differences so that it cannot be fully equated with the Plea Bargaining adopted by the United States. This is because Indonesia adheres to an inquisitorial system, not an adversary system. For this reason, Indonesia needs to study the successes and failures of Plea Bargaining in the United States, so that the Special Line concept that is to be implemented in Indonesia is a concept that has been adapted to the conditions of the criminal justice system in Indonesia.
Keywords: Plea Bargaining, Special Line, Guilty Confession
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Yengibaryan, R. V. "Legal cooperation between Russia and the USA: historical roots of modern problems." Journal of Law and Administration 15, no. 2 (October 10, 2019): 3–11. http://dx.doi.org/10.24833/2073-8420-2019-2-51-3-11.
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Introduction. Relations between Russia and the United States have nearly three centuries of history, and for more than two hundred years the countries had diplomatic relations which were interrupted for sixteen years from 1917 to 1933. Perhaps the XIX century was the most peaceful and fruitful for our countries when the interests of the Russian Empire and the United States on the world stage did not contradict each other, often coincided, thus excluding confrontation between the two nation-states. The XIX century for Russia and the United States was marked by the singing of a number of bilateral treaties, including the treaty on the extradition of criminals, which consolidated their partnership.On the contrary, the XX century is marked by unstable and cyclical relations between the two countries. The rejection of Soviet power, the long period of non-recognition of the Soviet Union was followed in 1933 by mutual multifaceted cooperation between the USSR and the United States, which included the legal sphere, and by the allied relations during the Second World War. The second half of the twentieth century was the time of open confrontation between the two world giants, when the crisis of relations between the USSR and the United States put the world on the brink of world war III. In such conditions, there could be no talk of improving the legal framework of legal cooperation, and the agreement on the procedure for execution of court orders concluded in 1935 did not find its practical application.Modern Russia has assumed the entire burden of problems and contradictions in legal cooperation with the United States. Searching for ways out of them is possible only on the basis of historical analysis of their prerequisites, taking into account the peculiarities of modern international relations.Materials and methods. The methodological basis of the study is the dialectical method of cognition of phenomena in the relationship and mutual conditionality using a set of general and particular scientific methods of cognition of reality. The historical method contributed to the restoration of the chronological sequence of legal cooperation between Russia (USSR) and the United States. The method of actualization made it possible to identify the historical factors that determined the peculiarities of international cooperation in the legal sphere. The method of diachronization made it possible to identify certain successive stages in the development of international legal cooperation between Russia (USSR) and the United States, to compare them, to identify patterns of development.Results. In the framework of the study, the author found that inter-state legal cooperation is an integral part of the foreign policy of states. The international legal basis of cooperation between Russia and the United States in civil, family and criminal cases was created in a different historical era, does not meet modern international relations, and is poorly implemented by the justice authorities of the two States.There is no treaty on legal assistance in civil and family matters that is fundamental to the protection of the rights and legitimate interests of citizens of both States, and there are no provisions on extradition in the Treaty on legal assistance in criminal matters.Discussion and Conclusions. The international legal framework of cooperation between the Russian Federation (and earlier - the Soviet Union) and the United States of America in the legal sphere; the problems of implementation of international legal assistance in civil, family and criminal cases are researched. The main provisions of the Treaty on mutual legal assistance in criminal cases of 2000; multilateral Conventions on the service abroad of judicial and extrajudicial documents in civil or commercial cases of 1965 are analyzed. The 1958 Convention on the recognition and enforcement of foreign arbitral awards, the 1935 Agreement “On the procedure for the execution of court orders between the Union of Soviet Socialist Republics and the United States of America” were explored. The prospects for the development of legal cooperation between Russia and the United States are shown.
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Mann, Kenneth. "Miscarriage of Justice and the Right to Representation." Israel Law Review 31, no. 1-3 (1997): 612–44. http://dx.doi.org/10.1017/s0021223700015429.
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In modern criminal procedure it is generally held that reliability of results and basic fairness in criminal trials require that a defendant have legal counsel. Prevention of miscarriage of justice is tied closely, in the minds of policy makers and judges, with vigorous representation by competent counsel. As against these presuppositions how should one understand a modern system of criminal procedure, such as that in Israel, that does not have a broad right of representation for suspects or defendants in criminal cases?It is by now axiomatic in England and the United States that nearly all defendants in criminal cases have a right to representation. This right encompasses not just the opportunity to bring one's privately retained counsel to court, but also an irrebuttable claim by indigents to have the counsel's bill paid by the state or other public entity. The right to counsel is a broad right, entailing a principle of equality in which representation by counsel is independent of the defendant's ability to pay. In Israel, in contrast, the right to representation in criminal cases is significantly narrower.
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Iurkevich, Mariia Aleksandrovna. "Application of the results of 3D video modeling in averment on criminal cases: US and Russian legal framework." Право и политика, no. 9 (September 2021): 58–71. http://dx.doi.org/10.7256/2454-0706.2021.9.36355.
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This article reviews most controversial issues pertaining to legal, organizational and actual possibility of using 3D video modeling in averment on criminal cases. The author analyzes the approach adopted in the US legal system towards application of video models of evidence in judicial proceedings, distinguishing between the main forms of 3D video models that exist in the US criminal procedure. Leaning on the analysis of particular judicial precedents and normative acts that regulate the questions of criminal proceedings in the United States, the author outlines the conditions (rules) for admissibility of 3D evidence. Applicable to the criminal procedure of the Russian Federation, the article formulates the legal framework for using video modeling in criminal proceedings, as well as gives a general description to the system of criminal procedural guarantees that ensure the rights of the individual in the context of using video modeling, and accuracy of information acquired from such evidence. The research employs the general philosophical method of materialistic dialectics, methods of analysis, synthesis, legal experiment, and comparative legal method. The scientific novelty consists in the fact that the author is one of the first to explore the question of using the results of video modeling in criminal proceedings in the Russian Federation. The analysis of the US law enforcement experience on the subject matter is of particular relevance due to accumulation of the vast practical experience in adapting video modeling technology to the needs of criminal justice of the XXI century. The doctrine of the national criminal procedure had not previously to determine the role of 3D video modeling in averment on criminal cases. The author's conclusions on the need to use the results of video modeling, including immersive reality, not only in expert activity, but also in criminal procedure (for example, in the course of hearing of arguments) are aimed at the transformation of criminal proceedings with regards to its optimization via digitalization.
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Fratama, Rezky Abdi. "JALUR KHUSUS (PLEA BARGAINING) DALAM HUKUM ACARA PIDANA." Badamai Law Journal 5, no. 2 (October 5, 2021): 230. http://dx.doi.org/10.32801/damai.v5i2.10755.
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Apart from analyzing, this research aims to know whether the concept of Jalur Khusus (Plea Bargaining) in settlement of criminal cases matches the legality Principle. Moreover, the research aimed to analyze how the legal arrangement of Jalur Khusus (Plea Bargaining) is in criminal procedural law in future. The used research method is normative legal research that focuses on exploring whether the concept of Jalur Khusus (Plea Bargaining) in settlement of criminal cases matches the legality. The second focus is to explore how the legal arrangement of Jalur Khusus (Plea Bargaining) is in criminal procedural law for the future. This research uses the approach of legislation (Statute Approach), primarily Law No. 8 of 1981 on the Criminal Procedure code, along with all its implementing regulations and other relevant legislation, conceptual approach (Conceptual Approach), especially about the special pathways (Plea Bargaining), and comparative approach (Comparative Approach) specifically the arrangement of plea bargaining in other countries such as the United States, Canada, United Kingdom, France, Georgia, Poland and Italy. The research results, namely the Jalur Khusus (Plea Bargaining) concept in settlement of criminal cases, are not appropriate or contrary to the Legality Principle. The reason is the system of proof, and formal truth will be hindered. According to an article in 3 KUHAP, it is already explicitly mentioned that the judiciary is carried out in the way stipulated in the law a quo. The legal arrangement of the concept of "Jalur Khusus" in the Criminal Procedural Law for the future in accordance with the context of the criminal justice system in Indonesia. Also, following the Principle of simple justice quickly and lightly costs are clarifying the negotiating parties in a special line, things negotiated in a special line, adding regulation of stages in a special path, criminal acts that can use special channels, and the form of agreement and binding power in jalur khusus.
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Berger, Benjamin L. "Judges, Juries, and the History of Criminal Appeals." Law and History Review 29, no. 1 (February 2011): 297–302. http://dx.doi.org/10.1017/s073824801000129x.
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The three articles offered in this forum on the early history of criminal appeals do us the great service of adding much of interest on this important but neglected issue in the development of Anglo–North American criminal procedure. The opaqueness of the legal history of criminal appeals stands in stark contrast to their centrality and apparent naturalness in contemporary criminal justice systems in England, Canada, and the United States. These three papers look at the period leading up to and immediately following the creation of the first formalized system of what we might call criminal appeals, the establishment of the Court of Crown Cases Reserved (CCCR) in 1848. This key period in the development of the adversary criminal trial was marked by both a concerted political effort to codify and rationalize the criminal law and by profound structural changes in the management of criminal justice.
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Fajrin, Yaris Adhial, Dedeng, Alendra, Nandang Sutisna, Aisyah, and Ridha Kurniawan. "Analysis of the Application of Plea Bergaining In Settlement of Curruption Cases in Indonesia." Journal of Law and Sustainable Development 11, no. 4 (August 11, 2023): e608. http://dx.doi.org/10.55908/sdgs.v11i4.608.
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Objective: The application of Plea Bergaining in the Settlement of Corruption Cases in Indonesia is carried out for the welfare of the people. The law on the eradication of criminal acts of corruption actually regulates several provisions that use the perspective of recovering state financial losses. Theoretical Framework: The framework of setting up a national legal system as the character of the Indonesian nation. Legal issues in Indonesia are right now exceptionally overpowering. Method: However, in practice, law enforcers are still oriented towards corporal punishment (prison). Therefore, a breakthrough in the field of law in dealing with corruption is urgently needed. A new method or concept of handling corruption problems should be put forward with more emphasis on efforts to recover state losses. Results and conclusions: The settlement of corruption cases within the Joined Together States is settled utilizing supplication bartering, this can be due to the solid proof of the open prosecutor and the accused/defendant voluntarily admitting blame. Research Implications: Attention is the concept of Plea Bargaining which is commonly used in criminal justice practices used in common law countries, especially in the United States, which has been adopted in the Draft Law on Criminal Procedure Law under the name of the particular way concept. Originality/value: An update and breakthrough is basically required inside the criminal value system in Indonesia, which in this case is certainly based on a foothold that an overhaul in texture and formal criminal law has finished up a ask.
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Almi, Ara Annisa. "Plea Bargaining System as a Non-Litigation Settlement In The Framework of Repositioning Criminal Justice In Indonesia." Andalas Law Journal 8, no. 1 (July 28, 2023): 18. http://dx.doi.org/10.25077/alj.v8i1.40.
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In its development, Plea Bargaining was accommodated into a written rule in 1970, when the court decided the case of Brady v United States. The Plea Bargaining System uses methods in civil law to resolve criminal cases. Indonesia's legal system can adopt the Plea Bargaining concept into the criminal justice system. The drafting team introduced the term Plea Bargaining in the Academic Paper of the Draft Criminal Procedure Code (NA RUU KUHAP). This design is considered different from the initial concept applied in other countries. Therefore, an analysis of legal protection and certainty for justice seekers (justiciabelen) is needed. The research method used is normative juridical, namely by studying secondary data and understanding law as a set of rules related to Plea Bargaining.
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Yeshnazarov, Almaz Algazovich, Dinara Talgatovna Amurtayeva, and Alemgul Sovetovna Kuatova. "COMPARATIVE ANALYSIS OF THE ACTIVITY OF COURTS WITH THE PARTICIPATION OF JURORS: ON THE EXAMPLE OF THE USA AND KAZAKHSTAN." Bulletin of the Institute of Legislation and Legal Information of the Republic of Kazakhstan 4, no. 75 (December 29, 2023): 194–202. http://dx.doi.org/10.52026/2788-5291_2023_75_4_194.
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he authors, based on a comparative analysis of the criminal procedure laws of the USA and Kazakhstan, studied the issues of the activity of courts with the participation of jurors. The choice of the US experience in considering criminal cases by a jury was not accidental, since the USA is the state to use a jury trial and already has its own legal history that is different from the UK. In the course of the analysis, the authors revealed three aspects such as the selection of jurors, the number of jurors, and the voting procedure during sentencing. The selection of jurors under US law has its advantages in comparison with the legislation of the Republic of Kazakhstan in terms of simplifying the selection and the right to refuse to participate as a juror. On the issue of the number of jurors, taking into account the US experience, we believe it is possible to reduce them from 12 to 9 and in some cases to 7 jurors. On the issue of majority voting or unanimous voting, based on the experience of the United States, we hold the opinion on the importance of voting by unanimous decision. Based on the positive experience of the USA, the authors proposed several amendments not only to the criminal procedure legislation of Kazakhstan but also to the Constitution of the Republic of Kazakhstan. Thus, the authors believe it is necessary to expand the category of criminal cases considered by a court with the participation of jurors, to improve the selection procedure and voting procedure. As well as the possibility of consideration of civil cases by a court with the participation of jurors. We believe all these amendments will have a positive effect in protecting the constitutional rights of citizens and building a rule-of-law state.
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Cassel, Douglass. "Commentary: Judicial Remedies for Treaty Violations in Criminal Cases: Consular Rights of Foreign Nationals in United States Death Penalty Cases." Leiden Journal of International Law 12, no. 4 (December 1999): 851–88. http://dx.doi.org/10.1017/s0922156599000448.
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Litigation over the right of detained foreign nationals to be notified of their right to seek consular assistance in death penalty cases is important to the more than 80 foreign nationals currently on death row in the United States. It also raises more general questions about the role of international law and of international courts in sensitive criminal cases before national courts. International courts and litigants may enhance the likelihood of compliance in such cases by insisting on fair and deliberate procedures, on transparent and thoroughly articulated reasoning, and on prudent shaping of remedies.
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Park, Hyungkwan. "The Current Picture of the American Grand Jury System and Proposals for Its Reform." Korean Association of Criminal Procedure Law 15, no. 2 (June 30, 2023): 75–115. http://dx.doi.org/10.34222/kdps.2023.15.2.75.
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Rendering the right decision in the investigation and indictment procedure is pivotal in achieving criminal justice. To that end, all nations by various means seek to accomplish this goal. Examples of this would include nations endowing exclusive charging authorities to the prosecutor while others allow lay citizens to participate in the actual procedure. Citizen participation always carries the risk of undermining the efficacy of the criminal justice system but it can also facilitate the average citizen's understanding of and increase trust in the system. Historically, the grand jury has been the institution by which citizens can play an active role in the investigation and charging process. Beginning in the colonial period, the American grand jury protected the citizen's right in investigation and charging procedure and served as a check on the validity and efficacy of public functions. Despite much doubt regarding the objectivity of the grand jury as a mere organ of the prosecution as well as concern about its efficiency, its role has for the most part proved to be positive. The grand jury by taking part in the actual investigation and then deciding whether or not to indict has been a check on the power of the police and prosecution in major cases. In the United States the grand jury operates in different forms. Some jurisdictions require grand jury indictments for felonies while others make them optional. In addition, there are many variations among jurisdictions in ensuring procedural rights in grand jury procedures. However, basic procedures such as beginning an investigation by way of subpoena and reaching indictment decisions through jury deliberations remain common. In the United States, the necessity for grand jury reform such as enhancing jury independence and ensuring procedural rights of the witness and defendant have long been and continues to be proposed. The mere separation of investigative power from charging power can hinder efforts in achieving criminal justice goals. Using the American model as a base for our nation, it would be expedient to allow for different organizations to exercise these powers independently. Furthermore, policies in which citizens can take on decisive roles in the investigation and charging process must be established and efforts to improve continue. By careful study of the various grand jury models in the United States, Korea has a good foundation in which to develop a grand jury model that would be most suitable to our nation. Specifically a model that would allow for optional grand jury indictments and where procedural rights are ensured.
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Schmidt, Laura, and Andrea Tünde Barabás. "Comparing the Court Mediation in Hungary and the State of Indiana in the Midwest." Magyar Rendészet 23, no. 2 (November 30, 2023): 157–66. http://dx.doi.org/10.32577/mr.2023.2.9.
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In Hungary, court mediation has been used in criminal cases since 2007, during which it is possible for the offender and the victim of a crime to come to an agreement on their own case with the help of a facilitator and resolve their conflicts together, thus avoiding the traditional criminal justice procedure and its consequences. In the United States of America, state of Indiana, this process is called mediation, during which the parties involved can communicate with each other with the help of a third, neutral party about how they can jointly repair the harms caused by the conflict. The purpose of the article is to analyse the legal framework and practical application of court mediation in Hungary and mediation in the state of Indiana, highlighting the similarities and differences that may arise by comparing the nature of the cases, the qualifications of the mediators, and the parties taking part in the process.
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KOROTIUK, O. "Characteristics of performance of the function by the notary in providing evidence in a criminal proceeding: a comparative legal study (Ukraine and the United States of America)." INFORMATION AND LAW, no. 4(43) (December 15, 2022): 156–64. http://dx.doi.org/10.37750/2616-6798.2022.4(43).270077.
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The article reveals the features of the notary's performance of the function of providing evidence in a criminal proceeding based on a comparative analysis of the proposed changes to the notary legislation in Ukraine and the provisions of the Criminal Code of the State of Arizona (USA). It was concluded that the notarial act of “providing evidence”, which the Ukrainian legislator proposes to add to the list of notarial acts, consists in certifying by the notary of the data (information) provided, which can be carried out in various ways (by documenting, inspecting certain objects, video- and audio recording, etc.). Thus, the provision of evidence as a notarial act has signs of novelty both in terms of content (as it consists in the attestation of information by a notary) and in the way of performing the relevant notarial procedure (by inspecting certain objects, making video and audio recordings, etc.). In US legislation, we see a different approach of the legislator. In particular, it is possible to single out the following features of establishing the function of a notary public to provide evidence in criminal proceedings under the criminal law of the state of Arizona: А) The status of an affidavit certified by a notary public or another competent person as a document that is evidence in criminal proceedings is defined directly in the criminal law regulations. B) In certain cases provided for by law, the statement of facts related to criminal proceedings must be made by drawing up a document certified by a notary public or another competent person. C) The criminal law regulations define the procedural consequences of drawing up a document that is used as evidence in criminal proceedings.
In comparing the approaches of the legislator of Ukraine and the USA to enshrining in the legislation the notary's powers to perform the function of providing evidence, it is worth paying attention to the following aspects. The proposed changes to the legislation of Ukraine on the notarial office relate exclusively to special norms regarding the performance of notarial acts and consist in granting the notary the right to perform an additional type of notarial certification of facts, namely, the fact that a person has provided certain information. At the same time, such changes are not ensured by corresponding changes in procedural and material norms of criminal, civil, economic legislation, etc. In the USA, on the other hand, the legislator focuses on the function of the notary in providing evidence by providing for the special legal status of the notarial document and its probative value directly in the criminal law regulations (which often also regulate issues of a procedural nature). At the same time, the procedure for performing notarial acts does not change.
It was concluded that the approach provided for in the legislation of the United States of America is effective to consolidate the function of the notary in providing evidence, which is built with the help of the following basic legal structures: 1) provision in the criminal law and procedural norms of the special status of the notarial document; 2) determination of the notarial form of some procedural documents; 3) specification of the procedural consequences that arise for participants in criminal proceedings in case of drawing up/submitting or not submitting the corresponding document in notarized form; 4) provision in the criminal law regulations, which provide for criminal liability for giving false testimony, cases of giving false or contradictory testimony precisely when drawing up a notarial document, which is a document-evidence in a certain case. It was determined that the effective performance of this function by a notary of Ukraine should be ensured by the relevant provisions of special procedural and other legislation, in particular: a) changes to procedural norms (criminal procedural legislation, civil procedural legislation, etc.) regarding the possibility of securing evidence by a notary, as well as determining the legal status , the probative value of a notarial document (deed on provision of evidence, etc.) and the procedure for its use in the relevant court process or other proceedings; b) amendments to the Criminal Code of Ukraine regarding the establishment of criminal liability for providing false testimony or providing false information (data) to a notary when he performs the function of providing evidence; c) provision of a notarial form for certain types of procedural documents submitted as evidence of the presence/absence of certain circumstances, facts, etc. in the relevant categories of court cases and other proceedings.
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Kennedy, Sally, and Ian Warren. "Southern Criminology, Law and the ‘Right’ to Consular Notification in Australia, New Zealand and the United States." International Journal for Crime, Justice and Social Democracy 7, no. 4 (December 1, 2018): 100–114. http://dx.doi.org/10.5204/ijcjsd.v7i4.1082.
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This paper investigates the implementation of Article 36 of the Vienna Convention on Consular Relations in Australia, New Zealand and the United States (US) by using a Southern approach to examining law. We describe the incorporation of Article 36 from a defendant-centred perspective under Australian and New Zealand laws governing police procedure, and the commensurate jurisdictional tensions it has generated in the US. We then empirically analyse 16 non-capital US cases to identify the type of offence, the nationality and perceived English-speaking competency of the foreign suspect, and the point at which the alleged Article 36 violation is canvassed in legal arguments. This analysis highlights the importance of a defendant-centred Southern criminology of law in critically assessing the implementation of international legal requirements into domestic criminal justice practice.
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Zukh, Yu, and K. Shveda. "Mediation in civil proceedings during the COVID-19 pandemic." National Technical University of Ukraine Journal. Political science. Sociology. Law, no. 4(48) (January 29, 2021): 64–69. http://dx.doi.org/10.20535/2308-5053.2020.4(48).233238.
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The article deals with the problems of implementation of the mediation procedure in civil proceedings and the technical possibilities of distance mediation, prospects for implementation, as well as the legal and social consequences of using this method of dispute resolution during the COVID-19 pandemic. The authors emphasize the importance and necessity of using distance mediation, especially during the COVID-19 pandemic, as it allows resolving civil cases without a health risk. Emphasis is placed on what difficulties may arise in choosing this particular way for resolving the dispute and possible ways to overcome them. It is noted that many problems arise, primarily due to the fact that mediation has not yet found its place in a separate law. The article gives a detailed analysis of how a mediator can ensure the confidentiality of the procedure and which his actions are possible if it is impossible to conduct it remotely. In contrast to mediation, which due to the flexibility of the procedure can take place remotely, a parallel is drawn with the traditional dispute resolution, in courts, as well as the reasons for the ineffectiveness of distance format in choosing this method and the advantages of mediation in this case. It is spoken in detail about the issue of conducting mediation in other countries and shown the conclusions, which summarize the solutions for overcoming problems, their effectiveness and experience for Ukrainian mediators, which can be borrowed from foreign professionals. Examples of solving the problems, caused by the pandemic, in distance mediation considered by the examples of France, the United Kingdom, and some states of the United States. The article draws attention to the fact that civil cases are best resolved through the mediation procedure, and under quarantine - remotely. It is emphasized that civil cases often meet all the criteria of the eligibility for mediation in contrast to criminal, economic, administrative cases and cases of administrative torts.
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Шкабин, Геннадий, and Gennadiy Shkabin. "CRIMINALLY-LEGAL MAINTENANCE OF OPERATIONAL-INVESTIGATIVE ACTIVITY IN AUSTRALIA AND THE UNITED STATES: THE EXPERIENCE FOR THE RUSSIAN LEGISLATOR." Journal of Foreign Legislation and Comparative Law 3, no. 3 (July 10, 2017): 80–85. http://dx.doi.org/10.12737/article_593fc343c04c73.33901692.
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For a relatively long time there is consideration of criminal law maintenance for secrecy activity of law enforcement agencies in order to combat crime in the legislation, judicial practice and jurisprudence of some foreign countries. In many states this process has undergone numerous changes. The article presents the experience of legal regulation of causing harm during performance of activities, which is called operational-investigative in Russia. The provisions of legal acts and court decisions of Australia and the United States as the countries with the most developed regulatory and scientific basis for solving these problems are analyzed. It is noted that in both countries the root cause of the formation of the regulatory framework dedicated to harm causing during covert operations were specific criminal cases. The legislation of Australia, which establishes the procedure for controlled operations causing harm to the objects of criminal law protection, is considered. The conditions of the legitimacy of the controlled behavior are described. Attention is paid to the border admissibility of acts as well as the release of the Australian legislator since 2010, the so-called auxiliary crime during a controlled operation. Legal maintenance for acts of secret FBI employees in USA, conditions of their lawful conduct and the limits of harm causing are described. The author comes to a conclusion that the representatives of US law enforcement-enforcement agencies have extremely broad powers during operational implementation. Based on the review conclusions, including and recommendations for the improvement of the Russian legislation are drawn.
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Shatailyuk, Е. Е. "THE DEFENDANT’S SILENCE UNDER THE CRIMINAL PROCEDURE LAW OF RUSSIA AND FOREIGN JURISDICTIONS." Вестник Пермского университета. Юридические науки, no. 3(61) (2023): 521–39. http://dx.doi.org/10.17072/1995-4190-2023-61-521-539.
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Introduction: the article analyzes the defendant’s silence models in foreign states (England and Wales, Ireland, the United States, the Netherlands, Belgium) and in Russia, with a focus on the evidence thresholds that allow drawing adverse inferences from the accused’s refusal or failure to answer questions as well as on the scope of these inferences. The historical retrospective of the issue and the development of international standards permitting the use of silence for evidentiary purposes are explored. The purpose of the paper is to study the legislation and law enforcement practice of the selected countries with regard to the conditions under which adverse inferences can be drawn from the defendant’s silence. Methods: general scientific methods of analysis, synthesis, analogy, and interpretation; comparative legal, formal legal, and axiological methods. Results: the author identifies the categories (groups) of crimes to which provisions on adverse inferences are applicable and indicates the guarantees designed to compensate for the limitation of the right to remain silent. The implementation of such guarantees in Russian legislation and their practical application are analyzed. The author outlines the possible negative scenarios for criminal process in Russia in cases where ambush defenses are raised. The experience of Belgium and the Netherlands in investigating stand-alone money laundering exemplifies the algorithm of using the indirect method of proof and demonstrates the role of the defendant’s failure to clarify the origin of an asset suspected to originate from an illegal source as corroborative evidence. Conclusions: while the presumption of innocence is a universal principle, the legal approaches to adverse inference from the defendant’s silence differ from state to state. Attaching the evidentiary importance to the accused’s silence does not violate the right to a fair trial, subject to compliance with the safeguards. The attitude to the evidentiary value of the defendant’s silence in Russia is to be changed due to the known difficulties of prosecution for profit-driven crimes.
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Rossiev, Viktor V. "Free legal aid in the United States of America." Tyumen State University Herald. Social, Economic, and Law Research 9, no. 3 (2023): 176–91. http://dx.doi.org/10.21684/2411-7897-2023-9-3-176-191.
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Free legal aid is one of the fundamental institutions of ensuring human rights guaranteed both by the norms of international law and the norms of national legislation of most civilized countries in the world. It is based on the idea of providing legal assistance for the public good — the “pro bono” principle. This article considers the system of free legal aid operating in the territory of the USA in a positivist and historical-legal context. The tendency of gradual expansion of the scope of application of free legal aid from exclusively criminal cases to the spheres of civil and administrative proceedings is revealed. Special attention is paid to the subject composition of the system of free legal aid in the USA: the role of the Bar, legal clinics at higher education institutions that train students in legal specialties, legal services corporation, and other participants. The results identify the groups of persons eligible to receive pro bono legal aid, as well as types and methods of providing pro bono legal aid, mechanisms of financing of the relevant activities. The advantages of the US model of free legal aid include: public funding of the private sector of free legal aid, wide spread of the idea of pro bono assistance among representatives of the legal community, and developed system of clinical education in US law schools, among others; its disadvantages are: insufficiently clear normative fixation of the procedure, forms of free legal aid, subject composition of persons entitled to receive this type of assistance, the responsibility of the legal profession for the provision of free legal aid, the responsibility of the legal profession for the provision of free legal aid, and the responsibility of the legal profession for the provision of free legal aid. These advantages and disadvantages of the American system of free legal aid have share an insight into the modernization of the Russian institute of qualified legal aid provided to persons on a pro bono basis.
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Kukshinova, O. O., and D. I. Galyas. "Legal regulation governing arrest of a seagoing vessel." Uzhhorod National University Herald. Series: Law, no. 67 (January 16, 2022): 319–24. http://dx.doi.org/10.24144/2307-3322.2021.67.60.
Full textAbstract:
The article analyzes international and national regulations governing the arrest of seagoing vessels. Thus, attention is drawn to the fact that some legislative acts of Ukraine have been amended in terms of determining the jurisdiction of cases of arrest of ships, important changes have been made to both the Civil Procedure Code of Ukraine and the Commercial Procedural Code of Ukraine, which, in turn, impetus for the formation of a new array of case law in cases of arrest of ships.
It analyzes International Convention for the unification of certain rules relating to Arrest of Sea-going Ships (1952), United Nations Convention on the Law of the Sea (1982), United Nations Convention on the Carriage of Goods by Sea (1978) and International Convention on Arrest of Ships (1999), which unified almost all current trends related to the arrest of ships. The 1999 Convention was open for signature from 1 September 1999 to 31 August 2000, after which it remained open for accession. The national normative-legal acts regulating the issue of arrest of sea vessels have been examined. Thus, the national regulations governing the arrest of seagoing vessels include: Merchant Shipping Code of Ukraine, Commercial Procedural Code of Ukraine, Civil Procedure Code of Ukraine, Law of Ukraine "On Enforcement Proceedings", Code of Ukraine on Administrative Offenses, Criminal Procedure Code of Ukraine and the Criminal Code of Ukraine.
The study concluded that, firstly, at the legal level today there are quite effective uniform rules for the arrest of a seagoing vessel to ensure maritime claims, which not only link different legal systems, but also make clear the various legal institutions. Secondly, the process of unification of this sphere is not static. Taking into account the long-term experience of application of the current legal norms, with change of circumstances of political, economic, legal character new rules which have to correspond to today's challenges are created. Third, Ukraine's accession to the international convention has certain advantages: it becomes a full participant in international shipping and acquires the same rights and obligations in the field of ship arrest as other member states.
In our opinion, taking into account the experience of implementing the provisions of the 1999 Convention and the long-term practice of foreign states in the arrest of ships, in Ukraine it would be appropriate to develop and legislate a special procedure for arresting a sea vessel to ensure maritime claims.
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Crenshaw, David A., Lori Stella, Ellen O’Neill-Stephens, and Celeste Walsen. "Developmentally and Trauma-Sensitive Courtrooms." Journal of Humanistic Psychology 59, no. 6 (April 4, 2016): 779–95. http://dx.doi.org/10.1177/0022167816641854.
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Courtrooms in the United States whether family court or criminal court fall far short of being either developmentally or trauma sensitive. While there is growing recognition that vulnerable child witnesses are at risk of retraumatization by court procedures and some judges have used their discretionary powers to render courtrooms less toxic to children, the system was designed by adults for adults, and certainly not for children. The court process especially in criminal trials does not typically take into account the developmental constraints of children nor do they fully understand trauma in children and the risks to testifying child witnesses. Humanistic psychology has long stood for social justice and compassion toward our most vulnerable humans, especially children, but the long and slow-to-change traditions of the court system in the United States creates an environment that is inhospitable to children and even older victims as illustrated by the low rate of prosecutions in rape cases. This article outlines the distressing conditions that await child victims/witnesses in this country in comparison with other developed countries and an innovative, out-of-the box solution that does not interfere with the rights of the accused.
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Volosko, Iryna. "The Jury in Ukraine: topical issues of reform." Slovo of the National School of Judges of Ukraine, no. 4(29) (February 11, 2020): 61–70. http://dx.doi.org/10.37566/20707-6849-2019-4(29)-5.
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The article is devoted to the analysis of the current state of the jury in Ukraine, assessment of existing problems in legislative regulation, ambiguity of enforcement and finding possible ways of solving existing problems. The jury's ability to defend the judicial system against some tendencies that take place in the trial corps and can undermine a fair system of criminal liability and punishment is argued. A statistical analysis of criminal and civil cases involving jury in 2017-2018 is provided. The article emphasizes that the successful functioning of the jury depends first and foremost on the procedure of selection of people for jury. The bill drafts of Ukraine of amendments to the current legislation on improvement of the procedure of forming the list of jury are analyzed. In the context of this, attention was paid to the issues of the quantitative composition of the jury, the transfer of power to form a list of jury to State Judicial Administration of Ukraine, the heterogeneity of the composition of the jury in terms of individual and psychological differences. The expediency of working out the Regulation “On the procedure of selection of citizens in the jury”, where all requirements for candidates for jury will be detailed, restrictions for people to be sworn, the procedure of forming the lists of jury and their submission to court, is stated. The outreach campaign and legal education of the population is аn important element of the effectiveness of the jury. The requirement of continuity of the trial in the case of jury which is related to the concentration of their attention and various kinds of influence, in particular the mass media, is emphasized. It is noted that the review of the decisions of the jury in the appeal court by professional judges, in fact, negates the value of the verdict of the jury.The item of allotments to candidates for jury and the experience of foreign countries on this issue are considered. It also substantiates the demand of transition of Ukraine to the classic jury trial model, which successfully operates in such developed countries as the United States, Canada, the United Kingdom, Denmark, Belgium and others. The introduction of a classic jury trial model is absolutely necessary in the current condition, will increase the public's confidence in the judicial system and will introduce an effective competitive model of criminal proceedings. Key words:jury, verdict of the jury, selection of the jury.
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Bozhik, Valerij. "Peculiarities of ensuring the rights of the person during the pre-trial investigation of criminal offenses under the legislation of countries with Anglo-Saxon law." ScienceRise: Juridical Science, no. 3(17) (September 30, 2021): 26–31. http://dx.doi.org/10.15587/2523-4153.2021.242293.
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A review of the status of ensuring the rights of the individual during pre-trial investigations of criminal offences under foreign law has been carried out. It has been specified, that successful implementation of the model of the criminal offences optimum for Ukraine is possible on condition of detailed study of the foreign experience of functioning of this institution. An analysis was made of legislation and its application in the area of human rights during pre-trial investigations of minor criminal offences in countries with an Anglo-Saxon legal system. Attention was drawn to the fact that they differentiate between general and minor offences under the criminal law system. For minor offences, the so-called summary procedure is used. The main criterion for allocating proceedings for consideration by a court in summary proceedings is the degree of criminal risk of offences. It has been noted, that pre-trial investigations of minor offences in the United States follow the general procedure whereby an officer of the investigating authority makes an application for a warrant for the arrest of a person or for the search of the premises occupied by him/her, if there are grounds for doing so. The said statement is subject to verification and confirmation in the manner, on which the court may issue a warrant of arrest or search, which is in fact an indictment record of the commencement of official proceedings. Attention is drawn to the fact that, in cases, involving minor offences, arrest is generally not carried out - the accused is usually served with a summons to appear in court. Emphasised on the positive experience of England in the sphere of ensuring the rights of the individual in the proceedings of «non-arrest crime» by establishing in the law the grounds for detention of a person by the police without the order of a judge.
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Warren, Ian, Monique Mann, and Adam Molnar. "Lawful Illegality: Authorizing Extraterritorial Police Surveillance." Surveillance & Society 18, no. 3 (August 19, 2020): 357–69. http://dx.doi.org/10.24908/ss.v18i3.12795.
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This paper examines Lisa Austin’s (2015) concept of lawful illegality, which interrogates the legal foundations for potentially unlawful surveillance practices by United States (US) signals intelligence (SIGINT) agencies. Lawful illegality involves the technically lawful operation of surveillance powers that might be considered unlawful when examined through a rule of law framework. We argue lawful illegality is expanding into domestic policing through judicial decisions that sanction complex and technically sophisticated forms of remote online surveillance, such as the use of malware, remote hacking, or Network Investigative Techniques (NITs). Operation Pacifier targeted and dismantled the Playpen dark web site, which was used for distributing child exploitation material (CEM), and has generated many judicial rulings examining the legality of remote surveillance by the FBI. We have selected two contrasting cases that demonstrate how US domestic courts have employed distinct logics to determine the admissibility of evidence collected through the NIT deployed in Operation Pacifier. The first case, United States v. Carlson (2017 US Dist. LEXIS 67991), offers a critical view of the use of NITs by the FBI, with physical geography constraining the legality of this form of surveillance in US criminal procedure. The second case, United States v. Gaver (2017 US Dist. LEXIS 44757), authorizes the use of NITs because the need to control crime is believed to justify suspending the geographic limits on police surveillance to identify people involved in the creation and dissemination of CEM. We argue this crime control emphasis expands the reach of US police surveillance while undermining due process of law by removing the protective function of geography. We conclude by suggesting the permissive geographic scope of police surveillance reflected in United States v. Gaver (2017 US Dist. LEXIS 44757), and many other Playpen cases, erodes due process for all crime suspects, but is particularly acute for people located outside the US, and suggest a neutral transnational arbiter could help limit contentious forms of remote extraterritorial police surveillance.
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Osipov, A. L. "Topical Issues of Application of Decisions of Interstate Human Rights Bodies in Criminal Proceedings of the Russian Federation." Lex Russica 76, no. 3 (March 24, 2023): 72–86. http://dx.doi.org/10.17803/1729-5920.2023.196.3.072-086.
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The paper deals with the implementation of international standards for the protection of individual rights in criminal proceedings consolidated in the decisions of judicial and quasi-judicial intergovernmental human rights bodies. The author gives a characteristic of the main stages of interaction of the legal system of the Russian Federation with the system of international standards, perceived through the practice of the ECHR. The paper examines features of the execution of the ECHR acts after the Russian Federation withdrew from the Council of Europe. The article analyzes the legal foundations of the activities and legal properties of acts of quasi-judicial bodies of the United Nations in the context of the grounds for reviewing national judicial decisions in criminal cases. On the basis of Russian judicial practice, the legal model of sentence review based on international judicial and quasi-judicial acts is analyzed: the stable characteristics of this model are determined, the patterns of implementation of acts of quasi-judicial bodies of the United Nations in Russian judicial practice in criminal cases are described, the factors requiring improvement of this model are analyzed. It is concluded that the existing model of regulation of these relations is based on insufficiently clear provisions of the Criminal Procedure Code of the Russian Federation in their interpretation by the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation. This model does not fully take into account the specifics of individual legal acts of interstate human rights bodies. In conclusion, the article proposes the author’s concept of the reform of the model of resuming criminal proceedings in connection with these acts of interstate human rights bodies. As one of the conclusions, the paper notes that at the present stage of the development of criminal procedure, legislation and the practice of its application in the Russian Federation, the issues of implementation in domestic law of international human rights treaties through the execution of decisions of their control (judicial and quasi-judicial) mechanisms with competence to consider individual reports of victims of alleged violations of these treaties remain relevant.
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Isamail, Haslida, Rizal Rahman, and Muhamad Sayuti Hassan. "RIGHT TO LEGAL REPRESENTATION DURING SUMMARY PROCEEDINGS UNDER THE MILITARY JUSTICE SYSTEM." IIUM Law Journal 32, no. 1 (May 31, 2024): 365–96. http://dx.doi.org/10.31436/iiumlj.v32i1.919.
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Military justice is essential for maintaining discipline and order in the military. The Federal Constitution of Malaysia safeguards the fundamental right of individuals to be represented by a legal practitioner of their preference through Article 5(3), and Section 255 of the Criminal Procedure Code (Act 593) also provides the right of the accused to be defended before any criminal court. Additionally, Article 8 guarantees everyone equal legal protection. Thus, everyone has the right to legal representation, which is essential. Nonetheless, no provision in the Armed Forces Act 1972, Armed Forces (Court-Martial) Rules of Procedure 1976, and Armed Forces (Summary Jurisdiction) Regulation 1976 guarantees legal representation during summary proceedings. The omission of this provision will be examined through pertinent cases and compared to the United States’ position. This legal research is purely doctrinal, analysing the relevant legal provisions and court rulings. Despite the fact that the Federal Constitution ensures the right to legal representation and equality, this article argues that introducing legal representation during summary proceedings is at the discretion of the commanding officer, subordinate commander, and appropriate superior authority, taking into account the distinct characteristics of such proceedings. This article proposes a need for reform of the current law to allow army personnel to opt for court-martial and to establish an appeal mechanism for the accused.
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Rhee, Gina S. "The Possibility of Employing an Artificial Intelligence Interpreter in the Criminal Justice System in a Society with Diverse Cultures." Center for Public Interest & Human Rights Law Chonnam National University 31 (August 31, 2023): 239–70. http://dx.doi.org/10.38135/hrlr.2023.31.239.
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The purpose of this paper is to stress the importance of safeguarding fundamental and protective rights for those who are socially marginalized in criminal proceedings, and to examine the introduction and necessity of legal AI technology in relation to language interpretation difficulties by presenting discrimination cases involving immigrants in criminal justice and execution procedures. Particularly, the author explores the possibility of employing AI to render judgments and broaden its application in relation to the language interpretation challenge in judicial proceedings affecting ethnic minorities. Through an analysis of the legal-tech industry in the United States, the author discusses the possibility of using artificial intelligence interpreters and proposes the introduction and use of new legal artificial intelligence technology.
The author explores the possibility of using artificial intelligence interpreters, analyzes cases and support systems in the United States, and presents directions to be pursued. Guidelines or protocols that reflect discussions such as whether interpreters can arbitrarily conduct interpretations and inform judges about potential problems caused by cultural differences are discussed by the author.
At present, the sole focus of discussion in Korea pertains to the enhancement of simple interpretation support, in regard to the protection of fundamental rights and defense rights for foreigners in judicial proceedings. However, the author emphasizes the use of artificial intelligence interpreters as ‘cultural mediators’ who understand and accurately explain subtle language expressions based on cultural differences on behalf of immigrants who may be vulnerable to legal responses due to language.
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Alim, Md Abdul. "The Laws of Search, Seizure, and Custodial Interrogation: Searching the Orchard of American Constitution." Economics, Law and Policy 5, no. 1 (July 7, 2022): p48. http://dx.doi.org/10.22158/elp.v5n1p48.
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The United States Criminal Justice System and court structure are two separate court systems, one at the federal level and another at the state level. In criminal proceedings, many courtrooms principally convict either by trial or by guilty plea, and many result in dismissing cases. It is necessary to examine the scope of the crime problems that criminal courts face and the organizational context as well as the policies in which they operate. The Fourth Amendment rights in particular, limits to searches and seizures are important procedures in the ongoing prosecution of crimes in America. The right of the people to remain secure in persons and properties against unreasonable searches and seizures shall not be violated. The police have the power to search and seize, but individuals are protected against unreasonable police intrusion. The Fifth Amendment Miranda rights protect any person from custodial interrogation by the police. It is required that all arrestees be given their Miranda warnings and if they are invoked they must be scrupulously honoured.
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Antoni, Veri. "THE POSITION OF INDIRECT EVIDENCE AS VERIFICATION TOOLS IN THE CARTEL CASE." Mimbar Hukum - Fakultas Hukum Universitas Gadjah Mada 26, no. 1 (June 25, 2014): 137. http://dx.doi.org/10.22146/jmh.16059.
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Indirect (circumstantial) evidence, either economic evidence or communication evidence, has been used in cartel cases in many countries such as United States of America, Japan, Australia, Brazil, Malaysia, and others. According to Indonesia criminal procedure law, the position of indirect (circumstantial) evidence is categorized as an indication (clue evidence) whereas according to Indonesia civil procedure law, indirect (circumstantial) evidence is categorized as presumption. Considering the characteristics the antimonopoly law which aims to find material truth, the position of indirect evidence is more properly said to be an indication. Owing to its status as an indication, indirect evidence should be exhibited together with the other direct evidence. Indirect evidenceatau bukti tidak langsung, baik bukti ekonomi atau bukti komunikasi, telah digunakan dalam kasus-kasus kartel di banyak negara, seperti Amerika Serikat, Jepang, Australia, Brazil, Malaysia, dan lain-lain. Menurut hukum acara pidana Indonesia, posisi bukti tidak langsung dikategorikan sebagai indikasi (bukti petunjuk), padahal menurut hukum acara perdata Indonesia, bukti tidak langsung dikategorikan sebagai praduga. Mengingat karakteristik hukum anti-monopoli yang bertujuan untuk mencari kebenaran materiil, posisi bukti tidak langsung lebih tepat dikatakan indikasi. Karena statusnya sebagai indikasi, bukti tidak langsung harus dipamerkan bersama dengan bukti langsung lainnya.
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Bajović, Vanja. "Evidence from the EncroChat and SKY ECC encrypted phones." Crimen 13, no. 2 (2022): 154–79. http://dx.doi.org/10.5937/crimen2202154b.
Full textAbstract:
Technological development and new forms of crime require redefinition of existing legal frameworks at domestic and international level. EncroChat and SkyEcc cases highlighted these problems, throwing the courts before the old Packer's dilemma, whether to give priority to crime control or due process model. While the protection of citizens' rights prevailed for many years, guided by the maxims that "the democracy of a society is measured by the provisions of its criminal procedure" and that "it is better 100 guilty persons to escape than that one innocent person suffer" it seems that in the era of information technologies, another model prevails, legitimizing almost unimaginable concepts such as mass surveillance of communications with derogation of the principle of territorial sovereignty. The "problem" escalated and came to the attention of many European countries after the "breaking" of the communication platforms EncroChat and SKY Ecc, which certainly contributed to the detection (and prevention) of numerous criminal acts by criminal groups, while at the same time opened many questions, starting from the method of discovering communication, delivering material to other countries and using it in criminal proceedings, the validity and admissibility of the so-called of "mass surveillance" that affects not only "criminals" but also "ordinary citizens", i.e. all users of certain communication platforms. The first part of the paper deals with the issues how these networks were break down, the legal basis for such actions, the legal basis for providing the obtained data to other countries, their evaluation and further use in criminal proceedings. As different countries have different procedural rules, the question is whether a domestic judge is authorized to evaluate the legality of evidence obtained abroad and according to what criteria? In this regard, a distinction is made between EU member states where European investigative orders and the principle of mutual recognition apply and other countries in the system of mutual legal assistance in criminal matters. In the second part, we deal with the legal nature of the obtained data through the dilemma of whether it was targeted surveillance in criminal proceedings, or mass surveillance carried out by the intelligence services, as well as the ECtHR's practice related to these issues. Bearing in mind that these investigations are still under the "veil of silence", the study was based on Europol/Eurojust data and few publicly available decisions of courts in Germany and the United Kingdom about the admissibility of these evidence.
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Szasz, Thomas. "1. Psychiatric Justice." British Journal of Psychiatry 154, no. 6 (June 1989): 864–69. http://dx.doi.org/10.1192/bjp.154.6.864.
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It is now widely accepted, especially in the United States, that confining lawbreakers in mental hospitals as insane, without the benefit of a real trial, rather in prisons as criminals, after a proper trial, is a recent, enlightened Western practice. Nothing could be further from the truth. The practice is not recent, enlightened, or typically Western – resembling the Oriental despotic arbitrariness towards troublesome persons much more closely than the Occidental legal respect towards persons accused of crimes. Many 19th-century cases illustrate the procedure and support my foregoing interpretation of it. The following is a typical example.
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Alexandrova, A. V. "ALTERNATIVE TO CRIMINAL PROSECUTION IN FOREIGN LAW." Proceedings of the Southwest State University 22, no. 2 (April 28, 2018): 152–57. http://dx.doi.org/10.21869/2223-1560-2018-22-2-152-157.
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In this article, alternative methods of criminal prosecution are considered using the example of foreign countries. The Institute for the Exemption from Prosecution of the person who committed the crime is provided for in foreign legislation in criminal and criminal procedural law. There are many legal institutions serving as alternatives to criminal prosecution. Most of them are called upon to reconcile the conflicting parties - the victim and the perpetrator. Conflict resolution entails the termination of prosecution, which is possible both at the pre-trial stage and after the start of the trial. As a rule, the use of such alternatives is allowed in cases of crimes with a low degree of public danger, and in the event that the consequences of such acts can be eliminated or material damage is compensated. Law enforcers in foreign countries most often refer to the following measures, which are alternatives to criminal prosecution: mediation, payment of a fine, transaction and refusal of criminal prosecution in view of its inexpediency. It seems that there are several options for classifying foreign countries depending on the institutions that are characteristic for them, allowing legitimate avoidance of criminal prosecution. The existence of a variety of alternatives to criminal prosecution, as well as conciliation procedures in the legislation of some countries of Western Europe and the United States are aimed at maintaining a reasonable balance between the punitive potential of criminal law and incentive standards, which is expressed in the ban on the refusal to prosecute certain categories of crimes, including on those where there is a public interest. The application of alternatives to criminal prosecution makes it possible to exclude the consequences of criminal acts outside procedural ways, to find the best means of combating crime, and to facilitate the resocialization of the perpetrators of the crime.
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Rona, Gabor. "AN APPRAISAL OF US PRACTICE RELATING TO ‘ENEMY COMBATANTS’." Yearbook of International Humanitarian Law 10 (December 2007): 232–50. http://dx.doi.org/10.1017/s1389135907002322.
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Following the terrorist attacks of 9/11, the United States sought to establish a framework for detaining, interrogating and possibly prosecuting persons suspected of various degrees of connection to international terrorism. There were several factors militating against reliance on a tried and true law enforcement paradigm of arrest and prosecution in federal courts. Perhaps the most significant one, as described by then Attorney General Ashcroft and other senior officials in the Department of Justice, was the felt need for a fundamental shift in approach when dealing with terrorist suspects, from prosecution to prevention of future attacks.It was presumed that these two interests were at odds: on the one hand, preparing and trying criminal cases, and on the other hand, obtaining actionable intelligence about terrorist groups and their plans; in other words, that the application of criminal justice procedures would hamper the intelligence gathering effort. After all, ‘you have a right to remain silent and a right to an attorney’ (the so-calledMirandawarnings) was not the message that the administration wanted to convey.
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Im, Yong Jin, and Kyu Dong Park. "The Deviation and Responses in the Construction of Criminal Policy System Algorithm." Korean Association of Public Safety and Criminal Justice 31, no. 2 (June 30, 2022): 161–98. http://dx.doi.org/10.21181/kjpc.2022.31.2.161.
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A discussion is urgently needed to identify the efficiency and effectiveness of the criminal justice algorithm, which is intended to develop and operate in an automated decision-making form and to reduce the bias that is understood as a negative effect of the algorithm. In the method of Active Crime Prediction, which comprehensively analyzes current data and accessible public data and transmits the predicted and analyzed information to the on-site police in real-time, it utilizes pure social data rather than on-site information or front-line information. It is defined as a predictive police activity that determines the target of crime prevention or police intervention through statistical prediction and is facing a change to the establishment of criminal justice procedures through an algorithmic system as a type.
Overseas, systems such as DAS, PredPol, and COMPAS are being produced and operated by private companies. However, in Korea, it is only at the stage of technical discussion and testing of the evolved method so far, and there are many issues and issues regarding the elements and algorithms that must be equipped legally and institutionally. Nevertheless, the realm of these debates and issues is obscured by technological advances. Therefore, it is important to exclude technical aspects and identify the problems and issues through the examples of the United States and the United Kingdom, which are leading countries in introducing criminal justice algorithm systems in the humanities and social sciences.
In this study, the problems that appeared through previous studies and cases were classified and explored according to the system operation stage (construction, utilization, management). The various issues and problems analyzed are ultimately problems that appeared in the use of the algorithm. It also had a structure that reduced it to a problem created by the person using the technology. It is interpreted as a limitation in that it cannot provide a clear solution to the ongoing debate or reflect it in the field. Therefore, in the field of criminal policy dealing with predictive policing and recidivism prediction, we examine the bias accompanying the automated judgment of algorithms, and envision the prerequisite for detailed complementation and construction in terms of normative aspects and data collection and utilization to solve problems.
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Povzyk, Eugene. "Guarantees of protection of the right of minors during their interrogation on the pre-examination investigation." Law and innovations, no. 4 (36) (December 15, 2021): 98–103. http://dx.doi.org/10.37772/2518-1718-2021-4(36)-14.
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Problem setting. One of the tasks of criminal proceedings is to protect the rights and legitimate interests of participants in criminal proceedings. Additional guarantees should be created for juvenile participants in criminal proceedings, taking into account their age, physical and psychological characteristics, taking into account the principle of the best protection of the interests of the child enshrined in Article 3 of the UN Convention on the Rights of the Child. However, despite significant scientific developments in the issue of guarantees for the protection of the rights of minors and the relevant regulatory support, there are still difficulties in law enforcement on this issue, which, in turn, requires scientific analysis. The state of research of the problem. Issues related to proceedings involving minors are the work of many procedural scientists: I.V. Glovyuk, Y. M. Groshevoy, Z.Z. Zinatullina, O.P. Kuchinskaya, L.M. Loboyko, V. T. Nora, M.A. Pogoretsky, V.V. Romanyuk, S.M. Smokova, L.D. Udalova, O.G. Shilo, D.O. Shingarev and others. The purpose of the scientific article is to study the guarantees of protection of the rights of minors and juveniles during their interrogation in the pre-trial investigation and to develop proposals based on it to improve the current criminal procedure legislation. Article’s main body. The research is devoted to determining the status of a minor in criminal proceedings, features of interrogation with his participation, analysis of additional guarantees of protection of his rights and interests during interrogation, features of specialization of subjects of such investigative (search) action and requirements to other participants of interrogation. It is noted that at the stage of pre-trial investigation, the method of interrogation of a minor is effective - "Green Room." This technique is developed to introduce the best experience of interrogation of the child, when the child is not injured and provide an opportunity to collect all the necessary evidence in criminal proceedings. It is stated that despite the positive impact of this technique, cases of interrogation of the child by the "Green Room" method are not frequent, given the small number of such "Green Rooms," and, therefore, the significant remoteness of law enforcement agencies from such specially equipped premises. The scientific novelty of the study is to make suggestions for improving the current criminal procedure legislation, which relate to the application of additional guarantees for the protection of the rights of minors, specialization of juvenile prosecutors, mandatory participants in the interrogation of minors. Conclusions. Among scientists and practitioners, the issue of mandatory and conditionally mandatory participants of interrogation of a minor listed in Part 1 of Article 226 of the CPC of Ukraine remains debatable. In our opinion, it is appropriate to apply to the motivational part of the Resolution of the United Chamber of the Cassation Criminal Court of the Supreme Court of 18.11.2019. resolution of the scope of documents confirming the authority of the defender to participate in a particular criminal proceeding (listed in Art. 50 of the CPC of Ukraine). The resolution states that: … para. 2 of Part 1 of Article 50 of the CPC is formulated using a syntactic construction in which homogeneous members of the sentence, namely: "order," "contract" and "errands," are connected by a relentless separation, and between the last two used a connector "or," which clearly indicates an alternative list, that is, the possibility of choosing one of the three mentioned in In addition, if such a list presents the conditions for the occurrence of a certain legal consequence, the use of a separating connector "or" indicates that the consequence occurs in the presence of at least one of the listed conditions.... ". Thus, taking into account such a syntactic design, formulated in part 1 of Article 226 of the CPC of Ukraine, we consider it mandatory to interrogate a minor or legal representative, or teacher, or psychologist, and conditionally mandatory - a doctor (if necessary).
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Eichler, Rose Richerson. "Cybersecurity, Encryption, and Defense Industry Compliance with United States Export Regulations." Texas A&M Journal of Property Law 5, no. 1 (October 2018): 5–36. http://dx.doi.org/10.37419/jpl.v5.i1.2.
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Exports of technology and items containing technical information are regulated by the United States government. United States export control regulations exist to help protect national security, economic, and political interests. United States defense industry companies manufacture products and develop technologies and information that the United States has a particular interest in protecting. Therefore, defense industry companies must comply with United States export control regulations when exporting items and information to their international partners and customers. An “export” not only includes shipments of hardware or other tangible assets to foreign end-users but also includes the sharing of certain types of information with foreign recipients in the form of phone conversations, emails, meetings, conferences, presentations, and so on. Many employees of defense industry companies travel internationally with company issued laptops and cellphones containing company information that could be viewed by foreign persons. All of these activities are considered exports and may require prior authorization from the United States government under export control regulations. Failure to follow export regulations could result in a violation requiring a report to the United States government that may result in civil penalties or criminal charges. Additionally, intentional as well as unintentional releases of information to certain foreign persons could be detrimental to a defense industry company’s business and reputation and may even result in security concerns for the United States. Although the government has an interest in regulating defense industry companies’ technology and information, critics argue that strong export control regulations may result in invasions of privacy, violations of free speech, and a displacement of the United States as a leader in a world of technological advancement. However, despite current regulations, defense industry information is still at risk of cyberattacks and inadvertent data releases, creating potential threats to national security and the security of company technology and information. In an effort to secure company and sensitive information while exporting, defense industry companies utilize encryption and other cybersecurity measures. Advancing technologies in cybersecurity can help the government and defense industry companies by bolstering the security of their information. These same advancements can also aid attackers in breaking through cybersecurity defenses. Some advances in technology are even preventing law enforcement from gathering necessary information to conduct investigations when cyber-attacks occur, making it difficult to identify criminal actors and seek justice.The United States government faces challenges in creating and up- dating regulations to keep up with consistently advancing technology. Likewise, defense industry companies must adhere to government regulations by creating robust compliance programs, but they should also implement security and compliance measures above and beyond what the government requires to ensure more effective security for their technology and information. This Article discusses the effect of advancing cyber technology; United States export regulations; reporting requirements related to the export of encrypted items; and encryption technology in the defense industry. First, the Article defines encryption and encrypted items. Second, the Article explains United States regulations of ex- ports and specifically, regulations related to encryption and encrypted items. Third, the Article explains the need for defense industry companies to export and to use encrypted items. Fourth, the Article analyzes criticisms of export regulations and the differing views on United States controls. Fifth, the Article will discuss the complexities of com- plying with export regulations and defense industry compliance pro- grams. Sixth, the Article examines the outlook for encryption technology, the future of regulations related to cybersecurity, and the outlook for defense industry security measures and compliance with regulations. The United States government is beginning to recognize the need for more advanced security measures to protect domestically produced technology and information, especially information that puts national security at risk. Specifically, the technology and information produced by United States defense industry companies should be protected from getting into the hands of our foreign adversaries at all costs. In response to the growing need for security measures, the United States government has implemented new programs, commissions, agencies, and projects to create more robust security systems and regulations. The United States should employ the most talented and experienced cybersecurity professionals to innovate and produce security systems that protect our nation’s most sensitive information. The government should then provide these systems to its defense industry companies at minimal cost and should require companies to use the best technology in its security measures. With or without the government’s assistance, defense industry companies within the United States must also implement their own measures of protection. Current policies offer little protection of sensitive and export controlled information including encrypted items and in- formation. In addition, the government should also provide the defense industry companies better guidance and access to resources in order to assist them in protecting the important information and encrypted items.207 For example, any new systems or software purchased by the United States should be made available to defense industry companies as the standard. If the government truly wishes to protect its most important technology and information, it should provide the new systems at minimal cost to the defense industry. Advancements in security programs should be shared with defense industry companies as soon as they are available and ready for use. Nevertheless, the government may not want to provide defense industry companies with the best security technology because in the event that the government needs to conduct an investigation, a company utilizing strong cyber- security and encryption software is much more difficult to investigate. Alternatively, the United States could update current regulations to require that defense industry companies must utilize specific security measures or face a penalty for failing to do so. Such regulation could require defense companies to implement more robust security pro- grams with updated security software. This is a less effective solution as the advancement in cyberattack technology increases so rapidly, and reformed regulations will likely be outdated as soon as they are implemented. It makes more sense to require that defense companies must implement the most updated software and programs determined by government security experts and cyber-security experts. Also, by allowing defense companies to decide which security companies it will work with, the defense companies obtain the option to shop for the best and most expensive program, or the company could choose the cheapest option, resulting in less efficient security. Cybersecurity regulations that are too specific run the risk of being outdated quickly, whereas broad requirements leave the option for companies to implement the lowest of security measures. Even if the government declines these suggested measures, defense industry companies should make the protection of their sensitive in- formation and encrypted items top priority. This method would re- quire complete buy-in from the senior management within the company and a thorough flow-down of cultural beliefs among its employees. A change in norms must be implemented, and defense industry personnel should be inundated with reminders on the importance of information security. Companies should provide employees with easy access to guidance, training, and assistance in handling, sharing, protecting, and exporting sensitive and export controlled information. Changing company culture takes time, and failure to change personnel beliefs will result in a lack of understanding and potential violations of export control regulations. In the worst cases, data spills and cyberattacks could result in the loss of sensitive or even classified in- formation that could jeopardize national security. Huge unauthorized data releases of sensitive information will negatively affect a company’s reputation thus affecting its ability to generate revenue. The risks in using and exporting encryption technology and sensitive information should be a major concern for defense industry companies. This concern should motivate the government to invest significant resources into compliance programs. Resources such as dedicated and qualified personnel can create policy and procedure to ensure compliance with United States government regulations, and the procedures will provide guidance and training to all employees. In addition, companies should employ IT security, data security, and counterintelligence personnel to work with the compliance team in innovating preventive measures and in addressing any potential data releases and export violations. Immediate actions and counter measures should be prioritized not just among the compliance and security teams but should be a known, expected response from all employees. In other words, cybersecurity norms should be instilled company-wide and thoroughly policed from within the company. How a company chooses to implement such measures remains discretionary, but a better resourced compliance department dedicated to implementing effective policies and responding quickly to potential issues will prevent export control violations and data releases of important information. Defense industry companies transfer export controlled information that may subject the United States to security risks. The United States responds to this risk by implementing regulations to control the high- risk exports. Defense industry companies must comply with these regulations. Therefore, defense industry companies should approach exports and cybersecurity from the standpoint that technology is always advancing—failure to simultaneously advance security and compliance measures will leave the country and the company vulnerable to attack.
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Krieger, Steven A. "Why Our Justice System Convicts Innocent People, and the Challenges Faced by Innocence Projects Trying to Exonerate Them." New Criminal Law Review 14, no. 3 (2011): 333–402. http://dx.doi.org/10.1525/nclr.2011.14.3.333.
Full textAbstract:
Despite the prominence and success of the over sixty innocence projects in the United States, there is almost no empirical literature discussing how these organizations operate, what resources or factors contribute to their success, and what challenges they must overcome. This article is a foundational step to fill this void. Following a brief introduction, Part I of the article surveys the reasons why innocent individuals get convicted, including: inaccuracy of eyewitnesses, perjured testimony, availability of DNA testing, accuracy of DNA testing and scientific evidence, prosecutorial misconduct, ineffective defense representation, ineffective capital representation, police misconduct: false confessions, and pretrial criminal procedure processes. Part II reviews the institutional development of innocence projects. Part III, based on unprecedented empirical research, analyzes the resources and factors that contribute to an innocence project's success to determine if a relationship exists between particular factors and an increase in exonerations when compared to other innocence projects. The factors discussed are: finances, staff and volunteers, time distribution per task, age of the innocence project, number of cases seriously reviewed, and state characteristics. The results found a "sweet spot" for each characteristic or resource evaluated, which demonstrated two conclusions: (1) a medium level of resources can achieve success equal to or greater than the success of projects with more resources; and (2) increasing the resources beyond the sweet spot did not necessarily correlate to greater success for the particular innocence project. This part also discusses the issues that innocence projects must overcome to free their clients. Part IV provides modest recommendations for improvements—even though the innocence projects have been exceedingly successful despite their lack of resources.
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Wahab Aznul Hidaya. "The Role of Witness and Victim Protection Agency for Imekko Tribe in Criminal Justice System in Sorong." Law and Justice 8, no. 2 (December 31, 2023): 176–91. http://dx.doi.org/10.23917/laj.v8i2.2363.
Full textAbstract:
Keterangan saksi merupakan salah satu alat bukti yang sah dan sangat penting dalam setiap perkara pidana. Pentingnya hal tersebut dapat dilihat dari banyaknya kasus yang tidak dapat diselesaikan karena kurangnya alat bukti, terutama keterangan saksi. Ancaman kekerasan dan intimidasi yang sering diterima oleh saksi dan korban menjadi alasan utama mengapa banyak dari mereka yang tidak mau terlibat langsung dalam memberikan keterangan atas tindak pidana yang terjadi. Penelitian ini menggunakan metode yuridis empiris dengan teknik pengumpulan data melalui wawancara dan studi kepustakaan. Penelitian ini menyimpulkan bahwa implementasi kebijakan perlindungan saksi dan korban diawali dengan pemberlakuan Undang-Undang Nomor 31 Tahun 2014 tentang Perlindungan Saksi dan Korban. Dalam implementasinya, kebijakan perlindungan saksi dan korban di Indonesia didasarkan pada konsep perlindungan hukum terhadap saksi di Amerika Serikat sebagai model acuan. Meskipun telah ada regulasi yang mengatur tata cara pengajuan perlindungan saksi dan korban, namun masih terdapat beberapa kendala dalam perlindungan saksi dan korban. Beberapa kendala tersebut antara lain adalah posisi Lembaga Perlindungan Saksi dan Korban (LPSK) yang masih berpusat di ibu kota, sehingga akses dan pelayanan terhadap saksi dan korban di daerah terkadang kurang maksimal. Translated with DeepL.com (free version)Witness statement is one of the legal evidence and is very important in every criminal case. Its importance can be seen from the number of cases that cannot be resolved due to lack of evidence, especially witness statement. Threats of violence and intimidation that are often received by witnesses and victims are the main reasons why many of them do not want to be directly involved in providing testimony on criminal acts that occur. This research uses empirical juridicial method with data collection techniques through interviews and literature studies. The research concluded that the implementation of witness and victim protection policy begins with the implementation of Law No. 31/2014 on Witness and Victim Protection. In its implementation, witness and victim protection policy in Indonesia is based on the concept of legal protection of witnesses in the United States as a model of reference. Although there are regulations governing the procedures for applying for witness and victim protection, there are still several obstacles to witness and victim protection. Some of these obstacles include the position of the Witness and Victim Protection Agency (LPSK) which is still centered in the capital city, so that access and services for witnesses and victims in the regions are sometimes less than optimal.
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Kozar, Yurii. "ETHICS OF PUBLIC OFFICER AS A MEANS OF ANTI-CORRUPTION." Law Journal of Donbass 77, no. 4 (2021): 127–33. http://dx.doi.org/10.32366/2523-4269-2021-77-4-127-133.
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The article analyzes the concept of corruption, which is contained in the legislation of Ukraine, substantiates the inexpediency of considering this concept in the narrow sense, that is in the exclusively criminal law, and suggests ways to improve it. It is noted that the proposed methods should be based on international experience. It is analyzed what forms of illegal acts are included in the concept of corruption and it is proposed to expand this list by including such forms as "request to provide", "possession", "misuse" or "acquisition". It is indicated at what stages the control over observance of ethical requirements of behavior in the sphere of public administration of Ukraine should be carried out. The connection between the level of ethics of public officer and the level of corruption is substantiated. The article also analyzes the international law on corruption and the ethics of public officers. In particular, attention is paid to the Recommendations of the Council of Europe. It is noted which international anti-corruption instruments have been ratified by Ukraine. The article also deals with the activities of Ukraine in the Organization for Economic and Social Development. Attention is paid to the experience of other countries in anti-corruption, special attention is paid to the regulation of public officers’ ethics in these countries. The experience in anti-corruption in the least corrupt countries of the world, Denmark, New Zealand, and Finland, is described. The process of introducing programs to improve the level of ethics in the system of executive power in the United States is analyzed. The US legislation in this area is described. It is emphasized that in this country there are special procedures for resolving cases of ethical violations in the civil service and mechanisms for enforcement of rules governing ethical conduct, in particular through the activities of authorized bodies. The need to expand the scope of corruption to non-state institutions is substantiated.
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Indrawati, Nani. "Perlindungan Hukum Terhadap Partisipasi Masyarakat (Anti SLAPP) Dalam Penegakan Hukum Lingkungan Hidup di Indonesia." Media Iuris 5, no. 1 (February 18, 2022): 115. http://dx.doi.org/10.20473/mi.v5i1.33052.
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AbstractAnti SLAPP is a new terminology that was first recognized in the United States in 1996. Basically, Anti-SLAPP is a legal policy that provides legal protection for people who fight for the public interest’s purposes acknowledged in constitutional and statutory provisions. In Indonesia, the provisions which are similar to Anti-SLAPP in the environmental area (anti-eco SLAPP) is included in Article 66 of the Law on Environmental Protection and Management (LEPM) which intends to protect environmental defenders from criminal charges and lawsuits for exposing environmental rights violation. Law enforcers, especially judges, are still having difficulty in detecting cases that are indicated as SLAPP and stop the case to continue in the early stage. Article 66 of the LEPM are a symbol of legal protection, as well as a manifestation of the accommodative attitude of the LEPM towards the importance of environmental public participation including protecting individuals and groups who fight for the environmental rights against criminal charges and civil litigation. The lack of provisions on the procedures and mechanisms of the Anti-SLAPP makes it difficult to implement Article 66 of the LEPM. Consequently, law enforcers particularly court judges apply and interpret Article 66 of LEPM is not in line with the original intention of Anti SLAPP’s provision.Keywords: Anti-SLAPP; Public Participation; Environmental Law Enforcement.AbstrakAnti-SLAPP merupakan terminologi baru yang dikenal pertama kali di Amerika Serikat pada tahun 1996. Pada intinya Anti-SLAPP adalah ketentuan yang memberikan perlindungan hukum terhadap masyarakat yang memperjuangkan kepentingan publik yang diakui dalam konstitusi dan perundang-undangan. Di Indonesia, ketentuan serupa dengan Anti-SLAPP dibidang lingkungan hidup (anti-eco SLAPP) termuat dalam Pasal 66 Undang-Undang tentang Perlindungan dan Pengelolaan Lingkungan Hidup (UU PPLH) yang dimaksudkan untuk melindungi para pembela lingkungan hidup dari tuntutan pidana dan gugatan perdata karena mengungkap pelanggaran hak atas lingkungan hidup. Para penegak hukum khususnya hakim masih mengalami kesulitan mendeteksi kasus yang terindikasi SLAPP dan menghentikan kasus pada tahap awal. Ketentuan Pasal 66 UU PPLH merupakan simbol perlindungan hukum, sekaligus sebagai wujud dari sikap akomodatif UU PPLH terhadap pentingnya peran serta masyarakat, termasuk melindungi individu dan kelompok masyarakat yang memperjuangkan hak atas lingkungan hidup dari tuntutan pidana dan gugatan perdata. Ketiadaan ketentuan tentang prosedur dan mekanisme Anti-SLAPP menyulitkan implementasi Pasal 66 UU PPLH. Akibatnya, para penegak hukum khususnya hakim dalam menerapkan dan menafsirkan Pasal 66 UU PPLH berbeda dengan tujuan awal ketentuan Anti SLAPP. Kata Kunci: Anti-SLAPP; Partisipasi Masyarakat; Penegakan Hukum Lingkungan Hidup.
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Pemberton, Daeja. "United States v. Lozoya." Texas A&M Law Review 8, no. 4 (July 2020): 1–8. http://dx.doi.org/10.37419/lr.v8.arg.1.
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The U.S. Constitution protects one’s right to a fair trial in a proper venue. Typically, venue is proper in whatever territorial jurisdiction a defendant commits an offense. But this rule is not as clear-cut when the offense takes place in a special jurisdiction, such as American airspace. A court must then determine whether the offense continued into the venue of arrival, making it proper under the Constitution. This issue was reexamined when Monique Lozoya assaulted another passenger on an airplane during a domestic flight. In United States v. Lozoya, the Ninth Circuit Court of Appeals failed to correctly identify the assault as a “continuing offense” and in doing so risked harming the criminal procedure process for prosecutors and offenders alike.
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Dragojlović, Joko, and Nemanja Filipović. "Undercover Investigator in Legislation of the United States and the United Kingdom." Kultura polisa 19, no. 1 (April 14, 2022): 62–78. http://dx.doi.org/10.51738/kpolisa2022.19.1r.4df.
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In this day and age, one of the specific ways of responding to organized crime is covert operations which, as a measure of an undercover investigation, are a very important form of legal and criminalistic actions. The most efficient tactic of covert operations is deploying an undercover investigator. The success of undercover agent missions is reliant on meticulous planning of every stage of the investigation, in this way the actions of undercover agents can prevent the future criminal activity of suspects and members of criminal organizations. The research subject of this paper encompasses the criminal procedure analysis of an undercover investigator in the legislation of the United States of America and the United Kingdom. This paper aims to compare the legal framework of commissioning an undercover investigator in two compatible legal systems to identify the elements that differentiate between these models and the legal solution in the Republic of Serbia. In the conclusion, we highlight the advantages and disadvantages of the observed differences.
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Anderson, Reyn C., and John S. Magney. "Recent Developments in Criminal Enforcement of US Antitrust Laws." World Competition 27, Issue 1 (March 1, 2004): 101–6. http://dx.doi.org/10.54648/woco2004007.
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The United States Department of Justice (``DOJ'') continues its aggressive pursuit of International Cartels. In addition to obtaining record levels of fines for corporations convicted of price fixing, the DOJ continues to seek more jail time for individual defendants found guilty of these crimes. The DOJ supports legislation now before Congress that would significantly increase penalties for both corporations and individuals convicted of antitrust violations. Increasingly, many of the individuals serving time in US prisons for antitrust crimes are foreign nationals not just US citizens. The threat of extradition to the United States on the basis of cartel behaviour looms ever larger. Recently, the DOJ has been aggressively placing foreign nationals that have been indicted in the United States on price fixing charges on Interpol's ``Red Notice'' list, subjecting them to possible arrest and detention by local officials as they enter or exit countries outside the United States. The DOJ has been using this procedure even where extradition to the United States on the basis of an antitrust offense would appear unattainable for lack of treaty support. Apparently in an increased spirit of cooperation with US cartel enforcement efforts, some countries have thus far acceded to this procedure nonetheless, providing substantial harassment impact. Whether this cooperation will continue or not remains to be seen.
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Bagaskoro, Ladito. "REKONSEPTUALISASI JALUR KHUSUS DALAM RANCANGAN KUHAP SEBAGAI BENTUK REFORMASI SISTEM PERADILAN PIDANA INDONESIA." Arena Hukum 14, no. 1 (April 30, 2021): 193–209. http://dx.doi.org/10.21776/ub.arenahukum.2021.01401.10.
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Abstract The significant increase in the pile of case files between 2016 and 2019 led to the need for concepts or methods that can create judicial efficiency. In the spirit of reforming the Criminal Procedure Code, the drafting team of the Criminal Procedure Code tries to include procedures aimed at shortening and expediting procedural procedures through the existence of a special pathway in Indonesian criminal procedural law in the future, which is inspired by the concept of plea-bargaining in the United States and Britain. This normative research uses conceptual and comparative law. The result shows that a special line was given to the defendant who admitted to the criminal act charged making the trial hearing shorter. Second, there are several fundamental differences between the special lines in the Draft Criminal Procedure Code and plea bargaining in the United States, especially in the agreement between the defendant or legal adviser and the public prosecutor, the process for confessing the accused, the criminal acts included, and the position of the judge in their respective processes.
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Bespalko, I. L., and V. V. Vapniarchuk. "Features of the process of evidence in criminal procedure of the United States of America." Uzhhorod National University Herald. Series: Law 3, no. 81 (April 19, 2024): 39–49. http://dx.doi.org/10.24144/2307-3322.2024.81.3.4.
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Recent years have been marked by a great growth of comparative legal research in various branches of legal science, which are gaining a growing number of supporters. The given process makes it possible to show the originality of certain branches of law, their institutions, norms in different legal systems, to compare the data of a specific branch of law with similar branches in other legal systems, and to reveal national differences. The practical significance of the given activity lies in the study and generalization of both positive and negative legal experience of foreign countries. In today’s transparent world, with the growing importance of the international component in the fight against crime, a legal expert needs knowledge that goes beyond the national legal field for a reason, with the purpose of its proper use in the process of international cooperation in criminal proceedings between states in particular.
Nowadays there is the process of convergence of various criminal procedural systems of the world. And in this regard, the Anglo-American system of the criminal procedure, the United States of America (hereinafter the USA) in particular, is quite interesting. The given system has distinctive features that are different from the national system and deserve attention. They are the sources of the US criminal procedural law which include judicial precedent, regulations and legal doctrine. The peculiarity of the given system is that it is based on adversarial proceedings and justice, it generates phenomena of the criminal procedure, namely the plea agreement, the jury trial, the concept of restorative justice, the discretionary powers of persons conducting criminal proceedings, etc. Yet another characteristic feature of the Anglo-American system of the US criminal procedure is the specifics of the implementation of evidentiary criminal procedural activity.
The focus of the given article is on the study of the specificity of evidentiary activity, such as questions related to: the concept, classification, sources and properties of evidence in the criminal procedure of the United States of America, the peculiarities of the process of evidence at certain stages of the procedure, the legal position of certain subjects of evidence. The materials of the article are of both theoretical and practical value. They can be used for further scientific research on the peculiarities of national criminal procedural evidence, as well as for the proper understanding and implementation of its law enforcement criminal procedural activity.
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Mikić, Vladimir. "Criminal responsibility of the President of the United States of America." Nauka, bezbednost, policija, no. 00 (2024): 16. http://dx.doi.org/10.5937/nabepo29-47993.
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Observed from a wider historical perspective, the most recent period of the constitutional life of the United States of America risks to be remembered as the one during which the presidential impeachment procedure was used incomparably more often than ever before. This sometimes attracts particular attention to the topic of criminal responsibility of the President, on which the Constitution itself remains silent. At the same time, legislation and jurisprudence seem to have been shying away from addressing this important and rather actual issue. The question whether the presidential immunity protects a sitting or a former president from arrest, trial, or punishment for deeds committed during the presidential term of office thus represents a particularly complex legal puzzler. This is particularly the case since the traditional checks-and-balances system appears to be displaying signs of weakness due to an overtly politicized procedure, notably in the absence of firm legal guidelines or clear theoretical perspectives.
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Lozanova, Ina. "If crime novels were actual criminal cases." Law Journal of New Bulgarian University 16, no. 3 (August 1, 2021): 24–29. http://dx.doi.org/10.33919/ljnbu.20.3.2.
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The current article aims to present a hypothetical review of some legal omissions in selected, reader-favorite crime novels. The material is based on legal principles which are common to states governed by the rule of law, and it would be useful to students of law and other academic courses. The presented cases in works of fiction have been analyzed from the standpoint of the acting Bulgarian penal law and Criminal Procedure Code.
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Hong, Tae-Seok. "Criteria for Judgment of Negligence in Medical Accidents and Countermeasures: Reference to the cases of Japan and the United States." Wonkwang University Legal Research Institute 29 (June 30, 2023): 51–85. http://dx.doi.org/10.22397/bml.2022.29.51.
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Medical accidents are occurring frequently. This is a problem of negligence and there are many difficulties in proving it. Medical accidents are related to negligence offenders, and in some cases, the sentence is lighter than intentional offenders or there are no regulations at all. For such medical accidents, the victim or the victim's family may suffer damage that they do not need to suffer, which may not only be mentally difficult, but also difficult to prove. On the other hand, from the standpoint of medical staff, if criminal punishment for medical accidents is strengthened, it is not easy to strengthen criminal punishment as it can be passively treated.
In recent years, a series of serious medical negligence cases have led to a lot of discussions on the prevention of this and criminal responsibility for medical personnel, and cases of medical negligence are often leading to criminal cases.
In recent years, it is pointed out that even if criminal responsibility is removed for medical negligence, the prevention effect of medical accidents does not improve the quality of medical care, and for example, it does not function as a normal medical system by reducing emergency medical care and passing on patients.
Meanwhile, medical malpractice cases in the United States are often not subject to criminal punishment. However, even in the United States, criminal prosecutions for medical negligence have not been carried out at all, and in particular, medical negligence cases seem to be on the rise recently. Although the number of medical malpractice cases has been on the rise since the 1980s, it seems to be quite small compared to Japan. However, in the United States, in addition to the punishment for medical negligence, there are various systems including sanctions, which cannot be simply compared with Japan.
As mentioned above there are many cases of medical negligence, but an in-depth discussion is needed on the issue of criminal responsibility for this. Since the U.S. and Japan also have different systems of negligence, it is thought that it will be meaningful to review the criteria for judging medical negligence and countermeasures. Therefore, in this paper we reviewed what the criteria for judging negligence in the United States and Japan are and how they respond to medical negligence.
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Friedland, Martin L., and Kent Roach. "Borderline Justice: Choosing Juries in the Two Niagaras." Israel Law Review 31, no. 1-3 (1997): 120–58. http://dx.doi.org/10.1017/s0021223700015260.
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This paper examines the use of juries in criminal cases in Canada and the United States. It is part of a larger study of the administration of criminal justice in Niagara County, Ontario and Niagara County, New York. The basic question examined is why persons accused of serious crimes in the United States usually select a jury, whereas persons in similar circumstances in Canada normally select trial by a judge alone. An investigation of this question will enable us to see some significant differences between the administration of criminal justice in the United States and Canada. It will also show how changes in specific procedural rules may affect other practices. There is a complex interplay between procedural rules. The paper concludes by showing that the widespread use of juries in the United States is consistent with the more populist grass-roots approach in American society which tends to distrust government, compared with the traditional respect for authority, including the authority of judges, in Canada.