Journal articles on the topic 'Right of Pardon'
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Aurelio, David N., and Todd M. Newman. "Pardon My Right Turn." Ergonomics in Design: The Quarterly of Human Factors Applications 5, no. 2 (April 1997): 24–27. http://dx.doi.org/10.1177/106480469700500205.
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Monballyu, J. "The political responsibility for Royal pardons in Belgium during the 19th century (1830–1900)." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 75, no. 2 (2007): 153–78. http://dx.doi.org/10.1163/157181907781352582.
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AbstractIn Belgium, the Royal Prerogative of pardoning convicted criminals was legally embedded in the Constitution of 14th February, 1831. It allowed the King to reduce a sentence or to grant a discharge of a sentence given by a court. Any Royal decision to pardon had, however, to be countersigned by a member of the Government, who took on the political responsibility of the decision towards Parliament. In most cases, the task fell upon the Minister of Justice. During the 19th century, in both Houses of the Belgian Parliament, the Minister of Justice was repeatedly questioned about the way the prerogative of pardoning was exercised. This usually occurred when a death sentence had been commuted to a lesser sentence. In such cases, members of the Chamber of Representatives or of the Senate would ask for an explicit justification of a particular pardon. Only exceptionally would a Government Minister be challenged about the legality of a decision either granting or refusing a pardon. Because of the constitutional convention which prevents exposing directly the political position of the King, Jules d'Anethan (Minister of Justice 1843–1847) defended the Minister's right to refuse to give any reasons for a decision regarding a pardon. He only acknowledged Parliament's right to question a Minister about his general policy on pardons. In his view, it was not within Parliament's powers to ask a Minister of Justice why a pardon had been granted or refused in a specific case. That view tended to limit considerably a Minister's responsibility for Royal pardons: it became no more than an empty shell. Another Minister of Justice, Théophile De Lantsheere (1871–1878), took an opposite view. He refused to state his general policy on pardons, but he accepted to explain the specific reasons why a Royal decision granting or refusing a pardon had been made. In his view, a pardon was in the first place a matter for the Minister's conscience. Parliament was therefore entitled to assess his particular actions. However, in the line of his predecessors' and successors' view, he believed that the reasons why the King had insisted on a pardon or refused to grant a pardon should not be mentioned to Parliament. Pardon was an issue between King and Government, not between King and Parliament. As the saying goes in Belgian constitutional law: The Crown should never be laid 'bare'.
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Kruszyński, Piotr. "Instytucja prawa łaski – de lege lata i de lege ferenda." Przegląd Sejmowy 2(169) (2022): 109–25. http://dx.doi.org/10.31268/ps.2022.101.
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The article is devoted to the subject of the right of pardon in the Polish legal system. The study depicts the essence of the right of pardon and answers the question whether this right, as expressed in Article 139 of the Constitution of the Republic of Poland, can be realised only within the scope defined in Chapter 59 of the Code of Criminal Procedure, entitled “Clemency,” or if the term “right of pardon” has a wider meaning than “clemency,” e.g., so as to permit application by the President of the Republic of Poland, at every stage of the proceedings, of so called individual right of pardon. Moreover, the article discusses the latest case-law of the Supreme Court and the Constitutional Tribunal on the right of pardon and formulates a number of postulates de lege ferenda regarding the analysed question.
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Zilya Lirungan, Cheryll, Supriyadi, and Susianto. "Legal Politics of the President's Grant of Lesion Basedon the Perspective of Justice and Humanity in the Indonesian Judicial System." International Journal of Research in Social Science and Humanities 05, no. 05 (2024): 42–47. http://dx.doi.org/10.47505/ijrss.2024.5.4.
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This research aims to explore and understand the legal politics behind granting a Pardon by the President of Indonesia in the justice system and the factors influencing the decision to grant a Pardon. The research method used is normative legal research, which focuses on positive legal analysis, legal principles, and legal doctrine. The approach usedincludes a statutory approach to analyze related regulations and a conceptual approach. The research results show thatGranting a Pardon by the President is a constitutional right that the President has without interference from other institutions. After the amendment to the 1945 Constitution of the Republic of IndonesiafourthSometimes there are restrictions on the President's powers, which are considered too broad, and to prevent authoritarianism from the President. In line with these changes, especially in granting pardons, the President must pay attention to the considerations of the Supreme Court. This is not an intervention by the President in the Judiciary institution. However, with a checks and balances mechanism, the President has the basis for consideration from the institution concerned even though the decision to grant it is purely based on the President's constitutional rights
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Bartula, Piotr. "„Testamentowa” „teoria” sprawiedliwości." Annales. Etyka w Życiu Gospodarczym 12, no. 2 (May 15, 2009): 195. http://dx.doi.org/10.18778/1899-2226.12.2.18.
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Important problems of justice are raised by a project according to which the sovereign gives to victims the right to pardon a wrongdoer orally or in a testament. The author supports such an individualization of the right to pardon, which would turn the state into a contractor who is hired by citizens exclusively to guarantee them security and self-possession.
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Borovykh, L. V., and E. A. Solovyova. "ON CERTAIN ISSUES OF THE APPLICATION OF PARDONS INTHETERRITORIES OF THE CONSTITUENT ENTITIES OFTHERUSSIAN FEDERATION." Ex jure, no. 4 (2022): 118–33. http://dx.doi.org/10.17072/2619-0648-2022-4-118-133.
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Abstract: the purpose of the article is to analyse existing problems with legal regu‐ lation of pardon and to propose ways of improving certain legal acts re‐ lating to the exercise of convict's right to apply for a pardon to the Presi‐ dent of the Russian Federation. It has been found that the existing acts regulating the application for pardon by a convicted person require modernisation, in particular a detailed specification of the procedure for applying for a pardon by military personnel, setting a deadline for re‐ view by the President of the Russian Federation of the convicted person's request for pardon, and others.
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Arifi, Besa. "THE LEGAL REASONING OF THE PRESIDENT’S RIGHT TO ISSUE PARDONS." SEEU Review 12, no. 2 (December 20, 2017): 32–61. http://dx.doi.org/10.1515/seeur-2017-0017.
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Abstract Presidential pardon has always existed in criminal law and continues to constitute a very important competence of the head of state in many modern day countries. In the past, the clemency given by the sovereign (usually the king/queen or the emperor/empress) represented an act which showed his/her mercy upon their subjects. It was often used as a tool to show the arbitrary will of the sovereign that constituted the law, rather than the law itself. Therefore, the classical school of criminal law that appeared in the 18th century and emphasized the importance of the principle of legality, opposed harshly every kind of arbitrary deciding that excluded the law at the interest of the sovereign. This school is among the only interpretations of criminal law that engages for a complete abandonment of institutes such as pardon or amnesty. The revolutionary French Penal Code of 1791, which was strongly influenced by the classical school, excluded clemency for the proved wrongs that were severely punished. However, due to imperfections of the criminal justice system, amnesty (given by the parliament) and pardon or clemency (given by the head of the state), continue to exist and to be used in modern day criminal law. They are no longer considered acts of arbitrary decisions of the sovereign, instead they should represent important instruments of criminal law, used rarely and wisely with specifically designed goals that aim to bring justice rather than deny it. However, there are many cases when these institutes have been inappropriately used in a very arrogant way which shows that the ancient regime is not yet over for some countries in which the highest institutions continue to act as old and middle age despots. This article will analyze the legal reasoning of the institution of presidential pardon. It will try to establish why the classical school was so strictly opposed to this institute making use of the studies and interpretations found in the writings of Cesare Beccaria. It will explain the philosophy of modern day institutions of amnesty and pardon and the way in which they are regulated in the legal theory and practice. The article will explain the recent developments in Macedonia in regard to the use of presidential pardon. The methods to be used consist of desk research, historical and comparative methods and analysis of legal texts, laws and judicial decisions.
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Krushnitska, Oksana. "Some Problems of Free Legal Aid in Criminal Proceedings." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 332–36. http://dx.doi.org/10.36695/2219-5521.1.2020.66.
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The article deals with some problems of providing free legal aid in criminal proceedings.
It has been identified and shown that the main prerequisite for ensuring the right of a person to legal aid can be considered to be the creation of reliable legal and organizational grounds for its actual provision.
It is proved that the correspondence of a prisoner sentenced to imprisonment with the centers of free legal aid is, firstly, subject to review by the administration of the penitentiary institution, secondly, such letters will not necessarily be sent as a whole, and thirdly if such letters are sent wherever possible and there is no legal deadline for sending them.
Some issues are outlined, such as the right to receive legal aid in a timely and effective manner to prisoners in prison. Alternatively, the right to amnesty, the right to pardon, and the right to review a judgment in newly discovered or exceptional circumstances, and other rights and freedoms that are not necessarily related to giving a person access to justice may be violated or inaccessible to the sentenced person.
Therefore, the right to receive legal aid in a timely and effective manner to prisoners in prison may be violated. Alternatively, the right to amnesty, the right to pardon, and the right to review a judgment in newly discovered or exceptional circumstances, and other rights and freedoms that are not necessarily related to giving a person access to justice may be violated or inaccessible to the sentenced person.
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Śliwiński, Emil. "Pojęcie odpowiedzialności represyjnej (art. 42 Konstytucji) a prawo łaski Prezydenta RP." Przegląd Prawa Konstytucyjnego 69, no. 5 (October 31, 2022): 115–25. http://dx.doi.org/10.15804/ppk.2022.05.09.
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The aim of this article is to discover in relation to which sanction it is possible to exercise the right of pardon (art. 139 of the Constitution). Basing on the systemic interpretation of the Constitution, the author argues that the power of pardon is the ‘reverse’ of the notion of repressive liability inferred from art. 42 of the Constitution. Consequently, in relation to all repressive sanctions within the meaning of art. 42 of the Constitution it is allowed to grant a pardon. Therefore it is possible to claim that a power of pardon can be applied to, inter alia, disciplinary penalties, lustration penalties, administrative monetary penalties, tax surcharges and penalties imposed on collective entities. Challenges for the doctrine of law – including possible collisions between exercising power of pardon and other constitutional provisions – are indicated.
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Hilliard, Marie. "The Gift of the Apostolic Pardon." Ethics & Medics 45, no. 8 (2020): 3–6. http://dx.doi.org/10.5840/em20204584.
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Meeting the right of the faithful to receive the sacraments can be difficult, especially during the COVID-19 pandemic. The Church needs opportunities to minister to the faithful, especial when there is a danger of death. Remission of sins is of vital importance in these cases. To gain a plenary indulgence, three specific conditions must be met: sacramental confession, Eucharistic communion, and prayer according to the Holy Father’s intentions. A special kind of plenary indulgence, the apostolic pardon, is administered to someone who is in danger of death. It is advantageous because it can be done without making physical contact with the sick or impaired, but also because in times of great need, an apostolic pardon can be prayed for in absence of a priest. Family members and health care professionals can help a patient pray for the apostolic pardon even if he or she is not fully conscious.
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Скопинцева, Валерия Викторовна, and Сергей Николаевич Пономарев. "On the issue of using the ratings of the implementation of the right to pardon to assess the activities of commissions on pardon issues in the territories of the constituent entities of the Russian Federation." Vedomosti (Knowledge) of the Penal System, no. 11(246) (December 3, 2022): 30–39. http://dx.doi.org/10.51522/2307-0382-2022-246-11-30-39.
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Настоящая статья посвящена вопросу построения региональных рейтингов реализации права на помилование как инструмента оценивания. Авторами рассматривается проблематика оценки и совершенствования деятельности комиссий по вопросам помилования на территориях субъектов Российской Федерации и обеспечения роста эффективности уголовного наказания. Использование рейтингового метода позволит правоприменителю более целенаправленно и эффективно использовать возможности института помилования. Актуальность избранной для исследования темы обусловлена правовой значимостью института помилования как конституционно гарантированного способа смягчения юридической участи лиц, привлеченных к уголовной ответственности и подвергнутых наказанию. Значимость повышения эффективности норм уголовного закона о наказании еще более актуализируется в условиях неблагоприятных изменений структуры и динамики преступности. Обновление уголовной политики требует совершенствования всего арсенала уголовно-правовых средств борьбы с преступностью. Предметом исследования выступила правоприменительная практика помилования с точки зрения оценки эффективности деятельности комиссий по вопросам помилования на территориях субъектов Российской Федерации. Цель проведенного исследования заключается в обосновании возможности использования рейтинговой системы для оценки эффективности реализации права на помилование. Для достижения поставленной цели решен ряд исследовательских задач, а именно: 1. Выявить и проанализировать важнейшие правоприменительные проблемы института помилования. 2. Провести анализ правоприменительной практики помилования с использованием построения региональных рейтингов реализации права на помилование. 3. Сформулировать практико-ориентированные рекомендации по использованию рейтингового метода для повышения эффективности деятельности комиссий по вопросам помилования на территориях субъектов Российской Федерации. Методологическую основу проводимого исследования составили общенаучные методы, а также сравнительный, сравнительно-правовой, логический, статистический методы. Результатом исследования явилось построение рейтинга реализации права на помилование по регионам и федеральным округам, анализ которого позволил оценить практику применения института помилования за период с 2012 по 2021 год. Рейтинг позволил выявить субъекты Российской Федерации, в которых степень эффективности деятельности комиссий по вопросам помилования может быть оценена как недостаточно высокая, что выступает основанием для принятия управленческих мер, направленных на улучшение ситуации. Научная новизна исследования обусловлена самостоятельным использованием системы рейтингования для оценки деятельности региональных комиссий по помилованию. Теоретическая значимость: предложенная новелла в виде использования системы рейтингования для оценки деятельности региональных комиссий по помилованию может стать основой для совершенствования механизма применения института помилования. Практическая значимость: выводы, полученные в статье, могут быть использованы в правоприменительной практике в сфере оценки эффективности деятельности комиссий по помилованию. This article is devoted to the issue of building regional ratings for the implementation of the right to pardon as an assessment tool. The authors consider the problems of assessing and improving the activities of pardon commissions in the territories of the constituent entities of the Russian Federation and ensuring the growth of the effectiveness of criminal punishment. The use of the rating method will allow the law enforcement officer to use the possibilities of the institution of pardon more purposefully and effectively . The relevance of the topic chosen for the study is due to the legal significance of the institution of pardon as a constitutionally guaranteed way to mitigate the legal fate of persons prosecuted and punished. The importance of increasing the effectiveness of the norms of the criminal law on punishment is even more relevant in the face of unfavorable changes in the structure and dynamics of crime. Renewal of criminal policy requires the improvement of the entire arsenal of criminal-legal means of combating crime. The subject of the study was the law enforcement practice of pardon in terms of assessing the effectiveness of the activities of pardon commissions in the territories of the constituent entities of the Russian Federation. The purpose of the study is to substantiate the possibility of using a rating system to assess the effectiveness of the implementation of the right to pardon. To achieve this goal, a number of research tasks have been solved, namely: 1. To identify and analyze the most important law enforcement problems of the institute of pardon. 2. To analyze the law enforcement practice of pardon using the construction of regional ratings for the implementation of the right to pardon. 3. To formulate practice-oriented recommendations on the use of the rating method to improve the efficiency of the pardon commissions in the territories of the constituent entities of the Russian Federation. General scientific methods, as well as comparative, comparative legal, logical, statistical methods made the methodological basis of the study. The result of the study was the construction of a rating of the exercise of the right to pardon by regions and federal districts, the analysis of which made it possible to evaluate the practice of applying the institute of pardon for the period from 2012 to 2021. The rating made it possible to identify the subjects of the Russian Federation, in which the degree of effectiveness of the pardon commissions can be assessed as insufficiently high, which is the basis for taking managerial measures aimed at improving the situation. The scientific novelty of the study is due to the independent use of the rating system to assess the activities of regional pardon commissions. Theoretical significance: the proposed novel in the form of using a rating system to assess the activities of regional pardon commissions can become the basis for improving the mechanism for applying the institute of pardon. Practical significance: the conclusions obtained in the article can be used in law enforcement practice in the field of assessing the effectiveness of the pardon commissions.
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Risal, Chaerul. "EKSISTENSI GRASI MENURUT PERSPEKTIF HUKUM PIDANA." Jurisprudentie : Jurusan Ilmu Hukum Fakultas Syariah dan Hukum 4, no. 2 (December 5, 2017): 96. http://dx.doi.org/10.24252/jurisprudentie.v4i2.4055.
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Pardon is a form of amnesty in the form of change, mitigation, abolition or elimination of criminal practice to the convict provided by the President. The powers of the President grant pardons related to criminal law in a subjective sense. The subjective criminal law discusses the right of the state to impose and execute the criminal. The right of such a state is a great state right, so it is necessary to find the basis of its foothold through the theory of punishment. The President in granting pardons should be based on the theory of punishment.Keywords: Grasi, Authority of the President Grasi merupakan suatu bentuk pengampunan berupa perubahan, peringanan, pengurangan, atau penghapusan pelaksanaan pidana kepada terpidana yang diberikan oleh Presiden. Kewenangan Presiden memberikan grasi terkait dengan hukum pidana dalam arti subyektif. Hukum pidana subyektif membahas mengenai hak negara untuk menjatuhkan dan menjalankan pidana. Hak negara yang demikian ini merupakan hak negara yang besar, sehingga perlu dicari dasar pijakannya melalui teori pemidanaan. Presiden dalam memberikan grasi harus didasarkan pada teori pemidanaan.Kata kunci : Grasi, Kewenangan Presiden
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Rodríguez Gómez, Edgardo. "Crónica de un indulto humanitario (con gracia presidencial) anunciado = Chronicle of a humanitarian pardon (with a right of grace) foretold." EUNOMÍA. Revista en Cultura de la Legalidad, no. 15 (October 1, 2018): 123. http://dx.doi.org/10.20318/eunomia.2018.4344.
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Resumen: El artículo analiza el proceso político y administrativo que condujo a la decisión del expresidente de la República del Perú, Pedro Pablo Kuczynski, de otorgar un indulto humanitario y una gracia presidencial a favor de Alberto Fujimori Fujimori, condenado por graves violaciones de derechos humanos cometidas al encabezar el Poder Ejecutivo peruano en los años noventa del siglo pasado. Se revelan los argumentos jurídicos y políticos planteados por exfuncionarios del Ministerio de Justicia y Derechos Humanos de ese país, que advirtieron a los altos cargos de esa entidad las consecuencias de adoptar esas medidas, consagrando así la impunidad.Palabras clave: Derechos Humanos, Perú, impunidad, indulto humanitario, gracia presidencial.Abstract: This article reviews the political and administrative process that ended with the humanitarian pardon and the right of grace signed by the former President of Peru, Pedro Pablo Kuczynski. His decision favoured Alberto Fujimori Fujimori, who was sentenced for grave human rights violations committed during his mandate as the head of the Peruvian government in 1990’s. Some legal and political arguments, held by high legal officers of the Ministry of Justice and Human Rights warning the top authorities about impunity guaranteed by this decision, are revealed.Keywords: Human Rights, Peru, impunity, humanitarian pardon, right of grace.
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Norton, Matthew. "The Persistence of Pardons and the End of Attainder." European Journal of Sociology 59, no. 1 (April 2018): 91–118. http://dx.doi.org/10.1017/s0003975618000061.
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AbstractPardons are a well-known form of lawful but extrajudicial power over criminal classifications. They are still in regular use in rule of law regimes around the world. Attainder is the less well-known power to condemn via a legislative rather than a judicial act. Despite their structural similarities, pardon and attainder have exhibited divergent trajectories. One is ubiquitous, the other extinct. Focusing on the divergent trajectories of pardon and attainder during the framing of the U.S. Constitution and thereafter, the article advances an explanation for these phenomena based on asymmetries in the relational facts linking pardon and attainder to other thick moral constructs that constituted the moral system of the framers and their successors. Those facts mattered in their own right, but it was in light of the matrix of founding era moral interpretations that the framers grasped and institutionalized their significance.
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Wallace, Tara Ghoshal. "‘This right of mercy’: The Royal Pardon in The Heart of Midlothian." Yearbook of English Studies 47, no. 1 (2017): 203–23. http://dx.doi.org/10.1353/yes.2017.0000.
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Drago, Francesco, Roberto Galbiati, and Francesco Sobbrio. "The Political Cost of Being Soft on Crime: Evidence from a Natural Experiment." Journal of the European Economic Association 18, no. 6 (November 14, 2019): 3305–36. http://dx.doi.org/10.1093/jeea/jvz063.
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Abstract This study analyzes voters’ response to criminal justice policies by exploiting a natural experiment. The 2006 Italian Collective Pardon Bill, designed and promoted by the incumbent center-left (CL) coalition, unexpectedly released about one-third of the prison population, creating idiosyncratic incentives to recidivate across pardoned individuals. Municipalities where resident pardoned individuals had a higher incentive to recidivate experienced a higher recidivism rate. We show that in those municipalities voters “punished” the CL coalition in the 2008 parliamentary elections. A one standard deviation increase in the incentive to recidivate—corresponding to an increase of recidivism of 15.9%—led to a 3.06% increase in the margin of victory of the center-right (CR) coalition in the post-pardon national elections (2008) relative to the last election before the pardon (2006). We also provide evidence of newspapers being more likely to report crime news involving pardoned individuals and of voters hardening their views on the incumbent national government’s ability to control crime. Our findings indicate that voters keep politicians accountable by conditioning their vote on the observed effects of public policies.
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Tara Ghoshal Wallace. "‘This right of mercy’: The Royal Pardon in The Heart of Midlothian." Yearbook of English Studies 47 (2017): 203. http://dx.doi.org/10.5699/yearenglstud.47.2017.0203.
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Cahyani, Indah Fitri, Uche Nnawulezi, and Ogah Chinyere Constance. "The Urgency of Legal Justice for Society Against the Expansion of the Authority of Judges From a Criminal Law Perspective." IJCLS (Indonesian Journal of Criminal Law Studies) 8, no. 1 (May 31, 2023): 37–56. http://dx.doi.org/10.15294/ijcls.v8i1.40402.
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Expansion of the authority of judges in the RKUHP is an interesting discussion where this is related to guaranteeing legal certainty for the community. The purpose of this research is to examine more deeply the impact of expanding the authority of judges in the RKUHP on legal certainty. The method used is a qualitative method. Then for this type of research using literature study by collecting journal articles related to the title being studied. The results of this study indicate that the expansion of authority in the form of judicial pardon is a means for realizing a balance between legal certainty and justice for the community, both of which are closely related to one another. In the RKUHP, the existence of the judge's pardon principle indicates a more flexible nature in criminal law. Unlike in the western Criminal Code which is more rigid. It is feared that this flexible nature will lead to more acts of fraud by law enforcers. In real terms, crime in Indonesia is increasingly modern. So that right now it really needs a legal system that is firm and able to provide legal certainty for its citizens. Studies related to the expansion of the judge's authority which are classified as increasingly flexible in the RKUHP are very important to do. Judicial Pardon is expected to be able to provide a balance between legal certainty and legal justice.
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NISTOR, IULIA ELENA. "Initiatives to revise the Romanian Constitution of 2019. Brief presentation of the Decisions of the Constitutional Court." Revista de Drept Constituțional, no. 1 (2020): 67–80. http://dx.doi.org/10.47743/rdc-2020-1-0005.
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The study presents the case law of the Constitutional Court in the matter of Romanian Constitutional revision with reference to the legislative proposals examined by the court of constitutional jurisdiction during 2019. We notice a preoccupation of the title holders of the right of legislative initiative in the field of combating corruption through various means. Thus, the authors of the legislative proposals wanted to regulate, at constitutional level, integrity conditions that would apply: to the candidates to be elected in the local public administration bodies, in the Chamber of Deputies, in the Senate and in the position of President of Romania and limit the possibility of regulating/granting collective amnesty and pardon and individual pardon for acts of corruption. At the same time, the purpose of initiating these legislative proposals concerns imposing a limit to regulations by means of emergency ordinances in the field of crimes, punishments and the regime of their enforcement.
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Dąbrowski, Marcin. "Glosa do postanowienia Trybunału Konstytucyjnego z 2 czerwca 2023 r. sygn. akt Kpt 1/17." Przegląd Prawa Konstytucyjnego 75, no. 5 (October 31, 2023): 369–79. http://dx.doi.org/10.15804/ppk.2023.05.26.
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The article refers to the judgment of the Tribunal Court of 2 June 2023, file ref. no. Kpt 1/17. In this jurisdiction, the Tribunal resolves a competence dispute between the Supreme Court and the President of the Republic. In the resolution of 31 May 2017 file ref. no. I KZP 4/17 the Supreme Court climes that The President is not supposed to apply the law of pardon to people, who are not finally sentenced. The Tribunal decides that the Supreme Court doesn’t have a competence, which allows controlling the President’s individual acts. The Author of the article criticizes the Tribunal’s judgment and climes that in this particular case there is no a competence dispute. The Tribunal intends to present formally binding interpretation of the article no 139 of the Constitution. Furthermore, the Supreme Court and common courts are entitled to control President’s applying the right of pardon during fulfilling their function of the administration of justice.
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Al-Luhaidan, Mohammed. "Lashing as a discretionary penalty and effect of its prevention." Journal of Umm Al-Qura University for Sharia'h Sciences and Islamic Studies, no. 90 (September 1, 2022): 129–47. http://dx.doi.org/10.54940/si75718405.
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The Resolution of the General Authority of the Supreme Court No.: 40 / M and dated 24/6/1441 AH was issued, which includes: The courts - in the context of lashing as a discretionary penalty – should impose only imprisonment or a fine or both, or an alternative punishment according to the regulations or decisions issued by the Guardian in this regard. And after this Resolution, problems occurred, namely; about the its legitimacy from the jurisprudential and legal aspect, as well as problems in the effects of its execution on the parties of the criminal action, and the entity of implementation of the penal provisions; therefore, there was a need to research this topic, which underlines its importance by the need to clarify the legal and regulatory rulings and the judicial consequences resulting from its execution, and I have followed the applied approach compared to jurisprudence and the Saudi Law, and reached a number of results, including: that there is no dispute among the jurisconsults on the legality of discretionary penalty, and their texts always stated that discretionary penalty does not need to be with lashing, and that the majority of scholars allow the Guardian to pardon discretionary penalty for the right of God Almighty, in a dispute among them regarding the Rule and Condition, and that they do not allow him to pardon the private right, etc.
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Sari, Asih Puspo. "Pemberian Grasi dan Maaf dalam Bingkai Kajian Teoritik Tindak Pidana Pembunuhan (Studi Komparatif Hukum Positif dan Hukum Islam)." Al-Ahkam Jurnal Ilmu Syari’ah dan Hukum 5, no. 1 (September 30, 2020): 73–90. http://dx.doi.org/10.22515/al-ahkam.v5i1.2474.
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Abstract In the Criminal Code there are several differences that are the reasons for the review of theories and the application of reasons for clemency or forgiveness. The theories that form the basis of forgiveness will lead to different views. In connection with sources of clemency (Positive Criminal Law) and forgiveness (Islamic Criminal Law) have differences. Where clemency is the prerogative of the president as the temporary head of state, forgiveness can only be given by the heirs of the victim as the party who lost the victim. This study aims to find out where the justice is if the granting of pardon/ apology is given by the president with only consideration from the Supreme Court. Meanwhile, in Islamic Law also regulates the apology for the perpetrators of the crime of murder which is the right of the heirs of the victim. This research is a qualitative research with the type of research used is library research. It is said as library research or document study because this research is mostly conducted on written regulations or other legal materials which are secondary in the library. Keyword: Pardon, Forgiveness, and Crime of Murder
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Golovinov, A. V., and Yu V. Golovinova. "“Complete Freedom with the Right to Stay Everywhere...”: The Life and Work of N. M. Yadrintsev in St. Petersburg in 1874–1876." Bulletin of Irkutsk State University. Series History 42 (2022): 67–76. http://dx.doi.org/10.26516/2222-9124.2022.42.67.
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The publication is devoted to the conceptualization of the biography of Nikolai Mikhailovich Yadrintsev in 1874–1875. during his stay in Petersburg. The chronological framework was not chosen by chance, since after receiving a pardon and moving to a reconciled capital, colossal changes took place in the fate of the Siberian regionalist. In general, guided mainly by sources of personal origin, it is shown that life in St. Petersburg for some two years presented N. M. Yadrintsev of the great significance of the event. From finding a faithful companion – a wife and a long-awaited meeting with a close friend, to public recognition and activation of public work against this background.
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Kamali, Mohammad Hashim. "Amnesty and Pardon in Islamic Law With Special Reference to Post-Conflict Justice." ICR Journal 6, no. 4 (October 15, 2015): 442–67. http://dx.doi.org/10.52282/icr.v6i4.297.
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The subject before us has acquired renewed significance in the aftermath of the September 2001 terrorist attacks, the tumult and violence that has been on the increase ever since, but also what followed the advent of the Arab Spring in many Muslim countries. Conflicts that engulf countries and communities rarely, if ever, end by clean endings. They leave behind a host of issues, including the urge to take revenge by the aggrieved parties - hence a vicious circle of violence follows. Post-conflict justice requires careful management, such that measure - for - measure justice may not be the right option in one’s quest to restore peace. The spirit of peace and willingness to give and take, admission of truth and forgiveness may be among the more effective means of healing and moving forward. What role, if any, is there in the midst of all this for Islam’s guidelines on repentance, amnesty and forgiveness is the main subject I address in the following pages. Amnesty, pardon and forgiveness are the means, in Islamic theology and law, as also in most other world traditions, of relieving someone from punishment, blame, civil liability or religious obligation. The same result is often achievable by recourse to certain other methods such as reconciliation, arbitration, and judicial order. This article focuses on an exposition of Islamic law provisions on amnesty (‘afwa). The fiqh positions explored here derive, for the most part, from the Qur’an (normative teaching), or Sunnah of the Prophet Muhammad, pbuh, and general consensus (ijma’) of scholars across the generations. Yet instances are found where fiqhi interpretations of the relevant scripture are reminiscent of historical settings and conditions of their time, which may, upon reflection, warrant further scrutiny and interpretation more in tune with the contemporary conditions of Muslims.
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Chernenko, Anatoliy, and Anatoliy Shyyan. "The right of prisoners sentenced to life imprisonment to parole from serving a sentence or to replace the unserved part of the sentence with a milder one and ensuring it in Ukraine." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 2, no. 2 (June 3, 2020): 168–75. http://dx.doi.org/10.31733/2078-3566-2020-2-168-175.
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The article examines the issues of ensuring the right of convicts to life imprisonment in Ukraine to parole from serving a sentence or replacing the unserved part of the sentence with a milder one. The norms of the Criminal Code, other legislative acts of Ukraine governing this issue, as well as the Regulation on the procedure for pardon approved by decree of the President of Ukraine No. 223/2015 of April 21, 2015 are analyzed. They are compared with international legal acts, in particular, the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, which governs the conditional release of life-sentenced prisoners or replaces the unserved part of the sentence with a milder one, as well as several decisions of the European Court of Human Rights regarding such issues. The inconsistency of Ukrainian legislation, the Regulation on the procedure for pardoning international law and the decisions of the ECHR is shown. Particular attention is paid to the decision of the ECHR in the case of “Roosters v. Ukraine” of March 12, 2019, as well as future decisions of the Constitutional Court of Ukraine and the Supreme Court, which are currently considering this issue. Considering the provisions expressed by the ECHR in this case, it is concluded that the current mechanism for such exemption does not comply with international standards and this entails the need to consolidate the relevant legal norms in Ukrainian legislation. The problematic aspects of the implementation of such a right are analyzed, some suggestions are made for their solution.
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RIABUSHCHENKO, Danylo. "Formation and implementation of the "right to hope" concept on the national level." Economics. Finances. Law 12/1, no. - (December 27, 2022): 25–31. http://dx.doi.org/10.37634/efp.2022.12(1).6.
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The paper describes the elements that implement and condition the "right to hope", but are the object of violation at the national level. First of all, the importance of the "right to hope" of a person imprisoned for life is emphasized, in terms of the fundamental human value – the dignity of the person. The historical retrospective of the origin of the measure of punishment in the form of life imprisonment is outlined. The interpretation of the "right to hope" in the context of Article 3 of the ECHR and the practice of the ECHR was carried out. In addition, the violation of the "right to hope" in the aspect of the lack of the right itself for a person imprisoned for life was considered. The importance of compliance with the full implementation of punishment, in the sense of correction of the convicted person, is noted, which determines the formation of the "right to hope". Attention is focused on the available mechanisms for releasing a person from serving a sentence of life imprisonment. The institution of pardon by the President of Ukraine was studied in the context of the release of persons sentenced to life terms. The compliance of this mechanism with Article 3 of the ECHR was also analyzed through the prism of the practice of the ECHR. Reports of the European Committee for the Prevention of Torture, Recommendations of the Committee of Ministers of the Council of Europe to member states were additionally analyzed. The ECHR's practice has been elaborated on parole and early release of life prisoners. The main legal positions of the Court are highlighted, in the context of the possibility of a life prisoner to be released on parole. In particular, the case "Petukhov v. Ukraine" was considered and the main remarks and instructions of the Court regarding the national mechanism for the implementation of the "right to hope" were examined. The Laws "On Amendments to Certain Legislative Acts Regarding the Implementation of Decisions of the European Court of Human Rights" No. 2689-IX dated 18.20.2022 and "On Amendments to the Code of Ukraine on Administrative Offenses, the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine regarding implementation of decisions of the European Court of Human Rights" dated 18.10.2022 No. 2690-IX, which were developed back in 2020 as a normative reaction to the decision of the ECHR "Petukhov v. Ukraine".
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Krawczyk, Przemysław. "Przyjęcie do wykonania kary orzeczonej przez sądy państwa obcego a prawo łaski." Problemy Prawa Karnego 5, no. 1 (May 6, 2021): 1–24. http://dx.doi.org/10.31261/ppk.2021.05.08.
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In this paper the author considers the connotations between the presidential pardon applied under the Constitution of the Republic of Poland and the judgments of foreign courts sensu largo. This article deals with issues that are on the borderline between constitutional law, criminal law (substantive and procedural) and international law, both public and criminal. The analysis of literature and jurisprudence in this respect allows the author to conclude that the right of grace is significantly limited by international law, due to the international agreements and art. 9 of the Polish Constitution. The author argues that the acceptance of a punishment to be enforced (ordered by a foreign court) excludes the possibility of applying presidential law of clemency to the perpetrator, unless an international agreement (or custom) provides otherwise.
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Farber, Shai, and Nethanel Benichou. "Between Victims of Crime and Victims of Terrorism." New Criminal Law Review 24, no. 4 (2021): 568–600. http://dx.doi.org/10.1525/nclr.2021.24.4.568.
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In June 2018, a new Reform came into effect in the Judea and Samaria Area (the West Bank; hereinafter “the Area”). For the first time, victims of terror activity that was adjudicated in military courts in the Area, acting under international law, were given statutory rights. These victims were awarded new procedural rights, including the right to receive information regarding the proceedings against the defendant, updates regarding plea bargains, release from prison, and pardon. The rights that crime victims are now entitled to, following the Reform, will allow them to state their opinion on and take part in the proceeding, though not entirely so. The article describes the new Reform regarding victims of terrorism in the Area. It explains the legal, international, and social factors that were at the basis of the Reform. It portrays how these changes are compliant with principles of international law and of foreign legal systems relating to enhancing the protection of crime victims. The article then explores the normative changes expected as a result of the Reform and performs a preliminary evaluation of future developments resulting from its application, de facto. Simultaneously, the article poses criticism to certain aspects of the Reform, such as regarding the enforcement of compensation awarded to victims of terrorism in the Area, and offers suggestions for improvement.
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Čoh Kladnik, Mateja. "Sodišče slovenske narodne časti v Novem mestu." Dileme : razprave o vprašanjih sodobne slovenske zgodovine 7, no. 1 (June 2023): 79–121. http://dx.doi.org/10.55692/d.18564.23.3.
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The Court of Slovenian National Honour was established in early June 1945. Until the end of August 1945, it tried those who had (allegedly) collaborated with the occupying forces during the war in any way. Senates consisting of five members held sessions in Ljubljana, Kranj, Novo Mesto, Celje, Maribor, Ptuj and Murska Sobota. In Novo Mesto, the first trial took place on 10 July, but the court ceased to operate as early as 14 July due to the dissatisfaction of the district committee of the Communist Party with the work of the jurist judges. The court treated the acts allegedly perpetrated by the accused very leniently and imposed fairly mild penalties. In nine trials, it sentenced 34 persons to the loss of national honour, 22 persons to light forced labour and six persons to a partial confiscation of property. After the court was abolished and a pardon was declared, the convicted were fully excused of forced labour. The legal implications of the penalty of the loss of national honour were limited to losing political and civil rights, including the right to vote. The penalty of property confiscation remained in effect.
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Kryklyvets, Dmytro Ye, Yuliia V. Kerniakevych-Tanasiichuk, Yuliia O. Fidria, Kateryna S. Muzychuk, and Olena I. Sasko. "The process of pardoning those sentenced to life sentences and long terms of imprisonment as a criterion for increasing the liberality of the judicial system." Journal of the National Academy of Legal Sciences of Ukraine 28, no. 2 (June 25, 2021): 277–87. http://dx.doi.org/10.37635/jnalsu.28(2).2021.277-287.
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The development of democracy, ensuring the rights and freedoms of citizens are inextricably linked with an increase in the quality and efficiency of the work of penal institutions, during which various types of criminal-executive legal relations arise, change and terminate. Attempts to introduce liberal European values into the everyday life of society made it necessary to modernise the activities of the penitentiary system in accordance with international standards. The need to introduce humane approaches and respect for human dignity in other special standards, which relate specifically to the sphere of the execution of criminal punishments, was noted. The novelty of the research is determined by the fact that the priority direction of this activity should be the process of further improvement of the penal legislation and the practice of its application, the strict observance of human rights and freedoms. One of the directions of these changes should be to improve the mechanisms for realising the right of convicts to imprisonment to a humane attitude and respect for their human dignity, based on progressive forms of ensuring it in accordance with international standards and existing best practices. Practical significance is determined by the fact that a country, when implementing the norms of pardon, assumes the obligation of more consistent implementation in legislation and practice of generally recognised international norms, primarily those that should ensure the implementation of human and civil rights and freedoms
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Kaczmarczyk-Kłak, Katarzyna. "A few remarks on the penalty of absolute imprisonment against the background of the principle of human dignity." Probacja 4 (November 30, 2023): 129–44. http://dx.doi.org/10.5604/01.3001.0054.1613.
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The currently applicable Penal Code provides for the possibility of imposing a life sentence on the perpetrator for an act committed by him after a final conviction for a crime against life and health, freedom, sexual freedom, public security or for an offense of a terrorist nature. Also with respect to the perpetrator whose nature and circumstances of the act as well as his personal characteristics indicate that remaining at large will pose a permanent threat to the life, health, liberty or sexual freedom of other persons. The above solution was assessed through the prism of the fundamental principle under the Constitution of the Republic of Poland – human dignity. Excluding the possibility of conditional early release deprives the convict of any hope of improving his fate, which should be treated as lifelong mental torture. Since dignity is the source of all human and citizen rights and freedoms and is inviolable, the legal solution adopted in this regard should be assessed negatively. The only extraordinary possibility provided for by law, i.e. the right of pardon provided for in the Constitution of the Republic of Poland, is a presidential prerogative, which does not have to be based on social rehabilitation progress during serving the sentence, which contradicts the essence of serving the sentence.
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Mazin Abdulaziz Al harthy, Mazin Abdulaziz Al harthy. "The Provision of Financial Penalties Related to the People of the Book in Islamic Countries." journal of king abdulaziz university arts and humanities 26, no. 3 (March 2, 2018): 19–45. http://dx.doi.org/10.4197/art.26-3.2.
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The research manifests Islamic justice in every fiat even in the destruction of the soul which ended in the worldly life; but at least it remains for the slain kin to ask for the Dyah; that does not go in vain without satisfying the slain kin, even if killed by mistake. This has an impact on the total elimination of hostilities between people in Islam, even in the fiats beyond human will, like mistaken and intentional killings; so that this Dyah becomes as a reform action and an elimination of hostilities. The research also indicates that The Mighty God ennobles the human soul; indicating that sometimes the Dyah does not cover this sin, but Almighty God must be satisfied with an atonement; in addition to warning people that the infringement of the impeccable human soul without a due, is not a mere right of the guardian of the blood to waive, but angers Almighty God and hence the atonement cannot be dropped even with a free pardon.
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Ali, Mahrus, and Ari Wibowo. "KOMPENSASI DAN RESTITUSI YANG BERORIENTASI PADA KORBAN TINDAK PIDANA." Yuridika 33, no. 2 (May 1, 2018): 260. http://dx.doi.org/10.20473/ydk.v33i2.7414.
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The study proposes the compensation and restitution regulations which should be oriented to protect the victim of crime. Although most regulations have been adopted the right of the victims to receive the compensation and restitution, but this study finds that there are some weaknesses in such regulations. Hence, compensation regulation should be specifically focused on the fulfillment of the right of the victims of crime. It shall not depend on court decisions, but such compensation should be provided even though the victims ceased before the court proceeding has started, or even if he or she wrongly arrested by police. This compensation is only to cover material losses and traumatic stress recovery cost. It could be paid directly monthly/yearly and could be converted to other form of compensation. Restitution refers to the paradigm of restorative justice. In Indonesia, restitution should be based on final and binding court decision. If the perpetrator does not want to provide it for the victim, he/she has moral obligation to provide it for the victim oven without inkracht court decision, and this could be used by the judges to pardon the perpetrator. Restitution shall be enforced for all criminal offences which resulting direct and indirect losses for the victims. Restitution is not merely about monetary values but moral obligation of the perpetrator to recover the victim’s condition.
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Imamian, Seyed Hassan, and Sayed Mohammad Shoushtari. "The Position of repentance in abolishing punishment from the perspective of Imami jurisprudence and Iranian law." Kufa Journal of Arts 1, no. 47 (April 27, 2021): 593–608. http://dx.doi.org/10.36317/kaj/2021/v1.i47.244.
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In jurisprudence and law, the offender’s repentance is considered one of the remissions of the penalty, subject to three conditions: 1- That the repentance be genuine, meaning that the offender’s repentance and remorse is proven in his act. 2- Committing a crime is related to the right of God, and if it is mixed with the right of people, repentance alone will not abrogate the punishment. 3. The time of repentance. The offender's repentance is divided into three categories in terms of time: First: Repentance before confession or evidence, in which case it causes the punishment to fall. Second: Repentance after confession, and in this case the ruler chooses between pardoning and enforcing the punishment. Third: Repentance after presenting the evidence, and in this case repentance has no effect on canceling the sentence. It should be noted that repentance does not affect the abolition of the penalty for some crimes, such as apostasy from fitrah. In disciplinary punishments, the ruler has more power and, with interests, can mitigate or pardon the sentence. Most of the Imami jurists have a common view on the repentance of the offender. Based on this well-known view of the jurists, the criminal law of Iran was developed, and in 1392, the laws related to repentance, which were previously scattered, were concentrated in Legal Articles No. 113-119.
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Nugraha, Muhammad Tisna. "VERDICT OFF (DEATH PENALTY) FOR THE DRUG OFFENDER CRIME IN PERSPECTIVE OF ISLAMIC EDUCATION." Ta'dib 20, no. 2 (January 2, 2016): 311. http://dx.doi.org/10.19109/td.v20i2.346.
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<em>This paper raises the issue of </em><em>the death penalty for drug-crime actors in Islamic education perspective, especially when the President Joko Widodo refused to pardon the actors at the beginning of his reign.</em> <em>Although the execution was likely contrary to the wishes of human right instigators, but on the other hand, such punishment is one vehicle in providing education to the citizens as well as the efforts to actualize the law enforcement in Indonesia.</em> <em>The implementation of the death sentence does not touch directly the scope of formal education in Indonesia. However, this is where the emerging hope and the search for enlightenment of such punishment is seen from the eyes of Islamic education which has applied the concept of reward and punishment in its system. Thus, through this paper, it is expected that educators can assist in bridging the imposition of a death sentence as an attempt to form good citizens.</em>
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Bálint, Péter. "Dialogues of judgement and dream interpretation in folk tales." Boletín de Literatura Oral 11 (July 19, 2021): 117–45. http://dx.doi.org/10.17561/blo.v11.6041.
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Some of the kings in the narrative actually follow Kantian orientation in their judgment and allow the right of necessity to enter into their thinking: they listen to others or (the good sense of) the truthful heart because of their limited or deficient knowledge. Others, delighted with their self-belief and mania for power, throw scorn on the law, on mercy, pardon, and forgiveness, and let themselves be led by anger, stupidity, complacency, stigma and desire for exclusion. In the tale narratives, they are further represented as scholars/wisemen, fortune-tellers, the ‘foresighted’, ancient old men, old women, wizards, taltoses (in the words of folklorist Ilona Nagy “mysterious people of fate”), doubles/doppelgangers, or animals with extraordinary abilities (the ability to speak human languages, or to transfigure themselves), prestigious kings from another country, ministers, advisors, witches who deceive the king (not uncommonly Gypsy women), depending on whether the intention is to link the giver of advice and the meaning of what he says to the sacred (biblical) or the profane (sometimes mythical), as it illuminates his/her existential character.
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Loades, David. "John Foxe and the Traitors: The Politics of the Marian Persecution (Presidential Address)." Studies in Church History 30 (1993): 231–44. http://dx.doi.org/10.1017/s0424208400011724.
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… not long after this he was sent to the Tower, and soon after condemned of treason. Notwithstanding the queen, when she could not honestly deny him his pardon, seeing all the rest were discharged, and especially seeing he last of all others subscribed to king Edward’s request, and that against his own will, released to him his action of treason and accused him only of heresy; which liked the archbishop right well, and came to pass as he wished, because the cause was not now his own, but Christ’s; not the queen’s but the church’s.Cranmer’s condemnation for treason was almost as great an embarrassment to John Foxe as it had been to the Archbishop himself. Obedience to lawful authority was axiomatic to both, as to all the orthodox reformers of die first generation. Against Catholic accusations that all Protestants were natural subverters of established order, they argued that the good Christian would be least a traitor to his Prince. Preaching upon the text ‘Render unto Caesar’ in November 1550, Hugh Latimer had declared,
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Lobato, Luiz. "GRAÇA E INDULTO CONSTITUCIONAIS: NATUREZA JURÍDICA E LIMITES." Ponto de Vista Jurídico 12, no. 2 (September 2, 2023): 35–45. http://dx.doi.org/10.33362/juridico.v12i2.3079.
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Primeiramente, importante abordar o termo jurídico “Graça”, que temos como referência a benevolência ou indulgência do Chefe de Estado sendo o momento no qual existe a renúncia estatal do direito de punir decorrente da condenação criminal. A concessão da Graça torna imutável a pretensão punitiva e o beneplácito atinge o beneficiado de forma definitiva. Inobstante a isso, no direito brasileiro temos a previsão do instituto jurídico da Anistia, Graça e indulto, justamente sendo o meio procedimental cabível que visa buscar alternativas as injustiças sociais com a aplicação da exclusão sobre a pretensão punitiva individual ou coletiva. Tais mecanismos jurídicos de extinção da punibilidade são contemplados desde os primórdios por diversas civilizações e guardam relação com o poder incumbido ao soberano de perdoar eventuais condenações que causem clamor social ou político. Assim, o Estado poderia agir de forma a evitar eventuais injustiças sociais ou até mesmo levantes populares em face da execução de pena capital. A clemência nesse caso foi usada como mecanismo de controle social. No Direito Penal romano, a graça (indulgentia ou clementia principis) suprimia apenas a pena, diversamente da anistia que anulava a acusação, o juízo e a pena. Era exercício de poder soberano, e conforme antigo princípio romano, podia ser exercitado tão-somente pelo povo reunido nos comícios (provocatio ad populum). [1] Logo, o presente trabalho visa atuar em um aprofundamento do estudo sobre a extinção da punibilidade através dos mecanismos jurídicos Graça e Indulto, previstos mais especificamente sobre o inciso XII do artigo 84 da Constituição Federal.[2] Outro ponto importante a ser destacado é que o Presidente da República pode delegar os poderes para análise e concessão da graça e indulto.[3] Dessa maneira, este estudo visa entender a aplicação da graça e do indulto, sua natureza jurídica e o cabimento da sua concessão, grifando pontos importantes no esboço como conceito, distinção entre institutos, passando ainda por aspectos gerais do procedimento de concessão do indulto. [1] Artigo “Poder de Graça e sua Delimitação”. Professor Luiz Regis Prado. Acesso em: 30 de Outubro de 2022-http://genjuridico.com.br/2022/04/27/poder-de-graca-e-sua-delimitacao/poder-degraca-e-sua-delimitacao-2/ [2] Art. 84. Compete privativamente ao Presidente da República: (...) XII - conceder indulto e comutar penas, com audiência, se necessário, dos órgãos instituídos em lei; [3] Art. 84. Compete privativamente ao Presidente da República: (...) Parágrafo único. O Presidente da República poderá delegar as atribuições mencionadas nos incisos VI, XII e XXV, primeira parte, aos Ministros de Estado, ao Procurador-Geral da República ou ao Advogado-Geral da União, que observarão os limites traçados nas respectivas delegações. PALAVRAS CHAVE: Indulto. Graça. Indulgência. Natureza Jurídica. Limites. Constituição. Penal. ABSTRACT First, it is important to address the legal term “Graça”, which we have as a reference to the benevolence or indulgence of the Head of State, being the moment in which there is a state waiver of the right to punish resulting from the criminal conviction. The granting of Grace makes the punitive claim immutable and the blessing reaches the beneficiary definitively. Despite this, in Brazilian law we have the provision of the legal institute of Amnesty, Grace and pardon, precisely being the appropriate procedural means that aims to seek alternatives to social injustices with the application of exclusion on the individual or collective punitive claim. Such legal mechanisms for the extinction of punishment have been contemplated since the beginning by several civilizations and are related to the power entrusted to the sovereign to forgive any convictions that cause social or political outcry. Thus, the State could act in order to avoid possible social injustices or even popular uprisings in the face of the execution of capital punishment. Clemency in this case was used as a mechanism of social control. In Roman Criminal Law, grace (indulgentia or clementia principis) suppressed only the penalty, unlike the amnesty that annulled the accusation, the judgment and the penalty. It was the exercise of sovereign power, and according to an ancient Roman principle, it could only be exercised by the people gathered in meetings (provocatio ad populum). Therefore, the present work aims to act in a deepening of the study on the extinction of the punishability through the legal mechanisms Graça and Pardon, foreseen more specifically on the item XII of the article 84 of the Federal Constitution. Another important point to be highlighted is that the President of the Republic can delegate the powers to analyze and grant the grace and pardon. In this way, this study aims to understand the application of grace and pardon, its legal nature and the appropriateness of its granting, emphasizing important points in the outline as a concept, distinction between institutes, and also going through general aspects of the procedure for granting pardon. Keywords: Pardon. Grace. Indulgence. Legal Nature. Limits. Constitution. Criminal.
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Prysiazhniuk, S. "Implementing the Provisions of the Rome Statute of the International Criminal Court in the National Legislation of European States." Analytical and Comparative Jurisprudence, no. 2 (June 23, 2023): 443–47. http://dx.doi.org/10.24144/2788-6018.2023.02.77.
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The process of implementation of the Rome Statute of the International Criminal Court into the national legislation of some European states is studied. It was analyzed that the implementation of the Rome Statute is one of the conditions for the proper implementation of certain rights and freedoms of a citizen, namely the right to judicial protection, etc. This is the organizational and legal activity of the state in the person of authorized subjects, which is carried out in a legally defined manner and consists of legal and other procedures aimed at ensuring the exercise of the jurisdiction of the ICC over persons responsible for particularly serious crimes in accordance with the definitions of the Rome e Statute.It is emphasized that the methods of implementation of the Rome Statute in the practice of foreign countries are determined by the following main approaches: 1) the adoption of a legislative act aimed at implementation, which will have priority over national laws and other legal acts in the event of contradictions regarding the jurisdiction of the ICC; 2) introduction of changes and additions to the constitution and other regulatory legal acts; 3) introduction of changes and additions to the relevant legislative acts, which is accompanied by the adoption of special legislation on cooperation with the ISS.The characteristic principles of the implementation of the Rome Statute and the recognition of the jurisdiction of the ICC, which arise from their legal nature and the peculiarities of the national legal system, are singled out and include: the principle of complementarity of the ICC with the national judicial system; “ne bis in idem”; the principle of non-extradition of one’s citizens; pardon; immunities of officials, etc. The Court’s jurisdiction’s contractual nature indicates that states’ right to administer justice under national law is primary.It has been considered which methods of ratification used by European states are effective, based on which it is possible to single out the most convenient and effective way of ratification of the Rome Statute by Ukraine.
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Rakhimberdin, Kuat Khazhumukhanovich. "APPLICATION OF CONDITIONAL AND EARLY RELEASE FROM SERVING A PUNISHMENT IN THE REPUBLIC OF KAZAKHSTAN: COLLISIONS OF THE CONSTITUTION AND CRIMINAL LAW." Bulletin of the Institute of Legislation and Legal Information of the Republic of Kazakhstan 2, no. 77 (June 28, 2024): 210–19. http://dx.doi.org/10.52026/2788-5291_2024_77_2_210.
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This study is devoted to the problems of inconsistency and contradictions that exist between the provisions of the Constitution of the Republic of Kazakhstan, international legal acts of the UN in the field of treatment of convicted persons and national criminal legislation in terms of the tools for using the institution of parole from serving a sentence. It is rightly stated that this institution is one of the means of criminal law encouragement and stimulation of socially acceptable behavior of convicts, contributing to the achievement of the goals of punishment. In this regard, certain aspects of the normative design of parole in the current Criminal Code of the Republic of Kazakhstan and in the Criminal Code of the Republic of Kazakhstan of 1997 are touched upon. The author of the study focuses on the application of parole to persons serving a sentence of life imprisonment. In connection with this, the key subject of the study was to assess the validity of such a legal restriction as deprivation of the right to parole of convicts who had previously been sentenced to death by pardon and were replaced by life imprisonment. Based on this, the study examines the features of the content of the death penalty and highlights the prerequisites for excluding this punishment from the national legislation of the Republic of Kazakhstan. The author rightly points out that such a humane manifestation of the criminal policy of the Kazakh state is contradicted by the preservation in the criminal legislation of the Republic of Kazakhstan of the legal impossibility of parole for convicts who have become recipients of life imprisonment as a replacement for the death penalty. Analyzing this issue, the author comes to the conclusion that it is unconstitutional to deprive convicts of the right to parole for whom life imprisonment was the result of replacing the death penalty. Along with this, the inconsistency of this legal restriction with international human rights standards is shown and the need to overcome such a conflict of criminal law is substantiated.
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Kasuri, Muhammad Ramzan, Ata Ullah Khan Mahmood, and Sheer Abbas. "Globalization of Prosecutorial Justice: An Appraisal." Global Political Review VI, no. II (June 30, 2021): 67–78. http://dx.doi.org/10.31703/gpr.2021(vi-ii).08.
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In the present world, public prosecutors (PPs) have become the most powerful actors in the criminal justice system (CJS). They excise unfettered discretionary powers, particularly 'decision to or not to prosecute,' 'add or delete the charges,' 'withhold or drop the prosecution,' 'withdraw the prosecution,' 'plea-bargaining with accused,''tender of pardon to the accomplice' and 'suggest the sentence for the convict.' By this way, the world is moving towards pro secutorial justice. It is a point of departure from judicial decision-making to pro secutorial decision-making. So, the theory of division of labor should be developed for standardizing decision-making power. With the help of comparative and qualitative research methodology, this research aims to examine the public prosecution of different legal systems; adversarial or inquisitorial, among the eastern and western countries. This article discusses comparatively the pro-active role of the PPs in the CJSs of Japan, the USA, China, the U.K,France, and Pakistan. Comparative study of public prosecution of different legal systems can enable us to revamp our system in the right direction for making it efficient, expeditious, and cost-effective.
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Trefilov, Aleksandr A. "Trials in the Court of First Instance in the Criminal Procedure of Lichtenstein: Comparative Features." Ugolovnaya yustitsiya, no. 18 (2022): 137–44. http://dx.doi.org/10.17223/23088451/18/25.
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Currently, there is not a single separate research work in Russian science on the topic of this article. In order to fill this gap, based on the normative and doctrinal sources, the author analyzes the consideration of the case on the merits in the criminal procedure of the Principality of Liechtenstein. In this legal order, in connection with the preservation of the institution of the investigating judge, one can only conditionally speak of bringing someone to trial since already at the stage of preliminary investigation cases are pending. The most important feature of the ordinary procedure for trying a case in the court of first instance is the principle of collegiality, by virtue of which, as a general rule, a case is tried by five judges. In addition, the developers of the 1988 Code of Criminal Procedure chose to abandon the use of lay judges. There are no plea deals in any form. Comparatively, it is interesting that the court has the right to recommend the convicted person for pardon, after which the head of state makes the final decision. The conclusions drawn can be useful to researchers who examine individual institutions of Russian and foreign criminal procedure.
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Kwiatkowski, Wojciech. "PRAWO ŁASKI NA POZIOMIE STANOWYM W USA." Zeszyty Prawnicze 16, no. 4 (May 14, 2017): 153. http://dx.doi.org/10.21697/zp.2016.16.4.08.
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The Right of Clemency at the State Level in the United StatesSummary The article discusses the core issues related to state-level clemency in the United States of America. This power is deeply rooted in American history. At this level clemency often serves as an important mechanism of checks and balances on the state judiciary; it enables error-correction in a state criminal justice system, it may afford relief from undue harshness, and it helps to ensure that the state justice system is tempered. Although it is not required by the federal constitution, each state has a constitutional provision addressing clemency. This article points out that an important difference compared with solutions at the federal level is that the power to exercise clemency at the state level is vested in either the governor, an executive clemency board, or a combination thereof, so an important part of the study was to determine the advantages and disadvantages of each of these solutions. Another important aspect of the study was to identify the determinants affecting the regulation and application of state clemency. The article also discusses (I) some legal methods to limit the power to pardon and (II) regulations which determine the transparency of the whole procedure.
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Handler, Phil. "The Court for Crown Cases Reserved, 1848–1908." Law and History Review 29, no. 1 (February 2011): 259–88. http://dx.doi.org/10.1017/s0738248010001276.
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Convicted felons at the Old Bailey and on assize in nineteenth-century England had no right of appeal. They had either to submit to their fate or, if they had the means, petition the Crown for a pardon. The legal avenues for redress were limited. A writ of error would lie to a superior court for legal errors that appeared on the face of the record but by the nineteenth century this was seldom used. More significantly, it was open for the trial judge to reserve questions of law for the informal and private consideration of all the common law judges. In their illuminating studies of this practice in the eighteenth and early nineteenth centuries, James Oldham and Randall McGowen elucidate the ways in which the judiciary used reserved cases to develop legal doctrine and to shape the operation of criminal justice. The trend toward increased formalization of procedure that they identify, culminated in 1848, when Parliament created the Court for Crown Cases Reserved (CCCR). The new court adopted the existing method of reserving cases, but was a court of record that sat and gave judgment in public. It became the highest judicial forum for the determination of questions of criminal law until 1908, when it was superseded by the Court of Criminal Appeal.
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Van Den Beld, A. "Killing and the Principle of Double Effect." Scottish Journal of Theology 41, no. 1 (February 1988): 93–116. http://dx.doi.org/10.1017/s003693060003129x.
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When we raise the question of whether the pleasures of the human body are as valuable as those of the human mind — whether, for example, pushpin is as good as poetry — it is quite possible that people will disagree on their answers. But we would also expect most people to agree with the assertion that the death of a human being would generally be a bad thing; whilst his continuing to live would be a good thing. Furthermore, we would expect most people to concede immediately that the death of five human beings is a worse evil than the death of one single individual: all other things being equal, I hasten to add. It seems to follow now, on the basis of this commonly held view, that saving the lives of five people, who would be doomed to a certain death without an intervention on the part of another, would be morally right, if not praiseworthy, even if the action which is necessary to save those five lives would also entail the death of another person. To liven up the proceedings, if you will pardon the expression in this context, let me put to you this specific case:organs distributed. In that case, there would be one dead but five saved.’
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Tang Jia Yearn and Muhamad Helmi Md. Said. "MISCARRIAGE OF CRIMINAL JUSTICE: THE APPEAL PROCESS AND POST-CONVICTION REVIEW." IIUM Law Journal 31, S1 (November 10, 2023): 111–42. http://dx.doi.org/10.31436/iiumlj.v31is1.877.
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Concerns about miscarriages of criminal justice are not unfamiliar within the criminal justice system. Cases that involve miscarriages of justice shall persist regardless of amendments made to any legal system. However, in the Malaysian context, official consideration was not sufficiently generated for systemic reform dealing with post-appeal avenues in cases of miscarriage of criminal justice, despite certain weaknesses having been identified. The objective of this article is to analyse the weaknesses in laws pertaining to post-appeal avenues in cases of criminal miscarriage of justice, and provide suggestions for minimising such instances. The research is conducted using doctrinal methodology where legal sources of different countries have been scrutinized. Weaknesses in the Malaysian post-conviction avenues are exhibited in the limited powers of the final appellate court to review its decision, in the review of criminal proceedings, and the granting of royal pardon by the Yang di-Pertuan Agong. The analysis of the response to miscarriages of criminal justice and post-conviction avenues in Malaysia undertaken with the objective that a proper legal mechanism be established, where the victims’ right to prove their innocence and obtain a fair trial is ensured. It is hoped that the suggestions given are viewed with an open mind with due regard for the relevant ethical and procedural aspects.
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., Fathudin, and Ahmad Tholabi Kharlie. "Existence of Clemency as President Prerogative Right (Comparison Study of Indonesia with Countries of the World)." JURNAL CITA HUKUM 5, no. 1 (June 5, 2017): 1–24. http://dx.doi.org/10.15408/jch.v5i1.6574.
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The debate about the existence of clemency as a prerogative of the president stems from the understanding that the rights is coming independently from the authority and without any branches of power. In this context, the comparative study of the constitutional norms in some countries in the world related to the norm of clemency is important to read the tendency of other countries about clemency rules. This study shows that the constitutional norm of countries in the world basically has the same tendency in the application of clemency by the president; there is involvement of other branches of power. Some constitutions of the world call the recommendation, hearing, information, consultation, advice, in accord, concurrence (approval) and others. The involvement of other branches of power in the grant of pardon does not mean reducing the authority of the president (prerogative), but it has become a tendency in almost all modern states to embrace the system of government power within the framework of public accountability. The term prerogative of the president (absolute) in practice is no longer absolute and independent. Perdebatan sepuar eksistensi grasi sebagai hak prerogatif presiden berpangkal pada pemahaman yang menyebut bahwa suatu hak disebut sebagai hak prerogatif presiden jika kewenangan yang lahir dari hak tersebut bersifat khusus dan mandiri tanpa adanya keterlibatan cabang kekuasaan lain. Dalam konteks ini, kajian perbandingan terutama terhadap norma konstitusi di beberapa negara di dunia terkait dengan norma tentang grasi menjadi penting untuk memotret kecenderungan yang dimiliki negara-negara lain dalam hal pengaturan tentang grasi. Kajian ini menunjukan bahwa norma konstitusi negara-negara di dunia pada dasarnya memiliki kecenderungan yang sama dalam penerapan pemberian grasi oleh presiden, yakni ada keterlibatan cabang kekuasaan lain. Beberapa konstitusi negara-negara di dunia menyebut keterlibatan tersebut dengan menggunakan ragam istilah seperti recomandation, hearing, inform, consultation, advice, in accordance, conccurance (persetujuan) dan lain-lain. Adanya keterlibatan cabang kekuasaan lain dalam mekanisme pemberian grasi bukan berarti mereduksi kewenangan presiden (hak prerogatif), tetapi memang menjadi kecenderungan hampir di semua negara-negara modern untuk menganut sistem pemerintahan yang berusaha menempatkan segala model kekuasaannya dalam kerangka pertanggungjawaban publik, sehingga istilah hak prerogatif presiden (sacara mutlak) dalam prakteknya tidak lagi bersifat mutlak dan mandiri. DOI: 10.15408/jch.v5i1.6574
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Nicoletti, Cynthia. "The American Civil War as a Trial by Battle." Law and History Review 28, no. 1 (February 2010): 71–110. http://dx.doi.org/10.1017/s0738248009990046.
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Confined alone in a cell in New York's Fort Lafayette in the heat of the summer of 1865, former Confederate naval secretary Stephen R. Mallory had little to do but reflect on the fate of the defeated Confederacy. Convinced that his life might be forfeit if the United States government made good on its threat to try him for treason, Mallory composed a lengthy letter to President Andrew Johnson petitioning for a pardon and seeking to explain his views on the demise of the Confederacy and the fate of the states' right to secede from the Union. While Mallory stressed his opposition to disunion in 1861, on the grounds of its inexpediency, he admitted that he had placed loyalty to his state above his duty as a citizen of the United States. He had “regarded the commands of my state as decisive of my path of duty; and I followed where she led.” Nonetheless, Mallory went on to disclaim his belief in the principle of secession in very striking terms, describing the death of secession in the crucible of the Civil War as the result of a trial by battle. Mallory never specifically denied secession's constitutionality; instead, he told Johnson that because he “recognize[ed] the death [of the Confederacy] as the will of Almighty God, I regard and accept His dispensation as decisive of the questions of slavery and secession.”
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Bach, Jonathan, and Benjamin Nienass. "Introduction." German Politics and Society 39, no. 1 (March 1, 2021): 1–14. http://dx.doi.org/10.3167/gps.2021.390101.
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Innocence is central to German memory politics; indeed, one can say that the German memory landscape is saturated with claims of innocence. The Great War is commonly portrayed as a loss of innocence, while the Nazis sought, in their way, to reclaim that innocence by proclaiming Germany as the innocent victim. After World War II, denazification and courts established administrative and legal boundaries within which claims of innocence could be formulated and adjudicated, while the “zero hour” and “economic miracle” established a basis for a different form of reclaiming innocence, one roundly critiqued by Theodor W. Adorno in his essay “What Does Coming to Terms with the Past Mean?”1 In the 1980s, Chancellor Helmut Kohl’s famous pronouncement of the “grace [Gnade] of a late birth” (also translatable as “mercy,” “pardon,” or “blessing”) became the touchstone for a resurgence of war children’s (Kriegskinder) memory. In the 1990s, the myth of the Wehrmacht as largely innocent of atrocities was publicly challenged. Today, rightwing critiques that cast Holocaust remembrance as a politics of shame draw upon tropes of innocence, of German air war victims and post-war generations, while right-wing images of migrants are cast in classic forms of threats to the purity of the “national body” (Volkskörper). The quickening pace of contemporary debates over Germany’s colonial past pointedly questions the innocence of today’s beneficiaries of colonialism, drawing attention to the borders and contours of implication.
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Wils, Lode. "Leo Vindevogel. De politicus en de mythe van zijn proces." WT. Tijdschrift over de geschiedenis van de Vlaamse beweging 73, no. 1 (March 18, 2014): 66–81. http://dx.doi.org/10.21825/wt.v73i1.12176.
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Leo Vindevogel, een lokaal katholiek politicus met uiterst rechtse sympathieën, toonde zich onder de bezetting een ijverig propagandist van de Duitse zaak. Hij werd in januari 1941 benoemd tot burgemeester van Ronse, een stad die sinds 1943 betrokken werd in de beginnende burgeroorlog tussen nazi’s en communisten vooral. Bij de bevrijding in september 1944 meldde hij zich bij de rijkswacht en hij werd nog tijdens de oorlog berecht door de krijgsraad en het krijgshof. Wegens flagrant landverraad, maar ook wegens de betwistbare beschuldiging van verklikking werd hij ter dood veroordeeld en gefusilleerd. De familie en geestverwanten voerden sindsdien campagne tegen die ‘gerechtelijke moord’, op basis van onware voorstellingen die zijn advocaat had verspreid om genade te bekomen.________Leo Vindevogel. The politician and the myth of his trialLeo Vindevogel, a local Catholic politician with far-right sympathies turned out to be a very active propagandist of the German case during the occupation. In January 1941 he was appointed mayor of Ronse, a city that from 1943 on was involved in particular in the beginning civil war between the nazi’s and the communists. At the time of the liberation in September 1944, he gave himself up to the state police. He was tried by court-martial and by the military high court during wartime. He was condemned to death and executed by a firing squad because of blatant treason as well as the undeniable accusation of denunciation. Since then, his family and political sympathizers have been campaigning against this ‘judicial murder’ based on untrue representations, which his lawyer had disseminated in order to prevent a pardon.