Journal articles on the topic 'Terrorism Prevention Law and legislation Australia'
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1
Tulich, Tamara. "Prevention and Pre-emption in Australia’s Domestic Anti-terrorism Legislation." International Journal for Crime, Justice and Social Democracy 1, no. 1 (November 5, 2012): 52–64. http://dx.doi.org/10.5204/ijcjsd.v1i1.68.
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The move towards prevention in domestic anti-terror law and policy was initially justified as an exceptional response to the exceptional threat of transnational terrorism following September 11, 2001. However, commonalities are discernable between prevention in anti-terror law and prevention as employed in other areas of Australian law. To begin contextualising and analysing preventive practices in Australia, a framework is required. ‘The preventive state’ provides one way to view the collection of preventive measures employed in Australia. Engaging a governmentality perspective has the potential to make visible prevention and pre-emption in law and governance, and to inform critical treatment of the preventive state itself. Whether and how prevention and pre-emption in anti-terror law differ from and exhibit continuities with other preventive measures has the potential to expose issues of selectivity and proportionality between preventive measures and force consideration of the limits of state action to prevent or pre-empt harm.
2
Meliá, Manuel Cancio. "Terrorism and Criminal Law: The Dream of Prevention, the Nightmare of the Rule of Law." New Criminal Law Review 14, no. 1 (January 1, 2011): 108–22. http://dx.doi.org/10.1525/nclr.2011.14.1.108.
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Terrorism stands at the evolutionary peek of the expansion of Western criminal law systems. This evolution contradicts many of the constitutional foundations of Western criminal law, to the extent that a real "criminal law" for enemies appears on the near horizon of penal legislation. The basic argument here is the idea that criminal law is an effective instrument to fight against terrorism. Yet a thorough analysis reveals that this overstates the preventive capacity of the penal system. To the contrary, given the communication strategy embodied in terrorism, a penal overreaction could be quite dysfunctional for the objective of fighting terrorism: in particular, and notwithstanding the fact that it does not provide a real solution in preventive terms, it may cause a contamination effect that could modify the constitutional foundations of the overall penal law system.
3
Zhao, Yunfeng. "Analysis and examination of terrorism crime legislation." Legal Science in China and Russia, no. 4 (September 16, 2021): 170–79. http://dx.doi.org/10.17803/2587-9723.2021.4.170-179.
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In the past 10 years, China’s legislation on terrorist crimes has undergone great changes, which not only responds to the inherent requirements stipulated in the international conventions, but also refl ects the policy governing terrorist crimes. The legislation of terrorist crime presents new dimensions, specifi cally for the preventive strengthening, the increase of severity, the increase of rigour. Under the background of risk society, the legislation of terrorism crime has positive social signifi cance, which is embodied in the combination of punishment after the event and prevention before the event, the unity of behavior harm and personal danger. In the future criminal legislation, it is necessary to enhance the foresight of legislation, promote the scientifi c nature of legislation, and strengthen the effective connection between criminal law and anti-terrorism security law, which should be the development direction of terrorism crime legislation
4
Briskman, Linda. "The Creeping Blight of Islamophobia in Australia." International Journal for Crime, Justice and Social Democracy 4, no. 3 (October 5, 2015): 112–21. http://dx.doi.org/10.5204/ijcjsd.v4i3.244.
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In the latter months of 2014, following events in faraway Iraq and Syria, Australia responded forcefully at home. The manufactured fear of a terrorist attack resulted in police raids, increased counter-terrorism legislation and scare campaigns to alert the public to 'threat'. Although Islamophobia rose in Australia after 2001 it has been latent in recent years. It is on the rise again with collateral damage from government measures including verbal and physical attacks on Australian Muslims. Vitriol is also directed at asylum seekers and refugees. Media, government and community discourses converge to promote Islam as dangerous and deviant.
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Sharaev, P. S. "Countering money laundering (legalization) in the context of digital transformation (financial legal aspect)." Juridical Journal of Samara University 8, no. 3 (January 18, 2023): 94–100. http://dx.doi.org/10.18287/2542-047x-2022-8-3-94-100.
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The legal regulation of the sphere of money laundering prevention and the financing of terrorism is at the junction of several branches of law. This article attempts to analyze the norms of the relevant legislation through the prism of financial law. The purpose of this article is to determine the role and place of the concept of money in the legislation, as well as to determine the relationship between the process of digital transformation of money circulation and the current methods used by the legislator to prevent the use of finance for criminal purposes. The result of this article is the determination of prioritising of the legislation goals itself aimed at preventing money laundering and the financing of terrorism. As a conclusion it is proposed that the above-mentioned legislation is of the most applied nature and has specific practical goals, while the issue of development of legal regulation of monetary circulation is not among the priority goals.
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Arifi, Kadri. "Application of the Covert Measures with the Focus on Kosovo Legislation." European Journal of Interdisciplinary Studies 1, no. 2 (August 30, 2015): 68. http://dx.doi.org/10.26417/ejis.v1i2.p68-72.
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The sophisticated forms of the organized crime, the high level of risk, complexity and threatening potential of the terrorism, impose the need (among other measures) for the application of covert investigative measures, among other the interception of telecommunications in order to prevent and combat these threats. Measures and traditional methods used by security institutions and law enforcement agencies do not provide adequate results and this raises the need and necessity for application of covert measures. In particular, the application of covert investigative measures for the security services as a measure, is necessary and essential for early detection and prevention of activities that affect the national security, while for the law enforcement agencies, the covert measures are used as a prevention and investigation measure of serious criminal acts and terrorism, but also as a measure to provide evidence for investigative processes. There is no doubt about the high sensitivity that the application of covert measures has in relation to human rights and freedom, respect and protection of which is the duty of the state and represents not an easy challenge for several reasons. In this regard, the application of covert measures should be limited by the law and their application in accordance with the law is a precondition for respecting human rights and freedom.
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Arifi, Kadri. "Application of the Covert Measures with the Focus on Kosovo Legislation." European Journal of Interdisciplinary Studies 2, no. 1 (August 30, 2015): 68. http://dx.doi.org/10.26417/ejis.v2i1.p68-72.
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The sophisticated forms of the organized crime, the high level of risk, complexity and threatening potential of the terrorism, impose the need (among other measures) for the application of covert investigative measures, among other the interception of telecommunications in order to prevent and combat these threats. Measures and traditional methods used by security institutions and law enforcement agencies do not provide adequate results and this raises the need and necessity for application of covert measures. In particular, the application of covert investigative measures for the security services as a measure, is necessary and essential for early detection and prevention of activities that affect the national security, while for the law enforcement agencies, the covert measures are used as a prevention and investigation measure of serious criminal acts and terrorism, but also as a measure to provide evidence for investigative processes. There is no doubt about the high sensitivity that the application of covert measures has in relation to human rights and freedom, respect and protection of which is the duty of the state and represents not an easy challenge for several reasons. In this regard, the application of covert measures should be limited by the law and their application in accordance with the law is a precondition for respecting human rights and freedom.
8
Mits, Denis. "The Anti-Terrorist Function of the State and the Problem of “Preventive” Coordination." Legal Concept, no. 3 (October 2019): 50–55. http://dx.doi.org/10.15688/lc.jvolsu.2019.3.7.
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Introduction: the new legal institutions and technologies in the field of counter-terrorism are a matter of great importance for the theory of state and law; in this connection the author of the paper set the aim to study the formation, evolution and unification of this legal trend. Methods: the methodological framework for this study is a set of methods of scientific knowledge, among which the main ones are the methods of systematicity and analysis. Results: the author’s point of view grounded in the work is based on the antiterrorist legislation and the opinion of the competent scientific community on the issue of improving the antiterrorist function of the state at a discrete level (with a set of values for different sets of legal arguments) and the regulatory level (with a set of qualitative values of parameters of all the criteria). Based on the legal analysis of the anti-terrorist function of the state, the most popular are the coordination of the fight against terrorism and coordination to minimize the harmful consequences of terrorist manifestations. The topical blocks of issues are raised: I. features of the function system: 1) coordination preventive antiterrorist technology, 2) coordination and human will, 3) international law and selfdefense; II. transformation of terrorism manifestations and conceptual approach to counter- terrorism: 1) international self-defense, 2) modernization of statehood, 3) complex character of prevention; III. appropriateness of anti-terrorist reaction: 1) optimal prevention, 2) legal phenomena, 3) law and legislation. Conclusions: the study revealed the role of the coordination preventive anti-terrorist technology. It is established that due to the complexity of the legal registration of preventive tools and many unresolved related matters it is not possible to highlight the effective coordination of terrorism prevention in modern conditions.
9
Гбур, Зоряна, and Світлана Кошова. "Regulatory fundamentals of the fight against terrorism in Ukraine." Public administration aspects 9, no. 1 (February 28, 2021): 72–80. http://dx.doi.org/10.15421/152107.
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An important element of ensuring national security in Ukraine is the legal consolidation of practical and real principles in national legislation. One of the main reasons for the low quality of the fight against terrorism is the imperfection of legal acts and the inconsistency of the level of preparation for real threats. Normative acts require detailed study, analysis and substantiation in view of international law and evolution, due to which, changes are made more than once. The growing number of terrorism in the world, gives impetus to international cooperation to combat the most dangerous crime. Research is important to address the challenges of preventing terrorism.To improve the legislation, it is necessary to take into account the degree of ability to anticipate threats and assess risks, to ensure the continuity of the process of activity of bodies and the process of recovery. Improving Ukrainian legislation requires modernizing Cain's anti-terrorism legislation on countering and preventing terrorism.The article analyzes the legal framework for combating terrorism, identifies the relevance of the problem of combating terrorism, the range of regulations, considers the views of scientists on the system of their division by type, proposed its own system of regulations in the table.Specifically, some important legal acts on measures to combat terrorism are analyzed. The international legal documents establishing the general principles of international cooperation in the field of prevention and counteraction to terrorism are studied.The priorities of the state policy in the field of counter-terrorism, the principles of counter-terrorism enshrined in regulations are considered, and some proposals for improving the regulatory framework in the fight against terrorism in Ukraine are identified.
10
Walker, Clive. "The detention of suspected terrorists in the British Islands." Legal Studies 12, no. 2 (July 1992): 178–94. http://dx.doi.org/10.1111/j.1748-121x.1992.tb00464.x.
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Ever since November 1974, when the Home Secretary, Roy Jenkins, announced his ‘Draconian’ Prevention of Terrorism Bill, strong emotions have been aroused by the legislation. On the one hand, ardent supporters claim that the Acts have been ‘increasingly useful and necessary for the police’ and ‘the most powerful weapon in our counter-terrorist armoury’. On the other hand, there have been strident critics who not only denounce the Acts as a ‘flagrant violation of basic civil liberties’ but also support ‘the struggle against British imperialism [even if it] inflicts violence on citizens and can have tragic consequence’. This clash of opinions has persisted during the most recent re-enactment of the legislation in Parliamentary session 1988–89.
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Bastrykin, Alexandr I. "Investigation of money laundering and financing of terrorism by the Investigative Committee of Russia." Vestnik of Saint Petersburg University. Law 12, no. 3 (2021): 493–501. http://dx.doi.org/10.21638/spbu14.2021.301.
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The aim of the work is to show the public danger of money laundering and financing of terrorism, and to identify ways to improve the existing legislation to curb these crimes. The research comprehensively examines the practice of identifying and investigating money laundering and financing of terrorism by the Investigative Committee of Russia. Today, these crimes pose a serious threat to Russian society and have a destructive effect on the country’s economy. The article analyzes the results of the Investigative Committee of Russia’s work on the investigation of these crimes, examines the experience of interaction with specialized state organizations in this field, and also discusses various methods of money laundering and financing of terrorism with specific examples. Particular attention is paid to the prevention and suppression of terrorism and extremism, including prevention of radical ideology. The results of the joint work of the Investigative Committee of Russia with other law enforcement structures of the Russian Federation in this field are also presented and supported by statistical data. Particular focus is placed on the financing of terrorism by attracting funds through the Internet, which today has become one of the main channels for the movement of financial flows. In addition, the article analyzes the legal framework on the basis of which the state authorities of the Russian Federation carry out comprehensive work to identify and suppress the financing of terrorism. The work also discloses the role of digital currency, the turnover of which bears certain risks and can be used for anonymous financial support of terrorist organizations. The main conclusion is that effective opposition to the legalization of proceeds from crime and the financing of terrorism can be carried out simultaneously with the suppression of extremist ideology at two levels — national and international.
12
L.P., Samofalov, and Samofalov O.L. ". Problems of legal regulation of combatinig terrorism and prevention of terrorist acts." Scientific Herald of Sivershchyna. Series: Law 2020, no. 2 (December 18, 2020): 84–92. http://dx.doi.org/10.32755/sjlaw.2020.02.084.
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The article addresses to the study of problematic issues of legal regulation of combating terrorism and the prevention of terrorist acts. The current state of crime prevention by terrorist groups is comprehensively analyzed. It is established that the range of subjects of anti-terrorist activity is not provided by the current legislation and the corresponding shortcomings that arise during the combating terrorism. It is established that the legal basis for the fight against terrorism is the Constitution of Ukraine, the Criminal Code of Ukraine, the Law of Ukraine "On Combating Terrorism", other laws of Ukraine, the European Convention on the Suppression of Terrorism of 1977 year, the International Convention for the Suppression of Terrorist Bombings of 1997 year, the International Convention on the Fight against Terrorist Financing in 1999 year, other international treaties of Ukraine approved by the Verkhovna Rada of Ukraine, decrees of the President of Ukraine, resolutions and orders of the Cabinet of Ministers of Ukraine, as well as other regulations adopted to implement the laws of Ukraine. Among the normative legal acts regulating relations in the field of counter-terrorism, one of the prominent places has the Law of Ukraine "On Prevention and Counteraction to Legalization (Laundering) of the Proceeds of Crime, Terrorist Financing and Financial Proliferation of Weapons of Mass Destruction" dated 14 October, 2014. It is proved that among the factors that negatively affect the effectiveness of the investigation of terrorist crimes, the leading place is taken by insufficiently balanced and unfounded state criminal law policy, which over the past few years has gradually lost its state character, becoming hostage to permanent political confrontation. There are many cases of unsystematic and scientifically unsubstantiated changes in certain provisions of the Criminal Code of Ukraine. Key words: terrorism, terrorist act, terrorist operation, crimes, subjects, criminal liability.
13
Bachmann, Sascha-Dominik, and Matthew Burt. "Control Orders Post 9-11 and Human Rights in the United Kingdom, Australia and Canada: A Kafkaesque Dilemma?" Deakin Law Review 15, no. 2 (December 1, 2010): 131. http://dx.doi.org/10.21153/dlr2010vol15no2art122.
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This article aims to assess the impact that the European Convention of Human Rights, incorporated into British law through the Human Rights Act 1998, has had on the control order regime in the United Kingdom. It will discuss recent British jurisprudence on the topical question of whether there can be a true balance between the civil liberties of an individual and the need to protect state and society from a continuing terrorist threat. The article compares the UK’s present control order system of summer 2010 with similar legislation, which the Commonwealth jurisdictions of Australia and Canada have enacted to protect their nations from the threat of terrorism. It will conclude with a discussion of possible reforms as well as other security measures which have been identified as alternatives to control orders and which form the basis of present UK governmental initiatives to limit the scope and impact of anti terrorism legislation.
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Battams, Samantha, Toni Delany-Crowe, Matthew Fisher, Lester Wright, Michael McGreevy, Dennis McDermott, and Fran Baum. "Reducing Incarceration Rates in Australia Through Primary, Secondary, and Tertiary Crime Prevention." Criminal Justice Policy Review 32, no. 6 (May 19, 2021): 618–45. http://dx.doi.org/10.1177/0887403420979178.
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In Australia, incarceration rates have steadily increased since the 1980s, providing an imperative for crime prevention. We explored the extent to which Australian justice sector policies were aimed at preventing crime, using a framework for “primary, secondary and tertiary” crime prevention. We analyzed policies and legislation ( n = 141) across Australian jurisdictions (a census was undertaken from May to September 2016, with policies spanning from 1900 to 2022). We found a strong focus on tertiary crime prevention, with recidivism rather than root causes of crime problematised. We also found little focus on primary crime prevention, despite some high-level cross sectoral strategies designed to prevent crime. In this paper, we will use the framework of Bacchi’s “what’s the problem?” approach, considering levels of crime prevention, social determinants of health, and discourses surrounding crime. We discuss policy implications and make suggestions for policy reform and accountability mechanisms to reduce crime and incarceration.
15
Ip, John. "RECONCEPTUALISING THE LEGAL RESPONSE TO FOREIGN FIGHTERS." International and Comparative Law Quarterly 69, no. 1 (December 4, 2019): 103–34. http://dx.doi.org/10.1017/s0020589319000447.
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AbstractThe Syrian civil war has highlighted the phenomenon of foreign fighting, in which individuals leave their home State to join an armed conflict overseas. The predominant paradigm for regulating foreign fighting, centred on United Nations Security Council Resolution 2178, is based on counterterrorism, which in essence treats foreign fighting as a form of terrorism. This paradigm is largely reflective of the domestic legislation of the United Kingdom, United States, Canada and Australia. This article argues that this approach is problematic, and that an alternative paradigm based on the international law of neutrality and related domestic legislation provides a better means for regulating foreign fighting.
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Perkowska, Magdalena. "THE INFLUENCE OF EU LAW ON POLISH CRIMINAL LAW FOR THE PREVENTION OF ILLEGAL IMMIGRATION." Zeszyty Prawnicze 21, no. 2 (June 24, 2021): 283–305. http://dx.doi.org/10.21697/zp.2021.21.2.13.
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The main aim of this paper is to examine whether or not the legal amendments to Polish criminal law for the prevention of illegal immigration were necessary and if so, whether they are proportional to the perceived threat posed by such migration. The paper discusses the implementation of the relevant EU legislation, viz. Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence; Council Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence; Directive 2009/52/WE/EC of the European Parliament and of the Council providing for minimum standards on sanctions and measures against employers of illegally resident third-country nationals; and the Council of Europe Convention on the Prevention of Terrorism; and the direct effects of this legislation on Polish criminal law as presented in the Polish Criminal Code (Arts. 264a and 259a k.k.), the aggravation of the penalties in Art. 264 § 3 k.k.; and the institution of Ustawa o skutkach nielegalnego zatrudnienia cudzoziemców nielegalnie przebywających na terytorium Polski (the Act on Liability for the Employment of Illegal Immigrants on Polish Territory). In addition, the article considers the effectiveness of the new criminal provisions, particularly on the basis of the number of convictions.
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Arifi, Kadri. "Witness Protection in Kosovo: Progress and Challenges." European Journal of Interdisciplinary Studies 1, no. 3 (December 30, 2015): 248. http://dx.doi.org/10.26417/ejis.v1i3.p248-252.
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The role and importance of the witnesses in criminal procedure in fighting serious and organized crime, corruption, terrorism and preserving the public security have continuously increased. Law enforcement institutions increasingly face with difficulties in the process of proving criminal acts in the judicial processes because of their complexity in providing sufficient evidence during the criminal investigation procedure. Therefore, besides the reactive investigation methods and application of special crime investigation measures, establishing a legal infrastructure and capacities for the implementation of witness protection concept is necessary as well. Kosovo government and institutions declared fight and prevention of all forms of organized crime, corruption and terrorism as a priority and up to now, it was evaluated that a great job was done in drafting legislation and strategic documents in the law enforcement field as well as increasing the operational capacities of law enforcement institutions. Regarding the witness protection in Kosovo, progress is achieved in improving legislation and establishing special structures for implementation of witness protection programs, but still remain some challenges that Kosovo law enforcement institutions face such as international cooperation and geographic, cultural and social specifics.
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Arifi, Kadri. "Witness Protection in Kosovo: Progress and Challenges." European Journal of Interdisciplinary Studies 3, no. 1 (December 30, 2015): 248. http://dx.doi.org/10.26417/ejis.v3i1.p248-252.
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The role and importance of the witnesses in criminal procedure in fighting serious and organized crime, corruption, terrorism and preserving the public security have continuously increased. Law enforcement institutions increasingly face with difficulties in the process of proving criminal acts in the judicial processes because of their complexity in providing sufficient evidence during the criminal investigation procedure. Therefore, besides the reactive investigation methods and application of special crime investigation measures, establishing a legal infrastructure and capacities for the implementation of witness protection concept is necessary as well. Kosovo government and institutions declared fight and prevention of all forms of organized crime, corruption and terrorism as a priority and up to now, it was evaluated that a great job was done in drafting legislation and strategic documents in the law enforcement field as well as increasing the operational capacities of law enforcement institutions. Regarding the witness protection in Kosovo, progress is achieved in improving legislation and establishing special structures for implementation of witness protection programs, but still remain some challenges that Kosovo law enforcement institutions face such as international cooperation and geographic, cultural and social specifics.
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Hara, Michał. "Recent Council of Europe and European Union legislation on preventing terrorism and its impact on the criminal law of Member States the example of Poland." Nowa Kodyfikacja Prawa Karnego 52 (December 13, 2019): 65–82. http://dx.doi.org/10.19195/2084-5065.52.5.
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The paper seeks to draw comparisons between recent instruments adopted by the Council of Europe CoE and the European Union EU in the field of prevention of terrorism. The examined instruments are the CoE convention on the prevention of terrorism of 2005 with its additional protocol of 2015 and the EU’s 2017 directive on combating terrorism. The paper demonstrates the different scope of criminalisation required by these instruments, highlighting areas in which the EU’s legal regime is stricter, providing for criminalisation of a wider array of activities aiming to prepare for the commission of terrorist offences in particular with regard to public provocation, receiving terrorist training and terrorist travel. The paper then examines implementation of both sets of international instruments into a national legal system using the Polish transposition as an example. Both good and poor examples of implementation are presented. The former includes comprehensive criminalisation of public provocation to commit a terrorist offence and membership of a terrorist organisation, while the latter includes insufficient transposition of provisions requiring the criminalisation of receiving terrorist training and terrorist travel as well as introducing unwarranted powers of the public prosecutor to grant leniency to terrorist travellers.
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Bastrykin, Alexandr I. "Countering terrorism and extremism by the Investigative Committee of the Russian Federation." Vestnik of Saint Petersburg University. Law 12, no. 4 (2021): 836–46. http://dx.doi.org/10.21638/spbu14.2021.402.
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The article provides a comprehensive analysis of one of the most complex problems of our time — terrorism. Terrorism in modern Russia and in the world poses a real threat to the security of society and the state. The work presents the activity of the National Antiterrorism Committee in coordinating and organizing interagency interaction aimed at combating terrorism, with the involvement of civil society institutions. Particular attention is given to the legal framework for countering terrorism, which includes constant monitoring and analysis of terrorist activity, Russian legislation in this field, and the preparation and adoption of relevant legal acts aimed at increasing the effectiveness of countering terrorism. The article analyzes the work of the Investigative Committee of the Russian Federation on the use of criminal law measures to combat terrorist crimes using specific examples and statistics. The issues of blocking the financing channels of terrorist organizations in the course of joint activities by the Investigative Committee of Russia, the Ministry of Internal Affairs of Russia, the FSB of Russia and Rosfinmonitoring are also addressed. It is emphasized that effective cooperation between all interested departments makes it possible to achieve positive results in countering terrorism and extremism. The author proposes to minimize the consequences of terrorist crimes on the Internet related to the recruitment of new members of terrorist organizations, including among the youth. The conclusion is made that it is necessary to increase the role of the informational component for crime prevention. The mass media should be used more actively for timely and reliable posting of information related to actions by law enforcement to counter terrorist activities and educate citizens. This would make it possible to form a negative attitude towards radicalism in all its manifestations and reject any attempt to justify terror.
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Dubovik, Ol'ga Leonidovna. "Criminal offences against public security: a comparative analysis of Russian and Polish criminal codes." Национальная безопасность / nota bene, no. 4 (April 2020): 20–27. http://dx.doi.org/10.7256/2454-0668.2020.4.29079.
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The problem of ensuring public security is recognized by society and the state as an increasingly important, which is discussed by not only politicians and lawyers, but also political scientists, philosophers, and religious figures. Terrorism, taking of hostages, piracy, mass disturbances, extremism, racism and religious persecution have turned into a bitter daily occurrence. Russian and foreign criminal legislation establishes responsibility for such criminal offences. Despite the adopted conventions, the development of common positions on the prevention of crimes against public security, as well as criminal law regulations substantially differ from country to country. In pursuance of unification of criminal legislation on combating terrorism, extremism and other assaults on public security, as well as efforts taken in this regard, the author observes both, shared goals and aspirations, as well as substantial differences thereof. From this perspective, the differences and similarities of criminal law institution (community), which establishes responsibility for offences against public security in the criminal codes of Russia and Poland, are evident. Such comparative analysis would be applicable in comprising Russian and foreign experience overall, but taking into account the historical, cultural, political, geographical and other indicators, it seems reasonable to use the regulation of the corresponding criminal law prohibitions in the two indicated countries.
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Mitchell, Andrew D. "Is Genocide a Crime Unknown to Australian Law? Nulyarimma v. Thompson." Yearbook of International Humanitarian Law 3 (December 2000): 362–83. http://dx.doi.org/10.1017/s1389135900000702.
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While it is clear that international treaties become part of Australian domestic law only once implemented by domestic legislation, it is less certain whether implementing legislation is required to incorporate customary international law into Australian law. This question is assuming a new importance as international law moves beyond dealing simply with relationships between sovereign nations to protecting the human rights of groups and individuals within states. Since the arrival of Europeans, indigenous Australians have witnessed enormous violations of their human rights. InNulyarimmav.Thompson, members of the Aboriginal community alleged that certain Commonwealth Ministers and Members of Parliament had committed genocide, and sought various remedies. Since Australia has not implemented the Convention on the Prevention and Punishment of the Crime of Genocide by legislation, the case squarely raised the issue of whether customary international law, and in particular international criminal law, could become part of Australian law without the assistance of Parliament.
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Hamin, Zaiton. "Recent changes to the AML/CFT law in Malaysia." Journal of Money Laundering Control 20, no. 1 (January 3, 2017): 5–14. http://dx.doi.org/10.1108/jmlc-04-2015-0013.
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Purpose The aim of this paper is to examine some of the recent changes to the old anti-money laundering and anti-terrorism financing law, which is now known as the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001. The paper will highlight the newly consolidated money laundering offences and the newly created offences including structuring of transactions or “smurfing”. Also, the transgression of cross-border movement of cash and negotiable instruments and tipping off about a money laundering disclosure will be assessed. Design/methodology/approach The paper uses a doctrinal legal research and secondary data, with the new AML/CFT legislation as the primary source. For comparative analysis, legislations in the UK, Australia and New Zealand are also examined. Secondary sources include case law, articles in academic journals, books and online databases. Findings The review of the AML/CFT law is timely and indicates the Malaysian government’s efforts to adhere to international standards set by the financial action task force. However, it is imperative that the Malaysian government addresses the remaining instrumental and normative deficiencies in the AML/CFT law to ensure that the recent legal changes are sufficiently comprehensive to prevent and regulate money laundering and terrorist financing within Malaysia. Originality/value This paper is a useful source of information for legal practitioners, academicians, law enforcement, policymakers, legislators, researchers and students.
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Turner, Ian. "Limits to Terror Speech in the UK and USA: Balancing Freedom of Expression with National Security." Amicus Curiae 1, no. 2 (March 2, 2020): 201–32. http://dx.doi.org/10.14296/ac.v1i2.5130.
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Article 10(1) of the European Convention on Human Rights, freedom of expression, is incorporated into UK law. With the growing Islamist terror threat after 9/11, particularly threatening European security, the Council of Europe introduced the Convention on the Prevention of Terrorism (CPT) 2005. One of the Articles within the Convention, Article 5, obliges states to outlaw ‘public provocation to commit a terrorist offence’. Drawing on its obligations in the CPT, the UK enacted section 1 of the Terrorism Act 2006: ‘encouragement of terrorism’. But, in implementing its duties, the UK went further. There are very real concerns, therefore, about the effects of this legislation on freedom of expression. The test for interpreting breaches of Article 10 is ‘proportionality’. Comparatively, in America there is a much stronger test than proportionality, ‘strict scrutiny’, in assessing limits to terror speech. However, in the age of Islamism, together with the speed, ease and little cost incurred in sharing terror speech online, should there not be a reappraisal of American law? The author is based in the UK. But the UK’s approach to limiting terror speech is arguably too intrusive of freedom of expression. This paper, therefore, proposes a compromise approach between the two jurisdictions.
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Bachmann, Sascha-Dominik, and Peter Galvin. "Pre-Trial Detention and Control Orders Under British Anti-Terror Legislation Post 9/11: Balancing a Need for Security with the European Convention on Human Rights – An Overview." Windsor Yearbook of Access to Justice 28, no. 1 (February 1, 2010): 185. http://dx.doi.org/10.22329/wyaj.v28i1.4494.
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Contemporary British anti-terror legislation has been characterised by an extensive use of extra-ordinary detention measures: the Terrorism Act 2000 and Terrorism Act 2006 contain provisions, which enable the extended pre-charge detention of terror suspects beyond the limits of normal criminal procedure. The now repealed provisions of Part IV of the Anti-terrorism, Crime and Security Act 2001 allowed the indefinite detention of foreign national terror suspects on a quasi-judicial basis. Its successor, the Prevention of Terrorism Act 2005, enables the use of Control Orders, effectively a form of house arrest characterised by restrictions on an individual’s liberty. In short, these measures have in common the extensive limitation of the individual’s right to liberty under Article 5 of the European Convention on Human Rights. Whilst the judiciary have curtailed the most abhorrent manifestations of such extraordinary measures, as detailed, the legal framework as it exists today, still raises ECHR compliancy issues. Legal reformation should be sought to end such an impasse by amending at the very least the statutory framework already in place. Ideally anti-terror detention provisions should be brought back within the sphere of criminal law and in compliance with the ECHR.La législation contemporaine anti-terroriste britannique a été caractérisée par l’utilisation considérable de mesures extraordinaires de détention : la Terrorism Act 2000 et la Terrorism Act 2006 contiennent des dispositions qui permettent la détention prolongée préalable à l’accusation de personnes soupçonnées de terrorisme au-delà des limites de la procédure criminelle normale. Les dispositions, maintenant abrogées, de la Partie IV de la Anti-terrorism, Crime and Security Act 2001 permettaient la détention indéfinie de ressortissants étrangers soupçonnés de terrorisme sur une base quasi-judiciaire. Son successeur, la Prevention of Terrorism Act 2005, permet l’utilisation d’Ordonnances de contrôle, qui sont effectivement une forme de détention à domicile caractérisée par des restrictions sur la liberté d’un individu. En bref, ces mesures ont en commun de limiter considérablement le droit de l’individu à la liberté énoncé à l’Article 5 de la Convention européenne des droits de l’homme. Bien que l’appareil judiciaire ait restreint les manifestations les plus odieuses de mesures extraordinaires du genre, tel que détaillé, le contexte judiciaire tel qu’il existe aujourd’hui soulève encore des questions de conformité à la CEDH. Il faudrait préconiser des réformes juridiques pour mettre fin à une telle impasse, en modifiant tout au moins le cadre statutaire déjà en place. Idéalement, les dispositions de détention anti-terroristes devraient être ramenées dans la sphère du droit criminel et en conformité à la CEDH.
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Leenaars, Antoon A. "Gun-Control Legislation and the Impact on Suicide." Crisis 28, S1 (January 2007): 50–57. http://dx.doi.org/10.1027/0227-5910.28.s1.50.
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Abstract. Gun control is the prototypical example of controlling the environment for the means of suicide, an effective public health approach to suicide prevention. Canada's Criminal Law Amendment Act of 1977 (Bill C-51) provides an excellent opportunity to illustrate the effects of legislative gun-control laws and the impact on suicide. The research in Canada supports the significant effect of C-51 in reducing suicides and firearm suicides, even if one controls for socioeconomic factors, although not equally for all ages. The young, a high-risk group, show the most significant decrease, without significant substitution of other methods (displacement). Studies on gun-control laws from New Zealand, the United States, and Australia support the Canadian findings. It is concluded that, although not equally applicable in all countries, gun control may well have significant applications in reducing suicide worldwide.
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Yakovleva, Margarita, and Elena Marchenko. "Historical prerequisites for legal regulation of prevention crimes committed by the Internal Affairs bodies of the Russian Federation." Vestnik of the St. Petersburg University of the Ministry of Internal Affairs of Russia 2020, no. 2 (July 21, 2020): 72–81. http://dx.doi.org/10.35750/2071-8284-2020-2-72-81.
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The relevance of crime prevention is that crime in today’s innovative society is an extremely dangerous phenomenon that has an adverse impact on the socio-economic status of each state, on individual citizens and their collective entities. This negative phenomenon also have a negative impact on the political «life» of the State: certain types of crimes have a pronounced anti-State character (terrorism, official deception, bribery, etc.). In this regard, there is no doubt about the special relevance of building an effective system of State response to any manifestations of crime, including a system of prevention by the Russian internal affairs agencies, research into the history of these relations. The subject of the study is a scientific analysis of the historical prerequisites of the genesis of the national legislation on the regulation of relations in the field of crime prevention. The purpose of this study is to analyze the legal peculiarities of crime prevention at various stages of legislation in this sphere before the modern stage development. The Methods of research are system analysis, historical, structural, logical, comparative scientific methods. The study highlights the historical stages of the genesis of national internal affairs agencies in relation to crime prevention activities. The results achieved include the analysis of sources of law in the field of crime prevention at each of the historical stages, the analysis of issues in the field of legislative development, and the identification of trends in each of the stages. It is noted that in modern conditions, in accordance with the current Russian legislation, in the system of state authorities whose activities are aimed at combating and preventing crimes, a special role is assigned to the internal affairs bodies of the Russian Federation, headed by the Ministry of Internal Affairs of the Russian Federation. It is this federal executive body that carries out the main range of activities to combat crime, organize preventive measures and prevent, detect and eradicate crime.
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Danilova, Irina, Olga Knyazeva, Svetlana Mayorova, and Liliana Peremolotova. "Environmental terrorism and socio-economic factors in the mechanism of countering terrorist crimes." E3S Web of Conferences 244 (2021): 12017. http://dx.doi.org/10.1051/e3sconf/202124412017.
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In the modern period of the widespread processes of globalization, integration and rapid migration, complicated foreign policy relations of a number of states belonging to transnational blocs defending opposing interests, of course, the problem of effectively countering terrorist and extremist activities, as well as preventing the spread of relevant ideologies, is becoming particularly acute. The international community, realizing the danger of terrorism and striving to develop effective measures to prevent it, has adopted a number of documents, which include United Nations conventions (for example, the International Convention for the Suppression of the Taking of Hostages, the International Convention for the Suppression of Terrorist Bombings, the International Convention for the Suppression of financing of terrorism). The increased importance of this type of crime is also confirmed by the consolidation in federal legislation of the relevant concepts and forms in which the considered illegal activity can be carried out, the methods of its prevention and sanctions used for committing offenses of an extremist and terrorist nature. The main normative legal acts in this area are the federal laws of July 25, 2002 No. 114-FZ “On Countering Extremist Activity” and of March 6, 2006 No. 35-FZ “On Countering Terrorism.” For the purposes of criminal law enforcement of countering terrorism and in the interests of fulfilling international obligations, the Criminal Code of the Russian Federation of June 13, 1996 (as amended on November 28, 2015, hereinafter referred to as the Criminal Code of the Russian Federation) establishes responsibility for the commission of crimes against international security.
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Coleman, Peter. "Censorship: Publish and Be Damned." Media International Australia 150, no. 1 (February 2014): 36–40. http://dx.doi.org/10.1177/1329878x1415000110.
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State censorship in Australia has been rare, controversial and short-lived. There was almost none in the liberal nineteenth century. In the twentieth century, the two world wars, the Great Depression and the new age of terrorism led to more determined, if comparatively temporary, attempts to censor publications that advocated sedition or violence. Moral censorship of obscenity was also rare in the nineteenth century, but enjoyed an ‘heroic’ period following the arrival of a new realism in literature and the age of lurid comic books. The internet has made such censorship almost totally ineffective. Blaspheming the Christian religion is no longer treated as a punishable offence, although attacking Islam may still sometimes be deemed actionable in law. The advent of multiculturalism has encouraged legislation to restrict free speech deemed to be ‘hate speech’, but its application has been episodic, unpopular and ineffective. The contest between writers demanding freedom and censors demanding standards is unending. But at the moment, the balance favours writers.
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Дундуков, Михаил, and Mikhail Dundukov. "FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 AND MODERN LEGAL STANDARDS IN THE FIELD OF INFORMATION COLLECTION AND ACQUISITION BY U. S. INTELLIGENCE AGENCIES." Journal of Foreign Legislation and Comparative Law 1, no. 4 (October 29, 2015): 0. http://dx.doi.org/10.12737/14314.
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This article reviews the development process for the legislation, regulating the U. S. intelligence agencies’ activities in the field of electronic surveillance. The article displays the reasons which prompted U. S. lawmakers to pass the Foreign Intelligence Surveillance Act of 1978; it analyzes the provisions of the law, governing the conditions and procedures for obtaining judicial order or Attorney General authorization on the implementation of electronic surveillance. Considerable attention is paid to the evolution of legal standards, added to the Foreign Intelligence Surveillance Act after the events of September 11, 2001. In particular, it analyzes amendments and additions to the Foreign Intelligence Surveillance Act, introduced on the basis of the USA Patriot Act of 2001, Intelligence Reform and Terrorism Prevention Act of 2004, Protect America Act of 2007, and other laws. The article also shows the patterns of formation of the legislative balance between the interests of the intelligence services and the need to respect the constitutional rights and liberties of American citizens.
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Dewulf, Steven. "Human Rights in the Criminal Code? A Critique of the Curious Implementation of the EU and Council of Europe Instruments on Combating and Preventing Terrorism in Belgian Criminal Legislation." European Journal of Crime, Criminal Law and Criminal Justice 22, no. 1 (2014): 33–57. http://dx.doi.org/10.1163/15718174-22012038.
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Different international instruments on the prevention and suppression of terrorism from the European Union and the Council of Europe task States with adopting new terrorist offences. At the same time, several provisions in these international instruments remind States of their obligation to fully adhere to their human rights obligations when implementing, interpreting and applying these new offences. Following these provisions, Belgium decided to insert a rather curious human rights clause in its Criminal Code. This article will critically examine this peculiar clause and the decision(s) made by the Belgian legislator. The key question is whether or not States should indeed also implement such human rights provisions in their criminal legislation, and if so, in what way they should best proceed. It will be argued that inserting such a specific human rights clause for one particular offence in a domestic criminal code might not only be superfluous, but could even have unforeseen, unwanted and hazardous effects.
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Ramos, Anthony. "Sketches Toward an Ontology of Non-Dwelling: Mara Salvatrucha 13, Radical Homelessness, and Postglobality." Journal of French and Francophone Philosophy 25, no. 1 (September 15, 2017): 61–85. http://dx.doi.org/10.5195/jffp.2017.814.
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In 1988, the California state legislature passed the California Street Terrorism Enforcement and Prevention Act (STEP), which allowed courts to “enhance” the sentences of offenders who have been proven to "promote, further, or assist in any criminal conduct by gang members." It bundled together criminality, policing, and incarceration in ways that drew upon the fears of the black/latino Others that were imminent in panics surrounding the “crack epidemic” and inner-city crime. Jumping to April 2016, the Salvadoran government has passed strikingly similar legislation, which centers on reclassifying gang-associated crimes as terroristic; in essence under their new laws gang affiliation is a terrorist. This, too, has been enacted in the midst of panic about gang violence and low-level warfare between gangs and the Salvadoran state. The adoption of US-style anti-gang approaches by the Salvadoran government is not new. In 2003, the right-wing government passed mano dura [“iron fist”] policies that sought to address increases in gang associate crime with zero-tolerance, tough-on-crime measures. Law enforcement received expanded leeway to target and arrest gang members, especially those from Mara Salvatrucha 13 (MS-13) and Barrio 18. Despite the lack of sustained reductions in violent crime, the mano durapolicies have remained and will only be exacerbated by the new legislation.
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Kobylnik, Dmytro, and Anton Burchak. "Cryptocurrency as an object of tax law: practice of political application and legal regulation." Law and innovations, no. 2 (30) (June 2, 2020): 24–30. http://dx.doi.org/10.37772/2518-1718-2020-2(30)-3.
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Problem setting. The work is devoted to the study of the legal status of cryptocurrency as an object of taxation. The legal status of cryptocurrency in legal relations between tax authorities and individuals or legal entities is an urgent problem, since there is only a small number of works on this issue. Of particular note is the study of international experience in taxation of cryptocurrency transactions, as well as an analysis of the most relevant proposals for amending national legislation in order to establish the legal status of cryptocurrency and transactions related to cryptocurrency as an object of tax legal relations. Analysis of recent researches and publications. Despite the great relevance of this topic, in the modern science of tax law there are no fundamental scientific works and studies on the problems of taxation of cryptocurrency and cryptocurrency transactions. Target of research. The purpose of the scientific article is to conduct research on the legal nature of cryptocurrency, as well as the disclosure of theoretical, practical problems and features of legal regulation of cryptocurrency and operations related to the use of cryptocurrency in modern tax law. Article’s main body. The article deals with the legal nature of transactions connected with the use of the cryptocurrency as an object of tax relations. The issues of the possibility of attributing income, as well as profits from cryptocurrency transactions to the objects of taxation of personal income tax, profit tax, and value-added tax, are disclosed in accordance with the current tax legislation. The following conclusions have been drawn: it is impossible to impose the relevant taxes on income and profits from transactions with the cryptocurrency; there is a conflict in the current legislation, according to which the proceeds from transactions with cryptocurrency may be subject to the Law ‘On Prevention and Counteraction to Legalization (Laundering) of the Proceeds from Crime or Terrorism Financing, as Well as Financing Proliferation of Weapons of Mass Destruction’ In addition, foreign experience of legal regulation of transactions with cryptocurrency in tax legislation in such economically developed countries as the USA, Great Britain, Canada, Germany, Switzerland, etc. has been analyzed. It has been established that nowadays, in world practice, there is no unambiguous approach to the tax regulation and taxation of cryptocurrency transactions. So, in some countries, the income from operations with cryptocurrency is taxable, while in others cryptocurrency transactions do not belong to objects of taxation. Conclusions and prospects for the development. As a result, the author presents her own proposals on amending the tax legislation aimed at determining the legal status of cryptocurrency transactions in tax law. The article is devoted to the legal nature of transactions related to the use of cryptocurrency as an object of tax relations. Foreign experience of taxation of operations with the cryptocurrency is analyzed. The author considers current proposals for amending the tax legislation of Ukraine, who’s the purpose of which is to determine the legal status and control measures for compliance with tax legislation in the implementation of cryptocurrency transactions in tax law.
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Tait, Gordon, and Belinda Carpenter. "The continuing implications of the ‘crime’ of suicide: a brief history of the present." International Journal of Law in Context 12, no. 2 (June 2016): 210–24. http://dx.doi.org/10.1017/s1744552316000021.
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AbstractThe long history of suicide as a criminal offence still has a significant contemporary effect on how it is perceived, conceptualised and adjudged. This is particularly the case within countries where suicide is largely determined within a coronial system, such as Australia, the UK and the US. This paper details the outcomes of a study involving semi-structured interviews with coroners both in England and Australia, as well as observations at inquests. It focuses around the widely held contention that the suicide rates produced within these coronial systems are underestimations of anywhere between 15 to 50 per cent. The results of these interviews suggest that there are three main reasons for this systemic underestimation. The first reflects the legacy of suicide as a criminal offence, resulting in the highest standard of proof for findings of suicide in the UK, and a continuing stigma attached to families of the deceased. The second is the considerable pressure brought to bear upon coroners by the family of the deceased, who, because of that stigma, commonly agitate for any finding other than that of suicide. The third involves the rise of ‘therapeutic jurisprudence’, wherein coroners take on the responsibility of the emotional well-being of the grieving families, which in turn affects the likelihood of reaching a finding of suicide. The conclusions drawn by the paper are also twofold: first – with respect to the stigma of suicide – it will take a lot more than simple decriminalisation to change deeply held social perceptions within the community. Second, given that suicide prevention programmes and policies are based on such deeply questionable statistics, targeted changes to coronial legislation and practice would appear to be required.
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A. Y., Babii. "The system of extremist crimes under the legislation of Ukraine." Almanac of law: The role of legal doctrine in ensuring of human rights 11, no. 11 (August 2020): 281–86. http://dx.doi.org/10.33663/2524-017x-2020-11-48.
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In the articles analysed scientific approaches are in relation to determination systems of crimes, that can belong to extremist. It is emphasized absence of the special norms on questions counteraction to extremism in Ukraine. In Ukraine scientists spare insufficient attention to extremist crimes. These problems have a significant impact on counteraction to extremism. The main efforts are aimed at combating such extremism form as terrorism in Ukraine. Absence of unanimity is established among scientists in understanding of extremism and him criminal displays. From the point of criminology of sight with the aim of decision of tasks of prevention and counteraction seems reasonable and expedient association of various extremist encroachments in one group of criminology under the general name «extremist crimes». Drawn conclusion that the use of the various going near determination of the system of extremist crimes conditioned foremost by complication and multidimensionalness of the phenomenon of extremism, and also by absence in the legislation of Ukraine of the special norms sanctified to counteraction to extremism. Criminal responsibility for acts that it is accepted to name extremist, envisaged by the norms of different divisions of Special part of Сriminal Code of Ukraine that testifies to the threat of extremism not only for bases of national safety of the state. Under extremist it is suggested to understand crimes committed for extremist motives and (whether) aims. There are sufficient and reasonable grounds to consider that to extremist crimes under the Criminal Code of Ukraine may include in certain cases the following encroachments: actions aimed at forcible change or overthrow of the constitutional order or seizure of state power (article 109 of the Criminal Code of Ukraine), encroachment on territorial integrity and inviolability of Ukraine (art. 110), financing of actions committed with the aim of forcible change or overthrow of the constitutional order or seizure of state power, change of borders of the territory or state border of Ukraine (art. 1102), treason (art. 111), encroachment on the life of a statesman or public figure (art. 112), sabotage (art. 113), obstruction of the lawful activities of the Armed Forces of Ukraine and other military formations (art. 1141), violation of equality of citizens depending on their race, nationality, religious beliefs, disability and other grounds (art. 161), terrorist act (art. 258), involvement in committing a terrorist act (art. 2581), public appeals to commit a terrorist act (art. 2582), creation of a terrorist group or terrorist organization (art. 2583), assistance in committing a terrorist act (art. 2584), financing of terrorism (art. 2585), creation of paramilitary or armed groups not provided by law (art. 260), mass riots (art. 294), calls to commit acts threatening public order (art. 295), propaganda of war (art. 436), planning, preparation, resolution and conduct of aggressive war (art. 437), the use of weapons of mass destruction (art. 439), genocide (art. 442), encroachment for the life of a representative of a foreign state (art. 443), crimes against persons and institutions with international protection (art. 444), mercenary (art. 447). Keywords: extremism, extremist crimes, system, extremist motives.
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A. Rahman, Aspalella. "Combating money laundering and the future of banking secrecy laws in Malaysia." Journal of Money Laundering Control 17, no. 2 (May 6, 2014): 219–29. http://dx.doi.org/10.1108/jmlc-09-2013-0036.
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Purpose – The purpose of this paper is to analyze banking secrecy laws against the background of the Malaysian anti-money laundering laws. It has been argued that the anti-money laundering law makes greater inroads into the banking secrecy rule when compared to the common law or other statutes. Banks can disclose customer’s information on even grounds of suspicion of money laundering. Banking secrecy is a customer privilege, whereas combating money laundering is critical for public safety and security. Indeed, achieving a proper balance is a desirable goal. But how do we go about achieving such a balance is a question encountered by many law enforcement authorities. This paper looks into these issues. Design/methodology/approach – This paper mainly relies on statutes as its primary sources of information. As such, the relevant Malaysian laws that provide the banking secrecy rule will be identified and analyzed. It will be necessary to examine the banking secrecy rule in the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (AMLATFA) and other relevant statutes in detail, as these are the most important legislation for the purpose of this paper. Findings – On closer inspection, it is submitted that AMLATFA provides sufficient safeguards to ensure that the disclosure of customer’s information is carried out in a manner that is not prejudicial to the interest of legitimate customers. This is a positive approach that could protect the innocent customers from being mistreated by the law. Ultimately, it can be said that the growing threat of global money laundering and terrorism makes the overriding of banking secrecy justified because without a flow of information from the banks, the effective prevention of the menace is not possible. Originality/value – This paper analyzes the inroads into the banking secrecy rule under the Malaysian anti-money laundering laws. It would provide some guidelines into this particular area for academics, banks, their legal advisers, practitioners and policy makers, not only in Malaysia but also elsewhere.
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Leheza, Ye, and D. Byelov. "Some features of the legal regulation of the State Service of Financial Monitoring of Ukraine." Uzhhorod National University Herald. Series: Law 2, no. 73 (December 15, 2022): 51–56. http://dx.doi.org/10.24144/2307-3322.2022.73.39.
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The article examines the issue of the administrative and legal status of the State Financial Monitoring Service of Ukraine. The main structural elements of the legal status of this service are determined. Theoretical approaches to defining the concept of "administrative legal entity" as the main element of the legal status of the State Financial Monitoring Service of Ukraine were analyzed. The author's definition of the administrative and legal status of the State Financial Monitoring Service of Ukraine is given. Ways to improve the current legislation in the field of combating the legalization of income obtained through criminal means are proposed.
In view of the conducted analysis, we define the administrative-legal status of the State Financial Monitoring Service of Ukraine as a set of rights and obligations defined by legislation, which State Financial Monitoring has and is obliged to observe, acting as a party in administrative legal relations regarding the prevention and counteraction of legalization ( (laundering) of proceeds obtained through crime, financing terrorism and financing the proliferation of weapons of mass destruction. Administrative legal personality (legal capacity and legal capacity), rights and obligations are considered to be elements of the administrative and legal status of the State Financial Monitoring Service of Ukraine.
We propose to minimize the influence of the Ministry of Finance of Ukraine on the formation of the personnel of the State Financial Monitoring Service of Ukraine, which will make it possible to increase the level of independence of the State Financial Monitoring Service in making relevant decisions, as well as to establish at the legislative level the possibility of this service to make inquiries about receiving information from the National Bank of Ukraine.
We propose to supplement the Law of Ukraine "On prevention and countermeasures against the legalization (laundering) of proceeds of crime, the financing of terrorism and the financing of the proliferation of weapons of mass destruction:" with new provisions on the submission to the State Financial Monitoring Service of Ukraine by the subjects of state financial monitoring of reports on the initiated proceedings in cases of administrative offenses provided for by Art. Art. 166-9, 188-34 of the Code of Ukraine on administrative offenses, appeals of decisions and results of court proceedings. Subjects of state financial monitoring provide notification and maintenance of the specified reporting according to the form established jointly with the State Financial Monitoring Service of Ukraine.
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Грабчук, Олександр, and Ірина Супрунова. "Financial monitoring as a condition for ensuring the state security of the country: concepts, components, stages of development." Public administration aspects 8, no. 4 (October 29, 2020): 75–83. http://dx.doi.org/10.15421/152082.
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The purpose of the study is to reveal the theoretical aspects of the system of preventing and combating money laundering and terrorist financing, determining the main directions and consequences of the development of the financial monitoring system as a whole and its components. At the present stage, international terrorism has intensified. Legalization of illicit proceeds and terrorist financing is one of the threats to national security. Financial monitoring is an effective tool for overcoming this threat in the world. The system of prevention and counteraction to legalization (laundering) of proceeds and financing of terrorism consists of financial monitoring and law enforcement unit. Institutional, methodological, organizational and normative-legal support is allocated as parts of financial monitoring. Institutional support is a key component of the financial monitoring system. Its elements affect other components of the system, determine the effectiveness of its operation. The characteristics and stages of development of institutional support are given. To determine the effectiveness of the financial monitoring system, it is advisable to use indicators of institutional support. The analysis of these indicators showed the effectiveness of the domestic financial monitoring system. The conclusions are to substantiate the areas for further improvement of the components of the financial monitoring system: for institutional support – the need to further establish the procedure for exchanging information with law enforcement agencies and state regulators is justified; for regulatory and legal support – the expediency of adopting regulatory and legal documents that will consolidate the legal status of new objects of financial monitoring is reflected; for organizational support – the expediency of expanding the requirements for training is reflected. This training should take into account the latest changes in legislation in the field of preventing and combating money laundering and terrorist financing.
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Syed Mustapha Nazri, Sharifah Nazatul Faiza, Salwa Zolkaflil, and Normah Omar. "Mitigating financial leakages through effective money laundering investigation." Managerial Auditing Journal 34, no. 2 (February 4, 2019): 189–207. http://dx.doi.org/10.1108/maj-03-2018-1830.
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Purpose This paper aims to conduct a comparison on the effectiveness of the law enforcement agencies (LEAs) of Australia and Malaysia in investigating money laundering cases by looking into the legal system and operational issues faced in conducting the investigation. Design/methodology/approach The purpose of this paper is to review and analyze the data collected from the Financial Action Task Force (FATF) Mutual Evaluation Report, focusing on the information outlined in the third chapter. The legal system and operational issues cover the area of technical compliance and effectiveness compliance, which were introduced in the latest FATF Evaluation Methodology issued in 2013. Findings The results show that both countries have the power needed to investigate money laundering and terrorism financing under their respective Anti-Money Laundering Act. However, Australia is seen to have a better investigative support system to assist LEAs during the investigation process. This explains the reason for difficulties in increasing the number of prosecutions for money laundering and terrorism financing cases. Hence, improvement actions are needed in curbing this issue. Practical implications The result suggests that Malaysia should strengthen the cooperation, coordination and capacity among LEAs to ensure effective targeting, investigation and prosecution of money laundering. The government should also revise the money laundering investigation time frame and broaden the power of LEAs in retrieving information during the investigation process. Malaysia should also enhance the investigative support system, which will be helpful for LEAs in gathering sufficient evidence to support their money laundering charges. Unlimited power in gathering evidence is prominent to charge money launders as it helps to gather information required for prosecution. Originality/value Prior literature focuses on the prevention mechanism, where this paper aims to focus on detection and investigation mechanism focusing on money laundering investigation conducted by LEAs. Lack of study on money laundering investigation calls for this research to be done to understand the strengths and weaknesses to improve its effectiveness in the future.
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Beebeejaun, Ambareen. "The Anti-Avoidance Provisions of the Mauritius Income Tax Act 1995." International Journal of Law and Management 60, no. 5 (September 10, 2018): 1223–32. http://dx.doi.org/10.1108/ijlma-07-2017-0174.
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Purpose A taxpayer who gets caught under Part VII of the Mauritius Income Tax Act is subjected to a corrective measure only in the form of payment of the amount of tax that would have been due in the absence of the avoidance arrangement, but the consequences set out in the same section do not result in any disincentive to the taxpayer that would ensure the prevention of the occurrence of such type of anti-avoidance practices in the future. This study aims to investigate the effectiveness of the anti-avoidance provisions in the Mauritius legislation as a weapon against impermissible tax avoidance, and the study also intends to critically analyse the remedies available against taxpayers who enter into impermissible tax avoidance transactions. Design/methodology/approach The methodology adopted for this qualitative study consists of a critical analysis and comparative legal review of the relevant legislation, case laws and literature. The anti-avoidance provisions of the Mauritius legislation will be compared with similar provisions of legislations of countries that have rigid preventive rules for anti-avoidance practices, and the selected countries are the UK and Australia because each country has been successful in diminishing the tax avoidances practices further to the imposition of penalties for impermissible tax avoidance. The black letter approach will also be used through which existing legal provisions, judicial doctrines, scholar articles and budget speeches governing anti-avoidance provisions for each country identified will be analysed. Findings Further to an analysis of the substantial differences between Mauritius anti-avoidance legal provisions and those of the UK and Australia, it is found that the backing of corrective actions by penalties act as a disincentive to prohibit impermissible anti-avoidance practices. The study concludes that, where there is abuse of law, the law needs to provide for penalties that must be suffered by the abuser, and hence, the study calls for an amendment in the Mauritius Income Tax Act to strengthen anti-avoidance provisions, by adopting similar provisions of the laws of Australia and the UK. Originality/value At present, there is no Mauritius literature on the researched topic, and this study will be one of the first academic writings on the subject of penalties for impermissible tax avoidance in Mauritius. The study is a new and unique topic in Mauritius, and for that reason, the study will largely rely on foreign sources that deal with penalties for impermissible tax avoidance, and this will include the Australian Taxation Administrative Act 1953, Australian case laws and the UK Finance Act 2016. This study is being carried out with the view to provide insightful recommendations to the stakeholders concerned in Mauritius to enhance the revenue collection avenues and methodologies for the Mauritius revenue authorities.
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BELQASEM, Zeyad. "THE FIGHT AGAINST MONEY LAUNDERING AND FINANCINGTERRORISM : COMPARATIVE STUDY OF FRENCH AND LIBYAN LAW." Rimak International Journal of Humanities and Social Sciences 4, no. 3 (May 1, 2022): 167–80. http://dx.doi.org/10.47832/2717-8293.17.11.
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The fight against money laundering offences and terrorist financing is a primary concern of States and international organizations, due to the threats generated by these two acts against the integrity of the financial system and global security. The reflections carried out within the framework of this thesis reveal the duality of the measures likely to fight against these two phenomena, which are focused on prevention and repression. After having addressed the international framework of this fight against money laundering and terrorist financing offences, in a preliminary chapter.This thesis, in its first part, highlights the autonomy of the substantive rules governing the criminalization of money laundering and terrorist financing. While money laundering is an offence of consequence, which necessarily implies the commission of an original offence, without losing its distinct and autonomous character, terrorist financing is an obstacle offence, a particular form of criminal conspiracy, which the legislator has established as an autonomous offence.In the second part, this research reveals the conceptual unity of the preventive regimes against money laundering and terrorist financing (starting with the obligation of vigilance, passing through the obligation to report suspicions, and ending with the procedures for freezing assets and seizing property), and of the sanctions applicable to the fight against these two incriminations.The comparative nature of this study allows us to note recent progress on the part of the Libyan legislator in order to make this fight effective, thus allowing reducing the gap between French and Libyan law, despite the existence of certain flaws in the Libyan legislation.This comparative study is an opportunity for us to make proposals for the evolution of the Libyan legislation in terms of anti-money laundering. Key words: Money laundering; Financing of terrorism; Crime; Criminal law; Comparative study; France; Libya.
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Kostiuchenko, Ya M. "THE EXPERIENCE OF LEGAL REGULATION OF THE DEVELOPMENT OF THE DIGITAL ECONOMY ON THE EXAMPLE OF THE LEADING COUNTRIES OF THE WORLD." Actual problems of native jurisprudence 3, no. 3 (June 2021): 189–94. http://dx.doi.org/10.15421/392171.
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The article is devoted to the experience of legal regulation of the digital economy on the example of the world's leading countries. The main spheres and branches of the digital economy that are the subject of legal regulation in the leading countries of the world are identified. A review of acts of legislation of foreign countries governing certain areas and types of legal relations covered by the concept of "digital economy". The opinion is substantiated that the development of the digital economy and its spread have set before the leading countries of the world a priority task to ensure the legal regulation of the relevant processes. The author examines the legislation of such foreign countries as Australia, Great Britain, Italy, France, USA, Japan and others, which defines the basic concepts and terms in the digital economy, establishes the legal regime of digital technology in the economy. It is argued that the peculiarity of the legislation of foreign countries in the study area is that it pays special attention to ensuring the protection of human rights, prevention of cyberattacks. The author describes international and European acts in the field of regulating the development of the digital economy. Based on the review of international law, it was found that its main achievements are: the formation and unification of terminological and conceptual apparatus, regulation and generalization of rules for concluding contracts in electronic form, determining the legal force of notifications and data transmission. used in the conduct of activities in the field of e-commerce, as well as measures to protect consumer rights. Based on the analysis of the experience of foreign countries in the field of digital economy regulation, a number of recommendations have been developed to improve national legislation in the field of digital economy regulation. It is substantiated that the primary task is to plan legislative activities in this area, which will ensure the consistency and orderliness of the adoption of relevant legal acts in the field of digital economy regulation.
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TURCHYN, Nataliia, and Artem TURCHYN. "Legal regulation of cryptocurrency in Ukraine." Economics. Finances. Law, no. 5/1 (May 26, 2021): 26–29. http://dx.doi.org/10.37634/efp.2021.5(1).6.
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Introduction. Cryptocurrency is a relatively new financial market instrument, but due to a lack of the fundamental principles of the legal regulation and legal regulation of market of cryptocurrency, individuals and legal entities, who have at their disposal the virtual assets are effectively deprived of an effective way to protect their ownership of such assets. The following key features of cryptocurrency are outlined: lack of control and restrictions on financial transactions, anonymity, the possibility of using it as an investment tool, the speed of transactions, a high degree of security. The purpose of the paper is explores the question of definition of legal essence, the maintenance of cryptocurrency is investigated. Results. Nature and legal uncertainty does not allow it to be identified with any of the related concepts (money, securities, currency value, means of payment, currency, money surrogate, etc.). That is, cryptocurrencies are currently in Ukraine outside the scope of legal regulation. The analysis of definition of a concept of cryptocurrency in the draft law on circulation of cryptocurrencies in Ukraine is carried out; prospects for the legislative implementation of cryptocurrency in Ukraine, in addition, the author draws attention to the novelties of the legislation on financial monitoring, namely certain provisions of the Law of Ukraine “On Prevention and Counteraction to Legalization (Laundering) of Proceeds from Crime, Financing of Terrorism and Financing of Weapons of Mass Destruction Proliferation”. Conclusion. The analysis of the characteristics of cryptocurrency leads to a conclusion that the cryptocurrency can be understood as electronic money. The paper presents a vision of further trends in the use of cryptocurrency in everyday life and business environment, opens up an opportunity for further research in the field of the cryptocurrency market, further development of Ukraine and integration to the world financial system.
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Filina, Nina. "Political accents of modern interactions religious and secular in society." Journal of Political Research 4, no. 3 (October 6, 2020): 24–45. http://dx.doi.org/10.12737/2587-6295-2020-24-45.
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The purpose of this work is to study the modern interactions of religious and secular societies, they are simultaneously considered through organizational, legal and political points of view. By the method, the author chose an analytical review of the regulatory framework, foreign and domestic publications on the interaction of religious and secular in society. The work is based on a secondary analysis of data from socio-political surveys of leading research centers - the VTsIOM, the analytical center of Yuri Levada and the Europe Social Survey. Since today the issue of national security, the fight against religious extremism and terrorism, the prevention of conflicts on a religious basis, the harmonization of interfaith relations, the author's study is relevant. The scientific novelty of the work is determined by a comprehensive review of the legislative basis of freedom of conscience in Russia and abroad, as well as a political and organizational analysis of cases and content. Such an analysis suggests that the system of international law and the legislation of the Russian Federation, State-confessional policy, has made it possible to include religious organizations not only in the social sphere, but also in the system of public administration, in the political process. An analysis of cases, content and practices allows us to conclude that representatives of the religious and secular parts of society do not always have the same opportunities, rights, freedoms in the conduct of their activities. Unbelievers or representatives of other small (non-traditional) faiths may be an acceptable side.
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KUZMINSKA, Olga, and Оlena ABESINOVA. "Improvement of regulatory and legal support of financial monitoring in Ukraine." Fìnansi Ukraïni 2021, no. 7 (September 8, 2021): 108–26. http://dx.doi.org/10.33763/finukr2021.07.108.
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In the publication according to the results of the analysis of the main international and national regulations of financial monitoring on the basis of the historical approach the directions of improvement of normative – legal maintenance in the field of prevention and counteraction to legalization of illegal incomes in Ukraine are outlined. The peculiarities of the main historical stages of the formation of the financial intelligence unit in Ukraine – the national center for analysis of information on suspicious transactions and other information on money laundering, terrorist financing, and financing the proliferation of weapons of mass destruction are discloses. The issues of implementation of the provisions of international normative acts regulating the sphere of counteraction to legalization (laundering) of proceeds from crime, financing of terrorism and financing of proliferation of weapons of mass destruction at the international level are highlighted, in particular, the standards developed by the Financial Action Task Force on Money Laundering (FATF) and the Directives of the European Parliament and the Council of the EU, United Nations documents, international conventions ratified by Ukraine. Considerable attention is paid to the need for further harmonization of national and international legislation in the field of financial monitoring. It is proposed to take into account the conceptual principles of behavioral economics when improving the regulatory and legal support of financial monitoring (bylaws), in particular regarding the application of risk-oriented approach when analyzing and identifying suspicious financial transactions and identifying the ultimate beneficial owner of the client. The necessity of scientific research in the researched field in the traditional professional directions: “Money, finance and credit” and “Administrative law and process; finance law; information law”, and in related scientific specialties: “Economics and management of the national economy” (in the field of “Economic security of the national economy”), and “Accounting, analysis and audit (by type of economic activity)” (in the areas of “Organization of auditing: the specifics of formation and the functioning of audit services”, and “Accounting and analytical operations, their standardization and unification”) is substantiated.
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Tovkun, Igor, and Viktoriya Slivnaya. "Features of legal regulation of the implementation of primary financial monitoring by attorney offices and attorney associations." Law and innovations, no. 1 (33) (April 5, 2021): 104–10. http://dx.doi.org/10.37772//2518-1718-2021-1(33)-15.
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Problem setting. According to the current Law of Ukraine «On Prevention and Counteraction to Legalization (Laundering) of Proceeds from Crime, Financing of Terrorism and Financing of Proliferation of Weapons of Mass Destruction», attorney offices and attorney associations are also included in the system of primary financial monitoring entities. However, with the entry into force on April 28, 2020, the updated version of the Law changed the procedure and conditions for financial monitoring, assigning a broader list of responsibilities, a number of grounds for prosecution for violating the Law, increased threshold transactions and more. The analysis of such innovations raised the question of the legal certainty and indisputability of some of these provisions. Therefore, the relevance of this work is to determine how successful the provisions of the new version of this Law have been in practice and how they have affected the implementation of primary financial monitoring by attorney offices and attorney associations over the past year. Target research. The purpose of the work is to analyze the provisions of the current Law, which have become novelties in the process of financial monitoring by attorney offices and attorney associations, to identify their problems that arise in practice and arise due to legislative inaccuracies or gaps, and to suggest solutions. Analysis of recent research and publication. The issue of changes for attorney offices and attorney associations as subjects of primary financial monitoring has become an active focus of many lawyers. Examples of authors who pay attention to this problem are Bilousov A.I., Panchyshyn A.D., Andrusyak V.V., Gaivoronskaya V.V., Pavlunenko K.L., Nechiporuk S.I., Onishchenko V.S., Bets N.P., Drozdov O.O., Drozdova O.G. and other. Article’s main body. One of the primary responsibilities of primary financial monitoring entities is to register. The Law does not contain more specific provisions on the terms of such duty and other conditions of registration. This issue was partially resolved by the adoption of the Resolution «Some issues of the organization of financial monitoring» of September 9, 2020. However, since it came into force only on January 1, 2021, the question arises as to the registration of those lawyers whose relations with clients were subject to financial monitoring and arose from the entry into force of the Basic Law. In addition, the question arose as to whether those attorney offices and attorney associations whose activities were aimed exclusively at providing protection, representing clients or advising them were obliged to register with a specially authorized body. After all, among the actions that the law allows not to perform in the case of providing such services, there is no exemption from the obligation to register. A topical issue for advocacy during the initial financial monitoring of their clients is the preservation of legal secrecy in this process. Lawyers see some uncertainty in national law in the possibility of a broad interpretation of the concept of «advising on the protection and representation of the client», as this is the basis that frees attorney offices and attorney associations from the obligations of primary financial monitoring of their clients. A similar generality is characteristic of the definition of «suspicion» in the Law, the existence of which the subjects of primary financial monitoring are obliged to report. As a result, attorney offices and attorney associations are effectively responsible for gathering information against their clients on a large scale. Conclusions and prospect of development. Adoption in 2019 of a new version of the Law «On Prevention and Counteraction to Legalization (Laundering) of Proceeds from Crime, Financing of Terrorism and Financing of Proliferation of Weapons of Mass Destruction» was aimed at a correct and useful goal. However, the legislator did not take into account all the issues that may arise in practice in the process of carrying out such activities. Some norms of the updated legislation also turned out to be imperfect. Based on this, it is necessary to define at the regulatory level all the requirements for registration of special financial monitoring entities by a special authorized body, to establish clearer rules for notification of suspicion by attorney offices and attorney associations and conditions for exemption from this obligation.
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Tovkun, Igor, and Viktoriya Slivnaya. "Features of legal regulation of the implementation of primary financial monitoring by attorney offices and attorney associations." Law and innovations, no. 1 (33) (April 5, 2021): 104–10. http://dx.doi.org/10.37772/2518-1718-2021-1(33)-15.
Full textAbstract:
Problem setting. According to the current Law of Ukraine «On Prevention and Counteraction to Legalization (Laundering) of Proceeds from Crime, Financing of Terrorism and Financing of Proliferation of Weapons of Mass Destruction», attorney offices and attorney associations are also included in the system of primary financial monitoring entities. However, with the entry into force on April 28, 2020, the updated version of the Law changed the procedure and conditions for financial monitoring, assigning a broader list of responsibilities, a number of grounds for prosecution for violating the Law, increased threshold transactions and more. The analysis of such innovations raised the question of the legal certainty and indisputability of some of these provisions. Therefore, the relevance of this work is to determine how successful the provisions of the new version of this Law have been in practice and how they have affected the implementation of primary financial monitoring by attorney offices and attorney associations over the past year. Target research. The purpose of the work is to analyze the provisions of the current Law, which have become novelties in the process of financial monitoring by attorney offices and attorney associations, to identify their problems that arise in practice and arise due to legislative inaccuracies or gaps, and to suggest solutions. Analysis of recent research and publication. The issue of changes for attorney offices and attorney associations as subjects of primary financial monitoring has become an active focus of many lawyers. Examples of authors who pay attention to this problem are Bilousov A.I., Panchyshyn A.D., Andrusyak V.V., Gaivoronskaya V.V., Pavlunenko K.L., Nechiporuk S.I., Onishchenko V.S., Bets N.P., Drozdov O.O., Drozdova O.G. and other. Article’s main body. One of the primary responsibilities of primary financial monitoring entities is to register. The Law does not contain more specific provisions on the terms of such duty and other conditions of registration. This issue was partially resolved by the adoption of the Resolution «Some issues of the organization of financial monitoring» of September 9, 2020. However, since it came into force only on January 1, 2021, the question arises as to the registration of those lawyers whose relations with clients were subject to financial monitoring and arose from the entry into force of the Basic Law. In addition, the question arose as to whether those attorney offices and attorney associations whose activities were aimed exclusively at providing protection, representing clients or advising them were obliged to register with a specially authorized body. After all, among the actions that the law allows not to perform in the case of providing such services, there is no exemption from the obligation to register. A topical issue for advocacy during the initial financial monitoring of their clients is the preservation of legal secrecy in this process. Lawyers see some uncertainty in national law in the possibility of a broad interpretation of the concept of «advising on the protection and representation of the client», as this is the basis that frees attorney offices and attorney associations from the obligations of primary financial monitoring of their clients. A similar generality is characteristic of the definition of «suspicion» in the Law, the existence of which the subjects of primary financial monitoring are obliged to report. As a result, attorney offices and attorney associations are effectively responsible for gathering information against their clients on a large scale. Conclusions and prospect of development. Adoption in 2019 of a new version of the Law «On Prevention and Counteraction to Legalization (Laundering) of Proceeds from Crime, Financing of Terrorism and Financing of Proliferation of Weapons of Mass Destruction» was aimed at a correct and useful goal. However, the legislator did not take into account all the issues that may arise in practice in the process of carrying out such activities. Some norms of the updated legislation also turned out to be imperfect. Based on this, it is necessary to define at the regulatory level all the requirements for registration of special financial monitoring entities by a special authorized body, to establish clearer rules for notification of suspicion by attorney offices and attorney associations and conditions for exemption from this obligation.
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Mugarura, Norman. "The jeopardy of the bank in enforcement of normative anti-money laundering and countering financing of terrorism regimes." Journal of Money Laundering Control 18, no. 3 (July 6, 2015): 352–70. http://dx.doi.org/10.1108/jmlc-01-2014-0007.
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Purpose – The paper aims to examine the jeopardy of the bank in performing its varied functions to customers, the public and regulatory authorities. The bank’s overriding mandate is accepting deposits from its customer and to make payments as and when requested. However, banks also perform investment undertakings and other related functions. Banks have been applauded for facilitating the fight against crimes such as money laundering and financing of terrorism but they are times when they have also been vilified for not doing enough to prevent the foregoing crimes. There is evidence that banks have sometimes been exploited to facilitate commission of crimes either wilfully or recklessly. In this regard, banks which do not do enough to prevent commission of crimes have been perceived as either delinquents or villains for allowing themselves to be exploited for those inclined at committing money laundering and its predicate offences. The paper explores the varied situations in which banks have been caught up in both of these foregoing situations. They have done a plausible job in safeguarding the public and prevention of money laundering and terrorism offences. They have also been perceived as villains by allowing themselves to be exploited by criminals in perpetuating the foregoing offences. In both of the foregoing extremes, public opinion has been divided – there are those who support that banks do a good job and those who brand banks as villains. Those empathising with banks argue that by requiring banks to report suspected money laundering activities creates unfriendly business environment and hostilities in a particular bank. Apparently, this school of thought posits that over-regulation of banks potentially generates a hostile business environment and scares off potential business clients not to mention generating an anti-business climate in a particular bank. To them, banks should do just banking without being encumbered to provide overarching oversight responsibilities such as fighting money laundering and terrorism. The work of preventing crimes should be responsibility of oversight institutions and authorities, and banks should not be involved in executing of the foregoing responsibilities. As such, banks have been reduced to act as policemen. However, one wonders whether the foregoing thesis suggests that banks should just sit back and be exploited for criminal purposes or accept to acquiesce wrong doing or lawlessness simply for business expediency? This paper explores the jeopardy of the bank in delivering its mandate and to evaluate where the balance between its competing obligations needs to be drawn. Banks perform duties to the customer (emanating from their contractual relationship) and its responsibility to the regulatory authorities to safeguard the public. The paper provides an exposition of the modern business regulatory landscape within which banks operate in performing their competing duties towards the customer and the public. In the modern elusive global market environment, banks are in a jeopardy because people they would least expect to be involved in money laundering could be chief instigators of money laundering (ML) and predicate crimes. This includes presidents (e.g. Sana Abacha of Nigeria), minsters, judges and other elevated government figures could be the ones instigating the commission of money laundering offences in their countries. The jeopardy of the bank is that some of the foregoing political officials could be untouchable political figures on whose its survival depends. Banks need to remain fully alert bearing in mind that with globalised business environment in which they operate, circumstances can change very rapidly. It would also be overly unnecessary to blame banks for failures in the regulatory system beyond their control such as the global crisis – which they could not have foreseen or prevented. Finally, this paper articulates the fluid environment in which the modern bank operates and its attendant challenges. Design/methodology/approach – The paper was written by the analysis of both primary and secondary data sources focusing on vulnerability of banks in executing their mandate as financial institutions. The paper has also utilised case law on misfeasance of banks where courts have found banks for misfeasance and literally not doing enough in execution of their obligations to prevent financial crimes. This paper has also utilised some of the data utilised by the author in writing his PhD dissertation but done so in a distinctive manner to foster the objective of this paper. The author has harnessed and evaluated the foregoing data sources and adapted them in different contexts to address pertinent issues this paper was written on. Findings – The findings are not clear cut of whether banks qualify to be branded villains or heroes. The findings have demonstrated that the majority of banks are doing a plausible job to prevent money laundering and prevention of terrorism. There are also discerning situations where banks have been less valiant in prevention of crimes and in doing so they have put themselves in a negative spotlight. The paper has utilised different data sources generated on the role of banks in providing frontline services to the public and their failure to execute the foregoing mandate diligently. Research limitations/implications – The limitation of the paper is that it would have been better to evaluate the secondary data sources used in writing it by carrying out interviews on some issues it hinges. Due to some practicalities, it was not possible to carry out interviews or to send out questionnaires to banks and other financial institutions. As such, some of the data sources used could have been biased. Practical implications – This paper is of significant importance for banks, regulatory authorities, governments and those with a stake in the way banks are regulated and governed. I presume the foregoing stakeholder constituencies will find it a worth read and interesting. The paper also demonstrates that some the information written on banks in newspapers is not always true and urges caution in utilising newspapers as a source of generating data. It also underscores the need for banks to be more vigilant in execution of their mandate towards different stakeholder constituencies, so that they are not inadvertently exploited for criminal purposes. Social implications – The paper has far reaching implications for banks to be utilised in prevention of crimes in executing their mandate cautiously. It is important that much as financial institutions should be utilised in the foregoing respect, they should not be constrained by over-regulation, as this also means that they would pay dearly in compliance costs. Originality/value – The originality of the paper is manifested that while it has relied heavily on secondary and primary data sources, it was written in a distinctive way to foster the objectives of writing it. The paper was also evaluated in the context of empirical evidence where banks have used the influence to prevent crimes or where they have been less vigilant in doing so and they have been exposed to criminal exploitation. The foregoing experiences were evaluated carefully using reliable data sources such as case law and recent legislation.
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Suhariyanto, Budi. "URGENSI PEMIDANAAN TERHADAP PENGENDALI KORPORASI YANG TIDAK TERCANTUM DALAM KEPENGURUSAN." Jurnal Yudisial 10, no. 3 (December 29, 2017): 235. http://dx.doi.org/10.29123/jy.v10i3.240.
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ABSTRAKKejahatan korporasi saat ini tidak hanya dapat dilakukan oleh orang yang berada dalam struktur organisasi, tetapi pengendalinya bisa dilakukan oleh orang yang tidak tercantum dalam kepengurusan. Perundang-undangan tidak mengatur secara jelas bahwa pengendali korporasi yang berada di luar struktur organisasi dapat dijerat pemidanaan. Putusan Nomor 1081 K/PID.SUS/2014 menjatuhkan pidana terhadap pengendali korporasi yang tidak tercantum dalam kepengurusan. Menarik dipermasalahkan yaitu bagaimana urgensi pemidanaan terhadap pengendali korporasi yang tidak tercantum dalam kepengurusan. Metode penelitian normatif digunakan untuk menjawab permasalahan tersebut. Dari hasil pembahasan disimpulkan bahwa hanya undang-undang tentang pencucian uang dan undang-undang tentang pendanaan terorisme yang mengatur tentang pengendali korporasi, tetapi pengaturannya masih belum jelas dalam mengidentifikasi pengendali korporasi yang tidak tercantum dalam kepengurusan. Putusan Nomor 1081 K/PID.SUS/2014 memberikan penjelasan hukum bahwa termasuk personel pengendali korporasi adalah seseorang yang tidak tercantum dalam struktur kepengurusan tetapi mempunyai kekuasaan dan kewenangan yang sangat menentukan dalam pengambilan keputusan perusahaan. Melalui kaidah hukum tersebut, Mahkamah Agung berhasil mengisi kekosongan hukum atas ruang lingkup personel pengendali korporasi di luar struktur kepengurusan. Putusan ini dapat dijadikan yurisprudensi dalam rangka efektivitas penanggulangan tindak pidana korporasi di Indonesia.Kata kunci: pemidanaan, pengendali, tindak pidana korporasi.ABSTRACT Corporate crime is now not only committed by the persons recorded in an organizational structure, but the controller can be done by people who are not recorded in the organization. The legislation does not set clearly that corporate controllers outside the organizational structure can be charged with criminal prosecution. Supreme Court Decision Number 1081 K/PID.SUS/2014 imposed a sentence against the corporate controllers that are not recorded in the organization. It is interesting to focus on the urgency of sentencing against unrecorded corporate controllers in the management of the organization. The normative research method is used in this analysis to see the sights of the problem. As of the discussion it is concluded that only Law on Money Laundering and Law on Terrorism regulating on the issue of corporate controller, yet still inexplicit in identifying the corporate controllers unrecorded in the management of organizational structure. The Court Decision Number 1081 K/PID.SUS/2014 provides the legal explanation stating that someone who is not included in the corporate governance structure but has the power and authority that is crucial in corporate decision-making is called the corporate controller. Through the rule of law, the Supreme Court has been successfully fills a legal vacuum on the scope of the corporate control of personnel outside the management structure. This ruling can be used as jurisprudence in the framework of effectiveness of the prevention of corporate crime in Indonesia.Keywords: sentencing, controller, corporate crime.
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Pchelina, O. "On the question of criminal procedural regulation of the term “electronic assets obtained by criminal route”." Uzhhorod National University Herald. Series: Law, no. 71 (August 25, 2022): 327–32. http://dx.doi.org/10.24144/2307-3322.2022.71.55.
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In the article it has been emphasized that the effectiveness of criminal proceedings in general and the seizure of such property as electronic assets obtained by criminal means, in particular, depends on understanding the nature of this type of asset and the state of its criminal procedure. It has been emphasized that the researched question acquires special value in the conditions of constant information-technological development and its introduction in all spheres of public life. It has been analyzed the provisions of regulations in which the legislator uses the term “asset”. It has been found that the category “asset” is used in accounting and financial reporting. It has been established that in the tax legislation there is a phrase “assets of an individual”. It has been noted that the legislative interpretation of the term “assets” is given in the Criminal Code of Ukraine, the laws of Ukraine “On the National Agency of Ukraine for Detection, Investigation and Management of Assets Obtained from Corruption and Other Crimes” and “On Prevention and Counteraction to Legalization (Laundering) of Proceeds from Crime, Financing of Terrorism and Financing of the Proliferation of Weapons of Mass Destruction”. It has been stated that at the legislative level the term “electronic assets” has not found its consolidation and settlement. It has been noted that electronic assets are, in fact, financial assets in electronic form. It has been found that the term “obtained by criminal means” is understood. It has been proposed to carry out criminal procedural regulation of the term “electronic assets obtained by criminal means” by supplementing Part 1 of Art. 1 of the Law of Ukraine “On the National Agency of Ukraine for Detection, Investigation and Management of Assets Obtained from Corruption and Other Crimes” by paragraph 11 of the following content: “1-1) electronic assets obtained by criminal means - cash in the form of entries in accounts non-cash form) and virtual assets that are directly or indirectly obtained as a result of a criminal offense and / or are income from such property; intended (used) to persuade a person to commit a criminal offense, financing and / or material support of a criminal offense or reward for its commission; is the subject of a criminal offense; found, manufactured, adapted or used as a means or instrument of committing a criminal offense”.