scholarly journals Menakar Perlindungan Justice Colaborator

2016 ◽  
Vol 13 (2) ◽  
pp. 431
Author(s):  
Hariman Satria
Keyword(s):  
Criminal Law ◽  
The State ◽  
Good Faith ◽  
Constitutional Court ◽  
Special Equipment ◽  
Modus Operandi ◽  
The Future

Corruption is one form of systematic organized crimes performed with complicated modus operandi. Disclosing of this crime, in addition to requiring special equipment, also needs a certain method. One of the methods is using actors who collaborate or justice collaborator. The provisions on justice collaboratororiginally referred to Article 10 paragraph (2) of Law No. 13 of 2006 on Protection of Witnesses and Victims –but there are indications that these provisions do not provide protection to the justice collaborator. Because even though he plays as a collaborating actor,   it does not result in a loss of authority of the state to prosecute the concerned. This provision is considered violating the principle of lex certain criminal law, for  its ambiguity and multiple interpretations. Constitutional Court in its decision No. 42/PUU-VIII/2010states that Article 10 paragraph (2) regarding a quoprovision is not contrary to the 1945 Constitution. Without realizing it, Constitutional Court has come affirming the lack of protection on the collaborating actors. The fate of justice collaboratorthen finds the clarity in Article 10 paragraph (1) of Law No. 31 of 2014 on Protection on Witnesses and Victims. In the future, with reference to a quo provision, there is no guarantee to the justice collaboratorthat he would not be prosecuted either criminal or civil, except for statements or testimony that is not done in good faith. Besides regulated under legislation of Witnesses and Victims Protection, protection of the justice collaboratorhas also been set in UNTOC 2000 and UNCAC 2003.

Conclusion

2020 ◽  
pp. 175-186
Author(s):  
Sean Fleming
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
New Technologies ◽  
Thomas Hobbes ◽  
The State ◽  
International Criminal Law ◽  
State Responsibility ◽  
The Future ◽  
International Responsibility

This concluding chapter summarizes the implications of the Hobbesian theory of state responsibility and then looks to the future. There are three ongoing trends that are likely to alter both the nature and the scope of state responsibility: the development of international criminal law, the proliferation of treaties, and the replacement of human representatives with machines and algorithms. Although the practice of holding individuals responsible for acts of state might seem to render state responsibility redundant, the rise of international criminal law will not lead to the decline of state responsibility. The two forms of international responsibility are complementary rather than competitive. If anything, the domain of state responsibility will continue to expand in the coming decades because of the proliferation of treaties. New technologies pose the greatest challenge to current understandings of state responsibility. Thomas Hobbes' theory of the state, which is mechanistic to begin with, is well suited to the emerging world of mechanized states.

scholarly journals Crimes and offences in the sphere of monetary circulation

2016 ◽  
Vol 3 (3) ◽  
pp. 162-167
Author(s):  
T N Minnivaleev ◽  
A N Minnivaleeva
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
The State ◽  
Constitutional Court ◽  
Financial Responsibility ◽  
Legal Coercion ◽  
Tremendous Importance ◽  
Theoretical Issues ◽  
Monetary Circulation ◽  
Main Distinguishing Feature

The paper examines theoretical issues of crimes and offenses in the sphere of monetary circulation. Investigates the concept of monetary circulation, the brief description of the main types of offenses and crimes in this sphere. The authors point out that the responsibility for violation of money circulation and payments provides for administrative, civil, financial and criminal law. Given the systematization of the basic rules of law relating to crimes and offences in this sphere. Defined the concept of categories of monetary circulation and its role in economic and legal science. Also, the category of monetary circulation is considered from positions of the Constitutional Court of the RF. The peculiarities cash and cashless monetary circulation and money turnover concept. The authors discuss the Foundation of financial responsibility and its contrast to administrative and criminal responsibility. The authors indicate that the main distinguishing feature for financial responsibility - law recovery character. The authors note that given the importance of the sphere of monetary circulation, its tremendous importance to the economy, to solve social problems, but also to ensure the fi- nancial stability of the state is necessary and appropriate to develop the Institute of state and legal coercion in the sphere of monetary circulation, to expand and systematize its contents.

scholarly journals THE DUTY OF UTMOST GOOD FAITH IN ASSET-FORFEITURE JURISPRUDENCE – SOME LESSONS TO LEARN

Obiter ◽  
2021 ◽  
Vol 34 (3) ◽  
Author(s):  
Nkululeko Christopher Ndzengu ◽  
John C von Bonde
Keyword(s):  
Relevant Information ◽  
Organised Crime ◽  
The State ◽  
Good Faith ◽  
Constitutional Court ◽  
Per Se ◽  
Utmost Good Faith ◽  
Asset Forfeiture ◽  
High Degree

The Constitutional Court has held that the provisions of the Prevention of Organised Crime Act 121 of 1998 that empower the State to apply ex parte for restraint and preservation orders regarding property involved in criminal activities do not per se violate the requirements of the audi alteram partem rule. However, the State still has to adhere to the normal procedural and other obligations imposed on applicants approaching courts for orders on an ex parte basis; one of these obligations is the duty of utmost good faith or uberrima fides. This article examines the application of this rule by SA courts. As respondents are diligent in seeking instances of nondisclosure of relevant information to warrant the application of the uberrima fides rule to their advantage, a high degree of openness and good faith is required from the State in order to avoid these ex parte orders being rescinded or discharged

scholarly journals PENGUATAN PENGATURAN HAK ANAK BERDASARKAN KONSTITUSI DAN PERBANDINGAN KONSTITUSI DIBERBAGAI NEGARA

AN-NISA ◽  
2019 ◽  
Vol 11 (1) ◽  
pp. 372-383
Author(s):  
Ismail Aris
Keyword(s):  
Human Rights ◽  
Child Protection ◽  
The State ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Constitutional Protection ◽  
Rights Of The Child ◽  
The Future ◽  
The Republic ◽  
The Right

This article shows that the constitution or the 1945 Constitution of the Republic of Indonesia can not be regarded as children's constitution which adopts the principles of child protection under the Convention on the Rights of the Child. It also shows that Indonesia is not serious about the theme of child protection discourse such as Ecuador, Egypt, Finland and South Africa in protecting, fulfilling and respecting and explicitly specifying the rights of children in its constitution. Based on the argument above, it is very urgent for Indonesia to do constitutionalism the rights of the child. Based on the principles that adopted by the convention on the right of the child as a solution as an effort to save and protect the rights of the child from negligence and neglect of the State to protect and fulfill the human rights and constitutional rights of the child. The effort of constitutionalism is also considered as a strengthening effort in the formation of legislation in the future as well as the basis or test stone of the Constitutional Court in handling the future judicial review of the Law which violates the norm on the protection of children's rights under the Constitution. In addition, it is urgent for constitutionalism and incorporates the idea of constitutional complaints in the Constitutional Court through the Constitution. Thus, as a basis for constitutional protection of the child if the State has neglect to protect the human rights and constitutional rights of the child by conducting constitutional complaint in the Constitutional Court, in order for the State to fulfill its constitutional obligations which have been regulated under the constitution.

scholarly journals Parameter Menentukan Perbuatan Wanprestasi Dan Penipuan Dari Suatu Perjanjian

2020 ◽  
Vol 19 (3) ◽  
pp. 477-498
Author(s):  
Azhari Ar Azhari Ar
Keyword(s):  
Criminal Law ◽  
Daily Life ◽  
Criminal Code ◽  
Civil Code ◽  
Good Faith ◽  
Mens Rea ◽  
The Future

Agreement is made legally binding for the makers and the parties are obliged to fulfill it. In the practice of daily life, it is not uncommon for contract actors who do not carry out their obligations; they are being prosecuted by creditors through criminal law by referring to article 378 of the Criminal Code so that there seems to be a similarity between the default legal figure and fraud in an agreement, whereas in the regulation both of these are governed by different laws. Default is regulated in the Civil Code while fraud is regulated in the Criminal Code. The problem in this paper is what is the parameter or measure to determine the legal acts of default and criminal act of fraud.Distinguishing parameter between default and fraud is on the default which is seen from the objective and subjective factors of good faith, while the criminal act of fraud is motivated by evil intentions (mens rea) to have an object (items) belonging to someone else with the parameters of subjective and objective elements. In the future, law practitioners and academics should be able to separate explicitly to settle dispute agreements that contain defaults and criminal act of fraud.

scholarly journals Religion, State and Human Rights: Negotiating Accommodation Limits in the Constitutional Court

2020 ◽  
Vol 24 (2) ◽  
pp. 121
Author(s):  
Rumadi Rumadi
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
The State ◽  
Freedom Of Religion ◽  
Constitutional Court ◽  
Private Law ◽  
Marriage Law ◽  
Muslim Countries ◽  
Religious Aspects ◽  
Secular State

One of crucial issues in Muslim countries, such as Indonesia, is relation between religion and the state. Even though Pancasila and the 1945 Constitution were claimed final, but it did not necessarily mean that position of religion, state and human rights is final and clear.  The negotiation between religion, state and human rights not only on political forum like at The House of Representative, but also in Constitutional Court  session. There are debates and opinion contestations. The problem is what is the politics of law accommodation towards religious aspirations, which the Constitutional Court has built through its decisions and arguments? Through analysis on two issues: 1) freedom of religion and belief; and 2) marriage law, this article argues that Constitutional Court’s decision, especially relation between religion, state and human rights not only based on law consideration, but also on non-law consideration. Regarding private law, the Constitutional Court opened a fairly wide accommodation, so that more religious aspects would be accommodated by the state even with limited reforms. The limit of accommodation is an Islamic criminal law that cannot be made exclusively for Muslims. The accommodation of Islamic criminal law is only possible if the norms are incorporated into the national criminal law through a process of rational objectification. Based on this argument, continuous negotiation and contestation between religion, state and human rights will go on since Indonesia is not a religious state, which is based only on one religion, nor a secular state, which does not consider religion at all.Salah satu isu krusial di negara Muslim, tidak terkecuali Indonesia, adalah relasi agama dan negara. Meskipun Pancasila dan Undang-Undang Dasar 1945 dinyatakan final, namun bukan berarti kedudukan agama, negara, dan hak asasi manusia sudah final dan jelas. Perundingan antara agama, negara dan hak asasi manusia tidak hanya di forum politik seperti di Dewan Perwakilan Daerah (DPR), tapi juga di sidang Mahkamah Konstitusi. Ada perdebatan dan kontestasi pendapat. Persoalannya, bagaimana politik akomodasi hukum terhadap aspirasi agama yang dibangun Mahkamah Konstitusi melalui putusan dan dalilnya? Melalui analisis terhadap dua isu: 1) kebebasan beragama dan berkeyakinan; dan 2) hukum perkawinan, pasal ini berpendapat bahwa putusan Mahkamah Konstitusi khususnya hubungan antara agama, negara dan hak asasi manusia tidak hanya berdasarkan pertimbangan hukum, tetapi juga pertimbangan non hukum. Terkait hukum privat, Mahkamah Konstitusi membuka akomodasi yang cukup luas, sehingga lebih banyak aspek keagamaan yang diakomodasi oleh negara meski dengan reformasi yang terbatas. Batasan akomodasi adalah hukum pidana Islam yang tidak dapat dibuat secara eksklusif untuk Muslim. Akomodasi hukum pidana Islam hanya dimungkinkan jika norma-norma tersebut dimasukkan ke dalam hukum pidana nasional melalui proses objektifikasi yang rasional. Berdasarkan argumen ini, negosiasi dan kontestasi yang terus menerus antara agama, negara dan hak asasi manusia akan terus berlangsung karena Indonesia bukanlah negara agama yang hanya didasarkan pada satu agama, bukan pula negara sekuler, yang sama sekali tidak mempertimbangkan agama.

scholarly journals The Use of Criminal Law on Abortion: A Structural Barrier that Limits Women’s Rights

2021 ◽  
Author(s):  
Ana Cristina González-Vélez ◽  
Laura Castro González
Keyword(s):  
Human Rights ◽  
Latin America ◽  
Criminal Law ◽  
The State ◽  
Constitutional Court ◽  
Reproductive Autonomy ◽  
Just Cause ◽  
Abortion Rights ◽  
Women's Lives ◽  
Structural Barrier

The use of criminal law to limit abortion rights still prevails in most of the legal regimes around Latin America. This particular law reveals the lower value assigned to women’s lives in modern societies and how much the state interferes in women’s freedom and reproductive autonomy. This situation has had an impact on women’s ability to access safe and timely abortion services due to the numerous barriers they face, among other things the criminalization of abortion. This paper develops the arguments that support a recent constitutional claim submitted to the Constitutional Court in Colombia by the Just Cause Movement, demonstrating that abortion crime violates several human rights including equality and freedom and compromises women’s citizenship by undermining their ability to make free decisions about their bodies and their lives.

La disciplina italiana e le tecniche di decisione nella gestione dell'ambiente

2009 ◽  
pp. 127-147
Author(s):  
Fabrizio Fracchia
Keyword(s):  
Sustainable Development ◽  
Environmental Law ◽  
Environmental Issues ◽  
The State ◽  
The Political ◽  
Constitutional Court ◽  
Final Decision ◽  
The Sustainable Development ◽  
Italian Law ◽  
The Future

- The article deals with the main patterns established by the Italian legal system with respect to the decisions regarding environmental issues. After outlining the most important theories related to the problem of the juridical definition of the environment, as well as the constitutional context, which assigns the environmental protection to the competence of the State, the analysis singles out five different models. The first one is the result of the application of the environmental principles established by the European sources and enforced by the Italian Law; in this regard, in particular, the precautionary principle interferes with the usual way through which the Public Entities take their final decisions. The second pattern embodies the idea according to which the environment is a prominent value, capable of prevailing over other values and interests. The third one, starting from the same assertion (the environmental interest must "win"), adds that it must only be assessed by technical bodies with a specific competence. The fourth model is based upon the premise that the environmental proceedings cannot be simplified, so that some legal tools such as "conferenza di servizi", silence and so on, cannot be applied in this field. The last pattern considers the possibility for Bodies different from the State (such as the Regions) to regulate the environmental issues, thus introducing stricter levels of protection of the environment. The article underlines that the size of this competence strictly depends on the notion of "protection of the environment" that is used (in any case, the Constitutional Court, since the fundamental decision n. 407 of 26th July 2002, considering the environment as a sort of transversal matter, has ruled that important room for regional legislative power does exist). Very often there is a sort of subsidiarity, since in the first place the technical bodies have the competence to take care of the environmental interest, while the bureaucracy or the politicians can intervene only afterwards and in case of inertia or conflict. The main thesis suggested by the article is that the most appropriate body entitled to take the final decision in the environmental field should be the political one. Emphasizing the principle of integration, the article assumes that the environment is an interest that must be taken into account by the decision makers, but adds that it must be balanced with other interests, in a perspective of relativism: it is a specific task of the political system to guarantee a final synthesis among different values. The article also underlines the relevance of the sustainable development principle, aimed at guaranteeing that the satisfaction of the current generation doesn't affect the quality of life and the chances of the future generations. The sustainable development is the true root of the whole environmental law buildings and basis of the other environmental principles, within the Italian context (Legislative Decree n. 152/2006). It seems to have left behind the limits, disciplinary also, of the environmental law, being now a general principle of the administrative activity tout court. It shows that the environmental decisions might usually affect the interests of the future generation, hence confirming that those choices must be made by the politicians, since they represent the whole community.Key words: Environment, decision patterns, sustainable development.JEL classifications: K32

scholarly journals Kebijakan Kriminal terhadap Eksploitasi Seksual Sebagai Tindak Pidana Perdagangan Orang dalam Perspektif Kriminologi

Wajah Hukum ◽  
2018 ◽  
Vol 2 (1) ◽  
pp. 42
Author(s):  
Eko Budi S
Keyword(s):  
Criminal Law ◽  
Sexual Exploitation ◽  
Modus Operandi ◽  
The Future ◽  
Women And Children

Sexual exploitation is one form of trafficking in person as a modern enslavement that occurs in many countries. The groups that are most victims of sexual exploitation are women and children. The modus operandi is done varies between country one with other country different. The causes of these crimes are also different according to the characteristics of the country. Criminal law policy in the prevention of sexual exploitation can be done with two approaches: non penal and penal policies. Type of research used is normative juridical by using approach of legislation and concept of criminology. The purpose of this study is to contribute thoughts in the prevention of trafficking in the form of sexual exploitation in the future.

scholarly journals Cameroon Coughs and Sneezes, Symptomatic of Catching Africa's Cold of Conflict: Dealing with the Dilemmas and Controversies of a Country Grappling with its History

2017 ◽  
Vol 77 ◽  
pp. 1-34
Author(s):  
Sylvester Tabe Arrey
Keyword(s):  
Unmet Needs ◽  
The State ◽  
Good Faith ◽  
The Other ◽  
Political Situation ◽  
The People ◽  
The Future ◽  
French Speaking ◽  
English Speaking ◽  
The One

This work examines events from Cameroon's life since becoming a nation to foster understanding of the worrisome political situation the country has been traversing since 2016. Bitter and unhappy with their treatment since joining the French-speaking part, many citizens of the minority English-speaking part feel fed up and desire a breakup. I show that apart from constituting an aspect of its pride, Cameroon's history is also a source of tricky challenges the country has been wrestling with since inception. I contend that issues of this kind will always be around if those in the country's cockpit fly it to a destination other than what satisfies and respects the two people – especially the one that moved the English-speaking part to opt for a joint destiny. Instead of toying with truth to score personal political points, authorities should yield to truth, operating in good faith to correct errors and heal hurt hearts so that both people will willingly, not by force, accept to work together. Contrary actions will risk the future. Happiness moves people to look at their history with pride finding things to build while pain stirs frustration and fury, moving them to search for flaws to fix or fight. I hold that both parts face almost the same challenges from unmet needs to emaciating struggles of survival. However, the English-speaking part has unique plaques that ache terribly and have nothing to do with the country’s general cry of lagging development. They touch on its identity and survival, unleashing pain many out of its shoes might fail to feel and so unable to understand the degree of excruciation. I caution that though it has been a show of two regions, the likelihood of someday evolving into a ten-region revolution is certain if wise and inclusive actions are not applied. Apart from groaning in their own pain, many among the other eight are sympathetic to the predicament of the lamenting two, expressing fury, first, against the denial by highly placed authorities of the existence of any problem, and second, in their ruthless and brutal treatment of those who complain or challenge their stance. Anger increased as people's patience waned. Their calm will not last if things stay unchanged. When arguments evolve and accommodate their worries they will get on board pushing the heat to levels officials will have problems containing without facing the temptation of fighting the people they are in office to protect. I end with recommendations the state and activists might find useful. They highlight measures that can help in a heterogeneous society like Cameroon to preserve peace and save it from becoming a scene of mayhem and butchery.

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