scholarly journals Unconstitutionality of criminal liability for filing inaccurate information in Ukraine: сritical legal analyses

2021 ◽  
Vol 39 (69) ◽  
pp. 133-145
Author(s):  
Andrii Vozniuk ◽  
Dmitriy Kamensky ◽  
Olexandr Dudorov ◽  
Roman Movchan ◽  
Andriy Andrushko
Keyword(s):  
Research Methods ◽  
Rule Of Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Constitutional Court ◽  
Legal Research ◽  
Social Harm ◽  
The Rule Of Law ◽  
Inaccurate Information ◽  
Social Harmfulness

The investigation reveals shortcomings in the arguments of the Constitutional Court of Ukraine on the recognition of article 366-1 of the Criminal Code as not being in conformity with the Constitution, in terms of:(a) the court's lack of authority to criminalize socially dangerous acts; (b) lack of argumentation on the absence of social harm in the non-submission of a declaration and in the presentation of inaccurate information; (c) positive foreign experience; (d) conformity of article 366-1 of the Criminal Code of Ukraine with the principle of the rule of law. The article employs a set of legal research methods, including terminological, systemic-structural, formal-logical, and comparative-legal. It is stressed that:(a) the criminalization of a socially harmful act is a matter for the legislator, not the Constitutional Court of Ukraine, to decide; (b) the decision does not present or refute any argument on the element of social harmfulness relating to the non-submission of a declaration and the declaration of inaccurate information. On the basis of the investigation, it has been concluded that the decision of the Constitutional Court on the recognition of article 366-1 of the Criminal Code does not comply with the Constitution and has not been sufficiently substantiated.

scholarly journals JUDICIAL REVIEW PASAL-PASAL MAKAR KUHP: PERSPEKTIF PENAFSIRAN HUKUM DAN HAM (JUDICIAL REVIEW ON TREACHERY ARTICLES OF THE CRIMINAL CODE: THE PERSPECTIVE OF LAW INTERPRETATION AND HUMAN RIGHTS)

2017 ◽  
Vol 8 (2) ◽  
pp. 235-253
Author(s):  
Prianter Jaya Hairi
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Judicial Review ◽  
Freedom Of Expression ◽  
Criminal Code ◽  
Constitutional Court ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Legal Sanctions ◽  
Definition Of

In 2017, Constitutional Court has received three calls for judicial reviews regarding treachery (makar) article in the Criminal Code. These articles deemed to be contradicting with the principle of legal certainty and freedom of expression. This study analyzes the important issue that is being debate in those judicial reviews. One of those is about the argument which says that the absence of the definition of treachery in the Criminal Code has caused a violation of legal certainty. Besides, the rule of treachery in the Criminal Code has also considered to have caused a violation of freedom of expression which has been guaranteed by Constitution. Analysis shows that the absence of treachery definition in the Criminal Code is not something that instantly becomes a problem in its application that causing the loss of legal certainty. Law enforcer, especially judge, in enforcing the rule of law must always use the method of law interpretation which appropriate with legal norm. With systematic interpretation, treachery can be interpreted according to the sentence of the rule as a unity of the legal system. In this case, the term treachery as regulated in Article 87 of the Criminal Code can be systematically interpreted as the basis for Article 104-Article 108 of the Criminal Code, Article 130 of the Criminal Code, and Article 140 of the Criminal Code which regulates various types of treason and their respective legal sanctions for the perpetrators. Further, on the argument that the articles of treachery in the Criminal Code also can not necessarily be said to limit the freedom of expression, because every citizen’s freedom has limitation, including the limitation of law and human rights. AbstrakPada tahun 2017, Mahkamah Konstitusi telah menerima tiga kali judicial reviewterhadap pasalpasal tindak pidana makar dalam Kitab Undang-Undang Hukum Pidana (KUHP). Pasal-pasal ini dipandang bertentangan dengan prinsip kepastian hukum dan kebebasan berekspresi. Tulisan ini menganalisis substansi yang menjadi perdebatan dalam perkara judicial review tersebut. Di antaranya perdebatan mengenai tidak adanya definisi istilah makar dalam KUHP yang menyebabkan persoalan kepastian hukum. Selain itu, pengaturan tindak pidana makar dalam KUHP juga dinilai melanggar kebebasan berekspresi yang telah dijamin oleh konstitusi. Analisis terhadap persoalanpersoalan tersebut menunjukkan bahwa ketiadaan definisi kata “makar” dalam KUHP bukanlah merupakan sesuatu yang serta merta langsung menjadi persoalan dalam penerapannya sehingga menyebabkan hilangnya kepastian hukum. Penegak hukum, terutama hakim, dalam menegakkan peraturan hukum selalu menggunakan metode penafsiran hukum yang sesuai dengan kaidah ilmu hukum. Dengan penafsiran sistematis, makar dapat dimaknai sesuai kalimat dari peraturan sebagai suatu kesatuan sistem hukum. Dalam hal ini, istilah makar yang diatur dalam Pasal 87 KUHP, secara sistematis dapat ditafsirkan sebagai dasar bagi Pasal 104-Pasal 108 KUHP, Pasal 130 KUHP, dan Pasal 140 KUHP yang mengatur tentang jenis makar beserta sanksi hukumnya masing-masing bagi para pelakunya. Selain itu, mengenai argumen bahwa pasal-pasal makar dalam KUHP berpotensi melanggar HAM dan dipandang bertentangan dengan konstitusi dapat dikatakan tidak beralasan. Sebab kebebasan HAM setiap orang tidak tanpa batas, di antaranya dibatasi nilai-nilai agama, keamanan, dan ketertiban umum.

scholarly journals IMPLIKASI HUKUM TIDAK DILAKSANAKANNYA PUTUSAN MAHKAMAH KONSTITUSI DALAM PERKARA PENGUJIAN UNDANG-UNDANG

2019 ◽  
Vol 2 (2) ◽  
pp. 1089
Author(s):  
Andre Suryadinata ◽  
Toendjoeng Herning Sitaboeana
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
House Of Representatives ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Research ◽  
The Rule Of Law ◽  
Legal Implications ◽  
Rules Of Procedure

The Constitutional Court is one of the branches of judicial power that has authority to adjudicate at the first and last level whose decision is final to test the law against the Constitution as regulated in Article 24C paragraph (1) of the 1945 Constitution. The final nature of  decision of the constitutional court is binding on the entire community since it was said in the Open Plenary Session. Therefore, decision of constitutional court that invalidates the validity of a law must be followed up by legislators in the cumulative list open to the national legislation program. But in practice there are 2 (two) decisions that have not been followed up, namely Constitutional Court Decision Number 31 / PUU-XI / 2013 and Constitutional Court Decision Number 30 / PUU-XVI / 2018. Based on this description, it will be examined regarding the legal implications of not implementing the Constitutional Court Decision in case of judicial review? The author examines the problem using the method of normative legal research with the statutory approach. From the results of this study, it was found that the non-follow-up of the two decisions had violated the principle of rule of law in concept of the rule of law, and caused the loss of the decision-making power, and was a form of neglect of principle of legal awareness. So it is necessary to make changes in stages of the Constitutional Court Law and the House of Representatives' Regulations on Rules of Procedure.

scholarly journals OFFENSE - THE ONLY GROUND FOR CRIMINAL LIABILITY

2014 ◽  
Vol 8 (4) ◽  
pp. 149-156
Author(s):  
Laura-Roxana Popoviciu
Keyword(s):  
Rule Of Law ◽  
Social Relations ◽  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
The Rule Of Law ◽  
The Social ◽  
The Law

This study aims to examine the offence as the only ground for criminal liability. Article 15, paragraph 2 of the Criminal code provides that: “offences are the only grounds for criminal liability”, which implies the existence of an act, which is detected by the bodies empowered under the law in the form required by law, and also this principle comes as a guarantee of the person’s freedom because, without committing an act provided for by the law as an offense, the criminal liability cannot exist.The criminal liability is one of the fundamental institutions of the criminal law, together with the institution of the offence and of the sanction, set in the various provisions of the Criminal code.As shown in the Criminal code, in Title II regarding the offence, there is a close interdependence among the three fundamental institutions. The offence, as a dangerous act prohibited by the criminal rule, attracts, by committing it, the criminal liability, and the criminal liability without a sanction would lack the object. It obliges the person who committed an offence to be held accountable for it in front of the judicial bodies, to bide the sanctions provided for by the law, and to execute the sanction that was applied.The correlation is also vice-versa, meaning that the sanction, its implementation, cannot be justified only by the existence of the perpetrator’s criminal liability, and the criminal liability may not be based only on committing an offence.The criminal liability is a form of the judicial liability and it represents the consequence of non-complying with the provision of the criminal rule. Indeed, the achievement of the rule of law, in general, and also the rule of the criminal law implies, from all the law’s recipients, a conduct according to the provisions of the law, for the normal evolution of the social relations.

scholarly journals Decriminalizing Illegal Enrichment: Politics or Rule of Law?

1970 ◽  
pp. 350-353
Author(s):  
Serhii Podhorets
Keyword(s):  
Rule Of Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Constitutional Court ◽  
Normal Functioning ◽  
The Individual

Corruption crimes pose a great public threat and actually encroach the normal functioning of various spheres of life. Corruption crimes are a major problem that needs to be addressed at the legislative level. Unfortunately, the issue of composing some provisions of the Criminal Code of Ukraine has led to the exclusion of the provision on illegal enrichment from among criminal acts. This decision was made by the Constitutional Court of Ukraine by deeming Article 368-2 of the Criminal Code of Ukraine "Illegal enrichment" unconstitutional. Fifty-nine National Deputies submitted their appeal to the Constitutional Court of Ukraine to determine whether Article 368-2 of the Criminal Code of Ukraine was in conformity with the Constitution of Ukraine. The Constitutional Court of Ukraine therefore began to examine the matter and reached a decision. The decision of the Constitutional Court of Ukraine established that Article 368-2 of the Criminal Code of Ukraine was not in conformity with the Constitution of Ukraine. In its decision, the Constitutional Court of Ukraine emphasized that countering corruption should be carried out by legal means only, in compliance with the constitutional principles and with the provisions of legislation adopted in accordance with the Constitution of Ukraine. This decision was not adopted unanimously, since some judges took a completely different position in the matter. Such disagreement resulted in some individual and dissenting opinions of the judges regarding the decision of the Constitutional Court of Ukraine. The individual opinions were expressed by the following judges: Viktor Kolisnyk, Stanislav Shevchuk, Ihor Slidenko, Oleh Pervomaiskyi, Vasyl’ Lemak, Viktor Gorodovenko. Judge Serhiy Golovatyi expressed a dissenting opinion as he is convinced that his colleagues' position on decriminalization of Article 368-2 of the Criminal Code of Ukraine is erroneous. The decision of the Constitutional Court of Ukraine on deeming Article 368-2 of the Criminal Code of Ukraine "Illegal enrichment" unconstitutional was not reflected in the clear position of the judges reaching it. That is why the judges expressed the individual opinions and the dissenting opinion. Meanwhile, the adopted Draft Law № 1031 “On Amendments to Certain Legislative Acts of Ukraine on Confiscation of Illegal Assets of Persons Authorized Serving for State or for Local Self-Government and on Punishment for Acquiring Such Assets” proposes to reinstate criminal liability for illegal enrichment, taking into consideration the position set forth in the decision of the Constitutional Court of Ukraine.

scholarly journals Unconstitutionality of articles 366-1, 368-2 of the criminal code of Ukraine: irony of fate or defects of the legislative process

2021 ◽  
pp. 102-110
Author(s):  
A.S. Habuda
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Legislative Process ◽  
Constitutional Court ◽  
Inaccurate Information ◽  
Control Department

The fight against corruption in Ukraine is giving rise to new ways of combating this phenomenon, new anti-corruption legislation is often being adopted and improved. Thus, among other things, in 2011 the Ukrainian parliament introduced criminal liability for illegal enrichment, and in 2014 – for declaring questionable information, supplementing the Criminal Code in accordance with Art. 368-2 and Art.366-1. However, despite their long-term duration in the structure of the criminal law mechanism for combating corruption, they have not become effective tools of anti-corruption struggle. Problems of application of Articles 366-1, 368-2 have been admitted from the very moment of their introduction in action as some serious defects in the construction of these norms were placed in the course of legislative process. In the end, based on the decision of the Constitutional Court of Ukraine, these articles expired. Given that the purpose of the article is to investigate the process of legislation and to establish the reasons for the adoption of deliberately ineffective rules on the declaration of inaccurate information and illicit enrichment. The scientific novelty is that the study indicates the inability of the Verkhovna Rada of Ukraine, which includes the Institute of legislation, scientific and expert management, legal management, the department of relations with the judiciary, the control department and other units, to ensure quality at the appropriate level of results of legislative work. These "precautionary institutions" were unable to prevent the development, adoption of imperfect and knowingly unconstitutional laws, as evidenced by examples of the introduction of liability under Articles 366-1, 368-2 of the Criminal Code and the introduction of repeated manipulative changes, after the entry into force.

scholarly journals Criminal Influence and Feasibility of its Preservation in New Criminal Code of Ukraine

2021 ◽  
Vol 7 ◽  
pp. 44-51
Author(s):  
Artem Nikitin
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Working Group ◽  
Scientific Community ◽  
Criminal Liability ◽  
Criminal Code ◽  
Original Form ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Definition Of

The concept of criminal influence, which was introduced into the Criminal Code of Ukraine in June 2020, has been highly criticized by the scientific community and practitioners, among other things, for violation of the principle of legal certainty and the rule of law. This article defines the main disadvantages of the provisions that establish criminal liability for acts related to criminal influence and analyzes the feasibility of preservation of these provisions in their original form in the Criminal Code of Ukraine and the possibility of their transfer to the draft of the new Criminal Code of Ukraine. It is concluded that the mentioned norms should be at least substantially revised, with taking into account comments of the Ukrainian scientists, and cannot be transferred into the new criminal law as they are currently defined. Moreover, introduction of specific amendments to other laws is also required in this regard.The Working Group on the development of criminal law, as the author of the draft of the new Criminal Code, reasonably refused from the existing concept of the criminal influence. At the same time, they defined criminally punishable acts, which can be considered as a certain equivalent of the criminal influence (socalled “criminal leadership”). Provisions developed by the Working Group differ from the current by the more precise definition of specific actions, which constitute corpus delicti of criminal leadership, avoidance of jargon formulations, decrease of the terms of imprisonment for committing the relevant crimes, and diversification of criminal legal measures that can be applied to offender besides the punishment. In general, it appears that the Working Group avoided the main mistakes which are present in the current legislation. However, it is too early to draw conclusions regarding the acceptability of the proposed article of the new criminal law. Only after the draft of the new Criminal Code of Ukraine has been finished and its provisions can be analyzed altogether, final conclusions regarding the mentioned norms can be drawn.

scholarly journals COURT VERDICT ANOMALY THAT DROPPED PUNISHMENT AGAINST CHILDREN UNDER 12 (TWELVE) YEARS OLD

2015 ◽  
Vol 15 (3) ◽  
Author(s):  
Sabungan Sibarani
Keyword(s):  
Research Methods ◽  
Child Protection ◽  
Criminal Code ◽  
Research Data ◽  
Court Decision ◽  
District Court ◽  
Constitutional Court ◽  
Legal Research ◽  
Legal Effect ◽  
The Future

The protection of children is a very serious problem and need to be considered better. That is because the child has a very important role in life of the nation in the future. Author emphasizes research how the legal effect of a District Court decision which is contrary to the Constitutional Court No. 1/PUU-VIII/2010. The author examines the problem with normative legal research methods. The research data shows that the victims are Doni Yoga (DY) who was aged 11 years old. Doni Yoga charged with the crime of theft under Article 363 paragraph (1) of the Criminal Code of the theft. The author concluded that the decisions of the cases by Pematangsiantar District Court  has been at odds with the law and the Constitutional Court Decision No. 1 / PUU / 8/2010. However, the decision is still to be considered true and valid throughout not be appealed or an appeal that was canceled by court decision on a higher level.Keywords: Child Protection, Punishment.

scholarly journals ARAH POLITIK HUKUM PERTANAHAN DAN PERLINDUNGAN KEPEMILIKAN TANAH MASYARAKAT

2012 ◽  
Vol 1 (1) ◽  
pp. 33
Author(s):  
Nurhasan Ismail
Keyword(s):  
Land Use ◽  
Small Group ◽  
Research Methods ◽  
Rule Of Law ◽  
Land Rights ◽  
Land Policy ◽  
The Political ◽  
Land Law ◽  
Legal Research ◽  
The Rule Of Law

<p>Penguasaan dan pemanfaatan tanah yang diatur dalam Undang-Undang Pokok Agraria (UUPA) merupakan arah dari politik hukum pertanahan Indonesia yang bertujuan untuk menjamin terwujudnya kemakmuran bagi seluruh rakyat Indonesia. Wujud dari hal tersebut terlihat dari adanya perhatian khusus kepada kelompok masyarakat lemah melalui kebijakan pertanahan. Belakangan, terjadi pergeseran politik pertanahan, dimana penguasaan dan pemanfaatan tanah hanya didapat oleh sekelompok kecil masyarakat, yaitu perusahaan besar. Tulisan yang membahas tentang politik hukum pertanahan nasional saat ini dan bentuk perlindungan hak kepemilikan tanah masyarakat dilakukan dengan metode penelitian sosio- yuridis. Dari hasil penelitian terlihat bahwa pada saat ini terdapat upaya untuk menghidupkan kebijakan pertanahan yang mengembalikan keseimbangan seperti yang diinginkan UUPA. Langkah yang ditawarkan untuk mewujudkan hal tersebut adalah dengan menerapkan politik hukum pertanahan prismatik yang mendasarkan pada beberapa prinsip seperti prinsip keberagaman hukum dalam kesatuan, prinsip persamaan atas dasar ketidaksamaan, prinsip mengutamakan keadilan dan kemanfaatan di atas kepastian hukum, dan prinsip diferensiasi fungsi dalam keterpaduan.</p><p>Land use and tenure are stipulated in the Basic Agrarian Law (UUPA) is the political direction of the Indonesian land law aimed at ensuring the realization of prosperity for all Indonesian people. Manifestations of this evident from the presence of particular concern to the community weaker over land policy. Indonesia. Later, the political shift of land, land use and tenure which obtained only by a small group of people, the big companies. Studies that discuss the political current national land law and forms of protection of land rights community do with socio-legal research methods. From the research shows that there are now efforts to turn the land policy that restores the balance as desired UUPA. Measures offered to make this happen is to apply the law of the land prismatic politics based on several principles like the principle of legal diversity in unity, the principle of equality on the basis of inequality, the principle that the justice and expediency over the rule of law, and the principle of differentiation in functionality integration.</p>

scholarly journals Consideration of the bail concept as a component of a financial liability in the understanding of the law of Ukraine "On the prevention of corruption" for qualification of the act in accordance with article 366-1 of the Criminal Code of Ukraine

2020 ◽  
pp. 127-134
Author(s):  
Yu.A. Shevchenko ◽  
O.V. Kharytonova
Keyword(s):  
Human Rights ◽  
Local Government ◽  
Rule Of Law ◽  
Criminal Code ◽  
Constitutional Court ◽  
Practical Consideration ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
The Law

This article is devoted to the analysis of the current legislation of Ukraine, as well as judicial practice in the context of the need to enter information in the declaration of a person authorized to perform the functions of the state or local government, namely the column "Financial Liabilities", in the form of surety, and the problem of providing a criminal legal assessment in the context of the possibility of the acts qualification under Article 366-1 of the Criminal Code of Ukraine (hereinafter - the Criminal Code of Ukraine). These issues nowadays acquire the status of an exceptional legal problem due to the lack of a single law enforcement practice, and therefore require theoretical and practical consideration. In this regard, the article focuses on the analysis of certain provisions of the Law of Ukraine "On Prevention of Corruption", consideration of the crime under Article 366-1 of the Criminal Code of Ukraine, as well as consideration of the judicial practice of the European Court of Human Rights, the Supreme Court, the Constitutional Court Ukraine, courts of appeal and local courts. Much of the author's attention is focused on the concept of legal nature and the institution of bail in general. In doing so, the author explored the above issues through the lens of human rights protection, based on the understanding of the essence of the principle of legal certainty, which is part of the concept of the rule of law. The conclusions suggested proposals as for improving the question that author discussed by amending national anti-corruption legislation in order to enable it to qualify the act provided for in Article 366-1 of the Criminal Code of Ukraine in the form of failure to enter information in the declaration column "Financial liabilities" of the persons authorized to perform the functions of state or local government in the presence of surety. In particular, the author emphasized that formulation of the norm, which defines the concept of "financial liabilities", makes it impossible to apply it in the context of qualifying a crime under Article 366-1 of the Criminal Code of Ukraine due to lack of legal certainty, which makes it impossible to maintain the principle the rule of law, and therefore a priori, human rights and freedoms will be violated.

scholarly journals REFORM OF CORPORATE CRIMINAL LIABILITY ARRANGEMENTS IN INDONESIA AND TYPES OF SANCTIONS THAT CAN BE IMPLEMENTED

2020 ◽  
Vol 28 (1) ◽  
Author(s):  
Rya Elita Br Sembiring ◽  
Pujiyono Pujiyono
Keyword(s):  
Research Methods ◽  
Criminal Liability ◽  
Criminal Code ◽  
Legal Research ◽  
Criminal Sanctions ◽  
Corporate Criminal Liability

Individuals who commit criminal acts will receive criminal sanctions for them. However, criminal sanctions for corporations that commit criminal acts are not regulated in the Criminal Code. This research uses normative legal research methods. This study aims to examine the criminal liability arrangements by corporations as well as what sanctions can be applied. In Indonesia, criminal liability by corporations has been regulated in several statutory regulations that are outside the Criminal Code. Sanctions that can be applied to corporations include basic crimes such as criminal fines, additional crimes, and corporate confiscation.

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