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The Model Penal Code’s “De Minimis” provisions (§ 2.12) cover different kinds of case in which, for reasons of equity, a prosecution should be dismissed. An exploration of these different cases illuminates some important general issues about the structure of the criminal process, and about the processes of criminalization. These include the significance of the difference between dismissing a case and acquitting the defendant, and of the distinction between offences and defenses; whether criminal offences should always be so defined that they specify at least a pro tanto wrong, or may sometimes legitimately specify only a prima facie wrong — and whether this is consistent with the presumption of innocence; what kinds of conduct we can properly be expected to answer for in a criminal court; and the proper division of labor, and of responsibilities, between legislatures, prosecutors and courts in determining what kinds of conduct are to be defined and treated as criminal wrongs.

This article explains the historical development of the two main types of court procedures used in criminal and, to a lesser extent, in civil cases around the world. The adversarial system developed from the English jury trial and envisions a passive role for the judge and an active role of the parties. The inquisitorial system sees the judge as active investigator of the truth and mistrusts lay participation. A third tradition, that of consensual resolution of cases and plea bargaining, grew out of the adversarial tradition, but, through its inducement of pleas of guilty, it also smacks of the inquisitorial tradition.

In the past thirty years, a growing number of international agreements and acts of international institutions has resorted to different kinds of confiscation (“direct confiscation”, “value confiscation”, “enlarged confiscation” or “nonconviction based confiscation”) to contrast and suppress international and transnational crimes. It can be considered that the flexibility – in terms of variety of measures and functions – of confiscation, together with the forced and permanent deprivation of property to which it always leads, significantly affect the favor towards this measure by States and international organisations. The European Court of Human Rights (ECtHR), taking into account the aforementioned proliferation of international acts and agreements concerning the fight to criminal activities, maintains that common “European and even universal legal standards” can be said to exist which encourage the confiscation of property linked to serious criminal offences. Moreover, the Court has gone so far as to maintain that, in accordance with such “universal legal standards”, States Parties to the European Convention of Human Rights must be given “a wide margin of appreciation with regard to what constitutes the appropriate means of applying measures to control the use of property such as the confiscation of all types of proceeds of crime”. However, the implementation of such measures by States authorities must conform with human rights guarantees – inter alia the principle of legality in criminal matters, due process rights and property rights – provided for in customary and conventional international law. This essay seeks to examine the relevant case law of the ECtHR and to focus on the possibility of reconciling, on the one hand, international obligations on the protection of human rights and, on the other hand, international agreements and acts – concerning the fight against criminal activities – that provide for the various types of confiscation measures.

The article deals with the principles of decriminalization of measures of criminal law influence based on a comprehensive system analysis. It is noted that the main direction of criminal law policy is the decriminalization of acts that determine the object of such policy influence. The principle of sufficient social danger implies that the act causes significant harm to the public interest. The principle of the possibility of a positive impact of non-criminal law prohibitions on human behavior involves settling the issue of effective counteraction to the act. The principle of the relative prevalence of acts to be decriminalized emphasizes the need to take into account their individual nature when establishing legal liability for acts. The principle of the predominance of positive consequences in decrim-inalization is especially relevant for economic activity. The principle of timeliness of decriminalization means its implementation at the time of its occurrence, when the act does not pose a social danger, which implies the harmfulness of belated decriminalization.The essence of decriminalization is expressed in the legislation through the principles of law – thus ensuring the formation of the legal law, which means an officially recognized, binding legal act, which is based on the principles of law as rules applicable to the regulation of specific social relations. Decriminalization should be carried out in accordance with systemic principles. If necessary, this is supplemented by the construction of optimal models. This approach to the problem is due to the need to create an appropriate law-making mechanism that would avoid mistakes in reforming criminal law. The principles of decriminalization form a complex system, where one principle is based on the content of another. The fundamental principle of decriminalization is the principle of the rule of human rights and freedoms, which is concretized in general principles as the presumption of innocence, justice.

Purpose This study aims at elaborating whether the criminalization of illicit enrichment has the potential to be an efficient and well-balanced measure against profiting from serious crime. Design/methodology/approach This study offers a normative analysis of the concept of the criminalization of illicit enrichment, particularly from the perspective of the presumption of innocence. This paper supplements theoretical considerations using Lithuania, where illicit enrichment was criminalized a decade ago, as a case study. It analyses data of all 28 known criminal cases on illicit enrichment that resulted in judgements in Lithuania in 2015–2019. Findings The author concludes that on neither a fundamental nor practical level can the assumption that the criminalization of illicit enrichment efficiently carries out the task for which it was created be supported. Moreover, efforts to implement this legal strategy might unbalance the system of illicit asset recovery measures and obstruct the implementation of other promising legal instruments. Originality/value As very few states with developed democracy and strong rule of law traditions have implemented criminalization of illicit enrichment, there are very few if any empirical data or analysis of practices on this issue that could contribute to the theoretical discussion. This paper aims at contributing to fulfillment of this gap by presenting relevant data and insights from the perspective of Lithuanian criminal justice system.

Big data – a term at the centre of the discourse on law and new technologies – appears to entail mechanisms that can impact on crime control and investigation as well as on the operation of crimina...

With the inclusion of the category “simulation” in the Code of the Russian Federation on Administrative Offences an interest arose in studying “simulation” in the system of principles of the administrative process. The purpose of the study is to formulate general recommendations for neutralizing the negative consequences of manifestations of feign in the system of principles of the administrative process. The methodological basis of the research is materialistic dialectics and elements of conceptual analysis. The methods of analogy and generalization allow us to justify the use of the construction of “simulated legal phenomenon” for the study of the principles of the administrative process. The survey revealed obstacles to the implementation of certain aspects of the presumption of innocence. The comparative legal analysis allows us to establish the comparability of the volumes of state repression in the measures of administrative and criminal responsibility, a clearly negative assessment of simulation in administrative law compared to its neutral assessment in civil law, to identify a number of obstacles to the functioning of the principles of the administrative process. Other standard research methods are also used. The expediency of analyzing the simulation of the system of principles of the administrative process is justified; a simplified model of the system of principles of the administrative process is used for the analysis; from the standpoint of assessing legal simulation, the analysis of the principle of legality, the principle of procedural equality, the principle of guilt, the principle of presumption of innocence, as well as the principle of respect for the honor and dignity of the individual was carried out. In order to reduce the level of obvious simulation in the system of principles of the administrative process, in particular, it is recommended: in the doctrine of the administrative process to consider the principle of legality not as a reality, but as a goal; in the laws, replace the term “legality” with the term “lawfulness”; in the laws, the wording “the principle of equality before the law” and the like should be replaced with “the principle of equality of rights”; part 1 of Article 1.5 of the Code of the Russian Federation on Administrative Offences should be amended as follows: “a person is subject to administrative responsibility only for those socially harmful actions (acts of inaction) in respect of which his guilt is established”; part 3 of Article 1.5 of the Code of the Russian Federation on Administrative Offences after the words: “...is not obliged to prove his innocence” should be supplemented with the words “but has the right to disagree with all or part of the arguments confirming his guilt, or to refute them”. It is also recommended to amend the legislation in order to unify the approach to the differentiation of administrative offenses and crimes.

Pretrial is a process that precedes a trial in court or a preliminary examination before entering a trial. However, in its application, pretrial institutions both before and after the Constitutional Court Decision Number 21/PUU-XII/2014 are not in accordance with the Criminal Procedure Code and also have weaknesses or shortcomings. This paper aims to find out the presence of pretrial institutions in the perspective of the Pancasila state of law. In other hand, pretrial institution as an institution that oversees the protection of the human rights of suspects/defendants is regulated in Chapter X Articles 77 to Article 83 of the Criminal Procedure Code. The determination of the suspect must be carried out carefully by taking into account the principle of presumption of innocence as a general principle in criminal procedural law that must be enforced by law enforcers. In law enforcement, of course, there must be supervision both vertically and horizontally so as to minimize the occurrence of irregularities. Therefore, it is important to establish an Ad Hoc institution as a substitute for a Pretrial institution in which the judges consisting of career judges, legal practitioners and academics can act whether there is an application or not which is filed by the suspect/defendant or his family or proxies so that the decision is objective. Thus, it is important to reformulate the Criminal Procedure Code regarding the determination of suspects.

The article focuses on the significance and relevance of victims consent in sexual offenses cases. The case-law of national legal systems as well as of international judicial bodies demonstrates that consent is a conditio sine qua non for qualifying an act as a sexual offense. However, the recent examples of criminal cases raised from national and international jurisprudence allow authors to conclude that the non-consensual character of sexual acts is frequently complicated to prove in due to some peculiarities of the sexual offenses per se. This paper analyses the modern technique of sexual offenses criminalization which can be characterized by one of two possible approaches: first, the presumption of the alleged victim’s consent to sexual intercourse or, on the contrary, second, the presumption of the lack of thereof. Despite the fact that the second approach seems to be more favorable for alleged survivors, the implementation of this approach entails a number of difficulties. The main one is the hypothetical conflict with the metapresumption of criminal procedure (i.e. the presumption of innocence). In the paper this contradiction is analyzed from the perspective of the legislation and jurisprudence of different jurisdictions, as well as the practice of international judicial bodies (European Court of Human Rights, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda).

One of the tasks of criminal proceedings is to protect the individual, society and the state from criminal offenses, which is achieved through the implementation of other tasks, in particular, by ensuring a rapid, complete and im-partial investigation and trial. In this case, any procedural decisions in criminal proceedings must be based on evi-dence that serves as a kind of link between the event of a criminal offense and the consciousness of the investigator, prosecutor, investigating judge, court. Evidence itself is the main content of criminal procedure in both the pre-trial investigation and in the judicial stages of criminal proceedings in most countries.The authors note that the Constitution of Ukraine as one of the main principles of justice provides for adversarial parties and freedom in providing the court with their evidence and proving their persuasiveness before the court. Factor The Criminal Procedure Code of Ukraine has significantly expanded the scope of this principle of the do-mestic criminal process, including in the field of evidence. Thus, the defense, as well as the prosecution, was given the opportunity to collect evidence during the pre-trial investigation, as a result of which the right of the parties and other participants in criminal proceedings to submit evidence (things and documents) is becoming increasingly important.The article also examines that the principles of criminal procedure in France include: the principle of formality, prosecution, legality, equality, dignity, protection of the victim, urgency of the trial, presumption of innocence, publicity, oral and adversarial proceedings. And the main principles of the criminal process in Germany include: the principle of formality (publicity); the principle of charge; the principle of legality and the principle of compulsory research. A characteristic feature of modern law in the field of criminal procedure in the United States is the consis-tent expansion of the institution of delegated legislation. The US Congress has delegated to the Supreme Court the right to establish rules of criminal procedure that have the force of federal law.

The justice system is increasingly reliant on new technologies such as artificial intelligence (AI). In the field of criminal law this also extends to the methods utilized by police for preventing crime. Though policing is not explicitly covered by Article 6 of the European Convention of Human Rights, this article will demonstrate that there can be adverse effects of policing on fair trial rights and make the analogy to criminal investigations as a recognized pre-trial process. Specifically, it will argue that policing that relies on AI to predict crime has direct effects on fair trial processes such as the equality of arms, the presumption of innocence, and the right to confront the evidence produced against a defendant. It will conclude by challenging the notion that AI is always an appropriate tool for legal processes.

Purpose This paper aims to explore the offense of illicit enrichment by public officials. It examines whether “reconciliation” could be a preventive measure from corruption or a vehicle for corruption. Design/methodology/approach To obtain the data on identifying the illicit enrichment offense and on examining “reconciliation” as a legal tool that combats corruption, this study uses a combination of primary and secondary resources such as the assigned laws, precedents by the Egyptian Cassation Court, academic books, journal articles and reliable websites. Using the same resources, the study explores the adverse aspects associated with “reconciliation.” Findings The paper concludes that the Egyptian Illicit Gains Authority Law No.62 of 1975 jeopardizes the “presumption of innocence” because it shifts the burden of proof from the prosecution to the defendant, but the Egyptian Cassation Court decides differently in many cases, whereby it puts emphasis on the prosecution to present enough evidence on illicit enrichment. If the accused is unable to prove the legitimate source of the increased wealth, then there will not be any conviction of illicit enrichment offense due to the presumption of innocence.

In a context where the criminal courts have been drastically affected by coronavirus, this paper seeks to demonstrate that the presumption of innocence risks becoming a further casualty of Covid-19. It will argue that prolonged pre-trial detention of unconvicted defendants has been sanctioned by the senior judiciary under the Custody Time Limit (CTL) Regulations. Following a series of important CTL decisions, a universal position of the senior judiciary, one supportive of government, is emerging: despite the case backlog resulting in defendants facing trial delays of unknown length, the exceptional circumstances of the pandemic which the executive faces, amounts to ‘good cause’ to extend CTLs. It will be argued that the correct approach for courts to follow is that that they must hear evidence that justifies why no court rooms are available before using that to mandate extensions. It will be further contended that these far-reaching decisions came from the senior judiciary's perceived need to mop up the problem posed by widespread refusals to extend CTLs, raising questions as to their ability to act independently of political pressure.

In law and mass media studies, morals and ethics are linked to the obligations of journalists, such as; the implementation of journalistic code of ethics in every journalistic activity is subject to legal institutions and regulations to carry out with good etiquette as the provisions in the law, which are a set of principles and rules that have generally been accepted and approved by the public. In this regard, ethical principles for the journalistic profession provide a legal basis for managing news in the media in an orderly manner in the relationship between legal subjects. In developments in media institutions in Indonesia, the aspects of share ownership in the media (leadership), economics and media marketing will greatly determine the ideology that is promoted by the media, where this ideology, if it leads to a political economy approach, will create media actors who are less familiar with communication ethics. Communication ethics here are positioned as mere instruments and become less meaningful in determining program content, program quality and media actors' respect for human rights that are represented by individuals as sources of information. This choice raises communication ethics on media actors who are considered to have experienced a reduction. Media players as a profession have taken a shortcut by referring to the principle of benefit, prioritizing the principle of benefit in its coverage and news, which is also paradoxical with the professional ethics it carries. To make matters worse, the absence of respect for the presumption of innocence in the name of the public's interest in obtaining information will increasingly make the mass media and media actors as dominant persons in reconstructing and manipulating social reality. Up to this point, the choice of the tendency to interpret the political economy approach or the ethical approach, in fact both of them do not have obvious legal implications, all of them are returned to each individual who is involved in activities in mass media institutions.

Law enforcement against perpetrators of money laundering crimes has recently become a separate polemic for many law enforcers who have problems, especially about the confiscation of assets suspected of being the result of money laundering, not guided by the presumption of innocence. This writing problem is how law enforcement is against money laundering perpetrators based on the presumption of innocence and how law enforcers should confiscate assets resulting from money laundering based on the presumption of innocence. Penelitian ini menggunakan pendekatan Yuridis Normatif dan Empiris. Normative research is carried out on theoretical matters in legal principles, while the empirical approach is carried out to study the law that occurs in the field. The results showed that law enforcement against money laundering perpetrators who have money laundering proceeds based on the presumption of innocence is carried out by law enforcement through confiscation. The confiscation process does not violate the principle of presumption of innocence because this is a security measure so that the suspected items do not move and transfer to a third party until the trial process is completed and has permanent legal force. Law enforcers should take action in confiscating the assets of money laundering proceeds based on the presumption of innocence must be proportional and prioritize the principles of prudence and prudence as long as it does not violate human rights and is carried out objectively by looking at whether the assets have anything to do with money laundering.

Criminal lawyers regard burdens of proof placed on the accused with deep suspicion. Recently, this suspicion has spurred an interest in how to reconcile these so-called ‘reverse burdens’ with the rule that it is for the prosecution to prove guilt beyond a reasonable doubt in a criminal trial. Though views on this differ among commentators, all reach their conclusions by reference to the presumption of innocence (PoI). Unfortunately, such analysis frequently falls prey to a serious error. Namely, the existing literature fails to adequately distinguish the thin conception of the PoI (a trial rule) from a thick PoI (a general norm of the criminal law) or ignores the distinction entirely. In either case, failure to appreciate this distinction and attend to its consequences raises significant doubt that existing analyses of reverse burdens are sound. This article addresses this failure and offers a fresh approach to reconciling reverse burdens and the PoI.

The study on the state of exception has, as main exponents, Carl Schmitt and Giorgio Agamben. Both will point out that the predominant mark of a state of exception is the separation between law and “force-of-law”. Judicial activism must be understood as a bifacetary phenomenon, being that, in its negative aspect, it transforms the application of laws into an instrument of persecution of opponents and breaks with the Democratic Rule of Law, not guaranteeing everyone equality before the Law. Provisional punishment is a negative judicial activism since its acceptance violates several of the fundamental precepts that underlie the rule of law as established in the Federal Constitution of 1988, such as the presumption of innocence, due process of law and the prohibition against retrogression. Social. Thus, the decision of the Federal Supreme Court that allowed the provisional execution of the sentence shows not only the importance of thinking about a mechanism to control the actions of the Supreme Court, but also exposes it as an agent of exception, demonstrating that even democratic institutions do not depart definitively the risk of an authoritarian state.

This article studies the issues that 'Trials by Media' arise, as well as its effects on fundamental rights and process guarantees. The problem, in recent years, far from dissipating, seems to become entrenched and magnified, reaching new levels of audience thanks to the social networks structure and net algorithms. The work thus starts studying the transformations that ICT have brought both to the process of public communication and fundamental rights, among which appears the collapse of the model of public criticism and the end of the institution of free public opinion in the digital society, where disinformation prevails in its many faces-post-truth, fake news, superficial knowledge, etc.-. Therefore, we analyze the effects of social media trials on fundamental rights and the criminal process. We expect to show if the greater follow-up and feedback that occurs in the digital scenario also translates into a greater affectation of the rights, which is exemplified in a recent case of public relevance ("La Manada"). Finally, proposals are made to ease the situation and get out of the cross-road. En el presente artículo se estudia la patología informativa que suponen los llamados juicios paralelos, así como sus efectos para los derechos y garantías jurídico-constitucionales. El problema, en los últimos años, lejos de disiparse, parece que se enquista y magnifica, al alcanzar nuevas cotas de audiencia y seguimiento gracias a las características del proceso comunicativo de las redes sociales de Internet. El trabajo parte así del estudio de las transformaciones que las nuevas tecnologías han supuesto para el proceso de comunicación pública y los derechos fundamentales, entre las que destaca el derrumbe del modelo de crítica pública y la liquidación de la institución de la opinión pública libre en la sociedad digital, en la que predomina la desinformación e infoxicación en sus múltiples facetas —posverdad, fake news, conocimiento superficial, bots, etc.—. A continuación, se analizan los efectos de los juicios paralelos sobre los derechos fundamentales y el proceso penal, tanto en su versión analógica como en la digital. Con ello se pretende observar si el mayor seguimiento y retroalimentación que se produce en el contexto digital se traduce también en una mayor afectación de los derechos en juego, lo que se ejemplifica en un caso reciente de relevancia mediática («La Manada»). Finalmente, se formulan propuestas para paliar la situación y salir de la encrucijada.

Directive 2016/343 on the presumption of innocence was adopted in 2016, setting common standards for strengthening mutual trust in criminal proceedings among Member States. Even though it significantly improved the level of treatment of suspects and accused persons, its application to pre-trial detentions has been quite controversial. This paper critically analyses three recent judgments of the European Court of Justice about this issue – Milev, RH and, especially, DK – with the purpose of clarifying whether the Directive – and in particular, Arts. 4 and 6 thereof – could be applicable to such measures and, if not, what actions might be taken to improve the protection of individuals in detention.

En el presente documento, se explora la acusación de que las reivindicaciones a favor de las mujeres tienen un tinte punitivo, en el sentido de que pretenden combatir los estereotipos de género a través de los medios más coercitivos del Estado, exigiendo, además, que este restrinja los derechos individuales de los procesados para lograr más castigos y más severidad en ellos. Desde el contexto mexicano, se analiza si, en efecto, las pretensiones a favor de las mujeres implican el debilitamiento de garantías, específicamente, de una tan importante como la derivada de la protección del derecho de presunción de inocencia de los individuos sujetos a un proceso penal por delitos que implican violencia hacia las mujeres.

Freedom is one of the fundamental rights enshrined in Art. 2(2)(2) of the German Constitution. However, nearly 30,000 remand prisoners were incarcerated in pre-trial detention in Germany in 2017 pending trial. Due to the presumption of innocence, remand prisoners are subjected to a flagrant violation of their constitutional right to freedom. After outlining the legal pre-requisites of pre-trial detention under German law, this article addresses various legal areas of conflict arising from periods of prolonged pre-trial detention by examining a case brought before the Federal Constitutional Court in Germany in 2018. At the same time, the article demonstrates how severely pre-trial detention affects the personal lives of remand prisoners. The longer any such period of pre-trial detention lasts, the more important the question is whether this deprivation of liberty can be justified. Over the past few years, the number of cases involving protracted pre-trial detention has increased dramatically due to overworked courts. By emphasizing that a lack of judicial resources cannot justify lengthy terms of pre-trial detention, this article highlights the importance of the fundamental right to freedom of each and every one of us.

Presently, different judicial divisions of the Criminal Cassation Court of the Supreme Court offer varying legal conclusions concerning the possibility to classify the actions of a person when sentencing based on the criterion of classification “repeated” varies. This conclusion follows from the analysis of the judicial Decree as of December 11, 2019 (Proceeding No. 51-4204 км 19, Сase No. 274/2956/17) of the Third judicial division of the Criminal Cassation Court, the Decree of the First judicial division of the Cassation Criminal Court as of July 10, 2018 (Proceeding No. 51-2475 км 18, Case No. 545/3663/16-к), and of the Decree as of February 27, 2019 (Proceeding No. 51-5205 км 18, Case No. 695/136/17) of the Second judicial division of the Criminal Cassation Court. Due to such a state of affairs, the already amalgamated division of the Criminal Cassation Court of the Supreme Court was making its own decision in Case No. 591/4366/18 (Proceeding No. 51-1122 кмо 20) on September 14, 2020. Yet, my opinion is that not all arguments and statements of facts provided in this decree can be agreed on without questions.In the process of the research, it was proved that the situation of the judge’s practicing their discretion powers concerning merging criminal proceedings into one proceeding (according to the requirements of Article 334 of the Criminal Procedural Code of Ukraine) is the only exceptional situation that provides for, in absence of the court’s guilty verdict in “the first criminal proceeding,” which for the legal classification of the repeated offence must take a legal effect, using the criterion of classifying the actions of the accused as “repeated” in the “next criminal proceeding.” Otherwise, we should be discussing violation of the constitutional foundation of presumption of innocence in the criminal proceeding and a securing proof of guilt. Manuscript received 12.10.2020

The principle of the Presumption of Innocence is one of the main principles of all modern legal systems. It is also an important right of the accused mentioned in the human rights documents. The principle simply means that an accused considered innocent until proved guilty by a competent court. Using the descriptive-analytical method, this article studies this principle from the Islamic Law perspective exploring its meaning, basis, and exceptions. The article finds that Islamic law recognizes this principle in its highest sources, That are the Holy Quran and Hadith (sayings and actions of the Holy Prophet Mohammad). The Prophet Mohammad (PBUH) himself and so Muslim jurist applied this principle in both civil and criminal cases. Furthermore, the article identifies two main exceptions of the Presumption of Innocence in Islamic law that are: transferring burden of proof from the plaintiff to the accused when there are reasonable doubts against him/her such as strangely enrichment of a public servant after employment and the second exception is the precautionary imprisonment; however the Muslim jurist have different views regarding the application of the precautionary imprisonment which shows their doubts towards this measure specially when there are not enough proofs.

The topic of the paper is the presumption of innocence in EU law and the case law of the Court of Justice EU. The paper begins by outlining legal regulation of the presumption of innocence in the Charter of fundamental rights of the EU and the Directive on certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings. The second part of the paper analyzes the case law of the Court of Justice EU in the application of the Directive with special reference to the presumption of innocence standards of the European Court of Human Rights. The paper points out the minimalistic orientation of the CJEU regarding the presumption of innocence, which in some elements lowers the standards of protection offered by ECtHR. Low standards threaten to produce a domino effect on the criminal courts in EU member states, which could create a risk to the presumption of innocence as a guarantee of the legitimacy of criminal proceedings.

The article deals with the specific features of the presumption of innocence principle and the problems of its implementation in Russia and the United States of America, as well as theoretical issues of this concept. The materials of practice reflecting violations of the principle of presumption of innocence are presented, and various opinions of legal scholars on the implementation of the principle of presumption of innocence are given. Examples from practice are analyzed, including cases that have a high public profile: the criminal case against two football players Pavel Mamaev and Alexander Kokorin, the decision of the Strasbourg European Court of human rights in the case “Fedorenko V. Russia” and the criminal case of the famous American producer Harvey Weinstein. The article analyzes the “plea bargain” that is used in the United States of America. The problems of implementing the principle of presumption of innocence and ways to solve them are outlined.

Masumiyet karinesi, tüm uluslararası ve bölgesel insan haklarısözleşmeleri tarafından, Kıt’a Avrupası Hukuk Sistemiyle benzer birbiçimde, adil yargılanma hakkının unsuru olarak tanınmaktadır. Anglo-Sakson Hukuk Sisteminde ise karine, ispat yükünü ve standardınıbelirleyen bir ilke olarak kabul edilmiştir. Buna karşılık her hukuksisteminde masumiyet karinesi, Anglo-Sakson ve Kıt’a Avrupası HukukSistemlerinin öngördüğü şekilde kabul edilmeyebilir. Karinenin ortakbir değer olarak kabul edilebilmesi, belirli bir düzeyde asgari mutabakatseviyesinin belirlenmesiyle mümkündür. Bu asgari mutabakat seviyesinegöre karine, suç ile itham edilenleri, yanlış mahkûmiye􀄴 en korumaamacına hizmet eder ve kişinin, suçlu olduğu kanıtlanıncaya kadarmasum sayılmasını sağlar. Masumiyet karinesinin anlaşılabilmesi,ilkenin doğasının tespit edilmesiyle mümkündür. Bu makalede, Danıştayiçtihatları ışığında masumiyet karinesi inceleme konusu yapılmıştır.Makalenin birinci kısmında genel prensipler, ikinci kısmında masumiyetkarinesinin amaçları, üçüncü kısmında idari yargıda masumiyet karinesive dördüncü kısmında Danıştay kararları yer almaktadır., The presumption of innocence is accepted by its position in allinternational and regional human rights treaties as a standard of fairtrials, which similar to that Continental Law System. According toAnglo-Saxsons Law System, the presumption is described in principle ofburden and standard of proof. Whereas; the presumption of innocencein every legal system may not be understood as an accepted by Anglo-Saxons and Continental Law Systems. A level of abstraction is necessary,for accepted to common principle, a search for the minimum standardthat universally hold. According to this minimum standard level; thepresumption has long been regarded as fundamental to protectingaccused persons from wrongful conviction; and the basic principle is thatthe accused is to be considered innocent until proven guilty of a criminaloff er. Understanding the presumption of innocence is possible withdetermining the nature of the right. In this article, the presumption ofinnocence considering the Council of State decision is examined. Thereare general principles in fi rst part, the purposes of the presumption ofinnocence in second part, presumption in administrative law jurisdictionin third part and the Council of State decisions in fourth part.

Disahkannya Undang-Undang Nomor 5 Tahun 2018 Tentang Pemberantasan Tindak Pidana Terorisme, menimbulkan pro kontra, salah satunya terkait penambahan masa penahanan di tingkat penyidikan yang awalnya 6 bulan menjadi 9 bulan sebagaimana dalam Pasal 25 ayat (2), (3) dan (4). Hal tersebut sangat berlawanan dengan KUHAP Pasal 24 ayat (1) dan (2) bahwa untuk kepentingan penyidikan dilakukan penahanan selama 20 hari, dan diperpanjang 40 hari. Adanya penambahan masa penahanan di tingkat penyidikan telah menciderai hak hukum dan peradilan tersangka dan juga menciderai asas-asas peradilan pidana yaitu asas persamaan di muka hukum, asas praduga tak bersalah dan asas peradilan cepat, sederhana dan biaya ringan.Tujuan dilakukannya penelitian ini, untuk mengetahui dasar penambahan waktu penahanan di tingkat penyidikan dan untuk mengetahui konsepsi penambahan di tingkat penyidikan yang tidak melanggar hak asasi tersangka. Metode penelitian yang penulis gunakan yaitu pendekatan yuridis normatif, dengan teknik pengumpulan data melalui studi kepustakaan.Undang-Undang Nomor 5 Tahun 2018 disahkan hanya untuk melindungi korban dan kepentingan penyidik saja, tetapi tidak dengan tersangka. Selama 2014-2015 terdapat 554 rangkaian kekerasan dan pelanggaran HAM yang dilakukan oleh Polri dalam melakukan penyidikan. Padahal dalam Keputusan Kapolri No. Pol. Skep/1205/IX/ 2000, Peraturan Kapolri Nomor 8 Tahun 2009, ICCPR, Undang-Undang Hak Asasi Manusia mengatur dengan jelas bahwa tidak boleh melakukan kekerasan dalam proses penyidikan. Tindak pidana terorisme tidak semua termasuk extra ordinary crime, tetapi juga ada yang serious crime. Karena ketika dikatakan sebagai extra ordinary crime ada unsur yang tidak terpenuhi. Saran dengan adanya penelitian ini, pemerintah lebih memperhatikan lagi Undang-Undang Pemberantasan Tindak Pidana Terorisme dan untuk aparat penegak hukum dalam melalukan penyidikan lebih mengutamakan hak asasi manusia. Perlu adanya pedoman khusus untuk aparat penegak hukum terkait tindak pidana terorisme dan monitoring

The right to silence is afforded to suspects in criminal cases as part of a number constitutional protections contained within Canadian law through the Charter of Rights and Freedoms. It is closely linked to other such rights, including the right to counsel, the right against self-incrimination and the presumption of innocence. Moreover, in some cases, the denial of this right has resulted in convictions in error through false confessions and wrongful convictions. Decisions by the Supreme Court in Canada in recent times can be viewed as a slow encroachment onto individual Charter rights in favour of the needs of law enforcement. In Scotland, until recently, while afforded a right to silence suspects could still be questioned for up to six hours without a lawyer present. While other measures existed to protect an individual’s right to a fair trial, such practices were out of step with the European Convention on Human Rights Article 6(1) right to a fair trial. In the decision in Cadder v HMA, greater protections to suspects were introduced regarding the right to silence and the right to counsel, and the Criminal Justice (Scotland) Act 2016 later consolidated the relevant law on this matter. The focus of this paper will be to examine how the right to silence in both Canadian and Scottish law has evolved through statute and case law and the implications of this for law enforcement practices, the protection of rights and the safety of convictions.

In 2016 the Criminal Code of the Russian Federation was supplemented by article 762 , i.e. an innovative norm on exemption from criminal liability with a court fine. Its novelty is that it provides for: 1) conditional release from criminal liability; 2)the use of a coercive measure against a person who is considered innocent by virtue of the presumption of innocence; 3) its use is associated with the payment of a sum of money to the budget. In addition, the consent of the victim is not required for its application. In practice, there is no uniformity in the interpretation of the new law. The purpose of the paper is to summarize the practice of applying the new norm, conceptualize it and give recommendations on its application. The paper concludes that a court fine is not a liability. Agreeing to pay money to the budget and paying it is a "good deed", a form of making amends for the harm caused by a crime to society as a result of law and order violation. This may be sufficient to release you from liability if there is no victim. The rule on a court fine supplements the norms of the Criminal Code of the Russian Federation on active repentance (article 75) and reconciliation with the victim (article 76) and is especially relevant in the absence of the victim, when the application of these articles is problematic. If there is a victim, the harm caused to him (including moral) must be compensated. The fact that the consent of the victim and the Prosecutor is not required for the application of a court fine does not mean that the court has the right to ignore their opinion.

Legal and ethical concerns have been raised since the inception of the commercial mug shot website industry in the United States. These issues include the violation of the presumption of innocence,...

Es sistema procesal penal acusatorio y oral, cuya implementación inició en nuestro país con las reformas constitucionales de junio de 2008, es esencialmente garantista, busca el equilibrio en el respeto a los derechos de los sujetos procesales y se rige por principios fundamentales, entre ellos, el de presunción de inocencia.Prevalecen, sin embargo, temas cuestionables, como la prisión preventiva oficiosa, ordenada por la propia Carta Magna para los delitos en ella previstos.Esta figura rompe con los principios de las medidas cautelares, es contraria al espíritu garantista de un sistema procesal penal de corte acusatorio, se opone al principio de presunción de inocencia y lesiona derechos humanos.

In November 2019, the world legal community widely celebrated the 125th anniversary of Professor M. S. Strogovich, who, according to his scientific colleagues and students, was a scientist who was “ahead of time”.This article provides a retrospective and comparative analysis of the positions of M. S. Strogovich and his colleagues on certain problems of domestic criminal proceedings, in particular its pre-trial phase, in the context of the direct influence of the scientist's scientific heritage on the development of modern criminal procedure law. The Author of the article particularly interesting views of the scientist and his participation in discussions related to defining the essence and purpose of the preliminary investigation, the implementation of the functions of preliminary investigation in relation to criminal prosecution, the problems of implementation of the principles of presumption of innocence and the adversarial nature of pre-trial proceedings in criminal cases, and, finally, the General Manager of the “investigative case” in modern Russia.M. S. Strogovich consistently adhered to the idea of the need to develop and strengthen procedural guarantees of individual rights, guarantees of justice, and this can be seen in this article. Thus, defining the essence of the criminal process as a system of actions of the relevant officials and the procedural legal relations that arise in connection with them, which in itself was a serious “scientific courage” of those years, M. S. Strogovich particularly defended the position that all participants in criminal proceedings are subjects of the rights granted to them and the duties assigned to them, and they should not be considered objects of unilateral power of officials. This idea has become widespread and generally accepted as the basic definition of domestic (Soviet and Russian) criminal proceedings.The article analyzes M. S. Strogovich’s scientific steps on the conceptual turn from revolutionary-radical ideas about the construction of criminal proceedings to its classical canons and traditions of the Russian criminal process, On the basis of which the conclusion is made about the indispensable use of the scientist's legacy in modernьRussian procedural studies.The research of M. S. Strogovich’s legacy carried out in the article will fully allow to rethink the modern system of criminal proceedings in a new way, can be used as a kind of key to finding solutions to law-making and law enforcement problems, for the further development of the national science of criminal procedure law.

The article aims to reveal the issues of complicity with an unidentified person and to analyze the peculiarities of the application of this institute in the practise of the courts of all levels after the plenary session of the Supreme Court of Lithuania on January 6, 2009 when the position was formed. The issues include assumptions based on court decisions, a possible breach of the presumption of innocence against an unidentified person, and the principle of the inevitability of criminal liability is also discussed. The analysis highlighted the incompatibility of some court decisions with the provisions of criminal law, the importance of the wording used by courts and pre-trial officers, prosecutors for the presumption of innocence, and the need to maintain a balance when convicting an identified accused who was associated with an unidentified person.

This article examines the institution of exemption from criminal liability as an alternative to criminal prosecution and correlation with the principle of presumption of innocence on the basis of current criminal procedure legislation, scientific researches and judicial practice (case law). It is established that the initial position of scholars, who adhere to the opinion of contradiction of the institution of exemption from criminal liability with the principle of presumption of innocence, is that, in itself, the fact of exemption from criminal liability indicates a guilty plea and requires sentencing in accordance with Part 1 of the Article 62 of the Constitution of Ukraine. It was found out that reference of some scholars to commitment of a crime by a person is possible only due to availability of guilty verdict, not a court ruling. Because, there are many norms in legislation which may restrict certain citizens’ rights on the basis of ceasing a criminal case under «non-rehabilitative» circumstances. Other ones propose to abandon the institution of exemption from criminal liability in general and advocate expanding the scope of the institution of release from punishment, improving other means of criminal law regulation of the crime which is established by a guilty verdict of a court. It is being proved that the principle of presumption of innocence while exempting from criminal liability is not restricted: the prescriptions of presumption of innocence should be assessed, firstly, as not included into the mechanism of criminal liability, and secondly – as criminal law measures which are an alternative to punishment. Exemption of a person from criminal liability remains to be an effective means to resolve a criminal law dispute in cases prescribed by law. A person who has committed a criminally punishable act is, in no way, limited in their rights, much less in the right to implement the principle of the presumption of innocence. Key words: alternative, liability, exemption (release), punishment, presumption of innocence.

RESUMEN: Con la implementacion del sistema de justicia penal en Mexico, la presuncion de inocencia deja de ser un principio para convertirse en un derecho fundamental del imputado frente al ejercicio del poder punitivo del Estado, garantizado en la Constitucion Federal, en el ordenamiento adjetivo y leyes especiales penales; constituyendo uno de los limites de la prision preventiva que en este trabajo se aborda en dos vertientes: la primera para explicar si la imposicion de esta medida cautelar viola ese derecho y la segunda, para conocer los fines y el trato de los presos provisionales a la luz de la Ley Nacional de Ejecucion Penal. Palabras clave: prision preventiva, presuncion de inocencia, procedimiento abreviado, preso provisional. ABSTRACT: With the implementation of the criminal justice system in Mexico, the presumption of innocence ceases to be a principle to become a fundamental right of the accused against the exercise of the punitive power of the State, guaranteed in the Federal Constitution, in the adjective order and special criminal laws; constituting one of the limits of pre-trial detention that is addressed in two aspects in this work: the first to explain whether the imposition of this precautionary measure violates that right and the second, to know the purposes and treatment of provisional prisoners in the light of the National Law on Criminal Execution. Keywords: pre-trial detention, presumption of innocence, abbreviated procedure, provisional prisoner.

In this article, we take issue with the echr standards on pre-trial detention. These standards are considered panacea for the reported overuse of pre-trial detention in Europe. They focus on the legitimate purposes of detention as safeguards to ensure the principle of ultima ratio. Yet these purposes are heterogeneous as pre-trial detention protects the pending proceedings but also averts risks pertinent to criminal policy. In our analysis we discuss the shortcomings of the echr standards to fully protect from abusive detention. Moreover, we reveal internal inconsistencies with the presumption of innocence. One major example is the use of pre-trial detention to prevent re-offending, which blurs the boundaries between custody on remand and preventive detention. Additionally, we delve deeper into the obligation to use milder measures as part of the echr standards, which remains superficial and vague. Conclusively, we encourage the reflection and re-examination of the echr standards for pre-trial detention, instead of focusing merely on their better enforcement.

A presunção de inocência permaneceu por muito tempo como um princípio legal sagrado no sistema de justiça criminal. Sob essa proteção, a acusação tem a obrigação de provar cada elemento de um crime além de uma dúvida razoável, salvando, assim, muitos homens e mulheres da injustiça de falsas acusações e de cumprir pena por crimes que não cometeram. Notícias sobre crimes, muitas vezes, são distorcidas e unilaterais, assumindo que o réu já é culpado e, frequentemente, incluem informações prejudiciais que raramente são permitidas durante o julgamento criminal real. Esse tipo de evidência pode incluir a história criminal do acusado, descrições sensacionalistas e declarações inflamadas das partes. Isso acaba por, além de despertar interesse no caso, elaborar uma opinião frente ao caso antes mesmo de o júri ser selecionado. O presente trabalho tem como propósito analisar os meios de comunicação e sua influência frente à opinião pública em consonância com a violação do princípio da presunção de inocência.

Purpose This paper aims to answer three questions: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure imply a criminal charge? These are the main constitutional issues that have hampered the processing of, and consensus regarding, the regulation of the asset civil forfeiture in Brazil, the subject of bill 5681/2013 of the Chamber of Deputies and bill 255/2015 of the Federal Senate. The hypothesis is that the property or the possession of illegal assets implies a violation of the Brazilian Federal Constitution, which presumes good faith and non-abused use to be legitimated. This study intends to enrich this discussion with the current American debate, its main lessons and concerns to individual procedural safeguards. Design/methodology/approach There are some questions that should be addressed: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure imply a criminal charge? Thus, this paper aims to discuss these questions, which are the main constitutional issues that have hampered the processing of, and consensus regarding, the regulation of the asset civil forfeiture in Brazil, the subject of bill 5681/2013 of the Chamber of Deputies and bill 255/2015 of the Federal Senate. The hypothesis is that the property or the possession of illegal assets implies a violation of the Brazilian Federal Constitution, which presumes good faith and non-abused use to be legitimated. This study intends to enrich this analysis with the current American debate about asset civil forfeiture provisions, its main lessons and concerns to individual procedural safeguards. Findings This paper focused on answering three questions: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure imply a criminal charge? The authors sustained the constitutionality of the asset civil forfeiture from a Brazilian perspective, based on three main arguments: First, asset civil forfeiture is based on the non-abused use of property rights constitutional provision. Second, asset civil forfeiture does not imply on or presume a criminal charge. Finally, asset civil forfeiture is not based on the same standard of proof as a criminal proceeding. Originality/value The value of this paper is based on its current debate, the regulation of the asset civil forfeiture in Brazil, which is subject of bill 5681/2013 of the Chamber of Deputies and bill 255/2015 of the Federal Senate. The hypothesis is that the property or the possession of illegal assets implies a violation of the Brazilian Federal Constitution, which presumes good faith and non-abused use to be legitimated.

This article explores where participation rights of victims and the presumption of innocence come into conflict within the context of the International Criminal Court (icc) and whether this causes either set of rights to be violated. First it discusses the development of the right to the presumption of innocence at the icc and explains victims’ participation rights. Next it outlines how conflict between these two rights should be resolved. The article then examines three areas in which there is tension between victims’ participation and the presumption of innocence. These areas are: calling victims ‘victims’; evidence submission; and participation by questioning witnesses. Finally, the article concludes that the rights of victims and the accused can come into conflict and that in order to ensure that the right to the presumption of innocence is protected, and to provide victims with a meaningful right to participation, victims’ rights must be more clearly defined.

The article is devoted to establishing, taking into account the provisions of international legal acts and the jurisprudence of international judicial institutions based on them, the place of international standards of proof in the system of fair justice standards. The content of the standards of fair justice in criminal proceedings is revealed: 1) the hearing by an independent and impartial tribunal established by law; 2) the adversarialness of the trial; 3) the equality of arms; 4) the immediacy of the research of the evidences; 5) the presumption of innocence; 6) the motivation of court decisions. The interrelation of the hearing by an independent and impartial tribunal established by law with the standards of formation of evidences is established: from the point of view of the impartiality of the court, the evidences is subject to formation by the court undoubtedly of its impartiality with regard to the results of the criminal proceedings, and from the point of view of its jurisdictional competence – taking into account the jurisdiction to the court of the relevant criminal proceedings. The interrelation between the adversarial ness of the trial and the standards of formation of evidences is established. According to it the sides of the criminal proceedings shall be afforded equal opportunity to familiarize themselves with the evidences presented by the other side, and to express their position on them, including their assessment in terms of appropriateness, admissibility, reliability and sufficiency. The interrelation of the equality of arms with the standards of formation of evidences is determined. In view of this, they are subject to formation by court with the participation of the sides of the criminal proceedings, providing them with equal opportunity to present evidences. The interrelation between the immediacy of the research of the evidences and the standards of formation of evidences is provided. Accordingly, they are subject to formation by court with the participation of the sides of criminal proceedings, providing that court composition remains unchanged. It is specified on the interrelation between the presumption of innocence and one of the standards of formation of the level of conviction necessary for making the appropriate procedural decision – the standard of proof “beyond reasonable doubt”. It is justified the interrelation of the motivation of court decisions and the standards of formation of the level of conviction necessary for making the appropriate procedural decision – the standards of proof “reasonable suspicion”, “sufficient grounds” and “beyond reasonable doubt” are substantiated.

RESUMEN: El artículo explora los denominados juicios paralelos o mediáticos y su reconocimiento en Chile, con el objetivo de descartar las posturas que refutan su legalidad, fundadas en el menoscabo del derecho a la presunción de inocencia y de las garantías de independencia e imparcialidad del juez o tribunal que conoce de un proceso penal. Como conclusión general, se postula que ello no se verifica en hipótesis donde los derechos y garantías son ejercidos correctamente, especialmente, al interior de un gobierno abierto, que promueva la transparencia, la rendición de cuentas de las autoridades y la participación ciudadana en la toma de decisiones.

Money laundering is a form of further criminal acts committed to eliminate traces of wealth obtained from crime / criminal offenses, in Law No. 8 of 2010 concerning Money Laundering in Article 2 paragraph 2 it is explained that an asset, if used for terrorism activities, whether it is suspected or known, it will be equated with money laundering, there is a conflict in the sentence "should be suspected" and "equated as the result of a criminal act" wherein in the presumption of innocence a person cannot be found guilty before there is a decision permanent legal force judges, normative legal research methodology with a statute approach, and conceptual approach, while the formulation of the issues to be discussed in this study are: The legal basis for the presumption of innocence in the crime of money laundering, handling of assets belonging to terrorism in Article 2 of the Law on Money Laundering and Related Regulations, and the purpose of this research are: to find out and analyze the relationship between the presumption of innocence against limiting money laundering in terms of using wealth against terrorism financing, to find out and analyzing the application of the principle of presumption of innocence to the eradication of money laundering in terms of using wealth against terrorism financing.DOI: https://doi.org/10.26905/idjch.v11i1.3539.

Choosing remand in custody for the defendant on the sole basis of the need to ensure the execution of the sentence, without establishing and taking into account the risk of evading serving the sentence, is unacceptable. In such cases, the restrictive measure lacks a fundamental feature, i.e. its preventive nature. In this regard, the emerging criminal procedural relations are not governed by the provisions of Ch. 13 of the Criminal Procedural Code of the Russian Federation, but are subject to Ch. 46 of the Criminal Procedural Code of the Russian Federation, regulating the issues of presentation of the sentence for execution. The presentation of the sentence, yet to enter into legal force, in terms of the punishment imposed, for immediate execution bypassing the prohibition established by law, as well as the choice of a restrictive measure according to the punishment imposed when deciding the sentence solely for the purpose of its execution, contradicts the constitutional principle of the presumption of innocence. The provisions of Part 2 Art. 97 of the Criminal Procedural Code of the Russian Federation determine the possibility to choose a restrictive measure for ensuring the execution of the sentence. The constitutional legal sense suggests that in order to ensure the execution of the punishment imposed by a sentence yet to become effective, the court has the right to choose or change a restrictive measure according to the punishment imposed, if there are sufficient grounds to believe that the accused will evade serving the sentence imposed on him. The court does not have the right to choose or change a measure of restraint in respect of the accused according to the sentence imposed simultaneously with the sentencing. The issue of the necessity of applying a restrictive measure in connection with the decision of the sentence shall be resolved in a separate court session at the request of the prosecution or at the initiative of the court after the pronouncement of the sentence.

The article analyzes the implementation of the principle of equality in the constitutional legal proceedings of Ukraine nowadays. It has been established that this principle is reflected in the decisions of the Constitutional Court of Ukraine: 1) equality of citizens before the law, which does not exclude differentiation of legal regulation, is guaranteed by the prohibition of «negative discrimination» and is not absolute in scope; 2) equality of everyone (i.e. citizens of Ukraine, foreigners, stateless persons) before the court, including equality of all participants of the judicial process; 3) equality of citizens in duties, which means their equal subordination to the laws of Ukraine; 4) equality (equal significance) of rights and freedoms, the manifestation of which is the equality of material and procedural rights, the equality of positive and negative rights. On the basis of the analysis of the decisions of the Constitutional Court of Ukraine, a number of «ontological factors» that determine the principle of equality and are considered methodologically important for legal characterization, have been identified. The first of the proposed factors is the sphere of social life, i.e. the part of the public space that has become «discriminatorily vulnerable», and in light of this the legal positions of the Constitutional Court of Ukraine in respect of the principle of equality in the sphere of realization of electoral rights, labor rights, property rights etc. have been systematized. The second factor can be considered the peculiarities (nature) of legal rights that are «in the area of discriminatory risk», which affects the functions of certain legal means of ensuring equality, in particular, the functions of the so-called legislative qualifications. A third reviewed factor is the relationship between human and civil rights. The dependence of the content and scope of the principle of equality on the joint realization of the right to education and the right to free development of one’s personality; the right to housing and freedom of movement and free choice of place of residence. The fourth factor of the substantive content of the principle of equality is the criteria of differentiation of legal regulation, namely, «appropriateness» (economic, political, social), «justifiability in a democratic society» and «relevance». The fifth factor is associated with the specificity of guarantees of ensuring the principle under consideration, among which — «accessibility», «free-of-charge» basis of education and health care. As the sixth factor, the correlation of the principle of equality with other principles of law, in particular, with the principles of justice, freedom, presumption of innocence and inadmissibility to hold a person responsible for refusing to testify against him/her, has been substantiated. Keywords: rule of law, legal principles, human rights and freedoms, The Constitutional Court of Ukraine, principle of equality.