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Kutafin Law Review

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Vol 10, No 4 (2023)
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EDITORIAL

INTERNATIONAL LAW

747-787 499
Abstract

The article examines complex legal aspects of the problem of responsibility, when it comes to offences against internationally protected persons (OIPP). The article reveals that, depending on the international legal qualification of the offence, OIPP can be qualified as either an ordinary crime (the one prosecuted under domestic law following the participation of the State in the relevant international conventions the key of which is the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents) or an international crime when it is a violent act against the protected person committed in the situation of an armed conflict. The authors argue that notwithstanding the fact that both cases entail individual criminal responsibility of the delinquent, individual criminal responsibility for OIPP as an ordinary crime occurs to the extent in which a State party to a relevant international convention has provided for punishment in its national legislation for the conduct criminalized thereby. At the same time, with regard to OIPP as a war crime, the article highlights that the commission of OIPP engenders the right to exercise universal jurisdiction under customary international law and the obligation to exercise quasiuniversal jurisdiction under the “Geneva law” for the purpose of bringing delinquents to justice. In the meantime, the most controversial issue is the question of international legal responsibility of a State in cases of OIPP. It is argued that such responsibility can arise, when OIPP is a war crime committed by a State agent or a non-State actor effectively controlled by the State, as well as when it fails to undertake necessary measures to ensure personal inviolability of protected persons in violation of diplomatic law, or in situations of the denial of justice.

CRIMINAL LAW AND ENFORCEMENT PRACTICES

788-816 745
Abstract

After being derogated several times, the institute of multiple recidivism was re-incorporated into the Republic of Serbia’s positive criminal legislation with the intention of giving intentional perpetrators of crimes punishable by imprisonment, who were previously convicted at least twice for criminal offenses committed with intent to imprisonment for at least one year, harsher penalties and disabling them from committing criminal offenses in the future. Numerous disputed scenarios required national jurisprudence to find solutions, with the challenges of calculating the criminal range and the level of the lower threshold of the imposed criminal sentence standing out in particular. The observed institute was analyzed primarily through the prism of rationality, justification, and expediency of the current normative solution, within which the author attempted to provide answers to potentially contentious issues. The findings of the conducted research indicated that the new concept of the institute of multiple recidivism is incorrect because the threshold of half the penal range is excessively high and does not leave enough space for the court to objectively weigh the circumstances of each specific case. Furthermore, the findings suggest that in some cases, an approach based on alternative measures may be a more convenient solution, as well as that the application of the existing legal solution regarding the observed institute is merely legitimate in relation to some categories of perpetrators who are declared “incorrigible.” The conducted research concludes that, due to the arguments presented in the paper, there is a high likelihood that the institute of multiple recidivism will again be derogated from the Republic of Serbia’s legislation if the provision of Art. 55a of the Criminal Code remains unchanged.

817-846 355
Abstract

The article discusses the practical experience, prospects and vectors of development of financial investigations in Kazakhstan, the problems associated with the search and return of assets located abroad. The authors focus on the main obstacles faced by law enforcement agencies in the investigation of financial crimes, as well as existing mechanisms for the return of fraudulently acquired funds from abroad. The article highlights examples of successful and unsuccessful mechanisms for asset recovery, provides recommendations for improving the situation in this area.

RIGHT TO ACCOMMODATION: INTERNATIONAL AND NATIONAL LEGAL ASPECTS

847-871 415
Abstract

In Vietnam, the concept of “settling down, having a good career” becomes an important goal of each individual. It means having a stable place to live can be guaranteed when you get a job. Therefore, home ownership becomes a basic human right. In the current integration trend, when the opening to trade between countries around the world is deepening, the demand for house ownership is not only limited to Vietnamese citizens, but also to foreigners. Vietnam has also recognized the problem of foreigners owning houses in Vietnam, but there are still restrictions on the number of houses, the area of houses owned and other issues. Currently, the Government is implementing a policy to attract investment in housing in order to exploit the development potential of this field in Vietnam as well as to solve the outstanding housing problem and expand the housing market. Therefore, the issue of foreigners’ home ownership becomes an important concern and is one of the research subjects to implement this policy.

The article presents the provisions of Vietnamese law, international law on home ownership rights of foreign individuals and organizations in Vietnam, as well as conditions for foreign individuals and organizations to own housing in Vietnam, a guarantee of human rights. In addition, the article also points out to the shortcomings of the national legal regulation, thus making some recommendations to overcome the difficulties of the real estate market and housing development in Vietnam.

JUDICIAL PROCEEDINGS: USE OF SPECIALIZED KNOWLEDGE AND INTRODUCTION OF AI

872-889 864
Abstract

Machine learning algorithms are increasingly being utilized in scenarios, such, as criminal, administrative and civil proceedings. However, there is growing concern regarding the lack of transparency and accountability due to the “black box” nature of these algorithms. This makes it challenging for judges’ to comprehend how decisions or predictions are reached. This paper aims to explore the significance of Explainable AI (xAI) in enhancing transparency and accountability within contexts. Additionally, it examines the role that the judicial system can play in developing xAI. The methodology involves a review of existing xAI research and a discussion on how feedback from the system can improve its effectiveness in legal settings. The argument presented is that xAI is crucial in contexts as it empowers judges to make informed decisions based on algorithmic outcomes. However, the lack of transparency, in decision-making processes can impede judge’s ability to do effectively. Therefore, implementing xAI can contribute to increasing transparency and accountability within this decision-making process. The judicial system has an opportunity to aid in the development of xAI by emulating reasoning customizing approaches according to specific jurisdictions and audiences and providing valuable feedback for improving this technology’s efficacy.

Hence the primary objective is to emphasize the significance of xAI in enhancing transparency and accountability, within settings well as the potential contribution of the judicial system, towards its advancement. Judges could consider asking about the rationale, behind outcomes. It is advisable for xAI systems to provide a clear account of the steps taken by algorithms to reach their conclusions or predictions. Additionally, it is proposed that public stakeholders have a role, in shaping xAI to guarantee ethical and socially responsible technology. 

890-926 268
Abstract

The work of knowledgeable persons involved in legal proceedings by officials conducting legal proceedings is of primary significance. The work of knowledgeable persons is inter-procedural in nature. The use of specialized knowledge is characterized by a special form. The paper presents the opinions of researchers and the author concerning classification of forms and types of the use of specialized knowledge in Russian legal proceedings. The author concludes that classifications are important for the development of academic thought and practice in relation to different types of legal proceedings. The majority of researchers are in favor of distinguishing two forms of using specialized knowledge — procedural and non-procedural forms. Forensic examination is one of the main and common types within the procedural form. In addition, the author focuses on participation of a specialist in production of procedural (including investigative) and judicial actions, consulting an expert and other procedure participant. The types of the use of specialized knowledge within the framework of the nonprocedural form in terms of content, to a certain extent, are compatible with the types identified within the framework of the procedural form. Specific types can also be identified, e.g., medical forensic examination (expertise), revisions, audits, etc. Alternative expertise takes a special place among the types of the use of specialized knowledge in the nonprocedural form. Its normative regulation has not developed, and the use of its results in legal proceedings as evidence is still in question. At the same time, many types within the framework of the procedural form are normatively regulated. However, the shortcomings of normative regulation as well as not fully developed methodological aspects prevent the use of the results of these types of forensic examination (expertise) in legal proceedings. In relation to some types within the framework of the non-procedural form, the results of which are now actively used in legal proceedings, there is neither normative regulation nor theoretical justification based on a unified approach. In this regard, it is especially important to unify not only the forms of using specialized knowledge, but also the types, based on a general theoretical expert approach, as well as ways to use their results in legal proceedings.

ACADEMIC OPINION



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ISSN 2713-0525 (Print)
ISSN 2713-0533 (Online)