We speak legal English. Matters at law. Материалы межвузовской научно-практической конференции (Москва, 27 ноября 2015 г.)
.pdfС. С. Миронова
The effect of law-enforcement officer’s weapon employment in different countries
Society grants members of law enforcement enormous power over citizens to enable the police to keep the peace and to preserve social order. They are granted a great deal of freedom to use their judgment regarding which laws to enforce, when and against whom. This wide range of options and authority can lead to the abuse of their power. Some police officers come to see themselves not as simply enforcers of the law, but as the law itself.
It is apparent that the vast majority of police abuses occur with the use of physical force or firearms. A huge proportion of fatalities are caused by the improper use of firearms by police.
For example, in the Netherlands one telling incident that received much publicity involved the violent arrest of a drunken Latvian man in Rotterdam in June 2012. The man, who was lying prostrate on the ground, was first pepper-sprayed and then repeatedly kicked, even though he did not show any aggression towards the police officers. In August 2012, the 18-year old boy in Nieuw Buinen (Drente) who crashed into a tree while being pursued for driving a stolen car was killed in police car. In France, in December 2014, a police officer killed a man who attacked him with a knife at a police station. In Russia, in December 2013, one of the brawlers, who attacked a police officer, was shot by them. In Moscow, a family of three people was killed by a police officer. In the USA, in November, 2014, Tamir Rice was shot by police in Cleveland, Ohio. He was 12 years old and playing with a toy pistol. Walter Scott, a 50-year-old unarmed black man, was fatally shot in the back after a traffic stop for a broken light on his car in North Charleston, South Carolina on April 4, 2015.
503 people in the USA have been killed by police using firearms in the first six months of this year — and in the first 24 days of 2015, US police shot and killed 59 people, which is more than police in England and Wales did in the last 24 years (55).
Many countries have extensive laws, regulations, and guidance that govern the use of police weapons.
A list of circumstances in which the use of firearms by police officers is authorized:
•Protecting other persons or themselves from a violent assault;
•Preventing an attempt to seize firearms in service of the police;
•Rescuing hostages;
•Arresting people apprehended during the commission of grave crimes and attempting to escape, provided there are no other means to arrest them;
•Arresting armed persons who refuse to follow orders to surrender weapons, ammunition, explosives, and poisonous and radioactive substances;
•Suppressing riots and other illegal acts hindering traffic, the operation of means of communication, and organizations;
•Repelling an armed attack;
•Preventing the escape of suspects and persons accused of committing a crime. Additionally, a police officer has the right to use firearms in order to stop a vehicle if
the driver refuses to comply with repeated demands of the police officer to stop and attempts to escape; to neutralize a dangerous animal; and where a person with an exposed firearm who is being arrested by a police officer attempts to walk up to the police officer, thus reducing the distance indicated by the police officer, or intends to touch the police officer’s firearm.
Police officers are prohibited from using firearms against women, persons with obvious signs of disability, and minors when their age is obvious or known to the police officer.
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Exceptions to this prohibition include armed resistance to the police officer, or committing an armed or group attack that threatens the life and health of individuals or police officers. A police officer cannot use a firearm in a large crowd and if random people may suffer as a result of such use.
The list of weapons used by the police force also includes Russian-made pistols, revolvers, submachine guns, and automatic rifles.
Special means used by the police include rubber batons, handcuffs, tear gas, paint dispensers, sound-and-light means of distraction, means to destroy barricades, shotguns, armored carriers and others.
Such special means as rubber batons and handcuffs are used more often than others. But cases of use of firearms happen more often than earlier.
Police brutality statistics and those related to generalized misconduct are not typically things which occupy a place of importance in the mind of the public. The truth is that officer misconduct is a very real problem facing society.
After carrying out the analysis the following conclusions were drawn:
•in the USA the firearms are used more often than in other countries;
•often the police officer doesn’t receive punishment for murder;
•only after a public censure the appropriate measures are applied to the police officer. And also there is a wish to note that more effectively the law works in In Britain,
Ireland, Norway, Iceland and New Zealand, officers are unarmed when they are on patrol. Police are only equipped with firearms in special circumstances. It’s a strategy that seems to work surprisingly well for these countries. Police officers there have saved lives — exactly because they were unable to shoot.
”The practice is rooted in tradition and the belief that arming the police with guns engenders more gun violence than it prevents”
Guðmundur Oddsson
So, what can ordinary individuals do to keep themselves safe from the apparent problems of abuse within the system? The answer is simple: report everything. Film all police officers whenever they engage you or anyone around you (the internet is a wonderful tool for resistance). Take down their badge number if you perceive any misconduct and report them.
Yes, it is true that a very small percentage of police complaints actually get processed, even fewer go to trial, and still fewer are either convicted or put in prison (if it applies to the misconduct). This does not mean, however, that this type of resistance is futile. A constant, annoying unending series of official complaints, believe it or not, can add up if made in great enough volume. Much police brutality and misconduct goes unreported; this will not stand in a civilized society!
С. В. Мишин
Extremism: the accusation and the truth
Logicians argue that one cannot pass a judgment on something unless one has a clear conception of it, because the unknown and the undefined cannot be judged. Therefore, we first have to determine what ”religious extremism” means before we can condemn or applaud it. We can do so by considering its reality and its most distinguishing characteristics.
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Literally, extremism means being situated at the farthest possible point from the center. Figuratively, it indicates a similar remoteness in religion and thought, as well as behavior. One of the main consequences of extremism is exposure to danger and insecurity.
All these warnings against extremism and excessiveness are necessary because of the serious defects inherent in such tendencies.
The first defect is that excessiveness is too disagreeable for ordinary human nature to endure or tolerate. Even if a few human beings could put up with excessiveness for a short time, the majority would not be able to do so. Allah’s legislation addresses the whole of humanity, not a special group who may have a unique capacity for endurance.
The second defect is that excessiveness is short-lived. Since man’s capacity for endurance and perseverance is naturally limited, and since man can easily become bored, he cannot endure any excessive practice for long. Even if he puts up with it for a while he will soon be overcome by fatigue, physically and spiritually, and will eventually give up even the little he can naturally do, or he may even take a different course altogether substituting excessiveness with complete negligence and laxity.
The third defect is that excessive practice jeopardizes other rights and obligations. A sage once said in this respect: ”Every extravagance is somehow bound to be associated with a lost right”.
A correct expose and definition of — and an insight into — extremism are the first step toward outlining the remedy. There is no value for any judgment or exposition not based on genuine Islamic texts. Failure to define and comprehend ”religious extremism” and to leave the issue to the whimsical desires of people will lead to discord among Muslims. The Qur’an says: ”If the Truth had been in accord with their desires, truly the heavens and the earth and all the beings therein would have been in confusion and corruption”.
It is necessary to draw attention to one important observation. The degrees of a person’s piety as well as that of the society in which he lives affect his judgment of others. A religious society usually produces a person sensitively aversive to any deviation or negligence, however slight it may be.
Although a basis of faith in Islam is to believe that this religion is right and that those who do not believe it are wrong, there are Muslims who object to considering those who take a religion other than Islam as considering this as extremism and bigotry. This is an issue upon which we must never compromise.
The first indications of extremism include bigotry and intolerance, which make a person obstinately devoted to his own opinions and prejudices, as well as rigidity, which deprives him of clarity of vision regarding the interests of other human beings or the circumstances of the age.
Е. В. Моисеева
Capital punishment: the problem of wrongful executions
Inlegalspheretherearesomeproblemsconnectedwithcriminalresponsibility,especially connected with punishments for different kinds of crimes such as robbery, killing, arson, burglary and so on. And one of the most important and contradictory kind of punishment is death penalty because it forces legislators to take people’s life. Unfortunately, there are some cases of wrongful executions and I would like to tell you about such mistakes.
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What does the term ”capital punishment” mean?
Capital punishment or death penalty is punishment by death. The term capital originates from the Latin capitalis, literally ”regarding the head”.
Capital punishment has, in the past, been practiced by most societies, as a punishment for criminals, and political or religious dissidents. Historically, the carrying out of the death sentence was often accompanied by torture, and executions were most often public.
Nowadays 36 countries actively practice capital punishment, 103 countries have completely abolished it for all crimes, 6 have abolished it for ordinary crimes only (while maintaining it for special circumstances such as war crimes), and 50 have not used it for at least ten years and/or are under moratorium.
Factors leading to wrongful convictions include:
•Police and prosecutorial misconduct;
•Perjured testimony and mistaken eyewitness testimony;
•Racial prejudice;
•Suppression and/or misinterpretation of mitigating evidence;
•Community/political pressure to solve a case.
Examples of most wrongful executions of all time
1. Cameron Todd Willingham
Cameron Todd Willingham was convicted of murdering his three daughters by burning down his house in 1991. He was later executed in 2004 in Texas.
Despite the fact that the Texas Forensic Science Commission found that the arson claims were doubtful and Willingham’s wife disputed the claim that Willingham had killed his daughters to cover up abuse allegations, Governor Rick Perry did not grant a pardon to Willingham.
2. Leo Jones
Leo Jones was executed in 1998 for murdering a police officer in Florida. Although Jones confessed 12 hours after the murder, he said that he was forced to say he did it during hours of intimidating police interrogation, where they threatened his life and made him play Russian roulette. One witness believed that the police department was out to get Jones because he had assaulted an officer once. The same two arresting officers were released from the department shortly after for using violence in other cases. Despite repeated appeals, other potential suspects and witness testimonies in support of Jones’ exoneration, the sentencing stood as is. Jones was also denied another method of execution and was killed by the electric chair.
3. Timothy Evans
Timothy Evans was sentenced to death by hanging for the murder of his daughter in 1949 at their home in Notting Hill, London. Evans maintained his innocence and repeatedly accused his neighbor, John Christie, of murdering his wife and daughter. The police investigation and physical evidence used to convict Evans was weak. After Evans’ trial and execution, Christie was found to be a serial killer who was responsible for murdering several women at his residence. There were massive campaigns to overturn Evans’ conviction and an official inquiry was conducted 16 years later. It was confirmed that Evans’ daughter had been killed by Christie, and Evans was granted a posthumous pardon. This case of injustice had a strong influence in the UK’s decision to abolish capital punishment.
Conclusion
There’s no doubt about it — the criminal justice system is not perfect. And those imperfections become apparent when someone is the innocent victim of the death penalty. Wrongful executions have been happening for hundreds of years but it’s time to stop it. I suppose law-makers will be more professional to avoid such mistakes because the most
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valuable thing in whole world is life. And before to make such a serious decision judges have to take into account all circumstances. As known English proverb says: ”Draw not your bow till your arrow is fixed”.
Е. Н. Новиславская
Capital punishment
Capital punishment, the death penalty or execution is punishment by death. It is referred to as a death sentence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term ”capital” originates from the Latin word ”capitalis” that literally means ”regarding the head” (referring to execution by beheading). Capital punishment has, in the past, been practiced by most societies as punishment for criminals and political or religious dissidents. Historically, carrying out the death sentence was often accompanied by torture, and executions were most often public.
36 countries actively practice capital punishment, 103 countries have completely abolished it de jure for all crimes, 6 have abolished it for ordinary crimes only (while maintaining it for special circumstances such as war crimes), and 50 have abolished it de facto (have not used it for at least ten years and/or are under moratorium). Capital punishment is a matter of active controversy in various countries and states, and positions can vary within a single political ideology or a cultural region.
On 18 December, 2008, the United Nations adopted resolution 63/168 which is a reaffirmation of its call for a moratorium on the use of the death penalty (62/149), passed in December the previous year. The resolution calls for the states to freeze executions with a view to eventual abolition.
Capital punishment used to be a major deterrent. We all know that ”life sentence” does not mean what it says. After ten years or so of ”good conduct”, the most desperate villain is free to return to society where he will live very comfortably, thank you, on the proceeds of his crime or he will go on committing offences until he is caught again.
History
The death penalty is one of the most ancient types of punishment. Initially, it appeared as realization of the principle of a talion: ”an eye for an eye, a tooth for a tooth”. According to this principle, a fair punishment for causing death to another person was the death penalty. Besides, a role was also played by the custom of blood feud existing in many societies which urged to replace the death penalty, carried out on behalf of the state.
In spite of the fact that later for multiple acts the principle of a talion was replaced with payment of a fine in favor of the victim, the death penalty remained in the majority of the states.
Capital punishment nowadays
Capital Punishment can be described as the punishment of death for a very bad or heinous crime like murder. Not all states have got capital punishment, otherwise known as the ”Death Penalty”. The remaining states do have some form of capital punishment ranging from hanging, firing squad, electrocution, gas chamber, and lethal injection (the USA).
There are many different forms of capital punishment used today throughout the world and the United States, they are hanging, firing squad, electrocution, gas chamber, and a lethal injection.
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Each state which has got a form or forms of capital punishment and its own way of executing someone.
Conclusions
In conclusion, I would add that capital punishment is a big and interesting question. I think we must all be thinking about this ”problem”. On the one bowl of scales there are crimes against humanity and humanity. On the other one there are unimaginable and cruel, sophisticated crimes deserving even the highest measure.
О. Я. Оруджев
The language of symbols and gestures in the criminal world
Anyone who lies in the language of words gives himself in sign language, for which he pays no attention.
Oswald Spengler
In the modern world, there are about 6000 living languages. In fact, it is no wonder! After all, the language is the main means of communication. With the knowledge of the language, we are free to express our thoughts.
This article is devoted to specific types of non-verbal communication, namely, criminals’ gestures, body movements, as well as tattoos that are very common in the criminal world.
First of all, speaking about the importance of gestures in exploring a person’s features, it should be emphasized that each person has a certain amount of intellectual, emotional and physical postures. Knowledge of those features and means of nonverbal communication helps employees in the investigation of crimes.
Perhaps it would be appropriate to begin with the body language of convicted people. It should be noted that this sign language is very specific and has some peculiarities inherent to the subculture of the underworld.
In the criminal world there are about 1015 gestures that replace ordinary words. The scientists conducting research consider gestures, specific to criminals, a sign language combining the thieves’ (criminal) speech with a primitive way of communication.
As for the emotional aspect of the problem, we see that the offender’s emotions characterize his/her attitude to being isolated from the community, that is why the criminals’ external emotions show themselves in bright, expressive movements, gestures, facial expressions. It is worth noting that according to Allan Pease, one of the researchers of this problem, there is a direct connection between the social status, power, prestige of the man and his vocabulary, and research on nonverbal communication revealed the interconnection between the man’s eloquence and the degree of gesticulation used to transmit his/her messages.
Communication in the criminal world is characterized mainly by gestures. The psychological analysis shows that each of our gestures is unconscious transition from one automatically fixed situation to another regardless of whether or not it is random. Each movement can include some poses, and each pose, in turn, is followed by several gestures.
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The judgment that our movements are arbitrary is an illusion. In fact, they are automatic just as our thoughts and feelings. Thus, one can say that words can lie, and a human body can’t.
A striking example is a criminal’s smile and squeezing hands in a fist. It only says that the condemned tries to mislead us, having put on a mask of kindness, however, the true essence remains noticeable. Quite often during a conversation a criminal’s gestures inform us about what he doesn’t want to say. So, for example, a criminal can press a forefinger to the squeezed lips, as if giving himself no chance to let the words be pronounced.
For a long time in the criminal world there has existed a secret gesture, warning the interlocutor about the secret meaning of the words not to be understood by a third party: the offender shows the palm of his right hand, then turns it upside down, crosses two fingers, and hits the index finger against the average one several times so that the gesture was clear only to those whom the gesture is addressed to.
In case one of two perpetrators speaks a lot, and the other one keeps silent, you should pay attention to the initiator of gestures. If the chatter-box copies the silent one’s gestures, there is no doubt that the silent one is the leader.
In the criminal world, there are also the so-called ”mirror gestures”, showing the structure of the interlocutors’ relations with respect to the current situation. For example, one of the interlocutors puts his hands behind his head, the other one repeats his gesture that their opinions are the same. Thus, in a conversation with a group of criminals it is necessary to identify the initiator of gestures. This will help in determining the hierarchy of criminals, in identifying the ”thief-in-law” as well as his stooges.
Analyzing all the above mentioned information, we can say that knowledge of criminal gestures is an important factor contributing to the investigation of crimes as non-verbal gestures are performed automatically. And the main task of law enforcement bodies is to solve crimes.
М. С. Осипова
Differentiation of self-defense and arbitrariness
Self-defense is one of the ways of protecting civil rights, according to the article 12 of the Civil Code of the Russian Federation. In article 14 it is said that the methods of selfdefense must comply with the violation and do not fall outside the limits actions needed to suppress it. Unfortunately, the Civil Code does not define this concept.
E.A. Sukhanov in his textbook says that the self-defense of the civil rights commission of acts is not prohibited by law about the actual actions aimed at protecting his personal or property rights or interests, the interests and rights of other persons and states.
When self-defense is associated with damaging the civil rights of others, then it is considered to be one of the following two conditions: on the one hand, the damage which has been caused in the course of self-defense should be less than the harm that has been prevented; on the other hand, it was not possible to eliminate the harm that threatened the rights under the circumstances, in other ways.
So, traditionally distinguishing the following characteristic features of self-defense of civil rights are:
• a person whose rights have been violated defends them by himself;
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•one can protect one’s rights, when there is a violation of law and it continues or there is a real threat of such violations;
•it must be corresponding to the violation.
In accordance with the compliance or non-compliance of these conditions the distinction is understood between self-defense and arbitrariness. Arbitrariness is a kind of self-defense which limits exceed the reasonable measure. Any self-defense could easily go to arbitrariness, in the case when the violator causes a substantial damage. Self-protection of the right is possible as to the violation of the right, and after itself, arbitrariness is always there when there is a violation of law. In primitive societies people defended their rights only by arbitrariness. In the legal doctrine, the opinion of guilt speaks ambiguously. Some believe that it is expressed only in the direct intention, in the opinion of others there may exist a direct or indirect intention as well.
So self-defense involves the commission by an authorized person of unilateral legal or factual actions for the protection of civil rights. Still debatable differentiation of selfdefense and arbitrariness remains. The jurisprudence does not recognize the legitimate selfdefense, if it does not correspond to a method and nature of the violation and the damage (or a possible damage) is more significant than prevention attempts damage. In conclusion, the authorized person that has used the measures of self-defense exceeding reasonable limits may face a trial or another competent authority, and that is the guarantee of the rights and legitimate interests of civil traffic and allows to protect these interests from possible abuse of the right of self-defense.
Т. В. Панькевич
On necessary amendments to juvenile jurisdiction
The juvenile jurisdiction ideas come in time; they are drafted in the RF Constitution (art. 1, 17, 62, etc.), the RF Family Code, Child’s Rights Convention and in other norms. But anything can be done differently. A child can be taken away from the family because of an occasional scratch, while the rights of a child can remain violated as a result of administrative inflexibility or statute uncertainty. And what are the rights of parents, then?
Alas, the juvenile jurisdiction (further JJ) supposes parents’ guilt presumption. And a trial between a child and the parents becomes a norm within this framework. According to it, the guardianship may withdraw a child from a family on following reasons (Federal Law 124):
1.An indigent family;
2.Unsatisfactory living conditions;
3.Oppressive upbringing;
4.Bruises, scratches as signs of violence;
5.Child’s doing chores, etc.
The Russian social services used to have been working for years with problem families, withdrawing the parents’ rights only in hopeless situations. At present, unreasonable usage of JJ norms can cause family and parents’ authority destruction, further on — birth lowering. One can observe negative results of JJ already:
•breaking family links;
•increasing number of trials on parents’ rights withdrawal;
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•demography data deterioration;
•family independence constitutional principle opposing.
It’s reasonable to draw out some suggestions, without denial of the general idea of JJ.
•Exclude from consideration earlier suggested to the State Duma bills on Social Patronage, on compulsory professional foster-parents’ training, on children ombudsman, ”Childhood-2030” project and some others, aiming at introduction of the JJ Western variant as endangering the rights of the parents permitting the officials to interfere with the parentchild relations.
•Revise the regional legislation on its concordance to the federal norms.
•Help the restoration of the family values, typical for the Russian Civilization, recognized by the Orthodoxy and other Confessions. These values are: parents’ rights
inalienability, children’s obedience to the parents, respect to the elders, sacredness of the family and marriage union, all family members’ reciprocal service, having many children as a norm, respect to labour, justice, patriotism, etc.
•Upbringing function is to be returned to schools. Morality lessons are to be returned, parents are to be attracted to the educational process.
•From the Federal Law, the items are to be excluded making equal the children below legal age to the adults in their rights, prohibiting the children from enjoying their lawful rights.
The Federal Legislation is to be enriched with:
•family’s autonomy principle, also authorizing parents independently to solve questions concerning the family internal life, children’s interests considered, to bring up their children with all legal methods, on their discretion, corresponding to their world outlook, according to their religious, natural and cultural traditions, also to limit the child’s rights in the case of misuse, damaging his or her adequate physical, intellectual and moral development;
•parents’ conscientiousness presumption principle, state’s non-interference into the life of a family;
•parents’ rights inalienability principle, besides the cases numbered in the federal legislation;
•to develop amendments into the family legislation to enforce the family institution, to support indigent families without children withdrawal;
•to fix the fact of parents’ rights withdrawal as an extreme measure applicable only when leaving the child with parents is evidently dangerous;
•to list the parents’ rights in a broad variety on teaching, upbringing, safeguarding children, their legal interests’ presentation;
•to fix the parents’ rights priority on upbringing their children independently from their material opportunities, social status, religion, etc., in case of no parents these rights confer to near of kin according to the guardian legislation. To introduce into the Federal Law the notion of ”kinship guardian”;
• to guarantee the children the housing right in the case of family dissolution, to introduce a corresponding amendment into the legislation;
•to exclude the norms permitting a broad discrimination scale for children withdrawal from the legislation;
•to omit ”School student health passport”;
•boarding houses must not be financed according to the ”heads number”.
According to the RF Constitution, art. 60, a RF citizen becomes rightful at the age of 18. Art. 64 states that before that his or her parents are authorized for the child’s presentation. But a partial legal capacity starts at the age of 14. But in our opinion, children mustn’t be allowed to go to trial without their parents before 18 (Art.56 Family code, part 2). A child before 15 mustn’t have right to solve independently the questions of his health keeping.
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A criminal responsibility must be enforced against officials’ withdrawing children from the families without sufficient necessity and other misuses.
So-called ”socially aimed non-commercial organizations” are not to be permitted to get some part of parents’ rights. The parents’ associations, vice versa, must be authorized to participate in new legislation, arising family questions, the cases of children withdrawal.
Indigent and large families support program must be created.
A bill alternative to the JJ, must be presented into the State Duma, its adoption must be provided.
А. Е. Парфентьева
The presumption of innocence in administrative law of the Russian Federation
A great deal is being written and said about the presumption of innocence. However, we still have many discussions and questions in this matter. What is the presumption of innocence? The standard model suggests that the presumption of innocence can be defined as a fundamental protection for a person accused of a crime, which requires the prosecution to prove its case against the defendant beyond a reasonable doubt. We are used to talking about this principle mostly in sphere of criminal law but it functions in other spheres. This research explores the main aspects of the presumption of innocence in administrative law.
The provisions about this principle are set out in article 1.5 of Code of administrative offences of the Russian Federation. This article fixed that a person shall be administratively liable only for those administrative offences, in respect of which his guilt has been ascertained; a person shall be regarded innocent until a qualified person proves his guilt within an appropriate procedure; a person is not obliged to prove his innocence; irremovable doubts in respect of the guilt of a person held administratively responsible shall be interpreted in favor of this person.
It should be mentioned that these points are quite similar to the provisions of the Criminal Procedure Code of the Russian Federation. Nevertheless, in administrative law the presumption of innocence is not extended to road traffic administrative offences and to offences concerning land improvement which are made with the use of vehicles and if these administrative offences are recorded by special automatically operated technical devices which can perform the functions of photo and video making.
Consequently, we see that the burden of proof in some cases lies on a law breacher. This situation causes some problems. First of all, it raises the question about accordance with Article 49 of Constitution of the Russian Federation. Some jurists in their researches note that agencies and public officials must provide all reasonable evidences of guilt in such cases. I suppose that it is unreasonable to rely only on a photo and video recording. For example, in case of traffic rule violation the responsibility lies with the owner of the car, but we cannot exclude the possibility that another person was driving this car. In this way we can talk about the presumption of guilt.
Besides it should be mentioned that in administrative law the same person considers a case and passes a decision concerning the guilt of the person who committed the offense. As a result, the adversarial principle is violated, in spite of the fact that the presumption of innocence is based on this principle.
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