General Sentencing Principles as a Guarantee of Respect for the Perpetrators’ Rights
Abstract
The paper deals with the sentencing principles having not only theoretical but also practical significance because only in case of compliance with the general principles, the sentence applied to a perpetrator will not only be formally legal but also just and precisely substantiated. The objective of the research is to define the effect of the sentencing principles for the protection of the perpetrators’ rights in the law enforcement practice, i.e. whether these principles guarantee the respect for the rights of this category of people. The topicality of this problematics is defined as theoretically and practically significant both at the national and at the international level because sentencing principles, as it was already mentioned above, allow avoiding fatal mistakes in sentencing, which will result in a higher effectiveness of the national criminal law and will contribute to the creation of a more substantiated and harmonized international criminal law. The analysis of the essence of these principles will allow defining the rationale and necessity of the use of sentencing principles in the law enforcement practice, as well as the influence of the principles on the respect for the perpetrators' rights, freedoms, and legal interests in the national and international legal processes.
References
[2] Birgden, A. 2015. Maximizing desistance: adding therapeutic jurisprudence and human rights to the mix. Criminal Justice and Behavior, 42(1): 19-31.
[3] Bradley, G.V. 2003-2004. Retribution: The Central Aim of Punishment. Available at: https://heinonline.org/HOL/LandingPage?handle=hein.journals/hjlpp27&div=8&id=&page=
[4] Burganov, R.S. 2006. Principles of Criminal Law and Principles of Sentencing. Nauka.
[5] Chau, P. 2017. Loss-based retributive justifications of punishment. Oxford Journal of Legal Studies, 37(3): 618-635.
[6] Decisions of the European Court of Human Rights. Available at: https://roseurosud.org/r
[7] Dias, I.C.L. 2018. Overview of groundwater management in the state of maranhão. PeriodicoTcheQuimica, 15(30): 277-293.
[8] Doak, J. 2008. Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties. Hart Publishing.
[9] Donoso, A. 2015. Justifying liberal retributive justice: punishment, criminalization, and holistic retributivism. Kriterion, 56(132). Available at: http://www.scielo.br/scielo.php?pid=S0100-512X2015000200495&script=sci_arttext
[10] Drake, D.H., and Henley, A.J. 2014. ‘Victims’ versus ‘offenders’ in British political discourse: the construction of a false dichotomy. The Howard Journal of Crime and Justice, 53(2):141-157.
[11] Dubber, M.D. 2005. Theories of crime and punishment in German criminal law. The American Journal of Comparative Law, 53(3): 679-707.
[12] Egelman, Z. 2018. Punishment and protection, two sides of the same sword: the problem of international criminal law under the refugee convention. Harvard International Law Journal, 59(2): 461-499.
[13] Ezorsky, G. 2015. Philosophical Perspectives on Punishment. State University of New York Press.
[14] Fish, M.J. 2008. An eye for an eye: proportionality as a moral principle of punishment. Oxford Journal of Legal Studies, 28(1): 57-71.
[15] Ghasabe, S.A. 2016. The Punishment and protection, two sides of the same sword: the problem of international criminal law under the refugee convention. Journal of Politics and Law, 9(5): 214-230.
[16] Guide on Article 6: Right to Fair Trial (criminal limb). 2014. Council of Europe/European Court of Human Rights. Available at: https://rm.coe.int/1680304c4e
[17] Han, Yi. 2016. On rechtsgut protection and balance between crime and punishment. Criminal Law Review. Available at: http://en.cnki.com.cn/Article_en/CJFDTOTAL-OFLC201601005.htm
[18] Harris, D.J., O'Boyle, M. Bates, E. and Buckle, C. 2014. Law of the European Convention on Human Rights. Oxford University Press.
[19] Kleinig, J. 2014. Prisoners’ Rights. Routledge.
[20] Kolber, A.J. 2018. Punishment and moral risk. University of Illinois Law Review, 3: 487.
[21] Kondratenko, L.A., Mironova, L.I., Dmitriev, V.G., and Kuznetsova, E.L. 2018. Mathematical modeling of dynamic processes in essentially nonlinear mechanical systems with lumped parameters. Periodico TcheQuimica, 15(Special Issue 1): 126-137.
[22] Koochi, M.R.R., Shavaki, G.N., and Moradi, S. 2017. Analysis of Some Punishment Practices Based on Legal-Historical Principles of Iranian Society: Qajar Dynasty Case Study. Available at: http://kutaksam.karabuk.edu.tr/index.php/ilk/article/view/652
[23] Lippke, R.L. 2018. Legal punishment and the public identification of offenders. Res Publica, 24(2): 199–216.
[24] Lorca, R. 2016. The presumption of punishment: a critical review of its early modern origins. Canadian Journal of Law and Jurisprudence, 29(2): 385-402.
[25] Mikhaylov, A.A. 2016. The principle of proportionality: essence, practice of the application by the European court on human rights, the constitutional court of the Russian Federation and the importance for the perfection of the provision system in the modern criminal court. Criminal Justice, 1(7): 56-69.
[26] Miller, S.L., and Hefner, K.M. 2015. Procedural justice for victims and offenders? Exploring restorative justice processes in Australia and the US. Justice Quarterly, 32(1): 142–167.
[27] Nabiev, I.G. 2004. Principles of Purpose Punishment. Nauka.
[28] Nelken, D. 2011. Comparative Criminal Justice and Globalization. Globalization and States of Punishment. Routledge.
[29] Newman, G. 2008. The Punishment Response. Routledge.
[30] Pham, T.T.N. 2016. Juvenile offenders in Vietnam and the right to defense. Youth Justice, 16(1): 3.
[31] Polyakov, S.A. 2017. Improvement of the constructive implementation of the criminal law provisions’ punitive part of the criminal code as one of the areas of combating crime. Journal of Legal, Ethical and Regulatory Issues, 20(1): 1-13.
[32] Pons, A.P. 2017. Ideal punishment theory: a critique. Available at: http://sfsu-dspace.calstate.edu/handle/10211.3/187412?show=full
[33] Pratt, J., and Anderson, J. 2016. ‘The Beast of Blenheim’, risk and the rise of the security sanction. Australian and New Zealand Journal of Criminology, 49(4): 528-545.
[34] Roberts, J.V., and de Keijser, J.W. 2014. Democratising punishment: Sentencing, community views and values. Punishment and Society, 16(4): 474-498.
[35] Rubenstein, L.S., et al. 2016. HIV, prisoners, and human rights. Lancet, 388(10050): 1202-1214.
[36] Sabitov, T.R. 2017. Principles of criminal punishment. Legal Science and Law Enforcement Practice, 2(40): 59–65.
[37] Schuman, J. 2015-2016. Sentencing rules and standards: how we decide criminal punishment. Tennesy Law Review, 83: 1.
[38] Shakarami, A., Saifi, A.M. and Dashtbani, M. 2018. Strategic principles in the proportionality of crime and punishment in the armed forces. Al Noor in London, 22(3): 213-226.
[39] Snacken, S. 2015. Punishment, legitimate policies and values: Penal moderation, dignity and human rights. Punishment and Society, 17(3): 397-423.
[40] Theodorakis, N., Ttofi, M.M. and Farrington, D.P. 2015. Crime and Punishment in the United Kingdom. Wiley.
[41] Tyler, C. 2017. This Dangerous Drug of Violence’: Bernard Bosanquet’s Common Good Theory of Punishment. Palgrave Macmillan.
[42] Vilhauer, B. 2013. Persons, punishment, and free will skepticism. Philosophical Studies, 162(2): 143-163.
[43] von Hirsch, A. 1992. Proportionality in the philosophy of punishment. Crime and Justice. 16: 55-98.
The Copyright Transfer Form to ASERS Publishing (The Publisher)
This form refers to the manuscript, which an author(s) was accepted for publication and was signed by all the authors.
The undersigned Author(s) of the above-mentioned Paper here transfer any and all copyright-rights in and to The Paper to The Publisher. The Author(s) warrants that The Paper is based on their original work and that the undersigned has the power and authority to make and execute this assignment. It is the author's responsibility to obtain written permission to quote material that has been previously published in any form. The Publisher recognizes the retained rights noted below and grants to the above authors and employers for whom the work performed royalty-free permission to reuse their materials below. Authors may reuse all or portions of the above Paper in other works, excepting the publication of the paper in the same form. Authors may reproduce or authorize others to reproduce the above Paper for the Author's personal use or for internal company use, provided that the source and The Publisher copyright notice are mentioned, that the copies are not used in any way that implies The Publisher endorsement of a product or service of an employer, and that the copies are not offered for sale as such. Authors are permitted to grant third party requests for reprinting, republishing or other types of reuse. The Authors may make limited distribution of all or portions of the above Paper prior to publication if they inform The Publisher of the nature and extent of such limited distribution prior there to. Authors retain all proprietary rights in any process, procedure, or article of manufacture described in The Paper. This agreement becomes null and void if and only if the above paper is not accepted and published by The Publisher, or is with drawn by the author(s) before acceptance by the Publisher.