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This article deals with the criminalization of violating religious feelings is of a scientific and research nature. The scientific problem is to determine the actual ratio legis of the act described in Article 196 of the Polish Criminal Code, which will ultimately allow to assess whether the criminalization decision is right. The author does not share the commonly held views on the protection and justification of the criminality of offending religious feelings. A comparison of crimes that provide for punishment for violating other feelings, as well as violating feelings of a different nature with impunity, allows for the formulation of the thesis that in the case of Article 196 of the Criminal Code it was not religious feelings and their protection that became the reason for the criminalization decision. This reason is the fear of the social consequences of violating religious feelings. Since this behavior is criminalized in most countries around the world, the significance of these scientific findings is of international significance both theoretically and practically.
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The aim of the study is a legal analysis of the provisions criminalizing hate speech in Polish criminal law, in terms of the protection of inherent human dignity in relation to people with disabilities. Rated whether the absence of special protection under criminal law in the area of hate speech provides the proper respect and protects the dignity of persons with disabilities in Poland, to the same extent and degree as other people. The doctrine of criminal law protection against hate speech was discussed. It was analysed why hate speech against people with disabilities was not penalized and it was shown that legal changes in this area should be preceded by a multifaceted legal analysis, taking into account international standards, and proposals for amendments were characterized by an insufficient justification of the inalienable value of dignity. A discussion was held on the basis of criminalizing hate speech against people with disabilities. It has been shown that extending protection against hate speech to people with disabilities is not questionable and should be based on ensuring that dignity is adequately protected by the rule of law in order to counterbalance limitations resulting from the feature of disability, which is essentially independent of them.
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Located within Chapter VI of the Criminal Code that criminalizes criminal offences against the person’s freedom, the criminal offence of threat provided by Article 206 appears on the background of the protection of the mental freedom of persons. The thorough analysis of the crime will reveal some aspects regarding different theories of interpretation of the law that can be objectified also in practical situations. Also, the interpretation of the criminal offence highlights certain aspects regarding the fear of the person, the manner of committing the crime, the threat of a harmful act, the correlation with the crime of outrage and judicial outrage, as well as some differences from the crime of blackmail. Therefore, in the framework of highlighting some opinions or observations on them, it can be delimited the offence of threat much easier compared to other offences, but it can also constitute a useful legal instrument during the stages of criminal liability of the offender, as well as for the improvement of the text of law by the legislator.
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In the commented judgement, the Supreme Court stated that an appeal against a decision reproaching a competent court for flagrant violation of the law while hearing a criminal case (Article 40 § 2a and 2b of the Law on the common court system) is heard by the Supreme Court in the Criminal Chamber in accordance with the provisions of the Code of Criminal Procedure on appeals. Commencement of the procedure laid down in Article 40 § 1 of the Law on the Common Court System is subject to the time limit set on the date of rendering a decision on an appeal, and its termination should take place immediately after the receipt of explanations or the expiry of the deadline for submitting them, in either case by issuing a decision on reproaching for a violation. The appellate court should issue its decision both when it finds the violation took place and when it resigns to do so. This commentary approves such an attitude, developing arguments to support it. On the other hand, the opposite view was criticized, based on the claim that initiation of the procedure for reproach for violation is also admissible after the final ruling has been issued. Having analysed the issue of reproach for violation of the law from the systemic point of view, the author postulates to unify Article 97 § 1 of the Act on the Supreme Court with Article 40 § 2a of the Law on the Common Court System and to introduce an appeal against a ruling of the Supreme Court heard within so called horizontal instance.
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The article has an investigative nature and analyzes new preventive measure introduced by the Act of 31 March 2020, applicable to the accused of crime committed towards member of medical staff or to the person cooperating with medical staff in relation to the medical care activity performed. The main scientific goal of the article is to prove that such measure, besides critical opinions, can have an important role in assuring safety to medical staff, although such goal is not adequate to main goals of preventive measures, as well as to indicate necessary legislative modifications which should eliminate discrepancies due to its defective regulation. The result of investigation is original, because demonstrates the need of intervention of the legislator, despite the regulation is pretty recent. The investigation has been conducted on national level, but can be useful for other states, as it relates to the original preventive measure which exceed the traditional understanding of such measures. It is important for science, because it contains profound dogmatic analyses, presents an important load of theory. It is also important for the practice, as it indicates the interpretative direction of premises of this measure and other its elements, which can be helpful for its homogenous application.
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The subject of the article is normative dereification, which was enacted in the Polish legal system on the basis of the provisions of the Act of 21 August 1997 on animal protection. These provisions indicate that an animal, as a living being capable of experiencing suffering, is not a thing, and at the same time they stipulate the need for the appropriate application of the provisions on things to animals in matters not regulated by this Act. The aim of the article is to determine the significance of such dereification for the definition of the legal status of an animal in Polish law, and its impact on the form of the model of animal protection in Poland. The basis of the findings in this respect is a formal legal analysis of the Polish legal acts regulating the principles of animal protection, and animals’ status as the object of a legal relationship. The study organises and summarises the views on the legal standing of animals, and the concept of their normative dereification, as expressed in the rulings of Polish courts, and in the Polish legal literature.
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In the commented judgment, the courts released a spouse from the charge of redirecting income from her husband’s business onto her account. The spouses had separate assets. The woman justified her behavior by the fact that her spouse did not support her and their child. The court of first instance found no signs of the party’s theft as to the purpose of “appropriation”. The reasoning of the court is erroneous, since appropriation is also the case when theft is committed only with the intention of managing the resources and not to add it to own wealth, including for someone else. On the other hand, the court of second instance recognized there being a state of higher emergency. This reasoning is also erroneous, because there was no subsidiarity of this counter-type – committing crimes was not the only way out of the situation for the accused. The state of higher necessity is not the basis for release from liability in the event of theft from hunger or poverty.
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Every member of society enjoys equal legal protection, including through criminal law. However, the reality shows us that the legislation must be constantly changing in order to be able to maintain the protection of social values and, when it is found that a certain type of acts that contravene the criminal rules are committed in an increasing number, the sphere of the affected subjects of law comprising a category of society’s members whose personality is in formation, the prompt intervention of the legislator, by the means at its disposal, appears all the more necessary.
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Proving amount of injured person’s damage caused by committed crime is important issue both theoretically and practically. In doctrine can be observed divergent approaches as to who is responsible for proving in this respect. This article emphasizes role of injured person as a direct interest in obtaining compensation and highlights the importance of settling the matter of redressing damage in amount actually caused in criminal trial. Determination of amount of damage should become the subject of proving in course of fair criminal trial. Therefore, even if it is not necessary to determine extent of damage to judge perpetrator and prosecute him or her, criminal court is obliged to determine amount of damage, whether due to initiative of victim or ex officio, if there are grounds to order compensation and when it will not lead to excessive length and stratification of the evidentiary proceedings.
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The trial institution of crown witness is an effective instrument in combating organized crime. It is one of the controversial institutions because it violates the leading principles of the Polish criminal procedure. In the article, the author confronts the institution of crown witness with selected principles of the Polish criminal trial. With the legality principle, the principle of equal rights for the parties to the criminal trial, the principle of free assessment of evidence, the objectivity principle and the fair trial principle. The aim of the article is to indicate the threats that the crown witness institution poses for the proper course of criminal proceedings. The perpetrator who appears in a criminal trial as a witness is an opportunistic exception in an extraordinary situation. It must be approached with utmost care and caution to ensure that the criminal trial is carried out in accordance with the law, remembering that it is a kind of compromise between the fairness of the trial and the institution’s purpose—to combat organized crime.
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The work was created as a sublimation and a cross-section of the basic institutes of English criminal law. The first thing that needs to be defined is what is a crime or criminal offense in English law. In English law, unlike continental law, little influence on law came from the reception of Roman law and the works of legal theorists, and more arose from the activity of the courts. This does not mean that the philosophical approach is not at the core of criminal law. Common law consists of rules established on the basis of decisions of judges called precedents and applied before courts lower than those before which they are established. Legislation consists of the statutes or acts of Parliament and delegated legislation to another body by Parliament. This legislation is made up of statutes that are subject to the interpretation of judges and these interpretations are an integral part of the law until Parliament or a higher court itself questions such a judicial interpretation. The paper will discuss the basic institutes of general substantive criminal law. The paper is an analysis of the terms actus reus and mens rea including terms such as negligence, gross negligence, recklessness, intention and criteria for their distinction with respect to case law.
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Bail represents one of the measures to ensure the presence of the suspect or accused and the successful conduct of criminal proceedings. This paper analyzes the quality of the Bosnian-Herzegovinian (hereinafter: BiH) norm for standardizing the bail, and as a hypothesis that was tested, the statement was defined that the bail is not well standardized in the laws of Bosnia and Herzegovina and there is a need for improvement. The aim of the paper and hypothesis testing was conducted through the analysis of the norm in Bosnia and Herzegovina and in comparative law, and finally empirical research has been conducted within the judicial community on the quality of the norm. The analysis of the norm shows the differences between the standard of Bosnia and Herzegovina and the norm of the surveyed countries in terms of bail. Special differences were observed in terms of detention grounds for which bail can be imposed as a substitute for detention, the existence of a conditional bail and some other specifics that are defined in the analyzed countries in a way different from the BiH norm. The conducted empirical research showed that the judicial community is not satisfied with the quality of the norm and that it needs to be improved, which is a confirmation of the research hypothesis.
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Institut imuniteta svjedoka duboko je ukorijenjen kako u anglosaksonskom, tako i u evropsko-kontinentalnom pravnom sistemu, kao jedno od značajnijih oružja za otkrivanje organizovanog kriminala. S razvojem teških oblika organizovanog kriminala u modernom vremenu ovaj institut pokazuje sve veću zastupljenost u zakonodavstvima zemalja širom svijeta i u međunarodnom pravu. Po uzoru na komparativno-pravna rješenja, i bosanskohercegovački pravni sistem regulisao je institut imuniteta svjedoka. Ovaj institut je u bosanskohercegovačkom zakonodavstvu, u cilju osiguranja što efektivnije primjene i ostvarenja ključnih ciljeva njegovog postojanja, doživio značajne reforme. Ovaj rad je i nastao s ciljem upoznavanja s novim zakonskim rješenjima sadržanim u Zakonu o izmjenama i dopunama Zakona o krivičnom postupku BiH. Rad prati razvoj instituta imuniteta svjedoka u komparativnom pravu, kao i u krivičnom procesnom pravu BiH, a posebnu pažnju posvećuje analizi izmjena i dopuna odredbi o imunitetu nastalih kao rezultat primjene odluke Ustavnog suda br. U-5/16.
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Prezentul articol reprezintă o continuare necesară a unui alt articol publicat în urmă cu puțin timp de subsemnatul în legătură cu același subiect. Materialul de față își propune să arunce o privire critică asupra tuturor argumentelor și concluziilor evocate în „Nota privind criterii unitare de aplicare a Deciziei CCR nr. 358/2022 și a OUG nr. 71/2022”, document emis de Parchetul de pe lângă Înalta Curte de Casație și Justiție - Cabinetul Procurorului general. Reprezintă, în esență, un articol-răspuns la această Notă. Desigur, în acest demers, sunt oferite perspective în legătură cu dileme care s-ar putea regăsi în raționamentul oricărei persoane care analizează problema prescripției răspunderii penale în urma Deciziilor nr. 297/2018 și 358/2022 ale Curții Constituționale.
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