Toward New Focus on Retributive Justice. Reflections on Background of Passive Subject of Crime

Author(s): Marek Smarzewski / Language(s): English Issue: 4/2015

This paper supports the attempt undertaken by its author to take a fresh look at criminal justice in relation to retributivism and conceptual framework of a passive subject of a crime is the starting point for any related consideration, for it seems that retributivism needs new grounds when measures of argument strength are no longer feasible. Therefore, it is postulated to juxtapose the theory of retributive punishment with a victim of a crime in its substantive perspective. However, the criminal law requires reasonable grounds for public response being punishment, not losing sight of a subject whose legal goods are protected by norms of the criminal law but have been directly infringed or imperilled by an offence. After all, it is a victim who suffers in effect of an offence, thus requiring a special approach, especially on the part of relevant public authorities. At the same time, a victim is a subject who may be significant in the context of determination of what an offender deserves, and therefore in the perspective of judicial punishment, too. So, a victim is an important factor, even if we disregard the compensation function of the criminal law. The conceptual framework of a passive subject of a crime, that may be consistently juxtaposed with retributivism, has been specifically highlighted in this paper. This conceptual framework is not contradictory to retributivism, on the contrary, in many respects it is consistent with retributivism and serves the grounds for retributive punishment.

CRIMINAL SANCTIONS FOR JUVENILE OFFENDERS IN THE COUNTRIES OF THE FORMER SFR YUGOSLAVIA

Author(s): Goran Spasić / Language(s): English Issue: 1/2016

The author discusses juvenile delinquency as a negative social phenomenon, which has been comprehensively observed and analyzed from the (narrower) normative and (wider) sociological point of view. The paper focuses on the comparative analysis of the system of criminal sanctions that may be imposed on juvenile offenders in the legal systems of states created after the dissolution of the former SFR Yugoslavia. The analysis does not include the Republic of Serbia. The primary aim of this paper is to draw attention to the fact that all states of the former SFR Yugoslavia have been facing similar problems in the the field of combating juvenile delinquency, which is evident in their systems of criminal sanctions. The similarities in their criminal sanction systems are certainly a result of the common legal tradition.

In Memoriam: PROF. DR ČEDOMIR STEVANOVIĆ (1928-2016)

Author(s): Ivan Ilić / Language(s): English Issue: 1/2016

Prof. Čedomir Stevanović, eminent retired professor of the Faculty of Law, University of Niš, pass away on 18. 03. 2016. For more than three decades of his professional work, he left a permanent mark in the academic community. He was born on 03.04.1928 in the village of Mrveš, Municipality of Bojnik. He finished high school in Leskovac in 1949. He finished Higher School of State Security in Belgrade in 1952, and graduated from the Faculty of Law in Belgrade in 1961. He completed his master's degree studies at the Faculty of Law in Zagreb in 1965, by defending his Master thesis on the topic "The Reopening of Criminal Proceedings: the theoretical aspect and the application of this institute in the district courts of Southeastern Serbia". He obtained his doctoral degree at the Faculty of Law in Ljubljana in 1973 by defending the Doctoral dissertation titled "Expert-witness testimony in criminal proceedings".

Kryminalizowanie finansowania terroryzmu

Author(s): Stanisław Hoc / Language(s): Polish Issue: 1/2016

The article provides insights into terrorism financing considered in light of international regulations (UN, EU Commission, Council of Europe). It refers to elements of financial crime, as defined in Article 165a of the Polish Criminal Code, and the need to revise the rules surrounding the subject of these crimes. The tasks carried out by the General Inspector of Financial Information and the Internal Security Agency are presented in relation to prevention and fight against terrorism financing.

Zgoda skazanego na orzeczenie kary ograniczenia wolności – fikcja czy prawda?

Author(s): Dariusz Mucha / Language(s): Polish Issue: 1/2016

In the introductory part, the paper refers briefly to the historical interpretation of the provision of article 35 § 3 of the Polish Penal Code on the basis of further amendments to the Polish Penal Code of 1997 as well as contradictory ideas concerning its interpretation. Further on, the issue concerning the interpretation of the legal norm of article 35 of the Polish Penal Code is described on the basis of its current wording, taking into consideration the legal doubts connected with it that may come about when applying this regulation in practice. The paper also attempts to explain the role of the possible consent of a convict to pass on them a custodial sentence from the perspective of not only the court, but also and mainly the defendant themselves as well as their defence counsel. This issue is discussed taking into account the situation both before and after the custodial sentence has been imposed on a given perpetrator.

Umorzenie postępowania karnego na podstawie art. 59a k.k. – wybrane zagadnienia

Author(s): Jarosław Marciniak / Language(s): Polish Issue: 1/2016

Discontinuation of proceedings under Article 59a of the Criminal Code is a new institution in Polish criminal law. This article discusses selected issues relating to the premises for the application of Article 59a of the Criminal Code in practice. In view of the use by the legislator in Article 59a of the Criminal Code of concepts with vague meanings, their possible interpretations were proposed. It has been suggested that a rephrasing of the provision in question should be considered, in order to ensure the possibility of applying the said institution to a wider range of misdemeanours, as compensatory discontinuation is intended by the legislator to fulfil the redress function of proceedings and ensure the effectiveness and speed of criminal proceedings

Deset godina čekanja pravde

Author(s): Bojan Tončić / Language(s): Serbian Issue: 181/2014

Pojam i oblici međunarodne krivičnopravne pomoći s posebnim osvrtom na prava osumnjičenih odnosno optuženih u ekstradicionom postupku

Author(s): Tadija Bubalović / Language(s): Bosnian Issue: 1/2015

One of the forms of international cooperation among States in fighting against criminality is to provide for mutual legal assistance in criminal matters. International criminal justice assistance includes a set of different actions and measures undertaken by judicial and other state bodies in order to achieve the cooperation among States to exercise criminal justice system. This cooperation takes place on the basis of international and national legislation. Due to the increasing number of these regulations, the phrase “Law on International Criminal Justice Assistance” could be increasingly used today which is therefore becoming completely formed and recognizable legal field. Fundamental international documents on providing for international criminal justice assistance are: the European Convention on Extradition with additional protocols (1957), the European Convention on Mutual Assistance in Criminal Matters with additional protocols (1959), the European Convention on the International Validity of Criminal Judgments (1970) and the European Convention on the Transfer of Proceedings in Criminal Matters (1972). The main domestic legal act in Bosnia and Herzegovina is the Act on International Legal Assistance in Criminal Matters (ZMPPKS). In addition to these already mentioned legal acts, basic principles of international criminal justice cooperation are also very significant: identity of norm, reciprocity, ability of extradition, the principle locus regit actum and the principle ne bis in idem.

I.C.C.J., Secţia penală, Decizia din 28 martie 2013 (Studiu de Caz)

Author(s): Andra Roxana Ilie / Language(s): Romanian Issue: 01/2014

High Court’s decision pronounced in case no. 421/36/2011 contains interesting aspects concerning the conviction of a legal person for the offense of bribery, that demands the analysis of the crime’s scheme, as well as the fine and the complementary penalty of display or dissemination of the sentence imposed by the court.

Definiţia infracţiunii în noul Cod penal

Author(s): Cristina Rotaru / Language(s): Romanian Issue: 02/2014

The vision according to which the new criminal legislation was elaborated also required a new definition of the crime. The one contained in art. 17 of Criminal Code 1968 has often been criticized in the literature for including, among the key features, the social danger of the crime, but also because it did not allow a classification of causes that remove the criminal nature of the act, although some of them aimed the anti-judiciality and others the guilt, with negative implications regarding the application of criminal sanctions.

Private Expert in Lithuanian Law: Current Situation and Development Perspectives

Author(s): Sigita Šimbelytė / Language(s): English Issue: 1/2015

Since worldwide globalization phenomenon intensify more and more, in this article there is analyse of private expert subintitute in Lithuanian law and other countries in the context of this phenomenon, i.e. this article Lithuanian “in-between” position regarding to private expert and trying to evaluate how globalisation processes may influence these countries practice of legal regulation of private expert in order to develop successfully Lithuanian view to private expert. Moreover, there are analysis of quite liberal Latvian legal practice regarding private expert, on which is based solutions to Lithuanian legal regulation how shell be developed Lithuanian “in-between” position regarding to private expert.

SPORAZUM O PRIZNANJU KRIVNJE KOD KRIVIČNIH DIJELA HOMOGENOG KONEKSITETA

Author(s): Amna Gagula / Language(s): Bosnian Issue: 17/2016

Eventhough, through out the history, the Anglo-Saxon and Continental European legal system were two completely separate and distinct legal systems, in recent times it feels a growing tendency of their convergence. Institutes that have been typical of one of them so far, are being adopted in other legal systems and modified to its needs, thus creating a variety of its forms. Those new modalities and forms result by creating entirely new concepts. This trend is very positive because it involves the breadth of mechanisms to combat crime and creates a far greater scope of practice of various institutes. One such institute, which certainly brings these two important legal systems together, is institute of plea bargaining. This institute is daily being accepted into the new European legislation and its application is constantly expanding and modifying. Although it is still the target of critics, especially by European and especially conservative experts, it is evident that the introduction of this instrument produced visible results. Still, in countries that have no longer tradition of applying this institute, it is visible that percentage of its use in practice is significantly less then in other countries like The United States, or England. On the other hand, European countries use to adapt this institute to their terms and legal traditions. In such modifications, comes to the implications and the other issues on the rules of criminal procedure. Therefore, in literature is listed expression that it is a kind of graft. In practice, in our law, the disputable issues are noticed in the application of this institute with the offenses including homogeneous connexional in certain cases. Therefore, below, the author mostly deal with this issue.

PRAVO NA OBRANU PREMA ZAKONU O KAZNENOM POSTUPKU REPUBLIKE HRVATSKE

Author(s): Ćamil Salahović,Davor Bubalo / Language(s): Croatian Issue: 17/2016

In this paper the authors provide a legal overview of an important right of the defendant – the right of defence in a criminal procedure. The overview is provided in accordance with the Criminal Procedure Act of the Republic of Croatia. In addition to the individual rights constituting the right of defence, special attention is given to the so-called “minimum rights of defence”, guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms. In the central section of the paper, the authors determine and analyse the legal framework of the right of defence, in which analysis special focus is laid on substantive and formal defence, the latter including mandatory and optional defence and defence of indigent persons. The paper also considers the extent to which international principles and standards in that area have been adopted by the criminal procedure legislation. In their conclusion, the authors highlight that the international principles and general legal standards have been adopted by the criminal procedure legislation in the Republic of Croatia as an international guarantee whereunder any defendant is guaranteed effective observance of his human right of personal (substantive) and professional (formal) defence in the criminal procedure. The above-mentioned legislation hence ensures the assumptions bothfor a legal trial and for a fair trial, in which the accused citizen will be able to fully exercise his constitutional and legal rights before the criminal court.

PRITUŽBA O NEPROVOĐENJU I OBUSTAVI ISTRAGE U PRAKSI KANTONALNOG TUŽILAŠTVA TUZLANSKOG KANTONA

Author(s): Muhamed Tulumović / Language(s): Bosnian Issue: 17/2016

In this paper, the procedural position of the injured party in the general positive criminal procedural legislation of Bosnia and Herzegovina through all stages of the criminal proceedings and this phase of the investigation, prosecution, the trial and remedies, as well as in special court proceedings and in the process of issuing a criminal order, the process of concluding plea agreement and juvenile proceedings. A special emphasis in the paper is given to the research status of the victim in the practice of the Tuzla Canton Prosecutor’s Office regarding the rights of the injured party to lodge a complaint against the order to conduct an investigation and suspend. In conclusion, this study has noted that the reform of criminal procedural legislation made in 2003, did not improve the legal position of the injured party in the criminal proceedings, but are the same of his rights rather reduced, particularly with regard to the inability of the injured party to participate in the proceedings as a subsidiary and the private prosecutor, and that same body to review complaints damaged the prosecutor’s decision not to conduct an investigation and suspend.

JUVENILE JUSTICE – PROCEDURAL GUARANTEES FOR CHILD OFFENDERS

Author(s): Nevena Vučković Šahović,Ines Cerović / Language(s): English Issue: 3/2016

Juvenile justice is the field of children’s rights extensively covered in international documents. It is obviously a very sensitive field where child rights violations are numerous, where violence in the course of proceedings and while in penitentiary institutions is amply proven, and where the response is not always child-friendly and does not always favor individual child development. It is moreover a domain where the State exerts force in response to child behavior contrary to the criminal law and where State’s interference also represses non-criminal behavior, such as actions which would not come under law if committed by an adult (status offences): running away from home, breaking disciplinary rules, breaking curfews or rude behavior. Juvenile justice accounts for violations of children’s rights at the arrest phase, in administrative detention, during the judicial proceedings, in the execution of judiciary sentences, but also in institutional care.

LEISURE TIME AND JUVENILE DELINQUENCY

Author(s): Filip Mirić / Language(s): English Issue: 3/2016

In this paper, the author analyzes the impact of leisure time on the occurrence of juvenile delinquency. Drawing attention to the fact that unstructured and inappropriate use of juveniles’ spare time may result in unlawful conduct, the author emphasizes the importance of efficient planning and well-structured use of one’s leisure time as a means of preventing juvenile delinquency and combating juvenile crime. It is, therefore, essential to occupy young people in their spare time with useful contents, educational, recreational, creative and other forms of “active relaxation” which will have a positive impact on the prevention of their delinquent behavior. These factors should be taken into account when designing the criminal policy and prevention measures for combating juvenile crime.

STATUS OF EXPERTS IN CRIMINAL PROCEEDINGS IN THE REPUBLIC OF SERBIA

Author(s): Željko Nikač,Nikola Aritonović / Language(s): English Issue: 3/2016

The growing use of forensic science in criminalistics resulted, in practice, in the need that the parties in criminal procedure, particularly the defendant and the injured party (acting as a prosecutor), increasingly hire experts as consultants. With the introduction of the concept of prosecutorial and police investigations in criminal procedure in the Republic of Serbia, it is evident that assistance based on the knowledge from different fields and disciplines of science, technology, arts or crafts is essential to the public prosecutor. There is also no doubt that the subsidiary prosecutor, defense counsel and the defendant increasingly needed such assistance. The amendments to the Criminal Procedure Code introduced the concept of an expert advisor. Modeled after similar solutions in comparative law, the expert advisor has wider options when it comes to helping the parties in the proceedings. Participation of expert advisors can realistically contribute to the quality of professional expertise in court proceedings, in order not to miss important details relevant to the proceedings as a whole. In this paper, the authors deal with the status of experts in criminal proceedings in the Republic of Serbia. The form and content of their expert assistance deserves further analytical analysis and critical examination.

Index vnímání korupce za rok 2015

Author(s): Radim Bureš / Language(s): Czech Issue: 3 (Spec.)/2016

Crime Corruption Index 2015

Організаційні засади участі спеціаліста у проведенні обшуку

Author(s): Victoria Yaremchuk / Language(s): Ukrainian Issue: 10/2016

Problem setting. Recent political and economic processes in Ukraine, in some cases, can lead to negative consequences, including the emergence of new types of criminal offences. For quality of disclosure of the investigator, the Prosecutor should seek the assistance of knowledgeable people, including specialists of the relevant disciplines.Relevance of the research topic. The current state of crime and reforming the criminal procedural legislation of Ukraine and adoption of regulatory legal acts on criminal proceedings needs to address new problems connected with Participation of specialists in conducting searches.Recent research and publications analysis. The participation of a specialist in search was studied by following scientists O.V. Konstantinov, V. I. Parkhomenko, B. V. Romanyuk, A. A. Sidorov, A. Y. Ushakov, M. G. Scherbakovsky and others.Paper objective. The purpose of the paper is to explore organization of specialists’ involvement conduct a search.Paper main body. The analysis of normative-legal acts of Ukraine allows to state that today is the actual invitation specialists to conduct a search. So, the Criminal procedure code of Ukraine determines the necessity of the participation of a specialist in the search.When planning a search, the investigator, the Prosecutor should consider the types of activities that may be done by the specialist or group of specialists during a search. That is, when planning a search specialist shall be invited only in case of assistance on specific issues. The investigator should invite a specialist of a certain profession. However, in practice there are cases when invited a few specialists, but the search was ineffective. Therefore, the investigator should carefully consider the need to attract during a search of a particular specialist.Organization of participation of a specialist during a search depends on its type. In accordance with the object search and object search, there are differences in the forms of special knowledge. Depending on the purpose of the invitation, the investigator chooses the appropriate specialist. For the correct organization of work of the specialist when conducting a search it should highlight the forms of its assistance. It is necessary organizational form of assistance. The light of the object and the object of the search, the specialist helps the investigator to choose the exercise of the warrant. Important is the technical assistance specialist. Preparatory assistance of a specialist is to help the investigator to decide on the time of the search, the participants searched, the necessary scientific and technical means. Information assistance specialist takes place in the course of the search, in the case where the specialist helps to identify the caches, repositories, based on existing expertise. Essential search form professional assistance when conducting a search conducted with the purpose of identifying persons or corpses. It is possible to identify an analytical form of professional assistance. Another form of professional assistance is providing advice during the preparation and when conducting a search.Conclusions of the research. Thus, may allocate such forms of assistance specialist during a search: 1) organizational form – specialist helps the investigator to determine a search range; 2) assist in preparation – the specialist helps the investigator to gather preliminary information on the search object; 3) technical assistance – technician to search for evidence, to assist in the implementation of audio and video; 4) form of advice – specialist help to the investigator in writing the protocol search; 5) information form of assistance to the specialist expressed his opinion on the search; 6) the analytical form of assistance specialist and the investigator analyzing the search object; 7) search form assistance – specialist assists the investigator and other members of the investigative team in search of objects.

Corporate criminal liability in English law

Author(s): Iwona Sepioło-Jankowska / Language(s): English Issue: 6/2016

Juridical regimes have been created in order to punish corporate wrongdoing. Although the imposition of criminal liability on corporations, as opposed to managers or employees, has generate considerable debate, commentators have not comprehensively analyzed why corporate criminal liability exists. Furthermore, it is not clear that corporate criminal liability is the best way to influence corporate behavior. Following sections will try to find answers to the above mentioned questions.