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Theoretical Basics of the Scientific Evidence in Criminal Proceedings

Author(s): Anna Ibek,Monika Suchojad / Language(s): English Issue: 3/2016

The paper is a theoretical consideration on the scientific evidence in a criminal proceeding, presented as following: the explanation of the term “scientific evidence”, the review of the existing definitions of scientific evidence (i.e. by methodological, methodical and normative enumeration), a proposal of a general, classic definition of the scientific evidence. It also shows criteria to identify the “correctness” of the scientific evidence, from inter-subjective controllability and communication, validation of the test method, interpretation of the results of its application with the use of a likelihood ratio, up to a critical analysis of Frey’s standard and Daubert’s standard. The paper concludes with a discussion on selected concepts of the scientific evidence assessment for the purposes of criminal proceedings.

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Umorzenie postępowania karnego w trybie art. 62a Ustawy z dnia 29 lipca 2005 r. o przeciwdziałaniu narkomanii jako pozytywny środek reakcji karnoprawnej stosowany wobec sprawców posiadających narkotyki miękkie w nieznacznej ilości i przeznaczone na w

Author(s): Adrian Bartha / Language(s): Polish Issue: 76/2016

This paper discusses some legal issues of the above describes instituton, which introduces the possibility of decriminization of criminal liability o a perpetrator - a holder of drugs.

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Wybrane problemy praktyczne w orzekaniu w przedmiocie przestępstw narkotykowych

Author(s): Michał Błoński / Language(s): Polish Issue: 76/2016

The article raises significant practical problems concerning judgements under the Prevention of Drug Abuse Act. The paper analyses a possibility of discontinuation of the proceedings pursuant to article 62a of the Actand criticizes in particular the conditions of such a judgement.

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Krivičnopravna zaštita prava na izdržavanje u zakonodavstvu i sudskoj praksi u Federaciji Bosne i Hercegovine

Author(s): Denis Pajić,Ramajana Demirović / Language(s): Bosnian Issue: 2/2016

Apart from the family law mechanism established with the goal to protect the right to maintenance, immediate protection is enabled through criminal law and its rules related to certain aspects of this right. Criminal law protection is provided through the criminalization of the act of avoiding paying maintenance. Through doctrinary and practical analysis of issues related to the crime of avoiding paying maintenance, the authors have re-viewed the existing legislative framework in order to identify its flaws and provide potential recommendations to eliminate them. The paper provides a comparative legal analysis of solutions and experience which have been used to formulate potential improvements in national law. Having in mind the social significance of the family maintenance institute, the author s emphasize the necessity to preserve its criminal law protection. However,in order to achieve its more efficient practical application, a reform is needed in the existing legal framework pertaining to this criminal offence.

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ZÁKLADNÉ ZÁSADY TRESTNEJ ZODPOVEDNOSTI

Author(s): Simona Ferenčíková / Language(s): Slovak Issue: 19/2016

The author of the article focused on the analysis of the basic principles of substantive criminallaw, in which is built the concept of criminal liability. The principles collectively entitled asthe principles of criminal responsibility include the principle of responsibility only in the meaningof culpable illegal activities, the principle of natural persons responsibility, the principle ofnullum crimen sine lege and the principle of ne bis in idem. Characterized by nature of theprinciples, the author has pointed on their cognitive, application, interpretative and a legislativeimportance.

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OCHRONA KARNA PRAW PACJENTA

Author(s): Anna Jacek,Katarzyna Ożóg / Language(s): Polish Issue: 19/2016

Provisions of the penal code are a base of the criminal liability of the medical staff from6 June 1997. This responsibility includes acts directed against goods as particularly protected asthe life or the health of the man. Penalties can be consequences of breaking into these goods: of thefine, the restriction or the imprisonment. The article included issues associated with pointing anddescribing instruments of the protection of patient's rights and based on the criminal law.

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PRAWNOKARNE I KRYMINALISTYCZNE ŚRODKI ZWALCZANIA ZJAWISKA CYBERPEDOFILII W ŚWIETLE REGULACJI ZAWARTYCH W KODEKSIE KARNYM NA PRZYKŁADZIE PRZESTĘPSTWA GROOMINGU

Author(s): Anna Opar / Language(s): Polish Issue: 19/2016

Cyberpdofilia is one of the particularly dangerous socially varieties of cybercrime, where potential victims are underage. It is inextricably linked with the development of technology andcomputers, especially the wide and often uncontrolled access of minors to the Internet. Article focuses on one of the latest crimes classified as cyberpedofilia – groomingu. It consists in establishing by pedophiles and persons with pedophile tendencies via the Internet, contact with minors in order to achieve genuine contact with them and sexual exploitation. This article reviews the issues groomingu shots in the Polish Penal Code of 1997. Attention was in this context to themajor problems not only in terms of regulation criminal law, but the prosecution cyberpedophilia,including grooming, resulting from the lack of a clear and precise interpretation of the term „pedophile”. The article contains an overview of behavior on the Internet, exhaustive signs grooming,then the discussion of the problems of regulating this crime in the Penal Code of 1997. Due to the potential cross-border nature cyberpedophilia, In this gromming, it must take account of internationalobligations in the field of law enforcement Polish pedophilia. The conclusions noted that it adopted in the Polish criminal law solutions to cyberpedophilia and grooming arouse significant reservations doctrine of criminal law. During de lege ferenda should therefore pay attention to the need to take them into account.

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INSTYTUCJA DOBROWOLNEGO ODSTĄPIENIA OD POPEŁNIENIA PRZESTĘPSTWA ORAZ CZYNNEGO ŻALU W ROSYJSKIM PRAWIE KARNYM

Author(s): Aleksander Wróbel / Language(s): Polish Issue: 19/2016

This article concerns both institution of voluntary withdrawal from the offense and active repentance in Russian criminal law. This article analyzes the development of above mentioned institutions in criminal codes which were in force on the territory of Russia from 60th of XX century.Described institutions have come through a long and interesting route of development from practica labsence in laws concerning criminal law to the complete regulation in Criminal Code of Russian Federation enacted in 13 of June 1996.The most distinguishing feature of russian law in analyzed area is fact that division on voluntary withdrawal from the offense which is used on the stage of preparation and an attempt to commit a crime and an active repentance used when the crime is already committed.

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Critical Review of the Security Measure of the Restraint to Approach and Communicate with the Injured Party under Article 89a of the Criminal Code of Serbia

Author(s): Emir Ćorović,Aladin Šemović / Language(s): English Issue: 1/2017

In this paper, the authors analyze the security measure involving the restraint to approach and communicate with the injured party under Article 89a of the Criminal Code of Serbia, which was introduced by legislative changes and amendments in 2009. Although this criminal sanction has been part of the domestic criminal legislation for seven years, there are serious legislative deficiencies associated with its regulation. Namely, the positive criminal law of the Republic of Serbia does not regulate the consequences of the act if the convicted offender violates this restraint, nor does it envisage the rules for the execution of this security measure. This can cause serious problems in imposing and applying the relevant criminal sanction. The corresponding data show that courts use this measure to a much lesser extent every year. Thus, the authors give suggestions de lege ferenda to remove the existing restraining order from the system of security measures and to envisage it as one of the obligations under a suspended sentence with supervision.

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Alternative Criminal Sanctions in the Criminal Legislation of Montenegro

Author(s): Darko Radulović / Language(s): English Issue: 1/2017

The author first discusses various issues concerning the punishment of imprisonment (deprivation of liberty), especially short-term sentences of imprisonment, and cites the criminal law theories on the issue. Then, the author explains the importance of alternatives to the punishment of imprisonment and their place in the Criminal Code of Montenegro. In the context of alternative criminal sanctions, the author focuses on fines, community service order and cautionary measures (suspended sentence and judicial admonition). It is stressed that alternative criminal sanctions have a significant place in the system of criminal sanctions and may be a relevant tool for replacing short-term imprisonment sentences. The author concludes that despite a wide registry of alternative criminal sanctions, imprisonment can never be completely abolished. Yet, for some criminal offenses and some offenders, the punishment of imprisonment is inadequate and, in specific circumstances, it should better be replaced with other criminal sanctions.

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Granice dopuszczalnej blankietowości w obszarze prawa karnego

Author(s): Mariusz Wiśniewski / Language(s): Polish Issue: 6/2015

The article deals with blanket norms and nullum crimen sine lege rule. The first major problem, discussedby the author, were the reasons for enabling the use of a blanket provision in common criminal law. Pursuantto Article 42 (1) of the Constitution of the Republic of Poland, an act is only punished if criminalliability had been established by Parliament (by means of a statute) before the act was committed. Becauseinconsistent with Constitution are blanket regulations reference in the aggregate to other sourcesof law. Wherefore, the author critically examines the judgments of the Constitutional Tribunal. Furthermore,in the literature of the subject accepted is that blanket provision refer to uncodifi ed sources of law.In this matter the author took a different position, because an act is only punishable if offender broke thepromulgated law. This interpretation is supported by the nullum crimen sine lege rule.

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Nadawanie klauzuli wykonalności obowiązkowi probacyjnemu orzekanemu na podstawie art. 72 § 2 kodeksu karnego

Author(s): Łukasz Pilarczyk / Language(s): Polish Issue: 2/2013

The study aims on selected problems associated with appending the enforcement clause on the redress of damage in Polish Criminal law. The difference between the redress of damage as a penal measure and as a probationary measure outlined by The Polish Supreme Court is significant for the analysed perspective. The author indicates that the Supreme Court claims, that a probationary measure enforcement clause could be put on the redress of damage only after the expiration of a period of time appointed by the court to the perpetrator to compensate for the harm caused by a crime. Due to the outlined interpretation by the Polish Supreme Court the author finds the presented statement as not rightful due to the wrong interpretation of the law and flagrant infringement of rights of the victims of the crimes.

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The questioning of a suspect within the Polish criminal process vis-à-vis compliance with human rights legislation

Author(s): Marta Kowalczyk-Ludzia,Katarzyna Pruszkiewicz-Słowińska / Language(s): English Issue: 35/2017

Istotny wpływ przesłuchania podejrzanych podczas procesu karnego na finalne orzeczenie sądu skłania do gruntownego przeanalizowania prawidłowości i zasadności jego zastosowania. Przedstawione w niniejszym opracowaniu spojrzenie na proces zdobywania informacji za pomocą przesłuchania ma charakter interdyscyplinarny. Korelacja norm wytyczonych przez ustawodawcę w kodeksie postępowania karnego z fundamentalnymi prawami człowieka – choć akcentowana w teorii – nie zawsze znajduje odzwierciedlenie w praktyce. Podejrzany, mimo że może być sprawcą czynu zabronionego, zachowuje pewne uprawnienia, których respektowanie jest nie tylko jego procesowym przywilejem, ale także stanowi podstawowy obowiązek przedstawicieli organów procesowych. Niewłaściwe przeprowadzenie przesłuchań implikuje wiele negatywnych następstw zarówno dla podejrzanego, jak i dla przebiegu całego postępowania karnego.

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Klondike czy złoto głupców wymiaru sprawiedliwości karnej?

Author(s): Jarosław Warylewski / Language(s): Polish Issue: XXXV/2016

The article is devoted to criminal justice in Poland. It has a fragmentary and multithread nature. The Author aims to define the notion of justice both at the level of general law and criminal law through the prism of philosophy, symbolism and even myths.The system of criminal justice is not limited to imposing penalties. It already starts at the stage of criminological diagnosis of social reality, includes drafting and enacting legal provisions concerning the rules of liability, the types of criminal offenses, the measures of criminal response (not just penalties), the procedure for implementing these provisions,the course of the criminal trial from criminal investigations to final judgments. It usually ends at the stage of execution of the imposed penalties, punitive measures, compensatory safeguards, and probation. An important issue is the international criminal justice system, in particular in the form of permanent and temporary (ad hoc) tribunals. However, as relatively separate the latter issue has not been discussed in the article.The Author has presented the paradigm of criminal justice and related questions: retributive justice and restorative justice. The Author refers to the constitutional principles of criminal law and the understanding of the so-called “sentencing directives”. The importance of the public’s sense of justice and the possibility of its empirical testing have been also pointed out.Finally, the Author has presented and evaluated some of the solutions introduced in the amendment of criminal codification adopted on 1 July 2015.

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Tax crimes in the Italian legislation

Author(s): Jelena Ž. Kostić / Language(s): English Issue: 4/2016

In spite of the fact that tax crimes are offences mala prohibita, rather than mala per se, a social consensus has long existed according to which certain behaviours that harm the state budget should be stipulated by criminal legislation. According to some data, penalties for failure to pay dues to the state existed even in ancient Egypt. The only things that have changed over time were the number of tax-related criminal offences and the type of sanctions prescribed for these offences. Most certainly, such solutions were conditioned by concrete social circumstances. Nowadays, all legislations provide for tax criminal offences. In some countries they are a part of the primary criminal legislation, in others they are provided for by the secondary criminal legislation, while some countries have separate regulations, which in the matter relating to tax criminal offences represent lex specialis. Given that it contains specific solutions, the subject of the analysis of this paper are the provisions of the Italian Law on Tax Crimes, which in addition to the substantive criminal law, also regulate some mechanisms of the criminal procedure law.

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Instructions for assessing pros and cons “death with dignity”

Author(s): Dragana Petrović / Language(s): English Issue: 4/2016

Whether it is called “dignified”, “proud” or “privileged death”, “voluntary killing”, killing at request”, “assisted suicide”, “mercy killing” or ”pity killing”... euthanasia’s legal, ethical and actual aspects have been the subject of discussions for centuries. The name of our topic, consisting of just two words, mercy killing, which are at first sight so contradictory (mutually exclusive), speaks for itself. In this paper the author underlines that, due to its increasing application, euthanasia has become unavoidable subject of criminal considerations and social interest. It draws the attention with its controversy, complexity, versatile forms of execution and possibilities for abuse. Through a prism of different theoretical streams and studies and reviews of its application in practice, the author at the very beginning of this paper presents the following view. Reviewing contemporary trends in the field of legal regulation of euthanasia, comparative legislations meander through chaotic paths of mutually connected and confronted stands which can easily turn into a pure façade, that is into an illusion of ideal solutions. This is, unfortunately, the existing general frame within which we can seek answers to some of the questions that this topic raises

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The right to an impartial judge

Author(s): Ervin Belovics / Language(s): English Issue: 2/2017

The author analyses the institute of impartiality of judge in criminal proceedings. First, the paper points to norms of Article 6 of European Convention on Human Rights and guarantees of the fundamental rights in criminal procedure in Hungarian Constitution. Afterwards, the author establishes material elements that constitute the requirement of impartiality, how it is possible to set aside partiality and what are the results of this requirement within the concrete regulations of the Hungarian Act on the Criminal Procedure.

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Consecinţele ipotezelor particulare ale erorii de fapt: aberratio ictus, aberratio delicti, error in persona şi aberratio causae

Author(s): Alexandru Matache / Language(s): Romanian Issue: 1/2017

As a result of its genesys from the constants of the external manifestation of human will, a part of the doctrinehas chosen to include in the concept of natural unit of offense, unregulated in the Romanian legislation, certainparticular assumptions of the mistake of fact on the constituent elements of offense (typicality of offense), under thename of „deviant offense”.The central aim of this study is to establish the fact that the particular hypotheses evoked involve distinct legalsolutions so that they can not generate, as a whole, a unitary form of unit of offense, as well as the fact that, separatelyanalyzed, they do not outline a natural unit of offense or otherwise, the natural unit of offense revealed presents thesame features as a simple offense.Therefore, beyond the identification of the appropriate legal treatment for all the factual situations analyzed,the author pleads for abandoning their inclusion in the structure of a different and independent form of natural unityof offense, as a result of the incompatibility of some of them with the broad concept of unity of offense, or, in other cases,because of the futility of such an approach.

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INFRACŢIUNEA DE DIVULGARE A SECRETULUI PROFESIONAL DE CĂTRE AVOCAT PREVĂZUTĂ DE LEGEA NR. 51/1995. SCURTE CONSIDERAŢII

Author(s): Dan Sebastian Chertes / Language(s): Romanian Issue: 1/2017

This article analyzes an incrimination recently introduced into Romanian law by reference to another incrimination already existing in the Romanian Criminal Code. Starting with the legislative process that led to the adoption of the offence analyzed, the nature of the offense is analyzed via the outcome, as a component of the objective side. The analysis also determines the extent to which we have to deal with an autonomous incrimination or an aggravated form of the incrimination established by the Romanian Criminal Code. Last but not least, it examines the nature of the sanction applicable to members of the professional bodies in the case of disclosure of professional secrecy and to what extent the sanctioning of disclosure of commercial secrecy creates a concurrence of criminal laws with a similar provision in the law on combating unfair competition.

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Zniesławienie i uwagi na temat zasadności sankcji określonych w przepisie art. 212 § 2 k.k. w kontekście postulowanych zmian w tym zakresie

Author(s): Anna Opar / Language(s): Polish Issue: 33/2016

The main subject of the article is to describe the elements that constitute defamation. Such an illegal act is prohibited according to article 212 of the Polish Criminal Code. Typically this kind of a crime is sanctioned only with fine or the community service penalty, but in case it was conducted by the offender by means of mass communication one may be charged with imprisonment up to one year. The Author discusses the ratio legis of this regulations, including ethical issues.

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