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Складові механізму забезпечення прав осіб, постраждалих від торгівлі людьми

Author(s): L. N. Sergeieva,А. А. Sergeiev / Language(s): Ukrainian Issue: 139/2017

The article is devoted to one of the actual topics of the day – trafficking in human beings, which violates almost all the rights and freedoms of persons who are victims of this crime. According to the Constitution of Ukraine, human rights and freedoms and their guarantees determine the content and direction of the state’s activities. It is the provision of a set of constitutional, legal, socioeconomic,political, cultural and other conditions for the life of a person to the state authorities to eliminate the causes that contribute to the crime of trafficking in human beings and violate the rights of victims.Based on a comprehensive analysis of the origin and stages of the crime of trafficking in human beings, international and national legislation, the activities of public authorities, public organizations, a mechanism for ensuring the rights and freedoms of persons affected by human trafficking is defined as a set of state measures of legal, institutional, organizational, of a psychological nature, should be aimed at eliminating the factors that contribute to the emergence and spread crime. The components of this mechanism should be:– organizational and legal (which includes an array of legal norms and organizational methods);– Institutional (President, Verkhovna Rada, Cabinet of Ministers, law enforcement bodies, local self-government bodies, international partners, public and non-governmental organizations);– Control (courts, Ombudsman, non-governmental and public organizations, citizens);– Coordination (taking into account the complexity a

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Bezpieczeństwo użytkowania wyrobu medycznego a odpowiedzialność karna za błąd organizacyjny w leczeniu pacjenta – studium przypadku

Author(s): Natalia Wąsik / Language(s): Polish Issue: 36/2017

The phenomenon of distorting the functioning of health care institutions and affecting the safety of the patients hospitalized in them, which may result in criminal liability of employees of these entities is organizational error in conducting medical activity. It includes a series of events related to failure to provide appropriate conditions for the treatment of patients, including irregularities and shortcomings in the management of medical devices. Improper are the purchase and use of equipment and tools do not meet the required safety standards, unpredictable as to the outcome of their application, or incredible in terms of research results using them. Ignoring the rules of safe use of medical devices can take different forms and lead to cause irreparable harm. This type of case is analyzed in this publication. On the basis of the facts concerning the improper use of medical device in the embolization, îe. without its real properties and rules of use in surgical procedures, compiled a catalog of hypothetical unlawful behavior of staff therapeutic entity representing organizational medical error. At the same time the study identifies the criminal liability of individual groups of employees, depending on the causes and course of medical incident. The relevant considerations in this regard while preceded by a presentation of basic issues of security market and use of medical devices.

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Perdavimas vairuoti transporto priemonę neblaiviam asmeniui: atsakomybė ir jos taikymas Lietuvos teismų praktikoje

Author(s): Inga Daukšaitė / Language(s): Lithuanian Issue: 88 (2)/2015

The participation of drunk drivers in the road traffic and accidents caused by them is one of the major road traffic safety problems in Lithuania. A part of the drunk drivers are such who were given to drive by others. On this account in this article for the scientific analysis the topic of prohibition to entrust a vehicle to a person under the influence of alcohol and liability for the infringement thereof has been picked.In the article, while also invoking the analysis of the Lithuanian case-law, the Paragraph 6 of Article 126 of the Code of Administrative Offences of the Republic of Lithuania is analysed in detail. It is also raised a question (and also searched for the answer to it) whether the administrative penalty foreseen in the sanction of the Article mentioned above is proportional to the dangerousness of the administrative offence under analysis.It is come to a conclusion that as a transfer of a road vehicle to a person under the influence of alcohol shall be understood any act of the culprit because of which a vehicle ends at the temporary disposal of the drunk person. In this context, it is necessary to determine that the culprit, while acting so, had a purpose a vehicle to enter into the temporary disposal of the person mentioned above.To be liable for the transfer of a road vehicle to a person under the influence of alcohol shall be held the owner (possessor) of the road vehicle, i. e. persons who, under the law, hold a general duty of care. Therefore the provision, not allowing entrusting a road vehicle to a person under the influence of alcohol, in appropriate legal acts shall be foreseen among provisions applicable to owners and possessors of the road vehicles (but not drivers thereof).At the end of the article it is arrived at a conclusion that the administrative penalty foreseen in the sanction of the Paragraph 6 of the Article 126 of the Code of Administrative Offences of the Republic of Lithuania (a fine of EUR 86–144) does not correspond to the dangerousness of the administrative offence under discussion (is too lenient) and therefore shall be made more severe in the future. It is thought that due to the role of the culprit in the drunk driving the liability for the transfer of a road vehicle for drive to a person under the influence of alcohol shall be likewise (if not the same) as the liability provided for the drunk driving itself.

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Ar prasminga probacijos tarnybų darbą vertinti pagal probuojamųjų recidyvą?

Author(s): Gintautas Sakalauskas / Language(s): Lithuanian Issue: 86 (4)/2014

Im Aufsatz wird die Tätigkeit der Bewährungshilfe in Litauen analysiert und eine grundsätzliche Frage gestellt, warum die Effizienz ihrer Tätigkeit immer noch nach der registrierten Rückfälligkeit ihrer Klientel beurteilt wird? Zeigt die registrierte Rückfälligkeit der Probanden wirklich die Qualität und Effizienz der Bewährungshilfe? Kann man die registrierte Rückfälligkeit objektiv bemessen oder ist das nur eine wenig was aussagende relative Zahl? Die Effizienz der Bewährungshilfe sollte nicht nach der registrierten Rückfälligkeit der Probanden bemessen werden (obwohl das einer der von der Strafvollzugsabteilung des Justizministeriums offiziell festgelegten Kriterien ist), weil: a) die Bewährungshelfer können ihre Klientel nicht auswählen, die Bewährungszeit wird vom Gericht festgelegt; b) die Voraussetzungen der Bewährung und die Kontakte der Klienten mit einem Bewährungshelfer sind nur episodische Ereignisse, meistens haben sie keinen entscheidenden Einfluß auf die Lebensrealität der Probanden; c) die Rückfälligkeit der Probanden bedeutet nicht unbedingt, daß sich ihr Verhalten nicht in eine gute Richtung verändert und das ein Bewährungshelfer keinen guten Einfluß auf sie gemacht hat; d) die positiven Folgen der erfolgreichen Bewährungszeit können auch nur nach vielen Jahren sichtbar werden; e) relativ einfach kann man die Rückfälligkeit nur nach registrierten Straftaten berechnen, die Erforschung des Dunkelfeldes (der wirklichen Lage der Rückfälligkeit) braucht viele finanzielle und personale Ressourcen; f) es ist unmöglich festzulegen, welche Rückfälligkeit als eine “übliche” oder “normale” betrachtet werden soll, von deren Abweichung die besseren oder schlechteren Ergebnisse festgestellt werden sollten; g) wenn die registrierte Rückfälligkeit ein Beweis für die “schlechte Arbeit” des Bewährungshelfers ist, dann sollte er sich für ihre Verdunkelung interessiert sein (was natürlich nicht vertretbar ist); h) wenn die registrierte Rückfälligkeit als ein wichtiges und objektives Kriterium für die Effizienz der Bewährungshilfe betrachtet wird, dann neigt man auch zu dem Vergleich der unterschiedlichen Bewährungsämter, was zu den weiteren Mißverständnissen führt. Man muß die Rückfälligkeit der Probanden erforschen, es muß aber die wirkliche (auch die latente), nicht nur die registrierte Rückfälligkeit erforscht werden. Und die Ergebnisse solcher Forschung sollte nicht als Effizienz der Arbeit der Bewährungshilfe, sondern des (Mis-)Erfolgs des ganzen Systems betrachtet werden. Am Ende des Aufsatzes wird ein mögliches Model der Kriterien dargestellt, das für die Bewertung der Arbeit der Bewährungshilfe verwendet werden könnte. Es ist aber sehr wichtig, daß die Bewährungshilfe selbst nach den passenden und die Wirklichkeit ihrer Arbeit darstellenden Kriterien sucht, damit sie die Effizienz ihrer Arbeit objektiv einschätzen und die Beispiele der guten Praxis weiterentwickeln könnte.

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Manipuliacijos sporto varžybomis Lietuvoje: tarp kriminalizavimo ir ultima ratio principo

Author(s): Salomėja Zaksaitė / Language(s): Lithuanian Issue: 81 (3)/2013

This article examines current issues stemming from the criminalization of match-fixing (manipulation of sports competitions). Firstly, the concept of manipulations is investigated, and it is laid out that quite a broad concept implicates different kinds of liability – mainly disciplinary and criminal. Then a question is raised as to what forms of manipulations are dangerous enough to be criminalized, why (in theoretical sense) and when (in practical sense) disciplinary liability does not suffice. In Lithuanian scientific doctrine, an act is considered to be criminalized when, inter alia, it conforms to the criteria of dangerousness. Therefore, it is analyzed when and why match-fixing is dangerous enough to be criminalized. The main justifications for dangerousness are as follows: match-fixing causes certain harm and betting operators might suffer certain damages (then we have the corpus delicti of fraud with specific characteristics relating to the moment of crime completion); match-fixing undermines the integrity of sports; also, match-fixing sometimes might be not only the form of corruption, but also the form of transnational organized crime. However, one must be cautious while interpreting the above-mentioned theoretical grounds of dangerousness. The threat of “undermining the integrity of sport” is primarily associated with the sports law and, accordingly, with disciplinary liability. The threat to the integrity of sport always causes some (not necessarily material) harm, yet not always great harm. Thus, one must be cautious: if “harm” is understood too broadly or applied too vaguely, then the criminalization of match-fixing can become a selective measure for overly discretionary punishment. For example, the criterion of “abuse of the game” is not sufficient per se to attract criminal liability. In turn, the principle of ultima ratio might be potentially violated. While answering a practical question under what conditions disciplinary liability is not enough for match-fixing, it is stipulated that: 1) disciplinary institutions might be not able to ascertain and prove the fact of match-fixing without the help of the police (the so-called procedural limitations of disciplinary liability); disciplinary law and its application might be relatively narrow, covering only sport’s community (the so-called subjective limitations of disciplinary liability); disciplinary law is not always punitive enough. For the sake of objectivity, it must be noted that the last argument tends to lose its meaning as current disciplinary sanctions (especially imposed by international sport federations) could be severe and, therefore, it raises the question of pseudo-criminal law with high sanctions and relatively low standards of proving.

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Permąstant sankcijas už kontrabandą: proporcingumo problema (II). Konfiskavimo ir mokestinių priemonių taikymo klausimai

Author(s): Skirmantas Bikelis / Language(s): Lithuanian Issue: 79 (1)/2013

The second paper continues to deal with the issues of proportionality of the system of sanctions and measures that are applied for offenders who were found guilty for trafficking of goods. The paper is based on the research of judgements in criminal cases for trafficking in Lithuania which came into force in 2009-2011. This paper challenges issues of confiscation and taxation. Firstly confiscation of goods of legal origin is challenged. In some cases The European Court of Human Rights has already declared such confiscation as infringing the right to property. However Lithuanian laws still provide that confiscation of trafficked goods is imperative in all cases without any regard to their origin. Some examples of evidently disproportional confiscation were presented. Secondly issues of proportionality of value confiscation are examined. In contrast with the German and Austrian laws, Lithuanian Criminal Code does not provide the right of the court to refuse to apply or limit confiscation of the instrumentalities of trafficking considering special circumstances of the case with regard to principle of proportionality. As the result some decisions were passed where value of highly expensive vehicles has been confiscated from drivers, who appeared to be nothing more than little paid accessories, hired by unknown organizers of the trafficking. Finally the rule of Customs Code of EU which provides that confiscated goods are still taxable is discussed in light of principles non bis in idem and proportionality. The author proposes to develop mechanisms of control of criminal gains in order to target the key players of illegal business and possessors of the criminal wealth rather than focus on punishment of perpetrators who in most cases appear to be second – role relatively little paid players.

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Permąstant sankcijas už kontrabandą: proporcingumo problema (I).Proporcingumo principas ir bausmės už kontrabandą

Author(s): Skirmantas Bikelis / Language(s): Lithuanian Issue: 78 (4)/2012

The article presents the results of survey of sentences in criminal cases of trafficking of goods which came into force in 2009–2011 in Lithuania. The results were analysed in the light of principle of proportionality. The European Court of Human Rights and Lithuanian Constitutional Court have repeatedly emphasized the importance of the principle of proportionality. However the supreme political bodies of the State had proposed several amendments of the Criminal Code aiming at aggravating criminal liability for economic crimes, also trafficking of goods. The survey presents empiric data which shows that political assumptions that former limits of sanctions in Criminal Code were too mild and could prevent courts from passing effective sentences were speculative. In fact sentences mostly did not exceed average sanctions provided by law for trafficking. However the author came to conclusion that classification of criminal trafficking in goods as serious crime without regard to the fiscal damage which was caused by the offence determines disproportionally severe sanctions in less serious cases of trafficking and also prevents the courts from opportunity to apply some alternatives to criminal liability or apply community based sanctions. Classification of all cases of trafficking as serious offence also infringes consistency of the common system of the offences. The sentencing rule that sets average of sanction as starting point for sentencing is also criticized for making exceptional maximum sanctions relevant for the determination of sanction for ordinary cases where neither aggravating nor mitigating circumstances may be established. The statutory prohibition to impose more than one punishment for an offence is criticized too. It prevents the courts from imposing fines to offenders who are found guilty in gain-orientated crimes if they received sanction of imprisonment or sentenced to probation or any other sanction. Finally the methodology of estimation of the seriousness of trafficking in goods is discussed. It was proposed to take into account the amount of the evaded tax instead of the total value of the goods.

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Tapatybės vagystė elektroninėje erdvėje: technologiniai aspektai ir baudžiamasis teisinis vertinimas

Author(s): Vaidas Kalpokas,Renata Marcinauskaitė / Language(s): Lithuanian Issue: 77 (3)/2012

The article analyses one of the stages of fraud in cyberspace, i.e. illegal disposal of confidential data proving personal identity in cyberspace. The specifics of fraud in cyberspace, particularities of identity verification in cyberspace and various e-services (e-banking, e-shops, etc.) allow us considering different issues concerning criminal legal assessment of illegal receipt of data, proving personal identity in the cyberspace, their possession at one’s disposal and use. The article discusses currently the most frequent illegal methods to receive data used for identification in cyberspace, such as phishing, pharming, malware, skimming. In addition, considering the evolving jurisprudence, various problematic aspects of qualification of such act are also discussed. According to the authors, only fraud norm, specified in the Article 182 of the Criminal Code of the Republic of Lithuania (hereinafter – CC), is insufficient for a comprehensive criminal legal assessment of fraud in cyberspace. Whereas such criminal act is related to various breaches of security of electronic data and information systems, in addition to the CC Article 182, the perpetrator should also be incriminated offences, specified in the CC Chapter XXX and (or) the CC Articles 215 and 214. Considering quite different qualification practice, identity theft problem solving options are suggested in the article. First of all, it is suggested to qualify the perpetrator’s actions, using various methods to receive data for verification of personal identity in cyberspace, as an independent criminal act. Depending on the chosen method, the features of criminal acts, specified in the CC Chapter XXX, may be determined in the act. Secondly, the article emphasises that if the perpetrator unlawfully receives data with all features, specified in the CC Article 214, the special norm, indicated in the CC Article 214 is applicable instead of the norms, indicated in the CC Articles 198 or 1982, in order to qualify his act. Thirdly, if it is determined that data, enabling identification of a consumer in electronic service system, have been illegally used for the connection to this system (thus breaching the security measures of this system), it is suggested to qualify such act pursuant to the CC Article 1981. And fourthly, it is concluded that dangerous act, featuring the initiation of illegal transaction, using data for verification of consumer’s identity for online payment measures, should be qualified by applying the CC Article 215, not 198.

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ИЗУЗЕЋЕ СУДИЈЕ И ДРУГИ ПРОЦЕСНОПРАВНИ ПРОБЛЕМИ У ПРИМЕНИ УСЛОВНОГ ОТПУСТА

Author(s): Nikola Vuković / Language(s): Serbian Issue: 2/2016

The work is thematically divided into two parts that are not strictly separated. The link between these is the institution of release on parole. The first part deals with the institution of disqualification of a judge from the panel which decides on the petition for release on parole. It was noted that this issue does not occupy the attention of science, nor practice. It is pointed why this neglect is unjustified. Specifically analyzed is the possibility of participation of judge in deciding on release on parole if he has already acted (had some role) in the same case before. The consequences that can be brought by insufficient attention on this issue are as follows: 1) substantive violation of the provisions of criminal procedure, and 2) the conduct of disciplinary proceedings against a judge who should have been disqualified.

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ПРАВНА ПРИРОДА И КРИВИЧНОПРАВНИ (МАТЕРИЈАЛНИ И ПРОЦЕСНИ) ЕФЕКАТ ЗАСТАРЕЛОСТИ КРИВИЧНОГ ГОЊЕЊА - I део

Author(s): Milan Škulić / Language(s): Serbian Issue: 2/2016

The article contains an analysis of criminal justice and criminal effects of Statute of Limitations of Criminal Prosecution, as well as institute which has double natures, i.e. it is the institute of substantial criminal law and as well the institute of procedural criminal law, which has its own specific action in criminal proceedings. The Statute of Limitations of Criminal Prosecution is a permanent criminal procedural obstacle which prevents the prosecution and is cause for termination of the criminal proceedings if he started, and prevents its start, if criminal proceedings are not initiated, which is in both of these situations manifested by adopting the relevant decisions of the proceeding − by the criminal court or by a public prosecutor, in case of criminal offenses which are prosecuted ex officio. In the article are discussed the concept of statute of limitations of criminal prosecution and its ratio legis, certain comparative solutions (German criminal law and criminal law of the United States of America), the normative solutions in the present Serbian criminal law, as well as basic criminal procedural effects of statute of limitations of criminal prosecution with a special analysis some illogical solutions in the Criminal Procedure Code of Serbia, where statute of limitations of criminal prosecution is wrongly classified as one of the absolutely essential violations of criminal procedure.

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Prinudno psihijatrijsko lečenje i zatvaranje duševno poremećenih učinilaca krivičnih dela u Belgiji

Author(s): Nataša Mrvić-Petrović / Language(s): Serbian Issue: 3/2017

The author analyzes legal position of the offenders with mental disorders in Belgium. It shows the development of legislation, traditionally (since 1930) based on criminological social defence theory, problems which occurred in earlier laws and attempts to overcome these deficiencies. The paper analyzes: the legal nature of administrative measure detention of mentally ill offenders, conditions for pronounced measure and the method of enforcement. Author notes that the latest changes of law (from 2014 and 2016) aim to mitigate the ambivalent nature of the measure and eliminate reasons for violation of basic rights of the offenders with mental disorders which are coercive treated in special institutions.

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ПОМАГАЊЕ У КРИВИЧНОМ ДЕЛУ У ОБАВЉАЊУ ЗАНИМАЊА И ПРЕДУЗИМАЊУ СВАКОДНЕВНИХ ПОСЛОВА

Author(s): Igor Vuković / Language(s): Serbian Issue: 2/2015

External image of an action aiding a criminal offense often does not indicate its criminal character. Thus, for example, lending blade to a friend can pose help in preparing a holiday lunch, as well as assistance in the commission of a crime. Despite the often ambiguous image of similar behaviors, in the jurisprudence so far there was no dilemma that valueneutral acts may constitute this type of complicity in crime. In recent decades, however, there has been a vivid discussion whether the actions undertaken in the framework of a profession may constitute aiding in the commission of a crime. In this sense, it’s been written a number of papers with more or less the original proposals to resolve the issue of criminality of these actions. The author considers the most important understandings on this issue, taking the view that with regard to punishment of actions undertaken in the exercise of professions one should keep the same approach as in other situations, where one aids another in crime independently of the professional activity.

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ДЕЛО МАЛОГ ЗНАЧАЈА И СТВАРНО КАЈАЊЕ У КРИВИЧНОМ ЗАКОНИКУ

Author(s): Nataša Delić / Language(s): Serbian Issue: 1/2014

This paper discusses the relationship between the institute of the act of minor significance and genuine remorse, i.e. the possibility of deeming consequential criminal offenses followed by the offender’s genuine remorse as a fulfilled condition for the application of the institute of act of minor significance since the consequences of the criminal offense are considered insignificant. In such a context, the analysis primarily focused on the conditions for the application of the act of minor significance. It has been concluded that the application of the institute in question is justified only in the case of the so-called minor criminal offenses. After that, the analysis focused on the institute of genuine remorse from both the substantive- law and procedural-law aspects, which basically represents the application of the principle of opportunism prosecution. Next, the paper points to the existing similarities regarding the regulation of this institute between the solutions in the respective Serbian and German legislations. The conclusion is that the competition between the substantive-law and procedural-law institutes which serve the same purpose – the alleviation of criminal justice, particularly in view of the nature of their functional relationship, should always be resolved in favor of the substantive criminal law provisions application. However, if there is a criminal-political justification for it, as in the case of the acts of minor significance, then, following the examples of other European criminal laws, a repeal of the respective institute of criminal law is worth considering, as well as a better affirmation of the corresponding and so-called diversion procedural law mechanisms.

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О СИТУАЦИЈАМА ПОСРЕДНОГ ИЗВРШИЛАШТВА У СРПСКОМ КРИВИЧНОМ ПРАВУ

Author(s): Igor Vuković / Language(s): Serbian Issue: 1/2013

Criminal law recognizes three possible forms of perpetration: direct perpetration, indirect perpetration and joint perpetration. Indirect perpetrator (principal by proxy) is a person who commits an offense through another person (agent). Principal controls acts of the agent because he has superior knowledge or superior will, which enables him to effectuate his own ideas through the agent. Typical example of indirect perpetration is exploitation of a child or an insane person for a criminal offense. Situations in which there is a need for this construction have not yet been clearly defined in Serbian literature.

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„СУДСКО УТВРЂИВАЊЕ ЧИЊЕНИЦА У КРИВИЧНОМ ПОСТУПКУ“ – УСПОСТАВЉАЊЕ СТВАРНОСТИ ИЗВРШЕНОГ ДЕЛА

Author(s): Dragiša Drakić / Language(s): Serbian Issue: 1/2012

This paper examines a complex system of judicial determination of facts in criminal proceedings, which relate to the elements of statutory definition of criminal offense. The author points out the difficulties a judge faces when performing this segment of his work. When examining, from a theoretical point of view, the quality of evidence to be evaluated by the judge, as well as methodological procedures to be undertaken during this evaluation, the author makes some conclusions as to the truth which is yearned-for in criminal proceedings. Namely, since the facts of a criminal offense are not ‘determined’ but rather ‘established’ by the court, as put forward by the author, the truth that is sought-for in the criminal proceedings cannot be qualified as the ‘material’ truth: the author rather names it the ‘forensic’ truth. The forensic truth may serve as the basis for just and impartial decision-making, and should be regarded as authoritative, since it actually is the maximum of truth that may be acquired before the courts.

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О СУБЈЕКТИВНИМ ОБЕЛЕЖЈИМА ПРОТИВПРАВНОСТИ У КРИВИЧНОМ ПРАВУ

Author(s): Igor Vuković / Language(s): Serbian Issue: 2/2011

The article deals with the problem of so-called unknowing justification and the question whether an actor must have knowledge of the presence of justificatory circumstances, so his crime could be justified. Suppose that A shoots at B with intent to murder him, and turns out later that, unknown to A, B was about to shoot him dead. Although A killed a man, he unknowingly repelled an attack on his life. According to objective theory, lawful acts should be encouraged and justified regardless of the actor’s mental state. On the other hand, subjectivists suggest two possible answers. The weaker version of subjective theory requires merely the awareness of justificatory position, while the stronger variant denies justification if the actor wasn’t motivated by justifying circumstances. The author gives arguments on these viewpoints, supporting the idea that justification requires only knowledge of the justificatory circumstances. The consequence is that the unknowing actor isn’t liable for the completed offense, but may be liable for impossible attempt.

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ИЗВРШИЛАШТВО И САУЧЕСНИШТВО КРОЗ НЕЧИЊЕЊЕ

Author(s): Nedeljko Jovančević / Language(s): Serbian Issue: 1/2011

Criminal offenses committed by omission or failure to act duly are in many respects specific and distinct from offenses committed by acts and are, therefore, considered structurally different and cannot be equalled. Commission by omission is stipulated as a criminal offense in Article 15 of the Criminal Code, while the law makes no mention of complicity by omission to act (instigating and aiding). Complicity by omission is, therefore, determined by theoretical considerations which are based on general and specific provisions of the Criminal Code and jurisprudence. Omission by an accomplice to act contributes to the commission of an offense through some form of failure to act duly. Legal duties are functionally associated with a specific guarantor of such duties and by omitting to act on any duties assumed or imposed by the law such guarantor becomes an offender. In this context, the guarantor as an accomplice by omission (explicitly abettor) may become relevant and contribute to the commission of an offense.

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APPLYING THE EQUIVALENCE THEORY IN CRIMINAL LAW – SOME ISSUES OF INTEREST

Author(s): Igor Vuković / Language(s): English Issue: 3/2007

The present article is an elaboration of certain questions of equivalence theory – as the most important theory of causation in contemporary continental criminal law. The starting point of equivalence theory includes the principle according to which all conditions related to a given consequence that may not be rationally excluded, without, if they were, the ensuing consequence being materialized – are equivalent and, consequently, each one of these conditions represents a condition of the relevant consequence (so-called condicio sine qua non). The author considers hypothetical, cumulative and alternative causalities as well as other forms that are instrumental in the implementation of the theory.

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NATURE, IMPORTANCE AND LIMITS OF FINDING THE TRUTH IN CRIMINAL PROCEEDINGS

Author(s): Goran P. Ilić,Miodrag Majić / Language(s): English Issue: 3/2013

The paper analyzes reasonable possibilities of finding the truth in modern criminal proceedings. Instead of the often uncritical, and sometimes even populist referring to the so-called principle of “material truth” as the main objective of criminal proceedings in continental legal tradition, the authors point out that the nature, importance and limits of finding the truth in criminal proceedings must be perceived in relation to other values included in the modern procedure, such as the presumption of innocence, adversary principle, equality of arms, the rules in dubio pro reo etc. Therefore, in a brief overview of the relevant philosophical movements, the authors first point out that the very notion of truth, which is inevitably philosophical, is inaccessible and enigmatic. It is highlighted that referring to the truth as an objective which should be reached in criminal proceedings is often a specific alibi for many open issues inherent to the system of criminal justice coercion. It is specifically highlighted that due to its “normative” nature, judicial truth inevitably differs from scientific, philosophical, ethical or aesthetic truth, and that under the modern circumstances it also has a number of “rivals” in the form of the value of criminal procedure it must be harmonized with. The authors believe that modern criminal procedure is most appropriately demonstrated in the so-called “adversary” model of process which is a unique mixture of solutions taken from the two major legal systems.

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НАЧЕЛО ЛЕГАЛИТЕТА – НОРМАТИВНА И КУЛТУРНА ЕВОЛУЦИЈА (I)

Author(s): Miodrag Majić / Language(s): Serbian Issue: 1/2009

The principle of legality has always been considered one of the main principles in criminal law. Such approach has caused a relatively uncritical position towards the principle which has usually been considered a value which is not subject to any additional valuation. Nevertheless, in the paper the author considers the principle of legality from a different point of view – its power of resisting continuous evolutionary changes. Thus, he perceives that the principle of legality is an evolutionary phenomenon itself which, being such, necessarily competes with other evolutionary features of a specific moment. Thus, inalterability of written norms, being one of the main characteristics of the principle of legality, necessarily causes a tension towards products of the cultural evolution, the result of which is diminishing of the original significance of the very principle of legality, if understood in the classical sense.

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