Confirmarea măsurii arestării preventive. Procedura-remediu. Competența. Soluții

Author(s): Ioan-Paul Chiş / Language(s): Romanian Issue: 1/2016

According to the first sentence of art. 5 alin. (3) ECHR, „Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power” who will decide if there are sufficient reasons which justify the detention, and, if there are lacking, will order the release of the arrested person. The New Criminal procedure code, throughout the provisions of art. 231, provides the framework within the arrested in absence is headed, within 24 hours, to the judge who took the measure, who will analyze the accused statement throughout the evidence gathered and the reasons which were took into consideration previously, and who will decide the confirmation of the measure, or, when the measure were taken by infringement of the law or unjustified, who will revoke or replace it with other measure less hard. This study aims to point out the scope of the institution, the legal nature of the 24 hour deadline, the jurisdictional competence and, finally, the rulings which can be said. Also there will be some alerts of the provisions imperfection and a few proposals of lege ferenda.

Features of Continuous Offense

Author(s): Mari-Claudia Ivan / Language(s): English Issue: 1/2016

The study examines some of the specific elements of the continuous offense that emphasize its features, namely: legal and material object, prerequisite situation, immediate effect, relation of causality and guilt, as well as additional conditions. All these, together with the basic conditions of the continuous offense, are needed in order to classify an illegal activity as a continuous form of the unity of offense.

Wpływ ostatnich nowelizacji Kodeksu postępowania karnego na szybkość i rzetelność procesu karnego. Studium przypadku

Author(s): Jan Kluza / Language(s): Polish Issue: 32/2017

The article presents the impact of recent amendments to the Criminal Procedure Code on the basic principles of the criminal process. This is particularly true of the speed of the process and the fair process.

INTRODUCTION TO THE DEVELOPMENT OF MODERN CRIMINAL LAW

Author(s): Zoran Stojanović / Language(s): English Issue: 2/2007

As it is widely known, the first school of modern Criminal Law appeared in the late 18th century. The most representative authors of this school of thought are two distinguished scholars, Anselm Feuerbach from Germany and Francesco Carrara from Italy. Even before, Cesare Beccaria wrote his famous book Dei Delitti e delle Pene (1764), enclosing the most powerful criticism of European criminal justice systems of his time. In his essay, Beccaria expressed new ideas of the Age of Enlightenment and applied them to Criminal Law. This school is known as the Classical School of Criminal Law. The essential idea of this school is based on the presumption that every human being has a free will and is by nature given the freedom of choice between good and evil, and therefore has to be punished without exception for his wrong choices. This idea was based on the philosophical concept known as „indeterminism“.

МАТЕРИЈАЛНО ДОВРШЕЊЕ КРИВИЧНОГА ДЕЛА

Author(s): Igor Vuković / Language(s): Serbian Issue: 2/2008

In contemporary theory of continental criminal law one can come across the view of so-called materially completed criminal offenses. Namely, although an offense is formally completed when a perpretrator commits all its objective and subjective elements, some legal consequences (e.g. of conspiracy) may appear as if the offense is not completed, until the final substantive material damage to the legal good is done. By certain authors, this moment is called „material completion of criminal offense“ (Beendigung). This article examines different situations of materially completed crimes and various categories of criminal offenses by which this institute could apply.

СВЕСТ О ПРОТИВПРАВНОСТИ КАО КОНСТИТУТИВНИ ЕЛЕМЕНТ КРИВИЦЕ

Author(s): Nataša Delić / Language(s): Serbian Issue: 2/2008

Till the ratification of Criminal Code of Republic of Serbia the materially-formal general notion of criminal offense as well as psychical theories of guilt were accepted, according to which the culpability comes up to only a psychical attitude of perpetrator to a felony and is been defined according to his sense/aware and volition. The implication of this concept was the legal decision according to which legal error did not have any influence to existence of guilt and criminal offense/criminal act but only symbolized optional ground for lenient or divestiture from the punish. The Criminal Code of Republic Serbia in accordance to a modern inheritance of criminal legal theory adopts formal concept of general notion of criminal offense and guilt defines in the line with miscellaneous, psychological-normative theories of guilt, according to which the guilt reflects psychical relation of perpetrator to offense for which purpose the lecture might be consigned to him. It is stipulated by the article 22. of the Criminal Code of Republic of Serbia the guiltiness is a complex category which consists of competence, intention and negligence and a sense of prohibition of the act.

УСЛОВИ ОДГОВОРНОСТИ ПРАВНОГ ЛИЦА ЗА КРИВИЧНО ДЕЛО

Author(s): Miroslav Vrhovšek / Language(s): Serbian Issue: 2/2008

The National Assembly of the Republic of Serbia recently enacted the Law on Liability of Legal Persons for Criminal Offenses. The new Law indicated a shift toward the new conception of liability of legal entities in Serbian law. The author scrutinizes its provisions, and concludes that they are in compliance with the international documents and recommendations on corporate criminal liability. Nevertheless, the author disapproves of the newly introduced grounds of criminal liability of legal persons. Namely, the new rules concerning the grounds of liability could have been put together in a way which would be less extravagant from the viewpoint of the Serbian doctrine of criminal law, and more in line with the prevailing ideas on grounds of criminal liability of legal entities. The author points out that the idea of corporate liability is no stranger to the Serbian criminal law and legal doctrine. Still, one of distinctive features of Serbian law was that legal persons were subject only to liability for commercial offenses – as opposed to criminal offenses, for which solely natural persons could have been held liable.

ПРИМЕНА ТЕОРИЈЕ ЕКВИВАЛЕНЦИЈЕ У КРИВИЧНОМ ПРАВУ – ПОЈЕДИНА ПИТАЊА

Author(s): Igor Vuković / Language(s): Serbian Issue: 2/2006

This article deals with certain aspects of the most prominent theory of causation in continental criminal law – the theory of conditions. As its starting point, the theory of conditions takes the proposition that all conditions of a consequence – which cannot be eliminated in thought without eliminating the consequence itself – are equivalent. Consequently, every single condition can be regarded as a cause of the related consequence (so-called condicio sine qua non). The author examines hypothetical, cumulative and alternative causation and other forms of significance for the theory application.

ПОГЛЕД НА НУЖНУ ОДБРАНУ У ЕВРОКОНТИНЕНТАЛНОМ И AНГЛОСАКСОНСКОМ СИСТЕМУ КРИВИЧНОГ ПРАВА

Author(s): Marinka Cetinić / Language(s): Serbian Issue: 2/2006

A comparison of the self-defense institute would reveal stark differences between continental and Anglo-Saxon systems. Not only between those systems, but also within them. Although this claim is not in line with Pradel’s contention that ‘Self-defense rests on the same grounds everywhere, in principle’, we are of the opinion that other point of view is possible. Namely, continental law specifies self-defense and its grounds through statutory criminal law provisions. There are differences among national legislations with regards to the breadth of this defense, since a minority of statutes regards self-defense to be a general institute. Besides, there is no consensus with regard to importance and operation of this institute. In other countries, self-defense is a basis for exclusion of responsibility, in other of illegality and in the third group of countries of punishment. On the other hand, Anglo-Saxon criminial law, as a rule, does not contain statutory provisions on self-defense and it is invoked as a part of the Common Law. Moreover, self-defense is regarded to be a procedural institute in England. Although the US have enacted criminal ;law statutes, they have left self-defense out of it.

ДОПРИНОС ТОМЕ ЖИВАНОВИЋА НАУЦИ КРИВИЧНОГ ПРАВА

Author(s): Zoran Stojanović / Language(s): Serbian Issue: 1/2005

Говорити о доприносу Томе Живановића науци кривичног права истовремено је и тежак и лак задатак...

Charakter prawnodowodowy analizy kryminalnej

Author(s): Krzysztof Woźniewski / Language(s): Polish Issue: XXXVIII/2017

The article is an attempt to determine the legal and evidential nature of one of the non-codifies means of evidence such as the so called crime analysis of many specific facts that arise in connection with criminal proceedings, and in particular preparatory proceedings.The Author presents the opinion that, in the light of the concepts of the law of evidence, crime analysis is an evidentiary activity performed by a qualified specialist in order to establish whether there are links between collected data, secured and transmitted for crime analysis. The result of the criminal analyst’s work, presented in the form of a report, as well as the result of the report containing the opinion of an expert on crime analysis, referring to links between specific facts with characteristic features, may constitute the basis off actual finding (the so called “evidence fact”) that can be useful to prove the main fact. For this reason, it should be assumed that the outcome of crime analysis is an indirect (circumstantial)evidence from legal and evidential point of view.

Neturtinės žalos atlyginimo dėl neteisėto gyvybės atėmimo aspektai

Author(s): Romualdas Drakšas / Language(s): Lithuanian Issue: 2/2017

Te article examines questions of compensation for non-pecuniary damage as an expression of the state’s attitude towards human life. Te article introduces the definition of non-pecuniary damage and urges to use provisions of criminal law,instead of civil law, to acknowledge a person as a victim. It also analyses key provisions of compensation for non-pecuniary damage in homicide cases that are related to the totality of objective and subjective elements of offence composition. Te author pays particular attention to the issues of legal regulation in determination of the value of non-pecuniary damage and court practice in compensation of non-pecuniary damage.Te author believes that Lithuanian society still exalts spiritual suffering, while its material value is hardly recognized, for which the judicial process, which should tackle the question of non-pecuniary damage, often turns into a process where the main concern is the protection of defendant’s material welfare and what amount they would be able to pay. Te compensation for non-pecuniary damage is not only a question of proving facts, it is foremost the question of the “price” of the murdered. This is why the interests of a victim shouldn’t be collated to making a profit of disaster. Te court makes decisions in specific cases and applies the legal norms created by the legislator by using facts,logical and rational arguments. By acting in the name of the state and in its interests,the court should firstly take into account the scale of values set by laws and recognized by the state; what is the priority - human life, the victim’s pain of loss and suffering or the defendant’s age, their material and family status. Te court should determine that the defendant killed a person and by doing so they disregarded the highest value, therefore the relatives of the murdered must receive a just compensation. Only in this way the court can clearly set the priority of life over other values; by assessing it adequately,it expresses the state’s attitude towards murder.

ŞANTAJUL. PROBLEME PUNCTUALE

Author(s): Herinean Dorel / Language(s): Romanian Issue: 2/2017

The present paper represents a detailed analysis concerning some specific issues regard to article 207 of the Romanian Criminal Code, which incriminates the blackmail and the extortion. Some of the legal aspects treated in this paper were inspired from different courts’ decisions, while others were the results of critical thinking. In most of the cases the author tried to elaborate some de lege ferenda proposals, which are situated at the end of each chapter. As a conclusion of the paper, we might say that the text could benefit from a few adjustments, given the fact that the application of this law generates difficulties in the cases presented in this paper.

REDESCHIDEREA URMĂRIRII PENALE CA URMARE A PLÂNGERII FORMULATE DE INCULPAT ÎMPOTRIVA ORDONANȚEI DE CLASARE. NELEGALITATE, CONSECINȚE ȘI CĂI DE ATAC

Author(s): Oana Bugnar-Coldea / Language(s): Romanian Issue: 2/2017

Although the legal provisions governing the complaint against the acts of the prosecutor and the reopening of the prosecution may seem clear at first glance, the case law has shown the opposite in a case in which, from a simple complaint against the order to close a case filed by the defendant, a ”tangle” of procedures resulted, from the fact that the hierarchical prosecutor invalidated the order and decided the reopening of the criminal prosecution in view of the fact that the initial legal classification was wrong, thus ignoring the principle of non reformatio in pejus. In this article it is analyzed the extent to which the solution adopted by the prosecutor was a legal one, the grounds on which the hierarchical prosecutor may order the invalidation of the order to close a case and the remedies that may be followed in such a situation. It also analyzes the solutions given by the judge entrusted with the adjudication of the complaint against the order to close the case, by the judge who analyzed the lawfulness of the reopening of the prosecution and the relationship between the two procedures, an alternative solution for solving the problem subject to the analysis being proposed.

LISTĂ CU LUCRĂRI PRIVIND CRIMINALITATEA INFORMATICĂ ŞI ASPECTE CONEXE (ULTIMA ACTUALIZARE – DECEMBRIE 2017)

Author(s): Maxim Dobrinoiu,George Zlati / Language(s): Romanian Issue: 2/2017

Kardomosios priemonės – užstato – reguliavimo ir taikymo vertybinės ir praktinės dilemos

Author(s): Skirmantas Bikelis / Language(s): Lithuanian Issue: 95 (1)/2018

The article presents some findings from the research Project ”Towards Detention as Ultima Ratio“ (DETOUR), partially funded by the European Commission. It discusses the fundamental and practical dilemmas in regulation and application of financial bail in criminal cases. The results of the research have showed that dilemmas are universal at least in the Continental Europe. In the first part of the article the author discusses why the financial bail has no tradition of implementation in the Continental Europe despite the fact that practitioners often appreciate it as promising measure. The critical fundamental arguments against financial bail are discussed. The author admits that the financial bail indeed carries discriminatory nature on the social basis in cases where there is no possibility to adjust the amount of bail to the amount that would be affordable to the defendant and at the same time application of other less severe measures is not deemed as reasonable. It is also likely that in some cases illicit income might be offered for a bail. But on the other hand it is nearly impossible to prove it in the course of the making decision to apply the bail. However, the author concludes, that in the cases where aforementioned arguments against a bail are challenged with the principle that detention should be used as ultima ratio measure, the latter principle should prevail. In the second part the common practices in Lithuania to use the bail as the security for the payment of a fine are discussed. The author argues that present judicial practice to withhold bail money until the full payment of a fine is made has no ground in the law. The author suggests the amendments of the criminal procedure law that would make this option fully effective and legitimate. Furthermore common prosecution practice to force the provider of the bail to sign an agreement to give up the bail money for the recovery of a fine is challenged as illegitimate.

“Mercy killing” in comparative legislation

Author(s): Dragana Petrović / Language(s): English Issue: 4/2017

The issue of euthanasia is regulated in a different way in each country and legislation. However, the last word has not been spoken, and this is the message of extensive arguments and grave concern. The theme is large in scale, as is the dimension of a human being and the world itself. Difficult and strong, too. As the author points out, behind each question related to euthanasia lies a preceding question of the actual need for its legalization. The author adds: here it is good to hear a different opinion, shed some light on the problem from another perspective and offer new solutions to complex, but important dilemmas which arise in relation to the subject matter.

Seizure or taxation of illegal income – example of drug trafficking

Author(s): Radosav Risimović / Language(s): English Issue: 4/2017

The criminal offence of tax evasion is most frequently perpetrated by giving false data on the acquired income and failure to report acquired incomes, as defined in our criminal legislation. A linguistic analysis of the Criminal Code provision which defines this offence can lead to a conclusion that the income subject to taxation can be obtained either lawfully or unlawfully since the legislator does not take a stand regarding this issue. Namely, the 2016 amendments to the Criminal Code deleted the term ‘legal’ from the legal description of the criminal offence of tax evasion. However, this does not mean that the incomes acquired unlawfully can be subject to taxation, as the paper elaborates in detail. The author explores jurisprudence regarding the imposition of the security measure of the seizure of objects and the measure of seizure material gains in criminal matters related to the criminal offence of illegal production and circulation of narcotic as per Article 246 of the CC. In this way, we shall establish whether these measures are effectively implemented and whether they allow for seizing the incomes obtained from drug trafficking. A portion of this paper will be dedicated to the reasons for and against taxation of illegally obtained revenues. In addressing this problem, the author shall rely on the US practice, wherein proceeds from unlawful sources are subject to taxation.

Taktyka Przeprowadzania Czynności Procesowo-Kryminalistycznych na Miejscu Wypadku Drogowego

Author(s): Małgorzata Maria Żołna / Language(s): Polish Issue: 1/2017

This year marks the 20th anniversary of the publication of the work of the late Prof. Stanisław Pikulski titled The Basic Problems of the Criminalistic Tactics. Already in the introduction to this textbook, which belongs to the canon of required reading for each criminalistic, the Author has rightly attributed to the forensic tactics a vital role in combating crime, especially in the direct identification of offenders and he has rightly described the knowledge of its rules as necessary to perform criminalistic activities in daily tasks undertaken by the policeman, prosecutor and judge. It seems that following this deliberation one could take one step further and state that also court appointed experts should have the expertise in application of the rules of the criminalistic tactics to correctly fulfill their role of an assistant in legal proceedings. In order to successfully carry out their task, be it a participation in the legal-criminalistic proceedings or preparing an expert opinion, the court appointed expert should closely cooperate in this matter with judicial authorities carrying out the proceedings and vice versa. Training of a policeman, prosecutor and judge to consider and determine the case of traffic offence should comprise the knowledge of methods, which would also lead to an identification of circumstances of vehicles collision, knocking down of a pedestrian. Each stage of proceedings, starting from the first action, which usually is the inspection of the accident scene, followed by the interrogation of witnesses and a suspect (suspects), defining the tasks assigned to the court appointed experts and then their assessment, conducting experiments and lastly determining the type of committed infringement, demands that the judicial authorities not only have the knowledge of the binding provisions of law, but also the know-how to use information about revealed and secured traces.

Przestępstwo Kradzieży z Włamaniem

Author(s): Dariusz Janik / Language(s): Polish Issue: 1/2017

The article discusses the content and scope of the concept of burglary. The article has been enriched, discussing burglary on the example of selected EU countries.