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Constitutionality of Safeguards on Extended Confiscation

Author(s): Tudorel Toader,Marieta Safta / Language(s): English Issue: 01/2015

The extended confiscation has been recently enshrined in the Romanian criminal law. In the decisions delivered in this matter the Constitutional Court held that the norms of Criminal Code on extended confiscation are constitutional insofar they are not applied to acts committed and to assets acquired before the entry into force of Law no. 63/2012 amending and supplementing the Romanian Criminal Code and Law no. 286/2009 on the Criminal Code. This study offers an analysis from a constitutional point of view of safeguard on extended confiscation, especially from constitutional rules point of view which regulate the principle of nonretroactivity of the law, except for the criminal law or the more favourable noncriminal law, the right to property, respectively the presumption of lawful acquirement of property and the standard of proof required in order to reverse this legal presumption, analysis founded also on the case law in this matter.

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Organized Crime in Hungary

Author(s): Ágnes N. Tóth,István László Gál,László Kőhalmi / Language(s): English Issue: 01/2015

The organized crime perpetration is much more serious threat to the society than an individual crime. More offenders on one hand means more concentration of power which from an objective view increases the chance of the successful crime perpetration and on the other hand the presence of accomplices and the knowledge of their possible intervention when needed increases the offender’s determination. There are different methods to define the scale of the quantity of the organized crime, even though due to the conspiracy it is difficult to get a clear and concrete number of the committed crimes resulted from organized crime. Before the transition in the countries, which belonged to the soviet sphere of interest, it was a perceptible phenomenon if a new type of crime commitment appeared in one country then within a short time it was spread in the other countries too Fighting against the organized criminal entities is only possible with organized law enforcement resorts.

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Legislative Actions of Estonia to Combat Organized Crime

Author(s): Jaan Sootak,Anneli Soo / Language(s): English Issue: 01/2015

From 2002 belonging to a criminal organization or leading one is punishable in Estonia. While making relevant changes to Estonian Penal Code, Estonian legislator took into account requirements of the United Nations Convention against Transnational Organized Crime. The Estonian courts have been applying respective law for over ten years now and have encountered several difficulties. For instance, the notion of ‘criminal organization’ still is debatable as in practice it should be distinguished from ordinary groups that gather occasionally to commit crimes. In addition, the problems related to the principle of ne bis in idem may arise in case the authorities have failed to investigate a crime of belonging to a criminal organization or leading one and crimes that a person has committed while belonging to the organization in the same criminal procedure. This article introduces these problems as well as gives an overview of historical development and current status of Estonian criminal law in the area of combating organized crime.

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Special Evidentiary Actions in the Function of Combating Organized Crime in Serbia

Author(s): Aleksandar Bošković,Zoran Pavlović / Language(s): English Issue: 01/2015

The effectiveness of preventing and combating organized crime, as well as the efficiency of criminal procedure, depends on many objective and subjective factors, but it is certain that their performance is much influenced by the previous criminal proceedings. In previous criminal proceedings authorized criminal procedural subjects, the public prosecutor and the police above all, take the law provided actions aimed at detecting and proving criminal offenses. However, the traditional evidence collection are not effective when it comes to combating organized crime, so that is why it is necessary for state to use modern technological and scientific advances to adequately confront it. So, the subject of this study are special evidentiary actions in the Republic of Serbia, which may be applicable in certain cases, above all, when it comes to organized crime offenses. So, we will first give a brief overview of the concept of organized crime, both in international and in national legal framework of the Republic of Serbia, and then we will analyze the special evidentiary action by the Code of Criminal Procedure of the Republic of Serbia: Secret surveillance of communications, secretly monitoring and recording, simulated activities, computer data search, controlled delivery and the undercover agent. Special attention will be paid to the issue of the distribution of responsibilities in terms of who can do a particular special evidentiary action, analysis of legal standards and conditions for their determination, with special emphasis on their probative value in the criminal proceedings.

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Organized Crime in Action: Trafficking of Human Cells, Tissues and Embryos in Romania

Author(s): Laura Stănilă / Language(s): English Issue: 01/2015

In the context of impetuous debates on bioethical issues arising from biomedical and genetics research lines, the lack or inadequacy of national legislation to scientific reserch in the field of biogenetics facilitates the activity of organized crime. Organised crime detects new sources of income that can be obtained the easy way by harvesting surcharge of human cells, tissues or organs, by trafficking of human embryos, by selling such products to interested persons which can use them at their own will, for medical curative, research or industrial purposes. In Romania there have been developed true recruiting networks of "donors" under the cover of the apparent legal specialized clinics in the country's major cities. Three of them have already been discovered and dismantled by Romanian judicial authorities’s efforts. In this context, close international cooperation is needed in order to enable the identification of the modus operandi and the ramifications of criminal organizations. The Romanian state’s judicial policy adjustment should be complemented by a review of legislative penal policy leading to the adoption of a strict prohobitive legislation regarding the traffic of oocytes and embryos and the medical techniques to provide them.

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Fight Against Organized Crime in Light of Witness Protection

Author(s): Nyitrai Endre / Language(s): Romanian Issue: 01/2015

The most efficient means of the fight against organized crime are witness protection provisions. Witnesses have key importance in eliminating criminal organizations as the court can use their declarations as an evidence. The testimony of the witness can base enforcing investigation, furthermore the criminal impeachment of the perpetrators. The aim of this study is to show the means of witness protection, which allows us to fight against criminal organizations effectively.

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Crime in the United States and its Modern Challenges

Author(s): Magdalena Roibu / Language(s): English Issue: 01/2015

The expansion of international crime, especially organized crime, is a perpetual scourge that affects most of the world states and concerns the international public opinion. Organized crime is the most serious form of criminality that mankind has ever been confronted with, mainly due to its transnational dimensions and seemingly flawless functioning. A debate on organized crime should address the existence of a worrying sociological phenomenon, besides, of course, the legal phenomenon. The present study aims at presenting the most important legal instruments that the U.S. have settled at the level of federal legislation, in order to suppress organized crime, as a possible source of inspiration for European lawmakers. One of the most important U.S. federal laws on organized crime is the Racketeer Influenced and Corrupt Organizations Act (abbreviated as RICO), which provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization. It was enacted as a distinct section of the Organized Crime Control Act of 1970. While its original use in the 1970s was to prosecute the Mafia, as well as other persons who were actively involved in organized crime, its later application has been more widespread. Beginning with 1972, 33 U.S. States adopted statelevel RICO laws in order to be able to prosecute similar criminal conduct. Effective multilateral control of organized crime is achievable through the development of harmonized international legislation and coordination projects, complementary international law enforcement capacity, and similar sanctioning mechanisms, designed to improve the state and private sector crime control capacity worldwide.

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Organized Crime in the Set of Serial Crimes and the Necessity of Crime Analysis

Author(s): László Bói / Language(s): English Issue: 01/2015

Action against organized criminal groups for any investigating authority in states does not mean an easy task. On one hand the distribution of tasks can be challenging, on the other hand, to conspiratorial under hypothecation hierarchical relationship is characterized by the perpetrators of circles. In my study, I would like to raise attention to the series of organized manner and for the importance of crime analysis. In addition to this I would like to clarify the related concepts, analysis methods and techniques and get insight to the needs of sin. Of course I had this discussion topic framework published by limiting itself, which for this reason can not fire the goal of the extensive detail. The offending line in each case is characterized by more or less the degree of organization. The presence of organized crime result in serious damages to the subjective sense of security of the society.

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Brief Considerations on the Human Trafficking and Trafficking Minors Delimitation ‐ Forms of Organized Crime

Author(s): Ruxandra Răducanu / Language(s): English Issue: 01/2015

The forms of organized crime are numerous, and the attempts of states to provide the means necessary to eradicate this phenomenon requires international cooperation of States in developing uniform regulations. The main objective of transnational and local groups involved in such activities is to obtain financial benefits. Trafficking in persons can be a form of organized crime, and its regulation in the Romanian legislation by Law no. 278/2001 and subsequent special part of the 2009 Criminal Code took account of international recommendations and regulations. This article seeks to analyze and capture the changes made by the new Criminal Code in relation to criminal offenses of trafficking in persons, trafficking in minors and their relation to the crime of proxenetism.

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Vested with the Public Prosecutor in Criminal Proceedings at the First Instance Court Pursuant to the Effective Laws of Ukraine

Author(s): Mariia Zhuk / Language(s): English Issue: 01/2015

The present article contains research on legal status of the public prosecutor in criminal proceedings at the first instance court pursuant to the Code of Criminal Procedure of Ukraine. In particular, the author has analysed the scope of fundamental powers vested with the public prosecutor in criminal proceedings at the first instance court, specifically: supporting the charges brought by the public prosecution before the court, changing charges, bringing supplemental charges, initiating proceedings against a legal entity and refusal to support the charges brought by the public prosecution.

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Brief Analysis of the Fine Penalty Settlement in the New Romanian Penal Code

Author(s): Daniel Niţu / Language(s): English Issue: 01/2015

In this study, the author briefly sets out the manner in which the new Romanian Penal Code, in force since 1 February 2014, regulates the institution of the principal penalty of fine. In a constant comparison to the corresponding provisions of the previously Criminal Code it is shown the specific of the fine under the new legislation, which now consists of dayfine institution after the model of some evolved systems of comparative criminal law. By analyzing how the fine will be determined, the author concludes that the new regulation allows a better proportionate sentencing, operating with two elements that individually are determined in concreto: the number of dayfines and, respectively, the amount of a dayfine. Another new element of the Romanian penal law, also inspired from comparative law, consists of the fine penalty accompanying imprisonment, established subsequently the identification that the agent has acted to obtain a patrimony benefit. The study exposes the ratio that grounded the new settlement and checks how the sanction is established and executed when the initial penalty is imprisonment or a fine. Further on, the analysis focuses on the hypothesis of replacing the fine with imprisonment as a result of bad faith of the sentenced person who does not pay for it, although he has available financial resources. Welcoming the newly introduced provisions in the Code, the author draws the attention of the reader on unresolved situations under the previous legislation, when the convicted person is not of bad faith, but does not pay the fine because it is not affordable. Currently, in such a case, the fine will be replaced by a number of days of community service work, subject to the convict’s agreement in this respect. Otherwise, the fine will be replaced with imprisonment, just like in the case of bad faith. Finally, one last section, tangent to the topic of the fine penalty, addresses the replacement of unpaid community service with imprisonment for committing a new crime or failure to perform work in conditions set by the court.

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Facing Organized Crime ‐ between the Need for Security and the Protection of the Human Rights

Author(s): Călin Berar / Language(s): English Issue: 01/2015

The organized crime is nowadays one of the greatest threats to public safety both at the European and national level. Often, it manifests itself by committing the most serious crimes such as those against the European Union's financial interests, money laundering, trafficking of prohibited substances, trafficking of persons etc. The gravity of those acts requires a prompt response both to prevent and to combat such acts and to investigate or punish the guilty persons. This implies the adoption of specific measures, but they should not infringe the principle of proportionality in restriction of the fundamental rights. The EU’s legislation, within Directive 2006/24 / EC and the Romanian legislation, within Law 82/2012 and the draftlaw on cyber security, contain, in the name of public safety considerations, a lot of provisions which imply unjustified restrictions of the fundamental rights. The analysis that will be done in this study will focus on the identification of root causes, so that in the end to be able to propose solutions. Therefore, I consider that, in order to avoid such situations it is necessary for the states to play an active role within constitutional limits, to identify the main features of the organized crime, in order to distinguish this type of crime to the other ones less dangerous, to use at a terminological level in laws phrases and expressions clearly, that leaves no room for interpretation, and to focus the attention towards the protection of the fundamental rights and freedoms and not on developing sophisticated means of preventing, investigating and punishing such acts.

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Organized Crime and Similar Terminological Concepts. A Problem in Defining the Notion of Organized crime

Author(s): Darian Rakitovan,Raluka Colojoară,Ligia Valentina Mirişan / Language(s): English Issue: 01/2015

One of the fundamental problems in defining the notion of organized crime is, that next to the public opinion, not even a part of the experts, do not make, in a sufficient way, a difference between the essence and the content of organized crime and to this similar phenomenon by taking in account the way these manifest or their shared elements. As such, confusion is being made between the organized crime notion and the terms of transnational organized crime, international crimes, “white collar” crimes, professional crimes, crimes of abuse of power, political crimes, etc. Even if it could be said that, these terms are in a way similar and that they have some common elements, we are referring to specific phenomenon and terms, that should not be confused. The present study will present these criminogenic concepts and the resemblances and differences between these and the organized crime phenomena.

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Concept and Typical Forms of Economic Crime

Author(s): László Kőhalmi,Kitti Mezei / Language(s): English Issue: 02/2015

There are different concepts of economic crime by each sciences and it shows resemblances with other types of crimes. The colloquial definition embraces every crimes, infringements, unethical attitudes, which results in gaining unlawful economic benefits by the economic actors. The Criminal Code gives a guide for the criminal law’s definition. In criminology it has a wider range than in the criminal law. The vernacular often use “whitecollar crime” as a synonym for it. Distinguishing economic crime from crime against property is extremely hard since both types of crime violate the financial relations.

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Criminal Law Protection of the Stock Market in Hungary

Author(s): László Gál / Language(s): English Issue: 02/2015

The Criminal Law Protection of the Stock Market in Hungary belongs to the field of economic criminal law. Economic criminal law is the sum total of legal regulations within and outside criminal law that define which of the actions threatening the economic order (that is, the orderly operation of the economy) are considered criminal acts, how the perpetrators of these are to be held responsible, what sanctions can be applied against them and how.

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All Eyes on Market: Abuse, Misuse and Insider Dealing

Author(s): Magdalena Roibu / Language(s): English Issue: 02/2015

The meeting point between criminal law and economics gives rise to a number of challenging issues that the following study aims to explore. One of such issues is represented by the offenses related to market abuse. Under the EU law definition (Directive 2003/6/CE on insider dealing and market manipulation1, or market abuse) market abuse may arise in circumstances where financial investors have been unreasonably disadvantaged, directly or indirectly, by others who: (a) have used information which is not publicly available (insider dealing); (b) have distorted the pricesetting mechanism of financial instruments; (c) have disseminated false or misleading information. Market abuse can thus be divided into two main aspects: (1) insider dealing, where a person who has information not available to other investors makes use of that information for personal gain; (2) market manipulation, where a person knowingly gives out false or misleading information in order to influence the price of a share for personal gain. The present study aims at analyzing the offences related to capital markets, first from the perspective of the European law, subsequently from the point of view of national legislation (still imprecise), which is quite a mimetic transcript of the former. The analysis will be assorted with examples and comments of the most relevant caselaw of the European and national courts. Fortunately, the former have come up with solutions that the Romanian judicial practice lacks or completely ignores.

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Money Laundering in the legal instruments of the European Union and Council of Europe

Author(s): Vid Jakulin / Language(s): English Issue: 02/2015

Money laundering is ranged in the group of international economic crime law as a branch or discipline of international criminal law. Although it is a relatively new notion which has not been yet generally acknowledged as a discipline of international criminal law, it could be nevertheless defined with regard to its subject in narrow and broader sense. Legal instruments of the European Union and the Council of Europe regulate quite precisely measures for the prevention, detection and prosecution of money laundering. It is important that the mentioned legal acts require from the states, which are bound by these acts, to regulate money laundering in domestic legislation in accordance with definitions of money laundering contained in these acts. That means that the regulation of money laundering in national legislations is very similar, what facilitates the international cooperation, which is for the purpose of prevention and prosecution of money laundering offences particularly important.

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Combating Money and Property Laundering in Lithuania: Fundamental issues of Economic Crime Prevention

Author(s): Raimundas Jurka / Language(s): English Issue: 02/2015

Money and property laundering mechanisms and prevention issues are analyzed in this paper. Author is taking into account general situation on prevention of money and property laundering in Lithuania, institutional ant measures’ framework for this prevention. First of all, paper is focusing on general understanding what should be understood as money laundering per se as procedure and illegal action. This question is raised in common meaning, including worldwide understanding of money laundering phenomenon. Secondly, it is emphasizing what are the measures that must be taken to combat those illegal actions. This question also takes together the institutional framework for prevention and investigation in Lithuania. Thirdly, author is presenting what are the basic keys of money and property laundering in Lithuania and how preconditions of laundering are restricted or eliminated. Final conclusions are made what steps have been made and what steps are going to be implemented.

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Place of the Crime of Money Laundering within the Criminal Law of Serbia

Author(s): Zoran Pavlović,Aleksandar Bošković / Language(s): English Issue: 02/2015

Determining the place of the criminal offense of money laundering within the criminal legislation of Serbia, bearing in mind all the specifics of country’s legal system, is not yet completely fulfilled. Specifics of economic transition, political reconstruction and European integration processes that characterize the beginning of XXI century in Serbia brought new kinds of legal incriminations and different visions of traditional values (that determine the roots of criminal code context within its boundaries), where government reaction to the prohibited behavior is not at all simple. Protection of property, businesses, financial stability, official duties (State given employment within the official institutions), are just some of the values protected by the criminal offense of money laundering, either in criminal law code or a separate specific one. By refining the object of protection and its factical place in the law, with the amendment of incrimination it would come up with further possibilities for better results in legal protection.

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Money Laundering and Organised Crime

Author(s): Endre Nyitrai / Language(s): English Issue: 02/2015

The study shall introduce the organisations participating in the combat against money laundering, the connections between money laundering and organised crime, furthermore, the elements of money laundering. It also introduces the activities of law enforcement authorities and particular measures of protection of key importance. It further states that appropriate legislative backgrounds are not efficient measures, but sufficient experience and professional conduct is required.

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