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The specific role and duties of the public prosecution service in representing state interests and defending human rights requires careful balancing its autonomy and/or competences stipulated by constitution and laws. Significant influence with this regard have international standards arising from the Venice Commission practice as well as the Committee of Ministries recommendations. The specific context where this process of balancing become more important and more visible exists within accession negotiations for the membership in the EU but also in the EU itself due to variety of national legal systems among member states and candidate countries and their obligation to adopt EU standards and ensure legal guaranties on prosecutorial autonomy in exercising its competencies. The importance and nature of these competences for the functioning of state but also for the wide range of fundamental rights raising an issue of the role that constitutional provisions should have in regulation of the public prosecution service position and jurisdiction in certain legal system, especially from the angle of its relationship with executive and legislative power as well as with judicial power in light of the checks and balances principle. Abovementioned issues the authors analysing from the angle of recent challenges related to constitutional amendments in Serbia within accession negotiations with EU.
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The role of the prosecution is one of the features of the new adversarial system of criminal procedure and this role is a particularly changed role. The prosecution is expected to be the managing body during the investigative procedure in relation to other bodies with investigative powers, and during the procedure to be an active party whose main obligation is to prove the guilt. The Prosecutor's Office has a burden of proving guilt and an obligation to find, propose and produce evidence that the defendant's guilt is proven beyond any reasonable doubt. The public prosecutor's office must prove every element of the offense beyond a reasonable doubt to which the defendant charges him. The evidence beyond reasonable doubt does not imply proof beyond a reasonable doubt. Possible suspicions or suspicions based solely on speculation are not reasonable suspicions. Reasonable doubt is based on reason and common sense. This may arise from the evidence, the lack of evidence or the nature of the evidence. From the point of view of the professional ethics of the prosecutors, it is especially important that they present the case in order to help the court to reach a fair verdict, and not to present the case to a conviction. The domestic Criminal procedure law (Criminal Procedure Code of the Republic of Macedonia-CPL) goes a step further by introducing the standard, in Article 403, that the prosecution shall prove the guilt beyond reasonable doubt, without giving any further definition. Unfortunately, the domestic CPL does not offer different terminologies for these two types of suspicion. The Law uses the term “suspicion” when it refers to the required level of suspicion that a person has committed the crime so that certain investigative measures, restrictions or charges can be undertaken or pressed against him/her, it also refers to the application of the principle of in dubio pro reo and the standard that the guilt shall be proven beyond reasonable doubt.
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As an expression of an urgent need to break-up with the past, one can distinguish legal violence, which was committed after the end of World War II in Democratic Federal Yugoslavia. The new communist authorities convicted many respectable citizens by conducting numerous court trials, accusing them of supporting the occupier, after which they confiscated their entire property. In order for the totalitarian past to be legally defeated, it was necessary to create a process by which the historical injustice could be corrected, not only through personal rehabilitation, but also through the restitution of the confiscated property. Fifty years later, when reforms and democratisation of political processes began, Republic of Serbia also faced the consequences of selective and orchestrated justice. The process of rehabilitation and restitution was an attempt, mainly successful, to eliminate the anomalies in the field of final court decisions and their effect. It can be said that the results are significant, but at the same time insufficient. Simple analyses of archived data show that in the period from 1945 to 1952 many more sentences were passed pursuant to the applicable laws in comparison with the number of submitted requests for rehabilitation. The rehabilitation proceedings have shown that those laws were used as a foundation for taking revenge on the previous regimes. The Public Prosecutor’s office in the Republic of Serbia has made a great contribution to establishing legal certainty in this field. To the already wide scope of jurisdictions of the Public Prosecutor’s office, the 2011 Rehabilitation Act added a new obligation: to represent the Republic of Serbia in cases related to rehabilitation. The key question, which is likely to remain unanswered, is whether the proceedings that involved Public Prosecutors rehabilitated those convicted for the most serious criminal acts, who de facto committed those crimes.
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Managerial role of the public prosecutor in Serbian pre-investigation proceedings is one of the main characteristics of current Criminal Procedure Code. Passing the Criminal Procedure Code from 2011 the investigation has been transferred to the public prosecutor, who is in charge not only for the investigation, but has managerial role in the pre-investigation proceedings. He has become dominus litis of the whole preliminary proceedings. Therefore is important to perceive his powers and relationship with the police in the pre-investigation proceedings. The topic of this paper is to present legal solutions regarding the pre-investigation procedure, main figures of this stage, the police and the public prosecutor, their relationship and essence of the managerial role of the public prosecutor. Also, some practical aspects in execution of leadership role are explained and critically overviewed the problems that limit the realization of the managerial role of the public prosecutor.
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The main source for criminal procedure is now the Act XIX of 1998 on Criminal Proceedings (CPC) which due to numerous modifications could take place on 1st July, 2003. The new Code on Criminal Proceedings is the Act XC of 2017 (new CPC), which will be enter into force on 1st July 2018. In this new Criminal Procedure Code in the sixth part will be included the rules of secret evidences under the name of “Unveiled devices”. The part sixth contains eight chapters (chapters number XXXV-XLII.) and 37 sections (sections number 214-260).
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The European Union for year’s struggles with the low percentage of the verdict in fraud cases. The fraudsters are usually not convicted due to different problems in the procedures on both national and central level. The agencies such as Europol, Eurojust, and OLAF are coping with this problem but cannot directly get involved in solving it. Due to the obvious reasons, the European Commission is pushing towards the creation of a new body the European Public Prosecutor’s Office that will be able directly to prosecute the fraud cases without the consent of the national legislative authorities. This, of course, raises many cons especially in the issue of subsidiarity.
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This educational work is the essay of authors from various fields of theory and practice in Bosnia and Herzegovina, trying to provide users with a theoretical practical institute regarding the role of the Prosecutor as a state body and a party in criminal proceedings that could help legal practitioners and practitioners in their everyday work. The work that you will have in front of you is part of a series of works that have already been elaborated thanks to generous theoreticians and practitioners who support "Journal" of Eastern-European Criminal Law Timisoara. Within this scientific project, the themes covering the key topics of criminal substantive and procedural law, with emphasis on procedural law, were taken into account. The proposal for this topic was given by the Journal Committee for the Education of Judges and Prosecutors of the Republic of Romania, as now most important, given the implementation problems that have emerged with recent legal reforms in these fields. Users of this work and other works of the same and similar topics are invited to contribute to the improvement of this Module through constructive critical feedback, since it is the author's intention to continuously update and improve this educational material.
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Environmental criminal offences include illegal behaviours against the environment and its integral parts: soil, air, water, flora and fauna. Their consequences are devastating and long-lasting, especially if committed by legal entities, particularly by powerful multinational corporations. This type of crime, referred to as corporate environmental crime or green-collar crime results in criminal liability of corporations. However, its organised and often trans-national character, its link with corruption and other types of crime as well as high costs of expert findings often cause numerous issues and challenges regarding its discovering and proving. Having in mind the important role of the public prosecutor in collecting evidence according to current Criminal Procedure Code of the Republic of Serbia, the author analyses the characteristics of environmental corporate crime and the difficulties related to its discovering and proving. Finally, the author suggests that all subjects involved with criminal proceedings, including the public prosecutor, should be more environmentally conscious and take a more active part in the prosecution of the perpetrators of corporate environmental crime.
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The reform of the criminal procedural legislation in the Republic of Serbia was commenced in 2001, by adopting the Criminal Procedure Code used until the current CPC entered into force. Through this reform, the legislator wanted to create a normative basis for a more efficient criminal procedure by incorporating simplified forms and a different concept of processing criminal matters. However, this process did not go as smoothly. During all these years, the amendments to the procedural norms happened very frequently, which is not, and should not be characteristic for regulations of this kind. The extent of wandering in the process of finding the solution in this matter can be best exemplified by the fact that during the year 2006, a completely new Criminal Procedure Code has been made but has never been applied. Apart from that, the current CPC was adopted in September of 2011, and it initially started to be applied as of January 15, 2012 in the procedures for criminal acts of organized crime and war crimes conducted before special departments of competent court, while in other procedures conducted for “classic” criminal offenses, it was applied only as of October 1, 2013, after several consecutive postponements and amendments. As a result of all this, according to the novelties introduced while approaching the regulation of the problem of criminal procedure, the current CPC has made a fundamental break away from Serbian criminal procedural tradition. Among the numerous radical novelties introduced into the criminal procedure legislature of Serbia, what stands out is that the investigation, as one of the phases of criminal procedure, is exempt from the supervision of the court and is placed in the competency of the public prosecution. The essence of the changes in the investigation phase according to the concept of the current CPC, whether new legislative solutions are better than those before, whether they are in opposition to the Constitution of the Republic of Serbia or other basic principles of criminal procedure, are all only some of the issues we will attempt to address in this paper.
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Criminal sentencing is one of the most challenging fields in criminal law and also a subject that judges frequently find to be their least favorite. When imposing a sentence to a perpetrator who has been found guilty, a judge has to find the proper balance between two diametrically opposed tendencies. On one side, there is the tendency towards justified sanctions, which serve to fulfill the purpose of general deterrence and a sense of justice. On the other side, there is the unquestionable need to adjust the punishment to the circumstances of the case and the perpetrator. Only criminal law that considers both the interest of the general public and the victim, but also the circumstances of the case, is able to serve as a true keeper of state order and the peace. This paper contributes to debates on disparity in sentencing. The authors first explain the theoretical basis of sentencing and the purpose of punishment in modern criminal law. In the second part, they discuss the problem of disparity and equality in sentencing from the comparative perspective of four different legal systems: German, Croatian, Serbian, and that of the United States. In the final part, the authors provide an explanation on their standpoint regarding this issue.
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Traffic accidents occur around the world on a daily basis, the situation being the same in the Republic of Serbia. In most cases, the behavior in drivers in traffic and their omissions are the causes of traffic accidents. In this paper, we presented the criminal offense of unsafe road traffic control, and, although it exists in the Criminal Code provisions, it rarely occurs in practice, and even rarer are criminal proceedings against traffic controllers due to omissions in road traffic control, especially in terms of road traffic signalization. We focused on the role of the public prosecutor in carrying out the investigation of traffic accidents, and the need to recognize in these procedures the omissions of not only the drivers but also other traffic participants, as well as the omissions of the traffic controllers, so as to accordingly initiate and conduct criminal proceedings against traffic controllers.
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In the focus of this paper is the analysis of the relationship between the primary and auxiliary subject of the criminal procedure – prosecutor and expert witnesses in context of the B&H’s criminal procedural laws with aim of presentation of limitations of the prosecutor’s evaluation of facts that are obtained through application of scientific and expert knowledge. Furthermore, authors explore the perception of the forensic expertise in theory and judicial practice as a possible deviation from the fundamental legal principle of free evaluation of evidence, resulting with establishment of the forensic expertise as evidence of utmost evidentiary value and strength that is rarely disregarded by the prosecutor and the court.
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At European level, since 1976 – the year of the first draft for a Treaty amending the founding treaties in this respect –, till now – when Directive (EU) 2017/1371 of the European Parliament and of the Council on the fight against fraud to the Union's financial interests by means of criminal law was adopted (after five years of negotiations) –, the legislative process aimed at protecting the European Union financial interests is a long and difficult one. In Romania, distinct criminalization of fraud affecting the European Union's financial interests, in Articles 181-183 of Law no 78/2000, according to the definition of criminal offences from Article 1 of the “old” Convention on the protection of the European Communities' financial interests, makes the relevant national legislation comply with the minimum requirements of the above mentioned Directive. Attempting to harmonize in this area, however, has multiple implications for national legislation and, at the same time, for judicial practice in criminal matters.
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The main characteristics of complicity are in the fact that each of accomplices is shown as a perpetrator of a criminal offense, while the criminal offense itself is their joint act. It means that every person that participate in undertaking of activities that commit a criminal offense, in order to be an accomplice, must possess all those features that are required according to the law for a perpetrator of that criminal offense. For existence of complicity it is necessary, beside the presence of several persons, to exist an objective and subjective relation between participants in perpetration of the criminal offense in order to classify that offense as a joint act. The objective relation means that every accomplice undertakes some activity, which commits a criminal offense. Without undertaking of the activity there is no perpetration so that there is no complicity either because it considers attainment of the activity by all participants. In addition, it is not necessarily that all the accomplices participate from the very beginning in accomplishing the act of perpetration. In such a way, complicity will exist even when some of the accomplices undertake initial activities and others continue them but under the condition that there is a conscience about joint activity. It is so called successive complicity. In the same way, it is not necessary that all of them participate in perpetration of all activities from which the act of perpetration is consisted of. The complicity exists when a single person undertakes a single activity and the other one undertake some other activity. Accomplices can divide activities in advance but they also can join in perpetration without any previous agreements. In this paper the author has analyzed notion, characteristics and forms of complicity in Serbian criminal law from 2005.
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The paper provides a historical introduction to the sources of probabilistic thinking including Bayesian Methods in forensic science. Starting form Aristotle and through the ages of Bayes the key figure of founding the contemporary probabilistic methodology used everywhere in different sciences. In forensic science substantial for DNA and fingerprint analysis. The Bayesian Networks will be important to the evidence evaluation and taken into consideration as a tool for the future forensic scientists. Some samples of miscarriage of justice caused by improper usage of probabilistic approach are given providing variety of viewpoints to the readers.
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Facing a pilot decision of ECHR on prison conditions, decision following countless other previous decisions by which the Romanian state was convicted for violating art. 3 of European Convention of Human Right, Romania needs to change and adapt its penal post-crime policy in order to meet European standards in the field of detention and other deprivation of liberty measures. The Case of Dorneanu vs. Romania by which the Romanian state literally sentenced to a undignified death a terminal-ill inmate was the turning point for both the scholars and the practitioners pointing out the gaps and malfunctions of the Romanian detention system. Something has to be done, and right away!
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The state is the biggest employer and, as such, is concerned with the dwelling situation of its employees and enacts adequate motivational packages in order to guarantee that its public servants use all their available energy to solve the problems of the citizens. As such, the housing situation of policemen, military personnel and public servants in the Romanian Ministry of Internal Affairs gains new meanings and its study both in theory and in practice a significant new importance.
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Before the amendment of the Act on cemeteries and burial of the dead, it was difficult to bury stillborn children due to unclear legal status resulting from irrelevant provisions regarding medical and civil status records. This state of affairs made the burial of stillborn children before 22nd week of pregnancy difficult. The purpose of the article is a historical and dogmatic analysis of the administrative regulation of the burial of unborn children, hopefully facilitating the resolution of the issue of the legal status of the nasciturus in terms of the subjective and human approach in the context of the right to the grave. The article helps formulate de lege ferenda postulates as regards changing the concepts surrounding the death of the unborn child. All this to implement the directive of the cohesive Polish legal system. The comprehensive analysis will provide the basis for proposing changes in the legal status of the nasciturus by introducing the definition of a conceived child, and thus protecting the stillborn child and institutions protecting his/her rights (e.g. institution of the nasciturus curator established by Article 182 of the Polish Family and Guardianship Code).
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