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Zdanie odrębne w postępowaniu karnym

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Bojańczyk A.

Forum Prawnicze

2012

issue 6 (14)

3-13

The paper discusses dissenting opinions in criminal procedure. It starts by pointing out that inevitably all judicial systems have to deal with voting in decisionmaking by courts composed of multiple judges. Two model solutions are feasible here: either adopting a system based on an absolute unanimity (which generally would always require a retrial in case the court splits on any issue) or a system that accepts natural divisions among judges that sit on the bench and hear and decide criminal cases together and therefore rests on a majority principle. A dissent is a vote cast by any judge sitting on the bench against the majority votes on any issue being decided by the court, be it legal or factual. However, in practice (both in procedural provisions and in legal writing) only those dissenting votes (opinions) that can be or are made public are referred to as dissents. The paper proceeds on to analyze the various legal functions of such dissenting votes (opinions) in criminal procedure. It then presents a detailed and critical historical overview of various regulations of a dissenting vote or opinion adopted by the legislator in Poland over a period of eighty years, beginning with the first Polish Code of Criminal Procedure (1928) up to the present Code of Criminal Procedure of 1997. It closes with a proposal of possible amendments to the regulations being currently in force.

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1 Bojańczyk A.

1 2012

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Zdanie odrębne w postępowaniu karnym