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1

Aktywność sądu i przewodniczącego składu orzekającego w postępowaniu przed sądem karnym I instancji

100%

Trybuchowska E.

Opolskie Studia Administracyjno-Prawne

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2011

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vol. IX

93-112

EN

Equipping the court with the possibility of an active conduct is a derivative of the standpoint assuming that the penal procedure – as an institution of the public law – justifies the duty to take into account in it not only the private interest, but – primarily – interests of the administration of justice and society. The activity of the court manifests itself through managing a court hearing, the initiative in the sphere of dealing with evidence, running proceedings to take evidence, including examination. The manner of presiding over a hearing, like the remaining elements of the court’s activity, should – however – guarantee a sufficient scope for initiative of the parties and offer them a full possibility to express their own standpoint in the trial. Otherwise, it can become an element limiting the contradictoriness of the court hearing. The court of law and the president of the adjudication board safeguard that a dispute is run on the basis of legal regulations. The legislator imposes a special duty on the president of the adjudication board to see to it that the hearing is run in compliance with the regulations of proceedings and that the goal it serves is reached. The court, being one of the subjects in criminal proceedings, as regards the scope of establishing the factual state of the case appears both in the character in which its position stands close to those of the other subjects and in yet another character that is typical of itself exclusively: it is the subject that conducts proceedings to take evidence and then evaluates the results of the proceedings Thus, it depends on the degree of court’s activity in this respect whether, in a given case, it means a contentious procedure in its classic framework or an investigative proceeding with limited contradictoriness. In the case of effective and active role of the prosecution and the defence, an exhaustive carrying out of proceedings to take evidence, there is little space left for the court’s activity within the sphere of proceeding to take evidence. In consequence of the latter, the court will be able to concentrate on the proper evaluation and settling of the case. A reverse situation can result in ‘pushing’ the court into one direction, which – in compliance with the principles in force regarding penal procedure – should not happen. The regulations of the code of penal procedure make a contradictory dispute possible, they only have to be used in an appropriate way.

2

Prawda materialna w procesie karnym w perspektuwie projektowanych zmian kodeksu postępowania karnego

100%

Przygucki P., Uniwersytet Łódzki W. P. i. A.

Acta Universitatis Lodziensis. Folia Iuridica

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2014

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vol. 73

EN

The aim of the article is to present how the material truth principle will change according to an amendment to the Polish Criminal Procedure Code, which will come into force on 1st January 2015. The amendment reduces an inquisitorial role that court plays under current regulations by transfering a duty of introducing evidence to litigators. In this article there is an attempt to present possible dangers connected with such regulations. Specifically, the major stress was put onto answering the question how the public prosecution would tackle that issue and how it would influence the material truth principle. The author attempted to show that a dispute about making criminal procedure more contradictorial is in fact a conflict between basic principles of criminal trial, which is the material truth priciple. and effectiveness directive.

3

Konsensualny charakter procedury jako konstytutywna cecha ADR

100%

Duszka-Jakimko H., Haczkowska M.

Przegląd Prawa i Administracji

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2013

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vol. 94

57 - 77

EN

Consensual importance of the law is an increasingly emerging issue in contemporary reflection on law. Alternative legal dispute resolution (with Alternative Dispute Resolution — ADR), which includes the basic methods of negotiation, mediation, conciliation and arbitration, is one of the manifestations of this thought. This article, highlighting the various methods of ADR, shows the importance of the consensual nature of the procedure as one of the constitutive conditions of the agreement which was the basis for legitimizing solutions in a legal dispute within the ADR. The article takes into account the Polish legal system, extracts and presents different criteria, such as subjective criteria, jurisdiction, the degree of formalization of procedures, grounds for jurisdiction, of the power and coercion, making references, comparatively, to the court procedures and ADR procedures. The wording of the above criteria allows to determine the ADR procedures as consensual procedures, based on the agreement of free, independent entities, as well as on certain values and conditioned by a legal culture.

4

Judicial Control in the Context of the Concept of Legal Policy of the Republic of Kazakhstan

100%

Kuanaliyeva G.

Internal Security

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2013

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vol. 5(1)

107-112

EN

This article is devoted to judicial control in criminal legal proceedings of the Republic of Kazakhstan in the light of the new Concept of legal policy set till 2020. In the article, the general characteristics and concept of judicial control, and also its signs and types are considered. Different views of scientists are analyzed. Foreign experience in the application of judicial control is related. The author states their point of view on this problem and gives a definition of the concept of judicial control. The code of criminal procedure of the Republic of Kazakhstan (RK Criminal Procedure Code) does not have a consolidated concept of judicial control. In the article, the author suggests making changes and additions to the existing Code of criminal procedure of the Republic of Kazakhstan through a definition of judicial control. The decree of the President of the Republic of Kazakhstan of August 24, 2009 No. 858, approved the Concept of legal policy of the Republic for the period from 2010 to 2020. The new Concept of legal policy of the Republic of Kazakhstan, defines proposals for the development of the national legal system of the country in the following decade. The concept of legal policy includes the institution of judicial control. Since Kazakhstan gained independence, a set of laws was adopted including the rights directed on providing, freedoms and legitimate interests of citizens. Certainly, in any country, however democratic it is, there are problems with human rights. But that Kazakhstan strongly intends to guarantee all Republic of Kazakhstan proclaimed in the Constitution the rights and freedoms of the citizens is obvious. Our country seeks the creation of a constitutional state, and tries to provide a guarantee from a certain arbitrariness in the activity of the competent government bodies and officials. In the Concept of legal policy of the Republic of Kazakhstan it is specified: “…priority of development of the criminal procedure right there is a further consecutive realization of the fundamental principles of the criminal legal proceedings directed on protection of the rights and freedoms of the person”. And in judicial control is also such a guarantee.

5

Interrogation of a Child as a Witness in the Criminal Procedure – Selected Legal and Psychological Aspects

100%

Smolarek-Kędziorek D.

Krytyka Prawa. Niezależne studia nad prawem

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2015

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vol. 7

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issue 1

445-463

EN

The article discusses the essential problems related to the participation of a child as a witness in criminal proceedings. The author explains the key issue – who is a child in the light of the Polish criminal procedure regulations. In this context, also the legal and partly psychological aspects are presented, associated with determining the age limit for a child – the witness and the impact of age and ongoing developmental processes on child’s ability to testify.

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Mediacja jako sposób rozwiązywania konfl iktów (nowe ujęcie instytucji mediacji w ustawie z 27 września 2013 r. o zmianie ustawy Kodeks postępowania karnego oraz niektórych innych ustaw)

100%

Cimarno A.

Przegląd Prawniczy Europejskiego Stowarzyszenia Studentów Prawa ELSA Poland

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2014

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issue 2

135-146

EN

Mediation is the main form of ADR (Alternative Dispute Resolution). Mediation involves a type of structured meeting with the disputing parties and an independent (neutral) third party who works to help them reach an agreement between themselves. The role of the third party is to facilitate negotiation and agreement between the disputing parties, but the mediator does not decide who is right or wrong or issue a decision. This kind of ADR is used in many jurisdictions to resolve different types of dispute in informal and confi dential way, such as those involving criminal-related issues. The following paper treats the subject of Polish Criminal Procedure Act of September 27, 2013 and its changes which will be incorporated to the Polish law system. It presents new solutions resulting in improving the effi cacy of mediation as a criminal concept..

7

Extended Confiscation of a Material Benefit in Polish Criminal Law

100%

Szczucki K.

Studia Iuridica

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2017

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vol. 71

249-264

EN

On 23 March 2017 the Sejm (the lower chamber of the Polish Parliament) passed the Act on Amending the Criminal Code and Numerous Other Acts23. In the reasons appended to the draft bill it was asserted that the law intended “to introduce into Polish substantive, executive and procedural criminal law amendments with a view to enhancing the effectiveness of mechanisms employed to deprive offenders of the benefits they accrued as a result of committing a crime”. This paper sets out to present a construction of Article 45 of the Polish Criminal Code as amended and to assess the correctness of the amendment, particularly in the context of the Polish Constitution and the Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union.

8

Russian Model of the Cooperation Agreement with the Accused

100%

Alexandrov A.

Internal Security

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2012

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vol. 4(2)

215-222

EN

The article analyzes the institution of pretrial agreement about cooperation within the Russian criminal procedural law which is in use since 2009. It establishes the contractual nature of this institution and traces the similarities and differences of the Russian varieties of cooperation agreements with foreign counterparts, especially with the US system of “Plea Bargaining”.When it comes to pre-trial cooperation agreement the Russian is identical to foreign counterparts in the following e. g.: the procedure can be applied to almost all categories of criminal cases, the accused must assist the investigators and prosecutors in the detection and investigation of crimes committed both by himself and other defendants or persons, the criminal case is not examined on its merits in court, if the results of cooperation are recognized by the prosecutor and the court, the consent of the victim to conclude a pre-trial agreement between the prosecutor and the defense is not required, the subject of the agreement may be an obligation of the state to take measures to ensure the security of the person who has entered into a pre-trial agreement for cooperation and the exclusive role of the prosecutor in signing the pre-trial cooperation agreement with the defendant underlines the primacy of prosecutor’s authorities in the pre-trial investigation. The analysis is conducted in the context of the latest clarifications provided by the Plenum of the Supreme Court of Russia on the understanding and application of the rules governing the formation of the pre trial cooperation agreement.

9

Some Peculiarities of Pretrial Agreement on Cooperation with a Person, who Committed a Socially Dangerous Act in a State of Irresponsibility

100%

Semyonov S.

Internal Security

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2013

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vol. 5(2)

163-170

EN

The 2001 Criminal Procedure Code of the Russian Federation continues to undergo fundamental adjustments. Ensuringthe aim of criminal proceedings for the protection of the rights and legitimate interests of persons affected by a crime, while alsopreventing the prosecution of suspects and accused the legislator seeks new forms of realization of this purpose. The legislatorcontinues to search for new ways in this direction and June 29, 2009 another federal law № 141-FZ was adopted which amendedthe Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation, in accordance withwhich section X criminal Procedure Code of the Russian Federation was supplemented with a new institution — the “Specialprocedure for making a judgment at the conclusion of pretrial cooperation agreement” (Section 40.1). In accordance with p. 61art. 5 CCP RF pretrial cooperation agreement is an agreement between the prosecution and defense, wherein the parties agree onthe liability provisions of the suspect or the accused, depending on his actions after a criminal case or indictment. Given that a newspecial procedure is based on the conclusion of cooperation agreement at the preliminary investigation between the prosecutionand defense, undoubtedly, primarily relevance is definition of the range of subjects participating in the agreement, the subjectof the agreement, legal obligations arising between the parties and liability in connection with the conclusion of the agreement,the author, stops on one of the emerging issues to justify their own position.

10

Legal and Psychological Aspects of Non-custodial Penalties for Young Offenders in the Republic of Belarus

100%

Shabanov V.

Internal Security

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2011

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vol. 3(1)

247-253

EN

In this paper the author presented problems of execution of punishments of juvenile in the Republic of Belarus. A priority for the state and its institutions is to ensure human values, respect for human rights and freedoms of citizens. According to the author, referring to the views of other scholars, the punishment should be a measure of education, the main purpose of which should be an intrinsic transformation of the criminal into a good person and a positive member of society.Currently, the Belarusian legislation a lot of attention is paid to the regulation of the prescription and execution of punishments not including isolation of juveniles from society. The Criminal Code of the Republic of Belarus provides for criminal prosecution of persons who committed crimes under the age of 18 years and the appointment of certain kinds of punishment in the form of a fine, arrest, restriction of liberty, detention, etc. The author stresses that the current penalty of imprisonment in the juvenile justice has a positive tendency to decrease its use. It is believed that the positive nature of criminal sanctions not involving deprivation of liberty lies in their social orientation. The convicted person shall remain in society and should establish a positive social relationship.The article presents also forms of execution of punishments and authorities, whose responsibility is the enforcement of sentences.The author gives examples of international legal regulation in this area, for example, articles of the International Covenant on Civil and Political Rights, adopted by the UN General Assembly. The conclusion is that the process of reforming the penitentiary system in Belarus is aimed not only at humanization of execution of punishments, but also at change in attitudes in society to penal policy.

11

The mandatory presence of the Public Prosecutor’s Office at the hearing of the criminal investigation in face of the new law of the anticrime package and the need for revision of brazilian jurisprudence – prohibition of ex officio production of evidence by the magistrate

100%

Maior de Almeida R. S., da Silva M. A.

Studia Prawnicze: rozprawy i materiały

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2022

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vol. (30)

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issue 1

141-148

EN

Brazil has been going through a great change in its Legislative scenario, bringing several incorporations in the fields of law where the validity of Law n. Law no. 13,964/19 brought changes to the Penal Code, Code of Criminal Procedure and Criminal Execution Law. The Brazilian Criminal Procedure is governed by the Accusatory System and, through this article, we sought to better analyze an application of the aforementioned Law as a way to ratify the system adopted in the Brazilian criminal procedure, the accusatory, as well as to bring the view of the need for readjustment, by the Brazilian courts, with regard to the production of evidence by the Magistrate without the participation of the representative of the Public Ministry in the criminal instruction hearings, thus corroborating the understanding that the participation of the Members of the Public Ministry in the hearings is essential. This systematic study sought a brief improvement in the systems that govern criminal proceedings, as well as focusing on the application of the sources of Law within criminal proceedings, with the Law being the immediate source and, as such, it should take precedence over the sources secondary, such as jurisprudence, for example, make it clear that the Public Prosecutor’s Office is an essential body to the provision of jurisdiction, acting in a plicit manner, that is, acting not only as an Accuser in Criminal Actions, but also as an inspector of the body of law in any action that intervenes, including public.

12

Conditions and Requirements of Polygraph Examination

100%

Budaházi Á.

European Polygraph

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2012

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vol. 6

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issue 3(21)

161-180

13

Wykonywanie uprawnień przedsiębiorcy jako pokrzywdzonego w procesie karnym

89%

Prelińska K.

Adam Mickiewicz University Law Review

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2016

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vol. 6

247-259

EN

The author analyzes the amendment of art. 49 of the Code of Criminal Procedure and presents several aspects of rights granted by the Code of Criminal Procedure to the entrepreneur. The article contains a review of previous problematic provisions of the CCP and describes the new course of reform, which granted the status of aggrieved party to state institutions and local government institutions. The author also emphasizes the role of delivery documents to entrepreneurs as they participate in criminal procedures as an aggrieved party. According to the new art. 304b CCP, written notice of the offense determines not only the elements of the offense but also specifies the identity of the victim by entering the address for correspondence, which in the course of further proceedings allows the authorities to take further procedural steps.

14

Nadużycie prawa w procesie karnym

89%

Łukowiak B.

Problemy Prawa Karnego

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2020

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vol. 4 (30)

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issue 4

149-164

EN

This paper analyses the issue of abuse of rights in criminal proceedings. Based on jurisprudence and doctrinal writings about the criminal proceedings, an attempt was made to provide a separate definition of this concept. Then the focus was shifted to seeking a legal basis for sanctioning manifestations of abuse of procedural right, referring to the current legal status, as well as formulating de lege ferenda postulates in this respect.

15

Closing Speech - Between Theory and Practice

89%

Kowalczyk-Ludzia M.

Adam Mickiewicz University Law Review

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2018

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vol. 8

EN

The development of rhetoric in criminal procedure is reflected in every court trial. The right of the parties to present their final speech before the court (Article 406 of the Pol-ish Code of Criminal Procedure) is important for achieving the required verdict. This paper tries to answer the question about the actual extent to which the said regulation is used by the parties to achieve their objectives. The deliberations are based on an analysis of the results of research conducted by the author.

16

Analiza śledcza jako dowód w procesie karnym

89%

Kościelniak-Marszał M.

Opolskie Studia Administracyjno-Prawne

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2017

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vol. 15

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issue 3

63-76

PL

The investigation analysis consists in performing a series of ordered actions completed according to the established order and aimed at reaching the most precise and logical conclusion based on the information available. Thus, analysts’ actions focus on the study of actual and potential relationship between individual pieces of information which may be relevant for determination of a crime and its perpetrator. Their job involves processing and selecting information possessed by the procedural authority, according to specific criteria in order to present it in the form that will help recreate the chain of events and draw conclusions. Although the investigation analysis has not been mentioned in the Code of criminal procedure, one must agree that as a method of establishing evidence it should find its place in the criminal proceedings. This is because the rejection of new evidence would be nothing else but resignation of law enforcement authorities from adapting to a new situation within the scope of crime. However, we must make sure that introduction of the results of the investigation analysis into criminal proceedings does not negatively affect the principles of the proceedings, in particular with regard to a fair trial and the right to defence, and in no way does it connect with violation of the related procedural guarantees.

17

Jawność rozprawy głównej a gwarancje przewidziane w Konstytucji

88%

Koper R.

Problemy Prawa Karnego

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2018

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vol. 2 (28)

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issue 2

225-237

EN

The principle of openness, as one of the foremost principles of criminal proceedings, is realised above all during the main trial. The amendment act of law to the code of criminal procedure issued on 10 June 2016 introduced model changes in this regard. The article is devoted to a discussion of mainly these changes in the context of their consistency with the Constitution. The first change has to do with the fact that the public prosecutor has the right to express his or her objection toward the holding of a trial in camera, while such an objection is binding for the court. This regulation is a source of reservations of constitutional nature, for it violates the constitutional right to a fair adjudication of a case by the court. The second fundamental change consists in the establishment, as a principle, of audio-visual registering of the court session by the representatives of media outlets. In these terms, a critical analysis should be conducted upon the removal of the condition of the respect of the important interest of the participant of a criminal proceeding. However, a basically positive evaluation was received by the extension of the scope of the openness of the main trial, expressing a thesis about the constancy of this regulation with the Constitution.

18

Dostęp oskarżonego pozbawionego wolności do kasacyjnego etapu postępowania karnego

88%

Wąsek-Wiaderek M.

Forum Prawnicze

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2019

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issue 4 (54)

66–78

EN

The article provides arguments supporting the thesis that the current regulations of the Code of Criminal Procedure do not guarantee full access to the cassation stage of the criminal proceedings for the accused deprived of liberty and repre- sented by an ex officio defence counsel. In order to lodge a cassation appeal the accused is required to file a motion for written reasons of the appellate judgment within the prescribed time-limit indicated in Article 524 § 1 second sentence of the Code of Criminal Procedure. It is argued that in order to fulfil this requirement the accused must have fully effective right to acquire the content of the judgment or to take an informed decision to waive this right. The Author argues that this standard is not provided for by the current regulation of the Code of Criminal Procedure. The analyses take into account standards stemming from the case-law of the European Court of Human Rights.

19

The Timeless Quest for Truth in a World of Doubt: Re-Examining Modes of Proof in the Medieval Era

88%

Amon I.

Adam Mickiewicz University Law Review

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2020

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vol. 11

141-158

EN

This article presents a brief overview of historical methods of legal proof prior to and soon after the Norman Conquest of England in October 1066. Through an examination of the rituals of compurgation and the ordeal, which were techniques designed to discover truth prior to the establishment of the inquisition in medieval Europe and the common law jury trial in England, the human quest for intellectual conviction has been indelibly with us since the days of antiquity. And, whichever method to ascertain truth is ultimately utilized – compurgation or ordeal, inquisition or cross-examination, trial by judge or by jury – the law’s enduring search for certainty amidst a world of doubt owes much to the history and times of William the Conqueror.

20

Konstrukcja odpowiedzialności podmiotów zbiorowych za czyny zabronione pod groźbą kary, w aspekcie fundamentalnej zasady porządku prawnego — prawa do obrony

88%

Majowska A. T.

Nowa kodyfikacja prawa karnego

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2013

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vol. 29

103 - 121

EN

The article focuses on the fundamental right of asubject exposed to negative consequences during criminal proceedings. The determination of the scope of a constitutionally and statutorily granted right of defence, in particular in the light of the access to the dossier by the collective body’s counsel and by the collective body itself, as well as the analysis of the construction of collective body’s responsibility, point to the legal restrictions regarding the right of defence on grounds of the act on responsibility of collective bodies for acts prohibited under penalty. It has been emphasized that acollective body holds no right of access to the evidence gathered during proceedings against anatural person, the result of which may directly impose the criminal responsibility of the collective body, effecting in certain negative consequences, including imposition of a penalty. The specific nature of collective bodies’ responsibility has drawn demands towards the capacity of a collective body to influence the proceedings in progress.

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Aktywność sądu i przewodniczącego składu orzekającego w postępowaniu przed sądem karnym I instancji

Prawda materialna w procesie karnym w perspektuwie projektowanych zmian kodeksu postępowania karnego

Konsensualny charakter procedury jako konstytutywna cecha ADR

Judicial Control in the Context of the Concept of Legal Policy of the Republic of Kazakhstan

Interrogation of a Child as a Witness in the Criminal Procedure – Selected Legal and Psychological Aspects

Mediacja jako sposób rozwiązywania konfl iktów (nowe ujęcie instytucji mediacji w ustawie z 27 września 2013 r. o zmianie ustawy Kodeks postępowania karnego oraz niektórych innych ustaw)

Extended Confiscation of a Material Benefit in Polish Criminal Law

Russian Model of the Cooperation Agreement with the Accused

Some Peculiarities of Pretrial Agreement on Cooperation with a Person, who Committed a Socially Dangerous Act in a State of Irresponsibility

Legal and Psychological Aspects of Non-custodial Penalties for Young Offenders in the Republic of Belarus

The mandatory presence of the Public Prosecutor’s Office at the hearing of the criminal investigation in face of the new law of the anticrime package and the need for revision of brazilian jurisprudence – prohibition of ex officio production of evidence by the magistrate

Conditions and Requirements of Polygraph Examination

Wykonywanie uprawnień przedsiębiorcy jako pokrzywdzonego w procesie karnym

Nadużycie prawa w procesie karnym

Closing Speech - Between Theory and Practice

Analiza śledcza jako dowód w procesie karnym

Jawność rozprawy głównej a gwarancje przewidziane w Konstytucji

Dostęp oskarżonego pozbawionego wolności do kasacyjnego etapu postępowania karnego

The Timeless Quest for Truth in a World of Doubt: Re-Examining Modes of Proof in the Medieval Era

Konstrukcja odpowiedzialności podmiotów zbiorowych za czyny zabronione pod groźbą kary, w aspekcie fundamentalnej zasady porządku prawnego — prawa do obrony