Search results - CEJSH

1

Uzgodnienie rodzaju i wysokości kary w postępowaniu karnym w Polsce

100%

Bachmat P.

Zeszyty Prawnicze BAS

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2020

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issue 2(66)

167-171

EN

The Polish Code of Criminal Procedure provides for three paths in which it is possible to agree with the accused the type and severity of the penalty imposed on him by the court, provided that taking evidence by the court is waived. The first possibility occurs during the stage of preparatory proceedings, being an agreement with the prosecutor, so that a lengthy evidence process is not carried out. The second option applies after the indictment has been brought to court, while the third one may be used by the accused until the end of the first interrogation of all the accused. It requires submitting a relevant application.

2

Konstytucyjne zasady postępowania karnego na tle orzecznictwa Polskiego Trybunału Konstytucyjnego

87%

Krajewski A.

Studia Prawnicze

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2017

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issue 2 (210)

67-86

PL

The Constitutional Tribunal is defined as the Polish constitutional court and at the same time the judicial authority. It was created at the turn of 1982. Not long after that it began its jurisprudence; more precisely it was in 1986. Describing its basic tasks, it is pointed out that judicial review of so-called constitutional law deserves a closer look. This is particularly true about controlling the compliance of lower legal norms with higher legal norms. Here attention is drawn towards the connection of the Constitution with some international agreements, ie. the court of law. The purpose of the paper below was to analyze the constitutional principles of criminal proceedings in the context of the case law of the Polish Constitutional Court. At the beginning the concept, the division and the role of the constitutional rules of criminal procedure were presented. In this section, it was emphasized that all the rules of the criminal process are considered superior norms of a very significant social importance. Then the principle of objectivity, which is reflected in the Constitution of the Republic, was described. A following aspect was the discussion of the principle of the presumption of innocence and the principle of in dubio pro reo. It has been emphasized that the essence of the principle is that the person who was brought before the court is treated as innocent until a lawful judgment is pronounced against the defendant. The author also pointed out the principle of the right to defense. According to this rule, the defendant has the right to defend themselves in the process and to use the help of a defender. Another described principle is so-called rule of publicity. It concerns the fact that information about criminal proceedings should be accessible to the public. Then it was pointed to the principle of the right to the trial and the independence of the judiciary. The first one is reflected in national law and acts of international rank. The second shows that the independence of the judiciary is determined by the proper exercise of the profession of judge and becomes a guarantee of freedom and civil rights. The humanitarian principle and the principle of participation of the social factor in the penal process are shown in the final section. At the end of the paper a summary and conclusions were presented.

3

PORÓWNANIE TRYBÓW DOCHODZENIA ROSZCZEŃ KARNOPROCESOWYCH I CYWILNOPRAWNYCH ZA NIESŁUSZNE SKAZANIE, TYMCZASOWE ARESZTOWANIE BĄDŹ ZATRZYMANIE

80%

Stokłosa K.

Eunomia – Rozwój Zrównoważony – Sustainable Development

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2019

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issue 1(96)

17-24

EN

Code of Criminal Procedure provides some kind of possibility of seeking compensation for wrongful conviction, temporary detention or detention. Claims, pursuant to article 552 § 1 of the Code of Criminal Procedure, does not provide for exceptions to the principle of full compensation of damages. It includes both claims for damages for actual loss as well as for lost profits. The indicated provision corresponds to art. 417 § 1 of the Civil Code and article 417 § 2 of the Civil Code The State Treasury is liable for damage caused by unlawful act or comission in the exercise of public authority. If the damage was caused by issuing a final decision or a final decision, its remedy can be demanded after it has been found in the proper proceedings that they are unlawful. Therefore, whether the situation described in article 552 of the Code of Criminal Procedure - the revocation of a final judgment by way of cassation, as a result of which a more favorable decision is issued for the accused, is the state equivalent to finding the unlawfulness of the ruling thus violated? The liability of the State Treasury for damage and harm caused by unjust condemnation, arrest or detention, in many cases, extend the scope of this responsibility to states that could not be classified as unlawful acts or omissions in the exercise of public authority. Depending on the choice of position, one should consider maintaining a separate criminal and civil procedure for examining cases for damages for unjustified conviction, temporary detention or detention.

4

Errors that Occur During the Preliminary Investigation: the Essence, Nature and Types

80%

Kramarienko V.

Internal Security

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2011

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vol. 3(1)

209-221

EN

In this article the author analyzes the definition and the nature of investigative errors. Complexity of a preliminary criminal investigation demands quite a high level of professionalism and experience from the investigator and, on the other hand, may lead to both impair of the investigation efficiency as a whole and to the unfitness for court trial. The special scientific literature shows the historic development of different approaches to the definition of an investigative error most essential of which are scrutinized, and the importance of evolving a unified definition is recognized. Summarizing advantages and disadvantages of functioning definitions the author suggests one of his own basing it on the situational approach which he considers the most effective way to implement the theoretical knowledge about the investigative error as well as recommendation to avoid them into practice. The dynamic nature of investigative situations and the subjective and objective conditions are also taken into consideration as factors influencing the errors. A unified definition helps analyzing the existing types of errors and, as a result, suggesting the basis for a unified classification of them. The author used the historical and comparative analysis, situational approach and simulation as well as the structural approach while preparing the material.

5

Basic principles of the prosecutor in criminal proceedings under Criminal Procedure Code of Ukraine

80%

Rohatiuk I.

Internal Security

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2016

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vol. 8(1)

111-122

EN

Principles have always been the cornerstones of the legal regulation of criminal proceedings affecting all participants of criminal process. Taking into account the accelerated pace of current law enforcement reformation, it is necessary to mention the institution of the prosecution and the key role of the principles of criminal proceedings when presenting the scientific background for further empirical findings. The majority of these principles define the priority directions of growth in the criminal process as well as create a favourable environment for the behavioural aspects of the parties to criminal proceedings. This article provides a comparative analysis of the existing criminal procedural principles of the prosecutor’s role in the criminal proceedings with the specification of the legality principle as a requirement for all subjects of the criminal proceedings, including the prosecutor, to use the norms and provisions of legal acts correctly, to comply with them consistently and to act precisely in accordance with them. It explores the historical origins of these principles and their determinants’ origin starting from the times of Kievan Rus and its unique judicial system and proves that the adversarial principle is closely connected with the dispositivity of the prosecutor’s participation in the criminal proceeding. Emphasis is placed on the correlation between the ‘principles’ and ‘foundations’ terms examined by Ukrainian and Soviet scholars and its application in relation to the newly adopted Code of Criminal Procedure of Ukraine.

6

The Role of Covert Policing and the Use of Its Results in Criminal Proceedings Involving Unlawful Restraint for Ransom

80%

Niemczyk Z.

Internal Security

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2017

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vol. 9(1)

123-140

EN

The article is concerned with the subject matter of covert policing involving cases where a hostage is unlawfully taken and detained with the purpose of forcing other persons to act in a specific manner. Such activities, being among the most difficult procedures relevant to the work of law enforcement agencies, are usually conducted in conditions determined by a rapidly changing factual situation, high level of criminal conspiracy and the state of permanent risk to the hostage’s life, the saving of which is the ultimate objective of public officers. Due to these factors, covert policing related to this kind of cases — given its nature and its investigative potential — becomes extremely important. The author’s aim is to determine the essence and functions of covert policing, and in particular to present conditions which must be met to adequately process covertly obtained intelligence for the needs of criminal proceedings.

7

Uzasadnione odstępstwa od zasady skargowości w kodeksie postępowania karnego?

80%

Kowalczyk A. K.

Forum Prawnicze

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2019

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issue 4 (54)

79–92

EN

Principle of accusatorial procedure states that criminal proceedings should be conducted only upon the request of a party and thus, the court cannot take the initiative. By the Act of 11 March 2016 the courts’ right to demand supplementing preparatory proceeding during preliminary verification of indictment has been brought back to the criminal procedure. The possibility of adjourning or defer- ring the trial in order to demand additional evidence has also been restored. The aim of the paper is to consider how these court powers affect the principle of accusatorial procedure and to answer the question whether departure from this principle is justified, for example, by the need to comply with other principles of criminal proceedings.

8

PRAWO DO PRYWATNOŚCI A BEZPIECZEŃSTWO PUBLICZNE REALIZOWANE PRZEZ PROCES KARNY

80%

Siostrzonek-Sergiel A.

Kultura Bezpieczeństwa. Nauka – Praktyka – Refleksje

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2014

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vol. 16(16)

400-419

EN

-

9

Current Development of the European Arrest Warrant: Strengthening the Procedural Rights of Requested Persons

80%

Klimek L.

Internal Security

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2013

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vol. 5(1)

35-52

EN

The European arrest warrant is operational throughout all Member States of the European Union. Despite its operational success, the surrender procedure is far from perfect. In order to strengthening the rights of requested persons in the surrender procedure, new legislative measures have been adopted. Two legislative measures have been adopted so far, namely: a Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, strengthening the right to interpretation and translation in the surrender procedure, and a Directive 2012/13/EU on the right to information in criminal proceedings, strengthening the right to information and introducing a Letter of Rights in EAW proceedings. In addition to that, the European Commission introduced a Proposal for a Directive on the right of access to a lawyer in criminal proceedings and on the rightto communicate upon arrest. As is obvious, the paper deals with strengthening the procedural rights of requested persons under the European arrest warrant in the surrender procedure. It is divided into four sections. The first section is focused on general issues whilst the second section is focused on the right to interpretation and translation, the third section is focused on the right to information. In addition to that, the fourth section introduces knowledge in the field of the right of access to a lawyer.

10

Modern Criminal Procedure Policy of the Russian Federation (Development Prospects)

80%

Zaytsev O.

Internal Security

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2013

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vol. 5(1)

85-94

EN

The article analyzes a number of legal sources of the Russian Federation devoted to criminal law and criminal procedure policies; it identifies and summarizes information about the development of theoretical thought on the matter. The author presents three presidential legislative packages, which include a new criminal legal strategy expressing qualitative changes in Russian society and satisfying the need for its modernization and development. The author observes that in the last ten years criminal procedure policy has undergone major changes, which have become an integral part of the judicial system modernization process and the criminal procedure legislation of the Russian Federation. The reforms concerned criminal procedure institutions connected to the reorganization of the inquiry, the creation of the Investigation Committee, the prosecutor’s powers, the use of measures of restraint, initiation of criminal proceedings on tax crimes, dismissal of criminal proceedings (prosecution) of economic crimes, changes in supervisory procedures, development of conciliation procedures. Also, increased attention in the article is paid to the content, the main features and trends in modern criminal procedure policy. Early discussions and the practical application of the criminal procedure legislation showed that the Russian legal community reacted rather ambiguously to a number of its innovations. The legal community has divided into supporters, who generally approve of the CPC, in favor of “Americanization” of the Russian Criminal Procedure and opponents of many innovations, advocating the preservation of the existing domestic criminal process in line with the continental tradition, characteristic not only for the Russian Federation but also for a number of European countries. The author states that since the implementation of the CPC until the present time, both academics and practitioners have expressed a great deal of justified criticism about it.

11

Freedom of Individual and Its Limits in European Judicial Space

80%

Banach-Gutierrez J.

Internal Security

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2014

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vol. 6(1)

207-222

EN

This paper explores a question of freedom, as fully recognised right granted to all individualsin accordance with a rule of law, which is characteristic for the democratic societies. It indicates somelimits of freedom and aims of such application in reference to activity of individuals, taking intoaccount the right to respect for private life, protection of personal data and application of biometry.The main noticeable aspect in this respect is that freedom, as a fundamental right of individuals doesnot have its absolute character. It is limited by freedoms of other persons, for the general interestsof community, as a whole. The discussion is focused in perspective of European judicial space.A special emphasis is placed on the use of new techniques or technology of surveillance, in the fightagainst criminality The discussed question seems to be crucial with regard to the European Union(EU) security strategies in creating of the Area of Freedom, Security and Justice (AFSJ) in the interestsof the ‘European citizens’. Each individual should enjoy his right, for example to respect private rightor protection of personal data, as it is granted under CHFR. In the context of the EU law, its normsshall be adopted and applied in the interests of the ‘European citzens’. This approach seems to becompatible with a general trend in international law towards global justice for human security.

12

Competences of the Police in Criminal Proceedings — Experience and Present — Legal and Comparative Approach in the 100th Anniversary of the Establishment of the Police

80%

Porwisz M.

Internal Security

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2018

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vol. Special Issue

127-137

EN

The aim of the publication is to present the role and tasks of the police in criminal proceedings in a legal and comparative approach. Over the years, there could have been noticed an evolution in the area of police powers. The rationale for addressing such an important issue is, first of all, to look at the achievements of the authors of reforms in the post-annexation period and to recognise their contribution to the process of shaping high standards of functioning of police authorities. Studies and analysis of legal texts from the period when Poland regained independence is an important element of learning about history and tradition, as well as the possibility of following patterns of lawmaking adequate to the challenges of lawmaking. The original spelling of source texts and sometimes their archaic language layer, quoted in the text of the publication, is a measure to respect the principle of faithfulness to the sources and, at the same time, to illustrate the development of individual legal institutions. The article focuses on the analysis of selected regulations of the Regulation of the President of the Republic of 19 March 1928 — Code of Criminal Procedure (Journal of Laws of 1928, No. 33, item 313) in relation to the current solutions of the procedural act.

13

Opinia prawna na temat statusu postępowania karnego toczącego się wobec osoby, która uzyskała mandat posła na Sejm RP w trakcie kadencji

80%

Odrowąż-Sypniewski W.

Zeszyty Prawnicze BAS

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2014

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issue 4(44)

187-190

EN

According to the author, the provisions of the Act on the Exercise of the Mandate of a Deputy or Senator leave no doubt that in the case of Deputies who have received the seat during the term of the Sejm, the rule on the suspension of criminal proceedings applies only to criminal proceedings initiated before date of assuming the seat, i.e. prior to the day of publication in Monitor Polski of the order of the Marshal of the Sejm concerning filling of the mandate. As indicated in the opinion, a Deputy, against whom criminal proceedings has been instituted before the day of his/her election, may apply to the Sejm with a request for suspension of criminal proceedings until the expiry of the mandate.

14

Problems Involved in Protecting Participants of Criminal Proceedings in the Investigation of Crimes Committed by Organized Groups

80%

Shepitko V., Shur B.

Internal Security

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2011

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vol. 3(1)

233-240

EN

This article reviews the security issues for members of criminal process. The authors believe that the fight against organized crime increases the role of security threats, complicates the state of protection of rights of the individual in criminal proceedings. The article emphasizes that in recent years criminal procedure and criminological literature has paid some attention to problems of securing members of the criminal process. In particular, they considered issues related to the concept and types of security measures, procedural order of making decisions about providing such security, its guarantees, etc. In addition, some attention was also given to consideration of key terms associated with these problems such as: “security”, “danger”, “ensure”, “safety of carriers of evidentiary information”, “object of protection”, “subject of protection”, etc. However, the problem of tactics of ensuring safety of participants of the criminal procedure requires further development and implementation in practice of criminal justice bodies. The authors believe that ensuring security can go beyond the stages of criminal proceedings, protection of certain persons may not be limited to the period of a criminal investigation or trial of criminal cases.The authors present a legislative solution introduced in Ukraine at present. The article presents the results of the survey of investigators and prosecutors of MIA of Ukraine on certain tactics in choosing and applying measures ensuring the safety of participants in criminal proceedings. Tactical originality of elected safety measures was proven.In addition, attention was paid to the specifics of security measures to the participants of the process in the investigation of crimes committed by organized criminal groups.

15

The Issue of Polygraph Tests in Poland

80%

Wazny A.

Internal Security

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2011

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vol. 3(1)

223-231

EN

The article presents the issue of polygraph tests in Poland. It discusses the law in Poland concerning the use of the polygraph, and concentrates on Polish legal situation described in articles 192a and 199a of Polish Penal Code. In view of the Polish Penal Code law, passed on the 6th of January 1997, the issue of the use of the polygraph is controversial, and the position of the doctrine – divided and fragmented. The judicature in this matter is failing to respond to the issues presented. However, the fundamental doubts about the legitimacy or legality of the use of ‘lie detector’ in Polish lawsuits were rejected. It happened after the introduction of the criminal procedural law, which makes it possible to conduct polygraph tests on the basis of the amendment of the 10th of January 2003. The author presents the view that the tests conducted by the polygraph and their results are ancillary, indirect and should not be treated as a substitute for independent evidence. The article compares Polish legal regulations to similar regulations existing in systems of many European countries, and is concluded with a summary presenting final thoughts on the issue, such as the necessity of the consent of the person undergoing polygraph tests.

16

Wykorzystanie zapisu audialnego uzyskanego w postępowaniu karnym jako dowodu w postępowaniu w sprawie pociągnięcia do odpowiedzialności konstytucyjnej

80%

Barbara J.-P.

Zeszyty Prawnicze BAS

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2019

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issue 2(62)

165-183

EN

According to the author’s opinion, the Constitutional Accountability Committee is entitled to request written explanations or documents from public authorities, as well as the files of each case conducted by them. The Committee is therefore entitled to obtain an audio recording for evidentiary purposes. According to the author, it is also permissible for the Committee to carry out such evidence, if it is requested by a person who is the subject of a preliminary motion to hold the person accountable before the Tribunal of State. Transcriptions and other documents made on the basis of the recordings may also serve as evidence in proceedings pending before the Constitutional Accountability Committee.

17

The Problems and Limits of Fair Credibility Assessment in German Criminal Law. Discussion about Systematization and Improvement of the procedure of Credibility Assessment

80%

Zöhner M.

Internal Security

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2011

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vol. 3(2)

105-130

EN

The role of an expert in a criminal proceeding is disputable. On the one hand, the expert’s “monopoly” is criticized, namely the fact that the judge’s responsibility is reduced because they have to trust in the expert’s specialist conclusion. On the other hand, the expertise process is analyzed as a whole by psychologists and non-experts not only from the methodical point of view but also in terms of its contents. The diagnostic process of the credibility assessment requires an enormous cognitive accomplishment of the expert. This is the result of the complexity of the expertise task because there exists no valid theory of credibility, which could link psychologically meaningful constructs in a universally valid law. For that reason, experts have to adapt themselves to a variety of small laws (so called indicators). Added to the high complexity of the credibility assessment there are also high demands on the court in respect of the quality of the expert. On the one hand, the expert has to observe the legal and ethical frameworks and act in a structured and scientific way. On the other hand, his or her way of thinking has to be flexible and self-critical. The problems of the credibility assessment raise the question of how exactly the expert assessment proceeds and where do its borders lie. Then the identification of its borders can contribute to more transparency and with that to the improvement of the expert assessment’s quality. This article deals not only with the difficulties of credibility assessment but also with the possibilities of the systematization and improvement of the credibility assessment’s procedure. First of all, the judge’s expertise and the expert’s position in the criminal proceeding are explained. Afterwards the complex diagnostic process of the credibility proceeding is explained. Then the author explains problems and limite of the credibility proceedings and their consequences within the practical application of the credibility proceeding. Finally, several possibilities that can contribute to improvements in quality are discussed.

18

Konsensualne zakończenie postępowania przygotowawczego w trybie art. 355 k.p.k.

80%

Kowalczyk P.

Nowa kodyfikacja prawa karnego

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2018

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vol. 50

69-80

EN

The paper focuses on in-court settlement under Article 335 of the Code of Criminal Procedure and its procedural consequences. In particular, the author presents the findings of theory and practice resulting from an analysis of case law concerning the functioning of the consensual mode of proceedings in the Polish Criminal procedure.

19

State Protection for the Participants of Criminal Proceedings in the Russian Federation

80%

Zaytsev O.

Internal Security

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2011

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vol. 3(2)

147-156

EN

This article covers the problematic questions concerning safety of the participants of the criminal procedure. Russia’s integration into the main international pacts and conventions have the effect of forcing the country into bringing the law to accordance with international and European rules in terms of ensuring safety of participants of the criminal procedure. This requires introducing appropriate processes to allow the realization of international standards and principles having in mind the peculiarities of the development of the country’s legal system. The main topic of this article is the theoretical and legal basis of state protection of participants of the criminal procedure in the Russian Federation. The author notes that in the middle 90s of the last century influencing the parties of the criminal procedure spread to other categories of criminal cases, making it a large socio-legal problem. This includes not only the witnesses, victims and other individuals involved in the process, but also judges, prosecutors and investigators, in connection with their professional actions. Russian academics were forced to draw on the experience of other countries of successfully running institutions and mechanisms that guarantee securing the rights and freedoms of witnesses, victims and other parties of the criminal procedure. On the basis of material gathered concerning the issue of safety of those connected with the trial-investigation process, the author proposes the priority branches of research in this domain.

20

Former and Current Concepts of the Pre-Trial Investigation Organization

80%

Navickienė Ž.

Internal Security

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2013

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vol. 5(1)

173-186

EN

The article analyzes the concept and content of the pre-trial investigation organization. Based on the various approaches to the subject, the author compares former and current concepts of the pre-trial investigation organization. Despite the fact that an agreed approach to the elements of the pre-trial investigation organization has not been defined, the concept and content of this process is observable. The current changing content of the pre-trial investigation organization does not only include the elements of an organizational and technical character. The modern concept of the pre-trial investigation organization adopts a much wider approach — inherent in this process is a synthesis of multi-complex elements and these include key principles of modern management, educology, criminal procedure, and criminalistics. Therefore it is possible to predicate a coherence between the modern concept of the pre-trial investigation organization and indicators related to the quality of the pre-trial investigation organization — not only cooperation of the participants in the pre-trial investigation but also their competence and qualification. The aspects identified within the content of the modern concept of the pre-trial investigation organisation provide reasonable assumptions for the construction of a model of the organization of the pre-trial investigation. The creation and application of such a model may in the future have an adaptive nature, meaning that it would facilitate optimisation of the process of the pre-trial investigation organisation — organise work in pre-trial investigation units more effectively by means of cooperation, avoid conflict in the powers of pre-trial investigators and prosecutors, adjust the mechanism of determination of pre-trial investigation participants’ qualification and competence, characterised by a requirement for obligatory qualificats, and the primacy of professional activity.

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