Competency to Stand Trial in Italy

2018 ◽  
Author(s):  
Alberto Cadoppi ◽  
Mattia Celva
Keyword(s):  
Criminal Procedure ◽  
Competency To Stand Trial ◽  
Constitutional Court ◽  
Legal Scholarship ◽  
Meaningful Participation ◽  
Definition Of

This chapter assesses competency to stand trial in Italian Criminal Procedure, using a two-pronged analysis. First, there is analysis of the relevant provisions of the Italian Code of Criminal Procedure (CCP). Pursuant to these provisions, the trial must be suspended in case the defendant is not capable of meaningful participation. The CCP also regulates various aspects connected to this incapacity. In particular, it sets forth the grounds on which the suspension must be granted and provides for the means through which the incompetency should be ascertained, if not immediately apparent. The picture painted by the Code is complex and many of these provisions have been challenged as unconstitutional in front of the Constitutional Court, with different results. The chapter focuses on such problems, in order to illustrate the approach of the Constitutional Court, as well as examining the solutions proposed by legal scholarship, including the definition of incapacity.

scholarly journals TO THE QUESTION ABOUT THE CONCEPT «PROCEDURAL COSTS IN CRIMINAL PROCEEDINGS»

Issues of Law ◽  
2020 ◽  
Vol 20 (4) ◽  
pp. 89-93
Author(s):  
S.M. Darovskikh ◽  
◽  
Z.V Makarova ◽  
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Procedural Costs ◽  
The Russian Federation ◽  
Definition Of ◽  
Article 5

The article is devoted to the issues of formulating the definition of such a criminal procedural concept as «procedural costs». Emphasizing the importance both for science and for law enforcement of clarity and clarity when formulating the definition of criminal procedural concepts, the authors point out that the formulation of this concept present in the current Criminal Procedure Code of the Russian Federation is far from being improved. Having studied the opinions on this issue of the Constitutional Court of the Russian Federation, a number of procedural scholars, the authors propose their own version of the definition of the concept of «criminal procedural costs» with its allocation in a separate paragraph of Article 5 of the Criminal Procedure Code of the Russian Federation.

scholarly journals Obtaining Samples for a Comparative Study: Theoretical, Normative and Law Enforcement Problems

2021 ◽  
pp. 17-29
Author(s):  
Elena Zaitseva
Keyword(s):  
Law Enforcement ◽  
Comparative Study ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Procedure Code ◽  
Legal Nature ◽  
The Russian Federation ◽  
Definition Of ◽  
The Right

The article analyzes the debatable aspects of the normative regulation of obtaining samples for a comparative study according to the current Criminal Procedure Code of the Russian Federation. Attention is paid to the key problems in the regulation of this action, and to the difficulties that law enforcement employees face due to them. The author examines the questions of defining the legal nature of obtaining samples for a comparative study, and the possibility of using the operative search potential instead of the procedural method to obtain comparative samples. While analyzing the problems of setting the limits of compulsion for this action, the author stresses the incorrectness of some wording in the law (Art. 202 of the Criminal Procedure Code of the Russian Federation). In the light of ensuring the right of criminally prosecuted persons to defense, the author also presents a critical assessment of the legal positions of the Constitutional Court of the Russian Federation reflected in the Definition of July 23, 2020 № 1856-0, in the part where obtaining samples for a comparative study is recognized as an action of urgent nature.

CONCEPT AND CONTENT OF A RECONCILIATION AGREEMENT IN THE CRIMINAL PROCEEDINGS OF UKRAINE

2017 ◽  
Author(s):  
Mariia Sirotkina ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Main Attention ◽  
Criminal Offense ◽  
Procedural Law ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Definition Of

The article is turned out to a scientific search for the concept of "a reconciliation agreement between the victim and the suspect or accused" through the study of the essence of reconciliation and role in criminal proceedings thereof. The author notes that criminal procedural law (until 2012) had been proclaimed another approach to reconciliation between victim and suspect, not involved a dispute procedure as a conflict, the result of which can be reached by compromise and understanding through reconciliation. It is stated that one of the ways to resolve the legal conflict in committing a criminal offense was the opportunity to reach a compromise between the victim and the suspect (the accused) by concluding a reconciliation agreement between them, provided by the Code of Сriminal Procedure of Ukraine (2012). The main attention is placed on the shortcoming of the domestic criminal procedure law which is the lack of the concept of "a reconciliation agreement between the victim and the suspect or the accused", which can be eliminated only through examining the essence or legal nature of reconciliation in criminal proceedings. Taking into consideration the current legislation and modern views on the institution of reconciliation in criminal proceedings, the author's definition of the concept of "a reconciliation agreement" is proposed. Thus, “The conciliation agreement is an agreement in criminal proceedings concluded between the victim and the suspect or the accused person on their own initiative in relation to crimes of minor or medium gravity and in criminal proceedings in the form of private prosecution, the subject of which is the compensation of harm caused by wrongdoing or committing other actions not related to compensation for the damage that the suspect or the accused is obliged to commit in favor of the victim, in exchange for an agreed punishment and sentencing thereof or sentencing thereof and relief from serving a sentence with probation, as well as the statutory consequences of conclusion and approval of the agreement".

Estatutos y competencias después de la STC 31/2010, de 28 de junio

2011 ◽  
pp. 139-165
Author(s):  
Hèctor LÓPEZ BOFILL
Keyword(s):  
The State ◽  
Formal Concept ◽  
Constitutional Court ◽  
Autonomous Community ◽  
Autonomous Communities ◽  
El Sistema ◽  
General Material ◽  
Definition Of

LABURPENA: Eskumenak banatzeko sistemari dagokionez, ekainaren 28ko 31/2010 Epaiak, Kataluniako Autonomia Estatutuari buruzkoak, estatutu-arauek Estatuaren eta autonomia erkidegoaren arteko eskumen-egitura modulatzeko aukera bertan behera uzten du, nahiz eta sistema konstituzionalak estatutuen xedapenei nolabaiteko protagonismo teorikoa ematen dien konstituzionaltasunaren blokea egituratzean eta eskumenak hartzean. Hala, 31/2010 Ebazpenak erakusten duenez, Auzitegi Konstituzionalak kategoria orokorren gaineko interpretazioaren monopolioa berresten du, eskumenen definizio funtzionala egiterakoan (egileak eskumen-egituraren «hiperkonstituzionalizazioa» deitzen dio fenomeno horri). Gainera, autonomia erkidegoei aitortutako eskumenen esklusibotasun-kontzeptua lausotzen du, Estatuaren oinarrizko legeriaren kontzeptu orokor material eta formalari uko egiten dio, eta autonomia-erakunde horien eskumen betearazleen irismena mugatzen du. RESUMEN: En lo referido al sistema de distribución de competencias, la Sentencia del Tribunal Constitucional 31/2010, de 28 de junio, sobre el Estatuto de Autonomía de Cataluña, cierra la posibilidad de que las normas estatutarias modulen la estructura competencial entre el Estado y la Comunidad Autónoma pese al teórico protagonismo que el sistema constitucional confiere a las disposiciones estatutarias en la articulación del bloque de la constitucionalidad y en la asunción de competencias. En la doctrina emanada de la resolución 31/2010, el Tribunal Constitucional refuerza su monopolio interpretativo sobre categorías generales en la definición funcional de competencias (la llamada por el autor «hiperconstitucionalización» de la estructura competencial) diluyendo el concepto de exclusividad aplicado a las competencias reconocidas a las Comunidades Autónomas, renunciando a un concepto general material-formal de legislación básica estatal y restringiendo el alcance de las competencias ejecutivas de los mismos entes autonómicos. ABSTRACT: As far as the allocation of powers is concerned, the 31/2010 ruling by the constitutional Court, from June 28th, about the Statute of Autonomy of Catalonia, opens the door to the possibility that the Statute norms modulate the competences framework between the State and the Autonomous Community despite the theoretical prominence awarded to the Statute provisions for the articulation of the block of constitutionality and the assumption of competences. As the doctrine from the 31/2010 ruling by the Constitutional Court states, the Constitutional Court enhances its interpretative monopoly on the general categories regarding the functional definition of competences (the so called by the author hiperconstitutionalization of the competences framework) wakening down the concept of exclusivity applied to the competences recognized to the Autonomous Communities, renouncing to a general material-formal concept for the State basic legislation and restricting the scope of the executive competences of the Autonomous entities.

Process of detention in Ukrainian criminal procedure

2020 ◽  
Vol 5 (5) ◽  
pp. 216-222
Author(s):  
Dariya Lazareva ◽  
Nataliia Reztsova
Keyword(s):  
Criminal Procedure ◽  
Research Paper ◽  
Criminal Proceedings ◽  
Definition Of ◽  
Immediate Response

This research paper presents the analysis of essential characteristics of the detention process by an authorized official as an institution of criminal procedure. The author's definition of the concept of detention by an authorized official has been formulated. The authors have proposed to consider the use of this measure to ensure criminal proceedings as a form of proper and immediate response by authorized officials to the discovery of a crime and obtaining primary information that allows to reasonably suspect a person in its commission.

scholarly journals A post-colonial legal approach to the Chagos case and the (dis)application of land rights norms

2018 ◽  
Vol 15 (1) ◽  
pp. 1-19 ◽  
Author(s):  
Kinnari Bhatt
Keyword(s):  
Rule Of Law ◽  
Land Rights ◽  
Legal Rights ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Legal Scholarship ◽  
The Rule Of Law ◽  
Post Colonial ◽  
Substantive Equality ◽  
Definition Of

AbstractOne way of understanding the exile of the Chagos Islanders and their inability to return to their ancestral land is through a reading of the case from a perspective of post-colonial legal scholarship. Chagossians have strong legal rights to land and remedies of compensation and return through a purposive application of the international legal definition of Indigenous, Magna Carta right to abode and international human rights law that could address their dispossession. Yet, the inability of those rights to be meaningfully applied has been constrained because of the post-colonial way they are legally interpreted, creating a legal vacuum in which basic fairness and substantive equality have been routinely compromised. Drawing attention to the continued legal denial of return in the context of decolonisation, ongoing colonialism and the rule of law makes sense of the legal record and explains the expulsion of the islanders despite the moral merits of return.

scholarly journals General Confiscation Versus Criminal Confiscation in Regard to Curators’ Authority and Responsibility in Bankruptcy Settlement Process

2020 ◽  
Vol 3 (2) ◽  
pp. 112-116
Author(s):  
Elli Ruslina ◽  
Siti Rodiah ◽  
Benny Wulur
Keyword(s):  
Criminal Procedure ◽  
Qualitative Approach ◽  
Creative Economy ◽  
Constitutional Court ◽  
Literature Study ◽  
Legal Problems ◽  
Legal Consequences

The process of bankruptcy general confiscation sometimes clashes with criminal confiscation process. The present study aims to look at curators’ authority and responsibility to sell bankrupt properties, which have been confiscated by investigating officers in a case of criminal confiscation. It also delves into the legal ramifications that may occur and into the concepts of bankruptcy settlement. This study employs a juridical normative method and the necessary legal material are collected through literature study. The legal material are analyzed in juridical qualitative approach, using a comparison between bankruptcy laws in several countries. Based on the result of this study, it is concluded that curators’ authority and responsibility are still applicable even though they are subject to appeal. The legal consequences in the case that bankrupt estate is being confiscated by investigating officers due to the conflict between criminal confiscation and general confiscation require the court to prioritize the criminal confiscation. Once it is resolved, bankruptcy assets/estate are returned to the curator. This study recommends that there should be an effort to legally synchronize and harmonize Article 39 Point (2) of KUHAP (Indonesian Law of Criminal Procedure) with Article 31 Point (2) of Law No. 37 Year 2004 Concerning Bankruptcy and PKPU (Suspension of Payment/Debt Moratorium). One of the solutions offered in this study is by implementing E-Court, as is the case in Indonesia’s Constitutional Court, especially in Commercial Court whose habitat is digital and that handles legal problems pertaining to creative economy.

scholarly journals Brief considerations regarding decision no. 26/2021 of the constitutional court regarding the constitutionality of the provisions of the art. 4881 paragraph 2 of Code of criminal procedure

2020 ◽  
pp. 31-36
Author(s):  
IOANA NARCISA ANIȚULESEI
Keyword(s):  
Criminal Procedure ◽  
Constitutional Court ◽  
The Subject ◽  
The Law

In the present study, the author analyzes the provisions of art. 4881 of the Code of Criminal Procedure which, until now, have been the subject of multiple exceptions of unconstitutionality examined by the Constitutional Court. Mainly, the study focuses on the considerations set out in Decision no. 26/2021 pronounced by Constitutional Court in which was statued the constitutionality of the provisions of art. 4881 paragraph 2 and 3 of the Code of Criminal Procedure. In his approach, the author makes additional arguments in support of the unconstitutionality of the rule by reference to national and European provisions enshrining the principle of equality of citizens before the law.

scholarly journals Legality and Validity of Property Seizure in the Investigation of a Criminal Case

Lex Russica ◽  
2021 ◽  
pp. 118-126
Author(s):  
O. A. Malysheva
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Constitutional Court ◽  
Legal Institution ◽  
Procedure Code ◽  
First Case ◽  
The Supreme Court ◽  
Civil Lawsuits ◽  
The Russian Federation

The importance of the measure of procedural coercion in the form of seizure of property increases against the background of the high amount of damage caused by crimes, namely about 550 billion rubles annually. This measure of procedural coercion has a high security potential in order not only to satisfy claims in civil lawsuits, but also to recover a fine and other property claims provided for in Part 1 of Article 115 of the Criminal Procedure Code of the Russian Federation. Investigators (interrogators) annually initiate the seizure of property about 40 thousand times. 90% of cases are a success. The application of this measure is accompanied by the restriction of the property rights of both natural and legal persons, including those who are not recognized as a civil defendant in a criminal case, in the first case, and the accused (suspect).The seizure of property in criminal procedure practice is accompanied by the need for the investigator to overcome a number of difficulties, which are caused, firstly, by the intersectoral nature of the regulation of this legal institution; secondly, by the presence of gaps in the regulation of relations arising in connection with the imposition of this arrest; thirdly, by the inconsistency of the objectives of proof to establish the nature and amount of damage caused by a crime and the implementation of security activities in a criminal case. This gives rise to numerous violations of the legality and validity of the seizure of property on the part of not only the investigator, but also the court, despite the expression of a number of positions of the ECHR on this issue, despite the explanations of the Constitutional Court and the Supreme Court of the Russian Federation.The author concludes that without the release of the investigator as a subject of proof in a criminal case from performing an unusual function — providing compensation for property penalties in a criminal case — it is impossible to achieve the full legality and validity of the seizure of property.

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