Implementation of the New eu Directive on Confiscation in Poland: The Challenge of Overcoming the Negative Historical Experiences of Confiscation Orders

2016 ◽  
Vol 24 (1) ◽  
pp. 19-38
Author(s):  
Ariadna H. Ochnio

The Polish Parliament deliberately omitted the possibility of property confiscation from the Penal Code of 1997 due to negative historical experiences. However, pursuant to this Code, a court may order the forfeiture of the objects, tools and proceeds of crime or their equivalent. Under Polish law, rulings governing extended forfeiture are facilitated by a number of rebuttable legal presumptions. Against the background of Poland’s legal and historic conditions, this article explores the possible problems faced when amending criminal law in line with Directive 2014/42/eu on the freezing and confiscation of the instrumentalities and proceeds of crime in the eu. The author explains the reasons for Polish sensitivities towards providing appropriate guarantees of criminal proceedings when discussing how to re-introduce confiscation into national law. The challenge is to overcome the national legal tradition of confiscation without reducing the guarantees of a fair criminal trial.

1996 ◽  
Vol 30 (1-2) ◽  
pp. 60-81
Author(s):  
Claus Roxin

Initially I was taken aback at the request that I express my views on the most important aspects of the general part of the draft Israeli penal code, because the draft contains Anglo-American legal concepts, such as “strict liability” and “mens rea”, which are unknown in Continental-European criminal law. At second glance, however, something quite different came to my attention; namely, that the contents of the draft reflect, to a large extent, the European legal tradition even though the terminology is in part quite different, and even though the draft only partly corresponds to the present dogmatic structures of the European legal system. Some of the passages almost sound like summaries of a middle-European textbook on criminal law. At the outset I want to offer my opinion on the draft: it is a good draft, up to the level of international discussion. It even sets out important parts of the general principles of liability much more precisely than does the German Criminal Code. Many of the draft's solutions are, of course, open to debate, but precisely for that reason we are assembled here.


2017 ◽  
Vol 17 (5) ◽  
pp. 935-959
Author(s):  
Catherine S. Namakula

There is no trial that is worth human suffering. This is the secret behind the successful marriage of human rights and international criminal law. Whenever there is a right, there must be a guard. The prosecutor, as the driving force of international criminal proceedings, must ensure that a case is investigated and proceeds to trial with respect and protection of the rights of persons involved, especially the accused. The autonomy and discretion accorded to the prosecution is functional and tactical in as far as it enables it to lead the course of justice. Following its exclusive control of investigations, the prosecution determines whether and when to commence a trial. It decides which material is to form part of the deliberations and may seek that an incompetent trial is suspended or strike a plea bargain. This article explores the components of the obscure human rights mandate of the prosecutor.


2016 ◽  
Vol 11 (2) ◽  
pp. 45
Author(s):  
Józef Koredczuk

THE SIGNIFICANCE OF THE POLISH PENAL CODE OF 1932 FOR THE CRIMINAL LAW AND ACADEMIC EDUCATION DEVELOPMENT IN POLAND IN THE 20TH CENTURYSummary Since the year of 1932 marking the publication date of The Polish Penal Code also known as “Makarewicz Code”, there were strong indications that it would have a profound impact on the advancement in the field of Polish penal law and the academic-scientific area. Drawing from the highest standards and greatest solutions in Europe (i.e. The Code of Switzerland), The Polish Penal Code immediately gained substantial recognition abroad. Following World War II, it became an integral part of the socialist penal law system governing Poland at that time in history. Despite the numerous attacks it was exposed to, The Code served as an academic tool for educating many generations of lawyers and until 1969 it remained a main source book for law studies lectures. Additionally, it was considered to be a synonym of well-founded and stable Polish law and was applied as a benchmark for codification works in Poland dating back to 1969 and 1997. Having regard to the declarations presented by classical and sociological school with its reference to the penal law education, The Penal Code of 1932 had a great influence on the evolution of Polish academic education and criminal law in Poland of 20th century. Today this statement is reinforced by the fact that its author – Juliusz Makarewicz is regarded as the most prominent penal law professor. The Makarewicz Code is not only recognized as an outstanding judiciary achievement but also as a valuable academic-scientific point of reference. It is a symbol of the finest traditions in Polish law associated with progress, innovation and the one that elaborates on institutions that secure and attest to obeying the penal law regardless of the political roles it may play.


2019 ◽  
Vol 6 (1) ◽  
pp. 67
Author(s):  
Katarzyna Banasik

<em>The aim of this paper is to examine whether the Republic of Poland guarantees cultural property appropriate legal protection in the area of criminal law in the event of armed conflict. The author begins by analyzing the legal acts of international law and presenting the relevant regulations. In the next part of the paper, she examines the current provisions in Polish law. First, she explains the term “cultural property” and its relationship with the term “historic relic”. She then provides an exhaustive analysis of Article 125 of the Polish Penal Code, which is the main provision governing the protection of cultural property in the event of armed conflict. The author also discusses other relevant regulations of the Penal Code. She concludes by assessing the current state of Polish criminal law from the perspective of the protection of cultural property in the event of armed conflict.</em>


2020 ◽  
Vol 41 (2) ◽  
pp. 55-80
Author(s):  
Andrzej Sakowicz

The right to remain silent is one of the most fundamental principles of domestic and international criminal law. It’s is also closely related to the presumption of innocence. As the responsibility is placed on the prosecution to prove the guilt of a person it follows that the accused should not be forced to assist the prosecution by being forced to speak. The right to remain silent expresses the individual’s right not to be compelled to testify against himself or to confess guilt. Its core component is the freedom to choose whether or not  to give answers to individual questions or to provide explanations. To use against the suspected silence under police questioning and his refusal to testify during trial amounted to subverting the presumption of innocence and the onus of proof resulting from that presumption: it is for the prosecution to prove the accused’s guilt without any assistance from the latter being required. This article has to objectives. Firstly, to interpret the right to remain silent in the light to of the Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceeding. Secondly, the  Directive 2016/343 can be used as reference to evaluate a degree to which Polish legal solutions conform to the Directive in question, giving rise to several postulates  in  that  matter. The analysis will also include shortages and problems resulting from imperfect Polish criminal process in that field.


2016 ◽  
Vol 14 (1) ◽  
pp. 91-108
Author(s):  
Jarosław Marciniak

Discontinuation of proceedings under Article 59a of the Criminal Code is a new institution in Polish criminal law. This article discusses selected issues relating to the premises for the application of Article 59a of the Criminal Code in practice. In view of the use by the legislator in Article 59a of the Criminal Code of concepts with vague meanings, their possible interpretations were proposed. It has been suggested that a rephrasing of the provision in question should be considered, in order to ensure the possibility of applying the said institution to a wider range of misdemeanours, as compensatory discontinuation is intended by the legislator to fulfil the redress function of proceedings and ensure the effectiveness and speed of criminal proceedings


2011 ◽  
Vol 60 (4) ◽  
pp. 1017-1038 ◽  
Author(s):  
Laurens van Puyenbroeck ◽  
Gert Vermeulen

A critical observer would not deny that the practice of European Union (‘EU’) policy making in the field of criminal law in the past decade since the implementation of the Tampere Programme has been mainly repressive and prosecution-oriented.1 The idea of introducing a set of common (minimum) rules, guaranteeing the rights of defence at a EU-wide level, has not been accorded the same attention as the introduction of instruments aimed at improving the effectiveness of crime-fighting. What does this mean for the future of EU criminal policy? Will the EU succeed in the coming years in developing an area where freedom, security and justice are truly balanced? According to several authors, to date the EU has evolved in the opposite direction. As one observer put it:[I]f Procedural Criminal Law arises from the application of Constitutional Law, or indeed if it may be described as “a seismograph of the constitutional system of a State”, then as a consequence the Procedural Criminal Law of the European Union shows the extent of the Democratic Rule of Law, of the existence of a true “Rechtsstaat”, within an integrated Europe. This situation may be qualified as lamentable, as the main plank of the EU's criminal justice policy relates to the simplification and the speeding up of police and judicial cooperation—articles 30 and 31 of the Treaty of the EU—but without at the same time setting an acceptable standard for fundamental rights throughout a united Europe.2


2020 ◽  
Vol 6 (3) ◽  
pp. 166-170
Author(s):  
Vasyl Topchiy ◽  
Maksym Zabarniy ◽  
Nataliya Lugina

A cooperation between states in criminal cases is carried out in order to achieve the goals of justice and may exist at the stage of pre-trial investigation, trial, as well as after the entry into force of a court decision (sentence, ruling). Forms of international cooperation in the investigation of criminal cases are quite diverse. The main ones are: providing legal assistance, which consists in carrying out procedural actions, because during the investigation and trial of criminal cases there is often a need to gather evidence abroad by questioning defendants, victims, witnesses, experts, conducting searches, examinations, court inspections, seizure and transfer of items, delivery, and forwarding of documents, etc.; extradition of persons for criminal prosecution or for the execution of a court sentence; arrest, search and confiscation of proceeds of crime (states undertake to cooperate in the investigation of money laundering; assist in the investigation and take appropriate measures: to freeze bank accounts, seize property to prevent its concealment; confiscate proceeds of crime or property, value of which corresponds to the value of income, etc.). The normative basis for the international cooperation in the investigation of criminal cases is the European Convention on Mutual Assistance in Criminal Matters dated April 20, 1959; the Criminal procedural code of Ukraine; Methodical recommendations of the General Prosecutor’s Office of Ukraine; Order No. 223 “On the organization of the work of the Prosecutor’s Office of Ukraine in the field of international legal cooperation” dated September 18, 2015. The legal basis for international cooperation in criminal matters is the current bilateral and multilateral international treaties of Ukraine, the binding nature of which has been approved by the Verkhovna Rada of Ukraine. Among the multilateral international agreements, there should be noted the European conventions on criminal justice: the European Convention on the Extradition with two additional protocols to it, the European Convention on Mutual Assistance in Criminal Matters with an additional protocol to it, the European Convention on the Transfer of Proceedings in Criminal Matters, The Convention on the Transfer of Sentenced Persons with an additional protocol, The European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders, the Convention on Laundering, Search, Seizure, and Confiscation of the Proceeds from Crime and the European Convention on the International Validity of Criminal Judgements. In addition, the Commonwealth of Independent States has the 1993 Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters and its 1997 Protocol; within the framework of the United Nations, there is the Convention on Transnational Crime of 2000, together with two Protocols thereto. These multilateral international agreements establish a uniform sphere of cooperation between law enforcement and judicial authorities in relation to all European countries. Today, the most effective is the method of “SWOT-analysis”, which is currently recognized in the scientific community as one of the most popular tools in strategic planning of social processes, including in the investigation of criminal cases. Although the type of analysis is still considered by most scientists as Bohomolova Ye., (2004) a method of marketing research of enterprises in the market in the context of business practice, the object of “SWOT-analysis” can be as legislation, the practice of its application and prospects of their improvement, and materials of criminal cases. Methodology. Achieving the purpose of this publication is ensured by the use of cognitive philosophical, general scientific and special methods, among which the main are analysis and synthesis, comparative law method, which allow to identify prospects for the use in criminal cases of the method of “SWOT-analysis”, which is currently recognized in the scientific community as one of the most popular tools in strategic planning of social processes. Methods of grammatical review and interpretation of legal norms have helped to identify gaps in the legislation governing the investigation of criminal cases, in particular in the field of economics, and to develop proposals for its improvement. Practical importance. International cooperation in criminal proceedings is an organizationally complex process, which requires the use of effective and efficient methods to perform the tasks of criminal proceedings, respect for the rights and freedoms of all participants in the process, including not violating a reasonable time in the investigation. To date, science has developed many methods of analyzing the law, the practice of their application, and identifying ways to improve legislation, taking into account the results of forecasting the prospects for society and the state. To ensure a high level of quality of criminal investigations in the framework of international cooperation, it is necessary to choose the one that will give the most effective results and allow to formulate the most optimal proposals in a particular criminal case and the practice of their application. An attempt to solve this problem is presented in this study.


2019 ◽  
Vol 5 (2) ◽  
pp. 92-102
Author(s):  
Maria Belén Sánchez Domingo

The new European framework for the protection of personal data on freedom, security and justice is embodied, among other instruments, in EU Directive 2016/680 on the protection of natural persons with regards to the processing of personal data by competent authorities for criminal law purposes. This Directive protects fundamental rights, such as the right to the protection of personal data, as well as ensuring a high level of public security by facilitating the exchange of personal data between competent authorities within the Union, with the establishment of a legal system on the transfer of personal data.


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