scholarly journals Repeated proceedings against suspected illicit wealth – justifiable protection of public interest or violation of human rights?

2021 ◽  
Vol 8 ◽  
pp. 38-56
Author(s):  
Skirmantas Bikelis
Keyword(s):  
Public Interest ◽  
Criminal Liability ◽  
Organised Crime ◽  
Reasonable Doubt ◽  
Legal Certainty ◽  
Criminal Proceedings ◽  
Standard Of Proof ◽  
Res Judicata ◽  
Legal Strategies ◽  
Repeated Assessment

The internationally acknowledged need for effective legal measures against illicit enrichment that is perceived as the key policy tool against organised crime and corruption triggered rapid developments in the variety of those legal measures. Lithuania may serve as a sole-standing example of a jurisdiction that enacted a great variety of legal strategies against illicit enrichment – criminal liability both for money laundering and illicit enrichment and also extended powers of confiscation, civil confiscation and tax fines for unexplained income. This diversity of measures leads to the issue of competition arising between them and also carries the risk that measures may be used repeatedly and arbitrarily against persons and their property.The paper focuses on the issue of the legitimacy of repeated investigation and assessment of suspicious assets in civil confiscation proceedings and extended powers of confiscation.The analysis is divided into two parts where fundamentally different legal situations are discussed. In the first situation, repeated assessment of the origin of the assets takes place in proceedings of similar legal nature (proceedings aiming to restore legal order). The second situation appears where reassessment takes place in proceedings of a different nature – in the restorative proceedings after failure to prove the illicit origin of the assets in the punitive proceedings.While the first situation rather clearly falls within the scope of the principle of legal certainty and the rule res judicata that prohibit repeated proceedings for the same issue in the same circumstances against the same person, the second situation is more open to debate. Punitive proceedings use the standard of proof beyond reasonable doubt and the presumption of innocence is in play. These safeguards are designed to protect defendants from unfounded conviction, but they may be considered excessive for other legal issues such as the recovery of damages or the proceeds of illicit activities. In addition, in the context of civil confiscation, public interest in effective protection from organised crime and corruption comes into play. Therefore, there are strong arguments for giving priority to public safety over the principle of legal certainty that would protect defendants from repeated assessment of their assets in other proceedings with a lower standard of proof or even the reversed presumption of the illegality of unexplained wealth.Finally, the paper addresses the question of whether extended powers of confiscation qualify for restorative or punitive proceedings. The answer to this question is the key argument of whether civil confiscation proceedings can legitimately follow criminal proceedings where the court failed to confiscate the assets on the grounds of extended powers of confiscation. The paper argues that extended powers of confiscation are of a restorative nature. Therefore, when assets have already been investigated in proceedings of civil confiscation and their origin has been assessed as lawful in the light of extended powers of confiscation, re-consideration of their origin should be deemed as infringing the principle of legal certainty, unless the decision in the criminal proceedings was barred by lack of formal grounds.

scholarly journals Continuarea judecăţii sau restituirea cauzei la procuror? Despre consecinţele procedurale naţionale ale deciziei CJUE din cauza C-282/20 ZX

2021 ◽  
Vol 2021 (3) ◽  
pp. 37-61
Author(s):  
Andrei ZARAFIU ◽  
Giulia ȘOLOGON
Keyword(s):  
European Union ◽  
Criminal Liability ◽  
Essential Elements ◽  
Fundamental Rights ◽  
Reasonable Doubt ◽  
Criminal Prosecution ◽  
The European Union ◽  
Criminal Proceedings ◽  
European Union Law ◽  
The Right

"On October 21, 2021, the European Court of Justice ruled in ZX and Spetsializirana prokuratura (Specialized Prosecutor's Office, Bulgaria), application no. C ‑ 282/20, by which it established art. 6 para. (3) of Directive 2012/13 / EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings and the Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation which does not provide, after closing the preliminary hearing, for a procedure remedy for the ambiguities and gaps in the content of the indictment, irregularities, which affect the right of the accused person to be provided with detailed information on the indictment. This specific article analyzes the meaningful purpose of the judgment in ZX and the procedural remedies regulated in the Romanian Code of Criminal Procedure applicable to changes in the factual and legal elements of the indictment. In applying the jurisprudence of the ECJ, art. 6 para. (3) of Directive 2012/13 and art. 47 The EU CDF requires Member States to regulate legislation that allows for the legal recourse in court of any ambiguities and gaps in the content of the indictment that affect the right of the accused person to be provided with detailed information on the accusation. At the same time, national law must be interpreted in accordance with European Union law, in the sense that the judge must resort to all procedural means regulated by law in order to ensure that the defendant receives detailed information on the factual and legal grounds of the accusation and may apply properly for the right of defense. Only if national law entails impediments in the activity of the judge to provide such information or to remove any ambiguities and gaps in the indictment, which may compromise the defendant's right to understand the essential elements of the prosecution, he may ensure that the defendant receives the right information on the factual and legal basis of the charge necessary to formulate the defense. In the current regulatory framework, the absence of express provisions to establish on the procedural level a way to remedy the irregularities of the indictment conceives the premise of adopting solutions exclusively in court, without having a normative basis. In the doctrine, two remedies were outlined, the first involving a directly intervention of the prosecutor on procedural acts, which helps in enforcing the order of the judge of the preliminary hearing or the court of physical exclusion of illegal or unfair evidence, without operating a disinvestment of the court. The second remedy involves a restitution of the case either to the prosecutor's office or even to the prosecutor, according to the distinctions evoked during the present study. But where should the restitution be ordered? At the prosecutor's office or at the prosecutor? The nuance is important because it implies differences in the procedural mechanism by which the resumption of criminal prosecution is carried out in the current criminal procedural system. Finally, we consider that remedying the irregularity of the indictment by restituting the case and reactivating the judicial function of criminal prosecution is preferable to the direct intervention of the prosecutor in the trial phase, the representative of the Public Ministry having the possibility to maintain the possibility to redo the procedural documents and to issue a new regulatory indictment. For the arguments extensively developed in this study, the court's order should be a return to the case to the prosecutor and not to the prosecutor's office, as the procedural filter of restitution to the prosecutor's office involves the exclusive power of the chief prosecutor to assess the extent to which it is necessary to resume the criminal investigation (according to the provisions of art. 334 CPC) is, in this case, superfluous. Being given the nature of the incidents that makes impossible for the trial to, in the cases discussed in this article, the direct application of the jurisprudence of the ECJ should lead to a mandatory resumption of the criminal prosecution limited to the need to replace compromised acts that successively set up criminal charges. In conclusion, we note that the remedies proposed by the ECJ judgment in ZX should only operate in the limited context capable of justifying their existence. These should not become mechanisms for circumventing a procedural obligation of the court to resolve the case. Thus, we reiterate that if certain incidents arising during the trial, such as the change of the legal classification of the deed or the exclusion of decisive evidence, do not concern the external aspect of the accusation, but represent internal shortcomings closely related to its validity, the court is obliged to fully perform its function activated by notification and investment, following to rule on an acquittal, as the evidence in the accusation does not meet the minimum standard necessary to engage in criminal liability provided by art. 103 para. (2) CPC, beyond any reasonable doubt. Under these conditions, the remedies presented, regardless of the order of preference established by the interpreter, become incidental insofar as there are ambiguities in the accusation that could impede the proper exercise of the judicial function, not when the accusation is not supported by evidence, capable of proving beyond any reasonable doubt the guilt of the defendant."

scholarly journals VERIFICATION AND ASSESMENT OF AN EXPERT’S CONCLUSION IN CRIMINAL PROCEEDINGS

2021 ◽  
pp. 120-138
Author(s):  
O. Baulin ◽  
O. Izotov
Keyword(s):  
Legal Regulation ◽  
Reasonable Doubt ◽  
Presumption Of Innocence ◽  
Structural Elements ◽  
Criminal Proceedings ◽  
Scientific Validity ◽  
Standard Of Proof ◽  
Current State ◽  
Procedure Code ◽  
The Supreme Court

The article considers the procedural and forensic aspects of the verification and assessment of an expert’s conclusion in criminal proceedings, its regulation under the current legislation of Ukraine. The authors define the assessment of the expert’s conclusion and indicate its structural elements and features, as well as what is its difference from the verifying the expert’s conclusion, since the latter is characterized not only by the operations of mental activity, but also by the conduct of investigative (search) and other procedural actions. It is noted that the verification of the expert’s conclusion in criminal proceedings always precedes its assessment. The assessment of the expert’s conclusion includes the analysis of the follows: – compliance with the procedural rules for the appointment, conduct and execution of the xamination; – competence and adequacy of an expert; – expert’s conclusions on compliance with the tasks assigned to him/her; – completeness and scientific validity of the conclusion; – the data of the conclusion regarding its relevance; – compliance of the expert’s conclusion with other evidence collected in criminal proceedings. The subjects carrying out criminal proceedings pay particular attention to the modern practice of assessing the expert’s conclusion. The approach is perceived critically, according to which only the categorical conclusion of the expert has evidentiary value, and the court cannot base the judgment on the probabilistic conclusion. Based on the provisions of the principle of the presumption of innocence, and on the example of the assessment of the conclusions of the forensic medical examination on the probabilistic cause of the death of the victim, which was made by the Supreme Court, applying the standard of proof beyond reasonable doubt, the authors point to the obligatory use of probabilistic expert conclusions by courts to justify its acquittals. The article draws conclusions about the current state and limits of legal regulation of the assessment of an expert’s conclusion in criminal proceedings, the rules of which, according to the authors, do not need to be fixed in a separate article of the Criminal Procedure Code of Ukraine.

scholarly journals The standard of proof “beyond a reasonable doubt” in criminal proceedings of Ukraine in the context of the ECHR case-law

2021 ◽  
Vol 10 (46) ◽  
pp. 281-289
Author(s):  
Oleksandr Drozdov ◽  
Volodymyr Hryniuk ◽  
Serhii Kovalchuk ◽  
Liliia Korytko ◽  
Galyna Kret
Keyword(s):  
Research Methodology ◽  
Practical Implication ◽  
Case Law ◽  
Reasonable Doubt ◽  
Criminal Proceedings ◽  
Standard Of Proof ◽  
Legal Method ◽  
Methods Of Analysis ◽  
The Subject ◽  
The Individual

The purpose of the paper is to determine a content of the standard of proof “beyond a reasonable doubt” (SP “BRD”) in the ECHRcase law and Ukrainian criminal proceedings by defining the criteria that characterize it. The subject is the SP “BRD”, doctrine of Ukraine and case-law, including its criticism by the individual judges of the ECHR and Ukrainian scholars. The research methodology includes the methods of analysis, the method of synthesis, the methods of deduction and induction, comparative-legal method, systematic and formal-legal methods. The results of the study. The acceptability of the SP “BRD” in the Ukrainian criminal proceedings is substantiated, in particular, its compliance with the purpose of criminal procedural proof. Practical implication. The criteria which characterize the SP “BRD” in the ECHR’s and SC’s case law are highlighted.

LEGAL NATURE OF THE EXAMINATION DE NOVO OF VALID RULINGS IN CRIMINAL PROCEEDINGS

2019 ◽  
Vol 3 (84) ◽  
pp. 4
Author(s):  
Inese Baikovska
Keyword(s):  
De Novo ◽  
Comparative Method ◽  
Criminal Procedure ◽  
Legal Framework ◽  
Synthetic Methods ◽  
Legal Certainty ◽  
Criminal Proceedings ◽  
Res Judicata ◽  
Criminal Procedure Law ◽  
Teleological Interpretation

In this article, the author examines recent developments of the existing criminal procedure legislation with regard to the fresh examination of valid judicial decisions. According to the principle of legal certainty (res judicata), no appeal may lie from a decision that has already entered into force in a criminal case. However, if such a decision proves to be unlawful, the right of persons to a fair trial and a fair final judgment should be regarded as a priority with respect to the principle of legal certainty and legal means should be found for fresh examination or review.The goal of this article is to examine the legal framework and role in criminal proceedings of the following two legal institutions: the re-opening of criminal proceedings due to newly discovered circumstances and the fresh examination of valid decisions due to serious breaches of substantive or procedural law.The tasks of this article are to investigate the fresh examination of valid decisions as defined in the Criminal Procedure Law, opinions provided by legal researchers and relevant case-law. As a result of the research, conclusions are formulated with regard to the legal significance of the fresh examination of valid decisions, and specific suggestions are provided for the improvement of the existing legal framework.The research is based on the analysis of legislation, court decisions, conclusions and opinions. For this article, the author has examined interrelations and differences of the procedural framework according to analytic and synthetic methods and benchmarked specific provisions against other laws based on the comparative method. The methods of grammatical, systemic and teleological interpretation have also been applied in analysing specific legislation and determining the spirit and purpose of laws.

The First Pinochet Case: Immunity of a Former Head of State

1999 ◽  
Vol 48 (1) ◽  
pp. 207-216 ◽  
Author(s):  
Colin Warbrick ◽  
Dominic McGoldrick ◽  
Hazel Fox
Keyword(s):  
Criminal Liability ◽  
Sovereign Power ◽  
Criminal Proceedings ◽  
State Immunity ◽  
Head Of State ◽  
House Of Lords ◽  
Civil Proceedings ◽  
Protection Of Human Rights ◽  
The Individual ◽  
Reversal Of Fortune

The case of Pinochet has aroused enormous interest, both political and legal. The spectacle of the General, whose regime sent so many to their deaths, himself under arrest and standing trial has stirred the hopes of the oppressed. His reversal of fortune, loss of liberty with a policeman, on the door, has been heralded by organisations for the protection of human rights as one small step on the long road to justice. For lawyers generally, the House of Lords' majority decision of 1998 that General Pinochet enjoyed no immunity signalled a shift from a State-centred order of things.1 It suggested that the process of restriction of State immunity, so effectively begun with the removal of commercial transactions from its protection, might now extend some way into the field of criminal proceedings. And it further posed the intriguing question whether an act categorised as within the exercise of sovereign power, so as to relieve the individual official of liability in civil proceedings, may at the same time, as well as subsequent to his retirement, attract parallel personal criminal liability.

scholarly journals Opening a Path towards Sustainable Corporate Behaviour: Public Participation in Criminal Environmental Proceedings

2021 ◽  
Vol 13 (14) ◽  
pp. 7886
Author(s):  
Pavel Kotlán ◽  
Alena Kozlová ◽  
Zuzana Machová
Keyword(s):  
Public Participation ◽  
Criminal Liability ◽  
Active Role ◽  
Legal Framework ◽  
The European Union ◽  
Criminal Proceedings ◽  
Human Rights Protection ◽  
The Public ◽  
Governmental Organizations ◽  
Non Governmental Organizations

Establishing criminal liability for environmental offences remains daunting, particularly with regard to the ‘no plaintiff—no judge’ element as a result of which the public seems to be ultimately deprived of the possibility to participate in criminal environmental proceedings. While there is arguably a lack of specific instruments at the European Union (EU) level which would prescribe such legal obligation on the part of the State, there has been a shift in understanding the role of the public and its participation in criminal liability cases, namely under the auspices of the so-called effective investigation and the concept of rights of victims in general. Using the example of the Czech Republic as a point of reference, this article aims to assess the relevant legal developments at both EU and Czech levels to illustrate why the non-governmental organizations (NGOs), essentially acting as public agents, should be granted an active role in environmental criminal proceedings. After examining the applicable legal framework and case law development, the article concludes that effective investigation indeed stands as a valid legal basis for human rights protection which incorporates an entitlement to public participation. Despite that, this pro-active shift is far from being applied in practice, implying that the legislation remains silent where it should be the loudest, and causing unsustainable behaviour of companies.

Competitive Jurisdictions of Local Administration Authorities and Notaries for the Certification Purposes in Montenegro

2021 ◽  
Vol 19 (3) ◽  
pp. 439-459
Author(s):  
Velibor Korać
Keyword(s):  
Legal System ◽  
Public Interest ◽  
Local Administration ◽  
Legal Certainty ◽  
Public Authorities ◽  
Political Reason

With the adoption of the new Law on Certification of Signatures, Manuscripts and Transcripts the Montenegrin legislator did not take into account the fact of introducing the notary services into the legal system of Montenegro. Unlike most of the comparative legislations, certification of signatures, transcripts and manuscripts have not been transferred to the exclusive competence of notaries, but a competitive competence of notaries, local administration authorities and the courts in carrying out these assignments has been retained. Further retention of competitive jurisdiction in this matter is not justified any more. The analysis of this decision has shown that it leads to an unequal position, depending on the authority before which the certification is performed, whereas the obligations and professional competences of officials and notaries are different. Notarial certifications contribute to greater legal certainty and besides are more available to the citizens and not more expensive. Parallel jurisdiction is not a standard of notarial services in European continental law which has adopted the Latin model of notary as a independent profession having public authorities. This solution does not lead to building a legal certainty, protection of public interest and relieving the work of courts and administrative authorities, which has been the underlying legal political reason for introducing notariat.

scholarly journals Circumstances to Be Clarified under the Investigation of Interference into Law Enforcement Officer’s Activity

2021 ◽  
Vol 81 (2) ◽  
pp. 97-103
Author(s):  
V. O. Gusieva
Keyword(s):  
Law Enforcement ◽  
Criminal Liability ◽  
Demographic Data ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Enforcement Officer ◽  
Criminal Offenses ◽  
Procedural Costs ◽  
Detailed List ◽  
Law Enforcement Officer

The author has substantiated the need to establish the circumstances to be clarified and has determined their significance during the investigation. It has been emphasized that the circumstances to be clarified include the circumstances to be proved in criminal proceedings, criminal and forensic characteristics of a criminal offense. In order to determine the circumstances to be clarified during the investigation of interference in the activities of a law enforcement officer, the author has studied the circumstances to be clarified within the group of criminal offenses related to obstruction of the activities of a law enforcement officer, as well as during the investigation of interference in the activities of a forensic expert. Taking into account the specified scientific provisions, the author has defined a detailed list of circumstances to be clarified during the investigation of interference in the activities of a law enforcement officer. It has been established that the circumstances to be clarified during the interference in the activities of a law enforcement officer include: 1) circumstances related to the criminal offense, namely: time, place, situation and traces of a criminal offense, methods of its commission (preparation, direct commission and concealment), tools and means used during the interference, the scope of procedural costs; circumstances that are the basis for ceasing criminal proceedings; the reasons and conditions that contributed to the commission of a criminal offense; 2) circumstances related to the identity of the victim, including: socio-demographic characteristics of the victim, place of work, position held; official and functional responsibilities, the victim’s belonging to a law enforcement agency during the commission of a criminal offense against him; the type and scope of damage caused to the victim; 3) circumstances related to the identity of the offender, namely: socio-demographic data of the offender, physiological and psychological condition, gender, citizenship, financial status, place of work, the record of criminal conviction and the facts of bringing to administrative liability; the presence of dependent disabled people; the presence of guilt in the form of direct intent, the purpose of the action; circumstances that aggravate or mitigate the punishment of the offender are grounds for releasing from criminal liability or punishment that exclude criminal liability; presence of accomplices.

scholarly journals USE OF SPECIAL KNOWLEDGE DURING THE EXAMINATION OF THE SCENE OF A CRIME IN THE ORDER OF PART 3 ART. 214 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE

2021 ◽  
Vol 74 (1) ◽  
pp. 153-160
Author(s):  
Andrіy Shulha ◽  
◽  
Tetyana Khailova ◽  
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Knowledge And Skills ◽  
Procedural Law ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
The Law

The article deals with the problem of specialist’s participation in the scene examination, which is carried out before entering information into the Unified Register of the pre-trial investigations. The essence of the problem is that the current criminal procedural law of Ukraine recognizes the specialist’s participation only in the pre-trial investigation, the litigation and the proceedings in the case of the commission of an unlawful act under the law of Ukraine on criminal liability. Part 1 of Article 71 of the Criminal Procedure Code of Ukraine states that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and conclusions during the pre-trial investigation and trial on issues that require appropriate special knowledge and skills. In other cases, the specialist has no procedural status. In addition, Part 1 of Article 237 of the CPC of Ukraine «Examination» states that the examination is conducted to identify and record information on the circumstances of the offense commitment. It is an act provided by the law of Ukraine on criminal liability. However, there are the cases in the investigation, when a report is received, for example, about a person's death, other events with formal signs of the offense, which must first be checked for signs of a crime, and only then the act can be considered as offense. In this case, a specialist takes part in the scene examination. However, the current criminal procedure law in accordance with Part 1, Article 71 of the Criminal Procedure Code of Ukraine determines the legal status of a specialist only as the participant in criminal proceedings. The paragraph 10, part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines the criminal proceedings as pre-trial investigation and court proceedings or procedural actions in the case of the commission of an unlawful act. Therefore, when the inspection of the scene is based on the uncertain status of the event (there is no clear information that the event contains signs of an offense), the specialist’s participation is not regulated by law. The authors propose to consider the specialists as «experienced persons» in cases mentioned above and to include their advices to the protocol of the scene examination, as the advices of other scene examination participants.

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