scholarly journals „Owoce zatrutego drzewa” z perspektywy oskarżyciela publicznego w aspekcie konstytucyjnych podstaw procesu karnego

2021 ◽  
Vol 28 (2) ◽  
pp. 61-74
Author(s):  
Mariusz Krasoń
Keyword(s):  
Due Process ◽  
Criminal Responsibility ◽  
The Body ◽  
Public Prosecutor ◽  
Actual State ◽  
Criminal Proceedings ◽  
Legal Proceedings ◽  
The Public ◽  
The Law ◽  
The Right

The problems of the so-called poisonous tree in the course of the preliminary legal proceedings appear and continue to appear basically in every individual instance of the evaluation of the body of evidence submitted to the public prosecutor’s department. The task of the public prosecutor’s department has to do inter alia with the keeping of law and order and the supervision of the prosecution of crime. This task is realised by the supervision of the consistency of the preliminary legal proceedings with the law, and the initialisation and the performance of operational-examination activities by law enforcement organs in the scope of activities which is stipulated in the acts of law which regulate the organisation and the object of activities of these organs. The supervision which was indicated should be realised in an in-depth, comprehensive and substantive manner. Within the framework of the evaluation of the activities engaged by other organs, inluding those that are authorised to execute and conduct operation-related activities, the public prosecutor is obliged to evaluate the correctness of the process of the accumulation of evidence and the making of decisions in terms of the scope and the means of utilising the said evidence. Such control may and should be conducted with reference to the constitutional principles, described particularly in Art. 2 – the principle of a democratic state of law, Art. 7 – the principle of legalism, Art. 45 Par. 1 – the principle of the right to a trial and the resulting principle of the right to due process. The regulations of the Constitution of the Republic of Poland have not been modified since 1997, therefore with the changed state of the regulations of the Code of Criminal Law (the addition of new regulations in Art. 168 a and b ) or the competence-related acts of law, it is still possible to interpret these regulation in terms of the constitutional norms which were indicated. The new content which was introduced to the code of criminal procedure is a source of serious constitution-related doubts, and the evaluation of the material which was submitted to be treated during criminal proceedings may lead to statements that the very fact of having acquired a piece of evidence with the violation of regulations or by means of a criminal offense and the simultaneous violation of the regulations of the Constitutions is sufficient to preclude the utilisation of a given piece of evidence in these legal proceedings and to preclude the establishment of the actual state of affairs on the basis of such a piece of evidence. It is impossible to accept a situation in which the functionaries of the state, i.e. of public authorities, can collect evidence-related material in violation of the law which is binding and it is in keeping with the law that, on the basis of this material, citizens may bear criminal responsibility.

Silence with caution: The right to silence in police investigations in Belgium

2021 ◽  
pp. 203228442110283
Author(s):  
Ashlee Beazley ◽  
Fien Gilleir ◽  
Michele Panzavolta ◽  
Joëlle Rozie ◽  
Miet Vanderhallen
Keyword(s):  
Case Law ◽  
Public Prosecutor ◽  
Criminal Proceedings ◽  
The Public ◽  
Digital Devices ◽  
Police Investigations ◽  
Right To Silence ◽  
Right To Information ◽  
Definition Of ◽  
The Right

This article is about the right to remain silent within Belgium. Although the right has always been considered applicable, both the courts and parliament have historically demonstrated a disinclination to define or engage with this. The right to silence is now formally recognised in the Belgian Code of Criminal Procedure, albeit with the classic distinction between those who are not (yet) accused of a crime and those who are formal suspects: while all enjoy the right not to incriminate themselves, only formal suspects in Belgium enjoy the explicit right to remain silent. Accordingly, whilst no one may be obliged to assist with their own conviction or be forced to co-operate with the authorities, it remains unclear how far the right not to cooperate effectively stretches. The case law seems to be moving, albeit slowly, in the direction of confining this right within narrower borders, particularly by excluding its applicability with regard to the unlocking and decryption of digital devices. This is not, however, the only idiosyncrasy concerning the right to silence in Belgium. Among those also addressed in this article are: the lack of caution on the right to remain silent given to arrested persons immediately following their deprivation of liberty (an absence striking for its apparent breach of Directive 2012/13/EU on the right to information in criminal proceedings); the possible inducement to breach the right to silence via the discretionary powers of the public prosecutor to offer a reduction or mitigation in sentence; the obscurity surrounding the definition of ‘interrogation’ and the consequences of this on both the caution and the obtaining of statements; and the extent to which judges can draw adverse inferences from the right to silence. The question remains: is the right to silence currently protected enough?

scholarly journals Jawność rozprawy głównej a gwarancje przewidziane w Konstytucji

2021 ◽  
Vol 28 (2) ◽  
pp. 225-237
Author(s):  
Radosław Koper
Keyword(s):  
Critical Analysis ◽  
Criminal Procedure ◽  
Public Prosecutor ◽  
Fundamental Change ◽  
Criminal Proceedings ◽  
Main Trial ◽  
Criminal Proceeding ◽  
The Public ◽  
Constitutional Right ◽  
The Right

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.

Indentured Labour and Khoikhoi ‘Equality’ before the Law in Cape Colonial Society, South Africa: The Case of Jan Paerl, c. 1796

Itinerario ◽  
2005 ◽  
Vol 29 (3) ◽  
pp. 54-72 ◽  
Author(s):  
Russel Viljoen
Keyword(s):  
Cape Town ◽  
Public Prosecutor ◽  
Biological Father ◽  
Legal Intervention ◽  
The Public ◽  
The Road ◽  
Colonial Society ◽  
Sole Custody ◽  
The Law ◽  
The Right

In July 1796, Johannes Albertyn, a well-respected burgher of Stellenbosch, requested permission from Ryno van der Riet, landdrost of Stellenbosch, the chief administrative and legal officer of the district, to indenture four Khoikhoi children. He claimed that their mother, Catryn Paerl, had died recently and that before her demise, she had requested him in the presence of witnesses to raise her children and deny their biological father Jan Paerl any future role in their lives. Faced with the prospect of losing custody of his four children and having exhausted all possible avenues in seeking legal redress, including a visit to landdrost Van der Riet, the seemingly incomparable Jan Paerl hit the road and walked several kilometres from Stellenbosch to Cape Town. His destination: the Castle, in particular the office of the fiscal, otherwise known as the public prosecutor. In Cape Town, he urged the fiscal to intervene in the dispute and deny Albertyn the right to indenture his children. As their father, Paerl insisted that he, and not Albertyn, be granted sole custody of his offspring. By Paerl's demanding legal intervention at the highest level, the following encounter between Paerl, Albertyn and the Cape authorities exemplifies not only a classic struggle between master and servant, but highlights simultaneously the significance of ‘equality’ before the law in Cape society, at a time when burghers increasingly feared the possibility of gelykstelling at the end of the eighteenth century.

scholarly journals Implementation of the normative content of the principle of ensuring the right to liberty and security of person in the course of criminal procedural evidence

2021 ◽  
Vol 66 ◽  
pp. 235-239
Author(s):  
T.M. Miroshnichenko
Keyword(s):  
Judicial Review ◽  
Criminal Liability ◽  
The Body ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
House Arrest ◽  
The Law ◽  
Precautionary Measures ◽  
The Right ◽  
Normative Content

Consolidation at the level of the Constitution of Ukraine of the principle of ensuring the right to liberty and security of person necessitated the study of its essence and normative content in order to assess the correctness of the legislative approach to formulating the principle at the level of sectoral regulations. The normative content of the principle is enshrined in Art. 12 of the CCP. Analysis of the wording of this article allows us to identify three components of the principle, which reflect its requirements: prohibition, protection, security. The first element of the principle is the provisions of Part 1 of Art. 12 of the CCP. The key concepts that substantively fill this element are the following: restriction of freedom in criminal proceedings is possible only by a reasoned court decision; the reason for such a restriction is the suspicion of committing a criminal offense; restriction of liberty occurs in the manner prescribed by the Criminal Procedure Code. Procedures for restricting the right to liberty are corrected due to the importance of the restricted right. Judicial review proceedings on the prosecution's request to choose precautionary measures restricting liberty are characterized by its active position in proving the circumstances, which is the basis for restricting a person's liberty. The investigating judge, in the presence of a duly motivated and substantiated request, takes an active position solely to verify the information that is the basis of the request. The content of the element of protection consists of the provisions of the law on: the need to bring the detainee to the investigating judge as soon as possible and to check the legality and validity of the restriction of liberty; notification of the detention of the person of her relatives. The third element of the normative content of the principle is formulated in Part 5 of Art. 12 of the CCP. The law provides for criminal liability for knowingly illegal detention, pretext, house arrest or detention (Article 371 of the CPC), as well as the possibility of compensation for damage caused by illegal decisions, actions or omissions of the body carrying out investigative activities, pre-trial investigation, prosecution or court (Article 130 of the CPC).

scholarly journals Results of an empirical study on the effectiveness of urgent measures in the Republic of Serbia

2021 ◽  
Vol 63 (1) ◽  
pp. 19-43
Author(s):  
Aleksandar Bošković ◽  
Tanja Kesić
Keyword(s):  
Domestic Violence ◽  
Public Prosecutor ◽  
Preventive Action ◽  
Criminal Proceedings ◽  
The Public ◽  
Individual Number ◽  
The Subject ◽  
The Law ◽  
The Republic ◽  
The Individual

Contemporary legislation, not only criminal and criminal proceedings law, has entered a new stage, that is currently underway and that is reflected in significant reforms and new legislation, as well as seeking new solutions to increase efficiency in preventing and combating domestic violence. The Republic of Serbia embarked on this path by adopting the Law on Prevention of Domestic Violence, which should primarily intensify the preventive action of the competent state bodies in cases of domestic violence. The Law on Prevention of Domestic Violence started to be applied on June 1, 2017 and given the fact that it has been applied for the past three years, it is necessary to carry out an adequate analysis and to evaluate whether it has increased efficiency when it comes to combating domestic violence. In this regard, the subject of this paper is primarily the analysis of the practical application of urgent measures provided by the Law imposed by the police, the public prosecutor and the court. This research will cover a period of two years of applying of the law, i.e. the period from June 1, 2017 to May 31, 2019. During the research, the statistical method was used along with the methods of analysis, deduction, comparison and description. The paper will analyse: both the total and the individual number of urgent measures imposed by the police; territorial distribution of the imposed urgent measures on the territory of the Republic of Serbia; imposing of extended urgent measures by the court, and a significant aspect of this research will be dedicated to the issue of violations of the imposed urgent measures.

scholarly journals PROBLEMS IN THE IMPLEMENTATION OF PROSECUTORIAL SUPERVISION IN THE FIELD OF LAND USE

2020 ◽  
Vol 34 (2) ◽  
pp. 140-144
Author(s):  
V.T. Azizova ◽  
◽  
A.A. Abdullatipova ◽  
Keyword(s):  
Land Use ◽  
Rule Of Law ◽  
Significant Role ◽  
Public Prosecutor ◽  
The Rule Of Law ◽  
The Public ◽  
Legal Documents ◽  
The Law ◽  
The Right

The relevance of the issues discussed in this article is due to the importance of ensuring the preservation of land, the legality of its use and the protection of land in various ways. The Public Prosecutor 's Office has a significant role to play in this process, which has the right to detect violations of the law in this area, to contribute to their prevention, as well as to bring the perpetrators to various types of responsibility. The purpose of the article is to consider the activities of the Public Prosecutor 's Office in this area, to identify difficulties in this activity and to develop proposals to overcome the identified problems. In conclusion, the following conclusions are made: 1) in addition to prosecutors, the rule of law process in the field of land use should involve all bodies whose activities are related to this area to some extent; 2) the relevant activities of the Public Prosecutor 's Office in the field of land use are to verify the legality of legal documents in this sphere, the activities of supervisory bodies with powers in the field of land use, compliance with the legislation by all parties to land legal relations; 3) the most common types of offences identified by prosecutors in this sphere are the absence of documents for land plots, self-capture of land plots, violation of procedure and legality of allocation of land plots

scholarly journals REVERSAL BURDEN OF EVIDANCE ON A CRIMINAL CORRUPTION IN INDONESIA

2018 ◽  
Vol 2 (2) ◽  
pp. 72
Author(s):  
Hasnawati Hasnawati
Keyword(s):  
Law Enforcement ◽  
Research Result ◽  
Burden Of Proof ◽  
Public Prosecutor ◽  
The Public ◽  
Free Theory ◽  
Materials Research ◽  
The Law ◽  
The Right

The research aim are to know the implementation of strict evidence in corruption committed in Indonesia and the constraint or obstacle faced by the corruption agency. The method of this research was normative juridical, because the research about reversal burden of proof of corruption in crime in Indonesia, which data obtained from primary, secondary, and tertiary legal materials. Research result reveal that implementation of proof in corruption cases is often felt to be ineffective and very burdensome to the Investigator apparatus therefor  two theories of proof, namely the free theory embraced by the dependent and negative theory according to the law adopted  by the public prosecutor or ordinary commonly called the theory reversal burden of  limited proof and in balance , the dependent has the right to proved that he has not commited a criminal act of corruption and that the prosecutor still has the duty to verify the indictment. The obstacles faced by law enforcement in implementing the burdening system of proof on the handling of corruption crime, namely the Contraints for the public Prosecutor and the obstacle for the judge divided into 2(two) types, namely : Juridical and Non Juridical Contrains

scholarly journals Investigative and the Rule of Law: A Cameroonian and Ukrainian Criminal Proceedings Law Understanding

2021 ◽  
Vol 9 (3) ◽  
pp. 517-538
Author(s):  
Nana Charles Nguindip ◽  
Leonid Volodymyrovych Mohilevskyi ◽  
Ablamskyi Serhii Yevhenovych ◽  
Tetiana Kuzubova
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Due Process ◽  
Criminal Proceedings ◽  
Human Right ◽  
Criminal Process ◽  
The Rule Of Law ◽  
Crime Commission ◽  
The Law ◽  
The Right

There is no instance in a given society that can successfully opeate and function without respecting existing standards and principles set in place in ensuring the respect of fundamental human right and dignity. The notion and acceptable rule is that, Crime commission is an unavoidable singularity in any given and documented society functioning under the umbrella of established rules and regulations. Cameroon and Ukraine has engaged huge steps in establishing credible laws, all in the preservation and protection of fundamental human right of those presumed of crime commission. This article articulates and establishes that,the only way the rule of law can be respected during the investigative stage, will only when those responsible for investigation respects the due process of the law in the course of its investigation so that their act should not contravene the right of the suspect or accused in question. It provides that when issues of investigation are carried out by Ukraine and Cameroon police, gross violations of the criminal process are always experienced, and this greatly affects the objective of criminal law being that of protecting the right and dignity of everyone irrespective of the status quo acquired during the criminal proceedings.the results of this gross violation of the accuesed rights and status during the investigative stage will affect the rationale and objective of the criminal law system which is to ensure that all criminal process should respect human standard and dignity. The reason for this is that, during the investigative process and procedure, the law enforcement ofiicers must be able in detaching their various duties assigned with due diligent and respect of the various criminal standards of investigation. To ensure that this is done, there is that need of those enforcing the jucial process and trial should that all evidences, searches, seizures, recording done by the investigative police officials should be done in accordance of the free will of the presumed criminal.

scholarly journals Legal Standing of Victims in Criminal Proceedings: Wickham v Magistrate, Stellenbosch 2017 1 BCLR 121 (CC)

2020 ◽  
Vol 23 ◽  
pp. 1-18
Author(s):  
Lindelwa Beaulender Mhlongo ◽  
Buhle Angelo Dube
Keyword(s):  
General Public ◽  
Public Prosecutor ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
The Public ◽  
Locus Standi ◽  
Legal Standing ◽  
Victim Impact Statement ◽  
The Right ◽  
Exercise Of Discretion

In late 2016, the Constitutional Court delivered judgment in a case, Wickham v Magistrate, Stellenbosch 2017 1 BCLR 121 (CC), involving Wayne Anthony Wickham (an aggrieved father and applicant in this case), who appealed against the decision of the Magistrate's Court in which he was denied the opportunity to hand up a victim impact statement. The thrust of his application was that his rights, as a victim of the crime in which his son was negligently killed by the fourth respondent, had been violated, and that this raised an arguable point of law of general public importance. The respondents, however, argued that the applicant lacked standing as the dominus litis in culpable homicide cases is the public prosecutor, and not the relatives of the deceased, or the victim. The case turned on whether the exercise of discretion by the Magistrate in denying Wickham the right to be heard was performed correctly; and whether a non-party to criminal proceedings could make an application for the review of the Magistrate's conduct. The article seeks to interrogate the rights of victims in criminal proceedings and aptly poses the following question: Do victims of crimes have a locus standi to be part of criminal proceedings?

scholarly journals PERSPEKTIF PERTANGGUNGJAWABAN PIDANA KORPORASI SEBAGAI PELAKU TINDAK PIDANA KORUPSI

2014 ◽  
Vol 26 (1) ◽  
pp. 87
Author(s):  
Eddy Rifai
Keyword(s):  
Death Penalty ◽  
Research Method ◽  
Criminal Responsibility ◽  
Deterrent Effect ◽  
Public Prosecutor ◽  
The Public ◽  
Criminal Penalties ◽  
The Law

This study examines the perspectives of corporate criminal responsibility as perpetrators of corruption. The research method used normative juridical approach and empirical jurisdiction. The results showed that the regulation of corporate criminal responsibility in criminal corruption has been regulated in the legislation of corruption but are rarely applied in practice. The reluctance of the Public Prosecutor filed a corporate offender to court, because the punishment to be imposed on the corporation only in the form of criminal penalties that have less than the deterrent effect of the death penalty or imprisonment and hardships refutation against the corporation as part elements of the law rather than to prove the guilt of a person accused acquitted result. Penelitian mengkaji tentang perspektif pertanggungjawaban pidana korporasi sebagai pelaku tindak pidana korupsi. Metode penelitian menggunakan pendekatan yuridis normatif dan yuridis empiris. Hasil penelitian menunjukkan bahwa pengaturan pidana tentang pertanggungjawaban pidana korporasi dalam tindak pidana korupsi telah diatur dalam peraturan perundang-undangan tindak pidana korupsi tetapi jarang diterapkan dalam praktik. Keengganan Jaksa Penuntut Umum mengajukan pelaku korporasi ke pengadilan, karena pemidanaan yang akan dikenakan kepada korporasi hanya berupa pidana denda yang kurang mempunyai efek penjera daripada pidana mati atau penjara dan kesulitan pembuktian “kesalahan” korporasi sebagai bagian unsur melawan hukum daripada membuktikan kesalahan orang perorang yang berakibat terdakwa dibebaskan.

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