scholarly journals Bezpośredni skutek „dyrektywy obrończej” w polskim procesie karnym

2021 ◽  
Vol 29 (3) ◽  
pp. 23-50
Author(s):  
Kacper Oleksy
Keyword(s):  
Direct Effect ◽  
Criminal Procedure ◽  
Legal Systems ◽  
The European Union ◽  
Criminal Proceedings ◽  
Legal Norms ◽  
Polish Code ◽  
The Right ◽  
Right Of Access ◽  
Union Directive

As of 27 November 2017 the deadline passed by which the European Union Directive 2013/48/EU on the right of access to a lawyer should have been implemented by the Member States in their respective legal systems. Poland completed the said responsibility only ostensibly, for no legal norms which regulate the standard of the right to formal defence contained in Polish Code of Criminal Procedure have been amended. This very situation makes it necessary to consider whether the norms of the directive in question may cause the so-called direct effect in Poland’s domestic legal system, particularly: whether prosecuted individuals may directly invoke the directive in order to, based on its content, seek the assistance of a lawyer in the course of criminal proceedings. Therefore, it stands to reason that, at least in relation to some of the competences envisioned in the directive, such eventuality exists, whereas in remainder of the cases the judicial bodies are obliged to interpret the respective norms of the Code of Criminal Procedure in pro-EU manner, thereby elevating the standard of right to formal defence present in Polish criminal proceedings. Nonetheless, the real transposition of this directive should be postulated, since invoking its direct effect cannot exempt a Member State from implementing it in accordance with EU treaties as a way to harmonize domestic legal systems.

scholarly journals Access to a Lawyer for a Suspect at Early Stage of Criminal Proceedings and Its Participation in Investigative Acts

2020 ◽  
Vol 41 (2) ◽  
pp. 109-127
Author(s):  
Joanna Dzierżanowska
Keyword(s):  
European Union ◽  
Criminal Law ◽  
Early Stage ◽  
The European Union ◽  
Criminal Proceedings ◽  
Legal Provisions ◽  
Polish Code ◽  
The Right ◽  
Right Of Access ◽  
Union Directive

This elaboration is dedicated to analysis of access to a lawyer for a suspect at early stage of criminal proceedings in Polish criminal law in the light of directive 2013/48/EU. In particular, it emphasises the suspects right of access to  a lawyer during identity parade, confrontation and reconstruction of the scene of a crime. It considers whether the applicable legal provisions of the Polish Code of Criminal Procedure ensure, above all, appropriate scope of the right of the defence for the suspected person in view of the indicated evidentiary activities and whether this scope corresponds to the standards designated by the European Union directive 2013/48/EU.

scholarly journals Procedural analogy: independent principle of criminal proceedings or the element of legality

2020 ◽  
pp. 113-126
Author(s):  
Nadiia Drozdovych
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Historical Aspect ◽  
Legal Norms ◽  
Judicial Practice ◽  
Procedure Code ◽  
Scientific Results ◽  
The Right ◽  
Principle Of Legality

The article is devoted to the study of procedural analogy place in the system of criminal proceedings principles in connection with the statutory provisions of Part 6 of Art. 9 of the Criminal Procedure Code of Ukraine. The historical aspect of the analogy institution normative consolidation in the domestic criminal process is given, which indicates that the institution of analogy in the norms of the Criminal Procedure Code has not been directly enshrined since the 1920s. At the same time, the science justified its necessity and admissibility in the criminal process; scientific results in this area are also given in the article. The existence of two types of analogy is stated: “analogies of right” and “analogies of law”, in connection with which the doctrinal provisions on the applicability of any of them in the modern criminal process are analyzed. The article also provides examples to use the institution of analogy in the judicial practice of the court of cassation. It has been established that despite the legislative technique, the doctrinal provisions and judicial practice state the admissibility of two types of analogy in the domestic criminal process. In this regard, the use of the term “procedural analogy” is justified as the most correct and such, which in its content covers the notion “analogy of the right” and the "analogy of the law". Since the legal norms on procedural analogy are placed within the framework of CPC article on the principle of legality, its relationship with the procedural analogy is determined. To this end, doctrinal statements about the concept of principles of criminal proceedings, author's positions on their classification as well as the criteria for their separate definition are given. Based on the above material, it was concluded that the procedural analogy is not an independent principle of criminal proceedings. The fact that the provisions of Part 6 of Art. 9 of the Criminal Procedure Code placed in the content of the principle of legality, suggests that the procedural analogy is one of the ways to achieve and implement this principle. Key words: analogy of law, analogy of right, procedural analogy, general principles of criminal proceedings.

scholarly journals Restriction of the access to justice for consideration of the criminal procedure dispute in accordance with the Article 125 of the Criminal Procedure Code of the Russian Federation

2021 ◽  
pp. 58-69
Author(s):  
Tatiana Topilina
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
Soviet Space ◽  
The Russian Federation ◽  
The Right ◽  
Right Of Access

This article analyzes the problems of implementation of the right of access to justice for consideration of the criminal procedure dispute in accordance with the Article 125 of the Criminal Procedure Code of the Russian Federation. The author carefully examines the legislation of the countries of post-Soviet space on filing a complaint against actions (omissions), as well as decisions of the prosecuting agency in pretrial proceedings. The subject of this research is the norms of the Russian and foreign legislation that regulate the right of access to justice in criminal proceedings. The object is the legal relations arising in the context of implementation of the right of access to justice. The article employs the universal systemic method of cognition; comparative-legal, formal-legal, and statistical methods; as well as logical analysis of the normative legal acts. It is indicated that restriction of the access to justice for consideration of the criminal procedure dispute in accordance with the Article 125 of the Criminal Procedure Code of the Russian Federation is also established by the practice developed in law enforcement for evaluation of the complaint prior to its consideration involving  the parties with the possibility of making a decision on whether to remit or reject the complaint in the absence of legislatively specified grounds, which directly affects the number of addressed complaints. The conclusion is made on the need to specify the grounds for remitting the complaint of an applicant filed in accordance with the Article 125 of the Criminal Procedure Code of the Russian Federation, for the purpose of excluding the possibility of decision made by the court that is not based on the law on remitting or rejecting the complaint for consideration (the Article 125 of Code of Criminal Procedure Code of the Russian Federation).

The European Union and the Rights of Individuals in Criminal Proceedings

2019 ◽  
pp. 114-136
Author(s):  
Valsamis Mitsilegas
Keyword(s):  
European Union ◽  
The European Union ◽  
Criminal Proceedings ◽  
Eu Directive ◽  
Transformative Potential ◽  
Right To Information ◽  
The Right ◽  
Procedural Rights ◽  
Right Of Access ◽  
The Eu

This chapter considers the secondary legislation that has been adopted by European Union institutions under Article 82(2) TFEU (Treaty on the Functioning of the European Union) in the field of procedural rights in criminal proceedings. Article 82(2) TFEU is included in the Lisbon Treaty conferring to the EU express competence to adopt minimum standards on criminal procedure. The chapter first provides an overview of the EU Directive on the right to interpretation and translation, the right to information, the right of access to a lawyer, the right to legal aid, procedural rights of children, and presumption of innocence. It then discusses some of the key challenges in reaching agreement on EU standards on procedural rights in criminal proceedings, before concluding with an analysis of the transformative potential of EU law on procedural rights when viewed within the broader constitutional and institutional context of the EU.

Provision of the access to justice for consideration of criminal procedure dispute in the court of cassation

2021 ◽  
pp. 37-48
Author(s):  
Tatiana Topilina
Keyword(s):  
Criminal Procedure ◽  
Time Constraint ◽  
Court Decision ◽  
Access To Justice ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
The Subject ◽  
The Right ◽  
Right Of Access ◽  
Court Hearing

This article analyzes the problems of exercising the right of access to justice for consideration of criminal procedure dispute in the court of cassation. The author examines the legislation of post-Soviet countries in terms of provision the access to justice for consideration of criminal procedure dispute in the court of cassation. The subject of this research is the norms of Russian and foreign legislation that regulate to right of access to justice in criminal proceedings. The object of this research is the legal relations that emerge in implementation of the right of access to justice. It its demonstrated that the restriction on access to justice for consideration of criminal procedure dispute in the court of cassation instance is the time constraint for filing cassation appeal for the convict; and for consideration of interlocutory court decisions – the procedure for assessing cassation appeal without holding a court hearing. The conclusion is substantiated on the need to waive the time constraint for filing cassation appeal for the convict against final court decisions that have entered into force, and for consideration of interim court decisions, the procedure for assessing cassation appeal against the interlocutory court decision should be eliminated without holding a court hearing.

The Europeanization of the Criminal Proceedings in the Republic of Croatia through the Implementation of the Directive 2013/48/EU

2019 ◽  
Vol 27 (2) ◽  
pp. 97-125
Author(s):  
Ante Novokmet
Keyword(s):  
Special Reference ◽  
Legal System ◽  
Criminal Procedure ◽  
Third Party ◽  
Criminal Proceedings ◽  
European Arrest Warrant ◽  
The Republic ◽  
The Right ◽  
Right Of Access ◽  
Practical Implications

The Act on Amendments to the Criminal Procedure Act (NN 70/2017) introduced, into the Croatian legal system, the Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and European arrest warrant proceedings as well as the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. This paper contains the analysis of the nomotechnical solutions after the implementation of the Directive 2013/48/EU in the Republic of Croatia. In addition, particular attention has been given to the new substantive term of the suspect and its practical implications in different stages of the Croatian criminal procedure with special reference to effects and perception of the implementation of the Directive 2013/48/EU in Croatian criminal procedure. The paper criticizes some domestic legal solutions and offer different approach, with respect to the trends that have been noticed after amendment of the Croatian Criminal Procedure Act.

scholarly journals SEKUNDARNI POSITION OF CONSENSUAL PROCEEDINGS

2019 ◽  
Keyword(s):  
Criminal Procedure ◽  
Public Law ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Public And Private ◽  
Legal Norms ◽  
Private Interests ◽  
Criminal Procedure Law ◽  
Court Proceedings ◽  
The Right

The article discusses the situation of civil law and consensus in the criminal process for not serious crimes. The essence of consensual proceedings in the criminal process is determined, its procedural form is disclosed, which includes the agreement of the parties and the grounds for closing the criminal proceedings both at the stage of pre-trial investigation and court proceedings. Considering the division of the right to public and private, on the basis of the consensual provisions of the criminal process, it is necessary to indicate that they have different substances and are divided according to different classification criteria. Based on the general and theoretical provisions of the criminal process, the consensual developments of this work, we can determine that public and private law has two directions, which include the theory of interest and the theory of protection of private interests. In this case, we can talk about the material and formal signs of theoretical modifications, namely, to proceed from the content of regulated relations, which should be based on material conditions. That is, if the norms of public law regulate the interests of a person, then they are built on the material theory. How they regulate and what they regulate, we attribute to the legal norms. The conclusion is that in relation to the construction of legal relations between the subjects of the process, this question can be put on the basis of the content of the subjective right. The criminal process has the authority to interfere with the norms of public law in the private interests of the person, if provided for by criminal law. We believe that the criminal procedure law should take measures to limit the interference of public law in private interests. Based on the analysis of civil procedural legislation, recommendations were given on drafting an agreement in the criminal procedure in the procedural form on compensation for material damage.

scholarly journals The Right to Defence in Poland. Remarks on the Latest Amendments of the Code of Criminal Procedure from the European Perspective

2020 ◽  
Vol 41 (2) ◽  
pp. 81-107
Author(s):  
Marek Ryszard Smarzewski
Keyword(s):  
Criminal Procedure ◽  
Third Party ◽  
Presumption Of Innocence ◽  
European Law ◽  
Criminal Proceedings ◽  
Minimum Standards ◽  
European Arrest Warrant ◽  
The Right ◽  
Right Of Access ◽  
Made In

The article discusses the issue of standards of the right to defence and takes into account the recent amendments of the Code of Criminal Procedure. The analysis is conducted against the background of minimum standards of the right to defence set out under European law. A reference introduced to the title of the Code includes the assertion that the legislator has implemented the provisions of Directive of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty as well as Directive of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings. However, it should be emphasized in this context that as a result of changes made in the discussed scope in the years 2016-2019, the legislator not only failed to fully implement the aforementioned Directives, but even introduced modifications that led to lowering the standards of the right to defence and guarantees of its implementation, both in material as well as formal terms.

scholarly journals Umocnienie praw jednostki w postępowaniu karnym w Unii Europejskiej a dyrektywa w sprawie dostępu do adwokata

2014 ◽  
pp. 11-34 ◽  
Author(s):  
Anastazja Gajda
Keyword(s):  
European Union ◽  
Legislative Process ◽  
The European Union ◽  
Criminal Proceedings ◽  
The Moment ◽  
The Right ◽  
Right Of Access ◽  
The Eu

The paper deals with the new Directive on the right of access to a lawyer in criminal proceedings in EU. The Directive aims at straightening of the rights of suspects (defendants) as a result of introduction of minimal standards (article 82 of the Treaty on the Functioning of the European Union). The Directive asserts the right of a suspect on the whole territory of the EU to remain in contact with his/her attorney from the moment of arrest until the end of criminal proceedings. The paper presents genesis of the Directive, the legislative process and analyses contents of the Directive.

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