scholarly journals THE QUESTION OF EXCLUDING EVIDENCE OBTAINED IN CRIMINAL PROCEEDINGS AS A RESULT OF ENFORCING NATIONAL SECURITY WARRANTS BY THE ROMANIAN INTELLIGENCE SERVICE (SRI)

2021 ◽  
Vol 14(63) (1) ◽  
pp. 167-174
Author(s):  
Constantin Ioan Gliga ◽  
Keyword(s):  
National Security ◽  
National Level ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
High Court ◽  
Intelligence Services ◽  
Intelligence Service

Starting with 2016, the Constitutional Court of Romania issued a series of decisions whereby it repeatedly established that the interference of intelligence services in a criminal prosecution is not allowed, so that the evidence obtained with the help of these structures cannot be used in criminal proceedings, being affected by absolute nullity. This article summarizes the most relevant decisions of the constitutional court in this matter, as well as the recent practice of the High Court of Cassation and Justice, which we hope will signal other courts to ensure unitary jurisprudence at the national level.

Australian Secret Intelligence Service’s new powers: A step too far towards extraterritorial killings?

2019 ◽  
Vol 44 (4) ◽  
pp. 302-307
Author(s):  
Jamie Fellows ◽  
Mark D Chong
Keyword(s):  
Use Of Force ◽  
Criminal Prosecution ◽  
Foreign Nationals ◽  
Intelligence Services ◽  
Service Staff ◽  
Additional Protection ◽  
Intelligence Service

This article examines recent amendments to the Intelligence Services Act 2001 (Cth) ( IS Act). The amendments provide Australian Secret Intelligence Service staff and agents with additional protection from Australian criminal prosecution when using force under certain circumstances in overseas jurisdictions. The authors assert that while well-intentioned, and despite new and existing oversight provisions, the amendments allow pre-emptive use of force that could potentially be used to justify carrying out extraterritorial killings of Australians and foreign nationals, thereby breaching the lawful boundaries of Australian Secret Intelligence Service’s functions.

Intermediaries for Child Witnesses: Old Problems, New Solutions and Judicial Differences in South Africa

2011 ◽  
Vol 19 (2) ◽  
pp. 251-269 ◽  
Author(s):  
F. Noel Zaal ◽  
Carmel R. Matthias
Keyword(s):  
South Africa ◽  
South African ◽  
International Standards ◽  
Child Witnesses ◽  
Constitutional Court ◽  
The South ◽  
Criminal Proceedings ◽  
High Court ◽  
African Experience ◽  
Implementation Problems

AbstractSouth Africa has utilised intermediaries to protect child witnesses and assist their communication in criminal proceedings in the magistrates' courts since 1993. is article examines some lessons to be learned from the South African experience. It provides an overview and assessment of attempts to overcome implementation problems and develop the legislation providing for intermediaries. It reviews contradictory solutions for improvement of the law recently put forward by the high court and constitutional court. Applying both the South African history and international standards, we argue that the high court offered a better way forward. We suggest some additional reforms which may also be relevant for advocates of the intermediary system in other jurisdictions.

scholarly journals The subject of judicial control in consideration of complaints: controversial issues of legal regulation

2021 ◽  
Vol 2021 (2) ◽  
pp. 104-109
Author(s):  
El'vira Mirgorodskaya
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
The Russian Federation

The purpose of this study was an attempt to theoretically understand the subject of judicial consideration of complaints against decisions, actions (inaction) of officials carrying out criminal prosecution. The research was carried out on the basis of comparative legal, formal logical, empirical, statistical methods. Judicial statistics for the year 2020 have been provided, and legislation has been studied from a historical and contemporary perspective, taking into account the practice of the Constitutional Court of the Russian Federation. The problem is that, in practice, for about 20 years the courts have had difficulties in determining the subject of complaints, since neither in theory nor in practice a consensus has been developed on this issue. The Criminal Procedure Code of the Russian Federation also does not contain a definition of the concept of «subject matter». The situation is aggravated by the presence of evaluative concepts in the text of the law, leading to a varied understanding of the subject of appeal by the courts, which leads to a violation of the constitutional rights of citizens at the pre-trial stages of criminal proceedings. In the article, taking into account the analysis of the practice of the Constitutional Court of the Russian Federation, legislation and the opinion of scientists, a recommendation was made to amend the Criminal Procedure Code of the Russian Federation to specify the subject of consideration of complaints in accordance with Art. 125 of the Criminal Procedure Code of the Russian Federation in order to eliminate existing contradictions in practice and increase the level of protection of individual rights in pre-trial proceedings.

scholarly journals SOME ASPECTS OF THE PROSECUTOR'S PARTICIPATION IN REHABILITATION (IN ACCORDANCE WITH CHAPTER 18 OF THE CODE OF CRIMINAL PROCEDURE OF THE RUSSIAN FEDERATION)

2020 ◽  
Vol 30 (5) ◽  
pp. 747-752
Author(s):  
A.I. Shmarev
Keyword(s):  
Civil Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Right

The author of the article, based on the analysis of statistical indicators of the Prosecutor's office for 2018-2019 and examples of judicial practice, including the constitutional Court of the Russian Federation, examines the problematic issues of implementing the right to rehabilitation of persons unlawfully and unreasonably subjected to criminal prosecution, and the participation of the Prosecutor in this process. According to the author, the ambiguous judicial practice of considering issues related to the rehabilitation of this category of citizens requires additional generalization and analysis in order to make appropriate changes to the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 11 of 29.11.2011 "On the practice of applying the norms of Chapter 18 of the Criminal procedure code of the Russian Federation regulating rehabilitation in criminal proceedings". The examples given in the article of cancellation of lower-level court decisions were based on complaints of persons who independently sought to restore their rights, and not on the representations of the prosecutors involved in them, who were called upon to ensure the possibility of protecting human and civil rights and freedoms at the court session. The adoption of organizational measures, including those proposed by the author, in the system of the Prosecutor's office of the Russian Federation will increase the role of the Prosecutor in protecting the rights of illegally and unreasonably prosecuted persons.

Does Age Prevent Punishment? The Struggles of the German Juridical System with Alleged Nazi Criminals: Commentary on the Criminal Proceedings Against John Demjanjuk and Heinrich Boere

2010 ◽  
Vol 11 (3) ◽  
pp. 347-365 ◽  
Author(s):  
Susanne Beck
Keyword(s):  
Old Age ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedural Law ◽  
Federal Constitutional ◽  
Nazi Era ◽  
German Federal Constitutional Court ◽  
German Citizen

Modern western societies are aging—according to statistical analyses, in 2060, every seventh German citizen will be over 80 years old. The challenges of an aging society occupy jurisprudence and the legal practice. Issues specific to aging offenders and aging victims are more relevant than ever and must be analyzed. The question of old age is one of many problematic aspects of two criminal cases recently decided by the German Federal Constitutional Court. In the following, age's relevance to criminal prosecution and material criminal law will be discussed and related to an analysis of the proceedings of John Demjanjuk and Heinrich Boere, two alleged Nazi criminals, tried in their old age. Demjanjuk's case especially has raised questions well beyond the relevance of his age (89 years). The cases open up many interesting facets of German criminal procedural law and material law connected to the crimes of the Nazi era.

Judgment on Foreign Soldiers' Immunity for War Crimes Committed Abroad (BGH)

2021 ◽  
pp. 1-7
Author(s):  
Tom Syring
Keyword(s):  
War Crimes ◽  
Federal Court ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Basic Law ◽  
Functional Immunity ◽  
Federal Court Of Justice ◽  
Lower Ranking ◽  
Federal Constitutional

On January 28, 2021, the German Federal Court of Justice, or Bundesgerichtshof (BGH), Germany's highest court of ordinary jurisdiction, delivered its judgment in Case 3 StR 564/19 pertaining to questions of universal jurisdiction over international crimes and the extent to which foreign soldiers would be barred from prosecution in Germany based on claims of (functional) immunity for war crimes committed abroad. The decision strikes at the heart of a debate where such exceptions to immunity (ratione materiae) are yet to be uniformly agreed upon at an international level; it also comes on the verge of a number of related judgments that are pending both in German and other European courts. In the present case, the BGH held that according to the general rules of international law, criminal prosecution in Germany for war crimes committed abroad would not be precluded based on the notion of functional immunity, “when the acts have been committed by a foreign, lower-ranking defendant in the exercise of foreign sovereign activity.” Neither the BGH nor Germany's supreme guardian of the “Basic Law,” the Federal Constitutional Court, or Bundesverfassungsgericht (BVerfG), has previously pronounced itself on questions of functional immunity in criminal proceedings.

scholarly journals The established obligation for the ordinary courts to interpret the law in the light of the interpretation provided to the Convention by the Constitutional Court of Romania

2016 ◽  
pp. 65-74
Author(s):  
MIHAELA MAZILU-BABEL
Keyword(s):  
Human Rights ◽  
National Level ◽  
European Convention ◽  
Constitutional Court ◽  
High Court ◽  
Unique Interpretation ◽  
The Law

In the last years the Constitutional Court of Romania was asked to rule on the constitutionality of the erga omnes obligatory interpretations provided by the High Court of Cassation and Justice. Through such constitutionality review, the Constitutional Court manages to impose its own interpretation of the European Convention on Human Rights on all national ordinary courts whenever such courts are to ensure that the European Convention of Human Rights is observed and respected in a pending case. This paper sumarises a couple of such rulings, pointing out that through such constitutionality review rulings, the Constitutional Court of Romania has also established that it has the competence to impose, at the national level, the unique interpretation that can be given to a norm whenever that unique interpretation was already imposed by the High Court of Cassation and Justice.

scholarly journals Principles of Regulation of Tax Relations in Romania

2018 ◽  
Vol 5 (4) ◽  
pp. 85-92
Author(s):  
L Nani
Keyword(s):  
Present Article ◽  
National Level ◽  
Constitutional Court ◽  
Distinctive Features ◽  
High Court ◽  
European Court ◽  
Tax Laws ◽  
Appeal Courts

The maintenance of a balance between the proper execution of a state’s functions and individual interests is secured by the principles of regulation of tax relations. Such principles are defined by the constitutions and the tax legislations of foreign countries. The modern interpretation of the principles of regulation of tax relations is revealed by the relevant jurisprudence. The present article addresses matters of interest for Russia of the application of principles of regulation of tax relations in Romania. Such regulation is based, particularly, on the principles of legality, certainty and specificity, as well as bona fide of the taxpayer. The principles of proportionality and effectiveness of the EU apply in addition to the national level of legal regulation. The guarantor of the observance of such principles is the court: the biggest part of decisions on tax disputes are in favour of the taxpayer. The article represents an attempt to systematize the distinctive features of the realization of the aforementioned principles in the context of the analysis of the relevant jurisprudence of national courts of Romania (the appeal courts, the High court of cassation and justice and the Constitutional court), as well as of the European Court of Justice and the European Court of Human Rights. The identified distinctive features relate to the following matters: compliance with the constitutionally stipulated procedure of enacting tax laws and elimination of contradictions between secondary legislation and tax laws, inadmissibility of the retroactivity of the law, application of legal methods of ascertaining the risk of taxpayers who are to be verified, as well as compliance with tax secrecy requirements. The article contains examples of jurisprudence in the matter of accountability of a state in civil procedure for the illegal appropriation of funds from the taxpayer in the practice of national courts and of the European Court of Justice.

Konstytucyjne zasady postępowania karnego na tle orzecznictwa Polskiego Trybunału Konstytucyjnego

2017 ◽  
pp. 67-86
Author(s):  
Arkadiusz Krajewski
Keyword(s):  
Civil Rights ◽  
Social Factor ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Legal Norms ◽  
Constitutional Tribunal ◽  
The Republic ◽  
Humanitarian Principle ◽  
The Right ◽  
Social Importance

The Constitutional Tribunal is defined as the Polish constitutional court and at the same time the judicial authority. It was created at the turn of 1982. Not long after that it began its jurisprudence; more precisely it was in 1986. Describing its basic tasks, it is pointed out that judicial review of so-called constitutional law deserves a closer look. This is particularly true about controlling the compliance of lower legal norms with higher legal norms. Here attention is drawn towards the connection of the Constitution with some international agreements, ie. the court of law. The purpose of the paper below was to analyze the constitutional principles of criminal proceedings in the context of the case law of the Polish Constitutional Court. At the beginning the concept, the division and the role of the constitutional rules of criminal procedure were presented. In this section, it was emphasized that all the rules of the criminal process are considered superior norms of a very significant social importance. Then the principle of objectivity, which is reflected in the Constitution of the Republic, was described. A following aspect was the discussion of the principle of the presumption of innocence and the principle of in dubio pro reo. It has been emphasized that the essence of the principle is that the person who was brought before the court is treated as innocent until a lawful judgment is pronounced against the defendant. The author also pointed out the principle of the right to defense. According to this rule, the defendant has the right to defend themselves in the process and to use the help of a defender. Another described principle is so-called rule of publicity. It concerns the fact that information about criminal proceedings should be accessible to the public. Then it was pointed to the principle of the right to the trial and the independence of the judiciary. The first one is reflected in national law and acts of international rank. The second shows that the independence of the judiciary is determined by the proper exercise of the profession of judge and becomes a guarantee of freedom and civil rights. The humanitarian principle and the principle of participation of the social factor in the penal process are shown in the final section. At the end of the paper a summary and conclusions were presented.

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