Diff erentiation of solutions in view of the public prosecutor’s supervision over preparatory proceedings in criminal and tax off ence cases based on selected provisions of the code of criminal procedure and the penal fi scal code from the perspective of good law characteristics

2021 ◽  
Vol 143 (3) ◽  
pp. 356-366
Author(s):  
Mariusz Paweł Kluczyński
Keyword(s):  
Criminal Procedure ◽  
Public Prosecutor ◽  
Legal Argumentation ◽  
The Public ◽  
Court Proceedings

This article is an attempt to show the consequences of differences in regulations on Public Prosecutor’s supervision over proceedings as provided for by the Penal Fiscal Code and the Code of Criminal Procedure, from the perspective of good law characteristics. On the basis of selected regulations, the author attempts to demonstrate that the marginal supervision of the Public Prosecutor over the investigation in the penal fi scal proceedings as provided for in the legislation contradicts the clarity, coherence and effectiveness of law. The differentiation between solutions adopted in this respect gives rise to problems with normative regulations based on the Penal Fiscal Code and makes the regulations inconsistent with other legislation: the Act of 28 January 2016 — Law on the Prosecutor’s Offi ce and the Act of 17 June 2004 — on complaint regarding infringement of the party’s right to examine the case in preparatory proceedings conducted or supervised by a prosecutor and court proceedings without unreasonable delay. Further, in the content of the article the author refers to selected legislation applicable also to investigation regulated by the penal fi scal proceeding regulations. They serve as an example to demonstrate the thesis that the differentiation introduced in this respect in the legislation is entirely unreasonable as compared to the related regulations of the Code of Criminal Procedure. The analysis of those regulations proves that there is no system-related or legal argumentation that would justify this kind of exceptions. In the conclusions drawn on the basis of the analyses carried out in the article, the author states that the introduction of different regulations in the Penal Fiscal Code and the Code of Criminal Procedure as regards the Public Prosecutor’s supervision over the investigation conducted by the fi nancial authority responsible for preparatory proceedings and some exceptions in respect of investigations does not fulfi l the requirements of good law.

THE POSITION OF THE PUBLIC PROSECUTOR IN ADMINISTRATIVE PROCEEDINGS – LEGAL ANALYSIS

2021 ◽  
Vol 1 (XXI) ◽  
pp. 97-114
Author(s):  
Michał Sędziński
Keyword(s):  
Rule Of Law ◽  
Public Prosecutor ◽  
Special Role ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
The Public ◽  
Administrative Procedure ◽  
Court Proceedings ◽  
Administrative Proceedings

The aim of this article is to comprehensively analyse the legal position of the public prosecutor in administrative proceedings and administrative court proceedings. This subject is interesting because the public prosecutor is usually associated with criminal proceedings and his capacity as the public accuser. However, the public prosecutor plays a special role in administrative proceedings, i.e. participates in them as an entity with the rights of a party, even though he has no legal interest in it. It is also worth noting that the powers of the public prosecutor are clearly more extensive than those of other entities with the rights of a party. This article is an attempt to determine the role of the public prosecutor in administrative proceedings and decide whether he is the accuser or rather the representative of the public interest. The position of the public prosecutor in proceedings before administrative courts is special as well. This issue needs to be discussed in detail, which was taken into account in the second part of the article. The position of the public prosecutor as the advocate of the rule of law is regulated by the Act on the Public Prosecutor’s Office. The analysis of these provisions in conjunction with Chapter 4 of the Code of Administrative Procedure leads to a conclusion that the public prosecutor who acts in administrative proceedings as an entity with the rights of a party has powers vested in him alone and watches over such proceedings, thereby fulfilling the duties of an advocate of the rule of law. To fully show the special position of the public prosecutor, it is necessary to enumerate his powers in administrative proceedings and compare them with the competences of “ordinary” entities with the rights of a party.

PARTIAL WITHDRAWAL OF THE PRINCIPAL ACTION BY THE PROCESUTOR IN THE POLISH CRIMINAL PROCEEDINGS

2019 ◽  
Vol 1 (XIX) ◽  
pp. 173-183
Author(s):  
Jan Kil
Keyword(s):  
Current Model ◽  
Criminal Procedure ◽  
Public Prosecutor ◽  
Criminal Proceedings ◽  
The Public ◽  
The Subject

The subject of the article is the analysis of the admissibility of a partial withdrawal of a principalaction by the prosecutor in the current model of Polish criminal proceedings. The study defines the main procedural rules regarding the issue in question, namely the principle of accusatorial procedure and adversary trial system. In the study, the disposition of Article 14 § 2 of the Code of Criminal Procedure is being interpreted with the use of linguistic, teleological and functional directives of interpretation. The study also presents the arguments justifying the acceptance of the view of the admissibility of partial withdrawal of the complaint by the public prosecutor. The study presents the procedural implications of the aforementioned standpoint. In the study the possibility of partial withdrawal of the principal action on the basis of pending supplementary or private prosecution proceedings was also analyzed.

scholarly journals Separate Filing (Splitsing) In Criminal Case Management

2018 ◽  
Vol 1 (2) ◽  
pp. 461
Author(s):  
Hidayat Abdulah
Keyword(s):  
Case Management ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Public Prosecutor ◽  
Criminal Offense ◽  
Case File ◽  
The Public ◽  
Procedure Code ◽  
Court Process

In the implementation of the criminal case handling a lot of things that can be done to perfect evidence is the failure by one of them is doing a separate filing (splitsing). In Article 142 Criminal Procedure Code stipulates that the public prosecutor has the authority to separate docket (splitsing) against each defendant if found lacking evidence and testimony, as well as other matters that are not included in the provisions of Article 141 of the Criminal Procedure Code. Separation of the case must be based on solely the purpose of examination. That's what makes the public prosecutor has the authority to determine the case file should be separated (splitsing) or not. The purpose for doing the separation of the case file (splitsing) is to facilitate the enforcement of the prosecutor when the court process, to strengthen the evidence for lack of evidence when the process of verification, then a criminal offense committed by the offender more than one and the same time one of these actors into the search list (DPO) which allow splitsing.Keywords: Separate Filing; The Criminal Case.

scholarly journals Gugurnya Hak Menuntut Terhadap Korporasi Akibat Pailit

2021 ◽  
Vol 5 (3) ◽  
Author(s):  
Audaraziq Ismail ◽  
Eva Achjani Zulfa ◽  
Yutcesyam Yutcesyam ◽  
Fatiatulo Lazira
Keyword(s):  
Limited Liability ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Criminal Case ◽  
District Court ◽  
Public Prosecutor ◽  
The Public ◽  
Procedure Code ◽  
Ne Bis In Idem ◽  
Bankruptcy Code

Prosecution is basically an action by the public prosecutor to delegate a criminal case to the competent District Court so that it is examined and decided by a judge in a court session. With regard to prosecution, Article 109 of the Criminal Procedure Code states that there are 3 reasons for stopping prosecution, namely that an event is not a criminal act, there is not enough evidence collected by investigators to prove the fulfillment of the elements in a criminal act and for the sake of law. The Criminal Code, First, with regard to the application of the principle of ne bis in idem. Second, if the Defendant dies, Third, Expires, Fourth, Settlement outside the court, Article 82 of the Criminal Code has described if an offense is threatened with a fine only, then prosecution can be avoided by paying the maximum fine directly. Against corporations, prosecution is limited by a number of provisions, in this case also including when the corporation is bankrupt. That as a result, if the entire corporate assets are included in the bankruptcy code, there will be a transfer of corporate licenses and an impact on the liquidation process. Thus, based on the provisions of Article 142 paragraph (1) of Law no. 40 of 2007 concerning Limited Liability Companies, the corporation is dissolved. Thus, the prosecution of the bankrupt corporation can be dropped.

scholarly journals Implementation of Extraordinary Review (Pk) For the Public Prosecutors after the Decision of the Constitutional Court Number 33/Puu-Xiv/2016

2021 ◽  
Vol 04 (06) ◽  
Author(s):  
Rahmadianto Andra ◽  
Keyword(s):  
Criminal Procedure ◽  
Court Decision ◽  
Public Prosecutor ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Legal Principles ◽  
The Public ◽  
Legal Remedies ◽  
Procedure Code ◽  
The Right

The background of this paper is inspired and triggered to observe and study the legal uncertainty between the public prosecutor and the convict/his heirs regarding the authority to submit a PK Application as regulated in Article 263 paragraph (1) of the Criminal Procedure Code. The article states "the right of the public prosecutor" to apply for a PK application. However, what is expected by the Petitioner's wife is that Article 263 paragraph (1) of the Criminal Procedure Code can be interpreted in this way, "PK applications can only be filed by the convicted person or their heirs". This condition was exacerbated by the issuance of the Constitutional Court decision Number 33/PUU-XIV/ 2016 regarding "the right of the public prosecutor to file a PK application in a criminal case". This study aims to determine the application of extraordinary legal remedies by the public prosecutor and the implications of implementing these extraordinary remedies. The research method used is normative legal research. The results showed the application of extraordinary PK legal remedies for the public prosecutor after the Constitutional Court decision Number 33/PUU-XIV/2016, had direct implications for the Petitioner and his family. This implication is detrimental to the Petitioners' constitutional rights based on Article 28G of the 1945 Constitution because the protection of personal, family, honor and dignity has clearly been lost. It is better if the Constitutional Court reaffirms the legal principles in the article through constitutional interpretation which is an integral part that is not separate from the article in question and is able to provide fair legal certainty.

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.

Prevention of crime, tort and epidemy: The use of criminal procedure for preventive purposes in Poland during Covid-19

2021 ◽  
pp. 174889582110567
Author(s):  
Arkadiusz Lach
Keyword(s):  
Preventive Measures ◽  
Civil Law ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Public Prosecutor ◽  
Criminal Process ◽  
Illegal Activity ◽  
The Public ◽  
Polish Code ◽  
Prevention Of Crime

Criminal procedure is increasingly becoming an important instrument of prevention. This is a globally observed tendency, and Poland is not an exception. There are several regulations in the Polish Code of Criminal Procedure that allow the preventive use of coercive measures. In 2020, a new and controversial regulation was introduced, authorising the public prosecutor or court to prohibit the publication of content interfering with the legally protected goods of the victim. The author criticises the new preventive measure as duplicating civil law injunctions and expresses the opinion that, in criminal procedure, preventive measures should be used to prevent crime, not every illegal activity. In addition, the article describes the criminal procedure for isolating persons obliged to quarantine themselves because they have tested positive for Covid-19 or had contact with infected persons. This raises the question of the limits of the preventive function of provisional arrest and possible abuse of the criminal process using it for aims unrelated to the traditional goal of the criminal process: determining the question of guilt of the accused.

scholarly journals Analisis Yuridis Putusan Bebas terhadap Kasus Tindak Pidana Pembunuhan

2019 ◽  
Vol 2 (2) ◽  
pp. 399-411
Author(s):  
Ramot Lumbantoruan
Keyword(s):  
Research Method ◽  
Legal Theory ◽  
Descriptive Analysis ◽  
Criminal Procedure ◽  
Public Prosecutor ◽  
The Public ◽  
Legal Provisions ◽  
Procedure Code ◽  
Judicial Role

The purpose of this research is to describe the legal arrangements regarding the Free Verdict according to positive legal provisions, the Judicial role of the Judge in deciding a case and Juridical Analysis of a conviction for a murder crime (Study of Judgment Number 423 / Pid / 2008 PN. South Jakarta. This research method is normative juridical research.The nature of this research is descriptive analysis, which is a method used to describe a condition or condition that is happening or ongoing in order to provide as much data as possible about the object of research so as to explore things that are ideal, then analyzed based on legal theory or applicable laws and regulations.Results of this study, first, the legal arrangements regarding the acquittal according to positive legal provisions is to look at Article 191 Paragraph (1), paragraph (2) and paragraph (3) of the Criminal Procedure Code specifically also provides an understanding that reinforces its role law about being free from all lawsuits. Second, the role of judges legally in deciding a case in the decision of Case Decision Number 423 / Pid / 2008 / PN. South Jakarta is a judge must pay attention to the interests of various parties, both the interests of the defendant, witnesses, and the interests of the Public Prosecutor.

scholarly journals Tactics of presenting evidence by a prosecutor in a judicial investigation

2020 ◽  
Vol 6 (3) ◽  
pp. 179-185
Author(s):  
Elena V. Pavlova
Keyword(s):  
Criminal Procedure ◽  
Public Prosecutor ◽  
Criminal Cases ◽  
Considerable Difficulty ◽  
The Public ◽  
Complete Independence ◽  
Judicial Investigation ◽  
Criminal Procedure Law ◽  
Definition Of ◽  
A Charge

The article deals with individual issues of the tactics of participation of the prosecutor the public prosecutor in the basis of the part of the judicial investigation in criminal cases, which is connected with the presentation of evidence of the prosecution. It is noted that at present in the matter of determining the order of examining evidence by the parties, a unified position has been formed of both theorists and practitioners. They recognize the complete independence of the parties to determine this procedure in accordance with the tactics chosen by them. At the same time, the author draws attention to the fact that theoretical and methodical works still do not pay enough attention to the content and essence of this activity of the prosecutor in court, despite their obvious importance. His activity in the judicial investigation largely depends on the importance of tactical methods of presenting evidence and the ability to apply them. If he does not have the appropriate professional baggage, he will have considerable difficulty in the adversary process. The author sets out his own position regarding the content of evidence presented by the prosecutor the public prosecutor, proposes to include a definition of the relevant concept in the terminological apparatus of science of criminal procedure law and to fix it in the criminal procedure law. A derivative of it is the definition of the notion of tactics for the presentation of evidence by the prosecutor the public prosecutor. Conclusions are formulated on the need to intensify the development of up-to-date recommendations on the tactics of presenting evidence of a charge in a judicial investigation in criminal cases on crimes certain types

scholarly journals Metode Pembuktian Terbalik pada Tindak Pidana Korupsi

2015 ◽  
Vol 5 (2) ◽  
pp. 472-520
Author(s):  
Wawan Prasetyo
Keyword(s):  
Criminal Law ◽  
Criminal Procedure ◽  
The State ◽  
Public Prosecutor ◽  
Financial Loss ◽  
The Public ◽  
Crime Of Corruption

Abstract: This study is analyzes the Reversed Evidence Method in Restoring the State Financial Loss Caused by Corruption that are introduced in anti-corruption law in Indonesia. The research shows that the reversed method, as referred to article 12 B, 37, 37 A and 38 B of Undang-Undang No. 31 Year 1999 JunctoUndang-Undang No. 20 Year 2001, is a new methodologicalsystem on Criminal Law Procedure and Islamic Criminal Law Procedure in Indonesia. Through this kind of evidence method, the public prosecutor will use the result of the verification which had been carried out in reverse by the defendant as novum. If the defendant successfully proves his possession is not from corruption, there is no reason for the prosecutor to demand that the property is seized for the state. Conversely, if the defendant unsuccessfully proves, then it can be used as a novum to demand that the property is seized for the state. So, if the public prosecutor uses this method in uncovering the crime of corruption, it might be a very effective method in term of restoring the state’s financial loss.Keywords: Reversed evidence, corruption, Islamic criminal procedure Abstrak: Penelitian ini merupakan hasil penelitian metode pembuktian terbalik dalam mengembalikan kerugian keuangan negara pada tindak pidana korupsi menurut UU No. 31 Tahun 1999 juncto UU No. 20 Tahun 2001 tentang pemberantasan tindak pidana korupsi  perspektif  hukum acara pidana Islam. Hasil penelitian menunjukkan bahwa metode pembuktian terbalik sebagaimana dimaksud dalam pasal 12 B, 37, 37 A dan 38 B UU No. 31 tahun 1999 jo UU No. 20 tahun 2001, merupakan metode baru dalam sistem pembuktian pada Hukum Acara Pidaba Indonesia dan Hukum Acara Pidana Islam. Melalui metode pembuktian semacam ini, jaksa penuntut umum akan menggunakan hasil dari pembuktian secara terbalik yang dilakukan oleh terdakwa sebagai novum. Apabila terdakwa berhasil membuktian harta bendanya bukan berasal dari perbuatan korupsi maka tidak ada alasan bagi jaksa untuk menuntut bahwa harta benda tersebut dirampas untuk negara. Sebaliknya apabila terdakwa tidak berhasil membuktikan, maka hal tersebut dapat dijadikan novum untuk menuntut agar harta tersebut dirampas untuk negara. Apabila  metode ini diterapkan oleh penuntut umum dalam mengungkap kejahatan korupsi, adalah metode yang sangat efektif dalam kaitannya mengembalikan kerugian keuangan negara yang timbul dari kejahatan korupsi.Kata Kunci: Pembuktian terbalik, korupsi, Hukum Acara Pidana Islam

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