scholarly journals Certain Solutions in the Law on Amendments to the Law on Criminal Procedure of the Republic of Srpska

2021 ◽  
Vol 11 (11) ◽  
Author(s):  
Veljko Ikanović
Keyword(s):  
Criminal Procedure ◽  
European Convention ◽  
Practical Application ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Protection Of Human Rights ◽  
Injured Party ◽  
The Law ◽  
The Republic ◽  
Republika Srpska

The author deals with the new position of the injured party in criminal proceedings, persons who may refuse to testify and exceptions from the direct presentation of evidence due to the unavailability of witnesses after the amendments to the Criminal Procedure Code of Republika Srpska from 2021. Starting from the current regulation of this matter, pointing to the solutions in the comparative legislation, the analysis of these changes indicates the consequences of such inconsistent and in some institutes unnecessary and erroneous standardization of this sensitive matter. Attention is drawn to the contradiction between the decision on the privileged witness and juvenile legislation, which is in line with the conventions protecting their position, and the European Convention for the Protection of Human Rights and Fundamental Freedoms. In that sense, the legislator is critically pointed out the shortcomings of certain solutions and suggests appropriate changes and additions in order to eliminate the problems that may arise during their practical application.

scholarly journals Basic Characteristics of Practical Application the Simplified Forms of Procedures in Criminal Cases of the Republic of Srpska // Osnovne karakteristike praktične primjene pojednostavljenih formi postupanja u krivičnim stvarima Republike Srpske

2018 ◽  
Vol 8 (8) ◽  
pp. 268
Author(s):  
Dragana Kosić
Keyword(s):  
Criminal Procedure ◽  
Plea Bargaining ◽  
Practical Application ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
New Approach ◽  
The Law ◽  
The Republic ◽  
Basic Characteristics ◽  
Penal Order

In the context of numerous measures taken to increase the efficiency of criminal proceedings, a special place belongs to the simplified forms of criminal cases proceedings. Inspired by the desire for saving time, costs and labour and avoiding formalities which seem unnecessary in routine cases, the simplified procedural forms are proposed to traditional criminal proceedings. In this context, the systematic reform of criminal procedural legislation has been executed, both at the level of Bosnia and Herzegovina and in its entities and the Brcko District BiH which has opened a completely new approach to criminal proceedings, in which the emphasis is not only on enhancing the protection of basic human rights and freedom but also the efficiency of the proceedings. The range of simplified and shortened procedures, the new criminal proceedings legislation in the Republic of Srpska is known through the following forms: witness immunity (Article 149 of the Law on the Criminal Procedure of the Republic of Srpska), plea of guilty (Article 244 of the Law on the Criminal Procedure of the Republic of Srpska), plea bargaining (Article 246 of the Law on the Criminal Procedure of the Republic of Srpska), procedure for issuing penal order (Article 358 of the Law on the Criminal Procedure of the Republic of Srpska). In this paper it will be discussed about practical application of the institutes from the aspect of the efficiency of criminal proceedings of the Republic of Srpska. The basic method that will be used in the theoretical part of the paper is a dogmatic and normative method, while in the second part of the paper the statistical method will be used.

Bosnian Constitutional Court: Unconstitutionality of the ‘Day of the Republic’

ICL Journal ◽  
2017 ◽  
Vol 11 (1) ◽  
pp. 153-161
Author(s):  
Mirha Karahodžić
Keyword(s):  
Bosnia And Herzegovina ◽  
European Convention ◽  
Constitutional Court ◽  
International Convention ◽  
National Assembly ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Law ◽  
The Republic ◽  
Republika Srpska

Abstract In its decision U 3/13 from 26 November 2015 the Bosnian Constitutional Court found on the request of a Member of the Presidency of Bosnia and Herzegovina that Article 3 (b) of the Law on Holidays of the Republika Srpska concerning the 9 January as ‘Day of the Republic’ is not in conformity with Article I (2) of the Constitution of Bosnia and Herzegovina, Article II (4) of the Constitution of Bosnia and Herzegovina in conjunction with Article 1 (1) and Article 2 (a) and (c) of the International Convention on the Elimination of All Forms of Racial Discrimination, and Article 1 of Protocol No 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Constitutional Court ordered the National Assembly of the Republika Srpska to harmonize Article 3 (b) of the Law on Holidays of the Republika Srpska with the Constitution within a time limit of six months from the date of delivery of the decision and to inform the Constitutional Court of the measures taken to enforce the Decision.

scholarly journals The position of the injured party in a prosecutorial investigation

2021 ◽  
Vol 93 (1) ◽  
pp. 43-86
Author(s):  
Aleksandar Kvastek
Keyword(s):  
Federal Republic ◽  
Criminal Procedure ◽  
Public Prosecutor ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
The Public ◽  
Procedure Code ◽  
Injured Party ◽  
The Difference ◽  
The Republic

This paper will analyse the position of the injured party in an investigation conducted by the public prosecutor's office, which was implemented in the Republic of Serbia in 2011. After we have given the definitions of the injured party and the difference with the term victim, as a criminological category, we will discuss whether the Serbian Criminal Procedure Code (2011) takes a step back when it comes to the position of the injured party in criminal proceedings. First of all, the ability of the injured party to become a subsidiary prosecutor was limited, as it was prescribed that the injured party can take over criminal prosecution only after the confirmation of the public prosecutor's indictment, so the opportunity to acts as a subsidiary prosecutor does not exist in the manner in which it existed under the Criminal Procedure Code from 2001 of the Federal Republic of Yugoslavia. Then, we shall demonstrate how the position of the injured party was exacerbated in relation to deferred prosecution, as the injured party cannot submit an objection to the higher public prosecutor to re-examine the decision not to prosecute and the injured party's consent is not needed for this decision. The research conducted among deputy public prosecutors and attorneys for the purposes of this paper confirms the presumption that the Criminal Procedure Code in force downgraded the injured party's impact on the criminal proceedings.

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.

scholarly journals PROSECUTOR'S SUPERVISION OF LAW CONDUCTING INVESTIGATIVE (SEARCH) ACTIONS

2020 ◽  
pp. 377-386
Author(s):  
Я. Ю. Конюшенко
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
The Law ◽  
Procedural Guidance ◽  
Compliance With The Law ◽  
The Relationship

The purpose of the article is to define the prosecutor's supervision over investigative (search) actions as a legal guarantee of human rights, as well as problematic issues in its implementation and to make proposals to improve the current criminal procedure legislation of Ukraine. The article defines doctrinal approaches to the concepts of "prosecutor's supervision over compliance with the law during the pre-trial investigation" and "prosecutor's procedural guidance of the pre-trial investigation" in the context of investigative (search) actions. The author came to the conclusion that the provisions of the Constitution of Ukraine, the Law of Ukraine "On the Prosecutor's Office" and the Criminal Procedure Code of Ukraine in terms of regulating the functions and powers of the prosecutor during the pre-trial investigation. Based on the study, it is proposed to consider procedural guidance as one of the forms of prosecutor's supervision over the pre-trial investigation, which is implemented directly by the prosecutor or a group of prosecutors who are appointed to carry it out in a particular criminal proceeding. The author also emphasizes the existence of forms of supervision of the highest level prosecutor on the legality of these actions, which are implemented through the demand and study of information on the progress and results of pre-trial investigation, criminal proceedings and certified copies of court decisions and study of compliance with criminal procedure. A number of problematic issues during the prosecutor's supervision in pre-trial criminal proceedings are outlined, which relate to the relationship between the prosecutor's supervision and judicial control over the legality of investigative (search) actions; subjects and subject of supervision of the prosecutor in this sphere; providing the prosecutor-procedural manager and prosecutors of the highest level with instructions and instructions during the investigative (search) actions. To address these issues, it is proposed to amend the current criminal procedure legislation of Ukraine. The study of the materials of criminal proceedings and the survey of the subjects of criminal proceedings indicate the existence of a number of problematic issues that exist during the implementation of the prosecutor's procedural guidance of investigative (search) actions in the context of human rights.

scholarly journals Criminal procedure between the law and the politics

2006 ◽  
Vol 78 (9) ◽  
pp. 546-578
Author(s):  
Slobodan Beljanski
Keyword(s):  
Criminal Procedure ◽  
Critical Reception ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Public Prosecution ◽  
Original Contribution ◽  
New Type ◽  
The Law ◽  
The Republic

The new Law on Criminal Procedure of the Republic of Serbia entered into force on June 10, 2006. It will apply starting from June 1, 2007 except for several provisions that have been effective ever since the Law entered into force. In this Article, the author has analyzed several new solutions from the first ten chapters of the Law from the logical, functional, historical and comparative point of view. The author concluded that the number of unacceptable and unnecessary solutions in this law seriously exceeded the number common for this kind of projects. It was hard to expect different result from the work which was done quickly and without critical reception with a noticeable intention of the authors to put their own original contribution to one, in fact, eclectic project. Since there is a lack of legal reasons, the author has outlined possible political intentions that might have been caused by the wish to show off with one more reformative project or from the intention to influence the criminal proceedings through the combination of the new type of investigation and current weakness of public prosecution. The line of new restrictive legal solutions, in which the goal is more dominant that the means to achieve the goal, and the measures to achieve the procedural discipline are more dominant than the care for rights brought the author to the conclusion that the reasons of palliative nature were the most crucial for some solutions and to the conclusion that since the justice was not able to get used to the application of good laws, the laws were simply adjusted to the bad justice.

Legislative Evolution in Romanian Criminal Proceedings: The Special Procedure for Compensation of Material or Moral Damages in Cases of Judicial Error

2010 ◽  
Vol 35 (4) ◽  
pp. 369-396
Author(s):  
Mircea Damaschin
Keyword(s):  
Criminal Procedure ◽  
Legal Framework ◽  
Potential Effect ◽  
European Convention ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Individual Liberty ◽  
Procedure Code ◽  
Special Procedure ◽  
Judicial Error

AbstractThis article analyzes the special procedure for compensating material or moral damages where there has been a wrongful conviction—or other wrongful injury to individual liberty—caused by error in Romanian criminal proceedings.This remedy is provided for by the 1969 Romanian Criminal Procedure Code; however (perhaps inevitably), tension has risen between these provisions and those of the 1991 Romanian Constitution resulting in amendments to both the Code and the Constitution. The most significant of these amendments have flowed from decisions of the Romanian Constitutional Court; in turn, the Constitutional Court has been guided in its determinations of constitutionality by interpretations of the 1950 European Convention on Human Rights.In the present article, the author presents the evolution of Romania's legal framework in this field, analyzing key decisions of the Romanian Constitutional Court. Also considered here is the jurisprudence of Romanian ordinary courts dealing with the compensatory remedy for material or moral damages awarded to victims of judicial error in Romanian criminal proceedings. The relevance here of the practice of the European Court of Human Rights, which has been critical of Romania in this regard, cannot be overestimated.Finally, this article considers the potential effect of changes contained the new Criminal Procedure Code, which has been adopted in mid-2010 by the Romanian Parliament.

scholarly journals Practical Application of the Provisions of the Code of Criminal Procedure Regarding the Measure of Preventive Arrest

2021 ◽  
Vol 9 (1) ◽  
pp. 24-32
Author(s):  
Nicolae Silviu Pana ◽  
Ana Maria Pana
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Preventive Measures ◽  
Criminal Procedure ◽  
Practical Application ◽  
Criminal Proceedings ◽  
Individual Liberty ◽  
Judicial Control ◽  
House Arrest ◽  
Procedure Code

Preventive measures are coercive criminal law enforcement institutions, aimed at the deprivation or restriction of individual liberty, by which the suspect or defendant is prevented from undertaking certain activities that would adversely affect the conduct of the criminal proceedings or the achievement of its purpose. They have been instituted by the legislator for specific purposes, namely: to ensure the proper conduct of criminal proceedings, to prevent the abstraction of the suspect or defendant from trial and to prevent the commission of new offenses (art. 202 para. 1 of the Criminal Procedure Code). Preventive measures are not inherent in any ongoing criminal trial, but are exceptional measures (art. 9 para. 2 of the Criminal Procedure Code), and the court can decide to sease the measure or make use of the measure in the light of the specific circumstances of each case. Of the five preventive measures, three are deprivation of liberty - detention, house arrest and pre-trial detention, and two are non-custodial: judicial control and judicial control on bail. All these measures are only applicable to the natural person. Specific preventive measures may be taken against legal persons, but those are regulated by the provisions of art. 493 of the Criminal Procedure Code.

scholarly journals Protection of Human Rights in the Criminal Procedure Legislation of the Republic Of Uzbekistan and Improved Reforms Taking Into Account Foreign Experience

2021 ◽  
Vol 58 (1) ◽  
pp. 1102-1115
Author(s):  
Botirjon Khayitbayevich Ruzmetov
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Sufficient Evidence ◽  
Criminal Proceedings ◽  
Protection Of Human Rights ◽  
Legitimate Interests ◽  
The Republic ◽  
Theory Of Evidence ◽  
The Right

In this article author had searched the questions devoted the protection of human rights in the criminal procedure legislation of the Republic of Uzbekistan and comparing with the legislation and worldwide experience of the foreign states.The article reveals the ongoing liberalization of the criminal law policy in the Republic of Uzbekistan, which is aimed at expanding human and fair norms, strengthening the protection of the rights, legitimate interests of a person andsociety. Against this background, the significance of investigative actions and the theory of evidence in the country's criminal procedural legislation is being revised. The development of science and technology leads to the improvement of methods of committing crimes using computer technology, taking into account which the timely disclosure and effective investigation of socially dangerous acts requires extensive use of mathematical tools and computer technologies.In this regard, changes are taking place in the investigative practice aimed at increasing knowledge in the field of computer technologies among law enforcement officials and increasing the responsibility of the personal of the investigative and judicial authorities in the implementation of their activities.The author emphasizes that despite significant restrictions on the rights and legitimate interests of a person in the conduct of investigative actions, all of them are necessary for obtaining sufficient evidence to expose the guilt of the offender, in the manner prescribed by law.Compliance by investigators, prosecutors and judges of all criminal procedural requirements established by the legislation of the country is a key requirement for the recognition of evidence as lawful and sufficient for a fair sentence.It should be noted that the article highlights that, since 1994, the Criminal Procedure Code of Uzbekistan enshrines the right to defense by involving a lawyer in the case from the moment a person is detained on suspicion of committing a crime, as well as the principle of equality of arms in criminal proceedings. An addition to the liberalization of legislation is the fact that now the courts are freed from such unusual functions as the execution of court decisions.In addition, the article expands on the author's proposals for improving the legislation of Uzbekistan, as well as expanding the power of lawyers, especially in the conduct of investigative actions, aimed at expanding the process of liberalization of criminal law in the country and improving the situation with the protection of human rights in the investigation of criminal cases.

scholarly journals ISSUES OF JUDICIAL ORGANIZATION AND JURISDICTION OF COURTS OF FIRST INSTANCE IN THE REPUBLIC OF ESTONIA

2019 ◽  
Vol 8 (7) ◽  
Author(s):  
Rinat R. Akhmetzakirov ◽  
Idris M. Gilmanov ◽  
Muhamat M. Gilmanov
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Political Rights ◽  
Criminal Courts ◽  
Procedure Code ◽  
Independent Form ◽  
Protection Of Human Rights ◽  
The Russian Federation ◽  
The Republic

The United Nations obliges the national legislator to pay particular attention to issues of jurisdiction through the International Documents. These obligations are specified in clause 1 of Article 14 of the Covenant on Civil and Political Rights and in clause 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It is the duty of states to guarantee rights to a fair public hearing by a competent court without delay. Jurisdiction issues, i.e. competencies of criminal courts in the Russian Federation, are regulated by Article 31 of the Criminal Procedure Code of the Russian Federation. The rules of this article are of great importance. Thus, the fulfillment of the requirements of Article 31 of the Criminal Procedure Code of the Russian Federation consists in the fact that if the rules of this article are violated, this automatically leads to the sentence cancellation and the re-examination of the criminal case.  Similar serious attention is paid to the legislator of the Republic of Estonia. The legal system of this country is part of the Romano-German legal family, having peculiar differences. In order to alleviate the workload of the courts of first instance, offenses were singled out in the Criminal Code as an independent form of punishment, and the simplified (summary) proceedings were also stipulated for application.

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