"NASCITURUS PRO IAM NATO HABETUR QUOTIENS DE COMMODIS EIUS AGITUR". РИМСКОТО ПРАВИЛО И СЪВРЕМЕННОТО МУ ПРИЛОЖЕНИЕ

Author(s): Malina Novkirishka-Stoyanova / Language(s): Bulgarian / Issue: 2/2017

The report presents the rule "Nasciturus pro iam nato habetur quotiens of commodis eius agitur" as it exists in Roman legal texts in relation to the ancient Greco-Roman concept of personae, different from that which we conceive today. In this context, the capacity of human embryo to be subject of right comes from social, religious, medical, moral and especially legal recognition. We discuss some of the heritage aspects of this rule, as well as the issues of early human life, abortion, infanticide and murder of pregnant women, recognition of the newborn by the father, State, etc. Some decisions of the Roman jurisprudence are surprisingly topical and are part of many discussions on its bioethical and legal aspects.

"Sąmoningas leidimas padariniams atsirasti" - turiningas netiesioginės tyčios požymis ar jo intelektinio momento parafrazė?

Author(s): Skirmantas Bikelis / Language(s): Lithuanian / Issue: 61/2008

This article discusses the volitional part of dolus eventualis, which is often regarded as the key for the problem of distinguishing dolus eventualis and luxuria. Two attitudes towards the volitional part of dolus eventualis are revealed. The first group of authors explains the volitional part of dolus eventualis on the base of perpetrator’s emotions. The second group states that emotions are an improper criterion in distinguishing dolus eventualis and luxuria and considers that the intellectual part of dolus eventualis and luxuria is a sufficient criterion to distinguish these forms of offense. The author comes to the conclusion that the volitional part of dolus eventualis has not got any positive psychological content. Most of explanations of the volitional part of dolus eventualis, provided by the scholars of the criminal law, are paraphrases of the intellectual part. Therefore it is proposed to eliminate the unnecessary and empty formulation of the volitional part from the definition of dolus eventualis.

"Words hurt for life" – legal aspects of verbal punishment of children

Author(s): Sylwia Rózycka-Jaros / Language(s): English / Issue: 2/2016

This paper is dedicated to the issues of verbal punishment of children during the upbringing process. Statistics show that this is the most common type of punishment of children used by parents. Unfortunately, it often takes the form of a humiliating criticism, shouts or intimidation. All this affects negatively the child’s psyche. Taking into consideration the amendments which introduced a total prohibition on using corporal punishment towards children to Polish legislation, the issue of the limits of verbal punishments permitted by law still remains unsolved. Apart from a short definition and the description of the scale of this phenomenon, this paper is mainly dedicated to a legal analysis, which takes into account the stances of the doctrines of criminal and civil law. This paper attempts to give a straight answer to the doubts concerning this matter.

(NE)MANDAGUMO RAIŠKA NUSIKALTIMŲ DISKURSE: ĮVARDIJIMO ASPEKTAS

Author(s): Sigita Jakimoviene / Language(s): Lithuanian / Issue: 11/2017

By focusing on the study of naming of an offender in the media in one particular case when father killed his two children in Saviečiai, this paper provides a perspective on the discourse on crime as the discourse governed by the strategies of impoliteness. The face management theory (Brown and Levinson 1978, 1987) and the insight of face attacking acts (Austin 1987) is considered here to be generally useful for the analyses of the discourse on crime which is, as a rule, about negatively evaluated persons and their actions. Having analysed 46 crime reports in the Lithuanian media published in the period of one month on January 2016, 36 different nominal references of the offender have been found. The results reveal that the level of politeness in the discourse on crime can be assessed considering the naming of an offender. In this discourse the naming of the offender is performed mainly as face attacking acts: 1) a naming word has a negative emotional evaluation or is an obvious insult or nickname which might be considered as a dysphemism (vaikžudys, smurtautojas, skriaudikas, žudikas, siaubūnas, antžmogis, monstras, budelis, išgama, degradas, navikas, alkoholikas, girtuoklis, chuliganas); 2) neutral naming words (vyras, tėvas, A. Beras, etc.) are modified by means of extended attributes that indicate the crime and the victims, the location of the crime. In fact, it often expresses a straightforward negative assessment. This type of naming of the offender with an additional indication of the time of the offense, the date of birth of the offender, the age and sex of the victims, is voluminous (up to 25 words) in this discourse. Such a naming becomes like a brief statement or a story in itself.

(Nie)konstytucyjne przeciwdziałanie przestępczości na tle seksualnym wobec nieletnich

Author(s): Natalia Woszczyk / Language(s): Polish / Issue: 3/2018

The article addresses the issue of alterations to the bill preventing sexually motivated crime in relation to the constitutional rights. The author presents and analyses the new regulation with emphasis on the unknown for the polish legal system solutions such as Sex Offenders Registry which will be accessible in two versions: with limited access and to the general public, and a publicly available map of sexual crime threats. What is more, doubts are raised as to the effectiveness of the measures to reduce sexual offenses.

(Nie)zorganizowana przestępczość w Polsce - perspektywy i zagrożenia dla wymiaru sprawiedliwości

Author(s): Szymon Kosatka / Language(s): Polish / Issue: 23/2016

This article is paying attention to the problem of contemporary organized crime from the side of justice, and in particular evidence problems associated with it. The article shows the chance for curbing organised crime by proper leading an investigation. The author included the historical part in order to show the change of criminal structures in the period of last 20 years and suggested direction in which fighting the organised crime should head.

150 GODINA OD DONOŠENJA KRIVIČNOG ZAKONIKA KNEŽEVINE SRBIJE

Author(s): Igor Vukovic / Language(s): Serbian / Issue: 2/2010

U ovoj, 2010. godini, obeležavamo 150 godina od donošenja prvog srpskog krivičnog zakonika – Krivičnog zakonika Kneževine Srbije od 1860. godine. Криминалный (казнителный) законикъ за Княжество Србію predstavlja jedan od prvih modernih evropskih krivičnih zakonika. Rad na njegovom donošenju otpočeo je 1855. godine, podstaknut idejom kneza Aleksandra Karađorđevića da je Srbiji potreban jedan „podpun Zakon kriminalni“, pošto ovaj „najsnažnije garancije podaje za obezbeđenje ne samo ličnosti, česti i slobode, pa i života pojedini građana, no i samoga reda i spokojstva zemaljskog“.

2014 ALTERNATIVE PROGRESS REPORT: POLITICAL CRITERIA

Author(s): / Language(s): English / Issue: 3/2014

This is the second Alternative Progress Report on Bosnia and Herzegovina’s path towards the EU membership. The report is a joint effort of dozens of individuals and organizations whose common goal was to show the current state of integration of Bosnia and Herzegovina from the perspective of civil society organizations. Having in mind that the official Progress Report on Bosnia and Herzegovina is a political report of the European Commission, we believe that the publication of the Alternative report can affect its content. Because of this, we are publishing this Alternative Progress Report nearly three months before the publication of the official one, hoping that it will have an impact on the formulation of the formal report. The report completely relies on the so-called political criteria, focusing on the following questions: - Democracy and the functionality of the State, - Rule of law and corruption, - Human rights, especially the rights of minorities and vulnerable groups, and - Transitional Justice During the 2013 and 2014, we have witnessed that no relevant progress has been achieved. The process of implementation of the Sejdić and Finci v. Bosnia and Herzegovina ruling is completely displaced from the Parliament. Performance of the democratic parliaments and governments on state, entity and cantonal levels is extremely low. The work of the institutions is characterized as unstable, inefficient and with notable lack of transparency. The decisions of the constitutional courts are still not implemented. No significant and systematic policies to combat human rights violations have been adopted. Judicial reform has been stopped and Structured Dialogue on Justice between B&H and the EU does not show any progress. Not a single significant case of corruption has been processed. Minority and vulnerable groups still live in difficult conditions. Discrimination and violence are all-present, and the law on prohibition of discrimination did not show the expected results, having in mind that five years after the enactment of the law, only two final judgments were passed. Comprehensive anti-discrimination policies for social integration either do not exist, or are almost never applied. Floods additionally hit the most vulnerable groups in society. Furthermore, the most vulnerable groups in society have been affected by the recent floods. The prosecution of war crimes and dealing with the past, as prerequisites for creating a healthy environment and building a common state, represent an additional problem. Political support for war criminals by the leaders of political parties only further divide the already highly fragmented society. We hope that the general elections in October of 2014 (although held by discriminatory rules) will bring more stable political structure, ready to face different problems. Initiative for the Monitoring of the European Integration of Bosnia and Herzegovina will certainly advocate change, in terms of adopting new laws and policies, and the implementation thereof. We also hope that the BiH authorities and the EU institutions will support a stronger representation of civil society within the various forums within the EU integration. Civil society must become the third actor in this process along with the State and EU institutions.

A Review of Sources on Terrorist Financing

Author(s): Muhamet Aliu,Mejdi Bektashi,Arben Sahiti,Arbana Sahiti / Language(s): English / Issue: 1/2017

Terrorism financing is one of the most complex problems the democratic world is facing today. The transfer of funds to support terrorist activities has created enormous challenges across the world. This has fuelled several inter-religious and nationalist hate, and as such has put many nations into war with terrorist organisations. The main objective of this study is to review the sources of terrorist financing. The paper relies on secondary data that were drawn from various books, journals,as well as from institutional materials relevant to the issues raised. It concludes that terrorists are exploiting established financial systems at the global level to move their finances, and that informal systems remain the biggest challenge to thwart terrorist activities.

A védőügyvéd és az egyes speciális eljárások kapcsolata Magyarországon

Author(s): Viktor Bérces / Language(s): Hungarian / Issue: 2/2012

In the Hungarian system of criminal procedure, several participants of the proceeding may provide activities aiming at the defence of the defendant (e.g. the prosecutor or even the defendant himself). My publication, however, shall focus on the activities of the defender based on delegation or recorded Power of Attorneys given, in consideration of the fact that almost without exception this personal group act as advocates in criminal procedures, furthermore, solely lawyers have the expertise necessary for the defence, and the “equality of arms” principle may only succeed completely through them.

A violence against women in Afghanistan after Taliban occupation – outline of the issue

Author(s): Katarzyna Sadowa / Language(s): English / Issue: 3/2015

This publication deals with the current legal and social situation of women in Afghanistan. The author analyzes the process of formation of the legal position of Afghan women from the moment of the country’s liberation from under the Taliban occupation in 2001. She concentrates on indicating relevant legal regulations and guarantees, as well as – primarily – analyzes the degree of respecting them. Consequently, she discusses selected forms of violence against women which is persistently present on the territory of Afghanistan. The author elaborates on specific cultural phenomena and acts against fundamental women’s rights, such as baad, baadal, the so-called “honor” killings, and punishing women for running away. These points lead to the conclusion that the enacted laws are merely an empty shell and women’s situation is far from stable.

Aberratio ictus u krivičnom pravu

Author(s): Sladana Jovanovic / Language(s): Serbian / Issue: 2/2018

This article discusses different legal solutions to situations referred to as „aberratio ictus“, in terms of its particular manifestation in criminal law. The concept of aberratio ictus, that can be translated as „attack gone astray“ is used to determine criminal responsibility of the offender, when his actions, directed to committing a specific offence, abberate from the expected course of events, resulting in harming an unintended object. Doctrinal solutions in this area variate between the theory of equivalence and the theory of concretisation, both of which impose exclusive arguments regarding the object of the intent. Thus, the first one emphasises the protection of abstract values, that results in punishing the offender for the completed, intentional offence, despite the aberration. On the other hand, the reasoning behind the theory of concretisation takes into account the relevance of the specific identification regarding the object of intent. According to this view, the offender is liable for the attempt towards the first object, accompanied with negligence liability for the result. It can be noticed that the legal nature of the protected objects appears as a decisive circumstance for determining criminal responsibility. Unlike the situations when the mentioned objects are not of equal values, where there is no doubt that aberratio ictus involves the responsibility consisting of the attempted offence, in addition to negligence towards the actual result, the equivalence of the attacked and harmed object, causes divergent opinions among different authors in legal theory. This affects not only the legal solutions in positive criminal law, which are mainly based on general rules, but also the judicial practice in this area, that is evidently not unique. Also, it can not be negated that these solutions are based on valuative criteria, giving the advantage to one value versus the other. After analyzing the application of suggested theories in practice and comparative legal solutions, the author pleads in favour of the attempt model, based on the theory of concretisation, suggesting the possiblity of its legal regulation in serbian criminal law. Its advantages are therefore attached to better concordance with practical demands and main principles of criminal law in general.

ABILITY TO UNDERTAKE ACTION THAT CONSTITUTES A CRIMINAL OFFENCE; MENTAL CAPACITY AND GUILT

Author(s): Dragiša Drakic / Language(s): English / Issue: 1/2015

In the paper the author offers an analysis, from the standpoint of legal theory, of the ability to undertake action that constitutes a criminal offence and the mental capacity, on one hand, and the mental capacity and the guilt, on the other hand. In the first part of the paper the author pointed to the significance of the action that constitutes a criminal offence, than he set its minimal requirements without which existence of the actions, as an element of the general notion of the criminal offence, would not have existed. In the second part of his paper the author puts into correlation the ability to undertake criminal action and the mental capacity of the offender. The last part of the paper discuses a delimitation between the mental capacity and other integral parts of the guilt, as well as the correlation between mental capacity and the guilt as a higher theoretical notion. His position presented in the paper could be demonstrated in two main conclusions. Firstly, the author concludes that the will, as a subjective element of the notion of the action, is immanent to every human being, where the subjective element of the notion of mental capacity is only possessed by mentally sound and mature persons. Secondly, the author concludes that since mental capacity is the ability to be guilty, the guilt is a relationship between the psychological being and the value judgment based on the presumption of the existence of mental capacity.

Aby molestowanie seksualne w szkole nie stało się normą

Author(s): Andrzej Sek,Malgorzata Popialo / Language(s): Polish / Issue: 1/2012

This paper presents an incident related to sexual harassment by a student teacher. On the basis of the situation depicted in the documentary broadcast by TVN 24 the authors attempted to analyze this incident in legal and procedural terms. Both the event itself and the roles of people involved in the incident were considered. Based on the behavior of each individual, the authors developed a procedure for teachers, defined the responsibilities of the institutions responsible for maintaining security at school and discussed the criminal liability for the neglect of the procedural activities.

Acordul de recunoaştere a vinovăţiei

Author(s): Ioana Calin / Language(s): Romanian / Issue: 04/2015

We also analysed differences between the plea bargaining procedure and its forerunner, the recognition of the accusation during the trial, while indicating the advantages and disadvantages of using each of these procedures.

Acordul de recunoaştere a vinovăţiei

Author(s): Lupou Daliana / Language(s): Romanian / Issue: 2/2016

Având în vedere faptul că Acordul de recunoaştere a vinovăţiei reprezintă una dintre marile inovaţii aduse de noul Cod de procedură penală, autorul îşi propune să analizeze modul în care a fost implementată această instituţie în sistemul nostru de drept. Întrucât este o instituţie nouă în procesul penal român, vom încerca o analiză detaliată a principalelor aspecte care au creat interpretări neunitare. Nu în ultimul rând, vom încerca să reflectăm particularităţile acestei instituţii şi prin intermediul jurisprudenţei.

ACTUAL DISCUSSION AROUND DEATH PENALTY IN JAPAN

Author(s): Shinichi Ishizuka / Language(s): English / Issue: 1/2016

Administrative Sanctions and the Concept of “Criminal Charge”.Romanian Perspective in a Comparative Law Study

Author(s): Elena Mihaela Fodor / Language(s): English / Issue: 2/2011

Abstract: Objectives: The research tries to point out the principles that should apply to administrative sanctions so that the requirements from the autonomous notion of “criminal charge” created by the European Court of Human Rights should be fulfilled. Prior Work: In the national jurisprudence not many authors have referred to this subject. Comments on the dispositions of Government Ordinance No. 2/2002 regarding the juridical frame for contravention have been made.In the jurisprudence of some European countries where no specific legal dispositions refer to principles that protect against public power abuse in enforcing administrative sanctions, comments have been made on this subject. Approach: A search has been conducted in the legislation of several European countries, searching for Constitutional or Administrative Acts dispositions on the matter. Also the jurisprudence approach on the matter in these countries was observed. Implications: The study should be useful for administrative bodies in their investigative and sanctioning activity and the courts in appreciating the consequences of valuing a certain administrative sanction as a “criminal charge”. Value: This paper is summarizing the principles of criminal law that apply to administrative law and points out to what extent the Romanian legal norms express those principles.

Adversarial Principle and Principle of Equality of Arms as a Subject of Adversarial Type of Criminal Proceeding

Author(s): Gakharman Sanan-ogly SADIEV / Language(s): English / Issue: 18/2016

The article concerns adversarial principle and principle of equality of arms as a subject of adversarial type of criminal proceedings. Adversariality, being complex legal phenomenon, also has its structure and system of features that includes: 1) functions of prosecution, defense and resolution of criminal cases are separated from each other and cannot be imposed on the same authority or the same official; 2) court is not an authority of persecution, it acts neither on the part of prosecution, nor on the part of defense. Court provides necessary conditions for parties’ execution of their procedural obligations and exercise of their granted rights. The prosecution and the defense are of equal rights to the court. The subject matter of adversarial system implies: presence of equal parties; separation of main procedural functions; presence of impartial arbitrator – the court that is aimed at resolution of procedural conflicts of parties. Exclusion of any of denoted elements would not only make the subject of considered principle incomplete, but also put in question the very possibility of its existence. So, modern criminal court is an active participator of proving procedure in all its aspects playing operational and control role in the present sphere of criminal procedural activity.

Ajalugu, mida polnud? Homoseksuaalse iha jäljed kolmes kohtuasjas

Author(s): Andreas Kalkun / Language(s): Estonian / Issue: 71/2018

The criminal code of the Republic of Estonia, in which homosexual acts between consenting adults were not considered to be a crime, was adopted in 1929 but came into force as late as at the beginning of 1935. Before the adoption of the new criminal law, the criminal and correctional penal code of Imperial Russia was observed in the Republic of Estonia, and Article 995 of this code considered “pederasty” a crime. The article analyses three court cases of men on trial for homosexuality at the Military District Court of the Republic of Estonia in 1919, 1929, and 1931. In addition to the court cases, articles discussing homosexuality published in the newspapers of the period are used as sources to provide a context and discourse to frame the court files under discussion. I analyse specific texts related to punishment and correction, included in the court files, as potential sources in queer history research. The majority of approaches to homosexuality published in the written press in the 1920s and 1930s are misogynist and reproduce certain prejudices, notably emphasising, among other things, the spreadability of homosexuality in military institutions. At the same time, one can find newspaper texts which mediate ideas that were topical in Europe at the time about how homosexuality as a congenital condition should not be punishable by criminal law. The court cases about “pederasty” emphatically focus on sex: the cases deal with criminalised sexual intercourse rather than, for example, explore romantic feelings or love. Owing to the focus on perversity and accusations, the cases are highly discriminatory and negative portrayals of the people. Writers of the transcripts have transformed the testimonies of the witnesses and the accused persons into odd court jargon and the accused themselves strive to impart as little information about them as possible. The accused may lie and be secretive or make desperate confessions but the information written in the transcripts is peculiarly biased and superficial. The people accused in these court cases are of various backgrounds, and the gallery of characters is further widened by men who testified as witnesses and were sometimes part of a closer social circle of the accused. Manifestations of so-called homosexual desire in these stories also vary – there are consenting sexual intercourses, but also hierarchical, violent ones, or those the nature of which remains ambivalent in the sources. What really happened between the men prosecuted at the military district court remains largely hidden behind the veil of secrecy. The court transcripts are full of conflicting testimonies and generally speak only of physical bodies and convey the impressions of eye-witnesses. Emotions, sought after by queer histories, are explicitly scarce in the transcripts. Regardless of that, there are flashes of information popping up from time to time, casting most light on the lives and everyday practices of the accused or the nature of their homosexual desire.