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The process of committing a criminal offence includes a few independent yet mutually related stages or phases, such as: decision to commit a criminal offence, the preparation of a criminal offence, an attempt to commit an offence, an impossible attempt, an inchoate offence, and a completed criminal offence. The act of perpetration may require some pre-conditions and assumptions, and engaging in some preparatory activities which are to make the criminal act possible or easier to perform. It is a well-known rule that engaging in a criminal actus reus (which is defined as an essential element of a criminal offence) must lead to a consequence (which is defined as a change or a state caused in the external world); this is classified as a completed criminal act. In reality, however, the result or consequence is often absent (often due to the activity of another). In such cases, the act is qualified as an attempt to commit a criminal offence (also defined as an inchoate crime). In addition, legal theory recognizes a qualified attempt. In case when, in spite of engaging in the act of perpetration, the result or consequence of a criminal offence is absent due to the inadequate tools or inappropriate objects, there is an impossible attempt. In legal theory, there are two types of impossible attempts: absolutely and relatively impossible attempt. The essence of attempt lies in the actual risk for protected property, as well as in the scope and intensity of the demonstrated criminal intent to create a result or consequence. These are also the grounds for establishing criminal liability and punishing the perpetrator for committing this type of criminal offence. Attempt is one of the basic institutes in the general part of the penal law in Serbia and Montenegro (laid down in Article 19 of the Basic Criminal Code, the former Criminal Code of the FR Yugoslavia and Article 20 of the Criminal Code of the Republic of Montenegro) and other modern criminal codes. In this paper, the author has described and analyzed the theoretical, practical and comparative law aspects of attempt, focusing on the notion, concept, subject matter, characteristics, classification and legal nature of an attempt to commit-a criminal offence, in the light of legal solutions in the criminal law of Serbia and Montenegro, as well as the relation between an attempt and other stages in committing a criminal offence.
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The present study seeks to analyse, in a comparative manner, the two prominent schools of thought regarding the putative offence, considering the possibility of conviction for attempt or giving credit to the thesis of impunity. In order to properly qualify the different perspectives reflected in the available case law and scholarly studies a point of departure should be the different forms of error which justify the application of putative offences judicial treatment: the reverse error of fact and the reverse error of law.
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Punitive damages are compensations that raise a lot of controversy and debate among jurists, jurists and judges because they are exceptional and extraordinary, as it is compensation cannot be predicted by the parties to the conflict, especially the party to be judged by the compensation. Punishment and deterrence are the two most prominent jobs for punitive damages, although there are other functions for such compensation. Punitive damages are features by a set of characteristics because of their exceptional nature and because they are punitive damages, the most obvious advantage is that they are quasi-criminal. This paper is an attempt to identify accurately the functions and features of punitive damages.
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The regulation regarding interception of communications under Spanish Law is still vague and undefined. Jurisprudence has completed Rules of Criminal Procedure thought the constitutional standards informing precautionary measure that limit fundamental rights. The interception of communications between defendants and attorneys presents different perspectives depending on the procedural stage, the investigation and the procedural status of the defendant. Judicial authority may not grant warrants allowing these measures unless the attorney is involved on the criminal facts being under investigation, including the investigation of terrorist acts.
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Among the principles governing the law of criminal sanction, the principle of individualization of penalties is probably the most important. Law No. 2014 896 of 15 August 2014 on the individualization of penalties and on strengthening the effectiveness of criminal sanctions, which has been highly anticipated as its gestation was long, provides the opportunity to trace back the complex history of a major principle of the French criminal law.
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The effectiveness of the judicial review requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails, in this instance, a verification of the factual allegations in the summary of reasons underpinning the acts at issue, in order to review whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support those acts, is substantiated. A presumption is a legal mechanism of inducing a fact uncertain of a certain fact. This mechanism is retained when nature uncertain because makes it very difficult to establish and it results from a fact easier to establish. Although the legal burden of proof is on [...] or to the prosecution or to the persons concerned, the evidence on which a party relies may be such as to require the other party to provide an explanation or justification, failing what it can be concluded that the burden of proof has been satisfied.
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Two are the legal conditions for a precautionary measure to be taken towards a legal person: justified reasons for the reasonable presumption that the legal person has perpetrated a deed provided by the criminal law and the necessity to ensure the proper development of the criminal trial by taking the said measure. According to court decisions here commented upon, which are based on the caselaw of the ECHR, a third condition is to be added, namely the proportionality of the said measure with the purpose being seeked. Therefore, the lack of proportionality with the purpose seeked prevents the judge from taking the measure of prohibiting the legal person’s activity.
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The New Criminal Procedure Code has introduced a judicial procedure for the confirmation of a reopening of the pre-trial phase, thereby eliminating the discretionary power of the prosecutor to resume the proceedings at his/her will, even in violation of rights guaranteed by the European Convention of Human Rights.
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According to the Romanian criminal procedure law (art. 141 Criminal Procedure Code), the prosecutor may authorize temporarily, for a maximum of 48 hours, any measure of technical surveillance. This draws the question to know whether, during the temporary authorization of the technical surveillance, the prosecutor may also authorize the criminal investigation body to entry private property in order to enable or disable technical means of surveillance.
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The instigator, meaning the person who determines somebody to perpetrate a crime or who offers instructions for its perpetration, can be considered a participant to that crime, but his legal status within the French Criminal Code is dual, as he is considered either as an accomplice by the general criminal law or as an author by the special criminal law.
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Bringing offences under regulation, criminal law borrows concepts that reside in other fields of law. Given the fact that offences regard different social aspects, it is necessary to use judicial concepts unfamiliar to criminal law. Nevertheless, these concepts do not always retain their original meaning. For the purpose of the criminal provision, the definition may change. Sometimes, the law provides the new meaning. Often, the new meaning is the result of a specific operation. Such link stands between the concept of ”insolvency” and criminal law. This paper analyses the meaning of a concept specific to another field of law when used in the legal content of an offence.
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Conditions of custody have to respect human dignity, but in the case presented here the minimum level of gravity has not been reached, therefore art. 3 of the Convention is not applicable from this perspective. The medical treatment granted to the prisoner has been adequate and much superior to the one available for other detainees, and the detainee has not proven the objective character of his total lack of trust in the penitentiary's doctors in order to justify his refuse to be taken care of, which leads to non-violation of art. 3 of the Convention for this complaint. Ill treatment claimed to have been applied during detention can be justified by the prisoner's illness, and the investigation couldn't prove otherwise, due to the detainee's refuse to submit himself to a medical and judicial examination, which leads to non-violation of art. 3 of the Convention under this respect.
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A company can be held liable for a fraud with extremely severe consequences, continuously, committed by its administrator in realizing the social object and in its name. The moral person can be sentenced to the complementary sanction of the dissolution, if its social object was divorted for the perpetration of crimes. The legal provisions regarding the necessity of the presentation of the prosecution documents are also applicable to the moral person and their non-observance leads to the relative nullity, which can be asked only by the moral person who proves it has suffered a loss. This decision keeps the same logic as the ones given by the Romanian jurisdictions so far, although such condemnations remain rare. At the same time, it is one of the first decisions where the problem of the suspension of the winding up of the moral person is being discussed. The novelty also consists in the fact that, in this particular case the insolvency procedure had been opened upon the request of one of the creditors of the company and not of one of the company’s shareholders.
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As there is no legal provision in this respect, the case law established that the criminal liability of a legal person can be engaged by the acts perpetrated by its organs, representatives, but also by its attorneys and persons who don’t work officially for the said entity, but who act under its authority. The decision is important because it is the first time when the Supreme Court states that the criminal liability of a legal person has a personal character regarding both the legal person as the natural person.
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Globally, there is increasing interest in better understanding the involvement of security officers in the delivery of social control. One step in this undertaking is to shed light on the distribution of security officers across different jurisdictions and the degree to which crime-related factors lead to deploying a higher number of security officers per community residents (i.e., security officer strength). If security personnel are deployed according to the rational choice hypothesis, their numbers should increase in higher crime communities. This cross-sectional study examined the determinates of security officer strength in Canadian municipalities of over 20,000 residents in 2006 (n=68) and 2011 (n=65). Consistent with expectations, we found a clear relationship between police-reported violent crime and security personnel. There was not, however, a significant association between overall crime or non-violent offenses and security officer strength. Other factors associated with higher ratios of officers to residents were jurisdictions with a higher income and residential density, provinces where trust and confidence in the police was higher and an indicator of disorder. Implications for theories of social control are discussed, as well as several implications for such research and knowledge in Romania and other Southeastern European countries.
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Romanian law includes, as a legal instrument specific for the protection of victims of domestic violence, the protection order, as a civil institution. Save this measure, victims of domestic violence can use the ordinary civil protection of their non patrimonial rights, as well as a criminal protection, either ordinary or as civil protection guaranteed by criminal courts.
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Even if final criminal judgments acquires the force of res judicata and are presumed to reflect the truth (res judicata pro veritate habetur), sometimes settlement of de facto and de jure situation which was the subject of the case file is the result of a judicial error.Extraordinary appeals are the procedural remedy which produces removal of illegal or groundless nature of the final judgement and which prevails over res judicata force.Changes due to the consecration of a new criminal procedure system have not spared the institution of extraordinary appeals. This study aims to examine the legal status of the main extraordinary appeals, and in the absence of consolidated jurisprudence solutions, to identify possible dysfunctions and procedural impediments that need prompt legislative and judicial response.The analysis took into account the extraordinary appeals intended to correct errors of law (appeal for annulment) or errors of fact (motion for review) occurred while before regular degrees of jurisdiction.
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The Decision no. 534 of February 24, 2014 pronounced by the 4th District Court of Bucharest in a criminal case is objectionable, as the court applied the principle of the more favorable criminal law on the enforcement of imprisonment sentences. The court is also in violation of res judicata of formerly pronounced judgments applied to the same convicted person and the very same penalty. Acting in this way, the court digressed from its main purpose as a criminal law enforcement institution (i.e. from the enforcement penalties regime), as the convicted person was deprived of a proper rehabilitation period required to this end.
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Although, within the legal litterature, the role and the responsabilities of the prosecutor do not fundamentally change, the practical implications brought by the Code of Penal Procedure in this field are explicit. These implications assert themselves insofar at the level of the base function of the Public Ministry, that of wielding penal action, but just as well when discussing the way in which it performs its responsabilities within the pale of the trial.
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