Wadliwe opinie biegłych jako przyczyna pomyłek sądowych w polskim procesie karnym. Sygnalizacje możliwości naprawczych

Author(s): Aleksandra Szaplonczay / Language(s): Polish / Issue: 1/2019

The author of the article attempts to organize and summarize the postulates put forward by the representatives of the doctrine regarding necessary reforms of the currently applicable model of functioning court expert witnesses in Poland. First of all, the article points out problems related to the appointment of expert witnesses, lack of mechanisms of controlling and evaluating them. In particular, the negative consequences of the current lack of appropriate legal regulations were highlighted – ie the risk of restricting the right of parties to a fair trial by admitting evidence from a flawed expert opinion and acknowledging it as a reliable evidence, which in the case of criminal proceedings may lead to conviction for an innocent crime. The next part of the article presents reflections on possible solutions to the problem, including corrective methods, on the example of solutions functioning successfully in Great Britain.

WAIVER OF PENALTY AND DELAY OF PENALTY. METHODS FOR THE INDIVIDUALISATION OF THE PENALTY

Author(s): Alexandru Boroi / Language(s): English / Issue: VII/2013

The social reintegration of the offender by certain means alternative to the execution of the penalty is subject to the evaluation of the latter’s conduct during the criminal trial, and of the latter’s attitude towards justice.Therefore two new institutions were regulated, namely the waiver of penalty and the delay of penalty, which were designed taking into account the severity of the crime committed, the dangerousness of the offender, the degree of intervention for the correction of the convict and the consequences thereof.

Waiver of the punishment and prosecution

Author(s): Alexandru Boroi,Georgian Toma / Language(s): English / Issue: VII/2019

By means of the adoption and entry into force of the penal Code and criminal Procedure on 1 February 2014, the legislature sought to meet the requirements for the creation of a modern criminal liability framework.The waiver of punishment appears as an element of novelty, through which the court may sanction offences denoting a low degree of danger.The waiver of prosecution is the solution which may be ordered by the prosecutor when he considers that the defendant is not justified.The waiver of the punishment and the waiver of prosecution carry a number of common characteristics and several distinct traits that give rise to serious controversy over the framework in which these solutions can be arranged by Court and the prosecutor.

WAIVING THE CRIMINAL PROSECUTION ACCORDING TO THE DECISION OF THE CONSTITUTIONAL COURT NO. 23/2016

Author(s): Ion Rusu / Language(s): English / Issue: 2/2019

In the present paper we have examined the institution of waiving the criminal prosecution, as provided in the current law, a text which was modified after the publication of the Decision of the Constitutional Court no. 23/2016. We also considered the formulation of critical opinions regarding the possible existence of other elements of unconstitutionality in the text in force. A very important aspect is the notification of the absence in the text, of some provisions that condition the application of the institution on the need to repair the prejudice caused to the victim. The paper can be useful to students and master students of the country's faculties, as well as practitioners in the field. Also,the work can be useful to the legislator for operating some changes in the current content of the text that regulates this institution.

Warsztaty dla więźniów skrajnie długoterminowych – prawo do drugiej szansy dla skazanych i pierwsze kroki dla studentów

Author(s): Joanna Klimczak,Małgorzata Kłapeć / Language(s): Polish / Issue: 24/2017

Paper discusses the project „Prisoners extremely long-term sentenced - the right to a second chance” conducted at the Institute of Social Prevention and Resocialization of the University of Warsaw in 2014–2016. The program was targeted at prisoners who were sentenced for 25 years in prison or life imprisonment. On the other hand, it was also aimed at students. They took part in prison workshops organized by the authors of the project. In this way, students had the opportunity to get to know the prison institution and work with prisoners. The implementation of the project clearly showed that cooperation between the academic environment and the Prison Service is not only possible but also very important.

Warto być kryminologiem

Author(s): Monika Kotowska,Piotr Chlebowicz / Language(s): Polish / Issue: 25/2018

Professor Jerzy Sarnecki was born in 1947 in Warsaw, Poland. Sarnecki came to Sweden in 1968, where he earned a PhD in sociology at Stockholm University. His all scientific path is connected with criminology Professor Jerzy Sarnecki is a regular commentator in media on the subject of crime. At the request of Monika Kotowska and Piotr Chlebowicz, he shared with them reflections on the problems of contemporary science, crime and his professional path.

Warunek wykonalności zachowania się człowieka stawiany normowanemu przez prawo zachowaniu jako konsekwencja konstytucyjnej zasady proporcjonalności

Author(s): Buczek Łukasz / Language(s): Polish / Issue: 3/2018

The aim of this study was to demonstrate that the doctrinal approval of the condition of the feasibility of human behavior, set by the behavior prescribed by law is, unaware of the doctrine, consequence of the constitutional principle of proportionality. Since non-regula ius sumatur, sed ex iure quod est regula fiat (Latin: rules do not form law, but derive from it), then it is impossible to approve the consequences of paremii ad impossibilia nemo obligatur (Latin: no one is obliged to do anything impossible) – which underlies the condition that is the subject of this study – if the legal system cannot find its normative basis.

Warunkowe zawieszenie wykonania kary w świetle wypowiedzi praktyków wymiaru sprawiedliwości

Author(s): Kamil Mamak,Wojciech Płóciennik,Daria Kucyper / Language(s): Polish / Issue: 2/2017

Warunkowe zawieszenie wykonania kary pozbawienia wolności to jedna z instytucji prawa karnego o największym praktycznym znaczeniu dla obrazu polskiego wymiaru sprawiedliwości. W ostatnich latach – na skutek nowelizacji z 1 lipca 2015 r., jak i kolejnych zmian – jej systemowa pozycja ulegała zmianie. W artykule przedstawione są wyniki ankiet przeprowadzonych wśród praktyków wymiaru sprawiedliwości. Zostali oni zapytani o szereg szczegółowych kwestii związanych zarówno z ideą instytucji warunkowego zawieszenia kary, jak i konkretnych regulacji, które weszły w życie na skutek niedawnych nowelizacji. Conditional suspension of the enforcement of the imposed penalty is one of the institutions of criminal law with the greatest practical significance for the image of the Polish judiciary. In recent years - as a result of the amendment of July 1, 2015, as well as subsequent changes – position of this institution in system of law has changed. This article presents the results of the survey research conducted among practitioners of justice. They were asked about a number of specific issues related both to the idea of conditional suspension of the enforcement of the imposed penalty, and to the specific regulations that came into force as a result of recent amendments.

WATER CRIMES – A CONTEMPORARY (SECURITY) ISSUE

Author(s): Katja Eman / Language(s): English / Issue: 1/2016

A scarcity of clean drinking water resources is becoming one of the crucial problems of the 21st Century. Human race is dependent on water, because we not only drink it and need it for our survival, but it is also used for energy production, in the industrial production and in farming. Nowadays, despite the fact that we are living on a ‘blue planet’, the amounts of freshwater is decreasing, therefore its preservation is so much more important. What is more, any form of pollution or theft or other illegal activity against the water resources is thereby so much serious form of crime. In case of any violation of water protection legislation we talk about crimes against water. The purpose of this paper is to discuss about water crimes as a contemporary (security) issue and to focus on the situation in Slovenia and compare it with the situation in Serbia. Both countries are very rich with water resources and therefore possible targets of foreign (beverage) companies that need water for their functioning. In the conclusion the most important findings about the jeopardized drinking water resources with it related challenges are discussed.

WATER INFESTATION AS A CRIME UNDER ROMANIAN LAW

Author(s): Sorin - Alexandru Vernea / Language(s): English / Issue: 2/2018

The purpose of this paper is to highlight the main theoretical issues concerning the enforcement of art.356 of the Romanian Criminal Code, in regard to the protection granted by several special regulations that protect water resources. In order to establish a frame for the content of this article, its structure shall be divided into four parts. The first part will consist of an introduction, in order to establish the importance of this subject and its actual status in Criminal Law literature. The second part will represent the first half of the paper content and will consist of a special criminal law approach to the provisions of art.356 of the Romanian Criminal Code, most importantly pointing out its constitutive content. The third part, namely the second half of the paper content, will refer to specific provisions found in art.92 of Law no.107/25.09.1996, namely The Water Law or in art.98, paragraph 4, let.b of Government Emergency Ordinance no.195/22.12.2005, regarding the protection of the environment and finally in art.49 of Law no.17/07.08.1990, regarding the Regime of interior maritime waters, of the territorial sea, of the contiguous zone and of the exclusive economic zone of Romania, and their relations with the provisions of art.356 of the Romanian Criminal Code. The fourth and final part will consist of brief conclusions as resulting from the content of this article, respectively the actual configuration of water protection, by Romanian Criminal Law provisions today, with a de lege ferenda proposal.

Ways into and out of exploitation Unaccompanied minors and human trafficking

Author(s): Hilde Lidén,Cathrine Holst Salvesen / Language(s): English / Publication Year: 0

This chapter assesses whether national law, policies and practice in the field of unaccompanied asylum seekers are in compliance with international conventions including the UNHCR guidelines and UN convention of the rights of the child (CRC). We will discuss policy and practices on minors exposed to human trafficking, taking Norway as a case. The Norwegian Immigration Act of 2008 includes provisions and formulations intended to strengthen the legal position and rights of asylum-seeking children as children. The intention was to ensure that national regulations on immigration were in accordance with the CRC and in line with the Norwegian Human Rights Act 1999. The CRC as well as UNHCR guidelines mention human trafficking, including forced labour and sexual exploitation as one main threat to which children may be exposed. The chapter discusses three scenarios which represent distinct forms of how unaccompanied minors are recruited into exploitative relations on their way to or in Europe and how their cases are assessed when applying for asylum in Norway as unaccompanied minors. Ways into and out of exploitation may have decisive implication for how their asylum applications are assessed and for further access to rehabilitation measures.

Wciąż bardziej obcy, wciąż mniej bezpieczni

Author(s): Bartosz Bartosik / Language(s): Polish / Issue: 670/2017

Cztery dni po warszawskim Marszu Niepodległości — podczas którego wznoszono hasła takie jak „Sieg heil”, „Czysta krew, trzeźwy umysł”, „Biała Europa braterskich narodów”, „Biała siła, Ku Klux Klan” — premier Beata Szydło powie działa w wywiadzie dla serwisu wpolityce.pl, że „Polska jest krajem wolnym od antysemityzmu i rasizmu”. Tuż po marszu minister spraw wewnętrznych Mariusz Błaszczak stwierdził z kolei, iż „na tym polega wolność, że możemy analizować te przypadki [rasizmu — B. B.] w sposób zupełnie otwarty i swobodny, bez żadnych przywiązań do skojarzeń”. Czołowi przedstawiciele polskiego rządu robią zatem — „bez żadnych przywiązań do skojarzeń” — dobrą minę do złej gry, ale kolejne sygnały każą bić na alarm: w Polsce obcokrajowcy, osoby wyznające religie niechrześcijańskie (zwłaszcza muzułmanie), a nawet chrześcijanie innych niż rzymskokatolickie obrządków są coraz mniej bezpieczni.

Weiheraum. Roman

Author(s): Ewa Kowalewska-Borys / Language(s): Polish / Issue: 22/2017

The review of: Klaus Marxen, „Weiheraum. Roman“ Bouvier Verlag, Bonn 2015

Wejście w życie regulacji prawa Unii Europejskiej a zakres odpowiedzialności karnej za czyn zabroniony opisany w formie blankietu (studium przypadku)

Author(s): Agnieszka Barczak-Oplustil / Language(s): Polish / Issue: 1/2017

Artykuł ma na celu odpowiedź na pytanie o zakres odpowiedzialności karnej za przestępstwa opisane w ustawie z dn. 29 lipca 2005 r. o obrocie instrumentami finansowymi, po wejściu w życie tzw. rozporządzenia MAR i braku implementacji tzw. dyrektywy MAD II. Problem, jaki powstał stanowi konsekwencję blankietowego charakteru przepisów karnych, odwołujących się do konkretnych przepisów ustawy regulujących bezprawne zachowania, podczas gdy od momentu wejścia w życie rozporządzenia MAR zakres bezprawności w praktyce dekodowany będzie z przepisów rozporządzenia MAR. Odpowiedź na to pytanie wymaga analizy art. 91 ust. 3 Konstytucji oraz możliwości odmiennego rozumienia terminu „kolizja”, użytego w tym przepisie w przypadku, w którym jej przedmiotem mają być regulacje należące do różnych systemów normatywnych. The article is intended to answer the question of the scope of criminal liability for the offenses described in the Act of 29th July 2005 on Trading in Financial Instruments, after the entry into force of the so-called MAR Regulation, and lack of implementation of the so-called MAD II Directive. The problem that arises is the consequence of the blanket criminal provisions, referring to the specific provisions of the above-mentioned Act, whereas, since the entry into force of the MAR Regulation, the scope of unlawfulness will in practice be decoded from the provisions of MAR Regulation. The answer to this question requires analysis of Art. 91 ust. 3 of Polish Constitution, and the possibility of a different understanding of the term „collision”, as used in this provision, in the case in which subjects of such collision are the regulations belonging to different legal systems.

Wewnętrzna jawność postępowań rehabilitacyjnych z perspektywy oskarżonego i jego obrońcy

Author(s): Katarzyna Sychta / Language(s): Polish / Issue: 27/2017

The article touches upon the issue of internal transparency of rehabilitation proceedings and reinvestigations which take place following the annulment of the final judgment. Depending on the rehabilitation prerequisites, it is possible to obtain an acquittal or a judgment equal to an acquittal in three exceptional and appeal modes, i.e. cassation, revision and annulment with regard to persons who experienced repression on the grounds of their involvement in actions aimed at maintaining the independence of the Republic of Poland. The full inclusion of the defendant and their defender in the court proceedings guarantees that the efforts to expunge the defendant’s criminal record will be carried out in accordance with the rules of directness, contradictoriness, equality, orality, the right to defense and broadly understood rule of conscientiousness. This type of procedure upholds the possibility of voluntary participation of the defendant in proceedings aimed at establishing the probability or certainty of the emergence of grounds for employing exceptional appeal modes, while the restrictions, exclusion or expansion of the involvement of the defendant are regulated according to particular exceptions.

WHAT CHANGES DO WE WANT TO SEE?

Overview of the Situation and Guidelines for Future Action of Institutions and Civil Society Organisations in the Areas of Gender Equality, Fight Against Discrimination and Hate Crimes in Bosnia and Herzegovina

Author(s): Saša Gavrić / Language(s): English / Issue: 17/2015

Bosnia and Herzegovina differs from most neighbouring and European countries on its approach to the issues of human rights and the rule of law. Although the most important international human rights protection and promotion documents, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, are included in the BiH Constitution, the situation in the field is far from ideal.

What is prevention

Author(s): Emilia Rekosz-Cebula / Language(s): English / Issue: 24/2017

The article presents various definitions of prevention, which are described through five levels: semantic, legal, institutional, practical and teleological. The first part of the article is dedicated to the general understanding of prevention and the second is about the prevention of human trafficking for sexual exploitation. This article is based on two sources: international legal standards and academic literature.

What is the Gender of Security?

Author(s): / Language(s): English / Publication Year: 2013

This book brings together a collection of research essays mapping the intersection between gender and security in Bosnia and Herzegovina today. The idea for the book emerged through numerous discussions, both formal and less formal, that we as editors undertook over several years. These discussions addressed the extent to which security-type activities, related to gender, carried out by numerous organisations, have had an impact on and in communities in Bosnia and Herzegovina. We became concerned by a seemingly prevalent opinion in current literature on gender and security that gender still remains a poor relation in international security documents and policy. Thus, we wanted to create an opportunity for researchers and activists in Bosnia and Herzegovina to articulate ideas and concerns that would go beyond perceiving gender as a mere guideline, through focusing on the effects of gendered security as experienced in everyday life. Therefore, our guiding question in these discussions was and continues to be: what phenomena do researchers and activists feel to be relevant and pressing when it comes to the intersection between gender and security in Bosnia and Herzegovina today?

Whistleblowing in the Slovak labor law regulation

Author(s): Andrea Olšovská,Daniel Krošlák / Language(s): English / Issue: 10/2015

Corrupt behaviour is a common practice with negative effects on the whole of society. For instance, if a company wins a public procurement contract in an unfair way, it enriches itself not only at the expense of competition, but also at the expense of the whole of society, as the best applicant has not necessarily been selected within such a procurement. The same applies in the case of a supplier launching an unsafe product onto the market, threatening the health of everyone who buys it. In order to prevent such malpractice and eliminate their negative effects, the cooperation of persons aware of such behaviours is necessary. In order to ensure such cooperation, however, the existence of instruments protecting whistle-blowers against various sanctions (especially by employers) is necessary. As Slovak legislation did not include a regulation of procedures for reporting malpractice and protecting whistle-blowers, a new law aimed at solving such issues was enacted in October, 2014. The given legal regulation took effect on January 1, 2015. This paper endeavours to provide basic knowledge of the environment that the given regulation entered, as well as information on the possibilities of individuals to protect social interests on its grounds.

Whistleblowing w przedsiębiorstwie – czy jest potrzebny?

Author(s): Paweł Chodak / Language(s): Polish / Issue: 3/2015

The article presents information on people reporting irregularities in enterprises and institutions and government agencies. The issue of whistleblowing, which very often is called to term, it is very difficult and socially complex because our society is not yet at the stage of acceptance of this type of behavior. We accept the fight against crime by the police, we agree with the need to punish criminals. However, you are not sure whether we want to inform you about the crimes. The problem concerns the human mentality but very important is the law and the procedures involved. Today, unfortunately, provide information about a crime connected with the problem of lack of protection of such people, courageous people. This article will address the information gathered by the Foundation Stefan Batory, which conducted a series of studies in the field of reporting irregularities. In addition, it will be analyzed the legal situation of such persons on the basis of Polish legislator. This analysis will be based on the provisions of the UN Convention against Corruption, which was adopted by the United Nations General Assembly on 31 October 2003. The result of the analysis will show the conditions that must be met in order to secure transmission of information on irregularities in the Polish realities and social system.