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The paper analyzes the changes made to the Code of Criminal Procedure by Law no. 130 of May 12, 2021, as a result of the pronouncement of Decision no. 233 of April 7, 2021 of the Constitutional Court, to show that, even in the context of the amended regulation, which requires the drafting of the judgment prior to its pronouncement, the way in which the drafting of the judgment is regulated by the positive rules of procedure directly affects (even if more subtly) the very reasoning of the court decision and, implicitly, the substance of the right to a fair trial recognized by art. 21 para. (3) from the Romanian Constitution and art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.The deliberation and drafting of the decision, especially in the case of a court formed by several judges, are interdependent, and the decision is created (formed and finally formulated) progressively, through the discussions that the court members have during the deliberation and drafting, by integrating their points of view into a common point of view, or into a point of view that all judges can share. The code of procedure, which ensures the legality of a trial, cannot comply with the requirements of the right to a fair trial unless it contains legal rules that organize the deliberation in conjunction with the drafting of the judgment, meaning that the paper makes a proposal de lege ferenda of amendment of the criminal procedure code and shows that, for the same reasons, the amendment of the civil procedure code is also necessary.
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The use of luminol to reveal traces of blood has been known to practitioners for many years. Documentation of such activities is no different. Numerous textbooks describe this in great detail. Therefore, are traces of this type often found on the pages of homicide case files? How often do you see photos of that specific blue light indicating that there may be blood in that area? Who in the investigative practice performs this type of work, and what information can be obtained from it. Are police-certified bloodstain specialists the cure for the ills of pretrial investigation? The article takes a closer look at this topic.
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Legal literature on cybercrime (Last update – december 2022)
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This study is devoted to the subject of crime analysis, which, in the most general terms, consists in data extraction. The crime analysis is an investigation method that searches for the links be- tween information on criminal events and all the data coming from other sources. It is used in the work of courts and law enforcement agencies. The issue of criminal analysis is the area on the border of forensics and the law of evidence. Crime analysis is used in particular in multi- threaded, territorially extensive cases involving organized crime groups, characterized by a com- plicated structure of connections. Crime analysis is applicable in cases where traditional inves- tigative methods fail. The use of crime analysis aims to establish the relationship between the facts. It allows to build, verify and eliminate individual investigative versions. The article deals with the nature of the evidence-based crime analysis, the procedural position of a criminal ana- lyst and the topic of criminal analysis as a forensic expert opinion. The literature reviewed in terms of these issues proves that authors present diverse opinions on crime analysis used as evidence, the analyst as an expert and the results of his work in the form of an analytical report. It is a fact that forensic analysts sometimes have the status of a forensic expert, and the results of their work may be treated as constitute evidence. It all depends on what information crime analysis brings to the case in terms of formal and substantive matter.
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In the Penal Code of 1997, the legislator initially placed the excess in the catalog of penal measures (Art.39 (6) of the Penal Code), the consequence of which was the adoption of certain strictly defined solutions appropriate to such measures. However, the amendment of February 20, 2015, which gave some criminal measures a completely different meaning, was of significant importance in its evolution, and this was also the case in this case. A new chapter Va "Forfeiture and compensation measures" was then separated, which included some of the existing penal measures, i.e. forfeiture (Articles 44, 45, 45a of the Penal Code), the obligation to redress the damage and compensation for the harm suffered (Article 46 of the CC) and excess (Art. 47 of the Penal Code). As a consequence of this, the forfeiture became a penal measure, and the obli- gation to compensate for the damage and the deficit regulated in Art. 47 of the Penal Code have acquired the nature of compensatory measures. However, the institution of interest is also scat- tered across other provisions of the Criminal Code (including the aforementioned Chapter Va, i.e. Art. 44 § 3 of the Penal Code), also in its specific part. Therefore, there is a need to establish, inter alia, mutual arrangement of the repressive and compensatory elements contained therein. In the article, the author mainly answers the following questions: what is the current nature of the excess after the above-outlined evolution and "revolution" - is it a measure of a criminal reaction, or maybe a civil-law compensation? what is its actual role in criminal law and what are its main functions? and is her presence still necessary in him? The attempt to answer, inter alia, such questions is the subject of in-depth considerations in this publication. The author has made a detailed dogmatic and legal (formal and dogmatic) analysis of the regulations concerning theinstitution of an exemption in the penal code (using a linguistic and logical interpretation), relying on selected views of the doctrine and also assisting in judicial decisions.
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Our theoretical approaches combined with judicial practice are motivated by the multitude of divergent opinions that have appeared in the Romanian criminal doctrine regarding these concepts. Thus, most Romanian authors, starting from the premises according to witch all legal norms are transposed by creating legal relations and other wise ignoring the normative character and the regulatory function that criminal law has in disciplining social conduct , reach the thesis according to which there is also a criminal legal relationship of compliance , this being an expression, a form of dynamic manifestation of the social defense relations that emanated from the norm of criminal law since its entry into force. The defense of social values is achieved mainly through criminal legal means (criminal law), through extra-legal means of educational, social, cultural, economic, as well as through extra-criminal legal norms of commercial law, administrative law, labor law, of constitutional law etc. Criminal law is rightly considered the result of a dialectical process and not of an ideal creative process. The two sides of criminal policy, namely special preventive action and repressive reaction, are achieved through criminal law mainly, which by its rules provides both the conduct to be followed by the recipients of criminal law and the necessary reaction against crime to restore order right. As such, the criminal law order is achieved by observing the provisions of the criminal law, the criminal coercion intervening only in the case of committing certain crimes. It can be noted that the legal order has a complex and dynamic character, which is a succession of plans, the preventive preceding the repressive, and the latter aimed at the corrective - in the sense of criminal treatment. It can be noted that the legal order has a complex and dynamic character, which is a succession of plans, the preventive preceding the repressive, and the latter aimed at the corrective - in the sense of criminal treatment.
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The article presents the issue of so-called “subsequent consent” for evidence obtained in thecourse of operating surveillance, and interpretation of Art. 168b of the Code of Criminal Procedure(CCP). The analysis covers, inter alia, the nature of the prosecutor’s decision on the use of evidencein criminal proceedings as well as the issue of meaning of expression “an offence prosecuted ex officio or a fiscal offence other than the offence, against which the control was directed” in the context of its constitutionality and the possibility of its pro-constitutional interpretation.
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The article describes normative acts in the field of criminal law and the prac- tice of their application in the times of the Polish People’s Republic, namely from the establishment of the Polish Committee of National Liberation to the date of the 1969 Penal Code (the so-called Andrejew’s Code). The first aim of the article is to present the undoubtedly unjust reforms of the criminal law in the above-described years and the grossly distorted practice of applying penal law by the judicial authorities. The second aim of the article is to describe the most elementary features of Andrejew’s Code – due to the essence of this criminal law act in the history of the People’s Republic of Poland. The advantages of this code were manifested, firstly, in the comprehensive gathering of criminal law institutions into one normative act and, secondly, in the stabilization of the functioning of this branch of law, which had previously – as it was shown in the article – used for short-term political purposes, often ignoring such basic lawmaking rules like nullum crimen sine lege certa and lex retro non agit.
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The history of the murder of children, infants and newborns is as long as thehistory of world. From the moment when people began to create communities, therewere various types of crimes against members of the community. Infanticide in theprimitive period was a kind of act of necessity from the point of view of a social group.In this way, the number of individuals burdensome for this group was reduced by eli-minating weak or defective individuals, whose upbringing was an unacceptable burdenfor the group. Currently, crimes committed against children arouse the most negativefeelings in us and the perpetrators of such crimes can count on severe punishmentsand long sentences.The presented statistics from the Polish and from the USA show that childrenare very often victims of crimes. Depending on their age use to different methods ofpunishment and the murders. The same situation is about the person, who commit thecrime. On the first hours of life the newborn child the most often the abuser is themother. When the child is growing the abuser can be father, babysitter or his siblings.It is worth to notice that in Poland we have a lot of crimes detect, but not confirmedand brought to specific charges. The history of the murder of children, infants andnewborns is as long as the history of mankind, but the most disturbing is the factthat despite the advanced civilizational activity, the number of convicted people whocommit such an act is growing.
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The obligation to make reparation can only be imposed on the offender on the basis of the relevant judgment and is an integral part of it. Depending on the nature in which it is applied in concreto, i.e. whether as a compensatory measure or as a probationary condition, and sometimes also depending on the procedural advancement of the case or on the various possible ways of ending the proceedings in a specific case, the ruling imposing it may be made at a hearing or at a session. In addition to the possibility of adjudicating it as a compensatory measure under Article 46 of the Criminal Code, this obligation may also be adjudicated as a probationary measure. The purpose of this publication is to draw attention to some important issues related to the forum and form of decisions on compensation of damage and harm in the course of a criminal trial. Currently, this institution has acquired a decidedly more civilized character, but it still has, to some extent, a penological (educational) function, especially when applied as a probationary condition. If the court in concreto applies such an obligation, it should in each case precisely specify the scope of the obligation to make reparation (in whole or in part), indicate the amount of damage inflicted by the perpetrator, the person entitled, the specific manner in which the damage or harm will be compensated, and possibly specify whether the payment will be spread in instalments (and if so, what will be the deadlines for their repayment). The rule should be that the perpetrator of the crime is obliged to compensate for the damage in full, while exceptions to this rule should be justified by important reasons. It should be noted that the Penal Code does not, in principle, contain any provisions which would regulate the principles of adjudicating on compensation of damages in penal law (Article 46 of the Penal Code refers to the provi- sions of civil law); therefore, at present, such provisions of civil law as e.g. Article 361 § 1 of the Civil Code, 362 § 2 of the Civil Code, 362 of the Civil Code, 440 of the Civil Code are applicable here. It should also be noted that imposing the obligation to redress damage on the perpetrator on the basis of Article 46 of the Code of Criminal Procedure is possible in the case of convicting the perpetrator, whereas he/she cannot be convicted of a time-barred crime. It should therefore be noted that as long as a conviction is an important prerequisite for imposing such an obligation as a compensation measure, the provisions of the Criminal Code regulating the issue of the statute of limitations for a criminal offence are still of particular importance here.
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The article deals with one of the fundamental principles of executive criminal law, which is the principle of modifying penalties and measures in executive proceedings. The art. 182a of the Penal Code thus makes it possible to ease the repressive nature of the previously imposed measure of a criminal prohibition on driving. The penal measure of a driving ban after a court ruling is still being enforced. Nevertheless, it is no longer absolute, as its scope is limited only to vehicles not equipped with an alcohol interlock. For many perpetrators of traffic crimes with the imposed penal measure of prohibiting driving vehicles this institution has become a chance — for some the only one — to drive vehicles despite the ban imposed by the court.
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Domestic violence is often accompanied by the phenomenon of violence against animals. Its victims are mostly pets and it usually occurs in the form of bullying. Criminal law does not treat crimes against animals as violent crimes, which makes them “silent” victims of domestic violence. The considerations contained in this sketch have been devoted to injured animals.
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This article is an attempt to reflect on the role of guilt as a criminal law structure for the legal protection of animals in the case of animal abuse. It distinguishes two groups of issues: first, the concept of guilt in criminal law, with particular emphasis on intentional guilt and direct intention; second, the analysis of the animal abuse crime in the doctrine and jurisprudence.
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Globalization and the interpenetration of complex economic structures, as well as new trends in economic crime require the creation of legal instruments which constitute an effective obstacle against the activity of entities that are not traditional (in terms of criminal law) perpetrators. It is, after all, collective entities that more and more often become direct animators and beneficiaries of criminal activities. The article will analyze the system of sanctions provided for against collective entities under the Act on the Liability of Collective Entities for Acts Prohibited under Penalty. The deliberations will also take into account the solutions provided for by the government bill on the liability of collective entities for prohibited acts under penalty, which was submitted to the Sejm of the previous term on 11 January 2019.
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The work is devoted to the analysis of the judicial decisions made by the Supreme Court and selected courts of appeal in the scope concerning the institution of interrupting the execution of the imprisonment sentence. The author was interested only in the most recent judicates issued in 2020–2021. In order to improve the readability of the text, the analysis of a specific decision begins with quoting its thesis, which is then accompanied by a short commentary. The discussed provisions focus on the most important problems which arise in connection with the practical use of the interruption of penalty.
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The subject of the article is the institution of the conditional early release of a convicted person who takes a break from serving the sentence of imprisonment. While presenting this institution (provided for in art. 155 of the Executive Penal Code), which is undoubtedly a privileged form in relation to conditional release on general terms (art. 77–79 of the Penal Code), the author discusses and analyzes the conditions for applying conditional release under this procedure. In carrying out the analysis in question, the author takes into account the fact that in the provision of art. 155 of the Executive Penal Code, the legislator made far-reaching modifications to the formal conditions for conditional release on the basis of the provision under discussion.
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The article discussed the issue of changes made to the Penal Code regarding criminal liability for acts taken in short intervals. In art. 12 § 2 of the Penal Code the legislator introduced a new provision under which, if the conditions set out in it are met, the perpetrator of several offenses is liable as for a crime. There are significant doubts as to the correct application of these provisions and the resulting consequences. In the amendment of 2020, the legislator introduced art. 57b of the Penal Code, on the basis of which the court must impose a more severe penalty for a continuous act. The consequences of this change, however, are even more far-reaching, which will be presented in the article.
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The institution of exemption from liability for committing a criminal act under the conditions of executing an order has evolved over the years. It plays an extremely important role from the perspective of the guarantee function of criminal law. It also specifically confirms the significance of the obedience principle in military structures as well as in other units to which the provisions regulating it apply in an appropriate manner. The current regulation refers to the principle of moderate obedience being a branch of the “thinking bayonets” theory. The analysis of national and international legal norms as well as doctrine and jurisprudence allows us to draw the conclusion that executing an order constitutes a specific circumstance excluding guilt, somewhat resembling the regulation regarding conflict of duties. Article 318 of the Penal Code does not exclude the perpetrator’s guilt in the case where they commit an offence intentionally — the topic here is a situation in which a soldier consciously intends or agrees to carry out an action which bears the characteristics of a type of a forbidden act, realizes them, even if he is not aware of the unlawfulness of his conduct. The fact that the perpetrator is a soldier executing an order does not, however, exclude the application of provisions of the general part abrogating criminality. Taking these factors into consideration, under suitable prerequisites, guilt or unlawfulness may be excluded on general principles.
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The publication is devoted to the changes that the penalty of restriction of liberty underwent at the turn of 2015/2016. During that period, two acts were adopted: the Act of February 20, 2015 on the amendment to the Penal Code Act and certain other acts, then the Act of March 11, 2016 on the amendment to the Code of Criminal Procedure Act and certain other acts. The study presents the direction of changes which gives the penalty of restriction of liberty a greater prominence in terms of accomplishing the tasks of the criminal policy. The new formula the penalty of restriction of liberty took pursues the most essential goals of punishment, i.e. retributive and preventive, and at the same time does not burden the state with the costs associated with penitentiary isolation. The penalty of restriction of liberty, being one of the basic measures, is an effective tool in the new regulation to fight petty and medium crime.
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