Mera zadržavanja osumnjičenog u predistražnom postupku

The purpose of this study is to find out first, how the arrangements of detention institutions to ensure legal certainty on the implementation of the judge's detention order (Ordering the defendant to be detained immediately) contained in the Court's decision. Second, to find out the juridical implications for the defendant and the Public Prosecutor on the implementation of the judge's detention order contained in the Court's decision. The method used in this research is a normative juridical research method. The results of the study said that in the public interest detention can be done with strict conditions. Therefore, the detention made against the defendant is limited by the rights of the suspect/defendant and the legislation is carried out in a limitative manner in accordance with the provisions of the Criminal Code. The implementation of the judge's detention authority in judicial practice there is ambiguity of legal norms because it is not regulated in the Criminal Code on the rules of judge's detention authority after the verdict is pronounced by the judge so that it gives rise to different interpretations from the point of view of the Public Prosecutor and Defendant's Legal Adviser. The judge's detention order is in accordance with the Instructions from the Attorney General of the Republic of Indonesia in his letter Number: R-89/EP/Ejp/05/2002 dated 06 May 2002 states: if there is an order to detain the defendant contained in the decision, then the Public Prosecutor must immediately execute it , although the decision does not yet have permanent legal force, because the implementation of the detention of the defendant carried out by the Public Prosecutor does not execute the court's decision, but merely executes the Judge's order contained in the verdict, as referred to in article 197 paragraph (1) letter k KUHAP.

The article presents the issue of personal changes in partnerships from the perspective of dangers to the interests of partners of such partnerships and third parties. The analysis is carried out primarily in the context of the norms concerning the national court register, but also the relevant regulations of the Code of Civil Procedure. On this basis, the author evaluates the current regulations and concludes that they pose significant dangers to both partners of partnerships and creditors as third parties. These dangers arise mainly from the way the system of presumptions provided for in the provisions of the Act on the National Court Register is shaped. The author refers to the de lege ferenda postulates expressed in the past and selects the optimal solution from the perspective of implementation of the principle of reliability of business trading, and also presents his own de lege ferenda proposals. In the author’s opinion, in order to secure the interests of a partner withdrawing from a partnership against the risk of attempts to hold him/ her liable for obligations arising after his/her membership in the partnership has ceased, it would be sufficient to grant such a person the right to file an application to remove him/her from the register of entrepreneurs as a partner of the partnership. On the other hand, in order to safeguard the interests of third parties, it would be advisable to broaden the scope of application of the norm arising from Article 14 of the Act on the National Court Register and subject the former partner of a partnership to the rigors of this regulation. In addition, in order to ensure greater transparency of the data disclosed in the register, in the author’s opinion, it is advisable to consider the possibility of introducing, within the framework of the register of entrepreneurs, an institution similar to that provided for on the grounds of land and mortgage register proceedings, concerning the obligation of the court to disclose ex officio an identified inconsistency of the actual state of affairs with the state of affairs disclosed in the register of entrepreneurs.

The limited liability company is the most prevalent form of company in Romania. It is similar to the French S.A.R.L. (société à responsabilité limitée) or the German GmbH (Gesellschaft mit beschränkter Haftung), but important differences can be identified in the context of this type as it exists in Romania. This article focuses on a single but very important problem: Can the creditors of associates of limited liability companies enforce their claims by selling or acquiring participation in the limited liability companies of their debtors? And, if so, under what conditions? The problem of de lege lata is controversial, and the author seeks to offer a plausible interpretation of the existing norms, which make the rule effective but, at the same time, preserve the essential and traditional features of the limited liability company. In addition, several alternatives to de lege ferenda proposals are suggested, making this study a valuable contribution to the future development of Romanian company law and offering insights for further comparative research.

This paper discusses the existence and scope of the morality exception from patentability, in Article 53 (a) of the European Patent Convention. The analysis will look into the history of the provision, debate its rational and interpretation by reference to three examples of technology areas: stem cell research; gene editing and AI/big data analytics.Bioscience innovation has always generated heated ethical debates in society. The patent system is not immune to such discussions. The European Patent convention contains a morality and ‘ordre public’ exception in Article 53 (a) EPC, preventing patentability on grounds of lack of ethical compliance of the invention with prevailing standards. Many other jurisdictions have similar provisions or somehow impose restrictions on patentability based on similar ratio legis. The topic is further regulated in Article 6 of the Biotechnology Directive (which is also adopted in the EPC implementing rules). The ratio legis of this norm, the standards for its applicability and legitimacy to develop them are far from clear or consensual. Innovation in cutting edge biosciences implies always a certain level of uncertainty concerning future technological possibilities. The same can be said in regards to any legislative attempt to regulate such technologies. The Biotechnology Directive was enacted in 1998 after a long legislative process. At the time, the academic and policy discussions were based on mere abstract scientific possibilities and imaginary dystopic eugenic futures. Today we are confronted with realistic possibilities for life saving genetic health interventions, that can be made possible provided there is enough incentive to innovation in genetic therapy. Science and technology has progressed considerably in the last 20 years. It will be argued that developments in scientific knowledge and technology are a factor to be taken into consideration in legal interpretation and de lege ferenda proposals. (Less)

A tanulmány a 2017. évi CX. büntetőeljárási törvény új jogintézményét, a nyomozási egyezséget vizsgálja. A szabályozást megalapozó elméleti problémák felvázolása után a hatályos törvényszöveg értelmezésével foglalkozik. Ezt követi a joggyakorlatban eddig felmerült alkalmazási kérdések vizsgálata, és a joggyakorlat által életre hívott alkalmazási nehézségek feltárása. A tudományos munka utal a jogintézményt érintő törvényjavaslat módosítási törekvéseire is. A tanulmány de lege ferenda ajánlást fogalmaz meg annak érdekében, hogy a nyomozási egyezség a gyakorlatban sűrűbben alkalmazott jogintézménnyé váljon, megkönnyítve ezáltal a nyomozó hatóságokra háruló ügyterheket.

The main purpose of this article is to recognise an ongoing phenomenon of disintegration in legal terms. A specific role of the EU institutions is inevitable because of supranational relations’ nature and to-date momentum of public international law. Briefly, disintegration supported by the EU institutions may be the expected solution. Therefore, the concept of institutionalised disintegration is the author’s proposal for using the EU acquis to create a new (autonomous) treaty regime of public international law and to define the EU institutions anew. The basis for reconciliation of institutions and disintegration is to constitute the scientific method on so-called legal phenomena that combine dogmas and functions of law in general. Legal phenomena are correlated with de lege ferenda proposals that – mainly critically – react to current challenges. Challenges – in turn – are derived from a de lege lata analysis of the politico-legal system (especially understanding of the institution, mapping of disintegration and examination of legislative methods).

This article outlines a regulatory proposal for the crime of piracy and its penalties. Following the introduction, Section 2 addresses the duty to cooperate in the repression of maritime piracy established in Article 100 of the United Nations Convention on the Law of the Sea (UNCLOS). It also discusses the existence of an obligation to codify the crime of piracy and establish appropriate penalties, as part of the duty under Article 100. In this context, Section 4 is a de lege lata analysis of how national legislators have codified maritime piracy while Section 5 is a de lege ferenda proposal. Namely, Section 4 identifies some regulatory patterns in a wide number of jurisdictions that show to what extent there is a lack of harmonisation of domestic laws on maritime piracy. Section 5 discusses a regulatory proposal for the crime of piracy and its penalties.

Przedmiot badań: W tekście poddano analizie art. 159 kodeksu spółek handlowych. Cytowany przepis przewiduje możliwość przyznania „szczególnych korzyści” wspólnikowi spółki z ograniczoną odpowiedzialnością. Regulacja ta ma wyjątkowy charakter, biorąc pod uwagę fakt, że wpływ udziałowca na funkcjonowanie tego podmiotu – co do zasady – zależy od wartości posiadanych jednostek uczestnictwa. Cel badawczy: Celem publikacji jest kompleksowe przedstawienie problematyki związanej z przedmiotem oraz zakresem przywilejów przypisanych uczestnikowi spółki z ograniczoną odpowiedzialnością, ich przyznawaniem oraz wygasaniem. Cel ten starano się osiągnąć poprzez analizę wymienionych aspektów w trzech jednostkach redakcyjnych. W pierwszej skupiono się na zagadnieniach związanych z przedmiotem oraz zakresem przedmiotowym dodatkowych kompetencji. W drugim na ich przyznawaniu. W trzecim z kolei na wygaśnięciu. Metoda badawcza: W pracy wykorzystano metodę dogmatycznoprawną. Sięgnięto w szczególności do tekstu ustawy z 15 września 2000 r. kodeks spółek handlowych, komentarzy, artykułów oraz monografii, a także orzecznictwa. 1 Wyniki: Skutkiem bliższego przyjrzenia się omawianej problematyce jest sformułowanie trzech kategorii konkluzji oraz ewentualnych wniosków de lege ferenda. Pierwsze są pozytywne. Dotyczą one istnienia unormowań umożliwiających przypisanie szczególnych uprawnień wspólnikom spółki z ograniczoną odpowiedzialnością. Drugie zaliczają się do mieszanych. Chodzi tu o brak określenia przedmiotu oraz zakresu przedmiotowego omawianego zagadnienia. Prima facie stan ten może wydawać się korzystny, choć – jak się okazuje – nie do końca tak jest. W tym przypadku zaproponowano konkretne rozwiązania legislacyjne, mogące poprawić tę sytuację. Ostatnie są krytyczne. Odnoszą się one do kwestii wygasania „szczególnych korzyści”. De lege lata nie jest ona jednoznacznie uregulowana. Wobec tego powstają wątpliwości na gruncie stosowania art. 159 kodeksu spółek handlowych. W tej materii także wzmiankowano o sposobie poprawy redakcji przepisu.

Criminalization of insurance intermediation in criminal economic lawThe subject of the article is the analysis of criminal laws criminalizing insurance intermediation in Poland. This is an issue that falls under the dogmatic considerations of criminal economic law in the aspect of protecting the statics of economic turnover, i.e. its basic structures and institutions. The evolution of the criminalization of this sector of the insurance market, the genesis of current criminal law regulations as well as critical remarks to the latest penal provisions of the Insurance Distribution Act will be presented. The analyzes will be the basis for presenting de lege lata’s comments and the de lege ferenda proposal.

The social and political changes in Poland led to abolition of Realsozialismus which is now being replaced with a democratic country governed by Rechtostaat (Art. 1 of the Constitution) from aspirations after national freedom and respect of human rights in public life. The problem of protection of individual freedom made itself particularly felt here; it is also subject of the present paper which discusses the protection of individual subjectivity in the light or the institutions of arrest and detention awaiting trial. Until quite recently, Poland was one of the many Communist countries where human rights were violated much too often, also on the occasion of arrest and detention awaiting trial. Many factors were conductive to this situation, such as faulty legislation; inadequate socjal consciousness; depreciation of the authorities, law and other norms; prevalence of repressiveness in dealing with social pathologies; and absence of social control of the activity of law enforcement agencies, the police and prison staff in particular. But the weakness of legal protection of individual resulted also from a strong relation of the activities of practically all governemental and social bodies those dealing with prosecution and investigation as well as administration of justice included, to politics. This political nature of functioning of those agencies, resulting monopolistic power of the Communist party, led to a limitation of the independance of the judiciary. The adoption of new political principles of Polish State and election of the new Parliament (on June 4, 1989), together with formaion of the non-Communist Cabinet, created the conditions for a new criminal policy based step by step on European standards. The institutions of arrest and detention awaiting trial well illustrate the pathology of functioning of the agencies of legal order and the direction of changes taking place in criminal policy. They also demonstrate a specific paradox; the Polish people’s great devotion to freedom and the simultaneous unfeeling tramling of that freedom. The two institutions have been discussed from the viewpoint of protection of human rights on both the normative plane and in the practice of the years 1980–1990. Arrest is one of the forms of coercion which consists in a short-term deprivation of liberty. The Polish legal system provides for procedural, preventive and administrative arrest. Each of these types has a separate legal regulation (procedural arrest, the Act of 19 April 1969 – Code of criminal procedure; preventive arrest, the Act of 6 June 1990 on the police and another Act bearing that same date on State Protection Office, together with their executory acts; and administrative arrest, the Act of 28 October 1982 on education to sobriety and control of alcoholism). Moreover, each type of arrest is to serve different aims (procedural arrest, protection of propriety of criminal proceedings; preventive arrest, protectton of order and public safety, human life and health, and property; and administrative arrest, control of alcoholism). Also different are the conditions of arrest, the agencies authorized to apply it, and the period for which a person can be detained. The present authors focus mainly on preventive arrest related to the administrative function of the police as guardian of order. That form was particularly abused and human rights were often violated in the course of its execution. Preventive arrest has recently undergone significant changes both in the normative sphere and in practice. As compared to the former one, its present regulation: 1. defines its legal grounds with greater accuracy; 2. broadens the detainee’s rights; and 3. introduced judicial review. This has contributed to the curbing of arbitrary police activities in this sphere. Duration of arrest is specified in the Constitution (Art. 87) and in the provision of Art. 207 of the code of criminal procedure. It cannot be londer than 48 hours from the moment of detention, and 24 hours in the case of administrative arrest (Art. 40 of the act on education to sobriety and control of alcoholism). Violations of these provisions have so far been frequent. In the case of procedural and preventive arrest, the rights of the detainee are the same. According to the valid provisions, the detainee has the following rights among others: the right to be informed in writing as to the time and reasons of arrest; the right to be advised as to the possibility of complaining to the court against the application of that measure, and to the public prosecutor against the way of its execution: the right to health care. The catalogue of the detainee’s rights is insufficient: e.g. it does not contain the right, to legal assistance (conseul). What particularly impairs the protection of the detainee’s personal interests is the absence of by-laws concerning the execution of arrest in the police house of detention, as the duplicated set of provisions called ,,By-laws for Detainees”, introduced by an order of the Chief of Civic Militia in 1959, hardly comes up to the standards. The provisions now in force have broadened the range of legal means of vindication of his rights that are at the detainee’s disposal. Particularly notable here is the reintroduction of the institution of habeas corpus. Namely, the detainee has been granted the right to complain to the court against arrest (Art. 207 point ”a,, of the Code of criminal procedure) and to the public prosecutor against the way of execution of arrest (Art. 15.7 of the Act on the police). If the arrest has been obviously unjustified, the detainee is due indemnity from the Treasury and monetary compensation of moral injury (Art. 487 of the Code of criminal procedure); the same concerns the situation where he has suffered damage or injury as a result of an improper execution of arest (Art.Art. 417-419 of the Civil code). Besides, the detainee may approach the court with a claim in virtue of protection of his personal interests (Art.Art. 23 and 24 of the civil code). In the latter half of 1990, arrest was executed in 798 police houses of detention all over the country, that is fewer by a whole 71,7 per cent as compared to 1989. The recent changes have made it possible to abolish the division of houses of detention into categories (of which there used to be three according to the duration of detention). The number of arrests amounted to over 500,000 a year at times (with the peak of 572,220 in 1982 – see Table 1). Starting from 1988, it gradually went down to nearly one-third of its original value which reflects above all the general liberalization of the police approach towards crime and other deviations. In the period under analysis, the living conditions in the police jails were – and still are primitive and many a time offensive to human dignity. This has been confirmed by the present author’s own study and two surveys of those jails carried out by the National Ombudsperson. An acute problem is the right to apply constraint during and upon detention. It is regulated by provisions of the police Act and an Ordinance of the Council of Ministere of 17 September 1990 which specifies the situations, conditions and ways in which direct coercion can be used by the police. Without questioning the grounds for such coercion, not only the legal conditions of its application but also the faults or even abuses in this sphere have been pointed out. What the authors find the most severe violation of human dignity are neither humiliating conditions of isolation nor illicit prolongation of detention but first and foremost beating of a person after he has surrendered to the power of enforcement officers. Cases of beating have again started growing in number this year (as has been found by the Helsinki Committee in PoIand and the National Ombudsperson). The activities of the public prosecutor’s office in this sphere have been criticised in the article. The paper also discusses the consequences of the introduction of Art. 209 of the Code of criminal procedure which made it possible to commit to the police jails persons detained awaiting trial (for up to ten days or three months), and even those sentenced to a prison term (of up to six months). This provision has recently been quashed, but the police press for its reintroduction. Until quite recently, the police jails were submitted to no supervision whatever. The public prosecutor’s. office remained passive and carried out but most perfunctory supervision, if any. This situation hardly served the protection of detainees’ rights. It was only improved in 1988 when the police jails were submitted to supervision by the Ombudsperson and later also by Commissions: of Administration and Internal Affairs of the Diet and of the Rule of Law and Human Rigths of the Senate, and by other agencies and institutions. Also pre-trial detention is a serious interference with human rights. It is one of the preventive measures provided for by the Code of criminal procedure, and at the stage of execution – by the Code of execution of penalties and the Ordinance of Minister of Justice of 2 May 1989 – by-laws of execution of detention awaiting trial. The discussed measure can be applied by the court, and before the indictment also by the public prosecutor. The present authors find the latter’s right to apply pre-trial detention contradictory to provisions of international law, the covenants ratified by Poland included (see Art. 9,3 of the International Covenant on Political and Civil Rights). The legal provisions fail to specify the upper limit of duration of pre-trial detention. The amendement of the Code of criminal procedure and the changed policy of application of dotention resulted in a fall in the number of those detained awaiting trial. There were 9,722 such detainees on July 31, 1989 (see Tables 4–5). There was also a radical drop in the number of persons detained for over 12 months: in 1990, as few as 0,03 per cent of those kept at the public prosecutor’s disposal had been detained for at least 12 months. However, an alarming upward tendency in the number of persons detained awaiting trial can be noted lately. Discussing the conditions for optional or obligatory pre-trial detention, the authors criticize some of them as estimative in nature, and thus involving the danger of arbitrary use of this measure. The reasoning has been based on decisions of the Supreme Court which is of particular importance for the effective protection of the detainee’s rights. There have been a lot of faults in the practice of application and execution of pre-trial detention which was frequently used as a means of pressure aimed at forcing a person to plead guilty or to denounce an accomplice. In Poland, the application of pre-trail detention is the domain of the public prosecutor’s office. In the years 1975–1989, prosecutors applied this measure in nine out of every ten cases. The population of houses of detention and other penitentiary institutions shaped differently starting from 1945. A comparison of changes in the numer in the number of convicted persons with those of persons detained awaiting trial shows that the latter population was more stable starting from the 1960’s and never changed as radically in number as that of prisoners. That was the case despite the increased frequency of application of detention in the 1970’s. What contributed to this situation above all was the shortening of preparatory proceedings. In the period under analysis, the total number of persons detained awaiting trial in a given year largely approximated that of prisoners in that same year, and showed the same fluctuations resulting from the aggravated or relaxed criminal policy in the country. The trends here have nothing in common with the actual dynamics of crime as such. The authors assume that the number of persons detained awaiting trial reflects decisions in the sphere of criminal policy rather than the actual changes in crime, the economic situation, or even severe political tensions. What is also characteristic of the practice in this respect is the fact of a faulty application of the discussed measure. In the years 1975–1989, at least every 111th and at most every 71st person previously detained awaiting trial was subsequently found not guilty by the court. In some years, there were over 500 such persons. The authors discuss preventive barriers defined by the Supreme Court which are to ban clearly unjustified detention. As follows from analysis of the practical application of conditions for pre-trial detention, the one most frequently quoted was the alleged considerable social danger of the crime. Repressive conditions prevailed over the purely procedural ones. ln order to find out about the actual dimensions of the problem of pre-trial detention, the authors consulted the data concerning the use of preventive measure not involving isolation in criminal proceedings (such measures being financial and non-financial pledge, police supervision, and safe-conduct; see Table 6). It turned out that in the years 1978-1990, preventive measures other than detention awaiting trial never amounted to more than 43,5 and to less than 18 per cent of all preventive measures applied. After the above-mentioned Art. 209 of the code of execution of penalties has been quashed, detention awaiting trial can only be executed in the houses of detention created and run by the Ministry of Justice (Art.Art. 4 and 83 of the code of execution of ponalties). On December 31, 1990, there were 65 such institutions in Poland. Twenty-seven of them had additional wards for convicted persons, while 48 prisons had special wards for those detained awaiting trial. Thus pre-trial detention could be executed in the total of 114 of the 151 institutions of the Prison Department. The houses of detention had the total capacity of 18,263 beds, while the number of detainees was 16,200; the discussed institutions were therefore populated in 88,7 per cent. The rights of the discussed category of detainees are specified in the Code of execution of penalties and by-laws of execution of pre-trial deteotion awaiting trial. What is particularly worthy of attention is the provision which states that the detainee enjoys rights that should at least equal those of a convicted person, and that the only limitations allowed in this sphere are those indispensable for securing the proper course of criminal proceedings, maintaining order and safety in the institution, and preventing mutual demoralization of detainees (Art. 86 para 1 of the Code of execution of penalties). A person detained awaiting trial has many legal measures at his disposal to protect his own rights in relation to the application and execution of detention. Thus the detainee can lodge a complaint with a supreme agency of the penitentiary administration (Art. 48 para 4 of the Code of execution of penalties); with the public prosecutor and penitentiary judge (Art.Art. 27–33 and 48 point 5); to the supreme State agencies, the National Ombudsperson included (Art. 48 point 5); he may apeal against a decision of the administration of the house of detention concerning the actual execution of that measure to the penitentiary court (Art. I4,l of the Code of execution of penaltes); he may also sue the Treasury for damage suffered during detention by guilt of functionaries of the penitentiary administration (Art.Art. 417–l9 of the Civil code); he may claim indemnity for obviously unjustified detention (Art.Art. 487–49l of the Code of criminal procedure); and he may bring legal action by virtue of infringement of his personal interests (Art.Art. 23–24 of the Civil code). As shown by experience, the persons detained awaiting trial either never resort to some of these means or do that ineffectively. The living conditions of the discussed category of detainees are specified mainly in the by-laws of pre-trial detention. Many faults and shortcomings have been found here in practice. Some of such faults were so drastic as to make it necessary to close several houses of detention in 1990 to mention just one example (the institutions were either liquidated or designed for repairs). The authors also assume an attitude towards the treatment of some categories of offenders (women, particularly dangerous detainees, persons with mental disorders, HIV carriers), and discuss the treatment of juvenile detainees. Ending the paper, the authors stress the gradual improvement in the treatment of detainees since 1989. It results both from the legislative changes and from a relatively liberal criminal policy. The legal and to some extent also the organizational conditions have been created for implementation of the rule of law. Further changes are necessary, though, including in particular the passing of a new Constitution and penal codes. The drafts of the latter suggest, many new solutions in the sphere of arrest and detention awaiting trial which would make those institutions meet the European standards. What can considered valuable are the trends towards limiting the application of the two measures, specifying the conditions of their application, importantly, extending the guaranties of detainees’ rights.

We are now entering in Poland into the second decade of the new penal system in force. The period of time which has elapsed: since the introduction of this system is long enough to enable us to take a close look at the new legal institutions envisaged in the system, at the practical value of these institutions and trends observed in their application. This paper is devoted to the above considerations, or to be more exact, to the part played by the application of penal measures. In order to characterize roughly the guidelines underlying the above penal codifications it should first be stated that what the legislators had in mind was a need to treat serious and petty offences in a different way. Those who were guilty of serious crimes were to suffer from penalties of immediate deprivation of liberty, and, exceptionally, that of capital punishment. Some categories of offenders regarded as dangerous, repulsive or persistent were to meet augmented penal repressions. Among these were perpetrators of hooligan, type offences, and recidivists some of whom, after completing their sentences, were to be treated with special penal measures, such as protective supervision and/or placing in a social readaptation centre. At the same time various lenient penal measures were to be imposed against perpetrators of petty offences. Sometimes proceedings against such persons were to be discontinued. Besides, some petty offences became depenalized (for the first time in 1967 and then on a larger scale in 1971) by considering them to be transgressions and getting them transfered from the courts to the Penal Administrative Commissions. The Penal Code, the Penal Executive Code and the Code of Criminal Procedure have been in force since 1st January, 1970. However, it should be borne in mind that penal legislation is not confined to the above mentioned codes. It also embraces some statutes with two very important ones issued in the early seventies: the Code of Transgressions included in the set of acts of 20th May 1971 (Dz.U. no. 12, para 114— 118) making up a codified system of transgressions law and the Financial Penal Code of 26th Oct. 1971 (Dz.U. no. 28, para 260). It is only after the above acts had been passed the process of codification of the Polish penal legislation was completed. If one takes into consideration the need to have a minimum period of time necessary for learning how to make use of new regulations and the date when the previously mentioned acts came into force, as compared with the 1969 codes, one should take the year 1972 as a starting point for the analysis of the penal policy as determined by the new penal codification in the full form. The problems of the applications of penalties by courts arising from the 1969 penal code regulations are among the most complex ones and bear evidence of the fact that at this particular issue, the regulations of the present code are not exceptionally successful. For the purposes of our discussion we should try to introduce some order into this complex subject. Therefore, we shall distinguish three groups among the regulations of the imposition of the penalty by the courts. The first group will include the regulations from the special part of the penal code (and other penal acts), which describe the kind and limits of penal sanctions provided for the perpetrators of crimes envisaged in the regulations. The second group shall include the regulations from the general part of the Penal Code (or statutes with general part, such as the financial Penal Code or Chapter 37 of the military part of the Penal Code) which modify the norms found in the regulations belonging to the above first group. The above modifications concern the changes in the limits of sanctions, rules of the order of choice: among the alternative sanctions, or possibilities of application of penal measures which are not provided for a particular offence. The third group will encompass the regulations specifying the principles to be used by courts in choosing the kind and extent of penal measures against offenders. The essential feature of the above legal system is that it lacks rules which would provide one strictly defined penalty for an offender of a given offence. The court is always faced with the necessity of making a choice of a penalty: first of all, whether to apply any punishment at all, or to confine oneself to a conditional discontinuance of the proceedings (arid sometimes, if the statute makes it possible, to renounce the execution of the penalty). If a sentence is passed, what kind of penalty is to be imposed, whether it should be combined with another basic penalty, or additional penalties, punitive financial award or preventive means should be made use of. What then should be the directives for the court in making the choice? The answer to this question is provided by the Penal Code, above all in Art. 50. In this article three different directives are included for the court in imposing a penalty at its discretion: (1) the degree of social danger of the offence, (2) regard for the social effectiveness of the penalty, and (3) the preventive and educational effect on the person convicted. These directives, dressed as they are in a new wording, correspond, as it were, to the classical purposes of punishment. The first of these is to give justice, i.e. to mete out retribution for the "evil" done by the offender in the form of suffering proportional to this "evil". The second purpose is general prevention, i.e. a tendency to punish the offender in order to prevent others from committing offences. The third purpose of punishment is special prevention, i.e. the effect on the offenders themselves in order to prevent them from committing further criminal acts. The difficulties involved in the implementation of the principle of justice once it ceases to be understood literally as that of "eye for eye, tooth for tooth”, are well known and need not be mentioned here. One ought, however, to point out that there is no "objective" or "invariable" scale of translating the degree of "evil" committed by the offender into the suffering caused to him, This scale is arbitrary and variable. Its variability can be seen both when the degrees of penalties imposed for the same offences at various times are compared, and, what is even more significant, when the comparison is made of penalties for the offences against various values protected by the law. It is thus clear that various penal policies can be pursued based on the principle of just retribution within the framework of the same legal system. The fact that § 1, Art. 50 of the Penal Code makes a mention of the social effect of a penalty rather than of general prevention was not accidental. However, from the argumentation included in the Introduction to the draft of the Penal Code it can easily be seen that what the authors of the draft really had in mind was that social effect meant instilling fear for the punishment in the prospective offenders. In the statements concerning special prevention only two forms of such effect on the convicted persons were distinguished, i.e. prevention and education. The first term refers, as may be judged from the argumentation in the Introduction to the draft of the Penal Code, to making it impossible for the convicted person to pursue crime by physically isolating him from the society in a penal institution or to ultimate exclusion from the society by the application of capital punishment. The second term is self-explanatory: education means that the attitudes and motivation of a convicted person are to be transformed in such a way that he will comply with the requirements of the law in the future. An essential draw back in Art. 50 of the Penal Code is that it includes three separate recommendations as to the court’s decisions on the way of dealing with the offender on the assumption that each of these recommendations would lead to the same result without any collisions between them. Had such a possibility come to the notice of the legislator at the proper time, the above directives would have been classified according to some order of importance or a regulation would have been introduced to solve any collision between them. As the main interest in this work is centered on the penal policy of the courts, of particular importance are the statements made by the Supreme Court concerning the content and interpretation of § 1 Art. 50 of the Penal Code rather than the opinions formulated in the doctrine of the law. Initially, the Supreme Court’s position was that the directives of § 1 Art. 50 of the Penal Code were all equal. But in 1975 for offenders convicted for the misappropriation of social property of high value the Supreme Court recommended the use of the directive of retaliation and general deterrence without mentioning the special prevention directive, thus making some distinction between them. Finally, in 1977 it became clear that the Supreme Court had accepted "just retaliation" as a priority directive in imposing penalties. Within the directive of "just retaliation" (social danger of the act) some shift in the emphasis can be noticed. At first the social danger of the act was regarded to be a synthesis of objective and subjective elements, and finally, the main importance was stressed of one of the objective elements, i.e. the extent of the damage caused or the benefit gained by the perpetrator. Thus a problem arises what value should be attached to these modifications in the positions taken by the Supreme Court. In anticipating further conclusions one is tempted to say now that these modifications were associated by significant augmentation of the penalties imposed by the courts. At least two explanations may be offered here. One is that the reason for the stiffening of the penal policy can be traced to the courts' making a greater use of the "retaliation" directive in the imposition of penalties. This may have an additional support in the fact that the penalties became more severe at the very time when the shift occurred in the emphasis from recommending the taking into consideration of all the three directives of Art. 50 of the Penal Code to "retaliation". Simultaneously special stress was to be put on making the responsibility more objective in the form of close relationship between the fine and the extent of the damage caused. In the second explanation both the above mentioned reasons, i.e. emphasis on retaliation and stiffening of penalties, would be regarded as caused by a third party. They can arbitrarily be called a process of making the legal values more rigid in the circles providing directives for the criminal justice system apparatus. The rigidity would manifest itself either in regarding the offences committed in this country to become more socially dangerous or the offenders to deserve a more severe treatment. It should, therefore, be noted that none of the directives mentioned in the Art. 50 of the Penal Code is unequivocally leading to a lenient or to a stiff criminal policy. Uniter the banners of either of the directives some offenders, some offences, may be considered as calling for lenient penal measures, whereas other offenders, other offences - may be thought of as deserving severe penalties. Thus, the final shape of the penal policy depends on how the line is drawn between those "calling for" lenient treatment and those "deserving" punitive reaction. Taking all the above into consideration the present author thinks of the second explanation as more probable than the first. It should be noted that only the penal measures imposed for offences dealt with by public prosecutor are analysed. Thus the analysis will not include a decreasingly small number of convictions for offences prosecuted by the complainant himself (about 8 thousand in 1972 and 3 thousand in 1980). Although the capital punishment, as seen from Table 1, is imposed in a few cases only, its very existence in the Polish criminal law is strongly criticized by some lawyers and criminologists. Among penal measures used by common courts the penalty of immediate deprivation of liberty takes the second place after the capital punishment on the scale of severity. It is imposed in months and years (Art. 32 §2) and may range from 3 months to 15 years (art. 32 §1) and 25 years. If one analyses information on the duration of the above penalties, four characteristic elements have to be noted: (1) In 1980 for only one in 11 persons the immediate deprivation of liberty was shorter than one year (in 1975 - one in nine and one in four or five in 1972); (2) the immediate deprivation of liberty was most often imposed for the period between one and two years: over 40 per cent and in some years nearly 50 per cent of all persons had such a penalty imposed on them; (3) a long-term penalty (i.e. 3 years and more) was imposed on one person in five over the period 1975— 80 (in 1972 it was one in seven); (4) the absolute number of most severe sentences (over 10 to 15 and 25 years) was on the increase systematically till 1976. It should be particularly emphasized as from 1975 a decrease has been observed in the total number of imposing the penalty of immediate deprivation of liberty. The most commonly used penal measure was deprivation of liberty with conditional suspension of the execution (Art. 73 of the Penal Code). According to Art. 75 of the Penal Code the court when suspending the execution of the penalty of deprivation of liberty can, among other things, impose one or more obligations provided for in the above article. These obligations were imposed on the persons sentenced to the penalty of deprivation of liberty more and more frequently. The courts most often obliged the sentenced persons "to refrain from abusing alcohol", "to perform specified works or render specified contributions for social purposes" and "to perform remunerated work, to pursue education or prepare himself for an occupation". What is also interesting is that the courts have ordered more and more obligations, or to put it differently, they have less and less often confined themselves to ordering one obligation only. Thus the court’s action in this respect has been intensified. Irrespective of ordering the above obligations the court suspending the execution of penalty of deprivation of liberty may, for the test period, "place the sentenced person under the supervision of a designated person, institution or social organization" (Art. 76 § 2). The fraction of those placed under supervision in the totals of liberty was stable in the early seventies (30— 31 per cent), it began to rise in 1974 and reached nearly 40 per cent in 1980. The court may conditionally suspend the execution of a penalty of deprivation of liberty of up to 2 years when sentencing for an intentional offence and of up to 3 years when sentencing for an unintentional offence. (Art. 73 §1). Over the period 1972-80 certain changes were also observed in the extent of these penalties. They were similar to those of the extent in the penalties of immediate deprivation of liberty. They can be summarized as follows: (1) a very significant fall occurred in the fraction of penalties below 1 year (from 45.7 to 12.3 per cent); (2) the most often suspended penalty of deprivation of liberty was that of 1 year (36.6 to 44 per cent); (3) the percentage of suspended penalties over 1 year and up to 2 years increased markedly (from 17.7 to 44.1 per cent). The imposition of a penalty of deprivation of liberty, both immediate and conditionally suspended, is associated with the possibility (and in some cases - an obligation) of imposing a fine in an amount from 500 to 1 000 000 zlotys (Art. 36 §2 - 4. Unfortunately, the judicial statistics do not distinguish (except for some offences) whether the fine is imposed together with immediate or suspended sentence of deprivation of liberty. It turns out that the persons sentenced for the above penalties suffered from a fine quite often and this additional burden became more and more frequent: in 1972 the percentage of penalties of unconditional or suspended deprivation of liberty was 61.1, and in 1980 - 68.1. In the period of only 8 years 1972 - 80 almost no fines were imposed up to 1 000 zlotys, their number having decreased from 13.6 thousand to 82 and the respective contributions from 15.0 to 0.1 per cent. The penalty of limitation of liberty is among the new penal measures which after some hesitation have become accepted in practice. In the period under discussion the contribution made by sentences of this penalty increased threefold: in 1980 they amounted to 18.0 per cent of all sentences. In other words, one in six persons sentenced in cases initiated by public prosecutor is punished by limitation of liberty. This penalty imposes some limitations on a person sentenced, e.g. he may not change his place of abode (Art. 33 §1), and can take three forms. One of them is an obligation of "performing unremunerated supervised work for public purposes from 20 do 50 hours per month" (Art. 34 §1). The penalty of limitation of liberty in this form was applied to 41.4 per cent of sentenced persons in 1980 as compared with 38.1 per cent in 1972. The second form is applicable only to persons employed in a socialized work establishment and consists in deducing 10 to 25 per cent of the remuneration for work for the benefit of the State Treasury (Art. 34 §2). It was applied to 46,4 per cent of sentenced persons in 1980 as compared with 58.8 per cent in 1972. The third form - most seldom applied - is used when the court directs a person not being in an employment relation to an appropriate socialized work establishment for the purpose of performing work there and deduces from 10 do 25 per cent of the remuneration for work (Art. 34 §3). It was, however, applied in 12.2 per cent of cases in 1980 as compared with 3.1 per cent in 1972. Although the penalty of limitation of liberty may be not less than 3 months and not more than 2 years (Art. 33 §1), its minimum duration of 3 months has lately been imposed in 1.1— 1.3 per cent of sentenced persons as compared with 5.2 per cent in 1972. The most commonly imposed duration was over 6 month to 1 year. In 1980 nearly one person sentenced in 3 had it imposed on for a period from 1 to 2 years while in 1972 this happened to one person in 25. Again, like the penalty of unconditional deprivation of liberty, deprivation of liberty with suspension, fine imposed together with deprivation of liberty, the penalty of limitation of liberty shows an ever marked tendency to be imposed most infrequently in its lower extent and most often in its high and highest extent. The same applies to the fine (Art. 36 §1). It can be adjudged in an amount from 500 to 25 000 zlotys, i.e. within much narrower limits than that imposed together with a penalty of deprivation of liberty. The changes which took place in the years 1972— 80 as regards the extent of the fine, resemble those which occurred in the case of a fine adjudged together with deprivation of liberty (Table 1). We shall finish our discussion of basic penalties with two pieces pf information. The imposition of the supplementary penalty only (Art. 55) was confiscation of property in 90 per cent of cases, and prohibition of operating motor driven vehicles in the remaining 10 percent. Educational and corrective measures applied (Art. 9 §3) consisted in placing in a borstal in some dozen percent of cases, which is a kind of deprivation of liberty. The largest group, about half of all on whom these measures were imposed, was placed under the supervision of a probation officer. We shall now try to formulate some general conclusions drawn from the date on the structure an extent of penal measures. We shall use four groups of indexes to present the conclusions in most concise form (Table 2). These indexes will describe the most important statistically determined aspects of Poland's penal system. The first group of indexes refers to the extent of crime known to the police. Traditionally the penal measures applied are thought of as a response to this crime. Therefore, if one wants to understand their evolution one has to look into the nature of the evolution of crime. The determination of the extent of crimes known to the police can be carried out in several ways. It can be based on the data on the offences (taken from the police and public prosecutor’s statistics) or on the data on the offenders supplied as a rule by the judicial, statistics. The data on the serious offences known to the police encompass acts chosen in an arbitrary way limited by the extent of those published in the Statistical Year Books for the years 1971— 80. The number of sentences can be determined more simply from the number of sentences for acts regarded as the most serious ones by the legislator (Art. 5 of the Penal Code). All this information is presented in the form of rates per 100 000 total population (data on the offences known to the police) or per 100 000 adult population (data on sentences). By comparing the changes in these rates two conclusions can be drawn. First, the number of serious crimes known to the police as well as that of the crime perpetrators brought to trial during the seventies was at a similar level although it showed some variations. The general rate of offences known to the police was measured in three different ways, namely the rate of crimes known to the police, the persons found guilty and the sentenced ones. It proves the relevance of two well known observations: the first one is that when the criminal case passes along the subsequent links in the chain of the justice system (police, public prosecutor’s office, court) the size of the crime known to the police becomes smaller. The second observation is that serious crimes are less susceptible to such fluctuations. The second conclusion drawn from the comparison of crime rates introduced above is that it he statement about the stable extent of crime first of all, that of most serious crime, is of greatest importance for further discussion. This statement warrants the opinion that the observed changes in the structure and intensity of penal measures cannot be accounted for by the corresponding changes in the extent and character of the crime known to the police. The reasons of these changes should be traced to changes in legal values, i.e. in the evolution of the opinions as to what kind of penal reactions form the "proper" response to definite offences against the law, what penalty is "adequate" to the amount of social danger involved in the offence and, the belief in the general deterrent effect of severe penalties. The data on the application of preliminary detention show that about one in four persons at the time of being convicted had experienced deprivation of liberty. As expected, this experience was specially common among the persons on which the court had subsequently imposed the penalty of immediate deprivation of liberty. The data collected in the third part of Table 2 on the structure of the penal measures imposed provide a remainder of the changes in these measures. Among them one can observe a certain limitation of sentencing to immediate deprivation of liberty, and a much more marked decrease in the number of sentences to a suspended deprivation of liberty. The former change may be regarded as a symptom of what is so much needed in the Polish criminal justice system, i.e. of eliminating penalties associated with deprivation of liberty and the ever increasing application of penalties without deprivation of liberty in the sentencing practice, not only in verbal statements. As for the latter change it is difficult to take an unequivocal attitude. It is because one should remember that period 1972 - 80 was not only characterized by a fall in the per cent contribution of sentences of suspended deprivation of liberty but also by a rise in the per cent contribution of placing under supervision, ordering obligations, increasing the number of such obligations, imposing fines together with deprivation of liberty, the extent of which is also increasing. We shall now consider the indexes to determine the rate of the application of penal measures. Table 2 shows two such groups chosen out of a variety of others. One group is made up of the numbers of persons sentenced to deprivation of liberty per 100 thousand adult population. The second group constitutes the mean values of various penalties. The above indexes help us to focus our attention on two contradictory, in the author’s opinion, trends. One trend, to limit the imposition of the penalty of immediate deprivation of liberty, is best seen in the fall in the number of sentences to this penalty (per 100 000 adult population) from 272,7 in 1972 to 172,1 in 1980, i.e. by 37 per cent. The other trend, in the opposite direction, is seen in the ’"rates" of sentences to long penalties of deprivation of liberty, i.e. 3 and over years, and particularly, 5 and over years. During only 4 years the mean penalty of immediate deprivation of liberty became longer by nearly 6 months from 19 months in 1972 to over 25 month in 1976. The tendency to augment the penalties has also manifested itself in the rise by as much as 25 per cent of the mean penalty of suspended deprivation of liberty: from about 12 months ip 1972 to about 15 months in 1980. This augmentation seems quite Irrational as it is a well-known fact that for a large majority of such penalties there is no need to have them executed. At the same time there is no evidence that the penalties imposed in the previous extent were ineffective or their lengthening had led to higher effectiveness. The next pair of mean values given in Table 2 provide information about the extent of both kinds of fine. These values must be analysed in close relation with significant devaluation of money in Poland in the seventies. Therefore, the table contains information about the mean monthly salary in the socialized economy in this country (the last line). During the period 1972— 80 the salaries increased more than twofold, but the fines increased fivefold. As early as in 1972 the mean value of either of the above fines was equal to a little over one month salary, in 1980 the fine was equal to more than a two-month salary, and the other fine amounted almost to a three-month salary; the repressiveness of the above penal measures increased markedly. We shall complete our discussion of Table 2 with one general remark. When observing the evolution of penal policy in Poland in the span of the last 25 years, two features may be distinguished. One constant tendency, though not without some hesitations and obstructions, to augment the impact of individual penal measures based almost exclusively on imposing one type of punishment. The second feature is a tendency to combine these effects by simultaneously using various kinds of punishment imposed on a sentenced person. This tendency was noticeable in the sixties, but it became more marked in the light of the present-day regulations which have opened up new and greater possibilities in this respect. The tendencies like the above in the penal policy raise some doubts as to their effectiveness and moral validity. They seem to convey impression that the penal measures in Poland have been undergoing a process of accelerated devaluation. It looks as if in order to attain the same aims of penal policy simultaneous application of the ever increasing measures in ever increasing doses should be resorted to. It is most doubtful whether such a devaluation really takes place as similar results were obtained earlier by means of less severe penal measures. One cannot escape the impression that the present penal policy in Poland is characterised by a certain extravagancy manifesting itself in the above accumulation of various forms of repressiveness instead of making an attempt to use them in an alternative way. The future development of Polish penal policy calls for a fundamental analysis and gradual reorientation.

In Croatia, when a juvenile commits a misdemeanour, provisions of the Misdemeanour Act will be applied, as well as the subsidiary application of the Criminal Procedure Act (CPA) and the Youths Courts Act (YCA). In 2019, Croatia implemented Directive 2016/800/EU on procedural safeguards for children who are suspects or accused persons in criminal proceedings into YCA and introduced new procedural rights for juvenile offenders in criminal proceedings. Croatian legislators began the process of implementing EU legal standards into the Misdemeanour Act but stopped after the implementation of Directive 2010/64 and Directive 2012/13/EU. Directive 2016/800/EU, which refers to the position of juveniles in criminal proceedings, has not been implemented into the Misdemeanour Act. In the first part of the paper, current legislative provisions that refer to juvenile misdemeanour offenders in Croatia are analysed. The second part of the paper gives a theoretical and normative analysis of the position of juvenile offenders through the prism of possible application of Directive 2016/800/EU in misdemeanour proceedings in order to determine whether EU procedural legal standards defined by Directive 2016/800/EU can and to what extent be applied to juveniles in misdemeanour proceedings in Croatia. De lege ferenda proposals regarding the transposition of Directive 2016/800/EU into domestic misdemeanour legislation are given in the conclusion of the paper.

The amendment of Civil Procedure Code, was made by Act of 4 July 2019, introduces a lot of developments in the sphere of formal and fiscal pleadings’ defects remedying. New solutions regard inter alia unification of the results of failure to eliminate defects of pleadings by attorneys ad litem, extending terms for proceedings aimed at reforming specific pleadings’ defects and moving soi-disant reformatory proceedings with ordinary remedies to courts of second instance. The article discusses the amendments on the title issue, presents the assessment of its practical use as well as stresses certain de lege ferenda proposals in said matter.

The measure of pre-trial detention is one of the five preventive measures regulated by the legislator in Title V of the general part of the new Criminal Procedure Code, adopted by Law no. 135/2010 and implemented on February 1st, 2014, along with detention, judicial control, judicial control on bail and house arrest. Preventive measures are institutions of criminal procedural law, and have a coercive character, aimed at the deprivation or the restriction of individual liberty, whereby the suspect or defendant is prevented from undertaking certain activities that would adversely affect the proper conduct of criminal proceedings or achieving the purpose of the criminal trial. Regarding the cases of pre-trial detention and the conditions that must be met in order to take the measure of pre-trial detention, it must be said that they result from the corroborated examination of the provisions of art. 202 para. 1 and 3, and art. 223 of the Criminal Procedure Code. Article 202 of the Criminal Procedure Code regulates the general conditions for taking preventive measures, in general, and the provisions of art. 223 of the Criminal Procedure Code regulates the specific conditions for taking the measure of pre-trial detention.

As a result of the aging population and the improvement in average life expectancy, the visibility of psychiatric diseases causing loss of mental competence has considerably increased. The aging population presently enjoys expanded options in social life and improved support within the legal system. These positive changes resulted from the combined effort of the academic and legislative bodies toward finding ways to support patient autonomy and self-involvement in decisionmaking in case of loss of mental competence. This article focuses on the regulations, known as the advance healthcare directives, prepared for application when a drafter loses mental capacity. The genesis of this concept and efforts toward its adoption are discussed and analyzed from a comparative lens. This study examines advance healthcare directives in a wider sense, including instruction directives and durable powers of attorney. As Turkish law lacks a legal rule providing for bindingness for these kinds of dispositions, certain de lege ferenda proposals in line with the comparative findings have been proposed at the end of this paper.