Defendants In Criminal Proceedings Research Articles

Euthanasia in detention and the ethics of caring solidarity: A case study of the 'Tarragona Gunman'.

Almost a year after the enactment of the law regulating euthanasia in Spain, public opinion was shocked to learn that a defendant in criminal proceedings obtained medical assistance in dying following injuries sustained in an exchange of gunfire with the police after having committed a series of severe crimes. Although there are very few cases in the world where prisoners have received euthanasia, the one we will discuss in this article is the only known case where both the public prosecutor's office and the private prosecutors judicially opposed the defendant's euthanasia. This article aims to offer a new perspective on the ethical legitimacy of detainees' access to euthanasia: the ethics of caring solidarity. To do this, we will first place the case in its legal context. Subsequently, we will address the two main arguments proposed in the literature to justify euthanasia in detention: respect for the autonomy of the detainee and the principle of equivalence of care. Finally, after having identified serious shortcomings in both arguments, we will argue that the perspective of caring solidarity offers a better ethical basis for people in detention's access to euthanasia.

Lost in translation: Implementation of the right to a translator through the use of machine translators in the light of EU and Polish Law

Both national and EU law provide for the right of an accused person to receive essential procedural documents in a language they understand and to participate in the proceedings in the presence of an interpreter. The need to implement these procedural guarantees raises several problems, such as the limited availability of interpreters and the cost to the State. This prompts the search for other solutions to implement the indicated individual rights. This article aims to answer the question of the admissibility and legitimacy of using machine translators to implement the right to an interpreter for defendants in criminal proceedings, and to indicate the opportunities and risks associated with the use of AI-based systems in this regard. The article presents the result of a linguistic, systematic and purposive interpretation of the relevant provisions of national laws and the provisions of Directive 2010/64/EU. Formal-dogmatic and statistical methods were used. The results of research into the quality of machine translations and statistics on the costs of translations are presented. The results support the recognition of the admissibility and legitimacy of the use of machine translators in criminal proceedings in order to implement the indicated rights. The text presents possible ways of applying these solutions in judicial practice and formulates a demand to the Ministry of Justice to begin work on the programme without delay. However, currently, both law enforcement and justice authorities can use publicly available machine translation software.

Ways to Protect Creditors’ Rights When Presenting Property Claims to the Debtor’s Managers in the Bankruptcy Procedure

The article defines the main mechanisms for attracting persons who lead (managed) a legal entity to civil and public liability. The concepts of a person influencing the actions of a legal entity (Article 53.1 of the Civil Code of the Russian Federation), a person controlling the debtor (Article 61.10 of the Bankruptcy Law) and a civil defendant in criminal proceedings (Article 54 of the Code of Criminal Procedure of the Russian Federation) are revealed. Due to the variety of mechanisms established by the legislator for the restoration of creditors’ property rights, the article analyzes the advantages and disadvantages of each separately. Using examples from judicial practice, the author proves that there is no dispositivity in choosing the method of replenishing the bankruptcy estate at will, and the opinion that the difference in methods is insignificant, that it is not the rule of law that you refer to that is important, but the fact of restoration of rights after harm by the debtor is incorrect. The author makes an assertion that the choice of the appropriate method is justified by the individuality of the dispute, the conditions of treatment, the person applying and the result desired by creditors, depending on the chosen method of protecting creditors’ rights. The legislator distinguishes between ways to protect the rights of creditors, where each case has its own goals, objectives and results. The paper raises the question of finding criteria for the correct and most profitable tool for restoring creditors’ property rights in a bankruptcy case, taking into account procedural and legal features. The article is aimed at developing the theory and judicial practice in bankruptcy cases and ensuring the stability of the already formed practice, maintaining a balance of interests, as well as resolving conflicts.

'Embarrasing and Even Ridiculous'

This paper examines the brief lifespan (1907–20) of ‘Two Act’ entrenchment, a curious constitutional law idea which emerged in Queensland in the early 1900s. Its origins lay in an argument formulated by Queensland’s then Chief Justice, Pope Cooper, qua defendant in criminal proceedings arising from his refusal to pay income tax on his judicial salary. That argument was that the Constitution Act 1867 (Qld) was a form of ‘fundamental’ or ‘organic’ law which could not be altered by legislation passed in the ordinary way, but which could be changed only by a Two Act legislative process in which the Legislature in Act 1 expressly empowered itself to alter the relevant provision and then in Act 2, again expressly, enacted the relevant alteration. The article considers how it was that an idea which had no textual basis in either Imperial or colonial legislation, for which there was no supportive judicial authority, and which had no precedent in Queensland’s legislative practice, was repeatedly upheld by Queensland’s Supreme Court and Australia’s High Court before being dismissed as wholly without merit by the Privy Council in McCawley v The King; but dismissed in terms which laid the foundation for the Privy Council’s subsequent approval of the proposition (in Trethowan v Attorney-General of New South Wales) that Australia’s State legislatures did indeed possess the legislative competence to enact judicially enforceable entrenchment devices to prevent certain laws being enacted through the ordinary lawmaking process.

Identitet presude i optužbe u krivičnom postupku - jurisprudencija domaćih sudova

Achieving the identity of the judgment and the charge in criminal proceedings, represents the assumption of the realization of the accusatory principle, as well as the realization of fundamental rights of the accused, such as the right to defense, the right to a fair trial. In order to be able to say that in a specific case there is congruence between the judgment and the charge, it is necessary that identity has been achieved both in the subjective and in the objective sense. The above compliances are regulated by the Code of Criminal Procedure of the Republic of Serbia, Art. 420. The legislator points to the importance of achieving the subjective and objective identity of the judgment and charge by prescribing the violation of the said identity as an absolutely essential violation of the provisions of the criminal procedure. In this way, the legislator provided additional protection, first of all, to the individual interest, that is, the position of the defendant in criminal proceedings. As it is a very important questio facti criminal procedural issue, which is regulated by the general clause, it is extremely important to establish in which cases the identity of the judgment and charge is violated. For the purpose of establishing such cases, as well as their grouping according to relevant criteria, research was carried out, which included the analysis of a significant number of decisions of domestic courts-qualitative research approach. Also, in order to determine in which cases the subjects of legal remedies indicated in their appeals the existence of a violation of the identity of the judgment and charge, empirical research was carried out of a certain number of decisions of the High Court in Belgrade and the Court of Appeal in Belgrade-quantitative research approach.

Measures to Ensure the Presence of the Defendant in Criminal Procedure with Special Empty Detention

Fundamental human rights and freedoms are inalienable and underlie the entire legal order and are guaranteed by various international acts and the highest domestic legal acts. With the commission of a criminal offense, the prosecuting authorities in order to establish a certain factual situation and to establish the relevant legal facts, are obliged to prosecute a certain number of subjects and procedural parties, including the suspect. Therefore, in order to successfully conduct criminal proceedings, it is necessary to ensure the presence of certain persons. Their presence in the panel procedure is achieved by describing the obligation to respond to the invitation of the criminal procedure body. In order to ensure the presence of the defendant in criminal proceedings, there are measures which, in addition to preventing further criminal activity of the perpetrator, also aim to prevent him from avoiding further proceedings. From the above we can give a notion of these measures “which are procedural actions that remove or restrict the freedoms and rights of the person against whom criminal proceedings are conducted. Measures to ensure the accuracy of the defendant are not criminal sanctions. With these measures, efforts are made for successful development of the criminal procedure, but also the achievement of other goals such as: detention of perpetrators of criminal offenses and bringing them to justice, smooth development of criminal proceedings and undertaking criminal procedural actions, execution of the imposed criminal-legal sanction, obstruction of new criminal acts, provision of argumentative material or safety of people. Measures to ensure the presence of the defendant can be applied at all stages of criminal proceedings. The court must take into account the legal conditions laid down for concrete measures and ensure that it does not apply a heavier measure when a milder measure is sufficient. These measures are removed as soon as the causes that caused them cease, or are replaced by other more lenient measures when the conditions are created for this. In this paper will be treated detention on remand as the main issue, which as a measure to ensure the presence of the defendant in the proceedings is considered as one of the most serious measures provided by the legislator to ensure the presence of the defendant in criminal proceedings.

Punomoćje u korist trećeg?

According to the provision of Art. 75 of the Criminal Procedure Code, one or more defense attorneys may be selected and authorized by the defendant, or his legal representative, spouse, blood relative, adoptive parent, adoptive parent, brother, sister, foster parent and the person with whom the defendant lives in extramarital affairs, or any other permanent community of life, unless the defendant expressly objects. The aim of this provision is to provide professional defense to the defendant in criminal proceedings even when he is unable to provide it, but the relationship between the lawyer and the person authorized to conclude a contract with him is of a civil nature. Theory and jurisprudence have not dealt much with the legal qualification of this relationship or have done it only marginally. Moreover, the explanation of the judgment of the Supreme Court of Cassation on the solidary liability of the accused and the certain person (wife) opens a number of questions, which are the subject of research in this paper. First of all, what is the legal nature of the contract that a lawyer concludes with a client? Is it possible to conclude such a contract in favor of a third party? What is the legal nature of the subsequent granting of a power of attorney? If a contract is concluded in favor of a third party, what is the legal effect of such a contract concluded between the parties? Does the contract in favor of a third party also result in an obligation for a third party? Finally, bearing in mind that the solidary liability is not explicitly agreed, from what does the court derive that kind of liability?

DETENTION AND HOME ARREST: THEORETICAL AND LEGAL ANALYSIS OF THE APPLICATION

The article presents the results of a comparative legal analysis of the use of preventive measures in the form of detention and home arrest. Both of these measures are forms of isolation from society of suspects, accused persons, and defendants in criminal proceedings. Thus, detention as a preventive measure, as a general rule, is applied by a court decision against a suspect or accused of committing crimes for which the criminal law provides for a penalty of imprisonment for a term of more than three years, if it is impossible to apply another, more lenient, preventive measure. When choosing a preventive measure in the form of detention, the judge's decision must specify the specific, factual circumstances on the basis of which the judge made such a decision. Such circumstances may not be data that has not been verified during the court session, in particular the results of operational search activities, submitted in violation of the requirements of Article 89 of the Code of Criminal Procedure of the Russian Federation. At the same time, house arrest, along with detention, is classified as a preventive measure that restricts freedom. These measures are identical in terms of preventing consequences. However, this circumstance is often not taken into account by the court. This conclusion is supported by statistics showing a low level of use of home arrest. The article examines the evolution of the legal regulation and application of detention and home arrest. The conclusion is made about the historical continuity of both positive and negative experiences. In particular, the use of detention as a means of influence to obtain "necessary evidence", a punitive measure, which does not follow from its essence, is traced. Unfortunately, this practice still exists today, as confirmed by the examples given in the article. The article examines the conceptual aspects of the use of detention and home arrest as an alternative to isolation from society. Proposals for amendments to the criminal procedure legislation aimed at minimizing abuses in the appointment and execution of procedural preventive measures in the form of detention and home arrest are formulated and justified.

Ensuring the Defendant's Right to Defense in the Case Dealt with in Defendant's Absence as a Universal Standard of Justice

When the case is brought before the international criminal court (a tribunal), a court of universal international jurisdiction, the defendant is granted the right to defense. One of its components includes safeguarding of the right to participate in the criminal proceedings initiated against him. In practice, it may be difficult to ensure this safeguard. Thus, even if the accused is properly informed of the case initiated against him, he may ignore the proceedings or refuse to participate in the trial. There may be difficulties in enforcing a restraining measure related to isolation from the society, including cases when the accused is located in a State different from the State of the forum. Even during the proceedings, the accused can be removed from the courtroom for the violation of order, contempt of the court or insulting a participant in the proceedings. Judicial proceedings in the absence of an accused person in international and national law are not treated separately as a special and separate form of proceedings, but rather as a routine procedure with a number of exceptions. The refusal to allocate as an independent proceeding the trial in the absence of the defendant is based on the narrowness of foundations for its use and practice that does not accept the absence of the defendant in criminal proceedings. In these cases, the problem of a fair trial arises in the absence of the person being prosecuted but with respect to his or her rights.

The right to keep silence of the accused, defendant in criminal procedure of the Russian Federation and Vietnam

In Vietnam, the right to silence was first provided for in the 2015 Criminal Procedure Code. It can be said that the provision of the right to silence is a great step forward in protecting human rights and implementing a fair trial order in criminal proceedings. However, the provisions on the right to silence of the accused and defendants and the legal safeguards in force still contain some issues that need to be studied and discussed. This article presents the current provisions on the right to silence of accused and defendants in criminal proceedings in the Russian Federation and Vietnam, as a result of which the author compared, analyzed the shortcomings and presented an opinion on improving the legislation.

The Personality of the Defendant Through the Prism of Justice: Criminology and Criminal Procedure Aspects

The article is devoted to integrated research of key milestones of criminological and criminal procedure aspects of knowing the personality of the defendant and to the identification of the existing problem of harmonizing these types of cognitive activities in the administration of justice. The authors stress the differences between the criminological and the criminal procedure interpretations of the personality of the defendant, which are also manifested in the interpretation of its structure. It is shown that the factor integrating the knowledge of the personality of the defendant during judicial proceedings is the inseparable unity of this knowledge with the process of proving. The limits of knowing the personality of the defendant in criminal proceedings are directly dependent on forms of knowing and vary under the influence of their differentiation. The article presents three levels of knowing the personality of the defendant in justice in the criminological and criminal procedure aspects: extended (proceedings in cases of minors and cases on using compulsory medical measures); ordinary (cases prosecuted in general and special procedures); differentiated (cases tried by juries). It is pointed out that the personality of the criminal is most thoroughly examined at the extended and ordinary levels of knowing, which is caused by the contents of the general and the special objects of proof, as well as the absence of any legislative limitations on the objects and means of proving the above-mentioned circumstances. Most problems connected with the limits of knowing the personality of the criminal arise when a case is tried by a jury, which is caused by the bifurcation of the object of this study on the conducted inquiry with or without the participation of the jury. Having chosen the substantive approach to solving this problem, the legislators identified the limits of knowing the personality of the defendant with the limits of the sphere (object) of the cognitive competence of jurors, and other information on the personality of the defendant is studied after the verdict. The authors analyze the problems of correlation between the criminological and criminal procedure aspects of knowing the personality of the defendant in trials by jury: the effectiveness of a substantive limitation of studying personal characteristics of the defendant by jurors and the opportunity to examine the facts pointing at the insanity of the defendant with the participation of jurors. The authors also describe the specific features of examining the personality of the defendant in the USA and in Austria. They conclude that it is necessary to widen the scope of examining the personality of the defendant in trials by jury.

Institute of bringing as an accused: on the “deprocessualization” and “dematerialization” of its essence and content in the criminal proceedings of Russia

This work critically assesses the legal nature and practice of the institution of bringing as a defendant in criminal proceedings in Russia, particularly in its relation to the substantive legal act of bringing to criminal responsibility. The author argues that, due to the general bureaucratization of the process, both the first and second acts have actually lost their original purpose to be the determining material and procedural guarantee of individual and justice in criminal proceedings. Objectifying as a legal fiction, the act of bringing the accused as an accused in the doctrine of Russian criminal procedure law, done directly in practice, is increasingly characterized as an accusation of duty, initial, intermediate, and final, which respectively form the ideas of duty, intermediate, initial, and investigative-final criminal prosecution. This negates the role of the named defining acts. Hence, the paper suggests an optimal mechanism for their implementation according to the purposes and tasks of substantive and procedural law

The Protection of the Rights of the Defendant by the Constitutional Court-The Kosovo Case

The aim of this case study is to analyze the protection of the rights of the defendant in criminal proceedings and the implementation of international standards on the rights of the defendant in criminal proceedings in the domestic law of the Republic of Kosovo. This paper will focus on the role of the Constitutional Court of Kosovo in protecting the rights of the defendant during a criminal process, based on specific cases decided by the Constitutional Court of the Republic of Kosovo. For more than ten years since the Declaration of its Independence, Kosovo has established a legal system, which provides effective protection for the rights of a defendant. A significant role in this regard was played by the fact that Kosovo directly applies the jurisprudence of the International Court on Human Rights (ECtHR), as a constitutional obligation. Out of all institutions of the legal system in Kosovo, which are obliged to protect the rights of defendants, a determinant role was played by the Constitutional Court in such regards, therefore, this paper presents arguments how the Constitutional Court of Kosovo has become a guardian for protection of the rights of defendants, in compliance with the Jurisprudence of the ECtHR

СТАТУС ВИКРИВАЧІВ У КРИМІНАЛЬНОМУ ПРОВАДЖЕННІ

The article describes and analyzes the peculiarities of the legal status of the defendants in criminal proceedings. There is a need for a thorough legal analysis of the legislative consolidation of the rights and guarantees of participation of this category of subjects both at the stage of pre-trial investigation and at trial. The result of the work is the conclusion about the possibility of the defendant's participation in criminal proceedings, his release from legal liability, the use of legal aid, confidentiality, provision of information, provision of information on the status and results of the examination, inspection and / or investigation, lodging an appeal.

Ściganie karne w Unii Europejskiej przed i po Traktacie z Lizbony – wybrane zagadnienia

Current legislative activity of the European Union performed under Title V, Chapter 4 of the Treaty on the Functioning of the European Union: “Judicial cooperation in criminal matters” is part of a wider process of internationalisation of criminal law. It shows a paradigm shift of this branch of law, which until now has, fi rst and foremost, been a product of national legal systems. The article discusses selected issues concerning the regulation of criminal prosecution under European Union law. Due to the fact that the present shape of this regulation is the result of a long process of numerous legislative activities as well as various non-legislative forms of international cooperation, the article is not limited to the discussion of the current state of the criminal prosecution in the EU, but takes into account the historical emergence of various institutions, both before and after the establishment of the European Union. Its fi rst part presents the historical development of instruments designed to cope with crime, which the European Community and then the European Union had at their disposal. This part has two objectives: to describe the diffi culties encountered when the fi rst attempts to coordinate the fi ght against crime at the European level were undertaken and to show the signifi cance of the progress that has been made in this area in recent years. After that, selected issues concerning the harmonisation of rules governing the procedural rights of suspects and defendants in criminal proceedings are discussed. The issue of minimum standards relating to penalties is also raised. The concluding part of the article assesses, whether the path of internationalization of criminal law chosen by the Member States in the post-Lisbon reality is justifi ed.

A atuação da Defensoria Pública no processo penal em prol do acusado não hipossuficiente e a justa retribuição pelo serviço público prestado

A atuação da Defensoria Pública em prol do acusado não hipossuficiente no processo penal suscita várias dúvidas em relação a possibilidade de cobrança do serviço público prestado. A tese aqui desenvolvida revela que a previsão contida no atual código de processo penal não contempla de forma adequada a nova roupagem constitucional em que a Defensoria está erigida. Não faz sentido desenvolver atividades atípicas da instituição sem a possibilidade de previsão específica e cobrança pela justa retribuição do serviço público prestado. O constituinte reformador possibilitou a emancipação da instituição, cabendo a seus gestores a iniciativa e adequação legislativa à nova realidade vivida.

The Right to Be Informed: The Parallel between Criminal Law and Tax Law, with Special Emphasis on Cross-Border Situations

This paper intends to identify the similarities and differences between the standards of protection of the taxpayer and the defendant in criminal proceedings, determining whether there is any common ground for building and/or interpreting those standards in order to improve people’s protection.

Uređenje prava na odbranu u pravu Evropske unije

Since mutual recognition of decisions in criminal proceedings, as the basis for international cooperation in criminal matters in the European Union, is unthinkable without mutual trust between the member states, and mutual trust is inextricably linked to the state's belief that its citizens are protected in another Member State, in the sense that they are guaranteed the same level of protection of basic procedural rights in criminal proceedings, it became clear and possible, after the entry into force of the Lisbon Treaty on the European Union, that it is necessary to regulate the procedural rights of the defendant at the supranational level. The individual rights of the defendant in criminal proceedings, as elements of the right to defense, are governed in the law of the European Union by a set of directives that have been adopted with the aim of strengthening procedural guarantees of the right to defense by imposing minimum rules.

Wpływ nieimplementowanych do systemu prawnego Rzeczypospolitej Polskiej dyrektyw unijnych na gwarancje procesowe

This article deals with the issue of the direct effect of EU instruments from the point of view of the constitutional system of sources of law. Ensuring the „effet utile” of Community law entails the requirement for the effective realization of the subjective rights resulting from that right. Undoubtedly the effects of breaching obligations to implement EU law, in particular the obligation to transpose draft legislation, affect a certain level of process guarantees. An in-depth analysis of the minimum standards of the rights of suspects and defendants in criminal proceedings prompts reflection on the impact of the directives not implemented in the legal system on defining the rights of defense. The discussion on this subject will be presented in the context of the regulation contained in Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty.

On the confrontation of the defendant in criminal proceedings

On the confrontation of the defendant in criminal proceedings