Penal Order Research Articles

Penal Order: A New Procedural Instrument in Criminal Justice in Albania

Penal Order: A New Procedural Instrument in Criminal Justice in Albania

Glosa do wyroku Sądu Najwyższego z dnia 5 grudnia 2023 r., I KK 255/23

The commentary concerns the possibility of issuing a penal order in a Polish criminal trial. The Supreme Court rightly pointed out that the court may issue a penal order judgment if, based on the evidence collected, the circumstances of the act and the guilt of the accused do not raise any doubts, and the lack of such doubts means that there are no doubts regarding the perpetration of a given act, the guilt of the accused, and the fulfillment of all the features of this act, taking into account all the evidence presented in the indictment. However, we cannot agree with the Supreme Court’s comment that the lack of a confession by the accused makes it impossible to issue a penal order.

Glosa do wyroku Sądu Najwyższego z dnia 20 stycznia 2022 r. III KK 292/21

The commentary concerns the expiry of the deadline for withdrawing an objection against a penal order. The author presents a critical view on the position taken by the Supreme Court that the taking of evidence at a hearing by a court in a petty offense case is irrelevant to the assessment of whether the deadline for withdrawing the objection against the penalty order has expired. In the author’s opinion, the decision to conduct such proceedings leads to the need to initiate court proceedings, which eliminates the possibility of an effective withdrawal of the objection.

Wrongful Convictions in Summary Proceedings: a Comparison of Penal Orders in France, Germany and Switzerland

Abstract Summary proceedings and especially penal orders have become increasingly relevant in criminal justice systems across Europe. The prosecution holds significant power and convictions cannot guarantee that defendants understand their judgment. This contribution compares laws and empirical data on penal orders in France, Germany and Switzerland, with a focus on the role of the prosecution and the rights of the defence. I argue that while penal orders offer an efficient way of processing minor crimes, they also pose a high risk of erroneous sanctions and wrongful convictions. The contribution concludes that in order to protect the rights of the defence, the balance of power between the prosecution and the defendant needs to be improved by granting a hearing before a judgment is rendered, and by translating the penal order and delivering it in judicial appointments. The findings provide valuable insights into the need for continued reform in the area of summary proceedings.

Glosa do wyroku Sądu Najwyższego z dnia 28 lutego 2023 r. I KK 437/22

The gloss concerns the admissibility of changing the description of the act alleged against the defendant and/or his legal qualification in the penal order in the context of the statutory prerequisites for adjudication in penal order proceedings. The author expresses the view that such a change is possible if it does not go beyond the limits of the prosecutor’s complaint and is based on the evidence collected in the preparatory proceedings. If there are evidentiary doubts as to the circumstances of the act and the guilt of the accused, the same proceedings in the order for payment procedure are inadmissible, and consequently the court may not issue a penalty order. However, if the evidence allows for adjudication in the prescriptive mode, the court may change the description of the act alleged against the accused and/or his legal classification, as the procedural law does not rule out such a possibility.

The prison-handicraft complex: Convict labour in colonial India

AbstractPrison labour was an integral part of the penal order in colonial India in the nineteenth and early twentieth centuries. Especially in Bengal, such coerced labour, overwhelmingly male, was increasingly deployed in handicrafts production rather than in extramural construction projects, a regimen that led to the development of a prison-handicraft complex. Colonial efforts to refine this system focused largely on increasing the severity of the conditions of incarceration and indoor work, but also on the conflicting goal of maximizing the profits of its handiwork. Prisons thus emerged as effective sites of handicrafts production, with the products of their forced labour facilitating the revival of the crafts industry whose growth is generally attributed to the rise of an international arts and crafts movement in Britain and India.

‘It causes a lot of problems’: Relational ambiguities and dynamics between prisoners and staff in a women's prison

Staff–prisoner relationships have long been recognised as lying ‘at the heart of the whole prison system’ (Home Office, 1984: para. 16; Liebling, 2011). However, relatively few accounts of women's imprisonment have focussed on staff–prisoner relationships specifically, whether describing their terms and dynamics or relating their characteristics to broader ideas of power, trust or legitimacy. In this article, based on semi-ethnographic fieldwork in a women's prison in England, we seek to do something of both, analysing the emotional and relational complexity of staff–prisoner relationships in the context of women's life histories, and the ways that they intersect with flows of penal power and powerlessness. The article illuminates the complexity and emotional intensity of these relationships, first, by outlining their core features, as described by female prisoners – blurred boundaries, infantilisation, pettiness, inconsistency and favouritism – and then by seeking to explain the complex entanglements of power and dependence that result. These explanations include the relative powerlessness and vulnerability of women in prison, their biographical experiences of abuse and trauma, and a tendency for uniformed staff to be somewhat careless in their use of power, while seeking to build close and supportive relationships with prisoners and engaging in forms of benign paternalism. The article concludes that women's prisons represent a challenge to models of penal order, authority and legitimacy precisely because of the relational nature of the flow of power that tends to characterise them.

Critical Junctures and Path Dependence in Sentencing Policy: A Case Study1

This paper presents a case study of sentencing policy in the adjoining, and demographically and culturally similar, states of Minnesota and Wisconsin. Using administrative data, together with historical and legal analyses of sentencing policy in each state, it (1) argues that the destabilization of the penal order represented a critical juncture during which commission‐based, presumptive sentencing guidelines were an option in both states; (2) analyzes how the decision to adopt this guidelines system in Minnesota and the failure to do so in Wisconsin initiated path‐dependent processes, making it difficult to reverse the initial policy choice; and (3) assesses how these distinct policy paths led to different penal outcomes. A concluding section discusses how analyses of path dependency shed light on the state variation in sentencing policy and provide a framework for assessing the possibilities of, and obstacles to, penal reform.

Producing exemplarity: Performance making in a Chinese prison

Penal order is closely linked to the broader social order in China and the disciplinary side of its maintenance. This article seeks to demonstrate, through the case of performance making, what order means to the Chinese prison authority, and how prisoners comply with and sometimes defy the system based upon various motivations. Using data from an ethnographic study on performance making in a men's prison during 2015–2018, this study aims to understand how an 'exemplary order' is maintained, and what kinds of compliance and resistance can be found. The findings suggest that “theatre in prisons” is not a Western invention to be borrowed, but a long-established institutional mechanism of order mainetence in China, as participation in prison's activities represents compliance with the regime order. However, compliance is also utilized by the prisoners not only for hedonistic gains but also for gaining social capital, which can have a strong positive influence on their quality of life inside and earlier release. This study will also demonstrate how the Chinese penal order maintenance shares similirities with modes of soft power found in British prisons, as well prisoner-officer collaboration found in other Global South countries, with a twist

MARGINAL NOTES TO THE PROVISIONS OF THE CRIMINAL PROCEDURE CODE ON THE HEARING FOR THE IMPOSITION OF CRIMINAL SANCTIONS

The article refers to the hearing for imposing a criminal sanction, as a simplified procedural form provided by the Serbian Criminal Procedure Code. It is an institute which in comparative legislation is usually called a penal order. The paper critically considers the regulation of this procedural form, and at the end are given some proposals de lege ferenda.

Carceral urbanism: Reconstructing the architecture of punitive space in post-genocide Rwanda

In this article I make the argument that the prison in post-genocide Rwanda is an architectural artefact and a problem-space around which to examine the transitional dilemmas of the post-genocide period. I examine the changing punitive architecture of incarceration in Rwanda’s capital and in secondary urban areas. Looking at the space of the prison in relation to the changing city, I posit that through the penal production of space, the state reconfigures logics of punitive practices and urban governmentality. Changing logics of incarceration are evident in Rwanda today in the deconcentration of the capital, Kigali, to make way for an urban masterplanned order. In analyzing this shift in the visibility of the penal order in Rwanda over time, I contend that the prison constructs the city through its punitive and surveillance-based logic, as much as the city constitutes the prison as a spatially segregated edifice. I examine two sets of governmental spaces and practices that have run through different eras of Rwanda’s colonial, post-independence and post-genocide periods: (a) the prison and punishment, and (b) the reordering of the capital city and urban planning.

RULE OF LAW CONCERNS IN THE CROATIAN PENAL ORDER PROCEDURE LINKED TO DEPRIVATION OF LIBERTY, JUDICIAL CONTROL, ADMISSIBILITY OF EVIDENCE AND PROCEDURAL RIGHTS

The paper analyses the mechanism of a penal order as a consensual procedure aimed at relieving the criminal justice system in cases of minor criminal offences by avoiding a trial. The study aims to analyse the Croatian normative framework and case law in order to determine the distinctive traits of the penal order procedure in a comparative legal context, disclose the procedural reality and detect its shortcomings. The paper focuses on the substantive and procedural requirements for the issuing of a penal order, the judicial control of the indictment requesting a penal order, the defence rights in the proceedings before the issuing of a penal order and the position of the victim. These key elements were researched through normative, theoretical and comparative analysis of German, Austrian, Italian and French law and conclusions were tested in the case law of the Municipal Criminal Court in Zagreb and the Municipal Court in Split. The results of the research reveal that the expansion of the application of the penal order to graver offences punishable by five years of imprisonment and to more severe penalties such as deprivation of liberty, as well as deviations from some fundamental criminal procedural principles inherent in the penal order procedure, raise the question of providing adequate procedural guarantees for the defendant and the victim.

Exclusion without trial? Exclusion of evidence and abbreviated procedures

Many legal systems have adopted rules that lead to the exclusion of evidence that has been obtained in violation of procedural rules. Exclusion normally occurs before the trial begins or even during trial. However, the majority of criminal cases are today not resolved through a full trial but by some kind of abbreviated procedure, e.g., through a guilty plea or a written penal order. In this article, the author claims that exclusionary rules should, by and large, also apply in such abbreviated proceedings. Practical obstacles could be overcome by a more active involvement of defense counsel in abbreviated proceedings.

Court’s Ability to Assess Evidence Obtained During Operational Activities

The article discusses the court’s ability to assess information of evidence obtained during operational activities. It addresses only the cases where a person is found guilty of a criminal offence and criminal punishment has been imposed by a court judgment, without considering cases where the punishment has been determined by the public prosecutor when drawing up a penal order. The aim of the study is to examine the possibilities of the court to assess information of evidence about facts obtained in operational activities, to identify legal and practical issues for the court’s ability to assess such information, as well as to propose solutions. Material and methods used in the preparation of the article include analysis and description of regulatory enactments, court judgments, comparative and lo­gical method. These materials and methods help to achieve the goal of the research. Analysing normative acts and court judgments, describing normative acts and court judgments in the article, analysis and description of normative acts and court judgments have been used for the compositon of the research. The comparative method has been used to compare provisions of regulatory enactments, while the logical method has been used to draw conclusions. Methods of interpretation of legal norms – grammatical, systemic and teleological method – have also been used in the composition of the study. Keywords: court, criminal proceedings, evidence.

TINJAUAN HUKUM ATAS PROSES PENYIDIKAN TERHADAP PELAKU TINDAK PIDANA YANG DIDUGA MENGALAMI GANGGUAN KEJIWAAN

Article 44 of the Penal Order stipulates that it is not punishable for anyone acting in a state of disficed or impaired soul due to a disease. Article 44 of the Criminal War clearly mentions one of the possible restrictions on a person's ability to account for his or her actions before the law. The research methods used in this study are normative approaches and empirical approaches. The data sources in this study consist of primary data and secondary data. The problem is, in the process of investigating the perpetrator of a crime suspected of having a psychiatric disorder and whether the legal consequences arising from the investigation of a criminal suspected of having a psychiatric disorder. The results of this study show that the investigation of suspected criminals with psychiatric disorders in accordance with sop investigations ranging from summons, arrest, detention, seizure, examination, requesting forensic expert information, shooting suspects and submiting case files to the court. As a result of the law that arises from the investigation of the perpetrator of the alleged criminal disorder based on the expert's description in this case forensic experts through psychological examination of the psychological condition of the perpetrator which from the results of Visum et Repertum Psychiatricum states that the suspect is in a healthy condition of his soul and continues the investigation process.

Vanessa Barker, Nordic Nationalism and Penal Order: Walling the Welfare State

Vanessa Barker, <i>Nordic Nationalism and Penal Order: Walling the Welfare State</i>

Penal Order Proceedings as a Manifestation of Permissible Simplification of Certain Procedural Institutions

Penal order proceedings are but one type of special procedure. They are characterised by a far-reaching reduction in formalism. The article discusses institutions which are characteristic for this type of proceedings, noting the admissibility of such solutions but also the dangers inherent in adjudication only on the basis of evidence collected by the public prosecutor. In addition, a detailed analysis of the positive and negative criteria for the use of penal order proceedings was presented.

Fighting Against Organized Crime With the Use of Agent Provocateur. The Experience of Slovak Republic. Outline of Issues

In subject literature devoted to police formations in various countries, we can find a lot of terms describing essentially the same institution concerning the police officer’s secret actions — “undercover”, the so called “police agent”. In the legal and penal order of many countries the terminology concerning the police agent’s institution has not been standardized until now, no single term covering this issue has been elaborated so far. The most frequent terms that may be encountered are: “secret investigative agent“, “secret police officer“, “undercover agent“, “covert“ or “secret agent“. Not only are we dealing with a situation in which in practice there is no one international and universal term describing this issue, but also in majority of European countries there are various determinants and criteria enabling the practical use of this “tool, designated for the fight against criminality. The factors that affect it include, for example: the implications provided to law enforcement authorities by domestic and international activities of organized crimes which, in turn, forces us to identify and define emerging threats and to modify and adjust practical actions concerning the police, prosecutor’s office and courts in their fight with this specific kind of criminal activity. For this reason, we may be able to find various doctrines concerning the procedure of using the institution of the police agent’ in the fight against criminality all over the world. The article has been prepared as part of theresearch project called “Understand the Dimensions of Organized Crime and Terrorist Networks for Developing Effective and Efficient Security Solutions for First-line-practitioners and Professionals” (Project: TAKEDOWN, H2020-FCT-2015, No.: 700688).

Nordic Nationalism and Penal Order: Walling the Welfare State. By Vanessa Barker. Abingdon, UK: Routledge, 2018, Abingdon, Oxon.

<i>Nordic Nationalism and Penal Order: Walling the Welfare State</i>. By Vanessa Barker. Abingdon, UK: Routledge, 2018, Abingdon, Oxon.

Bridging the Mediterranean without papers: Tunisian francophone illiterature’s representation of irregular immigration in the age of globalisation

ABSTRACT My essay illuminates the plights of those who live on the southern shore of the Mediterranean under the antagonistic forces of globalisation, according to which the free movement of capital between Europe and North Africa is matched by a criminalisation of immigrants from the southern bank. My analysis of the discrepancy between the borderless economics and the bordered movement of people explores the representation of clandestine immigration in Fawzi Mellah’s Clandestin en Méditerranée/Clandestine in the Mediterranean (2000), which depicts illicit passages from North Africa to Europe. Criticising European democracies’ containment of the heralded dynamism of the global age and their diffusion of a discourse feeding fear about migrants, I show that globalisation has turned into a ‘globalization of punitiveness’ [Barker, Vanessa. 2012. ‘Global Mobility and Penal Order: Criminalizing Migration, A View from Europe.’ Sociology Compass 6 (2): 113–121]. My exploration of the migrants featured in the text demonstrates that globalisation’s failure to achieve the spatial decentralisation ideal on which it has based its flat-planet premise makes undocumented immigration the last resort of those to whom the Schengen Area closes its borders. My spatial analysis of the paperless migratory enterprise reads the irregular crossing as an attempt to construct defiant identities that resist the global structure of domination.