criminal proceedings

Poszlaki i dowód poszlakowy w postępowaniu karnym w Polsce do 1991 roku. Analiza doktryny i orzecznictwa

Author: Jarosław Ślęzak
Institution: Pomorska Szkoła Wyższa
Year of publication: 2017
Source: Show
Pages: 337-346
DOI Address: https://doi.org/10.15804/cip201720
PDF: cip/15/cip1520.pdf

W tekście dokonano analizy pojęcia, funkcji, klasyfikacji, oceny poszlak oraz ich wykorzystania do budowy dowodu poszlakowego do 1991 roku w Polsce zarówno w doktrynie, jak i orzecznictwie. Zwrócono uwagę na swoisty charakter dowodu poszlakowego i jego zastosowanie do wykrycia sprawców przestępstw przeciwko życiu, zdrowiu i mieniu. Istotne jest wykorzystanie zasad kryminalistyki w sprawach poszlakowych.

Мета доказування у кримінальному провадженні про порушення прав інтелектуальної власності: істина чи процесуальна справедливість?

Author: Євгеній Компанець
Institution: Scientific-Research Institute of Intellectual Property of National Academy of Law Sciences in Ukraine
ORCID: https://orcid.org/0000-0001-8162-1965
Year of publication: 2021
Source: Show
Pages: 54-77
DOI Address: https://doi.org/10.15804/ksm20210404
PDF: ksm/32/ksm3204.pdf

The purpose of proof in the criminal proceedings on infringement of intellectual property rights: truth or procedural justice?

The article summarizes the existing discussible approaches of domestic and foreign scholars to understanding of the purpose of criminal procedural proof and the search for truth. The legislation of Ukraine, norms of the Convention for the Protection of Human Rights and Fundamental Freedoms, Criminal Procedure Codes of a number of European countries, modern approaches of US courts, the Supreme Court [of Ukraine], the European Court of Human Rights on normative consolidation of the purpose of criminal procedural proof and application of the law are analyzed. On the basis of an excursion in the history of science the basic theories of truth are highlighted. It has been established that the theory of objective truth has prevailed in science for a long time, but attention is drawn to the fact that it is increasingly criticized in favor of efficiency of criminal proceedings through applying relevant legal procedures. Judicial practice shows a shift in emphasis from establishing the truth to procedural justice aimed at achieving the optimal model of the purpose of criminal proceedings and proof. The approaches to the purpose of proof and the search for truth of various subjects in criminal proceedings on infringement of intellectual property rights and efficiency of applying conventional truth are substantiated. The own vision of the concept of the purpose of proof is proposed and propositions on improvement of the procedural legislation of Ukraine are provided.

Службові особи, уповноважені на вчинення процесуальних дій в екстериторіальному просторі України

Author: Olena Rybytska
Institution: Kharkiv National University named after V.N. Karazina
ORCID: https://orcid.org/0000-0002-5382-3882
Year of publication: 2021
Source: Show
Pages: 78-91
DOI Address: https://doi.org/10.15804/ksm20210405
PDF: ksm/32/ksm3205.pdf

Officials authorized to perform procedural actions in the extraterritorial space of Ukraine

In the article, the author, first of all, defines the concept of extraterritorial space and its structural elements, it helps to determine the scope of officials. In accordance with the norms of the Criminal Procedure Code, officials who are authorized to perform procedural actions in the extraterritorial space of Ukraine are indicated. However, the author points to gaps and conflicts of criminal procedure law related to these officials. The article also analyzes the process of replacing an official authorized to carry out procedural actions on the territory of diplomatic missions and consular posts of Ukraine abroad, on aircraft, sea or river vessels outside Ukraine under the flag or with the identification mark of Ukraine, if this vessel is assigned to port located in Ukraine. It is noted that the issue of criminal procedural jurisdiction over the crew of the object, which is launched into space is not regulated in the Criminal Procedure Code of Ukraine, does not determine the official authorized to perform procedural actions and the mechanism of its replacement is absent. In the conclusions, the author proposes amendments to the criminal procedure legislation of Ukraine in order to fill the gaps and resolve conflict issues.

Механізм оскарження та способи перевірки висновку експерта в кримінальному провадженні

Author: Василь Петрович Жмудінський [Vasyl Petrovych Zhmudinskyy]
Institution: адвокат, кандидат юридичних наук, магістр права
ORCID: https://orcid.org/0000-0002-1439-128X
Year of publication: 2022
Source: Show
Pages: 46-54
DOI Address: https://doi.org/10.15804/CPLS.20223.06
PDF: cpls/3/cpls306.pdf

Mechanism of Appeal and Methods of Verification of the Expert Opinion in Criminal Proceedings

The article is devoted to the study mechanisms of appeal and methods of verification of the expert opinion in criminal proceedings. It is proved that the expert opinion, as well as other collected evidence, should be verified for its compliance with the requirements of the legislation and consistency with the case materials, and if violations are detected during its preparation, such an opinion should be subject to appeal. It is indicated that the methods of verifying the expert opinion are defined by articles 332 and 356 of the Criminal Procedure Code of Ukraine. However, the peculiarity of carrying out this verification of the expert opinion is that such verification is possible only at the stage of judicial proceedings, while the current Criminal Procedure Code of Ukraine does not provide for a mechanism for verifying the expert opinion at the stage of pre-trial investigation. Attention is drawn to the fact that despite the absence of a legally defined mechanism for appealing an expert opinion in accordance with the norms of the Criminal Procedure Code of Ukraine, a party to criminal proceedings is not deprived of the right to appeal against such an opinion in a different order, namely by submitting to the Central Expert Qualification Commission of the Ministry of Justice of Ukraine an application for initiating disciplinary proceedings against an expert who violated the current legislation during the relevant expert examination. The grounds for submitting this application for initiation of disciplinary proceedings are: non-compliance of the expert’s specialty with the type of expert examination conducted by it; non-compliance of the content of questions put to the expert’s decision with the requirements of scientific and methodological recommendations; application by an expert of improper methodology of forensic examination; conducting expert research to clarify issues of law. It is argued that if, as a result of a review of the disciplinary responsibility of a forensic expert, it is found that he violates the norms of current law, then such an expert will be held disciplinarily liable, and the expert’s expert opinion drawn up by such an expert will be considered inadmissible evidence.

Ograniczenie zasady działania sądu z urzędu i jego wpływ na wyrokowanie

Author: Jacek Sobczak
Institution: Szkoła Wyższa Psychologii Społecznej w Warszawie
Year of publication: 2014
Source: Show
Pages: 27-43
DOI Address: https://doi.org/10.15804/tpn2014.2.03
PDF: tpn/7/TPN2014203.pdf

The adversarial principle is merely the name of a specific type of organizing process, not a specific Directive of criminal proceedings. The adversarial principle is uniformly recognized as non-codified directive, according to which the criminal process is conducted in the form of equal sides dispute before the impartial court. The adversarial principle in criminal proceedings is something other than adversarial in civil proceedings. The adversarial principle was exposed in the course of work on the revision of the Code of criminal proceedings. The creators of the reform emphasized that Article 167 § 1 of the Code of criminal proceedings differently than it did before, sets out the rules of proof, giving this task in the hands of the parties, leaving only the court admissibility of evidence, and reducing the possibility of taking evidence by the court to exceptional cases justified special circumstances. The creators of the reform emphasized that Article 167 § 1 of the Code of criminal proceedings differently than it did before, sets out the rules of taking of evidence, giving this process to the parties, leaving only the admissibility of evidence to the court, and reducing the possibility of taking evidence by the court to exceptional cases justified by special circumstances. Will be changed the rules for transfer of the court materials from preliminary proceedings. Another important issue is the systematization of the list of evidence, in accordance with the modified Article 333 § 1 of the Code of Criminal Procedure and solutions for planning of court hearings. May cause discussions restriction the possibility of taking the initiative of the evidence by the court. The changes enforce proactive stance of the accused, even though he should be able to take advantage of the „right to silence”. Militate against the principle of adversarial problems brought to light on the background of the appeal proceedings. You can express its concern that the adversarial principle in the present approach will detrimental to the presumption of innocence, leading to a model of „proceedings for the rich”. These changes will force to remodel the psyche of judges who feel guilty persons determining cases of dispute run by the parties, not the players involved who have the task of replacing the prosecutor.

Podmiotowy zakres prawa do obrony w postępowaniu karnym w świetle art. 42 ust. 2 Konstytucji RP

Author: Justyna Karaźniewicz
Institution: Uniwersytet Kazimierza Wielkiego w Bydgoszczy
ORCID: https://orcid.org/0000-0003-2276-6640
Year of publication: 2023
Source: Show
Pages: 181-193
DOI Address: https://doi.org/10.15804/ppk.2023.03.13
PDF: ppk/73/ppk7313.pdf

Subjective Scope of the Right to Defense in Criminal Proceedings in the Light of Art. 42 sec. 2 of the Constitution of the Republic of Poland

The article focuses on the comparison of the personal scope of the right to defence specified in Art. 42 sec. 2 of the Constitution of the Republic of Poland and regulated in article 6 of the Code of Criminal Procedure. The jurisprudence of the Constitutional Tribunal indicates the need to extend the right of defence to any person against whom the authority undertakes prosecution, while article 6 CCP grants this right only to the suspect and the accused. The article draws attention to the situation of a suspected person who has not yet been charged. Doubts as to the scope of the right to defence relate to the statements made by this person both during the hearing (of the detained person) and during the interrogation as a witness. An analysis of all rights and obligations of this person from the constitutional point of view exceeds the scope of this study.

Message to:

 

 

© 2017 Adam Marszałek Publishing House. All rights reserved.

Projekt i wykonanie Pollyart