The role of the Indonesian Attorney General’s Office as dominus litis in the ...Gunung Agung
PERAN KEJAKSAAN RI SEBAGAI DOMINUS LITIS DALAM
KEKISRUHAN KPK VS POLRI
http://mappifhui.org/2015/10/22/peran-kejaksaan-ri-sebagai-dominus-litis-dalam-kekisruhan-kpk-vs-polri/
This paper is about fact-finding procedures in Chinese criminal trials. It traces general rules setting out fact-finding procedures, and describes the roles that various legal actors that should play to ensure that they are followed properly. It will further examine how Chinese law balances the duty to determine the truth and the principle of protecting individual rights from potential infringements in criminal cases. Based on the conflicts between truth-seeking and human rights protection, this paper will conclude by discussing limitations in Chinese fact-finding procedures and will suggest how they can be mended.
The role of the Indonesian Attorney General’s Office as dominus litis in the ...Gunung Agung
PERAN KEJAKSAAN RI SEBAGAI DOMINUS LITIS DALAM
KEKISRUHAN KPK VS POLRI
http://mappifhui.org/2015/10/22/peran-kejaksaan-ri-sebagai-dominus-litis-dalam-kekisruhan-kpk-vs-polri/
This paper is about fact-finding procedures in Chinese criminal trials. It traces general rules setting out fact-finding procedures, and describes the roles that various legal actors that should play to ensure that they are followed properly. It will further examine how Chinese law balances the duty to determine the truth and the principle of protecting individual rights from potential infringements in criminal cases. Based on the conflicts between truth-seeking and human rights protection, this paper will conclude by discussing limitations in Chinese fact-finding procedures and will suggest how they can be mended.
A small introduction on the C++14 improved static introspection of the IOD library and the C++14 web framework Silicon.
https://github.com/matt-42/silicon
https://github.com/matt-42/iod
Mistcooling Inc manufacturers the best misting pumps. Our mid and high pressure misting pumps come with high quality components that are Made In USA. Custom modifications and various electronic controls are available for mist pumps on request.
Business development officer performance appraisalcookcaitlin92
Business development officer job description,Business development officer goals & objectives,Business development officer KPIs & KRAs,Business development officer self appraisal
Abstract
The denial of bail for an indefinite period impinges on fundament rights. The prisoner must not be punished before conviction. Granting of bail always rings for the conflicting interest between liberty of an individual and interest of the society. The Principle underlying release on bail is that an accused person is presumed in law to be innocent until his guild is proved beyond reasonable doubt and as a presumably innocent person; he is entitled to freedom and every opportunity to look after his case, provided his attendance is secured by proper security.
The other object of the release of a person on bail is to secure the presence of the person charged with crime at his trial or at any other time when his presence may lawfully be required and to force him to submit to the jurisdiction and punishment imposed by the Court.
The normal rule is bail and not jail. Again at various occasions, Hon’ble Supreme Court and several High Courts reiterated that ‘the grant of bail is a rule and refusal to bail is an exception.
The significance and sweep of Article 21 make the deprivation of liberty a matter of concern and permissible only when the law authorizing it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19.
Grant of bail by the Court is a discretionary order. However, this discretion shall be exercised in judicial manner and not as a matter of course. The order denying the bail shall provide cogent reasons of rejection. The nature of the offence is one of the basic considerations for the grant of bail - more heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.
Comparative Criminal Justice
5th Edition
Chapter 6: Criminal Procedure
Adrianna Hughes
University of Scranton
Learning Objectives: Chapter 6Explore the major differences in criminal procedure among the various families of law Analyze the differences between adversarial systems and inquisitorial systemsExplain the different types of constitutional reviewDescribe how convergence has become the norms in criminal procedure in the legal systems around the worldIdentify the general forms of supranational courts that deal with issues of human rights and international crime and criminals
Comparative Criminal Justice Systems
5th Edition
The Adversarial System
Comparative Criminal Justice Systems
5th Edition
Adversarial- set of legal procedures used in Common Law countries to determine the truth during adjudication whereby the prosecution and defense counsel compete against each other The judge acts as an umpireRights given to accusedright to an attorneyright to remain silentright to be free of unwarranted arrests and searches right to compel witnesses
The Adversarial SystemCriticismsManipulation by criminals of systemCombat effect- emphasis on “winning” the legal battle instead of justice being doneWealth effect- advantage held by those who can afford to hire a skilled attorney and pay for investigatorsPlea bargaining- about 90% of cases in U.S. are settled by plea bargainingCountries that use adversarial systemEngland and United States
Comparative Criminal Justice Systems
5th Edition
The Inquisitorial System
Comparative Criminal Justice Systems
5th Edition
Inquisitorial - main model of criminal procedure and has been around for 700 years.Most commonly associated with Civil Law countriesThe trial in the inquisitorial system is less like a competition and more like a continuing investigationCriticismsMain issues arise with extreme power of the judge at both the investigative and trial levelsDelays in system because of extensive pretrial investigationsJudge must balance impartialityModel countries that use Inquisitorial systemFrance, Germany, China, Saudi Arabia, Japan
Popular System(Mixed)It is called popular, because it is a system that calls for the popular participation of citizens who are not necessarily criminal justice professionals.It is the oldest of the procedural systems of justice, practiced long before the formation of modern societies, and it probably has its roots in the magical as well as group resolutions of community disputes.In most countries, it has evolved into a fully acceptable system that has been integrated into the adversarial and inquisitorial systems. Examples: Anglo American- Jury trial system
Comparative Criminal Justice Systems
5th Edition
Popular System(Mixed)Today, the popular system is a variation of criminal procedure that is used primarily in Civil Law countries but is also found in Socialist and Common Law countries.It is a method of ad.
Although criminal procedure follows many of the patterns of civil procedure, there are major differences between them, largely because of the special provisions of the U.S. Constitution (which are usually echoed in state constitutions).
To learn more about Criminal Procedure purchase the text Foundations of Law: Cases, Commentary and Ethics, 6th Edition from Cengage Learning. Paralegal Power Breaks are short information packed sessions that provide useful career information to paralegals at all career levels.
Between the time that the police make an arrestand a case is event.docxjasoninnes20
Between the time that the police make an arrestand a case is eventually resolved at sentencing, traditional prosecutions involve several steps withpsychological implications. One feature of traditionalprosecutions with obvious psychological overtones isa trial. The grand finale in our adversary system ofjustice—the trial—is a public battle waged by twocombatants (prosecution versus defense in a criminaltrial, plaintiff versus defendant in a civil trial), eachfighting for a favorable outcome. Trials can befiercely contested; prosecutors desire convictions,criminal defendants seek their freedom throughacquittals, civil plaintiffs want compensation forwrongs they have suffered, and civil defendants hopeto be absolved of wrongdoing and not required to paydamages. Psychological issues abound.Although the trial may be the most visible anddramatic ritual in our system, many other factors playlarger—often decisive—roles in determining caseoutcomes. For example, in the weeks and months following arrest, many criminal cases are simplydismissed for lack of evidence or other difficulties thatprosecutors perceive in the case. Of some 49,000defendants charged with a felony from 1990 to 2002in the 75 most populous counties in the United States,24% had their cases dismissed prior to trial (Cohen &Reaves, 2006).For the vast majority of people charged withcrimes and not fortunate enough to have the chargesdropped,plea bargains, not trials, resolve their cases.Plea bargaining, described in more detail later in thechapter, is a process in which a defendant agrees toplead guilty in exchange for some concession fromthe prosecutor. Such concessions typically involve areduction in the type of charge, the number ofcharges, or the recommended sentence. By pleadingguilty, defendants give up their right to a trial,allowing attorneys and judges to move on to othercases. The vast majority of civil cases are also resolvedwithout a formal trial in a process termedsettlementnegotiation, described in more detail in this chapter.If most cases are settled without a trial, why is oursociety (including psychologists who work in the legalarena) so fascinated by trials and trial procedures?Without a doubt, there are theatrical aspects to manytrials, especially those featured in news media, films,and novels. Trials grab our attention because theyvividly portray the raw emotions of sad, distraught,and angry people. Interest in trials is also related totheir very public nature; most trials are conducted inopen court for all to see. Some are televised or evenavailable for online viewing.In contrast, negotiations about plea bargains andsettlements are largely hidden from public view.Prosecutors offer concessions to defense attorneysover the phone or in courthouse hallways. Defenseattorneys convey these offers to their clients in officesor jail cells. Settlement negotiations in civil cases arealso conducted in private. In fact, the eventualsettlements in civil ca ...
Between the time that the police make an arrestand a case is event.docxrichardnorman90310
Between the time that the police make an arrestand a case is eventually resolved at sentencing, traditional prosecutions involve several steps withpsychological implications. One feature of traditionalprosecutions with obvious psychological overtones isa trial. The grand finale in our adversary system ofjustice—the trial—is a public battle waged by twocombatants (prosecution versus defense in a criminaltrial, plaintiff versus defendant in a civil trial), eachfighting for a favorable outcome. Trials can befiercely contested; prosecutors desire convictions,criminal defendants seek their freedom throughacquittals, civil plaintiffs want compensation forwrongs they have suffered, and civil defendants hopeto be absolved of wrongdoing and not required to paydamages. Psychological issues abound.Although the trial may be the most visible anddramatic ritual in our system, many other factors playlarger—often decisive—roles in determining caseoutcomes. For example, in the weeks and months following arrest, many criminal cases are simplydismissed for lack of evidence or other difficulties thatprosecutors perceive in the case. Of some 49,000defendants charged with a felony from 1990 to 2002in the 75 most populous counties in the United States,24% had their cases dismissed prior to trial (Cohen &Reaves, 2006).For the vast majority of people charged withcrimes and not fortunate enough to have the chargesdropped,plea bargains, not trials, resolve their cases.Plea bargaining, described in more detail later in thechapter, is a process in which a defendant agrees toplead guilty in exchange for some concession fromthe prosecutor. Such concessions typically involve areduction in the type of charge, the number ofcharges, or the recommended sentence. By pleadingguilty, defendants give up their right to a trial,allowing attorneys and judges to move on to othercases. The vast majority of civil cases are also resolvedwithout a formal trial in a process termedsettlementnegotiation, described in more detail in this chapter.If most cases are settled without a trial, why is oursociety (including psychologists who work in the legalarena) so fascinated by trials and trial procedures?Without a doubt, there are theatrical aspects to manytrials, especially those featured in news media, films,and novels. Trials grab our attention because theyvividly portray the raw emotions of sad, distraught,and angry people. Interest in trials is also related totheir very public nature; most trials are conducted inopen court for all to see. Some are televised or evenavailable for online viewing.In contrast, negotiations about plea bargains andsettlements are largely hidden from public view.Prosecutors offer concessions to defense attorneysover the phone or in courthouse hallways. Defenseattorneys convey these offers to their clients in officesor jail cells. Settlement negotiations in civil cases arealso conducted in private. In fact, the eventualsettlements in civil ca.
Chapter 13 Interrogation, Electronic Surveillance, and Other .docxbartholomeocoombs
Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices 471
# 151053 Cust: Cengage Au: Hall Pg. No. 471
Title: Criminal Law and Procedure Server: __________________
K
Short / Normal
DESIGN SERVICES OF
S4-CARLISLE
Publishing Services
confessions, and admissions to prove guilt is controversial. The United States Supreme
Court has recognized that admissions are highly suspect when relied upon alone to
obtain a confession. The Court stated, in Escobedo v. Illinois (1964),4 that a “system
of criminal law enforcement which comes to depend on the ‘confession’ will, in the
long run, be less reliable and more subject to abuses than a system which depends on
extrinsic evidence independently” obtained through other law enforcement practices.
At common law, confessions and admissions could be used freely, as long as they
were made voluntarily. The early basis for excluding involuntary confessions was the
Due Process Clauses of the Fifth and Fourteenth Amendments.5 Eventually, federal
defendants could seek to have confessions suppressed if they were not taken before a mag-
istrate promptly after arrest. This was known as the McNabb-Mallory rule, named for
two Supreme Court cases.6 The rule was not constitutionally based. Instead, the Court
announced the rule in its supervisory role over the nation’s federal courts. While the rule
of quick presentment of arrestees to judges had existed at common law and had been
codified by Congress, there was no remedy for violations. Accordingly, the Court held
that confessions that occurred after unreasonable delays should be excluded. Congress re-
acted to McNabb-Mallory and Miranda by enacting a statute that permits the admission
of a confession so long as it was voluntarily given. Another section provides that regardless
of any delay in presenting a suspect to a judge, a confession shall be admitted if obtained
within 6 hours of arrest. In Corley v. United States, 556 U.S.—(2009) it was held that if
there is a delay in presenting a suspect to a judge longer than 6 hours, the old McNabb-
Mallory exclusionary rule applies if a delay is found to be unreasonable.
Today, interrogations, confessions, and admissions are governed by these rules, as
well as two broader rights: the Fifth Amendment right to be free from self-incrimina-
tion and the Sixth Amendment right to counsel.
Miranda
By virtue of popular television and films, the Supreme Court case Miranda v. Arizona,
or at least the “Miranda” warnings that are a product of that case, is one of the best
known judicial decisions of our time.
[The Supreme Court consolidated appeals from
several individuals who had been convicted at trials
where their confessions were entered into evidence.
Ernesto Miranda, for whom the case is named,
was arrested for rape and kidnapping. He was
interrogated at a police station. He was not advised
of his constitutional rights, he never requested to
see .
WINDING UP of COMPANY, Modes of DissolutionKHURRAMWALI
Winding up, also known as liquidation, refers to the legal and financial process of dissolving a company. It involves ceasing operations, selling assets, settling debts, and ultimately removing the company from the official business registry.
Here's a breakdown of the key aspects of winding up:
Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
Winding up is a complex legal and financial process that can have significant consequences for all parties involved. It's important to seek professional legal and financial advice when considering winding up a company.
A "File Trademark" is a legal term referring to the registration of a unique symbol, logo, or name used to identify and distinguish products or services. This process provides legal protection, granting exclusive rights to the trademark owner, and helps prevent unauthorized use by competitors.
Visit Now: https://www.tumblr.com/trademark-quick/751620857551634432/ensure-legal-protection-file-your-trademark-with?source=share
In 2020, the Ministry of Home Affairs established a committee led by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi. This committee was tasked with reviewing the three codes of criminal law. The primary objective of the committee was to propose comprehensive reforms to the country’s criminal laws in a manner that is both principled and effective.
The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
How to Obtain Permanent Residency in the NetherlandsBridgeWest.eu
You can rely on our assistance if you are ready to apply for permanent residency. Find out more at: https://immigration-netherlands.com/obtain-a-permanent-residence-permit-in-the-netherlands/.
Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
ALL EYES ON RAFAH BUT WHY Explain more.pdf46adnanshahzad
All eyes on Rafah: But why?. The Rafah border crossing, a crucial point between Egypt and the Gaza Strip, often finds itself at the center of global attention. As we explore the significance of Rafah, we’ll uncover why all eyes are on Rafah and the complexities surrounding this pivotal region.
INTRODUCTION
What makes Rafah so significant that it captures global attention? The phrase ‘All eyes are on Rafah’ resonates not just with those in the region but with people worldwide who recognize its strategic, humanitarian, and political importance. In this guide, we will delve into the factors that make Rafah a focal point for international interest, examining its historical context, humanitarian challenges, and political dimensions.
1. THE NEW ROMANIAN
CRIMINAL PROCEDURE
CODE
IN THE CURRENT EUROPEAN LEGAL
CONTEXT
AUTHOR: Mihai Mareș
DATE: April 25th
, 2015
2. KEY AND SENSITIVE ISSUES
I. The new configuration of the defense right
II. The conditions of the preventive arrest
III. The right to a fair trial of third persons - other than
the suspect or the defendant - whose assets have
been seized
4. THE NEW CONFIGURATION OF THE DEFENSE RIGHT
• The defence right is a fundamental principle of the Romanian
criminal trial, complying with the international provisions of the right
to a fair trial.
• The defense right keeps the basic configuration of the previous
Criminal Procedure Code, being structured on three levels, namely:
the self defense right of the main subjects and of the other parties,
within in the criminal trial;
the right of the above persons to be represented by a lawyer;
the judicial bodies’ obligation to ensure the full and effective exercise of
the defence right.
5. THE NEW CONFIGURATION OF THE DEFENSE RIGHT
• The defense right is approached by the Code from a common law
perspective rather than from a classical viewpoint of the legal
assistance and representation.
• The lawyer receives individuality and his own rights.
• The lawyer is granted with the rights to be exercised in his own
name, as per art. 92 Criminal Procedure Code, in addition to the
right to file a complaint against acts and measures of the
prosecutor, as pert art. 95 para. (1) Criminal Procedure Code.
6. THE NEW CONFIGURATION OF THE DEFENSE RIGHT
• This new approach is undoubtedly a positive one, outlining the role
of the lawyer in criminal proceedings, thus the lawyer’s direct and
personal right to promote a complaint against the acts of the
prosecution is recognized.
• The recognition of the said right is regulated in consideration of the
lawyer’s capacity as a subject in criminal proceedings, competent
from a legal point of view.
• Another novelty element is the imperative of good faith in the
exercise of the defense right.
7. THE NEW CONFIGURATION OF THE DEFENSE RIGHT
• The law most likely takes into consideration the reality of judicial
practice, where the requests for adjournment are widely used
unnecessarily, compromising both the interest of the parties which
persist in an uncertain situation and the interest of justice in general.
• For this reason, we believe that the rules of good faith in the
exercise of the defence right were necessary, in the current legal
environment.
8. THE NEW CONFIGURATION OF THE DEFENSE RIGHT
• Another aspect of the defense right that generates controversy
among practitioners is represented by the prosecutor’s possibility to
restrict access to the case file for an undetermined period as long as
the criminal action hasn’t been set in motion.
• Therefore, the suspect may be found in the situation where he
cannot fully and effectively exercise his defense right.
• The restriction of the access to the case file by the prosecutor must
be justified by the unfolding of the criminal trial.
• The timing and term for which the interdiction operates must not
interfere with the exercise of the defense right.
9. THE NEW CONFIGURATION OF THE DEFENSE RIGHT
• Another issue in Romania is that as per the new Code, the witness
is not seen as the holder of the defense right implemented by the
dispositions foresaw in article 10, and the judicial bodies do not
accept the lawyer’s assistance of the witness.
• This matter is important in the situations when the person
heard as a witness becomes the suspect, and then the
defendant in the same case.
• The situation was encountered both in Romania and in other E.U.
States and is an illegal strategy often used by the prosecution,
either because of insufficient evidences or due to convenience,
forcing the witness to testify and then, based on that, to prosecute
him.
11. THE CONDITIONS OF THE PREVENTIVE ARREST
• The preventive arrest measure experienced substantial changes at
a conceptual level in the new Code.
• It is probably the most debated institution of criminal procedure both
because of (i) the frequency it is used in legal practice and (ii) the
extensive media coverage, especially in big corruption cases in
Romania.
• The provisions of the new Code that generate the most intense
debates are (i) the ones regarding the necessity of the existence of
evidence establishing reasonable suspicion that the defendant
has committed the offense he is investigated for and (ii) the ones
regarding the need to remove a state of danger against public
order.
12. THE CONDITIONS OF THE PREVENTIVE ARREST
• Paragraph 2 of article 223 of the Criminal Procedure Code
provides that:
"The preventive arrest measure of the defendant may also be ordered
if reasonable suspicion that the defendant committed […] a crime for
which the law provides imprisonment for 5 years or more and,
based on assessing the severity of the offense, the manner and
circumstances of committing the offence, the defendant’s entourage
and background, criminal history and other circumstances relating to
his person, it is established that the defendant’s deprivation of
freedom is necessary in order to remove a state of danger
against public order."
13. THE CONDITIONS OF THE PREVENTIVE ARREST
• Therefore, it is relevant to establish if the "reasonable suspicion"
could ground an abuse in ordering the preventive arrest measure,
setting it aside from its “reasonable” objective.
• The European Court of Human Rights ruled that “the existence of
reasonable suspicion implies the existence of indications or facts
likely to convince a neutral and objective observer that the person
has committed a crime”.
• The issue is far from being resolved if we take into consideration the
fact that during the procedure for preventive arrest, the evidence is
not analyzed (by a judge) in terms of the merits of relevance to the
case.
14. THE CONDITIONS OF THE PREVENTIVE ARREST
• Hypothetically, we can find ourselves in a situation of a highly
publicized case of corruption, when the preventive arrest is ordered
for one of the defendants, given the fact that the only incriminating
evidence is represented by statements given by the other co-
defendants.
• Provided the new Code no longer requires for the judicial bodies to
corroborate the defendants’ statements with other evidence in order
to create the appearance of the impartiality of the evidence, the
judge hearing the preventive arrest proposal may order the most
severe measure of deprivation of freedom, in full compliance with
the law.
15. THE CONDITIONS OF THE PREVENTIVE ARREST
• Another important issue is the impossibility to challenge the
legality of the evidence during prosecution, in front of the rights and
liberties judge competent to rule on the preventive measure.
• The essential flaw of the "reasonable suspicion" concept is the fact
that it offers too much discretion to the judge called to decide on
the preventive arrest measure, especially in the current socio-
political context of Romania, where media pressure and thus the
pressure of the public on the justice system is overwhelming.
16. THE CONDITIONS OF THE PREVENTIVE ARREST
• Most of the rights and liberties judges reason their decisions that establish
preventive arrest, mostly only by the necessity of removing a danger against
the public order.
• In consequence, it is essential for us to know what was the intention of the
law when the danger against the public order condition was introduced
among the necessary conditions for preventive arrest.
• Starting from the provisions of the final thesis of para. (2) of art. 223 of the
Criminal Procedure Code we can draw conclusions that it is necessary to
keep in sight a potential danger for the public order.
• Besides the personal circumstances of the defendant, there is also a
reference to the way the defendant committed the crime. Regarding this
aspect, it is mandatory that the way the crime was committed must result
objectively from evidence, not from the prosecutor's assumptions.
17. THE CONDITIONS OF THE PREVENTIVE ARREST
• There is a major problem in the course of the criminal investigation,
because the latter cannot be challenged.
• In the vast majority of investigations regarding corruption violations
that involve politicians or other public figures, the courts ordered
preventive arrest reasoning that unrestricting their freedom would
eventually lead to public outrage.
• Nonetheless, we believe that such a motivation does not have solid
grounds, mainly because (i) the attitude of the citizens is generated
exclusively by the way the mass-media presents the case, (ii) the
violent reaction of the public still cannot be assumed, when the right
to freedom represents a fundamental human right.
18. THE CONDITIONS OF THE PREVENTIVE ARREST
• In Romania, the judges approach the imperative's proportionality of
the preventive measure in relation to the gravity of the deed rather
superficially, provided they order preventive arrest in most of the
cases, even tough there are alternatives such as house arrest,
judicial control or judicial review with bailment, measures that do not
deprive one of his liberty.
19. THE RIGHT TO A FAIRTHE RIGHT TO A FAIR
TRIAL OF THIRDTRIAL OF THIRD
PERSONS - OTHER THANPERSONS - OTHER THAN
THE SUSPECT OR THETHE SUSPECT OR THE
DEFENDANT - WHOSEDEFENDANT - WHOSE
ASSETS HAVE BEENASSETS HAVE BEEN
SEIZEDSEIZED
20. THE RIGHT TO A FAIR TRIAL OF THIRD PERSONS - OTHER THAN THE
SUSPECT OR THE DEFENDANT - WHOSE ASSETS HAVE BEEN SEIZED
• The main issues related to this topic are:
the obligation of the court to summon the people whose assets
are subject to seizure so that they may exercise their defense
right;
the obligation to respect double degree of jurisdiction;
the lack of complete legal provisions regarding the protection
measures that must be guaranteed to the persons in the
moment the court orders the seizure of their assets.
• Article 366 para. (3) of the Criminal Procedure Code provides the
right of these persons to be assisted and represented by a lawyer.
21. THE RIGHT TO A FAIR TRIAL OF THIRD PERSONS - OTHER THAN THE
SUSPECT OR THE DEFENDANT - WHOSE ASSETS HAVE BEEN SEIZED
• The Criminal Procedure Code does not provide the obligation of the
court to summon these persons, meaning that it is up to the judge’s
option to decide whether or not to summon third persons.
• The article 353 para. (1) of the Criminal Procedure Code states „the
court may summon other subjects of the criminal trial when their
presence is necessary for solving the case”.
• The problem of warranting the double degree of jurisdiction is tightly
connected to that of the legislative inconsistency regarding the
guarantee of a fair trial by the Romanian state for the persons
whose assets are to be seized.
22. THE RIGHT TO A FAIR TRIAL OF THIRD PERSONS - OTHER THAN THE
SUSPECT OR THE DEFENDANT - WHOSE ASSETS HAVE BEEN SEIZED
• In Romania exists the possibility for a judge to order the extended
seizure concerning the assets of another person than the suspect or
the defendant in a criminal trial. In the situation the court order such
measure, the assets are seized.
• In practice we refer to the situation when the seizure was taken in
the course of a criminal trial regarding assets acquired before the
establishment of the Law nr. 63/2012 concerning extended seizure.
The Romanian Constitutional Court stated in 2015, that the
extended seizure shall apply only over assets acquired before the
enforcement of Law nr. 63/2012.
23. THE RIGHT TO A FAIR TRIAL OF THIRD PERSONS - OTHER THAN THE
SUSPECT OR THE DEFENDANT - WHOSE ASSETS HAVE BEEN SEIZED
• We did encounter situations when the Romanian courts ordered the
seizure of assets acquired by third parties before the enforcement of
Law no. 63/2012, while the appeal against this order was rejected
definitively before the publishing in the Official Gazette of the above
mentioned decision of the Romanian Constitutional Court.
• According to the new Code, the possibility to review a definitive
decision in a criminal trial exist just for the case when the trial was
finalized on merits of the case.
24. THE RIGHT TO A FAIR TRIAL OF THIRD PERSONS - OTHER THAN THE
SUSPECT OR THE DEFENDANT - WHOSE ASSETS HAVE BEEN SEIZED
• From the moment the seizure was taken during the course of the
criminal investigation, the person whose assets make the object of
seizure is in the situation where he has to wait months or years until
the definitive decision is given.
• Since the person we are referring to does not even have the quality
of being a suspect or a defendant in cause, this matter is even more
severe.
• Due to these reasons, we consider that the right of property and
also the right to an equitable trial is severely violated.
25. Thank you
55 - 55 bis Carol I Blvd.
2nd District, Bucharest 020915, Romania
T: (+4) 031 43 78 324
F: (+4) 031 43 78 327
► www.mares.ro