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THE ROLE OF PUBLIC PROSECUTOR'S OFFICE AND A PROSECUTOR IN INTERNATIONAL COOPERATION IN CRIMINAL MATTERS

100%

Plachta M.

Studia Prawnicze

2006

nr 4(170)

5-36

The article discusses the overall activities of the Polish Public Prosecutor in the area of international cooperation in criminal matters. The analysis is carried on three levels: functional, competence and organizational. The starting point for the author is an attempt to explain the relationship between two terms: 'mutual legal assistance' and 'cooperation'. The author has proposed the following classification of the international cooperation in criminal matters: I - legal assistance: (1) extradition (including its modern forms, such as 'surrender' to the International Criminal Court and the European Arrest Warrant within the European Union) and (2) mutual judicial assistance sensu stricto; II - other forms (modalities) of cooperation: (1) transfer of proceedings and (2) enforcement of foreign criminal judgments: (a) transfer of offenders (sentenced persons), (b) transfer of supervision over offenders conditionally sentenced or conditionally released, (c) enforcement of other sanctions and penal measures, (d) seizure and confiscation of proceeds from an offence; III - joint investigation teams; IV - cooperation between police and similar authorities (e.g. customs). The main legal basis of the Public Prosecutor's activities in this field are provisions of Chapter XIII of the Polish Code of Criminal Proceedings. The Code has adopted the following two fundamental principles: superiority of international treaties and sufficiency of the Code's provisions as a basis for cooperation. However, if in a concrete case, the cooperation is grounded on the domestic law mutuality is required. The first principle is expressed in Article 615 paragraph l which stipulates that provisions of this chapter are not applied if an international treaty ratified by Poland or a legal act establishing an international criminal tribunal provides otherwise. The term 'international treaty' should be given a broad interpretation: it covers both multilateral conventions and bilateral agreements.

FUTURE MODEL OF PREPARATORY PROCEEDINGS

80%

Stefanski R. A.

Ius Novum

2009

nr 1

20-34

Inefficiency of the present model of preparatory proceedings, which results in the significant lengthening of the whole penal procedure and causes inability to finish it within reasonable time limits, creates a necessity to develop a new model. It is suggested that in the model to be developed preparatory proceedings should not play the present role and clarify all the circumstances of an event and obtain all the evidence for a successful prosecution. Evidence and its contents should be only amassed during preparatory proceedings and they should be clarified during a trial. At this stage of a penal procedure, it should be only established whether there are substantial grounds to draw up charges against somebody and protect evidence that cannot be repeated at a trial. It is to help a public prosecutor take a decision whether to bring an accusation or drop the charges and refrain from prosecution. Only non-repeatable actions should be conducted by a judge responsible for the proceedings. A formation of such a model of these proceedings requires resignation from the rule of material truth and restructuring a trial to make it more contradictory that may be achieved by, among other things, depriving a court of an ability to perform acts of taking evidence in the proceedings as its official duty. Prosecutors as those who act mainly as public prosecutors should be located close to courts. Implementation of such a model would undoubtedly speed the performance of penal procedure and thanks to that we would put an end to one of the maladies of our legal system, lengthy duration of proceedings.

PUBLIC PROSECUTOR'S COMPETENCE IN CRIMINAL CASES

80%

Stafanski R. A.

Ius Novum

2009

nr 2

45-63

The subject matter of the article is the public prosecutor's competence to conduct preparatory proceedings and to take part in the jurisdiction proceedings. The author criticizes the lack of a statutory definition of the prosecutor's competence to conduct or supervise preparatory proceedings and he calls for its definition in the criminal proceedings code in a similar way to court's competence. He proposes that prosecutors of the district public prosecutor's office could conduct and supervise investigations into crimes within the competence of a district court, and prosecutors of the departments for organized crime could conduct and supervise investigations into terrorism, organized crime and bribery. Territorial competence would depend on the location of the scene of crime. It would be necessary to exempt the competence of the Public Prosecutor General or the Country Prosecutor to decide on public prosecutor's competence to conduct preparatory proceedings. In case of public prosecutor's competence to take part in judiciary proceedings, there should be a rule that a public prosecutor taking part in judiciary proceedings should be from the public prosecutor's office whose prosecutor conducted preparatory proceeding or from a superior unit