Principles of Criminal Procedure - Polish Perspective

Timetable

Module aim (aims)

This course is designed to acquaint foreign students with the information on the Polish system of principles and rules of criminal procedure. Emphasis is placed on analysing the legal provisions as well as their practical use. This course bases on the theoretical conceptions of rules and principles.

Pre-requisites in terms of knowledge, skills and social competences (where relevant)

The basic knowledge about jurisprudential notion of legal principles.

Syllabus

1) Distinction between Rules and Principles form the theoretical point of view2) Principles of criminal procedure as a legal normsConsiderations related to the principles of penal procedure based primarily on the findings of the Poznań-Szczecin school of jurisprudence, which distinguishes the descriptive and direct approach of the rule of law, clearly competitive in terms of the principles and rules according to Robert Alexy. Legal principles were defined against the background of normative structures. The criteria for distinguishing a norm-norm have been accepted as the basis for the discussion. Rules only in concreto).3) Verification of process rules from hypotheses to discuss:• The “descriptive” description of procedural rules does not coincide directly with the directive,At the level of the interpretation process,• The individual rules of the criminal process are not always expressed in a single standard of conduct, sometimes combining several standards with different application and different scope of regulation,• When using the rules of the reverse vector rules, it is necessary to use the instrument derived from R. Alexy's concept, weighing procedures,• As a rule-of-law, in order to define the procedural principle, it is necessary to indicate in each case its scope (the addressee of the standard, the circumstances in which it is updated, also the temporal aspect) and the scope of regulation (behavior / prohibited behavior).• Sometimes, on the basis of norm-norms, when the principle assumes the form of a norm of competence, the rules of construction which are considered under the predecessor of this norm are indicative of the authorization to perform a specific conventional operation.4) Analysis of the selected principles of criminal proceedings.a) principle of legalityb) principle of adversarialityRegarding relationship between these both principlesSketching Theoretically legal aspects of the relationship between the principles of legality and adversariality also exemplify the descriptive and direct representations of these principles. The relations between the principle of legality and the principle of adversariality were examined in terms of their directives (as rules of conduct), they differ in pre-trial and jurisdictional terms. Using logic analysis instruments, it was found that their relationship at the jurisdictional stage was most relevant to the framework of cross-referencing the scope of those principles, which could be defined by objects denounced by the principle of legality, which are not manifestations of the principle of adversarial and objects denounced by the principle of adversarial These are not denoted by the principle of legality, and are common objects. These relationships are closely related to the context of the functioning of other process rules, such as the principle of truth. This study indicated that the distinction between descriptive and directive interpretation of the principle of legalism allows us to comment on a doctrinal dispute concerning the subjective scope of this principle, and more precisely, the addressee of the order specified in Art. The 10 CCP, unambiguously stated that the addressees of this principle are the law enforcement and public prosecutor, not the court. The role of the framework in the analyzed case is Art. 10 § 1 of the Code of Criminal Procedure, not art. It was concluded that only on the basis of a descriptive description one can recognize that the addressee of the principle of legalism (then derived from the so-called material legalism) are all bodies of the process. In the process of interpretation of the legal text, the descriptive description of the principles of law is, however, only auxiliary, and the principle in descriptive terms is not a "carrier" of duty.c) Principle of material truth and directive of correct punishmentUnder art. 2 par. 2 CCP the basis for any kind of determination shall be the established true fact situation. An analysis in the perspective of the function of criminal law is a recurring character on the canvas of reflections resulting from the reading of monographs in which the principle of material truth was first and foremost addressed to consensual procedural institutions, highlighting the close link between the principle of truth and the directive of correct punishment (Article 2 § 1 point 1 of the Code of Criminal Procedure according to: the perpetrator of a criminal offence shall be detected and called to penal responsibility, and that no innocent person shall be so called, ). The normative contexts of the concept of truth (norm-norm) were considered. It was considered that the correct solution adopted by the legislator of the directive would determine the binding formula of the truth principle by specifying an epistemological variant of cognition in criminal proceedings.d) Principle of proceeding ex officioThe agencies conducting the trial shall conduct proceedings and undertakeactions unless the law makes them provisional, upon a motion from a specified person,institution, or agency, or upon permission of an authority.e) Right to defenceThe accused shall have the right to conduct his own defence or to avail himselfof the aid of defence counsel; the accused should be advised of this right.f) Presumption of innocence.The accused shall be presumed innocent until his guilt has been provenunder the provisions of this Code. Unresolvable doubts shall not be resolved to the prejudice of the accused.g) Principles connected with the “formal aspect” of judicial hearingh) Principles connected with the law of evidencesi) Principle of loyalty. If the agency conducting the proceedings is under obligation to advise the parties to the proceedings of their rights and duties, and fails to do so or misinstructs them, this shall not result in any adverse consequences during the course of the trial to the participant of the proceedings or other persons concerned.

Reading list

A-learning course.Selected papers indicated during the course.