A próposito de la iustae causae del divorcio: protección de la mujer frente al maltrato (About the iustae causae of Divorce: Protecting the Woman Against Maltreatment)

Yeray Del Pino Álamo González

 

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Law and Forensic Science, Volume 15 (2018/1), pages 81-92.

Submitted: June 21, 2018.

The author declares there is no conflict of interest.

Abstract: The title deduces a problem of current news, violence against women and the possibility that women had to dissolve the marriage bond, as a way to avoid abuse. In this regard, we thought it appropriate to present a series of reflections on domestic violence. In this sense, it should be noted that Rome was not far from this social problem of married women who, given their social categorization, based on honesty or pity, as good midwives, suffered violence in a submissive attitude against the husband, in a system in which invisibility and silence predominate in the face of certain types of aggression. Well, in this way, in the present lines, we will refer to fragments such as Papiniano, 15 resp. D.48.5.40. (39). pr. and also sources such as P. Oxyrinco VI 903, who analyze a problem that is so close in our current society and that resulted in the need to implant in the past the option of sending the husband the repudiation, thus dissolving the marriage, as a guarantee in those cases where the woman could suffer a humiliation under the mistreatment.

Keywords: Law, domestic aggression, puditicia, repudium, iustae causae

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Apoderamiento preventivo y autodelación de la tutela en la Ley 41/2003, de 18 de noviembre, de protección patrimonial de la personas con discapacidad (Preventive empowerment and self-disclosure of the guardianship in the Law 41/2003, of November 18, of patrimonial protection of the persons with disability)

Mª del Carmen Colmenar Mallén

 

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Law and Forensic Science, Volume 15 (2018/1), pages 69-80.

Submitted: June 8, 2018.

The author declares there is no conflict of interest.

Abstract: The present work focuses on the regulation of preventive seizure and self-protection or self-demarcation of the guardianship, figures both introduced in our common Civil Law by means of Law 41/2003, of November 18, on patrimonial protection of persons with disabilities. Mention has been made of the regulation of these figures in some of our statutory rights, such as Catalan, precedent of our current legislation, Galician and Aragonese. The differences between both figures have been analyzed, as well as the different modalities, formalization requirements of their constitution, persons entitled to grant it, etc.

Keywords: Law, self-defense, preventive empowerment, guardianship, disability

Continue reading “Apoderamiento preventivo y autodelación de la tutela en la Ley 41/2003, de 18 de noviembre, de protección patrimonial de la personas con discapacidad (Preventive empowerment and self-disclosure of the guardianship in the Law 41/2003, of November 18, of patrimonial protection of the persons with disability)”

Searching for a Genetic Relationship Between the Mitochondrial DNA and Y-chromosomal Polymorphisms

Paulina Wolańska-Nowak
Agnieszka Parys-Proszek
Witold Pepiński
Ireneusz Sołtyszewski

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Law and Forensic Science, Volume 15 (2018/1), pages 60-68.

Submitted: June 1, 2018.

The authors declare there is no conflict of interest.


Abstract: The present paper addresses the question of linkage disequilibrium (LD) between Y-chromosomal and mtDNA HVR1 distributions based on a population sample of southern Poland. Genetic independence of both polymorphisms would validate the use of the product rule in the assessment of matching probability, as is accepted for autosomal STRs.For this purpose, a total of 330 typed unrelated male samples were assigned to 17 Y-haplogroups, 32 mtDNA haplogroups, and 91 combined haplotypes(including 50 singletons). The average gene diversity for the two polymorphisms was 0.71045. The expected heterozygosity values were 0.69491 and 0.72598 for Y-chromosomalandmtDNA haplogroups, respectively.The exact test for pairwise LD indicated that there was no association between the analysed polymorphisms (median p-value=0.30781). The normalized entropy difference (NED) was0.02. These results prove lack of association between mitochondrial and Y-chromosomal markers and provide acceptable arguments for multiplying together likelihood ratios obtained from both genetic markers without any further assumptions.

Keywords: combined likelihood ratio,linkage disequilibrium, mtDNA, Y-chromosome, haplogroups, southern Poland

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Harm, Culpability and Criminal Liability: A Study of Justification and Excuse in Common Law Jurisprudence

George Mousourakis
  

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Law and Forensic Science, Volume 15 (2018/1), pages 45-59.

Submitted: April 18, 2018. Published: June 16, 2018.

The author declares there is no conflict of interest.


Abstract: This article examines the issue of criminal liability in terms of the theoretical distinction between justification and excuse. By contrast with German and other Continental criminal law systems, the distinction has not played a significant part in the development of criminal law doctrine in common law jurisdictions. Over the past few decades, however, there has been a growing interest in the benefits of this approach to conceptualising criminal liability, as manifested by the considerable literature on justification and excuse and the frequent references to the distinction in judicial decisions, legislative enactments and scholarly works. Although the distinction has been given a great deal of attention in common law countries in recent years, attempts at a systematic classification of criminal law defences on this basis run up against serious difficulties. These difficulties have much to do with the fact that elements of both justification and excuse often appear to overlap in the moral and conceptual basis of a legal defence. It is argued that, notwithstanding these difficulties, the theory of justification and excuse offers a viable model, which can achieve and maintain a measure of coherence among criminal law defences and facilitate understanding and acceptance of the criminal law system and its presuppositions. The references to German criminal law theory add a useful comparative perspective to the discussion of the issues.

Keywords: harm, culpability, criminal liability, justification, excuse, defences Continue reading “Harm, Culpability and Criminal Liability: A Study of Justification and Excuse in Common Law Jurisprudence”

The Meaning of Procreative Autonomy in the Inter-American System of Human Rights. An Analysis of the Decision in Artavia Murillo v. Costa Rica Case

Teresinha Inês Teles Pires
  

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Law and Forensic Science, Volume 15 (2018/1), pages 9-44.

Submitted: April 3, 2018. Published: May 12, 2018.

The author declares there is no conflict of interest.


Abstract: The trial and the reasons adopted by the Inter-American Court of Human Rights (IACtHR) in Artavia Murillo v. Costa Rica represent significant progress in protecting women’s procreative autonomy. The decision of the IACtHR revoked a decision of the Constitutional Chamber of Costa Rica that banned the use of In Vitro Fertilization (IVF) in the country. With its decision, the IACtHR not only linked universal rights of freedom with procreative autonomy for women and men; but also, the IACtHR strongly reinforced an interpretation of the “right to life” that favors procreative autonomy. The decision is also remarkable by including a standard of equality in matters of procreative autonomy insofar as the IACtHR has held that women, because of negative gender stereotypes in society, have been significantly undermined by the decision of the Chamber of Costa Rica to ban IVF. Moreover, as will be argued, in similar future cases courts may introduce in the analysis the Convention of Belém do Pará,considering that the elimination of the IVF services (or other limitation of women’s procreative autonomy) can be seen as a form of violence against women’s moral integrity. Finally, the author will propose the possible application of international provisions on freedom of religion in the context of a broad protection of procreative autonomy. In this perspective, we will argue that those provisions should have been included in Artavia Murillo’s decision, considering the standards stated by IACtHR regarding the right to life and non-discrimination based on religion.

Keywords: procreative autonomy, gender equality, gender stereotypes, fundamental freedoms, right to life, religious discrimination Continue reading “The Meaning of Procreative Autonomy in the Inter-American System of Human Rights. An Analysis of the Decision in Artavia Murillo v. Costa Rica Case”

Postmortem Vitreous Humor Analysis for Xenobiotics and their Metabolites

Marcin Łukasik
Faculty of Applied Toxicology, Medical University of Warsaw, Poland
Anna Małkowska
Faculty of Applied Toxicology, Medical University of Warsaw, Poland
Paulina Anna Cieślak
Faculty of Applied Toxicology, Medical University of Warsaw, Poland
Ireneusz Sołtyszewski
Department of Criminalistics and Forensic Medicine, University of Warmia and Mazury, Olsztyn, Poland. Corresponding author: e-mail: ireneusz.soltyszewski@uwm.edu.pl
Mirosław Szutowski
Faculty of Applied Toxicology, Medical University of Warsaw, Poland

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Law and Forensic Science, Volume 15 (2018/1), pages 1-8.

Submitted: September 14, 2017.

The authors declare there is no conflict of interest.


Abstract: This article discusses the current state of knowledge on quantifying xenobiotics and their metabolites in vitreous humor as part of postmortem toxicological analysis. The evaluated compounds included: opiates and their metabolites, cocaine and its metabolites, amphetamine and its metabolites, cannabinoids, phencyclidine, benzodiazepines, and ethyl alcohol and biomarkers of its abuse.

Keywords: vitreous humor, detection, quantification, xenobiotics Continue reading “Postmortem Vitreous Humor Analysis for Xenobiotics and their Metabolites”

Comparing Law as Science with Science in the Law: Preliminary Thoughts

Kirk W. Junker
University Professor of Law, University of Cologne, Faculty of Law, and Director of International Master of Environmental Science Programme, University of Cologne.

Law and Forensic Science, Volume 14 (2017/2).

Submitted: September 18, 2017.

The author declares there is no conflict of interest.


Abstract: Comparative law often compares institutions or sources of law from various countries. This article rather compares civil law and common law families, but does use Germany and the USA to represent the two families respectively. Rather than focus upon institutions or sources of law, this article compares how these two families understand their practices of law, specifically in reference to science. First the concept of comparison itself is examined through its western conceptions in the discipline of rhetoric. Then the relationship of law to science is discussed, comparing the legal standard of scientist as authority on science to judge as ultimate adjudicator on scientific matters. The author concludes that law requires an evaluative element in its practices if it is to effect justice and further concludes that the evaluative element is better conceived by philosophy than science. Lawyers are thus encouraged to seriously consider evaluative practices, but are invited to do so on their own, rather than treat philosophy as a body of knowledge only present through the philosopher as expert witness.

Keywords: comparativism, rhetoric, science, evidence, scientism, moral, evaluative

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Wpływ szkolenia na skuteczność wykrywania kłamstwa (The Layman’s Ability to Detect Deception – Can it Be Improved by a Short Training?)

Jagoda Dzida
Wydział Prawa i Administracji Uniwersytetu im. A. Mickiewicza w Poznaniu

Law and Forensic Science, Volume 14 (2017/2).

Submitted: May 24, 2017.

The author declares there is no conflict of interest.


Abstract: The study was conducted to verify, whether it is possible to improve people’s ability to detect deception by a short training, and if so, to what extend it can be improved. The results are important due to the potential applicability of non-instrumental deception detection methods in the criminal procedure. The experiment was conducted on the group of students who were asked to decide, whether the persons, depicted on the video, are telling the truth or are lying. The procedure was repeated after a short training that gave the students more detailed information about the most reliable verbal and nonverbal cues to deception. The results revealed that a short training may improve lie detection by about 22%. The implications for future research are discussed.

Keywords: deception detection, lie, training

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The Impact of the European Union Agency for Law Enforcement Cooperation (Europol) on Combating Cross-Border Crime – Legal and Practical Aspects

Tomasz Safjański
Doctor of Law. Retired police officer. Doctoral degree from the University of Warsaw. He is also a graduate of the Faculty of Administration and Management, and of the Faculty of Law and Administration at the University of Warmia and Mazury in Olsztyn. He graduated from the Higher Police School in Szczytno. His police service began in 1994 with a career involving many police departments, amongst others: crime, organised crime, crime prevention, internal affairs, international cooperation, criminal intelligence. 2006-2007 deputy director of Criminal Intelligence Bureau at the National Police Headquarters in Warsaw. 2006-2007 Head of Europol National Unit (HENU). In addition in period 2002-2006, he acted as the coordinator of the Central Investigation Bureau in cooperation with Europol, Police representative in the working groups of Europol (for the strategic analysis, dealing with the development of strategic reports) and a national expert in the Europol Working Group of the EU. At present a teacher at the University of Law and Public Administration, Rzeszów–Przemyśl. Correspondence: 01-493 Warszawa, ul. Wrocławska 10G m. 06, Poland. E-mail: janeksaf@interia.pl.

Law and Forensic Science, Volume 14 (2017/2).

Submitted: August 19, 2017.

The author declares there is no conflict of interest.


Abstract: The article presents the role of Europol in combating cross-border crime. Europol is the main platform of EU Member States crime intelligence cooperation, which use the information potential and experience of over 300 national security agencies and police forces. The cooperation is vital for the public security of the EU area – understood as a form of multilateral international connections and channels of exchanging criminal information between national police forces, special services and other state and EU institutions responsible for public security. The role of Europol in combating cross-border crime is characterised by an enormous degree of complexity due to it’s specific legal status, scope of operating activities, and position in the EU institutional system.

Keywords: Europol, crime intelligence, crime analysis, operational analysis, strategic analysis, combating transborder crime, terrorism, multiagency, international cooperation

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Climate Change and Environmental Rights Litigation at the European Court of Human Rights: A View from the Arctic

Stefan Kirchner
RA, Dosentti (Adj. Prof.), Dr. Stefan Kirchner, MJI, is University Researcher for Arctic Law, Arctic Centre, University of Lapland, Rovaniemi, Finland, and Adjunct Professor for Funda-mental and Human Rights at the same university. He is admitted to the bar in Germany, working in particular on matters concerning the European Convention on Human Rights. Email: stefan.kirchner@ulapland.fi; Phone: +358 40 48 44 001.

Law and Forensic Science, Volume 14 (2017/2).

Submitted: November 26, 2017.

The author declares there is no conflict of interest.


Abstract: Climate change is real. It is felt particularly severely in the Arctic and in mountainous areas. While efforts to limit the effects of climate change are underway on a global level, most notably with the 2015 Paris Accord, dama-ges are already suffered on the local level. Climate change affects in particu-lar communities which are closely connected to nature and which therefore are sensitive to change, such as indigenous communities. Climate change shatters the capacity for resilience and can threaten the very survival of communities. In recent years, litigation has emerged as a potential tool for attempts to recover some of the losses suffered due to climate change. In this text it will be shown that the European Court of Human Rights, although it has been slow in recognizing environmental rights, has the potential to ser-ve as an adequate forum for human rights-based climate change litigation.

Keywords: climate change, human rights, Litigation, indigenous peoples, Arctic

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The Meaning of Causality of Legal Acts in the Polish Civil Law

Marek Antas
Jakub M. Łukasiewicz 

Law and Forensic Science, Volume 14 (2017/2).

Submitted: August 9, 2017.

The authors declare there is no conflict of interest.


Abstract: The aim of this article is to explain the theoretical and legal subject concerning the term causa, its relation with obliging and disposing acts, and also the meaning of the traditionally known causarum trinity term in the context of acquisition performed among parties. At the same time, the topic of causal rules in the Polish legal system will be touched. It seems worth to further discuss this subject for the reason that the term causa appears in the Polish literature and also frequently on the basis of diffucult theoretical and legal terms.

Keywords: causa, legal acts, obligation, Roman Law

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Significance of Physical Evidence in the Evaluation of a Prohibited Act under the Criminal Law

Marta Kowalczyk-Ludzia
University of Warmia and Mazury in Olsztyn, Poland

Law and Forensic Science, Volume 14 (2017/2).

Submitted: November 29, 2017.

The author declares there is no conflict of interest.


Abstract: This paper discusses issues associated with the evaluation of the usefulness of physical evidence found on the site of a crime for formulating the probable version of the course of the criminal event. For example, the very type of tool that the perpetrator uses usually indicates the intention to commit the act, making it possible to determine not only the scope of the harm caused, but also the motive for the prohibited act. The object and purpose of this paper is to answer the question about the role of physical evidence in the evaluation of a prohibited act under the criminal law. The deliberations are based on an analysis of the results of the author’s own research.

Keywords: physical evidence, murder weapon, intention to commit a prohibited act, motive, impulse

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The Law Standards Determining the Sustainable Forest Management for Economic Purposes

Sebastian Bentkowski
University of Warmia and Mazury in Olsztyn (s.bentkowski@interia.pl).

Law and Forensic Science, Volume 14 (2017/2).

Submitted: November 15, 2017.

The author declares there is no conflict of interest.


Abstract: The purpose of this article is to present factors determining the sustainable forest management of timber harvesting for economic purposes in legal and administrative terms. The Polish legal standards and European regulations adopted system solution in order to ensure proper forest management, especially in the area of timber harvesting for economic purposes. The basic elements of such a system include: (a) authorities responsible for the supervision and control system logging, institutions managing forests also authorities and institutions responsible for monitoring and assessing compliance with the rules of timber harvesting from legal sources while preserving the principles of sustainable forest management, (b) the principles of sustainable forest management and the rational management of forest resources, including a requirement to create forest management plan, a simplified plan / inventory and obligation of marking wood before the sale, (c) the rating system, risk management system, information flow, monitoring the process of acquiring and placing timber on the EU market, (d) types of sanctions for non-compliance with the principles of sustainable forest management, including responsibility for damages (civil law), penalties and administrative charges and sanctions in the form of penalties for offenses. EU law regulates in some detail the purposes, principles, criteria, forms and range of supervision and control of the legality of logging, which proves the importance of this kind of approach to ensure sustainable forest management. Polish regulations refer indeed to EU law standards, but some elements of the supervisory and control system are regulated too general. These include the lack of regulations concerning provisions concerning the conduct of the legality of timber harvesting, rules for supervision, directory admissible evidence, and rules of cooperation between authorities. On the other hand should be assessed positively adopted in EU law and Polish law in structure of the control and supervision of logging in terms of the subject. While creating this structure was used a suitable hierarchy of authority and were assigned the appropriate powers and tasks, maintaining praxeological principles of building structures. This system consists of the European Commission, Member State authorities (Minister for Environment, District Governor, and Customs Service) and external entities (monitoring organizations and operators who place timber and derived products on the market).

Keywords: environment, control, timber

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Comprarative Law, Legal Transplants and Legal Change

George Mousourakis
Ritsumeikan University, Faculty of International Relations, Kyoto, Japan; Hiroshima University, Graduate School of Social Sciences, Japan; The New Zealand Centre for Human Rights Law, Policy and Practice, University of Auckland, New Zealand. The first draft of this paper was completed at the Institute for Legal Philosophy, Law on Religion and Culture, University of Vienna. I am indebted to the Director of the Institute, Professor Dr. Elisabeth Holzleithner, who enabled me to spend several weeks in Vienna as a Research Fellow and to make use of the libraries and other facilities of the Faculty of Law.

Law and Forensic Science, Volume 14 (2017/2).

Submitted: June 28, 2017.

The author declares there is no conflict of interest.


Abstract: The changes in the legal universe that have been taking place in the last few decades have increased the potential value of different kinds of comparative law information and thereby urged new objectives for the comparative law community. The comparative method, which was earlier applied in the traditional framework of domestic law, is now being adapted to the new needs created by the ongoing globalization process, becoming broader and more comprehensive with respect to both its scope and goals. Associated with this development is a growing interest in the question of transferability or transplantability of legal norms and institutions across different cultures, especially in so far as current legal integration and harmonization processes require reasonably transferable models. This paper critically examines the issue of transferability of laws with particular attention to the theory of legal transplants propounded by Professor Alan Watson, one of the most influential contemporary comparatists and legal historians. It is submitted that the element of relativity imposed by the special relationship of the law to its socio-cultural environment must be taken into consideration when the comparative method is applied. However, the view held by some scholars that legal transplants are impossible betrays an exaggeration of cultural diversity as it contradicts the teachings of history and is at odds with recent trends towards legal integration in certain world regions.

Keywords: comparative law, reception of laws, legal harmonization, families of law, legal transplants, legal change

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