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Journal of Eastern-European Criminal JOURNAL OF EASTERN‐EUROPEAN CRIMINAL LAW NO. 1/2015 1 UNIVERSITY OF TIMISOARA UNIVERSITY OF PÉCS FACULTY OF LAW FACULTY OF LAW JOURNAL OF EASTERN­EUROPEAN CRIMINAL LAW No. 1/2015 Edited biannually by courtesy of the Criminal Law Departments within the Law Faculties of the West University of Timisoara and the University of Pécs 2015 2 ANCA JURMA The journal is indexed in databases SSRN, EBSCO, HeinOnline JOURNAL OF EASTERN‐EUROPEAN CRIMINAL LAW NO. 1/2015 3 UNIVERSITY OF TIMISOARA UNIVERSITY OF PÉCS FACULTY OF LAW FACULTY OF LAW JOURNAL OF EASTERN­EUROPEAN CRIMINAL LAW P BOARD OF EDITORS P Editors­in­Chief Prof. dr. VIOREL PASCA Prof. dr. ISTVÁN GÁL West University of Timisoara University of Pécs Faculty of Law Faculty of Law Editors Dr. FLAVIU CIOPEC Dr. LÁSZLÓ KŐHALMI Dr. CSONGOR HERKE Dr. LAURA MARIA STĂNILĂ Dr. VOICU PUȘCAȘU Dr. ANDREEA VERTES­OLTEAN Dr. MIHÁLY TÓTH Dr. CSABA FENYVESI Dr. MAGDALENA ROIBU Dr. DOREL JULEAN Dr. IOANA­CELINA PAȘCA Dr. ADRIAN FANU­MOCA Dr. ZOLTÁN ANDRÁS NAGY Dr. LIVIA SUMANARU SCIENTIFIC BOARD Prof. dr. Ulrich Sieber, director Max Planck Institute for International Criminal Law; Prof. dr. Ye Qing. Director Law Institute of SASS, Shanghai; Prof. Dr. Zoran Stojanović, University of Belgrade Faculty of Law; Prof. dr. Vid Jakulin, University Lublijana Faculty of Law; Prof. dr. Roberto E. Kostoris, Ordinario di Diritto processuale penale nell’Università di Padova; Prof. dr. Zoran Pavlovic, University of Novi Sad, Faculty of Law; Prof. dr. Tudorel Toader, University A.I. Cuza Iasi, Faculty of Law; Prof. dr. Florin Streteanu, University Babes­Boliay Cluj­Napoca, Faculty of Law; Prof. dr. Valerian Cioclei, University Bucuresti, Faculty of Law; Prof. dr. Elek Balazs, Debrecen University, Faculty of Law The board of editors shall not take responsibility for the authors' opinions therefore the authors are exclusively responsible for the former. 4 ANCA JURMA Universul Juridic Publishing House Edited by Universul Juridic Publishing House Copyright © 2015, S.C. UNIVERSUL JURIDIC S.R.L. All rights on this edition are reserved to Universul Juridic Publishing House No part of this volume can’t be copied without the subscription of Universul Juridic Publishing House Editorial office: Phone/fax: 021.314.93.13 Phone: 0734.303.101 E­mail: [email protected] Distribution: Phone: 021.314.93.15 Phone/fax: 021.314.93.16 E­mail: [email protected] www.universuljuridic.ro ISSN 2360–4964 JOURNAL OF EASTERN‐EUROPEAN CRIMINAL LAW NO. 1/2015 5 Invitation Journal of Eastern‐European Criminal law has been conceived as a forum open to all academic researchers from former communist countries, to professors, PhD students, but equally to judicial professionals and other members of professions concerned about the evolution of criminal legislation and the increasingly firm response to be given to the new forms under which the criminal phenomenon manifests itself. The creation of a common area of freedom, security and justice, based on the principles of transparency and the rule of democracy calls for an open dialogue between theoreticians and practitioners of law in general, and of criminal and criminal procedure law, in particular. The transition to a market economy, the globalization of economic phenomena, the free movement of capital, have generated, not only in the former communist countries, but in others as well, new types of economic crime. Such a concept, of a rather criminological nature, presently takes on a variety of forms, starting from the traditional crimes against patrimony, to the more refined forms of tax evasion, counterfeiting, fraud against public funds, capital markets manipulation, and up to the super‐sophisticated cyber‐crime. To this end, the Faculty of Law of the West University in Timisoara invites all the contributors to the Journal of Eastern‐European Criminal Law to take part in a confe‐ rence organized on October 12‐18th 2015, whose theme shall be Economic Crime. Economic Crime shall actually be the topic of the next issue of the Journal. For further information, please access the following e‐mail address: jeecl@e‐uvt.ro. The board of editors 6 ANCA JURMA JOURNAL OF EASTERN‐EUROPEAN CRIMINAL LAW NO. 1/2015 7 CONTENTS Tudorel Toader, Marieta Safta ‐ The Constitutionality of Safeguards on Extended Confiscation ..................................................................................................................................... 9 Dávid Tóth, László István Gál, László Kőhalmi ‐ Organized Crime in Hungary .............. 22 Anneli Soo, Jaan Sootak Legislative Actions of Estonia to Combat Organized Crime ............................................................................................................................................................................ 28 Aleksandar Bošković, Zoran Pavlović ‐ Special Evidentiary Actions in the Function of Combating Organized Crime in Serbia .............................................................................. 4 0 Laura Stănilă ‐ Organized Crime in Action: Trafficking of Human Cells, Tissues and Embryos in Romania ................................................................................................................................... 58 Nyitrai Endre ‐ Fight Against Organized Crime in Light of Witness Protection .................. 70 Magdalena Roibu ‐ Organized Crime in the United States and its Modern Challenges .................................................................................................................................................................. 88 Mihai Adrian Hotca ‐ Shall the Offender or the Participant in the Predicate Offense Be Held Criminally Liable if He/She Performs the Laundering of the Proceeds from the Committed Offense? ..................................................................................................... 99 Valerian Cioclei ‐ Remand in Corruption Cases – a Possible Raft of the Medusa? .......... 107 Flaviu Ciopec ­ Disorganized Crime ......................................................................................................... 110 László Bói ­ Organized Crime in the Set of Serial Crimes and the Necessity of Crime Analysis ...................................................................................................................................................... 116 Ruxandra Răducanu ‐ Brief Considerations on the Human Trafficking and Trafficking Minors Delimitation ‐ Forms of Organized Crime ..................................................... 128 Mariia Zhuk ‐ Powers Vested with the Public Prosecutor in Criminal Proceedings at the First Instance Court Pursuant to the Effective Laws of Ukraine ..................................................................................................................................................................... 135 Daniel Niţu ‐ Brief Analysis of the Fine Penalty Settlement in the New Romanian Penal Code ....................................................................................................................................... 144 8 ANCA JURMA Călin Berar ‐ Facing Organized Crime ‐ between the Need for Security and the Protection of the Human Rights .................................................................................................................. 162 PhD student Darian Rakitovan, PhD student Raluca Colojoară, PhD student Ligia Valentina Mirișan ‐ Organized Crime and Similar Termino‐ logical Concepts. A Problem in Defining the Notion of Organized crime ............................... 177 JOURNAL OF EASTERN‐EUROPEAN CRIMINAL LAW NO. 1/2015 9 The Constitutionality of Safeguards on Extended Confiscation Prof. dr. Tudorel TOADER∗ Dean of the Faculty of Law University „Al. I. Cuza” Iași, Judge of the Constitutional Court of Romania Dr. Marieta SAFTA∗∗ Faculty of Law University „Titu Maiorescu” Bucharest, First Assistant Magistrate Constitutional Court of Romania Abstract The extended confiscation has been recently enshrined in the Romanian criminal law. In the decisions delivered in this matter the Constitutional Court held that the norms of Criminal Code on extended confiscation are constitutional insofar they are not applied to acts committed and to assets acquired before the entry into force of Law no. 63/2012 amending and supplementing the Romanian Criminal Code and Law no. 286/2009 on the Criminal Code. This study offers an analysis from a constitutional point of view of safeguard on extended confiscation, especially from constitutional rules point of view which regulate the principle of non­retroactivity of the law, except for the criminal law or the more favourable non­criminal law, the right to property, respectively the presumption of lawful acquirement of property and the standard of proof required in order to reverse this legal presumption, analysis founded also on the case law in this matter. Keywords: extended confiscation, constitutional review, the principle of non­retroactivity of the law, except for the criminal law or the more favourable non­criminal law, the presumption of lawful acquirement of property, the right to property. 1. Introduction The extended confiscation has been recently enshrined in the Romanian criminal law1. The different opinion expressed both on the regulation2 and the implementation aspects, the rules governing the extended confiscation have been several times referred ∗ E‐mail: [email protected]. ∗∗ E‐mail: [email protected]. 1 By Law no. 63/2012 amending and supplementing the Romanian Criminal Code and Law
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