Effective Justice. International and Comparative Approaches

Barbara Janusz-Pohl (ed.)

Effective Justice. International and Comparative Approaches

Volume 2

Berlin · Bruxelles · Chennai · Lausanne · New York · Oxford

Library of Congress Cataloging-in-Publication Data

Names: Janusz-Pohl, Barbara, editor.

Title: Effective justice, international and comparative approaches.

Volume 2 / Barbara Janusz-Pohl (ed.).

Description: Oxford ; New York : Peter Lang, 2025. | Series: Ius, lex et res publica, 2191-3250 ; volume 39 | Includes bibliographical references. Identifiers: LCCN 2025000637 | ISBN 9783631901427 (hardback) | ISBN 9783631935095 (ebook)

Subjects: LCSH: Effectiveness and validity of law--European Union countries. | Remedies (Law)--European Union countries. | International and municipal law--European Union countries. | Conflict of laws--European Union countries. | Justice, Administration of--European Union countries. | Comparative law--European Union countries.

Classification: LCC KJE5087 .E345 2025 |

DDC 340/.114094--dc23/eng/20250113

LC record available at https://lccn.loc.gov/2025000637

Bibliographic Information published by the Deutsche Nationalbibliothek

The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the internet at http://dnb.d-nb.de.

Cover illustration: Courtesy of Benjamin Ben Chaim.

This publication was financially supported by the Faculty of Law and Administration, University of Warsaw, Poland.

ISSN 2191-3250

ISBN 978-3-631-90142-7 (Print)

E-ISBN 978-3-631-93509-5 (E-PDF)

E-ISBN 978-3-631-93510-1 (E-PUB)

DOI 10.3726/b22742

© 2025 Peter Lang Group AG, Lausanne (Switzerland)

Published by Peter Lang GmbH, Berlin (Germany)

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Table of Contents

Introduction

Prof. UAM Dr. hab. Barbara Janusz-Pohl

Editorial

Part I Special, Abbreviated Procedure and Evidence

Prof. Chiara Gabrielli, Dr. Andrea Zampini

I. Between efficiency urges and expectations of justice in the Italian system. Deflation profiles of case dismissal for particular tenuity of the criminal act and for oblation

Prof. Aleksandar Maršavelski

II. Restorative Justice in Croatia: A Potential for an Effective Criminal Justice System

Prof. US Dr. hab. Magdalena Kowalewska-Łukuć

III. Mediation in Criminal Proceedings as a Potentially Effective Tool for Restorative Justice

Dr. Koidu Saia

IV. Life Path Lessons of Children in Closed Childcare Institution Service in Estonia: Experiences and Practices Related to Interprofessional Collaboration-Based Support

Dr. Stephen Terrett

V. Proceed with caution? Human rights concerns arising from the use of out-of-court disposals to improve efficiency in the criminal justice system

Prof. Dr. Dr.h.c. Juan-Luis Gómez Colomer, Prof. Dr. Andrea Planchadell Gargallo, Dr. Christa M. Madrid Boquín

VI. Procedural treatment of prohibited evidence: its evolution in Spain

Eduardo Bolsoni Riboli

VII. The use of spy software as a means of obtaining evidence in criminal investigations and the need of effective remedies to safeguard fundamental rights: the case of Portugal

Dr. Federico C. La Vattiata

VIII. Crimes of Harmful Consequences and Artificial Intelligence: Causation at the Bar

Dr. Marcin Galiński

IX. Detection of usage deepfake technology in evidentiary proceedings on the ground of the Polish Code of Criminal Procedure

Dr. Rodrigo da Silva Brandalise, Décio Alonso Gomes

X. Message Applications Mirroring, Jurisprudential Interpretation, and the Challenging Chain of Custody in a Criminal Case

Part II Systems of Effective Remedies

Prof. UW Dr. hab. Szymon Pawelec

I. The right to an effective remedy in the light of the length of the proceedings in the Polish criminal process according to the jurisprudence of the ECtHR

Dr. Lorenzo Bernardini

II. Fair trial rights violations and effective remedies in criminal proceedings—The ECHR perspective

Dr. Aleksandra Komar-Nalepa

III. Non-appealable nature of evidentiary decisions in appeal proceedings in Polish criminal trial from the perspective of the right to an effective remedy under Art. 13 ECHR

Dr. Emanuele Toma

IV. Evidentiary misbehaviors and their consequences

Michał Wawrzyńczak

V. Securing Effective Collection of Evidence: An Overview of Various Approaches to Interrogation Techniques

Dr. Katarzyna Zombory

VI. Effective Remedies for the Violation of Cultural Human Rights under International Law

Introduction

The following monograph is the culmination of the collaborative efforts of dedicated researchers within the Effective Justice International and Comparative Approaches Platform, which officially launched its activities in December 2021. This platform led Prof. UAM Dr. hab. Barbara Janusz-Pohl from the Faculty of Law and Administration at Adam Mickiewicz University and Prof. Unibo Dr. Daniele Vicoli, representing the Department of Legal Sciences at the University of Bologna.

The platform’s endeavours were made possible through the generous support of various sources, including grant funds from Adam Mickiewicz University and the University of Bologna and the prestigious Excellent Science Grant provided by the Polish Ministry of Science and Higher Education. The platform was dedicated to advancing scientific knowledge through a wide range of activities, including hosting international seminars and spearheading initiatives aimed at consolidating research efforts in the field of effectiveness, particularly in criminal proceedings at large. Emphasising the comparative and international aspects analysis, the platform attracted a diverse and global community of researchers. This resulted in a robust network of over 40 individuals representing more than 20 scientific centres, fostering both permanent and periodic cooperation. The platform’s activities can be followed at www.effective-justice.com.

The book captures works on the effectiveness of evidentiary issues, summary and abbreviated proceedings, as well as those related to the issue of access to an effective remedy. The common theme throughout the collection is the concept of effectiveness. Within the framework of the EJ Platform, effectiveness was the primary focus, and its meaning was outlined against the background of other closely related terms such as efficacy, effectivity, or efficiency. The effectiveness presented in this collection’s chapters is seen in a multi-layered dimension related to the achievement of the goals inherent to a given procedure, institution, or process activity.

The publication of this work was made possible due to the tremendous professional discipline of all authors, as well as the persons responsible for leading the “Evidence, Special and Abbreviated Procedure” section and the “Effective Remedies” section.

Mr. Michał Wawrzyńczak, a PhD student at the School of Social Sciences of the UAM and the Doctoral School of the Department of Legal Sciences of the University of Bologna, carried out critical activities related to preparing all papers for publication and technical layout.

This monograph is financed by the Adam Mickiewicz University Faculty of Law and Administration.

Prof. UAM Dr. hab. Barbara Janusz-Pohl¹ Editorial

This book is divided into two parts. The first part focuses on special, abbreviated procedures and evidence, while the second covers the effective remedies system. The topics discussed in both parts are related to the effectiveness of criminal proceedings, procedural actions, and selected legal institutions. The chapters address a range of issues, including national and international themes, particularly those relevant to modern European standards. The section on special and abbreviated procedures highlights alternative methods of resolving disputes in criminal cases and also touches on specific proceedings related to the liability and protection of juveniles. The section on evidence focuses on the admissibility and legality of evidence while also examining issues related to effective remedies. The analysis of evidentiary issues is viewed through the lens of guarantees established by the ECHR and the standards developed by European tribunals. Additionally, the section on effective remedies contains interdisciplinary chapters that expand beyond the effectiveness of criminal proceedings. In most chapters, the authors analyse the issue of efficiency using the example of national systems. The presented overview can be used for comparative study.

The considerations of part one begin with the work entitled Between Efficiency Urges and Expectations of Justice in the Italian System. Deflation profiles of case dismissal for particular tenuity of the criminal act and for oblation by Italian Scholars by Prof. Chiara Gabrielli and Dr. Andrea Zampini.

In this work, effectiveness is characterised by the examples of a few institutions. The authors explore the regulations for case dropping requested by the public prosecutor (richiesta di archiviazione) at the end of preliminary investigations in Italian criminal procedure. They discuss the conformity of this regulation with the constitutional standards. Article 112 of the Italian Constitution mandates criminal prosecution, limiting the public prosecutor’s discretion in dismissing a case through legally prescribed formulas. A common trait of traditional dismissal cases is a prognosis of trial superfluity due to grounds that may lead to subsequent acquittal. The Authors state that - recently, the Italian legislature expanded the operational boundaries of this legal feature to relieve a procedural system in severe and chronic distress. The institution of the request for dropping a case might be observed as an example of opportunism in criminal proceedings, as such a request is also now allowed in cases where the outcome of a trial would likely result in a conviction for minor offences punishable by a penalty that doesn’t exceed a certain threshold of gravity, has modest consequences, and is not habitual (archiviazione per particolare tenuità del fatto). Additionally, this institution shall be seen as an tool for restorative justice, as in specific criminal fields, such as minor criminal offences against the environment and safety and health in workplaces, the request to drop a case is allowed after specific compensation (oblazione “condizionata”). The Authors expound upon these peculiar hypotheses of dismissal through the lens of constitutional and legitimacy jurisprudence. They elucidate these hypotheses’ underlying objectives, prerequisites, and operational mechanics while highlighting their problematic aspects regarding systemic interpretation. Discussing the effectiveness of criminal proceedings in Italy, the thesis is formulated that this system “has become stuck in a chronic impasse”, causing proceedings to drag on well beyond a reasonable timeframe guaranteed by the Italian Constitution. As a result, criminal liability is often impossible to determine in court due to the expiration of the statute of limitations. Minor offences significantly burden the justice system: fines or short prison sentences make up 90% of the total. Particularly, the Authors focus on the so-called “Cartabia reform” (Legislative Decree No. 150 of October 10th, 2022), which has narrowed the path to the preliminary hearing or direct trial by reshaping the concept of “unfoundedness of the notitia criminis”. The authors, especially, refer to Article 408 c.p.p. This provision currently requires the public prosecutor to request dismissal “when the elements acquired during the preliminary investigation do not allow a reasonable prediction of conviction or application of a security measure other than confiscation”. They point out that before the reform, the prosecution had to determine whether to pursue charges based on the investigative discoveries and their prospective integration into the trial. In contrast, the new regulation bounds prosecution with the existence of solid and converging evidence at the conclusion of the investigation. It is said that the Cartabia reform (No. 150 of 2022) extended the possibility of obtaining the dismissal thanks to the offender’s restorative activities for contravention issued by Law No. 283/1962 and by other regulations on hygiene, production, traceability and sale of food and beverages. As mentioned, this law seeks to remove insignificant infractions from the criminal justice system, which would be “costly for the community and demanding for the offender”.

In this study, the Italian scholars explore how dismissal can be used as a tool for special and abbreviated procedures and how fundamental principles entailed by this choice can be balanced to ensure, at the same time, procedural efficiency and adequate protection of individual rights connected with the justice system. Consequently, this study is a description of the regulations that supposed to speed up Italian criminal proceedings. The Authors highlight the constitutional dilemmas associated with these new regulations. Thus, the chapter contains considerations that can serve for further comparative studies.

The next chapter analyses the Croatian system and the general model for the formation of restorative justice in criminal cases. In its interesting inquiries on Restorative Justice in Croatia: A Potential for an Effective Criminal Justice System Prof. Aleksandar Maršavelski provides an overview of Croatian restorative justice literature, which is quite optimistic concerning the effectiveness of restorative justice. Ultimately, the effectiveness of restorative justice models depends on a lot of factors, such as the type of model used, legal framework, state support, implementation etc. The author states that there is no one-size-fits-all solution, and this contribution reveals the possibility of restorative justice in the Croatian legal system. The main argument is that the greatest potential of improving the effectiveness of the Croatian criminal justice system is to expand the application of restorative justice not just in juvenile cases, but also to find ways of its application to adult offenders. Despite the fact that restorative justice has a very limited use in the pre-trial stage because the real mediation between the offender and the victim, which avoids trial, is limited to a small portion of criminal cases – mainly juvenile cases or cases in which the victim has a decisive role in the initiation of the prosecution. In cases where the initiation of proceedings depends on the victim’s initiative, restorative justice is mostly used informally, and there is a lack of data about it. Access to restorative justice is also very limited, as specialised out-of-court settlement services are available only in three Croatian cities. It is said that in Croatian law, elements of restorative justice are also present at the court proceedings level, especially in the context of special obligations that can be imposed along with a suspended sentence. The Author rightly observes that the use of restorative justice tools as obligations under suspended sentences has the greatest potential to expand the restorative. Based on the current Croatian legal framework, restorative justice also has the potential to be used in the stage of sanctions enforcement, including while serving prison sentences.

What seems to be crucial is that the Author states that the lenient sentencing policy in Croatia indicates that the judicial system treats most crimes as less serious in nature. The suspended sentences is by far the most frequently used sanction in Croatia, amounting to approximately 80%. Unfortunately, this is in line with the defense tactics. Based on the presented research, one shall argue that restorative justice tools are rarely used as obligations under suspended sentences. As Prof. Marsavelski stated, the Croatian judges are reluctant to impose them because they would need to control their execution in the post-conviction stage. Waiting for the suspended sentence to expire is a much simpler task for judges to close the case.

Analysing the layers of restorative justice mechanisms through the prism of stages of Croatian criminal procedure, it is pointed to the enforcement phase, including serving prison sentences. The Author diagnoses that victim-offender mediation is rarely initiated in reality post-conviction due to the fact that good behaviour without re-offending is sufficiently credited, so no effort to seek reconciliation with the victim is needed. Looking at the reasons for this state of affairs, it is said that the insufficient use of restorative justice mechanisms in criminal practice, despite the legal framework’s vast options, primarily indicates inadequate training and a lack of motivation. Consequently, the remedy might be connected with promoting restorative justice mechanisms and proper training of professional actors. Prof. Marsavelski goes further by suggesting that regulations governing the monitoring and evaluation of the work of judges will certainly facilitate the work of judges as mediators. It is also necessary to ensure monitoring of restorative justice practices to evaluate their success and problems.

The other work that fits into the characteristics of national restorative justice regulations is a chapter under the title of Mediation in Criminal Proceedings as a Potentially Effective Tool for Restorative Justice by Prof. US Dr. hab. Magdalena Kowalewska-Łukuć. The Author characterises the institution of mediation as a specific tool in criminal proceedings, which can be an effective alternative to the “classic” - non-consensual - course of criminal proceedings. The work presents the legal framework and functioning of mediation in Polish criminal proceedings and Scandinavian countries, particularly Finland and Denmark. This Author has selected two radically different systems in terms of the popularity of mediation. Her considerations have been subjected to verification of the hypothesis that significant differences in the legal regulation and practice of mediation in these countries translate into its effectiveness and scope of impact. Adequately, therefore, the two systems were first described and then tried to find out what might be the reasons for the low use of the VOM in Poland.

Describing the mediation in Poland, Prof. Kowalewska-Łukuć refers to the Polish Code of Criminal Procedure (CCP) and the relevant regulation of the Minister of Justice, and based on these provisions, stated that the mediation seems to be regulated in such a general and at the same time flexible manner that one can assume that the legislative framework should even encourage its frequent application. She mentioned that statistics concerning mediation in Polish criminal proceedings show a rather surprising picture. Only a negligible number of criminal cases go to mediation. To be precise, it is less than 1%. At the same time, however, the effectiveness of mediation proceedings that have already begun is at a relatively good level - about 60–70% of them end with a settlement agreement. Thus, the statistical data show that mediation in criminal cases occurs very rarely. On the other hand, if it is launched, it has quite a high success rate. This leads her to the thesis that mediation can be a valuable tool of restorative justice, however, there are some severe problems or limitations in its application in the Polish criminal procedure. She rightly pointed out that the institutional constraints to mediation in Poland include the lack of tangible benefits for the offender when mediation was employed in criminal cases.

She diagnoses that even more far-reaching or simply obligatory, rather than merely optional, effects of mediation on the reduction of the offender’s sentence could contribute to greater interest in it on the part of offenders and, consequently, to its more frequent use. It is, of course, uncertain how the greater influence of the mediation procedure on the outcome of criminal proceedings would work in the Polish criminal process. Discussing and describing the Polish system of mediation, a special focus was on so-called victim-sensitive mediation. Based on her professional experiences, she exposed the psychological features of this procedure, and she proposes some changes that represent a certain shift of emphasis in the current formula of mediation, which does not properly focus on the needs of the victim. When describing the Scandinavian model of mediation and its role in restorative justice panorama, this Author concluded that approaching the Polish system to Scandinavian might positively influence the effectiveness of mediation in Polish criminal courts. She suggests that without greater interest on the part of the potential parties to mediation and the criminal procedure authorities, the significance of mediation in Poland will not increase. One of the neglected fields – as the Author says, might be linked with building greater trust towards mediators (through their professional preparation), increasing the impact of mediation on the outcome of criminal proceedings (by offering suspects/accused persons a real reduction of criminal liability) and adapting the mediation procedure to the expectations, needs and specific situation of persons victimised by crime.

The next two chapters of the monograph address the issue of procedures related to the legal protection and responsibility of juveniles.

Work on Life Path Lessons of Children in Closed Childcare Institution Service in Estonia: Experiences and Practices Related to Interprofessional Collaboration Based Support by Dr. Koidu Saia that is part of a more extensive, five-objective study ‘Study to Improve the System of Timely Identification and Effective Assistance to Children at Risk: Life Course Lessons for Children in a Closed Childcare Institution’, which was conducted in Estonia with the participation of the CIRIC research group of the School of Governance, Law and Society of Tallinn University. This main study describes the empirical results of children’s “journeys” to a closed childcare institution service (CCIS).

This chapter aims to analyse the cooperation between the child protection, education, social and law enforcement systems for the benefit of children in the CCIS, including identifying bottlenecks in the system and possible solutions. The focus is on the CCIS, which replaced special schools as a result of the 2018 reforms in Estonia. CCIS means temporarily restricting a minor’s freedom of movement away from home in a safe and supportive environment. It is intended as a measure of last resort for children whose behaviour poses a serious threat to their own life, health or development or to the life or health of others. Consequently, CCIS might be the response for criminally oriented behaviours and demoralisation of juveniles. The CCIS means that the child’s fundamental rights, including freedom of movement, are significantly restricted. It is reported that the assessment and decision-making process that underpins a referral to services, whether under the Social Welfare Act or criminal procedure, is complex and ultimately reserved for the court. One can apply for the CCIS for a maximum of one year at a time, and the court decides on the referral. It must be noted that for a child, an arrest is replaced by the CCIS.

Dr. Koidu observes that the number of applications for the CCIS has increased every year, from 93 applications in 2018 to 137 applications in 2020, even though this solution shall be ultima ratio. Behind the scenes, the abuse use of this measure might be discussed.

In this work, it is said that children referred to the service are characterised by complex problems and risky behaviour, including repeatedly committed offenses; therefore and, referring to the outputs of the systematic literature review – the CCIS families and children need positive parenting and family strengths focuse, early identification and prevention, participation and child-centred, interdisciplinary collaboration, services, methods. The discussion is kept around the characteristics of significant changes that have taken place in the Estonian child protection, education, social welfare, and justice systems in recent years, which have affected the well-being of children and families in vulnerable, fragile situations (including those involved in CCIS) and posed new challenges for professionals working in the system, sector developers, and policymakers.