Journal articles on the topic 'Doctrine of the fruit of the poisonous tree'

Artykuł krótko opisuje, czym jest doktryna „owoców drzewa zatrutego” i w jaki sposób może ona wpływać na przebieg procesu cywilnego. Ukazanie tej problematyki na gruncie orzecznictwa pozwala sformułować istotne wnioski, które powinny uwzględniać sądy, w sytuacjach gdy strony próbują wprowadzić do procesu nielegalnie uzyskany dowód. Brak regulacji w tej materii powoduje, że lukę tę musi wypełnić orzecznictwo i doktryna. Application of the „fruits of the poisonous tree” doctrine in the Polish Civil ProcedurePolish civil procedure lacks a solution for evidence which was acquired by the parties illegally or in a manner which may stand in collision with good customs or with principles of social coexistence. The “fruit of the poisonous tree” doctrine has roots in criminal procedure but, on the other hand, it could be applied also in civil proceedings sadly, in Polish criminal procedure this doctrine is very limited. This article is a short presentation of the current views of Polish courts and jurisprudence on this matter, which are not consistent.

In the article the author, using comparative as well as other methods of scientific research, analyses the issues related to the admissibility of illegally obtained evidence in civil proceedings. The author intends to answer the question of whether the doctrine of the “fruits of the poisonous tree” is applied in Lithuania and, if so, to what extent.

The article focuses on the case of Gäfgen v. Germany, which con-cerns the restrictions imposed on police offi cers who work on cases involving terror and violence posing a risk to human life, and on the ones who have to make decisions protecting victims’ lives. The choice of measures serving the protection of the highest value, i.e. human life, is not easy. At the same time, police offi cers are assessed in terms of criminal law as regards the protection of the basic human rights enjoyed by perpetrators who pose a risk to other people’s lives. The case of Gäfgen v. Germany regards the choice of values, and the criminal liability of police offi cers, connected with thereof, as well as the problem of the admissibility of evidence obtained in breach of the law in criminal proceedings, and the limitations of the fruit of the poisonous tree doctrine.

Objective: The aim of the article is to analyze the various legal and theoretical provisions related to the determination of legal content of the concept of finding evidence inadmissible due to substantial violation of human rights and freedoms. Method: The authors use general scientific and special methods that enable to obtain scientifically sound conclusions and proposals. In particular, scientific methods, such as dialectical, comparative-legal, system-structural, generalization and logical, are applied. Results: The problematic issues of the procedure for finding evidence inadmissible due to substantial violation of human rights and freedoms in the criminal proceedings of Ukraine are studied. Some essential violations in collecting evidence by the prosecution are under focus. The ECHR’s case-law with regard to procedure for finding evidence inadmissible is analyzed. The implementation of the doctrine of "fruit of the poisonous tree" and specificity of its application to direct and derivative evidence by domestic courts and the case law of the ECHR is considered. Conclusions: The authors argue that the investigator is required to comply with the procedure for investigative actions prescribed by the provisions of the CPC of Ukraine in order to ensure human rights and freedoms. The analysis of the application of provisions of the CPC of Ukraine and the ECHR’s case law regarding the issue raised enables to formulate sound conclusions.

The article on the basis of integrative analysis of the problems of evidence in various legal processes substantiates the conclusion about the need to establish an integrative doctrine of evidence law and adopt a universal legislative act - the «Code of Evidence Law». The implementation of the rule of law in the field of justice is possible only if there is a fundamental doctrine of evidence-based law and a perfect evidentiary law created on its basis. In the context of the formation of its doctrinal principles and individual legal institutions, we propose to enshrine here the following provisions: Actual data obtained through the implementation of operational and search actions, anti-corruption measures, activities to prevent the legalization of proceeds from crime, customs and other administrative or civil procedure procedures stipulated by law can be used in criminal procedure and other legal evidence, provided that the source and method of their receipt can be verified. In admissive are the evidence obtained from such sources, such means and in such a manner, in which the proper observance of the protection of human rights and freedoms in accordance with the requirements of the rule of law and the principle of proportionality is not ensured, and the authenticity of the evidence itself is questioned. In legislation of Ukraine proposes to consolidate the following provisions: «Evidence materials obtained as a result of provocation of a crime obtained with significant violation of human rights and freedoms are inadmissible, whether «the fruits of a poisonous tree, materials obtained in violation of other legal norms, the prescriptions of which created certain guarantees of obtaining reliable factual data. Inadmissible are the evidence obtained from such sources, such means and in such a manner, in which the proper observance of the protection of human rights and freedoms is not ensured in accordance with the requirements of the rule of law and the principle of proportionality, as well as question the authenticity of the evidence itself. The standard of proof beyond a reasonable doubt means that the system of admissible and reliable evidence excludes any other reasonable explanation of the event that is the subject of trial, in addition to the one that is formed in the court decision.

LEGAL CONSEQUENCES OF ENTREPRENEUR INSPECTION CONDUCTED IN VIOLATION OF PRINCIPLES FOR INSPECTIONWith the enforcement of the Business Activities Freedom Act, the provisions of Chapter 5 entitled “Entrepreneur Inspection” have become to apply in the Polish Public Economic Law. The essence of the regulation lies in the principles for inspection, namely standards to be met by each and every entrepreneur’s business inspection performed by administrative bodies. Legal regulation of entrepreneur inspection, providing for legal framework of the procedure and setting limits to the actions of the inspection authority, was aimed by the legislator to limit the natural advantage of the authority over the entrepreneur during the inspection proceeding.The legislator was aware that the very introduction of principles for inspection would not be sufficient to effectively protect entrepreneurs’ interests. For this reason, the administrative authorities have been obliged to apply the principles for trader inspection through far-reaching negative legal consequences to the authority in the event of breach. The article analyses such legal solutions which provide entrepreneurs with the right to pursue compensation from the state, and permit demanding that the evidence gathered during the inspection could not be used against such trader by the administration authorities the “fruit of the poisonous tree” principle. The author presents the scope of application of both such instruments, and takes a stand as regards related detailed issues which have so far been the bone of contention both in the doctrine and in the judgements.

The aim of the article is to analyze the problematic aspects of finding evidence inadmissible in criminal proceedings, as well as to formulate, according to the Criminal Procedure Code of Ukraine (CCP of Ukraine) and the case law of the European Court of Human Rights (ECHR), proposals for elimination of existing shortcomings on the issue raised. In the article used general scientific and special methods that enable to obtain scientifically sound conclusions and proposals. In particular, scientific methods, such as dialectical, comparative-legal, system-structural, modelling, abstraction, generalization and logical, are applied. The problematic issues of the procedure for finding evidence inadmissible in the criminal proceedings of Ukraine are studied. The significant violations and shortcomings in collecting evidence by the pre-trial investigation bodies are under focus. The authors clarify grounds for the inadmissibility of evidence and the types of inadmissible evidence. The analysis of investigative practice and case-law enables to conclude that a violation in taking one piece of evidence in criminal proceedings may lead to finding a number of other pieces of evidence inadmissible (the doctrine of the fruit of the poisonous tree). The authors argue that the court should be proactive in resolving the issue of inadmissibility of evidence either on its own motion or on the motion by parties to criminal proceedings. The utilization of the case law of the ECHR in national law application activities are analyzed from legal perspective. The study establishes that ratio decidendi of the ECHR with regard to finding evidence inadmissible is that the issue of its inadmissibility is subject to regulation at the level of national law. The assessment of inadmissibility of evidence is the responsibility of national courts, and the ECHR is obliged to ensure that the means of taking evidence are fair.

The fight against corruption in Ukraine is one of the main tasks of law enforcement agencies. However, the process of proving corruption crimes in criminal cases is accompanied by problems that negatively affect the quality of the pre-trial investigation. The purpose of the article is to identify and study typical investigative errors and develop recommendations on the proper use of means and methods of proof in criminal cases of corruption crimes, taking into account the norms of national legislation and international criteria for ensuring human rights in criminal proceedings. To achieve this goal, a comparative and systemic structural analysis of international and domestic regulatory legal acts and court decisions, a selective study of materials from criminal cases on corruption crimes were made. It has been established that the process of proving in cases of corruption crimes in Ukraine will fully comply with international standards for ensuring human rights, provided that operational officers, investigators, and prosecutors comply with the admissibility criterion of evidence, especially when using secret measures. Investigative errors that take place at the stage of pre-trial investigation in this category of criminal cases lead to the restriction of human rights and freedoms and consist in significant violations of the criminal procedural law when collecting, checking, and evaluating evidence, as well as when opening the collected materials to the defense. Preventing such violations requires strict adherence to the general requirements for conducting undercover activities, formulated in the decisions of the European Court of Human Rights and domestic courts. The proof must take into account the "fruit of the poisonous tree" doctrine of the inadmissibility of evidence derived from materials collected in violation of the law. The defense side should be provided with timely access to the materials of covert events, including the documents that served as the basis for their implementation. It is important not to allow actions that are regarded as a provocation (incitement) of the suspect to commit a corruption offense.

1. A titularidade constitucional do inquérito policial e da investigação criminal pela Polícia Judiciária (Federal, na União, e Civil, nos Estados). 2. O entendimento do princípio constitucional da ampla defesa, pessoal e técnica do investigado. 3. O due process of law e o princípio do contraditório. 4. A vinculação do Ministério Público, como dominus litis criminal, a inquérito policial ou informações que não tenha produzido. 5. A conseqüente inconstitucionalidade da absorção, pelo Ministério Público, da investigação e do processo crime. 6. O ato administrativo vinculado do inquérito policial e da denúncia. 7. A imprestabilidade da prova coligida pelo Ministério Público, fora do processo crime, pela aplicação do princípio do fruto da árvore envenenada (poisonous tree doctrine).

Although our country has established the exclusion rule of illegal evidence, there is no clear legislation on the evidence derived from illegal evidence. Therefore, the choice of "the fruit of the poison tree" leaves a huge space for controversy. Behind its choice not only implies the further coordination of procedural justice and substantive justice, but also becomes an important driving force to promote the modernization of China's judicial process.

The admissibility of the use of evidence obtained unlawfully, referred to as the fruit of the poisonous tree, still remains an unresolved issue on the basis of Polish procedural law. The author in her paper will focus on such forms of evidence, which are more and more often the subject of evidentiary procedures, noting that this mainly concerns the content of private conversations conducted with the use of messengers and community portals, call recordings, and telephone billings, data obtained from mobile phones, or so-called print screens, which are often obtained in an illegal manner, interfering with the sphere of privacy of the other person.

The articles analyze the issues of standard permissible indicators, which are the established norms of criminal procedure legislation and the formation of judicial rules of practice, which create the formation of permissible indicators. The domestic legislator establishes a system of standard permissible indicators, which, on the one hand consists largely of 232 international standards of proof, which is gaining a broader understanding, and on the other hand, is widely used in judicial practice, while the history of clarification changes some of them. A significant part of the standard allowable indicators is determined by the rules of Art. 87 of the CPC of Ukraine, devoted to the grounds for recognizing in admissible indicators obtained as a result of a significant violation of human rights and freedoms. The legal model of inadmissibility provided by the CPC of Ukraine tends to its counter parts in the legislation of the Romano-Germanic legal system (CPC of Germany, France), while some features of this institution were also initiated by US and British legislation, in particular, the doctrine of trees», a certain analogue of which his provided for in Part 1 of Art. 87 of the CPC. Definite understanding of the doctrine of «fruit of the felled tree», which reveals any guilt that violates the police constitutional legal citizens, which has none, but simply an in direct connection with the process of identifying, removing and recording indicators, the severity of loss of recent legal force. This means the unconditional in admissibility of available indicators for any assignment established through the collection of indicators, regardless of their nature and degree. The article reveals a number of international standards of admissible indicators sent by the European Court of Human Rights. The range of cases for which the ECtHR in the context of the Convention provides for a response to accept able indicators and the establishment of national courts is revealed. On the basis of the conducted research the system of the international standards of admissible indicators formed in practice of the ECtHR is generalized.

Мониторинговые исследования за растительными объектами позволяют получить массив данных по особенностям роста, фенологии, развитию генеративных органов, характеру плодоношения, качеству семян, устойчивости к стресс-факторам, т.е. по показателям, которые находятся в функциональной зависимости между собой и позволяют судить о степени экологической пластичности растений. Для обоснования перспективности видов рода Juniperus, дальнейшего прогнозирования уровня адаптивности видов за пределами естественного ареала необходима достоверная и актуальная информация об успешности адаптации интродуцентов в условиях урбанизированных территорий малолесных регионов. Цель исследований – обоснование перспективности использования видов рода Juniperus на основе изучения их биологического потенциала в условиях интродукции. Объектами исследований являлись виды рода Juniperus: J. virginiana L., J. sabina L., J. communis L. и их формы, интродуцированные в дендрологических коллекциях Волгоградской области: ФНЦ агроэкологии РАН, кадастр №34:34:000000:122, 34:34:060061:10 и Нижневолжской станции по селекции древесных пород, № 34:36:0000:14:0178. Обследование проводилось маршрутным методом. Изучение сезонных ритмов развития интродуцентов проводилось методом фенологических наблюдений. Характеристика декоративности, роста и развития трех видов Juniperus L. (J. sabina L., J. virginiana L., J. communis L.) в условиях каштановых почв Волгоградской области, оценка репродуктивной способности, особенности размножения различных видов в культуре выявлялись по методикам ФНЦ агроэкологии РАН. Для определения характера плодоношения объектов исследования использовался метод определения массы 1000 семян, взвешивание проводили на весах марки «MASSA-K». Для математической обработки данных использовали стандартные алгоритмы: средняя арифметическая с абсолютной и относительной ошибками; коэффициент вариации для оценки особенностей репродуктивных процессов; достоверность различий между отдельными показателями. Приведена характеристика декоративности, роста и развития трех видов Juniperus L. (J. sabina L., J. virginiana L., J. communis L.) в условиях каштановых почв Волгоградской области. Дана оценка репродуктивной способности, выявлены особенности размножения различных видов в культуре. По комплексу изученных количественных показателей семенного материала установлено, что семена можжевельника виргинского (Juniperus virginiana L.) (10 г) меньше по массе семян обыкновенного практически в полтора раза; масса семян можжевельника казацкого (Juniperus sabina L.) (24 г) больше по массе семян можжевельника обыкновенного в полтора раза и почти в два с половиной раза больше можжевельника виргинского в сравнении с нормативными данными по можжевельнику обыкновенному (масса 1000 шт. которых составила 16 г). Изучение характера плодоношения можжевельника виргинского (J. virginiana) показало, что в 10,0 граммах шишкоягод содержится в среднем 156 ягод и 270 шт семян, выход чистых семян – 15,84 % от массы плодов. В 10,0 граммах шишкоягод можжевельника казацкого (J. sabina) содержится в среднем 86 ягод и 170 шт семян, выход чистых семян – 20,09 % от массы плодов. Установлено, что для озеленения урбанизированных территорий Волгоградской области Juniperus virginiana рекомендуется использовать в аллейных насаждениях, в чистых группах и в качестве второго яруса в насаждениях Betula, Robinia, Pseudotsuga, Larix. Juniperus sabina наиболее ценен для декорирования и укрепления склонов. В садах и парках общего пользования его применение ограничивается, а при озеленении детских учреждений исключается (хвоя и плоды ядовиты). В Волгоградской области Juniperus communis и его формы могут быть использованы на бедных песчаных почвах в групповых посадках, на опушках и в формованных живых изгородях. Пирамидальные формы пригодны на партерах, карликовые – для оформления каменистых участков. Форма с золотистой окраской в небольших группах на газоне. Monitoring studies of plant objects provide an array of data on the characteristics of growth, phenology, the development of generative organs, the specifics of fruiting, seed quality, and resistance to stress factors, i.e. indicators that are in a functional relationship with each other and allow estimating the degree of environmental plasticity of plants. To justify the prospects of species of the Juniperus genus, forecast the adaptability level of species outside the natural range, reliable and relevant information on the success of adaptation of introduced plants in urbanized areas of sparsely wooded regions is necessary. The purpose of the research is to justify the prospects of using species of the Juniperus genus based on the study of their biological potential under the conditions of introduction. The objects of research were species of the Juniperus genus: J. virginiana L., J. sabina L., J. communis L. and their forms introduced in dendrological collections of the Volgograd Region: Federal Research Center of Agroecology of the Russian Academy of Sciences, Cadastre No. 34:34:000000:122, 34:34:060061:10 and the Lower Volga tree breeding station, No. 34:36 0000:14:0178. The survey was conducted by the route method. The seasonal development rhythms of introduced plants were studied by the method of phenological observations. The characteristics of decorativeness, growth, and development of three species of Juniperus L. (J. sabina L., J. virginiana L., J. communis L.) in chestnut soils of the Volgograd Region, the assessment of reproductive ability, and the reproduction specifics of various cultivated species culture were revealed according to the methods of the Federal Scientific Center of Agroecology of the Russian Academy of Sciences. To determine the fruiting specifics of the study objects, the method of determining the mass of 1000 seeds was used; weighing was performed using a MASSA-K brand balance. For mathematical data processing, standard algorithms were used: the arithmetic mean with absolute and relative errors; the coefficient of variation to assess the characteristics of reproductive processes; the significance of differences between individual indicators. The characteristics of decorativeness, growth, and development of three species of Juniperus L. (J. sabina L., J. virginiana L., J. communis L.) in chestnut soils of the Volgograd Region are described. An assessment of reproductive ability is given, the features of reproduction of various cultivate species are revealed. According to the complex of the studied quantitative indicators of the seed material, it was found that the weight of seeds of Virginian juniper (Juniperus virginiana L.) (10 g) was almost half of the weight of common juniper seeds; the weight of the seeds of savin juniper (Juniperus sabina L.) (24 g) exceeded the weight of the seeds of common juniper by 1.5 times and that of Virginian juniper – by 2.5 times, in comparison with the standard data for common juniper (weight of 1000 pcs. – 16 g). A study of the fruiting specifics of Virginian juniper (J. virginiana) showed that 10.0 grams of conifer berries contained an average of 156 berries and 270 seeds, the yield of pure seeds was 15.84% of the fruit weight; 10.0 grams of cone berry of savin juniper (J. sabina) contained an average of 86 berries and 170 seeds, the yield of pure seeds was 20.09% of the fruit weight. It has been established that for landscaping the urban areas of the Volgograd Region, Juniperus virginiana is recommended to be used in alley stands, in clean groups, and as a second tier in the stands of Betula, Robinia, Pseudotsuga, Larix. Juniperus sabina is most valuable for decorating and strengthening slopes. In gardens and public parks, its use is limited, and when planting children's institutions, it is excluded (needles and fruits are poisonous). In the Volgograd Region, Juniperus communis and its forms can be used on poor sandy soils in group plantings, at the edges, and in molded hedges. Pyramidal forms are suitable in the level spaces, dwarf forms – for the design of rocky areas. The form with a golden color can be used in small groups on lawns.

This poisonous tree is native to southern Florida, the Keys, many of the Caribbean islands, Mexico, and Central America. Though it is poisonous to humans and many animals, iguanas eat the fruit and sometimes live among the tree’s limbs. It’s found along the seacoasts and in brackish swamps where it grows among mangroves. Each leaf has a small gland where the leaf joins the stem. The bark is reddish-to-grayish brown and cracked looking. Flowers inconspicuous, but the spikes or leafless stems that the flowers emerge from are visible. The fruit is bright-green and looks like a small apple. This 2-page fact sheet was written by Michael G. Andreu and Melissa H. Friedman and published by the UF Department of School of Forest Resources and Conservation, July 2012.

The article presents theoretical issues related to the interposition to Polish criminal procedure rules known as „prohibition of eating the fruit of the poisonous tree”. The study addressed the following issues: 1) the interpretation of the article 168a of the Code of Criminal Procedure in the version after 1 July 2015; 2) some of the issues related to the possible problems with applicaton of this rule, and 3) axiology and theoretical legitimacy of this regulation.

This paper investigates and realigns William Blake's short, little known but hugely enigmatic poem “A Poison Tree” along the indices of his complex relationship with the Christian doctrine. A Poison Tree published in 1794 is a poem that is little understood even today given its cryptic and aporic imagery laden with irony and allusion. The unbridled vindictive passions of Blake's double work draw unapologetically from his views on temperance and restraint. I shall try to read Blake's poem like a detective suspecting the worst in literature as in life – without deception there is no plot and no progression. That the poem inverts the schema of good and bad, God and devil, Heaven and Hell, friend and foe, speaker and listener, writer and reader is the major argument of the paper.

The article presents a critical analysis of the doctrine of "poisoned tree" through the prism of its interpretation by the European Court of Human Rights, scientific and practical approach to its formation by the case law of Ukrainian national courts, in particular, but not limited to, the Supreme Court. Given the requirements of current procedural legislation of Ukraine. An overview of the basic standards and aspects of the standard established by the institute of admissibility of evidence in their entirety and individually. The institute of admissibility of evidence has a long history of development. To date, the inadmissibility of evidence obtained in violation of procedural law is enshrined at the European judicial level in such judgments of the European Court of Human Rights as Gefgen v. Germany, Teixeira de Castro v. Portugal, and Sabelnik v. Ukraine. against Ukraine", "Nechyporuk and Yonkalo against Ukraine", "Yaremenko against Ukraine". This requirement for the admissibility of evidence is formulated in the above-mentioned Decisions quite succinctly and clearly, and is currently the subject of its implementation in both the law-making system and the law enforcement system. In the legal literature, there is still a discussion about the doctrine of "poisoned tree fruit", which is directly related to the recognition of derivatives of evidence obtained in violation of Ukrainian law - inadmissible. In the course of the study, uncertainty was found that the implementation of this doctrine is necessary only when the violation of the conditions of admissibility calls into question the reliability of the evidence. Therefore, it is necessary to determine whether there is a dependence of the admissibility and reliability of the evidence or the "fruits of the poisoned tree" appear under other conditions, when the evidence is declared inadmissible, regardless of this impact on the reliability.

The author considers the ten most important features of the evidence Institute in the Swiss criminal procedure. For the realization on the mentioned task the author analyzes the Code of Criminal Procedure and the doctrine of Switzerland: the rules concerning the evidence are the part of the criminal procedural law subject (the autonomous evidence law is not pointed neither doctrinal nor at the legislative level): as a subjects of the evidence can be recognised only the competent state authorities (the defender does not proof), the burden of evidence is a duty only of the the prosecution (there are no exceptions to this rule), the list of evidence is not exhaustive (the competent authorities shall take into account any significant procedural information, except the information which can not be seen as a proof by law) the freedom of evaluation of evidence without exception, normative consolidation of the theory of “the fruit of the poisoned tree” (if admissible evidence derived from the invalid, it also becomes invalid), the non-recognition of the theory of asymmetrie (the defense’s evidence and prosecution’s evidence are equal); the evidence check is not seen as a separate element of evidence (only the gathering and verification of evidence are pointed separately). The author also makes a comparison between the Swiss and Russian experience in solving a range of problems concerning the evidence. It is shown that the Swiss experience may be useful in further reforming of the evidence institute in Russian criminal proceedings with the aim of increasing its effectiveness. There are some proposals to improve the existing Russian legislation in this article. Among them, not exhaustive list of evidence in criminal proceedings and regulatory basis for the theory of “the fruit of the poisoned tree”, which are existing in Switzerland and in most countries around the world, deserve attention of the domestic legislator.