Case Judgments Research Articles

Koncept redovnog boravišta kroz odabrane izvore međunarodnog privatnog prava i jurisprudenciju Suda pravde Evropske unije - funkcionalni pristup nasuprot striktnog tekstualizma

The concept of habitual residence is an important connecting factor in contemporary EU Private International Law (EU PIL). In this paper, the author examines this concept through content analysis and comparative analysis of selected sources of EU PIL and the jurisprudence of the Court of Justice of the European Union (CJEU). The author inevitably refers to the Regulations Rome I and Rome II, which provide a conceptual definition of habitual residence of legal and natural persons (in the context of performing economic activities). Unlike the sources of law pertaining to personal status, these Regulations did not leave the concept of habitual residence indefinite. The author underscores the importance of recitals from the acquis corpus. Being part of the preamble of the sources of EU law, they serve as basic guidelines for the Court of Justice when providing guidance to national courts on criteria for determining what is to be considered a habitual residence in different situations. The author further points out to the positions taken by the Court of Justice in its judgments in cases C-80/19 and C-289/20, regarding the possibility of disposing of multiple habitual residences, as well as the position taken in the judgment of 27 April 2016 in case C -528/14 on the question of whether a natural person can simultaneously have a habitual residence in an EU Member State and in a third country. In the final remarks, the author presents key considerations on the functional approach to this concept in view of ensuring an autonomous, uniform and consistent definition.

Odgovornost operatora za povrede autorskog prava koje su počinili korisnici njegove platforme

The Court of Justice of the European Union has recently issued a judgment in the joined cases C-682/18 (YouTube) and C-683/18 (Cyando) relating to the operator's liability for copyright infringements committed by users of its platform within the meaning of Art. 3, paragraph 1 of Directive 2001/29 on the information society. In the cited cases of the Court of Luxembourg, there are two specific platforms being concerned: the popular video-sharing platform (YouTube) and the file hosting and sharing platform (Uploaded). The judgment was passed almost a year after the public defender's opinion had been published. In the meantime, exactly since June 7th 2021, a new liability regime for copyright infringement for certain internet platforms came into effect (Article 17 of Directive 2019/790 on copyright in the single digital market). Although the judgment was passed two weeks after Art. 17. Directive 2019/790 had entered into force, it was of great importance, especially considering the fact that on one hand, not all EU member states had implemented Art. 17 of Directive 2019/790, and on the other hand, the EU, through the Digital Services Act, was trying to modernize European regulations concerning the platforms regulation. In the paper, the author has, after referring to art. 17 of Directive 2019/790, analyzed the judgments in the combined cases of YouTube and Cyando, as well as the judgment of the Court of Justice of the EU regarding Poland's claim for annulment of Art. 17 of Directive 2019/790. The analysis of the judgment has shown that the regulations on copyright should establish a balance between the rights holders protection on one side, and exercising the basic rights such as freedom of speech on the other side.

Jurisdiction and Costs in Recent Inter-EU Cases of Démenti and Apology for Falsifying History

This study covers two issues concerning the intra-EU proceedings in the cases of personality rights infringement. The core of the analyzed matters are the special (alternative) jurisdiction and the costs of the proceedings. These problems are interesting both from the theoretical and the practical standpoints. The discussed judgments concern the dissemination of statements that constitute a historical falsification that is usually caused by using the expression Polish concentration camps instead of Nazi-German concentration camps. The CJEU recently address the issue of the special (alternative) jurisdiction based on Art. 7 (2) Brussels I Recast Regulation in such cases in the judgment from June 17, 2021, for the case C-800/19. This study analyses this judgment and the exclusion of jurisdiction based on ‘center of life interests’ in such cases for the ‘indivisible’ claims (e.g. the claim for apology). The problem of the costs is discussed from the perspective of the enforcement proceedings of foreign judgments in the intra-EU cases based on the German Supreme Court’s judgment from July 19, 2018 (IX ZB 10/18). The high costs of such proceedings based on the German Code of Civil Procedure were analyzed from the perspective of the access to court rule based on Article 6 (1) ECHR and the jurisprudence of EctHR.

Regspraak: Moving on thin ice – recent judgment in a deviation case a caveat to employers to exercise utmost caution when contemplating new appointments

Die regsberoep word deur etiese en professionele beginsels onderlê. Een van die beginsels wat in hierdie bespreking uitgelig word, is die van handhawing en beskerming van die publiek se persepsie van die regsberoep, onder andere om ’n goeie en eerbare beroep te wees. Dit kan negatief beïnvloed word indien litigasie tussen regspraktisyns as ’n vorm van binnegevegte beskou word en kan moontlik ’n interne krisis binne die professie skep. Alhoewel Solomon v Junkeeparsad (2022 3 SA 526 (GJ)) maar een voorbeeld van litigasie tussen regspraktisyns is, beklemtoon die saak, hoewel indirek, die konseptuele vraag of litigasie tussen regspraktisyns as ’n vorm van binnegevegte beskou kan word. Dit sal skadelik wees vir die persepsie van die regsprofessie indien sodanige litigasie ’n nuwe norm geword het en nou aanvaarbaar is binne die ontwikkelende professie in die moderne samelewing. In die aanspreek van hierdie vraag hou die outeur rekening met die feit dat in Suid-Afrika, soos in Australië en ander regsbestelle gebaseer op die Engelse “common law”, sprake is van onderskeidelike professies van die balie en die sybalie. Dié geskeie balies beïnvloed moontlik die regsverhouding tussen kliënte, prokureurs en advokate. Dit bepaal ook die bron van aanspreeklikheid vir die betaling van ’n advokaat se fooi. Alhoewel die bron van ’n prokureur se aanspreeklikheid in die verlede oor die algemeen as kontraktueel beskou is (in beide die Suid-Afrikaanse en die Australiese regspraktyk), rus ’n verpligting op prokureurs in Suid-Afrika om ’n advokaat se fooi te betaal wat nou weerspieël word in die gedragskode (soos vasgestel ingevolge artikel 35 van die Regspraktykwet 28 van 2014). ’n Prokureur het sowel ’n professionele as etiese plig om die verskuldigde betaling van derde partye se fooie (insluitend die van advokate) onverwyld te maak. ’n Versuim om hierdie plig stiptelik na te kom, reflekteer op swak bestuur van die prokureur se regspraktyk. Alhoewel ’n advokaat wel ’n reg het om regstappe in te stel teen iedere prestasieskuldenaar ook waar professionele fooie uitstaande is, rus daar ’n kollektiewe en etiese verantwoordelikheid op die lede van die regsprofessie om die beeld en reputasie van die professie te beskerm. Met hierdie aantekening dui die outeur daarop dat dit dalk tyd is om alternatiewe geskilbeslegtingsprosesse te vind om dispute tussen regspraktisyns, as lede van die regsberoep, aan te spreek.

Language Insensitiveness in the Court Judgements in Rape Cases of Nepal

Language Insensitiveness in the Court Judgements in Rape Cases of Nepal

Zdolność patentowa ludzkich embrionalnych komórek macierzystych i dopuszczalność prowadzenia oraz finansowania badań nad nimi, jako przykłady niespójności dotyczącej moralnej oceny danego zjawiska, w obrębie porządku prawnego Unii Europejskiej

Human embryonic stem cell research is a very promising area of human activity, which could lead to numerous breakthroughs in medicine. It also gives rise to many controversies mainly connected, but not limited to, the problem of exploitation and possible destruction of human embryos in the process of obtaining stem cells. The stance of European Union member states on the permissibility of such research is not uniform, it can however be financed (under some restrictions) from EU funds. By financing an area of activity the EU (or in fact any other institution) endorses such activity. However, in its judgement in case C-34/10 the Court of Justice of the European Union stated essentially that the exploitation of inventions based on human embryonic stem cells would be contrary to morality and ordre public, because the development of such inventions requires prior destruction or making use of an embryo. The described situation may be an example of an axiological inconsistency within the legal system of the EU, as its institutions clearly support an activity, not merely by tolerating it, but also by assigning funds to finance it, while at this same time, this activity is being regarded as immoral or threatening to ordre public, when it comes to granting patents. This article analyses current legal situation in regard to permissibility of human embryonic stem cell research within the EU and to the patentability of human embryonic stem cells and processes of obtaining them, in order to determine whether such inconsistency actually exists and what could be the possible consequences if it does exist.

청소년 살인범죄 피해자 재피해화 연구

This study aims at identifying re-victimization (repeated/multiple victimization) that can occur to victims of violent crimes. For this purpose, a total of 61 judgments of juvenile homicide cases were collected from 2012 to 2020, and among them, 68 cases of juvenile defendants, including accomplices, were used as research data in 49 cases excluding the judgments of the appeals court. As a result of the analysis, it was confirmed that 48.6% of the victims suffered re-victimization out of all cases, and the ratio of re-victimization was particularly high when the victim and the perpetrator had the friend relationship (housemate after running away from home, schoolmate, etc.). Assault and sexual offenses were the most common types of victimization, and as an important key factor, the greater the number of accomplices in a case, the higher the likelihood of re-victimization. Through this, the significance of the study, discussion, and policy proposal were suggested.

TINJAUAN YURIDIS TERHADAP PEMBATALAN PERKAWINAN DI PENGADILAN AGAMA BUKITTINGGI

This study aims to comprehend the implementation process, judgment analysis, and legal consequences of marriage annulment (case number 09/Pdt.G/2012/PA.Bkt) in Bukittinggi Religious Court. This was a field research using descriptive method and qualitative approach. Data sources were the interviews with Bukittinggi Religious Court judges, case judgment document, and other supporting documents. The result showed that marriage annulment process in Bukittinggi Religious Court was carried out in several stages in accordance with applicable regulations. The judgments referred to the Marriage Law, Government Regulation No. 9 of 1975 concerning the Implementation of Marriage Law, and the Compilation of Islamic Law. The judgment did not mention the legal consequences for children, property, and third parties because the marriage did not last long. However, those legal consequences certainly need to be discussed, namely the law does not apply retroactively to children and third parties, and inherited property must be returned to its original owner.

Problemy związane z tzw. konstrukcją ciągłości przestępstwa w odniesieniu do instytucji prawa karnego procesowego – res iudicata oraz zakazu ne bis in idem

Przemysław Krawczyk discusses the impact of institutions related to the continuity of a crime on the substantive validity of judgments in criminal cases and the ne bis in idem prohibition that flows from it. The study presents the views of doctrine and judicature which treat the scope of the validity of substantive judgment in relation to conduct (acts) committed in the conditions of continuity. It should be noted at the outset that positions on this issue tend to be diametrically different. Moreover, Krawczyk points out how important it is to set temporal limits to the continuity of an offence. This issue is of considerable importance from the point of view of the substantive validity of a ruling issued in a criminal trial, because incorrect or insufficiently precise delimitation of these limits may result in a violation of some fundamental principles of criminal law, both substantive and procedural.

Case C-848/19 P: Germany v Poland and its outcomes for EU energy sector: an extended case note on the European Court of Justice judgment in the OPAL case

Abstract The European Court of Justice (ECJ) judgment in the so-called Ostsee-Pipeline-Anbindungsleitung (OPAL) case on 15 July 2021 dismissed Germany’s appeal on the previous European Union (EU) General Court’s decision, which focused on the need for considering national interests of EU Member States and the interests of the Union itself in the decisions by the EU institutions in energy sector to acknowledge the solidarity principle provided in the Treaty on the Functioning of the European Union. This decision found a significant interest among academicians and legal practitioners and raised numerous discussions, since it is still not clear what are the exact criteria on application of this principle, especially in relation to such ambiguous energy notions as ‘security of supply’. The presence of the geopolitical context and direct impact of the decision on the volumes of Russian gas transported via the Nord Stream pipeline also makes this case extremely complex and raises some additional questions regarding the impact on external gas supply to the EU. Moreover, the statement of the Advocate General on the applicability of the solidarity principle to all the other objectives of EU energy policy (not limiting to the scope of security of gas supply), which was also supported by the Court, brings many additional aspects to be considered with regards to the impact of the OPAL case on EU energy sector. Therefore, this case note article undertakes a critical analysis of the recent ECJ judgment and Advocate General’s opinion to identify some gaps that are still not clarified and to estimate the possible outcomes of the judgment on the future of EU energy sector development.

Case Judgment: England & Wales - Bates v Post Office Ltd (No 4: Recusal Application) Judgment by Coulson LJ

Case citation: 
 Bates v Post Office Ltd (No.4: Recusal Application) Judgment by Coulson LJ on the application by the Post Office Limited to appeal the recusal decision, 9 May 2019 (A1/2019/0855), Court of Appeal, not reported, Supplement, 18 Digital Evidence and Electronic Signature Law Review (2021)

Case Judgment: England & Wales - Bates v Post Office Ltd (No 3: Common Issues) Judgment by Coulson LJ

Case citation:
 Bates v Post Office Ltd ((No 3) Common Issues) Judgment by Coulson LJ on the application by the Post Office Limited to appeal against the decision in Bates v Post Office Ltd ((No 3) Common Issues) [2019] EWHC 606 (QB), (Case No A1/2019/1387/PTA), Supplement, 18 Digital Evidence and Electronic Signature Law Review (2021)

Judgment on Foreign Soldiers' Immunity for War Crimes Committed Abroad (BGH)

On January 28, 2021, the German Federal Court of Justice, or Bundesgerichtshof (BGH), Germany's highest court of ordinary jurisdiction, delivered its judgment in Case 3 StR 564/19 pertaining to questions of universal jurisdiction over international crimes and the extent to which foreign soldiers would be barred from prosecution in Germany based on claims of (functional) immunity for war crimes committed abroad. The decision strikes at the heart of a debate where such exceptions to immunity (ratione materiae) are yet to be uniformly agreed upon at an international level; it also comes on the verge of a number of related judgments that are pending both in German and other European courts. In the present case, the BGH held that according to the general rules of international law, criminal prosecution in Germany for war crimes committed abroad would not be precluded based on the notion of functional immunity, “when the acts have been committed by a foreign, lower-ranking defendant in the exercise of foreign sovereign activity.” Neither the BGH nor Germany's supreme guardian of the “Basic Law,” the Federal Constitutional Court, or Bundesverfassungsgericht (BVerfG), has previously pronounced itself on questions of functional immunity in criminal proceedings.

Famine, Affluence, and Amorality

I argue that the debate concerning the nature of first-person moral judgment, namely, whether such moral judgments are inherently motivating (internalism) or whether moral judgments can be made in the absence of motivation (externalism), may be founded on a faulty assumption: that moral judgments form a distinct kind that must have some shared, essential features in regards to motivation to act. I argue that there is little reason to suppose that first-person moral judgments form a homogenous class in this respect by considering an ordinary case: student readers of Peter Singer’s “Famine, Affluence, and Morality”. Neither internalists nor externalists can provide a satisfying account as to why our students fail to act in this particular case, but are motivated to act by their moral judgments in most cases. I argue that the inability to provide a satisfying account is rooted in this shared assumption about the nature of moral judgments. Once we consider rejecting the notion that first-person moral decision- making forms a distinct kind in the way it is typically assumed, the internalist/externalist debate may be rendered moot.

Portrayal of Aasia Bibi Blasphemy Case: A Comparative Analysis of News Headlines in Pakistani Newspapers

Language is a tool used for the social construction to frame public opinion. The study highlights that newspapers shape, reshape and manipulate the news headlines by representing them differently to achieve the desired objectives. This paper aims to investigate the coverage of Pakistani newspapers on Aasia Bibi’s acquittal decision by the Supreme Court of Pakistan. Content analysis considering Dijk Model and Framing Theory was conducted for the purpose. Unit of analysis was the news headlines of four famous dailies of Pakistan i.e., Daily Dawn, The Nation, Daily Jang and Daily Ummat published in the week of judgment of Aasia Bibi Case. Results revealed that the newspapers portrayed the same issue differently with the distinct discursive techniques. The Nation used lexical choices and emotional phrases to mold public opinions. Comparatively, Jang and Dawn were more objective and sensible in publishing its news headlines

Transgender and the Right to Employment in India: Analysing the Trajectories of Discrimination

<p>This research aims to investigate the trajectories of discrimination these communities face in the employment sector. While doing so, the authors have emphasized that despite a clear mandate of ‘Right to Work’ in the Constitution of India, policymakers, governments, and the Indian judiciary too has been keen only on laying down framework only concerning ‘Rights at work.’ In this sense, the authors opine that India presently lacks a clear employment non-discrimination framework. Even almost all the labor laws of India stipulate rights and duties post-recruitment scenario. There is an apparent lack of pre-recruitment guidelines. In this light, the authors see the Supreme Court’s recent judgment in the NALSA case recognizing the Transgenders as ‘third gender’ and the efforts of the Indian Parliament to frame a law on the protection of the rights of the transgender people as a silver lining in the cloud. This paper highlights the underpinnings of this development by still emphasizing that something needs to be done more on the front.</p><p> </p><p><strong> </strong><strong>Keywords:</strong> Transgenders; Employment; India.</p>

PRILJ: an efficient two-step method based on embedding and clustering for the identification of regularities in legal case judgments

In an era characterized by fast technological progress that introduces new unpredictable scenarios every day, working in the law field may appear very difficult, if not supported by the right tools. In this respect, some systems based on Artificial Intelligence methods have been proposed in the literature, to support several tasks in the legal sector. Following this line of research, in this paper we propose a novel method, called PRILJ, that identifies paragraph regularities in legal case judgments, to support legal experts during the redaction of legal documents. Methodologically, PRILJ adopts a two-step approach that first groups documents into clusters, according to their semantic content, and then identifies regularities in the paragraphs for each cluster. Embedding-based methods are adopted to properly represent documents and paragraphs into a semantic numerical feature space, and an Approximated Nearest Neighbor Search method is adopted to efficiently retrieve the most similar paragraphs with respect to the paragraphs of a document under preparation. Our extensive experimental evaluation, performed on a real-world dataset provided by EUR-Lex, proves the effectiveness and the efficiency of the proposed method. In particular, its ability of modeling different topics of legal documents, as well as of capturing the semantics of the textual content, appear very beneficial for the considered task, and make PRILJ very robust to the possible presence of noise in the data.

The impact of minimal versus extended voir dire and judicial rehabilitation on mock jurors’ decisions in civil cases.

Objectives: Three experiments tested the utility of minimal versus extended voir dire questions in predicting mock jurors’ verdicts and damage awards, and whether the biasing impact of their preexisting attitudes on case judgments could be reduced by judicial rehabilitation. Hypotheses: We hypothesized that extended voir dire questions would be more predictive of case judgments than minimal voir dire questions. We hypothesized that judicial rehabilitation would not reduce this impact of preexisting attitudes on case judgments. Method: Across three experiments, each focusing on a different civil case (insurance bad faith, wrongful birth, medical malpractice misdiagnosis), online participants (N=2,041; 62% female; 77% White, 9% African American, 6% Asian/Pacific Islander, 6% Hispanic or Latino/a; Mage=40) were paid Mturk workers. They were randomly assigned to experience (a) no voir dire, minimal voir dire focusing on previous legal experience and self-identification of biases, or extended voir dire focusing on specific attitudes about civil litigation, parties, and laws, before judging the case and (b) no judicial rehabilitation, or judicial rehabilitation. Participants read a civil case, made case judgments, and completed bias awareness measures. Results: Demographic information and minimal voir dire questions did not predict case judgments, but the majority of extended voir dire responses predicted verdicts and damage awards. Judicial rehabilitation did not reduce the biasing impact of their preexisting attitudes on case judgments—but did result in mock jurors reporting that they were less biased, despite judicial rehabilitation not actually reducing their bias. Conclusions: Attorneys need the opportunity during voir dire to ask jurors about specific attitudes that might bias their decisions because relying on jurors’ self-identification of their own biases has little utility. Further, although judicial rehabilitation might make jurors think that they are less biased, it may not actually reduce the impact of their preexisting attitudes on their case decisions. Public interest statement: Contrary to popular belief, juror biases are not likely to be cured by judicial rehabilitation, and might backfire by creating the illusion in jurors that they are unbiased. Although very few mock jurors were able to self-identify things that might bias them when asked general questions in voir dire, they were willing to admit specific attitudes that biased their verdicts and damage awards when asked. Thus, we suggest reducing bias on juries by allowing attorneys to ask specific, detailed voir dire questionnaires crafted by the parties to streamline the jury selection process and remove jurors for cause or via peremptory challenges, rather than relying on “quick fixes”, such as general questions that ask jurors to self-identify their own bias or judicial rehabilitation.

A Binary Logistic Regression Model to Unprosecuted Cases of Assisting a Cybercrime

Nowadays, there are more and more cases of assisting a cybercrime, and the cost of investigation is relatively high. After the suspects were brought back to the case, a large number of such cases were deemed non-prosecution for various reasons, which caused a certain waste of judicial resources. Through the empirical analysis of 100 non-prosecutions and 100 judgments of cases of assisting a cybercrime, this article explores the influencing factors of the review and prosecution results of such cases, and builds a binary logistic regression model to predict them, with a view to provide reference for the public security organs to better handle such cases.

Mononormativity and Related Normative Bias in the UK Immigration System: The Experience of LGBTIQ+ Asylum Seekers

This article examines the impact that different normative understandings of sexuality and relationships have on LGBTIQ+ people’s experience of the UK Immigration System, with a particular focus on mononormative conceptions that privilege forms of coupledom. By examining legal regulations and case judgments, the mononormative bias is shown to disadvantage LGBTIQ+ asylum seekers and make it difficult for those not seen to be in long-term romantic relationships to have their sexuality acknowledged and their claims for asylum upheld. The article considers how mononormativity intersects with heteronormative stereotypes and narrow homonormative prescriptions of gay identity such as “coming out” or expressing particular lifestyle choices. Taken together these normativities combine in a culture of disbelief in the immigration system that negates the self-identification of LGBTIQ+ asylum seekers and refugees by requiring them conform to norms that do not reflect the diversity of queer lives and experiences.