Court Cases Research Articles

Migrant sexual precarity through the lens of workplace litigation

AbstractTheories of precarity have emphasized workplace isolation, worker vulnerability and a lack of control over key features of work. Migration status has been viewed as an attribute that can exacerbate worker precarity, and sexual violence and bodily injury are viewed by feminist scholars including Violence Against Women scholars as sources of such precarity as well. Nevertheless, how the interaction of workplace conditions, migration status, gender and sexual violence impact migrants needs more attention. A new evidence base, the Migrant Worker Rights Database, explores workplace violations against migrants in 907 tribunal and court cases brought by migrants in Australia, Canada, the United Kingdom, and the United States over a 20‐year period. The data collected for this project demonstrates that female migrants experience higher rates of sexual harassment, sexual assault, sexual servitude, and sex trafficking when compared with men. Further, while such collectively termed “sexual violence” offenses comprise a small percentage of cases in the Database (1.3%), they are characterized qualitatively by key features that present a heightened form of sexual precarity when compared with citizens: misuse by employers of visa conditions, debt bondage, live‐in arrangements, entrapment and slavery, and the combination of sexual violence with economic infringements such as wage theft and physical assault. Sexual precarity, this paper argues, should be viewed as an overlapping and reinforcing form of workplace precarity that has distinctly sexual and bodily dimensions.

Disproportionality monitoring for special education and stakeholder practices in a post-affirmative action landscape

ABSTRACT In this article, we examine and explore how the recent US Supreme Court case on affirmative action within higher education will shape and contextualize disproportionate minority representation and its monitoring within a K-12 public school context for students with disabilities. That is, as the litigation and ultimate judicial decision shape how institutions of higher education advance affirmative action policies for the admission of racialized and ethnic minority college students, another unanswered question remains. Namely, how will K-12 public school districts both adhere to federal policy that mandates proportionate racial representation of students with disabilities within special education categories and support teachers and school systems with compliance to federal policy? Using a legal compliance focal point theoretical perspective, this article contextualizes the affirmative action conversation as one that must include guidance to education systems and teachers working to ensure federal compliance and racial equity within special education.

Money Laundering And Corruption Offences After The Constitutional Court Decision Number 77/PUU-XII/2014

The application to the Constitutional Court with the Constitutional Court decision number 77/PUU-XII/2014 was based on the dissinting opinion of Hakum Alecander Mawarta in the TPPU case of the Central Jakarta District Court with Case Number 10.Pid.Sus-TPK/2014/PN.JKT.PST. Based on this judicial review, the Constitutional Court stated that the existence of Article 69 in Law No. 8/2010, which states that law enforcement officials are allowed to investigate, investigate and examine ML/TF cases without proving the original crime, is questionable because it is not in accordance with the characteristics of ML/TF as a continuation of the original crime. Thus, there are juridical implications that will occur related to the prevention of ML, among others: potential acquittal of the defendant; violation of the principle of presumption of innocence, contrary to the concept of proof adopted in Indonesia and so forth. Of course, in this research, the author will reconstruct the placement of the Money Laundering Crime as Independent Crimes along with its legal implications in practice. This is because the placement of the Money Laundering Crime as Independent Crimes has given legal consequences to the legal system adopted in Indonesia, one of which is the Presumption of Innocence. This research is a descriptive analytical literature research using juridical-normative approach and qualitative deductive method. In doing so, it is concluded that the development of ML has experienced increasingly complex developments and legal breakthroughs that place ML as a stand-alone criminal offence.

Fair Game or Foul Play: Public Perceptions of Solicitor General Involvement in U.S. Supreme Court Cases

Fair Game or Foul Play: Public Perceptions of Solicitor General Involvement in U.S. Supreme Court Cases

In the Periphery: Ethical Considerations When Indirectly Involving Children in Research

ABSTRACT In the last decade, there has been an increased focus on child protection cases in the European Court of Human Rights. The heightened attention on child protection underscores the actuality of children’s rights, rendering it an interesting area for researchers in fields such as children’s rights, child protection, or international relations. All judgments from the Court are public. Research on social media data has shown that public data is not necessarily intended for the public. Moreover, in child protection cases, the child is rarely a part of the case. It is the biological parents against the domestic authorities. Nevertheless, the situation the case revolves around includes the child, making the child an indirect part of the judgment. There is little research on the ethical considerations of indirectly involving children in research on court judgments. However, there is abundant research on ethical considerations in researching public data, specifically social media data. By drawing on research on ethical considerations in the use of social media data, this article delves into the ethical consequences of including children indirectly in research. The article pinpoints crucial areas that require special attention from researchers and provides insights on navigating ethical challenges effectively.

Immigration Detention at Sea: maritime migration governance in Australia and the sanctioning of indefinite detention for the purpose of removal

Over the past four decades, maritime geographies have become prominent sites of migration governance. While there is important scholarly work on these spaces, charting changing techniques of control and containment, what continues to demand attention is the governance that works through systematically keeping people seeking asylum mobile at sea. This article focuses on Australia, examining the coerced mobilities that follow interdictions at sea and their carceral nature. I interrogate the High Court case, CPCF v Minister for Immigration and Border Protection, which addresses the extended maritime detention of 157 people seeking asylum in June 2014. Through analysing the language used in this case, such as the conclusion by the majority that “to detain” a person at sea mandates a concomitant duty “to take” that person somewhere, I highlight how coerced mobility has become central to Australia's strategy of maritime migration governance and how this has come to legitimate detention at sea without any clear time limitation. This will reveal the extent to which carcerality informs migration governance in Australia's maritime geographies.

The return of criminal cases for additional investigation: the problems of finding the truth

In the article, the author examines the issues of practical implementation of the institution of returning a criminal case by the court to the prosecutor. The relativity of the content of the truth and the degree of its achievement at various stages of the criminal process is substantiated. In accordance with this, the issues of ensuring the sufficiency of evidence and ensuring the possibility of considering the case in court in conjunction with the assessment of the quality of pre-trial proceedings are raised. The classification of the shortcomings of the preliminary investigation, entailing the appearance of grounds for returning the case to the prosecutor in accordance with Article 237 of the Code of Criminal Procedure of the Russian Federation, is given. The position of the prosecutor’s office on the return of cases from the court from the point of view of the purpose of this institution is presented. A brief comparative analysis of the stage of preparation of the case for a hearing in Russia and the countries of the Anglo-Saxon legal system is carried out, the positive experience of granting the court broad powers to verify the evidence base of the prosecution at the stage of trial is analyzed. Based on the generalization of the established law enforcement practice and using the comparative legal method, proposals are formulated to overcome existing problems in domestic criminal proceedings.

Himnuszperek a két háború közötti Csehszlovákiában Adalék a szlovákiai magyarok és a csehszlovák állam viszonyához

In the period of the First Czechoslovak Republic, Slovakia was an ethnically mixed territory, the scene of the meeting of Czechoslovak, Slovak, and Hungarian nation-building, among other things. From this point of view, the use of different national symbols, including national anthems, was a sensitive and much debated issue. This study attempts to outline the conflicts that the issue of national anthems had provoked between the state and its citizens, based on the archival records of county courts in Slovakia. The main focus of the paper is on the conflicts between the Czechoslovak state and the Hungarian population in Slovakia over the Hungarian national anthem. Based primarily on the county courts of the period and news reports in the contemporary press, the paper describes the court cases over the anthem and their outcomes. In doing so, it shows that the First Czechoslovak Republic, which was considered a liberal democracy, did not have a liberal attitude towards the use of symbols of national minorities at all.

The best interests of the child and the right of interested third parties to parental responsibilities and rights: RC v HSC 2023 4 SA 231 (GJ)

The South African post-constitutional era gave rise to the reframing of what was previously referred to as parental authority to parental responsibilities and rights. Throughout these developments, the best interests of the child remained a constant consideration, resulting in a move away from a parent-centred approach to a child-centred approach. In line with this child-centred approach, modern South African law recognises that children have the right to family or parental care. Recognition is also given to the subsequent fundamental principle that parents and the family perform a central role in a child's care and protection. However, analogous to global trends South African family structures have transformed and are no longer typically nuclear, but are characterised by a diversity of parental, family and community-based forms of caregiving. Children accordingly find themselves being cared for by persons who are not their biological parents. In this regard the position of the "interested third party" or so-called "co-holder of parental responsibilities and rights" is gaining increasing relevance. Although the role of interested third parties is recognised in domestic law, in the Children's Act, some uncertainty about the right of these parties to obtain parental responsibilities and rights over a child prevails. One such aspect is the right of a former life-partner to obtain parental responsibilities and rights over a non-biological child upon the dissolution of a life-partner relationship. A recent High Court case, RC v SC 2022 4 SA 308 (GJ) and its appeal namely, RC v HSC 2023 4 SA 231 (GJ) to a full bench of the High Court provides valuable insight into this regard and specifically on the approach taken by the courts about an application for parental rights and responsibilities to a non-biological child by an interested third party in terms of the Children's Act.

IMPLEMENTATION OF THE RULE OF LAW PRINCIPLE IN THE PRACTICE OF UKRAINE: CONCEPT, STRATIFICATION AND ECONOMIC JUSTIFICATION

The subject of the study is the segmental manifestation of the rule of law principle and its elements in the activities of justice authorities, courts and public associations, taking into account the economic basis of its influence. The purpose of the study is to examine the forms of manifestation of the rule of law principle and its individual elements in the activities of justice and court authorities, to clarify the role of the public in its practical application, and to identify opportunities for its economic support. Methodology. The study used general scientific and special methods of scientific knowledge: the method of system analysis, the dialectical method, the formal logical method, the structural and functional method, as well as a number of empirical methods. In particular, the method of comparison was used to determine the transformation of penitentiary bodies and their transformation into penitentiary justice bodies. The results of the study demonstrated the need for: qualitative consideration of the aspect of ensuring the correction of a convicted person after serving his or her sentence; involvement of representatives of civil society institutions in the resocialisation processes; and identification of potential ways to implement effective reforms that can increase the efficiency and fairness of the judiciary. Conclusion. The article reveals the relationship between the transformation of the penal system into the penitentiary system and the implementation of the rule of law in this area and its comprehensive enforcement. It is noted that the criminal executive system takes into account the aspect of ensuring the serving of sentences, and in the penitentiary system, which operates under the rule of law, the authors additionally identifies such a qualitative component as ensuring the correction of a convicted person after serving his/her sentence and his/her resocialisation. It was found that the economic rationale for the transformation of the judiciary based on the rule of law consists in reducing the costs of: court functioning due to the possibility of digitalization of the preparatory stages before the court hearing and the holding of court hearings in videoconference mode; reducing costs for the court apparatus through optimization of its functions; reducing the number of court cases due to active mediation and other possible options for resolving disputes peacefully, etc. It is noted that justice in judicial proceedings means not only formal compliance with the law, but also the exercise of rights and freedoms of individuals with due regard for equality, objectivity and impartiality. The authors prove that non-governmental organisations are an important institution capable of promoting the principle of justice as an integral element of the rule of law, since they ensure the right to apply to court and the right to protection of members and third parties. The role of the public in shaping the economic basis for reforms and the proper functioning of state bodies was also highlighted. It is noted that national legislation needs to be amended in terms of granting NGOs the right to apply to court in the interests of third parties, in particular, in cases where a person is unable to protect his or her rights for valid reasons. The study analyses the fundamental provisions on economic support for the implementation of the rule of law in various spheres of public relations.

PERBEDAAN MAKNA ALASAN PHK: IMPLIKASI HUKUM TERHADAP HAK-HAK PEKERJA DAN KEWAJIBAN PERUSAHAAN

Termination of Employment (PHK) or layoff is a significant action in the world of employment. Differences in the meaning of reasons for layoffs between workers and companies can be a source of complex conflict with significant legal enforcement. This research aims to analyze the differences in the meaning of reasons for layoffs between workers and companies as well as law enforcement regarding workers' rights and company obligations. The research method used is a descriptive analysis approach with reference to statutory regulations and court decisions regarding layoffs. Data was collected through literature studies, analysis of legal documents, and research of related cases in employment courts using a case approach. The research results show that differences in the meaning of reasons for layoffs between workers (Mr. ATNY) and companies (PT. Novell Pharmaceutical Laboratories) can be related to legal interpretation, factual assessment, or subjective perception. Workers may consider that the reasons for layoffs given by the company are invalid or unfair, while the company believes that these reasons are in accordance with applicable legal provisions. This difference in meaning can have a significant impact on workers' rights and company obligations. Therefore, efforts are needed to reach a common understanding regarding the legal interpretation of reasons for layoffs, so that it can help reduce conflict and increase fairness in layoffs.

Контроль за решениями и действиями органов исполнительной власти в арбитражном судопроизводстве

Analyzes the role of arbitration courts in regulating relations between the executive branch and business entities. The review covers the current problems faced by entrepreneurs when defending their rights in arbitration proceedings, and suggests ways to improve the existing system. Attention is focused on the need to adapt legislation and judicial practice to new economic and technological conditions. The importance of alternative dispute resolution methods, such as mediation, to reduce the burden on the judicial system. The need to optimize the procedure of consideration of court cases is emphasized, including by improving the qualifications of judges and developing new methodological approaches to their resolution.

On the Necessity of Implementing the Quality and Effectiveness Evaluation of Third-party Court Cases

The third-party court case quality and effectiveness evaluation has theoretical rationality different from the court 's internal self-quality and effectiveness evaluation in the court case quality and effectiveness evaluation, and has unique subject value attributes; however, the current internal self-evaluation system of the court has limitations in terms of evaluation elements such as subject, content, method, purpose and effectiveness, and cannot fully realize the functional requirements of the quality and effectiveness evaluation of court cases. The implementation of the third-party court case quality and effectiveness evaluation is not only in line with the value of judicial operation, but also has the value of the rule of law practice different from the self-quality and effectiveness evaluation within the court. Therefore, the implementation of the third-party court case quality and effectiveness evaluation has the necessity of theory and practice, and is an important part of the court case quality and effectiveness evaluation.

Dispute Resolution Through Online Mediation Based on Supreme Court Regulations

This article is motivated by the need for mediation to be carried out optimally to resolve cases in court. The purpose of this article is to explain the substance of mediation in the process of resolving divorce cases and the importance of mediation in resolving household disputes. The method used in this paper is the Normative method with a conceptual approach to analyze problem-solving from the aspects of legal concepts and values contained in norms. The data collection technique used in this paper is a documentation technique and the results are analyzed qualitatively. The research results show that the mediation regulations contained in PERMA which regulate mediation contain important substances that must be understood by the mediator and both parties. Mediation is important to carry out directly to minimize the occurrence of divorce and minimize disputes that may arise after the divorce occurs.

Vulnerability Through a Legal Lens: A Comparative Jurisdictional Analysis of the Law of Confessions and Vulnerable Suspects

This article considers the law of confessions in England and the United States of America Supreme Court's Fourteenth amendment cases, with a focus on suspects who are vulnerable. The question that is asked in the piece of work is whether the English statutory provisions and the decisions of the US Supreme Court provide sufficient protection to vulnerable suspects who falsely confess to crimes. A novel approach is adopted with this comparative analysis as it extends the knowledge base by examining vulnerability and the law of confessions within two jurisdictional parameters. A further contribution to knowledge can be seen as the paper provides a bespoke piece of legislation that affords protection to such individuals, and thereby adds to the current debate on vulnerability in the criminal justice system. Firstly, the work critically examine why vulnerable suspects will falsely confess to criminal acts. It will be established that vulnerable suspects may confess even if they have not been coerced, and this will be the foundational basis for the suggested reform: a vulnerable suspects confession should be excluded as a result of their characteristics or that such individuals should be provided with mandatory legal advice. The focus will then turn to the extant position in England, where it will be revealed that confessions will be excluded if they have been obtained by unfair practices or through inhumane or degrading treatment. It will also be recognised that the English jurisdiction affords limited protection to vulnerable suspects even though they are entitled to legal advice and an appropriate adult being present. The US Supreme Court's position will then be evaluated by chronologically critiquing the use of the due process clause in cases of confessions. It will be identified that the vulnerability of the individual can be considered in determining whether a confession should be excluded but cannot be utilised in isolation of other factors. The two jurisdictions will then be critically compared and the positive and negative aspects of the law in the jurisdictions will be evaluated. It will be established that neither England nor the US Supreme provides sufficient protection to vulnerable suspects and the law requires further refinement, by placing priority on mandatory legal advice and/or an opportunity to exclude the confession. A de novo remedial statutory provision for England is provided as an effective solution to the issue of vulnerability and false confessions.

REVIEW: Defending the right to confidential sources and whistleblowers

Journalists and Confidential Sources: Colliding Public Interests in the Age of the Leak, by Joseph M Fernandez. Routledge Research on Journalism Series. Abingdon, UK: Routledge, 2021. 287 pages. ISBN 9780367474126 IN 2015, media law professor Joseph M. Fernandez co-authored a comprehensive article for Pacific Journalism Review (Fernandez & Pearson, 2015) about the status of Australia’s shield law regime, drawing on his research to see whether it met journalists’ expectations and whistleblower needs in an era of unprecedented official capabilities. It didn’t, as can be seen from growing concerns over court cases that, according to the peak journalists’ organisation Media, Entertainment and Arts Alliance (MEAA), ‘clearly demonstrate Australia’s patchy and desperate journalist shields fail to do their job’.

Ethical Dilemmas and Countertransference in Legally Mandated Reporting of Fatal Child Neglect.

In the fall of 2019, a much-publicized court case brought to national attention the issues of patient-doctor confidentiality when it comes to reporting the deaths of newborns in the United States. It is unclear whether the recent overturning of Roe v. Wade will lead to more cases like this. This article discusses issues of countertransference, as well as the ethical and legal implications were it to be a psychiatrist, in active treatment of such a patient, who would be required to make such a report. More specifically, as in the publicized court case, the patient could be a minor at the time, receiving treatment from a child psychiatrist. The implications of such a case include how countertransference affects the perception of fatal child neglect compared to intentional neonaticide; the ethical dilemma of generating a mandated report with the goal of child safety when such a report could lead to real legal consequences for a minor child; and considerations regarding continued treatment of a patient after such a report is made. It is likely that countertransference, shaped by attitudes toward mothers and idealized views on mothering, may play a large role in all these circumstances.

Improving Control over Euthanasia of Persons with Psychiatric Illness: Lessons from the First Belgian Criminal Court Case Concerning Euthanasia(II)

Improving Control over Euthanasia of Persons with Psychiatric Illness: Lessons from the First Belgian Criminal Court Case Concerning Euthanasia(II)

Measuring due process and fairness in the child welfare court system

AbstractUpholding the fundamental rights of families during child welfare court cases is critical to ensuring equal access to justice. This article review research related to the due process measures in the Judicial, Court, and Attorney Measures of Performance (JCAMP). Studies of due process practices early in the case to avoid unnecessary involvement of families are presented. These represent divergent opinions on the role of the judge and arguments for the early appointment of parent attorneys. Future research is critical to understand practices which promote fairness and address the over‐representation of families of color in the child welfare system.

DIVERSION AS THE CASE RESOLUTION FOR CHILDREN IN CONFLICT WITH THE LAW WITHIN THE PERSPECTIVE OF LEGAL PSYCHOLOGY

Children have an important role in life, so children's problems are initially personal problems, namely the relationship between parents and their children. Children in conflict with the law are children who are in conflict with the law, children who are victims of criminal acts, and children who are witnesses to criminal acts. ABH must be viewed comprehensively, both sociologically, psychologically and formally juridically. If done carefully, we will achieve comprehensive protection of children's rights and human rights. The method used in this research is normative research with a statutory and psychological approach in analyzing the data. The existence of a child rights convention which contains international regulations which have been adapted into national law in the form of a law is often frightening when viewed from the perspective of "protecting behind the law". Diversion is mandatory at every level in Article 7 that at the level of investigation, prosecution and examination of children's cases in district courts, diversion must be attempted.