Final Court Research Articles

Судебный штраф за нарушение сроков судебной экспертизы

The problem of the appointment of a court fine for violation of the terms for the provision of the results of the examination (Article 55 of the APC RF) is investigated. It is argued that the nature of the harm does not correspond to the extent of the material and legal responsibility. It is proved that the appointment of a court fine is repressive in nature. It is proposed to synchronize the tort and the amount of the sanction, in accordance with the principles of arbitration proceedings, by clarifying the legislative technique.

Доходы российской казны на материалах дербентского гарнизона Низового корпуса

Introduction. The paper deals with one of the aspects of the economic policy of the Russian Empire in its Peri-Caspian provinces, annexed as a result of the Persian campaign of Peter the Great. The aim of the study is to analyze the main income items of the imperial treasury based on the materials of the Derbent garrison of the Lower Corps, to establish the share of income received in Derbent in the structure of all income of the Lower Corps. Tasks: to characterize all income sources of the Derbent garrison, to show the activities of commandants and other military leaders in streamlining the income structure, in replenishing the imperial treasury, to consider the interaction of the Russian authorities of Derbent with foreign merchants and domestic salesmen, to describe the daily life of the garrison in Derbent. Methods and materials. The study is based on the archival documents from the Central State Archive of the Republic of Dagestan, mainly from fond 18 “Derbent commandant”, most of which are introduced for the first time. Additionally, the modern achievements of historical science on the subject have also been considered. The methods of the study are the following: the principles of historicism and objectivity, an integrated approach, a systematic method, methods of criticizing historical sources. Based on the analysis of the documentary material, it was possible to restore the picture characterizing the everyday life of the military personnel in the Derbent garrison of the imperial army. Analysis. The fiscal activity inside the Derbend garrison was controlled by the commandant, whose duties, in addition to military-political ones, included collecting taxes and fees, reporting on them to the central imperial authorities and administration. The amount of incomes for the reporting periods are described in detail, the role of Derbent customs in replenishing the Russian treasury and the trade of the Derbent administration with foreign merchants are shown. Considerable emphasis is put to the activities of the military leadership of the Lower Corps and the Derbent Garrison, directly aimed at increasing financial revenues of the imperial treasury. Results. As a result of the study, valuable archival documents were introduced into the scientific circulation, reconstructing the daily life of the Derbent garrison, the main sources of income in this garrison were identified. It was established that the revenues of the imperial treasury in the Derbent garrison were clearly differentiated and structured. Customs duties accounted for more than half of the revenue in Derbent, while the other part was collected from the sale of wine, vegetables, oil, and court fines. The “Persian” incomes were spent on salaries and remuneration to the Caucasian political elite loyal to the Russians, to keep the amanates (hostages) from Caucasian rulers, to pay wages to masters for the repair and reconstruction of fortresses, to maintain postal communications, etc. Despite the emperor’s ambitious plans for the economic development of the “newly conquered” former Persian provinces, many of the projects he started were not completed and scraped after his death. A pressing example of it would be the abandonment of the construction of the Derbent port enclosed from sea storms.

ИСТИННОЕ МЕСТО СУДЕБНОГО ШТРАФА В КОНСТРУКЦИИ УГОЛОВНОГО ЗАКОНА

The article is devoted to the judicial fine, which was fixed in the Criminal Code of the Russian in July 2016 (Article 762 , Chapter 152 of the Criminal Code of the Russian Federation). The content of these normsnovels indicates a deviation of the legislator from the postulates developed in the science of Soviet criminal law on the essence of criminal responsibility and other measures of a criminal legal nature. This points to the need for an in-depth doctrinal study of the judicial penalty. The purpose of the work is to determine the essence of the court fine and its place in the design of the normative legal act. In the course of the study, it is concluded that a court fine is actually a measure of criminal liability. It follows from this that the consolidation of the legal phenomenon under consideration in the section devoted to other measures of a criminal legal nature can be considered a violation of the logic of structuring and unifying the provisions of a normative act. The conclusion scientifically substantiates the affiliation of the judicial fine to the institution of exemption from punishment and its consolidation in Chapter 12 of the Criminal Code of the Russian Federation.

Court fine as another measure of a criminal-legal nature in conditions of protocolary legal uncertainty

Court fine as another measure of a criminal-legal nature in conditions of protocolary legal uncertainty

Stripping the Gears of White Supremacy: A Call to Abate Reliance on Court Fines & Fees and Revitalize State and Local Taxation

Stripping the Gears of White Supremacy: A Call to Abate Reliance on Court Fines & Fees and Revitalize State and Local Taxation

Widening the Use of Mediation in the Domestic Criminal Justice System

In Hun­gary, crim­inal me­di­ation is avail­able for crimes against per­sons, prop­erty and traffic of­fences. The legal re­quire­ment is, on the one hand, that the per­pet­rator ad-mits to the crime and, on the other hand, that the per­pet­rator com­pensates for the dam­age caused, pun­ish­able by im­pris­on­ment of up to three years, within the frame­work of the me­di­ation pro­ced­ure. If the above con­junct­ive con­di­tions are met, the of­fender is not pun­ish­able. The legal reg­u­la­tion of the me­di­ation pro­ced­ure in Hun­gary has un­der­gone changes in the last few years which jus­tify the con­clu­sion that the ex­ten­sion of the me­di­ation pro­ced­ure is a le­git­im­ate le­gis­lat­ive ob­ject­ive in Hun­gary. This is evid­enced by the fact that crim­inal me­di­ation can be used even if the of­fence in ques­tion is not pun­ish­able by law with a prison sen­tence of more than five years. In this case, the sen­tence may be re­duced without limit. However, under the cur­rent na­tional le­gis­la­tion, crim­inal me­di­ation is ex­cluded if the of­fender is a re­peat of­fender, and it is not avail­able if the of­fender is serving a cus­todial sen­tence with a final court de­cision. Me­di­ation is there­fore still a lim­ited in­sti­tu­tion, des­pite the con­tinu­ous de­mand for its ex­pan­sion, and its pos­it­ive be­ne­fits, such as the joint pro­cessing of trauma ex­per­i­enced by the vic­tim and the of­fender, the pos­sib­il­ity of re­par­a­tion, or the pro­mo­tion of so­cial bond­ing, are not fully in­teg­rated into the re-in­teg­ra­tion policy of pris­ons. In­stead, pris­ons use the so-called main­stream re­in­teg­ra­tion tools, with par­tic­u­lar at­ten­tion to edu­ca­tion and forms of em­ploy­ment.

The concept and legal nature of a court fine

The concept and legal nature of a court fine

Determination of the place of consideration of the application for the appointment of a court fine

Determination of the place of consideration of the application for the appointment of a court fine

Some theoretical aspects and features of supervision over the termination of a criminal case or criminal prosecution in connection with the imposition of a court fine

Some theoretical aspects and features of supervision over the termination of a criminal case or criminal prosecution in connection with the imposition of a court fine

Declaring the act unconstitutional and extraordinary review of the court decision: problems of law enforcement.

The article considers the problem of the balance between the principle of legal certainty and effective protection of individual rights in court cases, where the trial ended with a final court decision, in light of declaring laws and other acts unconstitutional. The issue of validity of decisions of the Constitutional Court of Ukraine in time is therefore discussed in the article. The authors emphasize Supreme Court statement that the possibility to review a court decision in exceptional circumstances (if it is not executed only) is based on the principle of legal certainty, and the unconstitutionality of the law is important, first of all, as a general decision. It determines the legal position for resolving the following cases, and not as a basis for retrospective application of the new legal position and thus change the state of legal certainty already established by the final court decision. The article points out that declaring the law unconstitutional indicates a mistake on the part of the state and undermines confidence in the court decision. The public interest in eliminating doubts about the legality and validity of a court decision prevails over the public interest, which is manifested in compliance with the principle of legal certainty. It is underlined that the duty of the state is to ensure human rights and freedoms within the framework of the right to judicial protection and fair trial. The purpose of extraordinary procedures for reviewing a court decision is to restore violated constitutional rights and freedoms. Legal provisions on the possibility of reviewing not executed court decisions only, limit the guaranteed right to judicial protection and makes it impossible to implement the decisions of the Constitutional Court of Ukraine. Constitutional complaint is equated to a complaint against the state to the European Court of Human Rights (he ECtHR), as it concerns the application of an unconstitutional law by a court (state). Procedural Codes of Ukraine stipulate that if the ECtHR finds the violation of Ukraine’s international obligations in resolving a case by a court, it is the ground for reviewing a court decision that has entered into force and is final. Therefore, the conclusion is made that the law is inconsecutive. In the light of the principles of the rule of law and responsibility of the state before a person there is a need to change the legislative regulation on review of court decisions in connection with the constitutionality of a law, other legal act or their separate provision, applied (not applied) by the court in the case. It is offered to introduce the institute of circumstances of a substantial and compelling character that influenced the outcome of the case as the ground for reviewing a court decision in exceptional circumstances – declaring the act unconstitutional, to Ukrainian procedural codes.

Postupak za ostvarivanje prava lica neosnovano lišenog slobode ili neosnovano osuđenog

The Criminal Procedure Code of the Republic of Serbia provides special proceedings for exercising the rights of a person wrongfully deprived of liberty or wrongfully convicted (Chapter 25, Articles 583-595 CPC). The introduction of such proceedings in the Serbian criminal legislation is a consequence of an enormous number of acquittals, particularly in cases where the defendant has been subjected to the most serious security measure aimed at ensuring presence of the accused person in criminal procedure. These proceedings appeared to be necessary for the purpose of exercising the wrongfully detained or convicted person's right to compensation for damage. In particular, it refers to situations where the final court decision was reversed and the person was acquitted after lodging an appeal for extraordinary legal remedies. In such circumstances, the procedure includes two interconnected stages: initiating an administrative proceeding and initiating court proceedings. Thus, if the injured party does not exercise the envisaged rights on the basis of the submitted request for initiating the administrative procedure, he/she is entitled to initiate court proceeding before the competent court against the Republic of Serbia as a responsible party. By introducing the possibility of exercising the injured party's rights in administrative proceedings, the legislator's primary goal when prescribing this procedure was to ease the courts' workload in handling collective lawsuits. In that context, the aim of this paper is to describe the process of initiating and conducting both phases of these proceedings, and to point out to some omissions in the work of the Damage Compensation Commission in the course of administrative proceedings, which are detrimental to the injured party and directly contrary to the legislator's intention. For the purpose of precluding future omissions, the author draws attention to the main drawbacks of the entire procedure.

Court Fine as an Alternative to Criminal Liability

In 2016 the Criminal Code of the Russian Federation was supplemented by article 762 , i.e. an innovative norm on exemption from criminal liability with a court fine. Its novelty is that it provides for: 1) conditional release from criminal liability; 2)the use of a coercive measure against a person who is considered innocent by virtue of the presumption of innocence; 3) its use is associated with the payment of a sum of money to the budget. In addition, the consent of the victim is not required for its application. In practice, there is no uniformity in the interpretation of the new law. The purpose of the paper is to summarize the practice of applying the new norm, conceptualize it and give recommendations on its application. The paper concludes that a court fine is not a liability. Agreeing to pay money to the budget and paying it is a "good deed", a form of making amends for the harm caused by a crime to society as a result of law and order violation. This may be sufficient to release you from liability if there is no victim. The rule on a court fine supplements the norms of the Criminal Code of the Russian Federation on active repentance (article 75) and reconciliation with the victim (article 76) and is especially relevant in the absence of the victim, when the application of these articles is problematic. If there is a victim, the harm caused to him (including moral) must be compensated. The fact that the consent of the victim and the Prosecutor is not required for the application of a court fine does not mean that the court has the right to ignore their opinion.

Criminalization of Voyeurism and ‘Upskirt Photography’ in Hong Kong: The Need for a Coherent Approach to Image-Based Abuse

Abstract Many jurisdictions have enacted laws in recent years to criminalize the use of image-based technologies to non-consensually observe a person’s private parts or a person engaging in a private act (voyeurism), to record images of a person’s private parts (‘upskirt photography’), or to possess, disseminate, or threaten to disseminate intimate images (‘revenge pornography’). No such offences have yet been adopted in Hong Kong, and the 2019 decision of the Final Court of Appeal in Secretary for Justice v Cheng Ka Yee has closed the door on using the existing offence of access to computer with criminal or dishonest intent to prosecute some of these behaviours. In response, the Law Reform Commission of Hong Kong expeditiously prepared a report in 2019 calling for the enactment of offences to cover voyeurism and upskirt photography. The report does not, however, consider the need for offences to cover the related behaviour of non-consensually possessing, distributing, or threatening to distribute imitate images. This article, therefore, examines the need for, and advantages of, new offences to cover such behaviours. Based on a review of newly created offences in various Australian jurisdictions, England and Wales, and Singapore, a recommendation for reform in Hong Kong is developed.

ПОСТАТЕЙНЫЙ КОММЕНТАРИЙ К АРБИТРАЖНОМУ ПРОЦЕССУАЛЬНОМУ КОДЕКСУ РОССИЙСКОЙ ФЕДЕРАЦИИ (ГЛ. 28.1)

This article is the author’s text of the article-by-article commentary to the Arbitration Procedure Code of the Russian Federation, which has not been previously published in the legal literature. It takes into account the latest changes in procedural legislation, including on the delimitation of jurisdiction over corporate disputes between arbitration courts and courts of general jurisdiction, conciliation in corporate disputes and their arbitrability, notifying participants in a corporate dispute about litigation in such a dispute and determining the procedural status of participants in a corporate dispute. The authors from the standpoint of the modern doctrine of the civil law process interpret the articles of Chapter 28.1 of the Arbitration Procedure Code of the Russian Federation, which regulate the consideration of cases by arbitration courts on corporate disputes. The content of the commented norms is revealed in their relationship with other norms of the APC RF, provisions of other federal laws and current legal positions of the Supreme Arbitration Court of the Russian Federation, the Supreme Court of the Russian Federation. The allocation by the legislator of the procedure for considering corporate disputes in a separate chapter of the APC of the Russian Federation is due to the nature of the disputed material legal relations and the task of considering such cases using procedural features that make it possible to better ensure the observance and protection of the rights and legitimate interests of participants in a corporate dispute. These procedural features are established by the legislator in terms of determining the competence of arbitration courts to consider corporate disputes, requirements for a statement of claim (statement) in a corporate dispute, providing access to information about a corporate dispute, conciliation in a corporate dispute, application of interim measures, time limits for performing certain procedural actions, including time limits for appealing judicial acts, composition of court costs, grounds for imposition and amounts of court fines. These features are disclosed by the authors during commenting on the relevant provisions of the law.

Symbolic Significance of the Sword in the Hero’s Hand: Beowulf, The Nibelungenlied, El Poema de Mio Cid, Volsunga Saga, and Njál’s Saga

Abstract The medieval hero cannot be imagined without a significant sword. Swords often have names and a mysterious identity. Beowulf cannot kill Grendel’s mother with his own sword, but has to resort to some of the ancient weapons lying in her lair. In the Nibelungenlied, Siegfried’s sword gets into the hand of his nemesis, Hagen, after he has murdered him. Siegfried’s widow, Kriemhild, finally takes it from Hagen and decapitates him. This, however, means her own death. In the Old Spanish El Poema de Mio Cid, the protagonist conquers two most valuable swords, and he passes them on to his sons-in-law, although they prove to be unworthy of those gifts. In the final court trial, Rodrigo Diaz demands those two swords back from the villains, and he triumphs over them. Once he has the swords back in his possession, he can proceed and destroy his enemies in this trial. Swords are not simply weapons; they are synecdoches of the hero himself, and they have the power to sing before or during battle, which is often commented on in the Old Norse sagas. This article will examine how heroic poets treated the sword as a pars pro toto of the hero and hence as agents of superpower, exacting justice and providing honor.

Особливості правосуддя Республіки Хорватія у сфері військових злочинів (за матеріалами «миклушевського процесу»)

У статті розглянуто переслідування та покарання військових злочинців у Республіці Хорватія за підсумками сербсько-хорватської війни 1990-х років. Описано процес такого переслідування на прикладі матеріалів так званої «миклушевської справи». Висвітлено основні проблеми даного процесу. Виділено його особливості, характер і тривалість. Показано еволюцію даного судового процесу крізь призму зміни поведінки органів правосуддя Хорватії, заходи хорватської влади задля вирішення цих проблем. Проаналізовано долі головних учасників процесу. Встановлено, що «миклушевська справа» виявилась невдалою для тогочасного хорватського правосуддя, показавши його недосконалість. Показано значення цього процесу для сучасної України.

HALLÂC’IN MAHKEME SÜRECİ VE KATLİNE FETVÂ VERENLER

Tasavvuf tarihinin önemli isimlerinden birisi olan Hallâc, fikir ve düşünceleriyle tarihî süreç boyunca hep canlı kalmıştır. Tarihî süreçte Hallâc’ın fikir ve düşüncelerini, hâl ve sözlerini destekleyip savunanlar olduğu gibi bunlara karşı çıkan, aşırı tepki gösteren ve sert eleştiri yöneltenler de hep olmuştur. Bu iki yaklaşımın dışında bazıları ise kesin bir görüş belirtmeyerek sükûtu ihtiyar etmiştir. Hallâc, Abbâsî iktidarında söz ve eylemlerinden dolayı uzun süre, müteaddit olarak sorgulanmış ve mahkeme edilmiştir. Hallâc’a sorguda Karâmita davetçisi olma suçlaması yöneltildiği gibi hulûl, ittihat, rubûbiyyet, Kur’ân’ı tahkîr ve şeri‘atın emirlerini tahrif gibi bazı suçlamalar da yöneltilmiştir. Nihâî mahkemede ulemânın ittifak ve icmâsıyle katline fetvâ verilmiş ve karar da o şekilde infaz edilmiştir. Abbasî halifesi Muktedir-Billâh’ın veziri Hâmid b. el-‘Abbâs’ın idam kararının alınmasında ısrarı, baskısı ve yönlendirmesi olmuştur. Hallâc’ın görüş, düşünce ve sözlerinin ayrıntılı olarak irdelenmesi bu makalenin konusu değildir. Bu makale esas olarak Hallâc’ın hayatıyla beraber sorgulandığı ve mahkeme edildiği süreçleri, kendisine yöneltilen suçlamaları ve katline fetvâ veren kadı ve ulemâları konu edinmektedir. Hallâc’ın idamı konusunda ulemânın ittifak ve icmâsından bahsedilmektedir. Ulemânın ittifak ve icmâsının hakikatte var olup olmadığı da bu makalede ayrıca sorgulanacaktır.

Law, Language, and a Nonsovereign Caribbean

ABSTRACTThis article argues that the Caribbean Court of Justice (CCJ), a tribunal serving twelve independent primarily Anglophone Caribbean states, uses a variety of linguistic techniques in its pursuit of a regional future. Created upon a complicated (post)colonial landscape and charged with resolving the nonsovereignty of its member states, which, for the most part, continue to utilize the United Kingdom's Privy Council for their final court of appeal, the CCJ does not view sovereignty as a solution. Instead, as I demonstrate through several examples of the Court's use of, talk about, and abstention from language, the CCJ's judges and employees seek to constitute a yet‐to‐be‐fully‐defined nonsovereign region that carves out a Caribbean people, pointedly rejects ongoing British legacies and logics, refuses to adopt the legal practices associated with sovereignty, and strives to remain untethered to either nation‐state or suprastate. [law, language, sovereignty, region, Caribbean]

Reviewing, as an Extraordinary Mean of Appeal

One of the fundamental rights that a subject in criminal proceedings owns, is the right to appellate a court decision, which besides the usual means of appeal in Albanian system of justice, are guaranteed also by extraordinary means of appeal as it’s reviewing a decision despites any deadline of appeal. The review is the means of appeal, which aims to strike court decisions, which have become final, with positive expectations in each case, to improve the status of the offender. In the constitutional of Albania of 1998 this institute, was not regulated explicitly, but there was foreseen as part of jurisdiction of the High Court, where clearly was put that the high court had preliminary and reviewing jurisdiction. In the framework of the Justice Reforming in 2016, the HC Was stripped of its reviewing jurisdiction. The competence to re-examine a final court decision was given to the first instance court, which can judge in these cases any type of decision that fulfils the criteria to be reviewed, despite the fact if this decision has been taken by an Appeal Court or the High Court. Undertaking legal changes in constitute and Code of Criminal Procedure for this institute came as response/regarding to the legal vacuum found in Albanian system of justice as well as the contractual practice with the ECHR, established by the Albanian court. The Albanian system did not have the effective means to guarantee the right to a fair legal process, the implementation of which has been ascertained by the ECHR in some of the decisions given against Albania as (Xheraj vs Albania; Lika vs Albania etc.). Because of that, in the CPC, become larger the number of cases, when the re-examining of this type of court decision could be done. The purpose of this article is to present in a comparative form the institute of reviewing court decisions; it aims to prescribe how this mean of appeal was and how it is now after the reform, to continue further with the findings of problems that have arisen from the practice of implementing this means of appeal from its latest changes. Justice reform is still in its infancy and therefore the practice of elaborating this tool has been insufficient.

Advisory Opinion of the Caribbean Court of Justice in Response to a Request from the Caribbean Community (Caribbean Ct. J.)

An Appellate Jurisdiction, which addresses municipal law cases on appeal from countries which accept this jurisdiction. To date, four Caribbean countries—Barbados, Guyana, Belize and Dominica—have accepted the appellate jurisdiction of the Court. The applicable law for each case under the appellate jurisdiction is the national law of the state from which the appeal emanates. The CCJ in its Appellate Jurisdiction is intended to replace the Judicial Committee of the Privy Council as the final court of appeal for Caribbean countries which were formerly British colonies.