Court Judges Research Articles

Penegakan Hukum Terhadap Tindak Pidana Eksploitasi Seksual Yang Dilakukan Oleh Suami Terhadap Istri

Today the crime of trafficking in persons in the form of sexual exploitation is increasingly common with various modes of operation, one of which is making the wife a commercial sex worker by her husband which can be seen in print and online media, where this can also be categorized as a crime of domestic violence. As an example of the case of the criminal act of trafficking in persons in the form of sexual exploitation committed by a husband against his wife as a commercial sex worker as stated in the Decision of the Sidoarjo District Court Number 889/Pid.Sus/2018/PN. SDA, where in its application law enforcers, especially judges in court, only apply the provisions in the law on the crime of trafficking in persons even though the actions of the accused can be applied to the provisions in other relevant laws. This research is normative legal research by studying the applicable laws and regulations related to court decisions in the cases studied. The results of the study show that law enforcement of sexual exploitation crimes committed by husbands against wives in the decision of the Sidoarjo District Court Number 889/Pid.Sus/2018/PN.SDA applies Article 2 of Law Number 21 of 2007 concerning Eradication of Trafficking Crimes People, but acts of exploitation by perpetrators and victims are bound in a legal marriage, so legally the application of the law can also apply Article 8 letter b of Law Number 23 of 2004 concerning the Elimination of Domestic Violence, so that the perpetrators can be subject to maximum legal sanctions for acts exploits that have been carried out.

The re-opening of judicial proceedings in the Armenian law and practice following the judgments of the European court of human rights

The Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention) guarantees a number of rights and freedoms that the states that have ratified the Convention are obliged to respect in the territories under their jurisdiction. Regarding violations recorded by the European Court of Human Rights (hereinafter referred to as the ECtHR) created on the basis of the Convention, there is often a need to reopen judicial cases at the domestic level. The importance of this process lies in its central place in the execution system of the ECtHR’s judgments and in some cases is considered as the only way to restore the violated rights. Within the framework of this article, the legislation and practice of the Republic of Armenia regarding the reopening of judicialcases following the judgments of the ECtHR were studied. In particular, the relevant legal regulations of RA criminal procedure, RA civil procedure, RA administrative procedure codes and other legal acts were analyzed. As a result of the comprehensive studies carried out in the article, the gaps, shortcomings and uncertainties of the RA legislation and practice in the discussed field were highlighted, and relevant recommendations were made to fill, eliminate or clarify them.

The strategic perspective for the execution of judgments of the European Court of Human Rights

Strategic aspects of execution of the European Court of Human Rights judgments are analyzed in this article. In the author’s view, a strategic perspective matters also for the execution of judgments; State agencies should be armed with the ability to anticipate, prepare, and get positioned for further challenges. He suggests that there is an objective need to ensure the responsible involvement of relevant state bodies in the process of execution of judgments, clarifying the toolkit of interaction between them. With this view, several strategic steps are highlighted. The author concludes that the adoption of a national strategy for interaction will increase the understanding of “shared responsibility” among state institutions within the process of the execution of judgments of the Strasbourg Court

The Analysis of Article 184(3) of the Constitution of the Islamic Republic of Pakistan regarding Cases is Pending or Decided by High Courts

The legal analysis investigated the scope of Pakistan's Supreme Court's original jurisdiction under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973. It delves into precedents to establish the extraordinary and discretionary nature of this jurisdiction. The study discussed the principles guiding the exercise of jurisdiction when concurrent jurisdiction exists with the High Courts under Article 199. Additionally, it introduces the principle of forum non-conveniens, emphasising the court's discretion in selecting the most suitable venue for a case. This study, which was conducted using the doctrinal legal research method, examined legal precedents in which the Supreme Court declined jurisdiction due to a pending petition in the High Court. The article concludes by asserting the court's inability to challenge or circumvent judgments of high courts under Article 199.

The decision of the European Court of Human Rights and the issue of determining the content of evaluation features

Resolving controversial issues related to the content of evaluative features in the context of the judgments of the European Court of Human Rights is important for the development of legal science and practice, since increased integration within Europe requires national governments and judicial systems to pay increased attention to the practice of supranational bodies. The purpose of this study is to analyse the judgments of the European Court of Human Rights, aimed at determining the content of the evaluative features in the context of human rights. For this purpose, the author uses the methods of legal literature analysis, comparative analysis of case law from different countries, synthesis, comparison, and modelling, as well as logical and systematic approaches to the analysis of court decisions. The article establishes that the assessment criteria are an important tool for determining human rights violations and require an objective and proportionate approach. Attention is focused on the role of the European Court of Human Rights in ensuring a balance between freedom of expression and the protection of human rights. The author identifies the need to adapt concepts to digital environments and take into account new challenges. The author analyses the process of determining the evaluative features and demonstrates its significance for establishing the scope of human rights protection. The author identifies different approaches of the European Court of Justice to determining the content of evaluative features in human rights judgments. The emphasis is placed on the interpretation of such concepts as “adequacy”, “excessiveness” and “necessity” in the context of human rights restrictions. The author identifies changes in the court's approach to these concepts over time and changes in the social and political context. The study is important for an in-depth understanding of the interpretation of human rights by the European Court of Human Rights, as well as for the formation of a unified methodology for interpreting the evaluative features in the judgments of courts of different jurisdictions

Recognition and enforcement of judgments delivered in member states of the European Union

Recognition is the process by which the authority of a foreign judgment is established, i.e. the effects of a foreign judgment are allowed to take effect in the territory of the State addressed. The concept of foreign judgment includes both contentious and non-contentious acts. The authority from which it emanates is irrelevant. Foreign judgments may be court judgments, authentic instruments or court settlements (which are assimilated to authentic instruments). In Romania recognition is allowed either by operation of law or by court decision, subject to certain specific conditions. The regulations contained in the Code of Civil Procedure on the recognition of foreign judgments usually apply to judgments from non-EU countries. In order to produce legal effects, the foreign judgment must be recognized and enforced, which is not automatically done through recognition.

Law Enforcement Strategies and Policies for Money Laundering from Predicate Crime in Fisheries

Law enforcement on money laundering originating from criminal acts in the field of fisheries (Illegal Fishing) after the Constitutional Court Decision Number 15/PUU-XIX/2021, which is not only the duty of investigators in the field of fisheries, but also the public prosecutor and judges in court who will process the results investigation at trial level. For this reason, each of these law enforcement officers must have the same perception in law enforcement as stipulated in the laws and regulations in the field of fisheries. This paper aims to find out the investigation of money laundering where the predicate crime is in the field of fisheries related to the differences in the respective procedural law and to find out the authority of the Special Fisheries Court to adjudicate money laundering cases where the predicate crime is in the fishery sector. This research used normative or doctrinal methods. The recommendation from the author is that the investigation of money laundering cases where the predicate crime is in the field of fisheries is carried out by separating the case files of criminal acts in the field of fisheries from the files of investigations of money laundering crimes but the investigation is still carried out in parallel. Regarding the authority of the special court for fisheries, judges at the special court for fisheries can interpret the law to mean that based on Article 71 of the Fisheries Law, the special court for fisheries has the authority to examine, adjudicate, and decide on money laundering cases where the predicate crime is in the field of fisheries.

Borrowed Words and Judicial Gestalt: A Dialogical Reading of Hirst, the ECtHR and Prisoner Voting Rights

Abstract This article suggests that judgments of the European Court of Human Rights exhibit a textual quality that Mikhail Bakhtin called dialogism, namely, a kind of discourse constituted by a plurality of mutually effecting and interpenetrated voices. Such compositional choice is not just a lengthy prolegomenon to any decision, nor an unnecessary appendix that could be safely eliminated; it is actually fundamental for the construction—and comprehension—of any ECtHR opinion. In this article, I will focus on the 2005 case of Hirst, in which the Grand Chamber declared that the UK legislative blanket ban on prisoner voting is incompatible with the European Convention of Human Rights. As a controversial case about as-yet live-wire issues, Hirst can be shown to be a profoundly dialogized text despite all appearances to the contrary, which paves the way for a more general argument about the dialogical practice of adjudication by the Court.

Law and discretion in monetary policy and in the banking union: Complexity between high politics and administration

The controversy over the degree of judicial review of monetary policy decisions triggered by the contrasting Weiss judgments of the German Federal Constitutional Court and of the Court of Justice of the European Union invites an inquiry into the role of law in areas characterized by a high degree of political and technical complexity. This article singles out the structural conditions that qualify complexity in specific instances of decision-making: prognostic assessments, goal-oriented decisions, marked by uncertainty, legal indeterminacy, and discretion. These traits characterize both monetary policy decisions and some regulatory decisions taken within the banking union, such as the setting of minimum requirements for own funds and eligible liabilities (MREL) and the calculation of the leverage ratios of credit institutions (Livret A judgments). Irrespective of the very distinct formal-institutional legal frameworks of these two policy fields, in those conditions legality may be determined by the discretionary choices of the decision-maker. For this reason, they impact the court’s deployment of legal principles, namely proportionality and careful and impartial examination. This cross-sector comparison sheds light on the relative specificity of monetary policy, and leads to rejecting the transposition of a distinction between “high politics” and “ordinary administration” to EU law, as a means of both explaining and guiding different degrees of judicial review in conditions of complexity. The different constitutional relevance of monetary policy decisions and of “ordinary” banking supervision requires not a distinction that can rationalize judicial review, but a full consideration of the role that the law must have in supporting non-judicial accountability. judicial review of administrative discretion, complex technical and economic assessments, monetary policy, proportionality, banking union, principle of careful and impartial examination

The Issues of Extending the period of the Obligation to Distribute the Matrimonial Property: An Analysis of Taipei High Administrative Court Judgment (111) Su Tze No. 1405

The Issues of Extending the period of the Obligation to Distribute the Matrimonial Property: An Analysis of Taipei High Administrative Court Judgment (111) Su Tze No. 1405

Right Versus Wrong: A Qualitative Appraisal With Respect to Pandemic Trajectories of Transgender Population in Kerala, India.

The transgender population generally faces rights violations and discrimination in their day-to-day lives, which was exacerbated during the recent pandemic. This necessitates close scrutiny from an ethics perspective. Following directives from a 2014 Supreme Court judgement, Kerala became the first Indian state to implement a comprehensive policy to enforce the constitutional rights of transgender people. Despite such positive actions, a basic social tendency not to respect gender diversity has led to discrimination and marginalization. This was very evident during the pandemic. In this empirical work, we have documented the lives of the transgender community during the pandemic wherein they share experiences related to livelihood, interaction with the healthcare system, and acceptance in society vis-à-vis the pandemic. Simply providing third-gender status will not help the gender-marginalized community to grow to their fullest potential and have a better lifestyle on par with others in mainstream society.

Discussion on the Tax Base of Land Value Increment Tax on Agricultural Land Transfer: Focusing on the Supreme Administrative Court Judgment (112) Shang Tzu No. 255

Discussion on the Tax Base of Land Value Increment Tax on Agricultural Land Transfer: Focusing on the Supreme Administrative Court Judgment (112) Shang Tzu No. 255

Gloss on the judgement of the Supreme Court of 28 February 2023, I KZP 13/22 (expressing approval)

Abstract The present gloss refers to the thesis and considerations expressed in the Supreme Court judgement of 28 February 2023, I KZP 13/22, concerning the exception to the rule of speciality stipulated in Article 14(1)(b) of the European Convention on Extradition. The author presents arguments concerning the broad international legal context of the analysed regulation, which develops and confirms the accuracy of the Supreme Court’s stance on a broader than lexical interpretation of the term ‘final discharge’. Moreover, the paper discusses the nature of the exception in question in the light of the standard of protection laid down in Article 52(4) of the Constitution of the Republic of Poland.

Sports governance after the superleague judgment: going into extra time?

This paper argues that the Superleague Judgment creates the conditions necessary for the political process to step in and do its part in providing a much-needed regulatory framework for transnational sports organizations to exercise their powers in an accountable manner and in accordance with the values usually attributed to the European Sports model. Indeed, the key issues raised in cases such as the Superleague, ISU and Royal Antwerp, as well as in past cases, often require a regulatory follow up and implementation that courts are unfit to undertake. The Court Judgments highlight systemic flaws in the governance of sports that require a public framework regulating both the scope and nature of the powers of transnational sports organisations and ensure the democratic scrutiny and accountability of their regulatory powers. This can only be properly addressed at the political level. That should have been clear by now. Let’s hope that the Superleague, ISU and Royal Antwerp judgments will make it so.

The Kyiv “Incident”: A War of Statutes

The paper focuses on the reconstruction and analysis of the so-called Kyiv “incident” (1908) that marked a new type of conflict in the theatre life and developed a new disposition in the theatrical community. What constituted the incident was a collective refusal of the actors to proceed with the play until the theatre reporter and critic Petr Yartsev (1870–1930) would not leave the premises of the Solovtsov theatre. This “incident” roused the theatrical community, becoming the subject of intense discussions in the All-Russia press during the 1908–1910. It was covered in dozens of short notices and disputes; however, it was never analyzed from the standpoint of the change in statuses and dispositions: the researchers mainly pointed out at the “progressive” aesthetic ideas of the Moscow critic and backward province. This, probably unintentionally, again trapped the discussion within the limitations of the “Russian world.” Sometimes, though, Petr Yartsev, the theatre journalist who provoked the conflict, was even considered conservative in his artistic taste (while, in reality, someone’s aesthetic taste is not relevant until it becomes a factor of a proven impact or a marked of a covert collision). Nevertheless, the witnesses and participants of the “incident” left enough testimonies to analyze it as a marker of new tendencies in the theatre culture, in particular, as a marker of development of new relations between theatre and theatre journalism, especially taking into account that during the period, similar incidents occurred not only in Kyiv. Hence, this phenomenon became widespread and revealed the new type of conflict. A. Kugel, an editor of the Saint Petersburg journal Theatre and Art (Teatr i iskusstvo), played a significant role in development of this new disposition. Having turned from the local event into the All-Russia war of statuses, the Kyiv “incident” announced the era of the new type of conflicts (metropolis vs province, art vs the press). The court judgement in favor of the press became a precedent that defined the new rules and boundaries in the relations between theatre and the press.

Assisted suicide and the discrimination argument: Can people with mental illness fulfill beneficence- and autonomy-based eligibility criteria?

According to the "discrimination argument," it would be discriminatory and hence impermissible to categorically exclude people with mental illness (PMI) from access to assisted suicide (AS) if AS is accessible to people with somatic illnesses. In objection to this, it could be argued that excluding PMI is not discriminatory, but rather based on their inability to meet certain eligibility criteria for AS. Which criteria are deemed necessary depends on the approach taken to justifying AS. In thisarticle, we describe two distinct ethical approaches to justifying AS and the eligibility criteria they entail and examine whether PMI can fulfill these criteria. A widespread "joint" approach based on beneficence and autonomy assumes that AS is justified when it alleviates the severe and irremediable suffering of a person who autonomously requests AS. An alternative, exclusively autonomy-based approach assumes that providing AS is justified when a person's request is autonomous, regardless of whether AS is in her best interests. The latter approach underlies an important judgment of the German Federal Constitutional Court from 2020. We argue that PMI can in principle fulfill both beneficence- and autonomy-based eligibility criteria for AS, and that a blanket exclusion of all PMI from AS is thus discriminatory on either approach. However, depending on which approach is taken, there are differences regarding the subgroups of PMI that would be eligible for AS. Whether the exclusion of specific PMI is discriminatory therefore depends on how we understand and justify AS.

No Country for Old Women: A Critique of Grobler v Phillips 2023 1 SA 321 (CC)

Land and land rights remain a contested issue in South Africa. Grobler v Phillips centered on the eviction of an 86-year-old woman, Mrs Phillips, and her disabled son from property she had lived on since she was 11 years old. After a fourteen-year court battle the Constitutional Court granted an eviction order against Mrs Phillips. This case note consists of a discussion of the judgments of the Magistrate's Court, High Court, Supreme Court of Appeal and Constitutional Court. It is found that the Constitutional Court erred in its decision as it applied a formalistic approach, disregarded the narrative of the occupier and did not sufficiently challenge the current neo-liberal regime in which property rights operate.

Recognition of a Danish Monetary Penalty in Employment Matters and Public Policy

Abstract The contribution is focused on a recent decision of the Italian Supreme Court, in which it was held that a Danish judgment imposing a monetary sanction (bod) on an employer for the failure to perform its obligations under a collective employment contract can be recognized in Italy under Regulation (EU) No. 1215/2012 (applicable to Denmark via the 2005 EU-Denmark Agreement). The request to refuse recognition had been raised on the assumption that the Danish measure amounted to a condemnation to punitive damages and was thus incompatible with public policy. The Corte di Cassazione came to the opposite conclusion, but the solution reached may cause a mixed reaction. It is regrettable that, notwithstanding the applicability of Regulation (EU) No. 1215/2012, the Italian Supreme Court simply relied on the principles developed in its previous judgment No. 16601/2017 (concerning a judgment of a non-EU court) and did not deem it necessary to request a preliminary ruling from the European Court of Justice (“cjeu”) on the interpretation of the relevant provisions of the mentioned Regulation. In a different vein, it is to be welcomed that the nature of the foreign measure was assessed in accordance with the so-called Engel criteria, developed by the European Court of Human Rights. However, the analysis conducted in the instant case by the Italian Supreme Court, which appeared to overlook some characteristics of the Danish bod, is not completely convincing.

Upholding Maritime Migrants’ Rights at the Borders of Europe – J.A. and Others v. Italy

Abstract Countless people have left the African continent seeking to reach European shores via the central Mediterranean Sea route, despite persistent efforts by Italian and EU authorities to counter migratory activities. International and regional human rights judicial bodies have provided some responses to the abuses faced by maritime migrants both at sea and on land throughout the years. In this case note, I analyze the judgment of the European Court of Human Rights in J.A. and Others v. Italy concerning the detention of maritime migrants in the Lampedusa hotspot center. To this end, I first illustrate the facts of the case. Second, I assess each claim made by the applicants in relation to the human rights abuses they suffered: inhuman and degrading treatment, arbitrary detention, and collective expulsion of aliens. I conclude that the judgment constitutes an important development in the Court’s case law upholding maritime migrants’ rights, albeit characterized by a few shortcomings. I also argue that the Court’s position as a human rights judicial body needs to be further strengthened in the future.

Regulatory enforcement of the marketing of fixed-dose combinations in India: a case study of systemic antibiotics

BackgroundIn India, states have licensed the manufacture of large numbers of fixed-dose combination (FDC) drugs without the required prior approval of the central regulator. This paper describes two major regulatory initiatives to address the problem, which began in 2007 and 2013, and examines whether they have been sufficient to remove centrally unapproved systemic antibiotic FDCs from the market.MethodsInformation was extracted from documents published by the central regulator and the ministry of health, including the National List of Essential Medicines (NLEM), and court judgments, and analysed alongside sales volume data for 2008–2020 using PharmaTrac market dataset.ResultsThe regulatory initiatives permitted 68 formulations to be given de facto approvals (‘No Objection Certificates’) outside the statutory regime, banned 46 FDCs and restricted one FDC. Market data show that FDCs as a proportion of total antibiotic sales increased from 32.9 in 2008 to 37.3% in 2020. The total number of antibiotic FDC formulations on the market fell from 574 (2008) to 395 (2020). Formulations with a record of prior central approval increased from 86 (2008) to 94 (2020) and their share of the antibiotic FDC sales increased from 32.0 to 55.3%. In 2020, an additional 23 formulations had been permitted de facto approval, accounting for 10.6% of the antibiotic FDC sales. Even in 2020, most marketed formulations (70.4%, 278/395) were unapproved or banned, and comprised a 15.9% share of the antibiotic FDC sales. The share of NLEM-listed antibiotic FDC sales increased from 21.2 (2008) to 26.7% (2020).ConclusionThe initiatives had limited impact. Regulatory enforcement has been slow and weak, with many unapproved, and even banned, FDCs remaining on the market.