President Of Court Research Articles

Editorial: Artifacts of judging: Justice Johan Froneman

Early in the Constitutional era, in Qozeleni v Minister of Law and Order 1994 3 SA 625 (E) Justice Johan Froneman called for the "rubicon … to be crossed out not only intellectually, but also emotionally before the interpretation and application of the … Constitution is fully to come into its own right". He further argued for the Constitution "to become … a living document". In his many judgements in a judicial career spanning 25 years, Justice Froneman suggested some of what such a crossing of the Rubicon could entail. He also gave meaning to the idea of the Constitution as a living document. The contributions in this special edition unpack, reflect on, evaluate and further the work of and themes tackled by Justice Froneman. Justice Johan Froneman retired from the Constitutional Court in 2020. He was appointed to the Constitutional Court in 2009 after serving as Judge of the Eastern Cape High Court, Grahamstown (1994-2009); Deputy Judge President of the Labour Court and Labour Appeal Court (1996-1999) and two terms in 2002 acting on the Supreme Court of Appeal. In 1999 he was a visitor at Harvard University by invitation of Professor Frank Michelman. He was also Extraordinary Professor in Public Law at Stellenbosch University (2003-2008) and a Visitor at the Centre for Socio-Legal Studies, University of Oxford, in 2008. He is currently an extraordinary professor in the Department of Public Law, University of the Free State. He has delivered judgements in a wide range of cases. Of particular interest is his careful deliberation on issues pertaining to transformation, legal interpretation, property and language. Justice Froneman in his many carefully argued judgements displayed not only the intellectual rigour that he was calling for, but also the emotional and very much personal crossing that he referred to in 1994.

Otec a syn ve službách státu. Činnost Augustina a Augusta Adolfa Popelkových

This article presents the life of two overlooked Czechoslovak jurists, Augustin and August Adolf Popelka. Both led very successful careers as state officers. Augustin (1854–1938) started his career as a private lawyer in Brno. In 1899, he became a member and later president of The Administrative Court in Vienna. After the establishment of the Czechoslovak Republic, he became the first president of the new Supreme Court. He held this position until his retirement in 1930. He also briefly (1920–1921) served as the minister of justice in the first caretaker government. His son, August Adolf (1887–1951), studied at the law faculty of the University of Vienna. In 1919 he became a member of The Office of the President of the Czechoslovak Republic. He was very close friend and colleague of chancellor Šámal and helped to the master of ceremonies Guth-Jarkovský to establish The Order of the White Lion. He remained in the Office after year 1938 and in 1941 became the chancellor of president Hácha’s office.

Superjudges and the Separation of Powers: A Case Study of Judicial Informality in Czechia

AbstractExamining the practices of i) the selection of judges, ii) panel composition and case assignment, and iii) judicial off-bench activities, the article argues that some Czech judges, most often court presidents and apex court judges, use informal judicial institutions as tools to increase their influence on judicial administration and the decision-making of courts. As a result, these judges have far greater influence than the formal account of their roles might suggest. The article explores the context which facilitated the informal rise of these “Superjudges”, asserting that the key factors were institutionally independent judiciaries with individually dependent judges, the absence of a shared understanding of fundamental constitutional concepts, and the underperformance of Czech legal academia. The article then contends that while Superjudges may contribute to an informed, effective, and politically independent functioning of the judiciary, they also risk eroding important divisions of power which, in turn, might compromise the integrity of the judicial process, undermine the authority of courts, and disconnect the content of the law from the general interest.

The Italian System of Judicial Governance: An Arena of Confronting Informal Practices and the Push Towards Formalization

AbstractThere is general agreement that in Italy the establishment of a judicial council ensured an overall higher degree of independence. Nevertheless, this self-governance template was criticized for propping up an accountability imbalance and a certain degree of inefficiency. In order to understand this assessment, this article delves into the relevance of informal rules and practices in the operation of the Italian judicial council. More specifically, it focuses on the activities relating to appointments of court presidents and professional assessment. Based on this analysis, it makes some observations on the factors shaping informal practices and questions their impact on judicial values and the quality of Italian democracy. I argue that informal institutions have amplified the corporatist character of the Italian judiciary, but it would be wrong to portray them in negative terms only, because the operation of the Italian judicial council and judicial system also benefits from a healthy dose of informality, which allows for enduring legitimacy in a polarized society.

Judicial self-government in Ukraine

This article is devoted to the study of judges in Ukraine, the order of their employment in administrative positions. Being a judge of the relevant court is not only a profession, it is an observance of the rules of conduct that must be observed every day both in one’s work and in one’s personal life. The judicial profession differs from other professions, a judge must be guided only by procedural law. Also, when administering justice, a judge cannot depend on the legislative and executive bodies as a whole. It will be appropriate to consider the issue of a judge in an administrative position. And determine their order of appointment to the relevant position in the court. Today, the issue of judges in administrative positions is very extensive and requires additional research. The draft law “On restoring trust in the judicial system of Ukraine” was developed with the aim of ensuring the implementation of guarantees of the independence of judges, as well as reducing illegal influence on judges who hold administrative positions, the relevant courts, restoring trust in society, as well as in the judiciary. Therefore, the achievement of the goal is proposed through the adoption of the specified law. It provides for the term of holding an administrative position in the courts of cassation up to three years, and also establishes restrictions on the possibility of the same person occupying the position of the head of the court for two consecutive terms. But the main Law of Ukraine for regulating the appointment of judges to administrative positions is the Law of Ukraine “On the Judiciary and the Status of Judges”, which regulates issues related to all judges. Well, let’s summarize the above-mentioned law, which entered into force on March 28, 2015. Part 4 of Article 20 of Law No. 2453, as amended by Law No. 192, stipulates that a judge elected to an administrative position in the manner specified by this article cannot hold one administrative position of the corresponding court for more than two terms in a row. In connection with the adoption of this draft law, on January 4, 2023, the Verkhovna Rada of Ukraine registered an alternative draft law 8296-1 on the election of court presidents, in which it is proposed to provide for the possibility of early dismissal of the court president from office by the Council of Judges of Ukraine, in case of non-compliance with the restrictions on holding the office the chairman of the court is a judge who has already been elected for more than two terms in a row. This Draft Law proposes that judges of all courts of the country (from local courts to the High Anti-Corruption Court and Cassation Courts as part of the Supreme Court) elect presidents and deputy presidents of courts for a period of 4 years, but only the head of the Supreme Court will personally approve them. Key words: state, judge, procedure for appointing judges, administrative position, judicial power, justice, legal status of judges.

The age profile of court-appointed physicians in Poland. Status at the end of 2021.

The problems with obtaining expert opinions from court-appointed physicians in Poland have been known for a long time and are well-diagnosed. The reasons for this state of affairs are: an overall insufficient number of physicians compared to the general needs, uncompetitive remuneration levels, and the difficulty of reconciling professional and court-appointed expert duties, while taking into consideration the availability expected of experts. The ongoing generational transition may further exacerbate these problems. The purpose of this study was to investigate the latter phenomenon by comparing the age profile of court-appointed physicians with that of physicians in general. Information on the age of court-appointed physicians was obtained from the presidents of regional courts and the Central Register of Physicians, while general statistics on physicians were also acquired from the latter. Research allowed us to formulate the following conclusions: only 0.8% of all physicians in Poland serve a court-appointed expert function. Almost two-thirds of court-appointed physicians belong to the Baby Boomer generation (born in 1946-1964), nearly one-third to Generation X (1965-1980), and only one-sixteenth (6.10%) to Generation Y (1981-1996), or Millennials. The results obtained, as well as data from the literature, suggest that the current bad state of affairs regarding access to the opinions of court-appointed physicians will further deteriorate in the coming years due to generational changes, i.e., the replacement of Baby Boomers and Generation X, currently dominant among court-appointed experts, by Generation Y, i.e., Millennials, with a different attitude to life.

Ograniczenie jawności zewnętrznej procesu w dobie początków pandemii COVID-19

The article discusses the problem of limitation of the main principle of criminal trial which is the principle of external openness of the trial, in the era of the beginnings of the COVID-19 pandemic. Attention is drawn to the concept of the principle of external openness in the light of the Polish Constitution, international law, the Code of Criminal Procedure, and also the essence of “force majeure” known by the provisions of the Code of Civil Procedure and the transfer of this institution to the criminal law. The assumption of the undertaken subject is to assess the legitimacy of court presidents’ orders and their compliance with the law. The aim of the article is to indicate the impact of limiting the openness of the external trial on the fairness of the trial. Using the observational method, the following article is based on legal acts that are sources of Polish law, court presidents’ orders on limiting the openness of hearings in the COVID-19 pandemic and auxiliary literature on criminal procedural law.

Primus Inter Pares, but More Pares than Primus! – Recollections of a Former President of the European Court of Human Rights

Primus Inter Pares, but More Pares than Primus! – Recollections of a Former President of the European Court of Human Rights

Separation of Powers in Distress: AMLO’s Charismatic Populism and Mexico’s Return to Hyper-presidentialism

Abstract This article inquires the charismatic populism of López Obrador (AMLO) and Mexico’s return to hyper-presidentialism. Drawing on the literature on populism and hyper-presidentialism it explores the tension between charismatic populist leadership and independent institutions, especially the Supreme Court and the National Electoral Institute serving as a counterbalance to the president’s agenda, which aims for institutional ‘transformation’. The main argument, that AMLO is defying the integrity and independence of these institutions, is sustained by analyzing a) the Zaldívar Law named after the former Supreme Court President, a last-minute amendment that would extend his term; b) the public consultation on the prosecution of former presidents; c) the recall vote, and d) the electoral reform. The article concludes that AMLO’s charismatic populism, his transgression of constitutional constraints to the executive power and use of meta-constitutional powers means a return to hyper-presidentialism, which also raises concerns about Mexico’s struggling democracy.

Between a Rock and a Hard Place: The Role of the President of the European Court of Human Rights

Between a Rock and a Hard Place: The Role of the President of the European Court of Human Rights

A reappraisal of Marx’s Ethnological Notebooks: family, gender, individual vs. state, and colonialism

ABSTRACT Between December 1880 and June 1881, Marx’s research interests focused on a new discipline: anthropology. He began with the study of Ancient Society (1877), a work by the U.S. anthropologist Lewis Morgan. What struck Marx most was the way in which Morgan treated production and technological factors as preconditions of social progress, and he felt moved to assemble a compilation of a hundred densely packed pages of excerpts from this book. These make up the bulk of what are known as The Ethnological Notebooks. They also contain excerpts from other works: Java, or How to Manage a Colony (1861) by James Money (1818–1890), a lawyer and Indonesia expert; The Aryan Village in India and Ceylon (1880) by John Phear (1825–1905), president of the supreme court of Ceylon; and Lectures on the Early History of Institutions (1875) by the historian Henry Maine (1822–1888), amounting to a total of another hundred sheets. Marx’s comparative assessments of these authors are fundamental to have a clear idea of the main theoretical preoccupations of the “late Marx” and suggest an innovative reassessment of some of his key concepts.

Challenges of holding the presidents of general jurisdiction courts liable to disciplinary measures and termination of their powers in the Russian Federation

The article examines the challenges of holding the presidents of general jurisdiction courts liable to disciplinary measures and issues of terminating their powers. It is shown that the legal status of the presidents of general jurisdiction courts encompasses various elements, such as the procedure for terminating their powers, their liability, the procedure for replacing their post, their competence, and guarantees of independence. Five cases of termination of the powers of the president of a general jurisdiction court were considered: automatic suspension in the event of termination or suspension of powers as a judge, which may be directly tied to disciplinary proceedings, limitation of an office term, voluntary rejection of the position while retaining the powers of a judge, early termination of the court president’s powers while maintaining his/her position as judge for failure to fulfill or inadequately fulfill his/her official duties, commission of an act defaming the honor and dignity of a judge, as well as in any other circumstances specified under federal constitutional law indicating the inability of a judge to perform his/her duties. Significant gaps in matters of early termination of the court presidents’ powers are evident in Russian judicial practice, as demonstrated by numerous examples. The matters concerning the disciplinary liability of the presidents of general jurisdiction courts are analyzed with respect to the procedures, grounds and peculiarities for holding both judges and court presidents liable. A practical view of the modern interpretation of the concept “disciplinary offense of a judge” is shown. Recommendations have been made to improve the Russian legislation that deals with the issues of disciplinary liability of the presidents of general jurisdiction courts and termination of their powers, with a focus on the Law of the Russian Federation on the Status of Judges in the Russian Federation of 1992.

Судьи губернских судов общей подсудности в Западной Сибири в первой половине XIX в.: формально-качественные характеристики

The article is aimed at analyzing the results of civil service personnel management in provincial general jurisdiction courts and changes in the panel of judges in Western Siberia in the first half of the 19th century. In the course of the study, the author uses the following methods: analysis and synthesis, classification, descriptive, historical-typological, and historical-genetic methods. The subject of the study is the official lists of judicial establishment. To reach the aim, the author uses a variety of documents for personnel accounting for the period from 1807 to 1851, which makes it possible to assess the nature of changes in the panel of provincial judges and to make conclusions about the development of the pre-reform judicial bureaucracy representatives. The analysis of the official lists shows that in the first half of the 19th century the state policy in Western Siberia ensured maintaining and improving the quality of the personnel of provincial courts. Direct appointments partly compensated the shortage of local qualified officials: according to the lists of 1825, 5 out of 10 provincial judges came from the European part of Russia; in 1850, 7 out of 11. Half of the assessors and legal assistants, i.e. junior and senior members of the judiciary board from the lists of 18071814 began their service being in the army and only 7 out of 18 officials previously gained experience of participating in the administration of justice. However, 7 out of 8 former white-collars had a substantial background in crime proceeding. In the course of the local government system reform in 1822, only legal assistants were left in the provincial courts, which increased the number of position's person specifications. Officials who had demonstrated remarkable career achievements were appointed to the bench, 5 out of 8 had previous experience of participating in the administration of justice. In the first quarter of the 19th century, civil servants whose outstanding achievements served as a guarantee of the quality of justice were selected for the positions of chairmen of provincial courts; the significance of their previous experience in the field of justice was irrelevant. In the second quarter of the 19th century, the evolution of the judiciary panel accelerated. In the lists of 1850, only 1 out of 11 judges was a former military man with 15 years' civil service experience. All officials had official awards and commendations. The level of judges' general education in the second quarter of the 19th century objectively grew. Three officials gained experience in administering justice before being appointed to the provincial court. However, the terms of participating in the administration of justice were different: for deputies and presidents of provincial courts it was 2 and 8 years, for legal assistants from 4 to 6.5, in 4 cases more than 14 years and in 2 cases more than 21 years. Those born into families of nobles, civil servants and clergy predominated among provincial judges, making up more than 80% of the lists of 1807-1825 and 1850-1851. The property status of the majority of provincial judges depended on their wage rate.

The premature expiration of arbitration litigation in investment disputes

Arbitration litigation shall be completed by the issuance of an arbitral award ending the dispute (Al Tarawneh & Al-Qhaiwi, 2020). This type of legal litigation may also end due to a contingency that occurs before the issuance of this arbitral award. The problem of this paper is to determine the cases in which the arbitration dispute can end without the issuance of an arbitral award. To study this topic, we follow the analytical approach in light of the provisions of the United Arab Emirates (UAE) Arbitration Law promulgated by Federal Law No. (6) of 2018. At the end of this paper, we conclude that the arbitration dispute may end without the issuance of an arbitral award for many reasons. This termination may be ordered by the president of the competent court, by a decision from the arbitral tribunal, by the litigant’s reconciliation, by the expiry of the arbitration deadline, or by ruling the invalidity of the arbitration agreement. In such cases, the arbitration litigation is considered expired without an arbitral decision based on the legal grounds of fulfilling one of the procedural reasons that could lead to cessation of litigation before adjudication (Zamzam, 2020)

The Mouseiad and Other Mock Epics [Myszeis

<i>The Mouseiad and Other Mock Epics</i> [Myszeis

George Gavan Duffy and the legal consequences of the Anglo Irish Treaty, 1921–1923

George Gavan Duffy (1882–1951) was a signatory of the 1921 ‘Anglo Irish Treaty’. In the 1930s he enjoyed a notable judicial career and would rise to the position of President of the High Court of Ireland. This article examines a more neglected period of Gavan Duffy’s career. It focuses on his brief parliamentary career as a TD in the early 1920s and, in particular, his involvement in the creation of the Constitution of the Irish Free State. This analysis also examines the reasons for the divergence of Gavan Duffy’s position from that held by other signatories and supporters of the 1921 Treaty. By late 1922 Gavan Duffy had emerged as a determined critic of the Provisional Government and of the draft Constitution of the Irish Free State that emerged from negotiations in London. This analysis focuses on Gavan Duffy’s attempts to amend provisions of the draft Constitution that he believed went further than the strict legal demands of the 1921 Treaty. The conclusion assesses Gavan Duffy’s attitude towards the legal consequences of the 1921 Treaty and his attempts to mitigate their impact on the 1922 Constitution of the Irish Free State.

Zasady wpisu na listę stałych mediatorów w Polsce – w kontekście dyskusji nad profesjonalizacją zawodu mediatora

The interest in the profession of a mediator increased with the popularisation of mediation in Poland. The tendency was supported by the legislator’s liberal defini-tion of requirements for performing this professional function. In the article, we raise issues related to the principles of entering in the register of permanent mediators in Poland. We present the currently applicable legal regulations and we analyse them, focusing on the requirement to have knowledge of mediation and to be skilled in it. This requirement is interpreted in different ways by individual authorities that enter candidates’ names in the register of permanent mediators (presidents of district courts), and its interpretation is also evaluated differently in both Polish literature and case law. The purpose of the article is to show the areas of legal regulations that require changes and unification, on the basis of analysing the results of statistical research conducted by the authors. It is significant particularly from the perspective of the ongoing discussion on the professionalisation of mediators in Poland, especially in the context of the planned changes and the introduction of the National Register of Mediators. The accomplishment of the task undertaken by the authors is primarily served by the formal and dogmatic method as well as the comparative method used in the statistical research. The purpose of that method was to show discrepancies in interpreting the regulations concerning mediation.

25 ЛЕТ В СОВЕТЕ ЕВРОПЫ, И СНОВА ДИСКУССИЯ ОБ ОБЯЗАТЕЛЬНОСТИ ПОСТАНОВЛЕНИЙ ЕСПЧ

The article considers the binding nature of legal positions of the European Court of Human Rights in civil proceedings taking into account amendments to procedural codes and substantive laws and legal positions of the Constitutional Court of the Russian Federation. The analysis is carried out to disclose the legislator’s intention, the purpose of which was to create the “stop-block” against the excessive evolutionary interpretation, rather than to limit the application of legal positions, stated in the judgments of the ECHR. In conclusion, the author puts forward the thesis that the recent amendments to the legislation should not be interpreted as a refusal to implement ECHR judgments, but as an attempt to fix in its legislation the right to seek compromise in the event of new obligations for Russia from the evolutionary interpretation of the ECHR Convention. In our opinion, it is appropriate to quote the President of the Constitutional Court of Germany, who wrote that this approach is a kind of “stop-cock”, which is most effective when it is not used at all. It is its presence, not its absence, that avoids an emergency situation. The presence of a “stop-cock” should not be an obstacle to the protection of human rights and freedoms, nor should it be an obstacle to the enforcement of ECHR judgments, let alone a justification for violations of conventional human rights and freedoms.

Should Judges Join In? A Normative Study of Joint Judgments in Selected Australian Intermediate Appellate Courts

In the light of both the Chief Justice of the High Court of Australia Susan Kiefel’s extra-judicial comments on the ‘institutional responsibility’ of appellate courts to decide cases by joint judgment where possible, and literature that indicates an increase in the expression of reasons through joint judgment in the High Court of Australia since the beginning of former Chief Justice Robert French’s tenure, there has been much debate on the desirability of joint judgments. In this article, I present empirical information on selected New South Wales and federal intermediate appellate court judgment writing practices from 2009 to 2019. I do so to address former President of the New South Wales Court of Appeal Margaret Beazley’s ‘dalliance on a curiosity’1 concerning both joint judgment trends and whether Australian intermediate appellate courts should, given the example set by certain Justices of the High Court, preference joined reasons to separate individual concurrences.

The powers of presidents of general jurisdiction courts in the Russian Federation: Classification issues

Based on the practical experience of the retired court president, the article covers the issues of systematizing the powers of presidents of general jurisdiction courts in Russia through creating their classification. The material is presented in a problematic manner. The author identified four key issues related to the powers of presidents of general jurisdiction courts: the compliance of powers with new tasks and challenges that arise before the justice system; the binding nature of the powers of presidents of general jurisdiction courts; differences in the powers of presidents of general jurisdiction courts, despite the consolidation of the principle of unity of the system of general jurisdiction courts; distribution of powers between, on the one hand, the court president and, on the other hand, the Chief Justice of the Supreme Court of the Russian Federation, bodies of the judiciary and administrator — a professional manager, who is not a judge. It is shown that the powers of presidents of general jurisdiction courts are governed by various regulatory sources, which differ considerably in terms of their legal nature: the Constitution, federal constitutional laws, federal laws, presidential decrees, orders of the Judicial Department at the Supreme Court of the Russian Federation and decisions of the Council of Judges of the Russian Federation. The author considers the procedural powers divided into general powers and special procedural powers and the nonprocedural powers of presidents of general jurisdiction courts which are grouped into the powers related to personnel matters, the powers broken down by subjects and the powers categorized by the nature of actions. The article promotes the idea of interaction between the court president and judges following the principle of primus inter pares (first among equal) and the partnership model in the distribution of powers between the court president and the court administrator (professional manager), who is offered to take over all operational functions.