Court Procedures Research Articles

The Milwaukee youth engagement pilot: Evidence of reciprocal legal socialization in Juvenile Court

AbstractThis paper describes a pilot project implemented in Milwaukee's Juvenile Court, which was designed as a preliminary feasibility study to assess whether a change in court procedures could alter young offenders’ engagement in the court process and enhance their relationship with the juvenile court judge. Participants in the pilot engaged in regular monthly conversations with the juvenile judge and other legal actors in an informal context focused on collaborative planning and problem solving. The procedural justice and legal socialization literature suggests that these changes in interactions and relationships might facilitate the development of a “consensus” orientation to legal authority associated with a shared trust in the law and a voluntary acceptance of its legitimacy. This paper offers an evaluation of the pilot project using a quasi‐ethnographic approach based on observational data and interviews with participants. Although the original focus of the pilot was on the relationship between the young offenders and the judge and on the impact of that relationship on the youths’ attitudes, it became evident, over the course of the study, that the impact of the engagement was felt on both sides of the relationship, and that it was not limited to the judge and the youth. The paper explores the potential value of “reciprocal socialization”—socialization of legal authorities by the subjects with whom they interact—to the successful achievement of the juvenile justice system's aims.

Matters related to Court Session Scheduling and Choice of Court Procedure in Criminal Proceedings: Problems, Errors, and Solutions

The paper considers one of the key stages of court work in criminal proceedings, namely the initial preparation stage for a court session in a criminal trial and scheduling of the said session while choosing the procedure rules (general or special, provided for in Chapter 40 of the Code of Criminal Procedure). The paper analyzes the latest changes in legislation regulating these issues, ambiguities and uncertainties that give rise to judicial errors made at this stage, including those related to the choice (determination) of the procedure for judicial proceedings, their impact on the future fate of the criminal case and the final court decision (sentence).Studying the cases of specific judicial precedents (including the Supreme Court of the Russian Federation), the author emphasizes the reasons these errors can be caused by. Examples of the actions of the parties (both the prosecution and the defense) that significantly affect this stage and even determine it, as well as the final court document, including in terms of criminal punishment, are given. The author shows that, at the will of only the prosecution (the state prosecutor and (or) the victim), the defendant (convicted), who conscientiously contributes to justice and fully admits his guilt at all stages of the investigation and judicial consideration of the criminal case, is deprived of the benefits provided to him by law (privileges in the appointment of criminal punishment), which even the judge (court) considering the criminal case cannot influence. The difficulties of the court (judge) in deciding on the choice of the procedure for trial in a criminal case and the legislative uncertainty in the issues under consideration are revealed. Specific ways of solving the problems under consideration of scheduling a court session in a criminal trial are proposed.

Judicial Protection and Competitive Award Procedures in Germany

The history of German public procurement law is a history of attempts by the German legislator to implement the EU public procurement directives on judicial protection, namely Directive 89/665/EEC of 21 December 1989, as minimally as possible. Paradoxically, the history of German procurement law is also the history of an increased spreading of the model of judicial review in 'competitive award procedures' underlying Directive 89/665/EEC to other administrative procedures. Here, one can discern mutual fertilization of the discussions on the minimal standards for judicial protection foreseen in Directive 89/665/EEC, as well as a parallel discussion on minimal standards (directly derived from the German constitution) for judicial review in competitive award procedures concerning the recruitment of public officials. On this basis, one may discern trends in German case law, administrative practice, and scholarship towards developing judicial review systems in competitive award procedures for public procurement beyond the thresholds set by the EU directives. This is relevant for privatizations, gambling licences, and procedures to grant the right to use public spaces, to name only a few. However, these trends encounter difficulties because the German General Administrative Court Procedure Act and other relevant legislation are not tailored to competitive award procedures. This article will analyse these different trends and suggest explanations for them.

The Function of Documents in Islamic Court Procedure: a Multi-Dimensional Approach

Abstract The present study investigates the role of written documents in Islamic court procedure, and especially the evidential status of such documents. For this purpose, I analyze different kinds of sources that vary in their proximity to practice. In addition to furūʿ-literature, I draw on shurūṭ manuals, fatwās and court records from 16th-century Jerusalem. This approach allows for a multi-dimensional reconstruction of the legal discourse on written documents. I argue that this discourse operated on several levels, some of which are virtually invisible if these sources are studied in isolation. By contrast, a holistic perspective reveals a subtle interaction between these discursive levels that reduced the tension between legal doctrine and practical concerns.

Initial Reflections on the Potential Effects of the Covid-19 Pandemic on Courts and Judiciary of England and Wales

This paper considers the initial impact of the Cvid-19 pandemic on the administration of the courts in England and Wales. It explores the early empirical evidence the pandemic has had on the digitisation of justice. It further considers the medium to longer term potential impact the pandemic’s consequences, and the effect it has had on digitisation of the courts, on court procedures, the nature of the judiciary, and the legal profession.

REHABILITATION OF THE DEBTOR BEFORE THE OPENING OF BANKRUPTCY PROCEEDINGS

Case Law shows that most bankruptcy cases end in liquidation, and restoring the debtor’s solvency and maintaining it as a business entity is the exception rather than the rule. Such trends clearly do not contribute to the development of the economy, so the development of recovery procedures applicable to the insolvent debtor seems relevant. One such procedure, which has appeared relatively recently in Ukrainian Law, is the pre-trial reorganization procedure. The purpose of the article is to analyze the provisions of current legislation governing the reorganization of the debtor before the opening of bankruptcy proceedings, study current issues that arise in the practice of applying the relevant provisions of the Civil Procedure Code of Ukraine, and set out their views on the effectiveness of pre-trial reorganization. The case law on appealing the approval of the pre-trial rehabilitation plan, namely the appeal of the rehabilitation plan by creditors who did not participate in the voting or who voted against the approval of the pre-trial rehabilitation plan, is analyzed. Bankruptcy cases in the scientific doctrine are divided into two categories: 1) the bankruptcy case itself; 2) related cases, which are considered in the order of claim or declaration proceedings (invalidation of auctions, contracts, etc.). The author argues the possibility of supplementing this division of bankruptcy cases with another, third category — cases of pre-trial reorganization. It is emphasized that the Code of Ukraine on Bankruptcy Procedures provides for two types of reorganization: reorganization prior to the opening of bankruptcy proceedings (pre-trial reorganization) and reorganization as a court procedure applied to an insolvent debtor within a bankruptcy case. Both pre-trial reorganization and "judicial" reorganization pursue a single goal — to restore the debtor’s solvency and preserve it as a business entity. According to the results of the study, the author concludes that pre-trial rehabilitation has a number of advantages, which include: efficiency; profitability for creditors; write-off of a significant portion of tax debt and other mandatory payments: lower court costs in the form of court fees for both the debtor and creditors.

Review of Syaria Economy Disputes in Religious Courts within the Perspective of Small Claims Court (SCC)

One of the absolute competencies of the Religious Court revolves around resolving sharia economy disputes. Quick, simple and inexpensive principles of the court must persist within Religious Court procedures, such as in sharia economy disputes relating to business disputes as regulated in Supreme Court Decree No. 14 of 2016 on Procedures in Sharia Economic Disputes. The solution in this way should be able to speed up commercial Shia dispute, but in fact, various obstacles were found. This article reviews the resolution of sharia economy disputes in Religious Court within the perspective of Small Claims Court implied through SC Decree No. 14 of 2016, along with the possible issues of Small Claims Court in Religious Court procedures. This research was conducted with a normative approach. Juridically SC Decree No. 14 of 2016 conforms with SC Decree No. 2 of 2015, now replaced with SC Decree No. 4 of 2019, permits parties to resolve certain nominal claims through a quicker dispute settlement procedure. Judges participate actively throughout the dispute resolution as Small Claims Court provides flexible interaction within formal courts. In practice, limitations such as the amount of sharia economy certified judges show that sharia economy cases are better resolved through standard procedure within the Civil Court. Other limitations, such as the insufficient electronic court (e-court) systems, limit dispute resolution capacity with further substantial limitations such as executorial clauses that are not yet regulated and can take more than 25 (twenty-five days).

Vulnerable victims in court: from childhood to senescence

Introduction The trial process is usually stressful for victims. Testifying in criminal court must cope potentially traumatising effects and implies recalling and evoking a crime. Such act tends to be a revictimization [1–3]. Several studies have shown that re-traumatization of victims in criminal justice process has serious problems [3].The article 271 of the Portuguese Code of Criminal Procedure allows the prosecutors and the inquiring judge to record the victim’s testimony and use it during the future trial. This procedure, called future memory statements, prevents the victim to be exposed months or years later to the memories of a traumatic event [2]. Even this procedure has a traumatic outcome due to the normal anxiety felt by victims. To minimise this it is necessary to inform and prepare the victims for this diligence, explaining the court procedures. Prepare the vulnerable victim for future memory statements aims to avoid an emotional trauma event towards the criminal justice system. The purpose of this paper is to demonstrate the work developed by the Victims Information and Assistance Office (GIAV), and its role as technical advisor to the Public Prosecutor's Office, specifically about victim’s attendance. Materials and methods GIAV was established in partnership with Egas Moniz Higher Education School and it is located at the Combat Unit against Domestic Violence, 7th Section of the Lisbon Public Prosecutor’s Office. Data was collected between March 2013 and May 2015 from future memory statements protocol that comprises three phases: Pre-inquiry stage (1 or 2 days before inquiry), inquiry stage (trial hearing) and post-inquiry stage (after trial hearing) [1,2]. A total of 144 statements for future memory were performed by GIAV. All ethical issues have been taken due to the sensitive nature of the involved data involved and the respective informed consentient, the confidentiality limits, and information about the ethics and technician’s impartiality. Results The type of crime of vulnerable victims is mostly child sexual abuse (n = 55, 39.5%), child abuse and neglect (n = 42, 29.9%) and domestic violence (n = 26, 18.8%). The other type of crime are sexual harassment (n = 7, 4.9%), intimate partner violence (n = 4, 2.1%), and exposure to violence (n = 2, 1.4%), rape (n = 2, 1.4%) and others (e.g. threats and sexual coercion, crimes against freedom). We evaluate 98 female victims and 42 male victims, aged between 4 and 79 years old (M = 14.06, SD = 11.32).The relationship between victims and defendants are: 55 sons and daughters, 49 others situations, mostly more than one defendant (like parent and stepfather, grandmother and uncle), 16 stepchild, 6 ex-girlfriend and others (neighbour, grandchild, unknow). Discussion and conclusions It can be seen that the statements for future memory diligence is properly present in the current reality, and it can be concluded that the use of a structured protocol allows to benefit the quantity and quality of information, promoting, within what is a particularly vulnerable victim experience, making it very effective. At the same time, it allows the articulation between law, criminal justice system and forensic psychology, allowing an effective management of the process, praising the superior interest of the victim as well as emotional stability. Victim’s statements are crucial to our criminal justice system and give us a better understand of the experience of testifying and how we can reduce re-traumatization and revictimization of victims.

COVID-19 exacerbates existing system factors that disadvantage defendants: Findings from a national survey of defense attorneys.

COVID-19 has impacted many facets of daily life and the legal system is no exception. Legal scholars have hypothesized that the effects of the pandemic may contribute to more coercive plea bargains (Cannon, 2020; Johnson, 2020). In this study, we explored defense attorneys' perceptions of whether and how the plea process has changed during the COVID-19 pandemic. This study was exploratory, and we made no a priori hypotheses. We surveyed 93 practicing United States defense attorneys about their perceptions of whether and how the pandemic has affected court procedures, plea-bargaining and prosecutorial behavior, and defendant decision-making. We conducted semistructured follow-up interviews with 13 defense attorneys to help contextualize the survey responses. The majority of defense attorneys (81%, n = 76) reported that the plea process had changed during the COVID-19 pandemic, and that they experienced difficulty contacting and communicating with their clients, especially those who were detained. Two thirds of defense attorneys (n = 42) who said the plea process had changed thought that prosecutors were offering more lenient deals. One third of defense attorneys with detained clients (n = 23) reported having had clients plead guilty due to COVID-19 related conditions who might not have under normal circumstances. The majority of defense attorneys reported that the COVID-19 pandemic has impacted their ability to access and advise clients, and they believed that leverage in plea negotiations had shifted further to individual prosecutors. At the same time, the attorneys reported that prosecutors were offering more lenient deals, painting a complex picture of the plea negotiation process during the pandemic. (PsycInfo Database Record (c) 2021 APA, all rights reserved).

REACTIVATION OF SEPARATE PROCEDURE IN ECONOMIC MATTER PERFORMED BY THE ACT OF JULY 04, 2019 IN THE LIGHT OF THE CONSTITUTIONA PRINCIPLE OF THE RIGHT TO A COURT

One of the most important changes to the legal regulations in 2019 is the reform of the civil procedure introduced by the Act of July 4, 2019 amending the Act - Code of Civil Procedure and certain other acts. One of the most important goals of this reform was to improve the implementation of the civil right to a fair trial. According to the authors of the reform, the existing solutions in terms of the manner of conducting civil proceedings have worked well under conditions of a relatively low burden on civil courts. Among all the novelties introduced by the Act of July 4, 2019, the reactivation of separate proceedings in economic cases is particularly high. It is worth recalling here that separate proceedings in commercial cases were introduced into the Code of Civil Procedure on October 1, 1989 under the Act on the examination of commercial cases by courts. It was abolished on May 3, 2012, while separate commercial courts and a separate concept of an economic case were retained, therefore commercial courts heard commercial cases in “ordinary” proceedings. The initiators of the amendment pointed to the fact that the statistical indicators of the evaluation of the work of commercial courts indicate that this court procedure for resolving commercial disputes did not meet the requirements of economic transactions

Conditional dismissal as an alternative to the traditional criminal proceedings in Israel

The overloaded court system, along with the increasing recognition of the harm inflicted upon offenders by the criminal court procedure, led, in 2013, to the enactment of a new criminal-administrative procedure, termed “conditional dismissals,” which diverts minor offenses from the courts to be settled by prosecution authorities. This preliminary study examines the profile of 1750 cases of conditional dismissals concluded by district attorneys and police prosecution division between 2016 and 2018 and whether some notions of the “restorative justice” model were implemented. The findings indicate that both district attorneys and police prosecution division had initial difficulties in implementing the notion of diverting cases from the criminal court process. Over half of the cases in both agencies were for bodily injury and property offenses. There is a significant difference regarding the majority of the dismissal terms between the district attorneys and the police prosecution division. The results further indicate that 4.5% of all dismissals contained only restorative stipulations (especially in sex offenses), and one-third contained restorative stipulations along with punitive stipulations. The findings also show that the district attorneys are more inclined to use restorative terms, while the police prosecution division is more inclined to use punitive terms. The article discusses the possible explanations for these findings and the significant differences in the application of restorative practice between the police prosecution division and the district attorneys.

Advocacy through the Computer Screen: The Legal Permissibility of Jury Trial by Videoconference

The coronavirus pandemic has uprooted life as we know it. No institution is immune. As a result of the crisis, trials in every state (jury and bench, criminal and civil) have been continued until later dates. But must they be continued? Can they be constitutionally conducted over remote videoconferencing platforms like Zoom? And can they be conducted digitally even absent the consent of one (or both) parties?While due process concerns might render a digital jury trial unconstitutional in criminal cases, applying a balancing test to our current public health crisis weighs in favor of allowing videoconference jury trials in civil cases. In fact, a civil jury trial by Zoom might not only be permissible; it might also be necessary to actualize the Seventh Amendment's protections, especially if the COVID-19 pandemic continues longer than expected. If courts allow digital jury trials, the risk of certain pitfalls—such as the possibility of someone recording the proceedings—must be clearly communicated to the parties in advance.This paper will appear in an ABA book on online court procedures, set to be published at some point in the future.

A snapshot of emotional harms caused by the litigation process – Qualitative data from Ghana

BackgroundVery few studies have investigated the effect of the process of litigation on the mental health of litigants. In Ghana, not much is known about the stress that litigants encounter and how they cope during the process of litigation. MethodsThis study used a mixed-method sequential explanatory design to explore the stressors people litigating as individuals encounter in Ghana and how they cope in the process of litigation. As the second phase following the quantitative stage, interviews were conducted with seventeen (male = 13, female = 4) litigants (defendants = 4, plaintiffs = 13) who were selected (using criterion sampling) from the Law Court Complex in Accra, Ghana. Their average age and the average duration of the case was 50.13 (SD = 12.55), and 26.7 months respectively. Results and discussionTo explain the results found in the quantitative phase, three themes with subthemes were extracted from the data set: challenges in the court process, emotional consequences of the litigation process, and coping mechanisms. The frequent adjournments of cases, delays on court days, deliberate dragging of cases, financial strain, and opportunity cost, were the challenges encountered by litigants in the court process. These led to emotional outcomes such as stress, overstraining, sleepless nights, numbness, and the acceptance of court proceedings as part of life. To help them cope with these emotional outcomes, litigants looked for a light at the end of the tunnel and reliance on their faith. The stressful nature of the court process and how litigants cope with the process of litigation is discussed. Consequently, we recommend that people be educated about Bar etiquette and court procedures. Additionally, we suggest that lawyers should provide some form of scientifically-derived estimation of how long a case might last. It is also recommended that law firms consider providing counselling sessions for their clients.

THE EFFECTIVENESS OF MEDIATION IN COMPLETING DIVORCE CASES IN JAMBI PROVINCIAL RELIGIOUS COURT

The accumulation of cases always increases from year to year. For this reason, the Supreme Court issued Supreme Court Regulation (Perma) No.1 of 2016 concerning mediation procedures in court, as an effort to reduce the number of cases that go to court, including divorce. but unfortunately mediation does not show the expected success rate in religious courts. This research reveals the failure and success factors of mediation in the Jambi religious court, the role of the mediator in resolving divorce cases and exploring the effectiveness of mediation in divorce cases. This research is located at the location of divorce cases, namely the Jambi City Religious Court, the Kuala Tungkal Religious Court and the Sarolangun Religious Court. The results of this study prove that; first, the mediation success rate is only 4%. The failure factor for mediation is the lack of judges as mediators, there is no incentive funds for mediators who succeed in reconciling the mediator who does not have sufficient skills in dealing with the parties. Second, the role of the mediator in resolving divorce cases is not only as a facilitator but as a catalyst, educator, supporter and psychiatrist depending on the case at hand.

PERBANDINGAN TUGAS MEDIATOR PADA PENGADILAN AGAMA INDONESIA DENGAN MAHKAMAH SYARIAH MALAYSIA

Article 3 (2) Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2016 concerning Mediation Procedures, Case Examining Judges in the consideration of a decision must state that the case has been pursued peace through mediation by mentioning the mediator. The court is not only tasked with examining, trying, and resolving cases it receives but also seeks to reconcile the parties. The court, which has been impressed as a law enforcement and justice institution, now appears as an institution that seeks peaceful solutions for the parties. The implementation of Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2016 concerning Mediation Procedures in Courts can be an eff ort to resolve civil disputes so that the settlement of civil disputes through mediation is the main choice. The research method used is normative legal research which includes research on legal principles which is very basic in guided law. The nature of the research carried out is descriptive, namely research that describes and explains in clear and detailed sentences. The data used are secondary data obtained from literature, consisting of primary, secondary, and tertiary legal materials. Processing and data analysis used qualitative methods. The defi nition of mediation according to the Religious Courts in Indonesia and the Syari’ah Courts in Malaysia is the eff ort of the judges and courts to reconcile the parties so that the divorce process does not continue at the next trial. When the mediation process was carried out at the Indonesian Religious Court and the Syari’ah Court in Malaysia, there was a similarity, namely the mediation process was carried out at the fi rst trial and it was an obligation for the disputing parties in a divorce case to take mediation. according to the procedure for the appointment of mediators at the Indonesian Religious Courts and the Syari’ah Courts in Malaysia and the appointments of these mediators are both made by the judges.

Особенности рассмотрения малых исков в Новой Зеландии

The article analyzes the distinctive features of the small claims’ consideration procedure in New Zealand. The features of the tribunals for the resolution of such cases functioning and the procedural order of their consideration are investigated. Based on the study, the author concludes that there is an extrajudicial procedure for resolving simple disputes in New Zealand, resulting from the society’s need for quick and effective resolution of conflicts without using traditional court procedures.

Совершенствование порядка упрощенного производства в гражданском процессе России в целях реализации принципов процессуальной экономии

The Institute of simplified proceedings was introduced into the civil procedure legislation in March 2016 and was to increase justice availability, court procedures optimization, its precipitation and simplification. It certainly corresponds to the basic postulates of procedural economy principles, which in turn imply the effectiveness of the court’s protection of citizens’ violated rights and freedoms by saving financial and necessary for the case consideration time resources. This article is devoted to analysis of the Institute of simplified proceedings, problems associated with procedural rules application in the context of the procedural economy principle, as well as improving this procedural institution ability.

A BETTER WAY

A BETTER WAY

Optimisation and application of a forensic microsatellite panel to combat Greater-one horned rhinoceros (Rhinoceros unicornis) poaching in India

The Greater one-horned (GoH) rhinoceros is one of the most charismatic endemic megaherbivores of the Indian subcontinent. Threatened by poaching, habitat loss and disease, the species is found only in small areas of its historical distribution. Increasing demands for rhino horns in chinese traditional medicine has put the existing population under continuing threat, and large profits and low conviction rates make poaching difficult to contain. DNA forensics such as the RhoDIS-Africa program has helped in combating illegal rhino horn trade, but the approach is yet to be optimised for Indian GoH rhinoceros. Here we followed the International Society for Forensic Genetics (ISFG) guidelines to establish a 14 dinucleotide microsatellite panel for Indian GoH rhinoceros DNA profiling. Selected from a large initial pool (n = 34), the microsatellite markers showed high polymorphism, stable peak characteristics, consistent allele calls and produced precise, reproducible genotypes from different types of rhino samples. The panel also showed low genotyping error and produced high statistical power during individual identification (PIDsibs value of 1.2*10−4). As part of the official RhoDIS-India program, we used this panel to match poached rhino carcass with seized contraband as scientific evidence in court procedure. This program now moves to generate detailed allele-frequency maps of all GoH rhinoceros populations in India and Nepal for development of a genetic database and identification of poaching hotspots and trade routes across the subcontinent and beyond.

О мерах предварительной защиты по делам об оспаривании нормативных правовых актов замолвите слово

Article 251, section 7 of the Code of Civil Procedure of the Russian Federation specified, that filing of an application to challenge a normative legal act before the court does not suspend the challenged normative legal act. A functional analysis of the aforementioned norm brought the courts to the conclusion that interim measures were not provided for by law. Although an adoption of the Code of Administrative Court Procedure of the Russian Federation was not followed by any considerable changes to the regulation, one of the changes that occurred enabled the courts to take a single provisional protection measure regarding the administrative action to challenge a normative legal act — namely, to ban the application of a challenged normative legal act or its challenged provisions against an administrative plaintiff. Now, almost 6 years later, the time has come to evaluate how provisional protection measures in cases involving challenging normative legal acts work in practice.