Court Proceedings Research Articles

Law Applicable to the Procedure for Notifying a Party of a Court Proceeding on the Territory of a Foreign State

The paper examines the problem of legal uncertainty that arises when courts resolve the issue of the law applicable to the procedure for notifying a party to a court proceeding on the territory of a foreign state. The author identifies and considers two procedural stages at which the court is obliged either to determine in what order to notify the party, or to assess compliance with the notification procedure by another court. Based on the analysis of doctrine and law enforcement practice, the author identifies regulatory problems inherent in each procedural stage. The author concludes that, regardless of the procedural stage, there is no uncertainty about the applicable law if there is an international agreement between the States. The lack of an agreement makes law enforcement agencies look for alternative approaches that vary in practice. Based on a comparative analysis of approaches used in international practice, the author suggests ways available to the Russian regulator to overcome these problems in relation to each procedural stage.

«НАКАЗ», «СУДОВИЙ НАКАЗ», «ЗАБЕЗПЕЧУВАЛЬНИЙ НАКАЗ» ЯК ВИКОНАВЧІ ДОКУМЕНТИ: ПОРІВНЯЛЬНО-ПРАВОВИЙ АНАЛІЗ

The article is devoted to a comparative legal analysis of the provisions of the Laws of Ukraine “On Executive Proceedings”, “On the Constitutional Court of Ukraine”, “On Arbitration Courts”, “On International Commercial Arbitration”, the Economic Procedure Code of Ukraine, and the Civil Procedure Code of Ukraine in the context of disclosing the issues of legal categories “order”, “court order”, “interim order”, “executive document” with due regard to the updated provisions of national procedural legislation regarding the requirements for their content, delimitation and peculiarities of enforcement. Executing proceedings are the final stage of court proceedings, so first of all, it is necessary to understand the executive proceedings of those court decisions that are problematic for enforcement due to legal gaps in their definition, interpretation, delineation and enforcement. Executing proceedings, as a set of sequential actions, have their beginning, which is impossible without an executive document. By studying the provisions of the current procedural laws, the authors conclude that “court decisions” and “executive documents” are interrelated but not identical concepts, and therefore, for proper law enforcement, their meaningful load needs to be clarified. The authors identify the gaps in legislation which have negative consequences: the use of different names in procedural codes for an executive document required for the enforcement of the same court judgments depending on the proceedings; the “form” of a court judgment and the “type” of a court judgment have different content and cannot be applied as identical; the list of enforcement documents is contained in different laws, which does not contribute to the unity of law enforcement. Based on a comparative legal analysis of the current procedural laws, the authors propose ways to eliminate legal gaps. Key words: order, court order, interim order, executive document, executive proceedings, procedural law, court decision.

ABUSE OF PROCEDURAI RIGHTS BY ADVOCATE (ON THE EXAMPLE COMMERCIAL AND ADMINISTRATIVE PROCEEDINGS)

The article is devoted to the study of the problem of abuse of procedural rights by advocate on the example of commercial and administrative proceedings. The relevance of the chosen topic is substantiated and attention is drawn to the fragmentary nature of the coverage of the indicated issues in the scientific literature. The approaches formulated in the scientific literature and judicial practice regarding the understanding of the concept of «abuse of procedural rights» are presented. there are approaches. It is suggested that abuse of procedural rights by an advocate should be understood as actions committed by a lawyer within the framework of a judicial process that formally correspond to the norms of the procedural law, but do not correspond to its conceptual ideas, and are not intended to create an obstacle in the activity of the court or other persons. We consider the following as additional signs of abuse of procedural rights by the advocate: 1) a person who abuses procedural rights has a special status – an advocate; 2) the presence of procedural rights, which are abused by the advocate, are determined by his provision of legal aid and participation in the court process; 3) may result in prosecution not only of the advocate, but also, for example, of the bar association in which the advocate works (about which judicial practice has already been formed in the decision of the Supreme Court dated 14.07.2022 in case No. 755/11559/16-ts); 4) damages the prestige of the entire institute of advocacy. It is proposed to supplement Part 1 of Art. 43 of the Rules of Advocate Ethics. As part of our research, attention will be paid to the abuse of procedural rights by the advocate. The choice of this particular aspect of the specified issue is determined by several reasons: 1) the existence of rare cases of such abuse by advocate; 2) significant dissonance in the public consciousness, which arises due to the abuse of procedural rights by a advocate, which is due to the fact that a advocate must be a model of behavior as a representative of the legal profession and must comply not only with the current substantive and procedural legislation, but also with the Rules of Аdvocate Ethics; 3) creation of a significant threat to the authority of the entire institute of advocacy.

RESISTANCE OF NU AND AUMA RELATIONS IN PAMEKASAN REGENCY

Abstract: Looking at the fact that there is a practice of intolerance with violence that occurred in Pamekasan shows that there is polarization of Muslim groups in Pamekasan with the growth of right-wing groups such as AUMA. This research aims to reveal the resistance of AUMA and NU Pamekasan using a qualitative phenomenological approach, data collection was carried out using interviews, observation and documentation. This research utilizes Gilin's relationship theory, namely whether the relationship between NU and AUMA carries out compromise, mediation, conciliation, restraint and court proceedings. The results of this research show that AUMA has a very dominant influence in cases of violence in the name of religion in Pamekasan. This occurs because of AUMA and NU's resistance to several religious thoughts that are not in line, AUMA does not agree with NU regarding Indonesian Islam, women leaders and several issues. other. Cases such as the burning of tourist land and the siege of officials' houses are forms of resistance between the two. The results of this research are also in sharp contrast to Hamdi's research. Where Hamdi found that the relationship between NU and the former FPI in Bangkalan was very good, so that there was a leadership merger between the former FPI and used this good relationship as a force to reduce acts of intolerance. One of the factors that strengthened the AUMA Effect in Pamekasan was the existence of an idea or regional regulation regarding Pintusalam where Islamism in Pamekasan became the embryo of AUMA religious thought.

Juridical Analysis of the Notary's Position as a Witness in Trials Is Linked to the Notary's Right To Refuse

The importance of the Notary's role as an official who witnesses the execution of a legitimate deed cannot be overstated. Notaries have the option to retract their statements, but occasionally they are called upon to give testimony. This study is to investigate notaries' status as witnesses in court proceedings and to assess the legal safeguards afforded to them about their refusal rights. Normative juridical research methodology is used. Secondary data is the kind of data that is used. Techniques for analyzing data that combine deductive reasoning and qualitative analysis. The results of this research are: first, The role of a Notary as a witness in a trial is essentially governed by the UUJN. Notaries are not required by laws to testify; in fact, their Oath of Office and Article 16 of the UUJN forbid them from speaking, not even in front of the court. Notaries have the prerogative and duty to refuse. To finish the legal process in court, the Notary must, however, also represent the state's interests. The Notary must testify during the trial if mandated by law. Notaries cannot decline to be used as witnesses without the approval of the Notary Honorary Council, in accordance with the provisions of Article 66 UUJN. Instead, notaries must be able to control when to speak and when to remain silent. Second, In order to testify in court, notaries are granted legal protection as Public Officials. Protection of Notaries as witnesses in criminal cases following the publication of Constitutional Court Decision No. 49/PUU-X/2012, which states that summoning a notary public requires first going via the Honorary Council of Notaries in compliance with Article 66 UUJN regulations. The rights and obligations of a Notary as stated in the Notary's oath of office, Article 16 paragraph (1) letter e and Article 54 UUJN, Article 1909 paragraph (3) of the Civil Code, and Article 322 of the Criminal Code also provide protection for notaries.

Systemic failures in New Zealand's child-welfare and Family Court proceedings underlie and perpetuate child offending

Early childhood offending onset (before age 14 years) is associated with increased risk of lifecourse offending and poor life outcomes. The vast majority of children who offend in Aotearoa New Zealand (N.Z.) have had involvement with the child-welfare system prior to offending. Why does this engagement with statutory systems not prevent the trajectory into offending, nor its persistence into the youth-justice system (aged 14–18)? This study interviewed 33 key stakeholders (including family members, lawyers, police officers, social workers, psychologists, school and cultural leaders) on the systemic issues they had experienced with children who had offended and their families. Interviews were transcribed and analysed by the authors. Barriers to effectively responding to offending (and, more importantly, prevention of offending in the first place) included child-welfare engagement that was delayed and ineffective; deficit-focused engagement with families and children; under-resourced Family Court systems that delayed court proceedings and further hindered effective child-welfare intervention; and systemic shortfalls that continued once a child had offended, with widespread uncertainty as to how best to respond or access appropriate resources. Earlier and more effective intervention with children and families with child-welfare concerns is needed to prevent and reduce offending and victimisation of and by children.

EVIDENTIARY STANDARDS OF THE UN COMPENSATION COMMISSION: TAKEAWAYS FOR UKRAINE

Background: According to international law, a state responsible for internationally wrongful acts is obliged to fully compensate for the damage caused by such acts (Responsibility of States for Internationally Wrongful Acts, Art. 31). Accordingly, victims who suffered losses as a result of such actions are entitled to compensation. To implement these fundamental principles, the Committee of Ministers of the Council of Europe established the Register of Damages Caused by the Aggression of the Russian Federation against Ukraine. It is just the first of three elements of the future compensation mechanism for Ukraine (the other two, yet to be created, are the compensation commission and the compensation fund). However, to get compensation, every victim of the war will have to prove his or her case before the future commission. In this regard, the evidentiary standards will become critical. To understand how future compensation mechanism for Ukraine could operate, it is useful to study the practice of similar institutions. The UN Compensation Commission deserves special attention, as it could provide valuable insights into how war-related damage must be proven to warrant compensation. Methods: The article’s primary purpose is to explore the approach adopted by the UN Compensation Commission with respect to evidentiary standards. To this end, the article will first outline the general framework of the Commission's work, its purpose and organisational structure. It is then necessary to describe the categories of claims reviewed by the Commission, since - as will be shown later - the Commission applied a diversified approach: different categories of claims were subject to different evidentiary standards with varying degrees of exactingness. This differentiation was necessitated by the prioritisation of claims and the use of an expedited procedure for reviewing first-priority claims. This main part of the study will focus on the Commission's documents that illustrate its approach to evidentiary standards. First, the three evidentiary standards applied by the Commission will be outlined and explained: proving the incident alone with no need to establish the extent of the damage; proving damage on the basis of a "reasonable minimum" of evidence appropriate in the circumstances; and proving damage on the basis of documentary and other evidence sufficient to establish the extent of the damage. The article will then analyse how these three standards were applied in practice to the selected categories of personal injury claims. Finally, the conclusions will consider what takeaways can be drawn from the Commission's case law for the Ukrainian case. Results and Conclusions: In times of armed conflict and occupation, gathering evidence of harm is notably challenging for victims due to various reasons. This fact calls for special consideration from international compensation mechanisms, which cannot adhere to the rigid formalities used in regular court proceedings. That is why the international law of evidence is adaptable and seeks to adjust to claimants' unique situations. This adaptability is exemplified by the relaxed and diversified standards of proof utilised by the UN Compensation Commission. Diversifying the standards of proof in the practice of the UN Compensation Commission consisted of applying three different approaches to different categories of claims. In addition, the burden placed on claimants was eased by presumptions developed in the Commission's case law. The pioneering approaches of the UN Compensation Commission should be applied and refined within an international compensation mechanism for Ukraine. This entails prioritising individual claims, introducing both regular and expedited tracks for processing claims, and ensuring flexibility with regard to the burden of proof and evidentiary standards to accommodate the challenges of wartime evidence collection without overwhelming victims.

Family mediation: theoretical and legal aspect

This article examines the significance of the use of family mediation in the resolution of family conflicts from the point of view of theoretical and legal aspects. The context of the work also touches upon the significant issues of mediation regulation at the legislative level concerning the rights and obligations of the participants of the process. The author analyzes the basic principles of family mediation and identifies the advantages of this approach over court proceedings in resolving family disputes. Special attention is paid to the mediator’s role and functions in the conflict resolution process. The article also examines the legislative framework regulating family mediators’ activities, status, rights, and obligations. The article’s main idea is that family mediation is an effective tool for resolving family conflicts, contributes to the safety of family relations and allows the parties to come to a mutually beneficial solution to the problem independently. The article argues in detail the positive sides of family mediation, substantiates the need for its application in modern society and identifies the need for further research in this area for a detailed understanding of all the pros and cons of the use of family mediation in contemporary society.

Doing right by families: Presenting dynamic performance metrics for legal excellence in child welfare law

AbstractTo meet the challenge of advancing child welfare law, a field affecting millions of families a year, practicing attorneys have developed a wealth of guidance for best practices. The Judicial, Court, and Attorney Measures of Performance (JCAMP) provide a way to determine whether legal programs are following these recommended practices and to assess the strength of attorney–client relationships. After providing context around challenges to high quality legal representation, best practice guidance, and evaluation research findings, this article reviews the JCAMP measures of attorney practice. JCAMP may be used by legal programs to both assess their own practice and to elicit feedback from affected families to ensure consistent high quality representation. Boldly assessing attorney interactions, and the experiences of clients in the court process, is critical to guiding and empowering lawyers to achieve excellence.

Court-reported competence to proceed data across the United States.

Competence to proceed (CTP) is a constitutional protection intended to facilitate fairness and dignity of court proceedings. Researchers have estimated that between 60,000 and 94,000 defendants are evaluated for CTP each year. Yet no research has systematically identified the number of evaluations conducted each year, despite their critical role and many profound implications. We used large-scale, systematic data collection to address this knowledge gap. Given the siloed nature of the judicial and forensic mental health systems, we anticipated incomplete data and that the number of evaluations would far exceed previous estimates. In September 2019, we used public information requests to solicit CTP evaluation order data from the judiciaries of 50 U.S. states, the District of Columbia, and the Federal Bureau of Prisons. We accepted evaluation proxies, such as evaluations ordered or evaluations filed, from the 2018/2019 calendar/fiscal year. We used Uniform Crime Reporting data to estimate a nationwide evaluation-to-arrest ratio and annual evaluation volume. Twenty-five states provided data. We deemed data from 18 states acceptable while acknowledging that data likely underrepresented actual evaluation volume. By extrapolating data from these 18 states, we estimated a conservative national evaluation-to-arrest ratio of 0.015 (95% confidence interval [-0.007, 0.037]), which suggested that 15 evaluations are conducted per 1,000 arrests each year. Consequently, it seems likely that at least 140,000 evaluations are ordered each year nationwide, with several hundred people referred for evaluations each day. Annual CTP evaluation volume likely far exceeds previous estimates. Transparent data are difficult, if not impossible, to obtain. As a result, researchers, legal and forensic mental health professionals, and policymakers lack the ability to implement informed, constitutionally protected CTP practices. Key implications, research directions, and detailed data infrastructure recommendations are provided. (PsycInfo Database Record (c) 2024 APA, all rights reserved).

Некоторые процессуальные аспекты взыскания судебной неустойки

The article deals with certain issues of the procedure for collecting a court penalty. The procedure for awarding a court penalty in various types of court proceedings is investigated. A comparative analysis of the norms of arbitration and civil procedural law regulating the procedure for collecting a court penalty is carried out. The practice of collecting a court penalty in arbitration courts and courts of general jurisdiction is considered. Attention is focused on the problems of legal regulation, gaps in legislation and inconsistency of application practice.

Simplified Lawsuits in Dispute Resolution Within Sharia Economic Law in Indonesia

This research is based on the numerous disputes in Sharia economic law within Sharia Business Financial Institutions, legal aid in the field of Sharia economic law, and civil matters that have not been well resolved. The Regulation of the Supreme Court of the Republic of Indonesia (PERMA RI) No. 4 of 2019 regulates the resolution of Sharia economic law disputes in a simplified manner. However, the socialization of this regulation to the public is still lacking, causing frequent obstacles in the implementation of this PERMA RI. This research is a literature study with a juridical approach aimed at analyzing the implementation of PERMA RI in the resolution of Sharia economic cases. The primary data in this research includes PERMA RI No. 4 of 2019, PERMA RI No. 14 of 2016, PERMA RI No. 2 of 2015, and PERMA RI No. 1 of 2016. Several relevant cases are used as important data to analyze the implementation of these regulations. The results of this research show that the process of simplified lawsuits in the resolution of Sharia economic disputes, which is expected to be easier, faster, and cheaper in court, has not been realized in accordance with PERMA RI. This needs to be a concern for the Supreme Court because most Sharia economic dispute cases involve companies and the public. If the Supreme Court regulations are not properly implemented in court proceedings, it will create a space for injustice. Therefore, the socialization of these Supreme Court regulations needs to be enhanced by academics and practitioners so that their implementation in the future can be�better.

The role of European equality bodies to address algorithmic discrimination

European Union (EU) seems to have the aim to strengthen the role of equality bodies and encourage the expansion of their scope of application, their functions and their powers. This implies that they can play an essential role in challenging discriminatory decisions made through algorithmic systems. Due to the possibility they have to access information, to issue binding decisions in individual or collective cases of discrimination or to initiate court proceedings in their own name, they seem like the best positioned to offer an effective protection against algorithmic discrimination. In this article, we study the latest regulatory proposals relating to these bodies and which functions they must carry out to help people that have been discriminated against by artificial intelligence systems. Notwithstanding we argue that equality bodies have a privileged position to deal with discriminatory automated decisions, they need independence and human, technical and financial resources to perform all its tasks and to exercise all its competences effectively, and this is not always guaranteed.

Responsibility for Falsification of Evidence

The article considers some issues of qualification of falsification of evidence: whether it is possible to be held liable for falsification, if the court decision, on which the evidence was falsified, has entered into legal force; what is the subject of falsification of evidence; whether it is possible to recognize falsification of evidence as a minor act; whether the subject of falsification is the head of a legal entity, who did not directly participate in the court proceedings; legal assessment of falsification of evidence. Based on the analysis of the provisions of the law and judicial practice, the author substantiates the answers to the questions posed.

Kids, courts and canines: Evaluating the Justice Facility Dog Program through a therapeutic lens in the Perth Children's Court

Court environments can be stressful and induce anxiety in victims, witnesses, and other court users. Taking heed from justice facilities in other jurisdictions, the Children's Court of Western Australia introduced Winston, a justice facility dog, at the Perth Children's Court facility to help reduce the stress and anxiety of victims, witnesses, and court users. This article presents survey ( n = 55) and interview data ( n = 17) from staff and stakeholders who reported positive changes in the court atmosphere, with limited negative impacts on the running of the court. Surveys were also conducted with child victims/survivors ( n = 13), caregivers ( n = 44), and other court users (including accused young people; n = 23). Children and caregivers’ results indicated significantly reduced stress and anxiety levels associated with attending the Children's Court after interacting with the facility dog. When analysed through a lens of therapeutic jurisprudence, the positive impacts on court-user well-being and limited impact on the court and legal processes solidified the therapeutic principles of the program. The findings of this study highlight that justice systems could implement similar positive therapeutic programs at other courts to reduce negative impacts on people attending and working at the facilities.

The Moral Principles Guiding the Judge’s Activities (Illustrated by the Life Journey of A. F. Koni)

The year 2024 commemorates the 180th anniversary of the birth of Anatoly Fedorovich Koni (1844–1927), a prominent lawyer, prosecutor, statesman, and public figure in post-reform Russia during the latter half of the 19th century. In this context, it appears fitting to reconsider the legacy of this iconic individual, whose life journey serves as a compelling testament to the challenging process of shaping and advancing the principles upon which the trial currently rests. The aim of this study is to uncover the attributes of the present-day incorporation of A. F. Koni’s moral and ethical principles within the domestic legal framework. Research methods. This study was based on general scientific methods (analysis and synthesis, etc.) and methods of legal science (historical-legal, formal-legal). The study is based on the theoretical works of domestic specialists who have studied the A. F. Koni’s legacy. Study results. The moral concepts of A. F. Koni were formulated in the Constitution of the Russian Federation, wherein the fundamental tenets of administration of justice are enumerated: independence, irremovability, inviolability of judges, and openness of court proceedings. Moreover, the judge’s moral and ethical requirements coined by A. F. Koni were mirrored in the Law of the Russian Federation No. 3132-1 on the Status of Judges in the Russian Federation dated 26 June 1992. The Code of Judicial Ethics adopted in 2012 gains particular importance in the context of the analysis of A. F. Koni’s legacy. This document consistently and comprehensively outlines the principles of professional conduct for judges, as well as their involvement in activities pertaining to the advancement of law and legislation, implementation of legal practice, etc. It appears imperative to conduct further examination of A. F. Koni’s moral and ethical concepts to enhance the existing legislative instruments regulating judicial activities.

Article on Contempt of Court Process in the New Criminal Code: Between Respect and Concerns of Judges’ Unlimited Authority

Article on Contempt of Court Process in the New Criminal Code: Between Respect and Concerns of Judges’ Unlimited Authority

Virtual Court Proceedings in Nigeria: Some Legal Matters Arising

The outbreak of COVID-19 brought about the hitherto uncommon practice of e-filing as well as the practice of virtual court proceedings in the Nigerian Judiciary in a bid to dispense with extremely urgent, essential, or time-bound matters. The Lagos State High Court had its first virtual or remote court hearing on May 4, 2020, where a driver, Olalekan Hameed, was tried, convicted, and sentenced for the murder of 76-year-old Mrs Jolasun Okunsanya virtually. In the wake of these developments, there have been legal debates on the constitutionality or otherwise of virtual hearings. This Article examines the debates on the constitutionality or otherwise of the Nigerian courts’ adoption of virtual court proceedings. The paper concludes that though utilizing the development brought by ICT, the internet, and associated technologies, virtual court proceedings, and e-filing are practicable and desirable, a lot needs to be done in terms of building the capacity of the Judiciary, amending the rules of court, the RPC, reviewing the curriculum of Nigerian Law School and in mandatory training of lawyers on the use of ICT in legal practice.

Problematic issues related to the lawyer’s implementation of the position in the speeches of the parties during the proceedings in court with the participation of jurors

The article deals with problematic issues related to the implementation of a lawyer’s position when making an introductory statement and in the debate of the parties in court with the participation of jurors. The author analyzes the question of how the term “defense position in the case” can be defined and how the position is related to the content of speeches. In this regard, the prohibitions that are related to the content of this legal institution are considered, as well as the range of information that cannot be reported, since they are outside the positions of the parties. Based on the analysis of examples from judicial practice, the author comes to the conclusion that, based on the content of the introductory statement and its “positional” component, it is forbidden to analyze the positions of the parties in the introductory statement, to make judgments about the quality of the investigation and to evaluate the evidence. The article raises the question of what are the limits of the presentation of the factual circumstances of the case in the introductory statement and whether it is possible to refer to the norms of law in it. It is noted that the limits associated with the justification of the position in court debates are of great importance.

Subjects of the right to a constitutional complaint in Ukraine, Czech Republic and Poland: comparative analysis

The article is devoted to a comparative legal study of the legislation and the practice of its application in relation to the subjects of the right to a constitutional complaint in Ukraine, the Czech Republic and Poland. The author examines the provisions of the Constitutions of the countries, mentioned above, special laws which regulate the right to a constitutional complaint of corresponding subjects, as well as the constitutional courts practice in each of the previously mentioned countries. The study highlights not only a clear list, but also the essence of the subjects of the right to a constitutional complaint in Ukraine, the Czech Republic and Poland through the prism of judicial practice. The author outlined main peculiarities of natural persons, legal entities, in particular legal entities of public law and the state, as well as local self-government bodies as subjects of the right to a constitutional complaint. A significant role is assigned to legal entities and local self-government bodies, because the legislation and judicial practice distinct greatly with regard to these categories of subjects of the right to a constitutional complaint that the legislation and judicial practice in the studied states differ the most. The right of public associations and individuals to file a constitutional complaint on behalf of other (third) persons is also being investigated. The issue of attorneys’ participation in Ukraine, Poland and the Czech Republic both at the stage of preparing constitutional complaints and during court proceedings in each of these countries is revealed. As a result, appropriate proposals were made to improve domestic legislation concerning this issue. Having studied the Czech and Polish approaches to the essence of subjects entitled to a constitutional complaint, the author identified problems and suggestions for improving the relevant legal regulation in Ukraine. In particular, amendments were proposed to Article 56 of the Law of Ukraine “On the Constitutional Court of Ukraine” regarding the definition of the more precise subjects list of the right to a constitutional complaint. Having carried out this comparative legal analysis, the author proposed instances when it is appropriate to grant legal entities of public law and local self-government bodies the right to file a constitutional complaint in Ukraine. The author also provides grounding in irrationality of granting such a right to state bodies in Ukraine because of state administration peculiarities.