Legal Criteria Research Articles

Scope of application of Art. 3 and Art. 14 in the jurisprudence of C.E.D.O. in the case of vulnerable groups

The paper is devoted to the scope of application of art. 3 and art. 14 of C.E.D.O. jurisprudence, namely the principle of non-discrimination in public international law, which highlights some of the numerous cases of discrimination treated so far by the major international monitoring bodies. Primary attention being given to judicial or quasi-judicial bodies. Of particular interest and purpose of this research is the analysis of C.E.D.O jurisprudence which clearly indicates the path to be followed in other, much more serious situations, and the establishment of universal legal criteria, which can and must guide both parliamentarians and legal professions in drafting laws and in the practical application of the right to equality and the prohibition of discrimination.

The future of data-driven investigations in light of the Sky ECC operation

The Sky elliptic-curve cryptography (Sky ECC) operation is a prime example of a data-driven investigation. The collection of approximately 1 billion messages from 70,000 phones paved the way for hundreds of criminal investigations, resulting in numerous convictions in the Netherlands and Belgium alone. This article addresses how the Sky ECC operation interferes with the right to privacy and the right to a fair trial. We examine whether or not, and on what terms, there is a future for data-driven criminal investigations. Our main research question is therefore how data-driven criminal investigations can be (better) regulated in order to be in line with case law of the European Court of Human Rights. To answer the research question, the main characteristics and legal criteria for data-driven investigation are identified. These criteria derived from the right to privacy and the right to a fair trial. Finally, we examine the impact of a violation of these criteria for the use of evidence in criminal proceedings. The research uncovers a disconnection between data protection regulations and criminal procedural law. It highlights that practitioners concentrate primarily on the collection phase, governed by criminal procedural law, whereas the most urgent questions relate to the respect of data protection law and the right to a fair trial. This finding suggests an ongoing discourse relating to the transparency of data-driven criminal operations like Sky ECC and the need to address concerns regarding the reliability of evidence.

Algorithms for All: Can AI in the Mortgage Market Expand Access to Homeownership?

Artificial intelligence (AI) is transforming the mortgage market at every stage of the value chain. In this paper, we examine the potential for the mortgage industry to leverage AI to overcome the historical and systemic barriers to homeownership for members of Black, Brown, and lower-income communities. We begin by proposing societal, ethical, legal, and practical criteria that should be considered in the development and implementation of AI models. Based on this framework, we discuss the applications of AI that are transforming the mortgage market, including digital marketing, the inclusion of non-traditional “big data” in credit scoring algorithms, AI property valuation, and loan underwriting models. We conclude that although the current AI models may reflect the same biases that have existed historically in the mortgage market, opportunities exist for proactive, responsible AI model development designed to remove the systemic barriers to mortgage credit access.

중도중복장애 선정에 대한 특수교육지원센터 교사의 경험과 요구

The purpose of this research is to present what systematic supports special education
 teachers demand with reference to evaluation, diagnosis, and selection of students with severe
 and multiple disabilities as well as the actual administration at Special Education Support
 Centers. It has been due to the partial revision of Enforcement Decree of Act on special
 education for persons with disabilities, etc., and therefore the establishment of an additional
 clause to include severe and multiple disabilities as one of the criteria for Article 15 of
 the Act. Qualitative methodologies were used for this research, conducting individual
 interviews of five special education teachers who had experiences in administering assessments
 and evaluations of students with severe and multiple disabilities in order to determine their
 special educational needs. The transcribed data of the interviews were then analyzed with
 the constant comparative analysis. The research findings were categorized into 4 categories,
 9 subcategories, and 19 semantic units, the 4 categories being 1) awareness and experiences
 of special education teachers in relation to severe and multiple disabilities, 2) the process
 and actual administration of evaluation and diagnosis of the disabilities at Special Education
 Support Centers, 3) challenges in evaluation and diagnosis of students with severe and multiple
 disabilities, and 4) systematic supports that special education teachers demand to overcome the challenges. In conclusion, in the process of evaluating and diagnosing students with
 severe and multiple disabilities, special education teachers deal with various challenges such
 as ambiguity of legal requirements for diagnosis and selection, lack of awareness in teachers
 about the legal selection criteria for the students, and the absence of clear guidelines. Therefore,
 they strongly demand administrative and financial supports that are more practical.

Developing an extended producer responsibility system for solid waste management in Jordan using multi-criteria decision-making approach.

To move from a traditional end of pipe approach into a more sustainable solid waste management system, the Jordanian Government has recently passed a set of new regulations The National Solid Waste Management Strategy has put a road map to encourage circular economy practices. One of the considered policy instruments is the adoption of the extended producer responsibility (EPR). The current study aimed to adopt a multi-criteria decision-making method to select the most convenient EPR structure within the Jordanian context. The study used analytical hierarchy process (AHP) and fuzzy AHP (FAHP) techniques to select the suitable type of producer responsibility organization (PRO) structure. A four-level hierarchy model was constructed with 4 criteria, 10 sub-criteria and 3 PRO alternatives. The analysis revealed that the legal and administrative criteria is the most important one (0.47) followed by environmental criteria (0.22), whereas the least important ones were socio-economic (0.17) and technical criteria (0.13). The most preferable PRO alternative was found to be PRO with profit. There were slight differences between all weight values under AHP and FAHP. Despite the availability of several laws, there is a need to develop the legal and administrative framework to enable the adoption of EPR in Jordan. Research should be the first step in the process of EPR system design. None of the previous studies conducted used the AHP and FAHP in assessing and selecting the EPR systems.

Russia and South Ossetia United Civilizational Platform: Socio-Political and Cross-Cultural Interaction

The article is devoted to the topical after the collapse of the USSR problem of regional integration of sovereign countries for the joint solution of geopolitical, socioeconomic, general cultural and other tasks. The article analyzes the situation associated with the ambiguity of international legal criteria for the recognition of newly formed states and the inconsistency in the interpretation of the right of peoples to equality and self-determination. The historical justification is given and the legal basis for the entry of the Republic of South Ossetia into the Russian Federation as a new subject is described. It is shown that the reunification of two Ossetias, North and South, which created a new historical reality in the life of the Ossetian ethnic group, became the basis for the decision of the leadership of South Ossetia to join Russia by holding a referendum. The circumstances of the postponement of the referendum for an indefinite period are substantiated. The author concluded that the integration of Russia and South Ossetia will lead mainly to positive consequences for both states.

Millennia of legal content criteria of lies and truths: wisdom or common-sense folly?

Long before experimental psychology, religious writers, orators, and playwrights described examples of lie detection based on the verbal content of statements. Legal scholars collected evidence from individual cases and systematized them as "rules of evidence". Some of these resemble content cues used in contemporary research, while others point to working hypotheses worth exploring. To examine their potential validity, we re-analyzed data from a quasi-experimental study of 95 perjury cases. The outcomes support the fruitfulness of this approach. Travelling back in time searching for testable ideas about content cues to truth and deception may be worthwhile.

Missing persons patterns from Mexico: evidence of a forensic emergency crisis.

The relatives of missing persons in Mexico have denounced the slowness with which a court prosecution file is created by the justice administration system. Theoretically, the search is immediate, but many cases must wait 72h to build an investigation folder as a legal criterion. This standard has been copied from the UK and Australian police reports without adapting to the Mexican context. The analysis of disappearance reports between 2006 and 2018 shows that this timing criterion in Mexico is not supported. The analyzed database (the National Center for Planning, Analysis, and Information to Combat Crime, CENAPI) showed that in the 72-h range, only 34.53% of the people had been found alive or dead; figure far from 50% to 80% of Europe or Australia. This fact shows that those searching officers or the judicial bureaucracy can act as a factor that limits the search for missing persons. Additionally, there is a random pattern in the geospatial distribution of disappearance, with non-homogeneous frequencies per year. Results highlight the participation of families, the adoption of an evidence-based model, and the generation of geospatial forensic intelligence analysis to generate evidence-based public policies. The social demand of families to the government for not considering them takes relevance in forensic practice in Mexico, and the disappearance data support this assertion.

Liberal democracies and asylum: legal transformation and implementation challenges

Over the last 30 years, liberal democracies of the Global North have increasingly restricted access to their in-country asylum systems shifting many asylum and migration practices extraterritorially and prompting concern about the status of the universal human right to seek asylum. Most observers explain the trend as liberal states exerting national power and self-interest to ‘externalize’ asylum, ‘evading’ but not breaching international law. This piece adopts a different approach blending research on dynamic legal norms with Brunnée and Toope’s use of Lon Fuller’s criteria of legality. In contrast to explanations based on self-interest and power, I describe how the legal norm governing asylum has evolved over time alongside the shifting asylum and migration practices of liberal states through three phases. First, liberal democracies traditionally practiced an exclusively in-country approach to asylum prior to the late 1990s which only tentatively adhered to the criteria of legality. Second, the legal norm governing asylum shifted during the late 1990s and early 2000s creating new doctrine and legal practices at the multilateral level for reasons that resonated with the criteria of legality. Following contestation, however, liberal states have so far failed to implement the new substantive and procedural guidance despite the availability of more appropriate asylum practices. This account provides a significant qualification to the work on externalization and legal norm evasion, allows for the development of a typology containing three modes of asylum, and points to more legalistic asylum practices than what currently prevail among liberal states.

Patterns of the state-legal support to the dynamic information development of the socio-economic environment

The object of research is the process of state-legal provision of dynamic informational development of the socio-economic environment. It was determined that under modern conditions, the state-legal provision of dynamic informational development of the socio-economic environment consists in creating favorable conditions for the institutions of civil society. This should be implemented by the state in the form of authorized state authorities using a set of methods and means, as well as indirect influence through other socially important institutions, taking into account the development of scientific and technical progress. It is necessary to emphasize the economic, social, and legal criteria of society, which together form an effective basis for the development of the state. These criteria include economic and social freedom, which is possible only in a society with a market economy, where there is the right to choose any form of ownership and types of entrepreneurial activity, within the limits of legislation. Social criteria include self-governance and initiative of members of society; openness, i.e., free access to all sources of information. The indicators of the dynamic range of the employed people in all types of economic activity in Ukraine, the number of the employed people aged 15–70 by professional groups, and the indicators of the dynamic range of innovation costs were analyzed. Using Mann-Whitney U-test calculations, as well as Spearman's rank correlation coefficient, established that the rank correlation coefficient is statistically not significant and the rank correlation between the scores of the two tests is insignificant. Based on the results of the research, a map of the state-legal provision of dynamic information development of the socio-economic environment is proposed

Temporary Exercise of Powers as a Measure of Constitutional and Legal Responsibility Applied to State Authorities of Subjects and Local Self-Government Bodies in Russia: Theoretical Problems and Novelties of Legislative Regulation

The article analyzes the normative and legal regulation, the legal nature and procedure for the application of two similar sanctions of constitutional and legal responsibility: the temporary exercise by federal public authorities of certain powers of public authorities of subjects and the temporary exercise by public authorities of subjects of the powers of local self-government in Russia. The author concludes that in certain cases, the appropriate sanction acts as a measure of protection, and is applied outside the framework of the committed offense and in the absence of guilt, and in other cases it is a mixed or "double" legal sanction: constitutional and budgetary and financial. It is concluded that it is necessary to improve the procedure for applying this measure of constitutional and legal responsibility, with the mandatory participation of judicial authorities and the establishment of clear legislative criteria for its introduction. The author has identified multiple conflicts between the norms of the current Constitution of the Russian Federation and federal legislation establishing the grounds and procedure for the temporary exercise of powers, as well as between the norms of federal laws No. 131-FZ and 414-FZ and the Budget Code of the Russian Federation, requiring appropriate amendments by the federal legislator. The author also suggests improving the grounds and procedure for introducing the measure of responsibility (protection) in order to clarify the legal criteria for its applying, so that its implementation is possible either on the basis of voluntary consent of the subject's authorities (local self-government bodies) or in case of specific violations of budget legislation.

The Right of Legitimate Defense Against Cyberattacks in Public International Law

The emergence of this unusual occurrence necessitated the intervention of international law, which looked for to regulate it through the prohibition or discouragement of its employment through force, as expressed in Article 4/2 of the United Nations Charter, Additionally, international law aimed to govern the permissible usage of technology in the civil and military fields. This action was undertaken as a reaction to the recent increase in cyberattacks and the growing reliance in all fields This paper aims to analyse the legal criteria surrounding the classification of cyberattacks as acts of military aggression, specifically focusing on the circumstances requiring the use of the right to justified defence against governments and other powerful bodies.

Fetal anomaly diagnosis and termination of pregnancy in Ireland: a service evaluation following implementation of abortion services in 2019

Approximately 3% of pregnancies are diagnosed with a fetal anomaly, of which a proportion is fatal or life-limiting. The introduction of legislation for termination of pregnancy in Ireland in 2019 for conditions "likely to lead to the death of the fetus" made termination of pregnancy for "fatal fetal anomaly" an option for pregnant women in Ireland. This study examined all cases of termination of pregnancy performed for major fetal anomaly over the first 3 years of service implementation, including cases that did not meet the legal criteria, resulting in women traveling outside Ireland for abortion care. A retrospective service evaluation of tertiary fetal medicine clinics in 2 tertiary maternity hospitals between 2019 and 2021 was undertaken. We compared pregnancies of patients diagnosed with fatal fetal anomaly who underwent termination of pregnancy in Ireland with those of patients who did not meet the legal criteria and hence traveled outside Ireland for termination of pregnancy. Overall, 139 pregnancies met the inclusion criteria; 83 (59.7%) patients had termination of pregnancy in the tertiary maternity hospital (local), and 56 (40.3%) traveled abroad, mainly to the United Kingdom. Demographic characteristics were similar between the 2 groups, as was gestation at diagnosis and delivery. All cases where termination of pregnancy was local were discussed at fetal medicine multidisciplinary meetings, as opposed to 34% of cases of patients who ultimately traveled outside Ireland for termination of pregnancy. The most common indication (25/83; 30.1%) for local termination of pregnancy was trisomy 18, followed by anencephaly. Traveling to obtain abortion care was mainly due to diagnosis of trisomy 21 (30/56; 53.6%), followed by other multiple structural anomalies/syndromes deemed locally as not meeting the legal criteria. Legislation for termination of pregnancy for fetal anomaly, restricted to fatal diagnoses, is difficult to implement, requires significant multidisciplinary input, and can lead to limited services for pregnancies diagnosed with major fetal anomalies. Our findings emphasize the impact of legislative barriers to abortion care for fetal anomaly and the need for policies and services that support women's access to termination of pregnancy for fetal anomaly.

Анализ иностранной практики в области правовых оснований и подходов к ограничению, лишению родительских прав и отобранию ребенка у родителей при непосредственной угрозе его жизни или здоровью

<p style="text-align: justify;"><span lang="EN-US">An analysis of foreign practice in the field of legal grounds and criteria for the removal of a child from his or her family in cases of abuse, when there is a threat to his or her life or health has been carried out. At the moment the world practice demonstrates two types of systems of realization of the child's right to a safe childhood: the system of family services and the system of child protection. Demarcation is carried out according to the object whose interests are to be protected and the goals: preservation of the family and care for the mental and physical well-being of all its members in the first case, and the prevalence of the rights and interests of the child in the second. In both cases, the procedure for protecting children's rights is legal in nature, implemented by state structures with the participation of civil society. As a rule, it is carried out in the presence of social-marginalizing factors: parents' lack of economic means, parents' social deviation, drug or psychotropic substance abuse, but can be initiated against those parents who have demonstrated an aggressive and abusive attitude toward the child in society, and it has been perceived from a position of censure and disapproval, which has caused the corresponding consequences considered in this article.</span></p>

Health care providers’ early experiences of assisted dying in Aotearoa New Zealand: an evolving clinical service

BackgroundIn November 2021, assisted dying (AD) became lawful in Aotearoa New Zealand. A terminally ill person may now request, and receive, pharmacological assistance (self-administered or provided by a medical practitioner/nurse practitioner) to end their life, subject to specific legal criteria and processes. Exploring the experiences of health providers in the initial stage of the implementation of the End of Life Choice Act 2019 is vital to inform the ongoing development of safe and effective AD practice, policy and law.AimTo explore the early experiences of health care providers (HCPs) who do and do not provide AD services seven months after legalisation of AD to provide the first empirical account of how the AD service is operating in New Zealand’s distinctive healthcare environment and cultural context.DesignQualitative exploratory design using semi-structured individual and focus group interviewing with a range of HCPs.ResultsTwenty-six HCPs participated in the study. Through a process of thematic analysis four key themes were identified: (1) Difference in organisational response to AD; (2) challenges in applying the law; (3) experiences at the coal face; and (4) functionality of the AD system.ConclusionA range of barriers and enablers to successful implementation of AD were described. Adoption of open and transparent organisational policies, ongoing education of the workforce, and measures to reduce stigma associated with AD are necessary to facilitate high quality AD service provision. Future research into the factors that influence responses to, and experience of AD; the impact of institutional objection; and the extent to which HCP perspectives evolve over time would be beneficial. In addition, further research into the integration of AD within Māori health organisations is required.

Usher Syndrome on the Island of Ireland: A Genotype-Phenotype Review.

Usher syndrome (USH) is a genetically heterogeneous group of autosomal recessive (AR) syndromic inherited retinal degenerations (IRDs) representing 50% of deaf-blindness. All subtypes include retinitis pigmentosa, sensorineural hearing loss, and vestibular abnormalities. Thorough phenotyping may facilitate genetic diagnosis and intervention. Here we report the clinical/genetic features of an Irish USH cohort. USH patients were selected from the Irish IRD registry (Target 5000). Patients were examined clinically (deep-phenotyping) and genetically using a 254 IRD-associated gene target capture sequencing panel, USH2A exon, and whole genome sequencing. The study identified 145 patients (24.1% USH1 [n = 35], 73.8% USH2 [n = 107], 1.4% USH3 [n = 2], and 0.7% USH4 [n = 1]). A genetic diagnosis was reached in 82.1%, the majority (80.7%) being MYO7A or USH2A genotypes. Mean visual acuity and visual field (VF) were 0.47 ± 0.58 LogMAR and 31.3° ± 32.8°, respectively, at a mean age of 43 years. Legal blindness criteria were met in 40.7%. Cataract was present in 77.4%. ADGRV1 genotypes had the most VF loss, whereas USH2A patients had greater myopia and CDH23 had the most astigmatism. Variants absent from gnomAD non-Finnish Europeans and ClinVar represented more than 20% of the variants identified and were detected in ADGRV1, ARSG, CDH23, MYO7A, and USH2A. USH is a genetically diverse group of AR IRDs that have a profound impact on affected individuals and their families. The prevalence and phenotype/genotype characteristics of USH in Ireland have, as yet, gone unreported. Understanding the genotype of Irish USH patients may guide clinical and genetic characterization facilitating access to existing/novel therapeutics.

The essence and particulars of the circumstances that exclude administrative liability

The article examines the essence and peculiarities of the circumstances that exclude administrative responsibility under national legislation. It is emphasized that the recognition of circumstances that exclude administrative responsibility is an important element of human rights protection, which allows to avoid unfair and excessive imposition of an administrative penalty on a person who has committed an offense and to ensure the fair application of the law. According to the provisions of the Code of Ukraine on administrative offenses, the following are the circumstances that exclude administrative responsibility: extreme necessity, necessary defense and state of insanity. It is emphasized that the application of extreme necessity as a circumstance does not mean that a person will not bear administrative responsibility for other actions that were committed without this circumstance. In turn, exemption from administrative liability in case of extreme necessity does not mean automatic release of a person from civil or criminal liability, if such liability has occurred. It was concluded that the necessary defense can be applied only as a reaction to an illegal act. If the act was legal, the necessary defense as a circumstance exempting from administrative responsibility is not applicable. The position on the medical and legal criteria of insanity, as well as the peculiarities of the content of this circumstance, which excludes administrative responsibility, is supported. The need for detailing and normative consolidation of the procedure and conditions of application of circumstances that exclude administrative responsibility is emphasized. Moreover, this applies to both material and procedural components of the application of such circumstances. In the long term, this should have a positive impact on the effectiveness of law enforcement, ensure compliance with the principle of people-centeredness, and also improve the activity of subjects of authority in applying measures of administrative jurisdiction.

Soil resource, a pending regulatory debt in Chile

Soil is a non-renewable resource on a human scale and highly vulnerable to erosion due to anthropogenic management and the variable effects of climate. In Chile, the lack of a legislative concept for soil and changes in Land Use Capacity (LUCap) have constituted the main facilitating agents of soil erosion. Given the inadequacy of current land regulations, and to guide and contribute to the sustainability of the resource, this study presents a proposal for new land use legislation in Chile. We analyse the current national legislation on changes in the LUCap and compare the current land use in the Claro River sub-basin, Chile, with existing LUCap classes, identifying the legal criteria for establishing a national land use regulation, by comparing with international law from Costa Rica and Spain. We carried out a qualitative review analysis of 20 Chilean land use regulations and a quantitative, multi-temporal analysis of LUCap change in the Claro River sub-basin, using spatial analysis tools (ArcGIS 10.1 and/or QGIS 3.14) in Raster and Vector format. Legislations from Costa Rica and Spain were chosen due to similarities with Chilean environmental regulations. We observed that Chile must introduce a Framework Land Law with principles of protection and sustainability for regulating soil. Deforestation was the main land loss driver (60% of native forest loss) in the study area during the 16-year study period, as well as inadequate agricultural management practices. It is essential to unify legislation, following the example of comparative laws of Spain, with the vision of Costa Rica.

Smoke and mirrors? Regulation 12 and access to legal aid for victims of domestic abuse

ABSTRACT Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was introduced the number of unrepresented victims of domestic abuse in applications for protective injunctions, has increased. Studies consistently point to the strict legal aid means criteria as the reason behind this, however, there is a paucity of literature challenging why this is the case, given that provision is made within Regulation 12 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 for the financial eligibility thresholds to be waived in applications for a protective order. Drawing on a survey of 24 legal professionals and information provided by the Legal Aid Agency (LAA) following Freedom of Information Act requests, this article seeks to address this gap in the literature and examine the value of Regulation 12. Findings indicate that the limited use of Regulation 12 can be attributed to a weak understanding amongst legal aid practitioners about its existence, concerns amongst practitioners about not being remunerated for work completed on files and an absence of clear guidance for the Director as to the use of the discretion. The findings are timely as the means test being considered by the ongoing Legal Aid Review.

Corporate sustainability reporting: double materiality, impacts, and legal risk

ABSTRACT Following the enactment of the Corporate Sustainability Reporting Directive and the creation of the European Sustainability Reporting Standards (ESRS rules), the European Union has set a new regime of mandatory corporate sustainability reporting in motion. However, most of the ESRS rules will be mandatory depending on, or subject to, the assessment of double materiality. This article sheds light on the double materiality requirement. More particularly, the analysis focusses on the materiality assessment of the impacts of corporate actions, the challenges involved in such determination, and the associated legal risks. Challenges examined include the legal risk in the company-stakeholders engagement process, the accuracy and completeness of reporting, and the uncertainty about the legal criteria for determining impact materiality. This article recommends (1) that a sound legal strategy guide the company-stakeholders interaction regarding external impacts, (2) that enforcement strategies be designed to accommodate unintentional greenwashing, and (3) that assurance practices for sustainability reporting be expeditiously implemented.