Denial Of Justice Research Articles

‘Because I am a woman, an old woman, I have no voice’: gendered ageism and disempowerment of older women in three African countries

Background and objectives: Gendered ageism refers to the intersectionality of age and gender bias and discrimination. It is widely prevalent and leads to inequality, injustice, oppression, exploitation and disempowerment of older women. In this study, we explore the impacts of gendered ageism on three areas of older women’s lives in three African countries. These areas are: (1) participation in public and political life and access to justice and law enforcement; (2) family relations, inheritance, and land and property ownership; and (3) violence, abuse and neglect. Research design and methods: Eighteen women aged 54–85 years were interviewed for this study. Thematic analysis was undertaken to identify and explore disempowering impacts of gendered ageism on their lives and rights. Results: In all areas of the participants’ lives, their lack of voice in their inability to make choices, to claim their rights and to participate meaningfully in decision-making were highlighted. These manifested in the suppression of their interests, opinions and aspirations in public life; denial of justice; prejudice and discrimination within family settings; exploitation, harassment, abandonment and violence; and an overall devaluation, dehumanisation and silencing of older women. Discussion: Women often outlive men and experience marginalisation for a greater proportion of their lives. Yet, their lived experiences receive limited acknowledgement and redressal. In developing countries, older women face multiple forms of oppression arising from gendered ageism. This study highlights such experiences with the expectation that this will generate awareness, garner support from stakeholders and help inform policies for the protection and equal treatment of older women.

Два покушения и одно убийство в средневековом Париже

This article is devoted to the study of the circumstances of two crimes that occurred in Paris in 1391 and 1407. The study led to the conclusion that the Duke of Burgundy, Jean the Fearless, did not have sufficient grounds for killing the brother of King Charles VI, Louis of Orleans, since the day before they had reconciled with each other friend. The king's lack of desire to punish the Duke of Burgundy also testifies in favor of the fact that he did not consider him guilty. But the injured party – members of the House of Orleans – considered this a denial of justice, which led to a civil war.

Towards Abolition of the Doctrine of De novo Trials in Nigerian Courts

Whenever the problem of delay in the administration of justice is discussed the doctrine of de novo trial comes into focus with the various perspectives that the phenomenon presents. The Nigerian situation is as simple as stating that while the society is growing and moving forward, the Nigerian law (one of which is de novo trial) is dragging it backwards. The end result is that it is not only expensive and breeds delay and denial of justice, the system and those running it do not seem to bother and those affected do not also seem to have the will to make a fuss and perturbation. Yet, around the world, the evidence that the doctrine has been abandoned because it is ‘bizarre’ is so glaring that why it is still being maintained, entrenched and eulogized in Nigeria drives this study which adopts the doctrinal method. The study finds that de novo is a procedural bench problem and seeks to highlight that there are no dangers inherent in abolishing the procedure in the trial process where a Judge is elevated, dies, resigns, retires or is transferred so that his successor can continue from where he stopped and so that de novo can only be resorted to in the appellate realm where the need arises.

국제투자규범에서 유효수단 조항의 고찰

The International Investment Agreement (IIA) provides to investment and investor protection of contracting party’s obligations. It stipulates that if an investment and investor are damaged in violation of IIA’s protection clause, they will be subject to Investor-State Dispute Settlement (ISDS). Among the IIA's contracting party’s obligations, it does not provide for direct regulation of the conduct in judicial court of host countries.
 Regulations on the conduct of judicial courts are generally included in the category of ‘denial of justice’ in customary international law under the IIA’s ‘Minimum Standard of Treatment’ clause. It is established in the ISDS precedent. Recently, this is included in IIA's illegal indirect expropriation. The ISDS arbitral tribunal formed the legal principle of judicial expropriation. Judicial expropriation deals with deprivation of investment asset, indirect expropriation, and judicial procedures and substantive judgments.
 Regarding the conducts of the judicial authorities, it is regulated by the US model BIT and the Energy Charter Treaty (ECT) of the effective means clause of Article 12(10).
 The effective means clause provision be limited to the IIA. It was introduced as a US Model BIT policy in the 1980’s, and is regulated in a number of US BIT’s concluded by this model BIT. And, like the US model BIT, ECT also includes provisions on the receiving country's effective means clause for investor’s claims and rights enforcement.
 First, this paper examines the background of the introduction of the effective means clause in the IIA. Examining the legislative background can look into the criteria for interpreting provisions.
 Second, the specific types of violations of the provisions of effective means in ISDS arbitration cases were reviewed.
 Third, the relationship between the effective means clause of the IIA and judicial refusal was reviewed.
 In the case of the ISDS arbitration award, the violation of the ‘denial justice’ of the minimum standard treatment clause and the effective means clause was raised at the same time. The effective means clause is more flexible in interpretation and application than a denial justice. The effective means clause does not require the ‘Exhaustion of Local Remedies’ Rule. In the ISDS case of White vs. India, there is a case in which the MFN clause was invoked and an effective means clause was application. The effective means clause can be a useful guide for interpreting the access to justice clause in the Korea-Japan BIT and the Korea-China-Japan BIT.

“Cross Treaty Interpretation” en bloc or How CAFTA-DR Tribunals Are Systematically Interpreting the FET Standard Based on NAFTA Case Law

Abstract This article examines how tribunals set up under the CAFTA-DR have interpreted the fair and equitable treatment (‘FET’) standard under Article 10.5 in the last 15 years. It shows that they have consistently referred to NAFTA case law to define the standard and to interpret the scope and content of the different elements it contains (arbitrary conduct, legitimate expectations, due process). The only exception is regarding denial of justice. This is a fascinating example of “cross treaty interpretation”. I will explain the reasons why CAFTA tribunals have done so and examine whether or not this “cross treaty interpretation” en bloc is legitimate and sound in light of the canons of treaty interpretation.

Constitutional Flaws: Unrest in Swat 2007-09

The purpose of this paper is to explore the root cause of terrorism in Swat. It is a case study and qualitative research project. People of Swat suffered heavy human and material losses due to terrorism. The Taliban led by a local cleric; Maulana Fazlullah destroyed educational institutions, banned girls’ education, and watching television besides slaughtering innocent people. One of the causes of this phenomenon, was a constitutional crisis which prevailed in the region since the merger of Swat in 1969. Successive governments failed to integrate it in the national mainstream. On the contrary, authorities have used it as a laboratory for constitutional experiments-promoting discontent and denial of justice.

Denial of Justice and Judicial Measures

Denial of Justice and Judicial Measures

Exploring civil society perspectives on the human rights situation of LGBT+ people in the Caribbean Community

ABSTRACT This study is the first pan-regional analysis of civil society organizations’ perspectives on the human rights situation of LGBT + people in Caribbean Community (CARICOM) countries. Paradoxically, whilst UN treaties extend anti-discrimination rights to LGBT + people in most member countries, simultaneously, colonial-era legislation makes intimate same sex relations unlawful. Analysis of the corpus of civil society organizations’ (CSO) submissions to the United Nations Universal Periodic Review (UPR), reveals how governments’ failure to reform the law is often based on public opposition grounded in religious conservatism. Moreover, the endurance of anti-LGBT + colonial era legislation is shown to underpin a raft of rights pathologies and reinforce prejudice and negative social attitudes. The principal rights breaches stem from systemic institutional discrimination, and include violence, hate crimes and harassment; police malpractice and denial of justice; as well as failings in healthcare and social protection. Analysis of framing in the civil society UPR corpus reveals the personal impacts of on LGBT + people, including criminalization, victimization, stigma, fear and lack of self-worth.

Denial of Justice: Labyrinths of Social Injustice and Social Development

Denial of Justice: Labyrinths of Social Injustice and Social Development

Concept of non-legal disputes in Ukrainian judicial practice

This article reveals the problematic issues related to the exercise of a person's constitutional right to judicial protection.
 This study compared the latest versions of the provisions of the Basic Law that determine the competence of courts of general jurisdiction; as well as some opinions of judges of the body of constitutional jurisdiction on the wording of this provision.
 To achieve this goal, the authors analyzed the current practice of the Supreme Court in the system of courts of general jurisdiction. Based on this, a classification of disputes that are not subject to judicial review was formulated, namely cases: which are of a political nature; which belong to the exclusive competence of other bodies or for which there is no legal regulation; in respect of which the person has chosen an ineffective method of protection; and cases, the resolution of which will not have legal consequences for the rights, freedoms and interests of the individual.
 Warns against the introduction of a mandatory pre-trial (out-of-court) method of dispute resolution, which would be contrary to the previous legal positions of the body of constitutional jurisdiction.
 The significant essence of justice in general and the role of its consideration of the case on the merits with the adoption of a fair decision, where the latter will be a single act of social justice.
 The question arises that the absence of any other remedy will undermine the very essence of the law as long as it is a denial of justice. Disputes themselves are a means of identifying the law.
 The study leads to the conclusion that certain types of non-legal disputes, in particular those that are not regulated by law and those that will not have a direct impact on the rights and interests of the individual, can lead such a person to epistemic ambivalence, which is unacceptable in a state governed by the rule of law.

Between Consent and Coherence: Incidental Questions in an Imperfect World

International courts and tribunals must maintain a delicate balance between consent and coherence when they consider incidental questions as part of their dispute settlement function. There are compelling reasons, in the contemporary world of unprecedented complexity and interdependence, to instill coherence into dispute settlement procedures, so as to avoid the denial of justice. The exercise of jurisdiction over an “incidental question,” however, must not be forced to the point that it undermines the willingness of states to give their consent to such procedures.

Justice Delayed or Denied: The Myth of Justice in Pakistan

Justice in Pakistan has become a myth and an unachievable tool. In Pakistan only the concept of delayed justice exists as the delayed justice which actually is a denied justice. The main aim of this paper is to analyze the factor causing delay in justice. There are several reasons for delayed justice including complex procedures, old and ineffective laws, attitude of judges and lawyers, and the backlog of the pending cases in the superior as well as lower judiciary of Pakistan. The article highlights the significant causes of delayed justice and elucidates how justice can be revived in Pakistan. The study investigates how the stock of pending cases is increasing day by day causing denial of justice. This article also discusses the impacts of delayed justice on society and especially on litigants. In the end this article deliberates some recommendations for revival of justice in Pakistan.

Black November: Interrogating The Niger Delta Question

The paper interrogates the thematic preoccupations of Jeta Amata’s Black November on the vexed issues of the Niger Delta in Nigeria. The issues bordering on the quest for emancipation from injustice, environmental degradation, deprivation, inhuman treatment, negligence, are at the nexus of the agitations and militancy in the region. It draws inferences from what the movie overlooked and what it portrayed such as the failure of dialogue births violence. The objective is to highlight the problems in the Niger Delta and give credence to the thematic concerns raised by the director. Based on Relative Deprivation Theory (RDT), which sees violence as a product of frustration borne out of depriving people of their rights, denial of justice; a sense of oppression sets in that then leads to reactions that may be violent. The method adopted is descriptive analysis. Findings reveal that the Niger Delta region is much misunderstood, abused and betrayed by its own people, the media, Nigerian government, oil multinationals and the world at large. It concludes that the misunderstanding is largely a product of media misinformation and that of ignorance on the part of stakeholders and that the filmmaker succeeded in getting his message across.

Extradition Between European and African Countries: Overcoming the Challenges

Although EU states use the European Arrest Warrant (EAW) for the purpose of surrendering a person who is accused of committing an offence or who has been convicted of an offence, they use extradition when dealing with countries outside the EU. However, they use surrender when dealing with the International Criminal Court (ICC). Thus, extradition is one of the ways in which African and European countries (especially EU members) are cooperating in the fight against crime. Case law from courts in some African and European countries and from the European Court of Human Rights, the Human Rights Committee and the Committee against Torture, shows that extraditions between African and European countries have been delayed or hampered by allegations of human rights violations in the requesting state. These allegations have focused on mainly two rights: the right to a fair trial and the right to freedom from torture. The European Court of Human Rights has held that the extradition of a person should not go ahead if his or her trial was or will amount to a flagrant denial of justice or where there is a real risk of being subjected to torture. Although African courts and international human rights bodies have also held that extradition should not go ahead where there is a real risk that the person will be subjected to torture or where his/her trial will be unfair, they have not adopted the ‘flagrant denial of justice’ test. The case law also shows that some people have challenged the legal basis for their extradition. This article highlights this case law and suggests ways in which some of the challenges associated with extradition could be overcome. The article demonstrates that courts in some African and European countries have considered the nature of extradition enquiries. In some countries, such as Kenya, courts have held that extradition enquiries are criminal proceedings. However, in the United Kingdom, courts have held that extradition enquiries are criminal proceedings of a special type. There is consensus that extradition enquiries are not civil proceedings.

ЗНАЧЕНИЕ ТЕОРИИ ДЕЛОКАЛИЗАЦИИ ДЛЯ РАЗВИТИЯ ФРАНЦУЗСКОГО ЗАКОНОДАТЕЛЬСТВА О МЕЖДУНАРОДНОМ КОММЕРЧЕСКОМ АРБИТРАЖЕ

The notion of delocalisation of international commercial arbitration has recently drawn increasing attention from Russian and foreign scholars. The main problematic of scientific discussions relates to the question of how closely international commercial arbitration is related to the legal order of the seat of arbitration. The emergence and development of the theory of delocalisation of international commer-cial arbitration is inextricably linked to the French legal science. French scientists stand at the origins of this theory. Besides, French law and jurisprudence have been significantly influenced by the theory of delocalisation of international commercial arbitration. The following provi-sions of the French legislation provide the most significant examples. First, article 1511 of the French code of civil procedure constitutes a basis for the use by arbitrators of the method of direct choice of law (“voie directe”). This implies that arbitrators do not have to apply any conflict of laws rules. Therefore, French law provides for a broad autonomy of arbitrators in the choice of law, while at the same time reducing the link between arbitration and national law, including the French law. French law is thus in perfect harmony with the concept of delocalisation of international commercial arbitration. Second, it is worth mentioning that the French code of civil procedure contains a limited number of grounds for refusal of recognition and enforcement of foreign arbitral awards. This particularity permits to ensure the highest efficiency of international commercial arbitration, to maintain an arbitration friendly approach at the stage of recognition and enforcement of foreign arbitral awards, as well as to recognise and enforce arbitral awards that have been set aside at the seat of arbitration. This corresponds to the idea of delocalisation of international commercial arbitration. Third, the influence of the delocalisation theory on the French legislation is also reflected in the scope of international competence of the French supporting judge, who can act in cases where one of the parties incurs the risk of denial of justice. This means that the French sup-porting judge is entitled, for example, to nominate an arbitrator if one of the parties fails to do so, even if the dispute does not have any objective links to France. The features of the French legislation on international commercial arbitration examined above prove that it is impacted by the theory of delocalisation of international commercial arbitration. The recognition in legal science, law and court practice of the autonomy of inter-national commercial arbitration from national legal orders contributes to the growth of attrac-tiveness of Paris as a place of cross-border dispute resolution.

The phenomenon of judge law or the “Hohfeld case” revisited

The article examines the still disputed phenomenon of the so-called judge law. This term implies the ability of judges “to make law” besides the national legislative body. Although the proponents of judge law were often accused of trying to destroy the paradigm of supremacy of legislative acts over all other legal acts, including court decisions, the judge law ideology never questioned the crucial importance of normative acts, emanating from national legislative bodies. The problem of these acts is that they – more often than not – do not reflect the real social conditions, a particular judge is confronted with. In many cases, a judge cannot rely on legislative acts, because – in terms of the French Code Civil – the necessary normative provisions are non-existent, fuzzy, or insufficient. Nevertheless, any judge has to properly adjudicate a case at hand if he/she is eager to circumvent the accusation of denial of justice. According to Hohfeld professional lawyers, including judges, are usually not coherent while using the fundamental legal concepts, such as “contract”, “property”, “business”, “corporation” etc. In practical life it means the following: either one can depict his or her interests in the terms of “rights” or he/she is simply legally non-existent.

Procedural unfairness occasioned by unreasonable delay in finalising a disciplinary inquiry: Stokwe v Member of the Executive Council: Department of Education, Eastern Cape [2018] ZACC 3

“Justice delayed is justice denied” is a legal maxim which denotes that if legal redress is available to a party that has suffered, or is suffering an injustice but is not dispensed timeously, it has the same effect as having no redress at all (see Steenkamp J sentiments in Road Accident Fund v Commission for Conciliation, Mediation and Arbitration [2016] ZALCJHB 139 par 5; see also the definition at Definitions and Translations https://www.definitions.net/definition/justice+delayed+is+justice+denied (accessed 2019-09-12)). In this context, the maxim is used to emphasise that delays in finalising employment disciplinary processes may amount to a denial of justice. Research shows that unreasonable delays in finalising disciplinary cases affect the health and can even cause excruciating distress on the employees concerned (Van der Bank, Engelbrecht and Strumpher “Perceived Fairness of Disciplinary Procedures in the Public Service Sector: An Exploratory Study: Empirical Research” 2008 6(2) SA Journal of Human Resource Management 8).

Deprivation or Circumvention of the UN’s Immunity

Abstract The immune system is supposed to protect one’s body from harmful germs, but sometimes it may attack a healthy part of the body itself—this is called an ‘autoimmune disease’. Although the founders of the United Nations (UN) equipped it with such immunities as are necessary for the fulfilment of its purposes, it seems that its jurisdictional immunity is sometimes more detrimental to its proper functioning than protective of it, especially in the context of peacekeeping. The present study aims to discover a cure for this autoimmune disease. Immunities are, in general, under attack because they serve as insurmountable hurdles to holding those who exercise public authority accountable before domestic courts. Peacekeepers may harm the local population, but the UN’s immunity leads to the denial of justice in cases of third-party claims, which put pressure on the UN. However, neither deprivation nor circumvention of the UN’s jurisdictional immunity is a safe and holistic cure for this autoimmune disease. What we need to ensure is that the immune system functions as designed.

Extricating the Illegality Requirement from Judicial Expropriation

Judicial expropriation is the snow leopard of international investment law. Apparently it exists, but it is almost impossible to find. It was last spotted back in 2009, specifically in Saipem v Bangladesh. Since then, many investors have gone on expeditions looking for it, but arbitral tribunals have consistently disappointed them. Arbitral tribunals have rather been making it practically impossible for investors to plead it successfully. Their tactic for this purpose is crossbreeding judicial expropriation with denial of justice. Looking at the current jurisprudence, judicial expropriation is denial of justice on steroids. This paper is a rehabilitative project for a pure form of judicial expropriation. It demonstrates that judicial expropriation is a separate species and it should be kept separate for doctrinal reasons. Moreover, the pure form of judicial expropriation will not terrorise domestic courts if arbitral tribunals let it roam free. Contrary to some perceptions, its recognition will not open floodgates for investors to challenge adverse decisions from domestic courts. Additionally, if an arbitral tribunal applies a pure form of judicial expropriation, this does not translate into international substantive review of domestic decisions.

The Case of the Eight Turkish Military Personnel who Sought Asylum in Greece after the Failed 2016 Coup in Turkey: Fair Trial as a Reason Precluding Non-Refoulement and (Stricto Sensu) Proportionality

The paper is devoted to Stavros Tsakyrakis and uses a case - in which he was involved - as a case study allowing to advance two sets of key arguments concerning the power of Article 6 ECHR to bar refoulement. The case study concerns the extradition of eight Turkish military personnel who sought asylum in Greece in the wake of the failed military coup in Turkey, in July 2016. As far as the first set of arguments is concerned, the ECtHR has established that Article 6 can effectively prohibit extradition where the applicant risks facing, if returned to the requesting state, a ‘flagrant denial of justice’. The paper argues that, although the Greek courts did not properly engage in the aforementioned case of the eight Turkish servicemen with the relevant ECtHR case law, they ultimately reached the correct decision when they barred refoulement on the basis of Article 6. As to the second set of arguments, the starting point is that non-refoulement comes at a cost (diplomatic, economic etc.) for the host state. This cost is the reason why only a limited number of human rights, i.e. rights that have a special moral weight, have been viewed by the ECtHR as generating non-refoulement effects. In that respect, the paper discusses the absolute prohibition contained in Article 3 and the morally weighty -but not absolute- right enshrined in Article 2 as reasons precluding refoulement, and juxtaposes these two ECHR Articles to Article 6. In respect to Article 6 ECHR, the paper notes that, according to the ECtHR, not any denial of justice may block non-refoulement; a quality threshold applies, according to which a denial must be ‘flagrant’. Moreover, the paper argues that, to duly assess when claims under Article 6 should prohibit refoulement, one should counterbalance the (associated with interests and human rights) cost of non-refoulement against a further criterion. Outside of the traditional factors a court must take into account to determine whether flagrant breaches of Article 6 may occur in the receiving state, it should also examine the object of legal proceedings overseas, i.e. what interests and rights proceedings concern and the importance thereof. This requires balancing through stricto sensu proportionality as a means to prioritise -within the context of the special set of facts of a particular case- the rights that are morally weightier.