Due Process Guarantees Research Articles

Особливості проведення слідчих (розшукових) дій (допиту) в умовах воєнного стану

The article is devoted to the study of the peculiarities of conducting investigative actions (interrogation) caused by the introduction of martial law on the territory of Ukraine. The article analyzes the legislative innovations that were established in connection with the full-scale invasion of the Russian Federation into the territory of the state, in particular, the possibility of using as evidence by the court the video recording of the statements that were given to the prosecutor, the investigator in the conditions of martial law, as well as recording the course and results of the interrogation of the victim, suspect or witnesses (with the participation of a defense attorney) using available technical means of video recording, which are aimed at increasing the level of protection of citizens’ rights. The significance and relevance of the question of interrogating a witness, or victim in the mode of a video conference is outlined. The need to regulate the interrogation is substantiated so that the court is empowered, in exceptional situations, with the possibility of a "departure" from the principle of immediacy of the examination of testimony during the trial, enshrined in Article 23 of the Criminal Procedure Code, under the condition of mandatory observance of due process guarantees. The duty of the court tomonitor the interrogation to prevent possible extraneous influence on the interrogated subjects is characterized. The specific properties of the interrogation of a minor and the need, to avoid a possible psychological injury to the child, to observe all the guarantees and rights of a minor are substantiated. The child’s right to free secondary legal assistance, which provides for the protection and representation of interests in courts, other state bodies, and local self-government bodies, before other persons, as well as drafting procedural documents, is analyzed. Gaps and problematic aspects are singled out, which negatively affect both minors and the results of criminal proceedings in general.

La garantía del debido proceso y la práctica de la prueba en las audiencias telemáticas

The implementation of telematic hearings during the pandemic has been a valuable tool to connect the procedural parties with the judge, streamlining judicial procedures. However, this change presents challenges in terms of respecting due process guarantees, especially in terms of authenticity of information and protection of personal data. Due process guarantees respect for the fundamental rights of people and regulates judicial acts and procedures. The implementation of telematic hearings has raised concerns about the technical quality of the connection, the security of the information and the lack of physical interaction to evaluate the credibility of the testimonies. The research methods used include observation to determine regularities in the hearings, bibliographic review to analyze relevant documents, and expert judgment through interviews and surveys. Likewise, methods such as analysis-synthesis and inductive are used to delve into the impact of procedural guarantees, lege ferenda to propose legal modifications, and historical-logical to evaluate compliance with guarantees and possible solutions. To address these concerns, a modification to the General Organic Code of Processes is proposed, establishing clear protocols that include verification of the identity of the declarant, the prohibition of reading notes during the declaration, and the possibility of applying additional verification in case of measures of doubts about the authenticity of the information. The proposal seeks to guarantee the integrity of the judicial process in telematic hearings, ensuring respect for the principles of due process and equal conditions for all parties involved.

The Importance of Analysis of Judicial Circumstances in the Sentence Dosimetry Process

The Constitution plays an important role as a point of reference for the critical analysis of the criminal system, not only because it derives from the legal assets susceptible to punitive protection, but also and among other reasons, because the principles enshrined as a government norm in the Penal Code governing The imposition of sanctions is a clear development of the constitutional text and doctrine that the Constitutional Court has been building with its pronouncements, in the form that criminal law must acquire. The dosimetry of punishment in Brazil takes a three-step approach, pushing the system of fixed sanctions implemented by the legislature or the full discretion of the judge, promoting, on the other hand, a distribution of functions between the two, as he chooses the minimum and maximum sentence levels and dosage parameters, and this determines the sanction in the specific case from the legal criteria. In this sense, the present research aims to analyze the importance of analyzing judicial circumstances in the process of penalty dosimetry. The specific objectives are: to present a brief history of criminal legislation in Brazil, to review the most recent literature on the application of the penalty and its principles, to analyze the relationship between the dosimetry of the penalty and judicial circumstances and to point out cases in the jurisprudence that materialize the revised theory. Thus, given the relevance of the theme in the current legal scenario, the research is justified by discussing a contemporary theme. Through research on the principles of exceptionality, state of innocence, motivation of decisions and proportionality and the dosimetry of the penalty, possible judgments of the judge that relate the dosimetry of the penalty with the principles of human rights will be discussed. The judge should take charge of the evidence produced in relation to the facts that, in his opinion, influence the minor or major measure of the exact penalty to be imposed. The lack of motivation currently constitutes a violation of the constitutional guarantee of due process and absolute grounds for invalidity under the Criminal Procedure Code.

Reliance arguments, democratic law, and inequity

ABSTRACT The reversal of Roe v. Wade raises the prospect that other due process guarantees upon which individuals have organised their lives, including the constitutional rights to same-sex intimacy and marriage, will be overturned. These potential upheavals in the hard-won legal infrastructure of basic social status call for a careful look at reliance arguments for sustaining constitutional precedent. When does reliance on a judicial decision provide reason for a court to sustain a precedent in the face of substantial doubts or convictions that the original decision was importantly mistaken? Our commitments to democratic law pose distinctive challenges for reliance arguments in the public law domain that do not burden reliance arguments in the private law domain. A persuasive reliance argument in the public law context must offer a merits-independent rationale identifying limited circumstances in which reliance would justify honouring a prior (mistaken) decision and honouring it prospectively, into the future. I detail the challenges and offer a democratic account to identify when overturning a mistaken decision would impose an unfair and inequitable hardship. On this account, abortion, contraception, and same-sex intimacy rights warrant continued affirmation given reliance behaviours, but not other rights, including rights to gun ownership and freedom of contract.

Revisiting the “Tradition of Local Control” in Public Education

In Milliken v. Bradley, the Supreme Court declared “local control” the single most important tradition of public education. Milliken and other related cases developed this notion of a tradition, which has frustrated attempts to achieve equitable school funding and desegregation through federal courts. However, despite its significant impact on American education, most scholars have treated the “tradition of local control” as doctrinally insignificant. These scholars depict the tradition either as a policy preference with no formal legal meaning or as one principle among many that courts may use to determine equitable remedies. This Note argues that the Supreme Court conceived of the tradition not merely as good policy or remedial law but as a principle that was supported by multiple freestanding constitutional provisions. It shows how the policy and remedial law explanations for the tradition do not fully explain the Court’s reasoning. It then demonstrates that the Court located the tradition in the federal Constitution’s guarantees of substantive due process, the right to vote, federalism, and the separation of powers.

Ex officio evidence in ecuadorian legislation

The ex officio test is a power conferred on the judge, stipulated in the COGEP, for direct intervention in the judicial process. The objective of this research is to carry out a legal analysis of the ex officio test within the Ecuadorian legislation. The methodology used obeys a qualitative approach, of a descriptive type with the phenomenological - comparative method. Among the main findings, it was determined that one of the conditions required of the judge is to request and justify the need for ex officio evidence at the preliminary or single hearing. Therefore, this power is part of legal certainty and guarantees of due process, because it is conferred by the Ecuadorian State through regulations. It is also concluded that the judge lacks the power to supply or omit facts, therefore, within the resolutions that he issues in the exercise of his functions, he is only attributed the provision of evidence for a duly substantiated opinion, with the purpose that, in the resolutions issued, justice is administered on the controversial facts and circumstances that have been proposed by the procedural parties.

Gloss to the Judgement of the European Court of Human Rights of 8 November 2021 in the Case of Dolińska-Ficek and Ozimek v. Poland (Applications no. 49868/19 and 57511/19)

Judgement of ECHR of 8 November 2021 in the case of Dolińska-Ficek and Ozimek v. Poland is undoubtedly one of the most important judgements issued by the Strasbourg Court in recent times. At the same time, it constitutes a continuation of the existing case-law of the ECHR in similar cases against Poland, in particular the reasoning expressed in the judgement of 22 July 2021 in the case of Reczkowicz v. Poland (Application no. 43447/19). In the judgement, the ECHR held that Poland’s action resulted in a violation of Art. 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, which establishes a set of due process guarantees.

Self-executable remedies of the Convention on International Interests in Mobile Equipment in the light of Chilean constitutional court case law on due process guarantees

Abstract The purpose of this work is to analyze whether the Constitutional Court decisions on due process as applied to the realization of security interests may hinder an eventual ratification of the Cape Town Convention and its protocols.

Set up to fail: The politics, mechanisms, and effects of mass incarceration

The rise of the citizen security paradigm has complemented, rather than curtailed, authoritarian legacies in Latin America and the Caribbean. Notably, criminal justice and law enforcement policies continue to feed a wave of mass incarceration, evidenced in a dataset on incarceration in 21 countries for 1995–2020. El Salvador stands out as a unique case study, with the second-highest incarceration rate in the world. We analyze four key mechanisms driving mass incarceration in the country—increasing discretionary arrests, diluting due process guarantees, escalating criminalization, and harshening of sentences—, and unpack its uses and effects. Mass incarceration has criminalized transgressive identities and the poor, strengthened gangs organizationally, made gangs’ criminal activity more complex, and turned them into significant actors in Salvadoran political life. These effects are hallmarks of El Salvador’s notoriously failed “mano dura” strategy and pose major obstacles for desistance from crime and violence, as well as reentry after incarceration.

“Procesos políticamente expuestos”: La falta de garantías judiciales en el juzgamiento a figuras políticas y el descreimiento social en los tribunales

This paper analyzes different aspects related to the role of the courts in the trial of high-ranking political figures, in what will be called politically exposed processes. It will be shown that in order for judicial decisions to have sufficient legitimacy to be accepted by those who disagree with the outcome, it is crucial to have transparent judicial processes that respect the guarantees of due process. The duty of impartiality of judges, the guarantee of the natural judge and the issue of equality in the process will be discussed. Issues related to confidentiality in the attorney-client relationship in these cases will also be discussed, as well as the guarantees that must be respected in order to maintain the essential content of the right to privacy unscathed. These aspects are of utmost relevance since the politicization of the courts is often evidenced by the violation of functional duties. At the same time, an attempt will be made to show cases of the recent Latin American reality to exemplify the points made.

Brief for Professor Daniel Epps as Amicus Curiae in Support of Petitioner, Pon. v. United States

This brief on behalf of Professor Daniel Epps argues that the Supreme Court should grant the petition for certiorari in Pon v. United States as this case presents an excellent opportunity for the Court to clarify the doctrine of harmless constitutional error and provide needed guidance for lower courts. Although this Court established a rule for harmless constitutional errors in Chapman v. California, it has never answered a set of fundamental questions raised by that decision. For example, the Court has never explained what source of law generates the Chapman rule or what its relationship is to the governing federal statute, 28 U.S.C. § 2111. The leading view is that harmless error is part of the law of remedies. Others believe that it is mandated by constitutional due-process guarantees. Amicus’s own theory is that harmless error flows directly from the underlying constitutional rights at issue in an appeal. This larger debate about harmless constitutional error is of more than merely academic interest. Trying to understand harmless error’s foundations is necessary if the Court is to explain how harmless-error analysis should work in practice. If harmless constitutional error is a wholly remedial doctrine, then an approach like the Eleventh Circuit’s—which looks to “overwhelming evidence of guilt”—may well be permissible. But as opinions from jurists ranging from Justice Brennan to Justice Scalia show, powerful intuitions about harmless error contradict the Eleventh Circuit’s approach. Rather than asking about whether a jury in an alternate universe would have convicted the defendant had the error never occurred, courts instead must ask “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”

Creeping Crimmigration in CEAS Reform: Detention of Asylum-Seekers and Restrictions on Their Movement under EU Law

Abstract This article analyses freedom-restricting measures set forth in the Reception Conditions Directive and its proposed recast; it does so through the lens of the concept of crimmigration, understood as convergence between criminal and (administrative) immigration and asylum law. To tackle “secondary movements” within the European Union (EU), the proposed amendment of the Directive establishes a broad understanding of the risk of absconding, which can justify detention, and expands the restrictions on asylum-seekers’ freedom of movement. The article argues that asylum detention under EU law pursues penal law objectives, such as deterrence and retribution. Restriction on freedom of movement, on its part, may amount to systematic surveillance. This observed crimmigration phenomenon is detrimental to migrants and refugees because the incorporation of criminal law objectives into asylum law has an asymmetric form. Although states subject non-citizens to increasingly punitive measures, the administrative label of immigration detention and restrictions on movement allows them to evade due process guarantees, which typically accompany criminal law proceedings. As the article proposes, appropriate interpretation and application of the principles of lawfulness and proportionality with respect to detention and restrictions on freedom of movement will help circumscribe the scope of the phenomenon of crimmigration under the EU asylum legislation.

PROCESO PENAL DE JESUCRISTO: INIQUIDADES Y ANTAGONISMOS ENTRE EL VETUSTO DERECHO PENAL HEBREO Y EL DERECHO PENAL ROMANO

This analysis is based on a thorough investigation into the jurisdictional criminal profile proceedings against Jesus Christ, plagued by iniquities, malignancies, elucidated in two antagonistic judgments: one, the Religious Judgment or Jew before the Sanhedrin and the Political Judgment before Pontius Pilate, of Roman power, and subjected to asummary and laconic judgment. If we make a retrospective procedural legal vision of the trial of Jesus Christ by the Jewish authorities, ab initio, and later by the Roman iurisdictio, in the light of the new Ecuadorian Integral Criminal Organic Code (2014), of a guarantee, accusatory court, of transversal orality and adversarial, it must be asserted, withall conviction, that It did not refer to the minimum international standards of the constitutional due process guarantee , effective jurisdictional protection and the unrestricted respect for the right to defense by a lawyer of his free choice or of the Attorney General's Office of the State. By virtue of the analytical-synthetic and dialectical method, comparedto the descriptive exploratory scope inclined to accurately show the angles or dimensions of the most famous criminal trial of humanity, the investigation contains the condemnation of an innocent person to death for a political crime the Sedition, which Jesus did not perpetrate. Such a condemnation repealed the one decreed by the Sanhedrin, that is to say, that of “Blasphemy” which made it consist of the fact that Jesus repealed the endowment of being a son of God, injurious at the beginning –non bis in idem–, among other flagrant procedural violations, in which the inconsistency of the form can only be matched by the iniquity of the fund.

Situating the accountability of the UN Security Council: Between liberal-legal and political ‘styles’ of global constitutionalism?

Abstract‘Accountability’ is the international legal term du jour. The concept is omnipresent in contemporary discussions about the UN Security Council in particular. From the lack of due process guarantees for individuals implicated in its counter-terrorism sanctions regime, to the (in)compatibility of Council authorized uses of force with international human rights and humanitarian law, no aspect of the Council’s recent practice has been immune from an accountability critique. Driven by the context in which it has emerged, the turn to accountability is seemingly prompted by a felt desire among international lawyers to constrain the arbitrary use of the Council’s considerable powers. However, beyond this felt desire, the concept lacks a robust theoretical foregrounding, both on its own terms and in relation to existential developments in international law. In an attempt to remedy this, this article situates the turn to accountability as a product of the broader turn to ‘constitutionalist’ thinking in international law. Specifically, it suggests that mainstream approaches resonate with a particular ‘liberal-legalist style’ of global constitutionalism. From both an etymological and epistemological perspective, however, I argue that this prevailing style offers an incomplete sense of accountability. The article introduces the dichotomy of ‘liberal-legal’ and more overtly ‘political’ styles of global constitutionalism as a heuristic device in order to offer a broader conception of accountability in the Security Council context. Political constitutionalism, I believe, offers important insights that will allow us to perceive and critique the Security Council in new ways.

Paths to Digital Justice: Judicial Robots, Algorithmic Decision-Making, and Due Process

AbstractThe paths to digital justice focus on the challenges of contemporary digital societies in reaching automated decision-making processes through software, algorithms, and information technology without loss of its human quality and the guarantees of due process. In this context, this article reflects on the possibilities of establishing judicial robots in substitution for human judges, by examining whether artificial intelligence and algorithms may support judicial decision-making independently and without human supervision. The point of departure for this analysis comes from the experience of criminal justice systems with software for judgment of the possibility of recidivism of criminal defendants. Algorithmic decision-making may improve the public good in support of judicial decision-making, but the analysis of current technology and our standards for due process of law recommends caution on the conclusion that robots may replace human judges and satisfy our expectations for explainability and fairness in adjudication.

A comparison between the standard of proof applicable in arbitration and formal adjudication

This article aims to describe the application of the standard of proof in arbitration and to question whether the standard to be applied should be the same as or lower than in ordinary civil justice as a result of the contractual origin of the dispute. The determination of the applicable standard takes into consideration the equality of arms and other guarantees of due process, along with the fact of the absence of the standard rule in the Arbitration Act 1996. The arbitrator shall establish these aspects at the beginning of the process, considering also the rules of burden of proof.

La violencia escolar, los manuales de convivencia y la protección integral del niño, niña y adolescente

Uno de las formas de violencia adolescente que preocupa en el momento actual es aquella que se presenta en los espacios educativos, la cual ha aumentado la preocupación de los Estados, educadores y padres y madres de familia. En este contexto, se afirma que tres de cada cinco víctimas de bullying piensan en suicidio. En este artículo se busca no solo identificar la existencia del acoso en las escuelas objeto de estudio, sino saber igualmente si las víctimas habían tenido la oportunidad de dar a conocer su situación, pues se evidencia no solo la existencia sino también el aumento de casos de matoneo y violencia escolar en los colegios de Colombia. Se postula, además que las directivas y docentes deben contribuir a hacer cumplir los manuales de convivencia, como solución mediante el respeto de los principios y garantías constitucionales del debido proceso, y así mismo, hacer cumplir las sanciones y procedimientos que se apliquen.

Los límites procesales de la protección de derechos fundamentales y el filtro de admisibilidad en la Corte de Apelaciones

The procedural protection of the fundamental rights by art. 20 of the 1980 Constitution have substantive and procedural limits. This article analyzes the procedural reasons supporting the fact of not giving rise to the protection for any general reason –distribution of powers– or two specific criteria: the inability of providing precautionary measure and the deference with the specialized instances. For reasons of justice and efficiency, the Courts of appeals should apply these criteria when deciding on the admissibility of the protection, unless there is information to invoke the thesis of the “evident violation”, which it is usually based on the guarantee of property or the guarantee of due process.

Cartel criminalisation and due process: the challenge of imposing criminal sanctions alongside administrative sanctions within the EU

There is increasing debate within the European Union (EU) concerning the imposition of criminal sanctions upon those individuals who engage in cartel activity. For it to be legitimate, such cartel criminalisation must respect the due process guarantees contained in the European Convention on Human Rights (ECHR). Unfortunately the literature on this issue is deficient and the specifics of this legal challenge are not fully understood. In particular, a comprehensive analysis of the due process-related challenge presented when personal criminal antitrust sanctions are employed alongside administrative sanctions for a given cartel is conspicuously absent from the literature. This article rectifies this deficiency by examining this particular legal challenge and its relevance to information exchange, double jeopardy and concurrent antitrust proceedings. In doing so, it identifies practical techniques designed to meet the challenge of due process in this context, as well as the inherent tensions between due process and the objectives of European antitrust criminalisation.

Competition Between State Courts and Private Tribunals

In this essay, I investigate the competition between state courts and private tribunals for dispute resolution. I distinguish between different market segments: B2B and B2C transactions and, in each case, small-, medium- and high-stakes disputes. The analysis is informed by a survey of the dispute resolution preferences of “case placers” carried out in 2015. I find that competition between state courts and arbitral tribunals is currently most intense with respect to high-stakes B2B disputes. A significant portion of the total dispute resolution volume in this market segment goes to arbitration. If parties decide to arbitrate, they do so primarily because of the effective international enforceability of an award, the autonomy to choose competent and neutral arbitrators and the confidentiality of the proceedings. Speed and costs of the proceedings are much less relevant. Commercial arbitrations are usually administered by an arbitral institution. The choice of institution is primarily influenced by its reputation as a professional case manager and by prior positive experiences of the parties. I argue that access to arbitration should be made easier with respect to B2C small- and medium-stakes disputes. The trend in the European Union of promoting conciliation/mediation for the resolution of these disputes should be reversed. Arbitration is less “dangerous” for consumers because it is a legal process governed by fundamental due process guarantees. By contrast, conciliations/mediations are not subject to these guarantees, and they are not well suited for the enforcement of mandatory consumer rights. No compelling case can be made to increase access of businesses to arbitration in medium-stakes B2B disputes. Arbitral institutions have high-powered incentives to design new and efficient procedures for these types of disputes. Technological innovations will reinforce the trend towards privatizing dispute resolution. This poses unique regulatory challenges for the protection of weaker parties, especially consumers.