Violation Of Due Process Research Articles

Application of the Neutrosophic TOPSIS for the Analysis of the Violation of Due Process in Ecuadorian Adolescents

Due to the increase in violence in Ecuador involving juvenile offenders, an analysis of the situation is proposed from a neutrosophic approach to address the violation of due process in adolescents in Ecuador, highlighting the importance of considering the complexities and ambiguities of the juvenile penal system. Challenges are identified and classified through the PESTEL technique related to legal deficiencies, economic constraints, and socio-environmental factors contributing to juvenile delinquency, which are processed hermeneutically in a TOPSIS that uses single-valued neutrosophic numbers. The processing's main outcome is the influence of legal and economic aspects, thus the need to promote legal reforms, strengthen institutional capacities, invest in preventive programs, and support social reintegration and the responsible use of information technologies. The conclusions emphasize the importance of a comprehensive and coordinated approach to improve juvenile justice in Ecuador, ensuring respect for due process and the rights of adolescents.

#ForeignersMustGo versus “in favorem libertatis”: Human rights violations and procedural irregularities in South African immigration detention law

In 2021, an estimated 3.95 million foreign nationals resided in South Africa, with no data available on numbers of displaced persons or undocumented migrants residing without legal or valid immigration status. Surveillance data on immigration detention are scant. We present a socio-legal account of the historical evolution of South African immigration detention regulation in post-apartheid timeframes, with a view to providing a legal realist assessment of the socio- and politico-legal dimensions pertinent to human rights assurances of immigration detainees in South Africa. The realist focus is on scrutinizing South Africa’s progress in upholding the rights of immigration detainees and illustrating the contemporary complexities in ensuring due process in the (co)application of the Immigration Act (and Refugees Act) explicitly regarding immigration detention processes and practices. We present the applicable international and regional African human rights treaties, domestic regulations, and relevant jurisprudence to the rights of immigration detainees in South Africa. The generated realist narrative is cognizant of the contextual forces of migration into South Africa, securitization agendas, and violations of basic human rights and due process, and illustrates various gaps in the application of domestic laws, policies, and standards of care regarding immigration detention when evaluated against the rule of law.

Michael Lobban. Imperial Incarceration: Detention without Trial in the Making of British Colonial Africa.

Michael Lobban’s Imperial Incarceration: Detention without Trial in the Making of British Colonial Africa provides a rich and methodical examination of how the detention without trial of defiant or rebellious African leaders became a key mechanism for British imperial expansion and control throughout the nineteenth and early twentieth centuries. Lobban’s analysis begins by sketching out a central paradox: How could a nation that professed its commitment to the rule of law and the sacred common-law value of habeas corpus commit such apparently large-scale violations of these principles throughout Britain’s African empire? The answer, Lobban argues, lies in the ambiguity of what the “rule of law” itself meant, as well as the racialized nature of empire. As Lobban demonstrates, conceptions of the “rule of law” were defined by both a “substantive” tradition that sought to protect the rights of the individual against arbitrary state power and a “formalistic” tradition that believed any act done under the legal authority of parliament was legitimate (7–8). While the former position is typically associated with the renowned English jurist A. V. Dicey, Lobban argues that the “Diceyan” view of the rule of law could tolerate violations of due process so long as these were given legal “cover” through the legitimacy of legislative and other lawmaking bodies. Detention without trial was also much more palatable within the inherently unequal racial hierarchies of Western imperialism. Simply put, colonial and imperial officials were less concerned about protecting the rights of nonwhite imperial subjects.

Judicial Review of Public Health Powers Since the Start of the COVID-19 Pandemic: Trends and Implications.

During the COVID-19 pandemic, officials in the United States at all levels of government utilized their legal authorities to impose a wide range of measures designed to control the spread of SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2; the causative agent of COVID-19), including shutting down businesses, limiting the size of gatherings, requiring masking, and mandating vaccination. These orders and regulations were challenged in court cases that resulted in more than 1000 judicial decisions. Common claims were based on alleged procedural and substantive due process violations, violations of religious liberty, and violations of officials' scope of authority. In more than three fourths of the decisions, the court refused to grant the plaintiffs the relief sought. However, plaintiffs found success in several notable cases, especially in federal court. These recent decisions, as well as broader prepandemic trends, have important implications for public health officials' exercise of their public health powers, especially when those exercises implicate religious liberty. In this legal environment, officials may need to rely more on the powers of persuasion than on their legal authority alone. (Am J Public Health. 2023;113(3):280-287. https://doi.org/10.2105/10.2105/AJPH.2022.307181).

The FCC, USF, and USAC: An Alphabet Soup of Due Process Violations

The FCC, USF, and USAC: An Alphabet Soup of Due Process Violations

Vulneración al derecho del debido proceso: Perspectiva desde los Derechos Humanos en Ecuador

The present investigation has the objective of analyzing the violation of due process of law before human rights and, likewise, the application within judicial procedures. For the development of the investigation, a descriptive methodology is carried out in order to obtain information on the violation of the right, the formulation of charges and the main factors that are generated in the judicial unit, in addition to the analysis of procedural law and questions of inquiry. previous. The results indicate that there is a bad practice when urgent cases arise and the arrest warrant is generated, where one of the main aspects is that several processes are carried out in 24 hours, such as at certain points, the taking of versions for the formulation hearing. of charges. According to these results, the bad practice on the violation of the right becomes very evident, generating a direct affectation with the person who is being prosecuted.

Vulneración de la garantía del debido proceso en el derecho a la defensa del investigado, afectado por la toma del testimonio anticipado en delitos sexuales

The following study provides elements that allow evidence of the violation of due process, in the practice of obtaining evidence of vital importance and that in the absence of due notification to the investigated, their right to defense is violated, that is, they remain in a state of defenselessness of the suspect, which leads to a flagrant violation of due process in the basic guarantee of the right to defense and which, although it is not regulated in the punitive system, constitutional and conventional principles must be resorted to, which must be applied at all times directly and immediately. Methods such as the exegetical, the logical historical, the synthetic analytical and the empirical level the analysis of documents are used.

Don’t Shoot the Sheriff: the Threat of Legal Claims Against Arbitrators and Arbitral Institutions

Abstract While arbitrators and arbitral institutions should be held accountable if they act unlawfully or in bad faith, increasingly they also face serious legal attacks by parties dissatisfied with awards. These attacks often concern alleged lack of arbitrator independence and impartiality or violations of due process. These claims raise important issues concerning institutional and arbitrator immunity. In prolonging the dispute through collateral attacks, they can also undermine the finality and efficiency of arbitration as a dispute resolution process. Moreover, as parties’ conduct becomes more aggressive, such accusations may exacerbate ‘due process paranoia’. Finally, there is an obvious practical impact for arbitrators – particularly full-time arbitrators – who must be mindful of the risks and consider professional indemnity insurance, and for institutions who should address their own and their arbitrators' insurance position and generally be more transparent about the coverage that they provide. The article reviews some of the most recent claims against arbitrators and institutions alike to draw some lessons and propose concrete solutions to address the problem in future.

“Alone in a Crowd: Indigenous Migrants and Language Barriers in American Immigration”

Indigenous migrants in American custody often speak neither English nor Spanish. This leaves them at risk for family separation, deportation and due process violations. In this article, I discuss the challenges which indigenous migrants face in American immigration. Examining linguistic variations, this manuscript illustrates that American immigration policies have not adjusted to the linguistic diversity at the border—or in the immigration courts. Despite the growing number of indigenous migrants seeking asylum, most are assumed to speak only Spanish. This assumption neglects the wide linguistic diversity of immigrants and directly impacts their experience through the immigration bureaucracy. For indigenous migrants, linguicism or the exclusion of native languages can have life or death consequences—especially if they are unable to secure interpreters or relay crucial aspects of their case. As such, linguicism perpetuates an unequal justice system which fails to provide an understanding of the asylum process for those who speak indigenous languages.

The Pecuniary Interests of PTAB Judges - Empirical Analysis Relating Bonus Awards to Decisions in AIA Trials

Unlike Administrative Law Judges presiding over adjudications in administrative tribunals operated by other Federal agencies, Administrative Patent Judges (APJs) at the Patent Trial and Appeals Board (PTAB) of the U.S. Patent Office receive bonus awards of up to 20% of their base salary. This article details the features of the PTAB bonus plan and reports on an empirical analysis of the relationship between the annual bonus awards of individual APJs and the type of decisions they made in the year. The study found that in fiscal year 2016, PTAB judges involved in AIA trials earned a median of more than 14% of their base pay in bonus awards tied to their role as adjudicators. The article discusses case law holding that this substantial fraction per se implicates potential due process violation. In addition to these concerns, APJs appeared to have earned an average bonus of $255 per decision when granting institution, but only an average of $208 per decision when denying institution. They also appeared to have earned an average bonus award of $314 per Final Written Decision when canceling patent claims, but only an average of $2 per Final Written Decision when upholding all patent claims. It is shown that this resulted in an annual average APJ pecuniary bias totaling $5,760 out of an average annual APJ bonus of $21,166. A separate analysis of expanded panel decisions (decisions of panels with 4 or more APJs) revealed that on average, the select few APJs that participated in expanded panel decisions appeared to have been remunerated for decisions made in expanded panels with a “premium” of more than $64 per decision above the bonus they received for just making the decision. This article reveals for the first time in public the existence of a secret extra-panel review committee of the PTAB called the AIA Review Committee (ARC). The ARC receives for review Final Written Decision drafts prior to issuance, reviews and provides comments to the APJ panel through ex-parte communications that are concealed from the parties. Finally this article also discusses the apparent effort of the PTO to mischaracterize and play down the large magnitude of the PTAB bonus awards.

YO LO RECONOCERÍA POR SU VOZ… EL CASO DE EMILIO BERKHOFF

During the commission of a crime, witnesses or victims, exposed to the speech of the aggressor can be called, later, to recognize the voice of the person suspected of being the perpetrator of the crime, in order to establish whether they would recognize it as the voice of the offender. An example of this situation, where the testimony of hearing witnesses was involved, was during the case of Emilio Berkhoff (Chile, 2015), the young university student who was found guilty of the crimes of illegal bearing of arms and ammunition and sentenced to five years and one day in jail. The case was not exempt from some controversy due to the public statements of the accused about alleged violations of due process. In this paper we review the procedure used to collect the auditory evidence in light of the most widely shared criteria on the subject.

Resurrecting the debate on ‘due process paranoia’ in Centrotrade: Paranoia or Judiciousness?

Abstract Recently, the Hon’ble Supreme Court of India in Centrotrade Minerals and Metals Inc v Hindustan Copper Ltd, rejected an application for non-enforcement of a foreign award and justified its ‘pro-enforcement’ bias. The Apex Court was of the opinion that there was no due process violation as the arbitrator provided enough opportunities to the parties to present the case but the respondent failed to abide by the timelines. Although, the Court has correctly interpreted the scope of due process but unfortunately, failed to address the repeated extension of arbitral proceeding at the cost of efficiency and speed. On a closer study, the Apex Court’s ruling resurrects a puzzling question of the arbitrator’s perceived reluctance to reject dilatory tactics of the respondent during arbitral proceeding. This article examines the implications of the ruling on arbitrators as they may be more exposed to the unscrupulous attempts of the parties to wilful delay under the garb of ‘due process paranoia’.

Setting aside arbitral awards in Singapore: due process and good faith obligations

Abstract The Singapore Court of Appeal in CMNC v Jaguar Energy has offered clarification on what it identified as an ‘important area of arbitration law’: ie the correct approach to alleged violations of due process by tribunals in their management of the arbitral procedure. The case involved setting aside proceedings in the context of a complex dispute further complicated by the parties’ prior agreement for an expedited procedure. The Court of Appeal judgment takes a robust approach towards alleged due process violations. It emphasizes that the matter must be assessed according to a test of reasonableness and fairness with careful reference to the circumstances, and that courts should be cautious about interfering with a tribunal’s decision-making where there is a rational basis for those decisions. But CMNC v Jaguar Energy is notable for another reason: the presumption by the judge at first instance that there was implied into the arbitration agreement an obligation to arbitrate in good faith. That point may be of particular interest to those from common law jurisdictions where a more general debate over the role of good faith obligations in commercial contracts persists.

A Study and Analysis of the Treatment of Mexican Unaccompanied Minors by Customs and Border Protection

Executive Summary The routine human rights abuses and due process violations of unaccompanied alien children (UAC) by US Customs and Border Protection (CBP) have contributed to a mounting humanitarian and legal crisis along the US–Mexico border. In the United States, the treatment of UAC is governed by laws, policies, and standards drawn from the Flores Settlement, the Trafficking Victims Protection Reauthorization Act (TVPRA), and CBP procedures and directives, which are intended to ensure UAC’s protection, well-being, and ability to pursue relief from removal, such as asylum. As nongovernmental organizations and human rights groups have documented, however, CBP has repeatedly violated these legal standards and policies, and subjected UAC to abuses and rights violations. This article draws from surveys of 97 recently deported Mexican UAC, which examine their experiences with US immigration authorities. The study finds that Mexican UAC are detained in subpar conditions, are routinely not screened for fear of return to their home countries or for human trafficking, and are not sufficiently informed about the deportation process. The article recommends that CBP should take immediate steps to improve the treatment of UAC, that CBP and other entities responsible for the care of UAC be monitored to ensure their compliance with US law and policy, and that Mexican UAC be afforded the same procedures and protection under the TVPRA as UAC from noncontiguous states.

Vulnerability, due process, and reform in modern Mexico

In this paper, we examine the relationship between socioeconomic vulnerabilities and due process violations in contemporary Mexico, using a novel survey of imprisoned populations. We further investigate whether institutional reforms—in particular, the 2008 reform that constitutionally mandated the provision of trained public defenders for those without private counsel—help offset the impact of preexisting socioeconomic disparities on the likelihood of suffering a due process violation. We find that women, indigenous people, and people with less schooling are more likely to suffer a due process violation. This finding, is, unfortunately, not surprising. The 2008 constitutionally mandated reform to provide quality public defenders has done little to alleviate this situation. Although it has improved the experience of defendants overall—whether represented by private or public counsel—it has failed to create an office of public defenders that successfully functions as an equalizing mechanism that offsets pre-existing socioeconomic inequalities. Instead, our analysis suggests that those most benefited by these reforms are those who did not need them as much to begin with: those who rely on private lawyers for their legal representation. This paper contributes to the literature that critically examines the idea of equality under the law and the mechanisms that seek to guarantee it.

Sufficiency of Students' Claims of Sex Discrimination and Due Process Violations against University

In Austin v. University of Oregon , 925 F.3d 1133 (9th Cir. 2019), the Ninth Circuit Court of Appeals considered the sufficiency of three male student-athletes' claims of sex discrimination and due process violation against the University of Oregon and its administrators. Following the publication

Perpetrator or victim? A review of the complexities of domestic violence cases

PurposeThe purpose of this study is to provide a review of research on the merits of public policy and law enforcement responses to intimate partner violence (IPV) in the USA using prevalence rates and dynamics of IPV.Design/methodology/approachA reading of recent comprehensive literature reviews was supplemented by a PsychInfo search of relevant articles published in peer-reviewed journals.FindingsLaws against IPV in the USA have been enforced much more vigorously in comparison with most of the world, many of which have no such laws at all. While more perpetrators have been held accountable for their actions – increasing the safety of victims – many perpetrators are never brought to justice, and “mandatory arrest” laws sometimes result in arrests being made with a scant evidence of wrongdoing. This state of affairs can be traced two key factors. First, the persistence of the gender paradigm – an outdated and discredited set of assumptions about the role of gender in IPV – as formulated by battered women’s advocates, which has informed IPV public policy for several decades. Second, the complex nature of IPV, a phenomenon that mostly happens behind closed doors, varies widely in frequency, intensity, mutuality and impact on victims, and it cannot easily be framed in binary victim/perpetrator terms.Practical implicationsThe arrest and prosecution of possibly innocent individuals is in violation of due process and mitigates against our common efforts to reduce IPV in our communities.Originality/valueA compact summary of the relevant IPV policy literature is presented with a focus on an under-studied topic, i.e. the problems inherent in the categorization of individuals as either victims or perpetrators and the failure to recognize the inherently complex nature of IPV.

Academic and Non-Academic Staff Perception on Influence of Corruption on Enforcement of Due Process in Management of Tertiary Institutions in Kebbi State, Nigeria

Corruption in Nigeria is an issue that has become a national malaise and a focus for educationists at all levels. The study focused on how corruption influences the enforcement of due process on the management of tertiary educational institutions in Kebbi State. Four of such institutions were randomly selected while 200 Academic staff and 250 Non-academic staff were chosen using stratified random sampling technique. A validated questionnaire with reliability index of 0.78 was used to elicit the data needed in conducting the study. Three research questions were analyzed using simple percentages while three Null hypotheses were generated and tested using Chi-square at 0.05 levels of significance. The study found that corruption influenced the enforcement of both substantive and procedural due process in judging cases of violation of institutional rules in the sampled schools. It was also found that corruption factors have persisted despite laid down regulations in the institutions. The paper therefore recommended among other things that the institutions should regularly revise and update their rules to ensure that they are aligned with the constitution of the Federal Republic of Nigeria. The ethics committees existing in the institutions should closely monitor cases of violation of due process so as to ensure that justice, fair play and equity is maintained in the management of tertiary institutions in Kebbi State.

Charging As Sentencing

This Article connects two uncontroversial claims to support a novel and momentous thesis. The first familiar claim is descriptive. The most important determinant of an offender’s sentence is the discretionary selection of charges before guilty plea or trial. The second familiar claim is doctrinal. The Supreme Court has held that procedural due process requires that the discretionary selection of a sentence from within a statutory range be made by a neutral tribunal after notice and hearing. Together, these humdrum observations imply that statutes delegating sentencing power to prosecutors--so-called “mandatory” minimum sentences--are unconstitutional. Part I presents the descriptive claim that charging, in many cases, simply is sentencing. Part I also reviews the Supreme Court’s jurisprudence rejecting constitutional challenges to prosecutorial discretion, decisions premised on a statutory baseline, the long-discredited right-privilege distinction. Part II reviews the Court’s sentencing cases. These decisions rejected the right-privilege distinction by substituting a procedural for a statutory baseline. These cases hold that procedural due process permits legislative delegation of sentencing discretion only to neutral tribunals. The sentencing cases condemn sentencing by prosecutors as a violation of procedural due process. Yet the Court has sustained prosecutorial charging discretion against multiple challenges, albeit not the one raised by this Article. There are at least four possible resolutions of the conflict in the cases. Courts might: (1) deny the equation of charging and sentencing, because the effect of charging on sentencing is contingent; (2) bless the inconsistency in the cases by appealing to history; (3) regulate charging decisions via administrative law, or (4) declare prosecutorial discretion to bring charges carrying mandatory minimum penalties unconstitutional. The rest of the Article argues against options (1), (2) and (3), and in favor of option (4). Replies are offered to objections based on pragmatism or on politics.

Michael H. v. Gerald D. Rewritten

In Michael H. v. Gerald D., 491 U.S. 110 (1989), Justice Scalia, writing for a plurality, upheld California’s statutory provision that a husband is conclusively presumed to be the parent of a child born to an intact marriage. This is a feminist re-writing of that opinion, available in Feminist Judgments: Family Law Opinions Rewritten (Cambridge University Press, forthcoming 2020). Unlike the Court’s plurality opinion, this opinion addresses head-on the Equal Protection and Due Process violations raised both by the biological father, Michael H., and the child, Victoria D. It holds that California’s presumption violates Equal Protection by impermissibly differentiating between mothers and fathers on the basis of sex. It further concludes that Due Process requires the legal recognition of a parent-child relationship that develops between an adult and a child, even if that means there may be more than one father, or more than one mother, and thereby more than two parents. The re-written opinion de-couples sex and biology from parentage with the aim of creating a more egalitarian law that transcends gender and family relationships – be they married or unmarried, same-sex or different-sex.