Court Experience Research Articles

The Experience of the European Court of Human Rights with the European Convention on Human Rights and Biomedicine

Several papers have been written on the contribution of domestic courts to the interpretation of the Council of Europe’s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine, also known as the Oviedo Convention) and its Additional Protocols (the ‘Oviedo Convention system’) or to the development of new rules of international bio law. Nevertheless very few papers have thus far focused on the contribution of the European Court of Human Rights (‘ECtHR’) to the enforcement of the Oviedo Convention’s provisions. This is notwithstanding the very close relationship of the European Convention on Human Rights (ECHR) with the Oviedo Convention and its Additional Protocols, namely the fact that the Oviedo Convention: “elaborates some of the principles enshrined in the ECHR” as elucidated by the Explanatory Report of the European Convention on Human Rights and Biomedicine (the ‘Explanatory Report’). The purpose of this paper is to fill this major gap and to focus on the use of the Oviedo Convention when a specifi c biomedical issue is submitted to the ECtHR. The paper will briefly address, through some relevant examples, the ECtHR’s main contributions to implementation of the bio-law rights encompassed in the Oviedo Convention’s system. It also charts the evolution from the ECtHR’s original position, which tended to apply the Oviedo Convention directly, to its later less radical position, adopted in some of its most recent judgments, in which the Oviedo Convention is implemented exclusively: a) when the content of its provisions coincide with rights explicitly protected in the ECHR and b) when it helps to elucidate or understand better the ECHR. A correction article relating to the authorship of this publication can be found here: DOI: http://dx.doi.org/10.5334/ujiel.dk

Narratives on Trial: Ideology, Violence and the Struggle over Political Legitimacy in the Case of the Delmas Treason Trial, 1985–1989

The insurrectionary period of the mid-1980s in South Africa reflected contestations between supporters of the anti-apartheid movement and the apartheid regime over the direction and pace of political and social change, symbolising the deepening crisis of political legitimacy of the South African regime. In three major treason trials, the state attempted to legitimise repression and delegitimise extra-parliamentary opposition by portraying it as revolutionary and violent. The largest and longest running of the three treason trials was the Delmas Treason Trial, in which the state aimed to prove that the United Democratic Front (UDF) had conspired with the African National Congress (ANC) in exile and other organisations to overthrow the government by violence. In response, lawyers for the defence divorced protest action from the ideology and strategies of the banned liberation movements and depoliticised collective violence. Both the prosecution and the defence therefore linked political legitimacy to the absence of violence. Based on the extensive records of the Delmas Treason Trial, the article examines the production of these two narratives. It argues that legal imperatives and political concerns flattened the complexity of political engagements and the plurality of experiences in court. The discursive construction of the events during the trial silenced the voices of women activists, the ANC underground as well as militant youth groups. The article examines these gaps, silences and biases to shed new light on how the records of the Delmas Treason Trial can be used for historical research.

The Role of the Constitutional Tribunal in Myanmar’s Reform Process

AbstractNot long after the establishment of its Constitutional Tribunal in February 2011, Myanmar faced a constitutional crisis, when on 6 September 2012, all nine judges of the Tribunal resigned, after the Burmese parliament (Hluttaw) had initiated impeachment proceedings against the Tribunal members. The incident was seen by several commentators as a sign of the growing strength and independence of theHluttaw, while others argued that the impeachment of the Tribunal could threaten future stability. In February 2013, nine new members of the Constitutional Tribunal were appointed. However, several questions surrounding the role of the Constitutional Tribunal in Myanmar’s reform process remain. In particular, it is not entirely clear how the independence and authority of the Tribunal should be further strengthened. This paper examines the role of Myanmar’s Constitutional Tribunal, against the background of the country’s history and current political situation. By drawing on the experiences of the Indonesian Constitutional Court (Mahkamah Konstitusi), the paper addresses the question of how the post-impeachment Tribunal may be able to fortify its position vis-à-vis the various political actors in the country.

Pleiotropic actions of the male pheromone cis-vaccenyl acetate in Drosophila melanogaster.

The male-specific lipid, cis-vaccenyl acetate (cVA) has multiple functions in intra-species communication in Drosophila melanogaster. The presence of cVA in a male suppresses courtship motivation of other males and averts male–male courtship. Meanwhile, aggression behaviors between males are promoted by a high amount of cVA caused by increased densities of male flies. cVA also works as a modifier of courtship memory, which is suppressed courtship motivation driven by previous unsuccessful courtship experience. Conversely, cVA in the courting male stimulates female reproductive motivation and increases the probability of copulation success. It also works as an aggregation pheromone, attracting both males and females at the gathering spot. Thus, cVA is a unique example of a single molecule leading to different behaviors in response to the social context. However, despite recent advances in understanding the molecular and neural machinery for cVA sensing, it is still largely unknown how cVA triggers a specific behavior as the situation demands. In this review article, I discuss two potential machineries that might determine cVA actions for behavior selection at the sensory level.

The Constitutional Court of Romania and European Union Law

Abstract The Constitutional Court of Romania has subjected the introduction of a norm of European Union law into the constitutionality control, as an interposed norm to the standard norm. On the one hand, the norm should be sufficiently clear, precise and unequivocal in itself, or its meaning should have been clearly, precisely and unequivocally established by the Court of Justice of the European Union, and on the other hand it should be circumscribed by a certain level of constitutional relevance, so that its normative content could support the possible breach of the Constitution - the only direct standard norm within the constitutionality control - by national law. However, the experience of the Constitutional Court of Romania over the eight years (2007-2014) since the EU accession, does not seem to be very convincing, irrespective of the way in which European Union law, including the case law of the CJUE has been used: as justifying or circumstantial argument, as a mere reference or in an inadequate context.

Dynamic Application of Transplanted Legal Rules Concerning the Right of Communication Through Information Network in China - Illustrated With Relevant Judicial Practice Involving Online Video Industry

Online video industry in China has different features from that in the USA, users’ habit of little respect for copyright, lack of diversified business models, restricted market access to cultural industry, strong censorship of contents and fierce competition make the copyright infringement in this industry more complicated. Such complicacy, together with the relevantly less independent judiciary make Chinese judges more pragmatic in applying laws. Painstaking localization of tans-planted legal rules concerning right of communication through information network has been undergoing in Chinese courts to overcome rigidness of technical provisions and structural deficiency caused by introduction of transplanted legal rules. By referring to “other rights”, temporary solution has been found to overcome the gap between broadcasting right and the right of communication through information network; by flexible combination of server test and user’s perception test in determining the direct infringement of right of communication through information network, online video providers have been forced to reform their operations and explore new business models; and based on the experience of many courts’ practice, the Judicial Interpretation (2012) has improved the coherence of the transplanted safe harbor rule and the current joint liability regime. In the long run, such painstaking efforts of localization are valuable.

European Experience and National Traditions in Russian Family Law

Twenty years have passed since the new Family Code of the Russian Federation (RF), which has become the key source for family law in Russia, was signed into law. During this period, the Family Code has frequently been criticized by experts on the administrative and judicial practice of civil jurisprudence. Legislators have begun to pay attention to these experts’ assessments of the law to determine what reforms may be necessary. The purpose of this paper is to analyze the current problems with Russian Family Law by drawing upon the experience of both European Family Law courts and the Russian legal system.

Shield laws in Australia: Legal and ethical implications for journalists and their confidential sources

This article examines whether Australia’s current shield law regime meets journalists’ expectations and whistleblower needs in an era of unprecedented official surveillance capabilities. According to the peak journalists’ organisation, the Media, Entertainment and Arts Alliance (MEAA), two recent Australian court cases ‘despite their welcome outcome for our members, clearly demonstrate Australia’s patchy and disparate journalist shields fail to do their job’ (MEAA, 2014a). Journalists’ recent court experiences exposed particular shield law inadequacies, including curious omissions or ambiguities in legislative drafting (Fernandez, 2014c, p. 131); the ‘unusual difficulty’ that a case may present (Hancock Prospecting No 2, 2014, para 7); the absence of definitive statutory protection in three jurisdictions—Queensland, South Australia and the Northern Territory (Fernandez, 2014b, p. 26); and the absence of uniform shield laws where such law is available (Fernandez, 2014b, pp. 26-28). This article examines the following key findings of a national survey of practising journalists: (a) participants’ general profile; (b) familiarity with shield laws; (c) perceptions of shield law effectiveness and coverage; (d) perceptions of story outcomes when relying on confidential sources; and (e) concerns about official surveillance and enforcement. The conclusion briefly considers the significance and limitations of this research; future research directions; some reform and training directions; and notes that the considerable efforts to secure shield laws in Australia might be jeopardised without better training of journalists about the laws themselves and how surveillance technologies and powers might compromise source confidentiality.

CRITERIA OF CONSTITUTIONALITY OF AUSTERITY MEASURES IN THE OFFICIAL CONSTITUTIONAL DOCTRINE OF THE REPUBLIC OF LITHUANIA

During the global economic crisis, many European countries faced the necessity to apply the austerity measures that involved the reduction of salaries, pensions and other social benefits paid by a state. Austerity has become a difficult challenge in particular to those states who have declared in their constitutions the social orientation of a state or even a social state. The Republic of Lithuania is one of those states: according to its Constitution, the State of Lithuania is socially oriented, it has to undertake certain commitments to the most vulnerable social groups.Lithuania was one of those states who has suffered from the most negative impact of the economic and financial crisis and who, therefore, has applied the drastic austerity measures. Thus, the Constitutional Court of the Republic of Lithuania had in particular difficult task – while assessing the constitutionality of the austerity measures in the circumstances of a deep economic and financial crisis, to balance different constitutional values: stability of public finances and the social orientation of the State implying guarantees of social and economic rights. Considering this, one can see the experience of the Constitutional Court of the Republic of Lithuania in assessing austerity measures as unique and interesting at the European level.The subject of this article – the official constitutional doctrine formulated by the Constitutional Court of the Republic of Lithuania concerning the so-called austerity measures aiming to manage and to overcome economic and financial crisis within a state. The aim of the research is to identify and analyse the criteria of constitutionality of austerity measures. The research was conducted mostly by applying analytical, systematic, comparative and descriptive research methods.This article analyses the following criteria of constitutionality of austerity measures, which have to be observed respecting human rights and social orientation of the State, as consolidated in the Constitution: constitutionally justifiable basis of austerity measures, their necessity, temporal character, proportionality, as well as due regard to the limits of discretion of the legislature, the principles of social solidarity and non-discrimination, the duty to compensate certain losses. The article focuses on specific features of these criteria as far as they concern austerity measures. For example, the financial assessment of the situation in the State usually does not fall within constitutional jurisdiction; therefore, the Constitutional Court ought to abstain from assessing the compatibility of austerity measures with the first three criteria – constitutionally justifiable basis of austerity measures, their necessity and temporal character, i.e. the Court ought to rely on the assessment of the State economy made by the legislature (and the executive) and not to interfere into the matters of substance and expediency of decisions on economic policy. There are two specific aspects of the principle of proportionality in assessing the constitutionality of austerity measures, as indicated in the article: the first one is the requirement not to distort by the austerity measures the proportions of salaries and pensions established before their reductions; the second one is the requirement not to restrict other constitutional rights than those directly restricted by the austerity measures in question. One can read also about three specific requirements for constitutionality of austerity measures, which follow from the principles of social solidarity and non-discrimination: 1) overall and non-discriminative character of austerity measures; 2) the positive discrimination of the most vulnerable social groups; 3) the austerity measures cannot aim at the establishment of egalitarianism.The main conclusion made in this article is that the criteria of constitutionality of austerity measures, as formulated in the official constitutional doctrine of the Republic of Lithuania, are grounded on the general criteria of legality of the restrictions of human rights, as provided by international law, as well as they are in essence identical to the criteria of constitutionality of austerity measures which have been formulated by other European constitutional courts. Therefore, one may see a certain unity in diversity in this field, i.e. one of the elements of European constitutional identity.

Courtship at the coroner's court

This article examines the nature and conduct of nineteenth-century courtship through the prism of the largest sample of coronial court records ever assembled. These records deal with unexplained or violent deaths and often involved the extensive gathering of testimony from witnesses and other community stakeholders. A surprising number of cases were either directly connected to courtship, or witness statements provide evidence on courtship practice and custom. Focusing particularly on records for the English Midlands, we offer a new model of typologies of courtship experience running across a spectrum from serene and unproblematic through to the obsessive relationship that ended with murder or violence. Dealing in more detail with individual cases, we illustrate the value of the material for understanding the lived experience of courtship and address three broad questions. What range of actors (family, friends, neighbours, employers, lodgers, etc,) was involved in courtships among the labouring classes? What was the emotional context within which the courtships of ‘ordinary people’ were played out? And how did ordinary people experience the human journey of courtship? We suggest that it was possible for men and women to construct completely different versions of courtships, that relationships were fragile, and that the capacity for individual agency in courtship was much more circumscribed than has often been allowed for this period.

Military veterans: Therapeutic journaling in a veterans treatment court

Therapeutic journaling can promote self-reflection and contemplation in ways that extend treatment beyond the in-person therapeutic encounter. Although the research literature on journaling is scant, evidence suggests that journaling improves physical and mental health functioning. Therapeutic journaling is now becoming more commonplace in the criminal justice system, where it has been integrated into preconviction and postconviction efforts to reduce recidivism. The purpose of this paper is to highlight one court-based program, a veterans treatment court, in which journaling is a core component of a program seeking to enhance the therapeutic impact of the criminal justice system on military veterans. Using primary data, we describe the program, how it became part of the court’s model, and stakeholders’ perceptions of the impact of journaling on participants’ experience in court. The authors also outline the implications of journaling for military veterans and practitioners and identify steps for future research.

THE HISTORICAL EXPERIENCE OF THE FEDERAL CONSTITUTIONAL COURT OF THE FEDERAL REPUBLIC OF GERMANY IN OVERCOMING STATE LEGAL CONFLICTS

The article analyzes the historical experience of the Federal Constitutional Court of the Federal Republic of Germany in a conflict between the ruling parties, provoked by the issue of establishing the Armed Forces of the Federal Republic of Germany. The chronology of events that led to the crisis and the circumstances of the court decisions aimed to overcome it are reconstructed.

Dualism of Ukrainian Commercial Courts: Exploratory Study

This paper aims to explore the core characteristics of the so-called black and white tracks of the dual commercial justice system in Ukraine through a five-year ethnographic case study of the court experiences of selected Ukrainian companies. The empirical findings of this study confirm that the majority of litigants in routine cases have rather positive experiences in the courts, while a minority of the cases are diverted to the black track resulting in justice not being delivered. It is argued that the black track within the Ukrainian judiciary is consciously designed and reinforced by the ruling elite as part of the state governance structure and is subjected to more diverse and contradictory pressures than in Russia. At the same time, this study reveals the astonishing efficiency of the commercial courts in terms of time and cost savings. This zebra-like image suggests that the white ‘stripes’ of the Ukrainian courts are brighter, and the black ‘stripes’ are even darker than commonly perceived.

Exploring Stigmatization and Stigma Management in Mental Health Court: Assessing Modified Labeling Theory in a New Context

Drawing on Link and colleagues' modified labeling theory, this article examines whether the stigma management strategies defendants anticipate using after mental health court exit are associated with their reported experiences during court. Using survey data from 34 mental health court graduates, we find that respondents generally perceive the mental health court as procedurally just, did not experience stigmatizing shame, and anticipate using the inclusionary coping strategy of education over the exclusionary strategies of secrecy and withdrawal. Moreover, findings reveal that the anticipated use of stigma management strategies is associated with mental health court experiences in that procedural justice is associated with inclusionary coping strategies, while stigmatizing shame is associated with exclusionary coping strategies. We conclude by encouraging researchers to further explore the role of stigmatization and shame in specialty court contexts and to continue investigating these defendant perceptions of these courts' process.

Valuation of Copyrights for Law Purposes Collecting Societies and Cable Operators

This Article shows a case study of the valuation of copyright fees paid by cable operators to copyright collecting societes. Currently in Poland there are more than 100 court cases between the collecting societies and cable operators. This case study is based on an original model developed by one of the authors grounded on the international comparison method and court experiences of the authors.

Confidence in the Judicial System and Court Experience: Evidence from Brazil

Although there is a literature that relates the determinants of confidence in the judicial system and utilization of the judiciary, there is a gap on the causal relationship between these two variables. The purpose of this paper is to examine the causal relationship between confidence in the judicial system and utilization of the judiciary in Brazil. To address this issue, we construct measures of the extent to which the main newspapers report government corruption in their front page during the period 2010-2013 distributed by the states: Minas Gerais, Pernambuco, Rio Grande do Sul, Rio de Janeiro, Sao Paulo and Distrito Federal. By examining how confidence in the judicial system affects the utilization of the judiciary, we used instrumental variable approach: IV Probit. We used the news of corruption (front page coverage of corruption) as instrumental variable. Confidence in the judicial system is the variable instrumentalized. Our results are based on four surveys conducted along 2010, 2011, 2012 and 2013. We created the Brazilian Confidence in Justice Index (BCJI) as a validity argument for our confidence measure. Our results evidence that confidence in the judicial system has a positive impact on utilization of the judiciary. People who have higher levels of confidence in the judicial system have a greater propensity to seek the judiciary. We also found that there is a positive relationship between confidence in the judicial system and utilization of the judiciary for some demographic variables such as income, education, age and race.

A Heavy Legacy: Dualism of Ukrainian Commercial Courts

This paper aims at exploring the core characteristics of the so-called black and white tracks of the dual commercial justice system in Ukraine through a five-year ethnographic case study of court experiences of selected Ukrainian companies. The empirical findings of this study confirm that the majority of litigants in routine cases have rather positive experiences in courts, while a minority of the cases are diverted to the black track resulting in justice not being delivered. It is argued that the black track within the Ukrainian judiciary is consciously designed and reinforced by the ruling elite as a part of the state governance structure and is subjected to more diverse and contradictory pressures than in Russia. At the same time, this study reveals the astonishing efficiency of the commercial courts in terms of time and cost savings. This zebra-like image suggests that the white ‘stripes’ of Ukrainian courts are brighter, and the black ‘stripes’ are even darker than commonly perceived.

Sexual experience enhances Drosophila melanogaster male mating behavior and success.

Competition for mates is a wide-spread phenomenon affecting individual reproductive success. The ability of animals to adjust their behaviors in response to changing social environment is important and well documented. Drosophila melanogaster males compete with one another for matings with females and modify their reproductive behaviors based on prior social interactions. However, it remains to be determined how male social experience that culminates in mating with a female impacts subsequent male reproductive behaviors and mating success. Here we show that sexual experience enhances future mating success. Previously mated D. melanogaster males adjust their courtship behaviors and out-compete sexually inexperienced males for copulations. Interestingly, courtship experience alone is not sufficient in providing this competitive advantage, indicating that copulation plays a role in reinforcing this social learning. We also show that females use their sense of hearing to preferentially mate with experienced males when given a choice. Our results demonstrate the ability of previously mated males to learn from their positive sexual experiences and adjust their behaviors to gain a mating advantage. These experienced-based changes in behavior reveal strategies that animals likely use to increase their fecundity in natural competitive environments.

Assessing Unfair Pricing Under China's Anti-Monopoly Law for Innovation-Intensive Industries

China, like a number of other antitrust jurisdictions, has a law concerning unfair pricing. This article develops an economic framework for applying the unfair pricing law in China. The framework draws on the experience of courts and competition authorities in other jurisdictions and the writings of various commentators, particularly economists, on unfair pricing in those jurisdictions. It shows that virtually all jurisdictions have decided to consider unfair pricing claims only in exceptional circumstances, and rarely, if ever, in innovation-intensive industries. For those cases that pass this screen and receive consideration, the courts and competition authorities then, under the leading test, insist on substantial evidence that the price is significantly higher than cost and is unfair given the value provided to the buyer. This article shows that the exceptional circumstances screen and the rigorous unfair pricing test are motivated by a recognition, supported by substantial empirical evidence, that successful firms must have the assurance of receiving significant rewards to induce them to invest time and capital in highly risky innovation that is the source of economic growth and welfare. It concludes by showing that this approach is consistent with modern Chinese economic policy.

Redefining Success: A Qualitative Investigation of Therapeutic Outcomes for Noncompleting Drug Court Clients

ABSTRACTUtilizing a convenience sample from a drug court program, the authors investigated the benefits of treatment for noncompleting drug court clients (n = 30). Using an as-treated design, the qualitative investigation assessed whether noncompleters received any benefit from their drug court experience. In-depth interviews were conducted to determine both benefits gained and reductions in harm that occurred as a result of drug court participation. Data analysis was guided by the grounded theory method. Outcomes of coding indicated that participants' motivation and self-efficacy were enhanced through the intervention. Further, participants reported that their relationships with family, therapists, or peers were improved as a result of their involvement with drug court. Individuals in the study sample reported abstinence or decreased substance use, as well as improvements in employment and/or educational attainment. Participants’ perceptions of barriers to program completion were also noted. Study outcomes suggest that expansion of a harm reduction approach in social service practice may have utility for drug-abusing populations. Limitations of the research, including lack of generalizability, are discussed. Further research of harm reduction effects with a larger, heterogeneous sample size is recommended.