Impartial Trial Research Articles

PROTECTION OF THE RULE OF LAW AS A CONSTITUTIONAL PRINCIPLE AND INDIVIDUAL RIGHT BY THE CONSTITUTIONAL COURT OF KOSOVO

This article examines the case law of the Constitutional Court of Kosovo and explains how this court protects the rule of law, as a fundamental constitutional principle and as a human right. The example of Kosovo is intriguing because of the peculiar historical, political and legal backdrop against which the Constitution was drafted, and the constitutional adjudication that has taken place. Methodologically, this analysis is based on a review of the landmark cases when the Constitutional Court of Kosovo reasoned its decisions with reference to the specific constitutional provisions that enshrine the principle of the rule of law. The paper highlights that the Constitutional Court of Kosovo refers to the rule of law as a general normative framework for adjudicating cases of abstract constitutional review, as well as for deciding cases submitted by individuals – mostly in conjunction with the right to a fair and impartial trial. By scrutinizing the cases of Kosovo, this analysis highlights the role of constitutional courts in ensuring that general constitutional principles, such as the rule of law, are justiciable and have practical effect for human rights of individuals.

Briefly Noted

The European Court of Human Rights (ECtHR) handed down a unanimous decision on November 23, 2023, in a case brought by former Polish President Lech Walesa against the Polish Government. The Court concluded that a Polish Appeals Court, the Chamber of Extraordinary Review and Public Affairs (CERPA), had violated Walesa's right to an independent and impartial trial, breached “the principle of legal certainty,” and violated his right to respect for private and family life. The Court found that the CERPA “was not an ‘independent and impartial tribunal established by law’” and was often used by the state to “further its own political opinions and motives,” as the Prosecutor General of Poland and the Executive branch of government held considerable influence and authority over the judicial system. Additionally, the 2017 law that created the CERPA gave to the General Prosecutor “the unlimited power to contest virtually any final judicial decision” and extended the time limits for filing appeals, which enabled the Prosecutor to act retroactively and undermine the “requirement of foreseeability.”

It’s Time we Get Rid of Jury Trials

This paper shows that the process of jury trails are not needed in a modern society as the trial by a judge is more than enough to meet the tenets of the justice system of a fair, just, balanced, unbiased and impartial trial. We need to totally and completely abolish this giant elephant in the room from medieval ages and make the judicial process more efficient, better and quicker by introducing the trial by single judge as a norm.

'Ne Bis In Idem' Principle in Criminal Proceedings – Comparative Analysis with International Instruments and Kosovo Legislation

Criminal procedure law consists of legal principles, such as a fair and impartial trial and within a reasonable time, presumption of innocence, the principle "in dubio pro reo," independence of the court, equality of parties, the principle "ne bis in idem"etc. Among the main principles recognised by International Conventions, the Constitutions of States, and Criminal Procedure Laws is the principle, “The right not to be tried twice for the same offence," or as it is also known, "ne bis in idem." The principle “in bis in idem” is used in Kosovo’s criminal proceedings, and recognition of this principle by international convention, including its recognition by the Law of the European Union, is analysed in this paper. The legislation of Kosovo was established with the influence and assistance of the international community, which had an administration mandate until 17 February 2008, the date on which Kosovo declared its independence and, hence, separated from the former Yugoslavia. The new state is not a member of the UN but is officially recognised by more than 100 countries. In 2010, the International Court of Justice issued the Advisory Opinion which concluded, “The declaration of independence in respect of Kosovo on 17 February 2008 had not violated general international law.” The purpose of this paper is to emphasise the importance of this principle when dealing with criminal cases before regular courts, the legal security that this principle provides to society, and the implementation of international legal instruments in the national law. Methods: The paper uses methods of analysis and synthesis, the descriptive method, as well as the method of doctrinal interpretation of legal norms of criminal proceedings. Results and conclusions: This principle has been accepted by international instruments and by Kosovo’s constitutional and legal system. The application of this principle in the criminal justice system in Kosovo forms legal certainty for citizens and constitutes protection of the rights and legitimate interests of persons involved in criminal proceedings. Kosovo has applied international standards in the implementation of criminal legislation and has directly incorporated international human rights instruments into its constitutional system (International Covenant on Civil and Political Rights adopted by the UN in 1966, ensued by the European Convention for the Protection of Human Rights and Fundamental Freedoms).

The Role of Law Clinics and Legal Aid Center in Providing Legal Aid for Vulnerable Group: A Case of Africa, Indonesia, and Australia

Legal aid is a concept in response to the community's need for the adage "law is sharp down, blunt up". The existence of Law Number 16 of 2011 concerning Legal Aid cannot be separated from the legal reform agenda that gives citizens the right to obtain justice and the right to a fair and impartial trial, including through the provision of legal aid. Legal aid is part of the advocate profession which is a noble profession or officium nobile because it requires the defense of all people regardless of background, race, skin color, religion, culture, socioeconomic, rich-poor, belief, politics, gender, and ideology.

Vulnerability of Religious Minority in Indonesia due to the Implementation of the Blasphemy Law

The establishment and application of blasphemy law in Indonesia is generally under the justification of maintaining public order, preventing violent-conflict, and protecting the enjoyment of the right to freedom of religion. However, when the blasphemy law should be applied to adjudicate an internal religious conflict among the sects then the debate arises on whose interpretation and how it will be referred by the State authorities as demarcation or exclusionary standard to distinguish between the deviant religion and legally valid ones. Issues on the fragility of fair and impartial trial as protection to the existence of religious minority group therefore becomes very central due to the implementation and application of blasphemy law will be always influenced by power relation among the involved parties. This paper is intended to explore Tajul Muluk case that has been exhaustively ruled by all level of Indonesian courts in order to reveal complex roles of judiciary in applying service-conception of blasphemy law into first-order reason of person’s faith. Source-based legal reason of the court which merely refers to the historical or social facts as texted in the blasphemy law with prejudice to human rights’ moral test has been paradoxically widen penumbra of legal rule to uncertainty that undermines access to justice for religious minority group especially when addressing social conflict.

Legal and Ethical Issues in Designing Online Courts

This research explores and analyses whether online courts perform a judicial function in accordance with the right to a fair trial and the right to fair and secure user’s personal data protection to all groups in society. By adopting a descriptive and critical approach, the author analyses the main operating principles of online courts and legal and ethical issues that may occur in designing and implementing online courts in conjunction with these rights. The result of this research shows that online courts provide greater access to justice to society and they would satisfy the needs of modern society with technological knowledge. At the same time they do not provide access to the most vulnerable groups that may not have or have limited internet access, or have not enough technological and legal knowledge, as a result of not ensuring equal access to justice to all groups in society. Taking into account that online courts perform a judicial function in the traditional court sense, they are bound by Article 6 (1) of the European Convention on Human Rights and the principles of personal data of the General Data Protection Regulation, but at present they cannot ensure their observance in relation to an open, transparent and impartial trial, as a result of a partial violation of the rights enshrined in these norms.

Implementation of the principle of competitiveness of the parties and free- dom in the presentation of their evidence to the court in the criminal process of some countries of the world

One of the tasks of criminal proceedings is to protect the individual, society and the state from criminal offenses, which is achieved through the implementation of other tasks, in particular, by ensuring a rapid, complete and im-partial investigation and trial. In this case, any procedural decisions in criminal proceedings must be based on evi-dence that serves as a kind of link between the event of a criminal offense and the consciousness of the investigator, prosecutor, investigating judge, court. Evidence itself is the main content of criminal procedure in both the pre-trial investigation and in the judicial stages of criminal proceedings in most countries.The authors note that the Constitution of Ukraine as one of the main principles of justice provides for adversarial parties and freedom in providing the court with their evidence and proving their persuasiveness before the court. Factor The Criminal Procedure Code of Ukraine has significantly expanded the scope of this principle of the do-mestic criminal process, including in the field of evidence. Thus, the defense, as well as the prosecution, was given the opportunity to collect evidence during the pre-trial investigation, as a result of which the right of the parties and other participants in criminal proceedings to submit evidence (things and documents) is becoming increasingly important.The article also examines that the principles of criminal procedure in France include: the principle of formality, prosecution, legality, equality, dignity, protection of the victim, urgency of the trial, presumption of innocence, publicity, oral and adversarial proceedings. And the main principles of the criminal process in Germany include: the principle of formality (publicity); the principle of charge; the principle of legality and the principle of compulsory research. A characteristic feature of modern law in the field of criminal procedure in the United States is the consis-tent expansion of the institution of delegated legislation. The US Congress has delegated to the Supreme Court the right to establish rules of criminal procedure that have the force of federal law.

Access to a genuinely independent and impartial trial: a review of the sixteenth sustainability goal completeness

The sixteenth sustainability goal is about equality in access to justice. However, according to some events in Eastern Europe, access is insufficient. The court must be genuinely independent and impartial. In this regard, we decided to find arguments in favour of expanding the sixteenth sustainability goal. A review of the sources and a theoretical study indicated a clear link between judicial independence and sustainable development. We used the method of doctrinal research. ECtHR cases have become our data for qualitative analysis. We have reaffirmed that judicial independence is the condition of the rule of law. It means conduction of proceedings without any pressure or interference on a judge, particularly from other branches of government. We argue that the entire independence of the judiciary appears on the background of the subjective and objective independence of the judge. In addition, this study demonstrates that judicial independence is a condition for sustainable development. It is associated with public trust and public confidence in the reality of such independence. In the example of equality of parties, we pointed out that there is no need to detail the sixteenth goal further. With our study, we wish to breathe new energy into the sixteenth goal of sustainable development

Briefly Noted

On Tuesday, April 20, the Court of Justice of the European Union (CJEU) ruled in Case C-896/19, Repubblika v. Il-Prim Ministru that Malta's system for appointing judges did not contradict EU law. As reported by JURIST, the ruling went before the national court when Repubblika, an association created to promote the rule of law in Malta, had challenged the procedure, which was provided by the Constitution of Malta. The process in the Maltese Constitution stated that judiciary members are appointed by the president acting under the advisement of the prime minister. However, appointees must satisfy certain conditions and are subject to background checks or other examinations by the Judicial Appointments Committee, whose purpose is to assess candidates and provide feedback to the prime minister. The national court brought this to the CJEU to decide whether this system was constitutional under EU law, specifically under Article 19(1) of the Treaty on European Union, in light of Article 47 of the EU Charter of Fundamental Rights, which states that member states must provide conditions for a fair, independent, and impartial trial to ensure true justice. The court reached the conclusion that this practice was not prohibited by EU law because, in order to guarantee conditions of judicial independence and impartiality, procedures must exist to ensure that appointees are free from influence from the legislature and/or executive with regard to judiciary proceedings. The Court found that power of the prime minister to submit a candidate that was not suggested by the Judicial Appointments Committee was not contrary to EU law because of various safeguarding measures included in the Constitution. The Court held: “Inasmuch as the Prime Minister exercises that power only in quite exceptional circumstances and adheres to strict and effective compliance with that obligation to state reasons, that power is not such as to give rise to legitimate doubts concerning the independence of the candidates selected” (para. 71). Therefore, the Court concluded that the national provisions at issue do not give rise to any legitimate uncertainties, or doubts of independence, regarding the chosen judiciary candidates.

The rights of the defendant and public interest in proving insanity under the law of New York

Allocation of the burden of proof is a key issue of criminal procedure that is affected by multiple legal and social factors. Under due process principles, the defendant’s right to a fair and impartial trial is deemed to be the epicenter of the whole structure. However, efficient law enforcement is a prominent public interest that must be considered. This article explores the correlation between public and private interest in proving insanity under the law of New York, which provides great empirical background due to its long history of legal disputes and legislative changes. Considering the nature and structure of the burden of proof, the author concludes that there are several principles for its fair allocation: the due party that bears both the burden and the risk of its nonperformance; the feasibility of the burden; the adequate opportunity for the other party to rebut; the concentration of resources upon needs that are not presumed but in fact exist. All the mentioned principles lay the ground for the harmonization of constitutional guaranties for the defendant as well as the successful enforcement of criminal law. The current New York approach to insanity defense as an affirmative one along with the history of its implementation tends to prove its compliance with such requirements. This finding suggests that bearing the burden shall not be treated as impairment by default, but can protect both the interest of this party and the integrity of the whole process.

Trial fairness before impact: Tracing the link between post-conflict trials and peace stability

ABSTRACTIn this study, I investigate the impact of post-conflict trials on peace stability in post-conflict countries. I contend that empirical effects of post-conflict trials are contingent upon the partiality of the proceedings. While impartial trials promote accountability and confidence in the rule of law, partisan trials marginalize opposition forces and provide selective amnesties for government allies. To create comparable insights on partiality levels of post-conflict trials, I conduct an expert survey evaluating all major post-conflict trials between 1946 and 2005 (53 trials in total). The findings reveal that most trials were partisan while few represented genuine instances of accountability-seeking. Building on these insights, a quantitative analysis disentangles the impacts of partisan and impartial trials on peace stability using a global sample of post-conflict episodes (N = 265). The results demonstrate that positive effects of post-conflict trials on peace stability are primarily driven by partisan trials. Hence, the correlation between post-conflict trials and peace stability is mainly a product of power consolidation operating through coercive victor’s justice. While impartial post-conflict trials likewise tend to stabilize peace, their incidence is too small to trace a generalizable effect in a quantitative analysis. In light of these findings, this study calls for restraint when making consequentialist arguments about choices of post-conflict justice instruments.

Is the genie out of the bottle? Digital platforms and the future of clinical trials

Is it possible to conduct impartial clinical trials in a world full of digital networking tools that patients can use to coordinate themselves and act against research protocols? This paper builds on an ethnography of PatientsLikeMe, a company running an internet social media network where patients with different conditions share their clinical data with standardized questionnaires. The company faced a serious dilemma in 2011 when some ALS patients, members of the site, started sharing data about a phase II clinical trial of an experimental drug (NP001) in which some of them were participating, to anticipate the experiment’s outcomes and understand each one’s allocation over trial arms. In parallel, some other patients were using the site and other web tools to coordinate and run their own replication of the trial with homebrew mixes of industrial grade chemicals. PatientsLikeMe researchers reflected on their position as networks managers and eventually decided to use the collected data to develop their own analysis of the efficacy of the original compound, and of the homebrewers’ compound. They presented the NP001 events as a case in point for articulating a new social contract for clinical research. This paper analyses these events, first, by understanding the clinical trial as an experiment organization form that can succeed only as long as its protocol can be enforced; second, we observe how web networks make it dramatically easier for the trial protocol to be violated; finally, we point out how a potentially dangerous confluence of interests over web networks could incubate developments that disrupt the status quo without creating a robust and safe alternative for experimentation. We conclude by warning about the interests of the pharmaceutical industry in exploiting patients’ methodological requests to its own advantage.

Застосування належної правової процедури як завдання кримінального провадження: до питання про сутність та практичне значення

Despite the fact that the due process of law concept is one of the most fundamental and common idea in every modern democratic constitutional state, the term of “due process of law” is a novelty in Ukrainian legislation. The aim of the research is to determine an essence and substance of an applying due process as criminal procedural objective. The methodological basis of the research was general scientific and special methods, namely dialectical, hermeneutic, teleological, logical, historical, statistical, formal legal and comparative legal methods. The author reviewed the genesis of due process concept, in particular in English and US legal systems, and as a part of some current international treaties. The author analysed Ukrainian version of due process concept (“appropriate legal procedure”) and the author's definition was derived, according to which this is an order of taking legal actions which embodies in practice the rule of law by applying to each person those legal norms that completely correspond to all important circumstances that occurred in reality and grant the unambiguously possibility to predict in advance that application and the result of legal rules enforcement. A brief overview of the regulatory provisions that make up the content of due process was provided. It was determined that the essence of due process is related to ensuring the sustainability of the social contract. Due process of law is the basic guarantee of preventing the arbitrariness of power, unlawful compulsion, coercion and pressure on natural rights and freedoms of citizens. The difference between current legally-determined criminal procedural objective “application of due process” and the criminal procedural objective of the Soviet criminal process – “ensuring the correct application of the law” was analysed. It was proposed to attribute the application of due process to assurance, “guarantee” objectives, which is aimed at limiting the general objective – to ensure prompt, comprehensive and impartial investigation and trial. The importance of applying due process in criminal proceedings, in particular, when legal lacunae or conflict of laws exist, was characterised. It was determined that the Verkhovna Rada of Ukraine, the Constitutional Court of Ukraine, the European Court of Human Rights, and the Supreme Court are the bodies, which formalise the substance of due process. The results of the study can be used both in practical activities to ensure the effective implementation of due process of law and in legal education and further scholarly activity.

What Comes Next: Expansion of the Pena-Rodriguez Racial Bias Exception to the No-Impeachment Rule

In the recent case of Pena-Rodriguez v. Colorado, the Supreme Court announced a constitutional exception to the juror no-impeachment rule--a traditional evidentiary rule barring jurors from testifying about what occurred during jury deliberations in an effort to impeach the verdict. Under this exception, where a juror makes a clear statement evincing that he or she convicted a criminal defendant on the basis of racial stereotypes or animus, the trial court may consider evidence of such juror statements. While the Court framed its decision as a necessary means of protecting the Sixth Amendment right to a fair and impartial trial, the Court discussed at length the need to rid the jury system of racial bias and prejudice, seemingly placing the case within a long line of cases intended to eliminate the impact of racism in the criminal justice system. As such, the Court limited its holding, and the newly created exception, strictly to instances of racial bias. While the Supreme Court limited the Pena-Rodriguez exception to instances of only racial bias, judges and commentators alike have questioned whether such a limitation is possible in practice. Justice Alito noted as much in his dissent, arguing that there is no principled basis for limiting this exception to race. This Note explores this question: will, and should, the Pena-Rodriguez exception remain limited to race. First, this Note analyzes the jurisdictions in which a bias exception had already existed before Pena-Rodriguez to determine whether these exceptions have expanded beyond race to date. Next, this Note examines the related doctrinal area of voir dire peremptory strikes to determine whether the expansion of a race-only Batson exception to other types of prejudice can shed light on Pena-Rodriguez’s potential evolution. Finally, using the states’ experience with these exceptions and the Court’s own past experience under Batson, this Note demonstrates that the narrow exception created by Pena-Rodriguez is likely to, and should, expand beyond race, and suggests that, in addition to procedural barriers, incorporation of Fourteenth Amendment principles can ensure the no-impeachment rule continues to serve its purpose as a safeguard of the jury system.

All-America Selections winners for 2016: ornamentals and edibles with proven performance for North American gardens©

Twelve cultivars, including two ornamental crops and ten edible crops, became All-America Selections (AAS) National Award Winners for 2016. In addition, six cultivars, including two ornamental crops and four edible crops, became AAS Regional Award winners for 2016. AAS awards are based on impartial trials at over 80 trial ground across North America.

The Hungarian court system with special emphasis on the principle of the independence of judges

The question of ensuring the independence and impartiality of judges is one of the basic principles of justice, and basic principles of state functioning in general. Successful functioning of justice and the realization of this principle is largely linked to the method of selection of judges, which is, nowdays, an important issue in the world's major legal systems. They all aim to find a solution for the selection of judges that could implement reinforcement of the principle of independence of judges and their impartial trial. Regarding this, significant differences are noticeable between countries which apply civil law and ones that judge by the principle of common law, especially bearing in mind that certain political cultures exist in which there are no limits that the court involve even an external factor to the trial verdict. In this thesis we present the Hungarian justice system and methods of selection of the judges, comparing it with the Serbian model, and then presenting solutions in English, American, German and French judiciary, trying to display current prevailing international trends in countries that apply the legal system of Common law, or in those who judge by Civil law. Finally, by the method of comparative analysis, we present our own view on this issue, being aware that the problem of selection of the judges should be cautiously regulated, given the experience of some other countries, which is especially reflected in post-communist countries in which, up to the 1990s, only one-party system existed, characterized by the fact the judges were selected by the communist Party personnel, that in former Yugoslavia used to be called 'socio-politically suitable'. Nowdays in Hungary, Serbia and many other countries, judicial councils represented by judges, prosecutors, lawyers and law professors have a central role in the selection of the judges (in Serbia there are special judge and prosecutor councils). In France, the election of judges is conducted by the competition exam.

Easier Said than Done: Victim Participation at the ICC The Double Implementation Gap between the Substantive Right to Participate and its Procedural and Jurisprudential Limitations

The Rome Statute of the International Criminal Court (ICC) establishes for the first time in the history of international criminal law the participation of victims in criminal proceedings. Specifically, Article 68 (3) of the Rome Statute (RS) establishes the general terms of the victim participatory scheme at the ICC. From such a provision, it can be deduced that there are two modes of victim participation: direct and indirect participation. Nonetheless, following a teleological interpretation, vicarious participation through a legal representative seems to be an ad latere option to the main, individual, direct participation. Article 68 (3) of the Statute also establishes three principal limitations to the participation of victims in ICC proceedings: (1) first, the personal interests of the victims must be affected for them to be able to participate in the proceedings; (2) secondly, the participation of victims must be considered appropriate by the Court; (3) and, finally, victim participation must not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. However, the Rules of Procedure and Evidence (RPE), in developing the procedural aspects of victims’ participation rights, focus solely on the rights of the legal representative for victims (LRV) and impose conditions that might be seen as limiting the scope of victim participation. Further, the application and varying interpretation of these rules by the different Chambers has resulted in a confusing participatory scheme which heavily relies in the discretionary criteria of the Judge or Chamber who is knowing of the case. The current piece will aim to identify whether there is in effect a gap between the substantive right of victims to participation at the ICC set in Article 68 (3) RS and its procedural development through the Rules of Procedure and Evidence. Furthermore, by examining the practice of the different Chambers, the present study also attempts to establish the existence of a jurisprudential implementation gap. And if such a gap does indeed exist, would not it be in contravention of Article 21 of the Rome Statute which enshrines the principle of legality, the principle of hierarchy of norms and the interpretation of the Statute in accordance with internationally recognised human rights? More importantly, does this double implementation gap –procedural and jurisprudential – curtail the right of those whom the Court pledged to protect – the victims of the most serious crimes of international concern - to the extent of making them more symbolic than real?

Assessing the Impact of the United Nations War Crimes Commission on the Principle of Complementarity and Fair Trial Standards

This article looks at the work of the United Nations War Crimes Commission (UNWCC), and its influence on the development of international criminal law. It examines the role the UNWCC played in prosecuting war criminals, and notes the similarities between the UNWCC’s mission and the current structure and role of the International Criminal Court, particularly its focus on the principle of complementarity. The article reviews fair trial standards at the time of the national trials, and provides that many of them are present in current international human rights instruments. Still, the author submits that many trial records are still inaccessible and, as a result, there is not enough evidence to fully analyze the Commission’s efficiency in providing for a fair and impartial trial.

An Impartial Right: Louisiana's Infringement of a Defendant's Constitutional Right to a Bench Trial Through the State's Constitutional Provision Limiting a Defendant's Right to Waive a Jury Trial

This note argues that, implied within the Sixth Amendment’s Impartial Jury Clause, a criminal defendant enjoys the guaranteed right to waive a jury trial in favor of a bench trial. In State v. Bazile, the Louisiana Supreme Court held that the Sixth Amendment of the United States Constitution does not offer a criminal defendant the absolute right to a bench trial. Bazile was denied the chance to have his case heard in front of a judge because of a provision in the state’s constitution enforcing a deadline by which a criminal defendant must waive a jury trial in favor of a bench trial. However, the U.S. Supreme Court has recognized certain circumstances in which a criminal defendant would benefit from a bench trial. In U.S. v. Singer, the Court held that if a defendant is able to show a compelling reason that a trial by jury would not render an impartial trial, the denial of his proffered waiver violates his constitutional right to an impartial trial. In the present case, Bazile is charged with the murder of his wife, and he is facing the possibility of extensive imprisonment. In a trial of this notoriety, it is reasonable to expect that potential jurors would form biased opinions before hearing the facts of the case and the prosecution’s evidence. Ultimately, Bazile was decided incorrectly because a compelling reason is inherent in Bazile’s case, and he should benefit from a trial before a judge instead of a jury if it ensures an impartial trial.