Court Judges Research Articles

Reconsidering the costs of commitment: Learning and state acceptance of the UN human rights treaties’ individual complaint procedures

AbstractHow do states react to adverse decisions resulting from human rights treaties’ individual complaint procedures? While recent scholarship has shown particular interest in states’ reactions to international court judgments, research on state behavior vis-à-vis an increasing treaty body output remains scarce. I argue that states generally want to avoid the costs implied by adverse decisions, or ‘views’. Rising numbers of rebukes lead them to update their beliefs about the costliness of complaint procedure acceptance in a Bayesian manner. As a result, states become less inclined to accept further petition mechanisms under different human rights treaties. I test these assumptions on an original dataset containing information on individual complaint procedure acceptance and the distribution of 1320 views for a total number of 169 countries ranging from the year 1965 to 2018. Results from Cox proportional hazards regressions suggest that both the number of views against neighboring states and against the examined state itself decrease the likelihood of acceptance of most of the six individual complaint procedures under observation. I also find evidence that this effect is exacerbated if states are more likely to actually bear the costs of implementation. Findings indicate that the omission of further commitment can be a negative spillover of the treaty bodies’ quasi-judicial output.

Problems of enforcement of judgments of the European Court of Human Rights in Ukraine

The research relevance was determined by the need to create an effective mechanism for enforcing judgments of the European Court of Human Rights (ECHR) in the context of their systematic non-enforcement by Ukraine and the existing threat of weakening the guarantees of observance and safeguarding the fundamental freedoms and rights. Consequently, the research endeavour focused on examining the challenges and barriers present within the mechanisms responsible for implementing to the rulings issued by the ECHR as well as the judgments rendered by domestic courts operating at the national level. The methods used in the study include historical, statistical, legal hermeneutics and others. The core findings and central conclusions drawn from the research investigation are to reveal the prerequisites for Ukraineʼs integration to the European supranational judicial protection system, the impact of this event in the context of guaranteeing basic human entitlements; focus on data regarding Ukraineʼs participation as a defending party in international legal disputes. The author examined which rights are most often violated in the context of lawsuits against the Ukrainian state before the ECHR, in particular, the right to free movement and personal integrity, as well as facts related to the duration of proceedings, fair trial, etc. The author also pointed to two major pilot judgments delivered by the Court – Case No. 40450/04 and Case No. 46852/13, which point to a systematic and structural issue of inaction to properly implement the judgments of the ECHR and national courts. This analysis delved into the underlying factors that contribute to the challenges in enforcing judgments, which include imperfect legislation and insufficient funding. The author pointed out the need for a comprehensive approach to improving this area through the development of effective remedies and alternative ways of paying compensation. This studyʼs outcomes serve as a springboard for further research by sociologists, legal professionals, political scientists, and policymakers, paving the way for a more dependable court enforcement framework

Judicial control over the observance of human rights and freedoms during the consideration of the prosecution’s motions for permission to conduct covert investigative (search) actions in terms of observance of the principles of the right to a fair trial

The article is devoted to the problematic issues of regulation of judicial control during consideration of applications for permission to conduct covert investigative (detective) actions and use their results for other purposes, in terms of ensuring the right to a fair trial guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The principle of fairness of a trial is interpreted in certain judgments of the European Court of Human Rights as the proper administration of justice, the right of access to justice, equality of parties, adversarial nature of the trial, reasonableness of the trial, etc. The construction of Article 6 of the Convention indicates the existence of the following key elements of the right to judicial protection: 1) the right to a hearing; 2) fairness of the hearing; 3) publicity; 4) reasonable time; 5) hearing by a court established by law; 6) independence and impartiality of the court. The author examines the key issues affecting the objectivity of court decisions in this area, imperfections of the procedures provided for in the criminal procedure legislation in terms of ensuring the fairness of the trial, reasonableness and motivation of the court decision. Special attention is paid to the problems of ensuring the independence and impartiality of the court as a factor that significantly affects the legality of such decisions, and the author suggests ways to improve the effectiveness of judicial control in this area. According to the author the legal regulation provided for by criminal procedure legislation in the area of judicial control over covert investigative (detective) actions, both in terms of consideration of applications for permission to conduct activities related to interference with private life and the use of the information obtained in another criminal proceeding or for another purpose, does not ensure compliance with the guarantees of the right to a fair trial provided for in Article 6 of the European Convention. Along with the need to take effective measures aimed at ensuring the independence of the judiciary and the impartiality of judges, criminal procedure legislation also needs to be improved. In particular, the article suggests that reforms should be aimed at overcoming “formalism” in the course of consideration of applications for permission to conduct covert investigative (detective) actions.

Legal aspects of currency restrictions introduced by the National Bank of Ukraine for business under martial law

The article examines the definition of such concepts as «currency», «currency transaction», «currency values» and «currency regulation» in the legislation of Ukraine and scientific works of domestic scientists. The introduced currency restrictions and prohibitions were analyzed in accordance with the Resolution of the NBU Board «On the operation of the banking system during the introduction of martial law» No. 18 of February 24, 2022. In addition, a number of resolutions of the NBU Board in 2023–2024 regarding softening and optimization of a number of currency restrictions in order to prevent an unproductive outflow of capital to protect Ukraine’s international reserves and preserve the stability of the currency market were also studied. Thus, the introduction of the regime of managed flexibility of the exchange rate by the NBU was considered, in accordance with the Strategy for easing currency restrictions. The emphasis is placed on the fact that the main criterion for determining the priority of easing currency restrictions is the urgency of correcting distortions in the market and supporting economic recovery, taking into account the relevant risks for exchange rate stability and international reserves in accordance with the Roadmap developed by the NBU. The author drew attention to the limitation of cross-border transfers by Ukrainian ТЕОРЕТИКО-ПРИКЛАДНІ ТА ГАЛУЗЕВІ АСПЕКТИ 480 • АЛЬМАНАХ ПРАВА • 2024 • Випуск 15 • companies aimed at the execution of court decisions regarding foreign companies, settlement agreements concluded in the course of court proceedings and agreements concluded as a result of the court’s review of cases on recognition and granting of permission to execute the judgment of a foreign court. The author draws the attention of businesses to the observance of the deadlines for settlement of operations on export and import of goods, which amount to 180 calendar days and apply to operations carried out from April 5, 2022. Based on the analysis of court practice, it is proposed to make appropriate changes to Clause 14 of the above-mentioned Resolution of the Board of the National Bank of Ukraine No. 18 regarding the addition of clauses 46 and 47 to the list of exceptions to restrictions: «46) all transactions related to the implementation of the Convention on the Recognition and Enforcement of Foreign Court Decisions in Civil or Commercial Matters from July 2, 2019; 47) transactions related to the implementation by resident legal entities of private form of ownership of decisions of foreign courts and settlement agreements concluded by the parties in the process and/or as a result of consideration of the case by the court, including cases regarding the recognition and granting of permission for the implementation of decisions of foreign courts in Ukraine». Key words: currency, currency values, currency operations, currency regulation, currency restrictions, bank, National Bank of Ukraine, banking legislation.

Reconciliation between the Formality of the Will and the True Intention of the Testator: Commentary on the Taiwan High Court's 106th Annual Civil Judgment No. 234

Reconciliation between the Formality of the Will and the True Intention of the Testator: Commentary on the Taiwan High Court's 106th Annual Civil Judgment No. 234

The Burden of Enforcing ECOWAS Court Judgement in Member States: Lessons from The European Court of Justice

The Burden of Enforcing ECOWAS Court Judgement in Member States: Lessons from The European Court of Justice

Taxation on Charitable Trust: Comment on Supreme Administrative Court Judgment No. 227 in 2023

Taxation on Charitable Trust: Comment on Supreme Administrative Court Judgment No. 227 in 2023

Glosa krytyczna do wyroku Wojewódzkiego Sądu Administracyjnego w Warszawie z dnia 11 kwietnia 2023 r. (VII SA/Wa 2467/22)

The commentary concerns the judgment of the Voivodeship Administrative Court in Warsaw of 11 April 2023, in which the Court referred to the interpretation of the concept of a railway area. The Court’s position deviates from the standards of linguistic interpretation and the accepted practice of administrative authorities. Due to its significant relevance to the process of agreements made by the President of the Office of Rail Transport, the discussed judgment is important for the practice of administrative bodies involved in spatial planning and development. The commentary is critical in nature and considers that the Court, by applying inappropriate interpretive tools, deviated from a linguistic interpretation that was unjustified in the context of the previous case law and doctrinal views.

Life experience of tax authorities, i.e. hammer againsttaxpayers or praise of folly

This article is aimed at the critical analysis of the tax authorities’ practise of referring to the life experience whileevaluating evidence. The material for the analysis consists of a few examples of court judgments showing howtax authorities refer to the “life experience”. The analysis shows that such a reasoning can provide for a hammeragainst taxpayers, since many times there is no possibility to enter a reasonable discussion with such a reasoning,hence, any attempt of taxpayer to defend themselves can end in a probatio diabolica. The analysed way ofreasoning can also constitute “praise of folly” since it can lead to adverse consequences for the taxpayers, whopresent exceptional qualities while conducting their affairs.

The EU Divorce Jurisdiction of Brussels IIB Regulation and Its Implementation in Austria

To accommodate the needs of its citizens in building relationships across borders, the EU has provided several regulations. Since its first establishment in 2000, the EU regulations on divorce and legal separation jurisdiction have been amended twice. There are some significant changes in this jurisdiction, from its original regulation in 2000 to its amendment version in 2003 up to the current version that was established in 2019. This paper tries to investigate the implementation of the current ruling EU instrument in Austria through three approaches by evaluating: 1) the infringement cases, 2) preliminary ruling proceedings, and 3) further official actions conducted by Austria. It can be concluded that Austria has never been accused of any infringements of the three regulations. The court judgments of the two proceedings of preliminary ruling submitted by Austrian courts concerning Brussels IIA Regulation are also in accordance with the regulated law of EC No 2201/2003. The establishment of an introductory decree on the summary and legal explanations of the Council Regulation EU No 1111/2019 by Austria is a very good practice that can be adopted by other EU member states. Therefore, this paper suggests that Austria has effectively implemented the 2019 EU instrument.

From Suffering to Sovereignty: The Dimensions of Euthanasia and Right to Die with Dignity

Provided the complex socio-legal fabric of India, the discourse on Euthanasia and the Right to die with dignity provokes profound ethical, legal, and societal questions. Therefore, a need to meticulously examine the varied dimensions of Euthanasia arises. Beginning with the basic understanding of the concept, a comprehensive analysis shall be made in regard to various philosophies associated of renowned political thinkers and philosophers. Additionally, comparative insights from foreign legal frameworks shall be drawn. The research includes judgments passed by the Indian judiciary regarding the legalization of Euthanasia with a clear debate in its context. The High Court Judgement of Gian Kaur v. The State of Punjab (1996) and Supreme Court judgments of Aruna Shanbaug v. Union of India (2011) and Common Cause v. Union of India (2018) proved to be the turning points in Indian legal history and shaped the stance of Indian judiciary on the legislation of Euthanasia. The breakdown of Law Commission reports (2006 & 2008) also finds their mention. Can the freedom to choose a dignified death—the ultimate act of human autonomy—be recognized by the law in a culture that is highly pro-life? If so, there’s a need to structure and strengthen regulations to adopt this choice.

Urban Farming, Planning and Environmental Jurisprudence in Delhi

This article analyses the manner in which bourgeois environmentalism and aspirational urban planning have brought about a recalibration of justice for agrarian communities along the Yamuna in Delhi. Bela Estate, the research site, is one such agrarian community in the urban segment of the Yamuna. Following a ban on the farming of edible crops in this region, pronounced by India’s apex environmental court in 2015, the Delhi Development Authority has conducted multiple demolition drives for nearly a decade now to evict farmers and clear their land for redevelopment. Utilising archival sources and based on a close reading of planning documents and court judgements, this article contributes to discourses of public interest in the wider context of development and law. More specifically, it decodes the ongoing contentions involving farmers, planning agencies and the judiciary in this region as symptomatic of the larger erosion of social justice in an urbanising, aspirational India that undervalues the role of nature-based livelihoods in Indian cities.

Study Against Corruption Punishment of the Village Owned Enterprise Agency (BUMDes) of Berjo Village in Karanganyar District

By closing the case of the village chief who is involved in the corruption of village funds and the allocation of villages funds who have already been accused are subject to the threat of punishment in accordance with Articles 2 and 3 of the Act No. 31 of 1999 as amended by the Law No. 20 of 2001 on the Suppression of Criminal Prosecution of Corruption. How to Juridic Analysis of High Court Judges' Judgment Semarang No. 13/PID.SUS-TPK/2023/PT Smg against the Elements of Justice and Legal Certainty for Corruption Criminal Offenders BUMDes Berjo. The type of research used by the author is normative jurisprudence or library law research or doctrinal law research that can be interpreted as legal research by studying library and secondary materials. The method of approach used in this normative jurisprudence research is the Case Approach to Legislation. The data source used is Decision No. 13/PID.SUS-TPK/2023/PT Smg, No. 31 of 1999 on Combating Corruption Punishment, as amended and supplemented by the Law of the Republic of Indonesia No. 20 of 2001 on Amendments to the Law No. 31, 1999 of the Republik of Indonesia on Combatting Corruptions Punishments. Data Collection Techniques using Libraries and Documents Studies. Data Analysis Techniques with Qualitative Analysis.SUS-TPK/2023/PT SMG violates Article 2 paragraph (1) jo. Article 18 of the Law of the Republic of Indonesia No. 31 of 1999 on the Elimination of Crimes of Corruption, as amended and supplemented by the Law No. 20 of 2001 on the Amendment to the Law on the Supreme Implementation of the Constitution of the Republik of Indonesia Number 31 of 1999, on the Reduction of Criminal Implications of Coruption. Article 55 (1) paragraph 1 of the Code, with the elements of the following article: "Everyone". The element "Fighting the Law". The item "Committing an act of enriching himself or another person or a corporation". Item "Can harm the finances of the state or the economy of the State". The unit "Who commits, who commits and who accompanies the act". (1) That the judge of the High Court of Semarang ruled the corruption criminal case conducted by the village chief Berjo Suyatno bin Kartorejo was in accordance with the norms in force but in the view of the author still leaves a striking disparity dropped to the accused in corruption cases committed by officials or someone who has power. The prosecution against the accused is too light and has not satisfied the sense of justice in the community in particular for the people of the village Berjo Prefecture of Ngargoyoso district of Karanganyar and does not cause the effect of seizure for the defendants who have used the people's money (the community of the Village Berjo prefecture NgarGoyoso District of Karaganyar) for the personal interests of the Accused.(2) That the amount of the replacement money, although in the appellate judgment of the High Court of Semarang is greater than the judgement of the State Court, the penalty of imprisonment against the defendant as a substitute for the unpaid substitute money, is still too light and tends to be preferred to refrain from paying or refusing to refund the size of the compensation money to be paid by the accused and carrying out the criminal sentence in prison in exchange for the unepaid replacement payment money. Thus, it has been backward with the Government Program in an effort to maximize the reimbursement of the State/Region losses as a result of the corruption crime that has occurred.

International acts as part of the current legislation of Kazakhstan: Influence on the country’s social policy

The topic is relevant in the light of the current globalisation processes, which promote intensive interaction between international and national norms. This creates a need for a systematic study of this problem. The purpose of this study was to analyse the practice of using international acts as part of the current legislation of Kazakhstan and to investigate the role of international acts in the legal system of the country. To fulfil this purpose, the methods of analysing regulations, the method of comparative analysis of judicial practice, as well as the historical legal method, systemic, and statistical analysis were used. It was found that international acts have a prominent place in the system of national legislation of Kazakhstan, contributing to the adaptation of the domestic legal order to the standards of the international community. The types of international instruments and the level of their implementation in national legislation were examined, together with the ratification procedure. A study of statistical data for the last three years was carried out on the use of international instruments by the courts. According to the results of statistical analysis, it was found that the court of first instance in both civil and criminal cases is the enforcer of international norms, while the courts of appeal and cassation used international treaties in their decisions in isolated cases. A tendency was noted for a steady decline in the use of international treaties in court judgements starting from 2020 to 2022. The analysis of judicial practice showed a restrained use of international acts in court judgements. Such use can be of various kinds, such as purely formal references and the intended use of the norms that justified a particular decision. It was concluded that even the formal use of a norm of an international act in the reasoning part of a judgement is a positive practice of human rights promotion. This study can be used to further improve the mechanisms of incorporation, implementation, and application of international acts in the legislation of Kazakhstan, as well as a more profound understanding of their impact on law enforcement in the context of global changes

Supervising Veterinarians as Boundary-Spanning Agents

Boundary-spanning agency is important for weaving together different ways of doing and knowing. This article examines boundary-spanning agency in the context of courtroom contestation of veterinary expertise. Analysing Finnish supreme administrative court judgments, we highlight how knowledge claims about animal welfare and about the process of supervisory inspections are deployed and contested by both veterinarians and animal owners in a bid to set down an authoritative interpretation about empirical actuality at the inspected sites. A central finding is that veterinarians, contrary to the implications of earlier studies, are in a potent position in their supervising role. Given the lack of intermediary soft law mechanisms such as inspection guidelines, the interpretative space left between animal protection law and veterinarians’ inferences about the conditions at the inspected site leaves veterinarians with a wide mandate to make decisions about ending livelihoods and euthanising the inspected animals.

Judicialization of Global Climate Governance: In Defence of the Paris Agreement

Abstract This article questions the effect that the delegation of global climate governance to the international judiciary may have on climate action. It argues that the underlying premise of the judicialization movement—namely, the existence of a broad international consensus as to the objectives of global climate change risk management—is contradicted by evidence, such as political declarations by governments, countries’ nationally determined contributions, and domestic court judgments. Governments brought to court resist propositions that domestic or international legal norms subject them to quantitative emission reduction obligations that can be “objectively” determined on the basis of best available science, and national judiciaries make conflicting findings on the implications of science for climate policy. In this context, renouncement of the “bottom-up” Paris model which was designed specifically to address the complex landscape of diverse interests and risk perceptions across world regions and societies may have a chilling, rather than galvanizing, effect on climate action.

Studying Religion Critically in Universities and Schools

In this article, Wanda Alberts tries to identify the place of the critical Study of Religion in universities and schools, comparing examples for different recent developments in Germany and Britain. One decisive issue in this respect is the question if the critical Study of Religion as a discipline or as (critical) education about Religion is visible at all and if the differences to other, often much better known (often religious) approaches are acknowledged or played down. The discussed examples (a judgement of the German Federal Constitutional Court on the religious limitation of the academic freedom of professors of theology, the BA report on Theology and Religious Studies Provision in UK Higher Education and the report of the Commission on Religious Education) high light some subtleties of a complex field where important facts and distinctions remain concealed to non-specialists. With respect to RE, the article argues that these dynamics fit the concept of “smalli-indoctrination”. Referring to Katharina Frank’s empirical research on the communication of knowledge about religion (Religionskunde) it spells out the important distinctions that need to be made explicit in order to make the characteristics of a critical (secular) approach better known. “If you don’t know the difference between theology and religious studies, then you are a theologian.” (Brian Bocking)

The Problem of Independence and Impartiality of the Arbitration Committee of the Turkish Football Federation in the Context of the Judgments of the European Court of Human Rights

Nowadays, a significant part of sports law disputes are resolved by sports resolution authorities acting through alternative dispute resolution methods such as arbitration and mediation. Pursuant to Article 59 (3) of the Constitution, “The decisions of sports federations relating to sports administration and disciplinary sanctions may only be challenged through compulsory arbitration. The decisions of the Arbitration Committee are final and shall not be appealed to any judicial authority.” The functioning of the Arbitration Committee of the Turkish Football Federation (the Arbitration Committee), which carries out its duties in line with the aforementioned provision of the Constitution, has been recently extensively analysed by the European Court of Human Rights (ECtHR). In Ali Rıza and Others v. Turkey case the ECtHR held that the Arbitration Committee was not independent and impartial. With this decision, the Turkish football arbitration proceedings started to be discussed in terms of the right to a fair trial. The purpose of this study is to analyse the Turkish Football Federation arbitration proceedings in line with the ECtHR judgments in terms of the right to a fair trial. Within the scope of the study, the steps taken by the State and the TFF to overcome the independence and impartiality of the Arbitration Committee have been discussed and solution suggestions are tried to be produced.

‘A home to dream love into’ – An autoethnographic analysis of mothering with mental illness

This paper examines the links between mothers, mental illness, estrangement from children, and systemic power and control, through a critically creative autoethnographic methodology. A historical and contemporary discursive analysis of two kinds of documentation is made. Firstly, my great-grandmother’s psychiatric hospital records from almost one hundred years ago are analysed, incorporating parts of my own story, as well as the personal account of a family member. These are then contrasted against four Family Court Judgement, where mothers have been found to be incapable of caring for their children. ‘Found poetry’ is then created from the documents presented, to elucidate the argument that a century since my great-grandmother’s forced separation from her children, women with mental illness still face stigma, marginalisation, and hopelessness in the face of outdated, narrow constructions of mothering. Implications for those who work in forensic social work fields are noted in terms of addressing systemic abuses of power against mothers.

MEDIASI YUDISIAL KE DALAM SISTEM PERADILAN PERDATA DI INDONESIA

Judicial mediation is an alternative method of dispute resolution that has been growing rapidly lately. Judicial mediation assigning judges as mediators has many advantages. The success of this mediation is expected to ease the task of the judge because with this mediation it means that the parties to the dispute have contributed to the implementation of the principle of fast, simple and low-cost justice. As for the background of the problem, how effective is the judicial mediation itself in the civil justice system and what are the obstacles during judicial mediation in civil courts. The purpose of writing this thesis is to find out the effectiveness of Judicial Mediation and the obstacles that occur in Civil Courts. 1 of 2002 concerning the Empowerment of Courts of First Instance to Implement Peaceful Institutions. Supreme Court Regulation (PERMA) Number 2 of 2003 concerning Mediation Procedures in Courts. PERMA Number 1 of 2008 concerning Mediation Procedures in Courts. PERMA Number 1 of 2016 concerning mediation procedures in court. The results of the study concluded that the effectiveness of the implementation of Judicial Mediation in Civil Courts is ineffective because of the small peace agreement in the implementation of mediation. This can be seen from the obstacles in reaching a peace agreement in the Judicial Mediation process in Civil Courts which are still low due to the fact that first the parties do not have good faith in mediation, the two mediator judges in court are still few, third the number of impartial advocates or lawyers to reconcile .