Court Judges Research Articles

Success of the strategic litigation for the protection of reproductive rights, triumph of constitutionalism or 'escape into formalism'? Commentary on the judgment of the European Court of Human Rights of 14 December 2023, no. 27617/04 in M.L. v. Poland.

In the judgment of 14th December 2023 the ECHR declared unlawful the interference in the applicant's private life due to the tightening of the abortion law as an outcome of the verdict of an improperly appointed constitutional court. It is the first result of the wave of complaints that the Court received after the so-called embryopathological premise for abortion was repealed by the TK. The powerful positive impact it could potentially have on the situation of Polish women should not be underestimated. On one hand, it opens the way for the direct victims of the 22 October 2020 ruling to pursue financial claims in Strasbourg. In addition, it obliges courts to refuse to take into account faulty judgments of the Constitutional Tribunal when adjudicating. Finally, the resulting obligation to implement the ECtHR judgment may provide an incentive for statutory liberalisation of the Polish abortion law. However, when justifying its decision on the violation of Article 8 ECHR, the panel focused on matters far from the essence of the question of reproductive rights. In this regard, it is natural to feel dissatisfied by the fact that after years of silence, the Court did not take the opportunity to update its position on the margin of appreciation of Member States regarding the way in which abortion is legally regulated. The strong focus on constitutional law issues, nevertheless, means that the M.L. judgment, rather than in the context of the ECtHR's decisions on abortion, should be seen as a continuation of a line of jurisprudence focused on the consequences of defects in the process of judicial appointments. Disappointing – albeit for other reasons – is also the Court's dismissal of a complaint by Ms. M.L. to the extent that she alleged a violation of the prohibition of torture and inhuman or degrading treatment by Poland. The ruling on this subject was, indeed, not preceded by a detailed analysis of the circumstances of the case, which would have made it possible to determine whether the "minimum level of severity" had been achieved, and therefore cannot be considered truly justified.

Ethical aspects of the right to privacy in the 21st century: European consensus in the interpretation of the European Court of Human Rights

In the present article, we aim to elucidate concepts that do not directly stem from the content of legal sciences but have a strong impact on how the authors of the act of justice assess phenomena in 21st-century society. The relevance of the theme and the arguments presented in the article largely stem from the content of the judgments of the European Court of Human Rights after 2000. We have repeatedly found that it is precisely this regional jurisdictional body’s task to conceptualize and develop general principles of law in the field of fundamental rights and freedoms. In this context, the interpretations of the Court in Strasbourg invoking ethical aspects, in our view, are particularly interesting, when cases involving allegations by the claimants regarding violations of the right to privacy come before it, under Article 8 of the Convention for the Protect

A Study on Whether Borrowing Other's Name for Equity Is Subject to Inheritance Tax: Comment on the Supreme Administrative Court Judgment No. 349 in 2020

A Study on Whether Borrowing Other's Name for Equity Is Subject to Inheritance Tax: Comment on the Supreme Administrative Court Judgment No. 349 in 2020

Analyzing Appraisal Resources in the Judgment Discourse of Ulysses Copyright Infringement Case

In this economic society, intellectual property protection play an important role in maintaining the national economic order and promoting social development. The infringement of intellectual property will bring great harm to the public and national interests. This study aims to analyze the appraisal resources in the court judgment of Ulysses copyright infringement case, especially from the perspective of attitude and engagement system. By adopting a descriptive and exploratory approach, the study investigates how attitude and engagement resources serve the declaratory and justificatory functions of court judgments. It is found that appreciation and judgement in attitude system are widely used in this court judgment, while affect is seldom applied for it deals with people’s personal feelings. For engagement, disclaim and entertain resources are applied from time to time in processing the judge’s objective fact analysis. It also shows that the court can effectively arrive at judgments with justice when the court professionals have better knowledge and make proper use of the appraisal resources. It is hoped that this study can arouse the awareness of legal professionals to maintain their law-based role of justice in copyright cases by the proper application of appraisal resources in their distinctive language.

Analisis Pengambilan Keputusan Rasionalitas Pada Kebijakan Presiden Dibawah Umur 40 Tahun Yang diTetapkan Oleh Mahkamah Konstitusi (MK)

A thorough examination of the temporal dynamics of politics is undertaken in this study. Just days before the last deadline for presidential and vice presidential candidates to register, the public was stunned by the contentious judgement of the Constitutional Court (MK). This research seeks to utilise a rational decision-making framework to understand the rationale behind the Constitutional Court's (MK) ruling on the eligibility of presidential and vice presidential candidates under the age of 40, as outlined in article 90/PUU-XXI/2023. This ruling is a continuation of the previous article, specifically Article 169 letter q of Law Number 7 of 2017 concerning Elections, which established this age limit. In addition to original data collected from applicable statutes, journals, and other sources, this study employs a literature review methodology. this study delves into the relationship between the determination process and article 90/PUU-XXI/2023. The participants in this research demonstrated a comprehension of rational choice principles and the process of choosing presidential and vice presidential candidates, according to the findings. As well as showing that the decisions decided are subjective and irrational because they focus on actors because actors are considered as humans with goals, which means they perform certain actions and goals to achieve their goals.

Должник в гражданском и арбитражном процессе

According to the current legislation, there is no defined status for a person against whom a court decision has been made, but no enforcement proceedings have been initiated. After a court decision is made, the status of the defendant ends with the conclusion of procedural relations. However, the material and legal relations, which are confirmed by the court decision, continue to exist. Even though the current legislation does not explicitly state the legal obligation of the debtor to fulfill a court decision that has entered into force or requires immediate execution, the author believes that due to the binding nature of court judgments, the obligation to execute a court decision rests on the debtor, regardless of whether the creditor has taken enforcement actions. Based on the results of the conducted research, the author concludes that a person against whom a court decision has been made, but no enforcement proceedings have been initiated, has the status of a debtor.

The Relevance of Shari’ah to Curbing Insecurity in the North-Central Nigeria

The research is designed to establish the relevance of Shari’ah in curbing insecurity in the North-Central Nigeria with particular reference to Niger, Nasarawa and Plateau States. The study employed descriptive survey, various respondents comprising Islamic Religious Organizations, Muslim Law-enforcement agents, Shari’ah Court Judges and the Muslim society in the North-Central Zone. Proportional sample technique was used to select five hundred and forty (540) for the study, while a total of fifty respondents from neighboring states of Niger for the purpose of pilot study. A reliability coefficient of 0.089 was obtained for all the forty-five (45) items in the instrument. The study found that there has been lack of commensurate disciplinary actions to crimes. The study also found that there is no proper knowledge and guidance of Islam. Added to these findings is that the entire life system of people is not guided by Shariah provisions. Based on this research, the researcher recommended among others that Shari’ah provisions should be well taught and understood with a view to curbing insecurity menace in the affected states. Proper knowledge and guidance of Islam should be adhered to and imparted to people in the society with a view to curbing insecurity acts. Government in collaboration with stakeholders (community leaders, youth leaders and other leaders of Community based Organizations) should come up with lasting solutions to insecurity in their affected states and / or communities. Government should deploy security agents to insecurity vulnerable areas with a view to dislodging the banditry attacks.

Chinese Constitutonal Performance Unveiled: Text Mining Insights in Civil Litigations

Abstract This article presents a comprehensive examination of the role of constitutions in private disputes, with a specific focus on the Chinese Constitution. Utilizing an extensive dataset of digitized court adjudications, this study delves into a relatively unexplored area, yielding crucial factual and legal insights. The research reveals that the Chinese Constitution significantly influences civil adjudications, both implicitly and explicitly. Furthermore, court judgments emerge as pivotal forces shaping public awareness of constitutional principles. These findings hold profound implications for comprehending the role of constitutions in contexts beyond democratic frameworks, particularly within the private sphere. The study underscores how the capitalist market in China empowers individuals to assert and safeguard private rights, consequently affording the Constitution a protective role in this realm. Concurrently, the existing regime has systematically eroded the Constitution’s influence in public affairs, maintaining its symbolic and rhetorical role. Notably, the concept of judicial independence remains a sensitive subject in China, leading many civil courts to eschew constitutional provisions in favor of political expediency. This paradox underscores the necessity of establishing a reasonably independent judiciary as an integral facet of constitutionalism in such settings. In sum, this research challenges prevailing assumptions about constitutionalism’s contours. It transcends the conventional focus on political authority, illustrating how empirical investigations into constitutional performance within civil litigation can illuminate the emergence of constitutionalism in the shadows of non-democratic systems. These findings offer valuable insights into the role of constitutions in private disputes and pave the way for further exploration within this evolving scholarly domain. Ultimately, this study advances our comprehension of constitutional realities and their far-reaching impacts on the legal landscape and society within contemporary China.

THE LEGAL DILEMMA OF MANAGING AND REGULATING PRIVATE CONSUMPTION OF CANNABIS IN RELATION TO THE WORKPLACE

In South Africa, consumption of cannabis was a criminal offence in past decades. However, in September 2018, the Constitutional Court judgment in the Prince case decriminalised the private consumption of cannabis. Although the judgment was welcomed by many South Africans, including employees, its interpretation and implementation has been marred by legal ambiguity. The Constitutional Court did not prescribe how employers should manage and regulate the private consumption of cannabis in relation to the workplace. In order to maintain workplace safety, a majority of employers have adopted and enforced a zero-tolerance policy on alcohol, drugs and substance abuse. A majority of employers have relied on urinalysis testing to detect cannabis in the workplace. Some employees, after testing positive for cannabis, have been dismissed for contravening their employer’s zero-tolerance policy, without conclusive evidence of impairment. This thorny issue is explored in this article. First, it seeks to examine whether merely testing positive for cannabis is sufficient to prove intoxication that may result in an employee’s impairment. Secondly, the question is whether urinalysis testing precisely determines whether an employee cannot function and perform their duties normally.

Perbandingan Bentuk Kelembagaan Program Penjaminan Polis Asuransi Antara Indonesia dengan United Kingdom dan Jepang

Insurance company defaults in Indonesia have a negative impact on policyholders. Suing the company for bankruptcy is the last resort for policyholders to obtain compensation from the company's assets, but the enforcement of court judgements is difficult due to obstacles such as abuse of receivership powers. Policyholders' rights are often violated as they do not receive insurance claim payments. Law No. 40 of 2014 requires insurance companies to participate in the Policy Guarantee Programme and establish a Policy Guarantee Agency within two years. However, such an institution has not yet been established in Indonesia. This research compares the Policy Guarantee Programmes in the UK and Japan to show the importance of establishing a similar institution to protect the rights of policyholders. This research uses normative research with a comparative approach and legislation. By studying the sustainability of the Financial Services Compensation Scheme in the UK and the Life Insurance Policyholders Protection Corporation in Japan, the research recommends that the Indonesian government promptly establishes a Policy Guarantee Corporation, either as an independent institution or in conjunction with the existing Deposit Insurance Corporation for the banking sector.

The Failure of the South African Family Law System in Custody Battles: A Father's Perspective

ABSTRACT This article examines the experiences of four non-resident fathers in child custody battles in South Africa. These fathers have been in constant legal battles and have concluded that the South African family law system has failed them. The system, according to these fathers, refers to the various laws related to the maintenance court system and the children’s court, as well as the people who implement them, including social workers from the Department of Social Development, court-appointed psychologists, and family lawyers, and all the other organisations tasked with ensuring that the best interests of a child in custody cases are upheld. The interviewed participants maintained this view based on what they perceived as the barriers that the system places before fathers. Participants in this study also believed that in child custody cases, the courts tend to be biased against men, and they lament the slow manner in which the children’s court handles and resolves child custody cases. The narratives of the four participants presented in this article shed light on an important aspect of parental relations in South Africa. The study recommends a coordinated effort by the government, the South African court system and organisations advocating for fathers’ rights to encourage the involvement of non-resident fathers, and commends the recent court judgements in favour of fathers in parental alienation cases. The article emphasises that the systems should promote positive and active father involvement with their children with the same vehemence as financial provision by fathers for mothers and their children.

Partition by Court Decision Could Terminate Separate-Management Contract: Supreme Court's Judgment No. 879 in 107

Partition by Court Decision Could Terminate Separate-Management Contract: Supreme Court's Judgment No. 879 in 107

IMPROVING AN EXISTING OR ERECTING A NEW OR ADDITIONAL STRUCTURE BY ESTA OCCUPIERS: AN ANALYSIS OF Daniels v Scribante 2017 (4) SA 341 (CC), Erasmus v Mtenje [2018] ZALCC 12, and De Jager v Mazibuko [2020] ZALCC 7

The conduct of occupiers (i.e., occupiers in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA)) was central in three court judgments in recent years. The first judgment in the matter of Daniels v Scribante (2017 (4) SA 341 (CC)) is widely regarded as a progressive and transformative judgment, and as having opened the door for ESTA occupiers to improve their dwellings. In Daniels v Scribante, the Constitutional Court considered whether an ESTA occupier has a right to make improvements to a dwelling to make it habitable. The court found that ESTA affords an occupier the right to make improvements to their dwelling without the consent of the owner. However, the court pointed out that meaningful engagement between an owner or person in charge and an ESTA occupier was still necessary, because the exercise of an occupier’s right to make improvements could potentially encroach on an owner’s right to property. Since the judgment in Daniels was delivered, some ESTA occupiers, without prior consent or engaging meaningfully with the owner or person in charge, have improved or erected new structures – both inside and outside the demarcated parcel of land where they reside.Despite the ESTA occupiers’ need to improve or erect new structures, Daniels is context-sensitive and is therefore not blanket authority to engage in building operations anywhere on private farmland without prior, meaningful engagement with the owner or person in charge. Furthermore, reliance on Daniels v Scribante must be clearly justified. It is in this context that the case note emphasises that, where the current dwellings of ESTA occupiers are not suitable for human habitation and it is necessary to improve them or erect new buildings, the improvement must be done after proper meaningful engagement between the ESTA occupier and the owner or person in charge in accordance with the general guidelines set out in Daniels v Scribante. This is because the principles established in Daniels v Scribante set the scene for the much-needed balancing of rights between ESTA occupiers and owners, by alluding to the fact that ESTA occupiers are obliged to engage meaningfully with owners or persons in charge prior to embarking on improving or building new structures.The first part of this case note sets out and analyses case law that has dealt with improving or building new structures. The next part explores the competing rights and interests of ESTA occupiers and owners in relation to improving or erecting new structures. The third and final part of the contribution highlights and emphasises the importance of meaningful engagement before an ESTA occupier improves or erects a new dwelling on property belonging to another.

Extending the application of detention in the light of the latest judgments of the European Court of Human Rights

The subject of this article is an analysis of the judgments of the European Court of Human Rights issued in 2022 and 2023 as a result of complaints filed against Poland, in order to describe the latest literature and verify whether we are still dealing with violations of the European Convention on Human Rights in connection with the extension of detention. First of all, based on the literature on the subject, the author described the grounds for applying detention in the Polish Code of Criminal Procedure. Then, the following cases were analyzed using the case study method: Marciniak v. Poland, Czeszel v. Poland, Rudnicki v. Poland, Łakatosz v. Poland. The work culminates in the author's conclusions.

영유아 장애아동을 대상으로 한 보육교사 행위의 신체적 학대 성립 여부에 관한 판례연구

The purpose of this study was to examine the judgment criteria used in the legal system for physical abuse by childcare teachers for infants and toddlers with disabilities by analyzing the relevant precedents; this is also expected to contribute to the ongoing discussions regarding this topic. The research method analyzes the judgment criteria using a qualitative research method, ➀ the important legal applications of the judgment, and it also ➁ selects two cases in which the behavior of childcare teachers around infants and toddlers with disabilities was established as physical abuse and finally examines the effect of the presence of direct tangible force on the court judgment of physical abuse. As a result, it was confirmed that criteria that are at the discretion of the judge are applied to the judgment of innocence even if there is a direct exercise of tangible power. It was also confirmed that the discretion of the judge plays an important role in determining the final inclusion of judgment criteria that take into account various situations that can be considered as physical abuse harming the health and development of the body, even without a direct exercise of tangible power. On the other hand, the judge's discretionary judgment showed that the characteristics of the disability were applied as a major factor. The results of this research present implications that can contribute to ongoing discussions about the judicial, legislative, and administrative aspects of this type of physical abuse.

Problems of abuse of law when applying to the European Court of Human Rights

The article focuses on the fact that abuse of law is not only an urgent problem of modern legal science, but also one of the most complex and important issues to be addressed. This phenomenon is becoming aggressive and global, negatively affecting the processes of democratisation and consolidation of statehood. The prevalence of cases of abuse of law can slow down the development of society, violating the acquired norms and values. It is important to understand that achieving stability in social relations and their further development is impossible without taking into account the specifics of this legal phenomenon. Abuse of law not only violates the basic principles of law, but also poses a significant threat to the development of the rule of law and the determination of its future course.
 The particularities of the use of the term “abuse” in international law are determined. It is noted that the European Court of Human Rights considers that this concept should be understood in its ordinary meaning, namely, as the fact of exercise of a right by a subject of law outside its intended purpose in a manner which causes prejudicial damage. The author identifies the approaches to understanding the abuse of law which are used by the European Court of Human Rights in its work.
 It is noted that in addition to the Convention for the Protection of Human Rights and Fundamental Freedoms, the provisions defining the basis for preventing abuse of law at the international (supranational) level are also contained in the International Covenant on Civil and Political Rights, the American Convention on Human Rights and the Charter of Fundamental Rights of the European Union.
 The author examines a number of judgments of the European Court of Human Rights in which cases of abuse of law occurred. The author defines the role of the state in cases of abuse of law. The main features inherent in the abuse of law are outlined. Attention is paid to the fact that in addition to the positive components of preventing abuse of law, this activity also has negative consequences.
 The importance of preventing abuse of law is emphasised, subject to the obligatory observance of the principles of fairness, transparency and consideration of individual rights and freedoms of subjects. Ensuring a balance between the protection of rights and prevention of their abuse is an important task for the effective work of the European Court of Human Rights.

The European Citizens’ Initiative “One of us”. A Gloss to the Judgment of the CJEU of 19 December 2019 in Case C-418/18 P. Puppinck and Others v. Commission

In December 2019, the Court of Justice issued a judgment in Case C-418/18 P. Puppinck and Others v. European Commission, ending a long-standing dispute between the organizers of the European Citizens’ Initiative “One of Us” and the EuropeanCommission. Ruling in the appeal proceedings, the CJEU dismissed in its entirety the application to set aside the judgment of the General Court of the European Union of 23 April 2018 in case T 561/14 One of Us and Others v. Commission. The “One of Us” organizing committee requested the repeal of the European Commission’s communication following the public initiative on the grounds that it lacked follow-up. The aim of the “One of Us” initiative was to strengthen the protection of dignity, the right to life and the integrity of every human being from conception in the EU’s areas of competence. The initiative proposed amendments to three legislative acts on research, humanitarian cooperation and their funding. The judgment under discussion is important for the interpretation of EU law in two areas. First, this is the first judgment that interprets the systemic position of the European Citizens’ Initiative in such a comprehensive manner. The case confirms that the ECI is an autonomous institution of EU law, whose systemic position is shaped by the principle of institutional balance and participatory democracy. The ECI is a form of emanation of deliberative democracy. Second, the judgment may be considered as confirming the exclusive competence of the Member States in the area of protecting human life at the prenatal stage. On the one hand, this means that EU law cannot impose its own standards on the right to life on Member States. On the other hand, in the area of its competences, it seems that the EU can have its own ethical position, allowing, while respecting the triple lock system, research involving the use of human embryonic stem cells and financing abortions as part of the package of medical assistance offered to the developing countries.

PENERAPAN SANKSI PIDANA TERHADAP ANAK SEBAGAI PERANTARA JUAL BELI NARKOTIKA BERDASARKAN UU NO 35 TAHUN 2009 (STUDI PUTUSAN 05/PID.SUS-ANAK/2015)

ABSTRACT
 The methodology approach used in this study is normative legal analysis. Legal provisions for safeguarding children's rights throughout the judicial proceedings are applied from the investigative stage, inquiry, prosecution, court examination, to the execution of court judgments. Throughout the legal process, the protection of children's rights must adhere to the relevant legal regulations and, consequently, should be consistently executed by the parties participating in addressing juvenile delinquency issues, as stipulated in Law No. 11 of 2012 concerning the Juvenile Criminal Justice System.

Non-execution of Strasbourg Judgments against Russia: the Case for a Trust Fund

Abstract After being expelled from the Council of Europe, Russia passed a law on not complying with any judgment of the European Court of Human Rights that entered into force after 15 March 2022. In these circumstances, new approaches are required to safeguard the authority of the Court. This study considers the possible ways out of the deadlock. Firstly, it critically examines the Committee of Minister’ strategy on implementing Russian judgments, which is limited to registering outstanding obligations of the Russian Government under the Court’s judgments. Secondly, the frozen property in Europe is yet to be confiscated, nor it is clear whether it will be. This study proposes that, under the aegis and within a legal framework of an existing international organization, a trust fund be established which may receive voluntary contributions from States and individuals. It will be better placed to do so than multiple indigent individuals scattered across the globe. If and when Russia applies to return to the Council of Europe it may be required to reimburse, with all accrued interest, the amounts spent by such a trust fund.

Is Nigeria Ready to Combat Environmental Problems? A Peep through Judicial Decisions of Nigerian Courts

Nigeria, similar to numerous other nations across the globe, grapples with a multitude of environmental difficulties. The imperative of safeguarding the environment is considered inviolable, and any responsible nation must accord it utmost importance. The recognition and correlation between the right to address environmental issues and the rights to life and human dignity, as stated in the 1999 Constitution of Nigeria, have been established by authoritative entities inside the country. In Nigeria, there exist a limited number of established authorities responsible for environmental preservation. The main objective of this study is to assess the progress made by Nigeria in the realm of environmental preservation, while also evaluating the extent to which the Nigerian government and other pertinent actors in the environmental sector adhere to court directives pertaining to environmental protection. When a court of appropriate jurisdiction issues a judgement in a specific case, it is expected that the judgement will be promptly adhered to in order to uphold the principles of the legal system. Failure to comply with court judgements poses a significant issue that requires rapid attention. This study investigates the aforementioned element in the context of evaluations pertaining to environmental conservation. In order for Nigeria to align with international standards pertaining to environmental conservation, it is imperative to adhere to the principles of the rule of law and ensure compliance with court rulings.