Court Judges Research Articles

Assisted suicide and the discrimination argument: Can people with mental illness fulfill beneficence- and autonomy-based eligibility criteria?

According to the "discrimination argument," it would be discriminatory and hence impermissible to categorically exclude people with mental illness (PMI) from access to assisted suicide (AS) if AS is accessible to people with somatic illnesses. In objection to this, it could be argued that excluding PMI is not discriminatory, but rather based on their inability to meet certain eligibility criteria for AS. Which criteria are deemed necessary depends on the approach taken to justifying AS. In thisarticle, we describe two distinct ethical approaches to justifying AS and the eligibility criteria they entail and examine whether PMI can fulfill these criteria. A widespread "joint" approach based on beneficence and autonomy assumes that AS is justified when it alleviates the severe and irremediable suffering of a person who autonomously requests AS. An alternative, exclusively autonomy-based approach assumes that providing AS is justified when a person's request is autonomous, regardless of whether AS is in her best interests. The latter approach underlies an important judgment of the German Federal Constitutional Court from 2020. We argue that PMI can in principle fulfill both beneficence- and autonomy-based eligibility criteria for AS, and that a blanket exclusion of all PMI from AS is thus discriminatory on either approach. However, depending on which approach is taken, there are differences regarding the subgroups of PMI that would be eligible for AS. Whether the exclusion of specific PMI is discriminatory therefore depends on how we understand and justify AS.

No Country for Old Women: A Critique of Grobler v Phillips 2023 1 SA 321 (CC)

Land and land rights remain a contested issue in South Africa. Grobler v Phillips centered on the eviction of an 86-year-old woman, Mrs Phillips, and her disabled son from property she had lived on since she was 11 years old. After a fourteen-year court battle the Constitutional Court granted an eviction order against Mrs Phillips. This case note consists of a discussion of the judgments of the Magistrate's Court, High Court, Supreme Court of Appeal and Constitutional Court. It is found that the Constitutional Court erred in its decision as it applied a formalistic approach, disregarded the narrative of the occupier and did not sufficiently challenge the current neo-liberal regime in which property rights operate.

Recognition of a Danish Monetary Penalty in Employment Matters and Public Policy

Abstract The contribution is focused on a recent decision of the Italian Supreme Court, in which it was held that a Danish judgment imposing a monetary sanction (bod) on an employer for the failure to perform its obligations under a collective employment contract can be recognized in Italy under Regulation (EU) No. 1215/2012 (applicable to Denmark via the 2005 EU-Denmark Agreement). The request to refuse recognition had been raised on the assumption that the Danish measure amounted to a condemnation to punitive damages and was thus incompatible with public policy. The Corte di Cassazione came to the opposite conclusion, but the solution reached may cause a mixed reaction. It is regrettable that, notwithstanding the applicability of Regulation (EU) No. 1215/2012, the Italian Supreme Court simply relied on the principles developed in its previous judgment No. 16601/2017 (concerning a judgment of a non-EU court) and did not deem it necessary to request a preliminary ruling from the European Court of Justice (“cjeu”) on the interpretation of the relevant provisions of the mentioned Regulation. In a different vein, it is to be welcomed that the nature of the foreign measure was assessed in accordance with the so-called Engel criteria, developed by the European Court of Human Rights. However, the analysis conducted in the instant case by the Italian Supreme Court, which appeared to overlook some characteristics of the Danish bod, is not completely convincing.

Upholding Maritime Migrants’ Rights at the Borders of Europe – J.A. and Others v. Italy

Abstract Countless people have left the African continent seeking to reach European shores via the central Mediterranean Sea route, despite persistent efforts by Italian and EU authorities to counter migratory activities. International and regional human rights judicial bodies have provided some responses to the abuses faced by maritime migrants both at sea and on land throughout the years. In this case note, I analyze the judgment of the European Court of Human Rights in J.A. and Others v. Italy concerning the detention of maritime migrants in the Lampedusa hotspot center. To this end, I first illustrate the facts of the case. Second, I assess each claim made by the applicants in relation to the human rights abuses they suffered: inhuman and degrading treatment, arbitrary detention, and collective expulsion of aliens. I conclude that the judgment constitutes an important development in the Court’s case law upholding maritime migrants’ rights, albeit characterized by a few shortcomings. I also argue that the Court’s position as a human rights judicial body needs to be further strengthened in the future.

Regulatory enforcement of the marketing of fixed-dose combinations in India: a case study of systemic antibiotics

BackgroundIn India, states have licensed the manufacture of large numbers of fixed-dose combination (FDC) drugs without the required prior approval of the central regulator. This paper describes two major regulatory initiatives to address the problem, which began in 2007 and 2013, and examines whether they have been sufficient to remove centrally unapproved systemic antibiotic FDCs from the market.MethodsInformation was extracted from documents published by the central regulator and the ministry of health, including the National List of Essential Medicines (NLEM), and court judgments, and analysed alongside sales volume data for 2008–2020 using PharmaTrac market dataset.ResultsThe regulatory initiatives permitted 68 formulations to be given de facto approvals (‘No Objection Certificates’) outside the statutory regime, banned 46 FDCs and restricted one FDC. Market data show that FDCs as a proportion of total antibiotic sales increased from 32.9 in 2008 to 37.3% in 2020. The total number of antibiotic FDC formulations on the market fell from 574 (2008) to 395 (2020). Formulations with a record of prior central approval increased from 86 (2008) to 94 (2020) and their share of the antibiotic FDC sales increased from 32.0 to 55.3%. In 2020, an additional 23 formulations had been permitted de facto approval, accounting for 10.6% of the antibiotic FDC sales. Even in 2020, most marketed formulations (70.4%, 278/395) were unapproved or banned, and comprised a 15.9% share of the antibiotic FDC sales. The share of NLEM-listed antibiotic FDC sales increased from 21.2 (2008) to 26.7% (2020).ConclusionThe initiatives had limited impact. Regulatory enforcement has been slow and weak, with many unapproved, and even banned, FDCs remaining on the market.

Ensuring the human right to an adequate standard of living: accents of modern legal regulation, practice of the Сonstitutional court of Ukraine and prospects for its improvement

The article is devoted to the research of the essence of the human right to an adequate standard of living, problematic issues, and prospects for improvement of its ensuring in Ukraine. Some doctrinal sources, provisions of international legal acts, constitutional legislation of Ukraine and foreign countries, and judgments of the Constitutional Court of Ukraine are analyzed. The research is based on systematic, comparative-legal, formal-logical, formal-legal, statistical, and prognostic methods, methods of analysis and synthesis, etc. Found that the human right to an adequate standard of living is a constitutional, basic, social right of every physical person, which is guaranteed by Article 48 of the Constitution of Ukraine, as well as international universal, and regional standards and relevant acts regulating basic human rights and freedoms. This right includes the possibility to satisfy not only basic physiological (material) needs – adequate food, clothing, household, housing, etc., but also spiritual ones – education, faith, self-realization, etc. The criteria of a decent life, the components of the human right to an adequate standard of living, the institutional basis of implementation, and the system of guarantees of its ensuring are allocated. Therefore, the human right to an adequate standard of living is correlated with other rights - to life, health care, medical aid, medical insurance, and housing. The analysis of the practice of the Constitutional Court of Ukraine, in particular, decisions in cases about social guarantees of citizens, the minimum wage (tariff rate), discrimination in the implementation of the right to housing, about guaranteed pension provision, which is the main source of existence, not lower than the living wage, allowed us to pay attention on actual aspects of the components of the researched law, its effectiveness, constitutionality and legislative modernization. Emphasizing the current state of ensuring the studied right, the authors argued the need to improve the financial well-being of the population by increasing the living wage and the minimum wage in Ukraine, overcoming poverty, especially among the elderly. In particular, the need for systematic and effective implementation of the state anti-corruption and tax, humanitarian policy was emphasized. The success of such measures in order to increase the social protection of citizens, and the transformation of all spheres of life are key requirements for Ukraine's accession to the EU, which leads to an urgent process of amending and alterations to the laws and by-laws of Ukraine, improving law enforcement practice, increasing legal culture and consciousness, responsibility. It is useful to take into account the successful experience of foreign states (in particular, Germany, Switzerland, Belgium, etc.), strategies, and results of reforms in this area. Key words: human rights, right to an adequate standard of living, international standards, decent standard of living, social protection, practice of the Constitutional Court of Ukraine, constitutional guarantees.

The 2022 Italian Constitutional Court Judgment on Children’s Surnames: An International Human Rights Law Perspective

Abstract After many years of uncertainty regarding Italian legislation on the attribution of surnames to children, in 2022 the Constitutional Court finally broke the delay and identifid both the general rule governing this issue and its possible exceptions. Unlike in the past, with Judgment No. 131/2022 the Court no longer adopted an attitude of self-restraint by referring to the legislature, but demonstrated judicial activism by “reforming” the entire discipline. The Court has eliminated the last remnants of the automatism of the paternal surname, establishing the double surname as a general rule, that is, the succession of the parents’ surnames, and the surname of only one parent as an exception. This contribution develops around three interrelated topics: the first is a reconstruction of the long jurisprudential path that preceded Judgment No. 131/2022, the second is an analysis of the innovations that this judgment brought about, and the third explains how this evolution was largely determined by a progressive adaptation of the solutions taken by the Constitutional Court to the jurisprudence of the European Court of Human Rights. Among the yardsticks of constitutional legality relied on by the Court, no reference was made to the Convention on the Elimination of All Forms of Discrimination against Women, which is the only international treaty that provides for a specific obligation concerning the choice of children’s surnames, one intended to ensure equal rights for fathers and mothers.

Building Trust and Honouring Agreements in the Supply of Protected Wildlife Products

Abstract This paper draws on interview data and published court judgment reports to reveal first-hand accounts of illegal transactions involving protected wildlife and how criminals collaborate with one another. This research finds that wildlife supply is controlled by a small number of key suppliers. Further, trust is embedded in the criminals’ relationship based on kinship and friendship ties, while individuals’ ethnicity and reputation also facilitate collaboration. These arrangements shape the criminal networks that exploit protected wildlife. This paper suggests further research into online trading of protected wildlife products, the presence of women in the illegal wildlife trade and the impact of COVID-19 on the criminal networks supplying wildlife.

Complications in Classifying Suicide Incitement as a Crime

Abstract The article describes and evaluates Georgian legislation in comparison to foreign legislation, as well as, based on the practical analysis, highlights the critical elements of the actual composition leading to suicide and suicide attempt. The problem of identifying whether a crime leading to suicide, or a suicide attempt qualifies for prosecution before investigative bodies and national courts is the main concern. Because of this, the article analyzes topics covered by European and National Court judgments on human rights. The intricacies of the suicide investigation are explained based on the author’s personal professional and practical knowledge, likewise, the conditions that need to be proven all through the case investigations. This article provides an overview of the problems with the current legislative architecture, its weaknesses, and basic suggestions for improving them.

Analysis of the Statute of Limitations Applicable to the Early Retirement Programs Provided by Employers: A Review of the Taiwan Supreme Court's Judgment No. 1398 of Year 2021

Analysis of the Statute of Limitations Applicable to the Early Retirement Programs Provided by Employers: A Review of the Taiwan Supreme Court's Judgment No. 1398 of Year 2021

Determining the Subjective Responsibility of an Organization in Tax Violation Cases: Comment on the Supreme Administrative Court Judgment No.436 in 2021

Determining the Subjective Responsibility of an Organization in Tax Violation Cases: Comment on the Supreme Administrative Court Judgment No.436 in 2021

An entity-centric approach to manage court judgments based on Natural Language Processing

In this paper, we present an entity-centric infrastructure to manage legal documents, especially court judgments, based on the organization of a textual document repository and on the annotation of these documents to serve a variety of downstream tasks. Documents are pre-processed and then iteratively annotated using a set of NLP services that combine complementary approaches based on machine learning and syntactic rules. We present a framework that has been designed to be developed and maintained in a sustainable way, allowing for multiple services and uses of the annotated document repository and considering the scarcity of annotated data as an intrinsic challenge for its development. The design activity is the result of a cooperative project where a scientific team, institutional bodies, and companies appointed to implement the final system are involved in co-design activities. We describe experiments to demonstrate the feasibility of the solution and discuss the main challenges to scaling the system at a national level. In particular, we report the results we obtained in annotating data with different low-resource methods and with solutions designed to combine these approaches in a meaningful way. An essential aspect of the proposed solution is a human-in-the-loop approach to control the output of the annotation algorithms in agreement with the organizational processes in place in Italian courts. Based on these results we advocate for the feasibility of the proposed approach and discuss the challenges that must be addressed to ensure the scalability and robustness of the proposed solution.

Revisiting the standing debate before the EFTA Court through the lens of post-Lisbon EU devlopments regarding locus standi

The Lisbon Treaty broadened and relaxed the standing requirements before the EU Court of Justice by adding a third class of acts amenable to judicial review. In the meantime, the EU has moreover been found in breach of the Aarhus Convention twice for shortcomings in access to justice for environmental organisations. Hence, the Aarhus Regulation, which implements the Aarhus Convention at Union level, was revised in 2021, and possible further amendments with regard to state aid decisions are being examined at the moment. The current standing requirements before the EFTA Court by contrast still reflect the situation prevailing in the European Union before those EU pillar evolutions. This article revisits four judgments of the EFTA Court in light of these developments and analyses how the EFTA Court has dealt with the existing discrepancies before, and might or might not be able to deal with them in the future.

항고의 제기에 따른 경정결정에 대한 불복방법

It is a natural rule of law also in Korean Civil Procedure that a party who has been judged unfavorably in the trial process should have an opportunity to appeal. However, an appeal was filed against the judgment of the first trial court, and when the presiding judge of the first trial court who received the appeal rejected the appeal because the requirements of the letter of appeal were defective, the appellant filed an immediate appeal, claiming that the defect was supplemented. Also, if the court of the first instance reviewed the immediate appeal and decided to correct the order to dismiss the appeal in recognition of it, there is a question of whether the other party disadvantaged by this can object to this correction decision.
 There is little discussion about this problem in academic field, but the recent precedent from the Supreme Court of Korea ruled that if the objection is not allowed at this time, unfairness will occur between the two parties, and that only a special appeal will be allowed at this time, violating the constitutional right to request a trial, so an immediate appeal can be filed by applying mutatis mutandis to the provisions on the correction of the judgment of the Act of Civil Procedure of Korea.
 However, the explanation of the precedent is not correct. First, the appellant's immediate appeal is against the order to dismiss the letter of appeal, but the method of objection that must be recognized by the other party relates to the correction decision, and the level is different. Second, it is not uncommon for both parties to be able to object only unilaterally, without necessarily acknowledging objections to both parties if necessary in civil proceedings. Third, even if an objection to a correction decision is not admitted, there is usually an opportunity to claim it later. Fourth, it is not correct to admit the correction because the correction procedure of the judgment applied mutatis mutandis by the court and the correction decision in the appeal procedure are quite different. Fifth, acknowledging a special appeal does not violate the parties' constitutional right to request a trial.
 Based on these points, it was concluded that the method of objection to the correction decision does not necessarily have to be recognized, and that the method of objection does not have to be an immediate appeal.

Analyzing Recurring EPC Contract Clauses Leading to Court Cases in NHAI: Insights from High Court Judgments

Abstract: This study provides a thorough examination of frequently occurring Engineering, Procurement, and Construction (EPC) contract provisions that have resulted in legal disputes under the purview of the National Highways Authority of India (NHAI). This study intends to identify and examine the specific contractual clauses that have been the focus of legal issues in NHAI projects by drawing conclusions from a thorough assessment of High Court judgements. The study clarifies the underlying factors and ramifications of these conflicts, providing insightful viewpoints for those involved in the infrastructure and construction industries. This paper provides a platform for improving and strengthening EPC contracts to reduce potential conflicts and improve project execution efficiency by looking at the legal precedents.30 judgment from 2012 to 2021 were collected from Highcourt and identified recurring EPC contract clauses leading to court cases.

The Legal Dynamics of E-Commerce and Direct Selling: A Comprehensive Analysis of The Amway India Enterprises Vs. Union of India Case

This research paper delves into the landmark case of Amway India Enterprises vs. Union of India, adjudicated by the Delhi High Court in July 2019. The case pertained to alleged interference by e-commerce giants such as Amazon and Flipkart in the contractual relationships between direct selling companies and their independent sales representatives. The paper dissects the intricate legal facets of this case, encompassing constitutional matters, intellectual property rights, information technology laws, consumer protection, and contractual and tort laws. A central issue examined was whether e-commerce platforms were bound by the Direct Selling Guidelines, 2016, and if their actions constituted trademark violations. The case also probed the applicability of Section 79 of the Information Technology Act and intermediary responsibilities. The Delhi High Court's judgment wielded substantial influence over the Indian business landscape. E-commerce platforms were mandated to cease commercial activity on plaintiffs' products and furnish detailed seller data, necessitating operational adjustments. In conclusion, the Amway India Enterprises case signifies the evolving commerce dynamics in the digital era and underscores the pivotal role of the legal system in ensuring fair competition, consumer safety, and intellectual property preservation. As business landscapes evolve, this case illuminates the path toward a responsible, transparent, and secure online marketplace in India.

Estimation of the Term of Pre-Trial Investigation when Studying Its Materials: Theory and Practice

The analysis of court judgements established that the courts of first instance and the courts of appeal interpret and apply the provisions of Clause 10, Part 1 of Article 284, Part 5 of Article 219 of the Criminal Procedure Code of Ukraine differently. There are court rulings concerning the inclusion of the time when the defendant party did not yet have actual possession of the pre-trial investigation materials, based on the procedure described in Article 290 of the Criminal Code of Practice of Ukraine, into the timeframe of the pretrial investigation. This means including the time when the actual access to the materials was limited, impossible, or obstructed in some way, even though formal access could be granted and the formal requirements of the procedural law were satisfied by the investigator or prosecutor. In other words there are some situations where the prosecution failed to provide the defense with proper opportunities and conditions for unobstructed study of the pre-trial investigation materials. This appears to be the reason why the prevailing opinion is that this period is not a part of the term allocated for studying the materials of the pre-trial investigation and cannot be deducted from the total term of the pre-trial investigation. There is also an opinion that this approach contradicts the provisions of Part 5, Article 219 of the Criminal Code of Practice of Ukraine, because from the moment of sending out the notification of completion of the pre-trial investigation to the defense, the time limit for the pre-trial investigation is put on hold to provide the defense with an opportunity to study the materials.For this reason, the author attempted to demonstrate that when calculating the term of the pre-trial investigation, it is important to consider not only the day of notification indicating the completion of the pretrial investigation (which is included in the duration of the term of the pre-trial investigation), but also the actual provision of access to the pre-trial investigation materials for studying. Sending a notification that includes the date, time, and location for such study is not a sufficient proof of providing an actual access. It would be more appropriate to consider sending such a notification as one of the items in the list of the procedural and organizational measures aimed at facilitating further scheduled access to the materials. In its turn, access and subsequent study encompass the opportunity to copy and/or examine documents or their copies, physical evidence or relevant portions, etc. And it is the real opportunity provided for taking such actions, mentioning the names of the materials concerning which the party is granted such an opportunity (because the parties, having a real opportunity for such actions, have a right to refuse to take the mentioned actions at the pre-trial investigation) that one party of the criminal proceeding is obliged to confirm to the other, and the injured party, a representative of a legal entity, in relation to whom or which the proceeding is conducted, is to confirm it for the prosecutor (Part 9, Article 290 of the Criminal Procedure Code of Ukraine).

Environmental rights protection in the European Court of Human Rights

A relevant issue of environmental law in Ukraine is the total violation of environmental human rights and the lack of guarantees for their restoration, as well as the imperfection of the procedure for bringing violators to justice. Since Ukraine is an active participant in international relations in the field of environmental protection, and the basic principles of foreign policy are enshrined in the Constitution of Ukraine, an appeal to the European Court of Human Rights may be a way to defend the violated rights to a clean environment. The study aims to examine the issue of environmental rights protection in the European Court of Justice. The study is based on the following methods of scientific cognition: formal legal, dogmatic, and comparative legal. The author analyses international legislation in the field of environmental rights protection. The author notes that environmental problems are borderless, and therefore, their overcoming requires all countries to join forces and share experiences. As stated, the issue of environmental protection and environmental security is becoming geopolitical in nature, given the international cooperation in the field of environmental protection which began more than 100 years ago. The author shows the signs of ensuring the implementation of the environmental rights of citizens both in Ukraine and abroad. Examples of effective international cooperation in the field of environmental protection are given. The author analyses the judgments of the European Court of Human Rights in cases related to the subject matter of the study. It is determined that when making a decision, national courts should adhere to the criteria set out by the European Court of Human Rights; find out how a certain situation arose; whether the State knew and should have known that the danger or harmful effect would affect the applicant’s private life; to what extent the applicant contributed to the deterioration of the situation and was able to remedy it without excessive costs. The practical significance of the study lies in the possibility of using its results in specialised classes, as well as in the preparation of scientific texts

Korean Judicial Decision

Abstract This is a judgment of the Seoul Central District Court on compensation for damages related to the Vietnam War. The case was brought by a group of Vietnamese plaintiffs who claimed that they had suffered harm as a result of the actions of the South Korean military during the war. The plaintiffs argued that the South Korean military had committed various war crimes, including the massacre of civilians and the use of chemical weapons. The court’s judgment was a significant victory for the plaintiffs, as it ordered the Korean government to pay compensation. The judgment sets an important precedent for future cases involving claims of harm caused by military actions. The case highlights the need for greater accountability and transparency in military actions, and raises important questions about the relationship between international law and national sovereignty. The judgment is a significant development in the ongoing debate about the role of law in regulating military actions and protecting the rights of civilians in times of war.

Reading Supreme Courts from afar: Topic modelling judgements of the Supreme Courts of Sri Lanka and the United Kingdom

In legal scholarship, court judgments are pivotal in shaping jurisprudence. Situated within the field of digital humanities as it applies to legal texts, this article takes a closer look at the underlying themes in Supreme Court judgments by applying topic modelling to the judgments delivered by the Supreme Court of Sri Lanka (LKSC) and the United Kingdom Supreme Court (UKSC). Using two custom datasets curated by (web) scraping the respective LKSC and UKSC websites, this article employs Latent Dirichlet Allocation (LDA) with the Machine Learning for Language Toolkit (MALLET), a commonly used tool for topic modelling by digital humanists, to identify topics (themes) that represent the main areas of law in each jurisdiction primarily dealt with by the respective courts. 25 was selected as the number of topics after experimentation, and the topics identified in each jurisdiction were manually labelled. The results reveal the composition and evolution of judicial workloads, the shifting socio-political priorities in each jurisdiction, as well as the similarities and differences between the two courts. The findings have several implications for legal research and practice. These suggest that topic modelling can be used as a tool to organize and categorize judgments based on their themes, which can facilitate access and retrieval of relevant cases, and identify priority areas for judicial and legal training. They also challenge conventional legal taxonomies and classifications, and demonstrate the potential of computational methods for enhancing the understanding and analysis of law.