Court Judges Research Articles

Understanding the Silala River—Scientific insights from the dispute over the status and use of the waters of the Silala (Chile v. Bolivia)

AbstractThe flows of surface water and groundwater from the Andes to the Atacama Desert are a vital source of freshwater, supporting ecosystems and human activities, but few substantive studies have addressed the hydrological and hydrogeological functioning of these systems. A dispute between Chile and Bolivia concerning the transboundary Silala River, recently heard before the International Court of Justice, The Hague, provided a unique opportunity for new scientific studies, reviewed in this Special Issue. First, findings from field studies that address the geological and geomorphological evolution of the Silala River basin and its current status, the key hydrological processes (including infiltration, actual evaporation from wetlands and alluvial plains, and surface water‐groundwater interactions), and the hydrogeological characterization of the major aquifers are reviewed. The dispute arose because Bolivia disagreed that the Silala was a transboundary river, subject to international law. As the Court proceedings evolved, this was accepted by Bolivia, but effects on surface flows of historical channelization in the Bolivian headwater wetlands remained a point of legal and technical disagreement. Bolivia asserted large increases in surface flow, based on modeling by their consultants, DHI. Chile held that these effects are small. In the second part of this paper, we summarize the modeling evidence. Chile's use of DHI's models, and its own hydrological and groundwater modeling of the basin, fully support Chile's position. We conclude with discussion of the Court's judgment, the challenges of physically‐based modeling of small changes in complex systems, and associated implications for judicial practice.This article is categorized under: Human Water > Water Governance Science of Water > Hydrological Processes Science of Water > Water and Environmental Change

Stay of Execution under Special Circumstances: A Comparative Analysis between Malaysia and United Kingdom

In Civil Litigation, a stay of execution is like a pause button used by the applicant to restrain the execution of the court judgement from being carried out by the opposing party. Fundamentally, for an application for a stay to succeed, the applicant must show special circumstances to justify the grant of a stay. This article will identify and comparatively appraise the procedures to apply for a stay of execution in Malaysia and the United Kingdom. This article will also examine the principles and factors considered by the courts in Malaysia and the United Kingdom in granting a stay of execution. In light of the global impact of the COVID-19 pandemic, this article will also study whether the courts consider COVID-19 as a special circumstance, warranting a stay of execution. In order to achieve these objectives, the methodology used by the researchers is pure legal research and comparative analysis. The findings of this article show that Civil Courts in both Malaysia and the United Kingdom have unqualified discretion to determine the application for a stay of execution. In addition, the onus is on the applicant to demonstrate the existence of special circumstances to justify the grant of a stay of execution in Malaysia and the United Kingdom. The courts will only grant a stay if there are special circumstances.

Analysis Of Admissibility Of Dna Based Forensic Evidence

The primary objective of the study is to understand the nature and characteristics of DNA based forensic evidence and to analyse grounds that affects its admissibility in the Indian Courts. This research paper analyses various types of biological samples from which DNA can be extracted to undertake DNA profiling. It analyses standard operating procedure for extraction, testing and preservation of the sample including its handling. The study doctrinally analyses various judgements of the superior courts to highlight the grounds accepted by the courts that affect the admissibility of DNA based forensic evidence for criminal trial read in conjunction of relevant statutes. The data for the research has been obtained through both primary and secondary sources in the form reported judgements on court websites, statutes in official gazettes, research papers published in reputed journal both online and offline, including edited books. The primary research objective this research paper aims to achieve is: -
 
 To develop understanding of DNA based forensic evidence.
 
 To identify principles affecting admissibility of DNA based forensic evidence.

Expert opinions on criminal law cases in Switzerland – an empirical pilot study

Criminal courts of law rely on forensic psychiatric/psychological reports when clarifying legal questions of culpability, dangerousness, and the need for therapeutic measures for offenders. Incorrect decisions owing to a lack of expert report quality and comprehensibility can have serious consequences for potential victims, offenders themselves, or societal use of resources. In this pilot study, we started from the hypothesis that forensic psychiatric/psychological reports meet the minimum requirements for legally admissible expert opinions. Within the framework of assessment by the Concordat Expert Commission of Northwestern and Central Switzerland, 58 adult criminal law reports were randomly selected. Two researchers extracted and analyzed standardized data descriptively. For quality assurance, they followed the extended codebook of the Research and Development Department of the Zürich Office of Corrections and Reintegration. Psychopathological findings accounted for only 1% of the reports, which seemed problematic considering that these findings reflect the personality traits of offenders. Furthermore, only 7% of offenders underwent physical examinations, and the reasons for not performing physical examinations were noted in fewer than half of these offenders. Of 26 sexual offenders, only one was physically assessed. Additional imaging or neurophysiological examinations (e.g. electroencephalogram) were conducted in only one offender. Furthermore, published baseline recidivism rates were used in only 37.9% of the reports. The results of this study suggest that current forensic psychiatric assessment is deficient. The infrequent use of published recidivism rates for risk communication denies prosecutors and judges solid reference values for the actual recidivism probability. Moving away from somatic medicine contradicts the federal court judgment, which disqualifies psychologists from providing a forensic report owing to their lack of expertise in physical examination. The authors recommend the multidisciplinary involvement of forensic psychiatrists and psychologists and, in certain cases, of specialists in somatic medicine to produce accurate and well-founded reports.

The right to life at the end of life: A note on Mortier v Belgium App No. 78017/17, 4 October 2022

The judgment of the European Court of Human Rights in Mortier v Belgium, delivered in October 2022, is the first time the Court has squarely confronted the issue of whether permitting assisted dying is compatible with a state’s obligation to protect life under Article 2 of the European Convention on Human Rights. The case, brought by the son of a woman who had been euthanised, was based predominantly on the argument that the Belgian system of assisted dying failed to adequately protect the lives of vulnerable individuals, such as the applicant’s mother. A majority of the Court held that a permissive assisted dying regime could comply with the positive obligation to protect under Article 2, provided there are safeguards in place including a system capable of ensuring that an individual’s request for assistance is freely made and informed, as well as a posteriori control in the form of supervision of compliance with the legislative and regulatory safeguards. While there were deficiencies in the Belgian system’s a posteriori control which led to a finding of a violation of Article 2, the judgment clearly demonstrates that states can permit assisted dying without violating their protective obligations under Article 2. Significantly, the Court did not consider that permitting assisted dying for individuals whose suffering emanates from a non-terminal condition (including a mental illness) was problematic from a Convention perspective. The judgment is likely to be of considerable interest to policy makers, legislators, medical practitioners, and campaigners in the increasing number of jurisdictions both within the Council of Europe and beyond, that are considering whether to legalise assisted dying and, if so, the parameters of such a regime.

The European Convention on Human Rights and the Practice of the ECtHR in the Field of Gestational Surrogacy

Background. The article focuses on the analysis of the case law of the European Court of Human Rights regarding gestational surrogate motherhood and the development of the bioethics issue in this area. It was established that the notion of "private life," regulated by Article 8 of the European Convention on Human Rights, guarantees everyone the ability to demand the establishment of their identity, providing for the possibility of establishing family relationships. It is highlighted that, despite the legal ban on the implementation of surrogate motherhood technology, to confirm the child’s identity, there is a need for official recognition of this kind of family relationship as indicated by other relevant relationships. In particular, the peculiarities of establishing parent-child relationships in the case of individuals applying for gestational surrogacy to exercise their reproductive rights are disclosed. The problem of legal regulation unification in the technological application of gestational surrogate motherhood is considered. A conclusion set regards the need to create an international legislative and regulatory framework useful for national governments, particularly in gradually banning the use of surrogate motherhood technologies. Attention is placed on international efforts focused to create an international legislative and regulatory framework that will provide recommendations useful to national governments, particularly in the gradual prohibition of surrogacy. The authors believe that the corresponding international agreement will constitute a legal framework for ensuring individual rights, freedoms, and health, the limitation to gestational surrogate motherhood services, and the observance of a uniform policy in this area. Methods: The methodological framework of the study incorporated a range of philosophical, general, and legal methods. The worldview-dialectical method of cognition made it possible to investigate the problem's social content and legal form, then to conduct a systematic theoretical and legal analysis of the practice by applying the judgments of the European Court of Human Rights. The diversity of legal certainty of the surrogate motherhood system’s legality in Europe, particularly in France, Italy, Iceland, Poland, and Norway, was investigated using the comparative method. With the help of a formal-legal approach, it analysed the content and peculiarities of applying the ECtHR practice. Results and Conclusions: We comprehensively considered the ECtHR legal positions on gestational surrogate motherhood and the bioethics development in this area. International efforts should be concentrated on establishing an international regulatory framework that will provide recommendations practical to national governments, particularly in the gradual prohibition of surrogacy.

Soft law with a hard impact in local China: The role of judicial activism in reducing rural–urban discrimination during traffic casualty litigation

China’s hukou (household registration) system has undergone reforms aimed at addressing the large rural–urban divide. Importantly, it no longer distinguishes between agricultural and nonagricultural hukou. However, this reform is widely interpreted as being ‘soft’ and having little impact on reducing the rural–urban divide due to its symbolic nature. Still, this study takes a legal perspective and conceptualizes the reform as being in the form of soft law. It then applies the theory of judicial activism and proposes that soft law can be actively utilized by local courts in China as a means of reducing the rural–urban divide. Based on a novel dataset of court judgements in traffic dispute lawsuits between 2005 and 2019, this study shows that many local courts, especially in Guizhou, Zhejiang, and Jiangsu Province, have generated a substantial impact of the soft hukou reform: they invoked this reform as the reason for their decision to grant rural traffic casualties equal personal injury compensation rights as urban residents, despite no formal legislation from the national government at the time. These findings underscore the importance of investigating judicial activism at the local level and studying how local courts can creatively utilize soft law to engage in judicial activism and reduce discrimination.

'Schrems II' Judgment C-311/18: Application of Charter Rights to Data Protection and Effective Remedy Beyond Eu Borders - A State of Play and a Critical Reflection Two Years Later

In its Schrems II judgment,1 the Grand Chamber of the Court ruled that the United States law and practices, notably bulk-interception programmes, were not providing a level of protection of personal data essentially equivalent to the protection conferred by the EU Charter of Fundamental Rights and, therefore, invalidated the Privacy Shield for violating Articles 7 and 8 of the Charter. Since, in addition, there is no effective remedy available to data subjects protected by the GDPR, the Court held that the Privacy Shield also violated Article 47 of the Charter. The Court, nevertheless, left the standard data protection clauses as one of the transfer tools available to data exporters, with the understanding that it is up to the data exporter to implement the additional safeguards necessary to compensate for any shortcomings in the third country and achieve an essentially equivalent level of protection. While the judgment provides, to some extent, clear guidance on the application of EU law and maps out a coherent regime as to how data can be transferred, this article reflects on some aspects that remain problematic in practice, both for data exporters in general and for the original complainant in the Schrems litigation in particular.2The 'risk-based approach' and its recognition are discussed, revealing that ultimately the law, and the Court's judgment, do not seem to allow for certainty in this matter and require the stakeholders to take a position in their respective situations, choosing between a strict or stretched interpretation.

Execution of the ECtHR Judgment in Beizaras and Levickas v. Lithuania Case: Effectiveness and Legal Implications

In Beizaras and Levickas v. Lithuania case (Application No. 41288/15), the European Court of Human Rights found violations of the Convention for the Protection of Human Rights and Fundamental Freedoms as the Lithuanian law enforcement authorities had failed to start pre-investigation into allegations of homophobic hate speech directed against the applicants and the applicants thus suffered discrimination on the grounds of their sexual orientation. On 1 December 2021 the Committee of Ministers of the Council of Europe, supervising execution of the final judgment of the Court, welcomed the execution measures taken by the Lithuanian authorities and decided to continue the examination of Beizaras and Levickas case under the standard procedure instead of the enhanced one. First, this article recapitalutes the individual and general measures taken by the Lithuanian authorities seeking to execute the judgment of the European Court of Human Rights and discerns the factors which led to effective execution of the judgment. Second, the article demonstrates the positive impact of effective execution on any other similar cases pending both at the domestic level and before the ECtHR not only against Lithuania, but also against other Contracting States.

Establishment of the Iranian Specialized Commercial Courts: A Pro-arbitration Stance?

Abstract Following the new approach of the Iranian Judiciary toward the Iranian Commercial Code and recent regulations, including the Guideline pertaining to the establishment of Commercial Courts, specialized commercial branches of Courts were established in Tehran in November 2020. These Commercial Courts are competent to hear, among other types of disputes, arbitration related disputes, both at the domestic and international level. The role of courts, whether supportive or interventionist, covers matters occurring prior to the commencement of arbitration, during the arbitral proceedings and specifically, after rendering the final arbitral award. It is expected that the specialized commercial judges in these Courts will develop the jurisprudence on arbitration further. Using doctrinal analysis and reviewing some of the latest decisions rendered by these Courts (relating to domestic arbitration), this article explores the jurisdiction of the specialized Commercial Courts and the added value they might bring to the Iranian arbitration forum. The present article comprises four sections. After recalling the background and jurisdiction of the new Commercial Courts in the first section, the second section will successively explain the potential role of the domestic courts within the arbitration landscape. The third section analyzes the recently published judgements of the Commercial Courts to see how they meet the globally accepted norms and standards in arbitration. The fourth and last section concludes the article which positions the newly established branches of the specialized Commercial Courts as a pro-arbitration stance in Iran. Overall, the article highlights the significance of establishing specialized branches of courts with the presence of judges who are aware of the fundamentals of arbitration in paving the way for Iran to be arbitration friendly.

Observations on the Legal Relationship of Triangular Trade and Business Tax: From the Supreme Administrative Court's Judgment No. 89 of 110

Observations on the Legal Relationship of Triangular Trade and Business Tax: From the Supreme Administrative Court's Judgment No. 89 of 110

재판소원의 금지와 헌법재판소에 의한 취소결정의 범위

Even if the Constitutional Complaint for a trial is exceptionally possible, it is necessary to distinguish whether the subject of the Constitutional Complaint is a “judgment subject to retrial” or a “judgment to dismiss a retrial.” According to the Constitutional Court, even if it cancels the “judgment to dismiss the retrial,” it cannot cancel the “judgment subject to retrial.” However, as long as the court's judgment is contrary to the effect of the Constitutional Court's unconstitutional decision, the scope of a trial subject to a Constitutional Complaint cannot be changed by the accidental factor of whether the Constitutional Court's unconstitutional decision is sentenced before or after the “court's judgment.” In order to control the case that provided the cause of the retrial request, at least the retroactive effect of the unconstitutional decision should be recognized in the case where a limited unconstitutional decision is sentenced after a trial applying the law before the Constitutional Court decides it is unconstitutional. This is because the scope of recognition of the trial court is in line with the scope of the retroactive effect of the unconstitutional decision. Therefore, at least the final judgment that provided the cause of the request for retrial, the court's judgment to dismiss the request for retrial, and the Constitutional Court's decision to cancel all of them are on the same line, so it would be reasonable to cancel not only the “judgment of dismissal of retrial” but also the “judgment subject to retrial” through the Constitutional Complaint against a trial, and to sentence the decision to confirm unconstitutionality for the legal provisions on the basis of the “judgment subject to retrial.”

타인의 선거범죄에 의한 당선무효제도에 관한 헌법적 검토

Trials for election crimes function to punish criminal acts that infringe on the freedom of elections and undermine the fairness of elections. Indirectly, it restores the fairness of elections disturbed by election crimes. However, there are far more cases in which the result of an election is changed by punishment for election crimes than in cases where the result of an election is corrected through an election lawsuit. In particular, there are many constitutional problems with a system that uniformly invalidates elections only by sentences of imprisonment or fines of 3 million won or more for other people's election crimes, not their own. The invalidation of the election due to election crimes by others violates the constitutional principle of responsibility or self-responsibility, as well as due process of law, thereby violating the candidate's right to hold public office. Above all, it can impose a burden on judges to simultaneously consider the policy judgment on the invalidation of the elected candidate in sentencing for other people's election crimes, thereby damaging the unique function of the judiciary. Comparatively, the UK and Japan also recognize the invalidity of elections due to election crimes by others. However, apart from the criminal trial for election crimes, whether to invalidate the election due to election crimes is decided through the judgment of the election court or the court in charge of election litigation. These comparative legislative examples can support the argument that the election invalidation system under Articles 263 and 265 of the Public Official Election Act violates the due process of law and violates the candidate's right to hold public office. In order to overcome the unconstitutionality of the invalidation of elections due to election crimes by others, it is necessary to think about guaranteeing a separate procedure for invalidation of elections. Therefore, legislative improvement should be made in the direction of organizing a due process that can determine whether or not an election is invalid, separate from criminal trials for other people's election crimes.

유럽인권법원의 판례상 통신감청에 관한 연구

The pace of progress in digital technology is difficult to predict. At the same time, the growing threat of serious crime raises questions about the tension between “individual freedom” and “public safety” more acutely than ever. The conflict between the two is clearly revealed in the discussion of the state's surveillance of communications. The European Court of Human Rights has so far guaranteed the right to respect for privacy “offline” and the right to freedom of expression. In particular, it is noteworthy that in the ruling on May 25, 2021, the judgment was made in connection with the current situation transferred to “cyberspace”. Until recently, the judgments of the European Court of Human Rights regarding the Internet have not been so prominent. However, it is no exaggeration to say that the European Court of Human Rights is now facing new challenges due to technological advances. Data movement on the Internet transcends national borders, and data theft by government agencies is possible due to the opaque route. There is no question that the scope of surveillance is much broader and that it gives access to the core areas of privacy. The European Court of Human Rights stated that wiretapping is possible only when there is “serious suspicion against the person being monitored.” General and unrestricted surveillance violates the European Convention on Human Rights. Above all, it cannot be denied that in recent years, it is inevitable to grant wide-ranging powers to intelligence agencies to respond to threats to national security. As is well known, it would be difficult to imagine even a moment of everyday life freed from today's information and communication technology. Against the background of this digital stage, techniques that ensured encryption and anonymity, such as the dark web and telegram, appeared. Therefore, it is self-evident that finding and responding to clues in the field is virtually impossible. In line with this situation, it is necessary to legally prepare appropriate countermeasures for the security authorities. At the same time, the European Court of Human Rights emphasizes that legal and technical safeguards must be secured to prevent abuse and violation of fundamental rights. Ultimately, in order to collect information related to serious crimes or acts of terrorism in today's information and communication environment connected to the Internet of Things, corresponding regulations must be prepared. This is the principle of equality of arms. From this point of view, the general authority to collect information regulated by the Act on the Performance of Duties by Police Officers and “Regulations on Information Collection and Processing” is not only incompatible with today's digital information and communication environment, but it is difficult to avoid criticism that it is a way that is far behind in comparison. In future legislation, disclosure and non-disclosure (secret) means should be separated, and in the case of non-disclosure, stricter requirements should be set in consideration of the high degree of violation of fundamental rights.

The vaccine mandates judgment: Some reflections.

This paper scrutinises the Supreme Court Judgment of May 2, 2022, in a vaccine mandate-related petition. The Hon'ble Court's Order reasserts the primacy of right to privacy and Articles 14 and 21 of the Constitution of India. However, in the interest of protection of communitarian health, the Court felt that the Government is entitled to regulate issues of public health concern by imposing certain limitations on individual rights, which are open to scrutiny by constitutional Courts. However, such mandatory vaccination directives with preconditions cannot invade an individual's right to personal autonomy and right to access means of livelihood, and must meet the threefold criteria laid down in K.S.Puttaswamy, a landmark judgment of 2017. This paper examines the validity of the arguments adopted in the Order and suggests certain infirmities therein. Nevertheless, the Order is a balancing act, and worth celebrating. The paper concludes, as a cup that is "a quarter full", as a victory for human rights and as a safeguard against unreasonableness and arbitrariness in medico-scientific decision-making that takes the citizen's compliance and consent for granted. If the State runs amok by way of mandatory health directives, this Order may come to the rescue of the hapless citizen.

Simplified Legal Procedure for End-of-life Decisions in India: A New Dawn in the Care of the Dying?

Mani RK, Simha S, Gursahani R. Simplified Legal Procedure for End-of-life Decisions in India: A New Dawn in the Care of the Dying? Indian J Crit Care Med 2023;27(5):374-376.

A STUDY ON THE «ONE-STOP» DIVERSIFIED INTERNATIONAL COMMERCIAL DISPUTE RESOLUTION PLATFORM OF THE CICC IN THE CONTEXT OF THE BELT AND ROAD INITIATIVE

China has proposed to establish a «One-Stop» diversified international commercial dispute resolution platform (hereinafter «One-Stop» platform) in the CICC that effectively combines litigation, mediation and arbitration, which is one of the innovative measures of the CICC. However, the mechanism to effectively combine these three dispute resolution methods in the «One-Stop» platform is insufficient, the international expert committee has not been able to fully play its role, and there are difficulties in the recognition and enforcement of settlement agreements, arbitration awards, and court judgments after dispute resolution. In response to the above problems, the procedural mechanism of the «One-Stop» platform should be improved, the duties of the expert committee should be clarified, and China should consider introducing more diversified international treaties and improving domestic legislation so that the operation of the «One-Stop» dispute resolution platform can be supported by law. With such legal support, the operation of the «One-Stop» platform can provide public legal service products that are more in line with international needs.

Two points of discussion on the 2022 General Court Judgment in Intel

This article discusses the General Court Judgment of 26 January 2022 which annuls the part of the Commission Decision of 13 May 2009 in Intel related to the exclusivity or quasi-exclusivity rebates granted by Intel to a number of computer manufacturers and a microelectronics retailer. In particular it highlights reasons why, in the author’s view, the General Court Judgment, if left unchanged, could create a wrong precedent for the assessment of exclusivity rebates, and explains how the Judgment articulates the ECJ Judgment in a way which is at odds with the economic reality of those conducts, but also with the very philosophy of the ECJ Judgment.

Contested Heritage and the Consistory Courts

This article distinguishes contested heritage on consecrated land from the wider secular contested heritage debate. The evolving property law position on contested heritage and consecrated land is analysed in the context of recent consistory court judgments including the controversial decision concerning the memorial to Tobias Rustat at Jesus College, Cambridge. The current application of the ecclesiastical exemption, the statutory guidance on contested heritage from the Church Buildings Council and the Cathedrals Fabric Commission and the Duffield framework are considered together with strong criticisms made by the Archbishops’ Commission for Racial Justice. The article suggests that because issues of contested heritage and the legacies of enslavement have not been properly considered in a timely way by the Church of England, individual consistory court cases have become focal points for wider debates beyond their remit. The article argues that the current resolution process for disputes over contested heritage is untenable in the longer term. Statutory guidance needs to be revised and the faculty process, in particular the Duffield framework, needs to be adapted to address racial justice and mission and worship. Practical advice is offered to individual religious communities seeking to consider contested heritage in their own buildings in the meantime.

An Improved Model for Legal Case Text Document Classification

Misjudgments in court cases are inevitable in any judicial system irrespective of how civilized the country in which the judicial system is. The economic effects of failed court judgments cannot be overemphasized. The passing of wrong judgments can be a result of a lack of evidence due to poor research by counsels. Preparing for a court case is not an easy fit as a lot of research must be done on the part of the attorneys in charge. This paper presents an improved Hybrid model for legal case document classification. The system starts by collecting legal case documents from an online domain. The collected documents were converted to texts using a pdf miner library in python. The converted texts were used in creating tables using the pandas library. After the creation of the dataset table, the dataset was pre-processed by removing noise, and non-alphanumeric values, and performing tokenization. The tokenized data was then passed into principal component analysis for the selection of important features. The selected features were used in training an LSTM model for the classification of the legal case documents. The system was designed with Object-Oriented Analysis and Design method and implemented using python programming language. The result of the LSTM is outstanding, having an accuracy of 99% when evaluated with unseen legal case documents. The model was deployed in building a web application for the classification of legal documents. Upon testing the application with emerging documents, it sufficiently classified them and reduced tremendously the conflicting judgments experienced before the application of the improved model for legal case classification.