Judicial Council Research Articles

Medida cautelar de suspensión provisional de los servidores y servidoras de la Función Judicial

cautelar de la suspensión de las servidoras y servidores de la función judicial, entendiéndose dicho derecho como una garantía para otros derechos y principios, cuyo fin es la protección de éstos frente a las acciones del estado y constituye, es así, que esta investigación analiza el procedimiento en las resoluciones en las cuales se ha adoptado dicha medida cautelar en procesos sustanciados en la dirección provincial del Consejo de la Judicatura de Azuay, de ahí surge la problemática de cómo inside su insuficiente motivación, para establecer si existe vulneración al derecho al debido proceso en la garantía de la motivación. Se concluye que en las resoluciones en donde se adopta la medida cautelar de supensión de las funcionarias y funcionarios judiciales, existe una motivación deficiente, es decir no cumplan los parámetros de razonabilidad, lógica y comprensibilidad.

Rady Sądownictwa w Danii

COUNCILS FOR THE JUDICIARY IN DENMARKThe purpose of this study is to discuss the political position, composition and competences of two independent judicial institutions operating in Denmark, namely the Danish Court Administration and Council for Judicial Appointments. Their establishment in 1998 they began operating on 1 July 1999 was undoubtedly the implementation of the constitutional guarantees of independence of judges, and in practice it also became an important factor in the very high level of confi dence of Danish society in the justice system. Both Danish judicial councils are statutory bodies because the 1953 constitution does not require the establishment of such institutions.

Państwowa Rada Sądownictwa w Republice Chorwacji

THE STATE JUDICIAL COUNCIL IN CROATIAThe State Judicial Council is a constitutional body in Croatia. In accordance with the Constitution, the Council consists of eleven members elected for a four-year term of office: seven judges, two professors of legal sciences and two deputies to the Sabor, one of whom must be a member of the opposition. Members of the Council from among the judges are elected by the judges. The procedure of its selection and competences are regulated in detail by the Act on the State Judicial Council.

Najwyższa Rada Sądownictwa w Portugalii

HIGH COUNCIL FOR THE JUDICIARY IN PORTUGALThe study discusses the political position, composition, organisation and competence of the High Council for the Judiciary in Portugal. It is an office clearly supported by the constitution Articles 215 and 217, demonstrating the features of the southern European model of the functioning of judicial councils in Europe. Although judges do not formally have a majority in the High Council for the Judiciary, they can in practice obtain it when making specific decisions. However, in this aspect, the solutions adopted in Portugal do not follow the recommendations of the Committee of Ministers of the Council of Europe. They are also critically assessed in reports of other institutions e.g. GRECO.

A Review of Continuous Relevance of the Traditional Methods of Dispute Resolution Mechanism in Southeast of Nigeria

Dispute Resolution method like culture is a way of life. Every method is special to people based on their value orientation and the desire to preserve social norms. Before the advent of colonial rule and regular court system to Nigeria, Southeast of Nigeria had a system of dispute resolution mechanism adjudged to be simple, inexpensive and friendly. Resolutions of disputes were handled by family heads, village heads, elders, kindred, age grade, council of elders, chiefs, chief priests, judicial council among others. The practice was very strong until it was watered-down by the advent of colonial administration and regular court system. The end product was the introduction of western methods of dispute resolution in Nigeria which have remained in constant battle with the tradition of the people Southeast of Nigeria. This work became imperative in view of strong calls to return to indigenous methods of dispute resolution in Southeast Nigeria. The aim of this is to ensure that parties to a dispute amicably resolve their differences outside the normal courtroom processes. This paper was commenced by investigating into various traditional means of dispute resolution in Southeast.

The Independence of the Judiciary

In order to ensure the independence of the judiciary, an adequate financing of the judiciary is required. In particular, the requirement of effective legal protection contained in Article 19 TEU, the guarantee of an effective remedy under Article 47 GRC and the right to a fair trial under Article 6 ECHR form a legal basis for determining the need for a minimum level of funding for the courts. The model of the appointment of judges can also influence the institutional independence of judges. At the European level a tendency towards the establishment of judicial councils for the appointment of judges can be observed. However, this institution and the exclusion of the executive from the appointment of judges cannot guarantee the independence of the judiciary as it is proven by the situation in Poland which has been examined by the CJE. Last but not least the independence of the judiciary must be protected from excessive pressure from politicians and the (media) public.

The Politics of Regulating and Disciplining Judges in Nigeria

The disciplining of judges is a sensitive and complex challenge. In Nigeria, the complexity is heightened because the process is complicated by socio-political factors and public views about the motivations for disciplining some judges, including claims of political interference by the ruling government. This Chapter argues that both judicial discipline and the work of the National Judicial Council (NJC) – the body responsible for judicial regulation in Nigeria – are caught up within Nigeria’s peculiar socio-politics, a reality that a strictly legal analysis will miss. The Chapter analyzes contemporary challenges and controversies associated with the complaints and discipline procedure in Nigeria. In particular, it asks whether the NJC is undergoing a legitimacy crisis. The Chapter also analyzes the controversial removal of the Chief Justice of Nigeria and the others arrested and situates this within the socio-political and other factors specific to the discipline of judges in Nigeria. In conclusion, the Chapter highlights four specific insights that emerge from the analysis.

The Mediation and the Role of Lawyers in the Procedure through the Prism of Bulgarian History

The possibility of resolving conflicts through alternative means is a favorable alternative for the parties, as it has deep roots in Bulgarian history, customs and law. If we turn to the history of Bulgarian law we will find that they are often used as an opportunity to resolve disputes of various kinds. Historically, Bulgarian rulers have personally participated in negotiations to resolve international conflicts – for example, Khan Krum proposed negotiations to avoid or end hostilities with Byzantium. The prince Boris I Michael also showed excellent negotiation skills when accepting Christianity as the state religion. During the Ottoman rule, such conciliatory functions were played by the bodies of the Bulgarian municipalities, the guild organizations and representatives of the spiritual authorities. After the Liberation, this tradition was the basis of the Elderly Judicial Councils, the amicable (conciliatory) courts, whose activity is based on the principles of voluntariness, reconciliation and reaching a mutually beneficial agreement.

الشروط الموضوعية لقانون العفو العام رقم 27 لسنة 2016

The general amnesty law is one of the important laws and at the same time has many caveats. Therefore, the society is intended to restrict the validity of its provisions despite its public attribute by substantive conditions so that the law can achieve the inherent purpose of its legislation which is represented by the social interest. These conditions are set out exclusively by the legislator, but at the same time, the Supreme Judicial Council is empowered to issue instructions to facilitate the implementation of the provisions of the law. Thus, the judiciary represented by the Court of Cassation has a role in interpreting the texts and completing the legislative deficit, in a manner consistent with the legislative idea of the law.

CREATION OF THE HIGH COUNCIL OF JUSTICE OF UKRAINE IN THE CONTEXT OF STRENGTHENING THE INDEPENDENCE OF JUDICIAL POWER

The article discusses the reasons and prerequisites for the establishment of the Supreme Judicial Council of Ukraine as a state authority, whose main tasks are to ensure the independence of the judiciary, as well as to form a highly professional and virtuous corps of judges. Aspects of expanding the functions of the High Council of Justice in relation to the status of judges in Ukraine are analyzed, and also the correspondence of these tendencies to foreign experience, European in particular. The comparative analysis is carried out and the main distinctive features of the Supreme Council of Justice and the High Council of Justice in the mechanism of ensuring the independence of judges and courts in Ukraine are determined, the influence on strengthening the independence of the judiciary in the order of formation of relevant bodies is substantiated, as well as the possibility of interference with their activities by representatives and other branches of government.

Sobre la independencia judicial (Notas al hilo del libro de Pablo Lucas Murillo de la Cueva, La independencia judicial y el gobierno de los jueces. Un debate constitucional)

Este texto pretende comentar de manera crítica un libro del profesor y magistrado del Tribunal Supremo, Pablo Lucas Murillo de la Cueva sobre el gobierno de los jueces. Para ello se examina la oportunidad del libro, su contenido, las perspectivas adoptadas y las tesis sostenidas. Se pretende poner de manifiesto que se trata de una defensa clara y justificada de la elección parlamentaria de los vocales judiciales del Consejo General del Poder Judicial pero se abordan igualmente otras cuestiones importantes en materia de independencia judicial en España combinando la aproximación teórica de un profesor con el conocimiento práctico de un miembro del poder judicial.This essay comments critically a book on judicial governance by Pablo Lucas Murillo de la Cueva, professor and Magistrate at the Supreme Court. It focuses on the book’s opportunity, its contents, the perspectives used in the analysis and the essential thesis sustained. The book is a clear and reasoned justification of the parliamentary selection of the members of the Spanish Judicial Council. But it studies, as well, other important issues raised by judicial independence in Spain combining the theoretical approach of a Professor and the practical knowledge of a member of Spanish judiciary.

The politics of implementation of the judicial council model in Europe

AbstractCurrently, at least three approaches to judicial governance coexist in the European continent: the judicial council model, the courts service model, and the Ministry of Justice model. Although doctrinal and case-specific literatures abound on this topic, examples of cross-country studies explaining choices on these models of judicial governance are rather scarce. More particularly, we lack so far knowledge on how different factors interact in leading to the implementation of the judicial council model. This is striking, given the importance of judicial councils for the operation of the rule of law. Furthermore, explanations on the choices of models of judicial governance are essential to understanding the intricate issue of the political rationalities underlying macrolevel design of judicial institutions. Using qualitative comparative analysis and focusing on European liberal democracies, this article contributes to the literature in the field. It is shown that judicial councils are created when postauthoritarian countries implement new constitutions either in romanistic law countries or in countries subject to Europeanizing pressures.

ولایة القاضى فى عُمان فى القرون الأربعة الأولى للهجرة

ولایة القاضى فى عُمان فى القرون الأربعة الأولى للهجرة

Mock-Jurors’ Self-Reported Understanding of Canadian Judicial Instructions (Is Not Very Good)

Studies of the criminal jury within a Canadian context remain few and far between compared to such research based in other jurisdictions especially the United States. The study of jury work in Canada is significantly curtailed for structural reasons, which we outline below. This makes the study of actual jurors who have served almost impossible in Canada so researchers must use alternative methods to study Canadian juridical issues. The current study used a student sample to investigate comprehension of Canadian Judicial Council (CJC) pattern instructions. This is the first study to interrogate CJC pattern instructions in relatively common and uncomplicated crimes. In this article, we discuss the barriers to jury research in Canada, consider some challenges facing jurors in comprehending legal concepts, and explore the development of pattern instructions in Canada. We then describe the results of our study, which revealed that a majority of participants self-reported a lack of comprehension in the pattern instructions provided and demonstrated a lack of understanding of foundational legal principles based on responses to other questions. This lack of comprehension has implications for policy development and for future studies in the area of juror comprehension.

PROCEDURE FOR APPOINTMENT OF A QĀḌĪ IN NIGERIA: A HINDRANCE TO THE PRACTICE OF ISLAMIC THEOCRACY

Nigeria is made up of different religions and this is recognized by the constitution which provides for the freedom of religion. For the actualization of this freedom, the constitution permits the establishment of Shariah Courts in the country where needed. Muslims need Islamic Theocracy which will interpret to mean governing in accordance with the rules of Allah to enjoy their right. The proper dispensation of justice starts from the procedure for the appointment of a Qāḍī which is to be done by the leader of the Muslim under the Shariah. The Constitution of Nigeria and the rules of Judicial Council stipulate the procedures which run afoul the Shariah. Doctrinal and exegetical research methods were used which helped in realizing the lacunas of the extant law in appointment procedure. It is consequently recommended that the extant law be amended to properly portray the provisions of the Shariah by placing the power to appoint on the leader of the Muslims among others. This will not only sanitize and sanctify the position alone, it will also pave way for enthronement Islamic theocracy strictly for the Muslims and help in fulfillment of the fundamental right to freedom of religion.

Judicial Review of Administrative Action in Europe: Common Trends and Requirements

This article focuses on judicial review of administrative action within the European legal space. It has three main themes. First, it makes an attempt to understand, in a historical perspective, why some courts deeply involved in the business of government have failed somewhere, while other courts have succeeded elsewhere. Second, the paper considers current trends in Europe. It distinguishes two variants of specialization - one based on administrative courts and another on specialized panels within civil courts. Thirdly, the article argues that a balance between judicial independence and accountability is necessary. This implies, on the one hand, guarantees of judicial independence, a legal basis for the exercise of authority over individuals and firms and certain standards of procedural due process of law. Arguably, national governments have some margins of manoeuvre in the interpretation of such requirements, but their essential content cannot be infringed. On the other hand, accountability must be ensured: in particular, if certain conditions are met, supervision by mixed judicial councils is to preferred to self-regulation.

Особливості діяльності органів суддівського врядування: зарубіжні моделі

Проведено аналіз практики діяльності органів суддівського самоврядування зарубіжних країн. Здійснено науково-теоретичне дослідження типовихмоделей суддівського самоврядування для країн Європи. Виділено основні повноваження органів суддівського самоврядування.

Pakistan's Law for Removal of Superior Courts Judges: Safeguards to Independence of Judiciary v/s Duty of Executive to Probe into Conduct of Judges

The story of independence of judiciary starts with the exit of King James II from England consequent to the “Glorious Revolution” of 1688. The subsequent regime of William and Mary was accepted by the people of England with one of the condition, amongst other, that they would respect the tenure of the judges because it was essential to their true independence of mind and of action. This revolutionary achievement, it is said, eliminated the intimidation of the judiciary by the Crown in England for all times to come. In Pakistan, the mandatory age for retirement of Judges is provided in its Constitution. A Supreme Court Judge can serve up to the age of 68 years, and a High Court Judge can serve up to the age of 62 years. Otherwise they can only be removed from office in accordance with the provisions of Constitution. The retirement age for Supreme Court and High Court judges can only be altered by passing of a Constitution Amendment Act (under its Articles 238 and 239) by the parliament by the two-third majority of its both houses respectively. However, things do not end just by concluding that a Constitution Amendment Act is sufficient to alter the tenure of Judges of Superior Courts. There are other important provisions affecting this subject matter, which merit studying. Those are Articles 175 (3) and 209 of Pakistan's Constitution that are discussed in this article. For convenient reading the body of this article has been arranged into seven parts as below. The first part serves as an introduction to concept of independence of judiciary and its nexus to the issue of tenure of judges. The second part identifies the international declarations as to independence of judiciary and tenure of judges that Pakistan has subscribed to. The third part comments on the constitutional scheme for separation of judiciary from executive in Pakistan. The fourth part highlights substantive thresholds, under Pakistan’s law, as to proceedings before the Supreme Judicial Council, when it is called upon (by the President) to provide its opinion on the misconduct of a Supreme Court or High Court Judge. The fifth part analyses procedural thresholds, under Pakistan’s law, as to handling of a complaint alleging misconduct by a Judge as aforesaid. The sixth reviews the definition and scope of misconduct allegation that can be entertained against a sitting Judge as aforesaid, and the seventh part serves as the conclusion to this article. Pakistan must not allow the executive branch to interfere in tenure of the offices of Judges at Superior Courts! … because such interference damages independence of judiciary! … because such interference creates the risk of reducing public confidence in judiciary! … because such interference creates chilling effects on the constitutional guarantee for fundamental right of citizens’ access to justice!

Las fuentes judiciales para el estudio de los cabildos indianos

Within the secular organization of the city governments in Colonial Spanish America, we see that the first authorities to judge a trial varied according to the decision of the town hall. They could include the mayor, members of the Hermandad, or of the Mesta. Through an examination of documents actually produced during these court proceedings, we see how the procedures and members of local judicial councils are influenced by previous Spanish models. This paper offers definitive conclusions about these judicial structures and procedures due to the breadth of the documentation examined, which not only includes local records, but also documents produced by the interaction between the city governments and the other judicial and political institutions of the Spanish Empire, including viceroys, officials from the Council of the Indies, governors, mayors, corregidores, ecclesiastical authorities, and landed gentry. Indeed, an analysis of the interface between all levels of government is imperative for a profound understanding of the local justice system in Colonial Latin America.

Innovate – Don’t Imitate! -ENCJ Research Should Focus on Research Gaps

After a critical evaluation of the proposal by van Dijk and Vos to make judicial independence and accountability measurable, this paper discusses a number of basic methodological decisions that need to be made before meaningful indicators can be constructed. The paper then moves on to deplore the lack of knowledge regarding the effects of judicial councils and proposes that more research be carried out to reduce our knowledge deficit. It further describes the rising importance of prosecutors and the complete lack of indicators regarding prosecutorial accountability. It argues that producing indicators with regard to prosecutors could add a lot more value than yet another indicator on judicial independence.