Judicial Discretion Research Articles

Reforming Post-Arrest Bail in Pakistan: Lessons from a Comparative Study with India

This research paper presents a comparative analysis of the legal frameworks governing post-arrest bail in India and Pakistan, with a focus on the statutory provisions, judicial interpretations, and procedural safeguards that are involved. Although both states share a common legal heritage which is rooted in British colonial law, however, they have diverged in their approaches to bail, which are influenced by their respective constitutional mandates, legislative developments, and sociopolitical landscapes. This comparison is essential in order to understand how these legal systems are balancing individual rights with societal security and how judicial discretion are shaping bail in each country. For this purpose, this paper examines constitutional provisions besides main statutory provisions of the Indian and Pakistani criminal procedural laws, the role of judicial discretion and evolving jurisprudence of the post-arrest bail. This study offers insights into potential legal reforms, with an aim to enhance fairness and consistency in bail practices, through juxtaposing these principles in India and Pakistan. This study concludes that Pakistan should consider restructuring its bail procedural laws and system, and it suggests reforms taking into account the benefits of India’s progressive legal framework, to ensure consistency, fairness, and the protection of individual rights. This research also recommends future studies on balancing bail and incarceration, through focusing on judicial discretion and the application of the principle of proportionality.

Judicial Discretion and Judicial Precedent: A Legal Linguistic Context

Introduction: in modern science, there is an interest in legal linguistics, which is aimed at solving various problems. Starting from linguistic expertise and ending with methodological recommendations for the development of texts of draft laws. The issue of recognizing judicial precedent as a source of Russian law is relevant. At the heart of the legal linguistic context, judicial discretion and judicial precedent are concepts that require analysis. The paper discusses the concepts of judicial discretion and judicial precedent. Their specifics and characteristic features are defined, and the place of judicial precedent in the system of Russian law is highlighted. The role of the decisions of the Constitutional Court of the Russian Federation and the differences between the plenum of the Supreme Court of the Russian Federation and the judicial precedent are analyzed. The study highlighted the distinctive features that distinguished judicial discretion from other types of law enforcement discretion. Methods: the methodological framework is based on the methods of historicism, systematicity, and comparative law. Results: the author’s position justified in the work is based on knowledge in the criminal process. Conclusions: as a result of the study, it is revealed that the study of the discretion of the court includes an analysis of the relationship with judicial precedent. It is one of the sources of law, so its analysis and mutual influence on judicial discretion seem to be important aspects. It is established that the judicial precedent is a decision of the higher courts. The discretion of the court is able to ensure the legality of the law-application and law enforcement discretion of other bodies, organizations, citizens, and officials.

‘Worthy survivors’ of domestic violence in the eyes of the Beijing courts

AbstractThis article builds on Paige Sweet's conceptualization of ‘worthy survivors’ in the United States context and adds a consideration of judicial discretion to define who were considered worthy survivors of domestic violence in the eyes of the Beijing courts in 2021 and 2022. After analysing judges’ decisions in civil judgments and civil orders, the article concludes that worthy survivors were those who described how their abusers challenged legal authorities or disturbed public order, submitted multiple external documents with a clear description of the domestic violence, or mentioned children as direct survivors of physical child abuse committed in public. By contrast, survivors with limited capacity for civil conduct (generally due to schizophrenia) were marginalized and treated as ‘unworthy’. This article contributes to our understanding by addressing how crafting stories in line with mainstream ideology in the specific society helped survivors to achieve institutional recognition.

Punishment for Perpetrators with Special Needs (Disability) in the Current Criminal Process

General background of this research emphasizes the state's vital role in ensuring the rights of persons with disabilities within the legal framework, particularly in criminal proceedings. The specific background highlights the challenges these individuals face in the justice system, often encountering biases that hinder their access to justice. The knowledge gap identified indicates a lack of comprehensive research on the legal treatment and punishment of offenders with disabilities in Indonesia, especially under the new Criminal Code. This research aims to analyze punishment implementation for such offenders and the collaboration between judges and psychiatrists for fair legal processes. The results reveal that a normative descriptive method, incorporating expert assessments and judicial discretion, is crucial for adjudicating these cases. The novelty lies in proposing a collaborative approach that encourages judges to consider legal principles alongside individual circumstances. The implications advocate for systemic reforms to enhance protections and treatment of persons with disabilities in the criminal justice system, ensuring equitable rights and justice for all citizens. This study contributes to the dialogue on legal reform and social justice, urging policymakers to foster an inclusive legal environment. Highlights: Emphasizes the importance of integrating expert assessments in legal proceedings for offenders with disabilities. Advocates for a collaborative approach between judges and psychiatrists to ensure fair treatment. Highlights the need for systemic reforms to protect the rights of persons with disabilities in the justice system. Keywords: Disability, Punishment, Legal Reform, Equality, Criminal Offenders

Поддельные судебные доказательства

The article analyzes forged judicial evidence in civil and arbitration proceedings. The procedural possibility of filing by persons participating in the case of an application for forgery or falsification of evidence is analyzed. The role of forensic truth in the case, the institution of judicial discretion and the consequences of identifying fake evidence are considered. The author proposes to unify the single concept of "fake evidence" for civil and arbitration proceedings. The prerequisites for the growth of fake evidence, according to the author, are a combination of interrelated factors: scientific and technological progress, unregulated Internet, an increase in the level of education, unification of processes, the lack of clear powers of the court to combat fake evidence, insufficient participation of law enforcement agencies and experts in verifying evidence, and others. . At the end of the article, the concepts of fake evidence, initiative and preventive powers of a judge are formulated, a proposal is made to improve the norms of the civil and arbitration process in order to reduce the number of fake evidence.

Workload, Legal Doctrine, and Judicial Review in An Authoritarian Regime: A Study of Expropriation Judgments in China

This paper contributes one of the first systematic studies on how courts adjudicate expropriation disputes both in the absence of judicial independence and in the face of resource constraints, extends the study of judicial workload into an authoritarian context, and demonstrates the complicated and dynamic interactions between apolitical and political aspects of courts in authoritarian regimes. Our results demonstrate that legal doctrine can check the abuse of government power even in situations where it is least expected. Specifically, we examined how Chinese courts, faced with an explosive increase in workload caused by a legal reform in 2015, adjudicated expropriation disputes between the government and property rights holders. Employing a difference-in-differences method, we found an increased judicial workload to improve property rights holders’ chances of winning their case against the government. We discovered that judges’ use of hard-edged legal doctrine—administrative procedures, in particular—to save time constrained judicial discretion, which is prone to arbitrary political influence in authoritarian regimes.

That's amore?: Intimate partner femicide in Italy and the failures of the Italian legislature to prevent violence against women

AbstractIntimate partner femicide has caused growing concern in Italy, as instances continue to occur frequently. The Italian legislature has a long history of legislation that failed to protect women from violence, especially within their family units. Despite significant improvements to legislation over the last few decades, the problem of intimate partner femicide persists. This Note focuses on the failures of the penal code and accompanying statutes in preventing intimate partner femicide. The proposal is for legislation that will impose higher sentences for intimate partner homicide, remove judicial discretion in sentencing procedures, and require anti‐violence and gender equality education in schools.

CONSENSUAL TERMS MODIFYING CONTRACTUAL LIABILITY IN THE LIGHT OF UAE LAW: A COMPARATIVE STUDY WITH FRENCH LAW

Background: In the context of UAE law, this study explores the legitimacy and application of terms that modify contractual liability, drawing a comparative analysis with French law. Contractual terms are essential in shaping agreements, reflecting the parties' expectations and strategies for managing future risks. Since the 19th century, these terms have evolved significantly due to industrial growth and an increase in civil liability disputes. They are designed to limit or exclude a party's liability in the event of a contract breach, offering a mechanism for risk management and economic cost estimation. The paper differentiates between terms that directly address liability and those pertaining to the initiation of liability lawsuits. It examines various clauses, including guarantee clauses, terms that reduce liability, and penal clauses that establish fixed compensation amounts to incentivise contract performance. Additionally, contemporary legal frameworks, including both French and UAE laws, increasingly impose restrictions on contractual freedom to protect vulnerable parties, such as consumers and employees, by prohibiting certain terms and granting judges the authority to invalidate unfair clauses. The study analyses UAE legal texts in comparison with French jurisprudence to clarify the UAE legislator's perspective on the legitimacy of terms. Methods: This study aims to conduct a comparative analysis of Emirati and French laws on modifying contractual liability by analysing primary and secondary sources such as legal texts, judicial decisions, and commentaries. It examines legislative approaches and judicial interpretations, aiming to identify similarities, differences, and areas for UAE legal reform. Inductive reasoning is used to derive broader principles, assessing the effectiveness and fairness of both legal frameworks and considering key differences and guiding principles. Results and conclusions: To define the parties' rights and responsibilities, the parties must agree upon clear and explicit terms that define the damage scope, compensation limits, and exceptions to the contract. Even though these terms are common and regulated, the courts play a significant role in interpreting them, posing legal challenges when unclear. In the UAE, the Civil Transactions Law permits such terms under contractual freedom but lacks clarity on their legality, leaving judicial discretion under Article 206. Other UAE laws explicitly invalidate these terms, aligning with international standards. Post-2016, French law also invalidates terms that remove essential obligations. It is recommended that the UAE legislator clarify its stance on these terms within civil transactions, aligning with other UAE laws, to clearly specify what conditions are acceptable.

Improving asset confiscation: in the quest for effective and just solutions

The quest for effectiveness in criminal law results in creating non-punitive sanctions based on evidentiary facilities and lowered standard of proof. European courts, while focusing on procedural safeguards, perceive the structure of criminal sanctions as an element of national penal policy and leave it to the national authorities. The latter may, however, be ready to sacrifice certain important aspects of criminal law, like judicial discretion or individual guarantees, for the sake of unspecified ‘effectiveness of legal regulations’. In case of asset confiscation such approach can result in forfeiture of significant quantities of property without the certainty that it actually comes from a crime. Therefore, it seems necessary to identify the framework of criminal law principles applicable to non-punitive sanctions, in order to receive – while interpreting legal provisions – an effect that is not only a (presumably) effective, but also a just solution. This paper contributes to this issue with particular emphasis on extended form(s) of asset confiscation.

A Vision for Digitizing Judicial Processes and Integrating Artificial Intelligence in Pakistan’s Judiciary: Enhancing Efficiency and Upholding Judicial Integrity

The judiciary, as the cornerstone of justice and the rule of law, is at a pivotal juncture to harness the transformative power of digital technology and artificial intelligence (AI) to enhance its operations. This essay outlines a comprehensive approach for digitizing judicial processes in Pakistan, incorporating AI integration by drawing parallels with successful international model. The focus is on the need for systemic change to ensure efficiency, transparency, and accessibility in the legal system. Current challenges include a lack of proper implementation of the rule of law, prolonged trials, and low public confidence. Traditional methods of case filing are manual and paper-based, leading to inefficiencies. The essay proposes a step-by-step transformation starting from e-filing to the digitization of the entire lifecycle of a case, aiming to modernize Pakistan’s judiciary. AI can aid in legal research, evidence standards, and sentencing, offering predictive capabilities and streamlining routine case management. Ethical considerations and the need for human judicial discretion are emphasized to balance AI’s assistance with maintaining judicial integrity and fairness. This digital transformation can restore public trust and efficiency in Pakistan’s judiciary, paving the way for a modern, digital legal system. Keywords: Technological Integration in Courts, Predictive Analytics in Law, Transparency in Judicial Processes, Judicial Modernization, Artificial Intelligence in Judiciary, Digital transformation, AI and Legal Ethics, Case Management Systems, E-Filing, Legal Tech Innovation, AI in Legal Research, Efficiency in Judiciary, AI and Evidence Standards, AI in Sentencing, Legal Information Systems

The principle of stare decisis in the judicial proceedings of Ukraine and legal systems of the world

It The article analyses the origins and essence of the stare decisis principle, examines its specific features and formulates its concept. It is substantiated that the principle of stare decisis is a primary principle of procedural law by its structure, which has a cross-sectoral nature and is applicable in court proceedings regardless of the jurisdiction (administrative, criminal, civil, etc.) of the court, addresses the judiciary (not other participants in the court proceedings) with a mandatory requirement to adhere to the legal position formulated in previous relevant court decisions in new court decisions in order to ensure the unity and consistency of judicial practice, its certainty and predictability, which makes it possible for the subjects of legal relations to adjust their legally significant actions (activities) in the future. The authors makes a comparative analysis of the principle of «stare decisis» in the AngloAmerican and Romano-Germanic legal systems. It is proved that this principle in the Anglo-American legal system is interpreted in the sense of «to stand on what is set by the court», and in the Romano-Germanic legal system – «to stand on what is set by law». The authors argues that a court decision is always related to the resolution of a dispute, but in the Anglo-American legal system, a court dispute is related to law, and in the Romano-Germanic legal system, it is related to a violation of law. The effect of the principle of stare decisis in the Anglo-American legal system is manifested in the rule: «precedents are not overruled», even if they are outdated, they still remain in force. In fact, the same rule applies in the Romano-Germanic legal system, because the legal positions set out in the decisions of the Supreme Court are also not cancelled, but rather «departed from» by the court. In the Anglo-American legal system, the principles of law are embodied («live») in judicial doctrine and precedents, which activates judicial rule-making, while in the Romano-Germanic legal system, the principles of law are objectified in legislation, so the principles of law actually become legislative norms, which reduces the discretion of judicial discretion in this legal system. The authors concludes that the principles of law do not adapt to social relations; on the contrary, legislative norms are developed, grouped and adjusted in accordance with the requirements and content of the principles of law. Key words: stare decisis principle, judicial proceedings, principles of law, legal systems of the world, constitutional mechanism of the state, constitution of the state, sources of law, Roman law, judicial precedent.

Optimization of Judicial Review System in Non-Prosecution for Corporate Compliance

As the reform of corporate compliance progresses, the system of non-prosecution for corporate compliance grants prosecutors significant discretionary power, making it inevitable for courts to participate in corporate compliance. Issues arising from corporate compliance reform, such as insufficient time for compliance rectification hearings, inadequate third-party supervision, judicial discretion abuse, and lack of unified standards for compliance effectiveness assessment, should be addressed. This can be achieved by establishing unified standards for compliance effectiveness, improving the transparency of public hearings, emphasizing the construction of a diversified institutional framework for multi-party participation in corporate compliance, enhancing coordination and constraints among public security organs, procuratorates, courts, administrative agencies, and third-party organizations, and improving the judicial review of corporate compliance to optimize the judicial scrutiny of the non-prosecution system for corporate compliance.

Актуальные проблемы прекращения уголовного дела в связи с примирением сторон

The need to provide discretionary powers to court in contemporary criminal proceedings is absolutely obvious. Laws and explanations of the Supreme Court of the Russian Federation cannot cover the variety and complexity of public relations appearing in the course of review and resolution of criminal cases. At the same time, it is important for judicial discretion to be exercised not only for the benefit of public interests, but also without prejudice to legally protected interests of parties to a specific criminal case, in particular, the accused. Criminal case termination in view of reconciliation of the aggrieved and the accused is one of the institutions characterized by arising disputes over justifiability of exercising discretionary powers by court.

The Problem of Legislative Regulation of Judicial Discretion in the Civil Proceedings

The Problem of Legislative Regulation of Judicial Discretion in the Civil Proceedings

The Constitutional Constraints on Altering Property Rights After Relationship Breakdown

Section 79(2) of the Family Law Act 1975 (Cth) provides that the court shall not make an order altering property rights unless it is just and equitable to do so. This article argues that s 79(2) is required by the constitutional foundations upon which the power to alter property rights rests. The discretion of trial judges may be wide, but it is constrained by the parameters of constitutionality and by the purposes for which Parliament may authorise the alteration of property rights. Because existing legal and equitable titles are the starting point for consideration in family property proceedings, courts must always ask whether there is a sufficient justification for stripping a party of their legal or equitable rights. The fact of relationship breakdown is insufficient. While the broad discretion given to courts to alter property rights was originally seen as a means of providing justice for women who took on the role of homemaker and parent, the practice of the family courts of giving little weight to legal title has often worked a profound injustice to women. An understanding of the constitutional constraints on judicial discretion is also very important to give effect to the assumptions that underpinned the marital relationship.

Judicial Discretion in the Application of Criminal Law Norms on Mitigating Circumstances Containing Evaluative Concepts (Paragraphs “a” and “e” of Part 1 of Article 61 of the Criminal Code of the Russian Federation)

The discretion of the judge is an inevitable phenomenon, which cannot be ignored while individualizing the punishment. One of the tools that is given to law enforcer by the legislator — is evaluative concepts.For the purpose of uniformity of judicial practice in application of criminal legal rules that contain evaluative concepts, the Plenary of the Supreme Court of Russian Federation outlines approximate limits of discretion in its resolutions.However, not all of them are explained by the Supreme Court of the Russian Federation. Therefore, there are attempts made in this article that allow to outline the boundaries of discretion in the application of paragraphs “a” and “d” of part 1 of Art. 61 of the Criminal Code of the Russian Federation, based on the analysis of scientific studies and judicial practice.The analysis of these mitigating circumstances allows to conclude that accidental coincidence of circumstances can be described as situation when the accused “turned out to be at the wrong time, in the wrong place,” as a result of which he or she inadvertently, suddenly and forcibly commits a crime.The latter characteristic usually inapplicable if there are qualifying signs of a crime or aggravating circumstances in the case.The opportunity itself that was presented for the commission of a crime cannot be considered as an accidental coincidence, rather it could be characterized as sudden intent, i.e. an unintentional and sudden crime.Difficult life circumstances should be understood as the circumstances such as personal-family difficulties or a work-personal difficulties, that forced an accused to commit a crime.

Excesses of Digital Justice

In this article, the authors considered the phenomenon of algorithmization of the process of generating solutions by artificial intelligence and the resulting problems of implementing the idea of “digital justice”, such as hallucinations of artificial intelligence and the inherent absence of a vector for the implementation of “digital justice” when evaluating evidence, exercising judicial discretion and applying evaluation categories. The paper also provides a comparative analysis of experimental projects for the introduction and development of digital justice in different countries in recent years.

Is the Role of Judges and Ideas About Justice Relevant in the Exercise of Interpretation?

The role of judges and ideas about justice are undeniably relevant in the exercise of interpretation within legal systems. This abstract explores the significance of judges' roles and justice concepts in interpretation, shedding light on their impact on judicial decision-making and legal outcomes. Judges, as impartial arbiters of the law, are tasked with interpreting statutes, regulations, and precedent to resolve disputes and administer justice fairly. However, their interpretations are inevitably influenced by their personal beliefs, values, and understandings of justice, shaping the outcomes of cases and the development of legal principles. Moreover, ideas about justice, such as fairness, equity, and societal values, inform judges' interpretations and guide their application of legal principles to specific cases. The tension between legal formalism and judicial discretion underscores the complexity of interpretation, as judges balance the need for consistency and predictability with the demands of justice and fairness. Ultimately, the role of judges and ideas about justice play a crucial role in the exercise of interpretation, shaping legal reasoning, judicial decision-making, and the evolution of the law.

Exploring the Dynamics of section 41A and anticipatory bail: Evolution, Judicial discretion and Legal Reform

Exploring the Dynamics of section 41A and anticipatory bail: Evolution, Judicial discretion and Legal Reform

Impact of opioid maintenance therapy in the community on re-incarceration in individuals with opioid use disorder—A linked cohort study

IntroductionStudies have found associations between Opioid Agonist Maintenance Treatment during incarceration and reduced recidivism among recently released formerly incarcerated persons. However, the role of community-based Opioid Agonist Maintenance Treatment in reducing recidivism post-release remains less explored. This study examines whether pre-release arranged, prison-to-rehabilitation Opioid Agonist Maintenance Treatment in the community following release is associated with reduced rates and lengths of re-incarceration among justice-involved individuals with Opioid Use Disorder. MethodsA retrospective matched cohort study was conducted using linked records of 208 individuals with a history of Opioid Use Disorder and treatment during their incarceration. The primary predictor variable was the duration of Opioid Agonist Maintenance Treatment, with re-incarceration rates and lengths of stay after re-incarceration being the primary outcomes examined. ResultsAnalysis showed a significant decrease in re-incarcerations and or lengths of stay in prison among those who have been re-incarcerated and have undergone Opioid Agonist Maintenance Treatment in the community for >24 months. ConclusionsMaintaining Opioid Agonist Maintenance Treatment over 24 months may reduce re-incarcerations, and may be significantly associated with a reduction in the length of prison stay for re-incarcerated individuals. The effects were consistent across the overall population and the individuals receiving the treatment. Various other unmeasured factors, including judicial discretion, individual motivation, type of offense, and employment status, could influence this association.