Judicial Officers Research Articles

Court Advisers in Malaysia: A ‘Neglected’ Component of the Court For Children?

The court advisers are not a new component in the criminal justice system, especially in cases involving children. In most jurisdictions in the world, the court advisers (as known in Malaysia) or social workers/panel of advisers in other countries, are a component that was introduced to assist the judicial officer in determining a proper and suitable order for the child offenders. In Malaysia, children who have committed offences will be brought before the Court For Children (formerly known as the Juvenile Court). The Magistrate that presides the court will be assisted by two appointed court advisers. Although they comprise laymen without any legal qualification, their roles are recognised as equally important because they are the ones who are going to advise the Magistrate based on their knowledge and experience in dealing with children. In other words, the court advisers are a component that must exist in a trial so that a properly instituted quorum is constituted. The court advisers are introduced in the Juvenile Justice System for a reason. The court shall make sure that the court advisers are called and present throughout the trial. The court in the case of Public Prosecutor v Ayasamy [1955] 1 MLJ 64 highlighted this point more than 60 years ago. The logic is very simple, how can court advisers offer proper advice without attending the trial? Thus, in this article, the writers will explore the importance of making sure that the court advisers are present in the Court For Children trials. At the same time, the writers will also explore if there has been any development in the role and functions of the court advisers in Malaysia post the decision in the case of Public Prosecutor v Ayasamy. The reason being, more than six decades after the said case, the same issue was raised in the High Court’s decision in the case of Pendakwa Raya v Mohd Zairul Iman Zainon [2018] MLJU 578.

The effect of the error in the fundamental procedures issued by the judicial officers

إنّ الشـــــــخص وحده لا يستطيع أن يفعل كل شيء، والقاضي لابد أن يستعين بأشخاص آخرين يكونوا معاونين له في اتمام عمله على أكمل وجه، وبدون أخطاء وضياع حقوق الناس، وهؤلاء الاشخاص الذين يستعين بهم القاضي هم أعوان القضاة، فالقاضي لا يقوم بمفرده بإدارة منظومة العدالة، وإنما يعاونه في ذلك اعوان القضاة، ويرتبط هؤلاء بالدعوى المدنية بمجموعــة مـن الحقــــوق والواجبـــــات، سواء اكان ذلــــك بصورة بحسب دور كل منهم، على أنّ اجادة هؤلاء لمهامهم بحيادية وإتقان تعد ضمانة حقيقة؛ لتحقيق حسن سير العدالة القضائية وانجازها بطريقة ميسرة، وأنّ من أهم ما يقوم به أعوان القضاة هو الأعمال الاجرائية التي تتعلق بالدعوى وما لها من دور كبير في انتظام اجراءات التقاضي و سير الدعوى في مسارها السليم، إلا أنّه لابد من صدور أخطاء من هؤلاء على مستوى عملهم، وبالتالي فأنّ عدم اتسام تلك الاجراءات بالصحة قد يؤدي إلى انحراف القضية عن مسارها الصحيح مما يترتب عليه سقوط حق أو بطلان الإجراءات، وذلك أنّ القاعدة القانونية الاجرائية قاعدة ملزمة فـأنّها تحتوي على جـزاءات اجرائية، وأنّ الخطأ الذي يؤدي إلى تعيب الاجراء القضائي يكون جزاءه البطلان

التحقيق والصعوبات التي تواجه جريمة الابتزاز الإلكتروني

The crime of electronic extortion is a difficult crime and is shrouded in mystery during the stages of its commission, especially since it is committed by people who have sufficient knowledge in the field of information technology. The perpetrator is also characterized by characteristics that differ from the rest of the perpetrators of traditional crimes. In addition to the development in the field of informatics which requires the use of advanced methods in the field of investigation and evidence, It also requires the presence of experts and specialists within the investigation team, the investigative judge and members of the judicial police who have sufficient experience to seize the data related to the crime and follow up on their source to identify the perpetrator and arrest him taking into account the recording and keeping of those procedures to constitute evidence and conviction against the perpetrators of crime. Therefore, the investigators in such crimes must be people who have full experience and knowledge in the field of information technology than the perpetrators of the crime of extortion. The aim of our research is to identify the investigation procedures and the appropriateness of those procedures to reduce and control all the difficulties facing the crime of electronic extortion. the procedures for investigating the crime taken by investigators and judicial officers is the second aim. To achieve the first aim, the researcher dealt with the investigation procedures starting from going to the crime scene to conducting an inspection and search. The second aim was achieved by dealing with the difficulties encountered in the investigation as the difficulties in international cooperation.

Analysis of the most unusual court decisions in the world practice in terms of the right to justice

The relevance of the research is to identify ineffective methods of administration of justice in the world judicial practice to ensure the effectiveness of the judicial system in Ukraine. The purpose of the research is to identify and analyse the most unusual court cases in different countries from the Middle Ages to the present day to determine the level of public access to justice as a guarantee of the protection of human rights and ensure the rule of law and equality of all before the law and the court. The methods used to explore the subject include: the dialectical method, formalisation method, cognitive method, Aristotelian method, hermeneutical method, logical and legal method, systemic method, structural and functional method, axiomatic method, methods of induction and deduction, methods of analysis and synthesis. The research establishes how accessible justice and law were to people in different eras. The specific features of court proceedings in the Middle Ages are determined. The most unusual cases that have become known in many countries of the world, including the “Stella Case” and the “Cuckoo Case”, are examined; the essence of the “Stella Award” phenomenon is covered; some curious cases in Ukraine and other countries of the world are explored. The author analyses several court cases of ancient times and cases that have been considered in modern court practice. The most unusual curious court cases where the accused were not at all human, and animals and objects are explored and described. The author examines unusual court cases in Ukraine. The provisions enshrined in this work are of practical value primarily for judicial officers and persons seeking judicial protection.

군사경찰의 범죄피해자보호 개선 연구

The purpose of this study is to suggest the need to strengthen the military police's investigative power for crimes that occur in military units and the direction of legislative and policy revision of the military police's role in protecting crime victims due to the incident. Recently, problems with the investigative power and jurisdiction of the Korean military police have been continuously raised both inside and outside the military, and there have been considerable internal improvement efforts, but it is pointed out that the system has not yet been sufficiently improved. Under the current law, frequent conflicts or inadequate institutional issues have been revealed in the military police investigation process, and these problems have emerged due to the acceleration of the military's civilization, so it is believed that human rights violations of crime victims will become serious. In particular, military police are in charge of investigating civilians with exceptions to most military personnel or military materials for general crimes, so the investigation procedures must be clearly based on laws and minimize possible abuse, but there are insufficient regulations to support them. In addition, the role of a special judicial police officer is also an increasingly important area, but domestic violence crimes and the protection of crime victims in the military unit have become important issues, and the law has been revised. According to the above-mentioned grounds, the enactment of relevant laws and institutional development necessary for the military police to perform their duties for domestic violence crimes (including dating crimes) and crime victims (including soldiers and military family victims) will fall within the scope of military police's important duties in the future. This study examined various related laws such as the Military Court Act and the Judicial Police Management Act, which are the legal basis for the exercise of the military police's investigative power, and derived matters pointed out by the National Human Rights Commission, the National Assembly, and the media regarding the actual effectiveness of the laws. In addition, in the application of various laws and regulations for investigation, military police and general police were compared and analyzed to analyze various disturbances that may cause problems and improvements to overcome them.

군사경찰의 범죄피해자보호 개선 연구

The purpose of this study is to suggest the need to strengthen the military police's investigative power for crimes that occur in military units and the direction of legislative and policy revision of the military police's role in protecting crime victims due to the incident. Recently, problems with the investigative power and jurisdiction of the Korean military police have been continuously raised both inside and outside the military, and there have been considerable internal improvement efforts, but it is pointed out that the system has not yet been sufficiently improved. Under the current law, frequent conflicts or inadequate institutional issues have been revealed in the military police investigation process, and these problems have emerged due to the acceleration of the military's civilization, so it is believed that human rights violations of crime victims will become serious. In particular, military police are in charge of investigating civilians with exceptions to most military personnel or military materials for general crimes, so the investigation procedures must be clearly based on laws and minimize possible abuse, but there are insufficient regulations to support them. In addition, the role of a special judicial police officer is also an increasingly important area, but domestic violence crimes and the protection of crime victims in the military unit have become important issues, and the law has been revised. According to the above-mentioned grounds, the enactment of relevant laws and institutional development necessary for the military police to perform their duties for domestic violence crimes (including dating crimes) and crime victims (including soldiers and military family victims) will fall within the scope of military police's important duties in the future. This study examined various related laws such as the Military Court Act and the Judicial Police Management Act, which are the legal basis for the exercise of the military police's investigative power, and derived matters pointed out by the National Human Rights Commission, the National Assembly, and the media regarding the actual effectiveness of the laws. In addition, in the application of various laws and regulations for investigation, military police and general police were compared and analyzed to analyze various disturbances that may cause problems and improvements to overcome them.

집합건물법의 법체계상 위치에 관한 관견(管見)

The Korean Collective Building Act, enacted in 1984, was drafted by private law professors with the helps of legally trained public officials; in Japan, there has been a widespread idea that the Japanese counterpart was necessary to implement urban planning law. However, recently released researches successfully came to refute this idea based on travaux préparatoires, which shows that the situations in two countries were alike: private law professors and judicial officials played a leading role from beginning to end; they primarily focused on the protection of buildings, not concerned with urban planning (II). In conclusion, some theses are summed up as follows: ① Collective Building Act belongs to one of enactments mentioned in the latter part of Art. 23 para. 1 of the Korean Constitution, which established a new institution ‘strata title’, a novelty of property. ② The entitlement needs a further justification, however, from the constitutional considerations, because of several innovations quite strange to traditional legal concepts. ③ In principle, other real estate statutes as lex specialis should be strictly and narrowly interpreted, in the same way as private law(lex generalis), to respect private autonomy (Ⅲ).

Funkcje oraz zadania samorządu zawodowego komorników sądowych

The professional self-government, as a component of the decentralised public authority, is an institution which derives its legitimacy from the supreme legal act, the Constitution of Poland. Its basic framework is set out in Article 17(1) of the Constitution, according to which: “By means of a statute, self-governments may be created within a profession in which the public repose confidence, and such self-governments shall concern themselves with the proper practice of such professions in accordance with, and for the purpose of protecting, the public interest”. The ratio legis of this regulation is the possibility of statutory entrustment of certain professional corporations with the performance of public tasks in authoritative forms appropriate for public administration. This study presents of the functions and tasks that the legislator has provided for the professional self-government of judicial officers. Currently, the provision regulating the tasks performed by the judicial officers’ self-government is Article 195 of the Act of 22 March 2018 on judicial officers, according to which the tasks of the judicial officers’ self-government include in particular: 1) supporting the administrative supervisory bodies in supervising the conscientious performance of service by judicial officers and the proper performance of duties by assessors and trainees, 2) participating in ensuring the conditions for the performance of the statutory tasks of judicial officers, 3) representing judicial officers and assessors, 4) the professional development of judicial officers and assessors, and participation in the training of trainees, 5) establishing and promoting the principles of professional ethics and ensuring their observance, 6) conducting research into the functioning of judicial enforcement. The authors analyse the normative material regulating the issue in question. Looking through the prism of theoretical concepts of professional self-government, they also assess the legitimacy of the solutions adopted by the legislator. Consequently, they make de lege lata remarks and de lege ferenda postulates.

Judicial Ethics: A Key Tenet to Legal Ethics

Judicial ethics are arguably one of the most important aspects of legal ethics Values of legal ethics such as decorum, dignity, courtesy, and rationality that were emphasized by the late but still foremost scholar of professional legal ethics, Deborah Rhode, readily apply to the judicial context.. Related to these values, judicial ethics ensures that three important attributes or three ‘Is’ characterise the judicial process and the conduct of judicial officers: independence, impartiality and integrity. Adherence to these three principles of judicial ethics is key in securing the administration of justice, professional discipline in the judiciary, and public confidence. This article therefore takes the view that the competence of judges not only includes their academic qualifications but their possession of qualities necessary to fulfil the three Is and other standards of ethical judicial conduct. Moving from this understanding, the article analyses how judicial ethics, as a derivation of legal ethics, shapes the role of judges and, further, how Kenya’s Judicial Service (Code of Conduct and Ethics) Regulations integrates established principles of judicial ethics. From this analysis, the author argues that judicial ethics are inseparable from judicial competence and that Kenya’s Judicial Service (Code of Conduct and Ethics) Regulations effectively reflect the necessary principles of judicial ethics. Thus, continued enforcement of the judicial Code of Conduct and Ethics is essential to safeguarding judicial ethics in the Kenyan judiciary.

A dog and his man

In 1634 the chief judicial officer of Leiden’s strict Counter-Remonstrant government, Willem de Bont, held an extravagant funeral for his pet dog Tyter. News of the event produced a flurry of satirical songs (by the persecuted Remonstrants) and poems (by Vondel and others), castigating the childless Bont for giving his dog a funeral normally reserved for a child of the elite. These satires illuminate aspects of the human-dog relationship amidst the theological-political turmoil of early seventeenth-century Leiden. The popular assumption that the Remonstrants hanged Tyter leads to a study of contemporary criminal prosecution of animals and humans alike, and a look at contradictions in the treatment of Leiden’s dogs. Visually, the serenity of Jan Miense Molenaer’s pendant paintings of the event belie the satires. Ironically, Bont thought of his dog as a fellow human but treated the Leiden Remonstrants like dogs, while many regarded Bont himself as a beast.

Culture, Strengths, and Risk: The Language of Pre-Sentence Reports in Indigenous Sentencing Courts and Mainstream Courts

Pre-sentence reports (PSRs) provide important information about an individual’s background and circumstances to assist judicial officers in the sentencing process. The present study analyzed PSRs for 63 Aboriginal and Torres Strait Islander people sentenced by either an Indigenous sentencing court or a mainstream court in the Australian State of Victoria. Using natural language processing techniques, our analyses revealed few differences between PSRs conducted for each court. However, PSRs were found to predominantly feature key words that are risk-based, with mainstream court PSRs more negatively worded than the Indigenous sentencing court’s PSRs. This may have been due to the inclusion of results from a risk and need assessment tool. Pro-social factors did comprise more than one third of extracted keywords, although the number of strength-based culture-related keywords, in particular, was low across PSRs in both courts. It is possible that courts may not be receiving all the information needed to promote individualized justice.

Aksjologia w zawodzie komornika sądowego

Axiology in the profession of a judicial enforcement officer The aim of the study is to analyse the regulations contained in the Act of Parliament on judicial enforcement officers along with the provisions of the Code of Ethics of Judicial Enforcement Officers in terms of axiology elements. Moreover, the aim of the publication is to pose a question for the purpose of judicial enforcement officer’s duties, understood as a profession of public trust, formulated precisely through the prism of axiology. The raised issues are therefore not only innovative, but also showing a different perspective that characterizes the particular legal profession.

Examen psychiatrique des personnes placées en garde à vue en France : une enquête nationale auprès d’un échantillon de psychiatres

ObjectiveAny French psychiatrist can be appointed by the district prosecutor or the judicial police officer to perform medical examination of people kept in police custody. After this examination, the doctor decides whether the person's state is compatible or not with detention in a police station. A medical certificate is attached to the case file. Regarding the high prevalence of psychiatric disorders among people kept in police custody and the large number of mentally ill people imprisoned without having been properly examined, this examination is of particular importance. However, it remains difficult and sometimes tricky. The main objective of this descriptive study is to evaluate knowledge of French psychiatrists about this examination, its goals and limits, and about how to produce a suitable medical certificate. The secondary objective is to identify the variables associated with a good knowledge of this examination. MethodsA questionnaire was submitted by e-mail to a sample of French psychiatrists from March to May 2021. It allowed us to collect data on their socio-demographic and professional characteristics. Then 12 questions were specially conceived to evaluate their knowledge about the psychiatric examination of people kept in custody. Finally, participants were also questioned about their experience in the area of medical intervention in police custody and how they felt confident about performing such an examination. Based on their responses to the 12 knowledge questions, participants have been separated into two groups (“high level of knowledge” versus “low level of knowledge”). The two groups’ characteristics have been compared through a bivariate then a multivariate analysis. Results183 psychiatrists completed the questionnaire (50.8% women and 49.2% men; mean age 47.6; mean experience 18.1 years). The legal frame of the examination in police custody was well known by the participants (>70% good answers), as well as the rules of confidentiality (>80% good answers). By contrast, only 59% of participants knew that the determination of the person's state compatibility with detention in a police station was the main objective of this examination. Nearly all participants knew that it is possible to decide involuntary hospitalizations of people kept in custody (93%), but a less proportion of them knew that all means of hospitalizations, voluntary and involuntary, are possible if needed. Few participants knew the addresses (or even probably the existence) of the second page of the document they need to complete after the examination (the first page consisting in the medical certificate transmitted to the police and the second page constituting the confidential medical record). Having received a specific teaching about forensic psychiatry was the only variable significantly associated with good knowledge of the specificities of the examination in police custody (OR=2.90; P=0.006). The variable significantly associated with poor knowledge was the doctor's experience (OR=0.94; P<0.001). ConclusionThe rules of good practice regarding psychiatric examination of people kept in police custody are not fully known by French psychiatrists. According to the results of our survey (even if these results cannot be generalized due to a small sample size), it appears essential to provide specific education about forensic psychiatry, not only to young doctors but also to all doctors throughout their careers.

Ruinous Judicial activism

eturn to office or removal of a public or state officer when charged under the Anti-Corruption and Economic Crimes Act (ACECA) has become and remains one of the active questions in Kenyan courts after renewed energies on the part of the government to ‘fight graft’. This question has generated debates whose terms seem to be very different following a decision that was issued by Justice Mumbi Ngugi over a revision application by the Governor of Samburu County, Moses Kasaine Lenolkulal in a casehe had been charged. This article is an attempt at critically analysing the said ruling which has been hailed not only as being progressive but alsoas showing that Kenyan courts are treating corruption with the phobia itdeserves. The analysis demonstrates that despite the noble ideas behind judicial support for war against graft, judicial officers need to be more careful not to venture into what can be described as ruinous activism as the Moses Kasaine Lenolkulal ruling has now revealed.

Review: Performing Power in Zimbabwe: Politics, Law, and the Courts since 2000, by Susanne Verheul

Review: <i>Performing Power in Zimbabwe: Politics, Law, and the Courts since 2000</i>, by Susanne Verheul

‘검사의 수사개시 범죄 범위에 관한 규정’의 적법성 검토

Article 4 of the Prosecutor’s Office Act of 2020 provided that a prosecutor may commence an investigation for significant crimes prescribed by Presidential Decree, such as corruption, economic crimes, crimes of public officials, election crimes, defense industry crimes, and catastrophes. The National Assembly revised the article in May of 2022 providing that a prosecutor may commence an investigation for significant crimes prescribed by Presidential Decree, such as corruption and economic crimes, which was revised to reduce the scope of crime investigation initiated by a prosecutor. Thereafter, Ministry of Justice published Amendment to Presidential Decree according to the Prosecutor’s Office Act of 2022.&#x0D; This article reviewed on the legality of the amendment and concluded as follows. The revision unjustifiably extended the scope of crimes that prosecutors may commence by adding such crimes as were excluded from the list in the Act of 2022, obstruction of justice or the crimes must be reported to a prosecutor by a related authority under individual statutes. This paper also argues that the definition of ‘directly related crimes’ referred to a prosecutor by a judicial police officer is unreasonably excluded, which may include all the crimes that a prosecutor may see proper to investigate without a relevant guideline for the prosecutor to follow. Therefore, this paper concludes that the amendment deviates limit of delegated legislation of the Prosecutor’s Office Act of 2022.

Singlewomen in the Late Medieval Mediterranean

Abstract This article challenges a long-entrenched model of two discrete marital regimes in northern and southern Europe. Demographer John Hajnal argued in 1965 that a distinctive north-western European Marriage Pattern emerged post-1700 when a large population of unmarried men and women married in their early to late twenties and formed their own household rather than join a multi-generational household. The corollary to this argument is that women in southern Europe married young and universally, and thus rarely entered into domestic service. Medievalists have embraced and repeated this paradigm, shaping assumptions about the Mediterranean as less developed or ‘less European’ than the north and ignoring the experience of women enslaved throughout the region. Notaries and judicial officials in medieval Barcelona, Valencia, Mallorca, Marseille, Palermo, Venice, Famagusta and Crete recognized singlewomen owning property, buying, selling and manumitting enslaved people, appointing procurators, committing crimes and making wills. We reintegrate the experiences of singlewomen, both enslaved and free, into the daily life of the medieval Mediterranean. Understanding how these women made community, survived economically and participated in the legal and notarial cultures of their cities reframes our understanding of women’s options outside marriage in the medieval past.

Mobile Forensics: Repeatable and Non-Repeatable Technical Assessments.

This paper presents several scenarios where digital evidence can be collected from mobile devices, their legal value keeping untouched. The paper describes a robust methodology for mobile forensics developed through on-field experiences directly gained by the authors over the last 10 years and many real court cases. The results show that mobile forensics, digital analysis of smartphone Android or iOS can be obtained in two ways: on the one hand, data extraction must follow the best practice of the repeatability procedure; on the other hand, the extraction of the data must follow the best practice of the non-repeatability procedure. The laboratory study of the two methods for extracting digital data from mobile phones, for use as evidence in court trials, has shown that the same evidence can be obtained even when the procedure of unavailability of file mining activities has been adopted. Indeed, thanks to laboratory tests, the existence of multiple files frequently and continuously subjected to changes generated by the presence of several hashes found at forensic extractions conducted in very short moments of time (sometimes not exceeding 15 min) has been proven. If, on the other hand, the examination of a device is entrusted to a judicial police officer in order to conduct a forensic analysis to acquire data produced and managed by the user (such as images, audio, video, documents, SMS, MMS, chat conversations, address book content, etc.) we have sufficient grounds to believe that such examination can be organized according to the system of repeatable technical assessments.

A SOCIOLOGICAL REVIEW OF LONG PROCEEDINGS IN THE COURTS FROM THE POINT OF VIEW OF JUDICIAL OFFICERS AND ADVOCATES

From the perspective of judicial officers and advocates, this study investigated the factors and impacts of long proceedings in the courts within a sociological setting. Phenomenology was utilized as a research design and the thematic method was used for data analysis. Data were collected on a semi-structured questionnaire through face-to-face interviews with 20 judicial officers and advocates. Eight themes were derived from interviews of the participants. Weak economic position, mutual understanding in terms of acquaintance, exercising influences, using relationships, systematic and inborn corruption, benefits in terms of money, the social position of parties, the experience of a lawyer, political and media reported cases identified as factors of delays. Whereas, long proceedings in the courts are considered negatively and it gives birth to negative perception and results in damaging the expectations of the public about the courts. Social disorder, anger, losses of time and money, and promotion of customary methods of dispute resolution were revealed as impacts of delayed proceedings.

To the Question of Key Features of Court Proceedings in the Old Russian State

The article reflects the author’s approach to summarizing and identifying characteristic features of court organization and proceedings in the Old Russian state. In addition to the characteristic features of court organization and proceedings in the Old Russian State, the author also discusses the theories of organizing the judiciary power in Russian tribal principalities of law historian D.Ya. Samokvasov, and analyzes the establishment of the Old Russian court system. Several types of courts are discussed: a Princely court, a church court, a communal court, a manorial court; judicial offices, procedural status of some proceedings’ participants, their functions and roles in the administration of justice are described. The author also examines the problematic issue of the participation of the community in the administration of justice, singles out the stages of the court process according to “Kratkaya Pravda”, as well as the role of the Princely court in the Old Russian state.