Judicial Process Research Articles

Rule of Law and the Criteria for Appointment of Judges: A Case for Judicial Virtues

AbstractThis article seeks to develop a case for a virtue-oriented (or aretaic) approach to the criteria for appointing judges. It will argue for the usefulness of judicial virtue by showing its theoretical relevance for describing and explaining the criteria for selecting judicial candidates and claiming its advantage over the currently used syncretic sets of criteria used in European jurisdictions. The analysis will explore the connection between the criteria of judicial selection and the Rule of Law. If the Rule of Law is to be understood at its core as a process of tempering the arbitrariness of power, it requires certain personality traits of character on the part of the judiciary. This article argues that virtue is a context-relevant concept well-entrenched in legal culture that amounts to a personality aspect of the Rule of Law. In support of this point, the article discusses the two possible methods of establishing judicial virtues – using a targeted approach to virtue and an Aristotelian-inspired method of uncovering a catalogue of judicial virtues from the insights into the legal culture. The article concludes with policy-oriented advice on incorporating a virtue-centred approach to judicial selection processes.

Law Enforcement against Children as Perpetrators of the Crime of Sexual Abuse in the Study of Human Rights

Law enforcement against children as perpetrators of sexual abuse is a complex problem, especially in the study of human rights. This paper aims to discuss the efforts to balance between law enforcement and human rights protection for children as perpetrators of sexual abuse. The research in this paper uses descriptive analytical research specifications with a normative juridical approach method The results of the paper show that law enforcement on this issue is dominated by imprisonment sanctions for children and the protection of human rights is only limited while the child is undergoing the judicial process and criminal period. Meanwhile, the protection of children's rights after serving the criminal period has not been regulated in the law so that it needs to be reviewed through the reform of the Law on Juvenile Justice System. A balance between law enforcement and human rights protection with a progressive legal approach oriented towards the best interests of children needs to be carried out in order to create a fair juvenile justice system for children as perpetrators and victims.

Discourse Analysis of Rape News in the Islamic Boarding School Environment Reporting of Rape by Herry Wirawan on Kompas.com and Detik.com

Abstract Media is a product of ideology and has a significant role in public understanding of certain events. Online media such as Kompas.com and Detik.com are popular media today, They publish about rape case committed by Herry Wirawan. The purpose of this research is to analyze the online media Kompas.com and Detik.com related to the coverage of rape cases from the perspective of social construction. The research method used is library qualitative with Zhong Dang Theory of Framming and analytical methods in the form of data reduction, data classification, and data analysis. the results of his research show that Detik.com seeks to encourage the judicial process so that Herry Wirawan is given severe punishment, especially castration punishment, while Kompas.com constructs Herry Wirawan's behavior as a depraved crime that should be reported to the public, so that the community oversees the judicial process so that it runs objectively and criticizes the police regarding the case was not made public from the start.

Психолого-криминалистические особенности личности несовершеннолетних обвиняемых и их роль в расследовании преступлений

Understanding the psychological and age characteristics of the personality of juvenile offenders allows judicial and investigative authorities to conduct effective investigative actions and judicial proceedings against juvenile participants in criminal events, use appropriate tactical and forensic techniques in the process of interacting with them both as part of the investigation of crimes and their prevention.

Публично-правовые основы цифровой трансформации судебной системы «Умный суд» (опыт Китая)

The article discusses legal issues of the influence of digital technologies on the modern judicial system. A new stage in the reform of the judiciary has been outlined, which has received a single name — Digital Justice. Similar processes are taking place abroad, which determines the relevance of comparative legal research and appeal to the experience of the People’s Republic of China. The digital transformation of the PRC judicial system is taking place under the auspices of the “Smart Court” concept. The positive results of the implementation of this trend are highlighted: the possibility of intellectual analysis of judicial practice, the creation of special algorithms for the preparation of draft court decisions, the establishment of an Internet court, the approval of the rules of asynchronous judicial proceedings, the development of digital products based on artificial intelligence specifically for the judiciary. The principles of using artificial intelligence in the judicial sphere are presented. The necessity of developing and adopting a national strategy for the digital transformation of judicial authorities in the Russian Federation is shown.

Мотивированность судебного решения

The work sets out the author’s vision of the process of the court making a decision in the case under consideration that corresponds to the actual circumstances of the case. A brief analysis of the content of the concept of “motivation of a decision” is given. The author comes to the conclusion that the motivation of a court decision and its reliability are correlated with each other as a process and the result of knowledge of the circumstances that are the subject of judicial proceedings.

On the functions of the prosecutor in criminal proceedings

The article is devoted to the study of the functions of the prosecutor in the judicial stages of criminal proceedings, and provides an analysis of statistical data from the General Prosecutor’s Office of the Russian Federation on the participation of prosecutors in criminal proceedings. The results obtained allow us to assert that the prosecutor performs two functions during criminal proceedings: the criminal procedural function of prosecution and the constitutional and legal function of supervision over compliance with the Constitution of the Russian Federation and the execution of laws. At the same time, at the stages of trial (in the court of first instance) and appeal proceedings, when the principle of adversarial parties is fully implemented, the prosecutor supports the state prosecution, thereby performing the procedural function of the prosecution. In the remaining stages of judicial proceedings, the prosecutor exercises the function of supervising compliance with the law. The conclusion is formulated that the proposed approach requires a rethinking of the role of the prosecutor in criminal proceedings from the position of the constitutional and legal status of the Russian prosecutor’s office, as well as amendments to the norms of criminal procedure law.

Standard-essential patent legal protection in China’s telecommunication industry: an international trade and economy perspective

ABSTRACT Standard-essential patents (SEPs) are specific types of patents that protect the technology incorporated in a standard. China has one of the world’s largest telecommunication markets, and its legal policies and practices regarding SEP protection profoundly influence the competitive environment of the Chinese telecommunication market, international economic and trade cooperation, and global telecommunication technology innovation. Recently, frequent disputes in the communication sector surrounding SEPs in China’s judicial practice revolved around the fair, reasonable, and non-discriminatory (FRAND) principles, embodying three key issues: patent hold-up, licence fee rates, and anti-suit injunction. Regarding the patent hold-up and hold-out of SEPs in the telecommunication industry, a balance of interests between SEP holders and implementers in licence negotiations should be achieved under the guidance of the principles of FRAND from the perspective of legislation, administrative management, and the judiciary. Concerning licence fee rates, billing benchmarks should be judged based on individual cases, utilizing a comprehensive approach combining comparable licence agreement methods and top-down methods to determine a fair and reasonable licencing fee acceptable to all parties. In the conflict between anti-suit and anti–anti-suit injunctions, improving the anti-suit injunction rules and international cooperation mechanisms is necessary to achieve fair and non-discriminatory judicial processes and judgment results.

Towards an efficient judiciary in Moldova: Lessons from EU reform initiatives

This study explores the multifaceted challenges impeding the functionality of Moldova’s judicial system, emphasizing the necessity of comprehensive reform measures. By conducting a qualitative analysis of European Union judicial reforms, this research aims to identify effective strategies that could be adapted to the Moldovan context. Key areas of focus include the development of sustainable financing models, enhancement of training programs for judicial professionals, and the integration of digital technologies into judicial processes. The paper proposes a set of reforms tailored to Moldova’s unique socioeconomic and cultural landscape, with the goal of improving judicial efficiency, transparency, and adaptability. Through this analysis, the paper contributes to the broader discourse on judicial reform in transitional countries, offering insights into the potential for systemic improvements within Moldova’s judiciary.

Romanul judiciar. Către un nou subgen al romanului istoric românesc

The lifespan and popularity of a subgenre are determined by the inventiveness with which novelists develop and innovate the standard formulas. The judicial novel emerges as an extension of the popularity of the outlaw novel, adding a technical dimension to the misdeeds committed by wrongdoers. The outlaw and judicial novels are anthropomorphized subgenres that set in motion symbolic models, with a central figure dominating the entire course of events. The judicial novel reconfigures the perspective of naturalism, transforming the social milieu into a triggering factor for reprehensible acts. Shocking acts, such as crimes or suicides, and their mysterious circumstances, are analyzed from multiple angles, akin to using a set of parallel mirrors, while the brisk steps of investigations are fascinatingly reconstructed within the eloquent phrases of the novelists. One of the central ideas that the judicial novel seeks to develop is the sacrifice as a social practice, whether symbolic, articulated in the imposition of precarious living conditions leading to extreme gestures. Spatiality and temporality constitute the central pillars that compose the dramatic scenes of the Romanian judicial novel. Crimes are plotted and committed in the moonlight, in neighborhoods or on winding streets. The schematism of gloomy settings and the rudimentary nature of character profiles are countered by allusions to an undefined darkness, the contours of which elude discernment. The judicial subgenre utilizes conventions from the detective novel formula, involving the exaggeration of a cause-and-effect relationship as inevitable and the conquest of a reassuring imaginary, complementary to the moral imperatives discussed by Romanian novelists determined to rehabilitate the reputation of the genre through fictional digressions on morality. In its dimension of historical crime fiction, the Romanian judicial novel not only accentuates its documentary aspect, showing how the institutions responsible for investigations and judicial processes function but also the expansiveness of historicizing interpretations of the analyzed bloody events. Within the context of a dynamically structured novel distinguished by thematic configuration and ideological significance, the incorporation of illustrations transcends mere decorative intent. The judicial novel strategically incorporates illustrations as a highly effective extratextual approach. This not only disrupts the linear narrative trajectory and heightens suspense but also concurrently bestows substance upon the ethereal images adeptly invoked by the literary text.

Developments of the Romanian State and Law in the Period of Communism

The establishment of the communist regime in Romania began in the immediate aftermath of World War II, with the seizure of power by the Romanian Communist Party (PCR) and the elimination of political opposition. The communist regime imposed a totalitarian ideology based on full state control over all aspects of social, economic and political life. During the communist period, the Romanian state was transformed into a totalitarian state with an authoritarian and centralized regime. Political power was concentrated in the hands of the Communist Party and the state became an instrument of its control. State institutions were subordinated to the party, and the separation of powers in the state was abolished in favour of an executive power dominated by Communist leaders. As far as the legal system is concerned, the communist period brought significant changes in legislation and judicial procedures. The law was used as a tool to control and suppress political opposition and all forms of dissent. Judicial proceedings were politicised and the independence of the judiciary was undermined in favour of the political interests of the communist regime.

Social Reintegration after the Implementation of Restorative Justice in the Indonesian Criminal Code

The current criminal code has been in force in Indonesia since 1918. Indonesia formulated criminal law reform in 1963 and in 2023, a law on the national criminal code was issued. The spirit of the Indonesian criminal code is reformative, progressive, and responsive to changes to the law. One of the strengths of criminal law is regulating criminal law from the perspective and achievement of justice to repair and restore the situation after the event and judicial process known as restorative justice. The desire to strengthen restorative justice programs takes a long time and is complicated. This research aims to analyze the development of the concept of social reintegration through the application of restorative justice in the criminal justice process. This research was conducted qualitatively using secondary data and doctrinal legal study methods. The results showed that changes in criminal law arrangements caused opinion differences since restorative programs are widely used as a substitute for traditional and retributive approaches. The application of restorative justice in national criminal law must be implemented. Social reintegration in the implementation of restorative justice as regulated in the Criminal Code can be successful through commitment and collaboration between the community, government and law enforcement officials

Application of statutes of limitations in conditions of martial law

The article is dedicated to highlighting the legal issue of applying statutes of limitations in conditions of martial law, which has been in effect in our country since February 24, 2022. The attention was focused on the fact that problematic issues regarding the application of statutes of limitations arose earlier, during the Covid-19 pandemic, when quarantine restrictions were introduced, and the legislature established norms regarding the extension of statutes of limitations. The authors examined the importance of the existence of the statute of limitations institution in the context of the right to judicial protection. It was determined that the statute of limitations has significant importance for participants in judicial proceedings since for the plaintiff, it serves as a legislatively defined opportunity to seek protection within a certain period to defend their rights and freedoms, while for the defendant, it is a tool for protecting themselves from civil liability by applying statutes of limitations, which is an independent ground for denying the claim. The issue of suspending the statute of limitations in the context of legislative norms in the Civil Code of Ukraine was also examined. The authors noted that the term "extension of statutes of limitations” used by the legislature during the quarantine and martial law period is an unsuccessful formulation and in some respects contradicts the norms of legislation. The Civil Code of Ukraine provides that the statute of limitations can be extended by agreement of the parties or suspended in case of certain circumstances. Additionally, the authors examined the issue of the appropriateness of suspending statutes of limitations during martial law. It was determined that as of January 30, 2024, the statute of limitations established by the Civil Code of Ukraine is fully suspended for the duration of martial law. However, in the authors' opinion, the actions of legislators, which manifested in the mandatory suspension of statutes of limitations, violate the right to judicial protection and place one party in a better position compared to the other. The authors proposed changing the approach to statutes of limitations by not suspending them but providing the plaintiff with the opportunity, in case the defendant claims the application of statutes of limitations, to present convincing arguments to the court that they missed the specified period for valid reasons, rather than just due to the existence of martial law.

W obliczu klęski Prus – o działaniach władz guberni litewskich na przełomie lat 1806–1807

In the autumn of 1806, in view of the defeat of Prussia in the clash with France and the approach of Napoleon’s army to the borders of Russia, the Russian authorities became concerned about the loyalty of their Polish subjects. The authorities of the Lithuanian governorates took preventive measures to preclude an uprising movement and preserve public peace. In particular, attempts were made to seal the border. More careful attention was paid to the movement of people, and care was taken to ensure that travellers did not bring anti-government writings into Russia. Intelligence activities were intensified to monitor the disposition of the population. Emperor Alexander I ordered that any insurrectionary uprising be vigorously suppressed by the harshest means, including the use of the army. At the same time, the authorities tried to avoid anything that could fuel popular discontent. By the Emperor’s decision, the use of ukases in the courts, which, in the opinion of the Lithuanian nobility, hindered the conduct of judicial proceedings, was stopped. Attempts were made to introduce strict discipline in military units to prevent abuse of the civilian population. A police force was put on alert to put suspicious people arriving from abroad under surveillance. Signals of contact between Lithuanian residents and the French army were investigated.

The Issue of Execution Process in Civil Procedure Law in Indonesia

That a judicial process is a way to resolve issues that arise in society. A good judicial process will promote the creation of justice in society. However, the fact is that not all judicial processes can be carried out to create justice in society, such as when a court decision cannot be enforced or executed, then the judicial process is considered incapable of creating a sense of justice for the community. This study will discuss the issues of execution process in civil procedural law in Indonesia. The research method used is normative juridical. The research concludes that successful execution terminates the series of civil case resolutions. However, obstacles that occur are technical obstacles such as direction of the crowd at the execution site, and substantive obstacles in the decision, namely the decision does not clearly detail the object and procedure of execution.

Administrative Penalties for Building Violations in The Saudi System

General administrative penalties are a category of sanctions that have recently emerged to address certain offenses that do not merit criminal penalties due to their lesser severity and gravity in the view of society. Instead, these offenses are adequately addressed with a general administrative penalty imposed by administrative authorities without recourse to judicial proceedings. Within the context of construction-related infractions, Saudi law has established fines and demolitions as administrative penalties that are imposed by authorities responsible for overseeing and monitoring construction activities.

The Ten-Year Revolution

Abstract This article reviews the evolution of the role of civil society documentation efforts in international justice proceedings since 2013 circa. It is written from my personal perspective by virtue of my involvement in a series of initiatives aimed to strengthen civil society’s (as well as other international justice actors’) documentation efforts through the collection of standards and best practices, which the essay also discusses. In particular, it reviews the process and challenges of setting forth the first comprehensive guidance and set of best practices for civil society documentation with the Public International Law and Policy Group’s ‘Handbook on Civil Society Documentation of Serious Human Rights Violations’. It argues that civil society documentation efforts have undergone a revolution within the field: from the margins to the very heart of international judicial proceedings upholding accountability for international crimes. This revolution was, in part, rendered possible by a changing documentation landscape and the proliferation of documentation resources and capabilities now readily available to the civil society. After reviewing the current state of play with respect to documentary efforts and documentation best practices, which I situate within the context of a broader evolution of the international justice ‘ecosystem’, the article addresses some ongoing challenges in documentation and areas that would benefit of further strengthening in the future.

Judicial lawmaking: a conceptual exploration

The work aims to analyse the role of judicial lawmaking in the legal system of Ukraine and its impact on legal development. The study examines the extent of judicial authority in creating new legal norms, especially in comparison to the legislative branch. The methodological basis of the study includes a comprehensive review of relevant legal literature, an analysis of Ukrainian legal provisions related to judicial lawmaking, and an examination of judicial decisions that have contributed to legal development. The results of the study underscore the nuanced role of Ukraine’s courts in the legal landscape. While Ukrainian courts face limitations in directly creating new legal norms, the research reveals their substantial impact on legal evolution through judicial interpretation and the establishment of precedents. One key finding is the significant influence of judicial decisions on shaping legal practice in Ukraine. Through their interpretations of existing laws and legal principles, courts contribute significantly to the development of legal norms and standards. This process not only clarifies legal ambiguities but also ensures consistency and coherence in legal principles applied in various judicial proceedings. The study also emphasizes the importance of precedents set by Ukrainian courts. By establishing precedents, courts provide guidance for future legal cases and contribute to the predictability and stability of the legal system. This aspect is crucial for legal practitioners, scholars, and the public in understanding the application of laws and legal principles in different contexts. Conclusions drawn from the study emphasize that Ukraine has a legal system where the legislative branch plays a predominant role in shaping and changing legal norms. The courts in Ukraine have limited authority in creating new norms, as their main task is to apply and interpret existing legislation to specific situations that arise in society. However, it should be noted that courts can influence legal development through judicial interpretation and establishing precedents. When a court decides on an issue that does not have a clear solution in the law, it can establish a new precedent that can then be used for similar cases in the future. This contributes to the development of legal practice and the establishment of stable and consistent principles of judicial decision-making. Therefore, although courts in Ukraine do not have as significant an impact on law formation as the legislative branch, they can still contribute to the development of the legal system through judicial interpretation and establishing precedents.

An Implementation of Blockchain Technology in Forensic Evidence Management

The importance of crime forensic data in the criminal justice system is paramount. However, traditional methods of storing this sensitive information have been plagued by issues such as the risk of tampering, human error, and cyber-attacks. This paper proposes a ground breaking solution that leverages Block chain technology to create a tamper-sproof, decentralized repository for crime forensic data. Unlike existing techniques, which often rely on manual documentation or centralized servers, the proposed block chain-based system offers inherent data integrity, auditability, and security features. By shifting to a decentralized model, we not only reduce the risk of unauthorized alterations but also facilitate a more transparent and trustworthy environment for all stakeholders involved in the judicial process. The paper delves into the architectural considerations, security features, and potential challenges associated with implementing this blockchain-based system. Preliminary results indicate that this approach could significantly enhance the credibility and reliability of crime forensic data, thereby contributing to a more just and effective criminal justice system

The curator as a protective participant of the minor in contentious divorce proceedings

In Ecuador, within a contentious divorce judicial process, in accordance with the criteria of the National Court of Justice and with the same adjective norm, the situation of minor children, born within the marriage, must be resolved in a mandatory manner. which is to be dissolved. In this sense, Ecuadorian legislation has determined that, in judicial processes that address the interests and rights of children and adolescents, it is fundamental and necessary that a curator ad litem be appointed, so that he is the one who watches over their rights. The appointment of a curator ad litem has been specifically considered in resolution No. 10-2016 of the National Court of Justice, which even regulates the procedure to be followed for their correct appointment, since within the adjective regulations they do not there is a specific and clear budget regarding the subject. However, the fundamental presupposition that must exist is that the rights of children and adolescents cannot be violated and within the judicial processes that the interests of this social group are ventilated, it is necessary to guarantee their rights. Through the present investigation, the importance of the figure of the curator ad litem will be determined, within the judicial processes of divorce on grounds. For which a qualitative methodology has been used, and the use of different methods of this, such as the synthetic analytical method and the deductive method, for when the intrinsic characteristics of the research problem were analyzed, analyzing causes and effects, to from a general premise, one will arrive at particular premises.