Court's Jurisprudence Research Articles

Roma vulnerability before the European Court of Human Rights: Towards a structural account

It is well-recognised in human rights law and discourse that the Roma community is one of the most ‘vulnerable’ groups in Europe today, but what remains less developed is why and how the Roma are recognised as vulnerable, and what ‘Roma vulnerability’ means. This article posits that a structural account of Roma vulnerability may help in answering these questions. Such a structural account captures the vulnerability of Roma in the past and the present, as taking economic and cultural forms, spread across laws, policies, and actions, and fundamentally linked to the role of the State. The European Court of Human Rights (ECtHR) is, however, yet to acknowledge the structural nature of Roma vulnerability. Without such a structural engagement, there is a risk that human rights violations committed by the State will go unaddressed. The article thus seeks to introduce this structural account in the Court's jurisprudence to better capture the nature, causes, and extent of the vulnerability experienced by the Roma community.

Constitutional Identity Between Riga and Strasbourg: The Courts’ Dialogue Developing Latvian Constitutional Law

The article provides insight into the recent development of the concept of constitutional identity in the Latvian legal system. The authors mainly focus on the dialogue between the national highest courts, especially the Constitutional Court, and the European Court of Human Rights and the Court of Justice of the European Union, concerning the concept of constitutional identity. In recent years, both supranational courts have dealt with cases involving various aspects of Latvia’s constitutional identity and the respected constitutional values, norms, and principles that define it, as well as the relevant jurisprudence of the national highest courts. The case study of Latvia demonstrates that it is possible to guarantee a harmonious approach to implementing constitutional identity in light of the state’s international obligations as a member of the European Union and the Convention on Human Rights.

Harmonising liability: exploring carrier responsibilities in transportation contracts and their application to autonomous vehicle services under the UAE Law

ABSTRACT This article introduces the challenges presented in establishing governance of autonomous vehicles, dealing with questions of liability, where domestic law needs to cohere with international transport conventions, Islamic jurisprudence, Supreme Court jurisprudence, and technical safety standards. The primary objective of the article is to assess the applicability of established legal norms governing carrier liability in traditional road transport contracts in the United Arab Emirates. These legal tenets, rooted in Islamic jurisprudence and drawn from historical sources such as the ‘Al-Ahkam Al-Adliya Journal,’ constitute the foundation of civil law in numerous Arab countries, including the Arab Gulf States, Egypt, Jordan, Syria, and others. Melding legal and technical perspectives, this study provides legal insights for judges, arbitrators, and legal practitioners, and offers solutions to the liability challenges that may arise when autonomous vehicles begin operating on UAE streets or any other Arab country.

Legal Reconstruction of Empirical Juridical Analysis of Unilated Determination of Defense (Study of Pontianak District Court Decision Number 51/Pdt.G/2021/PN Ptk)

Decision case number 51/Pdt.G/2021/Pn Ptk contains a legal problem, namely the unilateral determination of default and the legal consequences (the application for the sale of collateral was also carried out unilaterally). This research basically aims to find out the legality of unilateral determination of default in positive law in Indonesia and the legal construction of Pontianak State Decision No. 51/Pdt.G/2021/Pn Ptk in terms of the theory of legal certainty. This research has a normative juridical character, with a statutory approach and a case approach. Legal materials were obtained from primary legal sources (legislation and decisions) as well as secondary legal materials, namely library sources such as books and journals. The results of this research: The legality of unilateral determination of default in positive law in Indonesia refers to the Supreme Court (MA) Jurisprudence No. 186 K/Sip/1959 and based on the jurisprudence of the Republic of Indonesia Supreme Court Decision No. 852 /K/Sip/1972, in Indonesian law, it is not legal/legitimate/legitimate to carry out unilateral acts of default without a prior summons. The legal construction of the Pontianak District Decision No. 51/pdt.g/2021/pn PTK is viewed from the theory of legal certainty, namely that the judge must grant petitum number 3 "stating that the Defendant's decision stating that the Plaintiff is a bad debt debtor is an unlawful act and cancels the entire series of consequences of the decision. Unilateral default, namely making a Sales Request unilaterally. Because in the theory of legal certainty, compliance or implementation of legal sources (jurisprudence) is a concrete form of legal certainty.

The problem of overpayment of tax in the case of transferof property or other right to property for tax arrears

The question of the admissibility of the application of the provisions on the overpayment of tax in the case ofa transfer of property or another property right against a tax arrears that turned out to be non-existent or existingto a lesser extent than assumed is the subject of divergent jurisprudence of administrative courts and statementsof doctrine. The article analyses the recent line of jurisprudence in favour of the application of the said provisions.It discusses the weaknesses of the argumentation contained in the justifications of the judgments and the consequencesof the position presented therein. The author advocates the view that the non-existence of a tax arrearsin the assumed amount results in the collapse of the causality (cause) of a contract concluded pursuant to Article66 of the Act of 29 August 1997. - Tax Ordinance, and as a result, in principle, the invalidity of the made transferof property or right. For this reason, in his opinion, there are no grounds for the application of the provisions onoverpayment of tax.

Suspension of Local Government Bodies and Establishment of Receivership During Martial Law

The subject of the article is the analysis of legal provisions regulating the supervisory measure, which is the suspension of the bodies of a local government unit and the establishment of receivership in their place during martial law. The aim is to discuss the procedure for its application and the premises justifying supervisory interference, determining its legal nature and comparing it with similar regulations in Polish law. Considerations in this regard are preceded by comments on constitutionally defined states of emergency, including martial law, in which the title measure is optionally applicable. In the context of martial law, the procedure for its introduction was described and its legal assessment was made. The analysis also covers the principles of operation of public authorities during martial law, including the admissibility of authoritative interference in their organization and functioning, which is useful in explaining the specificity of legal regulations in the examined area. To achieve the goals of the study, the dogmatic-legal method was used. It involves the analysis and interpretation of the texts of legal acts. To the extent required, the article also takes into account administrative court jurisprudence.

GUARDA COMPARTILHADA NOS CASOS VIOLÊNCIA DOMÉSTICA

The article aims to analyze the feasibility and implications of shared custody in situations of domestic violence, addressing the relevant legislation and doctrine on the subject. Firstly, it is essential to define and understand domestic violence, its manifestations and the applicable legislation, with emphasis on the Maria da Penha Law (Law 11,340/2006), which seeks to protect women who are victims of violence in the domestic environment. Furthermore, Law 8,069/1990 (Child and Adolescent Statute) is analyzed to understand the protection of minors in contexts of violence. The study highlights that, although shared custody is generally promoted to ensure the equal participation of both parents in their children’s lives, its application in cases of domestic violence can be problematic. The need to protect the woman and children from continuous contact with the aggressor makes shared custody unfeasible in most cases. The article also analyzes the jurisprudence and decisions of Brazilian courts, which often opt for unilateral custody to guarantee the best interests of the child and adolescent. Finally, the article proposes the need for a careful and careful assessment of each case, with continuous monitoring of families affected by domestic violence, to guarantee the safety of victims and the well-being of minors. The creation of public policies that take into account the complexity of these cases is advocated, promoting a balance between the protection of the vulnerable and the right to family life.

Rights and Position of Adopted Children According to KHI and Common LAW

In Indonesia, three inheritance law systems apply namely civil, Islamic, and customary inheritance law. These three legal systems are implemented because there is no national inheritance law that can regulate all Indonesian people. This study aims to explain the position and inheritance rights of adopted children in the view of the Compilation of Islamic Law (KHI) and customary law. This research is descriptive normative legal research. Considering that the object of this study is the issue of the position and inheritance rights of adopted children as seen from Islamic inheritance law and customary law (jurisprudence), this type of research uses a normative juridical approach with a library research pattern. The research results showed that according to KHI, adopted children are not recognized as heirs of their adoptive parents, because the main principle of Islamic inheritance is a blood relationship. Meanwhile, according to Supreme Court jurisprudence, adopted children are equated with biological children and are considered capable of inheriting the assets of their adoptive parents.

The role of Turkish administrative courts in developing jurisprudence on refugee rights: review of the judgments of the administrative courts from 2014 to 2021

ABSTRACT Turkish administrative courts have a unique role in developing jurisprudence after the adoption of the Law on Foreigners and International Protection in 2014. This article analyses Turkish administrative courts' judgements from 2014 to January 2021 and examines whether there is consistency in the case law of the administrative courts. This article concludes that the decision-making of the administrative courts is still too much of a lottery. There are three main reasons that lead to inconsistencies in the jurisprudence of the administrative courts. The first reason is that court decisions explaining the reasons for their adjudication are not published. Second, some articles in the asylum law give large discretion to the administrative authorities under public security and public order. The third reason is deficiencies in the training of administrative judges and a lack of case law.

Usługi wczesnego wspomagania rozwoju dziecka w prawie oświatowym

Early support for child development is a form of targeted and specialized support for a child who has not yet started fulfilling educational obligations. It is implemented in order to stimulate the child’s psychomotor and social development, from the moment of detecting a disability until the child starts school. It is intended to prevent potential future failures in school education. Early support for child development is a conglomerate of public services whose type, scope and frequency of provision are adapted to the needs of a specific child, and take into account their individual limitations. The right to use these services stems from an opinion issued by the adjudicating panel of a public psychological and pedagogical counseling center confirming the child’s need for early development support. The article discusses the legal aspects of the public task of organizing and providing services in the field of early development support. The aim is to explain the meaning of the concept of early support for child development, discuss the legal provisions regulating them and determine the ratio legis of their introduction into the Polish legal system. It also involves identifying intangible services falling within the scope of early support for child development, determines their beneficiaries and identifying the entities providing them. In the context of acquiring the right to use these services, special attention will be paid to the opinion issued on the need to support early child development, in particular, the procedure for its issuance it and its components. In order to achieve the research goals, the dogmatic-legal method will be used, consisting of the analysis and interpretation of the texts of legal acts. Administrative court jurisprudence regarding the subject of the article will also be taken into account to the required extent.

Protection of the Environment in Polish Constitutional Law in the light of the Jurisdiction of the ECHR

Over the past decades, a global trend of constitutionalising environmental protection has been observed in connection with the attribution to this issue of key importance and value deserving special legal status. This practice has not bypassed the Republic of Poland; the current constitution provides an extensive range of environmental provisions. The aim of the paper is to review the Polish constitutional law in terms of provisions guaranteeing environmental protection. The article presents the specific legal framework and analyses the role of the Polish Constitutional Court in interpreting constitutional provisions. Based on the legal analysis, the author aims to identify best practices and solutions included in the Polish Constitution, as well as to indicate existing shortcomings of environmental regulation with some remarks de lege ferenda. An important part of the paper provides an assessment of the impact of the ECtHR’s case law on the practice and jurisprudence of Polish courts dealing with violations of the right to the environment. In this regard, attention is given to civil cases involving violations of personal rights in the form of health, privacy, and the ability to enjoy life in an uncontaminated environment. The outcome is a consideration of the connections between the construction of the right to the environment and the subjective rights guaranteed by the Polish Constitution.

Constitutional Court Jurisprudence and Its Role in Shaping Public Administration Reform in Romania

This article aims to investigate the jurisprudence of the Constitutional Court regarding the public administration reform in Romania. We take into consideration the motivation of the public authorities involved in the law-making process, as well as the interpretation of the judges of the Constitutional Court concerning the legislative steps regarding the adoption of an Administrative Code, decentralization, the transfer of competences, the status of civil servants, and finally the legal regime of the newly established or reorganized institutions/authorities. The study also evaluates the steps to reform the public administration concerning the observance of the principles of constitutional loyalty, the separation of powers, the supremacy of the Constitution, and the role of the Parliament.

The issue of admissibility of applying reliefs (discounts) and bonuses by insurers in determining the amount of compensation for damage to a motor vehicle of the injured. A gloss to the resolution taken by the seven judges of the Supreme Court of 8 May 2024, ref.: III CZP 142/22

The subject of this gloss is the judgment of the Supreme Court of 8 May 2024, reference III CZP 142/22, concerning the determination of compensation to be paid by an insurance company to the injured party under a civil liability insurance contract for owners of motor vehicles. The judgment addresses the question whether is admissible that insurance companies apply discounts when determining the amount of compensation for the injured party's motor vehicle. The issue in question is of significant importance for insurance practice, as for several years the admissibility of this type of activities by insurance companies has been raised in the jurisprudence of common courts and it also has been subject of considerations in the doctrine. Ununified insurance practice often led to compensation being set at a lower amount than the actual costs of vehicle repair, which in turn gave rise to disputes between the injured party and the insurance company. The gloss only refers to two theses of the judgment of 8 May 2024, as the statement of reasons thereof has not been published upon submitting this gloss for publication.

The Normative Framework Behind the (Non-)Recognition of Children Born of War in International Criminal Law

Abstract This article traces the normative development in international criminal law on children born of war (cbow—i.e., children born in the context of an armed conflict to one parent who belongs to a local community and one parent who is an opposing combatant, fighter or peacekeeper). In a historical cross-contextual approach, primary and secondary sources, and particularly jurisprudence of international criminal courts from 1945 to today, are interpreted in reference to political psychologist Inger Skjelbæk’s epistemology conceptualising conflict-related sexual and reproductive violence as carrying essentialist, structuralist and socio-constructivist implications. The analysis traces how cbow as a group of victimised but underacknowledged war-affected children have come to be understood in international justice. The findings point to avenues for normative refinement that would facilitate a more coherent and unbiased integration of their interests into the practice of international courts.

Judicial Collegiality and Tolerance of Difference: Insights from Justice Johan Froneman's Dissents

The retirement of Justice Johan Froneman from the Constitutional Court of South Africa provides an ideal opportunity to reflect on his approach to collegiality and tolerance of difference. Like his predecessors, Justice Froneman navigated a delicate balance between collegiality and dissent. While the diverse backgrounds and experiences of his judicial colleagues enriched the Court's deliberations, Justice Froneman's dissents demonstrated the need for the Court to function as a cohesive unit to resolve judicial differences. His insistence on understanding the proper context of issues, taking account of relevant facts and synthesising opposite viewpoints was particularly pronounced in cases involving potentially divisive moral and ideological questions. Cases that touched on South Africa's contested political history and the proper role of the Court in a constitutional democracy further provided him with the platform to strike a balance between collegiality and dissent, thereby showing that tensions between unity and diversity among judges can be resolved amicably and that doing so would positively contribute to the development of the Court's jurisprudence on tolerance

Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd: Johan Froneman, the Transformation of Property Law and the Virtue of Small Things

In this article in honour of Justice Johan Froneman, I consider an early judgment of his on the Constitutional Court, Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 4 SA 113 (CC). I read the case as an important property law judgment, showing already at an early stage in the Court's jurisprudence strong traces of a transformative vision of property law developed by Van der Walt, Ngcukaitobi and Wilson, among others that I describe as a democratised property law. I show how the three pillars of this approach (the move from objects to objectives; the opening up of the canon of recognised property interests; and the move from property to propriety) all feature in Froneman J's Bengwenyama judgment. On this basis I then conclude by making the point that real transformation of property law derives much more from the kinds of "small moves" made by Froneman J in Bengwenyama than from the grand-scale solutions such as "expropriation without compensation" or state custodianship of land that have dominated political imagination over the past several years.

BATASAN PERTANGGUNGJAWABAN PPAT TERHADAP KETIDAKABSAHAN DOKUMEN KELENGKAPAN PERSYARATAN DALAM SISTEM HAK TANGGUNGAN ELEKTRONIK (HT-EL)

This research aims to analyze the limits of PPAT's responsibility for documents completing the requirements in the Electronic Mortgage System (HT-el) as well as analyze the legal protection of PPAT as the person responsible for the validity and correctness of documents in the HT-el system. The research was conducted by the authors using a normative juridical writing method with descriptive analysis with a conceptual approach and a statutory approach. The legal sources used are primary, secondary, and tertiary legal sources using literature study methods and then analyzed by the author using systematic, extensive, and comparative interpretation. The limitation of PPAT's responsibility for the HT-el system is limited to the process of making a statement letter. If PPAT has carried out its duties and procedures by the provisions then it cannot be punished by Article 51 Paragraph 1) of the Criminal Code and according to Supreme Court Jurisprudence 385/K/Pid/2006. PPATs in carrying out their profession receive legal protection, namely preventive legal protection and repressive legal protection. PPAT's preventive legal protection in carrying out each of its duties and authorities must be based on the precautionary principle. Repressive legal protection: A PPAT can make efforts to defend themselves and receive legal assistance in the form of advice, input, or assistance during the investigation process.

THE IMPACT OF THE MATRIMONIAL PROPERTY REGIME ON COMMERCIAL COMPANIES ACCORDING TO ALBANIAN LEGISLATION

Background: The purpose of this study is to examine the interaction between the legal discipline of matrimonial property regimes and the commercial activities of spouses that are established before or during marriage. It aims to investigate how the legal community impacts commercial companies, specifically in the hypothesis where the shareholder of the company is married. There is ongoing debate within legal circles about whether shares of a commercial company established by one spouse during marriage or acquired through a legal transaction are part of the legal community. Regarding this matter, several issues arise: whether the participation in the company's initial capital is governed by community administration rules, which is the legal nature of shares acquired by one spouse, and how the marital community regime interplays with commercial legislation. Another issue that has engaged legal doctrine is whether the spouse of a shareholder is recognised as a shareholder and can participate in the company administration. Albanian Family Code lacks specificity on shares, mainly addressing small family businesses. The study of the interaction of these two disciplines aims to assist jurisprudence because, despite some cases of the Supreme Court and the Constitutional Court in recent years, this is still a relatively new field for Albanian doctrine and jurisprudence. Methods: The research methodology adopted for this paper employs a multi-faceted approach, integrating desk research, legal analysis, case law review, and a comparative study. It encompasses an examination of relevant national legislation, as well as foreign legislation from civil law tradition countries such as France and Italy. Furthermore, European soft law, notably the principles of the European Commission of Family Law (CEFL) focusing on matrimonial property issues, has been reviewed. Our research methodology includes gathering and analysing existing studies and academic literature on matrimonial property regimes. To better understand the norms of the Family Code regarding matrimonial property regimes, we will analyse Italian and French doctrine and jurisprudence, as well as the legal systems based on which the Albanian Family Code has been drafted. It should be emphasised that while this paper’s primary aim is not solely comparative analysis, it strives to assist in better understanding and implementation of the legal community regime as the most used regime by spouses in practice. Also, a comprehensive comparative analysis has been conducted, comparing Albanian legislation and the CEFL Principles, to identify key similarities, differences, and potential areas for enhancement within legal frameworks. Moreover, the jurisprudence of both Albanian and foreign High courts has been extensively utilised to enrich the analysis and provide insights into practical applications of legal principles. Results and Conclusions: The solution to the abovementioned issues depends on the company’s legal structure and articles of participation rules and requires a combined interpretation of matrimonial property regimes and commercial law. In this combined interpretation of the rules, protecting the rights and interests of all involved subjects, the interests of the spouses and those of the commercial company as a legal entity is crucial.

No Place Like Home? Alienage, Popular Sovereignty and an Implied Freedom of Entry into Australia Under the Constitution

Does the Constitution protect the ability of an Australian to enter the country? This article investigates that question. Whilst the Constitution provides no express guarantee of a citizen’s right to enter Australia, a series of recent cases — particularly Love v Commonwealth 1 and Alexander v Minister for Home Affairs 2 — give occasion to consider whether a freedom of entry forms an implied part of Australia’s constitutional framework. Early scholarly attempts to establish a freedom of entry have relied upon the definition of non-alienage to ground this implication. This article commences by reviewing the effect of the High Court’s recent alienage jurisprudence on these arguments. After concluding that fatal difficulties attend this approach, I investigate an alternative foundation for an implied freedom of entry: an implication drawn from a constitutional principle of popular sovereignty. Focusing on a recent thread of High Court jurisprudence which has placed an increasing emphasis on the constitutional protection afforded to popular sovereignty, I conclude that this alternative basis provides a viable foundation upon which an implied freedom of entry could be recognised in the Constitution.

Consistency of The Arrangements Granting Extensions of The Term of Building use Rights for Houses to Provide Legal Certainty

There is ambiguity in the regulation for granting HGB term extensions. Article 35 of the UUPA do not recognize the granting of an extension "all at once", whereas in Article 145 of Law Act No. 6 / 2023 provides provisions for granting extensions “all at once”. There are two problems focuses. First, how are the current regulations regarding granting term extensions? Second, what will be the future regulations regarding granting an extension of the term of building use rights for flats that will provide more legal certainty? The main purpose in this research is to analyses inconsistency about the regulation on HGB. Using normative legal research, with statute approach and conceptual approach. The result in this research, current regulations for granting HGB periods, it turns out that there is a lack of clarity in the regulations. Moreover, what is regulated in Article 145 Law Act No. 6 / 2023 is not in line with Article 33 paragraph (3) UUD NRI 1945. Therefore, future regulations must be developed with linear consistency with the regulatory direction of Article 33 paragraph (3) of the UUD NRI 1945, UUPA, and even the Constitutional Court jurisprudence to provide legal certainty.