Administration Of Justice Research Articles

Differentiation of grounds for disciplinary liability of judges

The article focuses on the distinction between the grounds for disciplinary liability of judges. It is noted that the main reason for different qualification of similar violations of judges is a large number of evaluative concepts among the grounds for disciplinary liability. The corpus delicti of judicial misconduct have a large number of similar features in terms of content, and therefore the practice of their application is complex and controversial. The issue of distinguishing between the elements of disciplinary misconduct requires special attention, since the severity of the type of penalty chosen by a judge depends on the accuracy of the disciplinary and legal qualification. The author emphasizes that the reasons for the problem of distinguishing the grounds for disciplinary liability of judges are their broad formulations at the legislative level, a large number of evaluative concepts and an increase in the number of related corpus delicti over the past decades. Examples from disciplinary practice show that there are no uniform approaches to the qualification of disciplinary offenses related to procedural violations of judges in the administration of justice. In some cases, similar procedural violations are qualified only on one ground, in some cases – on another ground, and in others – on several grounds. Different disciplinary and legal qualifications of similar judicial misconduct lead to different disciplinary sanctions. The author emphasizes that it is important not only to identify consistent legal positions on the disciplinary and legal qualification of judicial misconduct, but also to offer future disciplinary inspectors a certain standard algorithm of actions and methodology for qualifying judicial misconduct during an inspection. In order to avoid criticism and accusations of double standards, it is important to develop and put them into practice. Key words: disciplinary liability of judges, grounds for disciplinary liability, disciplinary offenses, disciplinary sanctions, qualification of violations..

La Remise en Cause de la Chose Jugée et L’exigence D’une Bonne Administration de la Justice

Justice is first and foremost a social undertaking. It must earn the confidence of those subject to its jurisdiction, based on the quality of the justice delivered. In this sense, we can understand that the proper administration of justice, although not formally enshrined, is a requirement that permeates the mission of judges. Questioning their decisions is simply the result of a feeling that justice has not been done. The conditions under which justice is dispensed must therefore be organised in such a way as to enable the truth to be ascertained. However, the search for the truth can lead to endless litigation. This is why, while it seems perfectly normal to allow the parties to raise grievances against the truth enshrined in res judicata, this should only be the exception when the judicial decision has become final and has acquired the authority of res judicata. In the first case, the litigant is simply seeking justice. In the second, on the other hand, justice is given the opportunity to redeem itself.

Post-Colonial Traditional Courts in Botswana, the Kingdom of Eswatini and South Africa

The evolution of customary courts in Botswana has brought changes from the traditional system of customary courts known from pre-colonial times. The change brought about successes but still has challenges that make the system far from perfect. Despite the state of imperfection, customary courts in Botswana have evolved in a manner that other countries, such as South Africa, may draw some lessons from, identifying what is constitutionally consistent in order to reform its own. On the other hand, traditional courts in the Kingdom of eSwatini did not evolve and are still regulated by tradition and custom. Despite that they did not evolve and are imperfect, they have aspects from which South Africa can draw lessons. South Africa has no choice but to reform its traditional courts to be in line with the Constitution. South Africa will have to look beyond itself in order to find some solutions to the challenges it faces to properly enact legislation that will not just regulate traditional courts but provide an effective and efficient system of traditional courts that will contribute meaningfully to the administration of justice.

Organization of courts operation in Ukraine in the period of martial law: comparative and legal research

The purpose of the article is to highlight the situation of courts operation’s organization in the period of the martial law and the construction of legal framework on using modern information technologies in the administration of justice. The research has been carried out with the usage of the methods of systemic analysis and synthesis, comparative and legal, historical and legal methods. It has been clarified that Ukraine rather effectively ensures the proper organization of courts operation and administration of justice in terms of the martial law considering the level of security in each region. It has been indicated that the organization of remote work of judges and other court employees, as well as the administration of justice online through the use of video conferencing is the positive solution in war period. Such a step contributes to strengthening the security of all participants in judicial proceedings. It has been substantiated that the use of video conferencing during court hearings meets the requirements of a fair and public trial ensuring the compliance with the guarantees of access to justice. It has been emphasized that the use of information technologies within judicial proceedings should have a single approach. Therefore, it is important to develop uniform rules regarding methodological ensuring the use of modern information technologies in the administration of justice in the period of the martial law in order to improve the organization of courts operation.

The Role of Forensic Evidence in Criminal Investigations in India

Forensic evidence, an indispensable facet of modern criminal investigations, stands as a beacon guiding the pursuit of truth and justice within the Indian legal landscape1 . This research seeks to elucidate the critical role of forensic evidence in criminal investigations, underscoring its profound impact on the administration of justice.

The effectiveness of justice as a component of the constitutional right to judicial protection of local self-government

The Ukrainian state, like any state that seeks to assert itself in the international arena and ensure the proper standard of living of the population, has throughout its existence paid and currently pays a lot of attention to the administration of justice. The very state of the administration of justice is an indicator of the state's interest in observing the rights and freedoms of a person, which in turn is the basis for recognizing such a state as a legal state, i.e. one where the laws that establish the basic rights of a person and the responsibility for their noncompliance both for another person and for the state as a whole. The existence of a legal state is impossible without the effective functioning of all institutions of civil society in it, in particular, local self-government, therefore, a special place among the issues of the administration of justice is occupied by the issue of justice within the limits of the protection of the rights of local selfgovernment, in connection with which the topic of the mentioned study is extremely relevant. The goal of this study is to determine the state of the effectiveness of justice in protecting the rights of local self-government in Ukraine. The authors used dialectical, formal-legal, axiological, logical-legal, hermeneutic methods, as well as the method of content analysis, generalization, modeling, comparison, analogy. The results of the study showed that there are deficiencies in the administration of justice within the framework of the protection of the rights of local selfgovernment. These shortcomings include the politicization of the judiciary, the lack of competence of judges, the complexity of the judicial process and the lack of transparency of the judicial process.

The legal mechanism for environmental protection in Ukraine

Purpose. To study the aspects of implementing the legal mechanism of environmental protection (LMEP) and the requirements for it. To propose a definition of the “LMEP” concept. To develop recommendations for improving the legal mechanism, propose measures for its implementation and determine its main components. Methodology. The study uses general and special methods of cognition: comparative analysis – to establish LMEP indicators; critical analysis – for formation of requirements for LMEP and its definition; abstract-logical analysis – to determine the need for strategic dynamic approach to the implementation of LMEP; induction and deduction – to offer tool of “feedback” between the implementation of legal norms, and the effectiveness of their practical implementation; logical abstraction - for development of recommendations improving LMEP, measures for its implementation, its components, and the codification of environmental legal provisions. Findings. The requirements for the LMEP implementation are specified. Indicators for evaluating the LMEP effectiveness are proposed. “Feedback” tool between the implementation of environmental and legal norms and the effectiveness of their practical implementation and mechanism for the gradual adaptation of these norms are proposed. The definition of the concept “legal mechanism of environmental protection” is proposed. The absence of systematic approach and the insufficiency of analytical work at the stage of preparation of normative legal acts and after their adoption are pointed out. Specific ways of solving this problem are proposed. In order to prevent offenses, the need to increase the role of administrative justice in environmental protection cases and to expand the application of administrative law for this purpose is indicated. Originality. The necessity of forming a strategic dynamic approach to the implementation of LMEP and adjusting the adoption of its stages in view of the effectiveness of tools for the development of legal and environmental awareness of citizens is indicated. Practical value. The proposed regulatory clarification of the concept of “significant damage” will strengthen compliance with the principle of matching the violation with the punishment.

Powers and functional assignment of the High Council of Justice in the field of ensuring the independence of the judiciary

The coverage of the material in this article is aimed at focusing attention on the peculiarities of the functioning of the justice system in Ukraine, in particular on the bodies that play an important role in the structure of ensuring the functioning of the independent judiciary. Formation of Ukrainian statehood in the 1990s. years of the 20th century, contributed to the need for judicial reform and the separation of the body, which was supposed to take on the function of assisting judges for the proper implementation of the provisions of Article 124 of the Constitution of Ukraine, that justice in Ukraine is administered by courts, implementing such activities on a qualified and professional basis.
 According to Article 131 of the Constitution of Ukraine: «The Supreme Council of Justice operates in Ukraine.» The Supreme Council of Justice as a constitutional body passed the Law of Ukraine «On Qualification Commissions, Qualification Attestation and Disciplinary Responsibility of Judges of Courts of Ukraine» dated February 2, 1994 to the Law of Ukraine «On the Supreme Council of Justice» dated December 21, 2016 in order to build an effective judicial system. system and ensuring the functioning of an independent judicial system.
 Enshrining in the Constitution of Ukraine in Chapter VIII “Justice”, Articles 125, 128, 130, 131 of the Constitution of Ukraine, the provisions that determine the powers and functions of the High Council of Justice is evidenced by its granting it the status of a constitutional body of the state. Ukraine’s constitutional aspiration for membership in the European Union and ensuring the rights and freedoms is impossible without ensuring proper and independent justice. The judicial and legal reform carried out in recent years, reforming such a body as the Supreme Council of Justice, set the goal of updating the system of the judiciary and the judicial system of Ukraine, to attribute public trust to the justice system. The implementation of these tasks comes from the constitutional powers of the High Council of Justice to ensure the independent formation of the judiciary, to prevent influence on the judge and to protect him from any interference in his administration of justice.
 Ensuring such independence of judges is possible only if there are guarantees of their legal status, a special procedure for selecting candidates for the position of judge, and liability for interference in the administration of justice. Such reforms are designed to establish Ukraine as a democratic and legal state.

Judge performance indicator evaluation system: improvement continues

This article is an analytical work where author investigates the possible directions of improvement of the existing methodological basis of the procedure for evaluation the competences and qualities of persons who will form the judicial corps in Ukraine. The main focus of the research is directed to the analysis of the indicators used to assess the professional and personal features of judges (candidates for the positions of judges), to the repeatability of such indicators, as well as to the validity of including one or another indicator in the appropriate set of indicators, which in their combination will give an answer to questions regarding the compliance of a judge (candidate for the position of judge) with one or another evaluation criterion. It should be noted that in previous works, the author has already begun to study from a similar angle such two important indicators of judge evaluation as indicators of «effectiveness of administration of justice» and «activities to increase the professional level». In this study, the author continues the analysis of indicators for the correctness of their assignment to one or another criterion, establishing their fair weight in the overall assessment of the competencies of a judge (candidate for the position of judge) and includes, in particular, among them such indicators as «integrity», «honesty «, «decency», «discipline», «understanding and compliance with rules and norms» and others.
 Analyzing the problem of repeating the same indicators within the scope of different sub-criteria, the author of the article tries to prove the point of view that the existing approach reduces the reliability of the relevant criteria, artificially overestimates or underestimates their weight in the overall evaluation of the abilities of a judge (candidate for the position of judge). As a result, the study proves the necessity of eliminating of the repetition of the same indicators and adjust their weight to the fair value.
 The final aim of the conducted analysis is to encourage the legislative and judicial branches of power to take actions and steps that would systematize the existing methodology for evaluating the performance of judges (candidates for the positions of judges) and would help more accurately identify useful features in candidates that will dfine the professional community of Ukrainians judges in the nearest future.

The immigrant versus the state: The marginal contribution of tribunal judges to administrative justice

AbstractAdministrative tribunal judges determine rights and entitlements regarding bureaucratic decisions. In immigration appeal cases, they review negative decisions of permanent residency acquisition and family reunification. Based on an analysis of all immigration appeal decisions in Canada’s Quebec province over a period of twenty-three years, we find that tribunal judges confirm the bureaucratic decision in the vast majority of cases, noting the migrants’ inability to meet the annual income requirements, and rarely reverse the decision in favour of migrants. Documenting the marginal contribution of tribunal judges to promoting administrative justice, this article contributes to the debate on whether and how courts can advance immigrants’ rights.

КРИМІНОЛОГІЧНЕ ЗАБЕЗПЕЧЕННЯ ПЕНІТЕНЦІАРНОЇ БЕЗПЕКИ В УКРАЇНІ

This article deals with problems of development assistance of penitentiary system which directly correlates with necessity in establishment into national criminal and executive practice of international and European standards of administration of justice in in particular in the part of establishment of optimal balance between grave criminal offences and punishment especially if we speak about imprisonment. Authors focus attention that into today`s mechanism of security of convict rights and freedoms was successfully integrated the number of prospective European novelties, among which the public. Involvement of the public in Ukrainian criminological science was found as an actual method of carring out facultative influence on criminal activities in the state, including by popularization of the principle of zero tolerance for breaks of law in general and in criminal law. It is noted that we need to pay attention to victimological orientation in criminology and in the case of committing socially dangerous acts determined by an informal society and internal specific culture and customs of convicts. It is indicated that correlation of criminological and victimological influence on criminal society in penitentiary institution will give an opportunity to reduce amount of criminal offences and to prevent other variants of convicts` deviant behavior related to alcohol and gambling addictions, suicide etc. It is summarized that we need to reform criminal and criminal executive law and to shift to new and more progressive means and messieurs of fight with penitentiary recidivism among convicts and personal`s criminalization in penitentiary institutions. Authors proposed criminological messieurs for providing penitentiary security. Key words: penitentiary security, criminological providing, criminal offences, punishment, imprisonment, convicts, penitentiary institutions.

Fairness and justice through automation in China's smart courts

Xi Jinping's judicial reforms have placed the concepts of ‘fairness’ and ‘justice’ at the forefront, coinciding with the integration of information technology and AI into all aspects of China's court system through smart court reform. According to official Chinese discourse, smart court reform is supposed to make the justice system ‘fairer’. However, research has not yet clearly established how ‘fairness’ and automation are connected in the Chinese context. This article is interested in how smart court and automation fit into Chinese interpretations of ‘fairness’. Therefore, we ask what notions of ‘fairness’ drive and justify smart court reform? The main argument is that SCR allegedly reinforces elements of procedural fairness, i.e., internal accountability, external visibility, and due process in a way that they are conducive to substantive goals of legitimation, social stability, and user convenience. Most noteworthy, there is a strong emphasis on procedural consistency. This article conducts a systematic qualitative analysis of the foundational texts and discourse about smart courts in China, such as judicial policy documents, development and reform plans, white papers, and regulations. In our analysis we find that smart courts promote procedural and substantive components of ‘fairness’ that strengthen legal rationality while keeping open channels of control. Our findings help explain the rapid embrace of automation and technology in China's justice administration: they fit perfectly within the ruling party's worldview and perpetuate it in turn.

Обработка и защита персональных данных судей и государственных гражданских служащих судебной системы: взаимодействие публичных и частных интересов

In the context of information society and possibilities of collecting and processing large volume of information, as well as instantly transmitting it, the issues regarding the intentions behind processing personal data and ensuring proper measures for its protection become more pertinent, particularly concerning the individuals whose personal data is processed and protected not only (and not so much) for private interests, but for public ones. Among such individuals, there are judges and civil servants of judiciary system. According to the authors, processing of judges’ personal data is aimed at achieving a publicly significant goal of ensuring administration of justice by independent and impartial court. However, this goal, regrettably, is not enshrined in existing legislation. At the same time, this lack of goal definition may lead to excessive collection of personal data posing a threat of unreasonable interference with privacy, as well as to unjustified reduction of the list of data collected, possibly affecting public interests. The authors also draw the conclusion that there are drawbacks in legal regulation regarding protection of personal data of special individuals, and they suggest introducing a legal mechanism of depriving a civil servant committing a grave violation of treating this data of the access to them.

Adding transparency to uncertainty: An argument-based method for evaluative opinions

Over the past 15 years, digital evidence has been identified as a leading cause, or contributing factor, in wrongful convictions in England and Wales. To prevent legal decision-makers from being misled about the relevance and credibility of digital evidence and to ensure a fair administration of justice, adopting a balanced, systematic and transparent approach to evaluating digital evidence and disseminating results is crucial. This paper draws on general concepts from argumentation theory, combined with key principles and concepts from probabilistic and narrative/scenario approaches to develop arguments and analyse evidence. We present the “Argument-Based Method for Evaluative Opinions”, which is a novel method for producing argument-based evaluative opinions in the context of criminal investigation. The method may be used stand-alone or in combination with other qualitative or quantitative/statistical methods to produce evaluative opinions, highlighting the logical relationships between the components making up the argument supporting a hypothesis. To facilitate a structured assessment of the credibility and relevance of the individual argument components, we introduce an Argument Evaluation Scale and, ultimately, an Argument Matrix for a holistic determination of the probative value of the evidence.

Role of Judiciary in Protecting Witnesses in the Criminal Justice System: A Critical Analysis

Witnesses are the eyes and ears of the Criminal Justice System. Witnesses being the only spectator of an offence are the indispensable aid in the Criminal Justice Delivery System but are yet at a vulnerable position that they turn victims at several instances. Starting from the investigation stage to the trial proceedings of the court witness assist the Court in every possible way to punish the accused person by deposing every relevant fact which can lead to a fair justice delivery and conviction of the accused person without getting any gain. Witnesses are often subjected to threatening, inducement, harassment, and different kinds of intimidation to them and also their family members. Due to this, in many cases due to lack of Witness Protection Laws the witnesses not getting adequate protection they become victims. Unlike the accused, the witnesses or victims have no rights for their protection. And when the state agencies fail to do their duty, as has often happened in many cases in the recent past, the witnesses turn out to be a victim and subsequently left to suffer injustice silently. Protection of witness is also one of the attributes of fair trial which is guaranteed under Article 21 of the Constitution of India wherein proper safety and security should be ensured. But due to lack of effective Witness Protection Regime and statutory framework for giving protection in our country the witness has lost confidence when it’s about their safety and security. This has also given rise to high acquittal rate and decrease in convictions in the justice administration system. The Judiciary has actively given importance for having witness protections Laws in India and at the same time has enumerated the duties of Witnesses towards the state when the state is providing protection.

Investment Tribunals as Courts of Appeal? Determining State Responsibility for Substantive Denial of Justice

Abstract The contribution looks into the circumstances under which states can held be responsible for the content of judgments rendered by their courts pursuant to the denial of justice standard. The standard has received increased attention in the context of investor-state arbitration, where it has become widely used as a measure for determining the propriety of judicial conduct. Although ostensibly claimed to concern solely the propriety of judicial procedure, in the practice of investment tribunals, the standard has no less frequently been applied to measure the substantive adequacy of domestic courts’ judgments. The contribution examines this emerging practice by mapping the jurisprudence and evaluating the nature of arbitral tribunals’ scrutiny. It also sets out certain normative considerations that should guide the tribunals’ assessment of whether or not a particular judicial outcome is an adequate one from the standpoint of international standards of administration of justice. The contribution advances three arguments: first, that judicial decisions, as the final product of the domestic adjudicative process, can properly be the object of scrutiny by arbitral tribunals; second, that the task of arbitral tribunals must be limited to determining whether the particular decision is supported by adequate reasoning, and does not extend to inquiring whether the substantive outcome – i.e. the judicial decision on its merits – is also reasonable as such; and third, that the substantive review performed under the denial of justice standard necessarily requires the application of deferential standards of review.

A Case of the Highest Authority… So What Does It Mean?

There has been for some time a widespread view that anyone under investigation with regard to suspected wrongdoing should be entitled to anonymity prior to charge. Yet no attempt has been made to legislate. The matter is governed currently by the recently developed law of privacy, deriving from such cases as Campbell v MGN Ltd and culminating in the decision of the Supreme Court in ZXC v Bloomberg LP. It seems to be accepted, not only in England but under human rights law generally, that such information should be regarded as "private". This has not seriously been undermined in any of the leading cases. There is surely a serious question as to whether a suspect does indeed have a reasonable expectation that there should be such a blanket over his or her identity. This information is not purely personal. It relates to suspected wrongdoing – information which legitimately concerns not only any individual under suspicion but also, for example, "victims" and no doubt other fellow citizens interested in getting to the truth and in the administration of justice. Naturally, if a suspect's name leaks out, that individual's reputation may be seriously damaged. Some take the view that compensation should be recoverable specifically for injury to reputation – even though the claim would not be brought in defamation. Yet privacy and libel are distinct causes of action with different purposes to fulfil. If damages are to be sought to vindicate reputation, it is hard to see why a defendant should not have available the traditional defences and other principles applying in defamation. If a claimant wishes to demonstrate that the allegations are false, as well as intrusive, why should he not be subject to the same disciplines and risks as one who sues in libel?

Legally a Jailer, Practically a Carer: Release on Bail Subject to Surety Supervision

The pre-trial release decision involves an assessment of the risk the accused poses to the community and the administration of justice if they are released pending trial. To ameliorate risk and provide some insurance, a surety – a family member or friend who agrees to supervise the accused and promises a sum of money if the accused fails to appear in court, commits further offences, or breaches a condition of their release – may be required. Sureties are required to act as “jailers in the community,” conceptualized as a mechanism for reducing risk and enhancing public safety by providing supervision and improving the likelihood that the accused will comply with conditions. While the court imposes a legal relationship of monitoring and control between the accused and their surety, this expectation is confounded by tension between acting as someone’s jailer and providing care in the context of a close personal relationship. Through 32 interviews with sureties in Ontario, we explore the tensions and contradictions in the ways the legal relationship imposed by the court is experienced in practice, revealing a lack of formal support, a sense of powerlessness to exert authority over the accused, and a flexibility in enforcement that raises questions about surety effectiveness as a risk management strategy.

Cadena de custodia de los elementos de prueba. Una institución jurídica en debate y desarrollo en el Ecuador

The study of the chain of custody of evidence constitutes a legal institution of special relevance in modern procedural systems, as a result of the need to deal with the high rates of crime and impunity that have baffled Ecuador in recent years. . Theoretical debates about the chain of custody have brought about its strengthening in the criminal and criminal procedural field and have influenced its increasingly complete regulation. The text presents the result of the study about the legal nature of the chain of custody of the evidence and the way in which the controversy raised around it has impacted on the constitutional recognition of the chain of custody, to a point that has been considered as a guarantee, as part of due process or as an essential element for legal certainty and the administration of justice. Through the bibliographic review and the use of theoretical research methods, it is possible to achieve a result that systematizes the most relevant doctrinal and legal component in Ecuador in relation to the chain of custody of the evidence.

Abolition Infrastructures

Abstract Over the past two decades, transformative justice has gained momentum as an organized effort to answer contemporary abolitionism’s thorniest question: How can a society handle the problem of harm without resorting to punishment? The movement has sought to develop responses to harm and violence that reject retribution and instead emphasize accountability, repair, care, and attention to the systemic roots of violence. In large part because the movement took form in explicit rejection of the state’s administration of justice, the work of transformative justice has most frequently been done on an unpaid basis of mutual aid. Here’s a movement that has germinated in collective homes, borrowed office spaces, online forums, activist convenings, parks—in other words, in the abolitionist commons. As transformative justice has gained currency over the course of the pandemic, its ideas have been taken up in new realms, including the university, the nonprofit, the prison, and the courts. The current moment is ripe for taking stock of where the movement is right now, and where it is going. What does it look like to build toward abolition infrastructures or infrastructures of collective care? How might an abolitionist theory of the state guide this work?