Court Of Law Research Articles

Case-based reasoning as a measure of constitutional adjudication

AbstractCase-based reasoning has high significance in constitutional adjudication. The constitutional courts of the Kelsenian model also follow their own previous decisions to develop their own case law, even if those decisions do not bind them formally. In the course of constitutional interpretation, to build coherent and predictable case law and determine constitutional principles and standards in a consistent way are also reasonable expectations of constitutional adjudication deriving from the rule of law. The paper analyses the case law of the Hungarian Constitutional Court from this perspective, regarding the criticism of public figures in defamation cases. It takes case-based reasoning as a measure of the case law of the HCC, reveals the tendencies and highlights the main problems associated with it.

Dylematy w orzecznictwie sądów administracyjnych w zakresie wykorzystywania nadużywania prawa do informacji publicznej

Dilemmas within the case law of administrative courts on the abuse of the right to public information The right to public information is one of the systemic principles of the functioning of the state. However, restrictions in access to this particular right form exceptions to the constitutional principle. Recently, the case law of administrative courts and the views of legal authors and commentators have begun to invoke the framework of the abuse of the right to public information as a circumstance based on which an entity may deny the applicant access to information. In the absence of statutory regulation, the boundaries and guidelines for applying the framework of the abuse of the right to public information are set by the case law of administrative courts. When analysing the most recent rulings of the Supreme Administrative Court of Poland and the provincial administrative courts, one can see a certain dualism in the applicability of the framework in question. The lack of uniformity in this respect stems primarily from the need to balance the values between respecting the constitutional principle of the right to public information and the possibility of limiting it in events of abuse of an individual's right. As a result of the analysis of the recent case law of administrative courts, a position is outlined indicating that, according to the dominant line of case law, entities obliged to provide public information may invoke the framework mentioned above to protect themselves from actions that are contrary to the assumptions of the Polish Act on Access to Public Information.

Video source camera identification using fusion of texture features and noise fingerprint

In Video forensics, the objective of Source Camera Identification (SCI) is to identify and verify the origin of a video that is under investigation. This aids the investigator to trace the video to its owner or narrow down the search space for identifying the offender. Nowadays, it is easy to record and share videos via internet or social media with smartphones. The availability of sophisticated video editing tools and software allow offenders to modify video's context. Thus, identifying the right source camera that was used to capture the video becomes complicated and strenuous. Existing methods based on video metadata information are no longer reliable as it could be modified or stripped off. Better forensic procedures are therefore required to prove the authenticity and integrity of the video that will be used as evidence in court of law. Certain inherent camera sensor properties such as, subtle traces of Photo Response Non-Uniformity (PRNU) are present in all captured videos due to unnoticeable defect during the manufacture of camera's sensor. These properties are used in SCI to classify devices or models as they are unique. In this work, we focus on SCI from videos or Video Source Camera Identification (VSCI) to verify the authenticity of videos. PRNU can be affected by highly textured content or post-processing when computed from a set of flat field images. To mitigate these effects, Higher Order Wavelet Statistics (HOWS) information from PRNU of a video I-frame is combined with information from two other texture features i.e., Local Binary Pattern (LBP) and Gray Level Co-occurrence Matrix (GLCM). The extracted feature vector is fused via concatenation and fed to Support Vector Machine (SVM) classifier to perform training and testing for VSCI. Experimental evaluation of our proposed method on videos from different publicly available datasets show the effectiveness of our method in terms of accuracy, resource efficiency, and complexity.

THE USE OF JURISPRUDENCE IN INDONESIAN LAW COURT AS A CIVIL LAW COUNTRY

<p>Jurisprudence refers to the decisions made by earlier judges regarding cases that are not covered by the law and which serve as a model for later judges when deciding cases of a like nature. The Supreme Court is an entity with judicial authority in Indonesia and has the authority to publish rulings. As a civil law country, Indonesian law courts do not use jurisprudence as a main legal source. Court judgments under this system are predicated on pertinent laws and regulations, such as the 1945 Constitution, MPR Decrees, Laws, Government Regulations, Presidential Decrees, Supreme Court, Ministerial Decrees, and others. This means that the judge's judgement, which is based on the facts or the available evidence, has some latitude. On the contrary, some countries use common law as their legal system. This legal system favours customary law, which changes over time in accordance with societal changes. In order to ensure that the law is always consistent with a feeling of justice and advantages that are felt immediately by the community, it was established via a judicial institution with a jurisprudence system that is regarded to be superior. Although the Indonesian legal system does not operate on a precedent system, general court judges or judges in lower-level courts are nonetheless required to take the Supreme Court's rulings seriously. This paper will be written as a discussion of how Indonesian law court as a civil law country utilises the jurisprudence, which is the product of common law system, even when it is not commonly used. This paper will also be written to elaborate the comparison between the use of jurisprudence in civil law countries such as Indonesia, and the origin countries that are using the common law system.</p><p>Keywords: Jurisprudence, Indonesian Law Court, Civil Law Country</p>

Realizacja prawa do prywatności w rozumieniu poszanowania życia rodzinnego i wykonywania opieki rodzicielskiej w warunkach ubóstwa. Uwagi na gruncie wybranych norm prawa międzynarodowego publicznego i Europejskiej konwencji praw człowieka

Interference in family life is a particular form of threat to poor families, especially when the only impetus for state action in the form of an interference in the right to privacy is the poor material situation of the family. The article reflects on the possible threats to the realisation of family life within the framework of the right to privacy established under public international law, in particular the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the European Convention on Human Rights (ECHR). In the view of the Human Rights Committee, the family should be oriented towards enabling the child to remain in the care of his or her parents or to return to their care or to other family members. The Committee on the Rights of the Child points out that the implementation of the right to privacy prohibits the recognition of material poverty as a basis and justification for taking a child out of parental care and into foster care. The European Court of Human Rights case law presented in the article confirms that children from poor families are at risk of being taken away from their parents and placed in foster care due to the financial status of the family, which may constitute a violation of the Article 8 of the ECHR. The fact that state authorities wrongly equate the lack of sufficient resources to support the family with child neglect poses a threat to the family life of poor individuals. Victims of violations of family bonds through harm to the private lives of family members should be protected under the human rights system. The following analysis makes it possible to identify the relevant problems from the point of view of the impoverished person or/and family, such as the questioning of parental capacity as a consequence of the erroneous equation of poverty with child neglect, or the withdrawal of the right to material assistance, all of which affect the realisation of family life, and further enables the identification of legal remedies for protection.

LA JURISPRUDENCIA DEL TRIBUNAL EUROPEO DE DERECHOS HUMANOS EN MATERIA DE PROTECCIÓN FRENTE AL DISCURSO Y LOS DELITOS DE ODIO BASADOS EN LA ORIENTACIÓN SEXUAL Y EN LA IDENTIDAD DE GÉNERO

The increase in hate speech and hate crimes based on sexual orientation and gender identity in Europe has led the Council of Europe to become increasingly concerned with the issue. In this paper, we study the case law of the European Court of Human Rights on the subject to ascertain the level of protection afforded to individuals against homophobic and transphobic hate speech and hate crimes.

The Italian Constitutional Court on Women’s Rights: Patriarchal Remnants Versus Transformative Interpretations

Abstract Aiming at contributing to the debate about the effectiveness of constitutional courts in enhancing the protection of women’s rights, this paper focuses on the case law of the Italian Constitutional Court. After an introduction on the role, functions, and composition of the Court, three foci will be put on the Court’s case law: (1) on the abolition of the gender-based discrimination in the adultery law, which caused also the abolition of the crime itself, (2) on the legislation introducing gender quotas for increasing women’s political representation, (3) on the legislation on abortion and reproductive rights.

Populist Jurisprudence? Examining Selected Case Law of the Polish Constitutional Court After 2016

Since the parliamentary elections in 2015 and the subsequent change in the personal composition of the Polish Constitutional Court, this institution is in crisis. The Court, once one of the main guardians of the rule of law and a model for the constitutional judiciary in the region of Central and Eastern Europe, is criticized. Judges are accused of lack of proper appointment and party subordination. Court activities are perceived as part of illiberal democracy and populist constitutionalism, that is, introducing majority rule by “switching off” the checks and balances mechanisms by democratically elected parties and groups. However, what is often overlooked in this type of analysis is the more internal perspective of jurisprudence and legal reasoning. What kind of decisions does the “populist” constitutional court issue? How does it justify its decisions? The paper will discuss three cases of the Polish Constitutional Court. The first case is from 2017 and concerns the right of assembly in connection with the introduction of a special category of “cyclical assemblies”. The second, of 2019, is the so-called “printer case”, which concerned the possibility of refusing to provide a service for reasons of conscience (a refusal to print a poster because of opposition to “LGBT promotion”). The third case is the controversial ruling narrowing access to abortion from 2020. The aim of the analysis is to answer the question of whether the current jurisprudence of the Court is the breaking or continuation of the previously dominant liberal constitutionalism. I will be particularly interested in whether these decisions introduce any changes at the level of possible rights holders (legal subjects), the introduction of a new or changed scope of existing rights, and new ways of resolving conflicts between rights.

Term of Office of Constitutional Judges and Its Implications for the Independence of Judicial Power

This paper analyzes the implications of the term of office of constitutional judges in relation to the principle of independence of judicial power. Constitutional justices have a five-year term of office and can only be re-elected for one further term. This provision has been tried to be corrected through a request for judicial review of the Constitutional Court (MK) Law, but there is no Constitutional Court decision stating that the term of office of constitutional judges is contrary to the 1945 Constitution of the Republic of Indonesia. Determining the term of office of constitutional judges has implications for the independence of judicial power. The existence of a second period or renewable term will open up opportunities for political influence in the appointment of constitutional judges for the second period, thereby reducing the independence of judicial power. The elimination of the second period as approved by the legislators has positive implications for the independence of judicial power, but needs to be accompanied by improvements to the selection and supervision mechanism for constitutional judges. The Third Amendment to the Constitutional Court Law also regulates the selection process, but only states the principles and leaves further regulations to each state institution.

China-made national security law applied in Hong Kong’s common law courts: choice of interpretative approaches

ABSTRACT The Chinese legislature enacted the Law on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) on 30 June 2020 to be applied in Hong Kong. This article compares the texts between the NSL and relevant Chinese Mainland law and identifies four ways in which the Chinese legislative provisions and legal elements have been incorporated into the NSL. The widespread presence of Chinese legal elements in the NSL suggests that completely disregarding Chinese laws in Hong Kong judicial proceedings may not be feasible and advisable in some cases for interpreting and applying this specific made-in-China law. This article contends that the courts should distinguish the admissibility and weight of Chinese laws in the NSL cases. The Chinese laws are essential materials for Hong Kong courts to construct the NSL, and broader admissibility of Chinese laws is appropriate for the NSL construction. At the same time, this article argues that the weight to be given to Chinese laws is a matter for the court to decide in the circumstances of the case, and the set of rules regarding the NSL construction Hong Kong courts have been developing could guide the weighing of different kinds of interpretative materials.

Pitfalls in Implementing the EU Whistleblower Directive

Abstract In this paper, we focus on two conceptual problems associated with the EU Whistleblower Directive and point out issues that may undermine or even frustrate the successful implementation of the Directive in a national context. While fully acknowledging strong arguments for, and undeniable benefits of, speaking in favour of EU whistleblower protection, it has to be noted that a specific form of forced gold-plating calling for the extension of the material scope of protection may complicate the interpretation of the autonomous part of legislation and lead to legal insecurity. Moreover, new elements of whistleblower protection as introduced by the Directive diverge from the case law of the European Court of Human Rights. The introduction of higher standards of protection in favour of whistleblowers does not raise problems in relations between the state and the individual, but some EU rules may cause problems in horizontal relations between private individuals, since fair balancing of interests as required by Strasbourg jurisprudence may be not always guaranteed.

Neurological Expertise and Courts of Law: It Is All About Trauma, Maybe Not?

Neurological expertise is requested from courts of law in some particular cases, both in criminal and civil proceedings. With the judiciary field falling mostly within the scope of legal medicine professionals, and forensic psychiatrists, the role of an expert from other medical specialties seems unfamiliar. While considering the neurological deficits and diagnoses, experts rely on classificatory systems that highly fragmentize isolated somatic injuries. Such a stand might not reflect the impact of the injury or deficit for the patient as a whole. Neurotraumatology has been the main field where expertise is necessary, following civil suits, litigation, malpractice, and remuneration requests. Other neurological disorders are not immune from being at the center of a legal issue, such as dementia, epilepsy and so on. Well known in the still debatable issue on epilepsy being a disease of mind or not. Thus, neurologists at court should carefully avoid psychiatric overlapping of opinions and remain within the limits of their specialty, while considering a multifaceted issue.

Doctors, FIRs, and Arrest in Alleged Medical Negligence Cases in India: Demystifying the Legal Tenability.

The relationship between a doctor and a patient is a contract, retaining the essential elements of the tort. Modern medical practice has evolved alongside the court of law to regulate the conduct of doctors and hospitals to reduce litigations of medical negligence. Lately, Indian patients have become more aware of their rights and the Consumer Protection Act. This awareness encourages patients to litigate and seek the help of redressal forums to mitigate their loss/injury in cases of medical negligence. Though there is a rise in complaints of medical negligence filed against doctors and hospitals, these allegations are often frivolous. The specter of litigation constantly looms over medical practitioners, who frequently struggle to defend themselves in a court of law, causing undue anxiety and anguish. Thus, a doctor can be considered the second victim in a medical negligence case. Lack of awareness regarding their legal rights and pertinent laws coupled with contradictory actions of the law enforcement agencies while handling alleged medical negligence cases worsens a doctor's trepidation. Hence, this article attempts to raise awareness among medical professionals, which will thereby allay undue fear while facing an allegation.

Protecting the rights of judges: the judgments of the European Court of Human Rights in Juszczyszyn v Poland and Tuleya v. Poland

This article examines two rulings of the European Court of Human Rights on the rights of independent Polish judges in Juszczyszyn v. Poland and Tuleya v. Poland, focusing on two key aspects. First, it addresses the Court’s finding that the Polish authorities aimed to undermine judicial independence and deter the applicants from questioning the Government’s controversial judicial reforms. Secondly, it explores the potential evolution of the case law of the European Court of Human Rights regarding recognising the subjective right of judges under Article 6 of the European Convention on Human Rights to have their independence protected and respected by the State. The article also discusses problems concerning implementation of the two judgments.

Intended or new parenthood? The child’s best interest: Italy and the European Court of Human Rights

The article investigates domestic and supranational responses towards new forms of parenthood in the light of the child’s best interest. Examining the case law of the European Court of Human Rights and the Italian Courts on artificial reproductive technologies and surrogacy agreements, this article contends that the European Court of Human Rights did not abandon the ideal type of families based on biological bonds despite efforts to ensure the paramount relevance of children’s rights. Interlacing the Italian case and the European Court of Human Rights’ judgments against Italy, this article argues that persists a long way before the full recognition of forms of parenthood lacking genetic links, despite the willingness to safeguard the legal status of the child.

Material modernities: Tracing Janbai’s gendered mobilities across the Indian Ocean

AbstractThis article uses techniques of microhistory to explore how Janbai, the third wife of Sir Tharia Topan, exerted economic, religious, and social influence in Indian Ocean networks. An Ismaili woman from a Gujarati trading family who lived in East Africa, Janbai lies outside of the social worlds that have dominated studies of Muslim modernity in South Asia, which centre on Sunni male professionals from North India. Janbai was illiterate and largely disconnected from textual debates about modernity. In fact, she was just the sort of woman that reformers castigated for their supposed attachment to religious superstitions and customary practices. In contrast, studying Janbai through an alternative frame of ‘material modernity’ reveals the complex biography of a women who neither conformed to the idealized ‘new’ woman, nor simply reproduced inherited practices. Instead, she navigated rapid social mobility, shifting geographies, and new technologies and institutions, particularly colonial law courts, in ways that echoed and departed from how women had long exercised agency. The article argues that scholars, by foregrounding textual archives and discursive analysis, have tended to reproduce the marginalization of women like Janbai. In contrast, looking to sources such as jewellery and photographs, and reading textual archives with greater attention to gendered patterns of consumption and investment, brings Janbai from the margins to the centre of our understanding of modernity. In addition to enriching our understanding of the lives of women, increased attention to materiality and visuality opens up critical new avenues for writing a more variegated history of Muslim modernity.

Mapping out due diligence in regional human rights law: Comparing case law of the European Court of Human Rights and the Inter-American Court of Human Rights

AbstractIn international human rights law, the notion of due diligence concerns a qualifier of behaviour to realize human rights protection, including the protection against non-state actor interferences. However, the question remains what due diligence obligations of states in the context of non-state actor interferences exactly entail in international human rights law. The present article aims to address this matter by comparing case law of the European Court of Human Rights (ECtHR) with that of the Inter-American Court of Human Rights (IACtHR). Using a working model of due diligence that has been introduced in recent scholarly work, this article further explores this model and attempts to give further meaning to its two paradigms: ‘regulation’ and ‘risk management’. In that way, it maps out the relevant elements of this foundational concept that lies at the heart of human rights protection.

Law Enforcement Against Criminal Acts of Corruption in The Form of Abuse of Authority in Office Based on The Law on Eradication of Corruption Crimes

The concept of abuse of authority in the Government Administration law is seen by several legal experts as the same as the concept of abuse of authority because it is the absolute competence of the Administrative Court in the Corruption Eradication law. The research method used is Case Study Decision Number Case Study Decision Number 218 PK/PID.SUS/2019 and Decision Number 143 PK/PID.SUS/2019, where both decision cases involve criminal acts of corruption in the form of abuse of authority in office. Based on Law no. 31 of 1999 Jo Law no. 20 of 2021 concerning the Eradication of Corruption Crimes. The conclusion is that the application of sanctions against criminal acts of corruption in Decision Number 218 PK/Pid.Sus/2019 and Decision Number 143PK/Pid.Sus/2019, the panel of judges imposed imprisonment/imprisonment and fines, the imposition of fines as an implementation of the balance value can be applied as long as In certain circumstances, the perpetrator of a criminal act of corruption is not a recidivist, then as a balanced punishment, apart from imposing a fine, assets can also be confiscated, this is so that the imposition of the fine can be used as a lesson or legal perspective for the wider community, rather than just being sentenced to imprisonment/ prisons are indeed less effective, because in the implementation of confinement/imprisonment sentences there are still leniencies which do not actually have a deterrent effect on perpetrators of criminal acts.

The Position of Diversion Against Victims of Child Sexual Abuse

The application of diversity by law enforcement officials is based on the authority of law enforcement officials called discretion or child discretion as the potential of the state in the context of the survival and glory of the nation, is how the government's commitment in making children superior. priority in the formation of juvenile judges and courts as the last bastion in the process of resolving children who face the law in Court. Police and communities must synergize and develop common perceptions of diversion and restorative justice. Parents must participate in providing protection to children by fulfilling children's rights, protecting children's interests and further increasing supervision of children's environments and playgrounds.

The reform of family law and Family courts in the Republic of Cyprus

La riforma del diritto di famiglia e delle Family courts nella Repubblica di Cipro
 ABSTRACT: This essay addresses the 2023 amendments to Article 111 of the 1960 Constitution of the Republic of Cyprus, as well as family law reforms in the light of the religious or belief minority rights protection, promotion, and implementation. In doing so, the article relies on the findings of the Atlas of Religious or Belief minority Rights research project. The aim is to highlight how the legal system of Cyprus is slowly detaching itself from the millet logic inherited from the Ottoman past and it is further aligning with European and international standards on the protection of minority rights in different policy areas, including family law and marriage. However, religious affiliation and religious legal systems still bear significance on some issues pertaining to family law, marriage, and dissolution of marriage.
 SUMMARY: 1. Introduction - 2. Religious (and ethnic) affiliation in the “intractable” Constitution of the Republic of Cyprus - 3. Family courts: Article 111 of the Constitution and the Orthodox Church - 4. The Family Courts of the Religious Groups - 5. The Eighteenth Constitutional Amendment and the recent family law reforms - 6. Concluding remarks.