Principle Of Specialty Research Articles

ICC: Prosecutor v. Dominic Ongwen

The International Criminal Court for the first time found guilty and sentenced a perpetrator of gender-based crimes under international law. Moreover, it did so by defining a new crime of forced marriage, which was considered by the international criminal law as “other inhumane act.” In its judgements, the International Criminal Court dealt with the challenges based on violation of legality and non-retroactivity principles. Further, it dealt with distinguishing the crime from sexual-based crime of sexual slavery. It upheld that the forced marriage is distinctive crime from the sexual-based crimes like forced pregnancy, sexual slavery, or rape, and that the principle of speciality does not bar cumulative convictions. Regarding the definition of forced marriage, it is not necessary for its commission to conclude valid marriage and the crime itself is continuing one, thus not only the act of entry into marriage is considered as criminal, but the whole duration of forced marriage. The third chapter puts the present development of international criminal law in the broader perspective of attempts to prosecute gender-based crimes and to distinguish them from the sexual-based crimes. Author comes to conclusions that the gender has to be interpreted in a conservative way and more extensive understandings of gender would require revision of the Rome Statute. International Law Commission itself was not firm in answering what the current rules on gender are.

Transfer of Fiduciary Guarantee Object Under the Hands of the Debtor without the Creditor's Consent in the Consumer Financing Agreement (Study at PT Adira Dinamika Multifinance TBK Banda Aceh)

Article 23 paragraph (2) of Law No. 42 of 1999 concerning Fiduciary Guarantee states that: are prohibited from transferring, pawning, or renting to other parties objects that are objects of Fiduciary Guarantee that are not items of inventory, except in advance written from the fiduciary recipient. In practice, the transfer of the fiduciary guarantee object is carried out by the Debtor without the consent of the Creditor. This happens in the consumer financing agreement of PT Adira Dinamika Multifinance with the Debtors with the object of guarantee in the form of motor vehicles. This study aims to explain the transfer of motor vehicle guarantee objects with fiduciary guarantees without creditor approval. The study will also discuss the form of legal protection for creditors against the transfer of fiduciary collateral objects. The research method used is normative legal research method. The materials used are primary legal materials, secondary legal materials, and tertiary legal materials. The primary data was obtained through interviews and field studies. The secondary data is obtained through the study of documents and literature. The results showed that the transfer of fiduciary guarantee objects in consumer financing agreements resulted in debtors having committed defaults as well as Unlawful Acts. Legal protection of creditor rights can be implemented through the registration mechanism of fiduciary guarantee and the sale of fiduciary guarantee objects through the conduct of auction sales. Legal protection can also be done by loading objects with a fiduciary guarantee deed made with an authentic deed in order to appear the principle of speciality.

Glosa do postanowienia Sądu Najwyższego z 1.06.2017 r., III KK 492/16

The subject matter of the study is a critical commentary on the decision of the Supreme Court, in which it advocated the possibility of excluding the principle of specialty under Article 607e(3)(4) of the Code of Criminal Procedure also when the person prosecuted was actually subject to the measure of restriction of personal liberty after his/her transfer into the territory of Poland.

Specialty: Arresting an elusive ‘right’ in European extradition law

Specialty (a near-universal rule of extradition law whereby a person extradited cannot be prosecuted or punished for matters other than those for which they were extradited) is viewed traditionally as a tool to protect the sovereignty of the extraditing state, rather than as an individual right. A review of international material shows a dispute as to the existence of a rule or principle of specialty in customary international law and emphasises themes such as enforceability and standing of individuals to plead violations. Against that backdrop, the European situation is characterised by the presence of broad specialty rules which are not always implemented in legislation by requesting states, leading to refusal of extradition in some cases. Arguably, combinations of the EU law duty of conforming interpretation and European human rights law principles may offer tools to overcome such situations, approaching protection of specialty ‘rights’ whatever the original doctrinal rationale. If they do not, and international cooperation is further undermined by ineffective specialty protection, EU legislation or the development of soft law standards may be a useful way forward.

Las perspectivas de tutela aplicables ante la publicidad engañosa en el derecho chileno

El presente artículo tiene por propósito indagar las diferentes perspectivas de tutela de la publicidad engañosa en el derecho chileno a partir de un examen de la Ley sobre protección de los derechos de los consumidores, de la Ley sobre composición nutricional de los alimentos y su publicidad, del código civil, de la Ley sobre Competencia Desleal, de la Ley sobre Propiedad Intelectual y de la Ley sobre Propiedad Industrial, evidenciando un eventual concurso entre ellas y determinando si este puede solucionarse a través del principio de especialidad o de la elección que realice el afectado por ella según su propio interés.

The other side of the Article 21(3) coin: Human rights in the Rome Statute and the limits of Article 21(3)

AbstractThe drafters of the Rome Statute sought to accord human rights a central place within the legal framework of the International Criminal Court (ICC). This was done not only through numerous provisions on the rights of the accused, victims, and witnesses, but also through the inclusion of the overarching Article 21(3) of the Rome Statute. Article 21(3) Rome Statute requires that the interpretation and application of all ICC law be consistent with internationally recognized human rights. While this provision has been employed on numerous occasions to bolster human rights protection in the ICC legal framework, it is not without its limits. In a series of decisions over the past few years, ICC judges have placed limits on the protections that can be read into the ICC legal framework on the basis of Article 21(3). Beyond stating that the ICC ‘is not a human rights court’, the decisions in question articulate no clear justification for the limitations imposed on Article 21(3). The present article analyses these decisions and identifies the underlying rationale for the Court’s approach: the principle of speciality. However, the picture is further complicated by the judges’ willingness to overlook the principle of speciality when particularly serious violations of human rights are involved. This leaves the precise contours of human rights protection in the ICC legal framework undefined.

New Kids on the Block

Abstract One of the most contentious issues of the “Identification of Customary International Law”, a topic the International Law Commission has recently finalized its work on, concerns the extent to which international organizations (IOs) play a part in the creation of customary norms. Conclusion 4(2) of the 2018 draft provides that “[i]n certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.” The official commentary recognizes two such cases: i) when States “have transferred exclusive competences to the [IOs]”, and ii) when States “have conferred competences upon the [IOs] that are functionally equivalent to powers exercised by States.” After questioning the utility of the Commission’s approach, this contribution outlines an alternative analytical framework for IOs’ participation in the creation of customary rules grounded in the principle of speciality and premised on the ratione personae applicability of the rule to be identified.

Perlindungan Hukum Kreditor Pemegang Hak Tanggungan Terhadap Obyek Hak Tanggungan Yang Diletakkan Sita Jaminan (Analisis Putusan Pengadilan Negeri Jakarta Timur Nomor 321/PDT.G/2012/PN.JAKTIM Dan Nomor 211/PDT.G/2014/PN.JAK.TIM)

The purpose of this study was to find out and analyze the legal protection of holders of liability rights to the placement of collateral seizures on objects of mortgages and legal remedies for holders of mortgage rights in the presence of collateral seizures on objects of mortgage rights. From the results of the study it is known: First, the UUHT has provided forms of legal protection for holders of mortgage rights, among others, giving a priority or prioritizing position (droit de preference); always follow objects that are guaranteed in the hands of whoever the object is (droit de suite); fulfill the principle of speciality and publicity so that it can bind third parties and provide legal certainty to interested parties; as well as easy and sure execution. So that it should be if the object of the dispute that has been burdened with mortgages should not be placed confiscated in order to ensure legal certainty in the implementation of the parate execution. Secondly, the Mortgage Rights Holder whose interests are harmed by the decision/determination of seizure guarantee can make a third party resistance (derdenverzet). The interests of creditor holders of mortgage rights are clearly disadvantaged due to the placement of seizure guarantees on the object of mortgage rights, because the holders of mortgage rights cannot carry out executions in the presence of seizure guarantees.

Trade marks with a reputation and famous marks: differences in approach between the European Union, Poland and the United States in relation to the principle of speciality

The protection of a trade mark with a reputation in the European Union law and of a famous trade mark in the US federal law is broader than that granted to ordinary trade marks. The scope of protection of marks with a reputation and famous mark indicates that the principle of speciality is enforced in the federal US law to a larger extent than in the EU law and, in turn, in some Member States of the European Union, in particular Poland. Arguably, this difference results from the differences between the definition of a trade mark with a reputation, used in the European Union, and a famous mark, used the United States. The main difference in US law is that the fame of a mark is defined globally with respect to the general consuming public of the United States, whereas the Court of Justice has indicated that in the European Union whether a trade mark has a reputation is assessed by reference to a significant part of the public concerned with the products or services covered by the specification. Thus, in the EU law, the reputation of a trade mark may be perceived with respect to a narrow group of the public, for example specialists in a given field.

PLAČIAI ŽINOMŲ PREKIŲ ŽENKLŲ APSAUGĄ PAGRINDŽIANČIŲ TEORIJŲ ANALIZĖ

Straipsnyje analizuojamos teorijos, pagrindžiančios plačiai žinomų prekių ženklų apsaugą, įtvirtintą Sutarties dėl intelektinės nuosavybės teisių aspektų, susijusių su prekyba (TRIPS), 16 straipsnio 3 dalyje. Straipsniu siekiama atskleisti pagrindines remiantis TRIPS 16 straipsnio 3 dalimi saugomas prekių ženklų funkcijas ir jų ribas bei nustatyti galbūt tinkamiausią šios apsaugos doktrininį pagrindimą.

ASPEK HUKUM PENGADAAN BARANG DAN JASA PEMERINTAH, SUATU TINJAUAN YURIDIS PERATURAN PENGADAAN BARANG DAN JASA PEMERINTAH

Procurement of goods and services for the benefit of the government is one tool to drive the wheels of the economy, in order to improve the national economy to the welfare of Indonesian life, for the procurement of goods and services, especially in the public sector is closely linked to the use of the state budget. Through normative juridical research, this study found the legal aspects of government procurement of goods and services, especially in terms of a review of the juridical rules of government procurement. Arrangements regarding the procedures for the procurement of government goods and services in Presidential Decree No. 54 Year 2010 jouncto Presidential Decree No. 70 The year 2012 is expected to increase conducive investment climate, efficiency of public spending, and accelerating the implementation of APBN/APBD. Government procurement of goods and services currently on aspects of administrative law, civil law and criminal law. In the procurement of goods and services should apply the general principles, good principles that have long been known in state financial management, such as the principle annual, the principle of universality, the principle of unity, and the principle of specialty as well as the principles of the new as reflecting best practices (application of the rules good) in the management of state finances.

La especialidad del proceso penal juvenil y el procedimiento abreviado

This paper examines the relations between the principle of specialty stablished in the criminal procedure of juvenile offenders and the plea bargain regulated in the code of criminal procedure for adults. The analysis approaches three mains aspects. First, it develops a general assessment about the arguments in favor and against the properness of the plea bargain considering the guidelines and principles that limit the juvenile criminal system. Second, a concretion proposal of the principle of specialty at the topic under study. And finally an examination of the competences and capacities of youth required to stand in trial, and the requirements derivatived from them to the waiver of rights and exercise the right of defence.

Extradition Law: Indian Perspective

This Research Paper deals with the following constellation of issues albeit the law of extradition apropos India: Principle of Double Criminality, Principle of Speciality and Political Exception. Author has impressed upon the following case laws: Dr. Babu Ram Saksena v. The State, AIR 1950 SC 155; The State of Madras v. C.G. Menon, AIR 1954 SC 517; Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors., AIR 1955 SC 367; In Re: K.R.P.L. Chockalingam Chettiar, AIR 1960 Mad 548; Rajender Kumar Jain & Ors v. State through Special Police Establishment & Ors, 1980 (3) SCC 435; Kubic Darusz v. Union of India, 1990 (1) SCC 568; Sarabjit Rick Singh v. Union of India, 2008 (2) SCC 417; Bhavesh Jayanti Lakhani v. State of Maharashtra, (2009) 9 SCC 551; Mohammed Zubair Fauzal Awam v. State (Represented by the Inspector of Police & Another), 2011 Cri LJ 2975; and P. Pushpavathy v. Ministry of External Affairs, 2013 Cri LJ 4420; to explain and appreciate the applicability of the Extradition Act, 1962 albeit India.

Registration of an industrial design – principle of specialty

Registration of an industrial design – principle of specialty

Mortgage development in Serbia, specialty in Serbian Civil Code from 1844. year

The history of Serbian mortgage law is not too long. The mortgage law began in first half of XIX century. The first Act about mortgage was The Intabulation Law from 1839. year. Mortgage is a right of lien on an immovable which authorizes the creditor to seek satisfaction of his claim for the value of such immovable before of other creditors that do not have mortgage on it, as well as before creditors who have acquired mortgage on such immovable subsequent on him, irrespective of a contingent change of owner of the encumbered immovable. The mortgage was based on some rules. The mortgage is accessory rights. One of the basic features of a security right is its dependence on the claim. The mortgage creditor is entitled to request satisfaction of the claim from the value of immovable encumbered by mortgage, regardless of whether it is still in possession of the mortgage debitor or it has been convened into ownership of a third party. This The Intabulation Law is changed twice. For the first time in 1842 year, and second time in 1853. year. The lack of both changes was missing the principle of speciality. Principle of speciality marks the fact that a guarantee (security), may secure only a definite claim of one creditor and that the guarantee may exist only on a definite set of objects (assets). On one hand speciality of real security interest forbids securing an indefinite number of claims or an indefinite amount of claim, and, on the other, forbids the prospect of indefinite assets, or all assets of the debitor be subject of to such a security interest. This lack are eliminate in the new Intabulation Law from 1854. year, which was incorporated into Serbian Civil Code from 1844. year. The subject of this article is The Intabulation Law from 1854. year.

A Proteção Das Marcas no Direito Brasileiro

A função exercida pelas marcas, que, antigamente, limitava-se à identificação do produtor, evoluiu para uma concepção de marca que, hoje, faz referência ao produto em si. No Brasil, os titulares de marcas têm seus direitos assegurados, primeiramente, face à garantia constitucional conferida à propriedade industrial pelo art. 5º, inc. XXIX, da Constituição Federal, complementada pela disciplina da Lei nº 9.279 de 1996, da Convenção da União de Paris para a Proteção da Propriedade Industrial (CUP) e do Acordo sobre Aspectos dos Direitos de Propriedade Intelectual Relacionados ao Comércio (TRIPS). O direito industrial brasileiro adota o sistema de exame prévio para tramitação de pedidos de marca, por meio do qual o Instituto Nacional de Propriedade Industrial examina as condições de registrabilidade - cunho distintivo, novidade, veracidade e caráter lícito - antes de decidir pela concessão do registro. A propriedade da marca adquire-se pelo registro validamente concedido, mas também são assegurados direitos ao depositante que ainda não teve seu pedido apreciado, podendo desde logo zelar por sua reputação. A proteção marcária é limitada pelos princípios da territorialidade, cuja exceção é a marca notoriamente conhecida, e da especialidade, que tem por exceção a marca de alto renome.

Globalization and Jurisdiction: Lessons from the European Convention on Human Rights

This paper studies the question of the extra-territorial effect of human rights treaties, using the European Convention on Human Rights as an example of the broader questions the growing interdependency of States raises for the understanding of the notion of States' jurisdiction. The caselaw of the European Court of Human Rights is exemplary in that, despite the professed willingness of the Court to examine the issues it is presented with within the framework of general public international law, it cannot fully escape the tension between that framework and the specificity of human rights treaties. Second, nowhere to a larger extent than on the European continent has interState co-operation been developed, and has State sovereignty been restricted, especially – for the Member States of the European Union – due to the supranational character of the Union. This requires not only that we address the question of the “jurisdiction” which States may be said to exercise over situations which are affected, not by measures they have adopted (or could have adopted) unilaterally, but by the combined acts of a number of States, whether or not in the framework of an international organisation. It also requires that we ask whether any positive obligation may be imposed on States to develop further these modes of inter-State cooperation, where this is required for the effective protection of the rights of the individual, and whether this may be reconciled with the principle of specialty of international organisations. These features justify calling the European Convention on Human Rights a laboratory for the understanding of the evolving notion of “jurisdiction” in the era of globalization.

Najohn v. United States

7Extradition — Speciality — Requirement that requesting State refrain from prosecuting defendant for crimes other than those for which extradition granted — Whether requirement can be waived by requested State — Nature of principle of speciality — Whether right to insist upon speciality belongs to requested State or to defendant — Whether defendant having right to assert speciality if waived by requested State — The law of the United States

Extradition from Morocco Case

659The individual in international law — Extradition — Conditions of — Principle of specialty — Enforcement of suspended sentence for previous offence in extraditing State — Whether conditional upon accused having been finally released following completion of term of imprisonment for offence for which he was extradited — The law of the Federal Republic of Germany

Decorte v. SociÉtÉ Anonyme Groupe d'assurances Nedlloyd And Others

The individual in international, law — Extradition — Conditions of — Extraditable crimes — Principle of specialty — Belgium-Switzerland Supplementary Extradition Convention, 1882 — New charge based on same facts as those on which extradition request granted — Whether a violation of Convention — The law of Belgium