Procedural Reform Research Articles

Procedural reform or code change: a tax look from the district of Lima Este

La autora analiza los aspectos que deben comprenderse para la reforma procesal penal y los contrasta con el proceso de implementacion que se viene realizando en el distrito judicial de Lima Este. Ademas, expone la poca importancia que se le ha brindado al rol que cumple el Ministerio Publico en el proceso de reforma. Finalmente, senala las dificultades que deben afrontar los fiscales en la aplicacion del nuevo modelo procesal penal, como el consiguiente riesgo del fracaso de la pretendida reforma.DOIhttps://doi.org/10.24265/voxjuris.2020.v38n1.05

Vexata quaestio: sobre las dilaciones parlamentarias en la designación de titulares de órganos constitucionales

Los repetidos y frecuentes retrasos en la designación parlamentaria de los miembros de órganos constitucionales representan un serio problema para el sistema político español, particularmente respecto de aquellos órganos relevantes en el ámbito de la Justicia, como son el Tribunal Constitucional, el Tribunal de Cuentas y el Consejo General del Poder Judicial. Tales dilaciones pueden provocar no sólo disfunciones en la labor de esos órganos, sino también graves peligros para la imparcialidad e independencia judicial. En el presente artículo, tras una breve descripción del alcance de esas dilaciones, se analizan algunas propuestas de reforma efectuadas, incluyendo la supresión de prórrogas del mandato de los designados, la propuesta de candidatos por entidades fuera del Parlamento y la alteración del cómputo del mandato de los elegidos. Analizando varios ejemplos de dilaciones, se efectúan algunas propuestas de reforma del proceso parlamentario de designación, mediante el establecimiento formal de plazos rígidos para la presentación de candidaturas y su votación por las Cámaras.

Global Civil Procedure

A “global” civil procedure has emerged and has found its way into debates over procedural reform in both the international and domestic arenas. Global civil procedure includes the procedural rules, practices, and social understandings that govern transnational litigation and arbitration. A global civil procedure norm is a norm adopted across courts or arbitration providers with the purpose of making that jurisdiction or provider more competitive in attracting transnational litigation or arbitration. Global civil procedure norms are at stake in multiple present trends and debates, including model laws in commercial arbitration, the procedure of international tribunals, the debate over investment dispute resolution, the rise of courts oriented towards international litigation, and sprawling litigation the spans multiple jurisdictions and fora. This Article discusses emerging global civil procedure norms in three areas: tribunal independence, aggregation, and discovery. On a surface level, the values reflected in global civil procedure seem to be roughly the same across jurisdictions. A common language has emerged around competition for litigation business and procedure values such as efficiency, certainty, and impartiality. Yet different legal systems do not necessarily agree on the purpose of various shared elements of global civil procedure. For democracies, for instance, the purpose of procedural reforms might be to facilitate access to justice. Other countries may favor the same reforms because they facilitate top down administrative control of judges. Surface agreement can submerge these divergent logics, but they may ultimately lead to very different applications of harmonized rules.

Первые итоги процессуальной реформы

Первые итоги процессуальной реформы

Reforming the investor-state dispute settlement mechanism and the host state’s right to regulate: a critical assessment

This paper aims at understanding the relationship between the investor-state dispute settlement (ISDS) mechanism and the host states’ right to regulate. Fragmented into over 3300 bilateral investment treaties (BITs), international investment law is being increasingly challenged by states who believe that the regime is imbalanced. This can be seen from the decision of various states to either opt out of bilateral investment treaties or to reform the existing treaties. This paper would analyze the several connotations that the term right to regulate possesses and then attempt to see whether the present ISDS mechanism poses threat to host state’s regulatory power. Right to regulate for the purpose of this paper means the right of states to deviate from their investment commitments for public purposes such as health, environment, sustainable development, corporate social responsibility, without incurring the duty to compensate. It is stated by various authors that the investment regime has led to a situation of regulatory chill. Regulatory chill is understood to be a situation where governments do not enact or enforce legitimate regulatory measures due to concern about ISDS. The paper argues that though the present system imposes limitations on the host state’s right to regulate, it cannot be said to have created a chilling effect. It is further discussed that the ambiguity of the ISDS procedure leads to a situation where both states and investors are unclear about the outcome of a dispute. This lack of clarity creates uncertainty whenever a dispute is brought before an arbitral tribunal. It is argued that procedural reforms to the ISDS mechanism could be one way to remedy this situation. Making the system more transparent, forming a clear standard of review, and establishing a permanent arbitration forum or creating an appellate mechanism are some of the ways which could help in striking a balance between investment protection and protecting the host states’ right to regulate.

Reform of civil procedure in Cyprus: Delivering justice in a more efficient and timely way

Dissatisfaction with the administration of justice is as old as law proclaimed the distinguished American legal scholar Roscoe Pound in 1906. The system of administration of justice has been under considerable scrutiny in Cyprus following the excessive delays in resolving disputes that are highlighted in reports such as the European Union’s Justice Scoreboard, the World Bank’s Doing Business Reports as well as European Commission papers on Cyprus, urging authorities to modernize the system in order to be able to meet the demands following the financial crisis. For this reason, various experts have been assigned with the task of identifying the problems and coming up with proposals and solutions. The discussions, though, are not new as similar problems have been presented in common law jurisdictions, in particular, but they have been tackled decades ago, with the adoption of reforms that moved the adversarial system of justice closer to civilian stereotypes.

The New Psychology of Expert Witness Procedure

Can procedural reforms effectively regulate expert witnesses? Expert procedures, like codes of conduct and court appointed experts, remain controversial among academics and courts. Much of this discussion, however, has been divorced from the science of the reforms. In this article, the authors draw from emerging work in behavioral ethics and meta-science that studies procedures analogous to those that are being used in courts. This work suggests that procedures can be effective, as they have been in science, if directed at key vulnerabilities in the research and reporting process. The authors’ analysis of the meta-scientific and behavioral ethical literature also suggests several nuances in how expert evidence procedure ought to be designed and employed. For instance, codes of conduct require specific and direct wording that experts cannot interpret as ethically permissive. Further, drawing on a recent case study, courts have an important role to play in establishing a culture that takes codes as serious ethical responsibilities, and not simply pro forma.

Fracking, Federalism, and Private Governance

The United States is in the midst of a natural gas boom, made possible by advances in drilling and extraction technologies. There is considerable disagreement about the relative benefits and costs of the boom, but one thing is certain: it has caught governments flat-footed. The federal government has done little more than commission a study of some associated public health and environmental risks. States have moved faster to address natural gas risks, but with little consistency or transparency. Numerous private organizations are beginning to fill the resulting governance gaps with information-gathering and standards-setting efforts. This Paper documents these efforts and then uses a concrete policy proposal — the development of sustainable shale gas credits — to argue that these private entities are well positioned to facilitate the development and horizontal and vertical diffusion of innovative public governance strategies. In other words, these entities are fulfilling the experimentation function once assigned to states in so-called “laboratory federalism.” The Paper ends on a cautionary note, however. Private governance efforts often suffer from a lack of openness, balance, and accountability. Worse, there is reason to fear that familiar procedural reforms aimed at fixing those problems for public agencies may work far less well in the private context.

Transforming the Culture of Chinese Prosecutors Through Guiding Cases

Public prosecutors are a key element within the legal complex, and crucial to the effective implementation of legal reforms. China’s procurators (public prosecutors) have previously colluded with local governments, police, and courts to “strike hard” against crime while overlooking systemic beating and torture of detained suspects to obtain confessions, shoddy investigative practices, and frequent miscarriages of justice. However, fifteen sets of Guiding Cases issued by the Supreme People’s Procuratorate since 2010 promote an unprecedented change in Chinese procurator culture away from “striking hard” to substantive protection of criminal suspects’ rights and exclusion of tainted evidence. They reinforce criminal procedure reforms since 2010 by demonstrating how procurators should protect innocent people against wrongful convictions and police brutality. They also stress the broader duty of China’s procurators to uphold the public interest against corrupt businesses and officials, especially in food safety, land-taking, and environmental protection cases. With other key actors in China’s “legal complex”—rights lawyers and civil society groups—still suppressed by the government, this effort to transform procurator culture is an essential, though still incomplete, step on China’s tortuous path toward a fair and just legal system.

Conciliatory Justice in Modern Russia

The research studies conciliatory justice in modern Russia. Its formation and peculiarities in the institution of alternative ways of resolving legal conflict on the example of mediation are considered. Various views regarding the mediation definition are analyzed, and the author's vision of this category concept is given. The origins of mediation history abroad and in Russia are studied. The essence and peculiarities of mediation application as an alternative method of economic disputes settlement are characterized. The benefits of using conciliatory procedures in a business environment are revealed. The main aspects of the procedural legislation reform initiated by the Supreme Court of the Russian Federation concerning the change in the legal regulation of conciliatory procedures application in the settlement of legal conflicts are outlined. It is noted that the beginning of procedural reform in Russia with regard to dispute settlement through conciliatory procedures was triggered by the resolution of the plenum of the Supreme Court of the Russian Federation ‘On submission to the State Duma of the Federal Assembly of Russian Federation a federal law draft ‘On amendments to a number of legislative acts of the Russian Federation in connection with conciliatory procedure improvements’ adopted on 18 January 2018 and the resolution of the Government of the Russian Federation. Statistics on the ratio of dismissals agreed, dispute settlement through the mediation procedure, as well as plaintiff-triggered dismissals are provided. Methodology: the study is carried out on the basis of the universal method on scientific study of the social development principles –dialectical materialism provisions, as well as general and specific scientific methods: dogmatic, regulatory legal, legal comparative, fragmented historical and legal, case studies (statistical data and judicial statistics analysis), logical (hypotheses, analogy, modeling, analysis and synthesis methods), philosophic (axiological, derivation methods on the basis of priori and axiomatic provisions), generalization and abstraction methods. Conclusions: To date, entrepreneurs are increasingly using conciliatory procedures when settling disputes. This way of dispute settlement becomes very convenient, businessmen are not in the need to spend their time on litigation, often protracted, but can settle issues more quickly and effectively. Today, conciliatory justice in the Russian Federation is going through the stage of formation and development and in the future is to become a demanded institution of judicial law.

The Dilemmas of Constitutional Courts and the Case for a New Design of Kelsenian Institutions

Legal and political controversies persist about the performance of Kelsenian-type constitutional courts in democratic systems. One of the reasons is that the design of these institutions cannot easily accommodate simultaneous but conflicting demands for the strong protection of democracy and human rights, judicial independence and constitutional restraint. Challenging the dominant approach to the design of contemporary constitutional courts, this article proposes a new way to balance these three values through reforms to the structure of Kelsenian institutions. The proposal seeks to institutionalize constitutional restraint, embedding it into courts’ internal functioning rules while, concurrently, emancipating constitutional judges from political control through a reform of appointment procedures. It is argued that the combined effects of these two reforms will produce constitutional courts that are more independent and able to protect the core elements of a democratic political community while, at the same time, increasing constitutional deference to the democratically elected legislator.

The role of the supreme courts: in the search of the balance between private and public interests in civil procedure

The article is devoted to the analysis of the problem issues of the role of the supreme courts in common law and civil law legal traditions through the prism of models of proceedings in such courts in order to determine the general trends in this field. The author analyzes three main models of the proceedings in courts of the highest instance: a second appeal, a cassation and a revision. A second appeal model refers to the common law countries, and cassation and revision models refer to civil law countries. Analysis of the civil procedural legislation and resent reforms of civil procedure in European countries give grounds to conclude that there is a strong tendency to convergence between cassation and revision models nowadays. The author analyzes two main approaches to the identification of the role of supreme courts in modern societies: conception of private interests and conception of public interests. The cassation model of appeal reflects the priority of the private legal interests in the activity of the supreme courts, instead the second appeal model is the predominance of the public legal foundations. More promising direction from the point of view of achieving the tasks of civil justice is the election at the national level of a model in which preference is given to public-law interest during proceedings in the highest court which is reflected in revision model. The recent proposed changes to the civil procedural legislation of Ukraine testifies to the strong tendency of approximation of the national cassation proceedings model to the revision model. Such situation is justified and reflects the current trends in the development of civil procedural legislation in European countries.

Le devenir des grands criminels

ObjectivesWhat happens to those who are called serious criminals once the conviction has been handed down and the possibilities for appeal exhausted; and, first and foremost, what is meant by the term serious criminal? Is this only the penal qualification of a criminal conviction, or should it be combined with the length of the sentence? Is the repetition of criminal acts a condition for this designation, or is the “simple” sentence of life imprisonment, whatever the reason for the sentence, sufficient? MethodsThrough the examination of the various legislative developments and the confrontation between different players in the judicial system, the future of these subjects is put into perspective. ResultsThe difficulty of finding a single definition of the concept of serious criminality illustrates, on its own, the diversity of profiles and individual situations it covers. However, given the sociology of long-term prisoners, the combination of three criteria, excluding the repetition of criminal acts, seems relevant to the definition of the concept of a serious criminal: the sentencing of the individual, male or female, a sentence of at least 15 years, the assignment of the convicted individual to a penal institution, whether a jail, a prison, or a maximum security prison. The definition criteria therefore exclude the nature of the acts that led to the conviction, the question of repeat offenses in the commission of criminal acts, as well as the age group to which he belongs. As of July 1, 2018, according to figures from the French prison administration, 500 prisoners were serving a life sentence, 1,000 prisoners were serving a criminal sentence of more than 20 years, and 5,200 prisoners were serving a criminal sentence of more than 10 years, out of a total number of 71,000 prisoners. DiscussionFor these serious criminals, how can we reconcile the objectives set by the law with regard to the function assigned to the prison sentence – namely to prepare the integration or reintegration of the convicted person in order to enable him to act as a responsible person, respecting the rules and interests of society and avoiding the commission of new offenses – with the crucial question of dangerousness in the case of serious criminals? Whether or not the convicted person is considered a major criminal, the objective of the prison journey must remain the same: to allow a safe return to civilian life from the point of view of society and to provide security for the convicted person. This secure return will be made possible if all the parties involved (the prefectoral authority, the judge in charge of enforcing sentences, representatives of the public prosecutor's office, integration and probation prison counsellors, coordinating doctors) work in concert, the challenge in terms of public safety being essential. ConclusionTo talk about the future of serious criminals requires, after the relatively unknown question of the management of detention, that we look at the question of the adjustment of the sentence. Recent criminal procedural reforms, which have focused on combating prison overcrowding and limiting the imposition of short prison sentences, have had relatively little impact on those sentenced to very long sentences. The treatment of serious criminals in detention and then at the sentencing stage has its own specific features. The objectives sought are first of all those common to all persons serving a sentence of imprisonment or criminal confinement, namely the prevention of recidivism and the rehabilitation of the convicted person, objectives set out in article 707 of the French Code of Criminal Procedure. Follow-through with serious criminals in the event of a return to civilian life also deserves attention because it differs from the way other cases are handled.

Analysing the quality of Australian universities’ student anti-bullying policies

ABSTRACT Bullying has been a topic widely researched in schools and the workplace, however, comparatively there is a paucity of research into bullying among university students. This is an oversight, as bullying may also have negative consequences for university students, ranging from anxiety to suicidal ideation. Anti-bullying policies are an important part of bullying prevention and intervention, however, due to Australian Federal legislation, policies for students are not mandatory at universities. To be an effective prevention and intervention strategy, anti-bullying policies and procedures should be informative, supportive, well publicised, and student user friendly. Through analysing the anti-bullying policies and procedures from 39 Australian universities, using a 37-item analysis tool adapted from Purdy and Smith as well as thematic analysis, this study aims to determine if Australian universities are providing students with the information and support they need to be able to report bullying to their university and study in a safe environment. Both strengths and weaknesses were found in 37 individual universities’ student anti-bullying policies and procedures, as well as overall trends displayed by universities Australia-wide. The overall paucity of information and consistency, as well as the poor user-friendliness of many of the documents, highlights the need for changes to be made. Without the reform of student anti-bullying policies and procedures in Australian universities, students will be unsupported and ill-equipped to identify and report bullying. Universities will also run the risk of gaining a bad reputation and not promoting a bully-free culture for students in which to learn and socialise.

Reforming the International Criminal Court: 'Lean In' or 'Leave'

In the last three decades the International Criminal Court has grown beyond all expectations. However, this growth has come with increased criticism, leading the ICC to a pivotal moment. This essay tracks the development of the ICC “Leave Campaign”, noting similarities with the arguments levied by the United Kingdom against the European Union. The essay concludes, however, that while there are some legitimate criticisms of the ICC, proponents of withdrawal tend to exaggerate the difficulties presented in their advocacy of abandonment rather than reform. The author argues that, despite such criticisms, the ICC remains necessary to end impunity for the most serious crimes. In light of this, the essay explores potential reforms for the ICC. It focuses on procedural reforms, improving the Court’s jurisprudence, increasing State support, adjusting expectations, and building national and regional frameworks to prosecute crimes. It concludes that ultimately, the ICC fulfills a pressing societal need and that civil society and States should remain engaged with the Court and “Lean In” to its reform and ultimate success.

International Surrogacy Arrangements - Perspectives on International Regulation

In January 1988 the Supreme Court of Canada struck down the country's archaic abortion law on the ground that it imposed arbitrary delays and unfair disparities in access to abortion across the country. Since then, the conservative government of Canada has made a few attempts to introduce a new abortion policy, but it did not get passed in the parliament because the revised bills failed to protect women's right to 'life, liberty, and security of the person' within the meaning of the Canadian Charter. Canada has been without an abortion law for over four years and there has been a wide range of provincial policies and confusion in the country. Despite the legal vacuum, Canadian women are not frenziedly having abortions. However, the militancy of the anti-abortion groups has steadily intensified with continued assault on a woman's right to make reproductive choices. Since no law, short of banning abortions altogether, is going to satisfy abortion opponents, the abortion battle will rage on in Canada.

That's an Order! The Orders of the CJEU and the Effect of Article 99 RoP on Judicial Cooperation

The benefits of timely justice and rigorous judicial argument are impossible to overstate and hard to reconcile. In its struggle to deliver both, the Court of Justice of the European Union has initiated several reforms of its procedures. The so-called adjudicating orders arguably achieve the impossible: They fast-track recurring questions while safeguarding legal coherence. The present article unpacks this premise. It shows that seemingly inconsequential procedural amendments, often overlooked by scholars, give the Court full control over relevant European legal problems, and centralize its power. Concretely, the analysis introduces a typology of orders of the Court, to demonstrate the unique legal character of adjudicating orders. It then investigates their effects against the backdrop of manifold procedural reforms and institutional adjustments. The findings indicate that the greatest efficiency gains follow reforms, which the Court initiates and implements in relative anonymity. Moreover, the use of adjudicating orders increases in response to a sudden and considerable increase of legally similar preliminary references from one Member State. An equal increase of references from the courts of several Member States has no such effect. The findings suggest that the Court uses adjudicating orders to disengage from 'local' problems and unilaterally terminate the conversations with resolute national courts. Thereby, the preliminary reference procedure, envisaged and promoted as a collaborative tool, transforms into a centralized mechanism of speedy and authoritative dispute resolution.

Unshackling Plea Bargaining from Racial Bias

When an African American male defendant tries to plea bargain an equitable justice outcome, he finds that his justice rights are compromised because of the deep-rooted racial bias that casts African American men as dangerous, criminal, and animalistic. Because of its efficiency, plea bargaining has become the preferred process used to secure convictions for upwards of 97 percent of cases. This efficiency, however, comes at a cost. The structure and process of plea bargaining makes it more likely that, the racial bias that has historically existed against African American male defendants, will taint the negotiation process and justice outcomes. The racial profiling by the police, the presumption of guilt rather than innocence of African American men, the prosecutor’s discretion in charging the defendant, and the speed of the justice negotiation itself all contribute to the harsher negotiated sentences that African American male defendants receive compared to white defendants accused of similar crimes. These racially tainted outcomes threaten the integrity of our justice system and the core of our democracy. This article traces the origins of racial bias in plea bargaining by chronicling the historical relationship among three societal developments: the continuation of slavery, the development of our criminal justice system, and the evolution of plea bargaining The article then explains how the structure of plea bargaining as it is practiced today makes it likely for these historical racial biases to fester and manifest themselves. Culling from the research of cognitive psychologists, dispute system design scholars, and anti-racism educators, this article prescribes organizational and procedural reforms to unshackle plea bargaining from racial bias.

Modern Models of Public Administration in EU Countries: Implementation Experience

The comparative characteristics of European public administration systems are presented. Particular attention is paid to new models of public administration in EU countries: New Public Management (NPM); New Public Governance (NPG) or New public service (NPS); Good Governance (GG). Both positive and negative characteristics of these government models are listed. Successful reform of public administration is revealed through the creation of appropriate institutions and adherence to the relevant principles, procedures, and standards of public administration and values that should be guided by civil servants. It is proved that the sphere of organization of public administration and civil service in the EU has wide experience through the implementation of so-called «soft» standards. The focus is on highlighting effective tools for reforming public administration in the EU, their main functions. The implications of NPM implementation for European regions, which were adapted by Walter Kicker’s presentation, are outlined. The key features of the new public administration and the cardinal directions of administrative reforms implemented in each EU country are identified, as well as the improvement of the main interconnected components of the public administration system, which include: institutions; rules and procedures, processes and mechanisms for coordination of cooperation; personnel potential. The realization of the reform of the public administration through the reform of administrative procedures, the development of the civil service, the process of decentralization and agencification were clarified. In modern democratic states, managerial innovations are aimed at supporting market mechanisms for democratization of public authorities; market marketing (transformation) of the work of the state with the mass introduction of methods of state managerialism. In these government models, a customer-centric approach is put in place to develop an appropriate strategy based on consumer values, meeting expectations from service providers and implementing information technology.

The effectiveness of the constitutional complaint as a legal remedy against the violation of constitutional rights

The article is devoted to the effectiveness of the constitutional complaint as a specific subsidiary legal remedy against the violation of constitutional rights. The article analyzes significant legal consequences of the consideration of constitutional complaints by the Constitutional Court of Ukraine with their relation to the protection of the person’s fundamental rights and freedoms and the system-functional connection of constitutional complaint with other remedies.Three groups of approaches are examined to determine when the Constitutional Court acts start to act: ex tunc ("from the beginning"), ex nunc ("from now") and pro futuro ("to the future"). The contradistinction of the doctrine of nullity acts (recognized as unconstitutional) and the doctrine of their derogation has been investigated. The analysis of the national court decisions revealed that the unconstitutionality of the court's application of a legal act or its separate provision does not determine the review of the final court decisions. It is proved that the regulatory mechanism of functional interaction of the courts concerning casual constitutional control needs the most urgent but thought-out adjustment.It should also be stated, that the approach taken to the 2017 procedural reform to determine the legally significant consequences of the unconstitutionality of a law, another legal act, or their separate provision applied by a court in resolving a case, remains to be unchanged. However, the existence of this approach seems to be at least paradoxical regarding the adoption of a constitutional complaint in Ukraine, which is one of the newest legal remedies of subsidiary and exclusive nature.Subjects of the right for constitutional complaint, having exhausted all other national remedies, having fulfilled the complex requirements in drafting and lodging a constitutional complaint, will not be able to review the final court decision in their case, in which a court applied the law recognized as unconstitutional (whole or its separate provision). Contrary to the direct reference to such possibility in the procedural legislation.It is not possible to resolve the current situation without changes to the Constitution of Ukraine and the Law on the Constitutional Court on the validity of the acts of the Constitutional Court of Ukraine as a whole, and on decisions on constitutional complaints in particular.