Regional Courts Research Articles

A rights‐based approach to the choice of forum in climate displacement litigation: Lessons from the Americas

AbstractFew studies address climate litigation and climate forced mobility together, and the link between climate litigation and internal forced climate displacement remains poorly addressed. This article aims to participate in filling this void. We focus on climate displacement litigation argued before regional human rights courts (the Inter‐American Court) and national human rights protection bodies (the Mexican Commission) to determine the adequacy of each from the perspective of potential litigants. We address institutional, procedural and positive law within the context of water scarcity. We find that while institutional and procedural aspects reveal the potential of the Inter‐American Court in ruling on climate displacement cases, the application of the positive obligations doctrine by the Mexican National Human Rights Commission is more disaggregated and a priori suitable to ground the course of action of potential litigants.

The age profile of court-appointed physicians in Poland. Status at the end of 2021.

The problems with obtaining expert opinions from court-appointed physicians in Poland have been known for a long time and are well-diagnosed. The reasons for this state of affairs are: an overall insufficient number of physicians compared to the general needs, uncompetitive remuneration levels, and the difficulty of reconciling professional and court-appointed expert duties, while taking into consideration the availability expected of experts. The ongoing generational transition may further exacerbate these problems. The purpose of this study was to investigate the latter phenomenon by comparing the age profile of court-appointed physicians with that of physicians in general. Information on the age of court-appointed physicians was obtained from the presidents of regional courts and the Central Register of Physicians, while general statistics on physicians were also acquired from the latter. Research allowed us to formulate the following conclusions: only 0.8% of all physicians in Poland serve a court-appointed expert function. Almost two-thirds of court-appointed physicians belong to the Baby Boomer generation (born in 1946-1964), nearly one-third to Generation X (1965-1980), and only one-sixteenth (6.10%) to Generation Y (1981-1996), or Millennials. The results obtained, as well as data from the literature, suggest that the current bad state of affairs regarding access to the opinions of court-appointed physicians will further deteriorate in the coming years due to generational changes, i.e., the replacement of Baby Boomers and Generation X, currently dominant among court-appointed experts, by Generation Y, i.e., Millennials, with a different attitude to life.

Judges on Russia’s System of Criminal Sanctions

An empirical study of the system of criminal sanctions was conducted by interviewing judges of criminal collegiums of district and regional courts of the Russian Federation, including the chairmen of district and regional (city) courts of the Russian Federation. The article presents and analyzes the results of the judges’ survey. The results obtained demonstrate the opinion of the judicial community on the system of criminal sanctions, on the compliance of sanctions with the norms of the Special part of the Criminal Code of the Russian Federation with the principles of criminal law, as well as on non-effective types of punishment, such as arrest and the death penalty. The ways of solving some problems of the system of criminal sanctions proposed by the judicial community are analyzed. The conclusions obtained have scientific novelty and practical significance, since they contribute to the improvement of criminal legislation and the development of the science of criminal law.

Logging and Indigenous peoples' well-being: an overview of the relevant international human rights jurisprudence

Logging activities worldwide occur on lands that are already inhabited and used by Indigenous peoples and other local communities and often cause negative impacts on those communities. International human rights law provides one framework within which to understand these impacts. In particular, a discrete body of rights within international human rights law pertain to Indigenous peoples. Encroachments on Indigenous lands, such as through logging or other forestry operations, often run up against the full spectrum of Indigenous peoples' rights, all of which are interdependent and interconnected. Numerous human rights bodies, including the United Nations treaty bodies and regional human rights courts, have addressed Indigenous rights in the context of logging and other extractive activities. This article reviews existing jurisprudence elaborating the scope of these rights and explains how respect for land and participation rights can help prevent impacts on other rights. International human rights jurisprudence outlines three steps as core components of Indigenous peoples' participation rights and as safeguards to protect other rights: conduct environmental and social impact assessments; engage in consultations with the affected Indigenous peoples with the aim of obtaining free, prior, and informed consent; and agree on benefit sharing, compensation, prevention, and mitigation measures with the affected Indigenous peoples. However, these requirements, and respect for Indigenous peoples' rights more broadly, remain to be effectively implemented and observed in practice.

Climate litigation in Latin America: is the region quietly leading a revolution?

Climate litigation is a hot topic. Worldwide, jurisdictions are being presented with novel legal cases aiming to address the devastating effects of climate change. Domestic, regional and international courts are facing the challenge, deciding climate-related cases by using a myriad of approaches. Latin America is host to many of these climate litigation cases. Yet, in mainstream climate litigation literature, the role of litigation in Latin America is often overlooked, especially the role of litigation in ‘peripheral’ claims. We argue that limiting the definition of climate litigation to cases that directly invoke climate-change-related claims, albeit useful, ignores a significant number of cases with potentially strong influence in climate governance. We contend that Latin America provides a wide and relevant range of climate cases that could inform how climate governance is shaped, but that the majority of these cases rely on ‘peripheral’ climate claims: that is, on claims that may not directly mention climate change laws or data but which nevertheless have an impact on climate governance. Some of these claims refer to biodiversity protection (ie in the Amazon basin), while others appeal to climate change causes (ie air pollution). Furthermore, cases with innovative approaches such as those invoking the Rights of Nature or Intergenerational Equity also touch upon climate governance and the human–nature relationship. This article draws on the expanding body of climate-related cases in Latin America in order to assess the role of the region in advancing climate litigation.

Law, justice and the role of courts in changing the social superstructure narrative in climate litigation

Law, justice and the role of courts in changing the social superstructure narrative in climate litigation

A RESPONSABILIDADE CIVIL POR ABANDONO AFETIVO

The work in question will deal with civil liability for affective abandonment with a focus on the maternal/paternal-child relationship, given that it is a topic of great relevance for the current legal universe because it is increasingly recurrent for children to be sought by the Judiciary in order to to claim indemnities for moral damages against the father/mother. In order to better present and demonstrate the issues discussed here, the doctrine and jurisprudence of the Superior Court of Justice and some Brazilian regional courts were used. At first, we sought to analyze how the evolution of the Brazilian family occurred, based on the Federal Constitution of 1988, the Civil Code of 1916 and the Civil Code of 2002. Afterwards, civil liability was addressed, demonstrating its elements and how they present themselves in affective abandonment. For this purpose, jurisprudence and real cases wereused. Finally, the issue dealt with here was addressed, with emphasis on family power and affective abandonment. Positions in favor and against the issue of repairing moral damages in these cases were also presented.

Independence of the courts and judges in Germany and the Land ofThuringia in the light of the case law of the Court of Justice. Casestudy analysis of the reference for a preliminary ruling broughtby the Landgericht Erfurt in the case of A.G.E. p. BAG (C-276/20)

On the basis of the pending case A.G.E. v. BAG (C-276/20) before the CJEU, the author attemptsto present the issue of the independence of the judiciary and independence of judgesin the Federal Republic of Germany with the emphasis on the regulation of the Free State ofThuringia. The axis of the problem is the question of whether the Erfurt Regional Court isconsidered to be a "court" within the meaning of Article 267 TFEU and thus the admissibilityof a question for a preliminary ruling. The point of reference will be the existing case law of theLuxembourg Court, in particular the judgment in VQ v. Land Hessen (C-272/19). The analysisof the reference for a preliminary ruling prompts interesting comparative considerations betweenthe Polish and German (federal and Thuringian) regulations on the status of judges, includingtheir appointment and promotion. The aim of the article is to show the German court'sdoubts regarding the interference of the legislative and executive powers with the principle ofjudicial independence. The article may prove interesting in the context of the ongoing heateddiscourse on the rule of law and changes in the judiciary in Poland.

New Histories of Law and Rights in Twentieth-Century Germany

On 1 March 2022, German Foreign Minister Annalena Baerbock accused the Russian President Vladimir Putin's government of waging a war of aggression against Ukraine. Speaking at the General Assembly of the United Nations (UN), she drew explicit links to the Nazi war of aggression in order to legitimise sanctions against Russia as she stressed the UN's mission to work for peace enshrined in the UN charter. Twelve months earlier, in February 2021, the Higher Regional Court in Koblenz sentenced a forty-four-year-old Syrian citizen to four and a half years’ imprisonment. Based on the ‘shared values of humanity’, the verdict made headlines as the court explicitly cited the universal jurisdiction principle enshrined in the Völkerstrafgesetzbuch (VStGB) that had been enacted in 2002 to bring German law into accordance with the Rome Statute of the International Criminal Court.1 Since 2002, German courts have adopted these international law principles and legal norms in a series of legal actions against foreigners to prosecute crimes against humanity.

Defer or Revise? Horizontal Dialogue Between UN Treaty Bodies and Regional Human Rights Courts in Duplicative Legal Proceedings

Abstract There is no formal hierarchy between, or international rule of precedent applicable to, the three regional human rights systems and the eight UN Human Rights Treaty Bodies with active competence to entertain individual complaints. By scrutinising the practice of duplicative proceedings of UN Treaty Bodies (UNTBs), this article makes the argument that the res judicata and lis pendens principles have not prevented the UNTBs from reviewing cases previously examined by a regional human rights court. In doing so, the case is made that while the UNTBs usually defer to regional courts’ factual and legal findings when analyzing cases with the same parties, substantive rights, facts and events, judgments that apply the margin of appreciation doctrine are much more at risk of being revised and contradicted by UN Human Rights Treaty Bodies. Distinct opportunities for horizontal dialogue between UNTBs and regional human rights courts are thus opened.

Overlap Between Article 102 TFEU and Sector Regulation: Case C-721/20 DB Station & Service v ODEG

The Court of Justice ruled on 27 October 2022 on a request for a preliminary ruling from the Kammergericht (Higher Regional Court of Berlin) in a civil proceeding between DB Station & Service AG and ODEG Ostdeutsche Eisenbahn GmbH concerning reimbursements of alleged unfair infrastructure charges. DB Station & Service is a subsidiary of Germany’s state-owned railway incumbent tasked with managing stations, whereas ODEG is a private new entrant using railway infrastructure for passenger transport. It is the latest ruling in a series of disputes before German and EU courts concerning the competence to review those charges and the provisions applicable thereto. The judicial review of railway infrastructure charges in Germany has, for more than a decade, given rise to many fundamental questions related to the interplay between national civil law and EU law, EU primary law and secondary law, and the competences of regulatory bodies and national courts. It would go far beyond the scope of this article to give a comprehensive overview of all aspects of this fascinating saga. However, some background knowledge on the Court of Justice judgement in DB Station & Service is necessary in order to understand its implications.

The African Court on Human and Peoples’ Rights: forging a jurisdictional frontier in post-colonial human rights

AbstractThe African Court on Human and Peoples’ Rights (ACtHPR) was finally established in 2004 after decades of negotiations. Despite forty years of resistance from governments who were reluctant to sacrifice sovereignty to a supranational body, the African Charter on Human and Peoples’ Rights and its Protocol grant the ACtHPR far-reaching authority relative to other regional human rights courts. How did the ACtHPR end up with an expansive jurisdiction that is unprecedented among regional courts? This analysis proposes that legal experts’ ability to capture control over vital stages in the drafting of the African Charter and Protocol, thus limiting the influence of political advisors, yielded an institutional design that facilitated the ACtHPR's unique mandate. Furthermore, colonial legacies in newly-independent states pushed the founders of the African human rights system to envision an innovative, post-colonial human rights framework that integrated a wide-reaching spectrum of civil, political, economic, social and cultural rights.

Judicial Power in its Resource Dimension: The Judicial Department is Twenty-Five Years Old

The object of the study is the system of resource provision of the judiciary in the dynamics of its historical development. The authors analyze the formation and development of the regulatory framework for the functioning of the Judicial Department under the Supreme Court of the Russian Federation as a federal state body that provides organizational support for the activities of the supreme courts of the republics, regional and regional courts, courts of federal cities, courts of the autonomous region and autonomous districts, district courts, military courts for the administration of justice, as well as judicial bodies. communities and financing of magistrates. A comparative legal analysis of the powers of the relevant structure in the UK government system, which is responsible for “ensuring proper conditions for the functioning of the judicial system, its financing and real estate management” – Her Majesty’s Courts and Tribunals Service (HMCTS), has been carried out. As a result, the authors conclude that Russia of the future confidently wins the competition of judicial systems in the international arena largely due to the implementation of state policy in the field of justice through the Judicial Department, which is an important and really functioning institutional mechanism in the constitutional system of protection of human and civil rights and freedoms in the Russian Federation. The scientific novelty of the article is due to the combination of a comparative method with a dialectical approach when comparing the legal statuses of the Judicial Department with the analogue of this body in the judicial system of Great Britain. The combined method of research made it possible to identify the archaic essential parameters of the judicial power of the United Kingdom and to prove that the approaches to the legal construction of the Judicial Department have largely turned out to be more progressive than the principles of the construction of the judicial systems of some foreign countries.

Remedies for child rights violations in African human rights systems

This article provides an overview of remedies for child rights violations in the African Human rights system. Principally the focus is on the communications procedure under the Africa Charter on the Rights and Welfare of the Child (ACRWC). However, the process under the African Court on Human and Peoples' Rights is referred to, as are possibilities at the level of regional courts. The impact of the decisions on communications handed down to date is discussed, as are the remedies that the Committee of Experts on the Rights and Welfare of the Child has fashioned. Implementation of recommendations is a theme throughout the article.1 Challenges and areas for improvement are reflected upon, and a conclusion of the current state of play is provided.

The implementation of reparations in the Inter-American human rights system

Reparations as a consequence of the harm suffered by individuals is a general principle of law, recognized by States as a mechanism to compensate for the harm caused by others. In the regional systems for the protection of human rights, the courts have made important advances throughout their operation in generating progressive interpretations of the principle of reparations as a consequence of human rights violations by States. In the inter-American human rights system, the role of the Inter-American Court of Human Rights has had an important evolutionary development on the interpretations of how States should repair violations committed in their territories. 
 As has already been indicated in the international arena as well as by national courts, reparation for the harm caused is not simply the payment of sums of money. This would be the simplest form that States would have for having caused human rights violations or even crimes against humanity. For this reason, the Inter-American Court, since its first case, has been indicating to the States that economic reparation is only one part of the State's obligation to make reparations. The most important judgments that the regional Court has indicated in its 40 years are marked by the so-called “non-pecuniary reparations”. In other words, reparations that seek to ensure that the events that occurred do not happen again, that the States commit to train their officials in human rights and respect for persons, build schools, hospitals, and roads to improve the living conditions of the victims, etc. 
 For further more about this evolution, this paper develops the main jurisprudence of the Inter-American Court on reparations and how international law has already set important standards to be applied by States.

Examining the value of criminologists’ skills in the context of sentencing objectives: Perspectives from presiding officers in Bloemfontein, Free State Province

The role of criminologists in South Africa and many other countries has been evolving and expanding over the years. Criminologists are increasingly involved in various phases of the judicial process, including the pre-trial, trial, and post-trial stages.1 As a scientific discipline, criminology involves understanding the root causes of crime, its impact on society, and how to prevent and respond to criminal behaviour. However, it stands to reason that in making an informed and balanced contribution to a case in a court of law, the criminologist must familiarise themself with all aspects relevant to the case.2 The current study focused on the perception of presiding officers about criminologists as expert witnesses in their courts during sentencing. This study explored whether presiding officers valued criminologists knowing, understanding and applying sentencing objectives in writing their reports. A qualitative inquiry was conducted to explore whether it is important for a criminologist to understand sentencing objectives in order to provide an overall and thorough report to the court. Semi-structured interviews were conducted with presiding officers from the regional and high courts in Bloemfontein. The findings suggest that presiding officers prefer to appoint a criminologist who understands and has broad experience of all sentencing objectives in South Africa to assist them in deciding on appropriate sentences.

The future International Court of Human Rights with the participation of Russia: options for possibilities

The article raises and examines the problem of the possibility of Russia’s participation in one of the future regional international human rights courts, which has matured after the termination of the Russian Federation's membership in the European Court of Human Rights. The author considers the following options: the Court of Human Rights in the Commonwealth of Independent States, the Court of Human Rights of the Union State of Belarus – Russia, the Asian Court of Human Rights (on the legal platform of the Association of Asian Constitutional Courts and Equivalent Institutions), etc. Being sure that Russia cannot be a member of two or more international human rights courts at the same time, the author justifies the need for States intending to create an International Human Rights Court to develop and adopt an appropriate international human rights act. Only by focusing and relying on this act, the International Court of Human Rights will be able to determine whether the rights of a person who has applied to the Court have been violated and make an appropriate ruling.

Искусственное разделение единого административного правонарушения лицензионных требований в сфере управления многоквартирными домами

The paper deals with the problem of qualification and artificial division of a single administrative offense related to the presence of a debt to the public utilities suppliers by a managing company amounting double average monthly accrual when implementing the entrepreneurial activities on the management of apartment buildings with a gross violation of license requirements. The paper reveals the elements of administrative offense provided by part 3 of Art. 14.1.3 of the Code of the Russian Federation on Administrative Offenses. The author pays the particular attention to the analysis of small, but critically important judicial practice. Often the positions of regional courts contradict the positions of the RF Supreme Court and the general principles of administrative law. A problem of artificial division of a single offense into several independent ones was identified, since the disposition of part 3 of Art. 14.1.3 of the Code of the Russian Federation on Administrative Offenses is formulated inaccurately. Failure to fulfill the obligation for timely mutual settlements with a resource supplying organization may be erroneously qualified as several offenses, depending on the number of suppliers to whom the debt arose, and depending on the period of occurrence of such debt. Such an approach to law enforcement is found among the prosecution and housing supervision authorities. This problem leads to the repeated application of administrative punishment, when a single offense is qualified as several. The study identified general regularities in the approaches of superior courts, starting from the cassation level. These regularities allow determining the more precise conditions for qualifying gross violations of license requirements in the sphere of housing and utilities infrastructure in accordance with part 3 of Article 14.1.3 of the Code of the Russian Federation on Administrative Offenses.

Transnational Insights for Climate Litigation at the European Court of Human Rights: A South-North Perspective in Pursuit of Climate Justice

The global climate crisis is increasingly recognised as an issue of climate injustice, including because it is causing (and worsening) inequalities and human rights violations. Moreover, responsibility for emissions and vulnerability to climate impacts are not evenly distributed. They vary among and within states. In order to tackle these issues of justice both within and among states, litigants have taken to domestic and regional courts to engage in climate litigation. A body of transnational climate jurisprudence is emerging in which courts are increasingly looking to laws beyond their relevant state or region, engaging with the moral aims of human rights law, and solidifying international climate commitments. In adjudicating climate cases, courts have become important sites of climate justice. The European Court of Human Rights (ECtHR) is currently adjudicating several important climate cases and could become a key player in responding to the climate crisis. From the point of departure that in a time of climate crisis courts have a crucial role to play in advancing climate justice, we conceptualise climate (in)justice and its significance in climate adjudication. Then, we examine how, in addressing questions of standing and transboundary harm, looking beyond the European Convention on Human Rights legal regime to the Global South (South Africa and the Inter-American System of Human Rights, respectively) could offer valuable transnational insights as the ECtHR adjudicates climate cases. In doing so we hope to contribute to the ongoing transnationalisation of climate jurisprudence.

Problematyka stwierdzenia nieważności orzeczeń Wojskowych Sądów Rejonowych w praktyce funkcjonowania Oddziału Instytutu Pamięci Narodowej w Białymstoku

The subject of this article is the activity of the Commission for the Prosecution of Crimes against the Polish Nation (CNDP), located in the Bialystok Branch of the Institute of National Remembrance (IPN), in the area of annulling the rulings of Military District Courts (MDC). It presents the tasks of the Commission and the legal acts regulating the procedure of invalidating the rulings of MDCs functioning in People's Poland in the years 1946–1955. The following part enumerates and discusses the structure and competences of the MDCs, with particular emphasis on the one functioning in Bialystok. Thanks to the available prosecution files of the IPN and the source materials from the IPN Archives in Bialystok, the author could present examples of three different rulings issued by the MDC in Bialystok. The cases were analyzed and their course of action during the years of the MDCs operation was shown. It was pointed out that in two cases, the rulings of the MDC were overturned by the Bialystok Regional Court primarily because they were based not on the provisions of the existing law, but on the communist ideology. The last presented case is an example that, according to the court's assessment, there were no grounds for overturning a ruling made during the Stalinist period. The author used the available lists of criminal cases from 1991–2007 and the internal statistics of the Bialystok District Court conducted after 2007, to present the scale associated with the annulment of judgments of MDCs. The number of annulled rulings of the Bialystok MDC was also analyzed in relation to the rejected applications that had no grounds for consideration in favor of convicts in 1946–1955.