Relevant Case Law Research Articles

Qualification of the Surrogate Mother’s Actions in Relation to the Illegal Keeping of the Child, Born in the Surrogacy Program

Situations involving a surrogate mother keeping a newborn child born after assisted reproductive technology program and related criminal offenses have been considered. The qualification of actions of a surrogate mother has been offered. The peculiarity of the qualification lies in the inability of practitioners, especially law enforcement agencies, to determine the illegal actions of the surrogate mother in the presence of seemingly perfectly legal grounds for her to dispose of the child. The article focuses on documents that can serve as evidence of illegal behavior of a surrogate mother. The material can be useful primarily for lawyers practicing in the field of assisted reproductive technologies, including law enforcement officers. For potential SMs, the goal is to prevent them from committing such excesses by increasing their legal culture. After all, instead of doing a good deed and receiving a reward for it, she can get up to 15 years in prison with confiscation of her property, confiscation of her biological child, destruction of her family.

Ude Jones Udeogu v FRN & Ors no SC. 622C/2019: its implication on fighting financial crime and the way forward

Purpose The purpose of this paper is to show how fighting financial crime suffered a setback in Nigeria as a result of the Supreme Court ruling in an appeal case – Ude Jones Udeogu v FRN and Ors no SC. 622C/2019. Design/methodology/approach This paper is a critical analysis of the implication of Supreme Courts’ ruling in Ude Udeogu Jones, its implication to law enforcement’s effort in fighting financial crime and the way to get around the ruling. The paper adopts qualitative methods. It is conducted through the analysis of the ruling and the relevant laws. Findings Due to the ruling in UdeUdeogu Jones, Section 396(7) of the Administration of Criminal Justice Act 2015 is no longer good law. Federal High Court judges elevated to the Court of Appeal no longer have special dispensation to conclude criminal cases they part heard. Furthermore, the ruling is a serious setback on the law enforcement’s efforts in fighting corruption. However, the drastic effect of the ruling can be mitigated by amending Section 396(7). Research limitations/implications Because the ruling is very recent, analysis is based on the relevant enactments and case laws including recent decisions of the Court of Appeal and the Supreme Court. Originality/value There is no comprehensive work on this ruling. Therefore, this paper adds value to knowledge as it makes clear the background of the appeal case, as well as the impact of the ruling of the Supreme Court on fighting financial crime in Nigeria and the way to get around the ruling.

The Legal Approach to the Provocation of Bribe as a Variety of Provocation of Crime in Case-law of the European Court of Human Rights

The article gives a legal assessment of “provocation of bribe” as a kind of “provocation of crime”. The authors examine the relevant case-law of the European Court of Human Rights (ECHR) and find that the Court does not consider “provocation of bribe” as a provocation of a unique type of crime, but summarizes the situation of “provocation of crime”, including corruption crimes (including, giving a bribe, offering a bribe, receiving a bribe).The article pays special attention to the fact that the ECHR considers complaints of provocation of bribery in the context of the rights provided for in of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court’s position is that the existence of a proven provocation of a crime deprives a person of a fair trial from the very beginning of the proceedings. The article analyzes the signs of incitement to crime, which are an integral part of provocation of crime.The article emphasizes that the ECHR, when considering relevant cases, refers exclusively to the procedural aspect of bribery provocation, assessing the extent to which the bribery provocation affected the quality of the evidence obtained as a result. In case of considering relevant cases in the national court, the ECHR places the positive obligation to prove the absence of incitement (as a key sign of provocation of a crime) primarily on the prosecution.Based on the analysis of the case-law of the European Court of Human Rights, the authors draw attention to the fact that covert investigative and operational actions must be carried out in a passive way so as not to create any pressure on a person to commit a crime.The case-law of the ECHR also provides an opportunity to determine the limits of national courts’ examination of situations in which a defendant claims to be a victim of a “provocation of crime”. The national court must find out the following: 1) motives of decision-making on a covert action; 2) the degree of participation of the law enforcement agency in the commission of the crime; 3) the nature of any incitement or pressure experienced by the applicant; 4) reliable information about the defendant’s participation in such criminal activity.

The International Criminal Court and the Issue of Intersectionality—A Conceptual and Legal Framework for Analysis

Abstract A survey of relevant case law of the International Criminal Court (icc or Court) reveals inconsistencies, as well as conceptual flaws and limitations in the Court’s mainly uni-sectional approach to mass atrocities that involve multiple and intersecting forms discrimination, in particular with regard to the cornerstones of such cases—the identification of the protected groups and their members. This has resulted in discrepancies and low levels of legal protection against intersectional targeting. Such a cautious, selective and inconsistent approach of the icc to this issue is unsurprising given that the application of intersectionality in practice is a radical and transformative project. Espousing a more consistent and intersectional approach of the icc in considering mass atrocities against different protected groups and their members, this article discusses the Court’s legal framework and major conceptual and statutory concerns surrounding the icc prosecutor’s and judges’ enhanced engagement—through more progressive law interpretation—with the phenomena of intersectionality and key concepts related to it. The main purpose of this contribution is thus two-fold: (1) to demonstrate and explain why, in practice, the focus on intersectional dimensions of such situations and cases in their selection, prosecution and adjudication does not interfere with strict adherence to the principle of legality underlying the Rome Statute, and (2) to analyse the legal grounds and avenues for the Court to implement intersectionality when dealing with atrocities involving intersectional discrimination. It is ultimately suggested that Article 21(3) of the Rome Statute offers a proper and solid legal basis for interpreting and applying pertinent international criminal law in light of intersectionality.

Cross‐Border Social Dumping as a ‘Game of Jurisdiction’ – Towards a Legal Geography of Labour Relations in the EU Internal Market*

AbstractThe question of social dumping has again climbed the EU policy agenda. In this article, we call into question some established views of social dumping that conceptualize the relationship between EU internal market and Member States in binary terms. Based on an analysis of relevant case law, and drawing on the conceptual tools provided by critical legal geography, we show that the project of EU integration relies as much on the scalar differentiation of powers as it does on the ‘upward’ shift of powers from the national‐ to the supra‐national level. We propose an understanding of EU internal market law as productive of a ‘labour law patchwork’, defined by the simultaneous fragmentation and overlap of labour law regulations across and within EU Member States. Here, we re‐conceptualize cross‐border social dumping as a ‘game of jurisdiction’ – a set of strategic moves by actors within a multi‐scalar and multi‐jurisdictional space.

The International Criminal Court and the Issue of Intersectionality—A Conceptual and Legal Framework for Analysis

Abstract A survey of relevant case law of the International Criminal Court (icc or Court) reveals inconsistencies, as well as conceptual flaws and limitations in the Court’s mainly uni-sectional approach to mass atrocities that involve multiple and intersecting forms discrimination, in particular with regard to the cornerstones of such cases—the identification of the protected groups and their members. This has resulted in discrepancies and low levels of legal protection against intersectional targeting. Such a cautious, selective and inconsistent approach of the icc to this issue is unsurprising given that the application of intersectionality in practice is a radical and transformative project. Espousing a more consistent and intersectional approach of the icc in considering mass atrocities against different protected groups and their members, this article discusses the Court’s legal framework and major conceptual and statutory concerns surrounding the icc prosecutor’s and judges’ enhanced engagement—through more progressive law interpretation—with the phenomena of intersectionality and key concepts related to it. The main purpose of this contribution is thus two-fold: (1) to demonstrate and explain why, in practice, the focus on intersectional dimensions of such situations and cases in their selection, prosecution and adjudication does not interfere with strict adherence to the principle of legality underlying the Rome Statute, and (2) to analyse the legal grounds and avenues for the Court to implement intersectionality when dealing with atrocities involving intersectional discrimination. It is ultimately suggested that Article 21(3) of the Rome Statute offers a proper and solid legal basis for interpreting and applying pertinent international criminal law in light of intersectionality.

The concept of significance of violation of procedural norms of legislation of the Russian Federation on taxes and fees in terms of appointing an on-site tax audit

The subject of this research is the legislation of the Russian Federation, case law, as well as domestic and foreign doctrine, which allow establishing the essence of legal relations for the purpose of appointment of on-site tax audit. The object of this research is the social relations in terms of appointing an on-site tax audit. The author considers legal aspects associated with the procedural issues of appointing an on-site tax audit, and violations committed by tax officials in appointing an audit. Special attention is given to the problems of qualification of procedural violations as significant, i.e. entailing cancellation of the decision of tax authority, acknowledgement of actions (or inaction) of tax officials as unlawful. The scientific novelty of this work consist in formulation of the criterion of significance of violation of procedural norms of the legislation of the Russian Federation on taxes and fees in terms of appointing an on-site tax audit. Leaning on the results of research of the Russian and foreign doctrine, as well as the analysis of the relevant case law, the author determines the procedural violations of tax officials committed in appointing tax audit, which should result in cancellation of the decisions of tax authorities, an acknowledgement of the actions (or inactions) of tax officials as unlawful. The conclusion is made on the content of the criterion of significance of violation of procedural norms of the legislation of the Russian Federation on taxes and fees in terms of appointing an on-site tax audit.

The The Role of Public Order Regulations as Acts of Local Law in the Performance of Tasks in the Field of Public Security by Local Self-government in Poland

The subject of the article are the issues concerning the enactment by local self-government bodies in Poland of a special category of acts of local law, i.e. public order regulations. Public order regulations belong to the sources of universally binding law in Poland. Not only government administration bodies, but also local self-government may adopt them. By means of public order regulations, such values as: life, health, property of citizens, environment, public order, peace and public security are protected. The status of public order regulations in the Polish legal order, which are bodies of local self-government units to protect the life or health of citizens and to ensure public order, peace and security, is not the subject to clear legislation or consent among scholars in the field and in relevant case-law. Therefore, the aim of the article is to determine the legal status of local law acts in the form of public order regulations in Poland and to define their role in the performance of tasks in the field of public security by local self-government. The author refers also to relevant legal solutions applicable in other member states of the Visegrad Group. The main thesis of the article is a statement that acts of local law in the form of public order regulations are a desirable manifestation of the law-making decentralisation of the state, which is necessary for the effective performance of tasks in the field of public security by local self-government bodies.

Article 51 of the EU Charter of Fundamental Rights from the Perspective of the National Judge

This article contributes to the growing scholarship on the national application of the EU Charter of Fundamental Rights ('the Charter') by assessing what challenges national courts face when dealing with Article 51 of the Charter, which sets out the Charter's material scope of application. In keeping with this aim, the relevant case law of the Court of Justice of the EU (CJEU) – with its general formulas, abstract guidance and implementation categories – is discussed strictly from the perspective of the national judge. The article then presents the findings of a thorough study of the case law of the Czech Supreme Administrative Court (SAC) and evaluates this Court's track record when assessing the Charter's applicability. National empirical data of that kind can provide valuable input into the CJEU-centred academic debate on the Charter's scope of application.

Directors’ Fiduciary Duties to the Company: A Comparative Study of the UK and Indian Companies Act

Abstract The Directors’ duties to the company were governed by the common law of negligence and the equitable principles of fiduciary duties before they were codified in Section 166 Companies Act. 2013 and section 170 of the UK Companies Act 2006. Section 170 of the UK Companies Act provides that the general duties of Directors will be interpreted in the same manner as the common law rules or equitable principles and in interpreting and applying these statutory duties of the director, regard shall be given to the corresponding common law rules and equitable principles. But such provision does not find a place under the Indian Companies Act, 2013. In this article, an endeavor has been made to do a comparative study of the Directors’ duties as conferred by the Indian Companies Act 2013 and the UK Companies Act 2006. Company Directors have the duties to work within the powers, to exercise reasonable skill and care, as well as work for the success of the company. They also have important duties to the shareholders. These duties of the Directors have been examined, analyzed and discussed in this paper, along with the relevant English and Indian case law.

Međunarodna zaštita i primena načela zabrane proterivanja u države sa neadekvatnim zdravstvenim sistemima ili nedostupnom zdravstvenom zaštitom

The Coronavirus pandemic has once again exposed the dramatic differences between countries in terms of access to and quality of healthcare. With reference to the context of the Coronavirus pandemic, the authors analyze whether the endangered right to health, as a fundamental human right which is endangered through inadequate or inaccessible healthcare, can be the basis for granting the international protection or applying the principle of non-refoulement. This topic has been insufficiently covered both in legal theory and in legal documents, while the case law on this matter is still in the process of development. The current practice of the European Court of Human Rights regarding the right to asylum and health is not uniform, but it is to be expected that relevant case law and changes in the legal framework will ensue in the forthcoming period.

La loi, la statue et l’artiste. L’apport du droit moral aux débats sur la commémoration

Contemporary public sentiment and policy relating to the continued display of contested monuments has had a tendency to overlook (if not ignore) the rights of artists. This article reviews how the law, in particular, moral rights contained in the Copyright Act, protects artists and prevents statues and other public works of art from being “distorted, mutilated or otherwise modified.” For example, this provision—Paragraph 28.2(1)(a) of the Copyright Act—prevents certain types of changes from being made, including the repositioning or recontextualization of controversial monuments. Drawing from relevant case law and case studies of events that have been hotly debated in the media, we provide a summary of the applicable rules with the goal of integrating them into the ongoing discussion about commemoration. It is our hope that future decisions and public policies regarding contested monuments will be more conscious of the applicable legal framework and furthermore provide artists and their works the respect they deserve.

After 19 Years of Complete Oblivion, Are Interim Measures the European Commission’s New Panacea to Enforce Article 102 TFEU in the Digital Age?

Over the past few years, fast-moving markets have brought major concerns to competition law in the digital age: speedy solutions are needed to efficiently address situations in which companies become monopolistic after the market has tipped. One existing legal instrument emerged as a solid and plausible solution: the interim measures to prevent harm to competition while an investigation is on-going. The starting point of this paper finds its roots in the Commission’s decision to impose interim measures on Broadcom in 2019, after almost two decades of complete oblivion of this instrument. Two questions arise from this sudden awakening: why was it neglected by the Commission and should it be overhauled? This article delves back into the relevant case law and legislation to critically ascertain the qualities and flaws of interim measures in order to explain their possible revival. Through their respective application of the tool, as well as their variable desire to impose interim measures, national competition authorities have also shed an interesting light on this topic. Finally, it remains to be seen whether the recent Commission proposals for a Digital Market Act (DMA), which aims at preventing abusive conduct by digital gatekeepers with upfront obligations, will leave much space for such interim measures in the future. Keywords: interim measures; remedies; Article 102 TFEU; procedure; European Commission

Međunarodno investiciono pravo i zaštita radnih prava - standard poštenog i pravičnog tretmana i indirektna eksproprijacija u svetlu izmena radnopravnih propisa države domaćina

The purpose of this paper is to answer the question whether investors may challenge domestic labour legislation by invoking breach of international investment agreements, in particular violations of fair and equitable treatment standard, as well as illegal expropriation of investments. The answer to this question is especially relevant for developing countries, such as the Republic of Serbia, which seek to harmonize their legal systems with international principles of labour rights protection. Therefore, the paper will explore the interpretations of the fair and equitable treatment standard and indirect expropriation given by arbitration tribunals and accepted among scholars, as well as their application with respect to the labour regulation changes. Particularly analysed is the relevant case law before arbitration tribunals dealing with the question whether host states may violate these standards by amending their domestic labour legislation. Research has shown that domestic labour regulation amendments may rarely be interpreted as indirect expropriation, while the fair and equitable treatment standard may be breached in case of unpredictable labour legislation changes which would significantly violate guarantees given by the state to attract foreign investments but cannot protect investors from the introduction of bona fide labour regulations.

Child’s special guardian – international and european expectations and croatian reality

The aim of this paper is to analyze the institute of the child’s special guardian in Croatian law and to assess its compliance with relevant international and European standards in this legal area. The paper discusses the right of the child to be heard “through a representative” under Article 12 of the Convention on the Rights of the Child, European “child-friendly” legal representation standards and relevant cases in the latest case law of the European Court of Human Rights. The institute of special guardian in Croatian legislation and legal practice is analyzed in detail. Based on the analysis of data collected from the Special Guardianship Center and on the insight into relevant case law, the paper singles out the main problems that currently exist regarding child representation by special guardians in practice and identifies their causes, but also suggests what needs to be done to improve the application of relevant regulations in legal practice.

Responsible Business in a Digital World – What’s International Law Got to Do With It?

The observation that digital transformation challenges some of the underpinnings of traditional international law and regulation also applies to responsible business conduct. The Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises are the most comprehensive international standard on responsible business conduct. This article discusses the impacts of digitalisation on responsible business conduct and the relevant case law by OECD National Contact Points and shows that as a sui generis instrument of international law the Guidelines can play an important role in accommodating business as the key driver of digital transformation and in addressing the related risks on people, the environment and society. However, several shortcomings of the existing regulatory framework are identified, particularly with regard to the imbalance of state and business responsibilities and the challenges for adequate regulatory responses in a highly dynamic environment where developments are driven by the private sector. Therefore, a holistic approach, based on 'Responsible Business Conduct by Design' both in technology and regulation is suggested. Given the specific features and impacts of digitalisation on responsible business conduct, such an approach would need to be of a hybrid nature by including a variety of actors and models of regulation beyond the state. To create a safe space for experimenting and testing new regulations and for mutual learning the article concludes with call for a new interface and for exploring a 'regulatory sandbox' at the international level.

“In These Times of Compassion When Conformity’s in Fashion”: How Therapeutic Jurisprudence Can Root out Bias, Limit Polarization and Support Vulnerable Persons in the Legal Process

In this paper, I consider the extent to which caselaw has – either explicitly or implicitly – incorporated the precepts of therapeutic jurisprudence (TJ), a school of legal thought that focuses on the law’s influence on emotional life and psychological well-being, and that asks us to assess the actual impact of the law on people’s lives. Two of the core tenets of TJ in practice are commitments to dignity and to compassion. I conclude ultimately that, with these principles as touchstones, TJ can be an effective tool – perhaps the most effective tool – in rooting out bias, limiting polarization, and supporting vulnerable persons in the legal process. But, this cannot and will not happen until more judges and practicing attorneys understand the potentially reformative (and transformative) role of TJ. My review of some relevant caselaw (both domestically and internationally) – a review that, to the best of my knowledge, has never previously been undertaken -- suggests that an incorporation of TJ principles is by no means a sure thing. This article will proceed in this manner: First, I will briefly consider the creation and dynamic growth of therapeutic jurisprudence over the past thirty years, looking specifically at the interplay between TJ and values of dignity and compassion. Then, I will assess the role of TJ in dealing with the questions most central to this paper: bias, polarization, and vulnerability. I next review court decisions – both domestic and from other nations -- in which TJ is explicitly mentioned (and in some cases, relied upon). Following this, I will look at some other relevant caselaw in which (1) TJ implicitly helped bring about a solution that minimized bias or polarization or offered support to vulnerable persons or classes, (2) the failure to employ TJ led to decisions that reinforced bias and ignored the needs of those who are vulnerable, or (3) a determination of one’s perspective is needed to determine if one sees the case as “pro-TJ” or “anti-TJ.” I then, in conclusion, offer some modest suggestions as to how TJ can best be employed to ensure decisions that are, optimally,-bias free via approaches that improve therapeutic functioning and do not sacrifice civil liberties.

Recent Changes in Hungarian Family Law: Registered Partners, Adoption, Joint Parental Custody and Alternating Residence

The family law provisions of the Hungarian Civil Code have been subject to several amendments since their entry into force in March 2014. The amendments are notable because of their effect on judicial practice or legal doctrine. This paper provides insights into the recent developments in certain areas of Hungarian family law, specifically registered partnerships, adoption and parental custody, in particular the changes to joint parental responsibilities and alternating residence, and evaluates them in the light of the relevant ECtHR case law and the requirements of the UN Convention on the Rights of the Child.

Invoking the Supervisory Jurisdiction of the Supreme Court of Ghana. The Case of a Meddlesome Interloper (Busybody)

The Ghanaian courts have allowed the efflorescence of legal doctrines as necessary nutrients for the enjoyment and development of rights and obligations under the law within the Ghanaian jurisdiction. One such procedural doctrine is LOCUS STANDI or capacity of a party to invoke the supervisory jurisdiction of the Supreme Court of Ghana. This allows the Supreme Court to exercise constitutional oversight responsibility over the actions of all other courts in Ghana. This power emanates from Article 132 of the 1992 Constitution of the Republic of Ghana. The aim of this research is to unravel the inconsistency with which the Supreme Court of Ghana deals with who has the capacity under Article 132 to access the Supervisory Jurisdiction of the Supreme Court of Ghana under Constitutional regime. This paper was developed through qualitative review of various literatures and relevant modern case law to the subject.

Should videoconference be elected over personal presence in criminal legal proceedings?

This article analyzes the conditions and legal ramifications of application of videoconference in various forms of criminal legal proceedings, highlighting practical issues emerging in arrangement of participation of parties in criminal proceedings via videoconference calls. As a product of digital technologies, videoconference is examined not only as a formal means of communication used by parties to a legal proceeding, but also as one of the means of exercising the right to a fair trial. The object of this research consists of communication and procedural relations arising between the parties to a legal proceeding with application videoconference. The subject of this research covers the entire complex of fairly recent norms for the Russian criminal procedural regulation governing application of videoconference on various stages of criminal proceedings on a case. The article contains practical recommendations by indicators that should be considered in determining optimal forms of participation in a criminal proceeding, as well as actions of parties that must be undertaken if during application of videoconference, the rights of the defendant are violated or the standards of fair trial are not being met. The article complies answers to the most topical questions on videoconference calls, taking into the consideration practical experience of the author, as well as relevant case law of the Russian courts and the European Court of Human Rights. The conclusion is made that application of videoconference is allowable in legal proceedings of the courts of first instance and courts of appeal in criminal cases heard in special order, cassation instance, supervisory instance, in execution of sentence, as well as within the framework of judicial control at pretrial stage in a criminal case, but only if procedural guarantees could be provided to all parties of the proceedings. In a trial by jury such technology is unacceptable.