Summary Proceedings Research Articles

Communication of the parties in simplified production: problematic issues

The article looks at summary proceedings through the prism of a communicative approach. The focus is on the interaction of the parties with the court and with each other. It is noted that from the point of view of communication simplified proceedings differ markedly from the ordinary process. In simplified proceedings there are fewer subjects of communication, both among the persons involved in the case and among the other participants in the process. There is also predominantly verbal written communication in these proceedings. The peculiarities of such communication in the exercise of dispositive rights by the parties, in the transition from lawsuit to simplified proceedings and vice versa, in rendering a decision and communicating it to the parties, are reflected in this article.

Extraterritorial (Automated) Jurisdiction in Writ and Summary Proceedings in the Conditions of the Digital Transformation of the Civil Procedure

Extraterritorial (Automated) Jurisdiction in Writ and Summary Proceedings in the Conditions of the Digital Transformation of the Civil Procedure

Wrongful Convictions in Summary Proceedings: a Comparison of Penal Orders in France, Germany and Switzerland

Abstract Summary proceedings and especially penal orders have become increasingly relevant in criminal justice systems across Europe. The prosecution holds significant power and convictions cannot guarantee that defendants understand their judgment. This contribution compares laws and empirical data on penal orders in France, Germany and Switzerland, with a focus on the role of the prosecution and the rights of the defence. I argue that while penal orders offer an efficient way of processing minor crimes, they also pose a high risk of erroneous sanctions and wrongful convictions. The contribution concludes that in order to protect the rights of the defence, the balance of power between the prosecution and the defendant needs to be improved by granting a hearing before a judgment is rendered, and by translating the penal order and delivering it in judicial appointments. The findings provide valuable insights into the need for continued reform in the area of summary proceedings.

Disclosure of Evidence as an Efficient Mechanism of Implementation of the Adversariality Principle in Summary Proceedings

Disclosure of Evidence as an Efficient Mechanism of Implementation of the Adversariality Principle in Summary Proceedings

Conditions for Referring Claims to Summarily Triable Cases not Limited to the Amount of the Claim

The paper examines the procedural rules establishing conditions for assigning claims to summarily triable cases that are not limited by the amount of claims, as well as the practice of arbitrazh courts and courts of general jurisdiction on their application, which indicates the lack of uniformity in the interpretation of these conditions. The author concludes that such claims should, according to the documents submitted by the plaintiff, meet the criteria of indisputability. However, indisputability of the claims identified after referring the case for consideration in a summary procedure does not in itself prevent their consideration in the procedure mentioned above. The author points out the need to distinguish between the conditions for the confirmation of debt by the defendant and the conditions for the recognition of monetary obligations by the defendant; the author justifies the guidelines in understanding and evaluating the latter. The paper also highlights inconsistency in the legal regulation of the balance between writ cases and cases of summary proceedings in civil proceedings. If in the arbitrazh procedure all cases of writ proceedings for which a writ has not been issued fall under the category of summary proceedings that do not require the absence of a dispute concerning the issue of law. In civil proceedings this does not occur and the relevant claims are considered in the general claim procedure, since they cannot be attributed to the category of summary proceedings due to the lack of the criterion of indisputability. In conclusion, the author suggests additional explanations be provided to the courts regarding the formal features of this category of summary proceedings and indicate the need in civil proceedings for summary proceedings to set a limit not of 100,000 rubles, but 500,000 rubles.

M odernization of Summary Proceedings in the Arbitration Procedure in View of Resolution of the Plenum of the Supreme Court of the Russian Federation No. 36 of November 15, 2022

M odernization of Summary Proceedings in the Arbitration Procedure in View of Resolution of the Plenum of the Supreme Court of the Russian Federation No. 36 of November 15, 2022

Summary proceedings in Roman law using maintenance obligation as an example

Maintenance obligations and corresponding maintenance claims are closely linked to the person of the obligor and the creditor. Not only is the maintenance creditor protected against the risk of being deprived of his or her means of subsistence following the introduction of his or her maintenance claim, but he or she also enjoys considerable facilities for claiming and enforcing the maintenance awarded. This was already the case in Roman law, where the assertion of a maintenance claim was subject to significant simplification, under the so-called summatim cognoscere. Proceedings for the establishment and realisation of the maintenance obligation took place without actio and iudicium, before a state judge (consul) who, after causa cognitio, issued a judgment and enforced it. Furthermore, a dispute over the fulfilment of a maintenance claim could also end with the conclusion of a settlement (transactio), ending the dispute without a judgment.

Problems of calculation of the terms of appeals of decisions made in the order of summary proceedings

The subject of the research is the features of the appeal of court decisions in cases considered in summary proceedings.The methodology. Analysis and synthesis, dialectical method as well as formal legal interpretation of Russian legislative acts.The main results. The author critically assesses the provisions of the procedural legislation, focuses on the problems that exist in practice. (1) There is a different procedure for notifying a decision adopted as a result of summary proceedings, according to the norms of the Civil Procedure Code and of the Arbitration Procedure Code. (2) It is concluded that the dependence of the beginning of the period for filing an application for drawing up a reasoned decision on the day of placement of the operative part of the decision or on the day of its adoption significantly complicates the timely implementation of such a right. A different construction will be justified and practically convenient: fixing in the law a single moment of the beginning of the period for an appeal against a decision - from the moment a copy of the operative part is delivered (irrespective of the application for drawing up a reasoned decision). (3) If the deadline for filing an application for the preparation of a reasoned decision is missed, the issue of its restoration should be resolved only if the deadline for filing an appeal has not been missed. If the deadline for filing an appeal is missed, then a reasoned decision on the case should be made only if the specified dead-line is restored.Recommendations are offered on the possible improvement of procedural rules on summary proceedings. In particular, the issue of increasing the period for applying for a reasoned decision was raised. It is proposed that the start time for filing an application for the preparation of a reasoned decision be determined from the day a copy of the decision is handed over to the persons participating in the case, or the decision is posted on the court's website.Conclusions. The identified problems call into question the merits of the summary procedure, show in practice its difficult and complicated order. The existing model of summary proceedings needs to be significantly detailed in order to increase the guarantees of judicial protection.

Valt de lezer om te turnen? Effecten van formuleringskeuzes in de zaak ‘Van Gelder’1

The current study assesses whether the stylistic choices that Van Leeuwen & Van Haaften (2018) identified in the ‘Van Gelder’ case affect readers’ evaluations. This case revolves around summary proceedings that gymnast Yuri van Gelder brought against NOC*NSF, as NOC*NSF had removed him from the Olympic gymnastics final due to misbehaviour. Van Leeuwen & Van Haaften argue that Van Gelder’s lawyer’s stylistic choices minimise the severity of Van Gelder’s behaviour and paint him as a victim, while the NOC*NSF lawyer maximises the severity of the behaviour and frames Van Gelder as solely responsible for his situation. 209 participants read either an original or a manipulated fragment of the pleas and evaluated the severity of Van Gelder’s behaviour, his responsibility and their agreement with the judge’s decision. Results suggest that whether participants had read the original or the manipulated plea did not affect their evaluations. The content of the plea did matter, however, as participants who read the plea by the NOC*NSF lawyer were more negative about Van Gelder than those who had read Van Gelder’s lawyer’s plea. While the content of a text thus does affect readers’ evaluations, our stylistic manipulations may have been too subtle to make a difference.

“Private and Family Life” in Times of Pandemic, Continuities and Breaks in a Discriminatory Policy: The Case of France

This article examines the impact of measures to address COVID-19 on the right to family life in France. The shutdown of prefectural reception facilities, the freezing of visas for family reunification and the closure of international borders left families at an impasse. Some people already on French territory saw the hope of regularisation fade away, while others waiting for reunification witnessed the lengthening of the period of separation. With the adoption of a series of complex government measures, recourse to exceptional legal practices (i.e.: summary proceedings) became common and various forms of collective mobilisation emerged. An analysis of administrative immobilisation and of this collective mobilisation reveals increased inequality in terms of access to the law and the visibility of certain categories. These dynamics reflect the ongoing deterioration of the rights of foreign nationals, which predates the health crisis.

Constitutionality of the expedited procedure in contraventions against women or members of the family nucleus

Violence against women and members of their family nucleus from earlier stages is defined as a serious social problem at the international level. The Constitution of the Republic of Ecuador of 2008, highly guaranteeing rights, establishes expeditious procedures for the trial and punishment of crimes of domestic violence subject to the principle of procedural orality and summary proceedings. The object of investigation turned out to be the implementation of the punitive model in contraventions of violence against women or members of the family nucleus. A mixed research approach was used with a descriptive exploratory scope and the following methods were used: inductive, deductive, historical-logical and analysis-synthesis. The results are associated with the improvement of axis No 4 of the Council of the Judiciary: Strengthening of the Investigation and Punishment Mechanisms in cases of sexual violence against children, adolescents and women.

The impartiality of the administrative judge in summary proceedings: between quintessence and real scope

Le développement spectaculaire de la procédure du référé administratif que connaît le droit procédural administratif congolais, avec son lot de décisions sonnant comme un couperet à la toute-puissance de l’administration ne peut laisser indifférents les commentateurs intéressés, tant que ces dernières (décisions) recentrent le rôle primordial que le juge est appelé à jouer. Étant la pierre angulaire autour de laquelle gravite toute la procédure, le juge doit rassurer aussi bien les parties à l’instance que les tiers qui, voyant la manière dont l’instance est conduite et la justice ‘rapide’ rendue, puissent avoir le sentiment que les causes sont entendues par un tribunal indépendant et impartial. Cet objectif sera atteint que si le juge intègre certaines valeurs dont l'impartialité faisant l’objet de la présente étude. Dans une approche essentiellement exégétique, soutenue par la doctrine et la jurisprudence, la présente étude a retenu que l’impartialité du juge des référés est tributaire de la mise en œuvre de la contradiction, de la motivation de l’ordonnance ainsi que l’exercice prudente du cumul de fonctions. Mots clés : Référé administratif, impartialité, motivation des décisions, juge, contentieux administratif.

Трансформация упрощенного производства в гражданском и арбитражном процессе в ординарную процессуальную процедуру

The author conducted a detailed analysis of the mechanism of transition from summary procedure to litigation or administrative proceedings in civil and arbitration trials and revealed the features and problems of its legal regulation. The provisions of Chapter 21.1 of the Civil Procedure Code of the Russian Federation and Chapter 29 of the Arbitration Procedure Code of the Russian Federation were studied, and the explanations contained in the Resolution of the Supreme Court Plenum dated April 18, 2017 No. 10 were taken into account. Official statistics were used to track the effectiveness of the use of summary procedure and the institution of transition to a standard procedure for trying cases. With the help of rich empirical material, the problems that arise when solving the question of the transformation of the procedural order are revealed. The methodological basis of this study was made up of general and special methods of scientific research (historical, comparative law, method of dialectical cognition, formal-logical method of interpretation of law and the method of system analysis). The author studies some special rules that regulate the procedural transition from summary to general procedure in trials. For a more in-depth analysis, the grounds for the transition are divided into two groups: mandatory and optional. A not limiting list of mandatory grounds was revealed, it was proposed to supplement it. Optional grounds are critically analyzed. It has been established that the initiator of the transformation of the procedural form can be either the court or the parties. However, the procedural legislation does not provide for the mandatory transition to the general rules for the consideration of the case at the request of the party. Moreover, the procedural transformation of the order of trial cannot be arbitrary, regardless of the party which starts it. The author concludes that the dependence of the decision on the transition from a summary procedure to an ordinary one on the discretion of the court should not be an obstacle for the parties to a trial when they protect their rights. But, the transition to trying the case according to general rules should not worsen the position of the parties. Attention is drawn to several problems involving the third parties in summary procedure, as well as to the decision to accept a counterclaim for joint consideration with the original, the ways to solve them being proposed. The problems of legal regulation identified in the course of the study may serve as a vector for further improving the mechanism for the procedural transformation of summary proceedings into an ordinary procedure. The author declares no conflicts of interests.

Postdejtonsko traganje za pravdom: Suđenja za ratne zločine u Bosni i Hercegovini pred nadležnim sudovima

The armed conflicts in Bosnia and Herzegovina in the period from 1992 to 1995, which ended with the conclusion of the so-called The Dayton Peace Agreement was marked by serious violations of fundamental human rights and freedoms and the commission of horrific war crimes. Prosecution of defendants for these crimes takes place at several levels, ie before: a) the International Criminal Tribunal for the Former Yugoslavia (ICTY), b) domestic courts and c) courts of certain foreign states. The paper analyzes certain indicators related to the prosecution of these crimes, their scope and structure, as well as the ratio of convictions and acquittals for certain war crimes, the scope of application of conventional and summary forms of ending criminal cases and court policy of sanctioning perpetrators. It was learned that by the end of 2020, hundreds of criminal proceedings against approximately a thousand defendants had been completed. Most of the accused were prosecuted before the Court of Bosnia and Herzegovina (Court of B&H), followed by the ICTY, and a slightly smaller number before the courts of the former SFRY and some Western European countries. The research established that before the ICTY, out of the total number of accused for war crimes committed in Bosnia and Herzegovina, as many as 90.2% were convicted of some of these crimes, while the rate of convicted in relation to accused before the Court of B&H was 67.2% , and before the courts in the Republic of Serbia 70.2%. It is interesting that before the ICTY as many as 24.3% of the accused were convicted in summary proceedings on the basis of a plea agreement, while before the Court of B&H 13,3% of the accused were convicted using a plea bargaining as a consensual model for ending criminal cases. So far, 22 people have been convicted of the crime of genocide as the most serious crime before the ICTY, the Court of B&H and German courts, and all convictions related to the activities of the Army of Republika Srpska during the war in Bosnia and Herzegovina. Court of B&H, inherited a relatively mild policy of punishing war crimes. Finally, it was found that certain courts, especially Court of B&H, inherited a relatively mild policy of punishing war crimes.

Peculiarities of ensuring the rights of the person during the pre-trial investigation of criminal offenses under the legislation of countries with Anglo-Saxon law

A review of the status of ensuring the rights of the individual during pre-trial investigations of criminal offences under foreign law has been carried out. It has been specified, that successful implementation of the model of the criminal offences optimum for Ukraine is possible on condition of detailed study of the foreign experience of functioning of this institution. An analysis was made of legislation and its application in the area of human rights during pre-trial investigations of minor criminal offences in countries with an Anglo-Saxon legal system. Attention was drawn to the fact that they differentiate between general and minor offences under the criminal law system. For minor offences, the so-called summary procedure is used. The main criterion for allocating proceedings for consideration by a court in summary proceedings is the degree of criminal risk of offences. It has been noted, that pre-trial investigations of minor offences in the United States follow the general procedure whereby an officer of the investigating authority makes an application for a warrant for the arrest of a person or for the search of the premises occupied by him/her, if there are grounds for doing so. The said statement is subject to verification and confirmation in the manner, on which the court may issue a warrant of arrest or search, which is in fact an indictment record of the commencement of official proceedings. Attention is drawn to the fact that, in cases, involving minor offences, arrest is generally not carried out - the accused is usually served with a summons to appear in court. Emphasised on the positive experience of England in the sphere of ensuring the rights of the individual in the proceedings of «non-arrest crime» by establishing in the law the grounds for detention of a person by the police without the order of a judge.

SIMPLIFIED PROCEDURE: FOREIGN EXPERIENCE

The article examines the experience of some foreign countries in implementing the proceedings of simplified procedure. One of the most common expedited methods of conducting justice in the world is the so-called summary proceedings, which, obviously, comes from the English word “summary”, which means short, brief, and abbreviated. Summary procedures (or proceedings) have some similarities with mandatory and simplified proceedings in the domestic law. The main peculiarity of the summary proceedings consists in the fact that the decision on a particular case is carried out without any court hearing based on analysis of the reliability, admissibility of evidence and assessment of the positions of the parties at the preliminary stage of the process. However, the specific peculiarity, that is the written nature of the proceedings, does not exist in this case. It is due to an oral conversation included that the court conducts with the parties, so, following the previously stated argumentation in terms of clarifying the terminology, the summary proceedings are expedited regarding ordinary procedures, but not simplified. In the countries of the Anglo-Saxon legal family, there is also another specific form of acceleration of civil procedures, which is not common for the Ukrainian legal system that is a concerted decision. The concerted decision is an agreement between parties sanctioned by a court, and it takes an advantage of immunity regarding an indirect appeal (by an additional claim) to the same extent as a decision rendered by a court. The concerted decision is the final act, which concludes the consideration of the case as such. It has been established that in most developed countries of the world the model of the course of justice in civil cases provides for a plurality of expedited procedures, each of which is intended to consider a separate category of cases. In some countries, in order to denote such a type of procedures, they use the general word “particular”, as, for example, in France – procedure particulieres, emphasizing their uniqueness and special peculiarities. In many countries, such special procedures include a procedural mechanism, which is similar to the domestic system of mandatory procedures.

Sumario electoral: una propuesta para la atención célere de denuncias por faltas electorales

En el artículo se argumenta que es necesario disminuir los tiempos para la atención de denuncias por presuntas faltas electorales; por ello, se proponen dos modelos procesales sumarios, con base en los cuales la administración electoral podría tramitar tales reclamos de manera expedita

Odluke javnog tužioca o nepreduzimanju krivičnog gonjenja i o odustanku od krivičnog gonjenja - uvođenje rešenja o odustanku od krivičnog gonjenja

In preliminary proceedings, for which for the purposes of this paper we mean part of the procedure in which authority conducting proceedings is public prosecutor, prosecutor's offices in Serbia have been making decisions for ten years that according to the CPC they can not make. First, decisions of dismissal of criminal complaint are made when the prosecutor, after undertaking criminal prosecution in preliminary proceedings for criminal offences for which a fine or a term of imprisonment of up to eight years shall be prescribed as the principal penalty, determines that there is not a sufficient degree of probability that the defendant committed the crime. Second mistake is the decision of dismissal of criminal complaint in a situation when the criminal proceedings began by the issuance of a ruling ordering detention before submitting a motion to indict in summary proceedings. The third mistake is issuing an order discontinuing the investigation after the conclusion of the investigation. In the first and third case, a decision to abandon criminal prosecution should be made and in the second case, the public prosecutor should submit a statement of abandoning criminal prosecution to the judge for the preliminary proceedings after which that judge will issue a ruling discontinuing criminal proceedings.

Procedural features of consideration of social cases in the administrative court of first instance

The article is devoted to procedural features and evidence during the consideration of social cases. The share of administrative lawsuits received by district administrative courts in social cases is more than 30%, which is a high figure among cases falling under the jurisdiction of administrative courts. A person goes to court when his right has already been violated by the state authorities. The administrative courts ensure the implementation of the social function of the state. Allegations that administrative courts serve public authorities are unfounded. Evidence of the court is provided by the parties to the case. The court can only invite the parties to provide evidence and collect evidence on their own initiative. The principle remains fundamental, in cases of illegality of decisions, actions or omissions of the public authorities, the burden of proving the legality of its decision, action or omission rests with the defendant. There is a problem of the possibility of considering social disputes under the rules of summary proceedings with the summons of the parties to the case in the event that there is a need to obtain an explanation from the parties or to examine witnesses. There is a need for legislative regulation of the possibility for the court to consider social disputes in the manner prescribed by the provisions of Article 262 of the Administrative Code of Judgment of Ukraine, after the opening of proceedings in the manner prescribed by the provisions of Article 263 of the Administrative Code of Judgment of Ukraine. It is important to ensure the possibility to continue the consideration of the case in the simplified claim procedure, with the summoning of the parties to the court session, after the opening of the simplified proceedings without summoning the parties. Key words: social disputes, district administrative court, evidence, proving, general claim proceedings, simplified proceedings.

Summary Justice in Eighteenth- and Nineteenth-Century Southwark (London)

The vast majority of people who encountered the law in eighteenth-century and nineteenth-century England did so at the summary level, the lowest rung of the criminal justice system. This article is an investigation of the proceedings at one magistrates’ court, Southwark Town Hall, in the City of London’s borough of Southwark from the 1770s to 1830s. Drawing in particular on the court’s two surviving case registers, as well as prison committal books, newspaper accounts of summary proceedings and parliamentary reports, this article considers how the nature and role of summary justice in Southwark evolved over this period. It focuses especially on two aspects of summary justice that have to date received less detailed attention from historians: the role that gender played in determining outcomes and the use of summary punishment.