Supreme Court Judgment Research Articles

Practical judicialtraining: contribution of the National School of Judges of Ukraine to strengthening corruption prevention mechanisms

The article examines the role of the National School of Judges of Ukraine in strengthening the mechanisms preventing corruption through the professional training of the judiciary. In particular, relevant training activities for candidates for the judge's post, effective judges of all jurisdictions and judges of the High Anti - Corruption Court are reviewed in the article. The program of special training of candidates for the post of judge (to fill vacant posts of judges in the courts of first instance) in 2018-2019 comprised trainings on anti-corruption legislation, including European standards and national legislation; corruption related criminal offences and criminal offenses in the field of in-service and professional activity tied to the provision of public services; administrative offenses related to corruption. Trainings on anti-corruption legislation and practice of its application are a part of the periodic training programs of effective judges of local general, commercial and administrative courts, as well as courts of appeal. Anti - corruption issues were one of the key topics in the training of newly appointed Supreme Court judges. It is stated that National School of Judges of Ukraine also made a contribution into the process of selection of judges of the High Anti - Corruption Court by developing of test questions and practical tasks (model court cases). The School, with the support of its international partners, conducted an Orientation Course for judges of the High Anti - Corruption Court, which included trainings on the rule of law, standards of human rights protection in accordance with the practice of the European Court of Human Rights, return of assets and instruments of cooperation with international organizations, international anti-corruption standards, practical aspects of dealing with corruption cases (witness and victim protection, money laundering, asset seizure, special confiscation). The next scheduled training of judges of the High Anti - Corruption Court was related to adjudication of corruptionists and confiscation of their property in Ukraine. The main training topics for the court staff are the application of anti-corruption legislation concerning civil servants, main issues of financial control, features of the electronic declaration system, settlement of conflicts of interest, responsibility for violation of anti-corruption legislation. The conclusion is made that all these activities influence the change of the professional consciousness of judges, the affirmation of the values of the rule of law and fair trial. Keywords: corruption prevention, confiscation of assets, special training of candidates for the post of judge, periodic training of judges.

A gloss to the Supreme Court Judgment of 5 March 2019, IV KK 484/17

This gloss discusses the issue of the prosecutor’s supervision over preparatory proceedings carried out by a financial authority of preparatory proceedings and the procedural consequences of the prosecutor undertaking supervision of such proceedings. The author is of the opinion that a procedural act performed by the prosecutor consisting in extending the period of enquiry carried out by the financial authority of preparatory proceedings for more than 6 months, does not constitute a decision which is accidental in nature and may not be deemed to be a technical act. Such an act is supervisory in nature. Consequently, if it is assumed that the prosecutor’s decision on the extension under Article 153 § 1 sentence 3 of the Penal and Fiscal Code for the period of more than 6 months of the enquiry concerning a fiscal offence, conducted by a financial authority of preparatory proceedings, means that the said prosecutor undertakes supervision over the said enquiry, then Article 155 § 1 and 2 of the Penal and Fiscal Code must be applied for the purpose of preparing and filing an indictment with the court. In accordance with the law applicable as of 1 July 2015, the financial authority of preparatory proceedings which conducted the investigation as well as the enquiry under the prosecutor’s supervision must prepare an indictment taking into consideration its formal requirements as set out in Article 119 of the Code of Criminal Procedure, Article 332 of the Code of Criminal Procedure, Article 333 of the Code of Criminal Procedure in connection with Article 113 § 1 of the Penal and Fiscal Code, and it must subsequently transfer it to the prosecutor, who approves it and files it with the court. The act of filing an indictment with the court by the Customs Office, where the enquiry was under the prosecutor’s supervision, and where such indictment was filed without the prosecutor’s approval, must be deemed to have been undertaken by an unauthorized body, which constitutes a negative procedural premise which is the absence of indictment by an authorised prosecuting organ (Article 17 § 1 point 9 of the Code of Criminal Procedure).

The Irish Supreme Court judgment in Nano Nagle School v Marie Daly: a saga of litigation

N/A

Judgments on Affordable Housing by Supreme Court of India

The present research paper is the compilation of different Supreme Court judgments on Affordable Housing. Different judgments by High Courts of India and other different jurisdictions like South Africa and USA have been incorporated into it while analyzing the Indian judgments.

Investment Arbitration and EU (Competition) Law – Lessons Learned from the Micula Saga

On 19 February 2020, in the latest episode to date of the long-running Micula saga, the United Kingdom (UK) Supreme Court gave its green light to the enforcement in the (UK) of the award obtained by the Micula brothers against Romania (Award) under the 2002 Sweden-Romania Bilateral Investment Treaty (BIT), despite the fact that the question of whether this Award constitutes state aid prohibited under EU law was pending before the Court of Justice of the European Union (CJEU). The Supreme Court ruled that the UK enforcement obligations under the ICSID Convention could not be affected by the EU duty of sincere cooperation, as the UK’s ratification of the ICSID Convention preceded its accession to the EU. The UK Supreme Court judgment, and the prior main episodes of the Micula saga in the framework of the ICSID, EU state aid and enforcement proceedings, offer a great opportunity to explore the increasingly tumultuous relationship between investment arbitration and EU (competition) law, in particular the compatibility of intra-EU investment arbitrations under the ICSID Convention with EU law and the coexistence of selective protections under international investment law with EU state aid law.

Pre-Natal Diagnostic Techniques Act, 1995 in the Light of Centre for Enquiry Into Health & Allied Theme vs. Union of India, 2003: Case Critique

The PNDT (Regulation and Prevention of Misuse) Act was passed in the year 1996 in order to prevent misuse of sex determination technology for sex-selective abortion owing to increased female foeticide in India. Female foeticide is the killing of the foetus on the basis of parental determination of sex of the foetus if it is a girl child. Centre for Enquiry into Health and Allied Themes (CEHAT) vs. Union of India and Others is a 2003 Supreme Court judgement vis-a-vis Writ Petition (C) No. 301 of 2000 apropos effective implementation of Pre-natal Diagnostic Techniques Act, 1995. The case is a landmark judgement vis-a-vis fostering gender equality in the society as it outlawed the Pre-natal Diagnostic Techniques being misused in the country for sex-selective abortion. This Supreme Court criminalized the practice of pre-natal sex-determination to exterminate the menace of rampant female foeticide despite the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1995 being in action. Therefore, this judgement is a path-breaking judgement as the supreme Court kept continued monitoring over the implementation of its orders to effectuate the provisions of the Pre-natal Diagnostic Techniques Act, 1995 in actuality.

Judicial Disclosure & the Judicial Mystique

Judges in the American legal system are expected to be neutral. To this end, judges are required to recuse themselves whenever their impartiality might reasonably be questioned. Yet, this requirement is by and large designed to be self-policed. This self-policing structure is a deviation from the ordinary presumptions of adversarial litigation, not the least because it depends upon the presumption that judges are disinterested about whether they are improperly interested. To compensate for this, a robust body of common law has developed that requires judges to disclose facts about themselves that might affect their neutrality, even if they do not believe that recusal is required. The nature of judicial disclosure obligations is surprisingly under-theorized both in the case law and the scholarly literature. The case law, especially, has been prone to ground the bases and limits of judges' disclosure obligations on formalistic and often quite specious arguments that, this essay concludes, tend to reach a defensible result for misguided and often contradictory reasons. This essay further concludes that the extent of a judicial actor's disclosure requirements tend to be inversely correlated with the durability of their judicial status. The more robust a judicial actor's claim to judicial status, the more the judicial actor is protected from disclosure by what I call the “judicial mystique,” the presumption that the judge is the mere embodiment of rules governed state power and may therefore be interchanged with any other judge without an appreciable effect on the outcome of any given case. Hence, Supreme Court judges disclose very little about themselves, whereas arbitrators are subject to exceptionally rigorous disclosure obligations. The essay then considers the peculiar place of military judges along this continuum and offers a close reading of the D.C. Circuit's decision in In re Al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019), which vacated the rulings of a military judge, in part, because of his failure to disclose the extent to which he was seeking post-retirement employment from the Department of Justice in a high-profile case.

Uncertain sovereignty: Ceylon as a Dominion 1948–1972

Abstract This article, a contribution to a symposium on dominion constitutionalism, looks at sovereignty in Ceylon’s Dominion period (1948–1972). While the Ceylon Constitution has been the subject of in-depth historical and sociopolitical study, it has received less attention from legal scholars. This article hopes to fill that gap. It analyzes Ceylon Supreme Court and Privy Council judgments from this era on both rights-based and structural questions of constitutional law. In each area, sovereignty-related concerns influenced the judicial approach and case outcomes. On fundamental rights, both the Supreme Court and the Privy Council adopted a cautious approach, declining to invalidate legislation that had discriminatory effects on minority communities. This reluctance to entrench fundamental rights resulted, at least in part, from judges’ undue deference to the Ceylon Parliament, which was wrongly looked upon like its all-powerful British progenitor. On constitutional structure, the Ceylon Supreme Court deferred to Parliament even when legislation encroached into the judicial realm. The Privy Council, though, was not so passive. It upheld a separate, inviolable judicial power that Parliament could not legislate away. But by asserting itself as a check on legislative power, the Council—as a foreign judicial body intervening in Ceylonese affairs—stoked concerns that Ceylon was less than fully sovereign, which ultimately ended Dominion status.

PENERAPAN WASIAT WAJIBAH TERHADAP NON MUSLIM DITINJAU DARI KOMPILASI HUKUM ISLAM (KHI) STUDI KASUS PUTUSAN MAHKAMAH AGUNG NO. 331/K/AG/2018/MA

Islamic law has stated that every person of different religion cannot inherit each other, both Muslims inherit for non-Muslims and from non-Muslims inherit for Muslims, but in practice, Judges at the Supreme Court level implement mandatory wills, this is required which has been decided in the Supreme Court Decision Number. 331 / K / AG / 2018 / MA. This study aims to examine how to implement the mandatory non-Muslim wills in the Supreme Court ruling Number. 331 / K / AG / 2018 / MA based on the provisions of the Compilation of Islamic Law (KHI), and what the Supreme Court Judges consider in implementing mandatory testaments against non-Muslims in the Supreme Court Decision Number. 331 / K / AG / 2018 / MA. This research is a normative legal research with the nature of qualitative research with the type of library research. Based on the studies that have been carried out, the Decision of the Supreme Court Number. 331 / K / AG / 2018 / MA does not include legal considerations in force in Indonesia concerning inheritance provisions and concerning the granting of an approved mandatory will set out in the Compilation of Islamic Law (KHI). The application of mandatory wills in the Supreme Court Decision is contrary to the provisions of Islamic Law and the provisions of the Compilation of Islamic Law (KHI). Article 209 paragraphs (1) and (2) concerning mandatory wills.

Contradictory Impartiality Principle in the Supervisory System of Constituonal Court Judges

The Constitutional Court (MK) through Its Verdict No. 1-2 / PUU-XII / 2014 substantially causes a legal vacuum (rechtsvacum) serving as the basis for the constitutional judge's external supervisory body. Besides that, with the application of the Constitutional Court's supervisory system through the Ethics Council and the Constitutional Court Honorary Council (MKMK) is considered to have deviated the principle of nemo judex idoneus in propria causa because one of the members of the MKMK was a constitutional judge, means hearing his own case. The research method used is the normative legal research method with the statue approach and conceptual approach. Supervision of Constitutional Court judges requires Reinventing (legal reform) by involving members of the Supreme Court and members of the House of Representatives as members of the Ethics Council and replacing one Constitutional Judge with one former Supreme Court Judge. The supervision change of the Constitutional Court judges is aimed to increase the authority of the Constitutional Court and to hold the principle of impartiality. How to cite item: Prakosa, A., Alanda, P., Istianah, N., & Rohman, L. (2019). Contradictory Impartiality Principle in the Supervisory System of Constitutional Court Judges. Jurnal Cakrawala Hukum, 10(2), 117-125. doi:https://doi.org/10.26905/idjch.v10i2.3470

PENEGAKAN HUKUM OLEH HAKIM AGUNG REPUBLIK INDONESIA DALAM MENANGANI KASASI PERKARA KARTEL PUTUSAN KPPU YANG MENGGUNAKAN ALAT BUKTI TIDAK LANGSUNG (INDIRECT EVIDENCE)

Business Competition Supervisory Commission (KPPU) is an institution authorized to handle unfair business competition violation. In fact, in several KPPU decisions it was revealed that KPPU prioritizes indirect evidence in handling cartel cases in Indonesia. KPPU's decision is not final and binding. Business actors who do not accept the decision of KPPU may file an objection at the District Court. The parties who do not accept the decision of the district court, may file an appeal in the Supreme Court of the Republic of Indonesia. The type of research is used in this research is normative legal research, that is research done by reviewing the rules of law applicable or applied to a certain legal problem. The result of the research shows that in the Supreme Court appeal, KPPU's decision was upheld and canceled by Supreme Court to KPPU's decision uses indirect evidence in handling cartel case. The basis of consideration of the Supreme Court Justices ruling the KPPU's decision in the case of the tire cartel and the cement cartel is the Chief Justice accepting and acknowledging the indirect evidence as valid evidence, since the evidence is sufficient and logical evidence, and there is no evidence the more powerful that can weaken the indirect evidence. While the consideration of the Supreme Court Judge overturning the KPPU's decision in the case of cartel fuel surcharger is not accepting and acknowledging indirect evidence as valid evidence, because the evidence is insufficient and illogical, and there is stronger evidence that can weaken the tool indirect evidence

Constructing 'unteachability' through menacing warnings

This article scrutinises case files concerning the revocation of stay permits in Switzerland due to the receipt of social assistance. Through in-depth exploration of case files and Federal Supreme Court judgements, it provides insights into the increasing coupling of migration control and welfare instruments. The article does so by investigating one specific type of paperwork: ‘menaces of warnings of the revocation order due to the dependency on social assistance’. The article argues bureaucratic practices and the paperwork they produce must be investigated for their effects on foreign nationals and for the (re)production of politics of belonging and the ‘anti-citizen’. By individualising the reason for receiving social assistance, the analysed paperwork simultaneously aims at disciplining recipients of social assistance and legitimises exclusion by constructing ‘unteachability’ through ‘unsuccessful’ self-disciplining.

International scope of the Japanese Anti-monopoly Act in cross-border cartel cases: a Japanese approach to ‘extraterritorial application’

Abstract Most states have a national anti-trust or competition law to regulate anti-competitive activities. There is no doubt that, in purely domestic cases, where an anti-competitive activity and its anti-competitive effects have occurred within a state, that state’s national competition authority can regulate the activity by applying its competition law. For cross-border cases such as where anti-competitive activities are carried out abroad but have anti-competitive effects on the domestic or internal market of that state or region, it has been gradually accepted that a state can apply its competition law to the activities on the basis of the effects within its territory. However, it should be noted that states have approached such cases differently. In 2017, the Supreme Court of Japan first decided the international scope of the Japanese Anti-Monopoly Act (JAMA) in cross-border cartel cases and clarified that the JAMA could apply to anti-competitive activities conducted outside of Japan if the activities in question disturbed the free competition economic order of Japan. The court did not mention the effects doctrine or the territorial principle. This article examines on what grounds and how far the JAMA can and should apply to cross-border cartel cases by analysing the Supreme Court judgement.

The End of the Road: State Liability for Acts of UN Peacekeeping Contingents After the Dutch Supreme Court\u2019s Judgment in Mothers of Srebrenica (2019)

This article provides an analysis of the Dutch Supreme Court judgment in the Mothers of Srebrenica case, placing it in its context, and comparing it with earlier and related decisions, in particular the judgments in the cases of Nuhanović and Mustafić. The Mothers of Srebrenica is a foundation established to represent the interests of the approximately 6000 surviving relatives of the victims of the fall of Srebrenica during the conflict in the former Yugoslavia (1995). The foundation holds the Netherlands responsible for not having done enough to protect the victims of the Srebrenica genocide. This contribution addresses the attribution of the conduct of the United Nations peacekeeping contingent to the troop-contributing State (the Netherlands), followed by the wrongfulness of the peacekeepers’ conduct and the State’s attendant liability for damages suffered by the victims. It is argued that the Dutch State’s international responsibility was only engaged because of the exceptional circumstances present in Srebrenica at the time. In the ordinary course of events, the liability of troop-contributing States is unlikely to be engaged if the Supreme Court’s review standard were to be applied.

Mahadev’s Gift: Men, Bullocks and the Community of Cultivation in Central India

In October 2016, protests erupted across southern India opposing a Supreme Court judgement banning an annual agricultural festival featuring jousts between men and bulls. The Court ruled the contests as infringing animal rights. Rural constituencies rallied behind the festival as a customary practice and symbol of agrarian culture. This essay suggests that the conflict between the two constituencies turns on whether animals are legal subjects or social persons. I analyse this festival-complex in Maharashtra to show that the ritual imagines animals not as rights-bearing species, but as members of the agricultural community. The rite does not disavow violence, rather it embeds its symbolisation within familial and productive relations between people and bullocks.

British Judges in the Supreme Court of Thailand

In 1855 Siam signed the Bowring Treaty with Britain, the first of 15 unequal trade treaties with nations around the world. The treaties introduced to Siam extraterritoriality, or consular jurisdiction over foreign subjects in exclusion of Thai authorities’ jurisdiction, using specially established consular or international courts staffed by foreign judges. As well documented and discussed elsewhere, this extraterritoriality led to the pressure for the country to modernise its legal system and introduce legal codes modelled on codes in civil law countries such as France, Germany and Japan. Much less examined is the latent influence of common law during this important juncture of the country’s legal history. This chapter looks at some of the leading British lawyers in Siam who, following the abolition of the international court, sat in the Supreme Court of Siam, or Dika Court, as members of the ‘Committee of the Supreme Court’ equivalent to modern day judges. The chapter examines their legal backgrounds, their legal careers in Siam, and their role as Supreme Court judges. Our inquiry into their decisions reveals a fascinating dynamic of common law legal reasoning and principles in a civil law, code-based jurisdiction. This investigation into the role of these British judges during the formative years of Siam’s newly established legal system, often understated and unexplored in academic literature, is crucial for a more complete understanding of the country’s process of modernisation.

Sleep deprivation does not work: Epidemiology, impacts and outcomes of incidental and systematic sleep deprivation in a sample of Palestinian detainees.

Sleep deprivation (SD) is a method used in the context of interrogations aimed to obtain submission, information and confessions. Its impact on producing false confessions has been documented. Even information obtained is true, it will be unreliable as it cannot be separated with what has been suggested by interrogators. The use of SD has been documented in the interrogation of detainees in Israel and two patterns can be identified: one incidental due to the conditions of detention set out here as secondary sleep deprivation (SSD), and one systematic, intentional and linked to continued interrogation, set out here as primary sleep deprivation (PSD). This paper aims to study the prevalence of PSD and SSD in a sample of Palestinian detainees, compare its usage before and after the 1999 Israeli Supreme Court judgment, and compare the impacts and outcomes of SD. The study included a sample of 600 ex-detainees who answered questions related to psychological and coercive methods, subjective psychological impact, clinical measures, psychosocial measures, and medical impact. Classification of SD was built taking into consideration the items related to SD and interrogation. Most detainees reported SSD with around 13% reporting PSD. Prevalence of PSD has been found larger among people over 25 years old who were detained before 1999. Related to the psychological suffering from the overall detention environment including SD, detainees with PSD and SSD reported significantly higher acute and chronic suffering. It has also been found that detainees with PSD reported long term family, social and physical impacts. Regarding the outcome of SD, the number of signed confessions with either true or false statements increases with SD, but in this case, this did not lead neither to a significantly higher number of convictions nor longer sentences. Sleep deprivation in the framework of interrogations seems ineffective.

Legal Consequences of Creditor's Name Change in Syndicated Loan Agreement

The present study discussed the legal consequence of the creditor's name change and the consideration used by the Supreme Court Judge no. 1300 K/Pdt/2013. The present study was categorized as doctrinal legal study using case study approach. The data were collected through library research. Syllogism was employed as the analysis technique of this legal writing. The change of creditor's name in a syndicated loan, as it happens to "PT. Bank Finconesia” that changes its name to “PT. Bank Agris" cause problems since the new name "PT. Bank Agris" is not mentioned in the loan agreement no. 8 dated 28 November 1995. The making of syndicated loan agreement should be based on article 1320 and 1338 of the Indonesian Civil Code. The Supreme Court no. 1300/K/Pdt/2013, the supreme court has made an incorrect decision by granting the plaintiff's lawsuit as the syndicated creditor. It is incorrect because, in the syndicated loan agreement, the creditors had agreed to appoint a facilitating agent who acts legally as representative of the creditors, it makes the facilitating agent is authorized to have a direct relation with the debtors, especially in filing a lawsuit to the court.

Gloss to the Supreme Court Judgment of 23 February 2017, I CSK 232/16

The Supreme Court in its judgment, considered the issue how to effectively impose an additional obligation on the shareholders of a limited liability company (LLC). There was no doubt that this is possible when it is expressly stated in the articles of association, but the question was if it is possible to impose such an obligation by issuing a resolution by the shareholders’ meeting? The Supreme Court was rightly in a favor of a strict interpretation of article 159 Code of commercial companies and consequently stated that only the articles of association can effectively impose an additional obligation on shareholders. Gloss has a supporting character, in which there are additional legal arguments in favor of the thesis issued by the Supreme Court.

Annotation on the U.S. Supreme Court's Judgments regarding relations between the Eleventh Amendment and the Fourteenth Amendment

Annotation on the U.S. Supreme Court's Judgments regarding relations between the Eleventh Amendment and the Fourteenth Amendment