Tribunal Proceedings Research Articles

Confiscation of Personal Assets of Corruption Defendants in a Positive Legal Perspective

One-of-a-kind efforts to make the losses state’s financial incurred by the State due to corrupt activities, is through the confiscation of the Defendant’s assets. Later it may subsequently be utilized for a form of monetary payment in lieu of State losses charged to the Defendant. On the grounds of payment of money in lieu of State losses, confiscation of the Defendant’s personal assets that had nothing to do with corruption was then carried out. The research’s main eligibility is to find out how significance proof is involved due to tribunal mechanism, as in the safetymeasureness of the defendant given right and assets as being regulated for evidences in the tipikor case. The researcher’s study applied juridical normative method employing statutory and conceptual pathways. Secondly, layered information was gathered from observation and papers, in order to ensure the quality. According to the researcher’s findings, the purpose of headlining deposition in tribunal is to support the proof of the litigant’s motion, incapable of assuring the sentence’s delivery. There is a guarantee and protection of property rights in the Indonesian constitutional written law 1945 (28H) par. (4). It demonstrates the litigant’s possession of their property being safeguarded by the state, which had unassociated an elicit act of graft as property sheltered from confiscation in the court process. Unlike the personal property of the litigant, if is employed in an unlawful conduct as graft itself, the belongings shall be seized within the tribunal proceedings.
 Keywords: protection, asset, evidence, confiscation

Double Agents

Double Agents

The vicarious liability of sports governing bodies and competition organisers

AbstractThis is the first work to explore the possibility of holding sports governing bodies and competition organisers vicariously liable for the tortious behaviour of athletes that compete under their auspices. In contrast to other scholarly contributions on vicarious liability in sport, this paper examines the scope of responsibility for athletes in individual sports (as opposed to team sports). It begins by drawing upon the recent tribunal proceedings between professional cyclist Jess Varnish and British Cycling to analyse the employment status of government-funded individual athletes. In calling for a contextual and policy-sensitive approach to the definition of an ‘employee’, this paper argues that certain normative and theoretical considerations ought to be granted more or less weight depending on the particular legal issue animating the dispute. Thereafter, and with one eye on the overly intrusive regulatory provisions found in sports such as tennis and golf, this paper also demonstrates that the vicarious liability of governing bodies and competition organisers could equally be extended to cover the tortious conduct of non-funded individual athletes. In making these claims, it is demonstrated how a sport-specific application of the doctrine may help to teach us a few broader lessons about vicarious liability more generally.

The Walking Wounded: Failure of Self-Represented Litigants in 2017 Supreme Court of Canada Leave to Appeal Applications

Self-Represented Litigants (SRLs) are persons who appear in court and tribunal proceedings without a lawyer. They are rarely successful at the Supreme Court of Canada. Despite SRLs being the subject of considerable attention as a facet of the "access to justice crisis," this article reports the first statistical quantitative investigation of a Canadian SRL population. This article examines all of the SRL leave to appeal applications at the Supreme Court of Canada in 2017, categorizing them by party type, legal issue, and level of sophistication. No procedural obstacles were identified to SRL participation at the Supreme Court. Instead, the failure of SRLs in Supreme Court proceedings results from the substance of their filings.

Meaningful participation or tokenism for individuals on community based compulsory treatment orders? Views and experiences of the mental health tribunal in Scotland

Background The Mental Health (Care and Treatment) (Scotland) Act 2003 was considered as world leading when it was enacted due to its rights-based approach. Changes were made to encourage participation and enhance autonomy, including the Mental Health Tribunal for Scotland (the tribunal) replacing the Sheriff Court in making decisions about compulsory treatment. Aims To explore the views of individuals on community based compulsory treatment orders (CCTOs) and independent advocates to assess whether participation in the tribunal is perceived as meaningful in practice. Method A qualitative research design was adopted and semi-structured interviews were undertaken with 19 people with experience of being on a CCTO and eight mental health advocates in Scotland. The data were thematically analysed and explored using ethics of care principles. Results Individuals faced barriers to participation, including mental distress, medication, and inaccessible communication, and both the tribunal process and outcome were important in shaping perceptions of fairness. A perceived unsuccessful outcome was found to undermine an ostensibly participatory process, and unequal power dynamics resulted in feelings of powerlessness. Conclusions The findings suggest that participation is often experienced as tokenistic in practice and that cultural change is required if people are to be meaningfully involved in tribunal proceedings.

Consensual Sexual Relationships between Health Practitioners and Their Patients: An Analysis of Disciplinary Cases from New Zealand

Consensual sexual relationship between health practitioners and their patient are considered one of the most serious breaches of professional boundaries. Prevalence rates are difficult to establish since underreporting may occur, yet media attention may conflate the perception of prevalence. In this study we first reviewed the literature for risk factors for health practitioners and patients, professional standards, and responses of disciplinary bodies. Following this, we quantitatively summarised case characteristics and disciplinary outcomes from a 14-year cohort of New Zealand’s Health Practitioners Disciplinary Tribunal proceedings. From the 26 cases identified, four themes were discussed in detail and illustrated with cases. These include: female practitioners working in correctional settings; zero tolerance but no registration repercussions; patient vulnerabilities when help-seeking for mental health issues; and the use of rehabilitative penalties. Despite the difficulties in conducting research on sexual boundary violations, this raises awareness, encourages proactive reporting, and inspires constructive strategies.

Defiance, Defence, Repentance and What Lies Between

Abstract What determines the particular postures of defendants in international criminal trials is little understood, even though it has a significant impact on the perceived legitimacy of those proceedings. After identifying three ideal-typical postures, this article focuses on observed instances of postural shifts and more subtle oscillations between them, in an effort to evaluate the extent to which such shifts can be said to result from defendants’ interaction with tribunals. While the evidence suggests that the lived experience of tribunal proceedings likely plays a role, there are several other plausible and important motivations for such shifts, each with their own distinct implications for international criminal justice.

The Evaluation of Specific Pre-Action Processes in South Australia

Pre-action obligations require disputing parties to undertake certain actions to promote the resolution or management of their disputes before commencing court or tribunal proceedings. They may require the parties to disclose information or documents, correspond with each other, and undertake some form of alternative dispute resolution. This Project was designed to analyse the effectiveness of reforms to the District Court Civil Supplementary Rules 2014 (SA) and the Supreme Court Civil Supplementary Rules 2014 (SA) which introduced new pre-action processes for construction and medical negligence disputes. The Project was supported by the Supreme Court of South Australia and the Law Foundation of South Australia.

SFC’s new guidance note redefines cooperation in disciplinary, civil court and market misconduct tribunal proceedings

PurposeThe purpose of this paper is to discuss the new “Guidance Note on Cooperation with the SFC” released by the Hong Kong Securities and Futures Commission (“SFC”) on 12 December 2017, which updates the SFC’s previous guidance note issued in 2006.Design/methodology/approachThis paper explains key features to the guidance note, the SFC’s current approach in investigations and enforcement and the impact on regulated parties and senior management. In particular, the authors discuss what cooperation means in disciplinary, civil court and market misconduct tribunal proceedings.FindingsThe new guidance note confirms that the SFC will play an increasingly active role in investigations and that taking proactive steps at an early stage, including involving senior management, will have a positive impact on the outcome of the investigation.Originality/valueCommentary and practical guidance from experienced securities enforcement and financial services regulatory enforcement lawyers.

A Comparative Analysis of the Principle of Arbitration Under the English Common Law and Islamic Law

An alternative to incurring the expense of court or tribunal proceedings is for the parties to a dispute to take their case to arbitration. Arbitration involves referring a dispute to a third party for settlement. The decision reached by the settlement of this dispute is binding on the parties. Arbitration is the resolution of dispute outside the courts wherein the parties to a dispute refer it to one or more persons by whose decision they agree to be bound. In modern history, arbitration is considered one of the most important means for the settlement of commercial disputes, particularly the dispute of international trade and investment. Arbitration which is known as “Takhim” under Islamic law is recognized under the Islamic law as a method for the settlement of disputes.

Service users' experiences of mental health tribunals in Ireland: a qualitative analysis.

To explore the mental health tribunal experiences of people admitted involuntarily under the Mental Health Act 2001. Employing a qualitative descriptive study design, data were collected from 23 service users who had experienced mental health tribunals during a recent involuntary admission. Face-to-face semi-structured interviews were conducted ~3 months post-revocation of their involuntary admission order. Data were analysed using an inductive thematic process. The majority of participants reported mixed experiences comprising positive and negative aspects in relation to information provision, emotional support and an inclusive atmosphere. Some participants reported receiving accessible information about the tribunal process, felt emotionally supported throughout, and encountered respectful and dignifying practices during the tribunal proceedings. However, many participants described experiencing non-inclusive practices, reported feeling ill-informed regarding the tribunal process, emotionally unsupported during and after the tribunal, and distressed by what they perceived as adversarial tribunal proceedings. Systemic changes could ensure that the positive experiences encountered by the minority of participants in this study are more consistently experienced. Ongoing education and training of stakeholders in the provision of inclusive tribunal practices, and the provision of accessible information and emotional support to service users through the stages of the involuntary admission process appear likely to be beneficial. Service users should automatically be offered the option of having a support person of their choosing present during tribunals.

In re Akhbar Beirut & Al Amin

On August 29, 2016, the Special Tribunal for Lebanon (Tribunal) sentenced a corporate media enterprise and one of its employees for contemptuously interfering with the Tribunal's proceedings in Ayyash, a prosecution concerning the February 2005 terrorist attack that killed former Lebanese Prime Minister Rafiq Hariri. The contempt decision is significant for two reasons: (1) it adopts an expansive definition of the crime of contempt to restrict a journalist's freedom of expression; and (2) it is the first international judicial decision to hold a corporate entity criminally responsible.

New Frontiers in Empirical Labour Law Research

Students of labour law, both in the UK and elsewhere, hardly need to be reminded that labour law has long been in retreat. As has been comprehensively documented, the scope of employment law protection has been pared back in innumerable ways as the view that it is obstructive of economic efficiency and advancement has become entrenched and policy choices have continued to whittle back legislation conferring employment rights. Reforms over recent years in the UK imposing the payment of fees in respect of employment tribunal proceedings are but the latest manifestation of that long-term trend. Against this background, a number of books published over recent years have considered the proper scope as a discipline of, the potential development of, and the future prospects for labour law as an academic discipline. Not only do these works consider the current areas of debate for labour lawyers but also, to a greater or lesser extent, they betray a more or less explicit existential concern about the subject, its scope and its future viability. Contributions to collections of essays such as Davidov and Langille (eds), Boundaries and Frontiers of Labour Law (Oxford: Hart, 2006), Barnard, Deakin and Morris (eds), The Future of Labour Law (Oxford: Hart, 2004) and Davidov and Langille (eds), The Idea of Labour Law (Oxford: OUP, 2011) have to some extent reflected this concern both in their titles and their substantive content. One of the starkest assessments of what it portrays as labour law’s ongoing and ultimately doomed search for continued viability and relevance is Alan Hyde’s contribution to The Idea of Labour Law (at Ch 6). Entitled ‘The Idea of the Idea of Labour Law: A Parable’, his analysis, from the US perspective, is that labour law cannot ‘like a Platonic form...survive the disappearance of every one of its earthly manifestations’ in terms of ‘jobs, strikes, cooperative employers, legislation and... specialised government officials’ and that inspiration needs to be found elsewhere than labour law ‘traditionally conceptualized’ (see pp 96–7). More prosaically, the incessant reform of labour law domestically risks labour law as a discipline being seen as unrealistically wishing to turn back the clock in economic and political terms.

Civil Dispute Resolution Obligations: What is Reasonable?

Pre-action requirements specify that disputants take steps or use dispute resolution processes to attempt to resolve their dispute before commencing litigation. These types of requirements have been introduced in a range of jurisdictions within and outside Australia in recent years. They may arise as a result of agreements to enter into alternative dispute resolution (‘ADR’) processes, legislative arrangements, regulatory schemes as well as through court or non-court protocols and guidelines. For example, some pre-action protocols require disputants to engage in ADR, or consider using ADR, as a precondition to commencing legal proceedings. Others require that ‘would-be’ litigants take steps or file a statement about what they have done to resolve their dispute if they are unable to resolve it and then commence court or tribunal proceedings. Most pre-action requirements have ‘opt-out’ provisions. For example, certain categories of litigants are not required to comply with some types of pre-action obligations and requirements if there is urgency or violence, or the category of cases is exempt for some other reason (for example, certain uncontested debt recovery and corporations winding up matters).

Using Alternative Dispute Resolution to Save Time

Issues that are related to the impact of delay in respect of resolution of disputes have been partly responsible for the introduction of ADR in Australia and around the world. Often ADR processes are considered to save both time and cost, particularly when they prompt or support settlement. However, the extent to which ADR does save time is unclear, partly because there is a lack of data in respect of the civil justice system and delay in general. Recent initiatives to support pre-court filing ADR are often untracked and court and tribunal systems do not usually measure pre litigation activity nor delay from the date that the dispute arose. Rather, delay and timeliness tends only to be measured from the date any court or tribunal proceedings are commenced. Research has suggested that an important factor in shaping perceptions about whether the system or processes used to resolve a dispute are 'just' or 'fair' is linked to whether the time taken to resolve the dispute was 'too long'. There are also issues about the timing of ADR referral and the limited studies in respect of timing suggest that perceptions of all those involved in a dispute can vary in terms of whether the time spent was 'reasonable'. That is, lawyers, disputants, judges and ADR practitioners may all consider whether or not the time taken was appropriate in different ways and clearly some disputants and others may benefit from extending the time taken (from a tactical or financial perspective). The use of triage approaches at an earlier point in the life cycle of a dispute are intended to produce more timely outcomes and can assist in assessing what is 'reasonable' in the context of a particular dispute. These approaches are becoming more relevant as ADR is increasingly utilised outside the litigation system.

Technology-Assisted and Remote Evidence Presentation: A Practice Resource for BC Lawyers

Oral testimony is still the conventional way in which evidence is given in courts and administrative hearings. Persons who live in rural or remote areas and those with disabilities sometimes face significant physical, mental, and economic hardship if they must attend court or tribunal proceedings and give evidence in person. These disadvantages can be severe enough amount to barriers to access to justice, but they can be removed or reduced in many cases through effective use of technology.British Columbia was one of the first jurisdictions to introduce videoconferencing and other technological innovations in its courts and tribunals. There is a need nevertheless to increase the level of knowledge on the part of counsel and other members of the legal community about technologies that can be employed to overcome difficulties that residents of remote areas and individuals with disabilities face as participants in legal processes.The Technology, Remoteness, Disability and Evidence Project is intended to address this need. It has the following objectives: (a) to create practice support materials for the use of the legal community about assistive technology and communications systems that can be used to overcome geographical, physical, and attitudinal barriers to full and effective participation in legal proceedings by persons in remote locations or who have disabilities; and (b) to identify and recommend ways to remove remaining legal barriers to the beneficial and effective use of assistive and other technology in court and tribunal proceedings.

Udział organizacji pozarządowych w postępowaniu przed Trybunałem Konstytucyjnym

The paper treats about law frames regulating the participation of non-governmental organization (with its doctrinal name amicus curiae) in Polish Constitutional Tribunal. It indicates not only the rules being fundaments of NGOs’ contribution in the trial, but also presents real situations when non-governmental organizations raised their voices concerning the cases analyzed by the Constitutional Tribunal. The great worth of NGOs’ input in the Constitutional Tribunal proceedings is based on knowledge and experience of experts working for such organizations and their responsiveness for social problems as well. What is important, authors mainly aim at describing the role that amici curiae play in the human rights protection system. The data presented in the essay unambiguously shows the real influence of non-governmental organizations’ involvement on the Constitutional Tribunal’s conclusions phrased in the process of consideration upon the case.

A People's Court: Emotion, Participant Experiences, and the Shaping of Postwar Justice at the International Military Tribunal for the Far East, 1946–1948

The International Military Tribunal for the Far East (1946–1948) or Tokyo IMT is overlooked for its contributions to modern international criminal justice. Convened to hold Japanese leaders accountable for conspiring to commit aggression, crimes against peace, crimes against humanity, and war crimes during the Second World War, the IMTFE was both a groundbreaking judicial undertaking and a pioneering multilateral institution. This distinction makes it a unique vehicle for exploring the fundamental challenges of both international justice and organisation. Institutions like the IMTFE are usually viewed through broad geopolitical, legal, and ideological lenses. Although important, these approaches miss a singularly important dimension of multilateralism: the human contingencies that impact international bodies. Using unique participant sources, this article presents an intimate “trial's-eye-view” of how working at the IMTFE affected the emotions, psychology, and temperament of its personnel. Participant responses on these very personal levels had profound consequences on the tribunal's proceedings, findings, and legacy. Other factors shaped justice in Tokyo, but the responses identified here were common, and their impact significant. Ultimately, this paper argues that people and their experiences—as much as anything—produced the outcome of justice in Tokyo.

Identity crisis in post-conflict societies: the ICTY's role in defensive nationalism among the Serbs

Being attentive to initial reconstruction of identities in post-conflict environments is critical because robust group images are absent and there remains time and space for shifts in policy. Applying theories of social psychology, overlooked in literature on ethnic violence, peace-building, and reconciliation, this article examines characteristics and consequences of the emerging socio-psychological trend of ‘defensive nationalism’ in post-conflict Serb narratives. The article argues that the proceedings of the International Criminal Tribunal for the Former Yugoslavia (ICTY) have contributed to an identity crisis among the Serbs, and identifies the issues of ‘individual versus collective’ guilt and ‘legal versus political’ trials as major factors. The destabilization of the Serb self-image on the global scene has instigated new, and furthered old, forms of defensiveness, leading to the dismissal of the tribunal's proceedings in favor of contradictory and conspiracy accounts. The point of conducting fair and effective prosecutions is undermined if reconciliation opportunities are simultaneously diminished.

Incapacity and Simulation: Mutually Exclusive Grounds or Key Juridic Facts Underlying Conforming Sentences?

* Assistant Professor, School of Canon Law, The Catholic University of America, Washington DC. 1 Pontifical Council for Legislative Texts, Instruction Dignitas Connubii 291§2, January 25, 2005 (Vatican City: Libreria Editrice Vaticana, 2005): “Aequivalenter seu substantialiter conformes considerantur decisiones quae licet caput nullitatis diverso nomine significent et determinent tamen super iisdem factis matrimonium irritantibus et probationibus nitantur.” Elsewhere in this issue John Foster illustrates the differences between formal conformity of sentences and substantial conformity. See John J.M. Foster, “Conformity of Sentences: Something OldYet Something New,” The Jurist 70 (2010) 270–301. See also, Joaquín Llobell, “El valor jurídico de la Instr. Dignitas connubii, su recepción eclesial, el objeto y la conformidad de la sentencia, y la certeza moral,” in Procesos de nulidad matrimonial: La Instrucción Dignitas connubii, eds. Rafael Rodríguez-Ocaña and Joaquín Sedano (Pamplona: EUNSA, 2006) 291–299. 327 The Jurist 70 (2010) 327–367 INCAPACITY AND SIMULATION: MUTUALLY EXCLUSIVE GROUNDS OR KEY JURIDIC FACTS UNDERLYING CONFORMING SENTENCES? Sean O. Sheridan, TOR* Introduction Dignitas connubii 291§2 describes equivalent or substantial conformity of sentences in the context of a request for a declaration of the nullity of a marriage. Paragraph two provides: “Decisions are considered to be equivalently or substantially conforming when, even though they specify and determine the ground of nullity by different names, they are still rooted in the same facts rendering the marriage null and the same proofs.”1 In their commentary on Dignitas connubii, Klaus Lüdicke and Ronny Jenkins address the significance of this provision: Paragraph two (§2) describes the notion of equivalent or substantial conformity of sentences. Two decisions are said to be equivalently conforming when they, like formally conforming sentences, concern the same marriage between the same partners . However, with equivalent conformity, the two sentences use different grounds to establish the nullity, but arrive at their conclusions based on the same facts and proofs. The notion of equivalent conformity recognizes a certain degree of leeway with regard to the legal basis (grounds of nullity) that should be used to evaluate the same set of facts. For instance, equivalent conformity could result from the declaration of the nullity of a 2 Klaus Lüdicke and Ronny E. Jenkins, Dignitas Connubii: Norms and Commentary (Alexandria VA: Canon Law Society of America, 2006) 468–469. See also, Paolo Moneta , “Determination of the Formulation of the Doubt and Conformity of the Sentence,” in Studies on the Instruction Dignitas Connubii,” eds. Patricia M. Dugan and Luis Navarro (Montreal: Wilson & LaFleur Ltée, 2006) 105–113. 3 English translation from Code of Canon Law, Latin-English Edition: New English Translation (Washington, DC: Canon Law Society of America, 1998). All subsequent English translations of canons from this code will be taken from this source unless otherwise indicated. marriage based in one sentence on total simulation and in the other on the exclusion of indissolubility.2 Hence, in a nutshell, for two sentences to be in equivalent conformity, they must be decided on the same juridic facts even if the judges might disagree on the name to attach to the ground upon which the juridic facts lead them to reach their decision on nullity. In this article, we will consider the application of equivalent conformity to the canonical grounds of incapacity and simulation, two grounds that have traditionally been held to be mutually exclusive.As we will discuss in more detail infra, canon 1095 embodies the canonical requirements for determining whether an individual lacks the capacity to enter into a valid marriage. Canon 1095, which is likely quite familiar to those practitioners involved in marriage tribunal proceedings, provides: The following are incapable of contracting marriage: 1º those who lack the sufficient use of reason; 2º those who suffer from a grave defect of discretion of judgment concerning the essential matrimonial rights and duties mutually to be handed over and accepted; 3º those who are not able to assume the essential obligations of marriage for causes of a psychic nature.3 Thus, canon 1095 addresses those who lack the capacity to enter into a valid marriage due to a lack of reason, those who lack due discretion, and those who are unable to...