Search results for: contempt of court

Authors: Tien Wei Daniel Hwang

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The computer program inventors, particularly in Fintech, are unwilling to apply for patents in Taiwan after 2014. Passing the ‘statutory subject matter eligibility’ test and becoming the system patent are not the only cause to the reduction in the number of application. Taiwanese court needs to resolve whether the defendants had ‘used’ that software patent in patent direct infringement suit. Both 35 U.S.C. § 271(a) and article 58 paragraph 2 of Taiwan Patent Law don’t define the meaning of ‘use’ in the statutes. Centillion Data Sys., LLC v. Qwest Commc’ns Int’l, Inc. reconsidered the meaning of ‘use’ in system patent infringement, and held that ‘a party must put the invention into service, i.e., control the system as a whole and obtain benefit from it.’ In Taiwan, Intellectual Property Office, Ministry of Economic Affairs, has explained that ‘using’ the patent is ‘achieving the technical effect of the patent.’ Nonetheless, this definition is too broad to apply to not only the software patent but also the traditional patent. To supply the friendly environment for Fintech corporations, this article aims to let Taiwanese court realize why and how United States District Court, S.D. Indiana, Indianapolis Division and United States Court of Appeals, Federal Circuit defined the meaning of ‘use’ in 35 U.S.C. § 271(a). However, this definition is so lax and confuses many defendants in United States. Accordingly, this article indicates the elements in Taiwan Patent Law are different with 35 U.S.C. § 271(a), so Taiwanese court can follow the interpretation of ‘use’ in Centillion Data case without the same obstacle.

Keywords: direct infringement, FinTech, software patent, use

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Authors: Valentina Tereshkova

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The paper shows how the relationship between international law and national sovereignty is viewed through the implementation of European Court of Human Right judgments. Methodology: Сonclusions are based on a survey of representatives of the legislative authorities and judges of the Krasnoyarsk region, the Rostov region, Sverdlovsk region and Tver region. The paper assesses the activities of the Russian Constitutional Court from 1998 to 2015 related to the establishment of the implementation mechanism and the Russian Constitutional Court judgments of 14.07.2015, № 21-P and of 19.04.2016, № 12-P where the Constitutional Court stated the impossibility of executing ECtHR judgments. I. Implementation of ECHR judgments by courts and other authorities. Despite the publication of the report of the RF Ministry of Justice on the implementation, we could not find any formal information on the Russian policy of the ECtHR judgment implementation. Using the results of the survey, the paper shows the effect of ECtHR judgments on law and legal practice in Russia. II. Implementation of ECHR judgments by Russian Constitutional Court. Russian Constitutional Court had implemented the ECtHR judgments. However, the Court determined on July, 14, 2015 its competence to consider the question of implementation of ECHR judgments. Then, it stated that the execution of the judgment [Anchugov and Gladkov case] was impossible because the Russian Constitution has the highest legal force on April, 19, 2016. Recently the CE Committee of Ministers asked Russia to provide ‘without further delay’ a compensation plan for the Yukos case. On November 11, 2016, Constitutional Court accepted a request from the Ministry of Justice to consider the possibility of execution of the ECtHR judgment in the Yukos case. Such a request has been made possible due to a lack of implementation mechanism. Conclusion: ECtHR judgments are as an effective tool to solve the structural problems of a legal system. However, Russian experts consider the ECHR as a tool of protection of individual rights. The paper shows link between the survey results and the absence of the implementation mechanism. New Article 104 par. 2 and Article 106 par. 2 of the Federal Law of the Constitutional Court are in conflict with international obligations of the Convention on the Law on Treaties 1969 and Article 46 ECHR. Nevertheless, a dialogue may be possible between Constitutional Court and the ECtHR. In its judgment [19.04.2016] the Constitutional Court determined that the general measures to ensure fairness, proportionality and differentiation of the restrictions of voting rights were possible in judicial practice. It also stated the federal legislator had the power ‘to optimize the system of Russian criminal penalties’. Despite the fact that the Constitutional Court presented the Görgülü case [Görgülü v Germany] as an example of non-execution of the ECtHR judgment, the paper proposes to draw on the experience of German Constitutional Court, which in the Görgülü case, on the one hand, stressed national sovereignty and, on the other hand, took advantage of this sovereignty, to resolve the issue in accordance with the ECHR.

Keywords: implementation of ECtHR judgments, sovereignty, supranational jurisdictions, principle of subsidiarity

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Authors: Samia Al-Shayban

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Conventionally, Fielding Author’s Farce is read as an attack on literary and theatrical establishment. This paper attempt to read it as a disguised scathing political attack upon, King George II, his court and administration. Fielding achieves his design through complex dramatization based on implicit connections between King George II and the poor poet Luckless who shifts his stand from defending the liberties of the authors into becoming one of their oppressors. Through the same connection, the king is accused of being the originator and protector of literary corruption. To strengthen the attack against the king, the court of nonsense which appeared in Luckless’ play is connected to George II’s court through the presence of opera and ignorance. Thus, Fielding’s literary dramatization is used as a medium to expose the corrupting influence of the ruling elite. The King, his court and administration are all complacent in devaluing the English theatre and turning it into a circus that generate nothing but ignorance and poverty. This practice is deliberately designed to keep people ignorant and authors poor so they remain unable to challenge their corrupt politics.

Keywords: fielding, King George II, ignorance, theatre, plays

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Authors: Seyedeh Sajedeh Salehi

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The Regulation No. 1215/2012/EC also known as the Brussels I Regulation (Recast) deals with jurisdictional disputes in civil and commercial matters. The main aim of the Recast (as in-line with its predecessor Regulation) is to bring a reform in procuring more simplified and faster circulation of civil and commercial judgments within the EU. Hence it is significant to take a closer look at the function of this regulatory tool. Therefore, the main objective of this paper is to analyze a clear understanding of the post-Recast situation on e-commerce relevant jurisdictional matters. The e-consumer protection and the choice-of-court agreements along with the position of the Court of Justice of the European Union in its decisions within the Recast Regulation will be also taken into consideration throughout this paper.

Keywords: choice-of-court agreements, consumer protection, e-commerce, jurisdiction, Recast Brussels I Regulation

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Authors: Bader A. J. Alrajhi

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The 'loss of control' defence to murder as enacted in the Coroners and Justice Act 2009 (CJA) represents a legislative effort to bring greater coherence to an aspect of UK homicide law that has vexed several generations of jurists, practitioners, and academic commentators. The analysis developed in this paper illustrates that the loss of control defence as defined in CJA sections 54 and 55 is a laudable initiative; its fuller assessment must await further appellate court determination before a definitive conclusion of its utility is possible. The CJA amendments tend to embrace a legitimate policy that those who found to be provoked by the activities of others to lose their self-control should be dealt with in a different way than those who commit intentional killings when motivated by their own desires or pursuit of gain. However, the 2012 Court of Appeal decisions rendered in the Parker troika of cases, provide useful direction as to how the law is likely to be applied. It shows an attitude in the Court of Appeal that the whole circumstances that challenged the defendant must be examined. The Court of Appeal has introduced an important ingredient into the potential use of sexual infidelity as a section 55 trigger - it is not a permissible stand-alone factor, but it may legitimately form part of an entire qualifying trigger circumstance.

Keywords: loss of self-control, Coroners and Justice Act 2009, provocation, diminished responsibility

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Authors: Sonny Dewi Judiasih

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Every person retains the right to marry and starts a family through a legitimized marriage. Indonesian Marriage Act has regulated the minimum age for boys to marry is 19 while the girls is 16, with an exception that the parents could ask for an exemption to the court or to the authorized official. Despite the age limit is set by the Marriage Act, however, with the influences from adat law and islamic law which allows younger persons to marry, the child marriage phenomenon is inevitable to happen in Indonesia. Child marriages in Indonesia have shown such alarming fact where 4.8 percentage of total marriage number come from persons with the age of 10 to 14 years old. The percentage was the result from a research conducted by the National Population and Family Planning Board (BKKBN). The result shows 41.9 percent of child marriages was contributed by girls who marry in the age of 15 to 19, which mostly comes from villagers. Other fact shows 50 percent of child marriages end in divorce with grounds varied from the mental health of the children, economic situation, and so on. With more children committed early marriages, more babies will be borned from indebted families. Subsequently, the government’s program to alleviate poverty will be short of expectations. Other risk for child marriages includes death of the mother and the child after giving birth. The people have challenged the legality of child marriages through judicial review filed to the Constitutional Court. The Court decided to reinforce the age limitation previously set by the Marriage Act by issuing judicial decision no: 30-74/PUU-Xii/2014. The Court stated that changes to the age limit must be in conform with cultural and traditional situation. Further, it stated child marriages are allowed to be arranged as an “emergency exit” if the parents filed such request to an exemption on the grounds of coercive situation and after the court or the authorized officials issued its approval.

Keywords: child, marriage, court, Indonesia

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Authors: Jelena Radmanovic

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On 5 March 2020, the International Criminal Court has decided to authorize the investigation into the crimes allegedly committed on the territory of Afghanistan after 1 May 2003. The said determination has raised several controversies, including the recently imposed sanctions by the United States, furthering the United States' long-standing rejection of the authority of the International Criminal Court. The purpose of this research is to address the said investigation in light of its importance for the prevention of impunity in the cases where the perpetrators are nationals of Non-Party States to the Rome Statute. Difficulties that the International Criminal Court has been facing, concerning the establishment of its jurisdiction in those instances where an involved state is not a Party to the Rome Statute, have become the most significant stumbling block undermining the importance, integrity, and influence of the Court. The Situation in Afghanistan raises even further concern, bearing in mind that the Prosecutor’s Request for authorization of an investigation pursuant to article 15 from 20 November 2017 has initially been rejected with the ‘interests of justice’ as an applied rationale. The first method used for the present research is the description of the actual events regarding the aforementioned decisions and the following reactions in the international community, while with the second method – the method of conceptual analysis, the research will address the decisions pertaining to the International Criminal Court’s jurisdiction and will attempt to address the mentioned Decision of 5 March 2020 as an example of good practice and a precedent that should be followed in all similar situations. The research will attempt parsing the reasons used by the International Criminal Court, giving rather greater attention to the latter decision that has authorized the investigation and the points raised by the officials of the United States. It is a find of this research that the International Criminal Court, together with other similar judicial instances (Nuremberg and Tokyo Tribunals, The International Criminal Tribunal for the former Yugoslavia, The International Criminal Tribunal for Rwanda), has presented the world with the possibility of non-impunity, attempting to prosecute those responsible for the gravest of crimes known to the humanity and has shown that such persons should not enjoy the benefits of their immunities, with its focus primarily on the victims of such crimes. Whilst it is an issue that will most certainly be addressed further in the future, with the situations that will be brought before the International Criminal Court, the present research will make an attempt at pointing to the significance of the situation in Afghanistan, the International Criminal Court as such and the international criminal justice as a whole, for the purpose of putting an end to impunity.

Keywords: Afghanistan, impunity, international criminal court, sanctions, United States

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Authors: Sadiya S. Silvee

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Generally, the decision of the higher court is binding on its subordinate courts. As provided in Article 111 of the Constitution, 'the law declared by the Appellate Division (AD) shall be binding on the High Court Division (HCD) and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it.' This means the judicial discipline requires the HCD to follow the decision of the AD and that it is necessary for the lower tiers of courts to accept the decision of the higher tiers as a binding precedent. Analyzing the application of Article 111 of the Constitution in the criminal justice system as a sentencing guideline, the paper, by examining whether there is any consistency in decision between one HC Bench and another HC Bench, explores whether HCD can per incuriam its previous decision. In doing so, the Death Reference (DR) Cases are contemplated. Furthermore, the paper shall examine whether the Court of Session follows the decision of the HCD while using their discretion to make the choice between death and imprisonment for life under section 302 of PC. The paper argues due to the absence of any specific direction for sentencing and inconsistency in jurisprudence among the HCD; the subordinate courts are in a dilemma.

Keywords: death reference, sentencing factor, sentencing guideline, criminal justice system and constitution

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Authors: Allwell Uwazuruike

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With the withdrawal, in 2016, of 3 African states from the ICC, the discourse took an interesting twist. African states, or at least some of them, had now shown their resolve to part ways with the ICC and, by implication, focus on further enthroning regional control and governance through an improved continental justice system. A range of views has been expressed over the years on the allegations of bias by some African states and the continued membership of the ICC. While there may be a split on the merits of the allegations of bias, academic analysts have generally not opposed African states’ membership of the ICC nor been particularly optimistic about the prospects of an African criminal court. There is also a degree of ambivalence on whether there are positives to be taken from African states’ withdrawal from the ICC. This article examines the recent developments with the ICC and analyses whether these could be viewed from the positive (or, at least, alternative) spectrum of the AU’s spirited march towards regional sovereignty or entirely negatively from the point of view of African Heads-of-State seeking to enthrone an era of authoritarianism and non-accountability.

Keywords: international criminal court, Africa, regionalism, criminal justice

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Authors: María José Benítez Jiménez

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Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (E.C.H.R.) proclaims that no one may be subjected to torture, punishment or degrading treatment. The legislative correlate in Spain is embodied in Article 15 of the Spanish Constitution, and there must be an overlapping interpretation of both precepts on the ideal plane. While it is true that there are not many cases in which the European Court of Human Rights (E.C.t.H.R. (The Strasbourg Court)) has sanctioned Spain for its failure to investigate complaints of torture, it must be emphasized that the tendency to violate Article 3 of the Convention appears to be on the rise, being necessary to know possible factors that may be affecting it. This paper addresses the analysis of sentences that directly or indirectly reveal the violation of Article 3 of the European Convention. To carry out the analysis, sentences of the Strasbourg Court have been consulted from 2012 to 2016, being able to address any previous sentences to this period if it provided justified information necessary for the study. After the review it becomes clear that there are two key groups of subjects that request a response to the Strasbourg Court on the understanding that they have been tortured or degradingly treated. These are: immigrants and terrorists. Both phenomena, immigration and terrorism, respond to patterns that have mutated in recent years, and it is important for this study to know if national regulations begin to be dysfunctional.

Keywords: E.C.H.R., E.C.t.H.R. sentences, Spanish Constitution, torture

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Authors: Mariam Begadze

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Separation of Powers (SOP) has often been the most frequently posed objection against the judicial enforcement of socio-economic rights. Although a lot has been written to refute those, very rarely has it been assessed what effect the current practice of social rights adjudication has had on the construction of SOP doctrine in specific jurisdictions. Colombia is an appropriate case-study on this question. The notion of collaborative SOP in the 1991 Constitution has affected the court’s conception of its role. On the other hand, the trends in the jurisprudence have further shaped the collaborative notion of SOP. Other institutional characteristics of the Colombian constitutional law have played its share role as well. Tutela action, particularly flexible and fast judicial action for individuals has placed the judiciary in a more confrontational relation vis-à-vis the political branches. Later interventions through abstract review of austerity measures further contributed to that development. Logically, the court’s activism in this sphere has attracted attacks from political branches, which have turned out to be unsuccessful precisely due to court’s outreach to the middle-class, whose direct reliance on the court has turned into its direct democratic legitimacy. Only later have the structural judgments attempted to revive the collaborative notion behind SOP doctrine. However, the court-supervised monitoring process of implementation has itself manifested fluctuations in the mode of collaboration, moving into more managerial supervision recently. This is not surprising considering the highly dysfunctional political system in Colombia, where distrust seems to be the default starting point in the interaction of the branches. The paper aims to answer the question, what the appropriate judicial tools are to realize the collaborative notion of SOP in a context where the court has to strike a balance between the strong executive and the weak and largely dysfunctional legislative branch. If the recurrent abuse lies in the indifference and inaction of legislative branches to engage with political issues seriously, what are the tools in the court’s hands to activate the political process? The answer to this question partly lies in the court’s other strand of jurisprudence, in which it combines substantive objections with procedural ones concerning the operation of the legislative branch. The primary example is the decision on value-added tax on basic goods, in which the court invalidated the law based on the absence of sufficient deliberation in Congress on the question of the bills’ implications on the equity and progressiveness of the entire taxing system. The decision led to Congressional rejection of an identical bill based on the arguments put forward by the court. The case perhaps is the best illustration of the collaborative notion of SOP, in which the court refrains from categorical pronouncements, while does its bit for activating political process. This also legitimizes the court’s activism based on its role to counter the most perilous abuse in the Colombian context – failure of the political system to seriously engage with serious political questions.

Keywords: Colombian constitutional court, judicial review, separation of powers, social rights

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Authors: Rafael Tedrus Bento

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The analysis of proportionality as a test is raised as a basic foundation for the achievement of Fundamental Rights. We used legal dogmatics and empirical analysis to seek the expected results, from the reading of the RV Oakes trial by the Supreme Court of Canada. In cases involving freedom of expression, two tests are used to resolve disputes. The first examines whether, in fact, the case can be characterized as a violation of freedom of expression; the second assesses whether this violation can be justified by the reasonable limit clause. This test was defined in the RV Oakes trial by the Supreme Court of Canada, concluding with the Oakes Test, used worldwide as a proportionality test. Resulting is a proportionality between the effects of the limiting measure and the objective - the more serious the harmful effects of a measure, the more important the objective must be.

Keywords: Oakes, proportionality, fundamental rights, Supreme Court of Canada

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Authors: Mingsiang Chen

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The increasing transactions among countries worldwide have brought about a trend of comparative law research in the legal community. An important branch of legal research, i.e., constitutional law, is no exception to the trend. The comparative study of constitutional law takes various forms, and one of these is to study the use of foreign law by constitutional courts. There are, in essence, three sources of foreign law usually used by constitutional courts: foreign constitutions, decisions by foreign constitutional courts, and legal theories developed by foreign scholars. There are two types of using foreign law by constitutional courts: citing any of the forenamed sources for reference purpose, ruling based on the contents or logic of any of the forenamed sources. This paper examines all the decisions handed down by the Constitutional Court of Taiwan from 1990 to 2017. Its purpose is to seek out the occasions, the extent, the significance, and the approach of such usage.

Keywords: comparative constitutional law, constitutional court, judicial review, Taiwan judiciary

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Authors: Olgun Akbulut

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Turkey has entered in the European human rights monitoring in the early 1990s. Since then many improvements have been observed in domestic law. However, one area stays the least developed one: gender discrimination. Although the country is proud of the fact that electoral rights for women were recognized in Turkey even before many developed countries in the west, interestingly the first Turkish case where the European Court of Human Rights (ECrtHR) found discrimination concerned gender discrimination. With the proposed paper, the author is willing to determine and analyze the findings of the ECrtHR in cases decided against Turkey concerning gender discrimination, identify whether Turkish public institutions display coordination in engagement or disengagement in implementing the judgments where the ECrtHR found discrimination on the basis of gender and evaluate the effectiveness of the Court's jurisprudence on Turkish gender policy.

Keywords: equality, gender discrimination, human rights, Turkey

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Authors: Paiboon Chuwatthanakij

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In reference to the legal state in the Thai legal system, most people understand the minor principles of the legal state form, which are the principles that can be explained and understood easily and the results can be seen clearly, especially in the legitimacy of administrative acts. Therefore, there is no awareness of justice, which is the fundamental value of Thai law. The legitimacy of administrative acts requires the administration to adhere to the constitution and legislative laws in enforcement of the laws. If it appears that the administrative acts are illegitimate, the administrative court, as the court of justice, will revoke those acts as if they had never been set in the legal system, this will affect people’s trust as they are unaware as to whether the administrative acts that appoint their lives are legitimate or not. Regarding the revocation of administrative orders by the administrative court as if those orders had never existed, the common individual surely cannot be expected to comprehend the security of their juristic position. Therefore, the legal state does not require a revocation of the government’s acts to terminate its legal results merely because those acts are illegitimate, but there should be considerations and realizations regarding the “The Principle of the Protection of Legitimate Expectation,” which is a minor principle in the legal state’s content that focuses on supporting and protecting legitimate expectations of the juristic position of an individual and maintaining justice, which is the fundamental value of Thai law

Keywords: legal state, rule of law, protection of legitimate, adjudication

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Authors: Yee Yan Crystal Kwong

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The essence of rape is the absence of consent to sexual intercourse. Yet, the definition of consent is not absolute and allows for subjectivity. In this case, the accuracy of oral interpretation becomes very important as the narratives of events and situation, as well as the register and style of speakers would influence the juror decision making. This paper first adopts a corpus-based approach to investigate how court interpreters in Hong Kong handle expressions that refer to sexual activities. The data of this study will be based on online corpus :From legislation to translation, from translation to interpretation: The narrative of sexual offences. The corpus comprises the transcription of five separate rape trials and all of these trials were heard with the presence of an interpreter. Since there are plenty of sex-related expressions used by witnesses and defendants in the five cases, emphasis will be put on those which have an impact on the definition of rape. With an in-depth analysis of the interpreted utterances, different interpreting approaches will be identified to observe how interpreters retain the intended meanings. Interviews with experienced court interpreters will also be conducted to revisit the validity of the traditional verbatim standard. At the end of this research, various interpreting approaches will be compared and evaluated. A redefinition of interpreters' institutional role, as well as recommendations for interpreting learners will be provided.

Keywords: court interpreting, interpreters, legal translation, slangs

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Authors: Ashley R. Logsdon, Becky F. Antle, Cynthia M. Kamer

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This study examines the cost and benefits of a family treatment drug court in an urban county in a southeastern state. Additionally, this cost analysis will provide a detailed description of the type and cost of activities to produce the services provided to child welfare families. This study utilized return-on-investment analysis, which uses child welfare practices, disaggregates them into separate activities and estimates costs for these activities including child-level placement data for total cost of care for the child. Direct and indirect costs were considered as well as saving calculations what costs would be associated with child welfare outcomes both short and long term. The costs included were general program costs (salaries, drug screens, transportation, childcare, parent education, program evaluation, visitation, incentives) or personnel costs for other team members (judges, court administrators, child welfare workers, child welfare supervisors, and community mental health provider). The savings that were used in the study were length of time in out of home care, Medicaid costs, substance exposed births, emergency room utilization and jail/probation costs. This study documents an overall savings of between $168,993.30 and $837,993.30. The total savings per family divided by the 40 families who have participated in the program was between $4,224.83 to $20,949.83 per family. The results of this cost benefit analysis are consistent with prior research documenting savings associated with out of home care and jail/probation; however, there are also unique contributions of this study to the literature on cost effectiveness of family treatment drug courts. We will present recommendations for further utilization of family treatment drug courts and how to expand the current model.

Keywords: child welfare, cost analysis, family drug court, family treatment drug court

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Authors: Jeanne-Mari Retief

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As of November 2016, three African states have withdrawn from the International Criminal Court (ICC) and more are expected to follow. The alleged abuse of universal jurisdiction and targeting of African states by the ICC motivated the withdrawals. These historical exits raise many questions, especially in regard to the adequate investigation and prosecution of international crimes in a continent with a history of impunity. Even though African courts exist and one more is proposed, many issues remain i.e. adequate access to the courts, the extent of the courts’ jurisdiction, and proposed methods of effectively dealing with international crimes in Africa. This paper seeks to address the practical effects of the withdrawal from the ICC and the problems posed through utilizing regional courts. It will specifically look at the practical challenges existing courts face, the lack of access to the latter, issues concerning the proposed African Court for Justice and Human Rights, and the shocking promotion of impunity in Africa. These all have severe implications for African citizens and victims of the most heinous crimes. The mantra of African solutions to African problems places an important duty on states to ensure the actual provision of these solutions, which can only be achieved through a critical analysis of the questions above.

Keywords: ACJHR, Africa, impunity, justice, Malabo protocol

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Authors: Congrui Chen

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The European Court of Human Rights (hereinafter ECtHR) delivered its judgment of just satisfaction on the case of Cyprus v. Turkey, ordering a lump sum of 9,000,000 euros as the just compensation. It is the first time that the ECtHR applied the Article 41 of just compensation in an inter-state case, and it stands as the highest amount of just compensation awarded in the history of the ECtHR. The Cyprus v. Turkey case, which represents the most crucial contribution to European peace in the history of the court. This thesis uses the methodologies of textual research, comparison analysis, and case law study to go further on the following two questions specifically:(i) whether the just compensation is applicable in an inter-state case; (ii) whether such just compensation is of punitive nature. From the point of view of general international law, the essence of the case is the state's responsibility for the violation of individual rights. In other words, the state takes a similar diplomatic protection approach to seek relief. In the course of the development of international law today, especially with the development of international human rights law, States that have a duty to protect human rights should bear corresponding responsibilities for their violations of international human rights law. Under the specific system of the European Court of Human Rights, the just compensation for article 41 is one of the specific ways of assuming responsibility. At the regulatory level, the European Court of Human Rights makes it clear that the just satisfaction of article 41 of the Convention does not include punitive damages, as it relates to the issue of national sovereignty. Nevertheless, it is undeniable that the relief to the victim and the punishment to the responsible State are two closely integrated aspects of responsibility. In other words, compensatory compensation has inherent "punitive".

Keywords: European Court of Human Right, inter-state cases, just satisfaction, punitive damages

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Authors: Masood Ahmed

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There is a plethora of literature (including judicial and extra-judicial comments) concerning the virtues of alternative dispute resolution processes within the English civil justice system. Lord Woolf in his Access to Justice Report ushered in a new pro-ADR philosophy and this was reinforced by Sir Rupert Jackson in his review of civil litigation costs. More recently, Briggs LJ, in his review of the Chancery Court, reiterated the significant role played by ADR and the need for better integration of ADR processes within the Chancery Court. His Lordship also noted that ADR which had failed to produce a settlement (i.e. a failed-ADR) continued to play a significant role in contributing to a ‘substantial narrowing of the issues or increased focus on the key issues’ which were ‘capable of assisting both the parties and the court in the economical determination of the dispute at trial.’ With the assistance of empirical data, this paper investigates the nature of failed-ADR and, in particular, assesses the effectiveness of failed-ADR processes as a tool in: (a) narrowing the legal and/or factual issues which may assist the courts in more effective and efficient case management of the dispute; (b) assisting the parties in the future settlement of the matter. This paper will also measure the effectiveness of failed-ADR by considering the views and experiences of legal practitioners who have engaged in failed-ADR.

Keywords: English civil justice system, alternative dispute resolution processes, civil court process, empirical data from legal profession regarding failed ADR

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Authors: Maria Albuquerque, Miguel Matias, Ângelo Sá, Juliana Sousa, Maria Manuel Mouzinho

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Obesity is a frequent disease in Portugal. The surgical treatment is very effective and has an indication when there is a failure of the medical treatment. Although massive weight loss is associated with considerable health gains, these patients are characterized by a variable degree of dermolipodistrophy. In some cases, there is even the development of physical symptoms such as intertriginous, and some degree of psychological distress is present. In almost all cases, a desire for a better body contour, which inhibits some aspects of social life, is a fact. A prospective study was made to access the impact of body contouring surgery in the quality of life of patients who underwent a massive weight lost correction surgical procedure at Centro Hospitalar de Lisboa Central between January 2020 and December 2021. The patients were submitted to the Body Q subjective questionnaire adapted for the Portuguese language and accessed for the following categories: Anguish with Appearance, Contempt with Body Image, Satisfaction with the Abdomen, and Overall Satisfaction with the Body. The questionnaire was repeated at the 6 months mark. A total of 80 patients were sampled. The sex distribution was 79 female and 1 male. The median BMI index before surgery was inferior to 28%. The pre operatory questionnaire showed high scores for Anguish with Appearance and low scores for the body image self-evaluation. Overall, there was an improvement of at least 50% in all the evaluated scores. Additionally, a correlation was found between abdominoplasty and the contempt with body image and satisfaction with the abdomen (p-value <0.05). Massive weight loss is associated with important body deformities that have a significant impact on the patient’s personal and social life. Body contouring surgery is then vital for these patients as it implicates major aesthetic and functional benefits.

Keywords: abdominoplasty, cruroplasty, obesity, massive weight loss

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Authors: Uluhan Berk Ondul

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This article aims to shed light on the new stage of transitional justice in Argentina through examining the representations of the 2x1 decision of the Supreme Court and Santiago Maldonado’s Disappearance in the newspaper, La Nación. The two events hold the key to understanding Argentina’s journey since return to democracy as they are about the same crimes of the dictatorship, namely, the forced disappearance of civilians and the subsequent impunity that follows. In the case of a convicted torturer, The Supreme Court of Argentina ruled on 3rd of May 2017 that the days spent in preventive detention after two years should be counted double for the overall sentence. This court decision was met with severe resistance from the members of the parliament as well as the human rights movement. The second item on the list still continues and divides the country into two camps: (1) those who think that the police force has committed another act of forced disappearance in the case of activist Santiago Maldonado and (2) the others who blame the peronistas (the party and supporters of the ex-president Cristina Fernandez de Kirchner) of using this subject as a means to score political points. As a newspaper known for its proximity to the current administration, La Nación offers an insight to the direction of the country and also demonstrates how the neoliberal mindset works. The results of the study show that the transitional justice process in Argentina is far from being complete as the Promise of Nunca Más is still not a shared value but a political statement.

Keywords: Argentina, Fallo 2x1, impunity, Santiago Maldonado, transitional justice

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Authors: Susana Sousa Machado

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The debate on the use of religious symbols has been highlighted in modern societies, especially in the field of labour relationships. As litigiousness appears to be growing, the matter requires a careful study from a legal perspective. In this context, a description and critical analysis of the most recent case law is conducted regarding the use of symbols by the employee in the workplace, delivered both by the European Court of Human Rights and by the Court of Justice of the European Union. From this comparative analysis we highlight the most relevant aspects in order to seek a common core regarding the juridical-argumentative approach of case law.

Keywords: religion, religious symbols, workplace, discrimination

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Authors: Dini Dewi Heniarti

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Military Court which is a judicial institution within the military institution has a heavy duty. Military court has to ensuring a fair legal process for military personnel (due process of law) and enforces military discipline. Military justice must also ensure protects the rights of military personnel. In Indonesia tren of military court changes in vision. The debate is happened on the jurisdiction of military court that allegedly has the potential existence of impunity. The Decree of People’s Consultative Assembly Number VII/MPR/2000 which states that the army general who committed the crime should not be tried in military court is one that underlies the proposed amendment limits the jurisdiction of military court. For the identify of the background in a specific format that is limited to juridical review. The goals this research is to gain knowledge, deep understanding and the concept of jurisdiction of military courts for military members who committed general crimes in adjudication procedure from the perspective of legal reform as alternative to establish independency of military judiciary. This research using Rule of Law as Grand Theory, Development Legal Theory as a Middle Theory and Criminal Justice System and concept of jurisdiction as supporting as Applied Theory. This study using a normative juridical approach, and equipped by primary data juridical approach of historical and comparative approach. The author uses descriptive analytical specifications. The main data used in this research is secondary data, which includes primary legal materials, secondary legal material and legal materials tertiary. Analysis primary data and qualitative data is done legally. Technique checking the validity of the data in this study used multiple methods with the research triangulation. This paper will demonstrate the problems concerning the jurisdiction of military courts for military personnel who committed general crimes in perspective of military justice reform Indonesia and adjudication procedures for military member who committed general crimes in the military justice system in Indonesia, as alternative to establish independency of judiciary in military justice in Indonesia. Comparative approached the military justice system from another countries is aimed to development military justice in Indonesia.

Keywords: jurisdiction, military courts, military justice, independency of judiciary

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Authors: Robyn White, Juan Bornman, Ensa Johnson

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People with disabilities are at a high risk of becoming victims of crime. Individuals with little or no functional speech (LNFS) face an even higher risk. One way of reducing the risk of remaining a victim of crime is to face the alleged perpetrator in court as a witness – therefore it is important for a person with LNFS who has been a victim of crime to have the required vocabulary to testify in court. The aim of this study was to identify and describe the core and fringe legal vocabulary required by illiterate victims of crime, who have little or no functional speech, to testify in court as witnesses. A mixed-method, the exploratory sequential design consisting of two distinct phases was used to address the aim of the research. The first phase was of a qualitative nature and included two different data sources, namely in-depth semi-structured interviews and focus group discussions. The overall aim of this phase was to identify and describe core and fringe legal vocabulary and to develop a measurement instrument based on these results. Results from Phase 1 were used in Phase 2, the quantitative phase, during which the measurement instrument (a custom-designed questionnaire) was socially validated. The results produced six distinct vocabulary categories that represent the legal core vocabulary and 99 words that represent the legal fringe vocabulary. The findings suggested that communication boards should be individualised to the individual and the specific crime. It is believed that the vocabulary lists developed in this study act as a valid and reliable springboard from which communication boards can be developed. Recommendations were therefore made to develop an Alternative and Augmentative Communication Resource Tool Kit to assist the legal justice system.

Keywords: augmentative and alternative communication, person with little or no functional speech, sexual crimes, testifying in court, victim of crime, witness competency

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Authors: Girma Y. Iyassu Menelik

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The international community has gone through indescribable atrocities resulting from acts of war. These atrocities turned Europe and Africa into a wilderness of bloodshed and crime. In the period 1960- 1970s Africa witnessed unprecedented and well-documented assaults on life and property. This necessitated the adoption, signing and ratification of the International Criminal Court, establishment of the International Court of Justice which is a great achievement for the protection and fulfilling of human rights in the context of international political instability. The ICC came as an important opportunity to advance justice for serious crimes committed in violation of international law. Thus the Rome statute has become a formidable contribution to peace and security. There are concerns that the ICC is targeting African states. However, the ICC cannot preside over cases that are not parties to the Rome statute unless the UN Security council refers the situation or the relevant state asks the court to become involved. The instable international political situation thus deals with criminal prosecutions where amnesty is not permissible or is strongly repudiated. The court has become important justice instruments for states that are unable or unwilling to fulfill their obligation to address legacies of massive human rights violations. The ICJ as a court has a twofold role; to settle legal disputes submitted to it by states, and to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and specialized agencies. All members of the UN are ipso facto parties to the statute of the ICJ. The court gives advisory opinion on any legal question. These courts are the most appropriate fora to pronounce on international crimes and are in a better position to know and apply international law. Cases that have been brought to the courts include Rwanda’s genocide, Liberia’s Charles Taylor etc. The receptiveness and cooperation of the local populations are important to the courts and if the ICC and ICJ can provide appropriate protections for the physical and economic safety of victims then peace and human rights observance can be attained. This paper will look into the effectiveness and impediments of these courts in handling criminal and injustices in international politics as while as what needs to be done to strengthen the capacity of these courts.

Keywords: ICC, international politics, justice, UN security council, violence, protection, fulfilling

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Authors: Joel Niklaus, Matthias Sturmer

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The publication of judicial proceedings is a cornerstone of many democracies. It enables the court system to be made accountable by ensuring that justice is made in accordance with the laws. Equally important is privacy, as a fundamental human right (Article 12 in the Declaration of Human Rights). Therefore, it is important that the parties (especially minors, victims, or witnesses) involved in these court decisions be anonymized securely. Today, the anonymization of court decisions in Switzerland is performed either manually or semi-automatically using primitive software. While much research has been conducted on anonymization for tabular data, the literature on anonymization for unstructured text documents is thin and virtually non-existent for court decisions. In 2019, it has been shown that manual anonymization is not secure enough. In 21 of 25 attempted Swiss federal court decisions related to pharmaceutical companies, pharmaceuticals, and legal parties involved could be manually re-identified. This was achieved by linking the decisions with external databases using regular expressions. An automated re-identification system serves as an automated test for the safety of existing anonymizations and thus promotes the right to privacy. Manual anonymization is very expensive (recurring annual costs of over CHF 20M in Switzerland alone, according to an estimation). Consequently, many Swiss courts only publish a fraction of their decisions. An automated anonymization system reduces these costs substantially, further leading to more capacity for publishing court decisions much more comprehensively. For the re-identification system, topic modeling with latent dirichlet allocation is used to cluster an amount of over 500K Swiss court decisions into meaningful related categories. A comprehensive knowledge base with publicly available data (such as social media, newspapers, government documents, geographical information systems, business registers, online address books, obituary portal, web archive, etc.) is constructed to serve as an information hub for re-identifications. For the actual re-identification, a general-purpose language model is fine-tuned on the respective part of the knowledge base for each category of court decisions separately. The input to the model is the court decision to be re-identified, and the output is a probability distribution over named entities constituting possible re-identifications. For the anonymization system, named entity recognition (NER) is used to recognize the tokens that need to be anonymized. Since the focus lies on Swiss court decisions in German, a corpus for Swiss legal texts will be built for training the NER model. The recognized named entities are replaced by the category determined by the NER model and an identifier to preserve context. This work is part of an ongoing research project conducted by an interdisciplinary research consortium. Both a legal analysis and the implementation of the proposed system design ESRA will be performed within the next three years. This study introduces the system design of ESRA, an end-to-end system for re-identification and anonymization of Swiss court decisions. Firstly, the re-identification system tests the safety of existing anonymizations and thus promotes privacy. Secondly, the anonymization system substantially reduces the costs of manual anonymization of court decisions and thus introduces a more comprehensive publication practice.

Keywords: artificial intelligence, courts, legal tech, named entity recognition, natural language processing, ·privacy, topic modeling

Procedia PDF Downloads 148

Authors: Agne Andrijauskaite

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The observance of procedural rights by administrative authorities is essential for the effective implementation of subjective rights and is part and parcel of the notion of good governance. Whilst a lot of legal scholarship addresses the scope and content of such rights under the European Union legal framework, a very limited attention is given to their application in the case law of European Court of Human Rights (ECtHR) despite its growing engagement with the subject. This paper written as a part of a wider project on the development of pan-European principles of good administration by the Council of Europe aims to fill this lacuna. This will be done by delimiting the scope and extent of individual procedural safeguards through an analysis of the practice of the ECtHR. The right to be heard, the right to access the files and the right to a decision in reasonable time by administrative authorities will be selected as loci classici for the purpose of this article. The results presented in the paper should contribute to the awareness of growing body of ECtHR’s case-law revolving around administrative procedural law and the growing debate on the notion of good governance found therein within academic community.

Keywords: European Court of Human Rights, good governance, procedural rights, procedural Law

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Authors: Myles Frederick McLellan

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When errors in the criminal justice process lead to wrongful convictions and miscarriages of justice, it falls upon the State to make reparation for the egregious harms brought to innocent individuals. Of all the remedies available to seek compensation, private and public law litigation against the police and prosecution services is the most widely used. Unfortunately, all levels of court including the Supreme Court of Canada have explicitly endorsed the prospect of striking out or dismissing these claims at the outset on an expedited basis. The burden on agents of the State as defendants to succeed on motions for such relief is so low that very few actions will survive to give an innocent accused his or her day in court. This paper will be a quantitative and qualitative analysis on the occurrence and success of motions to strike and dismiss to forestall financial recovery for the damage caused when a criminal investigation and prosecution goes wrong. This paper will also include a comparative component on the private law systems at common law (e.g. USA, UK, Australia and New Zealand) with respect to the availability of a similar process to pre-emptively terminate litigation for the recovery of compensation to an innocent individual.

Keywords: compensation, innocence, miscarriages of justice, wrongful convictions

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Authors: Mohammadbagher Asghariaghamashhadi

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Internet users normally are automatically linked to an advertisement sponsored by a bidder when Internet users enter any trademarked keyword on a search engine. This advertisement appears beside the search results. Through the process of keyword advertising, advertisers can connect with many Internet users and let them know about their goods and services. This concept has generated heated disagreements among legal scholars, trademark proprietors, advertisers, search engine owners, and consumers. Therefore, use of trademarks in keyword advertising has been one of the most debatable issues in trademark law for several years. This entirely new way of using trademarks over the Internet has provoked a discussion concerning the core concepts of trademark law. In respect to legal issues, European Union (EU) trademark law is mostly governed by the Trademark Directive and the Community Trademark Regulation. Article 5 of the directive and Article 9 of the trademark regulation determine the circumstances in which a trademark owner holds the right to prohibit a third party’s use of his/her registered sign. Harmonized EU trademark law proved to be ambiguous on whether using of a trademark is amounted to trademark infringement or not. The case law of the European Court of Justice (ECJ), with reference to this legislation, is mostly unfavorable to trademark owners. This ambivalence was also exhibited by the case law of EU Member States. European keyword advertisers simply could not tell which use of a competitor‘s trademark was lawful. In recent years, ECJ has continuously expanded the scope and reach of trademark protection in the EU. It is notable that Inconsistencies in the Court’s system of infringement criteria clearly come to the fore and this approach has been criticized by analysts who believe that the Court should have adopted a more traditional approach to the analysis of trademark infringement, which was suggested by its Advocate General, in order to arrive at the same conclusion. Regarding case law of keyword advertising within Europe, one of the most disputable cases is Interflora vs. Marks and Spencer, which is still on-going. This study examines and critically analyzes the decisions of the ECJ, the high court of England, and the Court of Appeals of England and address critically keyword advertising issue within European trademark legislation.

Keywords: ECJ, Google, Interflora, keyword advertising, Marks and Spencer, trademark infringement

Procedia PDF Downloads 345