Search results for: Ellsworth court

Authors: Marieta Safta

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The separation and balance of state powers constitute the basis of the rule of law. Observance of this principle requires framing of public authorities within the limits of competence established by the Constitution and the law, as well as loyal cooperation between them. From this perspective, the attribution of the constitutional courts for settling legal conflicts of a constitutional nature is an important tool for correcting the tendencies of violation of these limits, as well as for identifying solutions for situations that do not find an explicit regulation in the constitutional texts. The present study analyzes the jurisprudence of the Constitutional Court of Romania in the field of legal conflicts of a constitutional nature, revealing, together with the presentation of conflict situations, the vulnerabilities of the constitutional reference texts. It is also highlighted the role of the constitutional courts in the evolution of constitutional law institutions, even in terms of defining and redefining the regime of the forms of government. The conclusion of the study, beyond the subject of legal conflicts of a constitutional nature, bears on the necessity, even more so in this matter, of the certainty of jurisdictional interpretation. This certainty cannot be achieved as long as the interpretation is not authoritative; consequently, the assurance of the effectiveness of constitutional justice constitute a key issue of the rule of law.

Keywords: legal conflicts of constitutional nature, the Constitutional Court of Romania, the separation and balance of powers in the state, the effectiveness of constitutional justice

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Authors: Mustafa Arikan, Ibrahim Ercan

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In this paper, protection of program formats was investigated in terms of program formats. Protection of program formats was studied in the French Law in the sense of competition law and CPI. Since the English Judicial system exhibits differences from the legal system of Continental Europe, its investigation bears a special significance. The subject was also handled in German Law at length. Indeed, German Law was investigated in detail within the overall framework of the study. Here, the court decisions in the German Law and the views in the doctrine were expressed in general. There are many court decisions in the American legal system concerning the subject. These decisions also present alternatives in terms of a solution to the problem.

Keywords: comparative law, protection of television programme formats, intellectual property, american legal system

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Authors: László Schmidt

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In the context of artificial intelligence, we need to pay primary and particular attention to ethical principles not only in the design process but also during the application process. According to the European Commission's Ethical Guidelines, AI must have three main characteristics: it must be legal, ethical and stabil. We must never lose sight of the ethical principles because we risk that this new technology will not help democratic decision-making under the rule of law, but will, on the contrary, destroy it. The rapid spread and use of artificial intelligence poses an enormous challenge to both lawmaking and law enforcement. On legislation because AI permeates many areas of our daily lives that the legislator must regulate. We can see how challenging it is to regulate e.g., selfdriving cars/taxis/vans etc. Not to mention, more recently, cryptocurrencies and Chat GPT, the use of which also requires legislative intervention, from copyright to scientific use and even law of succession. Artificial intelligence also poses an extraordinary challenge to law enforcement. In criminal cases, police and prosecutors can make great use of AI in investigations, e.g. in forensics, DNA samples, reconstruction, identification, etc. But it can also be of great help in the detection of crimes committed in cyberspace. In criminal or civil court proceedings, AI can also play a major role in the evaluation of evidence and proof. For example, a photo or video or audio recording could be immediately revealed as genuine or fake. Likewise, the authenticity or falsification of a document could be determined much more quickly and cheaply than with current procedure (expert witnesses). Neither the current Hungarian Civil Procedure Act nor the Criminal Procedure Act allows the use of artificial intelligence in the evidentiary process. However, this should be changed. To use this technology in court proceedings would be very useful. The procedures would be faster, simpler, and therefore cheaper. Artificial intelligence could also replace much of the work of expert witnesses. Its introduction into judicial procedures would certainly be justified, but with due respect for human rights, the right to a fair trial and other democratic and rule of law guarantees.

Keywords: artificial intelligence, judiciary, Hungarian, court practice

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Authors: S. Vlasyan

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The article deals with the implementation of the right to self-determination of peoples on the example of Nagorno-Karabakh Republic. The problem of correlation of two fundamental principles of international law i. e. territorial integrity and the right to self-determination of peoples is considered to be one of the vital issues in the field of international law for several decades. So, in this article, the author analyzes the decision of the Supreme Court of Canada regarding specific issues of secession of Quebec from Canada, as well as the decision of the International Court of Justice in the case concerning East Timor (Portugal v. Australia), and in the case of Western Sahara. The author formulates legal conditions of Nagorno-Karabakh secession.

Keywords: right of self-determination, territorial integrity, the principles of International Law, Nagorno-Karabakh Republic

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Authors: Tashwill Esterhuizen

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Throughout Africa, several countries continue to have laws which criminalise same-sex sexual activities, which increases the vulnerability of the LGBT community to stigma, discrimination, and persecution. These criminal provisions often form the basis upon which states deny LGBT activists the right to freely associate with other like-minded individuals and form organizations that protect their interests and advocate for the rights and aspirations of the LGBT community. Over the past year, however, there has been significant progress in the advancement of universal, fundamental rights of LGBT persons throughout Africa. In many instances, these advancements came about through the bravery of activists who have publically insisted (in environments where same-sex sexual practices are criminalised) that their rights should be respected. Where meaningful engagement with the State was fruitless, activists took their plight to the judiciary and have successfully sought to uphold the fundamental rights of LGBT persons, paving the way for a more inclusive and tolerant society. Litigation Progress: Botswana is a prime example. For several years, the State denied a group of LGBT activists their right to freely associate and form their organisation Lesbians, Gays, and Bisexuals of Botswana (LEGABIBO), which aimed to promote the interests of the LGBT community in Botswana. In March 2016, the Botswana Court of Appeal found that the government’s refusal to register LEGABIBO violated the activists’ right to associate freely. The Court held that the right freedom of association applies to all persons regardless of their sexual orientation or gender identity. It does not matter that the views of the organisation are unpopular or unacceptable amongst the majority. In particular, the Court rejected the government of Botswana’s contention that registering LEGABIBO would disturb public peace and is contrary to public morality. Quite remarkably, the Court of Appeal recognised that while LGBT individuals are a minority group within the country, they are nonetheless persons entitled to constitutional protections of their dignity, regardless of whether they are unacceptable to others on religious or any other grounds. Furthermore, the Court held that human rights and fundamental freedoms are granted to all, including criminals or social outcasts because the denial of an individual’s humanity is the denial of their human dignity. This is crucial observation by the Court of Appeal, as once it is accepted that human rights apply to all human beings, then it becomes much easier for vulnerable groups to assert their own rights. Conclusion: The Botswana Court of Appeal decision, therefore, represents significant progress in the promotion of the rights of lesbian, gay, bisexual and transgender persons. The judgment has broader implications for many other countries which do not provide recognition of sexual minorities. It highlights the State’s duty to uphold basic rights and to ensure dignity, tolerance, and acceptance for marginalised persons.

Keywords: acceptance, freedom of association, freedom of expression, fundamental rights and freedoms, gender identity, human rights are universal, inclusive, inherent human dignity, progress, sexual orientation, tolerance

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Authors: Monika Florczak-Wator

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The model of positive obligations of the state concerning the protection of the rights of an individual was created within the jurisdiction of the German Federal Constitutional Court in the 1970s. That model assumes that the state should protect an individual against infringement of their fundamental rights by another individual. It is based on the idea concerning the modification of the function and duties of the state towards an individual and society. Initially the state was perceived as the main infringer of the fundamental rights of an individual formulating the individual’s obligations of negative nature (obligation of noninterference), however, at present the state is perceived as a guarantor and protector of the fundamental rights of an individual of positive nature (obligation of protection). Examination of the chosen judicial decisions of that court will enable us to determine what the obligation of protection is specifically about, when it is updated and whether it is accompanied by claims of an individual requesting the state to take actions protecting their fundamental rights against infringement by the private entities. The comparative perspective for the German model of positive obligations of the state will be an analogous model present in the jurisdiction of the European Court of Human Rights. It is justified to include it in the research as the Convention, similarly to the constitution, focuses on the protection of an individual against the infringement of their rights by the state and both models have been developed within the jurisdiction for several dozens of years. Analysis of the provisions of the Constitution of the Republic of Poland as well as judgements of the Polish Constitutional Tribunal will allow for the presentation of the application the model of the protective duties of the state in Poland.

Keywords: human rights, horizontal relationships, constitution, state protection

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Authors: Brian Carey Sims

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The current study examines psychological factors relevant to child custody litigation among African American fathers. Thirty-seven fathers engaged in various stages of custody litigation involving their children were surveyed about their perceptions of racial stereotypes, parental motivations, and racialized dynamics of the court/ legal process. Data were analyzed using a Critical Race Theory model designed to statistically isolate fathers’ perceptions of the existence and maintenance of structural racism through the legal process. Results indicate significant correlations between fathers’ psychological measures and structural outcomes of their cases. Findings are discussed in terms of ethical implications for family court judicial systems and attorney practice.

Keywords: ethics, family, legal psychology, policy, race

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Authors: Timothy T. Hsieh

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Current patent venue transfer laws under 28 U.S.C. § 1404(a) e.g., the Gilbert factors from Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) are too malleable in that they often lead to frequent mandamus orders from the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) overturning district court rulings on venue transfer motions. Thus, this paper proposes a more robust two-step burden-shifting framework that replaces the eight Gilbert factors. Moreover, a brief history of venue transfer patterns in the seven most active federal patent district courts is covered, with special focus devoted to the venue transfer orders from Judge Alan D Albright of the U.S. District Court for the Western District of Texas. A comprehensive data summary of 45 case sets where the Federal Circuit ruled on writs of mandamus involving Judge Albright’s transfer orders is subsequently provided, with coverage summaries of certain cases including four precedential ones from the Federal Circuit. This proposed two-step burden shifting framework is then applied to these venue transfer cases, as well as Federal Circuit mandamus orders ruling on those decisions. Finally, alternative approaches to remedying the frequent reversals for venue transfer will be discussed, including potential legislative solutions, adjustments to common law framework approaches to venue transfer, deference to the inherent powers of Article III U.S. District Judge, and a unified federal patent district court. Overall, this paper seeks to offer a more robust and consistent three-step burden-shifting framework for venue transfer and for the Federal Circuit to follow in administering mandamus orders, which might change somewhat in light of Western District of Texas Chief Judge Orlando Garcia’s order on redistributing Judge Albright’s patent cases.

Keywords: Patent law, venue, judge Alan Albright, minimum contacts, western district of Texas

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Authors: Badran Leena, Rimmerman Arie

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Arab society in Israel is undergoing modernization and secularization. However, its approach to disability and mental illness is still dominated by religious and traditional stereotypes, as well as folk remedies and community practices. The present study examines differences in Muslim social workers' and Imams' recommendations in marriage/divorce and child custody cases of persons with intellectual disabilities (ID) or mental illness. The study has two goals: (1) To examine differences in recommendations between Imams and Muslim social workers; (2) To explore variables related to their differential recommendations as observed in their responses to vignettes—a quantitative study using vignettes resembling existing Muslim religious (Sharia) court cases. Muslim social workers (138) and Imams (48) completed a background questionnaire, a religiosity questionnaire, and a questionnaire that included 25 vignettes constructed by the researcher based on court rulings adapted for the study. Muslim social workers tended to consider the religious recommendation when the family of a person with ID or mental illness was portrayed in the vignette as religious. The same applied to Imams, albeit to a greater extent. The findings call for raising awareness among social workers and academics regarding the importance of religion and tradition in formulating professional recommendations.

Keywords: child custody, intellectual and developmental disability, marriage/divorce, mental illness, sharia court, social workers

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Authors: Tamir Michal

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The subject of Bedouin dispersion has accompanied the State of Israel from the day of its establishment. From a legal point of view, this subject has offered a launchpad for creative judicial decisions. Thus, for example, the first court decision in Israel to recognize affirmative action (Avitan), dealt with a petition submitted by a Jew appealing the refusal of the State to recognize the Petitioner’s entitlement to the long-term lease of a plot designated for Bedouins. The Supreme Court dismissed the petition, holding that there existed a public interest in assisting Bedouin to establish permanent urban settlements, an interest which justifies giving them preference by selling them plots at subsidized prices. In another case (The Forum for Coexistence in the Negev) the Supreme Court extended equitable relief for the purpose of constructing a bridge, even though the construction infringed the Law, in order to allow the children of dispersed Bedouin to reach school. Against this background, the recent verdict, delivered during the Protective Edge military campaign, which dismissed a petition aimed at forcing the State to spread out Protective Structures in Bedouin villages in the Negev against the risk of being hit from missiles launched from Gaza (Abu Afash) is disappointing. Even if, in arguendo, no selective discrimination was involved in the State’s decision not to provide such protection, the decision, and its affirmation by the Court, is problematic when examined through the prism of the Theory of Recognition. The article analyses the issue by tools of theory of Recognition, according to which people develop their identities through mutual relations of recognition in different fields. In the social context, the path to recognition is cognitive respect, which is provided by means of legal rights. By seeing other participants in Society as bearers of rights and obligations, the individual develops an understanding of his legal condition as reflected in the attitude to others. Consequently, even if the Court’s decision may be justified on strict legal grounds, the fact that Jewish settlements were protected during the military operation, whereas Bedouin villages were not, is a setback in the struggle to make the Bedouin citizens with equal rights in Israeli society. As the Court held, ‘Beyond their protective function, the Migunit [Protective Structures] may make a moral and psychological contribution that should not be undervalued’. This contribution is one that the Bedouin did not receive in the Abu Afash verdict. The basic thesis is that the Court’s verdict analyzed above clearly demonstrates that the reliance on classical liberal instruments (e.g., equality) cannot secure full appreciation of all aspects of Bedouin life, and hence it can in fact prejudice them. Therefore, elements of the recognition theory should be added, in order to find the channel for cognitive dignity, thereby advancing the Bedouins’ ability to perceive themselves as equal human beings in the Israeli society.

Keywords: bedouin dispersion, cognitive respect, recognition theory, sustainable development

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Authors: Muhammad Fatahillah Akbar

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Criminal Procedural Law is established to protect the society from the abuse of authority. To achieve that purpose, the criminal procedural law shall be established in accordance with the laws of human right and the protection of the society. One of the mechanisms to protect human rights and to ensure the compliance of authorities in criminal procedural law is pre-trial mechanism. In many countries, there are various mechanisms of pre-trial. In the recent cases in Indonesia, pre-trial has been an interesting issue. The issue is also addressed by the Constitutional Court Decision Number 21/PUU-XII/2014 which enhance the competence of pre-trial which includes the suspect determination and the legality of seizure and search. Before that decision, some pre-trial decisions have made landmark decision by enhancing the competence of pre-trial, such as the suspect determination case in Budi Gunawan Case and legality of the investigation in Hadi Purnomo Case. These pre-trial cases occurred because the society needs protection even though it is not provided by written legislations, in this matter, The Indonesian Criminal Procedural Code (KUHAP). For instance, a person can be a suspect for unlimited time because the Criminal Procedural Code does not regulate the limit of investigation, so the suspect enactment shall be able to be challenged to protect human rights. Before the Constitutional Court Decision Suspect Determination cannot be challenged so that the society is not fully protected. The Constitutional Court Decision has provided more protections. Nowadays, investigators shall be more careful in conducting the investigation. However, those decisions, including the Constitutional Court Decision are not sufficient for society to be protected by abuse of authority. For example, on 7 March 2017, a single judge, in a Pre-Trial, at the Surabaya District Court, decided that the investigation was unlawful and shall be terminated. This is not regulated according to the Code and also any decisions in pre-trial. It can be seen that the reform of pre-trial is necessary. Hence, this paper aims to examine how pre-trial shall be developed in the future to provide wide access for society to have social justice in criminal justice system. The question will be answered by normative, historical, and comparative approaches. Firstly, the paper will examine the history of pre-trial in Indonesia and also landmark decisions on pre-trial. Then, the lessons learned from other countries regarding to the pre-trial mechanism will be elaborated to show how pre-trial shall be developed and what the competences of a pre-trial are. The focus of all discussions shall be on how the society is protected and provided access to legally complain to the authority. At the end of the paper, the recommendation to reform the pre-trial mechanism will be suggested.

Keywords: pre-trial, criminal procedural law, society

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Authors: Charles A. Khamala

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In 2003, constrained by an absent “rule of law culture” and negative economic growth, the new Kenyan government chose to pursue incremental judicial reforms rather than comprehensive constitutional reforms. President Mwai Kibaki’s first administration’s judicial reform strategy was two pronged. First, to implement unprecedented “radical surgery,” he appointed a new Chief Justice who instrumentally recommended that half the purportedly-corrupt judiciary should be removed by Presidential tribunals of inquiry. Second, the replacement High Court judges, initially, instrumentally-endorsed the “radical surgery’s” administrative decisions removing their corrupt predecessors. Meanwhile, retention of the welfare-reducing Constitution perpetuated declining public confidence in judicial institutions culminating in refusal by the dissatisfied opposition party to petition the disputed 2007 presidential election results, alleging biased and corrupt courts. Fatefully, widespread post-election violence ensued. Consequently, the international community prompted the second Kibaki administration to concede to a new Constitution. Suddenly, the High Court then adopted a non-instrumental interpretation to reject the 2003 “radical surgery.” This paper therefore critically analyzes whether the Kenyan court’s inconsistent interpretations–pertaining to the constitutionality of the 2003 “radical surgery” removing corruption from Kenya’s courts–was predicated on political expediency or human rights principles. If justice “must also seen to be done,” then pursuit of the CJ’s, Judicial Service Commission’s and president’s political or economic interests must be limited by respect for the suspected judges and magistrates’ due process rights. The separation of powers doctrine demands that the dismissed judges should have a right of appeal which entails impartial review by a special independent oversight mechanism. Instead, ignoring fundamental rights, Kenya’s new Supreme Court’s interpretation of another round of vetting under the new 2010 Constitution, ousts the High Court’s judicial review jurisdiction altogether, since removal of judicial corruption is “a constitutional imperative, akin to a national duty upon every judicial officer to pave way for judicial realignment and reformulation.”

Keywords: administrative decisions, corruption, fair hearing, judicial review, (non) instrumental

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Authors: Anita Afriana, Efa Laela Fakhriah

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The law of civil procedure which is currently in effect in Indonesia is still referring to the rules applicable at the time of the Dutch East Indies, that is Het Herziene Indonesisch Reglement (HIR) and Reglement Tot Regeling Van Het Rechtswezen In De gewesten Buiten Java En Madura (RBg). With the fact that the enactment of this has been very long, there are some things that are no longer suitable with the circumstances and needs of the community in seeking justice today. Therefore, a new regulation on the law of civil procedure is required and the discussions of the draft are currently being carried out. The fast examination of dispute in civil procedure is required to accelerate the growth of Indonesia’s economy by accelerating the dispute resolution method (time efficiency). With the provision of the quick examination on commercial disputes mentioned above, it is expected to benefit the community in order to obtain a tool of dispute resolution efficiently and effectively, so as making justice fast and inexpensive, especially for the resolution of commercial disputes.

Keywords: commercial dispute, civil law procedure, court, Indonesia

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Authors: Hitakshi Mahendru, Advait Tambe, Simran Chandok, Niharika Sanadhya

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After the Second World War had come to an end, the Founding Fathers of the United Nations recognized a need for a supreme peacekeeping mechanism to act as a mediator between nations and moderate disputes that might blow up, if left unchecked. It has been more than seven decades since the establishment of the International Court of Justice (ICJ). When it was created, there were certain aim and objectives that the ICJ was intended to achieve. However, in today’s world, with change in political dynamics and international relations between countries, the ICJ has not succeeded in achieving several of these objectives. The ICJ is the only body in the international scenario that has the authority to regulate disputes between countries. However, in recent times, with countries like China disregarding the importance of the ICJ, there is no hope for the ICJ to command respect from other nations, thereby sending ICJ on a slow, yet steady path towards redundancy. The authority of the judgements given by the International Court of Justice, which is one of the main pillars of the United Nations, is questionable due to the forthcoming reactions from various countries on public platforms. The ICJ’s principal role within the United Nations framework is to settle peacefully international/bilateral disputes between the states that come under its jurisdiction and in accordance with the principles laid down in international law. By shedding light on the public backlash from the Chinese Government to the recent South China Sea judgement, we see the decreasing relevance of the ICJ in the contemporary world scenario. Philippines and China have wrangled over territory in the South China Sea for centuries but after the recent judgement the tension has reached an all-time high with China threatening to prosecute anybody as trespassers while continuing to militarise the disputed area. This paper will deal with the South China Sea judgement and the manner in which it has been received by the Chinese Government. Also, it will look into the consequences of counter-back. The authors will also look into the Marshall Island matter and propose a model judgement, in accordance with the principles of international law that would be the most suited for the given situation. Also, the authors will propose amendments in the working of the Security Council to ensure that the Marshal Island judgement is passed and accepted by the countries without any contempt.

Keywords: International Court of Justice, international law, Marshall Islands, South China Sea, United Nations Charter

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Authors: Sandra Costa-Santos, Nadia Bertolino, Stephen Hicks, Vanessa May, Camilla Lewis

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This paper aims to elaborate the architectural theory on place-making that supported Claremont Court housing scheme (Edinburgh, United Kingdom). Claremont Court (1959-62) is a large post-war mixed development housing scheme designed by Basil Spence, which included ‘place-making’ as one of its founding principles. Although some stylistic readings of the housing scheme have been published, the theory on place-making that allegedly ruled the design has yet to be clarified. The architecture allows us to mark or make a place within space in order to dwell. Under the framework of contemporary philosophical theories of place, this paper aims to explore the relationship between place and dwelling through a cross-disciplinary reading of Claremont Court, with a view to develop an architectural theory on place-making. Since dwelling represents the way we are immersed in our world in an existential manner, this theme is not just relevant for architecture but also for philosophy and sociology. The research in this work is interpretive-historic in nature. It examines documentary evidence of the original architectural design, together with relevant literature in sociology, history, and architecture, through the lens of theories of place. First, the paper explores how the dwelling types originally included in Claremont Court supported ideas of dwelling or meanings of home. Then, it traces shared space and social ties in order to study the symbolic boundaries that allow the creation of a collective identity or sense of belonging. Finally, the relation between the housing scheme and the supporting theory is identified. The findings of this research reveal Scottish architect Basil Spence’s exploration of the meaning of home, as he changed his approach to the mass housing while acting as President of the Royal Incorporation of British Architects (1958-60). When the British Government was engaged in various ambitious building programmes, he sought to drive architecture to a wider socio-political debate as president of the RIBA, hence moving towards a more ambitious and innovative socio-architectural approach. Rather than trying to address the ‘genius loci’ with an architectural proposition, as has been stated, the research shows that the place-making theory behind the housing scheme was supported by notions of community-based on shared space and dispositions. The design of the housing scheme was steered by a desire to foster social relations and collective identities, rather than by the idea of keeping the spirit of the place. This research is part of a cross-disciplinary project funded by the Arts and Humanities Research Council. The findings present Claremont Court as a signifier of Basil Spence’s attempt to address the post-war political debate on housing in United Kingdom. They highlight the architect’s theoretical agenda and challenge current purely stylistic readings of Claremont Court as they fail to acknowledge its social relevance.

Keywords: architectural theory, dwelling, place-making, post-war housing

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Authors: Stacie Nelson Colling, Adele Cummings

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The United States Supreme Court recently announced that it is unconstitutional to sentence a child to life without parole for non-homicide offenses, and that each child so situated must be afforded a meaningful opportunity for release from prison in his lifetime. The Court also declared that it is unconstitutional to impose a mandatory sentence of life without parole on a child for homicide offenses. Across the United States, attorneys and advocates continue to litigate issues surrounding the implementation of these legal principles. Some states have held that any sentence to a finite term of years, no matter how long, is not the same as ‘life’ and therefore does not violate the constitution. Other states have held that a sentence to a term of years that is less than the expected life of that particular child is not unconstitutional. In Colorado, the courts have routinely looked to life expectancy estimates from governmental organizations to determine how long a particular child is expected to live. They then compare that the date that the child is expected to be eligible for parole, and if the child is expected to still be living when he is eligible for parole, the sentence is deemed constitutional. This paper argues that it is inappropriate, reckless, unconstitutional and not scientifically sound to use such estimates in determining whether a child will have a meaningful opportunity for release from prison and life outside of prison before he dies. This paper argues that the opportunity for release must mean more than a probability that a child will be released before his death, and that it must include an opportunity for a meaningful life outside of prison (not just the opportunity to be released and then die on the outside). The paper further argues that life expectancy estimates cannot guide a court or a legislature in determining whether a sentence is or is not constitutional.

Keywords: life without parole, life expectancy, juvenile sentencing, meaningful opportunity for release from prison

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Authors: Alan Berman, Mark Brady

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The phenomenon of homophobia and transphobia in the United States detrimentally impacts the health, wellbeing, and dignity of school students who identify with the LGBTQ+ community. These negative impacts also compromise the participation of LGBTQ+ individuals in the wider life of educational domains and endanger the potential economic, social and cultural contribution this community can make to American society. The recent 6:3 majority decision of the US Supreme Court in Dobbs v Jackson Women’s Health Organization expressly overruled the 1973 decision in Roe v Wade and the 1992 Planned Parenthood v Casey decision. This study will canvass the bases upon which the court in Dobbs overruled longstanding precedent established in Roe and Casey. It will examine the potential implications for the LGBTQ community of the result in Dobbs. The potential far-reaching consequences of this case are foreshadowed in a concurring opinion by Justice Clarence Thomas, suggesting the Court should revisit all substantive due process cases. This includes notably the Lawrence v Texas case (invalidating sodomy laws criminalizing same-sex relations) and the Obergefellcase (upholding same-sex marriage). Finally, the study will examine the likely impact of the uncertainty brought about by the decision in Doddsfor LGBTQ students in US educational institutions. The actions of several states post-Dobbs, reflects and exacerbates the problems facing LGBTQ+ students and uncovers and highlights societal homophobia and transphobia.

Keywords: human rights, LGBT rights, right to personal dignity and autonomy, substantive due process rights

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Authors: Andhika Danesjvara

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Governance of the Republic of Indonesia should be based on the principle of sovereignty and the rule of law. Based on these principles, all forms of decisions and/or actions of government administration should be based on the sovereignty of the people and the law. Decisions and/or actions for citizens should be based on the provisions of the legislation and the general principles of good governance. Control of the decisions and/or actions is a part of administrative review and also judicial control. The control is part of the administrative justice system, which is intended for people affected by the decisions or administrative actions. This control is the duty and authority of the government or independent administrative court. Therefore, systems and procedures for the implementation of the task of governance and development must be regulated by law. Systems and procedures of governance is a subject studied in administrative law, therefore, the research also includes a review of the principles of law in administrative law. The administrative law procedure is important for the government to make decisions, the question is whether the procedures are part of the justice system itself.

Keywords: administrative court, administrative justice, administrative law, administrative procedures

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Authors: Vanda Božić, Željko Nikač

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The wars and armed conflicts have often resulted in violations of international humanitarian law, and often commit the most serious international crimes such as war crimes, crimes against humanity, aggression and genocide. However, only in the XX century the rule was articulated idea of establishing a body of international criminal justice in order to prosecute these crimes and their perpetrators. The first steps in this field have been made by establishing the International military tribunals for war crimes at Nuremberg and Tokyo, and the formation of ad hoc tribunals for the former Yugoslavia and Rwanda. In the end, The International Criminal Court was established in Rome in 1998 with the aim of justice and in order to give satisfaction the victims of crimes and their families. The aim of the paper was to provide a historical and comparative analysis of the institutions of international criminal justice based on which these institutions de lege lata fulfilled the goals of individual criminal responsibility and justice. Furthermore, the authors suggest de lege ferenda that the Permanent International Criminal Tribunal, in addition to the prospective case, also takes over the current ICTY and ICTR cases.

Keywords: international crimes, international criminal justice, prosecution of crimes, ad hoc tribunal, the international criminal court

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Authors: David Abrahams

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In October 2016 South Africa deposited its ‘instrument of withdrawal’ from the Rome Statute of the International Criminal Court, with the Secretary-General of the United Nations. The Rome Statute is the founding document of the treaty-based International Criminal Court (ICC). The ICC has jurisdiction to hear cases where crimes against humanity, war crimes and genocide have been committed, on the basis of individual criminal responsibility. It is therefore not surprising that one of the ICCs mandates is to ensure that the sufferings, due to gross human rights violations towards the civilian population is, in principle, brought to an end by punishing those individuals responsible, thus providing justice to the victims. The ICC is unable to effectively fulfill its mandate and thus depends, in part on the willingness of states to assist the Court in its functions. This requires states to ratify the Statute and to domesticate its provisions, depending on whether it is a monist or dualist state. South Africa ratified the Statute in November 2000, and domesticated the Statute in 2002 by virtue of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002. South Africa thus remains under an obligation to cooperate with the ICC until the final date of withdrawal, which is October 2017. An AU Summit was hosted by South Africa during June 2015. Omar Al-Bashir, whom the prosecutor of the ICC has indicted on two separate occasions, was invited to the summit. South Africa made an agreement with the AU that it will honour its obligations in terms of its Diplomatic and Immunities Privileges Act of 2001, by granting immunity to all heads of state, including that of Sudan. This decision by South Africa has raised a plethora of questions regarding the status and hierarchy of international laws versus regional laws versus domestic laws. In particular, this paper explores whether a state’s international law treaty obligations may be suspended in favour of, firstly, regional peace (thus safeguarding the security of the civilian population against further atrocities and other gross violations of human rights), and secondly, head of state immunity. This paper also reflects on the effectiveness of the trias politca in South Africa in relation the manner in which South African courts have confirmed South Africa’s failure in fulfilling its obligations in terms of the Rome Statute. A secondary question which will also be explored, is whether the Rome Statute is currently an effective tool in dealing with gross violations of human rights, particularly in a regional African context, given the desire by a number of African states currently party to the Statute, to engage in a mass exodus from the Statute. Finally, the paper concludes with a proposal that there can be no justice for victims of gross human rights violations unless states are serious in playing an instrumental role in bringing an end to impunity in Africa, and that withdrawing from the ICC without an alternative, effective system in place, will simply perpetuate impunity.

Keywords: African Union, diplomatic immunity, impunity, international criminal court, South Africa

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Authors: Arlinda Memetaj

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Building up of a well-functioning administrative justice system is one of the key prerequisites for ensuring the existence of an accountable and efficient public administration in Kosovo as well. To this aim, the country has already established an almost comprehensive legislative and institutional frameworks. The latter derives from (among others) the Kosovo`s Stabilisation and Association Agreement with the EU of 2016. A series of efforts are being presently still undertaken by all relevant domestic and international stakeholders being active in both the Kosovo`s public administration reform and the country` s system of a local self-government. Both systems are thus under a constant state of reform. Despite the aforesaid, there is still a series of shortcomings in the country in above context. There is a lot of backlog of administrative cases in the Prishtina Administrative court; there is a public lack in judiciary; the public administration is organized in a fragmented way; the administrative laws are still not properly implemented at local level; the municipalities` legislative and executive branches are not sufficiently transparent for the ordinary citizens ... Against the above short background, the full paper firstly outlines the legislative and institutional framework of the Kosovo's systems of an administrative justice and local self-government (on the basis of the fact that public administration and local government are not separate fields). It then illustrates the key specific shortcomings in those fields, as seen from the perspective of the citizens' right to good administration. It finally claims that the current status quo situation in the country may be resolved (among others) by granting Kosovo a status of full member state of the Council of Europe or at least granting it with a temporary status of a contracting party of (among others) the European Human Rights Convention. The later would enable all Kosovo citizens (regardless their ethnic or other origin whose human rights are violated by the Kosovo`s relative administrative authorities including the administrative courts) to bring their case/s before the respective well-known European Strasbourg-based Human Rights Court. This would consequently put the State under permanent and full monitoring process, with a view to obliging the country to properly implement the European Court`s decisions (as adopted by this court in those cases). This would be a benefit first of all for the very Kosovo`s ordinary citizens regardless their ethnic or other background. It would provide for a particular positive input in the ongoing efforts being undertaken by Kosovo and Serbia states within the EU-facilitated Dialogue, with a view to building up of an integral administrative justice system at central and local level in the whole Kosovo` s territory. The main method used in this paper is the descriptive, analytical and comparative one.

Keywords: administrative courts, administrative justice, administrative procedure, benefit, European Human Rights Court, human rights, monitoring, reform.

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Authors: Inga Žukovaitė

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This work aims to present postdoc research on remote criminal proceedings in court in order to streamline the proceedings and, at the same time, ensure the effective participation of the parties in criminal proceedings and the court's obligation to administer substantive and procedural justice. This study tests the hypothesis that remote criminal proceedings do not in themselves violate the fundamental principles of criminal procedure; however, their implementation must ensure the right of the parties to effective legal remedies and a fair trial and, only then, must address the issues of procedural economy, speed and flexibility/functionality of the application of technologies. In order to ensure that changes in the regulation of criminal proceedings are in line with fair trial standards, this research will provide answers to the questions of what conditions -first of all, legal and only then organisational- are required for remote criminal proceedings to ensure respect for the parties and enable their effective participation in public proceedings, to create conditions for quality legal defence and its accessibility, to give a correct impression to the party that they are heard and that the court is impartial and fair. It also seeks to present the results of empirical research in the courts of Lithuania that was made by using the interview method. The research will serve as a basis for developing a theoretical model for remote criminal proceedings in the EU to ensure a balance between the intention to have innovative, cost-effective, and flexible criminal proceedings and the positive obligation of the State to ensure the rights of participants in proceedings to just and fair criminal proceedings. Moreover, developments in criminal proceedings also keep changing the image of the court itself; therefore, in the paper will create preconditions for future research on the impact of remote criminal proceedings on the trust in courts. The study aims at laying down the fundamentals for theoretical models of a remote hearing in criminal proceedings and at making recommendations for the safeguarding of human rights, in particular the rights of the accused, in such proceedings. The following criteria are relevant for the remote form of criminal proceedings: the purpose of judicial instance, the legal position of participants in proceedings, their vulnerability, and the nature of required legal protection. The content of the study consists of: 1. Identification of the factual and legal prerequisites for a decision to organise the entire criminal proceedings by remote means or to carry out one or several procedural actions by remote means 2. After analysing the legal regulation and practice concerning the application of the elements of remote criminal proceedings, distinguish the main legal safeguards for protection of the rights of the accused to ensure: (a) the right of effective participation in a court hearing; (b) the right of confidential consultation with the defence counsel; (c) the right of participation in the examination of evidence, in particular material evidence, as well as the right to question witnesses; and (d) the right to a public trial.

Keywords: remote criminal proceedings, fair trial, right to defence, technology progress

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Authors: Veljko Turanjanin

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In this article, an author deals with the issue of life imprisonment. Life imprisonment represents a new sentence in the Serbian legislature, in addition to the standard one, imprisonment. The author elaborated on judgments of the European Court of Human Rights (ECtHR), imposing the possibility of parole for the person sentenced to life imprisonment, emphasizing rehabilitation as the primary goal of penalties. According to the ECtHR, life imprisonment without parole is not permitted. The right to rehabilitation is very strictly set in the ECtHR jurisprudence. Life imprisonment represents a new sentence in the Serbian legislature, in addition to the standard one, imprisonment. The legislator provided the possibility of parole for most criminal offenses after 27 years in prison, while for some of them, a possibility of parole is explicitly prohibited. The author points out the shortcomings of the legal solution that exists in Serbia, which flagrantly threatens to violate the human rights of the offenders.

Keywords: European Court of Human Rights, life imprisonment, parole, rehabilitation

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Authors: Sevgi Karaca

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Since December 6, 2018, mediation has become mandatory for commercial disputes under the Turkish Commercial Code. Mandatory mediation became one of the “causes of action”, and being compulsory means starting the mediation process before going to court. As it contemplates looking at “the causes of the action”, the terminology may lead to misinterpretation of the core of the phrases. However, the terms pertain to a prerequisite for starting the lawsuit. The court will examine failure to comply with such requirements, and the case will be dismissed without further action. Türkiye’s use of obligatory mediation is highly unusual. It is neither judge-led nor judge-assisted mediation but rather a mediation conducted outside of court with the participation of a third party (mediators). What distinguishes it is the incorporation of obligatory mediation into the causes of actions listed in the Code of Civil Procedure. Being one of the causes of action in a legal case implies that the absence of any of them may result in the procedural dismissal of the case without any further action. The case must be presented to the mediator first, and if the parties are unable to reach an agreement, they must deliver the results of the mediation session. Other than submitting the minutes, parties are ineligible to file a lawsuit. However, despite a lengthy history of use in England and Wales, there are considerable reservations about making mediation mandatory. The Civil Procedure Code does not explicitly mention making mediation mandatory. For the time being, there is no Mediation Code, and case law limits the growth of obligatory mediation. Some renowned judges voiced their desire to re-evaluate the notion of required mediation, prompting the Civil Justice Council to release a study in 2021 on the significance of amending case law and the high value of mandatory mediation. By contrasting the approaches to mandatory mediation in England and Wales, the study will investigate the method of controlled mandatory mediation and its effects on the success of mediation in Türkiye.

Keywords: alternative dispute resolution, case law, cause of action, litigation process, mandatory mediation

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Authors: Naeem Ullah Khan, Kalsoom Khan

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No state can be progressive and prosperous in which a large number of people is deprived of their basic economic rights and freedoms. In the contemporary world of globalization, the right to development has gained a momentum force in the domain of International Development Law (IDL) and has integrated into the National Legal System (NLS) of the major developed states. The international experts on human rights argued that the right to development (RTD) is called a third-generation human right which tends to enhance the welfare and prosperity of individuals, and thus, it is a right to a process whose outcomes are human rights despite the controversy on the implications of RTD. In the Pakistan legal system, the RTD has not been expressly stated in the constitution of the Islamic Republic of Pakistan, 1973. However, there are some implied constitutional provisions which reflect the concept of RTD. The jurisprudence on RTD is still an evolving paradigm in the contextual perspective of Pakistan, and the superior court of diverse jurisdiction acts as a catalyst regarding the protection and enforcement of RTD in the interest of the public at large. However, the case law explores the positive inclination of the courts in Pakistan on RTD be incorporated as an express provision in the chapters of fundamental rights; in this scenario, the high court’s of Pakistan under Article 199 and the supreme court of Pakistan under Article 184(3) have exercised jurisdiction on the enforcement of RTD. This paper inter-alia examines the national dimensions of RTD from the standpoint of state practice in Pakistan and it analyzes the experience of judiciary in the protection and enforcement of RTD. Moreover, the paper highlights the social and cultural challenges to Pakistan in the implementation of RTD and possible solution to improve the conditions of human rights in Pakistan. This paper will also highlight the steps taken by Pakistan regarding the awareness, incorporation, and propagation of RTD at the national level.

Keywords: globalization, Pakistan, RTD, third-generation right

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Authors: Natasha Venter

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Recent publications, including Truth to Power by André de Ruyter, Gangster State by Pieter-Louis Myburgh, and Enemy of the People by Pieter du Toit and Adriaan Basson, expose alleged corrupt acts by high-ranking members of State, as well as those in charge of State-owned entities. These literary contributions have gripped the attention of a nation plagued by corruption scandals and the alleged misappropriation of state funds on an almost daily basis. The books, however, leave the populace with the burning question of why “nothing happens” to these individuals who are so directly implicated in the literature. The process followed by the State in the largest successful prosecution of a corrupt state official, Jackie Selebi, sheds some light as to how such high-ranking persons might be brought to book. The Supreme Court of Appeal’s definition of corruption and the interpretation of the facts (as presented by the State prosecutors) by the court is also valuable. Furthermore, some insight into the laws that criminalise corruption in South Africa, as well as applicable international instruments, is necessary. South Africa is ranked as the 70th most corrupt country out of 180 countries by Transparency International’s 2021 Corruption Perceptions Index. This is worrisome as South Africa is a signatory of the United Nations Convention Against Corruption (2004) and, as such, has certain international obligations to fulfil. However, if the political will to prosecute corrupt officials in South Africa exists, there are laws and instruments available to punish these individuals. This would not only vindicate the authors of literature about corruption in the country but also restore the hope of South Africans that, ultimately, crime does not pay.

Keywords: corruption, eskom, state capture, government, literature, united nations, law, legal, Jackie selebi, supreme court of appeal

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Authors: Foluke Abimbola

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There are two separate groups of a recognised body of human rights. These are known as Civil and Political Rights, and Economic and Social Rights. There is however an impression that civil and political rights are enforceable in courts while socio-economic rights are not. Nigeria is an example of one of such countries whose constitution has social, economic and cultural rights’ provisions as well as civil and political rights. However, the socio-economic rights provided in the Nigerian constitution are not justiciable or are unenforceable in a court of law. On the other hand, a comparative examination of the socio-economic right provisions in the South African constitution and judgments of the constitutional court of South Africa reveals that socio-economic rights may be enforceable. This position may ensure the protection of the socio-economic rights of the poor and vulnerable groups. These rights include the rights to food, adequate shelter, health, and education. Moreover, the African Charter on Human and Peoples’ Rights (African Charter) which incorporates similar socio-economic right provisions, has been recognized as a domestic law in Nigeria and its provisions are enforceable by the domestic courts by virtue of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria 2004. It is not only a regional treaty signed and adopted by Nigeria but has been passed into law by the National Assembly and can be enforced like any other local law. This paper will propose that in view of the provisions of the African Charter and mechanisms for implementation as well as other international conventions and national constitutional provisions on human rights, domestic courts may be able to assess state responsibilities in the light of socio-economic rights. Cases decided by South African courts and other jurisdictions will be discussed in order to lend weight to the notion that socio-economic rights can be enforced in jurisdictions such as Nigeria even though the constitution provides otherwise.

Keywords: african charter, constitutional court of south africa, nigerian constitution, socio-economic rights, south african constitution

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Authors: Elisabetta Baldassini

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Responses to atrocities are always unique and context-dependent. They cannot be foretold nor easily prompted. However, the events of the twentieth century had set the scene for the international community to explore new and more robust systems in response to war atrocities, with the ultimate goal being the restoration and maintenance of peace and security. The outlawry of war and the attribution of individual liability for international crimes were two major landmarks that set the roots for the development of international criminal law. From the London Conference (1945) for the establishment of the first international military tribunal in Nuremberg to Rome at the inauguration of the first permanent international criminal court, the development of international criminal law has shaped in itself a fluctuating degree of tensions between justice and maintenance of international peace and security, the cardinal dichotomy of this article. The adoption of judicial measures to achieve peace indeed set justice as an essential feature at the heart of the new international system. Blackhole of this dichotomy is the crime of aggression. Aggression was at first the key component of a wide body of peace projects prosecuted under the charges of crimes against peace. However, the wide array of controversies around aggression mostly related to its definition, determination and the involvement of the Security Council silenced, partly, a degree of efforts and agreements. Notwithstanding the establishment of the International Criminal Court (ICC), jurisdiction over the crime of aggression was suspended until an agreement over the definition and the conditions for the Court’s exercise of jurisdiction was reached. Compromised over the crime was achieved in Kampala in 2010 and the Court’s jurisdiction over the crime of aggression was eventually activated on 17 July 2018. China has steadily supported the advancement of international criminal justice together with the establishment of a permanent international judicial body to prosecute grave crimes and has proactively participated at the various stages of the codification and development of the crime of aggression. However, China has also expressed systematic reservations and setbacks. With the use of primary and secondary sources, including semi-structured interviews, this research aims at analyzing the role that China has played throughout the substantive historical development of the crime of aggression, demonstrating a sharp inclination in the maintenance of international peace and security. Such state behavior seems to reflect national and international political mechanisms that gravitate around a distinct rationale that involves a share of culture and tradition.

Keywords: maintenance of peace and security, cultural expression of justice, crime of aggression, China

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Authors: Yekini Nureni Asafe, Haastrup Victor Adeleye, Ikotun Abiodun Motunrayo, Ojo Olanrewaju

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Web Based Criminal Diary is a web based application whereby data of criminals been convicted by a judge in the court of law in Nigeria are shown to the entire public. Presently, criminal records are kept manually in Nigeria, which means when a person needs to be investigated to know if the person has a criminal record in the country, there is need to pass through different manual processes. With the use of manual record keeping, the criminal records can easily be manipulated by people in charge. The focus of this research work is to design a web-based application system for criminal record in Nigeria, towards elimination of challenges (such as loss of criminal records, in-efficiency in criminal record keeping, data manipulation, and other attendant problems of paper-based record keeping) which surrounds manual processing currently in use. The product of this research work will also help to minimize crime rate in our country since the opportunities and benefits lost as a result of a criminal record create will a lifelong barriers for anyone attempting to overcome a criminal past in our country.

Keywords: court of law, criminal, criminal diary, criminal evidence, Nigeria, web-based

Procedia PDF Downloads 275

Authors: Aleksandra Czubak

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The need to present evidence in civil proceedings is essential for getting the right result. It is for this reason that it is particularly important for the parties to present the most relevant and convincing evidence to the Court. Therefore, parties often try to gain evidence, even when the acquisition of such evidence is in breach of the law. Firstly, there will be discussed how evidence is applied in the Polish civil process and the Polish regulations of the evidence proceedings; with specific reference to evidence of major importance in the developing world. Further, it will be discussed the controversies connected with the admission of illegally gained evidence in civil proceedings. The credibility of the various measures is circumstantial and can only be determined by factors related to the recognized problem. For that reason, it is not the amount of evidence, but the value and relevance of this evidence that should be considered in determining the right result. This paper will also consider whether the end justifies the means? How far should parties go in order to achieve a favorable sentence or to create stronger evidence? Methods of persuasion of the court, as well as the acquisition of evidence, are not always fair and moral. It is on this area of controversy that this essay will focus. This paper concludes by considering the value of evidence and the possibility of using it to achieve a just sentence. Examples are based on Polish law; nevertheless, they encompass ideas common to most civil jurisdictions.

Keywords: civil proceedings, Europe (Poland), evidence, law

Procedia PDF Downloads 215