Search results for: U.S. courts

Authors: Mariam Shah

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The way the human mind interprets and comprehends the world it occupies has long been a topic of discussion amongst philosophers and phenomenologists. This paper will focus predominantly on the ideologies espoused by the phenomenologist Alfred Schutz and will investigate how we attribute meaning to an event through the process of typification, and the production and usage of ‘types' and ‘stereotypes.' This paper will then discuss how subjective ideologies innate within us result in unique and subjective decision outcomes, based on a phenomenologically influenced theoretical framework which will illustrate how we form ‘types’ in order to ‘typecast’ and form judgements of everything and everyone we experience. The framework used will be founded in theory espoused by Alfred Schutz, and will review the different types of knowledge we rely on innately to inform our judgements, the relevance we attribute to the information which we acquire, and how we consciously and unconsciously apply this framework to everyday situations. An assessment will then be made of the potential impact that these subjective meaning structures can present when dispensing justice in criminal courts. This paper will investigate how these subjective meaning structures can influence our consciousness on both a conscious and unconscious level, and how this could potentially result in bias judicial outcomes due to negative ‘types’ or ‘stereotypes.' This paper will ultimately illustrate that we unconsciously and unreflexively use pre-formed types and stereotypes to inform our judgements and give meaning to what we have just experienced.

Keywords: Alfred Schutz, criminal courts, decision making, judicial decision making, phenomenology, Schutzian stereotypes, types, typification

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Authors: Nayer Fardows, Zarash Nayer, Sarah Nayer Jaffar, Daud Nayer

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This paper analyses the issues related to communal properties of minorities in the cantonment area of Pakistan allotted in the mid-eighteenth centuries by the British Government to facilitate soldiers. These properties were old grants on which churches, institutes, hospitals, and residences were built. The ownership of these properties remained with British Government, but after the creation of Pakistan, changes by putting Government of Pakistan as the landlord of the property disturbed the inheritors as they remained as, holder of occupancy. The government of Pakistan issued a policy in 1997 to convert the status of old grant properties to regular lease. However, heavy taxes and high court’s decisions made it difficult to solve the issue. The study was conducted on six old grant properties of Edwardes College Peshawar cantonment situated in Khyber Pakhtunkhwa, Pakistan. The paper is descriptive research with a qualitative approach collecting data through government rules, acts, ordinance and decisions of the high courts. The result leads to three aspects; 1) holder of occupancy status of old grant properties in cantonment is similar as allotment of other properties by the government, 2) imposition of heavy taxes on conversion of property from old grant to regular lease restricted inheritors to further construct or transfer, 3) imposition of higher courts ban on conversion of communal properties contradict government policy of conversion. The paper recommends the Government of Pakistan a solution to maintain the status quo for communal properties that fall within the old grant.

Keywords: British Government, communal properties, cantonment, old grant, institutions

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Authors: Daniel Pinheiro Da Silva Junior, Aline Paes, Daniel De Oliveira, Christiano Lacerda Ghuerren, Marcio Duran

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The Courts of Accounts are institutions responsible for overseeing and point out irregularities of Public Administration expenses. They have a high demand for processes to be analyzed, whose decisions must be grounded on severity laws. Despite the existing large amount of processes, there are several cases reporting similar subjects. Thus, previous decisions on already analyzed processes can be a precedent for current processes that refer to similar topics. Identifying similar topics is an open, yet essential task for identifying similarities between several processes. Since the actual amount of topics is considerably large, it is tedious and error-prone to identify topics using a pure manual approach. This paper presents a tool based on Machine Learning and Natural Language Processing to assists in building a labeled dataset. The tool relies on Topic Modelling with Latent Dirichlet Allocation to find the topics underlying a document followed by Jensen Shannon distance metric to generate a probability of similarity between documents pairs. Furthermore, in a case study with a corpus of decisions of the Rio de Janeiro State Court of Accounts, it was noted that data pre-processing plays an essential role in modeling relevant topics. Also, the combination of topic modeling and a calculated distance metric over document represented among generated topics has been proved useful in helping to construct a labeled base of similar and non-similar document pairs.

Keywords: courts of accounts, data labelling, document similarity, topic modeling

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Authors: Alejandra Cardenas, Ona Flores, Fabiola Gretzinger

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Since the 1990s, legal strategies for the promotion and protection of maternal health rights have achieved significant gains. Successful litigation in courts around the world have shown that these rights can be judicially enforceable. Governments and international organizations have acknowledged the importance of a human rights-based approach to maternal mortality and morbidity, and obstetric violence has been recognized as a human rights issue. Despite the progress made, maternal mortality has worsened in some regions of the world, while progress has stagnated elsewhere, and mistreatment in maternal care is reported almost universally. In this context, issues of maternal autonomy and decision-making during pregnancy, labor, and delivery as a critical barrier to access quality maternal health have been largely overlooked. Indeed, despite the principles of autonomy and informed consent in medical interventions being well-established in international and regional norms, how they are applied particularly during childbirth and pregnancy remains underdeveloped. National and global legal standards and decisions related to maternal health were reviewed and analyzed to determine how maternal autonomy and decision-making during pregnancy, labor, and delivery have been protected (or not) by international and national courts. The results of this legal research and analysis lead to the conclusion that a few standards have been set by courts regarding pregnant people’s rights to make choices during pregnancy and birth; however, most undermine the agency of pregnant people. These decisions recognize obstetric violence and gender-based discrimination, but fail to protect pregnant people’s autonomy, privacy, and their right to informed consent. As current human rights standards stand today, maternal health is the only field in medicine and law in which informed consent can be overridden, and patients can be forced to submit to treatments against their will. Unconsented treatment and loss of agency during pregnancy and childbirth can have long-term physical and mental impacts, reduce satisfaction and trust in health systems, and may deter future health-seeking behaviors. This research proposes a path forward that focuses on the pregnant person as an independent agent, relying on the doctrine of self-determination during pregnancy and childbirth, which includes access to the necessary conditions to enable autonomy and choice throughout pregnancy and childbirth as a critical step towards our approaches to reduce maternal mortality, morbidity, and mistreatment, and realize the promise of access to quality maternal health as a human right.

Keywords: autonomy in childbirth and pregnancy, choice, informed consent, jurisprudential analysis

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Authors: Nahid Ferdousi

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Juvenile justice is a key component of the child rights to keep the best interest and completely different from criminal justice. After independence of Bangladesh in 1971, the Children Act 1974 and the Children Rules 1976 were considered as the basic law for juvenile justice which written before many international instruments on children’s rights came into existence, did not align with the international mandate set by those instruments. These Acts were not really child rights-based and modern concept such as diversion, restorative justice and community-based rehabilitation has not developed accordingly. In this backdrop, government has enacted the new Children Act 2013 and introduced extensive reforms to the juvenile justice system in Bangladesh. The Act has been adopted with the provisions for child-friendly juvenile courts in each district and different kinds of child-oriented practices in a number of settings, such as, child affairs police officer, probation officer, national child welfare board, diversion, alternative preventive measures on the basis of international principles. Prior to the Act, there had been a number of High Court rulings which considered the international standards for juvenile justice. But the recent reforms to juvenile justice system hail a new commitment to the country’s international obligations to its children and a change in the philosophy guiding the treatment of offender children. This is high time to create an effective juvenile justice system for the 21st century in Bangladesh by the proper implementation of the Children Act 2013. Additionally, the new Children Rules should be enacted and juvenile courts along with correctional institutions should be established in each district in Bangladesh. This study assesses the juvenile justice reforms in Bangladesh over the five decades (1974-2014) and focuses on changes that will improve the system as a whole and enable us to better achieve the ends of fair juvenile justice.

Keywords: Juvenile justice reforms, international obligations, child-oriented practices, commitment of the state

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Authors: Soumya Chaturvedi

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Ever since India opened its doors for the world economy to enter, there has not been a single instance of recoil. A consequence of this move by the government of India resulted in India evolving as a consumer-driven market and in order to survive in this era of extreme competition, the corporate houses have employed every possible means to reach out and hit onto the sentiments of the consumers. The most obvious way to ensure a strong perseverance towards the specific product or brand is through celebrity endorsements. In a country like India, whose film industry accounts for the largest sales and output, it is indeed appalling to acknowledge the fact that it lacks an effective mechanism of protection of the commercial exploitation of celebrities’ attributes under the ambit of law. The western half of the globe has very well accepted and recognized the rights of the celebrities to decide upon the quantum of commercial exploitation of their own attributes and earn profit out of the same. However, the eastern half seems to be a little reluctant in accepting and enforcing these views per se. A celebrity has a right to publicity over the traits of his personality which involves voice, autographs, reputation, and style, so on and so forth as it is these attributes that are responsible for huge trade profits concerning the products to which such traits are attributed to. This clearly involves the right of the celebrity to benefit himself by commercially exploiting the same and refraining the unauthorized gain to third parties. The market is making it nearly impossible to proceed further with such weak laws considering the escalating rate of celebrity endorsements in the nation. This paper discusses the lacunae in law per se to identify a right as such by a celebrity over his traits that are potentially under the circle of commercial exploitation and the need of a definite legislation that would ensure a change in the paradigm of the Courts in India. Also, it discusses the only remedy available currently for violation, which is, a suit for passing off by Indian Courts under Trademark and Copyright laws and a comparison of the same with the mechanisms adopted by the legal systems across the globe.

Keywords: celebrity, rights, intellectual property, trademark, copyrights

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Authors: Charlotte Lülf

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Migration flows, resulting from war, climate change or economic crisis cannot be tackled by single states but need to be addressed as a transnational and international responsibility. The traditional architecture surrounding the work of the UNHCR and the 1951 Convention, however, is not equipped to deal with these challenges. Widely excluded from legal protection are people not individually persecuted for the statutory criteria, people that flee from the indiscriminate effects of an armed conflict as well as people fleeing natural disasters. With the lack of explicit legal protection and the political reluctance of nation states worldwide to extend their commitment in new asylum laws, the judiciary must be put in focus: it plays a unique role in interpreting and potentially expanding the application of existing regulations. This paper as part of an ongoing Ph.D. Project deals with the current and partly contradicting approaches to the protection of war- and climate refugees. Changing jurisprudential practice of national and regional courts will be assessed, as will be their dialogue to interpret the international obligations of human rights law, migration laws, and asylum laws in an interacting world. In recent judgments refoulment to an armed conflict as well as countries without adequate disaster relief or health care was argued as violating fundamental human and asylum law rights and therefore prohibited – even for applicants without refugee status: The first step towards access to subsidiary protection could herewith be established. Can one observe similar developments in other parts of the world? This paper will evaluate the role of the judiciary to define, redefine and potentially expand protection for people seeking refuge from armed conflicts and natural disasters.

Keywords: human rights law, asylum-seekers, displacement, migration

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Authors: Renan Caseiro De Almeida, Mateus Mello Garrute

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The world walks to be ever more globalised. This trend promotes an increase on the number of transnational commercial transactions. The main modal for carriage of goods is by sea, and many countries have their economies dependent on the maritime freightage – it could be because they exercise largely this activity or because they follow the tendency of using the maritime logistic widely. Among these ones, Brazil is included. This nation counts with sixteen ports with good capacities, which receive most of the international income by sea. It is estimated that 85 per cent of the total influx of goods in Brazil is by maritime modal, leaving mere 15 per cent for the other ones. This made it necessary to develop maritime law in international and national basis, to create a standard to be applied with the intention to harmonize the transnational carriage of goods by sea. Maritime contracts are very specific and have interesting peculiarities, but in their range, little research has been made on what causes the main divergences when it comes to international contracts: the jurisdiction conflict. Likewise any other international contract, it is common for the parties to set a forum selection clause to choose the forum which will be able to judge the litigations that could rise from a maritime transport contract and, consequently, also which law should be applied to the cases. However, the forum choice in Brazil has always been somewhat polemical – not only in the maritime law sphere - for sometimes national tribunals overlook the parties’ choice and call the competence for themselves. In this sense, it is interesting to mention that the Mexico Convention of 1994 about the law applicable to international contracts did not gain strength in Brazil, nor even reached the Congress to be considered for ratification. Furthermore, it is also noteworthy that Brazil has a new Civil Procedure Code, which was put into reinforcement in 2016 bringing new legal provisions specifically about the forum selection. This represented a mark in the national legal system in this matter. Therefore, this paper intends to give an insight through Brazilian jurisprudence, making an analysis of how this issue has been treated on litigations about maritime contracts in the national tribunals, as well as the solutions found by the Brazilian legal system for the jurisdiction conflicts in those cases. To achieve the expected results, the hypothetical-deductive method will be used in combination with researches on doctrine and legislations. Also, jurisprudential research and case law study will have a special role, since the main point of this paper is to verify and study the position of the courts in Brazil in a specific matter. As a country of civil law, the Brazilian judges and tribunals are very attached to the rules displayed on codes. However, the jurisprudential understanding has been changing during the years and with the advent of the new rules about the applicable law and forum selection clause, it is noticeable that new winds are being blown.

Keywords: applicable law, forum selection clause, international business, international maritime contracts, litigation in courts

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Authors: Mahshid Asadollahi, Mohammad Akbari Asl

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The restaurant industry is highly competitive, and restaurants are constantly looking for ways to attract new customers and retain their existing ones. Nonverbal communication is an important factor in creating a positive customer experience and can play a significant role in attracting customers to restaurants. Nonverbal communication can include body language, facial expressions, tone of voice, and physical proximity, among other things. The present study aimed to investigate the impact of nonverbal communication between restaurant employees and customers on attracting customers in food courts in Tehran. The research method was descriptive-correlational, and the statistical population of this study included all customers of food court restaurants in Tehran, which was about 30 restaurants. The research sample was selected through probability sampling, and 440 customers completed emotional response, customer satisfaction, and nonverbal communication questionnaires in person. The data obtained were analyzed using multiple regression analysis. The results showed that vocal language, employee proximity, physical appearance, and speech movements, as components of nonverbal communication of restaurant employees, had an impact on attracting customers. Additionally, positive and negative emotions of customers have a significant relationship with customer attraction in Food Court restaurants. The study shows that various nonverbal communication factors can play a significant role in attracting customers, and that positive and negative customer emotions can affect customer satisfaction. Therefore, restaurant owners and managers should pay attention to nonverbal communication and train their employees accordingly to create a positive and welcoming atmosphere for customers.

Keywords: verbal language, proximity of employees, physical appearance, speech gestures, nonverbal communication, customer emotions, customer attraction

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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: David Gibbs-Kneller

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Only parties to a contract can enforce it. This is the privity of the contract. Carriage contracts frequently involve intermediated relationships. While the carrier and cargo-owner will agree on a contract for carriage, there is no privity or consideration between the cargo-owner and third parties. To overcome this, the contract utilizes ‘bailment on terms’ or the rule in Morris. Morris v C W Martin & Sons Ltd is authority for the following: A sub-bailee and bailor may rely on terms of a bailment where the bailor has consented to sub-bailment “on terms”. Bailment on terms can play a significant part in making litigation decisions and determining liability. It is used in standard form contracts and courts have also strived to find consent to bailment on terms in agreements so as to avoid the consequences of privity of contract. However, what this paper exposes is the false legal basis for this model. Lord Denning gave an account adumbrated of the law of bailments to justify the rule in Morris. What Lord Denning was really doing was objecting to the doctrine of privity. To do so, he wrongly asserted there was a lacuna in law that meant third parties could not avail themselves upon terms of a contract. Next, he provided a false analogy between purely contractual rights and possessory liens. Finally, he gave accounts of authorities to say they supported the rule in Morris when they did not. Surprisingly, subsequent case law on the point has not properly engaged with this reasoning. The Pioneer Container held that since the rule in Morris lay in bailments, the decision is not dependent on the doctrine of privity. Yet the basis for this statement was Morris. Once these reasons have been discounted, all bailment on terms rests on is the claim that the law of bailments is an independent source of law. Bailment on terms should not be retained, for it is contrary to established principles in the law of property, tort, and contract. That undermines the certainty of those principles by risking their collapse because there is nothing that keeps bailment on terms within the confines of bailments only. As such, bailment on terms is not good law and should not be used in standard form contracts or by the courts as a means of determining liability. If bailment on terms is a pragmatic rule to retain, it is recommended that rules governing carriage contracts should be amended.

Keywords: bailment, carriage of goods, contract law, privity

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Authors: Cezary Kulesza, Katarzyna Lapinska

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Regarding the nature of the notion of fair trial, one must see the source of the fair trial principle in the following acts of international law: art. 6 of the ECHR of 1950 and art.14 the International Covenant on Civil and Political Rights of 1966, as well as in art. 45 of the Polish Constitution. However, the problem is that the above-mentioned acts essentially apply the principle of a fair trial to the main hearing and not to appeal proceedings. Therefore, the main thesis of the work is to answer the question whether the Polish model of appeal proceedings is fair. The paper presents the problem of fair appeal proceedings in Poland in comparative perspective. Thus, the authors discuss the basic features of English, German and Russian appeal systems. The matter is also analysed in the context of the last reforms of Polish criminal procedure, because since 2013 Polish parliament has significantly changed criminal procedure almost three times: by the Act of 27th September, 2013, the Act of 20th February, 2015 which came into effect on 1st July, 2015 and the Act of 11th March, 2016. The most astonishing is that these three amendments have been varying from each other – changing Polish criminal procedure to more adversarial one and then rejecting all measures just involved in previous acts. Additional intent of the Polish legislator was amending the forms of plea bargaining: conviction of the defendant without trial or voluntary submission to a penalty, which were supposed to become tools allowing accelerating the criminal process and, at the same time, implementing the principle of speedy procedure. The next part of the paper will discuss the matter, how the changes of plea bargaining and the main trial influenced the appellate procedure in Poland. The authors deal with the right to appeal against judgments issued in negotiated case-ending settlements in the light of Art. 2 of Protocol No. 7 to the ECHR and the Polish Constitution. The last part of the presentation will focus on the basic changes in the appeals against judgments issued after the main trial. This part of the paper also presents the results of examination of court files held in the Polish Appeal Courts in Białystok, Łódź and Warsaw. From these considerations it is concluded that the Polish CCP of 1997 in ordinary proceedings basically meets both standards: the standard adopted in Protocol No. 7 of the Convention and the Polish constitutional standard. But the examination of case files shows in particular the following phenomena: low effectiveness of appeals and growing stability of the challenged judgments of district courts, extensive duration of appeal proceedings and narrow scope of evidence proceedings before the appellate courts. On the other hand, limitations of the right to appeal against the judgments issued in consensual modes of criminal proceedings justify the fear that such final judgments may violate the principle of criminal accurate response or the principle of material truth.

Keywords: adversarial trial, appeal, ECHR, England, evidence, fair trial, Germany, Polish criminal procedure, reform, Russia

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Authors: Sachin Sharma

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Sexual consent is integral to every sexual relationship. It is a process to facilitate sexual autonomy and bodily integrity. It assures complete sexual personhood and allows an individual to explore her sexual expressions independently. But the said proposition is not true for people with psychosocial disabilities. Generally, they are considered seraphic or mephistophelic and denied access to sexual autonomy. This result in institutionalizing the sexuality of disabled persons, where the eugenics-ableist narrative defines assessment and access to consent. This way, sexuality and disability are distanced apart. It is primarily due to the stigmatized socio-cultural constructs of sexuality that define sex within a “standard” and “charmed” circle. Such stigmatized expression influences the law, as it considers people with psychosocial disabilities incapable of sexual consent. The approach of legal institutions is very narrow towards interpreting their sexual rights. It echoes the modernist-ableism and strangulates the sexual choices. This way, it reflects the repressive model of sex and denies space to people with psychosocial disabilities. Moreover, judicial courts follow old and conservative methods while dealing with sexual issues. For instance, courts still practice the “standardized” norm of intelligence quotient (IQ) for determining the credibility of persons with psychosocial disabilities. Further, there is still doubt about assistive communicative techniques. This paper will try to question the normative structure of sexual consent and related laws while specifically addressing the issues of sex as desire and abuse. Considering the commitment to the United Nations Convention on the Rights of Persons with Disabilities (herein referred to as UNCRPD) and common law experience, the paper will draw a comparative study on the legal position of sexual rights in India. The paper will also analyze the role of UNCRPD in addressing sexual rights. The author will examine the position of sexual rights of people with psychosocial disabilities after the drafting of UNCRPD and specific state laws. The paper primarily follows the doctrinal method.

Keywords: sexual autonomy, institutionalized choices, overregulated laws, violation of individuality

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Authors: Lina Fernanda González

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Through this essay, an attempt will be made to make visible the work of the international network of the Women in Black (henceforth WB), on the one hand. On the other hand, the work of Women International Courts as a political practice will be showed as well, focusing their work into generating a collective identity - becoming thusly a peace building space, rescuing in this way the symbolic value of their practices consisting in peaceful resistance as political scenarios, that serve, too, a pedagogical and healing purposes.

Keywords: collective actions, women, peace, human rights and humanitarian international law

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Authors: Shikhar Shrivastava, Varun Khare

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Background: We are confronted by a society that is becoming more complex, more mobile, and more dysfunctional. Teen pregnancy, suicide, elopement, and the perusal of dangerous drugs have become commonplace. In addition, children do not settle their disputes as they once did. Guns and knives are quotidian. Therefore, it has been an exigent to have a "Juvenile Code" that would provide specific substantive and procedural rules for juveniles in the justice system. However, until the twentieth century, there was little difference between how the justice system treated adults and children. Age was considered only in terms of appropriate punishment and juveniles were eligible for the same punishment as adults. Findings: The increased prevalence and legislative support for specialized courts, Juvenile Justice Boards, including juvenile drug, mental health and truancy court programs, as well as diversion programs and evidence-based approaches into the fabric of juvenile justice are just a few examples of recent advances. In India, various measures were taken to prosecute young offenders who committed violent crimes as adults. But it was argued that equating juveniles with adult criminals was neither scientifically correct nor normatively defensible. It would defeat the very purpose of the justice system. Methodology and Conclusion: This paper attempts to bring forth the results of analytical and descriptive research that examined changing trends in juvenile justice legislation. It covers the investigative and inspective practices of police, the various administrative agencies who have roles in implementing the legislation, the courts, and the detention centers. In this paper we shall discuss about how the juvenile justice system is the dumping ground for many of a youths’ problem. The changing notions of justice, from retributive to restorative and rehabilitative shall be discussed. A comparative study of the Juvenile act in India and that of the U.S has been discussed. Specific social institutions and forces that explain juvenile delinquency are identified. In addition, various influences on juvenile delinquency are noted, such as families, schools, peer groups and communities. The text concludes by addressing socialization, deterrence, imprisonments, alternatives, restitution and preventions.

Keywords: juvenile, justice system, retributive, rehabilitative, delinquency

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Authors: Konstancja Syller

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International law and European regulations remain hardly silent about the admissibility of evidence obtained illegally in a criminal trial. However, Article 6 of the European Convention on Human Rights guarantees the right to a fair trial, it does not normalise a proceeding status of specified sources or means of proof outright. Therefore, it is the preserve of national legislation and national law enforcement authorities to decide on this matter. In most countries, especially in Germany and Poland, a rather complex normative approach to the issue of proof obtained in violation of the right to privacy is evident, which pursues in practise to many interpretive doubts. In Germany the jurisprudence has a significant impact within the range of the matter mentioned above. The Constitutional Court and the Supreme Court of Germany protect the right to privacy quite firmly - they ruled on inadmissibility of obtaining a proof in the form of a diary or a journal as a protection measure of constitutional guaranteed right. At the same time, however, the Supreme Court is not very convinced with reference to the issue of whether materials collected as a result of an inspection, call recordings or listening to the premises, which were carried out in breach of law, can be used in a criminal trial. Generally speaking, German courts indicate a crucial importance of the principle of Truth and the principle of proportionality, which both enable a judgement to be made as to the possibility of using an evidence obtained unlawfully. Comparing, in Poland there is almost no jurisprudence of the Constitutional Tribunal relating directly to the issue of illegal evidence. It is somehow surprising, considering the doctrinal analysis of the admissibility of using such proof in a criminal trial is performed in relation to standards resulted from the Constitution. Moreover, a crucial de lega lata legal provision, which enables allowing a proof obtained in infringement of the provisions in respect of criminal proceedings or through a forbidden act, is widely criticised within the legal profession ant therefore many courts give it their own interpretation at odds with legislator’s intentions. The comparison of two civil law legal systems’ standards regarding to the admissibility of an evidence obtained in contravention of the right to privacy in a criminal trial, taking also into account EU legislation and judicature, is the conclusive aim of this article.

Keywords: criminal trial, evidence, Germany, right to privacy, Poland

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Authors: William Thomas Worster

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This paper will highlight the failure of international adjudication to prevent a state from evading an order of provisional measures by simply issuing a diplomatic assurance to the court. This practice changes the positions of the litigants as equals before a court, prevents the court from inquiring into the reliability of the political pledge as it would with assurances from a state to an individual, and diminishes the court’s ability to control its own proceedings in the face of concerns over sovereignty. Both the European Court of Human Rights (ECtHR) and International Court of Justice (ICJ) will entertain these kinds of unilateral pledges, but they consider them differently when the declaration is made between states or between a state and an individual, and when made directly to the court. In short, diplomatic assurances issued between states or to individuals are usually considered not to be legally binding and are essentially questions of fact, but unilateral assurances issued directly to an international court are questions of law, and usually legally binding. At the same time, orders for provisional measures are now understood also to be legally binding, yet international courts will sometimes permit a state to substitute an assurance in place of an order for provisional measures. This emerging practice has brought the nature of a state as a sovereign capable of creating legal obligations into the forum of adjudication where the parties should have equality of arms and permitted states to create legal obligations that escape inquiry into the reliability of the outcome. While most recent practice has occurred at the ICJ in state-to-state litigation, there is some practice potentially extending the practice to human rights courts. Especially where the litigants are factually unequal – a state and an individual – this practice is problematic since states could more easily overcome factual failings in their pledges and evade the control of the court. Consider, for example, the potential for evading non-refoulement obligations by extending the current diplomatic assurances practice from the state-to-state context to the state-to-court context. The dual nature of assurances, as both legal and factual instruments, should be considered as addressed to distinct questions, each with its own considerations, and that we need to be more demanding about their precise legal and factual effects.

Keywords: unilateral, diplomacy, assurances, undertakings, provisional measures, interim measures

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Authors: Eleni Volonaki

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In Athenian forensic speeches, the argumentation on punishment of the wrongdoers constitutes a fundamental ideal of exacting justice in court. The present paper explores the variation of approaches to punishment as a means of reformation, revenge, correction, education, example, chance to restoration of justice. As it will be shown, all these approaches reflect the social and political ideology of Athenian justice in the classical period and enhances the role of the courts and the importance of rhetoric in the process of decision-making. Punishment entails a wide range of penalties but also of ideological principles related to the Athenian constitution of democracy.

Keywords: punishment, athenian forensic speeches, justice, athenian democracy

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Authors: István János Molnár

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Hungary has a legal system that is primarily based on statutory legislation, which means that statutes are the main source of law. However, in a surprising move, the Hungarian Parliament introduced a "limited" precedent system on 1 April 2020. This reform requires Hungarian courts to consider not only statutes but also the interpretation of those statutes in decisions made by the highest court in the country, the Curia. While judge-made customary law is not completely unfamiliar in Hungarian legal practice, the introduction of this new system presents several theoretical and practical challenges that may take time to resolve.

Keywords: civil procedure, hungary, judicial practice, precedent system, sources of law

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Authors: Rorick Daniel Tovar Galvan

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The 1951 Convention relating to the status of refugees contains a conflict of law rule for the determination of the applicable law to marriage. The wording of this provision leaves much to be desired as it uses the domicile and the residence of the spouses as single main and subsidiary connecting factors. In cases where couples live in different countries, the law applicable to the case is unclear. The same problem arises when refugees are married to individuals outside of the convention’s scope of application. Different interpretations of this legal provision have arisen to solve this problem. Courts in a number of European countries apply the so-called modification doctrine: states should apply their domestic private international rules in all cases involving refugees. Courts shall, however, replace the national connecting factor by the domicile or residence in situations where nationality is used to determine the applicable law. The internal conflict of law rule will then be slightly modified in order to be applied according to the convention. However, this approach excludes these people from using their national law if they so desire. As nationality is, in all cases, replaced by domicile or residence as connecting factor, refugees are automatically deprived of the possibility to choose this law in jurisdictions that include the party autonomy in international marriage law. This contribution aims to shed light on the international legal framework applicable to marriages celebrated by refugees and the unnecessary restrictions to the exercise of the party autonomy these individuals are subjected to. The interest is motivated by the increasing number of displaced people, the significant number of states party to the Refugee Convention – approximately 150 – and the fact that more and more countries allow choice of law agreements in marriage law. Based on a study of German, Spanish and Swiss case law, the current practices in Europe, as well as some incoherencies derived from the current interpretation of the convention, will be discussed. The main objective is showing that there is neither an economic nor a legal basis to deny refugees the right to choose the law of their country of origin in those jurisdictions providing for this possibility to other foreigners. Quite the contrary, after analyzing other provisions contained in the conventions, this restriction would mean a contravention of other obligations included in the text.

Keywords: choice of law, conflict of laws, international marriage law, refugees

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Authors: Vijayalaxmi Khopade

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The Prima facie caste system is intrinsic to Indian society. It is an ancient system of intense social stratification based upon birth and enjoying religious sanction. The uppermost strata and privileges are ascribed and enjoyed by brahmins (priestly class), while the lowest strata are occupied by Dalits who are not ascribed with any privileges. The caste system is inherently hierarchical, patriarchal, and systematic and thrives solely on exploitation justified through means of the Brahminical system of hegemony based singularly on birth. The caste system has extended its tentacles to other religions like Christianity, Buddhism, Jainism, and Islam in South Asia. Term Dalit is colloquially used to categorize persons belonging to lower strata in the caste hierarchy. However, this category is heterogenous and highly stratified, following practices like untouchability and exclusion amongst themselves. The modern Indian legal system acknowledges the existence of Caste and its perils. Therefore, by virtue of the Indian Constitution, provisions for affirmative action for the protection and development of Dalits are made. Courts in India have liberally interpreted laws to benefit Dalits. However, the modern system of governance is not immune from Caste based biases. These biases are reflected in the implementation of governance, including the dispensation of justice. The economic reforms of the 1990s gave a huge boost to the Indian diaspora. Persons of Indian origin are now seen making great strides in almost every sector and enjoying positions of power globally. As one peels off the layer of ethnic Indian origin, a deep seated layer of Caste and Caste based patriarchy is clearly visible. Indian diaspora enjoying positions of power essentially belongs to upper castes and carry Caste based biases with them. These castes have long enjoyed the benefits of education; therefore, they were the first ones to benefit from LPG (Liberalization, Privatization, Globalization) model adopted in the 1990s. Dalits, however, had little formal education until recently. The western legal system, to the best of our knowledge, does not recognize Caste and, therefore, cannot afford protection for Dalits, wherein discrimination and exploitation take place solely on the basis of Caste. Therefore, Dalits are left with no legal remedy outside domestic jurisdiction. Countries like the UK have made an attempt to include Caste in their Equality Bill 2010. This has met with tough resistance from Upper caste Hindus who shy away from recognizing their caste privileges and, therefore, the existence of Caste. In this paper, an attempt for comparative analysis is made between various legal protections accorded to Dalits in India vis-à-vis international human rights as protected by the United Nations under its declaration of Universal Human rights. An attempt has been made to mark a distinction between race and Caste and to establish a position of women in Caste based hierarchy. The paper also makes an argument for the inclusion of atrocities committed against Dalits as a violation of international human rights, their protection by the United Nations, and the trial of their violations by International Courts. The paper puts into perspective the need for an external agency like the United Nations and International courts to interfere in rights guaranteed by the Indian Constitution, even with the existence of a modern legal system in a sovereign democratic country.

Keywords: atrocity, caste, diaspora, legal framework

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Authors: Amin Osama Amin Mohamed Elbaramawy

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In the last period of time, about ten years ago, wars caused violations of human rights in many places, and despite international condemnations, they did not stop, and the truth is that international law was unable to stop them. The global wars and conflicts that the world has been witnessing for more than ten years have caused the displacement of millions of people in all parts of the earth, causing a violation of the human rights of those people. Despite international condemnations of these conflicts, these conflicts have not stopped and have not been resolved until now. Therefore, I call for international law and international courts to be more effective and not just in words, taking into account the speed in this due to the increase in those wars and conflicts every day and new violations every day.

Keywords: war, freedom, human rights, international law

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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: Yrfet Shkreli

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To determine the content of human rights norms in national constitutions, international law - in the form of treaties, declarations and case law from international monitoring bodies, and comparative case law from other countries - is often discussed in the judgments of domestic courts. This paper explores the extent to which international law has influenced domestic human rights case law in Africa. The paper first explores how the human rights provisions of African constitutions came into being before turning to the role played by international law in the constitutional order of various African states and how treaties, declarations and findings of international monitoring bodies have been used in African countries to interpret and expand on constitutional human rights provisions.

Keywords: European Union, global governance, globalization, normative power

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Authors: Mojtaba Eshraghi Arani

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The freight forwarders, who are known as the Architect of Transportation, play a vital role in the supply chain management. The package of various services which they provide has made the legal nature of freight forwarders very controversial, so that they might be qualified once as principal or carrier and, on other occasions, as agent of the shipper as the case may be. They could even be involved in the transportation process as the agent of shipping line, which makes the situation much more complicated. The courts in all countries have long had trouble in distinguishing the “forwarder as agent” from “forwarder as principal” (as it is outstanding in the prominent case of “Vastfame Camera Ltd v Birkart Globistics Ltd And Others” 2005, Hong Kong). It is not fully known that in the case of a claim against the forwarder, what particular parameter would be used by the judge among multiple, and sometimes contradictory, tests for determining the scope of the forwarder liability. In particular, every country has its own legal parameters for qualifying the freight forwarders that is completely different from others, as it is the case in France in comparison with Germany and England. The unpredictability of the courts’ decisions in this regard has provided the freight forwarders with the opportunity to impose any limitation or exception of liability while pretending to play the role of a principal, consequently making the cargo interests incur ever-increasing damage. The transportation industry needs to remove such uncertainty by unifying national laws governing freight forwarders liability. A long time ago, in 1967, The International Institute for Unification of Private Law (UNIDROIT) prepared a draft convention called “Draft Convention on Contract of Agency for Forwarding Agents Relating to International Carriage of Goods” (hereinafter called “UNIDROIT draft convention”). The UNIDROIT draft convention provided a clear and certain framework for the liability of freight forwarder in each capacity as agent or carrier, but it failed to transform to a convention, and eventually, it was consigned to oblivion. Today, after nearly 6 decades from that era, the necessity of such convention can be felt apparently. However, one might reason that the same grounds, in particular, the resistance by forwarders’ association, FIATA, exist yet, and thus it is not logical to revive a forgotten draft convention after such long period of time. It is argued in this article that the main reason for resisting the UNIDROIT draft convention in the past was pending efforts for developing the “1980 United Nation Convention on International Multimodal Transport of Goods”. However, the latter convention failed to become in force on due time in a way that there was no new accession since 1996, as a result of which the UNIDROIT draft convention must be revived strongly and immediately submitted to the relevant diplomatic conference. A qualitative method with the concept of interpretation of data collection has been used in this manuscript. The source of the data is the analysis of international conventions and cases.

Keywords: freight forwarder, revival, agent, principal, uidroit, draft convention

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Authors: Pataramon Satalak, Sakrit Isariyanon, Teerapong Puripanik

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This article uses the recent events in Thailand as a case study for examining why democratic transition is necessary during political upheaval to ensure that the people’s power remains unaffected. After seizing power in May 2014, the military, backed by anti-government protestors, selected and established their own system to govern the country. They set up the National Council for Peace and Order (NCPO) which established a People’s Assembly, aiming to reach a compromise between the conflicting opinions of former, pro-government and anti-government protesters. It plans to achieve this through political reform before returning sovereign power to the people via an election in 2018. If a governmental authority is not representative of the people (e.g. a military government) it does not count as a legitimate government. During the last four years of military government, from May 2014 to January 2018, their rule of Thailand has been widely controversial, specifically regarding their commitment to democracy, human rights violations and their manipulation of the rule of law. Democratic legitimacy relies not only on established mechanisms for public participation (like referendums or elections) but also public participation based on accessible and educational reform (often via NGOs) to ensure that the free and fair will of the people can be expressed. Through their actions over the last three years, the Thai military government has damaged both of these components, impacting future public participation in politics. The authors make some observations about the specific actions the military government has taken to erode the democratic legitimacy of future public participation: the increasing dominance of military courts over civil courts; civil society’s limited involvement in political activities; the drafting of a new constitution and their attempt to master support through referenda and its consequence for delaying organic law-making process; the structure of the legislative powers (Senate and the members of parliament); and the control of people’s basic freedoms of expression, movement and assembly in political activities. One clear consequence of the military government’s specific actions over the last three years is the increased uncertainty amongst Thai people that their fundamental freedoms and political rights will be respected in the future. This will directly affect their participation in future democratic processes. The military government’s actions (e.g. their response to the UN representatives) will also have influenced potential international engagement in Thai civil society to help educate disadvantaged people about their rights, and their participation in the political arena. These actions challenge the democratic idea that there should be a checking and balancing of power between people and government. These examples provide evidence that a democratic transition is crucial during any process of political transformation.

Keywords: political tranformation, public participation, Thailand coup d'etat 2014, election 2018

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Authors: Kathryn McMillan

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A recent study of 8500 adult Australians aged 16 and over revealed 62% had experienced childhood maltreatment. In response to multiple recommendations by bodies such as the Australian Law Reform Commission, parliamentary reports and stakeholder input, a number of key initiatives have been developed to grapple with the difficulties of a federal-state system and to screen and triage high-risk families navigating their way through the court system. The Lighthouse Project (LHP) is a world-first initiative of the Federal Circuit and Family Courts in Australia (FCFOCA) to screen family law litigants for major risk factors, including family violence, child abuse, alcohol or substance abuse and mental ill-health at the point of filing in all applications that seek parenting orders. It commenced on 7 December 2020 on a pilot basis but has now been expanded to 15 registries across the country. A specialist risk screen, Family DOORS, Triage has been developed – focused on improving the safety and wellbeing of families involved in the family law system safety planning and service referral, and ¬ differentiated case management based on risk level, with the Evatt List specifically designed to manage the highest risk cases. Early signs are that this approach is meeting the needs of families with multiple risks moving through the Court system. Before the LHP, there was no data available about the prevalence of risk factors experienced by litigants entering the family courts and it was often assumed that it was the litigation process that was fueling family violence and other risks such as suicidality. Data from the 2022 FCFCOA annual report indicated that in parenting proceedings, 70% alleged a child had been or was at risk of abuse, 80% alleged a party had experienced Family Violence, 74 % of children had been exposed to Family Violence, 53% alleged through substance misuse by party children had caused or was at risk of causing harm to children and 58% of matters allege mental health issues of a party had caused or placed a child at risk of harm. Those figures reveal the significant overlap between child protection and family violence, both of which are under the responsibility of state and territory governments. Since 2020, a further key initiative has been the co-location of child protection and police officials amongst a number of registries of the FCFOCA. The ability to access in a time-effective way details of family violence or child protection orders, weapons licenses, criminal convictions or proceedings is key to managing issues across the state and federal divide. It ensures a more cohesive and effective response to family law, family violence and child protection systems.

Keywords: child protection, family violence, parenting, risk screening, triage.

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Authors: Monika Florczak-Wątor

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The main purpose of this paper is to determine the applicability of the constitutional social rights in the so-called horizontal relations, i.e. the relations between private entities. Nowadays the constitutional rights are more and more often violated by private entities and not only by the state. The private entities interfere with the privacy of individuals, limit their freedom of expression or disturb their peaceful gatherings. International corporations subordinate individuals in a way which may limit their constitutional rights. These new realities determine the new role of the constitution in protecting human rights. The paper will aim at answering two important questions. Firstly, are the private entities obliged to respect the constitutional social rights of other private entities and can they be liable for violation of these rights? Secondly, how the constitutional social rights can receive horizontal effect? Answers to these questions will have a significant meaning for the popularization of the practice of applying the Constitution among the citizens as well as for the courts which settle disputes between them.

Keywords: social rights, private relations, horizontality, constitutional rights

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Authors: Oliver Fuo

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One of the central features of post-apartheid constitutional reform was the establishment of local government as a distinct sphere of government in the Constitution of the Republic of South Africa, 1996. Local government, constituted by about 279 wall-to-wall municipalities, have legislative and executive powers vested in democratically elected municipal councils to govern areas within their jurisdiction subject only to limits imposed by the Constitution. In addition, unlike the past where municipalities merely played a service delivery role, they are now mandated to realise an expanded developmental mandate – pursue social justice and sustainable development; contribute, together with national and provincial government, to the realisation of socio-economic rights entrenched in the Bill of Rights; and facilitate public participation in local governance. In order to finance their developmental programmes, municipalities receive equitable allocations from national government and have legal powers to generate additional finances by charging rates on property and imposing surcharges on services provided. In addition to its general obligation to foster public participation in local governance, the law requires municipalities to facilitate public participation in their budgeting processes. This requirement is generally consistent with recent trends in local government democratic reforms which call for inclusive budget planning and implementation whereby citizens, civil society and NGOs participate in the allocation of resources. This trend is best captured in the concept of participatory budgeting. This paper specifically analyses the legal and policy framework for participatory budgeting at the local government level in South Africa. Using Borbet South Africa (Pty) Ltd and Others v Nelson Mandela Bay Municipality 2014 (5) SA 256 (ECP) as an example, this paper argues that the legal framework for participatory budgeting creates an illusory right for citizens to participate in municipal budgeting processes. This challenge is further compounded by the barrenness of the jurisprudence of courts that interpret the obligation of municipalities in this regard. It is submitted that the wording of s 27(4) of the Municipal Finance Management Act (MFMA) 53 of 2003 - which expressly stipulates that non-compliance by a municipality with a provision relating to the budget process or a provision in any legislation relating to the approval of a budget-related policy, does not affect the validity of an annual or adjustments budget – is problematic as it seems to trivialise the obligation to facilitate public participation in budgeting processes. It is submitted that where this provision is abused by municipal officials, this could lead to the sidelining of the real interests of communities in local budgets. This research is based on a critical and integrated review of primary and secondary sources of law.

Keywords: courts and jurisprudence, local government law, participatory budgeting, South Africa

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