Search results for: administrative court

Authors: Tatia Kekelia

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This paper is part of an ongoing research addressing gender discrimination in the Court of Georgia. The research suggests that gender stereotypes influence the processes at the Court in contemporary Georgia, which causes uneven fights for women and men, not to mention other gender identities. The sub-hypothesis proposes that the gender stereotypes derive from feudal representations, which persisted during the Soviet rule. It is precisely those stereotypes that feed gender-based discrimination today. However, this paper’s main focus is on the main hypothesis, describing the revealed stereotypes, and identifying the Court as a place where their presence is most hindering societal development. First of all, this happens by demotivating people, causing loss of trust in the Court, and therefore potentially encouraging crime. Secondly, it becomes harder to adequately mobilize human resources, since more than a half of the population is female, and under the influence of rigid or more subtle forms of discrimination, they lose not only equal rights, but also the motivation to work or fight for them. Consequently, this paper falls under democracy studies as well – considering that an unbiased Court is one of the most important criteria for assessing the democratic character of a state. As the research crosses the disciplines of sociology, law, and history, a complex of qualitative research methods is applied, among which this paper relies mainly on expert interviews, interviews with attorneys, and desk research. By showcasing and undermining the gender stereotypes that work at the Court of Georgia, this research might assist in rising trust towards it in the long-term. As for the broader relevance, the study of the Georgian case opens the possibility to conduct comparative analyses in the region and the continent, and, presumably, carve the lines of cultural influences.

Keywords: gender, stereotypes, bias, democratization, judiciary

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Authors: Romina Beqiri

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In the context of the prosecution of those responsible for the commission of the most hideous crimes and the fight against impunity, a fundamental role is played by witnesses of the crimes who contribute to ascertaining the ‘procedural truth’. This article examines recent decisions and legislation of the Hague-based International Criminal Court in terms of the endangerment of the integrity of the criminal proceedings in consequence of witness tampering. The analysis focuses on the new developments in the courtroom and the academia, in particular, on the first-ever sentence confirming the charges of corruptly influencing witnesses, interpretation of presenting false evidence and giving false testimony when under an obligation to tell the truth. Confronted with recent tampering with witnesses and their credibility at stake in the ongoing cases, the research explores different Court’s decisions and scholars’ legal disputes concerning the deterrence approach to punish the authors of offences against the administration of justice when committed intentionally. Therefore, the analysis concludes that the Court cannot tolerate any witness false testimony and should enhance consistency and severity of sanctions for the sake of fair trial and end impunity.

Keywords: International Criminal Court, administration of justice, credibility of witness, fair trial, false testimony, witness tampering

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Authors: Alina Murtishcheva

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The development of an effective system of administrative supervision is a prerequisite for the functioning of local self-government on the basis of the rule of law. Administrative supervision of local self-government is of particular importance in the EU countries due to the influence of integration processes. The central authorities act on the international level; however, subnational authorities also have to implement European legislation in order to strengthen integration. Therefore, the central authority, being the connecting link between supranational and subnational authorities, should bear responsibility, including financial responsibility, for possible mistakes of subnational authorities. Consequently, the state should have sufficient mechanisms of control over local and regional authorities in order to correct their mistakes. At the same time, the control mechanisms do not deny the autonomy of local self-government. The paper analyses models of administrative supervision of local self-government in Ukraine, Poland, Lithuania, Belgium, Great Britain, Italy, and France. The research methods used in this paper are theoretical methods of analysis of scientific literature, constitutions, legal acts, Congress of Local and Regional Authorities of the Council of Europe reports, and constitutional court decisions, as well as comparative and logical analysis. The legislative basis of administrative supervision was scrutinized, and the models of administrative supervision were classified, including a priori control and ex-post control or their combination. The advantages and disadvantages of these models of administrative supervision are analysed. Compliance with Article 8 of the European Charter of Local Self-Government is of great importance for countries achieving common goals and sharing common values. However, countries under study have problems and, in some cases, demonstrate non-compliance with provisions of Article 8. Such non-conformity as the endorsement of a mayor by the Flemish Government in Belgium, supervision with a view to expediency in Great Britain, and the tendency to overuse supervisory power in Poland are analysed. On the basis of research, the tendencies of administrative supervision of local authorities’ activities in selected European countries are described. Several recommendations for Ukraine as a country that had been granted the EU candidate status are formulated. Having emphasised its willingness to become a member of the European community, Ukraine should not only follow the best European practices but also avoid the mistakes of countries that have long-term experience in developing the local self-government institution. This project has received funding from the Research Council of Lithuania (LMTLT), agreement № P-PD-22-194

Keywords: administrative supervision, decentralisation, legality, local authorities, local self-government

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Authors: Erinda Male

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Participation of a lawyer in any criminal proceedings on behalf of an accused person or a victim is essential to a fair trial. Legal representation is particularly crucial in proceedings before international tribunals, especially in the International Criminal Court. The paper thus focuses on the importance of the legal representation of victims and defendants before the ICC, as well as on the role of the legal representative in the proceedings before the court and the principle of freedom of choice of legal representatives. Also, the paper presents a short overview of the significance of legal representatives for victims and the necessity to protect their primary role in the ICC system, and ensure that it is coherent and respectful of victims’ rights. Victim participation is an important part of the ICC Statute and it is designed to help ensure that those most affected by the crimes are able to engage with the Court. Proper and quality legal representation ensures meaningful participation of victims at stages of the proceedings before ICC. Finally, the paper acknowledges the role of legal representatives during the pre-trial, trial and post-trial phase, the different modalities in selecting the legal representatives as well as balancing victims’ participation with the right of the accused to a fair trial.

Keywords: fair trial, freedom of choice principle, international criminal court, legal representatives, victims

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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: Gabrielle Pilliat

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The Supreme Court of Canada rendered unconstitutional the sections of the Canadian Criminal Code which prohibited the Physician-assisted suicide in February 2015. However, in 1993, the same Supreme Court of Canada ruled that Physician-assisted suicide should remain absolutely prohibited. In the light of these historical facts, we will explore how the Supreme Court of Canada was able to make two different decisions 20 years apart. To understand how Canada could rule so differently between 1993 and 2015 about Physician-assisted suicide, we will analyze the content of the Supreme Court of Canada decisions’ discourse of 1993 and of 2015. Our preliminary results indicate that A) the patient autonomy (or the personal choice) has taken over the idea of the preservation of life (or the sacred character of life) in 2015. B) That between 1993 and 2015, the physician is seen differently by the Judges; like an abusive murderer in 1993 and like an objective evaluator in 2015. C) That the patient is seen as a victim in 1993 and more like a hero in 2015.

Keywords: physician-assisted suicide, patient autonomy, choice, sacred character of life, dignity

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Authors: Tien Wei Daniel Hwang

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

Keywords: direct infringement, FinTech, software patent, use

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Authors: Valentina Tereshkova

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

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

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Authors: Samia Al-Shayban

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

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

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Authors: Seyedeh Sajedeh Salehi

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

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

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Authors: Basheer Ahmad Al-Alwan

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This study aimed to assess the extent of administrative creativity and identify its barriers from the perspective of employees working in youth centers in Jordan. The sample comprised 156 individuals employed in youth centers within the Hashemite Kingdom of Jordan. Data collection involved the utilization of two measures: the administrative creativity scale and the obstacles to administrative work scale. Correlation and stepwise multiple regression analyses were conducted. The findings revealed a high level of administrative creativity, as indicated by a mean score of 3.82 and a standard deviation of 0.51. Furthermore, statistically significant gender-based differences in administrative creativity were observed, favoring males, with a mean score of 3.32 for males compared to 2.91 for females. The results also demonstrated statistically significant differences in the level of administrative creativity based on experience, with the highest mean score observed for individuals with 5 to less than 10 years of experience. Regarding the obstacles to administrative creativity, the findings revealed an average level, with a mean score of 2.86 and a standard deviation of 0.791. Based on these results, the study recommends the promotion of a culture of creativity among employees and the provision of a broader scope of authority to foster an environment conducive to administrative creativity. Additionally, it suggests offering training courses encompassing the annual plan for these centers and minimizing obstacles that hinder the creative process among employees in Jordanian youth centers.

Keywords: administrative creativity, obstacles, workers in youth centers, Jordan

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Authors: Bader A. J. Alrajhi

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

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

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Authors: Sonny Dewi Judiasih

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

Keywords: child, marriage, court, Indonesia

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Authors: Jelena Radmanovic

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

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

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Authors: Sadiya S. Silvee

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

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

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Authors: Samar Sheikhelsouk, Dina Abdel Qader, Nada Rizk

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The plan of the organization may impede its progress and creativity, especially in the framework of its work in independent environments and fast-shifting markets, unless the leaders and minds of the organization use a set of practices, tools, and techniques encapsulated in so-called “agile methods” or “lightweight” methods. Thus, this research paper examines the agile management approach as a flexible and dynamic approach and its relationship to the administrative ambidexterity at the Alexandria library. The sample of the study is the employees of the Alexandria library. The study is expected to provide both theoretical and practical implications. The current study will bridge the gap between agile management and administrative approaches in the literature. The study will lead managers to comprehend how the role of agile management in establishing administrative ambidexterity in the organization.

Keywords: agile management, administrative innovation, Alexandria library, Egypt

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Authors: Allwell Uwazuruike

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

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

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Authors: María José Benítez Jiménez

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

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

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Authors: Mariam Begadze

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

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

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Authors: Rafael Tedrus Bento

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

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

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Authors: Mingsiang Chen

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

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

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Authors: Olgun Akbulut

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

Keywords: equality, gender discrimination, human rights, Turkey

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Authors: Tulasi Acharya

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The paper is a qualitative analysis of status of women and women in politics and administration in Nepal Himalaya. The paper reviews data of women in civil service and in administrative levels. Looking at the Nepali politics and administration from the social constructivist perspective, the paper highlights some social and cultural issues that have othered women as “second sex.” As the country is heading towards modernity, gender friendly approaches are being instituted. Although the data reflects on the progress on women’s status and on women’s political and administrative participation, the data is not enough to predict the democratic gender practices in political and administrative levels. The political and administrative culture of Nepal Himalaya should be changed by promoting gender practices and deconstructing gender images in administrative culture through representative bureaucracy and by introducing democratic policies.

Keywords: politics, policy, administration, culture, women, Nepal, democracy

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Authors: Yee Yan Crystal Kwong

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

Keywords: court interpreting, interpreters, legal translation, slangs

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

Abstract:

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

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

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Authors: Jeanne-Mari Retief

Abstract:

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

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

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Authors: Inuwa Abdu Ibrahim

Abstract:

The research assessed representative democracy as an administrative system in Nigeria, by highlighting the failure of the state. It also looked at some components of direct democracy in Switzerland. Therefore, the paper focused on direct democracy, using secondary sources of data. In conclusion, the research offers direct democracy as a solution to the failure of the Nigerian administrative system especially as it affects participation, developmental programmes and institutionalized corruption.

Keywords: corruption, direct democracy, national development, Nigeria, participation

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Authors: Congrui Chen

Abstract:

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

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

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Authors: Ali Obaid Alyami

Abstract:

In Saudi Arabia, the pandemic of Coronavirus (COVID-19) has been affecting administrative contracts in many different ways. Lots of planned projects were stopped temporarily or implemented partially. Many contractors have suffered financial struggles and the absence of manpower. These administrative contracts are governed by Government Tenders and Procurement Law (GTPL) which was issued by a royal decree in 2019. This law addresses some challenges that could be stumbling blocks in the way of implementing a contract. One significant challenge is emergency circumstances that occur during the implementation of an administrative contract. The law provides some solutions for this disruption, but these solutions may not compensate for the whole damages that contractors suffer. This study will use the doctrinal methodology to analyze the rules of law and their application to the research problem. Most importantly, the issue that arises in this research is the possibility of governmental entities’ consideration, in administrative contracts, of the pandemic Coronavirus (COVID-19) as an emergency circumstance. This study points out the conditions for applying the theory of emergency circumstances on administrative contracts in addition to the definition of the theory and analyzing its elements. The other significant question is the limits on governmental entities to make a change in an administrative contract to achieve contractual rebalancing. GPTL and its implementing regulation set the conditions and limits of contractual rebalancing. However, this study finds that although GTPL provides rules for contractual rebalancing, there are some other mechanisms that contractors may take to fully compensate for the damages. For instance, when the loss cannot be minimized by GTPL, contractors might file lawsuits before the administrative judiciary. The study concludes that GTPL is a very comprehensive law system that stipulates specific rules for contractual rebalance and treats the emergency circumstances that obstruct the performance of administrative contracts.

Keywords: administrative contracts, emergency circumstances, balance of contract, administrative judiciary, government tenders, procurement law

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Authors: Masood Ahmed

Abstract:

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

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

Procedia PDF Downloads 441