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Journal articles on the topic 'Highest Court'
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1
Dominello, Francesca. "Becoming the Highest Court." Griffith Law Review 12, no. 2 (2003): 263–87. http://dx.doi.org/10.1080/10383441.2003.10854521.
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Zainal Abidin. "Position and Authority of the Constitutional Court in the Constitutional System of the Republic of Indonesia." JUSTICES: Journal of Law 2, no. 4 (2023): 221–27. http://dx.doi.org/10.58355/justices.v2i4.38.
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The Constitutional Court is the only institution with the same position as the Supreme Court, which means that these two courts are the two highest institutions in the judiciary. The Supreme Court is influenced by the Constitutional Court's status as an independent state institution in the judicial sector. Previously, the Supreme Court, which supervised other courts, was the highest institution, but after the establishment of the Constitutional Court, justice was organized by the judiciary. Even with the existence of the Constitutional Court, the power of the Supreme Court in terms of judicial review of laws and regulations can be liberalized by law because its power violates the constitutionality of the law.
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Valdini, Melody E., and Christopher Shortell. "Women’s Representation in the Highest Court." Political Research Quarterly 69, no. 4 (2016): 865–76. http://dx.doi.org/10.1177/1065912916668411.
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The presence of women justices in the highest constitutional courts varies significantly across countries, yet there is little existing research that engages this substantial cross-national variation. Using an original data set of women’s representation in the constitutional courts in fifty democracies combined with qualitative case studies, we assess the effect of the selection mechanism on this variation and find that the existence of a “sheltered” versus “exposed” selection mechanism is a critical determinant of women’s presence. That is, when the selectors are sheltered from electoral accountability, they are less likely to select women as judges because they do not benefit from credit claiming. When the selectors are exposed and can claim credit, however, the unique traits and visibility of the highest court generate an incentive to appoint women.
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Krommendijk, Jasper. "Why do lower courts refer in the absence of a legal obligation? Irish eagerness and Dutch disinclination." Maastricht Journal of European and Comparative Law 26, no. 6 (2019): 770–91. http://dx.doi.org/10.1177/1023263x19871024.
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The majority of requests for a preliminary ruling from the EU Court of Justice comes from lower national courts. This is surprising because such courts are, contrary to the highest national courts, not obliged to refer on the basis of Article 267 TFEU. This article examines why Dutch and Irish lower courts have decided to refer or not in the absence of such a legal obligation. It does so on the basis of an analysis of court decisions complemented with 45 interviews with judges and legal secretaries. The article shows that there is a wide variety of reasons (not) to refer, including pragmatic and practical considerations. Politico-strategic reasons play a smaller role than one would expect on the basis of the literature to date. The most important factor affecting the courts’ willingness to refer is the way in which lower court judges see their role in relation to the highest court(s). This factor also explains the difference between Ireland and the Netherlands. While most Irish references are made by lower courts, around two thirds of the references in the Netherlands stem from the highest courts. Most Irish judges adopted a ‘better sooner than later’ logic, while the majority of Dutch judges emphasized that the highest courts have more time and expertise.
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Li, Yedan, Joris Kocken, and Benjamin van Rooij. "Understanding China's Court Mediation Surge: Insights from a Local Court." Law & Social Inquiry 43, no. 01 (2018): 58–81. http://dx.doi.org/10.1111/lsi.12234.
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This article seeks to understand how reported mediation rates in Chinese courts are produced and what they actually signify. It analyzes data obtained through prolonged fieldwork at a court in central China. The article finds that the court has directly responded to central level mediation incentives by enhancing its overall mediation rate. It has done so strategically by seeking the highest increase using the fullest discretion in the mediation incentive structure and seeking to optimize the highest rate at the lowest cost and risk to the court. This has undermined the objectives of the central level incentives toward mediation, while also drawing the courts' scarce resources away toward unnecessary mediation practices, in part far removed from the courtroom. The article concludes by drawing out broader theoretical conclusions about how information asymmetries, discretion, and goal displacement play out in hierarchical control structures of authoritarian courts.
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Filonova, Olina I. "Legal and Doctrinal Justification of the Request of the Soviet Society for Creation of a Unified Judicial Center, the Supreme Court of RSFSR." Court administrator 2 (June 8, 2023): 39–42. http://dx.doi.org/10.18572/2072-3636-2023-2-39-42.
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The article is devoted to the analysis of the relations connected with the establishment of the Supreme Court of the RSFSR in 1923. The approaches to the legislative consolidation and solution of practical issues of the organization of the Supreme Court of the RSFSR are being investigated, when with the end of the Civil war there was a request for a judicial system that would eliminate dualism associated with the existence of a system of revolutionary tribunals, ensure the rule of law and contribute to the protection of new social relations. It is concluded that the creation of the Supreme Court as the highest centralized judicial body with cassation, supervisory, control, and leadership functions, with activities for instructing courts and interpreting law, allowed the implementation of the principle of a single court, understood as the unity of the judicial system. The study shows that the highest party and Soviet authorities took part in solving organizational and personnel issues at the establishment of the Supreme Court of the RSFSR. The article analyzes issues related to determining the limits of independence of the Supreme Court of the RSFSR and its relations with other bodies. The Supreme Court of the RSFSR was the highest judicial link for courts of general jurisdiction and for special courts, creating conditions for ensuring the unity of judicial practice in the RSFSR.
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KENTRIDGE, SIR SYDNEY. "THE HIGHEST COURT: SELECTING THE JUDGES." Cambridge Law Journal 62, no. 1 (2003): 55–71. http://dx.doi.org/10.1017/s0008197303006226.
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Handoyo, Samuel Tirta, and Cut Memi. "KEWENANGAN MAHKAMAH AGUNG REPUBLIK INDONESIA DALAM PEMBUATAN PERATURAN TENTANG PERMOHONAN PERNYATAAN PAILIT MELALUI SURAT EDARAN (BELEIDSREGELS) DITINJAU DARI SUDUT ILMU PERUNDANG-UNDANGAN." Jurnal Hukum Adigama 2, no. 2 (2019): 646. http://dx.doi.org/10.24912/adigama.v2i2.6581.
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One important element of the rule of law is that any government action must be based on law. The consequence is that laws must be made, implemented and enforced. Therefore, the state has the power to make laws to regulate all its activities. The Supreme Court as one of the highest judicial institutions in Indonesia has the status of all the courts and as the highest court for the four judicial institutions. The regulating and oversight functions are part of the functions of the Supreme Court, where the Supreme Court is authorized to issue further regulations in the form of Supreme Court Regulations and Supreme Court Circular Letters, where Supreme Court Regulations are regulating, whereas Supreme Court Circular Letters are as policy regulations. However, in practice the substance of the Supreme Court Circular is often not in accordance with its requirements, namely as a policy regulation. One of them is the Supreme Court Circular Letter Number 2 Year 2016 concerning Increasing Efficiency and Transparency in Handling Bankruptcy Cases and Delaying Obligations of Debt Payment in Courts. The writing of this thesis will discuss the authority of the Supreme Court in determining the substance of the Supreme Court Circular Number 2 of 2016 in terms of statutory knowledge. Judging from its nature, the research used is descriptive analysis using normative legal research.
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Alekseeva, Natalia I., and Aleksandr I. Svetlov. "The Supreme Court of the Russian Federation as Successor to the Supreme Court of the RSFSR: Historical and Legal Aspects." Rossijskoe pravosudie, no. 12 (November 17, 2023): 5–13. http://dx.doi.org/10.37399/issn2072-909x.2023.12.5-13.
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A democratic legal state is featured by a judicial system capable of effectively protecting the interests of citizens and organizations. In historical and legal studies, it is crucial to study how its main institutions were formed and developed. The study seeks to define the peculiarities of the legal and organizational foundations underlying the RSFSR Supreme Court’s creation and its subsequent development in modern Russia. This goal can only be reached by completing the following tasks: – To provide an overview of the historical and legal aspects of the activities of the domestic higher courts; – To describe the legal acts governing the structure of the highest judicial instance, both in the RSFSR and in modern Russia; – To explore how the competencies of the Supreme Court of the RSFSR and the Supreme Court of the Russian Federation have been evolved. This study analyzes the activities of the highest judicial bodies using a structural and functional approach; the historical and legal method and the analysis method are used to determine the scope of the highest courts’ authority and their significance at different stages of development. Through the analysis of the legal framework, a legal assessment is given to the activities of the Supreme Court of the RSFSR, and it is also concluded that the Supreme Court of the Russian Federation is its successor, since both courts in different historical eras were the highest judicial instance, whose function was to supervise lower courts and ensure uniformity of judicial practice.
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Kučs, Artūrs, and Jānis Pleps. "Constitutional Identity Between Riga and Strasbourg: The Courts’ Dialogue Developing Latvian Constitutional Law." Journal of the University of Latvia. Law 17 (October 27, 2024): 193–208. http://dx.doi.org/10.22364/jull.17.12.
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The article provides insight into the recent development of the concept of constitutional identity in the Latvian legal system. The authors mainly focus on the dialogue between the national highest courts, especially the Constitutional Court, and the European Court of Human Rights and the Court of Justice of the European Union, concerning the concept of constitutional identity. In recent years, both supranational courts have dealt with cases involving various aspects of Latvia’s constitutional identity and the respected constitutional values, norms, and principles that define it, as well as the relevant jurisprudence of the national highest courts. The case study of Latvia demonstrates that it is possible to guarantee a harmonious approach to implementing constitutional identity in light of the state’s international obligations as a member of the European Union and the Convention on Human Rights.
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Zelger, Bernadette. "The Right to Be Forgotten in the European Union: Towards a Uniform Approach?" Global Privacy Law Review 3, Issue 1 (2022): 19–28. http://dx.doi.org/10.54648/gplr2022003.
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This article aims to shed light on the application of the ‘right to be forgotten’ in the case law of the Court of Justice of the European Union (CJEU or Court) as well as the German Highest Courts, that is, the German Federal Constitutional Court (Bundesverfassungsgericht) and the German Federal Court of Justice (Bundesgerichtshof) from a fundamental rights perspective, thereby also considering the principles established by the European Court of Human Rights (ECtHR). While the CJEU in its decision in Google Spain (Case C-131/12) established a rebuttable presumption of supremacy in favour of the right to privacy, the German Highest Courts have ever since acknowledged the equal weight of fundamental rights in order to ensure a fair balancing of the latter against each other. However, considering the CJEU’s decision in GC and Others (Case C-136/17), the Court has arguably shifted its approach, thereby getting closer to an actual fair balancing of fundamental rights. It will be argued that such change in paradigm arguably provides for an approximation of the latter approaches in favour of the approach of the German Highest Courts. Such development is welcome, not only because it is in line with the principles established by the ECtHR and thus provides for a uniform standard of protection of fundamental rights within the EU, but also because of the existing lack of a hierarchy of the respective fundamental rights concerned which, as a consequence and matter of principle, obstructs the presumption of supremacy of one over the other. artificial intelligence, GDPR, digital humanism, rule of law, human dignity, constitutionalism
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Alam, Azhar, Ririn Tri Ratnasari, Yusuf Wisnu Nugroho, and Putri Melaniya Utami. "IDENTIFYING PROBLEMS AND SOLUTIONS OF THE E-COURT SYSTEM OF RELIGIOUS COURTS IN INDONESIA: AN ANALYTIC NETWORK PROCESS STUDY." UUM Journal of Legal Studies 15, no. 2 (2024): 645–74. http://dx.doi.org/10.32890/uumjls2024.15.2.10.
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Many nations are creating E-courts to simplify court operations. However, religious e-Courts take more work to execute. This study hasidentified religious court e-Court implementation issues and solutions using Delphi and ANP. It first employed Delphi and a literature review to interview experts face-to-face. Eight judges, I.T. workers, and attorneys from three religious court districts analysed the model using a priority scale with an Analytic Network Process (ANP). The study found that infrastructure or equipment from the application of the e-Court system is the main issue, with a geometric mean of 0.306, followed by Human Resources (0.262), the system (0.219), and regulation (0.213). Improving e-Court system regulation (0.850) and infrastructure were the primary solutions (0.770). This paper details cluster priority solutions and issues. This study suggests that the highest religious court authority focuses on infrastructure, human resources, e-Court operational systems, and associated legislations. The government must adopt the e-Court system and registration laws to encourage more active socialising. The study prioritises e-Court implementation issues in the religious courts of Indonesia.
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Permatasari, Yofi, Andika Jinaratana, and Rasji Rasji. "Proses Peninjauan Kembali Sebagai Wewenang Mahkamah Agung Berdasarkan Undang-Undang Kekuasaan Kehakiman." COMSERVA Indonesian Jurnal of Community Services and Development 2, no. 08 (2022): 1539–46. http://dx.doi.org/10.59141/comserva.v2i08.482.
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The Supreme Court is the highest state court of all jurisdictions (general courts, religious courts, military courts and state administrative courts), which in carrying out their work must be free from government influence and other influences. Based on article 20 paragraph (2) of the Judicial Powers Act which clarifies that the authority of the Supreme Court is to adjudicate at the cassation level, judicial review, or other authorities listed within the provisions of the law. In the case of a court decision at the cassation level, the parties concerned may be inquired to return it to the Supreme Court, unless something else stipulated by law. The decision requested to be re-appeared must take under consideration certain conditions and mechanisms decided by law. Against the decision of justice once more can not be done recovery again.
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Permatasari, Yofi, Andika Jinaratana, and Rasji Rasji. "Proses Peninjauan Kembali Sebagai Wewenang Mahkamah Agung Berdasarkan Undang-Undang Kekuasaan Kehakiman." COMSERVA : Jurnal Penelitian dan Pengabdian Masyarakat 2, no. 8 (2022): 1539–46. http://dx.doi.org/10.59141/comserva.v2i8.482.
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The Supreme Court is the highest state court of all jurisdictions (general courts, religious courts, military courts and state administrative courts), which in carrying out their work must be free from government influence and other influences. Based on article 20 paragraph (2) of the Judicial Powers Act which clarifies that the authority of the Supreme Court is to adjudicate at the cassation level, judicial review, or other authorities listed within the provisions of the law. In the case of a court decision at the cassation level, the parties concerned may be inquired to return it to the Supreme Court, unless something else stipulated by law. The decision requested to be re-appeared must take under consideration certain conditions and mechanisms decided by law. Against the decision of justice once more can not be done recovery again.
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Dyevre, Arthur. "European Integration and National Courts: Defending Sovereignty under Institutional Constraints?" European Constitutional Law Review 9, no. 1 (2013): 139–68. http://dx.doi.org/10.1017/s157401961200106x.
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Response of national highest courts to the ECJ's integrationist agenda – Logic behind qualified acceptance of EU law supremacy and direct effect – Several possible explanations for the observed inter-court variation: the courts’ type and organisation; their power to review legislative acts under domestic law; the rules governing access to the judicial forum; the monistic tradition of the legal system and the level of public support for European integration – Assessment of empirical validity of these hypotheses using a new dataset coding the doctrinal positions and institutional constraints of 34 domestic highest courts – Most correlations small – Only one variable – the power to review statutory legislation under national law – appears to have a significant influence on the courts’ doctrinal response to legal integration – Some support for the argument that the varying institutional constraints and incentives under which highest court judges operate shape the way they accommodate and reconcile two conflicting goals
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Sehnálek, David, and Václav Stehlík. "European “Judicial Monologue” of the Czech Constitutional Court – a Critical Review of its approach to the Preliminary Ruling Procedure." International and Comparative Law Review 19, no. 2 (2019): 181–99. http://dx.doi.org/10.2478/iclr-2019-0020.
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Summary The paper analyses the use of the preliminary ruling procedure by the Czech Constitutional Court and the attitude of this court towards the EU law. The approach of the Constitutional Court to the judicial dialog is also compared with some other European constitutional courts mainly with those who have a similar role in national judiciary or with those who were able to effectively take an advantage of the preliminary ruling procedure. The paper demonstrates that the Czech Constitutional Court took the position that seems to be unsustainable from a long time perspective as the reality of the current development favours the spirit of cooperation among European highest courts.
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Loulakis, Michael C., and Lauren P. McLaughlin. "Maryland’s Highest Court Upholds Economic Loss Rule." Civil Engineering Magazine Archive 87, no. 8 (2017): 14–15. http://dx.doi.org/10.1061/ciegag.0001221.
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Samuel Reich, Eugenie. "NASA privacy case goes to highest court." Nature 467, no. 7316 (2010): 644. http://dx.doi.org/10.1038/467644a.
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Bandopadhyay, Bipasha. "WOMEN PROPOSITION IN THE INDIAN JUDICIARY." International Journal of Research -GRANTHAALAYAH 6, no. 8 (2018): 114–29. http://dx.doi.org/10.29121/granthaalayah.v6.i8.2018.1405.
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There have been innumerable debates about gender in India over the years. Much of it includes women’s positing in society, their education, health, economic position, gender equality etc. What one can conclude from such discussions is that women have always held a certain paradoxical position in our developing country.
 The women position in Indian Judiciary has again been a debatable, topic which has henceforth never been into exact numerical representation. The women clan involved into the legal network of benches has been notably less. The women position has been the highest in the Supreme Court of India with ‘Nine’ Judges.
 The research work includes statistical data with the research of Vidhi legal policy. “The District Courts and the courts below them comprise the ‘lower’ or ‘subordinate’ judiciary. These courts lie under the administrative control of High Courts. Each judicial district in India has one District Court, below which lie civil and criminal courts of original jurisdiction,” the study notes, and finds that 71% judges in the subordinate judiciary across India are male.
 Motivation/Background: The women position has been the highest in the Supreme Court of India with ‘Nine’ Judges. The women clan involved into the legal network of benches has been notably less.
 Method: The fundamental protestant of the research are ‘women’, their count in the benches of Indian Judiciary, specifically over the High Courts and the Supreme Court. So what has been the reason behind such a low count of women?
 What has been the numerical denomination of women benches in High Courts and Supreme Courts over the past years?
 Results: Women were relegated to the household, and made to submit to the male-dominated patriarchal society, as has always been prevalent in our country. Indian women, who fought as equals with men in the nationalist struggle, were not given that free public space anymore. They became homemakers, and were mainly meant to build a strong home to support their men who were to build the newly independent country.
 Conclusions: Women were reduced to being second class citizens. The national female literacy rate was an alarmingly low 8.6%. The Gross Enrolment Ratio (GER) for girls was 24.8% at primary level and 4.6% at the upper primary level (in the 11-14 years age group). There existed insoluble social and cultural barriers to education of women and access to organized schooling.
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Lupu, Yonatan, and Erik Voeten. "Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights." British Journal of Political Science 42, no. 2 (2011): 413–39. http://dx.doi.org/10.1017/s0007123411000433.
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Why and how do international courts justify decisions with citations to their own case law? We argue that, like domestic review courts, international courts use precedent at least in part to convince ‘lower’ (domestic) courts of the legitimacy of judgements. Several empirical observations are consistent with this view, which are examined through a network analysis of European Court of Human Rights (ECtHR) citations. First, the Court cites precedent based on the legal issues in the case, not the country of origin. Second, the Court is more careful to embed judgements in its existing case law when the expected value of persuading domestic judges is highest. These findings contribute to a developing literature that suggests international and domestic review courts develop their authority in similar ways.
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Rovetta, Davide, and Agnieszka Smiatacz. "The German Federal Constitutional Court’s Judgment on the PSPP: What happened to the EU law Supremacy? Implications of the Judgment for the Trade and Customs Policy of the European Union." Global Trade and Customs Journal 15, Issue 9 (2020): 435–44. http://dx.doi.org/10.54648/gtcj2020083.
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The German Federal Court’s judgment on the Public Asset Purchasing Programme (PSPP) and the European Central Bank on the one hand calls into question the supremacy of European Union law. On the other hand, perhaps with some sound arguments, the mentioned Constitutional Court criticized the Court of Justice of the European Union (CJEU) for granting very limited judicial protection against acts like the challenged ones. It is the view of the German Federal Constitutional Court that the Court of Justice of the European Union by granting ‘wide discretion’ to the EU institutions, coupled with applying a ‘limited judicial review standard’, would not be able to guarantee appropriate judicial protection against EU law acts, which can be unlawful. We argue here that the reasoning as adopted in the judgment of the German Constitutional is not a new matter in the European Union, as the conflicts between the CJEU and the highest national courts did occur in the past. In fact, the judgment of the German Constitutional Court is a clear indication that according to some of the highest national courts, the unconditional supremacy of the EU law cannot be accepted. Instead, the scope of the interpreted EU measures should also align with the highest level of the national legal norms, such as constitutional norms or fundamental rights.We are also arguing that it would be up to the European Commission to re-establish the order via the infringement proceedings tool, yet that the Commission should be strongly endorsed among the EU Member States for taking such measures. It is, however, possible that the following matter can be resolved without restoring to such measures. From a substantive point of view, however, we have the regret of concluding that the German Federal Constitutional Court raised valid substantive arguments against the Court of Justice of the European Union. Finally we examine the potential scope of implications, which could occur in the trade and customs fields in the European Union. EU supremacy, PSPP, ECB, Constitutional courts, judicial review
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Zaitseva, Ekaterina. "Setting the Limits of Legal Regulation in the Interpretation Activity of Higher Judicial Courts." Vestnik of the St. Petersburg University of the Ministry of Internal Affairs of Russia 2024, no. 4 (2024): 20–30. https://doi.org/10.35750/2071-8284-2024-4-20-30.
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Introduction. The requirement to establish the limits of legal regulation arises in the implementation of various types of legal activities, such as law-making, interpretive and lawenforcement ones. A special place in setting the limits of legal regulation in the interpretation activity is occupied by the highest judicial courts – the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation. The aim of the research: to identify the peculiarities and significance of setting the limits of legal regulation in the interpretation activity of higher courts. The methods of research: general scientific (analysis, synthesis, induction, deduction, abstraction, analogy, system-structural, etc.) and private-scientific (comparative-legal, formal-legal, method of interpretation of legal norms, etc.). Results. The setting of the limits of legal regulation in the interpretative activity carried out by the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation has its own peculiarities both in relation to law-making activity and in relation to each other. The peculiarities of setting the limits of legal regulation in this type of activity of the highest judicial courts are their secondary nature and form of reflection (interpretative acts with normative content).Secondary defines the specificity of the criteria, which will differ significantly from the criteria for identifying and setting the limits of legal regulation in lawmaking activities. In the activities of the Constitutional Court of the Russian Federation, the criteria for establishing the limits of legal regulation are constitutional and legal values and (or) principles, while in the activities of the Supreme Court of the Russian Federation - exclusively the principles of law as they are enshrined and reflected in the current legislation. The requirement to establish the limits of legal regulation in the interpretative activity is conditioned by uncertainty as one of the properties of law and can be expressed in two forms: positive and negative. The vision of the limits of legal regulation by the highest judicial instances is important for both the legislator and the law enforcer.
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Nepyivoda, Vasyl, and Ivanna Nepyivoda. "The highest courts’ activities as a factor establishing precedent in the capacity of a source of Ukrainian law." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 365–69. http://dx.doi.org/10.36695/2219-5521.1.2020.73.
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The Ukrainian legislation does not apply the term «precedent». It is understandable for the legal system of the Romano-Germanic family. However, judicial precedents serve as de facto source of Ukrainian law. Activities of the highest judicial institutions, the European Court of Human Rights (ECtHR), the Constitutional Court of Ukraine and the Supreme Court, providing guidelines on application of particular legal rules are principal contributors for this state of affairs. The paper provides an overview of such activities in order to evaluate the process and its prospects.
 Covering the ECtHR activities, it is noted that the key elements of precedent law, such as application of stare decisis doctrine, ratio decidendi and obiter dictum components in decisions, are available there. Ukrainian courts are obliged by the statutes to apply ECtHR judgements and decisions in their own cases. Hence, the judicial precedents created by the ECtHR are the source of Ukrainian law. This discussion is followed by an analysis of the Constitutional Court of Ukraine decisions. It is concluded that been interpretative precedents they serve as a source of law as well. The third institution under examination, the Supreme Court, is empowered, inter alia, to formulate in its rulings guidelines for the application of law in a variety of situations. Since such rules are binding on the courts and other authorities, they have inherent features of the precedents and should be considered as a source of law.
 The article summarizes that Ukraine falls within the continental Europe’s general trend. It implies the significant growth of the role of the European and national courts as a rule-making institutions resulting in reinforcement of the precedent as a source of law and its formalization in terms of the civil law jurisdictions. In general, such process allowing prompt adaptation to the contemporary realities is positive. To facilitate it, the term «precedent» have to be introduced into the practical area. In particular, the role of judicial precedent as a source of law should be reflected in the Ukrainian procedural legislation.
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Fontanelli, Filippo. "Criminal Proceedings Against Albers." American Journal of International Law 107, no. 3 (2013): 632–38. http://dx.doi.org/10.5305/amerjintelaw.107.3.0632.
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In August 2012, the First Criminal Division of the Court of Cassation (Supreme Court or Court), the highest Italian domestic court, issued a judgment upholding Germany’s sovereign immunity from civil claims brought by Italian war crime victims against Paul Albers and eight others in the Italian courts (Albers). In so doing, the Court overruled its own earlier decisions and also reversed the judgment of April 20, 2011, by the Italian Military Court of Appeal (Military Court), which had upheld such claims relating to war crimes committed by German forces in Italy during World War II. With this ruling, the Court of Cassation put an end to its decade long effort to find an exception to the well-known rule of customary international law providing for sovereign immunity from foreign civil jurisdiction for actsjure imperii. Thisrevirementresulted from the Court’s decision to give effect to the judgment of the International Court of Justice (ICJ) inGermany v. Italy.
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Bucknell, D. "Australia's highest court raises the patent invalidity bar." Journal of Intellectual Property Law & Practice 2, no. 12 (2007): 786–87. http://dx.doi.org/10.1093/jiplp/jpm199.
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Dorozynski, A. "Highest French court awards compensation for "being born"." BMJ 323, no. 7326 (2001): 1384. http://dx.doi.org/10.1136/bmj.323.7326.1384a.
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Novak, Stjepan. "ULTRA VIRES ODLUKE SUDA EU-A: POČETAK SUDSKOG SUKOBA ILI SURADNJE." Pravni vjesnik 38, no. 2 (2022): 37–54. http://dx.doi.org/10.25234/pv/20189.
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This paper aims at exploring the decisions of the highest national courts that had declared the decisions of the CJEU ultra vires, without binding effect in their countries. The same as the Czech, Danish and German courts, the Constitutional Court of the Republic of Croatia (CCRC) could deliver such a decision according to Article 129 of the Constitution of the Republic of Croatia (CRC) and Article 104 of the Constitutional Act on the Constitutional Court of the Republic of Croatia (CACC). In the procedure, the CCRC should not only respect relevant provisions of CRC and CACC, but also the procedural rules of the CJEU, ensuring that the decision are indeed well founded and genuine. Although the CJEU’s reaction could easily be launching an infringement action against a member state whose court has delivered such a decision, the Union’s acceptance of these decisions seems to be a much more appropriate solution. Following the introductory considerations, the second part of the paper deals with the cases of the Czech Republic, Denmark and Germany, where the highest national courts have delivered such decisions. The third part of the paper researches into the CCRC’s possibilities for delivering such decisions. The research into possible reactions of the CJEU to decisions of the highest national courts declaring the CJEU decisions ultra vires is the subject of the fourth part of the paper emphasizing the decision that stands out as the most adequate in the context of constitutional dialogues between these courts and CJEU. Concluding remarks are given in the final part of the paper.
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Avdasheva, Svetlana B., and Svetlana V. Golovanova. "Concerted practice enforcement in Russia: How judicial review shapes the standards of evidence and number of enforcement targets." Russian Journal of Economics 6, no. 3 (2020): 239–57. http://dx.doi.org/10.32609/j.ruje.63.51277.
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A judicial review of the infringement decisions of the competition authority substantially affects the standard of evidence in competition enforcement as well as the structure of cases that the competition authority takes. Enforcement against concerted practice in Russia represents a case-study of interaction between commercial courts of first instance, the Highest Court, the competition authority as enforcer, market participants and the legislator to influence the standards of liability under investigation of concerted practice. We examine the judicial review of infringement decisions on concerted practice and track the evolution of legal definition and sufficiency of evidence in such cases. We show, first, that in Russian enforcement, the ability of the Highest Court to influence the criteria of first instance courts is limited (in contrast to the ability of the first instance court to influence the strategy of enforcement by the competition authority). Second, the increase in the burden of proof motivates the competition authority to refrain from an investigation of concerted practice, in accordance with the prediction of the model of the selection of enforcement target by reputation-maximizing authority.
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Avdasheva, Svetlana B., and Svetlana V. Golovanova. "Concerted practice enforcement in Russia: How judicial review shapes the standards of evidence and number of enforcement targets." Russian Journal of Economics 6, no. (3) (2020): 239–57. https://doi.org/10.32609/j.ruje.63.51277.
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A judicial review of the infringement decisions of the competition authority substantially affects the standard of evidence in competition enforcement as well as the structure of cases that the competition authority takes. Enforcement against concerted practice in Russia represents a case-study of interaction between commercial courts of first instance, the Highest Court, the competition authority as enforcer, market participants and the legislator to influence the standards of liability under investigation of concerted practice. We examine the judicial review of infringement decisions on concerted practice and track the evolution of legal definition and sufficiency of evidence in such cases. We show, first, that in Russian enforcement, the ability of the Highest Court to influence the criteria of first instance courts is limited (in contrast to the ability of the first instance court to influence the strategy of enforcement by the competition authority). Second, the increase in the burden of proof motivates the competition authority to refrain from an investigation of concerted practice, in accordance with the prediction of the model of the selection of enforcement target by reputation-maximizing authority.
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Koroteev, Kirill. "Are Russian Courts Capable of Creating Precedents? Overcoming Inconsistency in Case Law." Review of Central and East European Law 38, no. 3-4 (2013): 341–62. http://dx.doi.org/10.1163/15730352-00000007.
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This article discusses the issue of the consistency of judicial decisions in two of Russia’s highest courts: the Supreme Court and the Higher Arbitrazh Court. The President of the latter has been especially vocal in advocating for the “introduction of the doctrine of precedent into Russian law”. This idea, understood as the power to bind lower courts by judgments in individual cases, has even received support from the RF Constitutional Court. However, this article stresses that before discussing whether there may—or may not—be a place for judicial precedent in Russia, the judgments of the two highest courts must be consistent. We examine one particular issue that lends itself to a number of possible solutions: the judicial review of internal circulars from federal bodies of executive power. The case law of the two courts has been marked by U-turns in dealing with this matter. They sometimes have issued completely different judgments in similar cases over a short period of time, while failing to explain why their rulings differ from earlier judgments. The author of the present article argues that this inconsistency gives witness to a number of fundamental flaws in judicial decisionmaking in Russia and undermines any discourse in support of precedent in Russia.
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Novak, Marko. "Dialogue between the Slovenian Highest Courts and the Court of Justice of the European Union." Central European Journal of Comparative Law 4, no. 2 (2023): 201–14. http://dx.doi.org/10.47078/2023.2.201-214.
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The relationship between European Union (EU) law and national Slovenian law progressed across three different stages starting from the beginning of this century to date, as discussed by EU and Slovenian legal theorists. The first one, just before Slovenia’s entry into the EU, considered the EU an international organisation and EU law a type of public international law. It was dismissed even before Slovenia joined the EU, with an amendment to the Constitution, and was succeeded by the second, supranationalist, view that required maximum restraint by national courts while dealing with EU issues. Finally, about a decade ago, the third pluralist view of EU law vis-à-vis national law emerged, calling the particularly highest national courts to enter a more critical dialogue with the Court of Justice of the European Union (CJEU). Although Slovenian theorists have been actively discussing the relationship between EU and national law before and immediately after Slovenia joined the EU, it seems that practising lawyers and judges needed time to adapt to the new law. Finally, in 2009, the first reference for a preliminary ruling was made by Slovenian courts. Soon after, the Slovenian Supreme Court made its first preliminary ruling reference and, in nearly 20 years since, proved itself to be the most frequent interlocutor with the CJEU from Slovenia. It regularly cites CJEU cases in its case laws, and demands that lower courts follow them wherever appropriate. From the highest national courts in Slovenia, the Constitutional Court joined the dialogue with the CJEU last. It has made four preliminary ruling references to the CJEU and demonstrated restraint vis-à-vis reviewing legal issues touching upon EU law. The legal culture (including public opinion) in Slovenia has predominantly been pro-EU. This applies to the internal legal culture, namely lawyers who support liberal democratic values such as the rule of law, human rights, and democracy. As long as the EU remains dedicated to these values, in such an environment, the highest Slovenian courts are not expected to show a bolder attitude vis-à-vis CJEU case law
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Muraviov, Victor. "UKRAINIAN COURTS AND THE PROTECTION OF HUMAN RIGHTS." Actual Problems of International Relations, no. 128 (2016): 68–75. http://dx.doi.org/10.17721/apmv.2016.128.0.68-75.
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The article is focused on the interaction between the Ukrainian courts of general jurisdiction and the Constitutional Court of Ukraine in the area of the protection of human rights. There is emphasized that their independent functioning does not provide for the efficient protection of individual rights and freedoms and significantly increases the number of the judicial recourses of the Ukrainian citizens to the European Court of Human Rights. Particular attention is paid to the role of the Constitutional Court of Ukraine in the protection of human rights, which combines the functions of the constitutional control and constitutional supervision. Its activities are focused on the official interpretation on the Constitution of Ukraine. Attention is paid to the list those who may bring the actions before the Constitutional Court, which includes apart from the state bodies the natural and legal persons. The is mentioning of the issues on initiating of proceedings before the Court. Also broadly is analyzed Constitutional Court’ activities concerning the interpretation of the Constitution in the light of the European Convention on Human Rights and other international agreements dealing with the protection of human rights. The article stresses on the contribution of other Ukrainian courts in the affirmation of the constitutional concept of the protection of human rights and freedoms in Ukraine. The majority of resolutions of such highest judicial body in the system of courts of general jurisdiction as the Supreme Court of Ukraine concern the judgments of the European Court of Human Rights. As it is emphasized in the article the independent functioning on the Constitutional Court and the courts of general jurisdiction does not provide for the cooperation between both branches of courts. Courts of general jurisdiction feel free as to the appeal to the Constitutional Court. Even when such appeals are directed to Constitutional Court the decisions of the letter are not binding to the courts of general jurisdiction. Special attention is paid to the introduction of the institute of constitutional complaint and its positive effect on the judicial mechanism of the protection of human rights in Ukraine.
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Mujuzi, Jamil Ddamulira. "The Admissibility of Evidence Obtained through Human Rights Violations in Ghana: Analysing Cubagee v Asare and Others (NO. J6/04/2017) [2018] GHASC 14 (28 February 2018)." African Journal of Legal Studies 12, no. 1 (2019): 81–105. http://dx.doi.org/10.1163/17087384-12340044.
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Abstract The Constitution of Ghana, unlike those of other African countries such as Zimbabwe, Kenya, and South Africa is silent on the issue of the admissibility of evidence obtained through human rights violations. Jurisprudence from Ghana demonstrates that although there had been cases in which the High Court and the Court of Appeal briefly dealt with this type of evidence, the Supreme Court, the highest court in Ghana, had not expressed an opinion on this issue until recently. In February 2018, in the case of Cubagee v Asare and Others, the Supreme Court laid down the criteria that Ghanaian courts have to use in determining the admissibility of evidence obtained through human rights violations. In this article, the author argues that much as this is an important decision, the Supreme Court left some issues unresolved and there is still room for improvement.
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Mujuzi, Jamil Ddamulira. "Bail pending appeal in Uganda." South African Journal of Criminal Justice 34, no. 2 (2021): 307–38. http://dx.doi.org/10.47348/sacj/v34/i2a7.
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Article 23(6) of the Constitution of Uganda (1995) provides that an arrested person is ‘entitled’ to apply to court for bail. However, it is silent on the issue of bail pending appeal. Bail pending appeal is provided for in the Magistrates Courts Act, the Judicature Act and the Criminal Procedure Code Act. Although the Supreme Court, the highest court in Uganda, provided criteria for granting bail pending appeal, some high court and Court of Appeal judges, who are bound by the decisions of the Supreme Court, have ignored these criteria. There are conflicting high court, Court of Appeal and Supreme Court judgments on the questions of whether art 23(6) is applicable to bail pending appeal and whether the right to be presumed innocent is applicable to a person who is applying for bail pending appeal. There are notable controversies in the rich jurisprudence of the Supreme Court on bail pending appeal. In October 2020, one of the justices of the Supreme Court held that the Supreme Court does not have the jurisdiction to grant bail pending appeal and that Rule 6(2)(a), which empowers the Supreme Court to grant bail pending appeal, is unconstitutional. In November 2020, another Supreme Court justice granted an applicant bail pending appeal without even referring to her colleague’s decision which held that the court did not have jurisdiction to grant bail pending appeal. This article examines the jurisprudence developed by the courts of Uganda on the subject. The discussion focuses on the following issues: courts with jurisdiction to grant bail pending appeal; the right to bail pending appeal; the presumption of innocence and bail pending appeal; and conditions for granting bail pending appeal.
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Bipasha, Bandopadhyay. "WOMEN PROPOSITION IN THE INDIAN JUDICIARY." International Journal of Research - Granthaalayah 6, no. 8 (2018): 114–29. https://doi.org/10.5281/zenodo.1403832.
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There have been innumerable debates about gender in India over the years. Much of it includes women’s positing in society, their education, health, economic position, gender equality etc. What one can conclude from such discussions is that women have always held a certain paradoxical position in our developing country. The women position in Indian Judiciary has again been a debatable, topic which has henceforth never been into exact numerical representation. The women clan involved into the legal network of benches has been notably less. The women position has been the highest in the Supreme Court of India with ‘Nine’ Judges. The research work includes statistical data with the research of Vidhi legal policy. “The District Courts and the courts below them comprise the ‘lower’ or ‘subordinate’ judiciary. These courts lie under the administrative control of High Courts. Each judicial district in India has one District Court, below which lie civil and criminal courts of original jurisdiction,” the study notes, and finds that 71% judges in the subordinate judiciary across India are male. Motivation/Background: The women position has been the highest in the Supreme Court of India with ‘Nine’ Judges. The women clan involved into the legal network of benches has been notably less.
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Martyniuk, O. V., and Y. V. Hotsuliak. "Establishment of the right to judicial protection in Ukraine (IX–XIV centuries)." Uzhhorod National University Herald. Series: Law 1, no. 86 (2025): 45–51. https://doi.org/10.24144/2307-3322.2024.86.1.6.
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The article is devoted to the study of the process of formation of the right to judicial protection on the territory of Ukraine during the 9th–14th centuries. The authors established that during the emergence of statehood on the territory of modern Ukraine, a single and universal court for all social strata did not exist, and the institution of the court was not separated from other public authorities. At the beginning of the XI century through judicial reform, all courts were divided into public (state) and church. Public courts included princely, secular and public courts, while the system of ecclesiastical courts was made up of relevant instances at monasteries, dioceses and other church institutions. The jurisdiction of public courts extended to the entire free population of the state, except for the clergy. The authors draw attention to the fact that the jurisdiction of the princely court formally extended to the entire population of the state, but de facto it considered cases where at least one of the parties were representatives of the feudal nobility of that time. Therefore, representatives of the highest social strata could fully exercise the right to judicial protection in the princely court. Under certain conditions, the right to judicial protection in the princely court could be exercised by representatives of all strata of the population (except personally dependent), but in such cases, the princely court probably acted as an appellate authority regarding decisions made primarily by public courts. The authors conclude that only the prince and the city community could exercise the right to judicial protection in the peer court. The most authoritative judicial institution among the population was the public court, and the right to legal protection could be exercised by all residents of the community without exception within the so-called «judicial district» (territory of the parish). In church courts, the clergy had a comprehensive right to appeal to the court of the local church hierarch or the metropolitan court. The secular population could exercise their right to judicial protection in the courts of ecclesiastical jurisdiction by appealing to the court of the local church hierarch.
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Moura de Oliveira, Tassiana, José Mário Wanderley Gomes Neto, and Ana Tereza Duarte de Lima Barros. "HIGHEST CASTE ON THE DEFENDANT'S SEAT:." Direito, Processo e Cidadania 2, no. 2 (2023): 28–49. http://dx.doi.org/10.25247/2764-8907.2023.v2n2.p28-49.
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After the end of colonial periods, many Latin American countries struggled with authoritarian regimes. Most of these countries experienced waves of authoritarianism followed by democratic moments during the last century. For that reason, democratic institutions were built under the imminent threat of a coup d’état. To ensure that presidents would not be persecuted for political reasons, Brazil has established that its Supreme Court (Supremo Tribunal Federal) would be the only court with powers to judge presidents (except impeachment cases), federal deputies, and senators, amongst other higher authorities. Based on the Brazilian example, this work seeks to understand if other Latin American countries also offer the same protection to their authorities and why. What are the factors that influence the existence of jurisdictional privilege? Furthermore, what does influence the extent of the privilege given to more or fewer authorities? This research used a multi-method approach to present and analyze the institutional phenomenon of jurisdictional privilege. First of all, exploratory and descriptive comparative research was carried out from Latin American constitutional texts to identify where jurisdictional privileges are present and their respective amounts. Then, a quantitative analysis applied statistical tests to the variables included in the research database, to check possible correlations between institutional quality indexes and the variation in the number of representative categories of political authorities benefiting from the privilege of jurisdiction. Finally, this work performed a qualitative comparative analysis (QCA) to describe the logical relationship between the variables in terms of necessary and sufficient conditions for the occurrence of the phenomenon under study. Keywords: Latin America; institutional comparative analysis; Supreme Courts; jurisdictional privilege; empirical approach.
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Sari, Yusmita, and Stanislaus Atalim. "KONSISTENSI PENGADILAN NEGERI DALAM MEMUTUSKAN WANPRESTASI DALAM PERJANJIAN KERJA (PUTUSAN KASASI NOMOR 1706/PDT/2013 DAN PUTUSAN KASASI NOMOR 322/PDT.G/2015/PN.JKT.TIM)." Jurnal Hukum Adigama 1, no. 1 (2018): 711. http://dx.doi.org/10.24912/adigama.v1i1.2164.
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A working relationship between the employers with workers or labourers often inconsistent like what to expected, so often cause of disputes. The purpose of this journal is to know how the Consistency of the District Court in Deciding Default in the Employment Agreement based on concideration and decisions from judge of verdict of appeal number 1706/PDT/2013 and verdict of appeal number 322/Pdt.G/2015/PN.Jkt.Tim. This study is a normative legal research methods supported by some interview is expected to help answer the problem of this research. the result of this study are : first the service bond agreement can not be equalized with the employment agreement. because they both agreements have different elements. the service bond agreement is an ordinary civil agreements, not regulated by law no 13 of 2003 about employment.second, Industrial relation court is a special court in general court. They both have a difference of authority. Industrial relations courts are authorized to adjudicate disputes from employment agreements while state courts are authorized to adjudicate disputes from service bond agreements. Appellate court as the highest court of the country must prioritize justice and legal certainty and must explicitly decide on the actual decision.
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Mielnik, Hubert. "Character of the legal theses issued by the polish (non-german) courts of appeal in the General Government during the second world war." Studia nad Autorytaryzmem i Totalitaryzmem 42, no. 3 (2021): 131–51. http://dx.doi.org/10.19195/2300-7249.42.3.7.
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In the General Government, in the area of the common judiciary the Polish (non-German) judiciary was created. This judiciary was based on the common judiciary of the Second Polish Republic. The most important change introduced to the pre-war judicial system was the liquidation of the Supreme Court. Despite the liquidation of the highest court, some of its powers were maintained in the General Government. An example of such maintained competence were the legal theses of the courts of appeal, whose purpose was to clarify legal issues and unify court rulings. The aim of the article is to determine the nature of the legal theses and to compare this institution with legal principles issued by the pre-war Supreme Court.
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Vovk, Y. Ye. "Establishment and activity of the State Senate of the Ukrainian State in 1918." Analytical and Comparative Jurisprudence, no. 6 (December 16, 2024): 35–40. https://doi.org/10.24144/2788-6018.2024.06.4.
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The article examines the process of formation and operation of the State Senate of the Ukrainian State in 1918 on the basis of archival materials. It is noted that at the initial stage of its activity, the highest judicial body of the Ukrainian State was the General Court, which was established during the period of the Central Rada. Skoropadskyi questioned the expediency of establishing the General Court and subsequently passed a law establishing the State Senate as the highest court in the judicial system of the Ukrainian State. The scope of the State Senate’s competence and the procedure for proceedings were largely regulated by the legislation of the former Russian Empire. The highest judicial body consisted of senators and the President of the Senate. The State Senate was divided into administrative, civil and criminal general courts. The law established qualification requirements for candidates for the position of senator, including a law degree and at least 15 years of work experience. Senators were prohibited from holding positions in the executive branch, but in practice there were cases of combining positions. They were allowed to engage in teaching activities. All senators and presidents of general courts were appointed by order of P. Skopopadskyi on the proposal of the Minister of Justice. If a criminal case was initiated against a senator, he was temporarily suspended from performing his duties. It was found that a significant number of former judges of the General Court were appointed to the State Senate. In general, the highest judicial body is staffed by qualified professionals. The language of official business documents in the State Senate was both Russian and Ukrainian. In some cases, office work was conducted in both languages in parallel. Sometimes only Russian was used. To ensure the successful functioning of the State Senate, the staff of the chancellery was approved. All documents of the State Senate were duly registered. The structure of the offices of the general courts was determined by temporary instructions approved by the prosecutors of the respective courts. Based on the analysis of archival materials, the author establishes the number of criminal, civil and administrative cases which were submitted to the State Senate and which were resolved.
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Bonneau, Chris W. "What Price Justice(s)? Understanding Campaign Spending in State Supreme Court Elections." State Politics & Policy Quarterly 5, no. 2 (2005): 107–25. http://dx.doi.org/10.1177/153244000500500201.
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Among the least-researched American elections are those for seats on the states' supreme courts, arguably some of the most important political positions in the states. We know not only that campaign spending in these races has increased sharply in the past 20 years but also that there is great variation in spending among them. What factors cause campaign spending to vary among races for the states' highest courts? And what can an understanding of campaign spending in these races tell us about campaign spending for other offices? I use data from 281 state supreme court races in 21 states from 1990 to 2000 to answer these questions. I find that state supreme court campaign spending is driven by the characteristics of the race, institutional arrangements, and the electoral and state supreme court context.
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Muhammad, Hasanuddin. "Efektifitas dan Efisiensi Penyelesaian Sengketa Ekonomi Syariah di Peradilan Agama." Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi Dan Keagamaan 7, no. 1 (2024): 33. http://dx.doi.org/10.29300/mzn.v7i1.2561.
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The Supreme Court, as the highest judicial body, should ensure the realization of effective and efficient justice with the principles of simplicity, speed, and affordability. This study assesses the extent to which Supreme Court Regulations govern and achieve an effective and efficient judicial system in resolving Islamic economic disputes within religious courts. Employing a qualitative approach with a normative juridical perspective, it was found that the Supreme Court has enacted various regulations to enhance the efficiency of the judiciary. These include Supreme Court Regulation Number 2 of 2015 on the procedure for simple lawsuit resolution, Supreme Court Regulation Number 14 of 2016 on Procedures for Settling Sharia Economic Disputes, Regulation of the Supreme Court Number 5 of 2016 concerning Sharia Economic Judge Certification, Supreme Court Regulation 04 of 2019 amending Supreme Court Regulation Number 02 of 2015 on Simple Settlement Procedures, and Supreme Court Regulation 01 of 2019 on Electronic Case and Trial Administration. These regulations aim to streamline the resolution of Sharia economic disputes by facilitating simple lawsuit procedures, ensuring the competence of judges in Sharia economics through certification, and implementing electronic judicial services.
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Flood, C. M. "Supreme disagreement: The highest court affirms an empty right." Canadian Medical Association Journal 173, no. 2 (2005): 142–43. http://dx.doi.org/10.1503/cmaj.050759.
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Olijnyk, Yurij. "Procedure for consideration of cases in the Court of Appeal of Lviv (1919–1939s)." Law Review of Kyiv University of Law, no. 2 (August 10, 2020): 77–83. http://dx.doi.org/10.36695/2219-5521.2.2020.13.
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The acquisition of the Polish independence state in November 1918 was a decisive condition for the establishment and developmentof the Polish judicial system and legal proceedings. It is noted that the functioning of the institution of the judiciary in Polanddirectly depended on legal traditions, social changes, the level of legal culture and the influence of the legislation of the countries thatat one time participated in the division of the Second Commonwealth of Poland. The restored Polish state from the very first days of its existence began the activities aimed at the formation of judicial authorities, for some time foreign sources of law (Austrian, German,and Russian) remained in force in its territory. During the interwar period in the Polish state a special mission was assigned to the courts,because they were the spokesman for social justice. The role of courts played an important role in their structure and leadership. Thestructure and management of the appellate and district courts in the judicial system of the Second Commonwealth of Poland and thecharacteristic features of the structure and leadership of the Court of Appeal of Lviv have been analyzed.The Court of Appeals in Lviv was responsible for administering in its judicial district, carrying out inspections in lower courts,and bringing to justice judges and court officials through disciplinary violations, organization and reorganization of the courts of firstand second instance. The Court of Appeals also dealt with the nomination and transfer of judges from one court to another, followedthe law by lower courts, regulated the territory of the judicial districts (the final decision was nevertheless at the highest court in Warsawand the Ministry of Justice), took reports on the number of cases considered by the lower courts authoritiesThe article analyzes the procedure for consideration of cases in the Court of Appeal of Lviv (1919-1939s). It is noted that thecase was considered by the Court of Appeal according to the rules established for consideration of the case by the court of first instance(county or district). The Court of Appeal in Lviv reviewed the case in full, or focused only on a separate part of it, but only within thelimits of the complaint filed by a party in the process. The appellate court considered the case on the merits and made a decision, changingthe decision of the lower court, or leaving it unchanged.
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Allakhverdiev, Ibragim. "An attempt to substantiate the balanced model for interpretation of contra legem." Право и политика, no. 12 (December 2021): 69–88. http://dx.doi.org/10.7256/2454-0706.2021.12.36659.
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This article examines the admissibility of interpretation contra legem, which the courts resort to in specific legal cases. The author reveals the reasons for the ongoing debates on admissibility of interpretation of contra legem, presents arguments of the opponents of such interpretation, and conducts their critical analysis. Leaning on the doctrinal sources and judicial practice, the author determines the conditions that allow the courts resorting to the interpretation of contra legem, as well as offers its balanced model for reconciling the requirements of legal certainty and justice. The relevance of this research lies in the lack of theoretical development of the problematic of interpretation of contra legem which is commonly applies in practice of the highest courts of the Russian Federation. The conclusion is drawn that the admissibility of interpretation of contra legem is predetermined by the recognition of nonidentity of law and normative act. However, due to the fact that the requirement of legal certainty is one of the aspects of justice, the courts may resort to the interpretation of contra legem in determination of the teleological gaps in the normative act (when literal compliance with its prescriptions leads to unjust and unreasonable decision), eliminating them based on the principles of law (both general legal and sectoral). The theoretical conclusions are supported by the examples from the practice of the highest courts of the Russian Federation – the Constitutional Court, the Supreme Court, and the Supreme Arbitration Court. The use of the balances model of interpretation of contra legem can be traces in the decisions of these courts.
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Bothe, Michael. "THE DECISION OF THE ITALIAN CONSTITUTIONAL COURT CONCERNING THE JURISDICTIONAL IMMUNITIES OF GERMANY." Italian Yearbook of International Law Online 24, no. 1 (2015): 25–35. http://dx.doi.org/10.1163/22116133-90000071a.
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In judgment No. 238/2014 the Italian Constitutional Court held that the Italian Constitution required Italian courts to disregard the decision of the International Court of Justice (ICJ) upholding Germany’s jurisdictional immunity and to continue proceedings against Germany concerning actions for damages arising out of war crimes and crimes against humanity committed by Germany during the Second World War. The Court balanced the constitutional value of respect for international law, demanding respect for the binding force of the ICJ judgment, against the value of enforcing fundamental rights, and gave precedence to the latter. This type of balancing has also been employed by the Court of Justice of the European Union and by the German Constitutional Court. Where the highest national courts prefer constitutional values over States’ international obligations, they cause a dilemma for other State organs as from the international perspective no State may rely on its internal law to justify non-performance of international norms. Yet the decision of the Italian Constitutional Court has attempted to close a “justice gap” in the regulation of the treatment of victims of international crimes committed during the Second World War. It is therefore hoped that the two governments follow the admonition of the ICJ to reopen negotiations.
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Gindes, Daniel. "Judicial Postponement of Death Recognition: The Tragic Case of Mary O'Connor." American Journal of Law & Medicine 15, no. 2-3 (1989): 301–31. http://dx.doi.org/10.1017/s0098858800009850.
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A recent New York Court of Appeals decision seriously impedes the ability of incompetent patients to control their medical care. In the case of Mary O'Connor, the court virtually eliminated an incompetent's rights to bodily integrity and privacy. The court relied on formalistic evidentiary arguments to vitiate the patient's refusal of death-prolonging treatment. This Case Comment examines both the doctrine and policy underlying the O'Connor decision, suggesting that the court erred in its holding and reasoning.An alternative framework is presented, arguing that courts should honor competently expressed patient decisions concerning medical treatment. New York's highest court, instead, posited an incompetent patient who becomes competent for a moment to render a decision. This legal fiction is nothing more than a thinly masked technique for imposition of the judges’ values on the patient. This Case Comment argues that in the absence of clear direction from the patient, family and loved ones generally should make care decisions for the patient.
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Mielnik, Hubert. "Legal Theses of the Kraków Court of Appeal in 1940–1943." Krakowskie Studia z Historii Państwa i Prawa 14, no. 1 (2021): 59–82. http://dx.doi.org/10.4467/20844131ks.21.004.13271.
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The German occupiers abolished the Supreme Court in the General Government. In the Polish (non-German) judiciary sector, there was no court of the highest instance to ensure the unification of jurisprudence. The competence to ensure the uniformity of jurisprudence and resolve existing doubts and legal issues was transferred to the courts of appeal. The objective of the present article was to demonstrate the procedure and practice of issuing legal theses by the Court of Appeal in Kraków. The article also presents changes in the composition of the judges and the territorial jurisdiction of the Kraków Court of Appeal. Archival sources constitute the source basis of the work. We also resorted to the latest subject literature. The work is based mainly on the analysis of archival sources and legal acts, so the scientific methods typical of the history of law were applied.
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Muhammad, Hasanuddin. "EFEKTIFITAS DAN EFISIENSI PENYELESAIAN SENGKETA EKONOMI SYARIAH DI PERADILAN AGAMA." Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi Dan Keagamaan 7, no. 1 (2020): 35. http://dx.doi.org/10.29300/mzn.v7i1.3192.
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The era of the industrial revolution 4.0 has brought great changes to the human. The Supreme Court as the highest judicial body should embody effective and efficient justice with the simple, fast, and low cost princeples. This study examines the extent to which the Supreme Court Regulations regulate and embody an effective and efficient judicial system in resolving Islamic economic disputes in religious courts. This type of research is qualitative with a normative juridical approach. As a result, the Supreme Court has issued several rules as an effort to embody an effective and efficient judiciary, namely Supreme Court Regulation Number 2 of 2015 concerning the procedure for simple lawsuit resolution, Supreme Court Regulation Number 14 of 2016 concerning Procedures for Settling Sharia Economic Disputes, Regulation of the Supreme Court Number 5 year 2016 concerning Sharia Economic Judge Certification, Supreme Court Regulation 04 of 2019 concerning amendment to Supreme Court Regulation Number 02 of 2015 concerning Simple Settlement Procedures and Supreme Court Regulations 01 of 2019 concerning Electronic Case and Trial Administration. It regulates efforts to embody the resolution for Sharia economic disputes that are effective and efficient, namely through a simple lawsuit, judges must have competence in the field of sharia economics by issuing a sharia economic judge certification policy and providing judicial services electronically.
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Piątek, Wojciech. "Access to the Highest Administrative Courts: between the Right of an Individual to Have a Case Heard and the Right of a Court to Hear Selected Cases." Central European Public Administration Review 18, no. 1 (2020): 1–23. http://dx.doi.org/10.17573/cepar.2020.1.01.
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Hearing a dispute by a court in a reasonable time is one of the crucial conditions for the existence of an effective judicial system as imposed by the European law and national legal orders. That requirement is contrary to the expectations of individuals to question the judgments of lower courts before the courts of the highest instance. The purpose of this article is to explore the question of values that should be taken into consideration by legislatures in a process of determining the access of administrative cases to the highest courts. The analysis is based on the example of Austrian and Polish legal systems. In both countries, there is a separate two-instance administrative judiciary. However, the conditions of the access to the Supreme Administrative Courts differ. In Poland, that access is unlimited, considering the constitutional principle of two-instance court proceedings. In Austria, the right in question is limited to cases deemed significant for broader interest, i.e. not only the one of the parties to the proceeding. An analysis of the normative consequences of each solution leads to the conclusion that procedural limitations concerning the access to the highest courts foster their role in preserving the uniformity of the case law and ensuring a high standard of its interpretation. A system with no limitations does not guarantee the determination of a concrete dispute in a reasonable time and thus cannot be considered effective.