Journal articles on the topic 'Social rights of judges'
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1
Іншин, М. І. "ENSURING THE EMPLOYMENT RIGHTS OF JUDGES AS A PREREQUISITE FOR THEIR SOCIAL SECURITY." Juridical science, no. 1(103) (February 19, 2020): 422–29. http://dx.doi.org/10.32844/2222-5374-2020-103-1.51.
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The article forms an actual scientific idea about the impact of ensuring the labor rights of judges in Ukraine on the level of their social security. It is determined that the level of social security of judges depends on the quality of ensuring their labor rights, because such rights exist for sustainable human development, that is, there is a satisfaction of the needs for social benefits that are produced in the field of labor. Rights exist to prevent the occurrence of situations in which an employee experiences humiliation of his human dignity, restriction of his freedom, as well as other human rights. The rights are regulated by general and special rules, considering the social risks common to all employees and special for judges. Such regulation is carried out to reduce the negative impact on judges. This regulation is subject to the principle of legality. Labor rights are ensured and protected at the expense of the State Budget of Ukraine. They are guaranteed by the State at the national level and by international governmental organizations at the international level. The labor rights of judges can be protected both in the general order, considering certain exceptions, and with the help of special forms of protection that are provided only for judges. The level of implementation and protection of the labor rights of judges determines the level of civilization of society. It is proved that the peculiarities of the labor rights of judges and their impact on the social security of judges require the state to create favorable conditions for their provision. In cases where the State ignores such a duty and the employment rights of a judge are not sufficiently ensured, the State concerned cannot be considered social, legal, and democratic. The lack of guarantees for the implementation of the labor rights of judges, which is currently happening in Ukraine, negatively affects the independence of the courts and the proper administration of justice in the country.
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Turatmiyah, Sri, Muhammad Syaifuddin, Annalisa Yahanan, Febrian Febrian, and Arfianna Novera. "Does Judge Has Ex Officio Rights In determining Mut’ah and Iddah?" Sriwijaya Law Review 3, no. 2 (July 31, 2019): 187. http://dx.doi.org/10.28946/slrev.vol3.iss2.249.pp187-198.
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The research aims to analyze the factors why the Religious Court judges do not use their ex officio rights in divorce lawsuits. In divorce case, the defendant who does not have any knowledge about divorce laws generally does not ask for mut'ah and iddah to the plaintiff. The question of this research is what factors caused the judges of Religious Court in South Sumatera, especially Palembang and Kayuagung do not exercise the ex officio rights in determining the quality of mut'ah and iddah due to divorce. This research used normative juridical method with empirical juridical through statute approach and case approach. The results show that during 2017 the Religious Court of Palembang used only once its ex officio rightwhile the Religious Court of Kayuagung did it three times. The reasons are: the judges grant only the petitum of the petitioner solely for the reason that the defendant party does not file a counter-claim, in which judge’s reasoning is based on Article 178 paragraph (3) HIR/189 paragraph (3) RBG that the judge is prohibited from giving a verdict which is more than being petitioned known as the ultra petitum partium, the wife's side as the defendant never attended the hearing, the wife never gave an answer or response to the argument in the application of the plaintiff, the wife was not present in the verdict (verstek), the wife of nusyuz, (does not do her duties as wife) the husband is economically insufficient, the wife does not want to demand the maintenance of mut'ah and iddah, the judge sees the causality. This study suggests that judges should exercise their ex officio rights and give advice as well sufficient information to the wife in order to fulfill her rights and interests as the result of the divorce.
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Adler, Stephen. "The Role of Judges in the Implementation of Social Policies." International Journal of Comparative Labour Law and Industrial Relations 18, Issue 4 (December 1, 2002): 341–76. http://dx.doi.org/10.54648/5113458.
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This article, based upon the author's general report to the 9th Meeting of European Labour Court Judges (ILO, Geneva, December 2001), discusses the role of Labour Court judges and Labour Courts in the implementation and development of social policy. After surveying the legal sources of social policy and a number of Labour Court ‘models’, comparative experience in various national systems is described and commented upon. The author contends that judges play an important role in the development of social policy, and suggests that, when dealing with issues in this field, Labour Court judges adhere to an agenda which differs from that of judges in the general courts. It is argued that the personal values, beliefs and experiences of judges influence their decisions regarding social policy issues, so that it is important for judges to recognize and articulate the factors influencing their decisions on such matters. To assist with this, the influence of the judge on social policy should be considered when individuals are appointed and trained to exercise their judicial role. The author further argues that Labour Courts can only make a significant contribution to the development of social policy if there is reasonable access to those courts, and that among the factors capable of furthering such access are the efficiency of, and the attitudes displayed by, Labour Court judges themselves. Finally, it is observed that, in an era of decreasing union density, Labour Courts increasingly provide the principal route for workers to enforce their rights, thereby underlining the key role of Labour Court judges in developing social law and furthering access to industrial justice as an important means for the protection of rights at work.
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Баранков, Владимир, and Vladimir Barankov. "Guarantees for Judges at Work: Allowance and Pension Coverage for Retired Judges." Journal of Russian Law 4, no. 5 (May 4, 2016): 0. http://dx.doi.org/10.12737/19232.
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This scientific article deals with social guarantees for judges at work. Social support for retired judges forms an integral part of social security and is one of the labor guarantees of the rights for judges. The article tackles the question of financial security of judges, which is one of the guarantees of the independence of judges. The subject of the study is the special status of retired judges, which guarantees proper administration of justice, and permits to impose high requirements to judges and allows keeping confidence in their competence and independence. The article also considers the issue of a lifetime allowance for judges after their retirement. The author notes that the most important guarantee for retired judges is their pension coverage. This guarantee is expressed, in particular, in the fact that judges have the priority right to choose the type of pension coverage.
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Ben-Natan, Smadar. "Self-Proclaimed Human Rights Heroes: The Professional Project of Israeli Military Judges." Law & Social Inquiry 46, no. 3 (February 4, 2021): 755–87. http://dx.doi.org/10.1017/lsi.2020.39.
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This article explores the cooptation of human rights discourse by looking into how Israeli military judges in the Occupied Palestinian Territories use human rights as professional capital. Previous research into human rights arguments legitimizing the Israeli occupation remained confined to a unitary image of the state. Here, I dissect the separate professional project of military judges. Optimizing a self-congratulatory argument, judges portray themselves as human rights heroes of Palestinians. But while independent judicial activism would criticize human rights violations by the state, military judges use human rights as synonymous with legal professionalism, while avoiding criticism and sidestepping human rights’ challenge to state power.Using a multimethod approach including analysis of judicial decisions, academic articles by military judges, and in-depth interviews, I argue that between 2000 and 2010, Israeli military judges were responding to a professional legitimacy crisis by what I call mimetic convergence. Relying on new institutionalism and postcolonial theory, mimetic convergence produces belonging and mobility for a professional subgroup that experiences alienation in the “colony” through convergence with the specific characteristics of the legal community of the “metropole.” Mimicking the state instead of criticizing it permits the two projects— promoting military judges professionally and legitimizing the state’s colonial occupation—to coalesce.
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Ріхтер, В. В. "PUBLIC ADMINISTRATION INDEPENDENCE OF JUDGES IN UKRAINE." Juridical science 2, no. 4(106) (April 3, 2020): 146–51. http://dx.doi.org/10.32844/2222-5374-2020-106-4-2.18.
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The Constitution of Ukraine contains mandatory requirements that a person applying for the position of a judge must meet. Given that the judiciary is the judiciary, whose activities are related to the restoration of violated rights, these functions can be performed only by persons who meet all the requirements established by the Basic Law and regulations governing the social status of judges in Ukraine. However, recalling the requirements for judges, the principle of ensuring the independence of judges in Ukraine should also be disclosed. The purpose of the article is to reveal the public administration of ensuring the independence of judges in Ukraine on the basis of a comprehensive analysis of regulatory frameworks, conceptual ideas and scientific positions. The article stipulates that in order to properly ensure the independence of judges it is necessary to carry out effective, optimal, comprehensive public administration, which by its nature in this area is to exercise power and organizational and support activities of public administration in a special way to protect legal status, immunity and professional interests of a judge, which constitute his independence in legal relations. It was found that the independence of a judge is a special, intra-judicial state of protection and independence of a judge, which is regulated by law and consists in determining the legal status of a judge regarding his professional immunity and immutability, creating conditions for ensuring a judge's professional activity. and other factors that may adversely affect professional activity. It was emphasized that the state of the domestic judicial system, in particular the observance of the principle of independence of judges, has long passed into the category of problems that are of particular concern to Ukrainian society. No one doubts the need to rectify this problematic situation, but all the measures taken, including the implementation of the relevant tasks of judicial reform, have not yet had a significant impact on ensuring the real independence of judges.
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Schwarz, Rodrigo Garcia. "Social rights as fundamental rights and the judicialization of policies: some considerations." JURIS - Revista da Faculdade de Direito 28, no. 2 (December 21, 2018): 11–38. http://dx.doi.org/10.14295/juris.v28i2.8470.
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The effective constitutional recognition of social rights, by itself, establishes—in any circumstance, even in times of economic crisis—a “hard” nucleus, unavailable to the various public and/or political agents and authorities (including the courts) in terms of meeting social demands, in a manner that this minimum will constitute, in the action of these various agents and authorities, including in the scope of the Public Administration’s actions, an insurmountable barrier that requires permanent boundaries and a certain integration between justice and politics, among judges, legislators and administrators. The judiciary, however, must guide its action by the search for possible mediation between guaranteeing the rights of all, the principle of separation of powers and balancing the budget.
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Vallentyne, Peter. "Rights Based Paretianism." Canadian Journal of Philosophy 18, no. 3 (September 1988): 527–44. http://dx.doi.org/10.1080/00455091.1988.10717189.
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An ethical theory is axiological just in case it makes the permissibility of actions depend solely on considerations of goodness. Act utilitarianism is the paradigm axiological theory. An ethical theory is a pure rights theory just in case it judges an action permissible if and only if it violates no one’s rights. Libertarianism is a paradigm pure rights theory. I shall formulate and defend a type of axiological theory that, unlike act utilitarianism, is sensitive in a new and interesting way to whether rights are violated.Let us start by briefly considering the strengths and weakness of act utilitarianism. Act utilitarianism judges an action permissible just in case it maximizes social (e.g., total or average) welfare. It has many attractive features. It is a clearly formulated theory that draws on the machinery of decision theory. It takes a tough minded approach to morality: always focusing on the outcomes of actions. And it takes human welfare very seriously. The axiological theory I shall defend will have all these features.
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Ochoa, Christiana. "Nature’s Rights." Michigan Journal of Environmental & Administrative Law, no. 11.1 (2021): 39. http://dx.doi.org/10.36640/mjeal.11.1.natures.
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Do forests and rivers possess standing to sue? Do mountain ranges have substantive rights? A recent issue of The Judges’ Journal, a preeminent publication for American judges, alerts the bench, bar, and policymakers to the rapidly emerging “rights of nature,” predicting that state and federal courts will increasingly see claims asserting such rights. Within the United States, Tribal law has begun to legally recognize the rights of rivers, mountains, and other natural features. Several municipalities across the United States have also acted to recognize the rights of nature. United States courts have not yet addressed the issue, though in 2017, a plaintiff brought a suit claiming rights for the Colorado River ecosystem, although the case was dismissed. Meanwhile, several countries outside the United States have extended standing and substantive rights to nature, and that number is growing quickly. This international trend matters because U.S. Supreme Court Justices, including Sonia Sotomayor and Stephen Breyer, have argued that American courts should note and address cutting-edge legal developments in foreign jurisdictions. This Article provides the key foundational and theoretical basis for recognizing the rights of nature. It explores the intellectual and precedential basis for accepting nature’s rights, surveying developments in the natural sciences, social sciences, and humanities, and providing a survey of select legal systems that currently recognize such rights. It traces the geographic, theoretical, and practical development of the idea of nature’s rights, illustrating that human thought regarding the intrinsic value and rights of nature has evolved significantly since our common law on the issue was established. This Article thus provides the intellectual, moral, and philosophical foundation for students, clerks, judges, and lawmakers facing questions about extending rights to nature.
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Hryshchuk, Oksana. "Judicial Integrity through the Lens of Modern Social Transformations." Slovo of the National School of Judges of Ukraine, no. 1(30) (July 30, 2020): 6–25. http://dx.doi.org/10.37566/2707-6849-2020-1(30)-1.
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The most important factors of building and maintaining public confidence in the judiciary are extralegal social factors are of great for. The active development of a postmodern society poses new challenges, one of them is the "post-truth" phenomenon, that gives rise to the circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief. This leads to a peculiar interpretation of the facts on social media, which doesn’t always represent the facts, but may contains their selective and non-exhaustive interpretation. Therefore, the whole traditional value system got under blow,since facts doesn’t occupy a leading position in Western democracies. The issue of spreading the post-truth in the judicial sphere, adversely affects public legal awareness and confidence in the judiciary,particularly, inciting hatred and misinformation in the media results in putting pressure on judges.Because ofthe social context and new conditions of a postmodern society, the judicial authorities and every judge nowadays must be prepared for the possible challenges related to such an environment. It seems,trere are two types of these challenges : the ones related to the integrity of the judges and those related to communication with representatives of civil society. Today integrityis associated, above all, with the virtues of the judge and the standards of ethical conduct for judges.The judge's ethical standards are enshrined in Bangalore Principles of Judicial Conduct and reflected in the Code of Judicial Ethics, which state that the exercise of the right of everyone to judicial protection sets high demands on the moral qualities of each judge. It seems that the judicial integrity may be regarded as a result of implementing ethical standards and principles in each judge's behaviour. Civil society's demand is high in terms of the judicial integrity, and it is particularly exacerbated in transitional democracies, during a period of active reformation processes, when many issues may be shifted from the political plane to the plane of judgement. Moreover, there is not enough today for a judge to be virtuous, because society demands openness of the court procedures, and therefore the problem of judicial communication is raised. As we can see, judicial authorities and judges are aware of the communication importance and are willing to communicate with civil society, in particular, most courts in Ukraine have developed communication strategies; active participation of courts and judges on social networking is in evidence. Keywords: post-truth, court, integrity, professional ethics of judges, judicial communication.
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Dei, M., and A. Kochkova. "Peculiarities of insight of the European charter on the status of judges in the context of protecting their labor rights." Fundamental and applied researches in practice of leading scientific schools 28, no. 4 (September 1, 2018): 16–22. http://dx.doi.org/10.33531/farplss.2018.4.03.
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The paper is devoted to questions of legal regulation of the peculiarities of insight the principles of the European Charter on the Status of Judges in the context of their labor rights in accordance with the legislation of Ukraine. It is clear that the development of the rule-of-law state, the protection of human rights and the rule of law are impossible without the effective functioning of the legal system, where one of the components of the judicial system . That is why the relevant legal system must realize the decree where a person is of the highest social value, despite the fact that those who administer justice also need proper protection. That is, it should be noted that the rights of judges as employees, taking into account the specifics of their work and status, should also be protected by the state. In joining the European community of international law, special attention should be paid to certain international standards concerning regulating relevant issues, where the European Charter on the Status of Judges of 1998, adopted within the Council of Europe, which in its turn is declarative, places particular emphasis. This document concerns, for example, issues such as appointment, status of judges, career development, responsibility, termination of judge's powers, etc. The characteristic of this document in the context of the subject under study is that most of the decree is devoted precisely to the labor rights of judges. Obviously, such decrees have become a progressive push for appropriate changes to the laws of the member states of the Council of Europe, where Ukraine did not become an exception, especially in the context of reforming the judicial system.
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Sanghera, Balihar. "Justice, power and informal settlements: Understanding the juridical view of property rights in Central Asia." International Sociology 35, no. 1 (October 31, 2019): 22–44. http://dx.doi.org/10.1177/0268580919877596.
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The article examines how judges and lawyers struggle to legitimise and normalise private property rights against attempts by poor and migrant groups to politicise housing and social needs in Central Asia. It discusses the juridical understanding of justice and equality in relation to property rights violations on the outskirts of major cities in Kyrgyzstan and Kazakhstan. It argues that the juridical system is central in construing property rights and obligations, and in so doing social inequalities are legitimised and naturalised in a neoliberalising post-Soviet space. The article uses the concepts of ‘the moral economy’ and ‘the juridical field’ to examine how judges and lawyers justify and normalise their ways of interpreting and ordering the social world.
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Yanto, Oksidelfa Yanto, Imam Fitri Rahmadi, and Nani Widya Sari. "Can Judges Ignore Justifying and Forgiveness Reasons for Justice and Human Rights?" Sriwijaya Law Review 6, no. 1 (January 31, 2022): 122. http://dx.doi.org/10.28946/slrev.vol6.iss1.1054.pp122-142.
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In the criminal law system in Indonesia, there are two reasons why an individual suspected of having committed a crime must be released. These two reasons are justifying and forgiveness reasons. In practice, these two reasons are linked to the elimination of criminal acts based on legal justice and human rights. This article discusses the legal consequences when the judge rejects the justifying and forgiveness reasons that can eliminate the sentence. The method used in this research is normative juridical by analysing norms, principles and rules of law with a case approach. As a result, this research shows that judges in practice have the authority given by law to determine whether an action can be categorised as justifying and forgiveness reasons that eliminate punishment by referring to the principles and legal regulations for justice and human rights. However, when the judge ignores these two reasons due to considerations of lack of justice and respect for human rights, this practice can be carried out by the judge with the consequence that this decision will cause harm, suffering and misery for the accused. This article argues that to protect the public interest from wrong decisions is necessary to reform the Criminal Procedure Code (KUHAP) to provide objectivity, honesty, and justice that rely on legal principles and rules.
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Clemente, Carmine. "New values and social rights around life and death." SALUTE E SOCIETÀ, no. 1 (April 2011): 45–55. http://dx.doi.org/10.3280/ses2011-001004en.
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This contribution deals with the end of life and living will in the light of the current debate in Italy. Starting from the emblematic case of Eluana Englaro, it examines some critical issues related to the interpretation of art. 32 of the Italian Constitution, such as the concepts of autonomy, informed consent and unavailability of human life. Judges are held accountable to answer social demands as affirmation of individual rights of freedom on the end of their own life, due to the inertia of action from the politics. Finally, it is carried out a theoretical analysis of the social effects of the bio-law in changing societies as well as of the role of science and medicine into person/disease matters.
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Miller, Monica K. "HOW JUDGES DECIDE WHETHER SOCIAL PARENTS HAVE PARENTAL RIGHTS: A FIVE-FACTOR TYPOLOGY." Family Court Review 49, no. 1 (January 2011): 72–83. http://dx.doi.org/10.1111/j.1744-1617.2010.01354.x.
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Slabunova, Yu V., and N. M. Shcherbak. "LEGAL STATUS OF A JUDGE AS A PUBLIC SERVANT." Legal horizons, no. 19 (2019): 124–30. http://dx.doi.org/10.21272/legalhorizons.2019.i19.p124.
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The article deals with the characterization of the legal status of a judge of a court of general jurisdiction as a public servant. In the context of the active development and improvement of public administration in the world, the role of public service as a defining feature of the state for which the rights, freedoms, and legitimate interests of citizens is of the highest social value is increasing. Since the signing of the Association Agreement with the European Union by Ukraine, it has become necessary to introduce and establish in the national legislation such an institution as a public service. This became the lever that started the process of reforming the government system in the country and determined the correct vector for the development of public service in Ukraine. Legislative improvement of the judicial system and the status of judges of courts of general jurisdiction in the context of public service reform in Ukraine is one of the prerequisites for the further development of our country as a rule of law and democracy. In particular, public service reform in Ukraine should be aimed at creating a fundamentally new system of judiciary. Unfortunately, as of today, the domestic legislation has not undergone significant changes and additions regarding the introduction of the Public Service Institute. Particular attention is paid to the concept of “public service”, which is the defining legal definition for the study. Based on the analysis of the opinions of scientists, scientists form a list of the main features of public service. The nature and content of the activity of judges of courts of general jurisdiction is determined by the totality of the relevant legal elements that are part of the structure of their legal status. These include the judge’s legal personality, his rights and obligations, functions, principles, legal liability, and safeguards. The list of features of activity of judges of courts of general jurisdiction as public servants is determined. It is concluded that the status of judges of the courts of general jurisdiction is to be legally enshrined as a fundamentally separate and distinct type of public service. Keywords: public official, public service, judges of courts of general jurisdiction, judicial authorities, legal status.
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Fernández Aller, Celia. "Any Chance for the Enforceability of the Human Right to Subsistence?" Age of Human Rights Journal, no. 15 (December 15, 2020): 140–62. http://dx.doi.org/10.17561/tahrj.v15.5823.
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It is not true that the idea of the right to subsistence should not give rise to much controversy. In fact, social rights are not considered as fundamental rights by everyone. The aim of this paper is to analyze whether abstract social rights –and the right to subsistence in particular- should be put in constitutions and laws and if judges should be given powers to interpret them. The philosophical foundations and the content of the right are studied and five great challenges are presented, although the most powerful one is to focus on the social and political enforceability of the fundamental right to subsistence. Assessing the effectiveness of the right to subsistence, and the right to food particularly, is a complex issue. In the legal discourse, the question seems to be only suggested. Even when the Constitutions expressly recognize this right in some countries, its implementation faces many constraints. The progressive realization of ESC rights requires a complex interaction of policies and programs in a wide range of sectors and institutions.The scientific method used in this work is the legal-sociological method, regarding the understanding of the rules, the lack of them, their effectiveness, etc. Several methodological techniques have been used, such as social and legal analysis, legal deduction and induction, description and interdisciplinarity.
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Nasution, Muhammad Syukri Albani, Ali Akbar, and Maimunah Siagian. "Tatacara Pemeriksaan Permohonan Dispensasi Kawin Menurut Perma Nomor 5 Tahun 2019 (Analisis Putusan No.0017/Pdt.P/2020/Pa.Lpk)." AL-HUKAMA' 10, no. 2 (February 17, 2021): 271–94. http://dx.doi.org/10.15642/alhukama.2020.10.2.271-294.
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Children have the right to choose, whether to marry or not, and when their choice falls to marry, then the biggest thing to be considered is the age, the age that is considered safe and permissible for marriage, from a health perspective, from a psychological perspective, as well as from an economic standpoint. This study aims to see how the judges consideration in deciding marriage dispensation cases, based on the analysis of the judge's decision No.0017 / Pdt.P / 2020 / PA.Lpk. The method used in this research is normative juridical. Indonesia as a State party to the Convention on the rights of the child (Convention on the rights of children) assert, that all actions concerning children undertaken by institutions, social welfare institutions, state or private, courts, administrative authorities or legislative bodies, are implemented in the best interest of the child, to provide protection for children who choose to marry while they are hindered by age
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Królikowska, Jadwiga, and Jarosław Utrat-Milecki. "Sprawiedliwość w sędziowskim wymiarze kary." Nowa Kodyfikacja Prawa Karnego 43 (May 16, 2017): 279–325. http://dx.doi.org/10.19195/2084-5065.43.17.
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Punishment and justice in the judge’s sentencing decisionsThe article starts with the general presentation of the sociological perspective on the question of justice in the motives of a criminal judge’s sentencing decisions. The question of justice is also analysed in relation to the legitimation of the criminal law and the various theories of punishment, retributive, consequentialist, and mixed. Punishment is analysed as a social and legal institution and as a social process in its various organisational forms. The rationalisation of punishment as a social and legal institution is analysed in relation to the question of human rights, and the question of its effectiveness in social control as a tool in the protective function of the criminal law. The problem of justice is also analysed from a subjective point of view as a question of the just judge. It is not only analysed here as an ethical question, but also as a problem of the methodology of the work of the judge, and a question of organisation of the sentencing process. The article presents the results of research sociological reports concerning the question of the motives of judges’ sentencing in the criminal courts. The article presents the basics of the methodology and results of research in that respect which was carried out in the 1930s B.Wróblewski, W. Świda, 60s and 70s T. Kaczmarek, W. Świda, and the 1980s T. Kaczmarek, J. Giezek and the team, and the latest research carried out by the authors in 2012–2015 J. Królikowska, J. Utrat-Milecki. The authors explain here the general outline of the method of culturally integrated social and legal studies, which they used in their sociological and anthropological research on the criminal justice offi cers judges, prosecutors and probation officers, and which is also the theoretical background of the present article. Finally, the authors present the broader culturally integrated definition of punishment, so as to help to identify the main research questions in socio-legal studies of punishment considered both as a socio-legal institution and a social and legal process which can be identified in different organisational forms.
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Buchkivska, V. L. "Provision of Immediate Conduction of a Medical Examination of a Person as a General Duty of a Judge for the Protection of Human Rights in Aspect of Article 206 of the Criminal Procedural Code of Ukraine." Medicne pravo, no. 1(25) (February 25, 2020): 29–37. http://dx.doi.org/10.25040/medicallaw2020.01.029.
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The Bangalore Principles for the Conduct of Judges of 19 May 2006, adopted by UN Economic and Social Council Resolution 27 July 2006 № 2006/23 [1], stipulate that a judge must exercise his or her judicial function independently, based solely on a factual assessment, in accordance with a conscious understanding of the law. , regardless of outside influence, motivation, pressure, threats or interference, direct or indirect, carried out by any party and for any purpose. It is also stated that the objectivity of a judge is a necessary condition for the proper performance of his duties. It is manifested not only in the content of the decision, but also in all the procedural actions that accompany its adoption.
In accordance with Principle V set out in Recommendation 94 (94) 12 “Independence, effectiveness and role of judges”, adopted by the Committee of Ministers of the Council of Europe at its 518th meeting of the Ministers' Deputies on 13 October 1994 [2], judges are required to the case is impartial, based on its own assessment of the facts and its own interpretation of the law; to ensure that each party has an equal opportunity to be heard and that the procedural rights of each party are respected in accordance with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Analysis of recent research and publications. Problems of judicial control and application of Article 206 of the CPC of Ukraine were studied by such scientists as VF Boyko, VS Zelenetsky, VT Malyarenko, OR Mykhaylenko. Some issues of the powers of the investigating judge were considered by VD Bryntsev, YM Groshevy, VI Shyshkiv, ME Shumylo, Glovyuk IV [3].
According to paragraph 18 part 1 of Article 3 of the CPC of Ukraine, the investigating judge is a judge of the court of first instance, whose powers include the exercise in the manner prescribed by this Code, judicial control over the rights, freedoms and interests of persons in criminal proceedings. , provided for in Article 247 of this Code, - the chairman or another judge of the relevant appellate court. The investigating judge (investigating judges) in the court of first instance is elected by the assembly of judges from among the judges of this court.
The main purpose of the investigating judge is to provide judicial protection of the rights and legitimate interests of persons involved in criminal proceedings, and to ensure the legality of the proceedings in the pre-trial stages. This determines the specific nature of his criminal function, which is to ensure the legality and validity of the restriction of constitutional human rights and freedoms in pre-trial proceedings [4].
Article 206 of the CPC of Ukraine defines the general responsibilities of a judge for the protection of human rights.
Thus, in particular, Part 6 of this article provides that if during any court hearing a person alleges the use of violence against him during detention or detention in an authorized public authority, public institution (public authority, public institution, which the law provides the right to detain persons), the investigating judge is obliged to record such a statement or to accept a written statement from the person and: 1) to ensure the immediate conduct of a forensic examination of the person; 2) instruct the relevant body of pre-trial investigation to conduct an investigation of the facts set forth in the person's application; 3) take the necessary measures to ensure the safety of the person in accordance with the law.
First of all, it should be noted that despite the title of the article "General responsibilities of a judge for the protection of human rights", in the article the legislator gives the duty to protect the human rights of the investigating judge and indicates the mandatory procedural steps to be taken. judicial protection of the rights and legitimate interests of persons involved in criminal proceedings. Such a procedural defect leads to different interpretations of this article and, as a consequence, different application in judicial practice. Correctly indicates AP Bushchenko that the "court hearing" in the context of this article is used in the broadest sense, so this duty of a judge exists during any court hearing [5].
It should be noted that on October 17, 2019, the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine to Improve Certain Provisions of Criminal Procedure Legislation" entered into force, according to which the parties to criminal proceedings received the right to independently involve an expert to conduct an examination.
For the unity of judicial practice, it is necessary to amend and detail the subjects who should be entrusted with the actions provided for in Part 6 of Article 206 of the CPC of Ukraine and specify in which cases the legal provisions of paragraph 1 of Part 6 of this Article apply. if during any court hearing a person alleges violence during detention or detention in an authorized public authority, state institution (public authority, state institution, which by law has the right to detain persons), the investigating judge is obliged to record such a statement or to accept a written statement from a person and to ensure an immediate forensic examination of the person. In addition, if we are talking about a forensic examination, then in this case should be considered that on the basis of this court decision should be conducted examination, because according to the legal requirements of Part 2 of Article 84 of the CPC of Ukraine is the expert's opinion.
Summarizing the above, it should be noted that Article 206 of the CPC of Ukraine, which defines the general duties of a judge to protect human rights, requires changes and details of certain provisions, in particular in determining the composition of the court, which has the right to judicial protection of rights and legitimate interests. involved in criminal proceedings; detailing the subjects who should be instructed to perform the actions provided for in Part 6 of Article 206 of the CPC of Ukraine and specifying the cases in which the legal provisions of paragraph 1 of Part 6 of this Article are subject to application; and an indication in the law as to whether court decisions adopted pursuant to Article 206 of the CPC of Ukraine are subject to appeal.
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Sheliazhenko, Yurii. "Against the Odds: Protection of Economic, Social, and Cultural Rights by the Constitutional Court of Ukraine." Constitutional Review 6, no. 1 (June 2, 2020): 67. http://dx.doi.org/10.31078/consrev613.
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The article traces historical development, doctrine, and impact of constitutional review in Ukraine related to matters of social justice. It is shown that international review of Ukraine’s reports on observance of human rights obligations indicated a low level of compliance during the absence of independent constitutional review by the judiciary. After the establishment of the constitutional review, the compliance was improved against all doubts, whether socio-economic rights are justiciable in the Ukrainian context, and whether the judges are empowered enough to reshape authoritarian policies. Constitutional Court of Ukraine developed a doctrine of social justice based on the values of the rule of law, liberty, and equality, founding a pragmatic balance between the imperatives of individual freedom and economic security. In legal reasoning, judges implemented ideas of the human-centered state and personal autonomy in civil society, close to liberal democratic views, expressed by framers of the Constitution of Ukraine.
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Sayed Ahmed Mahmoud, Ahmed, and Islam Ibrahim Abdelaziz Chiha. "The judge and social media: A balance between the judge's freedom of expression and his independence and impartiality." International Review of Law 9, no. 1 (December 1, 2020): 97–162. http://dx.doi.org/10.29117/irl.2020.0093.
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The world has witnessed in the last decade the creation and dissemination of social media websites, such as Facebook, twitter, YouTube, Linkedin, and a myriad of other forums and blogs that have revolutionized ways of communication among individuals on personal and professional level. Given the above, the following paper investigates the extent to which judges could use and interact on social media websites to communicate with the outside world. The importance of this research seems to rise in light of what has been recently revealed by some American and European statistics that have shown a significant increase in the number of judges using social media. In answering this inquiry, Scholars and Courts have been divided into two main groups; the first of which denies judges the right to join or interact on social media websites to preserve judges’ impartiality and independence. The second group acknowledged judges’ right to use social media, but subjects this right to a number of limitations and conditions imposed by the nature of the judicial function. Based on the above, the roadmap of this paper will be divided into two main sections; the first of which will examine arguments of proponents and opponents of judges’ right to use social media. The second will be dedicated to address limitations and restrictions on judges’ right to use social media by means of analyzing a number of courts’ decisions in comparative legal systems.
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Korolev, Sergey Viktorovich, Badma Vladimirovich Sangadzhiev, Klavdia Vasilievna Sangadzhieva, Raisa Fedorovna Khalatyan, and Liudmila Anatolievna Koroleva. "The phenomenon of judge law or the “Hohfeld case” revisited." SHS Web of Conferences 118 (2021): 02014. http://dx.doi.org/10.1051/shsconf/202111802014.
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The article examines the still disputed phenomenon of the so-called judge law. This term implies the ability of judges “to make law” besides the national legislative body. Although the proponents of judge law were often accused of trying to destroy the paradigm of supremacy of legislative acts over all other legal acts, including court decisions, the judge law ideology never questioned the crucial importance of normative acts, emanating from national legislative bodies. The problem of these acts is that they – more often than not – do not reflect the real social conditions, a particular judge is confronted with. In many cases, a judge cannot rely on legislative acts, because – in terms of the French Code Civil – the necessary normative provisions are non-existent, fuzzy, or insufficient. Nevertheless, any judge has to properly adjudicate a case at hand if he/she is eager to circumvent the accusation of denial of justice. According to Hohfeld professional lawyers, including judges, are usually not coherent while using the fundamental legal concepts, such as “contract”, “property”, “business”, “corporation” etc. In practical life it means the following: either one can depict his or her interests in the terms of “rights” or he/she is simply legally non-existent.
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Zammartino, Francesco. "Solidarity and Social Justice in the European Union Seventy Years after the Universal Declaration of Human Rights: The Role of European Judges." europa ethnica 76, no. 3-4 (2019): 138–48. http://dx.doi.org/10.24989/0014-2492-2019-34-138.
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Seventy Years after its proclamation, the Universal Declaration of Human Rights, despite not having a binding force for the states, still provides at international level the fundamental text from which the principles and the values for the preservation of liberty and right of people are taken. In this article, the author particularly underlines the importance of Declaration’s article 1, which states: “All human beings are born free and equal in dignity and rights”. With these words the Declaration presses states to undertake economic policies aimed at achieving economic and social progress for all individuals. Unfortunately, we also have to underline the lack of effective social policies in government programs of the E.U. Member States. The author inquires whether it is left to European judges to affirm the importance of social welfare.
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Asad, Asad L. "Deportation Decisions: Judicial Decision-Making in an American Immigration Court." American Behavioral Scientist 63, no. 9 (March 24, 2019): 1221–49. http://dx.doi.org/10.1177/0002764219835267.
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Drawing on ethnographic observations and informal conversations with judges in Dallas Immigration Court, as well as archival documents, this article describes two approaches through which judges in this setting justify their decisions during removal proceedings. The “scripted approach,” used to effect the routine removal of noncitizens in most of the completed cases observed, entails judges’ recitation of well-rehearsed narratives regarding the limited legal rights and remedies available to noncitizens. The “extemporaneous approach” involves judges moving beyond their scripts and deliberating in greater depth about noncitizens’ cases. In doing so, judges’ personal attitudes, biases, and motivations are often revealed as they articulate their desire to circumvent the removal process for noncitizens they view as “deserving” of relief—but for whom only temporary relief from removal is often available given judges’ interpretations of immigration law. Although judges recognize that this temporary relief may allow some noncitizens to remain in the United States indefinitely, incomplete protection from removal can leave noncitizens in a precarious legal status and jeopardize these individuals’ future opportunities for legalization. These findings support a conceptualization of immigration judges as street-level bureaucrats, or frontline workers who interpret the law—sometimes unevenly—to enforce government policy while interfacing with the individuals subject to said policy. The study thus amplifies the social control capacity of the federal immigration regime.
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SCHJOLDEN, LINE. "Sentencing the Social Question: Court-Made Labour Law in Cases of Occupational Accidents in Argentina, 1900–1915." Journal of Latin American Studies 41, no. 1 (February 2009): 91–120. http://dx.doi.org/10.1017/s0022216x08005129.
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AbstractThis article shows how Argentine judges effectively came to make labour law when ruling in occupational accident cases between 1900 and 1915. During this period, in the absence of a specific occupational accident law, a number of Argentine workers who had been victims of occupational accidents sued their employers for damages according to the Civil Code. By reinterpreting the principles of the Civil Code in these cases, Argentine judges attempted to accommodate aspects of a new social and economic reality to an increasingly outdated legal framework. The article argues that, in doing so, these judges articulated their own solution to one of the central issues of the time: the ‘social question’. Furthermore, the article shows how the judiciary's particular solution to the social question effectively defined the kind of citizenship rights workers were able to claim in court.
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Youngky Fernando. "Protection of Law and Justice and Human Rights must be Enforced Even in Large-Scale Social Restrictions." Journal Equity of Law and Governance 2, no. 1 (March 31, 2022): 43–52. http://dx.doi.org/10.55637/elg.2.1.4871.43-52.
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Online media. TempoCOM. July 1, 2021. Restrictions on mobility in Java and Bali are getting more stringent. Online Law. July 4, 2021. The Advocate Profession Does Not Enter the Essential Sector, DetikNews. July 8, 2021. Metro Police Chief Promise. The Company Boss Brush Does Not Take Sides of Humanity. Supreme Court PR Announcement May 8, 2020. Circular Letter of the Secretary of the Supreme Court of the Republic of Indonesia Number 5 of 2020. Regarding Guidelines for the Implementation of Work From Home and the Imposition of Disciplinary Sentences for Judges and Apparatus within the Supreme Court of the Republic of Indonesia and the Judicial Bodies Under It During the Corona Virus Disease Community Emergency Period 2019. SINDOnews. October 24, 2020. Supreme Court. PERMA Number 4 of 2020. Date September 29, 2020, regarding the Administration and Trial of Criminal Cases in Courts Electronically. In the Indonesian Criminal Justice System: 1. Investigation: investigators together with an advocate accompanying the suspect; 2. Pre-prosecution: the public prosecutor and the judge and advocate were accompanying the defendant; 3. the judge's verdict: the judge together with the advocate accompanying the defendant; 4. After the criminal verdict: the prosecutor implements the final decision, and the advocate accompanies the defendant and officials from the state detention center or correctional institution. Detention in the Indonesian Criminal Justice System: 1. Investigation for a maximum of 60 days and or 120 days if the penalty is nine years or more; 2. The pre-prosecution is a maximum of 50 days and or 110 days if the punishment is nine years or more; 3. The pre-sentence is for a maximum of 90 days or 150 days if the sentence is nine years or more. Law Enforcers in the Indonesian Criminal Justice System: 1. Advocates as legal advisors or defenders of suspects and defendants and convicts requesting the judicial review; 2. Investigators; 3. Prosecutors; 4. Judge; 5. Officials of state land houses or correctional institutions. Instruction Letter from the Minister of Home Affairs Number 15 of 2021. On July 2, 2021, regarding the Implementation of Restrictions on Emergency Community Activities for Corona Virus Disease 2019. In the Java and Bali Regions. Cannot bind law enforcers in the Indonesian criminal justice system—Fiat Justitia Ruat Coelum (the justice law must be upheld even if the sky falls).
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Skoromnyy, Yaroslav, and Ruslan Skrynkovskyy. "Lustration as a Particular Procedure for Bringing a Judge to Justice in Ukraine." Path of Science 6, no. 11 (November 30, 2020): 1001–9. http://dx.doi.org/10.22178/pos.64-1.
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The article presents the peculiarities of using lustration as a particular procedure for bringing a judge to legal responsibility. It is established that the exceptions of lustration of a judge, as a specific procedure for getting him/her to a legal obligation in Ukraine, are regulated by the provisions of particular regulations and documents. Lustration is a set of legal and political measures aimed at neutralising the consequences and actions of the previous regime, which threaten fundamental human rights and the democratisation process in general. It is proved that the lustration procedure in Ukraine quickly gained popularity in the context of public distrust to the criminal and corrupt justice system in the period from November 2013 to February 2014, the main initiators of which were public organisations. It is determined that the process of organising the procedure of inspection of judges is directly entrusted to the chairman of the court, where the accused judge, who is under review, holds a position and performs official duties. It is established that lustration as a particular type of responsibility affects the restoration of social justice, as well as the implementation of the functions of protection of democracy. It was found that the prospect of further research in this area is to study other types of special procedures for bringing judges to justice, which in combination with the lustration procedure will affect the prevention of judges from committing offences.
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Vaisman, Noa, and Leticia Barrera. "On Judgment: Managing Emotions in Trials of Crimes Against Humanity in Argentina." Social & Legal Studies 29, no. 6 (January 28, 2020): 812–34. http://dx.doi.org/10.1177/0964663919900974.
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For over a decade, judicial accountability of mass human rights violations committed during the last civil-military dictatorship in Argentina (1976–1983) has been carried out in federal courts by regular judges, following the rules of the National Code of Criminal Procedure. Research on these trials has focused mainly on the victims and the accused. This article opens a different path by exploring the affective experiences of the judges presiding over and leading the trials. Based on interviews with 18 federal court judges and some participant observation, in this article we present a descriptive exploration of the judges’ experiences and sensemaking processes. We examine the complex interaction between the professional requirement to separate emotions from judgment and the emotional toll that these trials produce in the personal and professional lives of the judges. We end with short reflections on these crimes against humanity trials in the post-Transitional Justice context.
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Farran, Sue. "Exploring the Engagement of Pacific Island Judges with the Convention on the Rights of the Child." International Journal of Children’s Rights 30, no. 1 (November 2, 2021): 72–97. http://dx.doi.org/10.1163/15718182-30010001.
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Abstract This article considers the extent to which judges in cases involving children in the island states of the Pacific, act consistently with, or are influenced by, the United Nations Convention on the Rights of the Child (uncrc). All Pacific island states have ratified the uncrc but giving effect to children’s rights faces challenges not least for judges. Drawing on the case-law of the region this article presents a quantitative and qualitative review of judicial engagement with the Convention, revealing that there are examples of good practice which could be shared, but also continuing difficulties which need to be met.
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LUPPI, PHILIPPE. "Taxation judge and social interaction: is participation possible and what does it involve?" Public Administration 23, no. 3 (2021): 92–97. http://dx.doi.org/10.22394/2070-8378-2021-23-3-92-97.
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The article focuses on the role and place of a taxation judge in the French legal system. The author notes that the activity of a judge in tax disputes is not regulated by any special act; it is self-independent and, at the same time, ensures compliance with the general principles of private or public law. The taxation judge seeks a balance in the delicate relationship between the tax administration and the taxpayer, where the latter perceives the tax as a burden rather than civic duty, and sometimes tries to violate the rules and the law, forgetting that, as Oliver Holmes said, “Taxes are the price we pay for the opportunity to live in a civilized society”. Many taxation mechanisms are balancing on the verge of legality and get out of the control of a judge who does not always have sufficient information and resources. Despite the progress made in this area, taxation judges have not been able to determine the intangible boundary between taxation engineering (legal taxation optimization opportunities) and tax planning (morally reprehensible tax evasion). Through case law, the taxation judge takes part in restoring tax justice, the confidence in the tax administration, the preservation of rights and guarantees for the taxpayer, and the desire to promote and encourage tax residency as the basis of a social contract.
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Kolmannskog, Vikram. "Right to Love: India's Decriminalization of Homosexuality Understood in Light of Contact." Gestalt Review 25, no. 2 (November 1, 2021): 178–96. http://dx.doi.org/10.5325/gestaltreview.25.2.0178.
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ABSTRACT On September 6, 2018, homosexuality was decriminalized in India. It was the result of a rights mobilization that started almost two decades ago. From the start, Indian lesbian, gay, bi, trans (LGBT) activists tried to influence society and the judges directly, not least through contact with other judges who happened to be gay. This article is a first attempt at understanding the mobilization and decriminalization in light of contact. It is also a first attempt at combining contact theories from both gestalt and the social sciences, including Allport's (1954) contact hypothesis. It seems quite plausible that contact of a certain kind played an important role in the Indian case. Other social movements could learn from this case. Gestaltists, as contact artists could have much to contribute, especially if they also draw upon social sciences and recognize that status, social identity, and power play a role in contact.
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Asmar, Almardian. "PERTIMBANGAN HAKIM TATA USAHA NEGARA DALAM PEMBATALAN SERTIPIKAT HAK ATAS TANAH YANG DIBEBANI HAK TANGGUNGAN." UNES Journal of Swara Justisia 5, no. 2 (July 30, 2021): 133. http://dx.doi.org/10.31933/ujsj.v5i2.204.
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Land has a dual function, namely as a social asset and a capital asset. The function of land as a social asset is a means of binding social unity among the community and the function of land as a capital asset because land has grown as a very important economic object. recorded in the land book. However, the certificate can be canceled at any time and the cancellation of the certificate of land rights will have a further impact on the process of guaranteeing the inherent Mortgage.
The formulation of the problem in this research is, First, what is the consideration of the Judge of the State Administrative Court in canceling the certificate of ownership rights over land that is encumbered with mortgage rights? Second, What are the legal consequences of Certificate Cancellation based on a State Administrative Court Decision which has permanent legal force?
The specification of this research is descriptive analysis. The approach used in this research is a normative juridical approach. It is called this because this research is a library research or document study which is carried out aimed only at written regulations or other legal materials.
Based on the results of the research, it shows that (1) Consideration of State Administrative Court Judges in Cancellation of Certificate of Ownership of Land Burdened with Mortgage Rights (Case Analysis of Decision No. 43 / G / 2019 / PTUN.PDG) is to consider all evidence submitted by the parties to make a decision by describing the evidence relevant to the case and the judge's consideration is also based on the prevailing laws and regulations. (2) The legal consequence of the cancellation of a certificate based on the decision of the State Administrative Court which has permanent legal force is to cancel a decision, so that the result of the issuance of the cancellation decision is seen from the verdict of the court that has obtained permanent legal force (inkracht). If the Court Decision declares a certificate of ownership rights over land cancellation, then this will cause the land that has been issued a certificate of ownership rights on it to return to its original status, namely State land.
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BERTRAND, ELODIE. "‘The fugitive’: The figure of the judge in Coase's economics." Journal of Institutional Economics 11, no. 2 (October 2, 2014): 413–35. http://dx.doi.org/10.1017/s1744137414000460.
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Abstract:‘The Problem of Social Cost’ (Coase, 1960) asserts a normative role for the common law judge, that of taking into account the economic consequences of his decisions in allocating property rights. This position is often accused of inconsistency: Coase sees the figure of the judge as willing and able to improve economic efficiency, but criticises the actors of public intervention, particularly regulators, for being fallible, vulnerable to political pressures, and lacking information. I shall show that Coase's giving this role to the judge stems precisely from his criticism of public intervention. This means that his figure of the judge escapes the tenets of the theoretical system that first rendered it necessary. Various reasons could explain this difference of treatment as between the judge and the other figures of public intervention in Coase's system, but Coase makes too strong an opposition between common law on one side and regulatory and statutory law on the other, and leaves unexplained the motivation of judges.
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Ohanisian, Ts V. "PROTECTION OF RIGHTS IN THE SPHERE OF SOCIAL SECURITY OF JUDGES: AN OVERVIEW OF JUDICIAL PRACTICE." Kyiv Law Journal, no. 4 (2021): 115–20. http://dx.doi.org/10.32782/klj/2021.4.16.
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Allan, James. "One of My Favorite Judges: Constitutional Interpretation, Democracy and Antonin Scalia." British Journal of American Legal Studies 6, no. 1 (May 24, 2017): 25–40. http://dx.doi.org/10.1515/bjals-2017-0003.
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Abstract In this article the author explains why Antonin Scalia was one of his favourite judges. It starts by excerpting some of Justice Scalia’s most biting and funny comments, both from judicial and extra-judicial sources. Then it explains the attractions of an originalist approach to constitutional interpretation, though arguing that the intentionalist strain is preferable to Scalia’s ‘original public meaning’ or ‘new originalism’ approach. Finally, it argues that within the confines of a constitutional structure with an entrenched bill of rights, Scalia was a strong proponent of democratic decision-making to resolve key social policy decisions, unlike many other top judges.
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HIEBERT, JANET L. "Interpreting a Bill of Rights: The Importance of Legislative Rights Review." British Journal of Political Science 35, no. 2 (February 21, 2005): 235–55. http://dx.doi.org/10.1017/s000712340500013x.
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This article contests the widely held view that an effective bill of rights requires judicial interpretation of rights to prevail over political judgement. Most bills of rights reflect classical liberal assumptions that premise freedom and liberty on the absence of state intervention. Yet they govern modern welfare states that presume and require substantial state involvement, seen to various degrees as facilitating rather than restricting the conditions for robust and equal citizenship. Judges cannot provide answers that are so definitive or persuasive to questions about whether social policy is reasonable in terms of human rights that they rule out other reasonable judgements. Although these concerns are often used to justify rejecting a bill of rights, this article takes a different position. It argues that a political community can benefit from exposure to judicial opinions on whether legislation is consistent with rights, but should also encourage and expect parliament to engage in legislative rights review. The article discusses how three parliamentary systems have attempted to infuse more concern for rights in their processes of decision making, and concludes with suggestions on how legislative rights review can be strengthened.
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Sanz-Caballero, Susana. "Towards a Uniform and Informed Interpretation of the Best Interests of the Child by the Judiciary: Inter-American and European Jurisprudence." International Journal of Children’s Rights 29, no. 1 (January 7, 2021): 54–77. http://dx.doi.org/10.1163/15718182-28040009.
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Abstract This article analyses the interpretations made by two regional human rights courts regarding the best interests of the child. In cases of controversy, it is for the judges to decide how, or whether, the best interests of the child should be applied. Due to the dependence and vulnerability of children, judicial remedies are a critical form of redress when children’s rights are violated. This article analyses case law from two regional courts (the Inter-American Court of Human Rights (ICtHR) and the European Court of Human Rights (ECtHR)). The purpose of this analysis is twofold: first of all to see how the two courts interpret and apply the concept; and secondly, to ascertain whether there are similarities of interpretation or common grounds of understanding between the two courts, with particular regard to General Comment No. 14 (GC 14) of the United Nations Committee on the Rights of the Child on the right of the child to have their best interests taken as a primary consideration.
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Shen, Taixia. "Judicial Interpretation of Human Dignity by Hong Kong’s Courts." SAGE Open 12, no. 1 (January 2022): 215824402210782. http://dx.doi.org/10.1177/21582440221078298.
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This study employed empirical, case, and comparative analysis methods to examine how Hong Kong’s courts have judicially interpreted the concept of human dignity. It aimed to understand the concept of human dignity in Hong Kong law and its role in judicial adjudication and to explore the contributions that Hong Kong’s courts have made to interpreting and developing the concept of human dignity in support of the development of national and international human rights. In this study, cases heard in Hong Kong’s courts from 1997 to 2019 were analyzed. The results showed that Hong Kong’s courts interpreted the concept of human dignity in cases concerning the right to equality, right to privacy, right to work, right to dignity, and the prohibition of torture and other cruel, inhuman, or degrading punishment or treatment, despite the fact that some of them are not found in the Hong Kong Basic Law. The concept of human dignity provides a foundation on which judges can interpret human rights and is a useful tool for litigants to safeguard their human rights. Although Hong Kong’s courts have cited interpretations of human dignity made by the European Court of Human Rights and other common law courts, they have also interpreted it in their own unique way. Hong Kong’s courts have made great contributions to shaping the concept of human dignity to increase justice around the world.
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Stacey, Richard. "The Magnetism of Moral Reasoning and the Principle of Proportionality in Comparative Constitutional Adjudication." American Journal of Comparative Law 67, no. 2 (June 2019): 435–75. http://dx.doi.org/10.1093/ajcl/avz015.
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Abstract A constitutional limitations clause manages the conflict between constitutional rights and the legislative pursuit of broader social objectives. In six paradigm postwar constitutional democracies—Canada, Germany, India, Israel, Poland, and South Africa—the principle of proportionality has emerged as the analytical fulcrum of the judicial inquiry into the constitutionality of rights limitations. Criticism of the principle of proportionality has crystallized into three main objections: proportionality analysis devalues rights by exposing them to the ordinary processes of political bargaining; it offends the rule of law because it depends on unpredictable moral reasoning; and it involves the unintelligible balancing of incommensurable goods. This Article considers, first, whether limitations jurisprudence in the paradigm countries contains responses to these objections. It argues that there are ways of meeting the devaluation and incommensurability objections, but suggests that models of analysis that purport to meet the unpredictability objection by minimizing the role of moral reasoning are undermined by the continued judicial reliance on moral reasoning in the paradigm countries. The Article argues, second, that moral reasoning maintains this magnetic attraction over judges because the conception of the rule of law at work in the paradigm countries, and which judges and other public officials are committed to upholding, compels judges and legislators to engage directly and fully with the normative commitments a political community makes and which inform its constitution. Because people reasonably disagree over the content and contours of these normative commitments, judges cannot rely on a de-moralized analysis but must make arguments intended to persuade rational, morally autonomous members of a political community how our most fundamental normative commitments should be understood by the legal system.
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Kolos, B., and N. Lobaz. "What should be the judicial system of Ukraine?" Scientific Messenger of LNU of Veterinary Medicine and Biotechnologies 20, no. 86 (March 1, 2018): 121–24. http://dx.doi.org/10.15421/nvlvet8623.
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The article outlines the proposed model for Ukraine of a new highly effective judicial system in which corruption and bribery will be impossible. It will be transparent, understandable, fair, transparent and accountable to Ukrainian citizens. After all, Ukraine has been shocking for the third decade by a mess in the state-government system. These are chaotic actions by government officials, the police, the SBU, the prosecutor's office and the courts. Therefore, this problem is complex. Because the occurrence of a problem in any process means that managing it is wrong. That is why Ukraine needs such a system of state governance based on the foundations of fundamental social sciences. Among the processes of public administration is a special place in the judicial system, designed to maintain justice in society. The system of democracy means that there should not be any official, enterprise or organization, uncontrolled and non-accountable community on the territory of the settlement! That is, the entire community, as the supreme authority in its territory, should be appointed, controlled, dismissed and punished for the offense by all the government positions, including the police, the prosecutor's office, the SBU, the courts. In this situation, double-no subordination must act. For example, a policeman should be administratively subordinated to the community, and methodically – the Ministry of Internal Affairs of Ukraine. After all, without exception, the governing bodies are obliged to ensure the freedom, rights, security and supreme power of the members of the community and the implementation of the National Idea. Therefore, the communities of the settlement are not in the right to impose any rulers from the outside. Because this is a dictatorship, not democracy. Therefore, the hierarchy of the judicial system in Ukraine should be built from below to the top. That is, from communities of settlements. For judges at these levels, they must vote in person. In the settlements, the entire community should be elected by the World Judges who are required to resolve the conflicts at the inception stage on the initiative of one, all conflating parties or third parties whose rights have been violated. The next instance should be the Local Court of the settlement, elected by the community. He should consider cases that were not resolved by the World judges, with their compulsory written conclusions. In the case of a judge of the Local Court, an Appellate Commission of the community of the village, in compliance with the freedoms, rights, security and supreme power of the person and the current legislation, shall consider the case of an unlawful decision. For making an illegal decision, the Commission has the right to impose on a judge and at the same time on the head of the court: a disciplinary sanction; dismiss from positions, deprive of all statuses and privileges; to prosecute them without the right to occupy any position related to legal activity for life. The highest judicial body should be the relevant Chamber of the Supreme Court of Ukraine. Judges of all levels must be selected on a competitive basis on the level of morality, on-national patriotic level, legal education and practical experience in legal work. The rest of the autonomous judicial structures must be eliminated as such, which rests on the body of the working people. Indeed, each judicial authority can, without any obstacles, have in its subordination the necessary sectoral Chambers.
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Psychogiopoulou, Evangelia. "Judicial Dialogue in Social Media Cases in Europe: Exploring the Role of Peers in Judicial Adjudication." German Law Journal 22, no. 6 (September 2021): 915–35. http://dx.doi.org/10.1017/glj.2021.57.
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AbstractThis Article aims to examine the social media jurisprudence of national courts in a selected set of EU Member States by focusing on judicial dialogue specifically via references to the case law of other courts. Do judges in social media cases engage with the case law of peers, and if so how and to what extent? The analysis investigates whether national judges draw on the jurisprudence of higher domestic courts, foreign courts and/or European supranational courts—the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR)—and explores the use of such jurisprudence. It is based on 147 cases from the constitutional and/or supreme courts of Bulgaria, Croatia, Greece, Italy, Latvia, Slovakia, and Slovenia. Although judicial dialogue is generally limited in the cases under study, the analysis illustrates the different ways in which courts interact with the rulings of peers and informs on the latter’s contribution to judicial assessment.
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Yavorska, Olga. "Effect of the principle of proportionality in deciding whether to dismiss from position of judge." Slovo of the National School of Judges of Ukraine, no. 3(28) (December 19, 2019): 46–57. http://dx.doi.org/10.37566/2707-6849-2019-3(28)-4.
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The article deals with violations, which are often grounds for bringing disciplinary liability of judges, as well as the enforcement of them in the form of a petition for the dismissal from position of judge. A special place in the system of legal responsibility of a judge is taken by the institute of disciplinary responsibility, the essence of which lies in the possibility of applying by a specially authorized body to an individual bearer of judicial power - judges of legal sanctions, directly provided by law, for violations in the sphere of professional activity. The institute of disciplinary responsibility is considered, the purpose of which is to solve social problems in the interests of implementing and maintaining the necessary level of efficiency of the system of judicial protection as a necessary guarantee of the protection of rights, interests and freedoms of people. The analysis of grounds for disciplinary liability of a judge and types of disciplinary punishment has been carried out. The obligatory signs of disciplinary violations that are the cause of prosecution are analyzed. It is considered about the application of the principle of proportionality to disciplinary authorities in determining the type of collection. The practice of applying the principle of proportionality of disciplinary organs in case of imposition of penalties and violation of the question of ambiguity of such practice is analyzed. The article states that with qualitatively similar offenses committed by different judges, the disciplinary bodies chose one type of collection, but in different proportions. The method of determining the principle of proportionality in differentiating the choice of terms in this type of collection for actually such mistakes seems unclear. Moreover, the use of the same principle in choosing different types of charges for virtually identical disciplinary offenses is unclear, in particular, when the repeat offense is a feature. Key words: disciplinary responsibility of a judge, principle of proportionality, disciplinary offenses, penalties, dismissal from position of judge.
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De Visser, Maartje. "Constitutional Judges as Agents for Development." Law and Development Review 12, no. 3 (October 25, 2019): 691–722. http://dx.doi.org/10.1515/ldr-2019-0042.
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Abstract This Article explores how constitutional judges can become agents for development and how they may wish to go about performing this role. Due to the high politico-economic stakes involved and the inevitability of trade-offs between competing interests, judicial review of developmental questions is liable to expose judges to negative fall-outs. At the same time, it is fairly common for Asian constitutions to expressly set out the parameters or objectives for economic development that the State is expected to realize, while simultaneously recognizing a suite of (socio-)economic rights, thereby providing textual ammunition to query the validity of a government’s chosen implementation in court. Against this reality, the Article suggests a range of coping mechanisms that can mitigate risks to judicial legitimacy. At its broadest, the decentralized model of judicial review offers judges opportunities to side-step controversial constitutional questions that are unavailable to the same extent, or at all, to distinct constitutional courts. When deciding on the merits of developmental claims, courts should combine a strong presumption of constitutionality as far as the substance of the law is concerned with robust scrutiny of compliance with procedural guarantees. Additionally, courts should be better equipped with knowledge about the methodologies used by and insights from other social sciences to enable them to better evaluate extra-legal evidence submitted. This will also make it possible to better anticipate the likely economic consequences of particular judicial findings, possibly with a view to tailoring their remedies accordingly.
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Letnar Černič, Jernej. "Authoritarian Dimension of Judicial Ideology of the Slovenian Constitutional Court." Hrvatska i komparativna javna uprava 20, no. 4 (December 30, 2020): 733–60. http://dx.doi.org/10.31297/hkju.20.4.6.
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After the democratization and independence of Slovenia, the Constitutional Court has generated the paradigm reform in the Slovenian constitutional system by protecting individual rights against the heritage of the former system. The constitutional judges are not blank slates, but individuals embedded in their private and professional environments. In the past three decades, the Court has delivered several seminal decisions concerning the protection of the rule of law, human rights, and constitutional democracy. What motivates constitutional judges to protect individual rights in some cases and show preference for the preservation of authority and stability of the existing legal system in others? The article is based on the empirical research measuring the presence of judicial ideology at the Constitutional Court of Slovenia in three mandates (1993–1997, 2002–2006, 2011–2016). The methodological and theoretical model aims to measure economic, social, and authoritarian dimensions of judicial ideology (three-fold judicial ideology model). The research group has analysed the decisions and separate opinions of the Constitutional Court from selected periods based on hypotheses provided by the model. This article intends to present and analyse the research results concerning the authoritarian dimension of judicial ideology. More specifically, it examines the level of authoritarianism of the Slovenian Constitutional Court in its judicial decision-making during the three mentioned mandates. Through the obtained empirical results, the paper seeks to strengthen fair, impartial, and independent functioning of the Slovenian Constitutional Court and its respective judges.
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Kasim, Fajri M., Abidin Nurdin, and Ridhwan Ridhwan. "THE SOCIOLOGY OF LAW PERSPECTIVE ON CHILD PROTECTION AT THE SYAR’IYAH COURT IN ACEH." Gender Equality: International Journal of Child and Gender Studies 7, no. 1 (March 31, 2021): 70. http://dx.doi.org/10.22373/equality.v7i1.8656.
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This study aims to examine child protection at the Syar'iyah Court in Aceh from the perspective of the sociology of law. This research uses the study of legal sociology, which is an approach that views law as a tool to create order and order in society. The approach used is a case study of child protection in court decisions in Banda Aceh, Bireuen, and Lhokseumawe regarding child guardianship. Meanwhile, data collection techniques are literature studies and court decisions. This study concluded that the Syar'iyah Court in Banda Aceh granted guardianship rights to adult male siblings and to become guardians and take care of parental inheritance. In Bireuen, guardianship rights are given to the mother for a child because her father who has a pension salary is left behind. Whereas in Lhokseumawe, guardianship rights are also given to the mother while the living father is obliged to give one million per month and education and health costs. In addition, judges also become al-Qur’an, Hadith, and the opinions of the ulama as arguments in their decisions that are in accordance with the sociological characteristics of religion in Aceh. This shows that the Syar'iyah Court as part of the social system and judges as social actors have functioned to provide child protection so as to create order and order in society.
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KOVALIUMNUS, E. L. "SOCIO-LEGAL SIGNIFICANCE OF THE LEGAL MECHANISM FOR THE PROTECTION OF LABOR AND SOCIAL RIGHTS OF JUDGES." Scientific Journal of Public and Private Law 2, no. 3 (2020): 37–41. http://dx.doi.org/10.32844/2618-1258.2020.3-2.6.
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Romero, Francine S. "Before the Federal Rights Revolution: The Impact of Northern State Civil Rights Laws in the First Half of the Twentieth Century." Social Science History 43, no. 02 (2019): 345–63. http://dx.doi.org/10.1017/ssh.2019.3.
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This investigation begins to rectify the absence of scholarship on statutory protections of civil rights in northern states prior to the breakthrough federal laws of the mid-twentieth century. While there is some limited cataloging of the existence of such statutes, their subsequent import is overlooked. I tackle the question by examining state supreme court cases in which these statutes were used by plaintiffs to combat acts of private discrimination in northern states. Using West’s Decennial Digest to find all relevant claims/decisions of the first half of the twentieth century, I uncover a modest universe of 56 cases. My aim is to assess whether statutory-based claims were more likely upheld than not, and whether plaintiffs armed with these statutes were more successful than those relying solely on federal or state constitutional provisions. I report positive and significant findings for both questions, showing that these statutes mattered in judicial fora. The statistical analysis is followed by a deeper consideration of the opinions to provide a richer picture of the deference shown to these statutes by state courts, and the reluctance for judges to grant relief for private discrimination in the absence of protective statutes.
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Martins, Ana Maria Guerra. "Constitutional Judge, Social Rights and Public Debt Crisis." Maastricht Journal of European and Comparative Law 22, no. 5 (October 2015): 678–705. http://dx.doi.org/10.1177/1023263x1502200503.
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Mubayyinah, Fira. "Revocation Of Re-Elected Rights For Corruptor In Public Offices Without Time Limitation The Progressive Law Perspective." FITRAH:Jurnal Kajian Ilmu-ilmu Keislaman 5, no. 2 (December 30, 2019): 313–32. http://dx.doi.org/10.24952/fitrah.v5i2.2196.
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The problem of corruption has always been a public discussion, not only because of its consequences. But also because the perpetrators of corruption that they caught were from political parties. And it tends to be after they go through the criminal period, re-enter the area of policy holders or authority through political channels again. Additional criminal imposition of revocation of political rights for the corutor is stated in the Decision of the Supreme Court Number: 537k / Pid.Sus / 2014, and Number 1195K / Pid.Sus / 2014. The application is not limited to the period as stipulated in article 38 of the Criminal Code. Revocation of political rights on the one hand is considered contrary to human rights, but revocation of political rights becomes an important punishment imposed, considering that the perpetrators of corruption do not come from political parties. The application of criminal acts is a means of reason to prevent criminal acts. Revocation of political rights which is still debated can have an impact on its implementation. Therefore, in its implementation, of course requires a Law Enforcement Officer who has a step of thinking and progressive steps. Penal punishment is the authority of the Judge. Judges in imposing crimes should rely on the principle of substantive justice and are intended to provide protection to society (social deffence)