The paper is an elaboration of the speech held by the author on 20 April 2023 in Milan in the conference regarding the burden of proof in the new Italian civil trial. The author analyzes to what ...extent Italian labour judges are entitled to exercise their ex officio powers. It is emphasized how such powers are important to reach decisions based on the actual reality of the facts. The paper examines also the limits of ex officio powers, with regard to the principle of an adversarial process and to the proof of secondary facts.
Editorial Luis Bernardo RUIZ-JARAMILLO
Estudios de derecho (Medellín),
07/2020, Volume:
77, Issue:
170
Journal Article
Peer reviewed
Open access
Esta edición de la revista Estudios de Derecho de la Facultad de Derecho y Ciencias Políticas de la Universidad de Antioquia se complace en presentar a la comunidad académica este número, que ...contiene una sección temática sobre la carga de la prueba, tendencias actuales. En esta oportunidad recibimos colaboraciones de universidades ubicadas en España, Argentina, Chile, Cuba y Colombia, con estudios de sus legislaciones; pero también incluye el análisis de la temática en la legislación de Estados Unidos por un hispanoparlante (el prof. Dimaro Agudelo). La idea de esta edición nació a partir del evento anual de Reflexiones de Derecho Procesal organizado por el Semillero de Derecho Procesal (liderado por el profesor Oscar Alberto García Arcila) y el Grupo de Investigación EDJ, para su 5° encuentro, año 2020 que tiene como objeto el mismo tema de esta edición.
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The paper analyses how the European Court of Human Rights (ECtHR or the Court) assesses evidence when states conceal border practices, such as pushbacks, comparing the Court's approach in ...those cases to that in enforced disappearance cases. In both types of cases, states deny that the conduct - which would have violated human rights - has taken place and provide neither the applicants nor the Court with evidence. While surface examination of the relevant case law could suggest that the ECtHR shifts the burden of proof in the same way in both sets of cases, I demonstrate that the Court expects applicants in covert border enforcement cases to provide stronger evidence, which is then labelled as prima facie evidence. I argue that the burden of proof should be shifted in the same way in both scenarios, as the position of the victims and the availability of evidence is strikingly similar.
This article offers two theoretical contributions. First, we develop the concept of administrative burden as an important variable in understanding how citizens experience the state. Administrative ...burden is conceptualized as a function of learning, psychological, and compliance costs that citizens experience in their interactions with government. Second, we argue that administrative burden is a venue of politics, that is, the level of administrative burden placed on an individual, as well as the distribution of burden between the state and the individual, will often be a function of deliberate political choice rather than simply a product of historical accident or neglect. The opaque nature of administrative burdens may facilitate their use as forms of "hidden politics," where significant policy changes occur without broad political consideration. We illustrate this argument via an analysis of the evolution of Medicaid policies in the state of Wisconsin. Across three Governorships, the level of burden evolved in ways consistent with the differing political philosophies of each Governor, with federal actors playing a secondary but important role in shaping burden in this intergovernmental program. We conclude by sketching a research agenda centered on administrative burden.
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El presente trabajo tiene por objeto analizar la estructura, contenido y efectos de la nueva Directiva (UE) 2017/1852 del Consejo, de 10 de octubre de 2017, relativa a los mecanismos de resolución de ...litigios fiscales en la Unión Europea, la cual establece un marco armonizado y transparente para resolver litigios dirigido a favorecer un entorno empresarial propicio a las inversiones que otorgue seguridad jurídica y donde los mecanismos de resolución sean integradores, eficaces y sostenibles.
In a landmark decision, the Supreme Court of the Philippines held 'en banc' that, during refugee status determination (RSD), 'there is a shared and collaborative burden between the applicant and the ...protection officer'. The case concerned a Pakistani national seeking refugee protection on the ground of alleged religious persecution due to his religious conversion. The Refugees and Stateless Persons Protection Unit (RSPPU) of the Department of Justice - which is responsible for determining asylum claims in the Philippines - had found against the applicant because he had said during his interview that he was neither forced nor compelled to change religion; he was merely persuaded. Noting that the RSPPU has specialized knowledge and expertise in this area, the Court of Appeal below upheld the RSPPU's decision, observing that the RSPPU's 'factual findings are generally accorded great respect, if not finality, by the courts'
Dempster–Shafer evidence theory has been widely used in various fields of applications, because of the flexibility and effectiveness in modeling uncertainties without prior information. However, the ...existing evidence theory is insufficient to consider the situations where it has no capability to express the fluctuations of data at a given phase of time during their execution, and the uncertainty and imprecision which are inevitably involved in the data occur concurrently with changes to the phase or periodicity of the data. In this paper, therefore, a generalized Dempster–Shafer evidence theory is proposed. To be specific, a mass function in the generalized Dempster–Shafer evidence theory is modeled by a complex number, called as a complex basic belief assignment, which has more powerful ability to express uncertain information. Based on that, a generalized Dempster’s combination rule is exploited. In contrast to the classical Dempster’s combination rule, the condition in terms of the conflict coefficient between the evidences
is released in the generalized Dempster’s combination rule. Hence, it is more general and applicable than the classical Dempster’s combination rule. When the complex mass function is degenerated from complex numbers to real numbers, the generalized Dempster’s combination rule degenerates to the classical evidence theory under the condition that the conflict coefficient between the evidences
is less than 1. In a word, this generalized Dempster–Shafer evidence theory provides a promising way to model and handle more uncertain information. Thanks to this advantage, an algorithm for decision-making is devised based on the generalized Dempster–Shafer evidence theory. Finally, an application in a medical diagnosis illustrates the efficiency and practicability of the proposed algorithm.
This Article analyzes the interaction between the burden of proof and evidentiary discovery rules. Both sets of rules can affect incentives for prospective injurers to invest in evidence technology ...(i.e., ex ante investments that increase the quantity and quality of evidence in case an accident occurs). This interaction becomes acutely important in the private international law setting, where jurisdictions are split on the question whether the burden of proof should be treated as a substantive or procedural matter. When a tort occurs in Europe, but the case is litigated in American courts, treating the burden of proof as a procedural matter preserves the complementarity of incentives created by the burden of proof and evidentiary rules. Conversely, treating the burden of proof as a substantive matter creates a mismatch in incentives created by the burden of proof and evidentiary rules.
The purpose of this commentary on the judgment of the Supreme Administrative Court (SAC) mentioned in the title is to present the relationship between the tax authority and the taxpayer seeking ...relief from a tax liability. The literature and court rulings, the most recent example of which is the SAC ruling under review, indicate that it is the taxpayer who bears the burden of proving that the prerequisites for granting tax relief are present, namely an important interest of the taxpayer or the public interest. The institution of the burden of proof, characteristic of civil proceedings, should not be transferred to tax proceedings, where it is the statutory duty of the tax authority to clarify all the circumstances of the case. This does not mean that the taxpayer should not point out to the tax authority all the circumstances supporting the granting of relief. However, this does not follow from the fact that the taxpayer, as the applicant, bears the burden (obligation) of proving the existence of the prerequisites. There are and should be no provisions in the Tax Code imposing such an obligation. The taxpayer should submit any evidence justifying the relief in compliance with the principle of cooperation between the taxpayer and the tax authority. This is one of the general principles of tax law found in the literature and court decisions and boils down to the fact that the taxpayer is obliged to cooperate with the authority in charge of the procedure for granting the tax relief requested by the taxpayer. This principle, like many other general principles of tax law, should be inscribed in the current Tax Code, as has long been advocated in the literature.
In May 2021 the High Court in 'Re Edwards' found that Whakatohea hapu and other applicant groups were entitled to statutory recognition, under the 'Marine and Coastal Area (Takutai Moana) Act 2011', ...of customary title over the marine and coastal area in various parts of the eastern Bay of Plenty. The marine and coastal area (or takutai moana) is the area between the mean high-water mark and the outer boundary of the territorial sea. The judgment in 'Re Edwards' is a landmark decision and there are many things about it to be lauded. The purpose of this note, however, is not to repeat what has already been said. I will summarise the case and its background, and then comment on the Court's treatment of the burden of proof and, more briefly, the requirement for exclusivity in establishing customary marine title over the takutai moana.
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