Background: Constituent parts of the right to a fair trial, which presuppose the need for the existence of institutions in a state that are authorised to review and resolve legal conflicts and united ...by the concept of ‘a court established by law’, are identified and studied in this article. The study is based on the decisions of the European Court of Human Rights, which outlines the criteria to which any institution authorised to administer justice must correspond. The aim of the study is to verify the Ukrainian laws that determine the principles of developing and functioning administrative courts in order to enshrine in their texts the requirements arising from the content of a legal formula for a ‘court established by law’.
Methods: In this article, the authors use the following special legal methods: conceptual-legal, comparative-legal, formal-legal, and others. For example, with the help of the formal-legal method, it was possible to analyse the current trends in the practice of national administrative courts in compliance with the proposed requirements.
Results and Conclusions: The article states that the operation of Ukrainian laws creates the right conditions for administrative courts to be perceived as institutions with ‘full jurisdiction’ in resolving public disputes of any kind. At the same time, the authors conclude that there are cases in which the courts violate the provisions of Art. 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, despite the fact that such provisions have been implemented in the national administrative, procedural law.
Exploring the referendum practices of eight European states, this book unpacks the intricacies of the institutional and procedural settings of referendum authorization to reach an equilibrium between ...the exercise of popular sovereignty and the protection of rule of law. The book also examines how, by authorizing certain issues and refusing others, state institutions can exercise considerable control over the whole referendum process.
Redefining Trial by Media: Towards a critical-forensic linguistic interface applies a range of linguistic models to recast trial by media not as a sensationalist and infrequent phenomenon, but as a ...systematic and routine process. Using critical discourse analysis and cognitive linguistic models, this book builds a Spectrum of Trial by Media which views juries in criminal trials as moulded by ideological media-made constructions of crime. The role of these media constructions is enhanced by the isolation levied on jurors by the linguistic composition of trial language, and reinforced by the language strategies of legal professionals in court. Critically deconstructing media portrayals of crime and forensically examining the language of criminal proceedings, this book offers a redefinition of trial by media which casts the role of the press as much more prevalent in the courtroom trial than is presently appreciated.
Digital open source information (DOSI) has emerged as a significant source of evidence for the International Criminal Court ('the Court') and other jurisdictions applying international criminal law. ...However, its use in litigation raises questions about who can be considered an expert in DOSI and what methods and safeguards they should adopt. This article examines how the Court can receive DOSI via expert evidence while maintaining rigorous fact-finding standards. It addresses challenges that DOSI introduces to the paradigm of expert testimony, including the lack of an overarching formalized system of DOSI accreditation, the typically group-based nature of DOSI investigations and the scope for misinterpretations and biases to result in erroneous conclusions. It proposes a novel six-factor test for the Court's identification of sufficiently qualified DOSI specialists as expert witnesses. At the same time, it highlights that DOSI specialists should utilize transparent, accessible and replicable methodologies, with quality control feedback loops, peer review processes and bias controls. The aim of the article is to facilitate the use of DOSI evidence to resolve atrocity crimes cases, while also maintaining rigorous fact-finding standards and conforming with due process and fair trial rights.
Foreword Florian Jessberger; Julia Geneuss
Journal of international criminal justice,
08/2023, Letnik:
21, Številka:
4
Journal Article
Recenzirano
More than 20 years ago, on 30 June 2002, the German Code of Crimes Against International Law (CCAIL) entered into force. The anniversary completed last year, gives reason to look back and reflect ...critically on the development of German international criminal law in the last 20 years.
The automation brought about by big data analytics, machine learning and artificial intelligence systems challenges us to reconsider fundamental questions of criminal justice. The article outlines ...the automation which has taken place in the criminal justice domain and answers the question of what is being automated and who is being replaced thereby. It then analyses encounters between artificial intelligence systems and the law, by considering case law and by analysing some of the human rights affected. The article concludes by offering some thoughts on proposed solutions for remedying the risks posed by artificial intelligence systems in the criminal justice domain.
This article discusses the scope of the constitutional due process clause in Brazilian administrative law, based on an analysis of the Brazilian Constitution, the Fifth (1791) and Fourteenth (1868) ...Amendments to the U.S. Constitution, the International Covenant on Civil and Political Rights, and the European and Inter-American human rights systems. The author concludes that since the due process clause (Brazilian Constitution Article 5.54, namely, “no one shall be deprived of liberty or property without due process of law”) was inspired by the U.S. Constitution, Brazilian legislators should exercise their powers of discretion in policy-making to adapt the clause to the realities of the Brazilian administrative authorities and to the experience of the quasi-independent authorities that perform the adjudicative function under U.S. administrative law.
O presente texto discorre sobre o alcance da cláusula constitucional do devido processo legal no direito administrativo brasileiro, lastreando-se na análise das Constituições brasileiras, das Emendas ...V de 1791 e XIV de 1868 da Constituição dos Estados Unidos da América, do Pacto Internacional relativo aos Direitos Civis e Políticos e dos sistemas europeu e interamericano de direitos humanos. O autor conclui que, tendo a cláusula do devido processo legal (art. 5º LIV da Constituição) sido inspirada no direito constitucional americano, a sua integral implementação no direito brasileiro dependeria de o legislador exercer sua discricionariedade política para adequar a realidade da Administração Pública brasileira à experiência das autoridades quase-independentes que exercem a função de julgar no direito administrativo norte-americano.
Exclusionary rule has been accepted in different legal systems and has not been clearly accepted in Iranian legal system. this rule can be justified both on the basis of individualism thinking and in ...the idea of collectivism. In the first approach, the goal is to further protect the accused and guarantee his human and individual rights, in the second approach, the goal is to improve the quality of the trial and the performance of the judicial system. Studies show that the dominant approach in Iranian law, as well as in many other individualistic legal systems, has been the reason for the exclusionary rule. the changes that have taken place in the legal system have caused the ideological foundations of this rule to change and society to thinking be in the center of attention rather than the individual, which in turn raises the status of the judiciary and, in other words, increases legitimacy. This study was conducted with a comparative study in the USA and Iranian legal system and the result is the confirmation of the rise of both legal systems to collectivist thinking as the basis for identifying exclusionary rule and attention to social feedback on the performance of the judiciary.
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