scholarly journals OF FENCES AND PEACE BETWEEN NEIGHBOURS

Obiter ◽  
2021 ◽  
Vol 30 (2) ◽  
Author(s):  
Ròsaan Krüger
Keyword(s):  
Domestic Violence ◽  
Human Rights ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Robert Frost ◽  
Privacy Rights ◽  
European Court ◽  
American Poet ◽  
Physical Barriers ◽  
Do So

The speaker in the poem “Mending Wall” by American poet Robert Frost questions the wisdom of the saying that “Good Fences Make Good Neighbo[u]rs”. The walls or fences referred to in the poem represent more than just physical barriers separating adjacent premises; the speaker sees them as representing obstacles to communication and friendship between individuals. Seen from theperspective of the speaker, a fence or wall is a “bad” thing. But the speaker is but one of the parties to the neighbourly relationship. For the speaker’s neighbour, a wall or a fence is “a protector of privacy”. Thus there are two views on walls or fences: they can be seennegatively as obstructing good relations, or positively as dividers that secure good relations between neighbours by separating them and protecting their privacy rights. What do dividers (or barriers), physical or otherwise, have to do with law? During recent research visits to the Durban Magistrate’s Court (October 2007, February 2008) the author noted with interest that magistrates at the Durban court often had to deal with applications for binding-over orders (or “peace orders”) intended to secure the peace between neighbours. Binding-over orders can be seen as legal “fences” or “walls” established in terms of statute at the request of one of the parties where violence or threats of violence imperil the peaceful co-existence of neighbours. Section 384 of the Criminal Procedure Act 56 of 1955 – which allows for such applications – is one of only two sections of that Act that remains on the statute book. The provisions of section 384 have been called archaic and irrelevant in view of the provisions of the Domestic Violence Act of 1998 and its 1993 predecessor. Seen in this light, a reconsideration of section 384 seems redundant. But the matter is not that simple. The application ofthe Domestic Violence Act requires the existence of a domestic relationship between the parties as defined in section 1 of that Act. The complainant who approaches a magistrate for a binding-over order in terms of section 384 and the person against whom the order is sought may not be in a domestic relationship as defined in the Act, thus ruling out the application of the Domestic Violence Act. Therefore, section 384 goes wider in that it aims to preserve the peace within a broader context than the Domestic Violence Act.Consequently reconsideration thereof is warranted. In this note the author discusses the provision for binding-over orders asset out in section 384 of the Criminal Procedure Act of 1955. In order to do so, she traces the origins thereof before considering the specific scope of section 384. In the main she analyses the constitutionality of this section in the light of relevant jurisprudence of the Constitutional Court and comparative jurisprudence of the European Court of Human Rights. She concludes with a recommendation.

scholarly journals The Guarantees of the Human Rights of the Defendant in the Law System in Kosovo

2017 ◽  
Vol 5 (11) ◽  
pp. 7
Author(s):  
Armend Podvorica ◽  
Adelina Rakaj
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Practical Implementation ◽  
Constitutional Court ◽  
Law System ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Law ◽  
The Republic

The paper "The guarantees of the human rights of the defendant in the law system in Kosovo" aims to treat the access of the Republic of Kosovo in the delivery of constitutional guarantees and legal guarantees to protect the defendant in the criminal procedure. Within these guarantees, special emphasis is placed on the judicious acts in force that provide these guarantees in the Republic of Kosovo. A special analysis with regard to this paper is dedicated to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the practice of European Court of Human Rights (ECtHR), the Constitution of the Republic of Kosovo and the Criminal Procedure Code of Kosovo (CPCK). The analysis of those acts clarifies that the guarantees of the Legal System in Kosovo coincide with the rights of the defendant. Another dimension that finds space within the paper is the practical implementation of the guarantees provided by the aforementioned acts in terms of the rights of the defendant. The role of the Constitutional Court in the Republic of Kosovo in the past and now has been mainly analyzed in the formation of the constitutional and international guarantees, applicable in Kosovo concerning the rights of the defendant in the criminal procedure.

scholarly journals Implementation of the legal positions of the European Court of Human Rights in Russian criminal procedure

2020 ◽  
pp. 116-125
Author(s):  
A. L. Osipov
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Legal Standards ◽  
Procedural Law ◽  
National Courts ◽  
European Court ◽  
National Implementation ◽  
Russian Constitution ◽  
State Of Affairs

The article offers an overview of the modern state of affairs in the field of the implementation of legal positions of the European Court of Human Rights (ECtHR) in Russian criminal procedural law and law-enforcement practices. Significant attention is paid to the legal approaches of the Russian Constitutional Court as one the main actors in the national implementation system who pointed out a series of problems in functioning of the conception known as «dialog between the Courts». We research the amendments to the Russian Constitution of 2020 year in respect of it’s meaning to the process of realization of the legal positions of ECtHR in the Russian criminal procedure. With the examples from the modern ECtHR case-law in respect of the Russia root problems in the law regulation of different stages and institutions of criminal procedure are being revealed. The article also offers analysis of the trends in national courts practices with proposals of it’s harmonization with the European legal standards.

scholarly journals IDENTIFICATION OF DATA EVIDING A NON-FULFILLMENT OF THE PERSONS ''OBLIGATIONS OF AN INSTRUMENT COOPERATION AGREEMENT AS A BASIS FOR CANCELLATION OR CHANGING THE DECISION IN THE COURT OF THE APPEAL INSTANCE

2018 ◽  
pp. 35-37
Author(s):  
R. M. Shageeva ◽  
Z. M. Magadieva
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Court Decision ◽  
Constitutional Court ◽  
Federal Law ◽  
Cooperation Agreement ◽  
European Court ◽  
Usual Manner ◽  
The Russian Federation

Code of Criminal Procedure of the Russian Federation, after the amendments introduced by the Federal Law of 03.07.2016 No. 322, provides for such an unfavorable consequence for a person who has entered into a pre-trial cooperation agreement in the event that he fails to fulfill its conditions, such as cancellation or amendment of a court decision on appeal. This consequence, along with the possibility of termination of the agreement, trial of the case in the usual manner, review of the court decision regarding the imposed punishment, is considered as the procedural responsibility of the said person. At the same time, the issue of the obligation of the person who entered into the pre-trial cooperation agreement to give truthful testimony regarding the accomplices of the crime, as well as his procedural status during the interrogation of the main case while fulfilling the conditions of the pre-trial cooperation agreement, remains debatable. The position of the Constitutional Court of the Russian Federation expressed in Resolution No. 17-P of 20.07.2016, as well as the position of the European Court of Human Rights of 04.12.2014 in the case of Alexander Valeryevich Kazakov v. Russia, which is discussed in this article.

CIVIL AND LEGAL LIABILITY OF JUDGES

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Human Rights ◽  
Pension System ◽  
Legal Liability ◽  
Judicial System ◽  
Constitutional Court ◽  
Model Code ◽  
European Court ◽  
The Status ◽  
The Law ◽  
The Right

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».

scholarly journals On the rule of law and the quality of the law: reflections of the constitutional-turned-international judge

2019 ◽  
pp. 131
Author(s):  
Egidijus Küris
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
European Convention ◽  
Constitutional Court ◽  
Legal Tradition ◽  
The Rule Of Law ◽  
Derechos Humanos ◽  
European Court ◽  
The Law

Western legal tradition gave the birth to the concept of the rule of law. Legal theory and constitutional justice significantly contributed to the crystallisation of its standards and to moving into the direction of the common concept of the rule of law. The European Court of Human Rights uses this concept as an interpretative tool, the extension of which is the quality of the law doctrine, which encompasses concrete requirements for the law under examination in this Court, such as prospectivity of law, its foreseeability, clarity etc. The author of the article, former judge of the Lithuanian Constitutional Court and currently the judge of the European Court of Human Rights, examines how the latter court has gradually intensified (not always consistently) its reliance on the rule of law as a general principle, inherent in all the Articles of the European Convention on Human Rights, to the extent that in some of its judgments it concentrates not anymore on the factual situation of an individual applicant, but, first and foremost, on the examination of the quality of the law. The trend is that, having found the quality of the applicable law to be insufficient, the Court considers that the mere existence of contested legislation amounts to an unjustifiable interference into a respective right and finds a violation of respective provisions of the Convention. This is an indication of the Court’s progressing self-approximation to constitutional courts, which are called to exercise abstract norm-control.La tradición occidental alumbró la noción del Estado de Derecho. La teoría del Derecho y la Justicia Constitucional han contribuido decisivamente a la cristalización de sus estándares, ayudando a conformar un acervo común en torno al mismo. El Tribunal Europeo de Derechos Humanos emplea la noción de Estado de Derecho como una herramienta interpretativa, fundamentalmente centrada en la doctrina de la calidad de la ley, que implica requisitos concretos que exige el Tribunal tales como la claridad, la previsibilidad, y la certeza en la redacción y aplicación de la norma. El autor, en la actualidad Juez del Tribunal Europeo de Derechos Humanos y anterior Magistrado del Tribunal Constitucional de Lituania, examina cómo el primero ha intensificado gradualmente (no siempre de forma igual de consistente) su confianza en el Estado de Derecho como principio general, inherente a todos los preceptos que forman el Convenio Europeo de Derechos Humanos, hasta el punto de que en algunas de sus resoluciones se concentra no tanto en la situación de hecho del demandante individual sino, sobre todo y ante todo, en el examen de esa calidad de la ley. La tendencia del Tribunal es a considerar que, si observa que la ley no goza de calidad suficiente, la mera existencia de la legislación discutida supone una interferencia injustificable dentro del derecho en cuestión y declara la violación del precepto correspondiente del Convenio. Esto implica el acercamiento progresivo del Tribunal Europeo de Derechos Humanos a los Tribunales Constitucionales, quienes tienen encargado el control en abstracto de la norma legal.

scholarly journals Mekanisme Komisi Pemberantasan Korupsi dalam Proses Penyadapan dilihat dari Perspektif Hak Asasi Manusia (HAM)

JURNAL BELO ◽  
2020 ◽  
Vol 5 (2) ◽  
pp. 74-85
Author(s):  
Jennifer Ingelyne Nussy
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Human Dignity ◽  
Privacy Rights ◽  
The Law ◽  
The Government ◽  
Investigation Process ◽  
Do So

ABSTRACT Recognition and protection of a guarantee of human dignity to earn a respectable place in the eyes of the law and government. Related to the interests of law enforcement, the Corruption Eradication Commission (KPK) for the purpose of wiretapping evidence in court, while will protecting the privacyrights of suspects. Legal protections for the accused to be seen as matter of law adopted. Therefore, the protection of the privacy rights of a person to be seen in the investigation process. For the Commission to conduct wiretaps should see privacy rights as stipulated in the law and the government should establish a special set of rules that intercepts, thus providing the possibility for law enforcement has the authority to do so does not conflict with human rights.

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