Criminal Law and Procedure: Federal Courts: Substitution by Supreme Court of Its Inferences of Fact for Those of the State Court

1940 ◽  
Vol 38 (6) ◽  
pp. 858
Author(s):  
John S. Pennell
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Federal Courts ◽  
The State ◽  
State Court

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Administrative Law ◽  
The State ◽  
Government Officials ◽  
Criminal Process ◽  
The Supreme Court ◽  
State Finance ◽  
The Law ◽  
To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

7 The Supreme Court and Northern Ireland

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Law Enforcement ◽  
Northern Ireland ◽  
Supreme Court ◽  
Criminal Law ◽  
The State ◽  
Good Friday ◽  
The Supreme Court ◽  
Good Friday Agreement

This chapter begins by considering the arms trial in the early 1970s and outlines the gist of the Sunningdale Agreement in 1973 before considering the challenge to that Agreement dealt with by the Supreme Court in the Boland case. There follows an examination of the Court’s views on the constitutional status of Northern Ireland in McGimpsey v Ireland, decided in the wake of the Anglo-Irish Agreement of 1985, and on the constitutionality of the Belfast (Good Friday) Agreement in the Riordan case. There is an analysis of Law Enforcement Commission’s report and of the Court’s views on resulting Criminal Law (Jurisdiction) Bill 1975. The focus next moves to the shifting views of the Supreme Court on when it is appropriate to extradite suspected terrorists to Northern Ireland. Cases concerning Dominic McGlinchey, Séamus Shannon, Robert Russell, Dermot Finucane and Owen Carron are examined, as is the state of extradition law today.

Heeding Congress's Message: The United States Supreme Court Bars Federal Courthouse Doors to Habeas Relief Against All but Irrational State Court Decisions, and Oftentimes Doubly So

2012 ◽  
Vol 24 (4) ◽  
pp. 321-329 ◽  
Author(s):  
Daniel J. O'Brien
Keyword(s):  
Supreme Court ◽  
De Novo ◽  
The United States ◽  
The State ◽  
State Court ◽  
Court Decisions ◽  
Habeas Corpus ◽  
Criminal Convictions ◽  
Lower Courts ◽  
Federal Constitutional

Federal habeas corpus challenges to state criminal convictions grew significantly between 1948 and 1996 when traditional de novo review was coupled with an expanding list of federal constitutional protections the Supreme Court made applicable to the states. The landscape changed dramatically in 1996 when Congress amended 28 U.S.C. § 2254 with the Anti-Terrorism and Effective Death Penalty Act. Old and new procedural barriers to habeas review were codified. Merits review of state court decisions became highly deferential. In a series of recent decisions discussed in this article, most notably Harrington v. Richter, 131 S. Ct. 770 (2011), the Court strongly expressed its frustration with the failure of lower courts to heed Congress' mandate. Federal courthouse doors are now closed to all but the rare case where there “is no possibility for fair-minded disagreement” the state court acted unreasonably (not just erroneously) in deciding the merits. Review becomes “doubly deferential” when the claim is one where deference is already owed in state court; most notably, challenges to the effectiveness of counsel and to the sufficiency of the evidence. Deference is owed even when the state court issues a summary merits decision without opinion.

Stemming the Tide: Assisted Suicide and the Constitution

1995 ◽  
Vol 23 (4) ◽  
pp. 389-397 ◽  
Author(s):  
Carl H. Coleman ◽  
Tracy E. Miller
Keyword(s):  
Assisted Suicide ◽  
State Level ◽  
Federal Courts ◽  
The State ◽  
Equal Protection ◽  
State Court ◽  
State Laws ◽  
Equal Protection Clause ◽  
The Right

On November 8, 1994, Oregon became the first state in the nation to legalize assisted suicide. Passage of Proposition 16 was a milestone in the campaign to make assisted suicide a legal option. The culmination of years of effort, the Oregon vote followed on the heels of failed referenda in California and Washington, and other unsuccessful attempts to enact state laws guaranteeing the right to suicide assistance. Indeed, in 1993, four states passed laws strengthening or clarifying their ban against assisted suicide. No doubt, Proposition 16 is likely to renew the effort to legalize assisted suicide at the state level.The battle over assisted suicide is also unfolding in the courts. Litigation challenging Proposition 16 on the grounds that it violates the equal protection clause is ongoing in Oregon. More significantly, three cases, two in federal courts and one in Michigan state court, have been brought to establish assisted suicide as a constitutionally protected right.

scholarly journals Upaya Hukum Banding Terhadap Putusan Verstek Yang Diajukan Oleh Pihak Tergugat Dikaitkan Dengan Asas Kepastian Hukum Dalam Tinjauan HIR/RBG

2020 ◽  
Vol 6 (1) ◽  
pp. 129
Author(s):  
Sherly Ayuna Putri ◽  
Achmad Syauqi Nugraha
Keyword(s):  
Supreme Court ◽  
Research Method ◽  
The State ◽  
District Court ◽  
State Court ◽  
Court Ruling ◽  
Positive Law ◽  
Civil Proceedings ◽  
The Supreme Court ◽  
Case Number

The verdict of Verstek is the ruling that where the defendant, although called legitimately, does not come on a given day, and does not tell others to be facing his deputy, the claim is accepted with a decision without the presence (Verstek). Resistance is a legal effort against the verdict that was dropped outside the presence of the defendant. Essentially the resistance was provided for the defendant who (in general) was defeated. The Verzet is governed in article 125 paragraph (3) and 129 HIR, article 149 clause (3) Jo. 153 RBg. The research method which is conducted in this study is normative juridical research that emphasizes on the science of law and conduct an inventory of positive law relating to the effectiveness of statutory regulations in the fi eld of legal and descriptive analytical describing and analyzing the problems based on the legislation governing the law of civil proceedings regarding the legal efforts of Verstek decision. Based on the results of the study obtained fi rst problem of Verstek decision to be fi led by the defendant on the decision of the District Court of Bale Bandung Case Number: 37/PDT. G/2018/PN. BLB and the state court ruling of the Simalungun case number: 36/PDT. G/2013/PN. LICENSE does not conform to the norm in article 125 HIR and section 149 RBg. The two remedies that can be done by the plaintiff or the appeal is to apply for the appeal with the reasons set out in article 30 paragraph (1) of Law No. 5 of 2004 concerning the Supreme Court, among other things relating to the judge is not authorized or exceeds the limits of authority and or wrong in implementing or violating applicable laws.

scholarly journals Life after Jarvis—Just How Much Help Must You "Voluntarily" Give the Canada Revenue Agency?

2016 ◽  
Author(s):  
Chris Sprysak
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Income Tax ◽  
The State ◽  
Financial Information ◽  
Criminal Investigation ◽  
Supreme Court Of Canada ◽  
Privacy Rights ◽  
Voluntary Basis ◽  
Proper Balance

Society recognizes that privacy rights must be compromised to allow the State to administer and enforce an efficient and effective income tax regime. The question is — just how great should that compromise be? How much financial information should the State be allowed to require from its constituents to prepare, maintain and disclose on a "voluntary" basis for income tax purposes? Most importantly, for what purposes should this information obtained by the State be legitimately used, given the Charter and the criminal law privacy protections contained therein? In particular, can the Slate use its mandatory compliance powers to obtain information which would then be used to further a criminal investigation? Where is the line drawn? Although the 2002 Supreme Court of Canada decision in Jarvis provides some clarification and guidance, it does not go far enough in setting out the proper balance between a person s right to privacy and the State's need for disclosure in the income tax context. The purposes of this article are: (a) to provide a brief overview of a person's obligations to voluntarily provide both information and assistance to the State as part of the operation of the income tax regime, (b) to critically analyze the Jarvis decision in conjunction with previous jurisprudence to gain insight as to when the State will lose the ability to compel a person to assist it in its administration and enforcement duties, (c) to examine some post-Jarvis decisions to see how the State and the courts have responded to and applied the principles as set out in Jarvis, and (d) to provide some suggestions on how taxpayers, advisors and the Canada Revenue Agency might approach matters of this nature in the future.

Canons of Evasion in Constitutional Criminal Law

2017 ◽  
Author(s):  
Sharon Dolovich
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Judicial Review ◽  
The State ◽  
The Other ◽  
State Action ◽  
The Supreme Court ◽  
The Face ◽  
The One ◽  
The Right

In this chapter, Sharon Dolovich argues that the Supreme Court deploys three “canons of evasion” that undermine core constitutional principles: deference, presumption, and question substitution. The chapter shows how the Court on the one hand affirms basic constitutional principles—such as the right to counsel or the right against cruel and unusual punishment—that courts are to enforce against the state for the protection of individual penal subjects. Yet on the other hand, the doctrinal maneuvers of deference, presumption, and substitute question encourage judges in individual cases to affirm the constitutionality of state action even in the face of seemingly egregious facts. As a result, judicial review delivers almost automatic and uncritical validation of whatever state action produced the challenged conviction, sentence, or punishment. Dolovich identifies troubling questions raised by pervasive use of these canons for the legitimacy of the state’s penal power.

Public Law in the State Courts in 1927–1928

1928 ◽  
Vol 22 (3) ◽  
pp. 617-636
Author(s):  
Robert E. Cushman
Keyword(s):  
Supreme Court ◽  
Chief Executive ◽  
Federal Courts ◽  
The State ◽  
Constitutional Amendment ◽  
Special Session ◽  
Constitutional Amendments ◽  
State Supreme Court ◽  
The People ◽  
The Supreme Court

Special Session—Power to Propose Constitutional Amendments Not Included in Governor's Call. In 1926 a special session of the Pennsylvania legislature proposed an amendment to the state constitution in the form of a new section, although the subject-matter of this amendment was not referred to in the governor's proclamation calling the session. In a taxpayer's action to prevent the submission to the people of this proposal it was alleged that the proceeding was in violation of Art. 3, Sec. 25, of the constitution of Pennsylvania, which provides: “When the General Assembly shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such session.” In Sweeney v. King the state supreme court held that a resolution proposing a constitutional amendment is not “legislation” within the meaning of this clause. In reaching this conclusion it relied heavily upon its earlier decision in Commonwealth v. Griest in which it had held that a constitutional amendment is not “legislation” which must be submitted to the chief executive for his approval, a doctrine well established both in state and federal courts. An opposite result on the principal question was reached by the supreme court of California in People v. Curry. Here the restriction upon a called session of the legislature was held to preclude the proposal of a constitutional amendment. The purpose of the restriction was declared to be to regulate the duration of the session and keep down expenses, and this purpose, it was held, ought not to be defeated by a strained or highly technical interpretation.

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