Cumulative Grounds in Petitions for Appellate Review and the Right to Fair Judicial Process

2020 ◽  
Vol 20 (1) ◽  
pp. 304-319
Author(s):  
Svetlana Ficová

SummaryAfter re-codification of civil law in the Slovak Republic, the rulings of the Supreme Court Special Panel are now binding on all panels of the Supreme Court. The first ruling dealt with a crucial issue of admissibility of appellate review in case of several grounds simultaneously shown in a petition for appellate review. According to the Special Panel’s opinion, cumulative grounds are not admissible either within vertical or horizontal structure. That is, it is not possible to combine the grounds for appellate review defined in the two sections of the Civil Litigation Procedure Code (§ 420 and § 421), or several grounds under the same section (§ 420). Should this occur, the court of appellate review will limit its considerations only to a procedural error specified in § 420, more specifically, the one defined earlier in order of precedence. Within a short period of time, the Supreme Court revised its opinion, and the Special Panel made a contrary ruling by which the cumulative grounds of appellate review were admitted. The purpose of this paper is to consider these two different decisions and to present also some other arguments.

2014 ◽  
Vol 2 (1) ◽  
pp. 4-31 ◽  
Author(s):  
Jeffrey W. Ladewig ◽  
Seth C. McKee

Ever since the Supreme Court instituted the one person, one vote principle in congressional elections based on its decision in <em>Wesberry v. Sanders</em> (1964), intrastate deviations from equal district populations have become smaller and smaller after each decennial reapportionment. Relying on equal total population as the standard to meet the Court’s principle, though, has raised some constitutional and practical questions stemming from, most basically, not every person has the right to vote. Specifically, there is considerable deviation between the current redistricting practices and a literal interpretation of this constitutional principle. This study systematically analyzes the differences between districts’ total populations and their voting age populations (VAPs). Further, we consider how congressional reapportionments since 1972 would change if, instead of states’ total populations, the standard for reapportioning seats were based on the VAP or the voting eligible population (VEP). Overall, the results indicate that the debate surrounding the appropriate apportionment and redistricting standard is not just normative, it also has notable practical consequences.


2016 ◽  
Vol 12 (2) ◽  
pp. 373
Author(s):  
Dudu Duswara Machmudin

This article aims to provide knowledge and understanding on the functions of the state law enforcement agencies in Indonesia. Differences of powers and functions of law enforcement agencies such as the Supreme Court, Attorney General’s Office and the Constitutional Court needs to be understood in depth. Furthermore, given the problems in all courts all over the world which is, among others, the slow settlement of cases, this article describes and analyses the role of Supreme Court Justices in resolving cassation and review cases before and after the issuance of the decree of the Chief Justice Number 119/KMA/SK/VII/2013 regarding the determination of the Day of Deliberation and Pronouncement and Number 214/KMA/SK/XII/2104 concerning Time Period for the Handling of Cases at the Supreme Court. However, when Constitutional Court pronounced Ruling Number 34/PUU-XI/2013 a problem arises in which the products of the two state judicial bodies seem to be inconsistent, especially in the framework for the resolution of criminal cases. On the one hand, the Supreme Court wants the creation of a judicial process that is simple, speedy, and low cost through the strengthening of the two products above, but on the    other hand the Constitutional Court through its award extend the time span of litigation process for the settlement of review cases which can be done repeatedly. Thus, in order to provide legal certainty, the Supreme Court issued Supreme Court Circular Number 7 Year 2014 which essentially affirms that the petition for review in criminal cases is limited only one time based on other legal basis namely Judicial Authority Act and Supreme Court Act.


Author(s):  
Sharon Dolovich

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.


Author(s):  
Iryna Balakarieva ◽  
◽  
Krystyna Rutvian ◽  

The article is devoted to the study of the peculiarities of regulating the recourse period to the administrative court from the point of view of due process. Clear up the issue to what extent the consolidation and regulation of the recourse period qualifies the requirements of the legal procedure, namely: clear legislative regulation; inadmissibility of violation of the rights, freedoms and interests of the parties; clear structuredness and regulation. The scientific work investigates the essence of the term circulation term and considers the feasibility of introducing it. An attempt was also made to compare the recourse period with the limitation, arguments are given why the introduction of the terms of appeal in administrative proceedings is not identical to the limitation in civil proceedings. Different positions are considered, referring to the practice of the Supreme Court and the opinions of scientists, why, on the one hand, the limitation cannot be introduced in the administrative process from the point of view of the principle of legal certainty, and on the other hand, how the recourse period violates the right to access to justice. The main attention is paid to the role of the Supreme Court in the formation of approaches to the application of limitations. The concept of contra legem, which is inherent in the countries of the Anglo-Saxon legal family, is considered and is used in cases where there is a need to deviate from the enshrined norm at the legislative level in order to avoid literal application of the law and not make an absurd or unfair decision. The thesis is emphasized, despite the fact that the Supreme Court sometimes deviates from the formally prescribed norms, however, this is the essence of the cassation proceedings: it is an additional guarantee of the protection of subjective rights by correcting judicial errors, as well as a kind of judicial control. The specific decisions of the Supreme Court are considered, in which the approaches to the practice of applying the recourse period have been changed. On the basis of the decisions of the Supreme Court, it was investigated how the Supreme Court by its decisions affects and changes the recourse period fixed at the legislative level, the key positions of the Supreme Court are highlighted, which today are guiding for the subjects of appeal to the administrative court.


2005 ◽  
Vol 18 (4) ◽  
pp. 691-710
Author(s):  
Denis Bourque

Clause 1(b) of the Canadian Bill of Rights specifies that every person has the right to equality before the law. The purpose of this article is to analyse, on the one hand, the meaning that the judges of the Supreme Court have given to this concept of equality before the law and, on the other hand, the way in which they have applied this aforementioned principle of Clause 1(b) of the Canadian Bill of Rights. Four judgements are the subject of Mr. Bourque's study. He concerns himself with the Drybones, Lavell, Burnshine and Canard judgements. In the course of analysing these cases, Mr. Bourque brings out the shilly-shallying of the judges in connection with their concept of equality before the law. In spite of this beating about the bush two concepts emerge at the level of the judges of the Supreme Court, namely an equalitarian concept of equality before the law, and a concept which makes equivalent equality before the law and the rule of law. According to Mr. Bourque, the analysis of these four judgements shows that it is the concept which makes equivalent equality before the law and the rule of law, which represents, the position of the Supreme Court, at the present time.


2017 ◽  
Vol 1 (100) ◽  
pp. 441
Author(s):  
María del Mar Navas Sánchez

Resumen:Este artículo aborda el probablemente más controvertido supuesto relativo a la relación dialéctica entre las libertades de expresión e información y el derecho fundamental a la propia imagen. El que tiene como titular de este último derecho a quien puede ser considerado, en general, como un personaje público. Lo hace, además, desde una doble perspectiva. Por un lado, se muestra la evolución experimentada en el régimen jurídico del derecho a la propia imagen de este tipo de personas desde que en 1978 y de manera novedosa nuestra Constitución reconociera por vez primera el derecho a la propia imagen comoun derecho fundamental autónomo y diferenciado de la intimidad en el artículo 18.1 CE hasta nuestros días. Se trata de un proceso que ha venido marcado por varios hitos: la aprobación en 1982 de una norma (la Ley Orgánica 1/1982, de 5 de mayo, de protección civil del derecho al honor, a la intimidad y a la propia imagen) en la que el legislador establece pautas muy concretas acerca del modo en que han de resolverse este tipo de conflictos; la intensidad con la que esta Ley ha condicionado la jurisprudencia de los jueces y tribunales de la jurisdicción ordinaria, particularmente del Tribunal Supremo; y, finalmente, el importante papel desempeñado por la jurisprudencia del Tribunal Constitucional que, prescindiendo de las prescripciones legislativas y operando conforme a categorías constitucionales, ha terminado por erigir, en un proceso que, a su vez, hemos diferenciado en dos etapas, al interés público presente en las imágenes controvertidas, en el elemento decisivo para resolver este tipo de conflictos. Pero por otro, además, se presta especial atención a las recíprocas relaciones que a propósito de este supuesto se han establecido a lo largo de estas décadas entre las jurisprudencias de los Tribunales Constitucional,  Supremo y de Estrasburgo. En este sentido, nos ha parecido especialmenteinteresante fijarnos no solo en el modo en que el Tribunal Constitucional se ha servido del canon europeo (art. 10.2 CE) para construir su propia doctrina sobre el derecho fundamental a la propia imagen de los personajes públicos, sino también y muy particularmente, en la forma en que esta doctrina del Tribunal Constitucional ha sido seguida o no por el Tribunal Supremo y, por tanto, en el modo en que este último se ha sentido vinculado, si es que lo ha hecho, a la misma, dando así cumplimiento a su obligación constitucional (art. 5.1 LOPJ).Summary:1. Introduction. 2. The little, but adequate, express influence of the european canon in the first constitutional case law on the fundamental right to own´s image. 3. The fundamental right to their own image of public figures in the constitutional case law prior to STC 19/2014. Its almost null follow-up by the supreme court. 4. The fundamental right to their own image of public figures in the latest constitutional case law. Its —now yes— reception by the supreme court. 5. The relationship of constitutional case law with that of the European Court of Human Rights on this specific right, seen through STC 19/2014. 6. Conclusions.Abstract:This paper tackles the probably more controversial case concerning the dialectical relation between the freedoms of expression and information and the fundamental right to the own image. The one that refers to so-called «public figures». It does so from a dual perspective. On the one hand, it shows the evolution experienced in the right to their image of this type of people since Spanish Constitution, in 1978, recognized for the first time the right to own image as a fundamental right autonomous and different from the right to a private life (art. 18.1) to the present day. This is a process that has been marked by several landmarks: the adoption in 1982 of a rule (Organic Law 1/1982, of May 5, on civil protection of the right to reputation, privacy and own image) inwhich the legislator lays down very specific guidelines as to how such conflicts should be resolved; the intensity with which this Law has conditioned the case law of judges and courts of ordinary jurisdiction, particularly the Supreme Court; and finally, the important role played by the case law of the Constitutional Court, which, regardless of the legislative requirements and taking constitutional categories as references, has finally established, in a process that we have differentiated in two stages, the public interest of the images (or, in other words, the contribution made by photos to a debate of general interest) in the decisive element to solve this type of conflicts. But on the other hand, special attention is also paid to the reciprocal relations that have been established over these decades among the case law of the Constitutional, Supreme and Strasbourg Courts. On this regard, we have found particularly interesting to look not only at the way in which the Constitutional Court has used the jurisprudence of the European Court of Human Rights (Article 10.2 Spanish Constitution) to establish its own doctrine on the fundamental right to their image of public figures, but also, especially, in the way in which this doctrine of the Constitutional Court has been followed or not by the Supreme Court and therefore if the latter has fulfilled its constitutional obligation (Article 5.1 Organic Law of the Judiciary).


2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.


2021 ◽  
Vol 6 (1) ◽  
Author(s):  
Albano Gilabert Gascón

AbstractIn 2017, the majority of the United Kingdom Supreme Court held in its judgment in the Gard Marine and Energy v China National Chartering (The Ocean Victory) case that, in bareboat charters under the ‘BARECON 89’ form, if both the owner and the charterer are jointly insured under a hull policy, the damages caused to the vessel by the charterer cannot be claimed by the insurer by way of subrogation after indemnifying the owner. The interpretation of the charter party leads to the conclusion that the liability between the parties is excluded. Faced with the Supreme Court’s decision, the Baltic and International Maritime Council (BIMCO) adopted a new standard bareboat charter agreement only a few months later, the ‘BARECON 2017’ form, which amends, among other clauses, the one related to insurance. The present paper analyses (i) the new wording of the clause mentioned above and (ii) its incidence on the relationship between the parties of both the charter agreement and the insurance contract and its consequences for possible third parties. Despite BIMCO’s attempt to change the solution adopted by the Supreme Court and his willingness to allow the insurer to claim in subrogation against the person who causes the loss, the consequences, as it will be seen, do not differ much in practice when the wrongdoer is the co-insured charterer. On the contrary, when the loss is caused by a time charter or a sub-charter, in principle, there will be no impediment for the insurer to sue him.


1989 ◽  
Vol 15 (2-3) ◽  
pp. 227-233 ◽  
Author(s):  
Paul Benjamin Linton

In Roe v. Wade, the Supreme Court held that “[the] right of privacy … founded in the Fourteenth Amendment's concept of personal liberty … is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” The Court acknowledged that “[t]he Constitution does not explicitly mention any right of privacy.” Nevertheless, the Court held that a “right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” However, “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ … are included in this guarantee of personal privacy.”


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