RECOURSE PERIOD TO THE ADMINISTRATIVE COURT THROUGH THE PRISM OF THE INFLUENCE OF THE SUPREME COURT

2018 ◽  
Author(s):  
Iryna Balakarieva ◽  
◽  
Krystyna Rutvian ◽  
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Scientific Work ◽  
Point Of View ◽  
Access To Justice ◽  
The Supreme Court ◽  
Judicial Errors ◽  
The One ◽  
Administrative Proceedings ◽  
The Right

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.

scholarly journals PENGAKUAN TERHADAP PIHAK NON-ADVOKAT DALAM PEMBERIAN BANTUAN HUKUM (Politik Hukum Bantuan Hukum Dalam Peraturan Perundang-Undangan Di Indonesia)

2017 ◽  
Vol 6 (3) ◽  
pp. 399
Author(s):  
Akmal Adicahya
Keyword(s):  
Supreme Court ◽  
Access To Justice ◽  
State Law ◽  
Legal Aid ◽  
Procedural Law ◽  
The Supreme Court ◽  
The Government ◽  
The Right ◽  
Law Student

Access to justice is everyone rights that have to be fulfilled by the government. The regulation number 16 year 2011 of legal aid is an instrument held by the government to guarantee the right. The regulation allowed the participation of non-advocates to provide the legal aid. Through this policy, government emphasizes that:1) Indonesia is a state law which legal aid is an obliged instrument; 2) the prohibition of non-advocate to participate in legal aid is not relevant due to inadequate amount of advocate and citizen seek for justice (justiciabelen), and the advocate is not widely extended throughout Indonesia; 3) Non-Advocates, especially lecturer and law student are widely spread; 4) there are no procedural law which prohibits non-advocate to provide a legal aid. Those conditions are enough argument for government to strengthen the participation of non-advocates in providing legal aid. Especially for The Supreme Court to revise The Book II of Guidance for Implementing Court’s Job and Administration.Keywords: legal aid, non-advocate, justice

scholarly journals Les exigences de l'impartialité quasi-judiciaire

2005 ◽  
Vol 18 (2-3) ◽  
pp. 585-594
Author(s):  
Patrice Garant
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Federal Court ◽  
Point Of View ◽  
Discretionary Power ◽  
Natural Justice ◽  
Past Behavior ◽  
The Supreme Court ◽  
Worth Reading ◽  
The One

The Supreme Court decision commented upon is another important administrative law decision which relates to principles of natural justice, and especially to the nemo judex rule (freedom from bias). Speaking for the majority, Mr. Justice Laskin states that the function exercised by the National Energy Board under section 44 of the National Energy Board Act is quasi-judicial although it consists in issuing a licence according to an extensive discretionary power. Consequently, principles of natural justice must be applied. The nemo judex rule means that if there is a "reasonable apprehension of bias" due to the past behavior or actions of a member of a quasi-judicial tribunal, that member must be disqualified from acting. Otherwise, the decision rendered by the tribunal must be quashed. Two years before his appointment to the Board, the chairman of the National Energy Board had in fact participated actively in operations and decisions bearing on the very subject-matter subsequently submitted to the Board. That placed the chairman in a situation of conflict of interest, although he had no personal pecuniary interest in the matter involved. The majority of the Supreme Court dissagrees with Mr. Justice de Grandpré's dissent as well as with the decision of the Federal Court of Appeal. Each expresses a point of view which is worth reading. The majority of the Supreme Court applies to administrative boards or tribunals exercising quasi-judicial functions the same critérium as the one applied under the common law to any inferior court. Another remarkable judgment of our Supreme Court.

scholarly journals The Devil’s in the Details: Evaluating the One Person, One Vote Principle in American Politics

2014 ◽  
Vol 2 (1) ◽  
pp. 4-31 ◽  
Author(s):  
Jeffrey W. Ladewig ◽  
Seth C. McKee
Keyword(s):  
Supreme Court ◽  
Total Population ◽  
Congressional Elections ◽  
Literal Interpretation ◽  
Constitutional Principle ◽  
Eligible Population ◽  
The Supreme Court ◽  
Voting Age ◽  
The One ◽  
The Right

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.

scholarly journals The Practice of Introducing Restrictions on the Right to Freedom of Peaceful Assembly within Administrative Proceedings and the Place of the Judicial Branch of Power in Determining the Admissibility of Such Restrictions

2020 ◽  
Vol 90 (3) ◽  
pp. 162-176
Author(s):  
М. А. Самбор
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Constitutional Court ◽  
Administrative Discretion ◽  
The Supreme Court ◽  
Executive Agencies ◽  
Administrative Proceedings ◽  
The Right ◽  
Legal Understanding

The author has researched the practice of the executive branch of power of Ukraine in establishing a collective (general) ban and restriction of the right to freedom of peaceful assembly under quarantine, as well as the place and role of the judicial branch of power represented by the Supreme Court and the Constitutional Court of Ukraine in determining the constitutionality of such restrictions and prohibitions. The powers of the Supreme Court on the constitutional submission to the Constitutional Court of Ukraine on the constitutionality of the Resolution of the Cabinet of Ministers of Ukraine “On quarantine to prevent the spread of acute respiratory disease COVID-19 caused by coronavirus SARS-CoV-2 and stages of weakening of anti-epidemic measures” dated from May 20, 2020 No. 392 on the establishment of a ban on the exercise of the right to freedom of peaceful assembly within administrative proceedings during the introduction of quarantine in Ukraine, as well as the justification of such a constitutional submission. It is important to analyze and form a legal understanding of the Decision of the Constitutional Court of Ukraine on the unconstitutionality of restricting and prohibiting the exercise of the right to freedom of peaceful assembly during quarantine within administrative proceedings – by adopting the relevant resolution by the Cabinet of Ministers of Ukraine, which was the result of administrative discretion of the highest agency in the system of executive agencies of Ukraine. In this regard, the study focuses on the motivation and validity of the decision of the agency of constitutional jurisdiction and understanding of those legal and social values that were the basis for the judges of the Constitutional Court of Ukraine while adopting the decision dated from August 28, 2020 No 10-r/2020.

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
Keyword(s):  
Supreme Court ◽  
Slovak Republic ◽  
Crucial Issue ◽  
Judicial Process ◽  
Horizontal Structure ◽  
Short Period ◽  
The Supreme Court ◽  
Procedural Error ◽  
The One ◽  
The Right

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.

scholarly journals Derecho a la salud vs. derecho de defensa / Right to health vs. right of defense

2018 ◽  
pp. 164-170
Author(s):  
Nadia Virginia Copello
Keyword(s):  
Social Work ◽  
Supreme Court ◽  
Due Process ◽  
People With Disabilities ◽  
Right To Health ◽  
Court Of Justice ◽  
The Supreme Court ◽  
Medical Benefits ◽  
The Right

La Corte Suprema de Justicia de la Nación Argentina revocó una sentencia que condenaba a una Obra Social al cumplimiento de prestaciones médicas. En el novedoso caso están en juego el derecho a la salud, a la cobertura médica integral de personas con discapacidad y el derecho de defensa, más precisamente, el respeto por el debido proceso, siendo esto último la base para así decidir en favor de la demandada.   The Supreme Court of Justice of the Argentine Nation revoked a sentence that condemned a Social Work to the fulfillment of medical benefits. In the new case, the right to health, the comprehensive medical coverage of people with disabilities and the right to defense are at stake, more precisely, respect for due process, the latter being the basis for deciding in favor of the defendant.

O’Bannon v. Town Court Nursing Center: Patients’ Right to Participate in Nursing Home Decertification

1982 ◽  
Vol 7 (4) ◽  
pp. 469-492
Author(s):  
Susan Rosenfeld
Keyword(s):  
Nursing Home ◽  
Supreme Court ◽  
State Government ◽  
Due Process ◽  
Alternative Methods ◽  
Legal Rights ◽  
Department Of Health ◽  
Nursing Home Patients ◽  
The Supreme Court ◽  
The Right

AbstractA decertification action by the Department of Health and Human Services (formerly the Department of Health, Education and Welfare) substantially impacts on the lives of Medicaid patients who reside in the affected nursing home. Decertification means that the federal government, the state government, or both will no longer pay for the care of Medicaid patients in the decertified home. Thus, a decision to decertify necessitates the transfer of elderly and infirm Medicaid patients out of the decertified home. Since this transfer may threaten the lives and health of these patients, they should be granted the right to participate in pre-decertification proceedings.However, in O'Bannon v. Town Court Nursing Center, the Supreme Court decided that patients do not have the right to participate in predecertification proceedings. The Court rejected the patients’ due process arguments, finding: 1) that decertification does not deprive the patients of any constitutionally protected interest in life, liberty, or property; and 2) that any adverse consequences of decertification are only an “indirect and incidental” result of government action.This Comment analyzes the Supreme Court opinion and concludes that the patients have protectable property and life interests that entitle them to participate in some form of hearing prior to the decertification of the nursing home where they reside. In addition, this Comment suggests alternative methods for asserting nursing home patients’ legal rights.

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.

scholarly journals Rights or Benefits? The Indian Supreme Court and Criminal Procedure

2019 ◽  
Vol 6 (1) ◽  
pp. 12-20
Author(s):  
Abhinav Sekhri
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Criminal Procedure ◽  
Criminal Process ◽  
The Supreme Court ◽  
Scant Attention ◽  
Indian Law ◽  
Indian Supreme Court ◽  
The Right ◽  
Procedural Rights

This article suggests that the recent decisions by the Indian Supreme Court in Mohan Lal v. State of Punjab, and Varinder Kumar v. State of H.P., are perhaps indicative of a more pervasive trend that stretches back to the dawn of the due process era in Indian law. This trend is one where the Supreme Court is confronted with systemic issues in the criminal process while dealing with petitions brought by singularly oppressed litigants, and it treats the litigation itself as a means to solve the perceived problem. The tool to solve these problem in the criminal process is the creation of new criminal procedure rights through the vehicle of Article 21. In its reformist zeal, scant attention is paid to the several important questions of scope and consequential remedy that are inherent to any notion of rights. Over time though, the Court seems to realise that hard cases make bad law. And when cases involving seemingly undeserving litigants start invoking those procedural rights, the Court signals a retreat and transforms the ‘right’ into a ‘benefit’, that it can dole out in only the most deserving cases. This is not a definitive study, but only offers a different perspective to examine the Supreme Court’s contribution to the field of criminal procedure.

scholarly journals Relevance Of Magna Carta To Rights Of Victims Of Abuse Of Power

SEEU Review ◽  
2015 ◽  
Vol 11 (1) ◽  
pp. 48-58
Author(s):  
Besa Arifi
Keyword(s):  
Due Process ◽  
The State ◽  
Point Of View ◽  
Access To Justice ◽  
List Type ◽  
Abuse Of Power ◽  
Comparative Aspect ◽  
Magna Carta ◽  
The Law ◽  
The Right

AbstractMagna Carta Libertatum is one of the few documents that continuously imply thorough discussions about fundamental principles of the law. In 2011,Lord McNelly, Justice Minister of UK at the time, has emphasized the core and everlasting principles that derived from this document:᠅ that the power of the state is not absolute᠅ that whoever governs the state must obey the law᠅ and that whoever governs the state must take account of the views of those who are governed (McNally, 2011).These are the fundamental principles of any government that strives to be distinguished as democratic, these are the self-evident truths that have been developed in the theory of social contract that established the modern day democracies.It is very common that article 39 of Magna Carta that provides for the right to due process, as well as article 40 that provides for the right to access to justice and justice itself, to be usually analyzed from the point of view of the rights of the person accused of a crime. However, it must be taken into consideration, that failure to guarantee these two very important human rights makes the accused person a victim of abuse of power.This article aims to analyze the relevance of Magna Carta in the rise of the concept of rights of victims of abuse of power. Although it is a concept developed later in history, the clauses of Magna Carta that remain in power can be directly linked to this category of victims.The thirteenth century provides a very important perspective on the position of the victim of crime and can be analyzed in a comparative aspect regarding the Common Law and the Civil Law historical development. The article will briefly explain the evolution of the concept of victims’ rights throughout these eight centuries to the modern times when these rights have become a crucial part of the national legislations of Western Balkan countries.

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