scholarly journals Cassation filters in administrative judicial procedure: a step in a chasm or a novel that ukrainian society expected?

2021 ◽  
Vol 10 (40) ◽  
pp. 222-232
Author(s):  
Oleksii Drozd ◽  
Yuliia Dorokhina ◽  
Yuliia Leheza ◽  
Mykhailo Smokovych ◽  
Natalia Zadyraka
Keyword(s):  
Practical Implication ◽  
Case Law ◽  
Public Law ◽  
The Subject ◽  
Judicial Procedure ◽  
Administrative Proceedings ◽  
The Right ◽  
High Level ◽  
Dialectical Analysis ◽  
Use Of Assessment

The purpose of the article is to characterize the grounds for the use of "cassation administrative filters" as part of the mechanism for exercising the right of an individual to cassation appeal against a court decision in a public law dispute. The subject of research is the peculiarities of cassation review of decisions in administrative proceedings. Methodology: The methodological basis for the article are general and special methods of legal science, in particular: the method of dialectical analysis, the method of prognostic modeling, formal and logical, normative and dogmatic, sociological methods. The results of the study: The current regulations on the right of an individual to cassation appeal against court decisions in administrative proceedings by characterizing the existing procedural filters are analyzed. Practical implication: Based on the study of the case law, the types of administrative cassation filters applied by the courts when reviewing the decisions are identified. Value / originality: It is proved that achieving the effectiveness of the application of cassation administrative filters requires a high level of professionalism, which ensures the proper implementation of the individual’s right to file a cassation appeal, and developing the unified approach to the use of assessment categories.

scholarly journals Features of the implementation of discretionary powers by subjects of power and courts of the method of protection during administrative proceedings.

2021 ◽  
pp. 58-75
Author(s):  
Olena Gubska
Keyword(s):  
Judicial Discretion ◽  
Judicial Control ◽  
Procedural Law ◽  
European Court ◽  
History Of ◽  
The Subject ◽  
Judicial Procedure ◽  
Administrative Proceedings ◽  
The Right ◽  
Discretionary Powers

This article aims to the study of discretionary powers of subjects of power and the courtof the method of protection during administrative proceedings. The article presents the concept of discretion, framework, the history of the emergence of the concept of discretionary powers and the consolidation of this concept not only in domestic legislation but also in international instrument. The author claims that not all decision-making powers of the authorities are discretionary. Discretion is valid only when, within the framework of the law, a state body can independently (at its own discretion) choose one of several options for a specific legal decision. At the same time, the powers of state bodies are not discretionary, when there is only one lawful and legally justified variant of behavior of the subject of power. It was noted that discretionary powers should be limited by the current legislations. Their unjustified expansion will contribute to illegal decisions, increase various negative phenomena, including abuse of power. The article analyzes the numerical practice of the European Court of Human Rights, which enshrines the principle of prohibiting the intervention of the judiciary in the discretion of state authorities and substituting themselves for these bodies by making decisions on cases of legal entities or individuals. At the same time, it is emphasized that the Code of Administrative Judicial Procedure does not contain clear provisions that should guide the courts in determining the limits of judicial discretion. However, the court must be guided by the rules of substantive and procedural law, the principle of the rule of law. On one side, the court cannot exceed the limits of its intervention, but on the other side, its intervention must be effective and sufficient to ensure the implementation of the tasks of administrative proceeding and review of decision, action or inaction of the subject of power in accordance with the criteria of the Code of Administrative Judicial Procedure of Ukraine (section 2). Establishing the fact that the subject of power has the right to act in deciding at its discretion and compliance with the subject of the application of all the conditions prescribed by law to obtain a positive result affects the method chosen by court to protect individual rights. Keywords: discretion, discretionary powers, limits of application, judicial control, exceeding of authority.

MEASURES TO ENSURE THE CLAIM IN ADMINISTRATIVE PROCEEDINGS

2017 ◽  
Author(s):  
Olha Kravchuk ◽  
Keyword(s):  
Case Law ◽  
Time Frame ◽  
Public And Private ◽  
Simultaneous Application ◽  
Judicial Practice ◽  
Legal Provisions ◽  
Political Expediency ◽  
The Subject ◽  
Administrative Proceedings ◽  
The Right

The article deals with legal provisions, stagnation (judicial) practice in the acquired legal science, the types (measures) of securing the claim in administrative proceedings - one of the guarantees of the judiciary - are analyzed. Emphasis is placed on respect for problematic issues, which allegedly arise in stagnant courts, singing methods of securing an administrative lawsuit. The efficiency of legally defined means of securing an administrative claim is analyzed: suspension of an individual act or normative legal act; prohibition of the defendant to perform certain actions; prohibition of other persons to perform actions related to the subject of the dispute; suspension of recovery on the basis of an executive document or other document under which recovery is carried out in an indisputable manner, in terms of ensuring the implementation of the tasks of administrative proceedings. In particular, the legal consequences of securing a claim by suspending a normative act and revoking such an act are distinguished. At the same time, the courts were asked to move away from the established in practice, but excessive, simultaneous application of measures to secure the claim by suspending the normative legal or individual act and prohibiting the subjects of power to take action to implement such an act. It is proposed to return to the measures of securing the administrative claim previously excluded: the obligation of the defendant to take certain actions - as such, which is a proportionate and adequate way to secure the claim in case of appeal of inaction of the subject of power, in particular, inaction, and the actions requested by the plaintiff are legally significant and limited by a certain time frame. Particular attention is paid to the issue of restrictions on ways to secure the claim. Emphasis is placed on the need for a balanced and balanced restriction of measures to secure the claim, which would be motivated not by issues of political expediency, but would take into account the ratio of public and private interest in compliance with the criteria of proportionality. Aspects of abuse of the right to secure a claim are studied on the example of case law.

The right to appeal to the European Court of Human Rights

2020 ◽  
Author(s):  
Yuliya Samovich
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
The European Union ◽  
Educational Organizations ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Procedure ◽  
The Right ◽  
Judicial Protection

The manual is devoted to making individual complaints to the European Court of human rights: peculiarities of realization of the right to appeal, conditions of admissibility and the judicial procedure of the European Court of Human Rights. The author analyses some “autonomous concepts” used in the court's case law and touches upon the possibility of limiting the right to judicial protection. The article deals with the formation and development of the individual's rights to international judicial protection, as well as the protection of human rights in universal quasi-judicial international bodies and regional judicial institutions of the European Union and the Organization of American States. This publication includes a material containing an analysis of recent changes in the legal regulation of the Institute of individual complaints. The manual is recommended for students of educational organizations of higher education, studying in the areas of bachelor's and master's degree “Jurisprudence”.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

The issues of counteracting with resurgence of crimes: past and present trends

2019 ◽  
pp. 49-60
Author(s):  
Николай Алексеевич Коломытцев
Keyword(s):  
Case Law ◽  
Recidivism Rates ◽  
Legal Rules ◽  
Law Enforcement Officials ◽  
Crime Detection ◽  
The Subject ◽  
Judicial Errors ◽  
High Level ◽  
Detention Facilities

Наличие значительного уровня рецидива в стране напрямую связано с весьма низкой (до 47 %) раскрываемостью преступлений. Кроме того, высокий уровень рецидива преступлений свидетельствует о том, что применяемое к осужденным уголовное наказание в виде лишения свободы не всегда оказывает на них должное воспитательное и принудительное воздействие. Эта ситуация обусловлена недостатками деятельности администрации учреждений уголовно-исполнительной системы. Пробелы в законодательстве, ошибки в избрании судом вида и срока наказания сказываются на его эффективности. Рост рецидива преступлений связан и с неблагополучной жизненной ситуацией, в которой часто оказываются освобожденные от отбывания наказания. Все сказанное убедительно подтверждает актуальность и научную новизну данной работы. Целью написания данной статьи является попытка определения комплексной реализации борьбы с рецидивом преступлений. Предмет изучения рецидива преступлений определяется важностью существующих ценностей, причиняемым им ущербом и общественным резонансом в отношении этого явления. Методологическую основу работу составил метод познания, общенаучные и частнонаучные методы изучения. При этом использовались труды отечественных и зарубежных правоведов. В статье автор рассматривает историко-правовой, криминологический, уголовно-правовой и уголовно-исполнительный аспекты рецидива преступлений, анализирует законодательство и судебную практику за длительное время. Приводится понятие указанного социально-правового явления, предлагаются определенные направления его предупреждения. Статья представляет интерес для курсантов, слушателей, студентов юридических вузов, преподавателей и сотрудников правоохранительных органов. The high level of relapse in our country depends on the low crime detection rate (less than 47 %). In this context, ineffective penalization measures for offenders in prison can have an impact on recidivism rates. This fact revealed serious deficiencies in the administration of detention facilities. Gaps in legislation, judicial errors in the sentencing proceeds, incorrect type of punishment and penalty negatively affect the itseffectiveness. Difficult circumstances for discharged prisoners might cause the growth of resurgence. Thus, this article devoted to the topical and innovative issue. The aim of this article is to combat and prevent criminal activities in the area of resurgence. The subject matter of recidivism is determinated by the importance of social values, the harm inflicted, and public outcry provoked with this phenomenon. A methodological framework for this research includes the cognition method, common and private methods. The author used native and foreign scholarly writings. The author researches a historical and legal, criminological, criminal and penal reviews of relapse. He analysis legal rules and case law over a long term. “Resurgence of crimes” is defined. Some means of relapse prevention are supposed. The article might be meaningful for the students and tutors of law faculties, and also for the law enforcement officials.

scholarly journals Reasonable time frame in bankruptcy proceedings: Analysis of cases from the judicial practice of the Commercial Court in Niš

2021 ◽  
Vol 60 (90) ◽  
pp. 97-118
Author(s):  
Aleksandar Mojašević ◽  
Aleksandar Jovanović
Keyword(s):  
Case Law ◽  
Time Frame ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Reasonable Time ◽  
Judicial Practice ◽  
Reasonable Time Frame ◽  
The Subject ◽  
The Republic ◽  
The Right

The Act on the Protection of the Right to a Trial within a Reasonable Time, which took effect in 2016, has created the conditions in our legal system for the protection of the right to a trial within a reasonable time, as one of the fundamental rights guaranteed by the Constitution of the Republic of Serbia and related international documents. Although the legislator does not explicitly provide for the application of this Act in the context of bankruptcy proceedings, it has been used in judicial practice as a mean for the bankruptcy creditors to obtain just satisfaction in cases involving lengthy bankruptcy proceedings and a violation of the right to a fair trial within a reasonable time. The subject matter of analysis in this paper is the right to a trial within a reasonable time in bankruptcy cases. For that purpose, the authors examine the case law of the Commercial Court in Niš in the period from the beginning of 2016 to the end of 2019, particularly focusing on the bankruptcy cases in which complaints (objections) were filed for the protection of the right to a fair trial within a reasonable time. The aim of the research is to examine whether the objection, as an initial act, is a suitable instrument for increasing the efficiency of the bankruptcy proceeding, or whether it only serves to satisfy the interests of creditors. The authors have also examined whether this remedy affects the overall costs and duration of the bankruptcy proceeding. The main finding is that there is an increasing number of objections in the Commercial Court in Niš, which still does not affect the length and costs of bankruptcy. This trend is not only the result of inactivity of the court and the complexity of certain cases but also of numerous external factors, the most prominent of which is the work of some state bodies.

scholarly journals élethez való jog néhány jogelméleti kérdéséről

2013 ◽  
Vol 10 (1) ◽  
pp. 65-73
Author(s):  
Judit Vörös
Keyword(s):  
Case Law ◽  
Point Of View ◽  
In Vitro Fertilisation ◽  
Human Embryos ◽  
Constitutional Court ◽  
Right To Life ◽  
The Subject ◽  
The Right

Nowadays in vitro fertilisation raises relevant controversies at the point of view of jurisprudence as well. The distinct approximations of in vitro embryos, such as to be considered as personae or objects, are also resources of several theoretical and pragmatical questions. It is essential to give a compendious summary about what kind of jurisprudental environment had been contributed to the intrumental comprehension of human embryos too, otherwise it is difficult to understand the scientific quandaries connected to the subject correctly. Merely thereafter the international and the Hungarian regulation of in vitro embryo’s status seems to able to be dissected, in particular the case-law of the Hungarian Constitutional Court related to the right to life and the constitutional funds of the oncurrent re-regulation in our country.

Political Contracts

1992 ◽  
Vol 26 (4) ◽  
pp. 461-498 ◽  
Author(s):  
Itzhak Zamir
Keyword(s):  
Public Opinion ◽  
Case Law ◽  
Public Law ◽  
Private Law ◽  
The Subject

A new creature has been welcomed into Israel's family of law. While some refer to it as a political agreement, and others a public agreement, I prefer to call it a political contract.It was greeted with curiosity, suspicion, and even disapproval. And, although much has been written about it of late, its character has as yet to be determined. What distinguishes it from other agreements? Is it legally binding, or does it merely draw upon the force of public opinion? Is it justiciable? If binding, does it fall within the scope of private law or of public law? And what consequences attach to breach of the agreement?In this article, I will examine the primary questions regarding political agreements, present the existing case law and opinions, and express my views on the subject.

scholarly journals Powództwo przeciw dyskryminacji w Ustawie z dnia 3 grudnia 2010 r. o wdrożeniu niektórych przepisów Unii Europejskiej w zakresie równego traktowania

2019 ◽  
Author(s):  
Paweł Śmiałek
Keyword(s):  
European Union ◽  
Case Law ◽  
Equal Treatment ◽  
The European Union ◽  
Provision Of Services ◽  
Legal Position ◽  
The Subject ◽  
Legislative Activity ◽  
The Right ◽  
Legal Grounds

Discrimination is a phenomenon that has been existing in our society for many years. The main cause of increased legislative activity in European countries is the action of the European Union, which has issued a number of directives dealing with the problem of discrimination. Poland, as a member of the European Union, was obliged to implement anti-discrimination directives. The legislator did this by enacting the Act of 3 December 2010 on the implementation of certain European Union regulations on equal treatment (hereafter: the equality statute). The equality statue was a good step towards combating discrimination in areas such as the provision of services or capital fl ow. The legislator has also pointed to discriminatory features, including race, age, disability, sex, or sexual orientation. These features cannot serve as a basis for diff erentiating the legal position of legal entities. In carrying out a comprehensive analysis of the subject matter, the study presented in this article covered: the normative grounds of an anti-discrimination lawsuit, the right to compensation, which deviates signifi cantly from the defi nition set out in Article 361 of the Civ il Code, the substantive and legal grounds for action, the principles and the procedure for claiming compensation. The article also deals with the eff ectiveness of the application of the measure in the jurisprudence. To that end, the study examined the case law of common courts dealing with the facts related to the equality law. The Ombudsman and other anti-discrimination aut horities have also been contacted for information on the use of this measure. The paper identifi es as well, the potential solutions aimed at increasing the eff ectiveness and frequency of the use of anti-discrimination lawsuits before Polish common courts.

scholarly journals Right of Access under GDPR and Copyright

2018 ◽  
Vol 12 (2) ◽  
pp. 221-246
Author(s):  
Angela Sobolčiaková
Keyword(s):  
Data Protection ◽  
Copyright Protection ◽  
Personal Data ◽  
Case Law ◽  
Main Question ◽  
The Subject ◽  
The Right ◽  
Access Right ◽  
Right Of Access ◽  
Data Subject

The paper discusses the right to obtain a copy of personal data based on the access right guaranteed in Articles 15 (3) and limited in 15 (4) of the GDPR. Main question is to what extent, the access right provided to data subject under the data protection rules is compatible with copyright. We argue that the subject matter of Article 15 (3) of the GDPR - copy of personal data – may infringe copyright protection of third parties but not a copyright protection attributed to the data controllers.Firstly, because the right of access and copyright may be in certain circumstances incompatible. Secondly, the data controllers are primarily responsible for balancing conflicting rights and neutral balancing exercise could only be applied by the Data Protection Authorities. Thirdly, the case law of the CJEU regarding this issue will need to be developed because the copy as a result of access right may be considered as a new element in data protection law.

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