scholarly journals Judicial Error: Responsibility, but not the Right

Author(s):  
Vyacheslav Kurchenko

In the article, the causes of judicial errors are discussed. The author examines the possibilities of imposing discipline sanctions on judges for their errors, considers a range of questions. In particular, should a judge seek the truth while hearing a case? Is a judge responsible for not only his or her errors but also for the errors of investigators, experts, and other participants of a proceeding? The author indicates various types of judicial errors and comes to a conclusion that gradual accumulation of ordinary or insignificant errors in the judge’s activity inevitably leads to systematic (or unordinary) errors. They indicate that the judge is unfair or incompetent. Drawing on personal professional experience and judicial practice, positions of the Russian Constitutional Court and the European Court of Human Rights, the author makes a link between judicial errors and the quality of justice. He emphasizes that the judge should follow the legal rules concerning adjudication and maintain his or her level of competence.

2021 ◽  
Vol 3 (2) ◽  
pp. 154-171
Author(s):  
Malkhaz Sh. Patsatsiya ◽  

Introduction. The abolishment of a judicial act, which has entered into legal force, especially after a significant period of time, may occur in only exceptional cases. Otherwise, it contradicts the ap- proaches of the European Court of Human Rights and the Constitutional Court of Russia to the general requirement for legal certainty as regards res judicata. Exceptional cases include those relating to ensuring the right to a fair trial. The past judicial enforcement experience in modern Russia has shown that bankruptcy credi- tors, who believe that their rights have been violated by a judicial act, on which a claim filed by another person in a bankruptcy case is based, previously did not have any procedural defense mechanism. That was the case until one was introduced that would allow them to appeal such a judicial act if they believed that the claim, filed on its basis in a bankruptcy case, was based on an invalid transaction or lacks foundation due to the unreliability of evidence. This is so even in situ- ation where these judicial acts may have been adopted in cases in which they did not participate. The current judicial practice, however, shows that it is often impossible for them to protect their rights due to the incorrect understanding of the rules for calculating and/or restoring the term of appeal, as established in parts 1 and 2 of article 259 of the Code of Arbitration Procedure of Russian Federation. Theoretical Basis. Methods. The methodological basis of the work was the dialectical method. Such general scientific, private scientific legal and special methods of scientific knowledge inherent in the procedural sciences as the analysis and the synthesis, induction and deduction, dogmatic, comparative legal, and teleological methods, as well as the analysis and the generalisation of judicial practice have been used. Results. The article highlights the three most common erroneous, in the author’s opinion, approaches of courts to calculating and/or restoring the term of appeal. Discussion and Conclusion. Based on the results of the evaluation of the erroneous approaches, four major claims are formulated against them. These are based on the interpretation of the norms of parts 1 and 2 of article 259 of the Code of Arbitration Procedure of Russian Federation which corresponds to the tasks and principles of judicial proceedings in arbitration courts. The claims are based on the explanations of the Supreme Court of Russia related to the issue under consideration, its conclusions on specific cases, as well as the provisions of the decisions of the lower supervisory instances which deserve support. On this basis, the most realistic options for correcting judicial practice are indicated, which are absolutely necessary to ensure the right to a fair trial.


Author(s):  
Yaroslav Skoromnyy ◽  

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».


2021 ◽  
Vol 2 ◽  
pp. 90-96
Author(s):  
E. V. Markovicheva ◽  

The functioning of the jury in Russia has demonstrated not only effectiveness, but also a number of problems that need to be resolved. Such problems include the personal jurisdiction of criminal cases by jury. The article reveals the legal positions of the Constitutional Court of the Russian Federation regarding the right of minors to trial a criminal case in a jury. The approaches to solving this issue that have developed in the judicial practice of individual foreign states are analyzed, the main directions for further scientific discussion regarding the right of minors to a jury trial are outlined. The purpose of the article is to disclose various approaches to the administration of criminal justice in the relations of minors with the participation of lay judges. The theoretical basis of the study was Russian and foreign scientific works in the field of criminal procedure law, devoted both to the consideration of criminal cases with the jury, and the specifics of juvenile criminal proceedings. Using the comparative legal research method has allowed to reveal various approaches to the access of minors to jury trials in individual states. In Russian legislation and judicial practice the question of the right of minors to have a criminal case against them considered by a jury remains unresolved. The position of the Constitutional Court of Russia regarding the jurisdiction of such criminal cases is also controversial. The experience of foreign countries indicates that there is no universal way to ensure the right of a minor to a proper court. This issue is decided depending on the type of criminal process, the presence or absence of specialized juvenile courts. Any direct borrowing in this regard cannot be considered effective, but a generalization of foreign experience can create the necessary basis for optimizing both the work of the jury and criminal proceedings against minors.


Author(s):  
Egidijus Küris

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.


Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 620-644
Author(s):  
Tamás Korhecz

The right to peaceful enjoyment of property is a first-generation human right, protected by the international and domestic law of the highest rank. This is not an absolute right - the European standards of protecting property rights allow possible interferences prescribed by law. The interferences can be made in the public interest but only under the assumption that the proportionality between the public interest and property rights of individuals at stake is established. Forfeiture of undeclared cash the individuals are transferring across state borders, together with imposing fines for a misdemeanor, represent an interference with individuals' property rights. The EU Member States do not share an identical system of sanctions for this petty offense, but there is a tendency of unification related to the monitoring, registering, and sanctioning of undeclared, cross-border, individual cash transfer. The case-law of the European Court of Human Rights has established rather precise criteria for distinguishing permitted from unpermitted interferences in cases of undeclared cross-border cash transfers. The Serbian Constitutional Court has been faced with several constitutional complaints regarding alleged unconstitutionally of the imposed security measure amounting to the forfeiture of undeclared cash physically transferred across the state borders. The Constitutional Court has ruled inconsistently on the matter. Although it has regularly referred to the European Court of Human Rights' relevant decisions, it fails to be consistent in following the Strasbourg Court's rulings. In this article, the author has suggested that the legal certainty principle requires the Constitutional Court to consistently interpret the constitutional rights and be systematic in following Strasbourg. Only in this way, the Constitutional Court can help regular courts effectively to harmonize the interpretation and application of laws with the constitutional and international human rights standards regarding property rights.


2016 ◽  
Vol 4 (2) ◽  
pp. 0-0
Author(s):  
Лев Бертовский ◽  
Lyev Byertovskiy ◽  
Дина Гехова ◽  
Dina Gekhova

Federal Law No. 433-FZ «On Amendments to the Criminal Procedure Code of the Russian Federation and the Annulment of Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation» entered into force since January 1, 2013 in relation to the powers of prosecutors to lodge cassation representations against court’s decisions is under review in the article. The authors analyse judicial practice of cassation instance in Moscow City Court of 2014 year on criminal cases and demonstrate some omissions of prosecutors in consideration of cases in the court of cassation. The conclusion shows that a cassation representation should be prepared and submitted by subordinate to higher prosecutor, provided that public prosecutor shall obtain the right to apply directly to that prosecutor who has the right to lodge a cassation representation along with the project thereof. Such novel will positively influence to the quality of cassation representations prepared and made by prosecutors.


2016 ◽  
Vol 17 (31) ◽  
pp. 64-76 ◽  
Author(s):  
Valentin Paul Neamt

Abstract This paper presents the remedies available to persons whose European law rights have been infringed by judgments given by national Courts. The paper firsts presents the concept of state liability for judicial errors in relation to European law, as it stems from the case-law of the Court of Justice of the European Union, then goes on to show how the European Court of Human Rights may give redress to such aggrieved parties. Finally, it discusses the differences in the possibility of redress given by the two courts and the compatibility between their approaches, finally leading to a discussion on the possible convergence of the two.


Author(s):  
Silvia DEL SAZ

LABURPENA: Giza Eskubideen Europako Auzitegiaren jurisprudentziaren ondorioz, Konstituzio Auzitegiak aurreko doktrina zuzendu behar izan du. Horretarako, errugabetasun-presuntziorako eskubidearen irismena zabaldu behar izan du, eta, administrazio-ebazpen zehatzaileetatik eta zigor-epaietatik harago, kalte-ordaina ukatzen duten erabakietara zabaldu du hori, Botere Judizialaren Lege Organikoaren 294. artikuluak eskatzen duen bezalaxe, errugabetasun-presuntzioaren printzipioa ezarri ostean akusatua absolbitu egin den baina delituzko egintzak egon ez zirela frogatu ez den kasuetarako. RESUMEN: Fruto de la jurisprudencia del Tribunal Europeo de Derechos Humanos, el Tribunal Constitucional se ha visto obligado a rectificar su doctrina anterior extendiendo el alcance del derecho a la presunción de inocencia, más allá de las resoluciones administrativas sancionadoras y sentencias penales, a los pronunciamientos que, tal y como exige el art. 294 LOPJ, deniegan la indemnización en atención a que el acusado fue absuelto en aplicación del principio de presunción de inocencia sin que haya quedado probado que los hechos delictivos no existieron. ABSTRACT: As a result of the case law by the European Court of Human Rights, the Constitutional Court was compelled to rectify its former doctrine by broadening the scope of the right to the presumption of innocence beyond punitive administrative resolutions and criminal judgments to rulings that as art. 294 of Judiciary Act requires, deny the award of damages on the ground that the accused was acquitted due to the application of the principle of innocence without having been proved that the criminal offences did not exist.


2020 ◽  
Vol 1 (4) ◽  
pp. 1-8
Author(s):  
Sonya Liani Ramadayanti

This study aims to explain the position of tax debt and labour right in bankruptcy. The legal research method used in this research using normative research, the legal rules and legal principles used related to bankruptcy law, tax law and labour law will be a reference in describing the problem of the position of tax debt and labour right in bankruptcy cases. The Taxation Law gives a special treatment and higher position on which the tax debt is first to be paid by the debtor and followed by the right borne by the separatist creditor. On the other hand, Law Number 13 of 2003 concerning Employment also regulates that the labour of the wages and other rights of the labour and positioned the labour as preferred creditor on which the privilege is given by the law. However, there are no statements in the Employment Law that stated the position of labour as a preferred creditor is higher than separatist creditor in the matter of bankrupt as what the Taxation Kaw expressed creditor is higher than the separatist creditor within the matter of tax payment. That distinction seems positioned the preferred creditor status of labour is lower than the position of separatist creditor on the matter of right fulfillment in bankruptcy. It is certainty that the statement which stated that the collection of tax debts have the right to preceded than other debts does not fit in this matter. Eventually, there is a decision of Constitutional Court Number 67/PUU-XI/2013 that provides a change within the position labour’s right on the matter of bankruptcy.


2020 ◽  
Vol 29 (4) ◽  
pp. 221
Author(s):  
Krzysztof Orzeszyna

<p>The article addresses the issue of the right to natural and dignified dying in the case-law of the European Court of Human Rights. The right to life enshrined in Article 2 of the European Convention on Human Rights is currently balanced in judicial practice with the right to privacy. The right to effectively demand inflicting death is usually located in the sphere of autonomous human decisions. However, not only is the construction of such a right contrary to the principle of dignity of every person, but it would erode the guarantees vested in any terminally-ill person. The analysis of Strasbourg’s case-law setting a common standard for the ECHR Member States does not make it possible to assume the existence of the right to death as a subjective right of an individual. In the area of the protection of human life, States are obliged to take positive action. That relatively established case-law was clearly modified in the case <em>Lambert and others v. France</em>, as the Court crossed the red line in favour of passive euthanasia, accepting the vague French procedural rules recognizing artificial nutrition and hydration of the patient as a form of therapy that may be discontinued.</p>


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