scholarly journals Electoral disputes in the legal positions of the Supreme Court

2021 ◽  
pp. 74-84
Author(s):  
Oksana Hnativ
Keyword(s):  
Supreme Court ◽  
Good Governance ◽  
Case Law ◽  
Legal Regulation ◽  
International Standards ◽  
Procedural Law ◽  
European Court ◽  
Election Process ◽  
Equal Importance ◽  
The Supreme Court

The article is devoted to the study of the rulings of the Supreme Court in the field of suffrage protection. The author uses specific examples to illustrate the importance of jurisprudence for the effective protection of the said rights of all participants in the election process in Ukraine. The interpretation of legal regulations by the Supreme Court is designed to ensure the certainty of the legal regulation when applying it to resolve disputes in the court. At the same time, the analysis of jurisprudence demonstrates the low level of legal culture in society, as well as the need for educational measures to ensure the exercise of suffrage and their protection. Particular emphasis has been placed on the universality of the legal conclusions of the Supreme Court. In particular, certain criteria of good governance can be applied when considering administrative cases related to the exercise of powers of state bodies and local self-government bodies, their officials, regardless of the category of cases. The conclusion regarding the conditions for declaring the inaction of the subjects of power illegal is similar. At the same time, the Supreme Court does not always achieve legal certainty in its rulings. An example is the case on the legal nature of the President’s of Ukraine poll, which does not specify the criteria for distinguishing covert agitation from the poll (exit poll). The resolution of procedural issues related to the delimitation of jurisdiction, as well as the issues of consolidation and separation of claims has equal importance. The issue of election cases, including territorial ones, jurisdiction, needs to be resolved, given the reduced deadlines for applying for protection of suffrage. The unity of the practice of application of procedural regulations ensures the equality of participants in the administrative process before the procedural law and the court. The analysis of the case law of the Supreme Court shows its compliance with international standards, in particular, the case law of the European Court of Human Rights. Key words: suffrage, Supreme Court, right to defense, election case.

scholarly journals Special courtroom as an element of child-friendly justice: organizational and legal aspect

2021 ◽  
pp. 16-26
Author(s):  
Pavlo Parkhomenko
Keyword(s):  
Legal Aspect ◽  
Children's Rights ◽  
Case Law ◽  
Legal Regulation ◽  
International Standards ◽  
Children’S Rights ◽  
European Court ◽  
Child Friendly ◽  
Basic Approaches ◽  
The Impact

The entry of a child into the sphere of justice, regardless of its status, requires the creation of such conditions that would minimize the possibility of the impact of negative factors in the process of administering justice on the child himself. In this regard, one of the effective and important elements in the child-friendly justice system may be the organization of a special courtroom, which would be adapted to hear cases involving a child, which is not widely used in national practice and does not have the appropriate legal regulation in general. In addition, to date, there are no studies that would reflect the problems of organizing a courtroom, in which it is possible to try different categories of cases with the participation of the child. The article attempts to conduct a theoretical and legal study of existing international standards and national legal regulation of the organization of child-friendly courtrooms, identifying the basic elements for its creation, through which it is possible to formulate basic approaches to the administration of child-friendly justice. The author stressed that international standards refer to the components of child-friendly justice, including the issue of creating the most comfortable conditions for the child in the courtroom and directly during the hearing. To substantiate the conclusions, we analyzed the national case law and the case law of the European Court of Human Rights, which demonstrates cases of violation of children's rights by not creating appropriate conditions for the trial of children, and emphasizes the importance of the situation in which the trial took place. from litigation involving adults. Positive practices of organization of special courtrooms in some courts of Ukraine are given. Based on the analysis, it was found that the issue of arranging a courtroom friendly to children has no legislative and departmental regulations, in connection with which proposed ways to address the legislative gap in this direction and guidelines for organizing a special courtroom, which is positively assessed. Рrovided children who were invited to court and who had the opportunity to compare the general courtroom and the special. Keywords: international standards, children's rights, child-friendly justice, child interview, courtroom.

scholarly journals The concept and essence of the principle of inadmissibility of abuse of procedural rights in administrative judiciary

2021 ◽  
Vol 66 ◽  
pp. 135-141
Author(s):  
Yan Bernazyuk
Keyword(s):  
Case Law ◽  
Fair Use ◽  
Public Interests ◽  
Procedural Law ◽  
European Court ◽  
The Supreme Court ◽  
Legal Legitimacy ◽  
Definition Of ◽  
Administrative Proceedings ◽  
Procedural Rights

The article is devoted to the definition of the peculiarities of observance in administrative proceedings of the principle of inadmissibility of abuse of procedural rights. The concept and essence of abuse of procedural rights in administrative proceedings are clarified, the meaning of the principle of inadmissibility of abuse of procedural rights is established. The legal basis of the principle of inadmissibility of abuse of procedural rights in administrative proceedings is investigated. Based on the analysis of the case law of the Supreme Court, the European Court of Human Rights established the content of the principle of inadmissibility of abuse of procedural rights. The opinion that the abuse of procedural rights is opposed to the conscientious abuse of procedural rights by the parties is substantiated. The author argues that the abuse of procedural rights may be recognized as actions or omissions of a party to the case, which are characterized by a sign of apparent legal legitimacy, but are used for the opposite or inconsistent with the pursuit of the relevant procedural right or obligation. Based on the analysis of the Constitution of Ukraine, international acts, laws of Ukraine and case law, it is proved that the main purpose of the principle of inadmissibility of abuse of procedural rights is to guarantee the fair use of their procedural rights. The author discloses the content of the fair use of the parties' procedural rights, which includes the use of the relevant rights for the purpose for which these rights are granted, and in the manner prescribed by procedural law, as well as conscientious performance of duties specified by law or court. The study made it possible to state that the introduction of the principle of inadmissibility of abuse of procedural rights is important for improving the effectiveness of administrative courts to protect the rights and interests of individuals, public interests and the interests of the state.

scholarly journals International Standards of Proof at the Stage of Court Consideration of Criminal Proceedings for Infringement of Intellectual Property Rights

2021 ◽  
pp. 111-122
Author(s):  
Yevhenii KOMPANETS
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Supreme Court ◽  
Intellectual Property Rights ◽  
International Standards ◽  
Reasonable Doubt ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
Standards Of Proof

Based on the analysis of scientific works, decisions of the European Court of Human Rights, foreign and national law enforcement practice, the theoretical aspects and the practice of use of standards of proof «weighty conviction», «beyond reasonable doubt» in criminal proceedings for infringement of intellectual property rights have been studied. Based on the opinions of scholars and the positions of the courts, the problematic issues, in particular, the place of the balance of probabilities in the judicial standards of proof and criminal proceedings have been identified. Critical remarks on the existing approaches have been made and the consequences of the lack of unity of the approach to implementation of standards of proof in Ukraine have been outlined. Recognition by the Supreme Court of the permanent criteria of the standard «beyond reasonable doubt» does not secure against contradictory judgements/decisions in similar cases. Such decisions do not contribute to the principles of legal certainty and fairness; they lead to avoiding of liability by infringers, repeated infringement of intellectual property rights and introduction of counterfeit products/counterfeit content into turnover. For discussion in the scientific community and for taking into consideration by the practical workers, a number of the decisions of the Supreme Court, which could guide further implementation of judicial standards of proof on the basis of the established criteria, inner conviction and «common sense», has been proposed.

scholarly journals THE PROBLEMATICS OF EXECUTION LAW AGAINST NON-EXECUTABLE JUDGMENTS AND COMPARISONS WITH MALAYSIAN LAW

JURISDICTIE ◽  
2019 ◽  
Vol 9 (2) ◽  
pp. 244
Author(s):  
Bambang Sugeng Ariadi Subagyono ◽  
Ghansham Anand
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Legal Protection ◽  
Legal Regulation ◽  
District Court ◽  
Legal Subject ◽  
Civil Case ◽  
Procedural Law ◽  
The Supreme Court ◽  
Civil Laws

<p>In public courts, the litigation of civil case is under civil law procedure. This is a legal regulation to maintain material civil laws. The procedural law is also a way to file a particular civil case to civil court and to organize judges’ ways in making judgment toward legal subject. Civil law procedure prevents any vigilante actions that creates public legal order. Judiciaries provide protection for legal subject in preserving their rights and prevent any arbitrary actions. After case investigation process set under procedural law, a court judgment is made to judge and solve case. Legal actions are subsequently conducted to reach fixed legal judgment (inkracht van gewijsde). Some executions for civil cases in Indonesia is suspended since the object is different from reality or non-executable. Furthermore, civil case judgment is sometimes contradictory to criminal cases, although the objects are similar. Either litigant and/or defendant files request to the Supreme Court to have a legal protection or the chairman of district court requests for an instruction from the Supreme Court, may suspend court judgment. Therefore, the implementation of court judgments with legal power is still undeniably problematic. If the execution is suspended or not allowed, it may disadvantage “the justice seekers”; public society. The suspended or non-executable judgment should be immediately addressed on its implementation, instead of its law.</p><p><br />Di pengadilan umum, proses kasus perdata berada dalam prosedur hukum perdata. Ini adalah peraturan hukum untuk mempertahankan hukum sipil material. Undang-Undang prosedural ialah cara mengajukan kasus perdata ke pengadilan sipil dan mengatur cara hakim memutuskan subjek hukum. Prosedur hukum perdata bertujuan mencegah tindakan hakim-sendiri sehingga tercipta tatanan hukum publik. Peradilan memberikan perlindungan bagi subjek hukum dalam melestarikan haknya dan mencegah kesewenang-wenangan. Setelah proses penyelidikan kasus sebagaimana diatur dalam hukum prosedural, putusan pengadilan dibuat untuk menilai dan memecahkan kasus. Tindakan hukum selanjutnya dilakukan hingga mendapat keputusan hukum tetap (inkracht van gewijsde). Beberapa putusan kasus perdata Indonesia ditangguhkan karena objek berbeda dari kenyataan atau tidak dapat dieksekusi. Selanjutnya, putusan kasus perdata terkadang bertentangan dengan kasus pidana, meskipun objeknya sama. Baik penggugat dan/atau terdakwa mengajukan permintaan ke Mahkamah Agung untuk memiliki perlindungan hukum atau ketua dari pengadilan distrik meminta instruksi dari Mahkamah Agung, bisa menangguhkan keputusan pengadilan. Karenanya, pelaksanaan putusan pengadilan dengan kekuatan hukum masih bermasalah. Jika eksekusi ditangguhkan atau tidak diizinkan, tentu dapat merugikan “para pencari keadilan”; masyarakat umum. Putusan yang ditangguhkan atau tidak dapat dieksekusi harus segera ditangani pada pelaksanaannya, bukan hukumnya.</p>

scholarly journals THE ELIMINATION FROM THE RIGHT TO INHERITANCE: THEORY AND PRACTICE

2020 ◽  
pp. 5-9
Author(s):  
M. Bondareva ◽  
S. Rabovska
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Case Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Theory And Practice ◽  
Systematic Analysis ◽  
The Supreme Court ◽  
Legal Position ◽  
The Right

The article deals with the legal regulation for removal from the right to inheritance and law enforcement of the norm of Art. 1224 of the Civil Code of Ukraine. The study aims at developing the theoretical foundations of the application of this legal norm on the basis of analysis of legislation and case law. Such methods and approaches as systematic analysis and competent legal interpretation have been applied. The Civil Code of Ukraine regulates cases and removal of grounds for the right to inheritance. Article 1224 of the Civil Code of Ukraine is applied to heirs at law; it distinguishes cases and grounds for exclusion from the right to inheritance by various criteria. However, what is typical for the countries of the continental group, the law needs to be clarified, first of all at the level of law enforcement practice. The highest jurisdiction of Ukraine – the Supreme Court of Ukraine and the Supreme Court, made appropriate clarifications and interpretations of relevant legal norms at the general theoretical level (decision of the Plenum of the Supreme Court of Ukraine) and at the level of unification of general practice through expressing a legal position in specific cases. Such interpretation should be considered clearly and sufficiently for further processing. However, judicial interpretation is not competent to correct legislative inaccuracies. And the case law itself is characterized by a tautology and inconsistency, when the departure from the previously adopted legal position is disguised under the difference of legal and factual grounds of the claim. The results of such miscalculations include variability of methods of judicial protection for the heirs of the first turn (paragraph 2, part 3 of Article 1224 and part 5 of Article 1224 of the Civil Code of Ukraine) and procedural difficulties in proving claims – proving the testator's helplessness, address need assistance from the defendant, etc. In addition to legal uncertainty, which results in the poor functioning of institutions of exclusion from the right to inherit, this state of affairs creates grounds for abuse of rights. The authors propose measures to solve the problem, which can be divided into several groups. The first concerns amendments to Paragraph 2, Part 3 of Art. 1224 and Part 5 of Art. 1224 of the Civil Code of Ukraine: in terms of the subject composition, in particular, the permission of the heirs of other than the first turn, the order of inheritance, to sue on the basis of Paragraph 2 of part 3 of Article 1224 of the Civil Code of Ukraine. The second is aimed at intensifying the institution provided by Paragraph 2 of Part 3 of Article 1224 of the Civil Code of Ukraine, inter alia, due to the uniformity and consistency of judicial practice. The introduction of the principle of participation in inheritance by bona fide heirs as a reward for their care of the testator, and the relatively easy removal of the right to inherit those who did not show such care, will also contribute to the revival of law enforcement. Finally, the third group of measures is related to the promotion of inheritance through wills, which will limit the number of disputes in inheritance cases (mainly cases of invalidation of the will) and put an end to the issue of exclusion from the right to inherit.

scholarly journals Comparative Analysis of Casework by the Supreme Court of the Republic of Latvia and the Supreme Court of the Republic of Finland

2016 ◽  
Vol 2 (5) ◽  
pp. 74-85
Author(s):  
Vladimir Jilkine
Keyword(s):  
Comparative Analysis ◽  
Supreme Court ◽  
Case Law ◽  
The Other ◽  
European Convention ◽  
European Court ◽  
The Supreme Court ◽  
The Republic ◽  
National Constitution ◽  
Legal Meaning

The article deals with the legal meaning of the European Convention and decisions of the European Court of Human Rights for the national law proceedings in Latvia and Finland. Case-law of the Republic of Latvia Supreme Court and Supreme Court of Republic of Finland shows that the European Convention refers to important legal instruments, which must be taken into account when deciding on the case. When considering claims for cancellation of in force decisions on the basis of the ECHR Resolution on the recognition of a violation by Finland of Articles of the Convention, the Court refers to numerous decisions of the European Court of affecting the interests of Finland and the other member countries of the Convention, details examining and comparing the circumstances of each case. At the same time the final basis for a decision is based on the national Constitution of the Republic of Finland and Procedure. Rakstā tiek analizēta Eiropas Konvencijas juridiskā nozīme un Eiropas Cilvēktiesību tiesas lēmumi kontekstā ar nacionālajām tiesībām Latvijā un Somijā. Latvijas Augstākās tiesas un Somijas Republikas Augstākās tiesas judikatūra liecina, ka Eiropas Konvencija uzskatāma par svarīgu juridisku instrumentu, kas jāņem vērā, izskatot lietu. Kad tiek izskatītas sūdzības par spēkā esoša nolēmuma atcelšanu, pamatojoties uz ECT rezolūciju par pārkāpuma atzīšanu Somijā, tiesa atsaucas uz daudziem ECT lēmumiem par konvencijas pārkāpumiem Somijā un citās valstīs, detalizēti izskatot un salīdzinot apstākļus katrā lietā. Vienlaikus galīgais lēmums ir balstīts uz Somijas Republikas Konstitūciju un procedūru.

scholarly journals Problems issues on the application of the national courts of the European Court of Human Rights practice as a source of law

1970 ◽  
pp. 422-426
Author(s):  
Karina Soklakova
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
National Courts ◽  
High Courts ◽  
Human Rights Practice ◽  
European Court ◽  
Legal Nature ◽  
The Supreme Court ◽  
The Law

The article explores the main problems of the application by the national courts of the case law of the European Court of Human Rights as a source of law. Analyzing the rules of the law and examining the views of the Supreme Court have highlighted the problematic issues of the obligation to apply the case law of the European Court of Human Rights to national courts as a source of law. The researchers' positions on the obligation of national courts to apply the case law of the European Court of Human Rights in cases against other states are examined and the importance of the application of the case law of the European Court of Human Rights is highlighted. Analyzing the views of scholars and experts, we have proposed ways to address the issues of the binding application of the case law of the European Court of Human Rights by reviewing the plenary sessions of high courts. The problems of the application of the case law of the European Court of Human Rights by national courts, such as the selective application of the case law of the Court, references to general principles and interpretations, ignoring the conditions of their application, absolutization of the binding position of the Court, application of the decisions of the Court by analogy, reference to the practice Court in the presence of clear and consistent provisions of national law, etc. The following ways of solving these problems are proposed: 1) revising the concept and content of the Law of Ukraine "On the implementation of decisions and application of the practice of the European Court of Human Rights" and amending the legislation in order to bring it in line with the provisions of the new procedural legislation and modern ideas of theorists and practitioners about the legal nature of decisions The European Court of Human Rights; 2) preparing a resolution of the Plenum of the Supreme Court on the application of the Convention and the case-law of the Court, which should be based on a thorough analysis of the shortcomings and peculiarities of the case-law of the national courts. The problematic issues of the application of the case law of the European Court of Human Rights in the absence of official translations of the Court's decisions are examined. Analyzing the views of scholars and experts, we have proposed ways to solve these problems by creating a single electronic database that will contain official translations of Court decisions in the Ukrainian language that will ensure their accessibility and dissemination.

scholarly journals Implementation of the competitiveness of the parties during the trial in the criminal proceedings of Ukraine

2020 ◽  
pp. 70-76
Author(s):  
N. Syza ◽  
I. Syzyi
Keyword(s):  
Supreme Court ◽  
General Procedure ◽  
Case Law ◽  
Equal Rights ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
Legitimate Interests ◽  
Court Proceedings ◽  
The Right

The article reveals the essence of the principle of adversarial proceedings of the parties and the peculiarities of its implementation during the trial in the criminal proceedings of Ukraine. The theoretical views of scientists, which determine the essence of adversarial proceedings and the role of the court in criminal proceedings, are considered. Through the prism of the parties' adversarial proceedings, the norms of the Criminal Procedure Code of Ukraine (CPC) are analyzed, which determine the general procedure of court proceedings, as well as the procedural form of individual court actions. Amendments to the CPC to provide introductory speeches at the beginning of the trial to both the prosecution and the defense, which are aimed at ensuring equal rights of the parties and expanding the adversarial nature of the parties at this stage. The problems of ensuring the adversarial nature of the parties have been clarified, taking into account the case law of the Supreme Court and the European Court of Human Rights (ECtHR). The analysis of the case law of the ECtHR concluded that ensuring the right to a fair trial in criminal proceedings presupposes that the trial, including procedural elements, must be adversarial and in this process the principle of equality of arms and defense must be ensured. Attention is paid to the peculiarities of the parties' adversarial proceedings in special court proceedings, jury trials and criminal proceedings in the form of private prosecution. It is established that in the case law of the Supreme Court the participation of the prosecutor in the trial of criminal proceedings in the form of private prosecution is recognized as a guarantee of equality and adversarial proceedings, as well as protection of the rights and legitimate interests of the victim. Such participation is obligatory, except in the case when the prosecutor refused to support the state prosecution, and the victim agreed to support the prosecution in court

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