Institute of discretion of the subject of authority in administrative judiciary

2020 ◽  
pp. 46-51
Author(s):  
Yurii Vovk
Keyword(s):  
Supreme Court ◽  
Local Governments ◽  
Case Law ◽  
Problem Analysis ◽  
Public Authorities ◽  
The Supreme Court ◽  
Legislative Regulation ◽  
The Subject ◽  
Administrative Courts ◽  
Discretionary Powers

Problem setting. Article 19 of the Constitution of Ukraine provides: “Public authorities and local governments, their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine.” However, quite often this constitutional norm is violated in practice. This forces citizens to apply to the administrative court for protection of the violated right. As a result, the number of citizens’ appeals to the administrative court is constantly increasing. Due to the significant workload, the increase in the number of appeals, the terms of consideration of the administrative case provided in Art. 193 of the Code of Administrative Procedure of Ukraine are often violated by administrative courts and the case is not considered within a reasonable time. At the same time, one of the most problematic categories of disputes in administrative courts are those concerning the discretionary powers of the subject of power. In these disputes, the plaintiff usually asks to recognize the actions (inaction) of the subject of power illegal and oblige to take certain actions. The administrative court usually finds the actions illegal, but does not oblige the subject of power to take certain actions in favor of the plaintiff, referring to the discretionary powers of public authorities and local governments, their officials in making the decision. In the future, citizens are forced to spend a lot of time and money to restore the violated right. Courts in different situations act differently. In addition, the lack of a legislative definition of “discretionary powers” is also a problem. Analysis of recent research and publications. In the modern scientific literature, the works of Belkin L.M., Boychuk M.I., Wenger V.M., Vlasov A.O., Grin A.A., Zolotareva M.K., Magda S.O., Panov G.V., Staryk A.M., Tarasenko T.M., Fedchuk S.I., and others are devoted to the question of discretionary powers of the subject of power. Along with this problematic issue, the institution of discretion of the subject of power, analysis of the case law of the Supreme Court is not given enough attention. The aim of the article is to investigate issues related to discretionary powers, determine the possible limits of court interference in the administrative discretion of the subject of power, based on the case law of the Supreme Court. Results and discussion. In modern conditions, a significant number of cases in administrative courts are related to the discretionary powers of the subject of power. These are mostly social disputes. Given the uncertainty of such a concept as “discretionary powers”, the courts refer in their decisions to the Recommendation NR(80)2 of the Committee of Ministers of the European Council, adopted by the Committee 10 on 11th of March 1980 at its 316th meeting, according to which discretionary powers should be understood as the administrative body, in making decisions, may exercise with a certain discretion. The above means, that such a body may choose from several legally admissible decisions the one, that is considered to be the best in the given circumstances. At the moment, there is a certain case law of the Supreme Court regarding the discretionary powers of the subject of power. Conclusions. The Supreme Court’s case law seeks to fill the gaps in the lack of proper legislative regulation of the issue of discretion and the relationship between the discretion of the court and the discretion of the subject of authority. However, this case law may not always be completely homogeneous. Given the significant number of cases related to discretionary powers and the lack of proper legislative regulation of this issue, it is time for the Verkhovna Rada to adopt a law to comprehensively regulate this issue, defining the concept of “discretionary powers”. This may provide guidance to the authorities and courts on how to act in specific situations and reduce the number of cases in the courts and will help to properly protect the rights and legitimate interests of individuals and legal entities.

Teaching Constitutional Law Using Real-life Examples: An Example from the Practice of Assent to Bills Passed by the National Assembly After the Tenure of Office of the President and the Assembly

2020 ◽  
Vol 7 (2) ◽  
pp. 140-151
Author(s):  
Chukwuka Onyeaku ◽  
Tonye Clinton Jaja
Keyword(s):  
Supreme Court ◽  
Federal Republic ◽  
Constitutional Law ◽  
Real Life ◽  
Case Law ◽  
Legislative Process ◽  
National Assembly ◽  
The Supreme Court ◽  
The Subject

As a matter of tradition and necessity, teachers of constitutional law within Nigeria (and elsewhere) are often compelled to refer to case law to provide illustrations of principles of constitutional law as enshrined in the constitution of the Federal Republic of Nigeria, 1999 (as amended). However, in some instances, where the said constitution does not provide explicit provisions, teachers of constitutional law are compelled to cite foreign case law as persuasive precedents. Still there are instances wherein there are neither foreign case law nor indigenous case law as precedents. In such situations, teachers of constitutional law are compelled to examine existing case law and relevant legislation until there is a pronouncement from either the Supreme Court or an alteration of the constitution by the National Assembly. One such situation is the subject of the analysis in this article: the situation whereby a president provides assent to bills after the expiration of the tenure of the National Assembly. As legislative tradition, the last session of each Chambers of the Nigeria’s National Assembly culminating each legislative term is usually a valedictory Session. Accordingly, Thursday, 6 June 2019 witnessed the last Session of the eighth National Assembly. As the president transmitted a Proclamation letter terminating the term of the eighth National Assembly inaugurated on 9 June 2015, it becomes paramount to examine the legal and constitutional implications of bills passed by the eighth National Assembly between 2016 and 2018 and up to 5 June 2019, which were assented to by the president after the tenure of the Assembly and office of the president. Thus, this article examines the constitutionality or otherwise of assenting to bills passed by the National Assembly and assented to by the president after the expiration of tenure of their offices. The article argues that the provisions of the 1999 Constitution had been violated when the president signed into law bills passed by the eighth National Assembly after the tenure of office of the president and the eighth National Assembly. It concludes that bills rejected by the president will require another legislative process of being passed into law again by the same Assembly or subsequent one before it can be assented to by the president. Failure to follow this constitutional process will render the assent unconstitutional.

Some New Emphases in Extradition Case Law

1981 ◽  
Vol 16 (2) ◽  
pp. 204-224 ◽  
Author(s):  
S.Z. Feller
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Point Of View ◽  
District Court ◽  
The Supreme Court ◽  
The Subject ◽  
State Of Israel

In Azen v. State of Israel, the Supreme Court heard the appeal of a person who had been declared extraditable to France for offences of stealing by an agent and fraud, committed, according to the request for extradition, in France. One of the pleas raised against the decision of the District Court, in which Azen was declared extraditable, was that the specialty limitation was not guaranteed in the Extradition Treaty between Israel and France, as required by sec. 17 (a) of the Israeli Extradition Law, 1954. This section states unequivocally that —A wanted person shall not be extradited unless it has been ensured, by an agreement with the requesting State, that he will not be detained, tried or punished in that State for another offence committed prior to his extradition;whereas in art. 17 of the said Treaty, specialty is guaranteed in the following words: L'individu qui aura été délivré ne pourra ni être poursuivi ou jugé en sa présence ni être, détenu …i.e. under the Treaty, the specialty limitation is restricted, from the procedural point of view, to those processes involving physical, personal enforcement against the subject of extradition—he will not be “summoned” for interrogation, nor judged “in his presence”, nor “detained”; the Extradition Law, however, contains no such restriction, with the exception of detention which, by its very nature, requires physical enforcement.

scholarly journals (Il)Legal evidence in criminal procedures in the case law of the Supreme Court of Cassation in 2019 and 2020

2021 ◽  
Vol 93 (2) ◽  
pp. 435-456
Author(s):  
Milana Pisarić
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Case Law ◽  
International Treaties ◽  
Criminal Proceedings ◽  
Case File ◽  
Legal Evidence ◽  
The Supreme Court ◽  
The Subject ◽  
Illegal Evidence

The Criminal Procedure Code stipulates that court decisions may not be based on evidence which is, directly or indirectly, by itself or in the manner of obtaining it, contrary to the Constitution, this Code, other laws or the generally accepted rules of international law and ratified international treaties, except in proceedings conducted for the purpose of obtaining such evidence. Illegal evidence cannot be used in criminal proceedings and is therefore separated from the case file. If the judgment is based on illegal evidence, it can be challenged by the appeal against the judgment, but also by the request for the protection of legality. The subject of the paper is the analysis of the recent case law of the Supreme Court of Cassation (in the period from January 1, 2019 to December 31, 2020) regarding the requests for the protection of legality stated in connection with illegal evidence.

The Practice and Case Law of Israel in Matters Related to International Law

1997 ◽  
Vol 31 (4) ◽  
pp. 803-853 ◽  
Author(s):  
Rotem M. Giladi
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Case Law ◽  
The United States ◽  
District Court ◽  
Sovereign Immunity ◽  
The Supreme Court ◽  
Civil Suit ◽  
The Subject ◽  
The Government

The case of the Canadian ambassador's residence has been the subject of several court decisions at various instances in Israel. These decisions (as well as others relating to the doctrine of sovereign immunity) have been reviewed in former issues of this section. On June 3, 1997, the Supreme Court, in its appellate jurisdiction, gave its judgment in this case and delineated the application of the international law doctrine of sovereign immunity in Israeli law. In a different case decided on the last day of 1996, the Tel-Aviv District Court was required to rule on the applicability of this doctrine to a civil suit brought against the government of the United States of America. This District Court decision now needs to be examined in light of the recent ruling of the Supreme Court in theEdelsoncase.

scholarly journals Un aspect crucial mais délicat des libertés de conscience et de religion des articles 2 et 3 des Chartes canadienne et québécoise: l'objection de conscience

2005 ◽  
Vol 28 (1) ◽  
pp. 185-205
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Armed Forces ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Freedom Of Conscience ◽  
Current Case ◽  
The Supreme Court ◽  
The Subject ◽  
The Difference ◽  
The Right

The Supreme Court of Canada, obiter, in the Big M Drug Mart Case, has spoken of the "Constitutional Exemption". It is the possibility not to be bound to obey the neutral laws that conflict with one's conscience or religion. It is what we call in French l'objection de conscience. The institution exists in Canadian and Québec Law as a part of the right to freedom of conscience or religion expressed in 2a) and 3 of the Canadian and Québec Charters of Rights. And it goes well beyond the right not to fight within the armed forces. The Supreme Court of Canada has actually delivered six judgments touching on the subject in 1985 and 1986. The conditions under which l'objection de conscience come into play are not so well known however. Does it cover matters of worship or only rules of morals ? Secular or only religious principles ? Personal or only group beliefs ? Do the existence of the rule, the sincerity of the objector and the reasonableness of the exemption have to be proved? Above all, what is the difference between a creed and an opinion ? The following article tries to formulate answers to these questions, with the help of current case-law.

Looking Ahead

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Future Developments ◽  
The Supreme Court ◽  
Enormous Amount ◽  
Independent Life ◽  
The Subject ◽  
Breach Of Duty ◽  
Extensive Body ◽  
Court Of Appeal

The Supreme Court’s decision in Pitt v Holt and Futter v Futter is now the crucial landmark in the life of the Re Hastings-Bass doctrine. Lord Walker’s judgment, together with Lloyd LJ’s in the Court of Appeal, will continue to be the subject of debate and criticism, and there certainly remain detailed technical questions which will require close judicial attention in future. But it has achieved an enormous amount in reformulating the Re Hastings-Bass rule so as to accord with the essential principles of English trusts law: it has now been put beyond doubt that it is a duty- (rather than results-) oriented rule, which can be invoked only on proof of the trustees’ breach of duty, and the consequence of which is to render the impugned exercise of power or discretion voidable. The tangled case law of the 1990s and 2000s has been swept away by the Supreme Court, and as yet it has not been replaced by an extensive body of case law applying that decision and filling in the gaps—although that will doubtless follow. As such, this is an opportune moment at which to look at the Re Hastings-Bass rule more broadly, to examine the processes through which it has been, and will continue to be, moulded and refined, and to consider likely future developments. In this respect it is also useful to look beyond the English courts to see how the Re Hastings-Bass rule has fared offshore, and the extent to which it has taken on an independent life, divergent from the English experience.

scholarly journals JUSTIFICATION OF THE APPLICATION OF DISCRETION AUTHORITIES IN THE ORGANIZATION OF JUSTICE

2020 ◽  
pp. 25-29
Author(s):  
P. D. Huivan
Keyword(s):  
Supreme Court ◽  
Scientific Article ◽  
Current Case ◽  
Public Authorities ◽  
Governing Body ◽  
Administrative Functions ◽  
The Supreme Court ◽  
Judicial Administration ◽  
Definition Of ◽  
Discretionary Powers

This scientific article is devoted to the study of topical issues of legal certainty and the use of broad discretion in the formation of the national judicial system. Serious attention is paid to the issue of establishing the legislative and substantive limits of the discretionary powers of the subjects of power in the implementation of the tasks assigned to them. The national criteria of guaranteeing the rights of every citizen to protection against arbitrary interference of public authorities in their rights and freedoms and ensuring the possibility for a person to anticipate the actions of these bodies have been studied. It has been established that there is a mechanism in the rule of law to prevent the abuse of discretionary powers. Legislation and practice of its application are analyzed, which are intended to separate the limits of exercising such powers from manifestations of willfulness. The transparency, fairness and fairness of the selection of national judges during the recent competition before the Supreme Court was examined in detail. The virtually unlimited discretion of the judicial administration body in conducting competitive procedures for selecting judges and evaluating them is critically assessed. In the course of the research, it was found that the regulations on competitions for judges were spelled out, there were no specific safeguards against the overly broad discretion of the governing body − the CCSSU, and this allowed the institution to commit significant abuses. The regulatory definition of the limits of real discretion in the actions of the Commission is proposed, which should be carefully spelled out in the legislation. On the basis of specific examples from the current case law, the shortcomings in the legal formulation of substantiated and reasoned verdicts regarding the results of competitions before the Supreme Court are shown. It has been proven that the Governing Body has made an unjustified substitution for the proper motivation of its decisions by the unjustified use of too wide discretion. In this way, in the first place, the selection criteria set by the Law were not respected, and, secondly, the real consequences of the competition were hidden from society. In fact, the statutory motivation of the decision, instead of its purpose to be a measure of the legitimacy of decisions, was effectively reduced to the level of the way of exercising managerial administrative functions, which contradicts the position of the ECtHR on this issue.

INVALIDITY OF DECISIONS OF GENERAL MEETINGS OF SOCIETIES: ANALYSIS OF JUDICIAL PRACTICE

2017 ◽  
Author(s):  
Oleg Pecheniy ◽  
◽  
Oksana Vartovnik ◽  
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
General Meeting ◽  
Case Law ◽  
Legal Regulation ◽  
Practical Application ◽  
Corporate Rights ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Subject

The article examines the activities of companies, their bodies, disputes, delves in connection with the exercise of corporate rights, holding a general meeting, making decisions, appealing to the courts, as well as compliance with rules relevant to the founders and participants of companies. Disputed situations on observance of the procedure of convening and holding a general meeting, their influence on decision-making, their legitimacy are studied. Violated corporate rights of the participant are protected by invalidating the decision of the general meeting as the highest body of society. The article identifies the problematic aspects of disputes over the invalidation of decisions of the general meeting of companies. Some grounds for invalidating the decisions of the general meeting of companies are analyzed, the shortcomings of their legislative regulation and the peculiarities of practical application by economic courts of various instances, especially the court of cassation, are revealed. The study conducted in the article contains an analysis and generalization of judicial practice in resolving corporate disputes, which revealed inconsistencies in the approaches of courts to law enforcement, taking into account the position of the Supreme Court, which allowed to develop recommendations for improving judicial practice. Ukrainian corporate law leaves room for finding new solutions and ideas for protection in corporate relations, despite the latest legislative novelties. The article outlines the ways of development of judicial practice using, in particular, comparative law, dialectical and applied methods. Thus, the basis for improving the legal regulation of this category of corporate disputes should be the experience of the existing case law of the Supreme Court. Emphasis is placed on such problematic issues as to who can be the subject when applying to the court for invalidation of the decision, respectively, what is the range of plaintiffs and defendants, cases are presented and analyzed in which the plaintiffs are not only members but also their successors (heirs) . Peculiarities of application of special statute of limitations to claims in case of invalidity of decisions of the general meeting, especially in the context of application of special statute of limitations to the relations which have arisen earlier are investigated.

CRIMINAL LEGAL ASPECTS OF THE INVOLVEMENT OF MINORS IN THE EXTREMIST CRIMES

2021 ◽  
pp. 41-46
Author(s):  
Динара Мансуровна Латыпова
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Russian Federation ◽  
Legal Regulation ◽  
Legal Aspects ◽  
Theoretical Understanding ◽  
The Supreme Court ◽  
Legislative Regulation ◽  
The Subject ◽  
The Russian Federation

В статье проведен анализ видов преступлений экстремистской направленности, обоснована актуальность исследования составов. В рамках рассмотрения темы исследуются вопросы квалификации вовлечения несовершеннолетних в совершение преступлений экстремистской направленности. Анализируются проблемные вопросы толкования понятий рассматриваемой темы, законодательная регламентация, пробелы правового регулирования. Анализ объективных и субъективных признаков двух групп преступлений - вовлечения несовершеннолетних в совершение преступлений и преступлений экстремистской направленности - обеспечил возможность выявить специфику и особенности квалификации таких деяний. Исследованы правила квалификации вовлечения несовершеннолетних в преступления экстремистской направленности, выведенные из соотношения элементов исследуемых составов преступлений. Рассматриваются вопросы окончания преступных деяний, особенности определения признаков субъекта, а также особенности признаков объективной стороны составов. Сделаны выводы о проблемах и опасности преступлений экстремистской направленности на основе теоретического понимания вопроса в его соотношении с материалами правоприменительной практики, а также об особой опасности вовлечения в экстремизм несовершеннолетних. На основе выявленной проблематики вопроса обозначена необходимость дополнения постановлений Пленума Верховного суда РФ разъяснениями по вопросам вовлечения несовершеннолетних в экстремизм. The article analyzes the types of crimes of extremist orientation, substantiates the relevance of the study of the compositions. As part of the consideration of the topic, the issues of qualification of involving minors in the commission of extremist groups are being investigated. Problematic issues of interpretation of the concepts of the topic under consideration, legislative regulation, gaps in legal regulation are analyzed. Analysis of the objective and subjective signs of two groups of crimes - the involvement of minors in the commission of crimes and extremist crimes made it possible to identify the specifics of the involvement of minors in the commission of extremist crimes and the specifics of the qualification of such acts. The rules for qualifying the involvement of minors in crimes of an extremist orientation, derived from the ratio of elements of the investigated corpus delicti, have been investigated. The article examines the issues of ending criminal acts, as well as the specifics of determining the characteristics of the subject. Conclusions are made about the problems and danger of extremist crimes on the basis of a theoretical understanding of the issue in its relation to the materials of law enforcement practice, as well as the special danger of involving minors in extremism. On the basis of the identified problematics of the issue, it is indicated that it is necessary to supplement the resolution of the Plenum of the Supreme Court of the Russian Federation on extremist cases with clarifications on the involvement of minors in their commission.

scholarly journals Służebność gruntowa o treści odpowiadającej służebności przesyłu w świetle najnowszego orzecznictwa Trybunału Konstytucyjnego

2019 ◽  
Vol 28 ◽  
pp. 207-219
Author(s):  
Anna Maria Barańska
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Civil Code ◽  
Lively Discussion ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
The Subject ◽  
First Time

Problem konstytucyjności służebności gruntowej o treści odpowiadającej służebności przesyłu oraz możliwości jej zasiedzenia jest  przedmiotem ożywionej dyskusji już blisko od dekady. Mimo ugruntowanej i jednolitej linii orzeczniczej Sądu Najwyższego w tym  zakresie sądy powszechne cały czas mają wątpliwości, czy ta wykładnia znajduje umocowanie w przepisach kodeksu cywilnego. Nie  odmawiając interpretacji Sądu Najwyższego funkcjonalności, nie sposób jednak nie zauważyć towarzyszących jej mankamentów. Z  tego względu warte uwagi są ostatnie orzeczenia Trybunału Konstytucyjnego, który zdaje się po raz pierwszy zdecydował się  przełamać swoją bierną postawę. Building lease with the content corresponding to transmission easement in the light of the latest case law of the Constitutional TribunalThe problem of the constitutionality of a building lease with the content corresponding to transmission easement and the possibility of acquisitive prescription has been the subject of lively discussion already for almost a decade. Despite the well-established and unified jurisprudence of the Supreme Court in this regard, common courts constantly have doubts whether this interpretation is in line  with the provisions of the Civil Code. The Supreme Court’s interpretation is thought to have some shortcomings. That is why the last  ruling of the Constitutional Tribunal is worth paying attention to, as the Constitutional Tribunal seems to be for the first time active in this topic.

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