¿Gracia vs. Justicia? El control contencioso-administrativo del indulto a partir de la Sentencia del Tribunal Supremo de 20 de noviembre de 2013

2014 ◽  
pp. 2935-2984
Author(s):  
Miren Jasone URKOLA IRIARTE
Keyword(s):  
Supreme Court ◽  
Government Action ◽  
The Third ◽  
Legal Nature ◽  
The Supreme Court ◽  
The Government ◽  
Administrative Jurisdiction

LABURPENA: Auzitegi Gorenari indultu partzialaren gaian Gobernuak garatutako jardunaren izaera juridikoa zehazteko aukera eman dio bere Hirugarren Salaren Osokoak 2013ko azaroaren 20an adostutako Epaiak. Izaera juridiko hori oinarritzat harturik, administrazio-auzien jurisdikzioak gara dezakeen kontrola aztertuko du ondoren: bereziki, elementu arautuen teknikaren bidez gauza dezakeena [LJren 2(a) art.]. Eremu honetan, Indultu Legeari buruz Auzitegi berak egin izan duen interpretazioa iragazi, eta joera berria ezarriko du, gai berean jarraian argitaratutako epaietan berretsia dirudiena. RESUMEN: La Sentencia del Pleno de la Sala Tercera del Tribunal Supremo de 20 de noviembre de 2013 ofrece al Tribunal Supremo la oportunidad de precisar la naturaleza jurídica de la actuación del Gobierno en materia de indulto, para analizar posteriormente la extensión del control practicable en sede contencioso-administrativa, de modo especial, a través de la técnica de los elementos reglados [art. 2(a) LJ], un ámbito en el que tamiza la lectura de la Ley de Indulto que venía realizando el propio órgano judicial. Marca, así, una nueva tendencia que parece confirmada en sentencias posteriores. ABSTRACT: The judgment by the Third Section plenary of the of the Supreme Court from November 20th of 2013 gives the Supreme Court the chance to establish the legal nature of the Government action regarding the pardon, in order to analyze subsequently the extension of the control to be carried out by the contentious-administrative jurisdiction, specially by means of the technic of the regulated elements [art. 2(a) LJ], a field where it weights up the reading of the Act of Pardon that used to do the same judicial body. It marks therefore a new tendency that seems to be confirmed in later judgments.

scholarly journals Expansion of the Objects of State Administrative Disputes after the Enactment of Law Number 30 of 2014 Concerning Government Administration and Supreme Court Regulation Number 2 of 2019 Concerning Guidelines for the Resolution and Authority to Adjudicate Unlawful Conducts by Government Agencies or Officials (Onrechtmatige Overheidsdaad / OOD)

2021 ◽  
Vol 8 (1) ◽  
pp. 383
Author(s):  
Sonyendah Retnaningsih ◽  
Disriani Latifah Soroinda Nasution ◽  
Heryna Oktaviani ◽  
Muhammad Rizqi Alfarizi Ramadhan
Keyword(s):  
Supreme Court ◽  
Dispute Resolution ◽  
Secondary Data ◽  
The State ◽  
Government Agencies ◽  
Government Action ◽  
Government Administration ◽  
State Administration ◽  
The Supreme Court ◽  
The Government

Historically, State Administrative Court (PTUN) has existed since 1986, with the enactment of Law Number 5 of 1986 concerning State Administrative Court which currently has been amended by Law Number 9 of 2004 concerning Amendment to Law Number 5 of 1986 concerning State Administrative Court and amended again by Law Number 51 of 2009 concerning the Second Amendment to Law Number 5 of 1986 concerning State Administrative Court. The role of the Administrative Court according to the explanation of the law, the PTUN functions as a control or supervisory agency thus legal actions from government officials do not deviate, in addition to protecting the rights of citizens from the actions of officials who abuse their authority or act arbitrarily. Currently, the object of dispute and can be sued at the State Administrative Court is only a State Administration decision reduced by the exceptions stipulated in Article 2 and Article 49 of the PTUN Law. The provisions of Article 3 of the Administrative Court Law No. 5 of 1986 on negative fictitious could potentially no longer be enforced since the enactment of Article 53 of the AP Law which stipulates positive fictitious. Since the promulgation of Law Number 30 of 2014 concerning Government Administration (hereinafter referred to as AP Law) on 17 October 2014, there has been a change in the legal criteria from the government written stipulation (beschikkingen) which was initially restrictive and can be sued to the PTUN, yet it has recently become extensive (which was originally mere beschkking, currently it almost covers all variations of besluiten). With the enactment of the AP Law, there will be an expansion of absolute competence and objects of state administration disputes, as stipulated in Article 87 of the AP Law which includes: first, Government Administration Decrees, as stipulated in Article 1 point 7 of the AP Law; second, Government Administration Actions Based on Article 1 point 8 of the AP Law. Furthermore, with the enactment of the Supreme Court Regulation Number 2 of 2019 concerning Guidelines for Government Action Dispute Resolution and the Authority to Adjudicate Unlawful Conducts by Government Agencies and/or Officials (onrechtmatige overheidsdaad / OOD), the judicial power shall transfer from the General Court to the State Administrative Court. This crucial matter continues to be the groundwork and reason for conducting the current research entitled the expansion of the state administration dispute object after the enactment of Law Number 30 of 2014 concerning Government Administration and the supreme court regulation (Perma) Number 2 of 2019 concerning Guidelines for Government Action Dispute Resolution and Authority to Adjudicate Unlawful Conducts by the Government Agencies and/or Officials (onrechtmatige overheidsdaad / OOD). Conducted through normative juridical research method, this research-based paper examined the interviews through judges at PTUN Jakarta and Bandung and the main data source within this qualitative analysis serves as the secondary data or literature data.

scholarly journals Redressing the Harms of Government (In)Action: A Section 7 Versus Section 15 Charter Showdown

2013 ◽  
Vol 22 (1) ◽  
pp. 31 ◽  
Author(s):  
Jennifer Koshan
Keyword(s):  
Supreme Court ◽  
Strong Evidence ◽  
Winning Strategy ◽  
Case Law ◽  
Community Services ◽  
Government Action ◽  
Equality Rights ◽  
The Supreme Court ◽  
Scant Attention ◽  
The Government

When considering the recent Charter claims of vulnerable individuals seeking to redress the harms of government action or inaction, there are two related trends in the appellate case law on sections 7 and 15 that merit attention.1 First, the Supreme Court has undertaken new approaches to equality rights under section 15(1) and 15(2) of the Charter, with a marked lack of success of claims in spite of (or perhaps because of) these approaches. The cases of Kapp,2 Withler,3 and Cunningham4 will be discussed in Part II as illustrations of this trend, along with cases where section 15 was given scant attention, such as Hutterian Brethren,5 AC v Manitoba,6 and Fraser.7 Second, there has been relative success of Charter claims under section 7 where there is strong evidence of harm to life, liberty or security of the person in circumstances where the government action was arbitrary, grossly disproportionate, or overbroad. In Part III, the cases of PHS Community Services,8 Adams,9 and Bedford10 will be shown to reflect this trend.11 These cases present an opportunity to discuss whether section 7 holds advantages over section 15 as a tool for disadvantaged persons challenging the harms of government (in)action, which will be addressed in Part IV. I conclude that while framing government harms as violations of life, liberty or security of the person may be a winning strategy for some Charter claimants, not all such harms can be presented in those terms, and the particular harms captured by section 15 must be given their due.

scholarly journals Ultra Vires Kewenangan Kemenkumham sebagai Pengadilan Non-Litigasi dalam Sistem Ketatanegaraan Indonesia

2019 ◽  
Vol 3 (1) ◽  
pp. 15
Author(s):  
Ahmad Gelora Mahardika
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Constitutional Court ◽  
The Third ◽  
The Supreme Court ◽  
Directorate General ◽  
The Republic ◽  
The Government

The decision of the Constitutional Court Number 56 / PUU-XIV / 2016 revoked the permit for the Government to request a Regional Regulation and hand over the authority to the Supreme Court. However, the Government through the Ministry of Law and Human Rights then issued Regulation of the Minister of Law and Human Rights No. 32 of 2017 concerning Procedures for Settling Disputes in Legislation through the Non-litigation Path which in principle provided permits to support the Directorate General of Regulation. Initially this authority did not exist in the Minister of Law and Human Rights Regulation of the Republic of Indonesia Number 29 of 2015 concerning Organization and Work Procedure of the Ministry of Law and Human Rights of the Republic of Indonesia, but then the authority was regulated in Republic of Indonesia Minister of Law and Human Rights Regulation Number 24 Year 2018 Regarding the Third Amendment to the Regulation of the Minister of Law and Human Rights Number 29 of 2015 concerning the Organization and Work Procedure of the Ministry of Law and Human Rights of the Republic of Indonesia. Besides inconstitutional, after being approved, it was also stipulated by law, this authority was also previously owned.

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
House Of Representatives ◽  
Good Governance ◽  
Constitutional Court ◽  
Due Diligence ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Institutional Status ◽  
The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

Summary of Results

2017 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Intellectual Property ◽  
Supreme Court ◽  
Government Agencies ◽  
Property Law ◽  
Trademark Law ◽  
Intellectual Property Law ◽  
The Past ◽  
The Supreme Court ◽  
The Government ◽  
Networked Economy

The persuasive force of the accepted account’s property logic has driven antitrust and intellectual property law jurisprudence for at least the past three decades. It has been through the theory of trademark ownership and the commercial strategy of branding that these laws led the courts to comprehend markets as fundamentally bifurcated—as operating according to discrete types of interbrand and intrabrand competition—a division that had an effect far beyond the confines of trademark law and resonates today in the way government agencies and courts evaluate the emerging challenges of the networked economy along the previously introduced distinction between intertype and intratype competition. While the government in its appeal to the Supreme Court in ...

scholarly journals The Constitution as a Code of Honor

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
Supreme Court ◽  
Good Faith ◽  
The Supreme Court ◽  
Faith Commitment ◽  
The Government

This article argues that the Senate’s refusal to consider the nomination of Judge Merrick Garland to the Supreme Court should be deemed unconstitutional. The Senate’s stonewalling disrespected the institutional needs of the judiciary, violated the constitutional norm of forbearance in the exercise of power, and assumed a Senate role in the appointments process that was never intended. Although no court would ever enjoin a recalcitrant President to make a nomination or an obstructionist Senate to meet with, deliberate over, or vote on a presidential nominee to the Supreme Court or anything else, the President’s and the Senators’ oaths to “support the Constitution” should be understood as entailing a good faith commitment to enabling the government to function.

scholarly journals Czy przebaczenie niweczy skutki uprzedniego wydziedziczenia?

2017 ◽  
Vol 21 ◽  
pp. 143-153
Author(s):  
Anna Moskal
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Dominant Position ◽  
Legal Nature ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Subject ◽  
Made In

Does forgiveness nullify the effects of previous disinheritance? The legal nature of forgiveness is the subject of passionate debates among the representatives of civil law doctrine. According to the dominant position in the literature, forgiveness is an act of affection or its manifested expression of forgiveness of the perpetrator of experienced injustice and related to this grudge. This institution has been applied three times in the Civil Code — once with the donation agreement, twice in regulations of inheritance law. Article 1010 § 1 provides that a testator cannot disinherit eligible for legal portion if he forgave him. The wording of the above article indicates that accomplishment of disinheritance in case if testator eligible for legal portion has previously forgiven. The legislator did not, however, determine the effects of forgiveness in relation to previous disinheritance. In the act of 1971, the Supreme Court accepted that such forgiveness would automatically nullify the effects of disinheritance, and could be made in any form. In recent years, lower courts have begun to question the Supreme Court's position, and judges increasingly refer to the critical statements of numerous doctrines. As it was rightly stated, admitting the possibility of invoking the forgiveness made after disinheritance poses a serious threat to the realization of the testator’s will, who, by forgiving, does not necessarily want to revoke the effects of his previous disinheritance. The postulate of de lege ferenda is, according to the author of the article, giving of freedom of judging the effects of forgiveness to the courts and each examination of the forgiving testator’s will on the possible abatement of the consequences of previous disinheritance.]]>

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

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