scholarly journals Legislative and jurisprudential guidelines concerning public judicial aid. Jurisprudence of Constitutional Court of Romania relevant in the field

2018 ◽  
pp. 27-40
Author(s):  
ANCA-JEANINA NIȚĂ
Keyword(s):  
Theoretical Perspective ◽  
Case Law ◽  
Free Access ◽  
Access To Justice ◽  
Constitutional Court ◽  
Legal Practice ◽  
Legal Aid ◽  
High Court ◽  
The Public ◽  
Fundamental Law

This article aims to bring to the forefront the issue of public legal aid by carrying out an analysis that combines the theoretical perspective with the jurisprudential one. It presents the normative framework, the doctrinal approaches, the legal practice in the field, with emphasis on the legal provision that generated non-unitary practice. The article presents the attempts to harmonize the legal practice, displaying the opinions expressed during the Meetings of the representatives of the Superior Council of Magistracy with the presidents of the civil department of the High Court of Cassation and Justice and the courts of appeal. Taking into account that public legal aid is one of the prerequisites for free access to justice – fundamental law, constitutionally guaranteed, it is particularly important to present the case law of the Romanian Constitutional Court in the matter, focusing on the acceptance of ECHR case law within the constitutional control of the public legal aid framework regulation – Government Emergency Ordinance no. 51/2008.

Notes: ‘Observations’ on the State Capture judgment

2021 ◽  
Vol 138 (3) ◽  
pp. 477-500
Author(s):  
Michael Tsele
Keyword(s):  
South Africa ◽  
Case Law ◽  
The State ◽  
Controversial Issue ◽  
Court Decision ◽  
Constitutional Court ◽  
High Court ◽  
The Public ◽  
State Capture ◽  
The Law

This note concerns a controversial issue that has, surprisingly, received limited academic interrogation: whether the Public Protector has the power to instruct the President of South Africa to appoint a commission of inquiry. In this respect, I critique a high court decision which answered the question in the affirmative. I contend that the judgment contradicts prior case law, including Constitutional Court precedent. Thus, I argue that the court misconstrued the law on the President’s powers, particularly when it concluded that those powers are not purely discretionary but entail ‘responsibilities’ which are ‘coupled with a duty’. This reasoning led the court to conclude that the President thus has a constitutional ‘obligation’ to appoint a commission. In summary, I take issue with the court’s conclusion that the Public Protector has the power to instruct the President to appoint a commission of inquiry. I conclude that the decision caused uncertainty on the limitations of the Public Protector’s powers. I further say it is questionable whether the commission, better known as the ‘State Capture’ commission, was established lawfully.

scholarly journals Some Approaches to Define the Concept of “Access to Justice”

2020 ◽  
Vol 11 (11) ◽  
pp. 208-213
Author(s):  
Sverba Y. I.
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
The State ◽  
Access To Justice ◽  
Constitutional Court ◽  
Legal Aid ◽  
Financial Barriers ◽  
European Court ◽  
The Right

The article is dedicated to the analysis of the concept of "access to justice". The national legislation, the case law of the Constitutional Court of Ukraine and the European Court of Human Rights, as well as academic papers have been analyzed by the author. The author concludes that there are at least two approaches to define the concept of "access to justice": broadside and restricted one. The latter is inherent in Ukraine, since the Constitution stipulates that justice in Ukraine is exercised by the courts exclusively. The case law of the European Court of Human Rights explored in this article demonstrates a broad interpretation of the right to a fair trial, as quasi-judicial authorities are often empowered to make decisions that directly affect a person's rights and obligations. Foreign researchers are more progressive in determining the concept of access to justice: the latter is considered as an intention to resolve person's legal problems, not limited with access to classical judicial protection. Even though the access to justice concept is not legally defined, it includes the core elements as legal awareness of person’s rights; lack of financial barriers to access to the court; the right to free legal aid guaranteed by the state; a fair and independent court; a reasonable time to settle a dispute, as well as the enforcement of the judgment. The state could ensure the effective access to justice only if all of the said elements are implemented. At the same time, the states have both positive (to provide the right to free legal aid) and negative obligations (not to interfere with court activities, etc.). Keywords: access to justice, justice, right to a fair trial, rule

Una compraventa poética, Horacio, Epistola 2.2

2017 ◽  
Vol 85 (1-2) ◽  
pp. 79-114
Author(s):  
Consuelo Carrasco García
Keyword(s):  
Case Law ◽  
First Century ◽  
Legal Practice ◽  
Title 1 ◽  
Public Markets ◽  
The Public ◽  
Roman Society ◽  
The Will ◽  
The Law ◽  
Poetic Composition

A poetic sale. Horace, Epistula 2.2.
Starting from the analysis of a poem by Horace, I have tried to highlight the image of the Law that was held by Roman society in the first century BC, that is, both by the poet and by the public that he wanted to entertain with his works. He chose a legal topic as the theme of his narrative – the responsibility for hidden defects in the contract of sale –; he applied the Roman legal lexicon with total precision and, more specifically, he showed that he was aware of the debate about the case-law related to the Edict by which the magistrates regulated the sale of slaves in the public markets. This is apparent from a comparison of the poem with book 21, title 1 of Justinian’s Digest concerning the Edict of the curule aediles and with documents from legal practice (testatio) that record the agreement of the will of the parties. A study of this kind, moreover, also contributes to a better understanding of poetic composition.


scholarly journals Courts and Access to Justice

2000 ◽  
Vol 31 (1) ◽  
pp. 163 ◽  
Author(s):  
I L M Richardson
Keyword(s):  
New Zealand ◽  
Fine Tuning ◽  
Access To Justice ◽  
Court System ◽  
Legal Aid ◽  
The Public ◽  
Societal Values ◽  
Basic Functions ◽  
Court Of Appeal ◽  
Over Time

(This article was presented as a lecture at the Australasian Law Teachers' Association Conference held at Victoria University of Wellington, 6 July 1999.) Ensuring access to justice is one of the most basic functions of the state. The author discusses the role and functioning of the Court of Appeal, the operation of the legal aid system in New Zealand, and the extent to which the operations of the court system should be open to the public. It is argued that any system of justice should reflect the values of its society. The author concludes that what is thought desirable in these three areas will change over time, and that there will always be a need for fine-tuning in light of societal values.

Effective judicial protection in judicial cooperation in civil matters and the Court of Justice of the European Union case law: the public policy clause and the absolute default of appearance as denial causes of judgments’ recognition and enforcement in E

2014 ◽  
pp. 147-161
Author(s):  
Joana Covelo de Abreu
Keyword(s):  
Public Policy ◽  
Case Law ◽  
Access To Justice ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
The Public ◽  
Court Of Justice ◽  
Recognition And Enforcement ◽  
Judicial Protection

The Brussels I Regulation’s re-foundation by the New Brussels I Regulation was thought to secure reciprocal trust on justice administration among Member States and to grant full access to justice for those who inhabit and circulate in its territory. In a Union characterized by circulation freedoms and an internal market existence, those principles justify a situation in which judgments ruled by a Member State’s court are automatically recognised and enforced, in other Member-State, except when the defendant evokes the rules on denial of judgments’ recognition and enforcement. There would not be judicial cooperation and integration’s prosecution without trust – trust must exist among Member States’ courts and it must be felt by EU citizens so they can acknowledge that EU is actively seeking to improve their life and working conditions. The European Commission made constructive efforts to promote an exequatur’s abolition, making recognition and enforcement proceedings on the New Brussels I Regulation simpler (it even proposed to remove the “public policy” clause, which was not accepted). It is necessary to analyse howthe CJEU applies the rules on denial of judgments’ recognition and enforcement to perceive if the principle of an effective judicial protection is fulfilled under New Brussels I Regulation.

From the Campbell Case to a Recent Ruling of the Constitutional Court of South Africa: Is There Any Hope to Revive the Tribunal of the Southern African Development Community?

2020 ◽  
Vol 28 (Supplement) ◽  
pp. 110-137
Author(s):  
Francesca Mussi
Keyword(s):  
South Africa ◽  
International Relations ◽  
Legal Reasoning ◽  
Case Law ◽  
Constitutional Court ◽  
Present Contribution ◽  
Constitutional Development ◽  
High Court ◽  
Legal Structure ◽  
The Republic

This article provides a critical analysis of the judgments delivered by the Regional High Court of Pretoria in the case Law Society of South Africa et al. v. President of the Republic of South Africa, the Minister of Justice and Constitutional Development, the Minister of International Relations and Co-operation and the Constitutional Court of South Africa in Law Society of South Africa and Others v. President of the Republic of South Africa and Others in order to investigate to what extent they can contribute to discuss the revival of the SADC Tribunal with all its original powers. After providing an overview of the SADC Tribunal's legal structure and the judgment delivered in 2008 in the Mike Campbell v. Zimbabwe case, the present contribution will consider the legal reasoning of the Regional High Court of Pretoria and the Constitutional Court of South Africa respectively. It will also develop some considerations of the role played by civil society groups in other SADC member states.

HAK ASASI MANUSIA DALAM PERSPEKTIF UNDANG-UNDANG NOMOR 16 TAHUN 2011 TENTANG BANTUAN HUKUM

2016 ◽  
Vol 2 (1) ◽  
pp. 43-66
Author(s):  
Dadang Suprijatna
Keyword(s):  
Law Enforcement ◽  
Public Understanding ◽  
Poor People ◽  
Access To Justice ◽  
Legal Aid ◽  
Law Enforcement Agencies ◽  
The Public ◽  
Legal Structure ◽  
Inspection Process ◽  
The Right

 This study aims to answer how the implementation of legal aid as access to justice for poor people? And any obstacles encountered in the implementation of legal aid? From the results of studies conducted with methods and rules of studies in jurisprudence showed that the implementation of legal aid for people who could not be implemented properly for their deviations in practice, such as the implementation of legal assistance through mentoring new advocate can be enjoyed by the public at the time of inspection advanced not at the time of the initial inspection and the inspection process is ongoing, but without the presence of lawyers, can still be found action advocates who refuse to provide legal aid, as advocates considered less professional and discrimination in the implementations of legal aid. The factors inhibiting the implementation of legal aid for poor people can be classified and divided into three factors namely, the factor of the substance of the law, a factor legal structure, and the cultural factors of law or culture of the community and law enforcement agencies, such as the lack of public understanding of the right to legal aid refers on mistrust, pessimism and skepticism towards the implementation of legal aid, and elements of attitudes, values, ways of acting and thinking advocates leading to the attitudes or actions of irregularities. Factors that inhibit community is negative community views on the implementation of legal aid as well as concerns in the use of legal aid.

scholarly journals Ejecutividad y prescripción de las sanciones administrativas en las Leyes 39/2015, del Procedimiento Administrativo Común de las Administraciones Públicas y 40/2015, de Régimen Jurídico del Sector Público

2018 ◽  
pp. 57-95
Author(s):  
Carmen CHINCHILLA MARÍN
Keyword(s):  
Public Sector ◽  
Supreme Court ◽  
Case Law ◽  
Constitutional Court ◽  
Legal Regime ◽  
The Public ◽  
The Supreme Court

LABURPENA: Sektore Publikoaren Araubide Juridikoari buruzko 40/2015 Legeak arau berria sartu du zigorrak preskribitzeko epearen zenbaketaren inguruan, zigorren aurka jarritako gora jotzeko errekurtsoak administrazioaren isiltasunaren bidez ezesten diren kasuetarako. Hala, lege horren 30.3. artikuluan ezarritakoaren arabera, errekurtsoa ustez ezesten bada, errekurtso horren ebazpena emateko legez aurreikusi den epea amaitu eta hurrengo egunetik aurrera hasi behar da zenbatzen zigorra preskribitzeko epea. Preskripzioari buruzko arau berri horrek, zentzuzkoa denez, ondorioak eduki behar ditu zigorrak betearazteko araubidearen gainean, zigorra bete behar izatea baita zigorra preskribatzeko oinarria. Artikulu honetan, bi berritasun horien berri ematen da, eta kontraesan-arazoa aztertzen, Konstituzio Auzitegiak eta Auzitegi Gorenak errekurtso-bideko isiltasunaren eta isiltasun horrek zigorren preskripzioaren eta bete behar izatearen gainean dituen ondorioen —hobeto esanda, «ondorio-ezaren»— inguruan duten jurisprudentziari dagokionez. RESUMEN: la Ley 40/2015, de Régimen jurídico del Sector público, ha introducido una nueva regla sobre el cómputo del plazo de prescripción de las sanciones en los casos en los que el recurso de alzada interpuesto contra las mismas se desestima por silencio administrativo. Así, a tenor de lo establecido en el artículo 30.3 de esta ley, en el caso de desestimación presunta del recurso, el plazo de prescripción de la sanción comenzará a computarse desde el día siguiente a aquel en el que finalice el plazo legalmente previsto para la resolución de dicho recurso. Esta nueva regla sobre la prescripción lógicamente tiene que producir consecuencias sobre el régimen de ejecutividad de las sanciones, pues la ejecutividad de la sanción constituye el presupuesto de la prescripción de la misma. En este artículo se da cuenta de ambas novedades y se analiza el problema de su contradicción respecto de la jurisprudencia —del Tribunal constitucional y del Tribunal Supremo— sobre el silencio en vía de recurso y sus efectos (más bien, sus «no efectos») sobre la prescripción y la ejecutividad de las sanciones. ABSTRACT: The Act 40/2015 of the legal regime of the Public Sector has introduced a new rule on the calculation of the limitation period to be applied to sanctions in cases where hierarchichal appeal filed against them had been rejected by administrative silence. Thus, within the meaning of section 30.3 of this Act, in case of implied rejection of the appeal, the calculation of the limitation period of the sanction shall begin from the day following the deadline legally established to resolve that appeal. This new rule about the limitation period has logically to have consequences over the enforceability of sanctions, since enforceability of the sanction as such is a prerequisite for the limitation period of it. This article deals with both novelties and analyzes the problem of their contradiction with the case law —by the Constitutional Court and the Supreme Court— regarding the silence within the appeal and its effects (or rather lack of effects) about the limitation period and enforceability of sanctions.

scholarly journals THE PRINCIPLES OF DEMOCRACY IN ADOPTION OF NORMATIVE ACTS

2018 ◽  
Vol 1 (10) ◽  
pp. 77
Author(s):  
Ilga Krampuža
Keyword(s):  
Public Interest ◽  
Analytical Method ◽  
Case Law ◽  
Adoption Process ◽  
Constitutional Court ◽  
Legal Doctrine ◽  
The Public ◽  
State Administration ◽  
The Republic ◽  
Present Description

The report describes the current problem - the disproportionately large increase in the number of normative acts. Such a situation frightens the society, creates distrust to the state administration and causes errors in adoption of normative acts, which shall be corrected. Therefore, the excessive increase in the number of normative acts is negative. Before adopting the normative acts, it is proposed to consider all possibilities for solving a specific problem. The importance of the principle of democracy in reducing the increase of normative acts has been raised. The aim of the report is to provide a general insight into the tasks of normative acts; to update general guidelines on the basis of the principle of democracy, which confirms that the adoption of normative acts should be evaluated in conjunction with the consideration of other criteria for solving a specific problem.The tasks of the research are the following: to update the connection of the adoption of normative acts with the essence of the principle of democracy; to analyse the growth rates of normative acts; to study the reasons for the increase in the number of normative acts; to put forward the principle of democracy as a limiter for the growth of normative acts. In the research, the grammatical method is used to present description of the normative acts adoption process, as well as to provide review of the reasons for the increase in the number of normative acts. The systemic method is used to assess the possibilities of interpreting the principle of democracy, based on the case law of the Constitutional Court of the Republic of Latvia and the legal doctrine. The analytical method is used to describe the disproportionately rapid increase of normative acts. The analytical method is applied to evaluate the possibilities of using the principle of democracy to reduce the number of normative acts. Using the teleological method, an increase in the number of normative acts is considered in the context of the essence of the principle of democracy.The results of the research are reflected in the main conclusions: the increase in the number of normative acts in the recent years has to be regarded as unreasonable and contrary to the public interest; the principle of democracy requires that solution to the problem, firstly, shall be sought for in the legal system; based on the principle of democracy, the usefulness, purpose and implementation of the public interest in adoption of new normative acts should be considered. 

scholarly journals Admission of guilt fines: a legal shortcut or delayed shock?

2020 ◽  
Author(s):  
Hendrik Van As ◽  
Deon Erasmus
Keyword(s):  
South Africa ◽  
Criminal Procedure ◽  
Criminal Record ◽  
Legal Assistance ◽  
Legal Aid ◽  
Judicial Process ◽  
High Court ◽  
The Public ◽  
Duty To Inform ◽  
Do So

  A popular perception shared by peace officers and the public alike is that the payment of an admission of guilt fine finalises the judicial process and no criminal record will result. However, paying an admission of guilt fine in terms of section 56 of the Criminal Procedure Act means that the person is deemed to have been convicted and sentenced in a court of law. People who pay admission of guilt fines later discover with shock that they in fact have a criminal record, with severe consequences. Often costly High Court applications will have to be instituted to set aside the conviction and sentence. Peace officers have a duty to inform a person of the consequences of paying an admission of guilt fine, but often do not do so and even abuse the admission of guilt system to finalise matters speedily. This article examines the consequences for a person who pays an admission of guilt fine. It further investigates whether there is a duty on Legal Aid South Africa to provide legal assistance in these matters and whether an administrative infringement process should be investigated.

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