scholarly journals A büntetőeljárás fő céljának érvényesülése a semmisségi panasz- és a felülvizsgálati eljárásban

2021 ◽  
Vol 4 (1) ◽  
pp. 171-178
Author(s):  
Andrea Noémi Tóth
Keyword(s):  
Judicial Review ◽  
Criminal Procedure ◽  
Legal Remedy ◽  
Substantive Justice ◽  
Looking Back

The main goal of the ciminal procedure is the truth, and within this reaching substantive justice. In the first Code of Criminal Procedure of Hungary (Act No. XXXIII. of 1896), this was essential, too. Looking back at Ferenc Finkey, this study looks into whether substantive justice is available in the proceedings for legal remedy. It examines two remedies: the proceeding on complaint of nullity (in Act No. XXXIII. of 1896), and judicial review (in Act No. XC of 2017).

scholarly journals Has the Action for Failure to Act in the European Union Lost its Purpose?

2014 ◽  
Vol 7 (2) ◽  
pp. 209-226 ◽  
Author(s):  
Inga Daukšienė ◽  
Arvydas Budnikas
Keyword(s):  
European Union ◽  
Judicial Review ◽  
Scientific Literature ◽  
Case Law ◽  
The European Union ◽  
Eu Legislation ◽  
Court Of Justice ◽  
Legal Remedy ◽  
The Eu

ABSTRACT This article analyzes the purpose of the action for failure to act under article 265 of the Treaty on the Functioning of the European Union (TFEU). The statements are derived from the analysis of scientific literature, relevant legislation, practice of the European Union Court of Justice (CJEU) and the European Union General Court (EUGC). Useful information has also been obtained from the opinions of general advocates of the CJEU. The article of TFEU 265, which governs the action for failure to act, is very abstract. For this reason, a whole procedure under the article 265 TFEU was developed by the EU courts. The original purpose of the action for failure to act was to constitute whether European Union (EU) institution properly fulfilled its obligations under the EU legislation. However, in the course of case-law, a mere EU institution’s express refusal to fulfill its duties became sufficient to constitute that the EU institution acted and therefore action for failure to act became devoid of purpose. This article analyzes whether the action for failure to act has lost its purpose and become an ineffective legal remedy in the system of judicial review in the EU. Additionally, the action for failure to act is compared to similar national actions.

scholarly journals Chevron at 30: Looking Back and Looking Forward

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
Natural Resources ◽  
Judicial Review ◽  
Administrative Law ◽  
Review Symposium ◽  
Theory And Practice ◽  
Administrative State ◽  
Regulatory State ◽  
Thirtieth Anniversary ◽  
Scholarly Discussion ◽  
Looking Back

This Foreword introduces a Fordham Law Review symposium held in March 2014 to mark the thirtieth anniversary of Chevron U.S.A. v. Natural Resources Defense Council. One of the most-cited administrative-law decisions of all time, Chevron has sparked thirty years of scholarly discussion concerning what Chevron deference means, when (or even if) it should apply, and what impact it has had on the administrative state. Part I of the Foreword discusses the symposium contributions that address Chevron’s scope and application, especially in light of City of Arlington v. FCC. Part II introduces the contributions that explore empirically and theoretically Chevron’s impact outside of the judicial-review context -- i.e., its effect on legislative- and administrative-drafting theory and practice, its influence within the regulatory state more generally, and its adoption (or lack thereof) in state administrative law. Part III turns to the intersection of Chevron and federalism. Part IV concludes by grappling with the contributors’ diverse views on whether Chevron is indeed a big deal and, if so, whether it is a good or bad deal for the modern administrative state.

REVIEW OF CASES ON NEWLY OPENED AND NEW CIRCUMSTANCES: UNFA-VOURABLE DISTINCTIONS OF THE CRIMINAL PROCEEDINGS

2021 ◽  
pp. 105-114
Author(s):  
Alia R. Sharipova ◽  
Keyword(s):  
Judicial Review ◽  
Negative Impact ◽  
Criminal Procedure ◽  
Access To Justice ◽  
Court Decisions ◽  
Court Cases ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Procedure Law ◽  
Administrative Proceedings

The article deals with the comparative analysis of the procedure and grounds for reviewing court cases under new and newly discovered circumstances in criminal and arbitration, civil and administrative proceedings. The author proceeds from the idea of common fundamental beginnings of justice in general, and therefore, all types of judicial activities - including an extraordinary review of judicial decisions, which have entered into legal force. The branch specifics of specific procedural institutions should have a special explanation based on the specifics of the branch itself. The author thinks that there is no key basis for reviewing the case on the newly discovered circumstances in the criminal trial and attempts to replace it with one of the new circumstances. In this part, the current criminal procedure law differs unfavourably from the Soviet Criminal Procedure Code (CPC) of the RSFSR of 1960 - among the newly discovered circumstances, there are no those that could indicate a miscarriage of justice made out of direct connection with someone's criminal actions. In the current CPC of the Russian Federation, the list of newly discovered circumstances is closed, and the list of new circumstances that entail the review of the court decisions is, on the contrary, open. Examples of academic papers and administrative enactments justifying such a replacement are given. The author gives his arguments against it and proposes to change the list of grounds for revision, referring to the regulation in other procedural branches, historical and foreign experience. A significant procedural difference of the considered type of extraordinary review of cases in criminal proceedings from other types of proceedings is found. It is the need for applicants to request a review from the prosecutor, not from the court. The greatest objection is the non-alternative procedure: the prosecutor is a participant in the criminal proceedings on the part of the prosecution, he is responsible for the undoubted proof of the charge, which is the basis of the sentence, the abolition of which is requested by another interested person. The negative impact of the prosecutor's mediation between the complainant and the court on access to justice and its quality is argued. It is pointed out that there is no need for prosecutorial checks to resolve the issue of judicial review of the case. The analysis of judicial statistics in different branches of justice shows that criminal proceedings differ sharply by the negligible number of judicial review cases due to newly discovered and new circumstances. The article calls into question the ability to explain this fact by a higher quality of sentences in criminal cases in comparison with other court decisions in other court cases.

scholarly journals A Brief Analysis On Preventive Measures Involving Deprivation Of Liberty

2015 ◽  
Vol 21 (2) ◽  
pp. 398-402
Author(s):  
Denisa Barbu
Keyword(s):  
Judicial Review ◽  
Preventive Measures ◽  
Criminal Procedure ◽  
General Nature ◽  
Individual Freedom ◽  
Judicial Control ◽  
House Arrest ◽  
The Individual ◽  
General Conditions

Abstract Preventive measures are divided by the legislator in 2 categories: imprisonment (detention, house arrest, preventive arrest) and restrictive of rights (judicial review and judicial control on surety). An absolute novelty is the introduction of house arrest. There is some controversy concerning the conditions which must be fulfilled in order to be disposed by the judge of rights and freedoms, the judge of preliminary Chamber or Panel of judges either the house arrest or the measure of preventive arrest. Whereas the establishment of preventive measures involves undermining the individual freedom, the national and the European laws have created a series of legal guarantees to prevent arbitrariness or abuse in making or extend/maintain them. There are also a number of provisions of a general nature, applicable to all preventive measures, namely, termination, revocation or replacement thereof. For all measures involving deprivation of liberty, general conditions must be fulfilled, stipulated by article 202, of the Code of Criminal Procedure, but for house arrest and detention in addition to the General conditions, special conditions should be fulfilled foreseen by article 223 of the Code of Criminal Procedure, conditions which must be cumulatively met. Not fulfilling the cumulative criteria laid down in national and European norms cannot be replaced by other considerations of the judge.

scholarly journals Keabsahan Putusan Pengadilan yang Belum Inkracht sebagai Novum dalam Pengajuan Peninjauan Kembali

2019 ◽  
Vol 6 (2) ◽  
pp. 138
Author(s):  
Hardy Salim ◽  
Yoefanca Halim ◽  
Adriel Michael Tirayo
Keyword(s):  
Judicial Review ◽  
Research Method ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Legal Certainty ◽  
Procedure Code ◽  
Legal Force

<p>A judicial institution has criteria that must be met, namely principles that are open, corrective, and recordive. The broadest opportunity to submit corrections and recordings of decisions that have permanent legal force (inkracht) deemed unfair by justice seekers can be done through a Judicial Review. However, the Judicial Review is very limitative, one of them with the requirement for novum. But the regulation of conditions can be said to be a condition as a novum not strictly regulated. By looking at this matter, the research is carried out with the aim of finding out the validity of court decisions which have not been inkracht as novum in the submission for reconsideration. This study is using a normative research method. In conclusion, court decisions that have not been inkracht as novum in submitting judicial review are valid because they need to prioritize the value of justice and truth before legal certainty. As long as the prerequisites in Article 263 paragraph (1) of the Criminal Procedure Code have been fulfilled, and one of the requirements in paragraph (2) has been fulfilled.</p>

scholarly journals ANTI-CORRUPTION THE CRIMINAL PROCEDURE LEGISLATION OF RUSSIA

2019 ◽  
Vol 7 (5) ◽  
pp. 646-649
Author(s):  
Alexander Yurevich Epihin ◽  
Oleg Aleksandrovich Zaitsev ◽  
Ekaterina Pavlovna Grishina ◽  
Andrey Viktorovich Mishin ◽  
Gulnar Isaevna Aliyeva
Keyword(s):  
Russian Federation ◽  
Judicial Review ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Cases ◽  
Legal Proceedings ◽  
Territorial Jurisdiction ◽  
Current Trends ◽  
Teachers And Students ◽  
The Russian Federation

Purpose: In article current trends of application of the criminal procedure legislation of the Russian Federation in compliance with the purpose of criminal legal proceedings and in the context of counteraction corruption and prevention of abuse of the law of the officials who are carrying out criminal prosecution and judicial review and permission of criminal cases are stated. Methodology: In the course of the research of problematic issues and statements of the material of the article the dialectic, comparative and legal, law modeling, logical, inductive and deductive methods were used. Result: As shows investigative and judicial practicians there are enough the facts of unreasonable initiation of legal proceedings concerning businessmen, with an application of measures of criminal procedure coercion (arrest on the property, blocking of bank accounts and so forth) which result is crash of firm. Change of territorial jurisdiction of consideration of the case of another region by the court is directed to the elimination of a possibility of rendering an impact on objectivity of adjudication. Casual distribution of participation of the lawyer in a criminal case to a destination (when he has to be present surely for protection of the defendant) promotes impartiality of realization of the function of protection in pre-judicial production. The intention of the legislator to enter the obligatory video protocol of court session is directed to a performance by all participants of the process of legal instructions and duties will eliminate possible manifestations of corruption character by officials. Applications: This research can be used for universities, teachers, and students. Novelty/Originality: In this research, the model of Anti-Corruption The Criminal Procedure Legislation of Russia is presented in a comprehensive and complete manner.

scholarly journals The general ineffectiveness of the appeal against the custody order: Final research results

2021 ◽  
Vol 93 (1) ◽  
pp. 87-118
Author(s):  
Aleksandar Todorović
Keyword(s):  
Criminal Procedure ◽  
Research Results ◽  
Concrete Situation ◽  
Procedure Code ◽  
Legal Remedy ◽  
The Republic

This paper will present the results of the completed research which relates to the issue of the effectiveness of the appeal against the custody order pursuant to Article 294 of the Serbian Criminal Procedure Code. The research which the paper reports on was conducted on the entire territory of the Republic of Serbia, encompassed all Basic and Higher Courts, as well as a survey of more than 300 lawyers. Even though most colleagues will not be surprised by the results, the research has proven to be useful in multiple ways, primarily because it factually and comprehensively demonstrates the concrete situation regarding the effectiveness of the legal remedy in question. This research documents what was the general (but not empirically tested) impression in legal praxis.

scholarly journals UPAYA HUKUM PENINJAUAN KEMBALI DALAM PERKARA PIDANA PASCA PUTUSAN MAHKAMAH KONSTITUSI

2017 ◽  
Vol 17 (2) ◽  
pp. 198
Author(s):  
Ani Triwati ◽  
Subaidah Ratna Juita ◽  
Tri Mulyani
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Criminal Cases ◽  
The Rule Of Law ◽  
Binding Force ◽  
Legal Remedy ◽  
The Republic ◽  
The One

<p>Dengan adanya Putusan MK No. 34/PUU-XI/2013, untuk upaya hukum luar biasa yaitu peninjauan kembali dapat dilakukan lebih dari satu kali. Putusan MK yang memperbolehkan upaya hukum luar biasa peninjauan kembali lebih dari satu kali tersebut, berkaitan dengan kepastian hukum dan keadilan. Apabila peninjauan kembali diperbolehkan lebih dari satu kali tetapi tidak ada pembatasan sampai berapa kali maka perkara tersebut tidak akan ada akhirnya, bahwa adanya asas litis finiri oportet (setiap perkara harus ada akhirnya) tidak akan terpenuhi. Beberapa permasalahan yang perlu dibahas adalah apakah dengan adanya Putusan MK No. 34/PUU-XI/2013 dapat memenuhi nilai keadilan dan kepastian hukum. Selanjutnya bagaimana pengaturan mengenai peninjauan kembali sebagai implementasi Putusan MK No. 34/PUU- XI/2013 agar asas kepastian hukum dan asas litis finiri oportet akan terpenuhi. Putusan MK No. 34/PUU- XI/2013, yang menyatakan bahwa Pasal 268 ayat (3) Undang-Undang Nomor 8 Tahun 1981 tentang Hukum Acara Pidana bertentangan dengan Undang-Undang Dasar Negara Republik Indonesia tahun 1945 dan tidak mempunyai kekuatan mengikat, dapat memenuhi kepastian hukum tanpa mengabaikan nilai keadilan. Hal ini dapat dilihat dari pihak kepentingan terpidana yang mana dengan diperbolehkannya peninjauan kembali dalam perkara pidana lebih dari satu kali, memberikan kesempatan untuk memperoleh kebenaran materiil dan keadilan sehingga dapat diperoleh kepastian hukum yang berkeadilan bagi terpidana mengenai perkara yang dihadapi. Untuk memenuhi asas litis finiri oportet, perlu dilakukan pengaturan bahwa untuk upaya hukum peninjauan kembali dalam perkara pidana dapat dilakukan dua kali, hal ini dilakukan untuk mencapai kepastian hukum yang berkeadilan. Di satu pihak peninjauan kembali dapat dilakukan lebih dari satu kali untuk mencari kebenaran materiil dan memenuhi nilai keadilan. Di lain pihak adanya pembatasan permohonan peninjauan kembali yang boleh dilakukan dua kali adalah untuk menjamin kepastian hukum, sehingga nilai kemanfaatan, keadilan dan kepastian hukum dapat terpenuhi.</p><p>With the Constitutional Court No. 34 / PUU-XI / 2013, for an extraordinary legal remedy which reconsideration can be done more than once. Constitutional Court ruling that allows an extraordinary legal remedy reconsideration more than once that, with regard to legal certainty and justice. If allowed to review more than one time but there are no restrictions on how many times it is the case there will be no end, that the principle of litis finiri oportet (every case there should be eventually) will not be met. Some issues that need to be addressed is whether the Constitutional Court No. 34 / PUU-XI / 2013 can satisfy the value of justice and legal certainty. Furthermore, how the arrangements regarding the review of the implementation of the Constitutional Court as No. 34 / PUU-X / 2013 that the principle of legal certainty and the principle of litis finiri oportet will be met. Constitutional Court decision No. 34 / PUU-XI / 2013, which states that Article 268 paragraph (3) of Law No. 8 of 1981 on Criminal Procedure is contrary to the Constitution of the Republic of Indonesia in 1945 and has no binding force, can meet the legal certainty without ignoring the value of justice. It can be seen from the interests of the convict which the permissibility of judicial review in criminal cases more than once, providing an opportunity to acquire the material truth and justice so as to obtain legal certainty to convict justice regarding the case at hand. To meet the principle of litis finiri oportet, it is necessary that the arrangements for legal remedy reconsideration in criminal cases can be done twice, this is done to achieve a just rule of law. On the one hand, the review can be performed more than once to search for the material truth and fulfill justice values. On the other hand the restrictions on the reconsideration request should be done twice is to ensure legal certainty, so that the value of expediency, justice and the rule of law can be fulfilled.</p>

Administrative Procedure and Judicial Review in Hungary

2021 ◽  
pp. 59-61
Author(s):  
András Zs. Varga
Keyword(s):  
Judicial Review ◽  
Point Of View ◽  
Administrative Procedure ◽  
Administrative Action ◽  
Basic Law ◽  
Legal Remedy ◽  
Administrative Measure ◽  
Constitutional Right ◽  
Judicial Procedures ◽  
The Right

This chapter studies administrative procedure and judicial review in Hungary. Section (1) of Article XXVIII of the Basic Law of Hungary (the Constitution of 2011) regulates the right to a fair trial reproducing the text almost word-for-word as found in Article 6 of the European Convention on Human Rights (ECHR). Consequently, anyone effected by an administrative measure has the (constitutional) right to judicial review. Section (7) guarantees the right to legal remedy against decisions of the courts, the public administration, or other authorities that infringe their rights or demonstrable interests. The two regulations are effective even separately, but their combined effect is that the judicial review of administrative action is an incontestable constitutional right. Administrative courts decide on the legality of the administrative action from the point of view of substantive and procedural administrative law, the judicial review is regulated by Act I of 2017 on the Code on Judicial Review of Administrative Actions, while a lawsuit for damages is heard by the ordinary court in a civil law procedure regulated by Act CXXX of 2016 of the Code of Civil Judicial Procedures.

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