scholarly journals A problematic Israeli High Court dismissal of a torture complaint. A commentary by Hans Draminsky Petersen, MD

2019 ◽  
Vol 29 (2) ◽  
pp. 96-102
Author(s):  
Hans Draminsky Petersen
Keyword(s):  
Burden Of Proof ◽  
Medical Evidence ◽  
High Court ◽  
Pain And Suffering ◽  
Istanbul Protocol ◽  
Definition Of

It is not for the documenting medical experts (Shir, 2019), but for the court to decide whether the level of pain and suffering inflicted reaches the threshold of torture [while disregarding ill-treatment], i.e., the court upholds the prerogative to apply its own interpretation of the definition of torture, no matter existing medical evidence and disregarding the Istanbul Protocol. The criteria used to determine the level of FT's pain and suffering does not appear in the ruling. The ruling states that the burden of proof that the "means" were not reasonable [constituting torture] falls upon the petitioner (para 36). In the light of the above (1, a-h) this is in practice impossible for the petitioner to establish. This aligns with Shir’s statement that no ISA interrogator has been indicted in 1200 torture complaints.

Competition, Not Regulation – or Regulated Competition?

2015 ◽  
Vol 6 (3) ◽  
pp. 405-417
Author(s):  
Alexia Herwig
Keyword(s):  
Imperfect Competition ◽  
Burden Of Proof ◽  
Equal Treatment ◽  
Perfect Competition ◽  
Appellate Body ◽  
Treatment Standard ◽  
Regulatory Purpose ◽  
Definition Of ◽  
Regulated Competition ◽  
Domestic Products

GATT Article III:4 aims at equal treatment in respect of competitive opportunities of imports and competing domestic products by preventing protectionism. A key question is whether regulations with heavier burdens on imported products than on domestic products and a valid regulatory purpose are consistent with Article III:4. Inquiry into regulatory purpose under Article III:4 would allow by-passing Article XX whose list of regulatory objectives is a closed one and which puts the burden of proof on the defending WTO member. In EC-Seal Products, the Appellate Body has rejected any role for the regulatory purpose inquiry under Article III:4. This article shows why a purely empirical definition of likeness and less favourable treatment as disparate impact cannot logically lead to a finding of a violation of Article III:4. It then argues that regulatory purpose continues to play a role under Article III:4 because of the centrality of the notion of competition. It proposes to frame that competition as perfect competition. It shows that the adoption of perfect competition as the evaluative benchmark for all of Article III:4 makes better legal sense than starting from imperfect competition for the likeness analysis and perfect competition for the less favourable treatment standard, as is proposed in the literature. It also shows that even in case where imperfect competition is used as the sole benchmark for both parts of Article III:4, an assessment of how regulation interacts with competition continues to play some role.

Diskriminierung am Arbeitsplatz und Gleichbehandlung

2014 ◽  
Vol 55 (3) ◽  
pp. 32-34
Author(s):  
Ina Bender
Keyword(s):  
Sexual Identity ◽  
Burden Of Proof ◽  
Labor Law ◽  
Ethnic Origin ◽  
Disadvantaged Groups ◽  
Pain And Suffering ◽  
Full Force ◽  
Procedural Facilitation

Vor einigen Jahren ist das allgemeine Gleichbehandlungsgesetz in Kraft getreten und bildete zugleich den vorläufigen Höhepunkt in der Diskussion um die Rechte von Minderheiten und benachteiligten Bevölkerungsgruppen. Dabei nehmen die arbeitsrechtlichen Vorschriften einen großen Teil ein, um Diskriminierung aufgrund der Rasse, der ethnischen Herkunft, des Geschlechts, des Alters, der Religion oder Weltanschauung, Behinderung oder der sexuellen Identität zu bekämpfen. Vor diesem Hintergrund ist es jedem Arbeitgeber dringend zu empfehlen, sich für dieses Thema zu sensibilisieren und einen Überblick über die Anforderungen und den Umgang der Gerichte mit diesem Gesetz in den vergangenen Jahren zu verschaffen. A few years ago, at the height of a discussion about the rights of minorities and disadvantaged groups, a law against discrimination came into force. The regulations of this labor law are very important in order to prevent discrimination on grounds of racial or ethnic origin, disability, gender, age, religion or belief, or sexual identity. The employer has a lot of obligations to prevent discrimination in the workplace. Legal claims for damages, compensation for pain and suffering, as well as procedural facilitation (reversal of the burden of proof) make this law a very efficient instrument. Indeed, a lot of employers have felt the full force of it. For this reason, it is strongly recommended that all employers familiarize themselves with the requirements of this law, and be aware of how the court has been dealing with its implications over the last few years. Keywords: sensibilisierung, religion, herkunft, gleichbehandlung, geschlecht, diskriminierung

Ch.10 Limitation periods, Art.10.4

2015 ◽  
Author(s):  
Wintgen Robert
Keyword(s):  
Burden Of Proof ◽  
Limitation Periods ◽  
Definition Of ◽  
The Right

This commentary analyses Article 10.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning new limitation periods by acknowledgement. All major jurisdictions accept that a new limitation period starts to run if the obligor acknowledges the obligee's right. This rule is consistent with the policy considerations underlying limitation periods, since an acknowledgement makes it clear that the obligor is aware of its debt. According to Art 10.4, if the obligor before the expiration of the general limitation period acknowledges the right of the obligee, a new general limitation period begins on the day after the day of the acknowledgement. The maximum limitation period does not begin to run again, but may be exceeded by the beginning of a new general limitation period under Art 10.2(1). This commentary considers the definition of acknowledgement, the time of acknowledgement, burden of proof relating to the new limitation period, and effects of the obligor's acknowledgement of the obligee's right.

Evolving Standards for Torture in International Law

2017 ◽  
Author(s):  
Juan E. Méndez ◽  
Andra Nicolescu
Keyword(s):  
International Law ◽  
Medical Necessity ◽  
Persons With Disabilities ◽  
Genital Mutilation ◽  
Legal Definition ◽  
Pain And Suffering ◽  
The Subject ◽  
Definition Of ◽  
Gray Areas ◽  
Female Genital

The legal definition of torture is not limited to pain and suffering inflicted during interrogation or as punishment. Other practices, like domestic violence and female genital mutilation, have gradually been incorporated into the definition of torture and other ill-treatment. The absolute prohibition of torture extends to practices justified on grounds of “medical necessity” or “therapeutic purpose,” but which nevertheless inflict pain crossing the requisite threshold of severity, including the denial of pain relief and legally available abortions, or practices affecting persons with psychosocial disabilities or suffering from drug addiction. This chapter illustrates the gray areas where health care and the prohibited infliction of pain collide, discussing the rapidly evolving legal definition of torture and concepts like legal capacity, consent, and medical necessity. It recognizes that international law on the subject is far from settled, especially with regard to standards enacted by the recent Convention on the Rights of Persons With Disabilities.

Estuaries in European Community Law: Defining Criteria

1998 ◽  
Vol 13 (1) ◽  
pp. 1-22 ◽  
Author(s):  
Philippe Sands ◽  
Caroline Blatch
Keyword(s):  
International Law ◽  
Judicial Review ◽  
Scientific Literature ◽  
Waste Water Treatment ◽  
High Court ◽  
The Government ◽  
Definition Of ◽  
Bodies Of Water ◽  
Economic Considerations ◽  
European Community Law

AbstractIn 1996, the English High Court quashed the Secretary of State's decisions to designate the Humber and Severn bridges as the outer limits of the Humber and Severn Estuaries, for the purposes of implementing the 1991 EC Directive on Urban Waste Water Treatment. The judicial review centred around the meaning of the term "estuary" which, although well established in scientific literature, has apparently never been subject to judicial consideration in EC or international law. In the absence of a clear definition of an estuary, the court held that in designating these bodies of water under the Directive, the government must take into account all the relevant circumstances relating to their objective characteristics-including salinity and topography-having regard to the purpose of the Directive. Economic considerations may not, however, be taken into account in this exercise, in the absence of express provision in the Directive to that effect.

scholarly journals SOME CLARITY ON THE ACCRUAL OF LIVING ANNUITIES AT DEATH OR DIVORCE CM v EM (1086/2018) [2020] ZASCA 48; [2020] 3 All SA 1 (SCA); 2020 (5) SA 49 (SCA) (5 May 2020)

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Eben Nel
Keyword(s):  
The Other ◽  
Investment Performance ◽  
High Court ◽  
Life Annuity ◽  
The Supreme Court ◽  
Form Part ◽  
Term Insurance ◽  
Definition Of ◽  
Court Of Appeal

A conventional life annuity is a contract in terms whereof an annuity underwriter guarantees a periodical payment to an insured in exchange for an initial non-refundable premium. The insurer pools all the annuity premiums together and assumes both the investment performance and the mortality risk by way of actuarial comparisons. The annuitant’s income is guaranteed for life or for a minimum period.Living annuities on the other hand are regulated by the Long-Term Insurance Act 52 of 1998 and are market-linked investments (with no income guarantee) in respect of which the annuitant annually chooses the drawdown rate – currently between 2.5 and 17.5 per cent per annum (compare Regulations in terms of s 36 of the Pensions Act 24 of 1956 and s 106(1)(a) read with s 108(1) of the Financial Sector Regulation Act 9 of 2017.) When an annuitant dies, the death benefit is payable to a nominated beneficiary or the estate of the insured. A pension-interest benefit is an asset for the purposes of the division of an estate at divorce, and includes both pension and provident funds. Living annuities, however, do not fall within the definition of “pension interest” as defined in s 1 of the Divorce Act.In CM v EM ((1086/2018) [2020] ZASCA 48; [2020] 3 All SA 1 (SCA); 2020 (5) SA 49 (SCA) (5 May 2020)), the Supreme Court of Appeal, in an appeal from the full court of the Gauteng Division of the High Court, sitting as court of appeal, had the opportunity to determine where the ownership of capital invested in the form of a living annuity vests, as well as whether the value of an annuitant spouse’s right to future annuity payments is an asset in his or her estate and therefore subject to accrual. Accrual in respect of an estate is the amount by which the net value of the estate at the dissolution of a marriage exceeds the net value of that estate at the commencement of the marriage. At the dissolution of a marriage owing to death and subject to the accrual system, the spouse whose estate shows no accrual, or a smaller accrual than the estate of the other spouse, has a claim against the other spouse or his or her deceased estate.It is submitted that some implications of the accrual dispensation, particularly within the context of certain pension and financial products, are still in their discovery phase, nearly 40 years after their introduction. In the absence of any reference to a living annuity in an antenuptial contract, the question was always whether such an investment is subject to the accrual system at divorce or death. In the context of a life assurance policy, the surrender value of the policy was taken into account in the event of divorce, but in the event of death, the question was whether, for accrual purposes, the factor taken into account should be the surrender value or the policy proceeds. As only assets that form part of the estate of a spouse can be considered for accrual purposes, the very nature of a living annuity had to be investigated in the matter of CM v EM (supra). This case was an application for special leave to appeal from the full court in the matter of Emilio Pietro Valfredo Montanari v Charmaine Helen Montanari (Montanari v Montanari).

scholarly journals DEFINITION OF THE CONCEPT OF «DEFAMATION» IN THE COUNTRIES OF CONTITENTAL EUROPE

2021 ◽  
pp. 104-111
Author(s):  
N. I. Skoropysova
Keyword(s):  
Western Europe ◽  
Freedom Of Expression ◽  
Burden Of Proof ◽  
Moral Rights ◽  
Protection Mechanism ◽  
Inaccurate Information ◽  
European Court ◽  
Protected Object ◽  
Definition Of ◽  
The Right

The article discusses the key issues of the interpretation of the concept of “defamation” in the countries of Western Europe. In a modern social and legal state, considerable attention is paid to the protection of individual rights and freedoms as the foundations of democracy. One of the basic personal rights is the right to personal dignity, protection of honor and reputation. Analysis of the structures of the current legislation, the positions of the Supreme Court, acts of the European Court, as well as classical and newest scientific approaches, defamation is an offense expressed in the dissemination of inaccurate information that violates the right of a legal entity to a business reputation. Honor, dignity, business reputation are constituent elements of such categories as personal moral rights and intangible benefits, in order to ensure the realization and functioning of the rights of which, a well-thought-out, well-coordinated and effective protection mechanism must be produced. Attention is focused on the fact that for the proper operation of such a mechanism, it is necessary to determine, first of all, the protected object, what are its features and boundaries that need to be regulated by law. Indeed, in the case of securing an incomplete list of protected in the legislation, fixing in the norms not all signs of the protected or the presence of gaps in the regulation of this legal relationship, the potential for abuse of the right or misinterpretation of its norms arises. National laws define in different ways whether the burden of proof lies with the plaintiff or the defendant. It is concluded that defamation is one of the unlawful acts that infringe upon honor, dignity and reputation and requires further study in the practice of the European Court. In dealing with defamation cases, courts always need to find a compromise and strike a balance between freedom of expression, freedom of thought and speech, and protection of dignity, honor and reputation.

Ch.6 Performance, s.1: Performance in general, Art.6.1.3

2015 ◽  
Author(s):  
Atamer Yesim
Keyword(s):  
Burden Of Proof ◽  
Contractual Obligation ◽  
Scope Of Application ◽  
Contractual Obligations ◽  
And Performance ◽  
Definition Of ◽  
The Right ◽  
Legal Consequences

This commentary focuses on Article 6.1.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning partial performance of a contractual obligation. Art 6.1.3 addresses the question of whether the obligee has the right to reject partial performance or, conversely, whether the obligor has the right to discharge itself at least partly when the time of performance is due. This commentary discusses the content and scope of application of Article 6.1.3, definition of partial performance with regard to contractual obligations, right of the obligee to reject partial performance and obligation to accept partial performance, and legal consequences of acceptance or rejection of partial performance. It also considers the right of rejection in case of only partly possible performance, defective performance, and performance in excess. Finally, it looks at burden of proof as it relates to partial performance.

Ch.7 Non-performance, s.1: Non-performance in general, Art.7.1.1

2015 ◽  
Author(s):  
Schelhaas Harriet
Keyword(s):  
Burden Of Proof ◽  
Vicarious Liability ◽  
Contractual Obligations ◽  
Definition Of ◽  
The Relationship ◽  
Late Performance

This commentary analyses Article 7.1.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the definition of non-performance. Article 7.1.1 defines non-performance as ‘failure by a party to perform any of its obligations under the contract, including defective performance or late performance’. Non-performance under Art 7.1.1 also includes violations of accessory obligations, such as a duty of confidentiality or the duty to co-operate, including the accessory obligations of the aggrieved party. This commentary discusses reasons for non-performance, the concept of ‘default’, the relationship between non-performance and non-conformity, vicarious liability for contractual obligations, and the burden of proof relating to non-performance.

Responses to “An Ethical Analysis of the Barriers to Effective Pain Management” by Ben A. Rich (CQ Vol 9, No 1)

2001 ◽  
Vol 10 (1) ◽  
pp. 88-96
Author(s):  
Claire Brett
Keyword(s):  
United States ◽  
Pain Management ◽  
The United States ◽  
Ethical Analysis ◽  
Human Beings ◽  
Decent People ◽  
Serious Crime ◽  
The World ◽  
Pain And Suffering ◽  
Definition Of

Ben Rich, J.D., Ph.D., presents a scholarly, passionate view of the ethics of the “barriers to effective pain management.” His manuscript is detailed, analytical, and compassionate. No reasonable sensitive person, especially a physician committed to caring for patients, can disagree with the proposal that human beings should have their physical, emotional, and spiritual pain tended to aggressively, meticulously, and compassionately. Similarly, the same individuals advocating for such pain management would agree that no one should go to jail unless he or she is guilty of a serious crime, that decent people should not be robbed or murdered, that children should not be hungry or homeless, and that all citizens of the United States deserve healthcare. Our society attempts to achieve these goals. Laws are written, discussed, and approved by state and federal congresses, voted on by citizens, and theoretically upheld by the courts, churches, and decent individuals. But, unless the world suddenly becomes inhabited by virtuous, ethical humans who can unfailingly differentiate “good” from “bad,” then, in spite of an abundance of laws and lawyers, doctors, and nurses, this world will continue to have pain and suffering. And, although we want to hold our doctors, politicians, educators, champion athletes, and others to “higher standards” than the average citizen, it is best to remind ourselves frequently that all humans can be weak and are bound to make imprecise judgments, that there is not a homogenous definition of “good,” that values and religious beliefs are variable.

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