Loss of control in the appeal courts

The article critiques the ‘loss of self-control’ requirement within Loss of Control partial defence, investigating its meaning (legally and scientifically), as well as its theoretical purpose. We contend that the partial defence currently performs a curious and problematic role, promoting questions of self-control, that are most effectively dealt with at a post-conviction stage (ie, at sentencing), into questions for the liability stage. This could be (perhaps best) resolved through the abolition of the mandatory life sentence for murder, and subsequent abolition of the partial defences, but it is accepted that the current political reality weighs heavily against this option. Looking for viable alternatives, we highlight the advantages of an approach that maximises discretion based on a full appraisal of potentially extenuating circumstances; before discussing how the current partial defence, including the requirement for a loss of self-control, should be interpreted to move the current law closer to this goal.

8. The civil and commercial justice systems

This chapter discusses the civil and commercial justice systems. It considers the purpose of the civil justice system and also covers the use of alternative dispute resolution and the incentives to keep disputes out of the court. It looks at the court structure, the county court, the High Court, the newly created Business and Property Courts of England and Wales, and other courts and offices. It considers possible changes that may result from the Transformation programme and the civil and commercial justice systems’ response to the COVID-19 pandemic. It also considers routes of appeal and the work of the appeal courts.

Bezpośredniość zamachu oraz współmierność sposobu obrony – granice obrony koniecznej w najnowszym orzecznictwie Sądu Najwyższego i sądów apelacyjnych

The following article aims at discussing the attributes of the directness of attack and the commensurateness of the means of necessary self-defense, which constitute the most significant, but also the most controversial, prerequisites for the justification of necessary self-defense. The author conducts his study on the basis of selected case law of appeal courts and the Supreme court, dating back four years. In this way, the article allows to delineate the limits of necessary self-defense, as well as present particular cases of exceeding the limits of necessary self-defense.

Geographien des Ein- und Ausschlusses: Strafvollzug und -prozesse im Kontext der Aufarbeitung von Beteiligungshandlungen im syrischen Bürgerkrieg

Based on an ethnographic study of anti-terror trials at higher regional appeal courts in Germany, conducted in 2015–2020, this article examines the interrelation between the German penal system and criminal trials as mutually constitutive, governmentally guided, and highly secured elements of a state-induced and Islam-centred terrorism prevention. This includes the physical nature of the courthouses, as well as discourses of risk inscribed within them, which are linked to corresponding racialized and gender-rendered readings of the ‚need for custody‘. Under the auspices of a ‚new penology‘ and legitimized as an elimination of ‚state-endangering actions‘, two logics emerge in the course of these proceedings that emphasize either a ‚rectification of the reformable‘ or a ‚confinement of the incorrigible‘, illustrating how a reshaped field of crime control and criminal justice can currently be observed that makes permanent incarceration the guarantor of a promise of security.

Independence of Russian Judges in Conditions of Irremovability of Judges

The paper has become the fourth work in a cycle of studies carried out by the author to investigate the independence of the judiciary. It is devoted to the implementation of the principle of irremovability of judges as one of the declared guarantees of their independence. The paper analyzes the institutional and individual independence of courts and judges, concludes that it is individual independence of judges that plays the special role in ensuring the independence of the judiciary in general. Within the framework of the study, the reader’s attention is drawn to the components of the irremovability of judges: the period of granting the status of federal judges and the special procedure for suspending and terminating their powers. The author criticizes various age limits established by the legislator, upon which judges’ powers are terminated. Such a differentiated approach, in his opinion, conflicts with the general legal principle of equality and a sectoral principle of the unity of the status of judges. As a consequence, the leadership of the highest courts, given the possibility of reassigning them repeatedly, falls into a harmful dependence on the person entitled to nominate them for the positions of the President and Vice-Presidents of the relevant court. The author provides discouraging forecasts concerning the implementation of the constitutional amendment extending the powers of the President to deprive the status of judges of the Constitutional, Supreme Courts, Cassation and Appeal Courts of the Russian Federation. The work elaborates on the procedure for bringing judges to disciplinary responsibility, which is designed to protect their independence, but in view of the existing shortcomings allowing the use of this mechanism in order to monitor and pressure judges. In this regard, the author substantiates and proposes an impressive list of measures aimed at changing the situation. These measures include changing the composition of the qualification panels of judges, restricting the participation of judicial leadership and higher courts, their expansion by the judges of the Constitutional Court and the strengthening of their public participation, the establishment of the possibility of challenging the decisions of the qualification panels of judges by applicants.

Certain problems in understanding, investigating and litigation of criminal proceedings on separatism and terrorism

Objective. The publication is the author's attempt to present to the scholarly community the objective problems of the researchers’ and legal practitioners’ understanding of such closely related phenomena as separatism and terrorism, to cover some particular problems of pre-trial investigation (which emerge due to impossibility of conducting urgent investigative actions right on the crime site, to interrogate the military personnel witnesses according to the general rules, to conduct covert investigation procedures in compliance with the current requirements, to commission and conduct the necessary expert investigations or to officially add the evidentiary items to the case, etc.) and of litigation (being caused by absence of proper regulatory mechanism for recovering the lost materials) for the criminal proceedings of the category mentioned above. It also strives to develop proposals to help reduce the number and urgency of the outlined problems. Methodology. Analysis and synthesis of the scholarly work of several researchers, study of the state of the regulatory support, outlining the author’s own conclusions. The structural and systemic methods, analysis and synthesis, functional and other methods were used in the course of this study. Results. This article introduces arguments that provide grounds for the following conclusions: - the Code of Criminal Procedure of Ukraine needs to be amended with a separate procedure for taking the procedural actions (as it is often impossible to conduct urgent investigative actions right on the crime site, to interrogate the military personnel witnesses according to the general rules, to conduct covert investigation procedures in compliance with the current requirements, to commission and conduct the necessary expert investigations or to officially add the evidentiary items to the case, etc.), not just stipulating obtaining consent for conducting them, as it is now set out in Article 615 of the Code of Criminal Procedure of Ukraine; - the procedure for restoring the lost materials of criminal proceedings of the specified category should differ from the current general one, currently regulated in the Code of Criminal Procedure of Ukraine (this includes both criminal proceedings that are still at the stage of the pretrial investigation with no procedural judgment yet and that have already received the judgment of the courts of the first instance, courts of appeal, courts of cassation, or the European Court of Human Rights); - the guidelines should be developed to help mitigate and alleviate the psychological component when evaluating evidence in the criminal proceedings of the specified category; - another urgent issue is resolving the problem of investigative units being overloaded. Academic novelty. Terrorism and separatism are now manifesting in many countries, and, unfortunately, Ukraine is one of them. Based on the available scholarly opinions, practice, and on my expertise, I attempt to outline the urgent issues and to articulate recommendation that can be useful in the regulatory and practical activities on investigation and litigation of this category of criminal proceedings. Practical importance. The study results can be used in the regulatory and law-enforcement activity in the course of investigation of criminal offences connected to separatism and terrorism.

The Supervision of Guilty Pleas by the Court of Appeal of England and Wales – Workable Relationships and Tragic Choices

The judgments of criminal appeal courts are an example of Calabresi and Bobbitt’s concept of ‘tragic choice’. Judges justify convictions by reference to the values which they attribute to criminal procedures: fairness, truth and rights, rather than the full range of considerations which have influenced the introduction of those procedures: cost, efficiency, crime control, public perceptions of crime, etc. The difficulties facing the Court of Appeal in justifying convictions by juries after a full trial are multiplied in the case of convictions following guilty pleas. A procedure which on its face is less capable of identifying guilt than a trial, has to be defended on the basis that it is overwhelmingly more capable of identifying guilt (or so fair as to justify disregarding the possibility of innocence). Recent changes to the plea system restricting maximum sentence discounts to pleas made at the earliest opportunity further distance guilty pleas from the protections afforded by trial, and compound the difficulties in justifying these convictions as ‘safe’. With guilty pleas we have reached a situation where the Court of Appeal seems unable to provide a remedy for miscarriages, but instead, like the judges of the 19th century opposing the creation of the Criminal Court of Appeal, claims the procedure is so safe that there is little or no need for review, even in cases of procedural irregularity (short of abuse of process) or new evidence (short of exoneration).

Features of Copyright and Related Rights Defense on the Internet: Scientific Discussion at a Seminar in the First Court of Appeal

The final stage of the judicial reform was the creation of new cassation and appeal courts in the system of courts of general jurisdiction that provide additional guarantees for the effective judicial protection of citizens. Russian legislation establishes a mechanism for the protection of infringed copyright and related rights on the Internet. Such a mechanism provides for the imposition of interim measures by the Moscow City Court and the termination by Roskomnadzor of access to the site or page of the site on the Internet, on which information is posted in violation of copyright and related rights. In the case of interim measures, the case decision belongs to competence of the Moscow City Court. As a result of changes in the legislation on the judicial system, the courts of appeal and cassation of general jurisdiction began to work. Consideration of complaints against judicial acts of the Moscow City Court, rendered by them at first instance, are referred to the competence of the new courts. The article notes the stages of development of legislation on copyright protection on the Internet, as well as some problematic aspects of copyright and related rights protection on the Internet.

8. The civil and commercial justice systems

This chapter discusses the civil and commercial justice systems. It considers the purpose of the civil justice system and also covers the use of alternative dispute resolution and the incentives to keep disputes out of the court. It looks at the court structure, the county court, the High Court, the newly created Business and Property Courts of England and Wales, and other courts and offices. It considers possible changes that may follow the courts and tribunals transformation project. It also considers routes of appeal and the work of the appeal courts.

Review of court decisions based on the jury’s decision in the supervisory instance

The subject. The article discusses the procedural peculiarities and grounds for the supervisory (cassation) review of court decisions based on the jury’s decision.The purpose of the article is to assess the effectiveness of the rules on the grounds for review of courts’ decisions based on jury’s verdict.The description of methodology. The author uses formal-legal and comparative-legal methods as well as legal interpretation of the text of Russian Criminal Procedure Code and Russian Supreme Court’s decisions. The decisions of Russian Constitutional Court and court statistics are also analyzed.The main results and scope of their application. In the introduction the author substantiates the relevance of the proposed research by creating a separate cassation and appeal courts of General jurisdiction, a significant extension of jurisdiction of the Russian court with participation of jurors in the district courts as of 1 June 2018., that will result in a manifold increase in the cases before the courts with participation of jurors in the first instance, and a manifold increase in appeals and representations on the decision of the jury. In the second section of the work the characteristic of legal institution of possible turn to the worst for the condemned situation in cassation and Supervisory instances is given, the analysis is widely known of the resolution of the constitutional court of the Russian Federation of May 11, 2005. The third section of the work considers the grounds for possible review of the decision of the courts with the participation of jurors in the order of Art. 401.6 of the Code of Criminal Procedure and grounds proposed by the Plenum of the RF Supreme Court in the Decree of January 28, 2014. The fourth section of the work is devoted to the characteristics of the rules and procedure of Supervisory proceedings, specifies the types of appealed decisions, powers and limits of the rights of the Presidium of the Russian armed forces, provides examples of review of judicial decisions with the participation of juries that have en-tered into force.Conclusions. The author suggests to replace the grounds for cancellation or amendment of acquittal decisions of courts based on the jury’s decision with the grounds of cassation review of jury trials that are included in art. 664 and 665 of the Code of Criminal Procedure of the Republic of Kazakhstan due to their clearer legal definition and lack of evaluative concepts.