Case Law
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2021 ◽  
Vol 72 (2) ◽  
Susan S M Edwards

In October 2010, section 55(3) of the Coroners and Justice Act 2009 came into force, and ‘fear of serious violence’ was expressly included in the statute as a qualifying trigger for ‘loss of self-control’ voluntary manslaughter, a partial defence to murder. This development (albeit that it is a gender-neutral provision) was anticipated to be an important step in recognising the situation of a woman who, in fearing a partner’s violence, control and abuse, kills to preserve her own life. The provision is only operative where ‘fear of serious violence’ and ‘loss of self-control’ can be established, which, given its limitations, prohibits many women in fear of a partner’s violence and coercion from successfully using this defence. The author’s review of the legal reform and the case law, together with 40 homicide cases involving female defendants who killed intimate current or former partners (April 2011–March 2016) demonstrates that this defence, which promised to deliver justice for abused women, has been little used. Women’s vulnerability and fear and response to intimate partner abuse and control is still insufficiently understood and explored and is evident where juries return murder rather than manslaughter verdicts. Further reform is needed to the legal framework regarding this and other defences in order to achieve a just law by incorporating women’s experience of, and defensive response to, violence and control in its many forms.

Michal Bobek

Abstract In multi-panelled higher jurisdictions, a larger, extended formation of judges tends to be established within the court. It bears various names: the grand chamber, the extended chamber, the expanded composition, the reunion of several chambers, a court sitting en banc, an extended section or a division of a court. In larger but not too large jurisdictions, the same role is adopted by the plenary. For ease of reference, I shall refer to all such extended judicial formations with the generic name ‘grand chamber’. To bear the same name does not necessarily mean to perform the same function. As a Czech lawyer, I have always intuitively assumed that the role of such a body within an apex court is to unify the case law. In the Czech Republic, as well as in a number of other supreme continental jurisdictions for that matter, there tends to be only one reason for the presence of a grand chamber within a supreme court: to unify the diverging lines of case law and to set a clear line of precedent. However, that has never really been the job description, least of all the practice, of the Grand Chamber of the Court of Justice of the European Union (‘Court’). This begs the question: what may then be other structural reasons for the existence of such a body within an apex jurisdiction? What is the specific role, function, and ensuing justification for the Grand Chamber of the Court? This article offers some personal reflections on that question. It is structured as follows: it begins with a short comparative overview of some of the grand chambers within European (national) courts, overseas in the common law world, as well as at the European Court of Human Rights, in order to tease out the functional rationale for various types of extended judicial compositions within those systems (Part I). Next, two types of such functional justifications for grand chambers in the form of ideal models are identified (Part II). Finally, those justifications are then considered in light of the legislative design and the current practice of the Grand Chamber of the Court, before concluding with two modest suggestions (Part III).

2021 ◽  
Vol 29 (2) ◽  
pp. 154-174
Maciej Fingas

Abstract Appeal proceedings in criminal cases are regulated in various ways by European legislators. The ECtHR case law does not impose any particular model of appeal proceedings; however, Article 6 is applicable to appeal proceedings and the manner of its application is contingent on the specific features of the proceedings in question. One of the key problems in this respect is the way the issue of the reformatory powers of appellate courts is regulated. This article seeks to reconstruct the rules worked out in the Strasbourg Court’s case law pertaining to this matter, as well as to formulate proposals as regards applying the principle of immediacy in appeal proceedings and the issue of the appellate court’s differing assessment of facts established by the court of first instance. The possible developments of case law in this area are also discussed.

2021 ◽  
Vol 29 (2) ◽  
pp. 127-153
Wojciech Jasiński

Abstract The paper presents and assesses the approach of the ECtHR to admissibility of evidence obtained through torture and inhuman or degrading treatment in the criminal process. The author examines the content of the standard, its justifications and the consistency of the ECtHR's reasoning. The paper refers both to the admissibility of statements and real evidence as well as to primary and derivate evidence obtained in violation of Article 3 echr. The admissibility of evidence obtained by oppressive conduct of private individuals is also analysed. The assessment of the Strasbourg Court’s case law indicates that its approach is quite nuanced and, unfortunately, inconsistent and incoherent. Its main shortcoming is the lack of an in-depth analysis of the rationale for the inadmissibility of evidence obtained by maltreatment and the piecemeal treatment of individual categories of such evidence devoid of attempt to comprehensively address its admissibility in criminal proceedings.

2021 ◽  
Vol 67 (3) ◽  
pp. 49-55
Vojtěch Hanzal ◽  
Jakub Tomšej

The article deals with the way legislation defines the term “senior employee” and how the interpretation is influenced by recent case law of the Constitutional Court. The first part of the article focuses on an analysis of the legal term “senior employee” in accordance with the present legislation as well as relevant judicature and doctrine. The second part of the article is based on a description of the way the Constitutional Court deviated from the interpretation of mentioned term and its aspects which were until then, considered defining. The article continues in the third section with the presentation of other examples of decision making contra verba legis throughout the judicial system of Czech Republic. The aforementioned sections are followed by the fourth part, which consists of a conclusion of the previous content and brings deliberations de lege ferenda.

Lauren Meaux ◽  
Jennifer Cox ◽  
John F. Edens ◽  
David DeMatteo ◽  
Alexandra Martinez ◽  

2021 ◽  
Vol 17 (30) ◽  
pp. 69
Ekaterine Nandoshvili

This paper focuses on analyzing the norms regulating joint rights, presents their shortcomings, and criticizes the misconceptions expressed in the legal literature about the types of common property, joint rights, and co-ownership. The paper considers the incompleteness of the provisions regulating the legal consequences of the abolition of joint rights as a serious shortcoming of the Civil Code of Georgia. A novelty is a mechanism proposed in this paper, and it is possible to assign the entire property to one of the participants in case of abolition of joint right, in exchange for compensation for the shareholder who requests the abolition of joint right and the allocation of the amount. The objective of the paper is to analyze certain aspects of the regulation of joint rights, which, together with the theoretical, have the practical importance that will contribute to a correct understanding of a number of issues and the correct qualification of the rights and obligations of participants of the legally binding relationship, rising on the basis of joint rights. To achieve this objective, logical and systematic analysis of norms as well as comparative-legal methods are used. Using these methods, it is possible to determine the strengths and weaknesses of the norms of Georgian law or to better understand their content, to identify gaps in the legislation in court practice, as well as to develop proposals and recommendations for the improvement of norms and practice. The problems are analyzed using the examples of Georgian, German, and Swiss civil law. The common features and shortcomings were identified between the Georgian and German models regarding the issue of the consequences of the abolition of joint rights. The Swiss model appears to be the most perfect and effective model among the named ones. The study found that neither in practice nor under the law is a shareholder allowed to sell the joint item in an auction by redeeming the shares of other owners. The extinction of this opportunity for the owner reduces the essence of ownership. In order to extend the guarantees for full protection of the property rights, a view is proposed on the need to develop an approach, similar to the Swiss model, and the implementation should be ensured by case law before the law is changed.

2021 ◽  
pp. 096853322110447
Joanna M Manning

In 2004 a New Zealand Family Court Judge ordered that two extremely serious and irreversible interventions (termination of pregnancy and sterilization) be carried out on a 29-year-old woman, with mild to moderate intellectual disability, over her strenuous objection. Though her appeal was partially successful, an option which both respected her wishes and feelings and in all likelihood better promoted her best interests was not explored. A decade later, another Family Court judge held that it was in the best interests of a young woman with Down syndrome to be sterilized for contraceptive purposes, in spite of her indication that she might wish to have babies one day. The decisions were made under NZ’s adult guardianship legislation, into which courts have incorporated a best interests principle, which they have interpreted broadly. But, in contrast to the Mental Capacity Act 2005 (MCA), NZ’s statute lacks any requirement for decision-makers to take into account the wishes and feelings of the person with mental impairment. That requirement has been the catalyst for a more-empathetic, person-centric interpretation in English case law. Further reform to the MCA is advocated for, which would give formal primacy to P’s wishes and feelings through presumptions or special phrases, as well as requiring a reasoned justification for departing from them. The Convention on the Rights of Persons with Disabilities goes even further: the article 12 right to legal capacity requires respect for the ‘will and preferences’ of people with mental impairments and controversially, according to the UN Committee’s interpretation, requires the replacement of substitute decision-making regimes based on best interests with supported decision-making frameworks based on a person’s will and preferences.

Diletta Tega

Italian Constitutional Court, development of re-centralised case law against the displacement of national constitutional courts – Italian Constitutional Court challenges the Simmenthal doctrine – Double preliminary questions – The Italian Constitutional Court’s continuous need for legitimation – The Italian Constitutional Court’s adaptation of its case law and doctrines to the legal and political context

Mathieu Leloup

Time for the European Court of Human Rights to interpret Article 6 ECHR to encompasses a subjective right for domestic judges to their own independence – Overview of the existing case law on the principle of judicial independence – Such a right currently not present in case law – Judges are obliged to frame their complaints, while at their heart independence-related, in terms of other substantive Convention rights – Court cannot properly address one of the fundamental aspects of these cases – Lower protection for the domestic judges – Other international legal orders do include such a subjective right to a judge’s independence – Several arguments for the European Court of Human Rights to similarly acknowledge such a right under the Convention – Few difficulties in integrating such a right into the existing case law

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