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2022 ◽  
Vol 11 (1) ◽  
pp. 293
Author(s):  
Erni Dwita Silambi ◽  
Pangerang Moenta ◽  
Farida Patittingi ◽  
Nur Azisa

Customary law is an unwritten rule that lives in the customary community of an area and will continue to live as long as the community still fulfils the customary law that was passed on to them from their ancestors before them. Settlement in criminal cases through customary law that produces results is a form of legal certainty. This study aims to determine the ideal concept in resolving criminal cases through customary courts in Merauke Papua. The method used in this study is a combination of normative legal research and empirical legal research with the reason that the author wants to examine the norms related to the problem of resolving customary criminal cases and seek direct information on the implementation of customary justice in Merauke Regency which is presented descriptively. recognition of customary courts must be stated in writing in the law on judicial power so that this institution has a clear legal basis and its decisions can be recognized so that it does not need to be tried again through national courts, criminal threats under five years must be resolved through customary courts and are final decisions   Received: 23 August 2021 / Accepted: 25 October 2021 / Published: 3 January 2022


2021 ◽  
Vol 4 (2) ◽  
pp. 86-91
Author(s):  
Araceli Turmo

Discussions on the appropriate fundamental rights standards in the EU and the need to take into account conflicting interests are increasingly being reframed as debates on the conflict between the primacy of EU law and the constitutional standards of the Member States. One example of this reframing is the French administrative supreme court’s decision following the ECJ judgment in La Quadrature du Net. The Conseil ruled that the EU standards set in that judgment must be reviewed, at the national level, with regard to a national understanding of security concerns and the requirements of the fight against terrorism. Thus, constitutional requirements related to public security may be relied upon to argue for a lower standard of protection of personal data than those which the ECJ requires. As this decision shows, the ability of corporations and Governments to rely on litigation before national courts to challenge the standard of protection set at the EU level creates a significant risk, not only for the uniformity of EU law, but also for the protection of the rights of individuals. 


Author(s):  
Guliam Umid

An analysis of the international legal bases of implementation of decisions of the European Court of Human Rights to the national legislations of the member states of the Council of Europe is carried out. Such implementation takes various forms, and in general there is no single implementation mechanism. At the same time, the importance of implementing decisions of the European Court of Human Rights lies in the state's fulfillment of its obligations both to the world community of states and to its own citizens. Forms and methods that ensure the progressive development of national law, taking into account the practice of international courts, are considered. The synthetic research method determines the impact of ECtHR decisions on the structure of national law, which stimulates the transformation of its entire branches. It is demonstrated, how the ECtHR promotes the formation of progressive legal institutions in legal systems, exerting organizational and civilizational influence on the legal systems of states. It is emphasized, that the principle of legal certainty, by which the international court assesses vague and insufficiently clear provisions of national law, is fundamental for the implementation of the case law of the ECtHR into national laws. With this influence, the ECtHR determines the nature of lawmaking and law enforcement in a country. As a result, it is concluded, that the most effective mechanism for implementing the principle of legal certainty in a state is the adoption of general measures, contained in the pilot decisions of the ECtHR. The second important mechanism is the application of the rules of law by national courts, taking into account the case law of the ECtHR, which ensures the interpretation of human rights rules in a way that is most acceptable to the national legal system


2021 ◽  
Vol 4 (2) ◽  
pp. 19-36
Author(s):  
Graham Butler

The vast majority of cases that are submitted to the Court of Justice of the European Union (the Court) through the preliminary reference procedure that is contained in Article 267 TFEU come from lower instance national courts and tribunals in EU Member States. As a result, it is not always appellate courts, or higher instance national courts and tribunals, such as courts of final appeal, which make orders for reference. Judicial dialogue between national courts and the Court through this Article 267 TFEU procedure is notable for its particular quality of it being open to receiving orders for reference, for an interpretation of EU law from national courts and tribunals – of any instance – from first instance, to final instance. But can this judicial dialogue between lower instance national courts and tribunals and the Court be impeded by national courts’ more senior national Brethren, with appeals being allowed against orders for reference within national legal orders? The case law of the Court on such an issue has been progressive, in that it developed slowly over time, and the Court, by 2021, becoming increasingly assertive. As will be analysed in this article, the Court’s approach to the arising issue has clearly been an attempt to balance the interests of judicial dialogue on the one hand, and national rules on the other. Yet, with the Court’s broader case law tightening the understanding of who constitutes the European judiciary, and ensuring that all national courts and tribunals remain independent from executive interference in EU Member States, the article commends recent developments, but makes the further plea for an affirmative judgment of the Court to not permit, as a matter of EU law, appeals against orders for reference made by lower instance national courts and tribunals in EU Member States, in the name of preserving judicial dialogue through the preliminary reference procedure.


Author(s):  
Viktor Smorodynskyi

Legal certainty is considered in the paper not only as one of the general principles of law and one of the requirements of the Rule of Law, but also as a fundamental feature and condition of the significance of law and its instrumental value in general. In this regard, the definitions of the Rule of Law conception and the lists of its components proposed by Western philosophers and theorists of law and by the Venice Commission are analyzed. Elements of the principle of legal certainty such as legislation and case law accessibility, legal acts’ predictability, principles of case law unity, legitimate expectations, res judicata, the European concept of autonomous interpretation and the American doctrine of uncertainty of law are covered. By analyzing and synthesizing theoretical concepts of the principle of legal certainty, the practice of its interpretation and application by European and national courts, the connections between it and other general principles of law (in particular – principles of legality and reasonableness), this principle plays a key role in the Rule of Law implementation in the national legal system.


2021 ◽  
Vol 23 (6) ◽  
pp. 535-544
Author(s):  
Aleksandur Kirkov ◽  
◽  
Ana Andonova ◽  

Bulgaria ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1992, as such this European act has become part of our domestic legislation. Explaining in detail the differences and similarities between the European Court of Human Rights in Strasbourg and the Bulgarian judicial system, we will actually see how much they are similar. This is the purpose of the present study - comparative analysis in all aspects: territorial jurisdiction, legal jurisdiction, including procedurally legitimate persons to file complaints, procedural issues, stages of the process, court decisions and appeals. The first and most important task of the study is to get acquainted in detail with our European rights, as well as their judicial protection. On the other hand, the knowledge of the European judicial mechanisms leads to the expansion of our national horizons in a supranational perspective, to opportunities for professional realization outside the borders of the country, on a European and global scale. The research method used in the present scientific work is the comparative analysis. The methodology we refer to in preparing the analysis is based on a predetermined methodological approach and structure in conducting the analysis. The methodological approach itself includes a general overview of the legal framework, regulating the administration of justice in national courts and at European level. An essential feature of the approach used is to compare the two established legal systems, at home and in Strasbourg, at all levels, to explore links and interdependencies possible differences. Expected results: acquainting the Bulgarians with their European rights, as in case of violation of these rights, learning about the mechanisms for their protection in court. Conclusions and summaries: Bulgaria is part of the common European framework. As such, its citizens are Bulgarians, but also Europeans. Namely, as Europeans, they have rights that are guaranteed to them by Europe and that should be respected in Bulgaria. Failure to respect these European rights creates conflicts that should be resolved by both national courts and the European Court of Human Rights.


2021 ◽  
Vol 25 (1) ◽  
pp. 144-163
Author(s):  
Jean-Baptiste Bukuru

The article considers the recent case-law of the European Court of Human Rights in cases related to the use of the achievements of biomedicine in the light of the implementation of human rights and freedoms provided for by the European Convention on Human Rights and its additional protocols. In fact, the author pays special attention to the case of Boljević v. Serbia , in which the applicant, a Serbian citizen, alleged that his right to respect for private and family life had been violated as a result of the refusal of the Serbian national courts to reopen paternity proceedings, in which the applicant intended to prove, through DNA testing, that Mr. A was his biological father. It has to be mentioned that in this case in the 1970s the Serbian national courts issued final decision according to which Mr. A was not recognized as the applicant's biological father, and the applicant indicated that at that time it was impossible to carry out DNA test and he did not know about the existence of such decision (during the proceedings, the applicant was represented by a lawyer appointed by local authorities, since he was a minor), and that now there is such a possibility. In this connection, the applicant argued that the denial to satisfy his claims on procedural basis by the domestic courts violated his right to family and private life. The ECtHR ruled that Art. 8 of the Convention has been violated. In that case, the issues of compliance with a balance of private and public interests were dealt with (the interests of the applicant to establish his biological father identity and the interests of the state in maintaining legal certainty).


2021 ◽  
pp. 1-30
Author(s):  
J. Christopher Upton

In recent decades, the Taiwan judiciary has taken steps toward securing Indigenous people’s access to the justice system. These measures reflect a vision of access to justice framed narrowly on national courts and legal actors through the provision of free legal counsel, courtroom interpreters, and special court units dedicated to Indigenous people. These measures embrace a thin understanding of access to justice that overlooks important hurdles to both seeking and providing such access to Indigenous people. This article considers some of the key challenges of Indigenous people’s access to justice in Taiwan and the role of the judiciary in both perpetuating and addressing those challenges. It argues for a thicker understanding of access to justice that addresses the circumstances of contemporary Indigenous life and confronts the entrenchment of colonialism in the state framework. Field research in eastern Taiwan shows how aspects of normativity, spatiality, economics, order, language, and institutions, ensconced in a legal framework that reinforces an unequal power relationship between the state and Indigenous people, have shaped the character of access to the justice system and, in turn, continue to operate as obstacles to meaningful access to justice for Taiwan’s Indigenous people.


2021 ◽  
Vol 5 (S4) ◽  
Author(s):  
Alina V. Denysova ◽  
Alla B. Blaga ◽  
Viktor P. Makovii ◽  
Yevheniia S. Kaliuzhna

The purpose of this study is to reveal the content of the right to a fair trial and the state of its provision in Ukraine through the prism of court decisions of Ukrainian courts of various instances and the relevant practice of the European Court of Human Rights. The methodological basis of the study is a set of philosophical and ideological, general and special scientific methods and techniques of scientific knowledge, including dialectical, systemic, structural and functional methods, as well as methods of analysis and synthesis. It is identified that the right to a fair trial in legal science, judicial practice is considered in its constituent elements and relevant manifestations, including fairness and publicity of the trial, compliance with the signs of independence, impartiality, legality, observance of the rule of law, equality of participants, and proceedings within reasonable time limits. Each of the elements, mentioned and features of the right to a fair trial is subject to appropriate interpretation in the context of the relevant decisions of the European Court of Human Rights during the review of case materials in national courts of the signatory states to the Convention.


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