Teatralność procesu sądowego: kilka uwag o profesjonalizmie

The aim of the paper is to answer the question: what image of a professional role does the vision of a court trial as a theatre contain? In carrying out such a task, first of all, I will present the reasons that justify comparing the theatrical practice to a court hearing. When carrying out this procedure, I will pay attention to the concept of role, the ritualization of activities, the architecture of space, and functions of the role performers’ clothing. From these findings, a dramatical vision of a court trial emerges, modelled on a theatrical performance. It assumes that the performing of a role by the actor and the judge or the lawyer is largely defined by factors external to the interpreter. Such an approach to the exercise of the profession can be related to the dramatic vision of the role in Erving Goffman’s theatrical metaphor. In this perspective, it is assumed that exercising a role is a performance that can lead to two images of the professional ethos. They are characterized by an attitude of identification with the role and an instrumental distance to the profession. I intend to question both of these views. By carrying out this task, I will show that presenting a court trial as a theater does not have to assume the image of a judge, a lawyer whose task is to develop the ability to adapt to the rules of the profession and faithfully reproduce them in the cases under consideration. In presenting this position, I use the findings of theatrologist Jerzy Grotowski and the anthropological research of Victor Turner, focusing on the idea of liminality.

Australian Christian Conscientious Objectors during the Vietnam War Years 1964–72

Many young Christian men faced a moral dilemma when selective military conscription was introduced in Australia during the Vietnam War from 1964–72. The legislation was the National Service Act in 1964 (NSA). Some believed that their Christian conscience did not allow them to kill or serve in the army. Most of them sought exemption as a conscientious objector decided at a court hearing. Others chose non-compliance with the NSA. All exercised nonviolent Holy Disobedience in their individual opposition to war and conscription for it. Holy disobedience stresses the importance of nonviolent individual action, which was an idea of A.J. Muste, a great Christian pacifist. The research reported here is strongly influenced by his approach. It is believed to be the first study which explicitly considers Christian conscientious objectors. A data set was compiled of known Christian conscientious objectors during the Vietnam War years from authoritative sources. Analysis allowed identification of these men, the grounds on which their conscientious beliefs were based and formed and how they personally responded to their moral dilemma. Many of their personal stories are told in their own words. Their Holy Disobedience contributed to ending Australia’s participation in the Vietnam War and military conscription for it.

The impact of distancing upon the organizational-legal means of the Russian judicial system

This article examines the impact of the need for maintaining physical and social distancing between people caused by the epidemiological situation upon the organizational-legal means of the Russian judicial system. This implies the concept of “smart” regulation with the use of both traditional means of legal regulation (prohibitions, permits, obligations, sanctions, incentives) and tools of psychological, educational, and information influence. At the same time, distancing is viewed as a factor that prompts changes in the forms of legal activity, as well as the result of transformations taking place in society. Such organizational-legal means affected by the need for physical and social distancing, suggest using video conferencing systems, online sessions, change in the procedure for submitting procedural and other documents, familiarization with audio protocols of court hearing and other documents in digital format, as well as restrictions for presence in the courthouse. The author determines the advantages and disadvantages of the innovations. The conclusion is made that such restrictions must be temporary only to avoid violating the principles of transparency and openness of judicial proceedings.

Provision of the access to justice for consideration of criminal procedure dispute in the court of cassation

This article analyzes the problems of exercising the right of access to justice for consideration of criminal procedure dispute in the court of cassation. The author examines the legislation of post-Soviet countries in terms of provision the access to justice for consideration of criminal procedure dispute in the court of cassation. The subject of this research is the norms of Russian and foreign legislation that regulate to right of access to justice in criminal proceedings. The object of this research is the legal relations that emerge in implementation of the right of access to justice. It its demonstrated that the restriction on access to justice for consideration of criminal procedure dispute in the court of cassation instance is the time constraint for filing cassation appeal for the convict; and for consideration of interlocutory court decisions – the procedure for assessing cassation appeal without holding a court hearing. The conclusion is substantiated on the need to waive the time constraint for filing cassation appeal for the convict against final court decisions that have entered into force, and for consideration of interim court decisions, the procedure for assessing cassation appeal against the interlocutory court decision should be eliminated without holding a court hearing.

Practical aspects of determining the evidences obtained as a result of investigative (search) actions as inadmissible in the criminal proceeding.

The article is devoted to the study of theoretical and practical aspects of determining the evidences obtained as a result of investigative (search) actions as inadmissible in the criminal proceeding. The criminal procedural law of Ukraine formulates general requirements which must be followed during the evidence-collection process: 1) the legal sources of evidences; 2) the proper registration of the course and results of procedural actions during criminal proceedings; 3) the evidence-collection process fulfilled by appropriate authorities; 4) legal method for obtaining evidences. Failure to comply with these requirements results in the inadmissibility of evidences. However, further study of theoretical and practical aspects of determining evidences as inadmissible has shown that some requirements are not so obvious so it is difficult to identify them immediately. Analyzing the judicial practice of Ukraine, researching the scientific works of domestic scientists, as well as studying the works of foreign experts in terms of the general concept of admissibility of evidences, we can see the need for legal determinancy, which requires criminal procedure law. It causes subjectivism and different interpretations of admissibility or inadmissibility of evidences, which create an incredible number of problems that complicate the conduct of criminal proceeding at both pre-trial investigation and court hearing. This is confirmed by a large number of cases related to the recognition of admissibility or inadmissibility of evidences. Uncertainty of the categorical-conceptual apparatus not only leads to incorrect application of criminal procedural law during the course of investigative (search) actions by pre-trial investigation bodies in order to gather and obtain admissible evidences, but also helps to facilitate ways to circumvent certain provisions of law.

Combined (Visual-Verbal) Investigative Actions: Legal Nature and Significance for Proof

Russian criminal procedure legislation provides for investigative actions based on a combined combination of visual and verbal perception. At the theoretical level, to date, some problems of the evidentiary significance of the results of these investigative actions and their place in evidence in a criminal case have not been solved. The aim of the study is to develop an optimal theoretical model for using combined investigative actions in proving the results. The objectives of the study are: to analyze the legal nature of these actions, to distinguish elements of visual and verbal perception in their structure, to identify the possibility of removing material objects during the investigative actions under consideration, to establish the possibility of announcing the protocols of investigative actions in a court hearing. The study is based on the dialectical-materialistic general method, which involves the study of phenomena in systemic communication and totality, as well as on general scientific methods of analysis and synthesis, induction and deduction, and private-legal methods. Results of the Study. A distinction was made between the ratio of visual and verbal components in various investigative actions. Based on this, it was concluded that material objects could be removed as part of the verification of evidence on the spot, and this was impossible during the investigative experiment and verification of evidence on the spot. It is stated that the information provided in the course of conducting the investigated investigative actions verbally does not relate to the testimony. The results of all the indicated investigative actions in terms of the types of evidence are minutes and are subject to announcement at the court hearing, regardless of the existence of conditions established by law for the announcement of evidence. The results of combined investigative actions have important evidentiary significance in the paradigm of a mixed type of criminal process. The author believes that this type of proceedings is optimal, which requires an improvement in the regulatory design of combined investigative actions.

Some Questions Arising in the Trial of Civil Lawsuits in the Criminal Court of First Instance

The article discusses some problems of considering a civil claim during a criminal court hearing. It is argued that settling a civil claim during criminal proceedings has a higher priority than a trial in a civil process. The author justifies the position according to which filing a lawsuit during criminal proceedings is a right and not an obligation of a person in a criminal trial. The author also believes that in filing a civil claim in a criminal process, the civil plaintiff should present proof of the incurred costs with the purpose of further recovery of the material damage; besides, the person who will pay the damage or compensate for the moral harm should be established. Based on the analysis of court practice, it is proven that the settlement of a civil claim during a special procedure of a criminal court trial is possible, however, the accused should agree not only with the accusation, but also with the size of the damage (harm). The cases in which the courts can eliminate violations of criminal procedure legislation during preliminary investigations are examined.

Regarding the possibility for the prosecutor to carry out procedural actions in case the court returns the indictment

The article examines the possibility of the prosecutor to carry out procedural actions after the court of first instance returns the indictment from the preparatory court hearing, petitions for the application of coercive measures of medical or educational nature, if they do not meet the requirements of the CPC of Ukraine. Analysis of the grounds for returning these procedural documents for revision shows that they are different in nature. Some of them are of a formal nature (the date and place of drawing up these documents are not specified, the signatures of the investigator and the prosecutor are not placed, etc.). The formal grounds for returning the indictment and other documents mentioned above do not create any difficulties for the prosecutor in correcting them: they eliminate them, after which these documents are again sent to the court of first instance. Simultaneously, the grounds for returning these procedural documents for revision may be with more serious shortcomings (the accusation formulated by the investigator is vague, there are no established circumstances that aggravate or mitigate the punishment, etc.). When the court determines other grounds for their return, the prosecutor's decision on these grounds is more difficult. And the main problem is the possibility of conducting investigative (search) and other procedural actions to correct the shortcomings in these documents. It is concluded that the Ukrainian criminal procedure legislation does not contain a mechanism for regulating this issue, and the case law and opinions of lawyers are not unanimous and are often contradictory. Due to these and other reasons, this problem continues to exist today, creating discomfort in the activities of both prosecutors and courts of first and second instance. The arguments presented in the article substantiate the right of the prosecutor, if necessary, to conduct the necessary investigative (search) and other procedural actions to correct the identified deficiencies in these procedural documents. To fill the current legal gap on this issue, to eliminate differences in its resolution by judicial authorities and prosecutors, it is proposed to make appropriate additions to the provisions of paragraph 3 of Part 3 of Article. 314 of the Criminal Procedure Code of Ukraine. Keywords: pre-trial investigation, indictment, court of first instance, preparatory court session.

SET OF FACTS OF ADMINISTRATIVE OFFENCE FOR CONTEMPT OF COURT OR THE CONSTITUTIONAL COURT OF UKRAINE

The article is focused on the analysis of set of facts of an administrative offense for contempt of court or the Constitutional Court of Ukraine under the Art. 185-3 of the Code of Ukraine on Administrative Offenses. The author has revealed the content of the main elements of the set of facts of an administrative offense for contempt of court or the Constitutional Court. It has been indicated that, unlike the established affirmation, the object of an administrative offense is not public relations in the field of judicial proceedings, but their specific element – it is the obligation of participants of the trial to comply with the established rules of conduct as part of the content of procedural legal relations. It has been clarified that the action, as a feature of the objective aspect of the offense under the Art. 185-3 of the Code of Ukraine on Administrative Offenses can be manifested either in the action or omission. The main possible manifestations of actions and omission as manifestations of contempt of court or the Constitutional Court of Ukraine have been highlighted. The author has supported propositions on formalization of general rules of conduct in court and during court hearings. The author has proved the necessary to study the correlation of procedural and administrative offences committed during a court hearing, as well as the ratio of procedural coercive measures with administrative liability measures for contempt of court or the Constitutional Court of Ukraine. The author has clarified the expediency to unify approaches on determining the concept of “malicious evasion from appearing in court” in terms of the multiplicity of committing the offense. It has been stated that subjects of an administrative offense for contempt of court can be divided into general and special ones. It has been emphasized that an expert as a special subject of an administrative offense under the Art. 185-3 of the Code of Ukraine on Administrative Offenses is solely responsible for contempt of the Constitutional Court of Ukraine. Therefore, the author has offered to admit an expert as a special subject of administrative liability for contempt of court.

Coming into focus: an examination of how political actors and media outlets in Canada framed the Chaoulli v. Quebec case.

"This paper presents the findings of a study that examined how different political actors and the media presented the Chaoulli v. Quebec case to public. As should be clear, the Chaoulli v. Quebec case was both an extremely important case and an extremely complicated one. As a result, it is important to understand how it was presented to the public. The study was conducted in two parts. First, the specific issues frames expressed by political actors at the Supreme Court hearing were identified and mapped. This was done by examining the transcripts and factums from the hearing and noting the different problem definitions, causal interpretations, suggested remedies, and moral appeals expressed by political actors there (Entman 1993). This review revealed that three distinct specific issues frames were put forth during the hearing by three distinct sets of actors. Next, media coverage of the case was examined. Specifically, media coverage in the Toronto Star, the National Post, the Globe and Mail, and the Ottawa Citizen was examined from the day the Supreme Court heard arguments in the case until six-months after the Supreme Court announced its ruling. Using content analysis, this part of the study identified (1) the presence or absence of the specific issue frames identified in the first part of the study; (2) the type of generic news frames (e.g. the Human Interest Frame) (Semetko and Valkenburg, 2000) used to present the case, and (3) which political actors were directly quoted in coverage of the case."--Page 4.