Garantias constitucionais do processo e instrumentalidade processual

2020 ◽  
Author(s):  
Sergio Torres Teixeira ◽  
Julienne Diniz Antão
Keyword(s):  
International Law ◽  
Social Participation ◽  
Judicial Review ◽  
Graduate Program ◽  
Preventive Measures ◽  
Access To Justice ◽  
Safety Measures ◽  
Procedural Law ◽  
Administrative Procedures ◽  
The Right

During the months of May to September, Prof. Dr. Sérgio Torres Teixeira taught a discipline called “Constitutional Guaranties of the Process and Procedural Instrumentality” (which is also the name of this book) in the Post-Graduate Program of the Federal University of Pernambuco; one of the first classes entirely online in regard to COVID-19 safety measures. Despite the distance, all classmates were remarkably close in the intellectual purpose of learning and develop the law. Their researches, discussions and enthusiasm gave birth to this book, which delves deeply in important matters regarding constitutional and procedural law. It is constituted of 12 carefully written articles concerning such matters as the non-avoidance of judicial review, procedural equality in national and international law, international juridical cooperation and the effectiveness of transnational adjudication, the right to a natural judge in arbitration, social participation in administrative procedures, preventive measures in administrative procedures, among other themes that can be seen in the summary. It is a book that encapsulate different views and perspectives about such fundamental matters, intertwining different areas of law, abundantly revealing the plurality of though that sets the tone to this valuable initiative. It is by definition the work of a collectivity, that by mutual criticism made possible this academic landmark to all participants, showing the active and curious spirit of the minds cultivated in the Federal University of Pernambuco, specially concerning the researches related to procedural justice, access to justice and instrumentality. In this sense, is a work that reflects the prominent procedural issues of its time.

scholarly journals PENGAKUAN TERHADAP PIHAK NON-ADVOKAT DALAM PEMBERIAN BANTUAN HUKUM (Politik Hukum Bantuan Hukum Dalam Peraturan Perundang-Undangan Di Indonesia)

2017 ◽  
Vol 6 (3) ◽  
pp. 399
Author(s):  
Akmal Adicahya
Keyword(s):  
Supreme Court ◽  
Access To Justice ◽  
State Law ◽  
Legal Aid ◽  
Procedural Law ◽  
The Supreme Court ◽  
The Government ◽  
The Right ◽  
Law Student

Access to justice is everyone rights that have to be fulfilled by the government. The regulation number 16 year 2011 of legal aid is an instrument held by the government to guarantee the right. The regulation allowed the participation of non-advocates to provide the legal aid. Through this policy, government emphasizes that:1) Indonesia is a state law which legal aid is an obliged instrument; 2) the prohibition of non-advocate to participate in legal aid is not relevant due to inadequate amount of advocate and citizen seek for justice (justiciabelen), and the advocate is not widely extended throughout Indonesia; 3) Non-Advocates, especially lecturer and law student are widely spread; 4) there are no procedural law which prohibits non-advocate to provide a legal aid. Those conditions are enough argument for government to strengthen the participation of non-advocates in providing legal aid. Especially for The Supreme Court to revise The Book II of Guidance for Implementing Court’s Job and Administration.Keywords: legal aid, non-advocate, justice

Administrative Procedure and Judicial Review in Germany

2021 ◽  
pp. 53-58
Author(s):  
Lilly Weidemann
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Protective Effects ◽  
Administrative Procedure ◽  
Basic Law ◽  
Federal Statute ◽  
The Right ◽  
Substantive Law ◽  
Subjective Rights

This chapter explores administrative procedure and judicial review in Germany. The German Basic Law contains a guarantee of access to justice. According to section 40(1) of the Code of Administrative Court Procedure (CACP), recourse to the administrative courts shall be available in all public-law disputes of a non-constitutional nature insofar as the disputes are not explicitly allocated to another court by a federal statute. German administrative court procedure generally aims to protect subjective rights. In general, all measures taken by a public authority are subject to review by courts. This principle forms an essential part of the fundamental rights constitutionally guaranteed. Thus, no measure by the public administration is excluded from this guarantee. The infringement of a procedural provision with protective effects does not necessarily lead to the right of the applicant to have the decision quashed. This usually requires the infringement of a right of the appellant resulting from substantive law. Damages cannot be claimed within the same (administrative) court proceeding that aims to quash an administrative decision.

Part VI International Assistance, Reparations, and Redress, Ch.18 Legal Implementation and International Cooperation and Assistance: Articles 37–42

2018 ◽  
Author(s):  
van Genugten Willem ◽  
Lenzerini Federico
Keyword(s):  
International Law ◽  
International Cooperation ◽  
Indigenous Peoples ◽  
Indigenous Communities ◽  
Indigenous Populations ◽  
Access To Justice ◽  
Customary International Law ◽  
Political Commitments ◽  
United Nations Declaration ◽  
The Right

This chapter discusses Articles 37–42, considering legal implementation and international cooperation and assistance. Article 37 recognizes that treaties, agreements, and other constructive arrangements between States and indigenous populations reflect legally important entitlements that have to be honoured by applying the standards of modern treaty law, while taking into consideration the facts of cases at hand and later developments, and including the interests of other parties than the original ones. In addition, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) might be a declaration ‘only’, but it cannot be simply considered as ‘just another’ non-binding argument. Large parts of Articles 37–42 — particularly Article 37, relating to the right that treaties concluded with indigenous peoples are honoured and respected by States, and Article 40, proclaiming the right of indigenous communities to access to justice and to remedies — do have customary international law character, while other parts also reflect more than moral or political commitments ‘only’.

Access to a Court in Matters Concerning Disputes of an Individual with the Public Administration in the Republic of Poland vs. the Standards of the Council of Europe

2016 ◽  
Vol 16 (1) ◽  
pp. 111-125
Author(s):  
Ewa Wójcicka
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Access To Justice ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Difference ◽  
The Republic ◽  
European Standards ◽  
Definition Of ◽  
The Right

Summary This paper focuses specifically on the fundamental part of the right to a fair trial, namely access to a court. The aim of this article is an attempt to analyse the difference between the requirements of European standards and how they are reflected in Polish legislation. First of all, I am going to analyze basic European standards specified in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, Recommendation Rec(2004)20 on the judicial review of administrative acts and in the jurisprudence of the European Court of Human Rights. Then I will focus on selected aspects of the problem of judicial review of administrative acts specified in the Act of 30th August 2002 Law on Proceedings before Administrative Courts. I will discuss several specific topics from this field, which can be considered as crucial in relation to access to court, namely: definition of terms for access to justice by an individual, exhausting administrative remedies before judicial review, locus standi and legal aid.

Unrestricted access to justice for environmental NGOs? - The decision of the ECJ on the non-conformity of § 2(1) Umweltrechtsbehelfsgesetz with Directive 2003/35 on access to justice in environmental law and the Aarhus Convention (Case C-115/09)

elni Review ◽  
2011 ◽  
pp. 96-103
Author(s):  
Eva Julia Lohse
Keyword(s):  
Environmental Impact ◽  
Judicial Review ◽  
Environmental Law ◽  
Access To Justice ◽  
Effective Implementation ◽  
Environmental Ngos ◽  
Procedural Law ◽  
Aarhus Convention ◽  
Unrestricted Access ◽  
Wide Access

In Case C-115/09, the ECJ has decided that – despite their wording – Art. 10a of the Directive on Environmental Impact Assessment (henceforth: Directive), which implements Art. 9(2) of the Aarhus Convention (henceforth: Convention), requires the Member States to provide unrestricted access to justice for environmental NGOs. This looks like a victory for environmental lawyers who have long advocated the introduction of an ‘altruistic group action’ (‘altruistische Verbandsklage’) in environmental matters, as Germany will have to modify its current transposition of the Directive in some way. Considering the tension between desirable effective implementation of environmental law through judicial review and an – unrequested – overly restrictive interpretation of the margin of implementation, the decision demands the authors of this article to analyse closely why “wide access of justice” (Art. 10a (3) of the Directive) could mean ‘unrestricted access’ for NGOs and why it does and should not. The authors also take a closer look at the consequences for (German) procedural law.

Развитие института взаимного признания и исполнения судебных решений в странах Европейского Союза

2019 ◽  
Vol 2 ◽  
pp. 71-86 ◽  
Author(s):  
Elena Maystrovich ◽  
Elena Kucheryavaya
Keyword(s):  
European Union ◽  
Mutual Recognition ◽  
Point Of View ◽  
Current Status ◽  
Access To Justice ◽  
Mutual Trust ◽  
The European Union ◽  
Procedural Law ◽  
Recognition And Enforcement ◽  
The Right

The free movement of judicial decisions on the territory of the European Union presupposes a high level of mutual trust between the judicial bodies of the Member States. From the citizens’ point of view, the key issue is the balance between the rights of the plaintiffs and the defendants, i.e. the right to access to justice (to sue) and the right to defence. Mutual trust between the judiciary can be built in various ways. Firstly, through the creation of a unified European procedure in the form of additional tools held before the adjudication and based on the general rules of procedure. Secondly, through sectoral harmonisation of procedural law within the framework of solving individual issues in accordance with a step-by-step approach. Thirdly, it is necessary to create common standards, in the form of principles and rules, regulations and directives. The Author in this article analyses the main ways of creating uniformity of norms applied in the territory of the European Union, the most suitable for the institution of mutual recognition and enforcement of judgments. The process of legal development of the institution of mutual recognition and enforcement of judgments and its current status are considered.

Italy’s Compliance With ICJ Decisions vs. Constitutional Guarantees: does the “Counter-limits” Doctrine matter?

2013 ◽  
Vol 22 (1) ◽  
pp. 185-200 ◽  
Author(s):  
Fulvio Maria Palombino
Keyword(s):  
International Law ◽  
The State ◽  
Access To Justice ◽  
Basic Principles ◽  
Constitutional Order ◽  
Res Judicata ◽  
International Legal Order ◽  
The Icj ◽  
The Right ◽  
Right Of Access

One of the most common obstacles to the domestic enforcement of international decisions is represented by the presence of a constitutional impediment. Indeed, most national constitutions, though open to international law, can prevent the implementation of an international decision, insofar as the latter conflicts with the basic principles of the constitutional order. This article argues that in such cases it is necessary to preserve a space where the State continues to retain full sovereignty and whose protection acts as an unbreakable “counter-limit” to the limitations deriving from the international legal order (“counter-limits” doctrine). Yet recent judicial and legislative practice in Italy concerning the implementation of the ICJ decision in Jurisdictional Immunities of the State seem to overlook the need to preserve this “space”. As a consequence, certain fundamental constitutional guarantees, such as the right of access to justice, the rule of res judicata and the principle of non-retroactivity of the law, have inescapably ended up being compromised.

scholarly journals PECULIARITIES OF CONSIDERATION OF CIVIL ACTIONS ON THE PROTECTIONOF THE RIGHTS OF THE PHYSICAL PERSON OF THE SUSTAINED DEFINITION OR DAMAGE TO HEALTH WORKING UNDER THE LABOR CONTRACT

2018 ◽  
Vol 64 ◽  
Author(s):  
N.M. Yasynok ◽  
V.O. Kapustian
Keyword(s):  
Judicial Review ◽  
Case Presentation ◽  
Employment Contract ◽  
Labor Contract ◽  
Procedural Law ◽  
Specific Category ◽  
General Rules ◽  
Legislative Framework ◽  
Civil Cases ◽  
The Right

The article is devoted to the analysis of the features of the procedural judicial review of civil cases on the protection of the rights of an individual injured or injured while working under an employment contract in accordance with civil procedural law. Analyzed the legislative framework, enshrined the right of a citizen to compensation for injury due to injury or damage to health working under an employment contract. It is determined that disputes about the amount of damage and the right to compensation for it are considered by courts in the lawsuit proceedings according to the general rules. It has been established that when considering civil cases for compensation for injury due to injury or damage to health, working under an employment contract, there are certain peculiarities regarding the jurisdiction of cases, involvement of third parties to the case, presentation of evidence and subject of proof, which is due to the specific category of cases.

scholarly journals Russian Compulsory Financial Ombudsman and Civil Procedure

2021 ◽  
Vol 9 (3) ◽  
pp. 111-136
Author(s):  
Kirill Molodyko
Keyword(s):  
Financial Markets ◽  
International Law ◽  
Conflict Of Interest ◽  
Alternative Dispute Resolution ◽  
Civil Procedure ◽  
Procedural Law ◽  
Russian Law ◽  
Deep Integration ◽  
The Right ◽  
Russian Model

In international law, there is no directly prescribed duty of states to create the institution of financial ombudsman. However, in practice this institution is in real terms very popular for effectiveness in various forms. This paper analyzes the models of financial ombudsman in some of the leading European jurisdictions as well as the Russian model and its distinction from all these models. The successful introduction of compulsory financial ombudsmen according to a new Russian law is impossible without deep integration of this institution with the general civil procedure legislation. The Russian financial ombudsman is authorized by law to partially create for himself the rules for resolving disputes, which in essence gives him the right to create rules of civil procedural law. Since pre-trial settlement of certain categories of civil disputes in the financial markets through the financial ombudsman system is mandatory, providing him with unlimited discretion to determine the amount of the fee for considering a case, this can create a conflict of interest in his or her activities. The new Russian law is criticized for numerous inconsistencies with civil procedure legislation, without the elimination of which the practical work of the financial ombudsmen will be ineffective. I offer some legal approaches for the development of this institution. The competence of the further alternative dispute resolution (ADR) Russian institutions depends on the success or failure of the financial ombudsman.

ABOUT JUDICIAL DISCRETION AT CONSIDERING PERIOD DETERMINATION OF THE CASE BY COURT IN CIVIL PROCEEDINGS

2019 ◽  
pp. 89-98
Author(s):  
Aleksandr Dmitriyevich Zolotukhin ◽  
Lyudmila Anatolyevna Volchikhina
Keyword(s):  
Judicial Review ◽  
Judicial Discretion ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Civil Cases ◽  
The Right ◽  
Judicial Protection ◽  
Proper Consideration

In civil proceedings, the legislator defines two conditions that ensure the process of judicial review and resolution of cases: the condition for proper consideration, resolution of civil cases and the condition for timely consideration and civil cases resolution. Proper consideration and resolution of cases involves compliance with the substantive and procedural law requirements. Timely consideration and resolution of cases involves compliance with the court terms of their consideration and resolution. Each of these conditions ensures the right of the persons concerned to judicial protection. Examining these conditions compliance process, we came to the conclusion that the fulfillment by the judge of the condition of compliance with the terms consideration and cases resolution for which he bears disciplinary responsibility, is achieved by his failure to meet the conditions of proper consideration and resolution of cases in terms of compliance with the procedural rules of their consideration and resolution, which entails violations of the right of interested persons to judicial protection. To solve this problem, we propose in civil proceedings to give the court the right to determine the period of consideration of the case at its discretion, based on the criteria of its reasonableness determined by the legislator.

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