scholarly journals The Adversarial Proceedings Principle in the Civil Process

2021 ◽  
Vol 4 (1) ◽  
pp. 88
Author(s):  
Luan Hasneziri
Keyword(s):  
Scientific Work ◽  
European Convention ◽  
Constitutional Court ◽  
Legal Process ◽  
Civil Process ◽  
Advantages And Disadvantages ◽  
Procedural Law ◽  
The Right ◽  
Court Of First Instance ◽  
Court Of Appeal

One of the most important principles of civil process is the adversarial proceedings principle. This principle characterizes the civil process from its beginning in the trial in the court of first instance, in the court of appeal, until its conclusion in the High Court. Moreover, with the new changes that have been made in the civil procedural law, this principle finds application even before the beginning of the trial in the first instance. According to these changes, the party against whom the lawsuit is filed, before the trial against this party begins, has the right to present its claims against the lawsuit, in a document called “Declaration of defence”, leaving enough time for the fulfillment of this right for a period of 30 days. This scientific work will consist of tëo main issues. The first issue will address the meaning and importance of the adversarial proceedings principle in the civil process. In this issue, two different systems will be analyzed in the application of this principle, analyzing the advantages and disadvantages of each of them. The second issue will analyze the elements of the adversarial proceedings principle, looking at these elements in practical terms and the consequences that their non-implementation may bring. In this scientific work, the adversarial proceedings principle will be seen as part of the fair legal process provided by the Constitution of Albania and analyzed in several decisions of the Constitutional Court of Albania. This principle will also be addressed in the framework of international law, focusing on the way in which this principle is expressed in Article 6 of the European Convention on Human Rights and in the decisions of the Strasbourg Court regarding the fair legal process. At the end this scientific work will be given its conclusions, as well as the bibliography where this work is based.

scholarly journals Tendencies of Development of Legislative Regulation Appeal in Civil Process

2020 ◽  
Vol 15 (4) ◽  
pp. 42-48
Author(s):  
E. Yu. Boyko
Keyword(s):  
Judicial System ◽  
Judicial Discretion ◽  
Civil Process ◽  
Legislative Regulation ◽  
The Law ◽  
Court Of First Instance ◽  
Court Of Appeal

The article is devoted to the directions of improvement of appeal proceedings in the civil process, identified in the analysis of legislation and practice of its application, in connection with the reform of the judicial system. The author not only considers the questions of implementation of the court of appeal of its powers, justifies the need for disclosure of criteria allowing the direction of the court of appeal the case for a new trial in the court of first instance, the limits of choice in the exercise of judicial discretion outside of the petition of appeal, the improvement of term of making a petition of appeal, eliminate of the term “appeal determination”, enshrined in the law of procedure of familiarization with the act court of appeal and its further complaints, but also indicates ways of solving them.

4. Overriding Objective and Human Rights

2021 ◽  
pp. 32-47
Author(s):  
Stuart Sime
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Civil Procedure ◽  
Fair Trial ◽  
Civil Litigation ◽  
European Convention ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Right

This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.

4. Overriding Objective and Human Rights

2019 ◽  
pp. 32-47
Author(s):  
Stuart Sime
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Civil Procedure ◽  
Fair Trial ◽  
Civil Litigation ◽  
European Convention ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Right

This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.

4. Overriding Objective and Human Rights

2020 ◽  
pp. 32-47
Author(s):  
Stuart Sime
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Civil Procedure ◽  
Fair Trial ◽  
Civil Litigation ◽  
European Convention ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Right

This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.

4. Overriding Objective and Human Rights

2018 ◽  
Author(s):  
Stuart Sime
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Civil Procedure ◽  
Fair Trial ◽  
Civil Litigation ◽  
European Convention ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Right

This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.

THE EVOLUTION IN SPANISH LAW OF STATE IMMUNITY LEADING TO THE ACCEPTANCE OF THE RESTRICTIVE THEORY

1992 ◽  
Vol 2 (1) ◽  
pp. 45-81
Author(s):  
Alberto Soria Jiménez
Keyword(s):  
International Law ◽  
Due Process ◽  
Executive Branch ◽  
European Convention ◽  
Constitutional Court ◽  
Public International Law ◽  
Spanish Law ◽  
State Immunity ◽  
Due Process Of Law ◽  
The Right

SUMMARY Judgment 107/1992 of the Spanish Constitutional Court has not only cleared up any possible doubts about the alleged unconstitutionality of State immunities and it has discarded any possible contradictions that these immunities might have with art. 24.1 of the Spanish Constitution.. Judgment 107/1992 has also directly linked the right to due process of law with the correct jurisdictional application of the international rules to which art. 21.2 of the LOPJ remits. The Constitutional Court feels that extending immunity from enforcement to foreign State property beyond the provisions of Public International Law violates the right to due process because it limits the right to enforcement of judgments without any legal support. On the other hand, the Constitutional Court points out that when the rules of Public International Law impose absolute immunity from enforcement, the aforementioned right is not violated. That in these cases, this right might be guaranteed by diplomatic protection or, as a last resort, by an assumption by the forum State of its duty to satisfy judicially mandated obligations when the absence of enforcement of these might imply undue sacrifice for an individual contrary to the principle of equality before public burdens. Therefore it seems wise for the Spanish State to establish some procedure which would prevent the recognition of immunity would also be highly recommendable for Spain to enact a statute containing a list of exceptions to State immunity as soon as possible. It is the executive branch, therefore, that should resolve this situation by proposing a bill on this issue and perhaps, as a complementary measure, by ratifying the European Convention on State Immunity.

scholarly journals Implementation of the Right of Appeal of Judicial Decisions in Civil Cases

2019 ◽  
pp. 60-71
Author(s):  
Oksana Trach
Keyword(s):  
Court Decision ◽  
Court Decisions ◽  
Significant Group ◽  
Large Group ◽  
Judicial Decisions ◽  
Procedural Law ◽  
Civil Cases ◽  
And Performance ◽  
The Right ◽  
Court Of First Instance

The mechanisms for reviewing judgments in civil cases should include additional guarantees to ensure the implementation of the right of appeal, conditioned by the specificity of the court decision, which will serve as the subject of verification. There is a need to establish implementation peculiarities of the right of appeal, as well as the procedures for revising court decisions made in lawsuits against a large group of persons, an indefinite number of persons that are not defined by the current civil procedural law. It has been substantiated the necessity to fix on a legislative level the two-step procedure for implementation of the right of appeal of judicial decisions on such claims. The exercise of the right to appeal depends on the knowledge of the decision on the case by the court of the first instance, as well as the direct involvement of the participant in the process. Particular significance has got the commission of these actions in relation to potential participants of the case. It has been established that the implementation of the right of appeal against the decision on these types of claims will facilitate the creation of options called «Claims for a large group of people», «Claims for an uncertain circle of persons» on the official web site of the judiciary. It was determined that informing the participants of the case, their representatives about the opening of appeal proceedings is important for the possibility of exercising the right to review court decisions in the court of appellate instance, and the use in this regard of procedural opportunities provided by law. It was established that excluding the representative from the participants of the case, the legislator did not regulate properly all procedural aspects of his participation in the process, the exercise of his procedural rights, and performance of duties. There is no clear timetable for the court of appellate instance to determine the issue whether the court decision of the court of first instance concerns the rights, freedoms, interests and / or duties of a person if it was not examined in the trial by the court of first instance and who filed a complaint, as well as the procedural form of its examination. It is necessary to consolidate the possibility to close the appeal proceedings in a case and the possibility to close proceedings against a specific appeal. Preparation of a case for an appeal on a complaint to a court decision on a suit against a significant group of persons should be marked according to its specifics. For this type of claim, it is necessary to change its procedural form in order to hold the preparatory meeting and foresee the necessity of preparing a panel of three judges. The preparatory meeting will expand the procedural capabilities of the participants and their representatives.

scholarly journals Impeachment in The State System

2018 ◽  
Vol 1 (1) ◽  
pp. 46
Author(s):  
Nurwita Ismail
Keyword(s):  
House Of Representatives ◽  
Vice President ◽  
Constitutional Court ◽  
Legal Process ◽  
Administration System ◽  
Procedural Law ◽  
Head Of State ◽  
State Administration ◽  
Broad Interpretation ◽  
Constitutional System

Impeachment In Constitutional System. This paper aims: To know and analyze how the impeachment arrangements in the Indonesian state administration system; To know and analyze how the legal process in impeachment mechanism before amendment and after an amendment of 1945 Constitution; by using Normative Method The study conducted in this research is the literature. Impeachment of the President and Vice President of his / her position is not new in the Indonesian state administration system. Both before the amendment and after the amendment of the 1945 Constitution. The 1945 Constitution of the amendment result has specified the provisions concerning the Impeachment of the President and Vice President as head of state. However, the mechanism of the impeachment process is determined in a constitutionally eliminative manner even though these reasons have a very broad interpretation and may be subjective, especially in a political institution of the DPR, by which there are several things to be considered in the impeachment process in Indonesia, such as the impeachment process in the House of Representatives Regional and process of Impeachment in the Constitutional Court. There is a need for the provision of legal products or the making of procedural law which regulates the impeachment of the President and Vice President.

scholarly journals ARRESTS WITHOUT WARRANT: THE SCA BRINGS CLARITY Minister of Safety and Security v Sekhoto 2011 1 SACR 315 (SCA); [2011] 2 All SA 157 (SCA)

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
Pieter du Toit
Keyword(s):  
Criminal Procedure ◽  
Prima Facie ◽  
Constitutional Court ◽  
Charles V ◽  
Personal Liberty ◽  
High Courts ◽  
The Supreme Court ◽  
The Right ◽  
Peace Officer ◽  
Court Of Appeal

Section 40(1) of the Criminal Procedure Act 51 of 1977 provides for a number of different instances where a peace officer may effect an arrest without an arrest warrant. A perusal of the reported case law pertaining to the lawfulness of arrests without warrant reveals that section 40(1)(b) of the Act, in particular, has received much attention from the courts. In terms of this subsection a peace officer may arrest without warrant any person whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody. It is settled law that any deprivation of freedom is regarded as prima facie unlawful. The arrestor therefore bears the onus of proving that the arrest was justified. The following jurisdictional facts must be present for a peace officer to rely on the defence created by section 40(1)(b) of the Criminal Procedure Act in cases, where it is alleged that the arrest was unlawful: (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect committed an offence in Schedule 1; and (iv) the suspicion must rest on reasonable grounds. For a discussion of the differenttypes of jurisdictional facts provided for in section 40(1) see Watney. In Louw v Minister of Safety and Security Bertelsman J held, with reference to the right to personal liberty, that arresting officers are under a constitutional obligation to consider whether there are no less invasive options to bring the suspect to court than the drastic measure of arrest, thereby effectively requiring a further jurisdictional fact for successful reliance by a peace officer on the provisions of section 40(1). If a reasonable apprehension exists that the suspect will abscond, or fail to appear in court if a warrant is first obtained for his or her arrest, or awritten notice or summons to appear in court is obtained, then the arrest would be constitutionally untenable and unlawful. Bertelsman J relied on academic opinion and an obiter remark made by De Vos J in Ralekwa v Minister of Safety and Security and held that the approach in Tsose v Minister of Justice that there is no rule that requires the milder method of bringing a person to court if it would be as effective as arrest, could no longer be acceptable in a constitutional dispensation. This approach was followed in a number of reported High Court judgments but not approved of in Charles v Minister of Safety and Security. In Minister of Safety and Security v Van Niekerk the Constitutional Court found it not to be in the interests of justice on the facts of the case before it to pronounce on the constitutional tenability of the approach in Tsose, but nevertheless held that the constitutionality of an arrest will be dependent upon its factual circumstances. Watney succinctly discusses some of the abovementioned developments. However, on 19 November 2010 the Supreme Court of Appeal in Minister of Safety and Security v Sekhoto (2011 1 SACR 315 (SCA), also reported in [2011] 2 All SA 157 (SCA)) held that the approach of the different high courts requiring a further jurisdictional fact for the lawfulness of an arrest did nothave proper regard for the principles in terms of which statutes must be interpreted in the light of the Bill of Rights and that they have conflated the issue of jurisdictional facts with the issue of discretion. This lucid judgment brings clarity to the issue of the lawfulness of arrests without warrant. 

4. Overriding objective and human rights

2016 ◽  
Author(s):  
Stuart Sime
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Civil Procedure ◽  
Fair Trial ◽  
Civil Litigation ◽  
European Convention ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Right

This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.

Sign in / Sign up

Export Citation Format

Share Document