Response from Varani et al. to “Comment on ‘the IS6 family, a clinically important group of insertion sequences including IS26’ by Ruth M. Hall”

The IS6 family of insertion sequences is a large but coherent group which was originally named to avoid confusion between a number of identical or nearly identical IS that were identified at about the same time and given different names (IS15D, IS26, IS46, IS140, IS160, IS176). The underlying common mechanistic feature of all IS6 family members which have been investigated is that they appear to transpose by replicative transposition and form pseudo compound transposons with the flanking IS in direct repeat and in which associated genes are simply transferred to the target replicon and lost from the donor.In the accompanying letter Hall raises a number of very serious and wide-ranging criticisms of our recent review article concerning the IS6 family of insertion sequences. She clearly feels that we have undervalued her work and that we question or ignore certain of her in vivo results. This impression is almost certainly the result of the standard of proof we generally apply to mechanistic aspects of transposition where we think it important to identify transposition intermediates including the types of synaptic, strand cleavage and strand transfer complexes involved.

THE STANDARD OF PROOF UNDER LITHUANIAN AND RUSSIAN CIVIL PROCEDURE LAW: A COMPARATIVE ANALYSIS

The article is dedicated to the memory of Professor M.K. Treushnikov. The professor was the head of the candidate of law thesis of the author of the article, therefore, the beginning of the article is devoted to the author’s memories of M.K. Treushnikov. Since the main field of scientific research of M.K. Treushnikov is related to evidence and proof in civil proceedings, the main part of the article is devoted to the issues of the standard of proof. On the basis of the comparative method the author analyses how the approach to the standard of proof in Lithuania and Russia changed after 1990, both in legal doctrine and case law. It is concluded that there are many similarities in the standard of proof between Lithuanian and Russian civil procedure law, but there are also differences, which are due both to different legal doctrine approaches to this issue and to different case law. In particular, the author points out that there must be common standards for such cognitive, logical activity, which exist regardless of the legal system operating in one state or another, for there is only one logic.

ON COGNITION AND PROVING IN CASES OF NON-CONTENTIOUS JURISDICTION

The article analyzes the general theory of judicial knowledge and proof, its capabilities and implementation in the consideration and resolution of cases of special proceedings in civil, arbitration, administrative proceedings. The approaches to cognitive and evidentiary activities in controversial (claim) and indisputable (special) proceedings are compared. The author considers the original system of collecting, presenting and evaluating evidences, created in the field of voluntary jurisdiction in the countries of civil law, its advantages and disadvantages in comparison with the national tradition of the unity of legal regulation of judicial knowledge and proof. An overview of the current state of the doctrine and practice of proving in special proceedings is given, an opinion is expressed about the need to refine the general provisions on proving in special proceedings. The prospects for the normative establishment of the limits of judicial research in terms of the volume of facts and the depth of their knowledge are outlined. It is stated that in cases of special proceedings, the “standard of proof” has always been higher in comparison with cases of claim proceedings. A number of new rules for establishing the circumstances of cases and proving are proposed: the priority of direct personal perception of the judge in the cognition of facts that are important for the case before proving them; freedom of means of evidence – the ability to use information about the circumstances of the case without restrictions on its sources (means of proof); freedom in choosing the rules for extracting information from a source (means of proof); different regulation of the burden of confirmation and the burden of proof.

Onus and Quantum of Proof for Breaching the Standard of Procedure during the Movement Control Order

The objective of this research paper is to highlight on the issues relating to the onus and quantum of proof for breaching the standard of procedure (SOP) during the movement control order (MCO) due to Pandemic Covid 19 in Malaysia. In tackling the issues, the research methodology applied by the author is by analysing and evaluating some decided cases, studying the substantive laws, regulations, and procedure in enforcing movement control order. The contemporary legal issues in this article are on whom the onus (burden) of proof lies and what is the quantum (standard) of proof required for the offence of breaching social distancing during the movement control order, be it conditional, restricted or recovery. The standard of procedure always changing based on the types of movement control order made by the Federal Government. In the New Straits Times dated 4 April 2021, it was reported that 17 publics were compounded for not practicing social distancing. Many questions raise as what is the real meaning of social distancing? In which type of offence, the social distancing offence lies on? What are the elements that will constitute the offence? As to the remedies, the author has submitted the nature of the offence for breaching the SOP during MCO. The expectation result of this paper is to give a clear picture as to the matter of standard of proof and burden of proof that to be considered by the trial court in deciding the issue of breaching SOP. The significance of this paper is to point out some contemporary identical legal issues relating to SOP during MCO. The issues will be highlighted in this article.

In Search of Coherence: Burden and Standard of Proof in International Administrative Law

The authors explore the rules governing the burden and standard of proof in international administrative law, both from a general perspective and in specific contexts such as termination for misconduct, harassment, retaliation, performance and promotions, and service-incurred illnesses. They compare the rules applied by various international administrative tribunals with those applied by courts in domestic jurisdictions. They conclude that some international organizations should review their rules in the interest of coherence, and revert back to a contextualized application of the usual civil standard of proof instead of applying different standards depending on the circumstances.

Deepfakes in International Arbitration: How Should Tribunals Treat Video Evidence and Allegations of Technological Tampering?

Deepfakes can be described as videos of people doing and saying things that they have not done or said. Their potential use in international arbitration leads to two competing threats. Tribunals may be conscious of the difficulties in proving that a deepfake is, in fact, fake. If the ‘clear and convincing evidence’ standard of proof is applied, it may be very difficult, if not impossible, to prove that a sophisticated deepfake is fake. However, the burgeoning awareness of deepfakes may render tribunals less inclined to believe what they see on video even in circumstances in which the video before it is real. This may encourage parties to seek to deny legitimate video evidence as a deepfake. The ‘balance of probabilities’ standard, while not perfect, would appear to address this concern. In order to properly assess deepfakes, tribunals should apply this standard while assessing both technical and circumstantial evidence holistically.

QUALITATIVE COMPONENT IN THE WORK OF PROCEDURAL ENTITIES AS A FACTOR OF EFFICIENCY OF CRIMINAL PROCEEDINGS IN BOSNIA AND HERZEGOVINA

Every human activity, regardless of its nature, type and other specifics, strives to achieve the highest possible efficiency. In that sense, it is necessary to observe the tendency of the efficiency of criminal proceedings in terms of clarifying and resolving certain criminal matters, as well as making a court decision. The efficiency of the criminal procedure is directly manifested and articulated through the criminal procedure activities that are undertaken by the criminal procedure subjects during the realization of the criminal procedure task. The intention of the authors is to recognize, identify and emphasize the key or most important aspects of the qualitative component in the work of the main and secondary criminal procedure subjects on which the efficiency of the criminal procedure directly depends. Also, attention and interest are focused on the mutual relationship, interaction and opposition of two tendencies, namely tendencies of efficiency of criminal procedure and tendencies of protection of basic human rights and freedoms with special reference to meeting the standard of proof in different phases of undertaking criminal proceedings.

The standard of proof “beyond a reasonable doubt” in criminal proceedings of Ukraine in the context of the ECHR case-law

The purpose of the paper is to determine a content of the standard of proof “beyond a reasonable doubt” (SP “BRD”) in the ECHRcase law and Ukrainian criminal proceedings by defining the criteria that characterize it. The subject is the SP “BRD”, doctrine of Ukraine and case-law, including its criticism by the individual judges of the ECHR and Ukrainian scholars. The research methodology includes the methods of analysis, the method of synthesis, the methods of deduction and induction, comparative-legal method, systematic and formal-legal methods. The results of the study. The acceptability of the SP “BRD” in the Ukrainian criminal proceedings is substantiated, in particular, its compliance with the purpose of criminal procedural proof. Practical implication. The criteria which characterize the SP “BRD” in the ECHR’s and SC’s case law are highlighted.

Repeated proceedings against suspected illicit wealth – justifiable protection of public interest or violation of human rights?

The internationally acknowledged need for effective legal measures against illicit enrichment that is perceived as the key policy tool against organised crime and corruption triggered rapid developments in the variety of those legal measures. Lithuania may serve as a sole-standing example of a jurisdiction that enacted a great variety of legal strategies against illicit enrichment – criminal liability both for money laundering and illicit enrichment and also extended powers of confiscation, civil confiscation and tax fines for unexplained income. This diversity of measures leads to the issue of competition arising between them and also carries the risk that measures may be used repeatedly and arbitrarily against persons and their property.The paper focuses on the issue of the legitimacy of repeated investigation and assessment of suspicious assets in civil confiscation proceedings and extended powers of confiscation.The analysis is divided into two parts where fundamentally different legal situations are discussed. In the first situation, repeated assessment of the origin of the assets takes place in proceedings of similar legal nature (proceedings aiming to restore legal order). The second situation appears where reassessment takes place in proceedings of a different nature – in the restorative proceedings after failure to prove the illicit origin of the assets in the punitive proceedings.While the first situation rather clearly falls within the scope of the principle of legal certainty and the rule res judicata that prohibit repeated proceedings for the same issue in the same circumstances against the same person, the second situation is more open to debate. Punitive proceedings use the standard of proof beyond reasonable doubt and the presumption of innocence is in play. These safeguards are designed to protect defendants from unfounded conviction, but they may be considered excessive for other legal issues such as the recovery of damages or the proceeds of illicit activities. In addition, in the context of civil confiscation, public interest in effective protection from organised crime and corruption comes into play. Therefore, there are strong arguments for giving priority to public safety over the principle of legal certainty that would protect defendants from repeated assessment of their assets in other proceedings with a lower standard of proof or even the reversed presumption of the illegality of unexplained wealth.Finally, the paper addresses the question of whether extended powers of confiscation qualify for restorative or punitive proceedings. The answer to this question is the key argument of whether civil confiscation proceedings can legitimately follow criminal proceedings where the court failed to confiscate the assets on the grounds of extended powers of confiscation. The paper argues that extended powers of confiscation are of a restorative nature. Therefore, when assets have already been investigated in proceedings of civil confiscation and their origin has been assessed as lawful in the light of extended powers of confiscation, re-consideration of their origin should be deemed as infringing the principle of legal certainty, unless the decision in the criminal proceedings was barred by lack of formal grounds.

The Problem of the Prior in Criminal Trials

This chapter addresses a classical challenge to the Bayesian approach. It examines different ways of setting the prior probability of the prosecutor’s hypothesis in a criminal trial, in particular, the classical Bayesian solution of setting the prior at 1/N, where N is the number of possible perpetrators in the geographical area where the crime was committed. The authors argue that this solution is at odds with the presumption of innocence, and that other proposals are also problematic, either theoretically or in practice. According to the authors, a presumed prior determined ex lege is less problematic than other solutions, and the problem of the prior can be avoided by a reconceptualization of the standard of proof.