International Science Index

International Journal of Law and Political Sciences

570
78790
Penalization of Transnational Crimes in the Domestic Legal Order: The Case of Poland
Abstract:
The degree of international interdependence has grown significantly. Poland is a party to nearly 1000 binding multilateral treaties, including international legal instruments devoted to criminal matters and obliging the state to penalize certain crimes. The paper presents results of a theoretical research conducted as a part of doctoral research. The main hypothesis assumed that there was a separate category of crimes to penalization of which Poland was obliged under international legal instruments; that a catalogue of such crimes and a catalogue of international legal instruments providing for Poland’s international obligations had never been compiled in the domestic doctrine, thus there was no mechanism for monitoring implementation of such obligations. In the course of the research, a definition of transnational crimes was discussed and confronted with notions of international crimes, treaty crimes, as well as cross-border crimes. A list of transnational crimes penalized in the Polish Penal Code as well as in non-code criminal law regulations was compiled; international legal instruments, obliging Poland to criminalize and penalize specific conduct, were enumerated and catalogued. It enabled the determination whether Poland’s international obligations were implemented in domestic legislation, as well as the formulation of de lege lata and de lege ferenda postulates. Implemented research methods included inter alia a dogmatic and legal method, an analytical method and desk research.
569
73417
Health, social Integration and Social Justice: The Lived Experiences of Young Middle-Eastern Refugees in Australia
Abstract:
Based on the therapeutic landscape theory, this paper examines how young Middle-Eastern refugee individuals perceive their health and well-being and address the barriers they face in their new homeland and the means that helped them to form social connections in their new social environment. Qualitative methods (in-depth interviews and mapping activities) were conducted with ten young people from refugee backgrounds. Thematic analysis method was used to analyse the data. Findings suggested that the young refugees face various structural and cultural inequalities that significantly influenced their health and well-being. Mental health well-being was their greatest health concern. All reported the significant influence the English language had on their ability to adapt and form connections with their social environment. The presence of positive social support in their new social environment had a great impact on the health and well-being of the participants. The findings of this study have implications for social justice among refugees. They also contributed to the role of therapeutic landscapes and social support in helping young refugees to feel that they belonged to the society, and hence assisted them to adapt to their new living situation.
568
73728
The Lived Experience of Thai Mothers Living with HIV in Southern Thailand
Abstract:
Mothers living with HIV tend to experience stigma and discrimination which has an impact on their psychological and social well-being and their human rights. This paper explores the lived experience of Thai mothers with HIV in their family. In-depth interviewing and drawing methods were employed to gain a deep understanding on the experience of 30 HIV-positive mothers in the southern community of Thailand. The data was analyzed using thematic analysis method. We found that the majority of HIV-positive mothers learned about their HIV status through blood test services during their antenatal care, but some decided to visit a doctor when their partner became chronically frail and showed some signs indicating HIV/AIDS. Learning about their HIV gave them a great shock, and they could not believe that they were infected with HIV/AIDS. They feared that their illness would be disclosed and hence attempted to keep their HIV secret. This was due to the fact that people in their community would blame and labeled them as a ‘disgusting person’. Besides, they would be separated from social contacts and networks, their individual rights would be disregarded, and their potential roles would be restricted. Although participants suggested that people had more positive view on HIV-infected person nowadays, all still wanted to keep it secret because of fear of stigma and discrimination. Thai health care has provided various kinds of support programs, but many mothers chose not to participate due to the fear of disclosure. However, the women attempted to seek some strategies to live a life which would be more acceptable by the community. We conclude that HIV is still seen as a stigmatised disease in rural community of southern Thailand. Local health care providers and relevant sectors in the locality should create suitable programs to enhance self-worth among those HIV-positive mothers because this could increase a quality of life of this vulnerable mothers. Providing sufficient and appropriate supports for better emotional wellbeing is an essential role of health professionals so that the feeling of isolation among these women could be eliminated and positive social justice can be achieved.
567
77607
Collective Redress in Consumer Protection in South East Europe: Cross-National Comparisons, Issues of Commonality and Difference
Abstract:
In recent decade, there have been significant developments in the European Union in the field of collective consumer redress. South East European countries (SEE) covered by this paper in line with their EU accession priorities and duties under Stabilisation and Association Agreements have to harmonize their national laws with the relevant EU acquis for consumer protection (Chapter 28: Health and Consumer). In these countries, only minimal compliance is achieved. SEE countries have introduced rudimentary collective redress mechanisms, with modest enforcement of collective redress and case law. The paper is based on comprehensive interdisciplinary research conducted for SEE countries on common principles for injunctive and compensatory collective redress mechanisms emphasizing cross-national comparisons, underlining issues of commonality and difference aiming to develop recommendations for an adequate enforcement of collective redress. SEE countries are recognized by the sectoral approach for regulating collective redress they introduced instead following the experience of majority of EU member states with having adopted horizontal regulatory approach. In most of SEE countries, the laws do not recognize compensatory, but only injunctive collective redress in consumer protection. All responsible stakeholders for implementation of collective redress in SEE countries lack information and awareness on collective redress mechanisms and the way the function in practice. Therefore specific actions are needed in these countries to make the whole system of collective redress for consumer protection operational and efficient. Taking into consideration various designated stakeholders in collective redress in each SEE country, there is a need of their mutual coordination and cooperation in order to develop consumer protection system and policies. By putting in practice the national collective redress mechanisms, effective access to justice to all consumers, the principle of rule of law will be secured, and appropriate procedural guarantees to avoid abusive litigation will be ensured.
566
76169
‘Honour’ Crime and the Need for Differentiation from Domestic Violence in UK Law
Authors:
Abstract:
‘Honour’ crime has commonly been perceived in the UK as being a ‘domestic violence’ related issue due to incidents perceived to take place within a domestic context, and commonly by familial perpetrators. The lack of differentiation between domestic violence and ‘honour’ related incidents has several negative implications. Firstly, the prevalence and extent of ‘honour’ related crime within the UK cannot be accurately quantified due to ‘honour’ incidents being classed statistically as domestic violence incidents. Secondly, lack of differentiation means that the negative stereotypical attitudes ascribed to domestic violence which has resulted in lower criminal conviction rates that are also impacting the conviction of perpetrators of ‘honour’ crime. Thirdly, ‘honour’ related crime is innately distinct from domestic violence due to the perpetrator’s resolute intent of cleansing perceived ‘shame’ in any way possible, often with the involvement and collusion of multiple perpetrators from within the family and/or community. Domestic violence is typically restricted to the ‘home’, but ‘honour’ crime can operate between national and international boundaries. This paper critically examines the current academic literature and concludes that the few similarities between domestic violence and ‘honour’ related crime are not sufficient to warrant identical treatment under UK criminal law. ‘Honour’ related crime is a distinct and stand-alone offence which should be recognised as such. The appropriate identification and treatment of ‘honour’ crime are crucial, particularly in light of the UK’s first ‘white’ honour killing which saw a young English woman murdered after being deemed to have brought ‘shame’ on her ex-boyfriend’s family. This incident highlights the possibility of ‘honour’ crime extending beyond its perceived ‘ethnic minority’ roots and becoming more of a ‘mainstream’ issue for the multi-cultural and multi-racial UK.
565
77734
Gandhi and the Judicial Discourse on Moral Rights
Abstract:
The inclusion of Rights of Author (Moral and Personal Rights) resonate the century long battle of rights of authors, composers, performers across developed and developing countries (whether following civil law or common law systems). But, the juxtaposition of author’s special, moral, personal rights within the legislative framework of Copyright statutes (Indian Copyright Act, 1957, applicable statutes) underscores the foundational role of the right which goes to the root of the constitutional structure of India and philosophies of political and literary leaders like Mahatma Gandhi and Gurudeb Rabindranath Tagore. In the pre-independence era when the concept of moral rights was unknown to both England and India’s statutory laws, the strategic deployment method of Gandhi, his ideologies and thoughts scripted the concept of moral rights for authors/composers. The preservation of Rabindric Style (Characteristic Tagore’s vocal renditions) by Vishwabharati University (successor in interest for Tagore’s literary and musical compositions) prior to the Copyright Amendment of 1999 recognizing Author’s Special Rights in line with 6bis of Berne Convention invigorates the fact that the right existed intrinsically prior to the legislative amendment. The paper would in addition to the academic probe carry out an empirical enquiry of the institution’s (Navjivan Trust and Vishwa Bharati University’s) reasoning on the same. The judicial discourse and transforming constitutional ideals between 1950s till date in India alludes Moral Rights to be an essential legal right which have been reasoned by Indian Courts based on the underlying philosophies in culture, customs, religion wherein composers and literary figures have played key roles in enlightening and encouraging the members of society through their literary, musical and artistic work during pre-independence renaissance of India. The discourses have been influenced by the philosophies reflected in the preamble of the Indian constitution, ‘socialist, secular, democratic republic’ and laws of other civil law countries. Lastly, the paper would analyze the adjudication process and witness involvement in ascertaining violations of moral rights and further summarize the indigenous and country specific economic thoughts that often chisel decisions on moral rights of authors, composers, performers which sometimes intersect with author’s right of privacy and against defamation. The exclusivity contracts or other arrangements between authors, composers and publishing companies not only have an erosive effect on each thread of moral rights but irreparably dents factors that promote creativity. The paper would also be review these arrangements in view of the principles of unjust enrichment, unfair trade practices, anti-competitive behavior and breach of Section 27 (Restrain of Trade) of Indian Contract Act, 1857. The paper will thus lay down the three pillars on which author’s rights in India should namely rest, (a) political and judicial discourse evolving principles supporting moral rights of authors; (b) amendment and insertion of Section 57 of the Copyright Act, 1957; (c) overall constitutional framework supporting author’s rights.
564
75250
Employee Inventor Compensation: A New Quest for Comparative Law
Abstract:
The evolution of technology, the global scale of economy, and the new short-term employment contracts make a very peculiar set of disposition of raising interest for the legal interpreter: the employee inventor compensation. Around the globe, this issue is differently regulated according to the legal systems; therefore, it is extremely fragmented. Of course, employers with transnational businesses should face this issue from a comparative perspective. Different legal regimes are available worldwide awarding, as a consequence, diverse compensation to the inventor and according to their own methodology. Given these premises, the recourse to comparative law methodology (legal formants, diachronic and synchronic methodology, common core approach) is the best equipped to face all these different national approaches in order to achieve a tidy systematic. This research, so, elaborates a map of the specific criteria to grant the compensation for the inventor and to show the criteria to calculate them. This finding has been the first step to find out a common core of the discipline given by the common features present in the different legal systems.
563
75258
A Comparative Legal Enquiry on the Concept of Invention
Abstract:
The concept of invention is rarely scrutinized by legal scholars since it is a slippery one, full of nuances and difficult to be defined. When does an idea become relevant for the patent law? When is it simply possible to talk of what an invention is? It is the first question to be answered to obtain a patent, but it is sometimes neglected by treaties or reduced to very simple and automatically re-cited definitions. Maybe, also because it is more a transnational and cultural concept than a mere institution of law. Tautology is used to avoid the challenge (in the United States patent regulation, the inventor is the one who contributed to have a patentable invention); in other case, a clear definition is surprisingly not even provided (see, e.g., the European Patent Convention). In Europe, the issue is still more complicated because there are several different solutions elaborate inorganically be national systems of courts varying one to the other only with the aim of solving different IP cases. Also a neighbor domain, like copyright law, is not assisting us in the research, since an author in this field is entitles to be the 'inventor' or the 'author' and to protect as far as he produces something new. Novelty is not enough in patent law. A simple distinction between mere improvement that can be achieved by a man skilled in the art (a sort of reasonable man, in other sectors) or a change that is not obvious rising to the dignity of protection seems not going too far. It is not still defining this concept; it is rigid and not fruitful. So, setting aside for the moment the issue related to the definition of the invention/inventor, our proposal is to scrutinize the possible self-sufficiency of a system in which the inventor or the improver should be awarded of royalties or similar compensation according to the economic improvement he was able to bring. The law, in this case, is in the penumbras of misleading concepts, divided between facts that are obscure and technical, and not involving necessarily legal issues. The aim of this paper is to find out a single definition (or, at least, the minimum elements common in the different legal systems) of what is (legally) an invention and what can be the hints to practically identify an authentic invention. In conclusion, it will propose an alternative system in which the invention is not considered anymore and the only thing that matters are the revenues generated by technological improvement, caused by the worker's activity.
562
74683
Investigating Suicide Cases in Attica, Greece- Insight from an Autopsy-Based Study
Abstract:
Introduction: The aim of this study is the investigation of characteristics of suicide, as documented in autopsies during a five-year interval in the greater area of Attica, including the city of Athens. This could reveal possible protective or aggravating factors for suicide risk during a period strongly associated with the Greek debt crisis. Materials and Methods: Data was obtained following registration of suicide cases among autopsies performed in the Forensic Medicine and Toxicology Department, School of Medicine, National and Kapodistrian University of Athens, Greece, during the time interval from January 2011 to December 2015. Anonymity and medical secret were respected. A series of demographic and social factors in addition to special characteristics of suicide were entered into a specially established pre-coded database. These factors include social data as well as psychiatric background and certain autopsy characteristics. Data analysis was performed using descriptive statistics and Fisher’s exact test. The software used was STATA/SE 13 (Stata Corp., College Station, TX, USA). Results: A total of 162 cases were studied, 128 men and 34 women. Age ranged from 14 to 97 years old with an average of 53 years, presenting two peaks around 40 and 60 years. A 56% of cases were single/ divorced/ widowed. 25% of cases occurred during the weekend, and 66% of cases occurred in the house. A predominance of hanging as the leading method of suicide (41.4%) followed by jumping from a height (22.8%) and firearms (19.1%) was noted. Statistical analysis showed an association was found between suicide method and gender (P < 0.001, Fisher’s exact test); specifically, no woman used a firearm while only one man used medication overdose (against four women). Discussion: Greece has historically been one of the countries with the lowest suicide rates in Europe. Given a possible change in suicide trends during the financial crisis, further research seems necessary in order to establish risk factors. According to our study, suicide is more frequent in men who are not married, inside their house. Gender seems to be a factor affecting the method of suicide. These results seem in accordance with the international literature. Stronger than expected predominance in male suicide can be associated with failure to live up to social and family expectations for financial reasons.
561
78411
Pathomorphological Markers of the Explosive Wave Action on Human Brain
Abstract:
Introduction: The increased attention of researchers to an explosive trauma around the world is associated with a constant renewal of military weapons and a significant increase in terrorist activities using explosive devices. Explosive wave is a well known damaging factor of explosion. The most sensitive to the action of explosive wave in the human body are the head brain, lungs, intestines, urine bladder. The severity of damage to these organs depends on the distance from the explosion epicenter to the object, the power of the explosion, presence of barriers, parameters of the body position, and the presence of protective clothing. One of the places where a shock wave acts, in human tissues and organs, is the vascular endothelial barrier, which suffers the greatest damage in the head brain and lungs. The objective of the study was to determine the pathomorphological changes of the head brain followed the action of explosive wave. Materials and methods of research: To achieve the purpose of the study, there have been studied 6 male corpses delivered to the morgue of Municipal Institution "Dnipropetrovsk regional forensic bureau" during 2014-2016 years. The cause of death of those killed was a military explosive injury. After a visual external assessment of the head brain, for histological study there was conducted the 1 x 1 x 1 cm/piece sampling from different parts of the head brain, i.e. the frontal, parietal, temporal, occipital sites, and also from the cerebellum, pons, medulla oblongata, thalamus, walls of the lateral ventricles, the bottom of the 4th ventricle. Pieces of the head brain were immersed in 10% formalin solution for 24 hours. After fixing, the paraffin blocks were made from the material using the standard method. Then, using a microtome, there were made sections of 4-6 micron thickness from paraffin blocks which then were stained with hematoxylin and eosin. Microscopic analysis was performed using a light microscope with x4, x10, x40 lenses. Results of the study: According to the results of our study, injuries of the head brain were divided into macroscopic and microscopic. Macroscopic injuries were marked according to the results of visual assessment of haemorrhages under the membranes and into the substance, their nature, and localisation, areas of softening. In the microscopic study, our attention was drawn to both vascular changes and those of neurons and glial cells. Microscopic qualitative analysis of histological sections of different parts of the head brain revealed a number of structural changes both at the cellular and tissue levels. Typical changes in most of the studied areas of the head brain included damages of the vascular system. The most characteristic microscopic sign was the separation of vascular walls from neuroglia with the formation of perivascular space. Along with this sign, wall fragmentation of these vessels, haemolysis of erythrocytes, formation of haemorrhages in the newly formed perivascular spaces were found. In addition to damages of the cerebrovascular system, destruction of the neurons, presence of oedema of the brain tissue were observed in the histological sections of the brain. On some sections, the head brain had a heterogeneous step-like or wave-like nature. Conclusions: The pathomorphological microscopic changes in the brain, identified in the study on the died of explosive traumas, can be used for diagnostic purposes in conjunction with other characteristic signs of explosive trauma in forensic and pathological studies. The complex of microscopic signs in the head brain, i.e. separation of blood vessel walls from neuroglia with the perivascular space formation, fragmentation of walls of these blood vessels, erythrocyte haemolysis, formation of haemorrhages in the newly formed perivascular spaces is the direct indication of explosive wave action.
560
77545
Public Participation in Political Transformation: From Coup D'etat in 2014 to the Following Events Leading up to the Proposed Election in 2018 in Thailand
Abstract:
After seizing power in May 2014, the military, backed by anti-government protestors, selected and established their own system to govern the country. They set up the National Council for Peace and Order (NCPO) which committed itself to establishing a People’s Assembly. This aimed to reach a compromise between the conflicting opinions of former pro-government and anti-government protesters. It plans to achieve this through the process of political reform before returning sovereign power to the people via an election in 2018. If a governmental authority is not representative of the people (e.g. a military government), it does not count as a legitimate government. During the last two years of military government, from May 2014 to May 2017, their rule of Thailand has been widely controversial, specifically regarding their commitment to democracy, human rights violations and their manipulation of the rule of law. Democratic legitimacy relies not only on established mechanisms for public participation (like referendums or elections) but also public participation based on accessible and educational reform (often via NGOs) to ensure the free and fair will of the people can be expressed. Through their actions over the last three years, the Thai military government has damaged both of these components, the consequences of which will impact future public participation in politics. The authors make some observations about the specific actions the military government has taken to erode the democratic legitimacy of future public participation: the increasing dominance of military courts over civil courts; civil society’s limited involvement in political activities; the drafting of a new constitution and their attempt to master support through referenda; the structure of the legislative powers (Senate and the members of parliament); and the control of people’s basic freedoms of expression, movement and assembly in political activities. One clear consequence of the military government’s specific actions over the last three years is the increased uncertainty amongst Thai people that their fundamental freedoms and political rights will be respected in the future. This will directly affect their participation in future democratic processes. The military government’s actions will also have influenced potential international engagement (e.g. their response to the UN representatives) in Thai civil society to help educate disadvantaged people about their rights, and about the impact of their participation in the political arena. These actions challenge the democratic idea that there should be a checking and balancing of power between people and government. These examples provide evidence that a democratic transition is crucial during any process of political transformation.
559
76202
An Analytical Study on the Politics of Defection in India
Abstract:
In a parliamentary system, party discipline is the impulse; when it falls short, the government usually falls. Conceivably, the platform of Indian politics suffers from innumerous practical disorders. The politics of defection is one such specie entailing gross miscarriage of fair conduct that turns politics into a game of thrones (powers). Generically, 'defection' connotes to mean transfer of loyalty. Likely, in political terms, it means the transfer of allegiance by a legislator from one political party to another. Traditionally, the idea of floor-crossing is synonymous with the term. This practice of political nomaditude can trace its seed in the womb of British House of Commons. Therein, if a legislator was found to cross the floor, the party considered him disloyal. In other words, the legislator lost his allegiance to his former party by joining another party.And the very phenomenon, in practice has a two-way traffic i.e. ruling party to the opposition party or vice versa. The democracies like USA, Australia, and Canada were also aware of this fashion of swapping loyalties. There have been several instances of great politicians changing party allegiance like for example Winston Churchill, Ramsay McDonald, William Gladstone, etc. Nevertheless, it is interesting to cite that irrespective of such practice of changing party allegiance, none of the democracies in the west, ever desired or felt the need to legislatively ban defections. But, exceptionally India, one among four South Asian countries can be traced to have passed anti-defection laws. The politics of defection had been a unique popular phenomenon on the floor of Indian Parliamentary system gradually gulping the democratic essence and synchronization of the Federation. This study is both analytical and doctrinal, which tries to examine whether representative democracy has lost its essence due to political nomadism. The present study also analyzes the classical as well as contemporary pulse of floor crossing amidst dynastic politics in a representative democracy. It will briefly discuss the panorama of defections under the Indian federal structure in the light of the anti-defection law and an attempt has been made to add valuable suggestions to streamline remedy for the still prevalent political defections.
558
75538
The Recognition of Exclusive Choice of Court Agreements: United Arab Emirates Perspective and the 2005 Hague Convention on Choice of Court Agreements
Abstract:
The 2005 Hague Convention seeks to ensure legal certainty and predictability between parties in international business transactions. It harmonies exclusive choice of court agreements at the international level between parties to commercial transactions and to govern the recognition and enforcement of judgments resulting from proceedings based on such agreements to promote international trade and investment. Although the choice of court agreements is significant in international business transactions, the United Arab Emirates refuse to recognise it by Article 24 of the Federal Law No. 11 of 1992 of the Civil Procedure Code. A review of judicial judgments in United Arab Emirates up to the present day has revealed that several cases appeared before the Court in different states of United Arab Emirates regarding the recognition of exclusive choice of court agreements. In all the cases, the courts regarded the exclusive choice of court agreements as a direct assault on state authority and sovereignty and refused categorically to recognize choice of court agreements by refusing to stay proceedings in favor of the foreign chosen court. This has created uncertainty and unpredictability in international business transaction in the United Arab Emirates. In June 2011, the first Gulf Judicial Seminar on Cross-Frontier Legal Cooperation in Civil and Commercial Matters was held in Doha, Qatar. The Permanent Bureau of the Hague Conference attended the conference and invited the states of the Gulf Cooperation Council (GCC) namely, The United Arab Emirates, Bahrain, Saudi Arabia, Oman, Qatar and Kuwait to adopt some of the Hague Conventions, one of which was the Hague Convention on Choice of Court Agreements. One of the recommendations of the conference was that the GCC states should research ‘the benefits of predictability and legal certainty provided by the 2005 Convention on Choice of Court Agreements and its resulting advantages for cross-border trade and investment’ for possible adoption of the Hague Convention. Up to today, no further step has been taken by the any of the GCC states to adapt the Hague Convention nor did they conduct research on the benefits of predictability and legal certainty in international business transactions. This paper will argue that the approach regarding the recognition of choice of court agreements in United Arab Emirates states can be improved in order to help the parties in international business transactions avoid parallel litigation and ensure legal certainty and predictability. The focus will be the uncertainty and gaps regarding the choice of court agreements in the United Arab Emirates states. The Hague Convention on choice of court agreements and the importance of harmonisation of the rules of choice of court agreements at international level will also be discussed. Finally, The feasibility and desirability of recognizing choice of court agreements in United Arab Emirates legal system by becoming a party to the Hague Convention will be evaluated.
557
75334
Position of the Constitutional Court of the Russian Federation on the Matter of Restricting Constitutional Rights of Citizens concerning Banking Secrecy
Abstract:
Introduction: The aim of the present Article is to analyse the position of the Constitutional Court of the Russian Federation on the matter of restricting constitutional rights of citizens to inviolability of professional and banking secrecy in effecting controlling activities. Materials and Methods: The methodological ground of the present Article represents the dialectic scientific method of the socio-political, legal and organizational processes with the principles of development, integrity, consistency, etc. The consistency analysis method is used while researching the object of the analysis. Some public-private research methods are also used: formally-logical or comparative legal method are used to compare understanding of the ‘secrecy’ concept. The aim of the present article is to find the root of the problem and to give recommendations for the solution of the problem. Results: The result of the present research is the author’s conclusion on the necessity of the political will to improve the Russian legislation with the aim of compliance with the provisions of the Constitution. It is also necessary to establish a clear balance between the constitutional rights of the individual and the limit of these rights when carrying out various control activities by public authorities. Discussion and Conclusions: Attempts by the banks to ‘overdo’ anti-money laundering law under threat of severe sanctions of the regulators actually lead to failures in the execution of the normal economic activity. Therefore individuals get huge problems with payments on clearing basis in addition to problems with cash withdrawals. The Bank of Russia sets requirements for banks to execute Federal Law No. 115-FZ too high. Under the threat of revocation of the license for banking activity such requirements simply drive banks into the corner. It is high place to attract political will here. Recent changes in Russian legislation, e.g. allowing banks to refuse opening of accounts unilaterally, simplified banking activities in Russia. The article focuses on different theoretical approaches towards the concept of ‘secrecy’. The author gives overview of the practice of Spain, Switzerland and the United States of America on the matter of restricting constitutional rights of citizens to inviolability of professional and banking secrecy in effecting controlling activities. The Constitutional Court of the Russian Federation basing on the Constitution of the Russian Federation has its special understanding of the issue, which should be supported by further legislative development in the Russian Federation.
556
76591
Stereotypical Perception as an Influential Factor in the Judicial Decision Making Process for Shoplifting Cases Presided over in the UK
Authors:
Abstract:
Stereotypes are not generally considered to be an acceptable influence upon any decision making process, particularly those involving judicial decision making outcomes. Yet, we are confronted with an uncomfortable truth that stereotypes may be operating to influence judicial outcomes. Variances in sentencing outcomes are not easily explained away by criminological, psychological, or sociological theorem, but may be answered via qualitative research produced within the field of phenomenology. This paper will examine the current literature pertaining to the effect of stereotypes on the criminal justice system within the UK, and will also discuss what the implications are for stereotypical influences upon decision making in the criminal justice system. This paper will give particular focus to shoplifting offences dealt with in UK criminal courts, but this research has long reaching implications for the criminal process more generally.
555
76823
Enforceability of the Right to Education and Rights in Education for Refugees after the European Refugee Crisis
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Abstract:
The right to education is a fundamental human right, which has been entrenched in many international and regional treaties and national constitutions. Nevertheless, practice shows that many obstacles impede easy access to quality education for refugees. Overall, the material effects of international human rights legislation on improving (irregular) migrants’ access to social rights in the European countries have remained limited due to the lack of guarantees on effective incorporation in the municipal legal order and due to the lack of effective enforcement mechanisms. After the recent refugee crisis in Europe, this issue has grown in importance. The presentation aims to give a brief overview of the most important issues impeding the effective enforceability of the right to education for refugees. I. Do refugees fall within the scope of application of the relevant human rights treaties and to which extent can they invoke human rights treaties in domestic courts to set aside domestic legislation? II. How is the justiciability of the right to education organized in those treaties? III. What is the legal answer to questions raised in practice when dealing with the influx of refugees in Europe: (i) can refugees be placed in separate schools or classes until they can follow the regular curriculum?; (ii) can higher school fees be asked from pupils without legal documents?; (iii) do refugees have a right to be taught in their own native language until they learn to speak the national language? To answer the above questions, the doctrinal and comparative legal method will be used. The normative framework, as interpreted within Europe, will be distilled from the recent and relevant international treaties and European law instruments (in particular the Convention on the Rights of the Child, the European Convention on human rights, the European Social Charter and the International Covenant on Economic, Social and Cultural Rights) and their underlying policy documents, the legal literature, the (limited) European jurisprudence, and the general comments to those treaties. The article is mainly descriptive in nature. Its aim is to serve as a summary of the legal provisions, case law and legal literature on the topic of the right to education for refugees. The research shows that the reasons for the delicate enforceability of the rights to and the rights in education are multifold. The research will categorize the different contributing factors under the following headings: (i) problems related to the justiciability of international law as such; (ii) problems specifically related to the educational field; (iii) problems related to policy issues in the refugee debate. By categorizing the reasons contributing to the difficult enforceability of the right to education and the rights in education for refugees, this research hopes to facilitate the search for solutions to this delicate problem.
554
76825
The Legal Nature of Grading Decisions and the Implications for Handling of Academic Complaints in or out of Court: A Comparative Legal Analysis of Academic Litigation in Europe
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Abstract:
This research examines complaints against grading in higher education institutions in four different European regions: England and Wales, Flanders, the Netherlands, and France. The aim of the research is to examine the correlation between the applicable type of complaint handling on the one hand, and selected qualities of the higher education landscape and of public law on the other hand. All selected regions report a rising number of complaints against grading decisions, not only as to internal complaint handling within the institution but also judicially if the dispute persists. Some regions deem their administrative court system appropriate to deal with grading disputes (France) or have even erected a specialty administrative court to facilitate access (Flanders, the Netherlands). However, at the same time, different types of (governmental) dispute resolution bodies have been established outside of the judicial court system (England and Wales, and to lesser extent France and the Netherlands). Those dispute procedures do not seem coincidental. Public law issues such as the underlying legal nature of the education institution and, eventually, the grading decision itself, have an impact on the way the academic complaint procedures are developed. Indeed, in most of the selected regions, contractual disputes enjoy different legal protection than administrative decisions, making the legal qualification of the relationship between student and higher education institution highly relevant. At the same time, the scope of competence of government over different types of higher education institutions; albeit direct or indirect (o.a. through financing and quality control) is relevant as well to comprehend why certain dispute handling procedures have been established for students. To answer the above questions, the doctrinal and comparative legal method is used. The normative framework is distilled from the relevant national legislative rules and their preparatory texts, the legal literature, the (published) case law of academic complaints and the available governmental reports. The research is mainly theoretical in nature, examining different topics of public law (mainly administrative law) and procedural law in the context of grading decisions. The internal appeal procedure within the education institution is largely left out of the scope of the research, as well as different types of non-governmental-imposed cooperation between education institutions, given the public law angle of the research questions. The research results in the categorization of different academic complaint systems, and an analysis of the possibility to introduce each of those systems in different countries, depending on their public law system and higher education system. By doing so, the research also adds to the debate on the public-private divide in higher education systems, and its effect on academic complaints handling.
553
75512
Producer’s Liability for Defective Medical Devices in Light of Council Directive 85/374/EEC
Abstract:
Medical devices are products used for medical purposes and aimed to operate in the human body, sometimes even inside the human body. Therefore, they can become particularly risky products, and some of the injuries caused by medical devices can have serious effects on the person’s health or body, even leading to death. Because they fit in the category of 'products' as described in Article 2 of Council Directive 85/374/EEC of 25 July 1985, concerning liability for defective products, the liability of the manufacturer of medical devices follows the rules of strict liability as long as one of the defects covered by the directive is at stake. The directive is not concerned with the product’s efficiency, but instead with the product’s safety, although in what regards medical devices (the same being valid for drugs) the two concepts frequently go together, and a lack of efficiency can result in a lack of safety. In the particular case of medical devices, the most debatable defects are the ones related with erroneous or non-existing information and the so-called development defects. This paper analyses how directive 85/374/EEC applies to medical devices, which defects are covered by its regulation, and which criteria can be used to evaluate the product’s safety. Some issues are still to be clarified, even though the decisions from the European Court of Justice and from national courts are valuable tools to understand the scope of directive 85/374/EEC in what regards medical devices.
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76585
Disaster Victim Identification: A Social Science Perspective
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Albeit it is never possible to anticipate the full range of difficulties after a catastrophe, efforts to identify victims of mass casualty events have become institutionalized and standardized with the aim of effectively and efficiently addressing the many challenges and contingencies. Such ‘disaster victim identification’ (DVI) practices are dependent on the forensic sciences, are subject of national legislation, and are reliant on technical and organizational protocols to mitigate the many complexities in the wake of catastrophe. Apart from such technological, legal and bureaucratic elements constituting a DVI operation, victims’ families and their emotions are also part and parcel of any effort to identify casualties of mass human fatality incidents. Take for example the fact that forensic experts require (antemortem) information from the group of relatives to make identification possible. An identified body or body part is also repatriated to kin. Relatives are thus main stakeholders in DVI operations. Much has been achieved in years past regarding facilitating victims’ families’ issues and their emotions. Yet, how families are dealt with by experts and authorities is still considered a difficult topic. Due to sensitivities and required emphatic interaction with families on the one hand, and the rationalized DVI efforts, on the other hand, there is still scope for improving communication, providing information and meaningful inclusion of relatives in the DVI effort. This paper aims to bridge the standardized world of DVI efforts and families’ experienced realities and makes suggestions to further improve DVI efforts through inclusion of victims’ families. Based on qualitative interviews, the paper narrates involvement and experiences of inter alia DVI practitioners, victims’ families, advocates and clergy in the wake of the 1995 Srebrenica genocide which killed approximately 8,000 men, and the 9/11 in New York City with 2,750 victims. The paper shows that there are several models of including victims’ families into a DVI operation, and it argues for a model of where victims’ families become a partner in DVI operations.
551
76782
The International Fight against the Financing of Terrorism: Analysis of the Anti-Money Laundering and Combating Financing of Terrorism Regime
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Financing is important for all terrorists – from the largest organizations in control of territories, to the smallest groups – not only for spreading fear through attacks, but also to finance the expansion of terrorist dogmas. These organizations pose serious threats to the international community. The disruption of terrorist financing aims to create a hostile environment for the growth of terrorism and to limit considerably the terrorist groups capacities. The World Bank (WB), together with the International Monetary Fund (IMF), decided to include in their scope the Fight against the money laundering and the financing of terrorism, in order to assist Member States in protecting their internal financial system from terrorism use and abuse and reinforcing their legal system. To do so, they have adopted the Anti-Money Laundering /Combating Financing of Terrorism (AML/CFT) standards that have been set up by the Financial Action Task Force. This set of standards, recognized as the international standards for anti-money laundering and combating the financing of terrorism, has to be implemented by States Members in order to strengthen their judicial system and relevant national institutions. However, we noted that, to date, some States Members still have significant AML/CFT deficiencies, which can constitute serious threats not only to the country’s economic stability but also for the global financial system. In addition, studies stressed out that repressive measures are more implemented by countries than preventive measures, which could be an important weakness in a state security system. Furthermore, we noticed that the AML/CFT standards evolve slowly, while techniques used by terrorist networks keep developing. The goal of the study is to show how to enhance the AML/CFT global compliance through the work of the IMF and the WB, to help member states to consolidate their financial system. To encourage and ensure the effectiveness of these standards, a methodology for assessing the compliance with the AML/CFT standards has been created to follow up the concrete implementation of these standards and to provide accurate technical assistance to countries in need. A risk-based approach has also been adopted as a key component of the implementation of the AML/CFT Standards, with the aim of strengthening the efficiency of the standards. Instead, we noted that the assessment is not efficient in the process of enhancing AML/CFT measures because it seems to lack of adaptation to the country situation. In other words, internal and external factors are not enough taken into account in a country assessment program. The purpose of this paper is to analyze the AML/CFT regime in the fight against the financing of terrorism and to find lasting solutions to achieve the global AML/CFT compliance. The work of all the organizations involved in this combat is imperative to protect the financial network and to lead to the disintegration of terrorist groups in the future.
550
76031
Human Dignity as a Source and Limitation of Personal Autonomy
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The article discusses issues of mutual relationships of human dignity and personal autonomy. According to constitutions of many countries and international human rights law, human dignity is a fundamental and inviolable value. It is the source of all freedoms and rights, including personal autonomy. Human dignity, as an inherent, inalienable and non-gradable value comprising an attribute of all people, justifies freedom of action according to one's will and following one's vision of good life. On the other hand, human dignity imposes immanent restrictions to personal autonomy regarding decisions on commercialization of the one’s body, etc. It points to the paradox of dignity – the source of freedom and conditions (basic) of its limitations. The paper shows the theoretical concept of human dignity as an objective value among legal systems, determining the boundaries of legal protection of personal autonomy. It is not, therefore, the relevant perception of human dignity and freedom as opposite values. Reference point has been made the normative provisions of the Polish Constitution and the European Convention on Human Rights and Fundamental Freedoms as well as judgments of constitutional courts.
549
77328
Carolina Maria De Jesus' Narrative in a Fundamental Rights Perspective
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Child of the Dark is the work of the Brazilian author Carolina Maria de Jesus, published at the first time by Ática and Francisco Alves in 1960. It is, mostly, a story of lack of rights. It lacks to men who live in the slums what is essential in order to take advantage of the privilege of rationality to develop themselves as civilized humans. It is, therefore, in the withholding of the basic rights that inequality finds space to build itself to be the main misery on Earth. Antonio Candido, a Brazilian sociologist claims that it is the right to literature has the ability to humanize men, once the aptitude to create fiction and fable is essential to the social balance. Hence, for the forming role that literature holds, it must be thought as the number of rights that assure human dignity, such as housing, education, health, freedom, etc. When talking about her routine, Carolina puts in evidence something that has great influence over the formation of human beings, contributing to the way they live: the slum. Even though it happens in a distinct way and using her own linguistics variation, Carolina writes about something that will only be discussed later on Brazil’s Cities Statute and Erminia Maricato: the right to the city, and how the slums are, although inserted in the city, an attachment, an illegal city, a dismissing room. It interests ourselves, for that matter, in this work, to analyse how the deprivation of the rights to the city and literature, detailed in Carolina’s journal, conditions human beings to a life where the instincts overcome the social values.
548
78301
The Jury System in the Courts in Nineteenth Century Assam: Power Negotiations and Politics in an Institutional Rubric of a Colonial Regime
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In the third decade of the 19th century, the political landscape of the Brahmaputra valley changed at many levels. The establishment of East India Company’s authority in ‘Assam’ was complete with the Treaty of Yandaboo. The whole phenomenon of the annexation of Assam into the British Indian Empire led to several administrative reorganizations and reforms under the new regime. British colonial rule was distinguished by new systems and institutions of governance. This paper broadly looks at the historical proceedings of the introduction of the Rule of Law and a new legal structure in the region of ‘Assam’. With numerous archival data, this paper seeks to chiefly examine the trajectory of an important element in the new legal apparatus, i.e. the jury in the British criminal courts introduced in the newly annexed region. Right from the beginning of colonial legal innovations with the establishment of the panchayats and the parallel courts in Assam, the jury became an important element in the structure of the judicial system. In both civil and criminal courts, the jury was to be formed from the learned members of the ‘native’ society. In the working of the criminal court, the jury became significantly powerful and influential. The structure meant that the judge or the British authority eventually had no compulsion to obey the verdict of the jury. However, the structure also provided that the jury had a considerable say in matters of the court proceedings, and their verdict had significant weight. This study seeks to look at certain important criminal cases pertaining to the nineteenth century and the functioning of the jury in those cases. The power play at display between the British officials, judges and the members of the jury would be helpful in highlighting the important deliberations and politics that were in place in the functioning of the British criminal legal apparatus in colonial Assam. The working and the politics of the members of the jury in many cases exerted considerable influence in the court proceedings. The interesting negotiations of the British officials or judges also present us with vital insights. By reflecting on the difficulty that the British officials and judges felt with the considerable space for opinion and difference that was provided to important members of the local society, this paper seeks to locate, with evidence, the racial politics at play within the official formulations of the legal apparatus in the colonial rule in Assam. This study seeks to argue that despite the rhetorical claims of legal equality within the Empire, racial consideration and racial politics was a reality even in the making of the structure itself. This in a way helps to enrich our ideas about the racial elements at work in numerous layers sustaining the colonial regime.
547
70944
Sustainable Development, China's Emerging Role via One Belt, One Road
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The rapid economic and technological development of any country depends on access to cheap sources of energy. Competition for access to petroleum resources is always accompanied by numerous environmental risks. These factors have caused more attention to environmental issues and sustainable development in the petroleum contracts and activities. Nowadays a sign of developed countries is adhered to the principles and rules of international environmental law and sustainable development of commercial contracts. China has been entered to play by massive project plan One Belt, One Road. China is becoming a new emerging power in the world. China's bilateral investment treaties have an impact on environmental rights and sustainable development through regional and international foreign direct investment. The aim of this research is to examine China's key position to promote and improve the environmental principles and international law and sustainable development in the energy sector in the world by initiative One Belt, One Road. Based on this hypothesis, it seems that in the near future, China's investment bilateral investment treaties will become popular investment model used in global trade, especially in the field of energy and sustainable development. They will replace the European and American models. The research method is including literature review, analytical and descriptive methods.
546
75051
Behavioral-Orientation and Continuity of Informality in Ghana
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The expanding informal sector in developing countries and in Ghana in particular from the 1980s has now been aggravated by the growing population and downsizing in both the public and private sectors, with displaced workers finding alternative livelihoods in the informal sector. Youth and graduate unemployment also swell the numbers and further promote the continuity of the sector. Formal workers and institutions facilitate the growth and complicate demarcations between informality within the formal and informal sectors. In spite of its growth and increasing importance, the informal economy does not feature in policy debates and has often been neglected by the Ghana government. The phenomenon has evolved with modernity into myriad unimaginable forms. Indeed, actors within the sector often clash with the interventions provided by policy makers because neither the operatives nor the activities they perform can be clearly defined. This study uses in-depth interviews to explore the behavioural nature of the informal workers in Ghana to understand how the operatives describe and perceive the sector, and to identify the factors that influence their drive to stay within the sector. The findings indicate that while the workers understand the sector they operate in, they also distinguish between their informal operations and that of the formal, and yet another group feels trapped between informality and formality. The findings also enumerate the push and pull factors contributing to the growth of the sector.
545
75380
Toward a Legal and Policy Framework for Carbon Capture and Storage in Japan: An Analytical Framework for Policy Instrument Options
Abstract:
This article is a part of our Japanese Government funded research project, which is to develop a comprehensive policy and legislative framework for commercialising Carbon Capture and Storage (CCS) in Japan. In order to encourage large-scale deployment and/or commercial uses of CCS, it is essential to consider a mix of policy instruments and the best selections can make greater cost efficiency, scaling up the further facilities for CCS deployment. The need for CCS is also varied depending on country and region. Selecting best match of policy instruments can enable the creation of sufficient incentives to make business cases for CCS viable and trigger investments in deployment and innovation. Especially for industry to embark on large-scale investments, a long-term predictable framework is highly required. Despite the fact that there are many existing discussions about the best selection of policy instruments in general, to date, there has been little discussion on CCS specifically, due to the lack of experience in the field of industry. In this regard, this article specifically offers a potential analytical framework for policy instrument options for the future CCS deployment in Japan. In terms of addressing existing and potential policy instruments relevant to Japan, although commercialised CCS has not yet been enacted to date, this paper has addressed some of the key instruments, which already exist in the country. It will be necessary for us to take responsibility to determine the best instrument selections to establish a good policy framework in order to accelerate and promote effective and efficient future energy policy in Japan. This study is not only valuable to the Japanese CO2 mitigation activities (i.e. CCS) but also to other countries, which particularly rely on fossil fuel energy sources including both developed and developing countries.
544
71490
Striking a Balance between Certainty and Flexibility: The Role of Ubuntu in South African Contract Law
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The paper examines the concept of ubuntu and the extent to which it can play a role in ensuring fairness and justice in contractual relationships. Courts are expected to balance sanctity of contract and fairness. Public policy is currently a mechanism which is used by courts when balancing the above two competing interests. It, however, generally favours the freedom and sanctity of contract. The question which is addressed in this paper is whether the concept of ubuntu is an alternative mechanism that may be used to mitigate the sometimes harsh and unfair consequences of the doctrine of freedom and sanctity of contract. A comparative study and case analysis is the methodology that is used in this article. Unfairness in contracts is generally related to the problem of inequality in bargaining power underscored by deeply entrenched social and economic inequalities that are a consequence of apartheid and patriarchy. The transformative nature of the constitution demands the inclusion of African legal ideas and values in the legal order. There is a need for the harmonisation of western ideals which are based on the classical model of law of contract with relevant African principles. In order to attain a transformative legal order that promotes a societal transformation and enhances the lives of everyone courts cannot continue to frown upon African values. Ubuntu has the potential of steering the law of contract in a more equitable direction. The substantive rules of contract law undoubtedly need to be infused with the notion of ubuntu. The reconciliation of Western and African values is at the heart of legal transformation.
543
76651
Strict Liability as a Means of Standardising Sentencing Outcomes for Shoplifting Offences Dealt with in UK Magistrates Courts
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Strict liability is frequently used in magistrate’s courts for TV license and driving offences.There is existing research suggesting that the strict liability approach to criminal offences can result in ‘absurd’ judicial outcomes, or potentially ‘injustice’.This paper will discuss the potential merits of strict liability as a method for dealing with shoplifting offences.Currently, there is disparity in sentencing outcomes in the UK, particularly in relation to shoplifting offences.This paper will question whether ‘injustice’ is actually in the differentiation of defendants based upon their ‘perceived’ circumstances, which could be resulting in arbitrary judicial decision making.
542
64763
The Impact of the EU Competition Law on the Asian Systems
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Throughout the last decade developing countries have been undergoing substantial reforms to promote the establishment of competition regimes, as consequence of the trade liberalization and the spread of a ‘competition awareness movement’ across the globe. The legislative trend affected the whole Asia. Notwithstanding the existence of extensive joint ventures, cartels and other collusive business relationships in this geographical area, almost all the countries have already passed or are committed to enforce specific laws in the field. The study dwells into legal solutions adopted in the five sub-regions in which the continent is commonly divided –i.e. Central, East, South, Southeast, and Western Asia- and, using a comparative methodology, shed lights on the main differences and similarities in place. The final outcome of the analysis is that, despite the undeniable divergences of approach, what links together the legislation in force in the region is the unveiled influence exercised by the European Union competition regulation. Consequently, in order to properly evaluate the deterrence of the rule of law in the sector concerned, it is fundamental to scrutinize the major role played by the EU and its policy for the evolution of pro-competitive practices in the continent.
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78290
Responsibility of States in Air Traffic Management: Need for International Unification
Abstract:
Since aviation industry is one of the fastest growing sectors of the world economy, states depend on the air transport industry to maintain or stimulate economic growth. It significantly promotes and contributes to the economic well-being of every nation as well as world in general. Because of the continuous and rapid growth in civil aviation, it is inevitably leading to congested skies, flight delays and most alarmingly, a decrease in the safety of air navigation facilities. Safety is one of the most important concerns of aviation industry that has been unanimously recognised across the whole world. The available capacity of the air navigation system is not sufficient for the demand that is being generated. It has been indicated by forecast that the current growth in air traffic has the potential of causing delays in 20% of flights by 2020 unless changes are brought in the current system. Therefore, a safe, orderly and expeditious air navigation system is needed at the national and global levels, which, requires the implementation of an air traffic management (hereinafter referred as ‘ATM’) system to ensure an optimum flow of air traffic by utilising and enhancing capabilities provided by technical advances. The objective of this paper is to analyse the applicability of national regulations in case of liability arising out of air traffic management services and whether the current legal regime is sufficient to cover multilateral agreements including the Single European Sky regulations. In doing so, the paper will examine the international framework mainly the Article 28 of the Chicago Convention and its relevant annexes to determine the responsibility of states for providing air navigation services. Then, the paper will discuss the difference between the concept of responsibility and liability under the air law regime and how states might claim sovereign immunity for the functions of air traffic management. Thereafter, the paper will focus on the cross border agreements including the bilateral and multilateral agreements. In the end, the paper will address the scheme of Single European Sky and the need for an international convention dealing with the liability of air navigation service providers. The paper will conclude with some suggestions for unification of the laws at an international level dealing with liability of air navigation service providers and the requirement of enhanced co-operation among states in order to keep pace with technological advances.