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Copyright of Necmettin Erbakan University School of Law Review is the property of Necmettin Erbakan University School of Law Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Jurnal Jurisprudence is the property of Jurnal Jurisprudence and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Background: To respect international cooperation, human rights and legal certainty, it is possible to recognise the legal effects of foreign judicial decisions in another state, provided that the procedure for recognising a foreign judicial decision takes place and that such court decision fulfils the requirements set by local legislation. Recognition, as a concept, entails acknowledging the rights and obligations established in the originating jurisdictions and accepting juridical consequences. Enforcement, on the other hand, means fulfilling the obligation, allowing the creditor to realise his/her right and to ensure that the debtor has obligations and obeys the decisions that have already been made. International collaboration should facilitate the codification of Kosovo's legal framework on private international law, allowing for the recognition and enforcement of foreign decisions to be less complicated, more extensive, and more easily applicable. In comparison to prior solutions, the new law makes significant adjustments. Previous norms are being abandoned in favour of open links and jurisdictional criteria. Some prior solutions are preserved and, if necessary, changed and improved. Methods: The doctrinal approach involves the systematic identification, collection, and application of legal literature within the domain, encompassing statutes, texts, articles, and scholarly research by both local and international authorities. Additionally, the method involves a meticulous analysis of judicial practices, evaluating the practical implementation of legal standards and their judicial interpretations. Through examining legislation, our approach not only identifies legal issues but also furnishes a scholarly interpretation of the laws governing the field of study and its related institutions. Results and conclusions: Kosovo, as a relatively new state, has established a legislative framework through which it attempts to address problems and the path that must be taken in the implementation of foreign judgments. In general, the goal of having a democratic and well-developed society also means respecting the rights and decisions of foreign citizens, the rights that originate from the judicial decisions of international courts and the internationally accepted conventions. The harmonisation of the legislation and its compliance with ECHR conventions creates real opportunities for Kosovo to be ranked among the countries that respect these decisions. The legal system of Kosovo, as well as decisions made by the Constitutional Court, have produced results that can be used to influence future cases. The codification of private international law in Kosovo means that numerous circumstances will now have a legal basis for implementing foreign decisions. [ABSTRACT FROM AUTHOR]

Background: The article thoroughly examines the efficacy of constitutional complaints within Ukraine, utilising the Skrypka case as a pivotal illustration. Through comprehensive scrutiny, the authors analysed factual circumstances, national legislative frameworks governing contentious legal issues, and judicial precedents pertinent to the Skrypka case. The authors’ contention revolves around the primary role of a constitutional complaint in safeguarding an individual's violated constitutional rights, concurrently serving to fortify the constitutional order of the state. Methods: To comprehensively understand the subject, the authors conducted an in-depth review of relevant court decisions, meticulously analysing the legal arguments presented by judges. Additionally, they examined the positions of knowledgeable scholars to identify and comprehend the current expert assessments and proposals. Results and Conclusions: Through an in-depth review of judicial practices, the article delineates three predominant perspectives regarding the influence of decisions emanating from Ukraine's Constitutional Court subsequent to constitutional complaint reviews on the reevaluation of conclusive court decisions in specific cases: (1) The decisions of the Constitutional Court of Ukraine cannot impact contested legal relationships because these relationships existed prior to the adoption of these decisions by the Constitutional Court of Ukraine; (2) Review under exceptional circumstances is applicable only to decisions where the claims have been fully or partially satisfied (i.e., are subject to execution) but have not yet been enforced; (3) The decisions of the Constitutional Court of Ukraine are primarily significant as rulings of a general nature, establishing legal conclusions for resolving future cases. The article asserts that rectifying final court decisions owing to the use of unconstitutional statutes imposes stringent constraints, addressing only issues arising post the statutes' unconstitutional determination, excluding considerations predating such rulings, irrespective of the potential restoration of violated constitutional rights. Consequently, reestablishing a complainant's previous legal status via a constitutional complaint does not transpire. Therefore, a complainant, having exhausted alternative legal remedies and diligently formulated their case, cannot pursue substantive reconsideration of a final court decision, even if predicated on applying a law deemed unconstitutional per their complaint, contrary to explicit provisions within Ukrainian procedural legislation. The article emphasises the imperative necessity for concerted revisions to Ukraine's Constitution and extant legal frameworks to attain a balanced, coherent, and unequivocal articulation of the legal ramifications ensuing from decisions rendered by Ukraine's Constitutional Court, encompassing those originating from constitutional complaints—an objective presently beyond reach. [ABSTRACT FROM AUTHOR]

This article examines the case law of the Constitutional Court of Kosovo and explains how this court protects the rule of law, as a fundamental constitutional principle and as a human right. The example of Kosovo is intriguing because of the peculiar historical, political and legal backdrop against which the Constitution was drafted, and the constitutional adjudication that has taken place. Methodologically, this analysis is based on a review of the landmark cases when the Constitutional Court of Kosovo reasoned its decisions with reference to the specific constitutional provisions that enshrine the principle of the rule of law. The paper highlights that the Constitutional Court of Kosovo refers to the rule of law as a general normative framework for adjudicating cases of abstract constitutional review, as well as for deciding cases submitted by individuals – mostly in conjunction with the right to a fair and impartial trial. By scrutinizing the cases of Kosovo, this analysis highlights the role of constitutional courts in ensuring that general constitutional principles, such as the rule of law, are justiciable and have practical effect for human rights of individuals. [ABSTRACT FROM AUTHOR]

The Federal Supreme Court Cassation Division reviews cases based on cassation petition against final court decisions when they contain a fundamental error of law. Such decisions of the Cassation Division rendered by five judges are binding on lower courts. This article reviews cassation decisions for content and form under six categories. It also reviews how the Cassation Court sees its role to better contextualise the effectiveness of those decisions. It finds that the Cassation Division sees itself as part of a court, not an independent judiciary based on separation of powers, and its decisions show significant deference to administrative decisions, and heavy-handed interpretation and application of the rules of criminal and administrative laws. In civil cases, it shows strict interpretation of statutes; it does not resort to principle-based interpretation of rules; it rather interprets statutes as any other ordinary court does. Even if continental legal systems do not envisage case laws through their judicial decisions, courts are not expected to merely rely on the literal readings of the law where such readings are silent, absurd, unreasonable, inconsistent, and contrary to legislative intent. With regard to the form the judgments are written, there are decisions that are not befitting a Cassation Division, the highest judicial organ in Ethiopia. [ABSTRACT FROM AUTHOR]

The ability of a corporation to exercise constitutional protections has been rife with uncertainty and change since the conception of corporate rights came into existence. The history and rapid development of the corporation, combined with the misapplied and misunderstood “corporate personhood” theory, have resulted in an almost unintelligible hodgepodge of corporate constitutional applications. Similarly, the concept of the right to bear arms has equally been muddled and applied very differently at varying times and locations since before the establishment of the Second Amendment. This Article attempts to clarify how an alternative to the “corporate personhood” theory, namely the “purpose” theory is increasingly relied on by the Supreme Court to more consistently and transparently extend or restrict constitutional rights. Purpose analysis provides a sound legal basis to conclude that the Second Amendment should also be applied to corporations. In recent years, the Supreme Court has dramatically increased the rights of corporations. Simultaneously the Court has also significantly augmented the right of Americans to possess and publicly carry a vast array of firearms. However, the Court has never said whether this right is one possessed by corporations. Nevertheless, the reasoning in many cases generally dealing with corporate rights and gun rights, including the Court’s most recent Second Amendment case, point to the answer that corporations are entitled to the right to bear arms. While there is an understandable amount of antipathy on the part of many scholars to expanding Second Amendment rights in the manner that the 2022 Supreme Court decision in New York State Rifle & Pistol Association v. Bruen did, a corporate right to bear armsdoes not reflect the same risks discussed in Bruen. Currently, there is a split in whether lower courts have held in favor of corporations (or other collectives) having Second Amendment rights, and this disagreement could and should eventually come before the Supreme Court. Whether one agrees with the outcome of Bruen or not, purpose analysis, which entails judicial examination of the purpose behind particular constitutional provisions to determine their boundaries, dictates that corporations should have Second Amendment rights. Indeed, corporations’ interests in these rights are rooted in and further the key purposes of the Second Amendment: self-defense, protection of third parties, and defense of property. [ABSTRACT FROM AUTHOR]

The issue of plagiarism has raised many theoretical and practical discussions. Also, the legal basis was not clear enough and certain misunderstandings have created the premises for losing the title of doctor. Arrived in court, the trials were judged differently. In 2022, the Constitutional Court pronounced Decision no. 364, one of the clearest decision of the court, and the issue was settled in a transparent manner. The current study will analyze the implications of this decision. [ABSTRACT FROM AUTHOR]

The judgment of the Supreme Court commented on here was devoted to the limitation of claims. One of the members of the partnership (the general partner) violated the non-competition clause and caused damage to the partnership. Another member (the limited partner) sued him for compensation for this damage. The Supreme Court adopted a resolution specifying the beginning of the limitation period for a claim to redress the damage caused. The legal assessment of the Supreme Court is correct. If the violation of the prohibition of competition consists in repeated behaviour, the claims of a partner provided for shall expire after six months from the date when all other partners became aware of the violation, but not later than after three years, counted separately for each behaviour. [ABSTRACT FROM AUTHOR]

This article looks into the development of Armenian legislation related to pledge, specifically the non-judicial foreclosure process of collateral, as well as an analysis of the decisions made by the Constitutional Court and the Court of Cassation in Armenia. The article offers an overview of the legal framework for pledge in Armenia, examining the evolution of pledge legislation, and highlights the importance of the non-judicial foreclosure process of collateral and its significance in the context of Armenian legislation. It analyses the legal framework and the processes involved in non-judicial foreclosure, and also looks into the challenges that arise when applying this process in practice. Furthermore, the article analyses the decisions of the Constitutional Court and the Court of Cassation in Armenia that have dealt with issues related to pledge and non-judicial foreclosure. It provides an in-depth analysis of the reasoning for and implications of these decisions, as well as the impact they have had on Armenian legislation and practice. In conclusion, the article sheds light on the development of Armenian legislation on pledge and provides a critical analysis of the non-judicial foreclosure process and related court decisions. [ABSTRACT FROM AUTHOR]

Copyright of Jurnal Jurisprudence is the property of Jurnal Jurisprudence and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Jurnal Jurisprudence is the property of Jurnal Jurisprudence and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The Seventeenth Amendment to the Constitution transformed the Constitutional Court from a specialist in constitutional matters to a generalist appellate court. Following this amendment, the Court has demonstrated ample willingness to accept its newfound role as the super appellate court in all areas of South Africa's law, and the limits supposedly imposed on the Court's jurisdiction by Section 167(3)(b) of the Constitution have developed and evolved through a jurisprudence riddled with inconsistencies. This article briefly illustrates these inconsistencies in support of its main claim, which is that it is problematic that the Court acts as a generalist court of appeal over decisions of specialised courts, especially when those decisions require engagement with complex factual assessments that fall outside the realm of the Court's expertise. To demonstrate this, the Court's jurisprudence and experience is compared in the specialised areas of labour law and competition law. This exercise indicates that in areas where the Court possesses expertise similar to what is statutorily envisaged for the relevant specialist courts, such as labour law, it has contributed positive developments that have given content to constitutional rights. On the other hand, the Court's jurisprudence in competition law is a disturbing indication of the shortcomings of the present system in terms of which the Court, without acknowledging its limited competition expertise, has overturned expert factual and economic findings of the competition courts. In the process, this has created uncertainty and undermined the legislative intent of the Competition Act 89 of 1998. This conundrum needs to be remedied through deliberate interventions to enhance the Court's competition expertise. [ABSTRACT FROM AUTHOR]

What is 'a court of a similar status to the High Court' and does it have the power to declare an Act of Parliament or executive conduct constitutionally invalid in terms of Section 172 of the Constitution of the Republic of South Africa, 1996? In this article I attempt to provide an answer to these questions. First, in defining a court of a similar status to the High Court, I defend the High Court's constitutional significance over courts established by statute. I argue that the power to invalidate Acts of Parliament and executive conduct inheres in the High Court because it is a lowercase-c constitutional court as opposed to a statutory court whose powers are limited to only those vested by a statute. This, I argue, has implications for a statutory court's competence to exercise the Section 172 power, contrary to the Constitutional Court's own jurisprudence. Beyond this, I argue that the phrase 'a court of a similar status to the High Court' merely indicates that that court has powers similar to those of the High Court when exercising its inherent jurisdiction in order to act equitably and reasonably in fulfilling its functions and nothing more. Second, I turn my attention to the jurisprudence of the Special Tribunal which has recently declared itself a court possessed of the Section 172 power and explain why, as a matter of constitutional law, it cannot possess the power of judicial review. Third, I will propose a framework for understanding the constitutional jurisdiction of courts other than, and courts of a similar status to, the High Court by drawing on and critiquing decisions of the Constitutional Court that have often been contradictory and poorly reasoned, and that have caused the confusion now pervasive in specialist court jurisprudence. I will conclude by arguing that the distinction between constitutional courts and statutory courts on the one hand, and between courts and tribunals on the other hand, as well as the allocation of the Section 172 power, recognises constitutional courts as a constitutive part of the state's ultimate political authority which is not subject to revocation by Parliament through legislation, and that our understanding of constitutional jurisdiction should reflect that. [ABSTRACT FROM AUTHOR]

In Thubakgale & Others v Ekurhuleni Metropolitan Municipality & Others [2021] ZACC 45, 2022 (8) BCLR 985 (CC), the Constitutional Court was confronted with a seemingly straightforward question: are constitutional damages competent and appropriate relief to vindicate an infringement of a socio-economic right? The Court was split in addressing this question. Jafta J's judgment answered the question in the negative because, in his view, socio-economic rights can never attract constitutional damages; whereas, the minority judgment, per Majiedt J, held that constitutional damages may be awarded to vindicate violations of socio-economic rights, provided such damages constitute effective relief in light of the facts. In this article, I argue that, despite the seemingly straightforward question, the Court reasoned itself into a Gordian knot. I identify several reasoning defects that reveal the underlying weakness in the asserted justifications proffered by Jafta J's judgment and to a degree, the minority judgment. I argue that the applicants all have property entitlements that are worthy of constitutional protection under Section 25(1) of the Constitution. I contend that Jafta J's judgment ignores the plain text of Section 38 and Section 172(1)(b) of the Constitution and impermissibly fetters this wide discretion afforded to courts. Jafta J's judgment also conflicts with previous jurisprudence of the Constitutional Court and the Supreme Court of Appeal. Undoubtedly, this has adverse consequences for the rule of law. Furthermore, Jafta J's reasoning creates inequality between litigants who claim relief for socio-economic rights violations and those who seek to vindicate their civil and political rights. Moreover, Jafta J's judgment mischaracterises all socio-economic rights as being subject to progressive realisation, and therefore courts can only examine the reasonableness of the legislative and other measures taken by the state. This is plainly not true as other socio-economic rights are not subject to the reasonableness standard. Jafta J's judgment also follows the long tradition of the Constitutional Court by conflating the right contained in Section 26(1) with the obligations that arise under Section 26(2). It is argued that rights and obligations are analytically distinct and should not be conflated. The starting point should be to give primacy to rights by setting out their entitlements and benefits that are a denouement of specific rights and to then consider the obligations as a secondary endeavour. The progressive realisation caveat qualifies the obligation but not the right. [ABSTRACT FROM AUTHOR]

In 2021, the Constitutional Court delivered judgment in Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg & Others v Minister of Police & Others and Thubakgale & Others v Ekurhuleni Metropolitan Municipality & Others. In both cases, the Court refused claims for constitutional damages and adopted a test which appears to mean that such relief is only available as a last resort. This article advances three arguments: first, prior to the Residents/Thubakgale sequel, the case law disclosed a nuanced set of principles which explained when constitutional damages could be recovered. Second, in Residents and Thubakgale, the Court jettisoned these principles with little or no cogent explanation. Finally, despite this regrettable set of precedents, both judgments are so muddled that they have left open a window of opportunity for the Court to course correct, and adopt an approach to constitutional damages which does not unthinkingly relegate this relief to a measure of last resort. [ABSTRACT FROM AUTHOR]

After a 13-year wait for a final outcome in the hate speech complaint against Jon Qwelane, the Constitutional Court was expected to deliver a judgment which would, at long last, clarify the obscure meaning of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Equality Act). However, Qwelane v South African Human Rights Commission 2021 (6) SA 579 (CC) did not quite live up to expectations. While rendering a resounding and long-overdue recognition of the rights of Queer people, and the wrongs done to them, the Constitutional Court remedied much of the damage done by the Supreme Court of Appeal. But it wrongly found and 'fixed' unconstitutionality where there was none (by excising the word 'hurtful' and requiring hate speech always to 'promote or propagate hatred'), and failed to address the real problems with section 10 of the Equality Act, namely the confusing and convoluted objective-subjective test for imputing hateful intention to a speaker, and the unclear scope of defences. This article assesses the Court's reasoning in Qwelane, and explains what it got right and got wrong (with reference to other delictual law, and international and comparative law). Finally, it explores the obscurity (and unconstitutionality) the Court has left to linger in section 10 of the Equality Act. [ABSTRACT FROM AUTHOR]

The article examines approaches to the interaction of decisions of the Court of the European Union (CJEU) and international obligations in the field of human rights with the constitutional identity of states. Attention is focused on the concepts of "national identity" and "constitutional identity", their relationship, and the introduction of the concept of "national identity" into the European legal order after the signing of the Maastricht Treaty (1993). Attention is drawn to the fact that the primary law of the EU does not contain the concept of "constitutional identity", but this term is widely used in the decisions of the constitutional courts of several EU member states. In these decisions, the constitutional courts raised the issue of the protection of the constitution and constitutionality in the EU member state given the harmonization of legislation and/ or ultra vires decisions. The article notes that the concept of constitutional identity is broad, it covers the historical, political, cultural, and legal identity of the state, as well as the connection of national law with the international and autonomous legal order of the EU. The idea of constitutional identity is dynamic and constantly evolving due to the continuous development of the states themselves. The analysis of various approaches to this interaction based on the German Federal Constitutional Court, Hungarian Constitutional Court, and Italian Constitutional Court was carried out. It is noted that the interaction of CJEU rulings with constitutional identities is based on the principle of primacy of the EU law, and international human rights obligations are based on the conventional feature of the "obligation of uniform interpretation" and universal standards while ignoring the constitutional tradition of the states. It means that CJEU judgments have a higher legal force than national court judgments, while international human rights obligations should become precedents for subsequent national court judgments, not lowering the national standards of human rights protection. [ABSTRACT FROM AUTHOR]

In the next Supreme Court term beginning in October 2023, the Justices will hear argument on whether the Mandatory Repatriation Tax (MRT), passed as part of the Trump administration's 2017 Tax Cuts and Jobs Act (TCJA), violates the Sixteenth Amendment. Even if the Moores win on their individual MRT refund suit, the MRT on corporate shareholders could survive-and that tax on mega-companies that have retained billions in overseas affiliates forms the most significant part of the expected MRT tax. Even if the Court agrees that the Sixteenth Amendment authorizes accrual-based taxation, making an annual mark-to-market accrual income tax such as that under section 475 constitutional, the Court could possibly conclude that the MRT look-back period is an unreasonably long period for taxation under the accrual method. [Extracted from the article]

We examine the effect of a U.S. Supreme Court decision regarding abortion laws on Americans' preferences for political candidates. The decision was leaked in advance of the official announcement, and we track the evolution of political preferences from before to after the leak and, eventually, to after the formal announcement. The abortion issue was already very important to voters before the leak, but the Court's decision did not simply make it more important for everyone. We find that the decision decreased the importance weight of abortion for Republicans, while increasing it for independents/nonvoters. Further, the decision increased Republican support for candidates who want to ban abortions although this effect is diminished for candidates that oppose exceptions for rape, incest, or the mother's health. Nonaffiliated voters move sharply away from candidates who want to ban abortions without exceptions. The decision also resulted in a lasting polarization along gender lines whereby men became more likely to vote for a candidate that supports a ban on abortion, while women are less likely to support candidates that ban abortions. This paper was accepted by David Simchi-Levi, marketing. Supplemental Material: The data files are available at https://doi.org/10.1287/mnsc.2023.4802. [ABSTRACT FROM AUTHOR]

School administrators have often been admonished that it is illegal for teachers and other employees to pray in front of students. Kennedy v. Bremerton School District, also known as "the praying football coach" decision, appears to have changed that, but many questions remain as to the extent and implications of this unprecedented U.S. Supreme Court decision. This article describes why this court case was so significant. It summarizes the relevant facts of the case and the Court's majority and dissenting opinions. The article also provides school leaders with guidance about how to respond to this seminal case by concluding with five implications of the Court's decision. [ABSTRACT FROM AUTHOR]

The integration of open law policy into Constitutional reforms has emerged as a focal point for numerous legal scholars in Indonesia over recent years, with criminal law being a particularly contentious subject of debate. Some stakeholders advocate for the Constitutional Court to exhibit boldness in addressing this vital issue, although Constitutional Court judges have emphasized their limitations in expanding the interpretation of adultery. This legal study aims to investigate the integration of open law policies in Constitutional Court decisions and their influence on legislative development in Indonesia. Employing a legislative research approach, data is gathered from various primary and secondary sources. Conceptually, this research explores the impact of Constitutional Court decisions, which incorporate open legal principles, on the Indonesian legal system. The findings reveal that the concept of open legal policy lacks clear boundaries in Constitutional Court rulings, leading to confusion between positive and negative legislative roles in legislative practice and judicial oversight. Additionally, the decisions based on the open justice policy highlight discord among Constitutional Court judges concerning the legalistic paradigm and the application of legal constraints, resulting in legal uncertainty in society. The study also offers significant recommendations to enhance the integration of open law policy in Constitutional Court reforms. [ABSTRACT FROM AUTHOR]

The Constitutional Court’s Decision number 68/PUU-XX/2022 has sparked substantial debate among various societal factions. The controversy stems from the interpretation that the ruling potentially enables ministers to misuse their authority and exploit state resources for electoral advantages while running for President or Vice President, without necessitating resignation from their current position. This study seeks to discern the ramifications of the Constitutional Court’s decision number 68/PUU-XX/2022 on the roles and authorities of ministers within a presidential government structure, and to scrutinize the decision from an Islamic law/siyasah perspective. This investigation adopts a descriptive qualitative approach, grounded in library research. The normative juridical methodology is employed, focusing on decision number 68/ PUU-XX/2022. The study concludes that within the context of siyasah sharia, the decision could compel the nation’s leader (the President) to promulgate legal regulations that violate the principle of fairness between high-ranking and ordinary officials. However, the President risks being deemed unconstitutional if derivative regulations stemming from the decision are not enacted. Power abuse by state officials (ministers), partly driven by conflict of interest, is a critical concern. From the perspective of Islamic law/siyasah, the decision’s implications could potentially harm society and the government. [ABSTRACT FROM AUTHOR]

The research investigates the reasons behind the surge in the number of expulsion cases awaiting resolution by the Constitutional Court of Hungary during the initial year of the pandemic by conducting an analysis. Identity between the cases examined can be discovered along issues related to factual and legal merits, which in several cases is the cause of the problem and the effect of which draws attention to the right to an effective remedy. The study focuses on the factual and legal issues of decisions on expulsion and entry and residence bans from the point of view of legally established third-country nationals residing in Hungary. The study explores Constitutional Court and high court decisions of the period compared to the relevant case law of the Supreme Court in a comprehensible manner and digs up the roots of the identified common problems. Exploring the legal basis in the light of basic international and EU law obligations, both access to classified documents and a system of appeal against decisions constitute a set of complex, completely independent and unrelated procedures, that ultimately means that the facts on which the expulsion is based, which are also particularly difficult to ascertain, cannot be effectively disputed. [ABSTRACT FROM AUTHOR]

Recently, the Supreme Court of Nigeria in Tega Esabunor v Faweya & Ors (2019) LPELR 46961 (SC) dismissed an appeal seeking to quash the order of a magistrate court for the transfusion of blood to a baby. The appellants contended that the court had no jurisdiction to make the order. The crux of the case was whether the parents' right to consent to the child's treatment based on religious beliefs supersedes the child's right to live, thus reflecting the tension between a parent's right to give consent to the choice of treatment for their child, and the court's power to override such rights through the inherent parens patriae jurisdiction of the state. The case also reflects the tension between the freedom of a parent to practise their religion and the right of a child to live, in the medical context. This article examines the findings of the Supreme Court in Tega Esabunor's case, considering whether the court's decision is in line with the generally accepted practice on when the state can intervene if persons with parental responsibility refuse medical treatment for an incompetent child because of religious beliefs. Cases from other jurisdictions are analysed to ascertain the position of foreign courts. It is submitted that the Supreme Court's judgment reflects accepted international practice regarding parental refusal of consent for medical treatment of a child. [ABSTRACT FROM AUTHOR]

This contribution takes a look at the recent Google Android judgement of the General Court as a case study of antitrust informed by behavioural economics - the study of not fully rational economic agents. It contrasts the General Court's pragmatic approach to economic evidence to the U.S. Supreme Court's willingness to delve into economic theory, where the latter can prove more of an obstacle to the development of behavioural antitrust. It further concedes that cases relying on behavioural theories of harm can prove to be less predictable from a legal standpoint. This, nevertheless, does not obviate older legal tests, which might just need to be reformulated as requiring an analysis of effects, in line with the General Court's rhetoric on the necessity to avoid false convictions in such cases. Lastly, the contribution argues that the relevance of behavioural antitrust will not fade in its entirety with new regulatory tools addressing similar issues. [ABSTRACT FROM AUTHOR]

Copyright of Collected Papers of Zagreb Law Faculty / Zbornik Pravnog Fakulteta u Zagrebu is the property of Sveuciliste u Zagrebu, Pravni Fakultet and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

In Daniels v Scribante (hereafter the Daniels case) the Constitutional Court had to decide whether: (a) the Extension of Security of Tenure Act 62 of 1997 (ESTA) afforded Ms Daniels the right to make improvements to her dwelling; (b) if consent from the person in charge, Mr Scribante, was a requirement for Ms Daniels to make such improvements; and (c) if consent was not a requirement, if Ms Daniels could effect improvements to the total disregard of Mr Scribante. The judgment in Daniels is important not only because it paved the way for Ms Daniels to effect improvements on her existing dwelling without the consent of Mr Scribante, but also because it showed that under section 8(2) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) on the application of the Bill of Rights Mr Scribante owed a positive obligation to Ms Daniels to ensure that she lived in conditions that afforded her human dignity. In Daniels the Constitutional Court indicated that private landowners were enjoined by section 25(6) of the Constitution through ESTA to accommodate ESTA occupiers on their land. According to the Constitutional Court in Daniels, the nature of the obligation imposed by section 25(6) of the Constitution was both negative and positive, and in this particular case it rested on Mr Scribante. Against this background, this case note provides at the outset the salient facts and judgment of the Daniels case. This is followed by an analysis aimed at critiquing the judgment in Daniels pertaining to what is expected of private landowners in the new constitutional dispensation. It is concluded that more may be required from the private landowner – a positive duty – to ensure that ESTA occupiers enjoy fundamental rights. [ABSTRACT FROM AUTHOR]

Section 30P of the Pension Funds Act 24 of 1956 (hereafter PFA) is an important procedural tool that allows those dissatisfied with the Pension Funds Adjudicator's determinations to apply to the High Court for such determinations to be set aside. This article discusses this section and demonstrates that neither the legislature nor the courts have provided clarity on whether what is intended by this section is an appeal, a review or a reconsideration of determinations of the Pension Funds Adjudicator. It also illustrates the confusion that has been created by the courts with the High Court referring to this procedure as sui generis and the Supreme Court of Appeal, without referring to previous High Court decisions, referring to this procedure as an appeal in the wide sense. In this article a reflection on whether these two formulations are synonymous or if there is a need to settle for only one of them will be made. Furthermore, a call for judicial reconsideration of the applicability of the Plascon-Evan Rule in section 30P applications will be made in this article. [ABSTRACT FROM AUTHOR]

In its judgment in Qwelane v South African Human Rights Commission 2022 2 BCLR 129 (CC), the Constitutional Court declared section 10(1) of the Equality Act unconstitutional and invalid to the narrow extent that section 10(1)(a) refers to the intention to be "hurtful". The prohibition on hate speech passed constitutional muster in all other respects. In addition, the court purposively interpreted aspects of the application of section 10(1) so as to limit its impact on the right to freedom of expression. This contribution firstly welcomes the court's reliance on the transformative goals of the Constitution and the Equality Act as its primary framework in interpreting section 10(1). The severance of section 10(1)(a) and the conjunctive reading of sections 10(1)(b) and (c) ("be harmful or to incite harm" and ʺpromote or propagate hatred" respectively) also seem sensible considering the court's broad definition of "harm". The article further emphasises that the terms of section 10 call for a proper consideration of context. In this regard, the court rightly considered the extreme homophobia in the society addressed by Mr Qwelane, the particular vulnerability of the target group and the real threat of devastating imminent consequences to conclude that Qwelane's words were clearly intended to "incite harm" and "propagate hatred". Yet the court's view that the speaker's subjective intention is irrelevant in performing the requisite objective reasonableness assessment from the ambit of section 10(1) is arguably less judicious, as is the categorical exclusion of expression in private. Ultimately, the objective case-by-case reasonableness inquiry under section 10(1) should be whether a reasonable person in the speaker's position should have refrained from making the impugned harmful discriminatory utterances. This inquiry involves a determination of wrongfulness based on the constitutional duty not to discriminate unfairly. It invokes all the aspects of the Equality Act's definition of discrimination as well as all the elements of fairness analysis set out in section 14 of the Equality Act. Factors to be considered include the value of the particular expression, and the extent of the (potential) harm to individual members of a protected group and to society as a whole, as well as justification considerations such as the respondent's legitimate and bona fide exercise of the right to freedom of expression and to privacy. [ABSTRACT FROM AUTHOR]

Land and land rights remain a contested issue in South Africa. Grobler v Phillips centered on the eviction of an 86-year-old woman, Mrs Phillips, and her disabled son from property she had lived on since she was 11 years old. After a fourteen-year court battle the Constitutional Court granted an eviction order against Mrs Phillips. This case note consists of a discussion of the judgments of the Magistrate's Court, High Court, Supreme Court of Appeal and Constitutional Court. It is found that the Constitutional Court erred in its decision as it applied a formalistic approach, disregarded the narrative of the occupier and did not sufficiently challenge the current neo-liberal regime in which property rights operate. [ABSTRACT FROM AUTHOR]

On 28 June 2022 the apex or Constitutional Court (CC) handed down a much-awaited judgment which impacts upon Muslim marriages concluded purely in terms of Islamic law in South Africa. Does the judgment mean that such Muslim marriages are now fully recognised for all purposes in the South African legal context? The simple answer is "no". The rationale for this conclusion is to be found in the two-pronged judgment. The first part of the judgment is wholly suspended and will only and automatically come into effect if remedial legislation is not enacted in 24 months. The second part of the judgment pertains to an interim order which takes effect immediately and applies retrospectively to all Muslim marriages that subsisted on 15 December 2014 (when the case was first launched by the Women's Legal Centre in the Western Cape High Court) and to Muslim marriages which, although terminated before that date, were still subject to ongoing legal proceedings at that date. While the case note briefly refers to the first part of the judgment, the main purpose of this case note is to highlight some of the practical problems that could be encountered by couples when effect is given to the orders pertaining to the interim relief granted in terms of the second part of the judgment. The problem areas are highlighted by looking at the CC judgment in the light of three fictitious scenarios. The case note provides a few critical comments on the judgment and ends with a few concluding remarks. Past experience leads us to expect that tangible progress will take place only by 2024, a date which coincides with South Africa's next presidential election. Until then the non-recognition of Muslim marriages will continue to prove burdensome to Muslim women and children. [ABSTRACT FROM AUTHOR]

The presented paper is devoted to the Czech Supreme Administrative Court's approach to the Russian invasion of Ukraine from the perspective of deciding asylum issues. Specifically, the author focuses on the principle of non-refoulement and breaking the standard rules of administrative court proceedings and Ukraine as a safe country of origin. Finally, the author describes a relatively recent Czech Supreme Administrative Court's ruling in which it addressed the issue of including temporary protection within the international protection system. [ABSTRACT FROM AUTHOR]

Considered for a long time as the "eyes and ears of justice", the witness has become a procedural subject around which several controversies have arisen since the entry into effect of Law No. 135/2010 on the Code of Criminal Procedure. The suspected witness, the one against whom further criminal prosecution has not been ordered yet, has acquired a distinct position, shaped by the case-law of the European Court of Human Rights and redefined by Decision No. 236/2020 of the Constitutional Court of Romania. Although the European Court of Human Rights has repeatedly ruled that the guarantees of fairness in proceedings apply once an accusation is formulated, it has also recognized the same guarantees for individuals who are heard as witnesses, but are simultaneously suspected of committing offences. Even after the official release of the contentious constitutional court's decision, there are a series of aspects that generate debates and controversies, the most important one being whether there is a genuine right for the witness to remain silent. Has the phrase "cannot be used against him/her" in Article 118 of the Code of Criminal Procedure become predictable and, at the same time, a barrier against potential abuses? Can a "right to silence and privilege against self-incrimination" be recognized ab initio? The balance between the general interest for a good performance of the criminal proceedings and the rights of the "suspected" witness has required and continues to require practical solutions from the judicial authorities, so that the right to defence and the right to a fair trial are observed. [ABSTRACT FROM AUTHOR]

The public pension system has always raised many questions marks, firstly for its beneficiaries. Additionally, the Romanian legislation through which this system has been implemented has been objected against and the constitutional challenge has arrived on the bench of the Romanian Constitutional Court. This study wants to analyse the pension system starting from the economic background and ending with the legal one. In relation to the current system, the position of the Constitutional Court has been and is extremely clear, so that any legislative amendment, either at the initiative of the Parliament or at the initiative of the Government, by emergency ordinance, must take into account the constitutional requirements. [ABSTRACT FROM AUTHOR]

In order to comply with the Decision of the Constitutional Court no. 601/2020, the Law no. 140/2022 on some protection measures for persons with intellectual and psychosocial disabilities and amending and completion of some normative acts was adopted. According to article 26 of the Law, most of its provisions entered into force 90 days after the date of publication in the Official Gazette of Romania, i.e. on August 18, 2022, except for the provisions of article 20 paragraph (6) thesis III and of article 23, which entered into force 3 days after publication. The measure of placing under judicial interdiction has been replaced, the current study aiming to analyze the new legal instruments of support and protection that are addressed to these categories of vulnerable persons that were created by Law no. 140/2022. The adoption of this normative act, whose solutions we will present in this study, is welcome and long awaited because the lack of a legislative framework in this important matter starting with the date of the publication of the Constitutional Court Decision left open the way for the courts to issue divergent solutions in cases having as object the "judicial interdiction". Within 3 years from the entry into force of Law no. 140/2022, the ex officio re-examination of the injunction measures by the courts is carried out, in the sense of ordering either their replacement with the protective measures provided for by the new regulation, or the lifting of the measure, and the fulfilment of the deadline does not remove the obligation of the courts to re-examines, further, ex officio, all the measures of placing under judicial interdiction. [ABSTRACT FROM AUTHOR]

Copyright of Revista Direito GV is the property of Fundacao Getulio Vargas and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista Direito GV is the property of Fundacao Getulio Vargas and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

A widely held view for why the Suprerne Court would be right to revive the nondelegation doctrine is that Congress has pei-uerse incentives to abdicate its legislative role and euade accountability through the use of delegations (either expressly delineated or implied through statutory imprecision), and that enforcement of the nondelegation doctrine would correct for those incentives. We call this the Field Of Dreams Theory-(f we build the nondelegation doctrine, Congress will legislate. Unlike originalist arguments for the revival Of the nondelegation doctrine, this theory has widespread appeal and Ls instrumental to the Court's project of gaining popular acceptance of a greater judicial role in policing congressional decisions regarding delegation. But Ls it true? In this Article, we comprehensively test the theory at the state level, using two original datasets: one comprising all laws passed by state legislatures and the other comprising all nondelegation decisions tri the state supreme courts. Using a variety of measures and methods, and in contrast with the one existing study on the subject, we do obserue at least some statistically measurable decrease in delegation, if only by cert tain measures. However, when put in context, these findings are underwhelming compared to the predictions of the Field of Dreams Theory. For instance, we observe that, even ii, here it exists. this effect is substantively small and on par with a number Qf other factors that influence delegation-our best estimate is that nondelegation cases explain about 1.5% of the variation in delegation. Moreouer, we also.jind some evidence that is directly contrary to the Field of Dreams Theory-that is, we Jind evidence that enforcement Of the nondelegation doctrine actually leads to more implied delegation in the jbrrn of vague and precatory statutory language. These findings haue direct relevance to contemporary debate and cases entertaining a reuitalization of the nondelegation doctrine in the federal courts. First, the findings that enforcement of the doctrine can prospectively decrease legislative delegation suggest that there maw be something to the Field of Dreams Theory, although that in turn raises the stakes of debates over whetherless delegation would actually be good for public welfare. Second, euen though there is an effect, the weakness of that effect, both in an absolute sense and relative to otherfactors, undermines the overblown clairns that the nondelegation doctrine could fundamentallu transform how government works. And finally, our finding that judicial decisions enforcing the nondelegation doctrine can sometimes lead to more implied delegation through imprecise statutory language suggests that there may be unintended consequences from giving the nondelegation doctrine a new lease on lue. [ABSTRACT FROM AUTHOR]

The article is aimed as a contribution to academic discourse on how to solve possible competence conflicts between constitutional or other highest courts of the EU Member States and the Court of Justice of the EU (CJEU). This discourse has rather recently received an extraordinary impetus when Federal Constitutional Court of Germany (FCC) handed down its judgment in Weiss. For the first time in its history, the FCC invoked the ultra vires doctrine against an EU act and a CJEU judgment. It is argued in the article that the final say in dealing with such competence conflicts should not and cannot rest with either the CJEU or individual national apex courts. The article supports the idea of establishing an EU-competence super-arbiter. However, it is stressed in this respect that the component members of whatever EU-competence super-arbiter to be established should always include the representatives of all EU Member States (although not necessarily only them) and the voting of such EU-competence super-arbiter should be based on the (absolute) majority of those of its component members that are the representatives of Member States. Otherwise, the collective competence-competence monopoly of the EU Member States in the EU would be breached too strongly. [ABSTRACT FROM AUTHOR]

A person's name distinguishes them from others and makes them unique. Due to its importance, the principle of the invariance of the name has been accepted as a rule in the Turkish Civil Code No. 4721 (TCC). However, a person can request the change of a name that they do not identify with from the court, only on the basis of valid reasons, pursuant to TCC art. 27. One of these valid reasons, which is frequently encountered in judicial decisions, is that the person is known by another name in their social life. Despite the fact that they are based on such a valid reason, which is generally accepted in the decisions included in this study, some name change requests of transsexuals were rejected by local courts as the issue was associated with gender reassignment, and the applicant then made individual applications to the Constitutional Court. Regarding these applications, the Constitutional Court decided that the right to respect for private life had been violated. The aim of this study is to examine the name change in light of these two recent decisions of the Constitutional Court. [ABSTRACT FROM AUTHOR]

Opponents of the administrative state have chosen doctrine, not legislation, as their preferred tool to restructure administrative governance in the United States. As a result, courts may soon decide that the nondelegation doctrine is insufficiently robust. While the justification for giving teeth to the nondelegation doctrine typically rests on trying to democratize the administrative state or to encourage Congress to speak more precisely, creating a robust nondelegation doctrine would, however, only empower the courts at Congress's expense. This Article argues that making a robust nondelegation doctrine would be an example of judicial self-aggrandizement. To explain why the Supreme Court would only be empowering itself, this Article describes judicial aggrandizement and argues that it is best understood as a type of institutional change motivated by ideas. Drawing on original research on William Howard Taft and his decision in J.W. Hampton, Jr., & Co. v. United States, this Article demonstrates that ideas about judicial empowerment structured the initial shifts from a separation-of-powers system into a separation-of-powers doctrine that courts must enforce. Taft successfully used Supreme Court decisions to aggrandize the Supreme Court and the judiciary as a whole. The same ideas continue to structure the courts' role in the constitutional system. Creating a robust nondelegation doctrine requires endorsing the same ideas and further entrenching the Supreme Court as the final arbiter over core questions of constitutional self-governance. A robust nondelegation doctrine would be yet another example of judicial self-aggrandizement. [ABSTRACT FROM AUTHOR]