This document provides supplemental submissions in the case of Julian Assange regarding his extradition to Sweden. It summarizes past European Court of Human Rights cases that found public prosecutors do not qualify as "officers authorized by law to exercise judicial power" as required by the European Convention on Human Rights, because they lack independence from the executive and parties. The submissions argue Swedish prosecutors similarly would not qualify based on the long-established case law outlined.
120612 appellant's application to re open judgment 12.6.12swedenversusassange
The appellant is applying to have the Supreme Court's judgment set aside and reopen the appeal. The majority decision was based primarily on interpreting the European Arrest Warrant framework decision in light of subsequent state practice, as required by the Vienna Convention on the Law of Treaties. However, this point was not argued during the appeal proceedings. The appellant argues he was denied a fair hearing as he had no opportunity to address the determinative issue. Reopening the appeal is necessary to correct this procedural unfairness and allow the appellant to argue his position on the applicability and effect of the Vienna Convention in this case.
Skeleton argument for the Appellant Julian Assange 110630swedenversusassange
The document outlines the chronology of events involving Julian Assange and allegations of sexual misconduct in Sweden between August and November 2010. It then presents 4 submissions arguing why the European Arrest Warrant issued for Assange's extradition to Sweden is invalid and his extradition should not be permitted. The key points made are that Swedish investigators violated procedures, the conduct alleged does not constitute extraditable offenses, and political motivations undermine the integrity of the proceedings.
Appeals under Code of Civil Procedure India, 1908Shantanu Basu
This document provides an overview of appeals in the Code of Civil Procedure, 1908 in India. It discusses the definition of an appeal, the procedure for first appeals and second appeals to higher courts under the CPC. It explains what constitutes a "substantial question of law" for purposes of a second appeal. It also discusses limitations on the powers of appellate courts, such as that the High Court cannot interfere with factual findings of the lower courts. The document classifies what types of issues would and would not constitute a "substantial question of law."
This document summarizes a court case in Sri Lanka regarding whether filing an appeal automatically stays the execution of a High Court judgment.
(1) The case involved a land dispute between two brothers that was determined by a Magistrate's Court and then revised by the High Court. The petitioner appealed the High Court's judgment to the Court of Appeal.
(2) There were conflicting views on whether an appeal automatically stays execution. The Court examined this issue and relevant precedents. It determined that under the Primary Courts Procedure Act, an appeal does not automatically stay execution of a High Court judgment issued in revision of a determination under the Act.
(3) The Court found the prior cases relied too heavily on applic
Decree and Order: The Code of Civil Procedure, 1908 by Mahamud Wazed,Mahamud Wazed (Wazii)
1. A decree is the final decision of a court regarding the rights of parties in a civil suit. It must be a conclusive determination expressed formally by the court.
2. There can be preliminary and final decrees. A preliminary decree requires further steps before fully disposing of the suit, while a final decree settles all issues.
3. Rejection of a plaint or determinations under section 144 are considered decrees. Dismissals for default are considered orders rather than decrees.
Challenge of an Arbitral Award - Impartiality of an Arbitrator and Improper C...Law Senate
This article discusses a specific ground, improper constitution of the arbitral tribunal, for challenge of an arbitral award in the Courts of the Lex Arbitri.
Decree and Order: The Code of Civil Procedure, 1908 for Bar council & Judicia...Mahamud Wazed (Wazii)
The document discusses the definitions and types of decrees and orders according to the Code of Civil Procedure, 1908. It defines a decree as the formal expression of an adjudication by a court determining the rights of parties regarding matters in controversy in a suit. A decree must be conclusive in nature. There are two types of decrees: preliminary and final. An order is defined as a formal expression of a court's decision that is not a decree. Key differences between decrees and orders are that decrees determine rights conclusively, there can only be one decree per suit, and all decrees are appealable unless expressly barred.
The document discusses the rules regarding the inventory and appraisal, allowances for the family, and a related case on these issues.
1) An executor or administrator must return an inventory and appraisal of the deceased's real and personal property within three months, excluding certain personal items for the surviving family.
2) During estate settlement, the widow and minor or incapacitated children shall receive allowances under the court's direction as provided by law.
3) In a related case, the court ruled that the guardianship court did not have authority to enforce payment of widow's allowance, as that power belongs to the court overseeing estate settlement.
120612 appellant's application to re open judgment 12.6.12swedenversusassange
The appellant is applying to have the Supreme Court's judgment set aside and reopen the appeal. The majority decision was based primarily on interpreting the European Arrest Warrant framework decision in light of subsequent state practice, as required by the Vienna Convention on the Law of Treaties. However, this point was not argued during the appeal proceedings. The appellant argues he was denied a fair hearing as he had no opportunity to address the determinative issue. Reopening the appeal is necessary to correct this procedural unfairness and allow the appellant to argue his position on the applicability and effect of the Vienna Convention in this case.
Skeleton argument for the Appellant Julian Assange 110630swedenversusassange
The document outlines the chronology of events involving Julian Assange and allegations of sexual misconduct in Sweden between August and November 2010. It then presents 4 submissions arguing why the European Arrest Warrant issued for Assange's extradition to Sweden is invalid and his extradition should not be permitted. The key points made are that Swedish investigators violated procedures, the conduct alleged does not constitute extraditable offenses, and political motivations undermine the integrity of the proceedings.
Appeals under Code of Civil Procedure India, 1908Shantanu Basu
This document provides an overview of appeals in the Code of Civil Procedure, 1908 in India. It discusses the definition of an appeal, the procedure for first appeals and second appeals to higher courts under the CPC. It explains what constitutes a "substantial question of law" for purposes of a second appeal. It also discusses limitations on the powers of appellate courts, such as that the High Court cannot interfere with factual findings of the lower courts. The document classifies what types of issues would and would not constitute a "substantial question of law."
This document summarizes a court case in Sri Lanka regarding whether filing an appeal automatically stays the execution of a High Court judgment.
(1) The case involved a land dispute between two brothers that was determined by a Magistrate's Court and then revised by the High Court. The petitioner appealed the High Court's judgment to the Court of Appeal.
(2) There were conflicting views on whether an appeal automatically stays execution. The Court examined this issue and relevant precedents. It determined that under the Primary Courts Procedure Act, an appeal does not automatically stay execution of a High Court judgment issued in revision of a determination under the Act.
(3) The Court found the prior cases relied too heavily on applic
Decree and Order: The Code of Civil Procedure, 1908 by Mahamud Wazed,Mahamud Wazed (Wazii)
1. A decree is the final decision of a court regarding the rights of parties in a civil suit. It must be a conclusive determination expressed formally by the court.
2. There can be preliminary and final decrees. A preliminary decree requires further steps before fully disposing of the suit, while a final decree settles all issues.
3. Rejection of a plaint or determinations under section 144 are considered decrees. Dismissals for default are considered orders rather than decrees.
Challenge of an Arbitral Award - Impartiality of an Arbitrator and Improper C...Law Senate
This article discusses a specific ground, improper constitution of the arbitral tribunal, for challenge of an arbitral award in the Courts of the Lex Arbitri.
Decree and Order: The Code of Civil Procedure, 1908 for Bar council & Judicia...Mahamud Wazed (Wazii)
The document discusses the definitions and types of decrees and orders according to the Code of Civil Procedure, 1908. It defines a decree as the formal expression of an adjudication by a court determining the rights of parties regarding matters in controversy in a suit. A decree must be conclusive in nature. There are two types of decrees: preliminary and final. An order is defined as a formal expression of a court's decision that is not a decree. Key differences between decrees and orders are that decrees determine rights conclusively, there can only be one decree per suit, and all decrees are appealable unless expressly barred.
The document discusses the rules regarding the inventory and appraisal, allowances for the family, and a related case on these issues.
1) An executor or administrator must return an inventory and appraisal of the deceased's real and personal property within three months, excluding certain personal items for the surviving family.
2) During estate settlement, the widow and minor or incapacitated children shall receive allowances under the court's direction as provided by law.
3) In a related case, the court ruled that the guardianship court did not have authority to enforce payment of widow's allowance, as that power belongs to the court overseeing estate settlement.
The European Court of Human Rights has established a right to assisted suicide under Article 8 of the European Convention on Human Rights, which protects private life. However, its legal basis for this right is questionable. While Article 2, the right to life, does not encompass a right to die, the Court has increasingly ignored Article 2 in assisted suicide cases. It has shifted the focus from the objective right to life to a subjective concept of quality of life and personal autonomy. This has diminished the view of life as an inalienable human right and supreme value, replacing it with a concept of human dignity based on self-determined ideals of identity. Critics argue the Court's use of human dignity as an interpretive tool is contestable given
This document provides an overview of civil procedure in India according to the Code of Civil Procedure 1908. It outlines the different types of civil courts and their jurisdiction based on claim amounts. It also describes the different types of processes issued by courts, such as summons, warrants, and notices. It discusses injunctions, stay orders, and writs that can be issued. It notes requirements for filing suits against the government and allows for second appeals in cases with substantial legal questions. Key terms like judgment and decree are also defined. Caveats filed in anticipation of orders are also summarized.
The document discusses the legal concept of res judicata. Res judicata, also known as claim preclusion, bars relitigation of claims or issues that have already been decided in a previous case involving the same parties. It aims to promote finality and consistency in judicial decisions and prevent wasted resources. There are two key aspects - claim preclusion, which prevents the same claim from being brought again, and issue preclusion, which prevents relitigation of issues already decided. For res judicata to apply, several factors must be met including identity of parties and issues.
This document summarizes the key Supreme Court of India judgments regarding the constitutionality of the death penalty in India. The court held that:
1) The death penalty is a constitutionally valid punishment under Indian law according to Articles 21 and 72 of the Constitution.
2) The death penalty prescribed in Section 302 of the Indian Penal Code does not violate Articles 19 or 21 of the Constitution, as deprivation of life is permitted if done according to due process of law.
3) It is not the court's role to lay down fixed standards for sentencing, as every criminal case is unique and standardization could result in injustice. The discretion of courts is a matter of legislative policy.
This document is a court ruling from the Court of Appeal of Sri Lanka regarding a land dispute case. It summarizes that the original ruling from the Provincial High Court set aside the magistrate's determination regarding the disputed land. However, the Court of Appeal found that the High Court's grounds for setting aside the determination were unsustainable. Specifically, the identity of the disputed land had been properly established and notices had been correctly posted. There was also evidence that a breach of peace had occurred. Therefore, the Court of Appeal allowed the appeal, set aside the High Court's judgment, and reinstated the magistrate's original order regarding the disputed land.
A law practitioner should know the following matter; What is law? Where is law? How to find out the law? Where you should go to find out the better remedy? How to read the law? Law should be read repeatedly. How to apply the law? And in order to practice the civil matter, a law practitioner should go through the following laws:
1. The Code of Civil Procedure.
2. Civil Rules and Orders.
3. Civil Suits Instruction Manual.
4. The Civil Court Act.
5. The Court Fees Act.
6. The Suit Valuation Act.
The document summarizes the Code of Civil Procedure, 1908 which establishes the laws relating to civil procedure in courts in India. Some key points:
- It consolidates and amends existing laws on civil procedure in Courts of Civil Judicature in India.
- It is divided into 11 Parts covering preliminary matters, suits in general, execution of decrees, incidental proceedings, suits in particular cases, special proceedings, supplemental proceedings, appeals, references and revisions.
- It defines important terms, establishes the subordination of courts, and provides for the jurisdiction and pecuniary limits of courts. It also contains savings for existing special laws and excludes some provisions for small cause courts.
This document summarizes key aspects of appeals under the Code of Civil Procedure (CPC) in India. It notes that:
1) The CPC does not define "appeal" but it is generally understood to be an application to a higher court asking to reverse a lower court's decision.
2) Section 96 of the CPC governs appeals from decrees of courts exercising original jurisdiction, except for appeals from High Court original side decrees which are governed by Letters Patent.
3) An appeal is allowed against any decree from a court of original jurisdiction, including ex-parte decrees, but not consent decrees. No appeal is allowed for petty cases unless a question of law arises.
This document summarizes a court case in Sri Lanka regarding the dismissal of a civil case.
The key details are:
1) The plaintiff filed a case seeking damages from the defendant. On a trial date, the plaintiff was present but his attorney was absent. The court refused the plaintiff's request for an adjournment and dismissed the case.
2) The plaintiff argued the dismissal was contrary to law and that the judge should have allowed the case to proceed instead of dismissing it.
3) The court found that since the plaintiff had an attorney, he could not represent himself or request an adjournment without the attorney present. The dismissal is therefore treated as an ex-parte order,
This order from a district court concerns a motion to dismiss or for summary judgment that has been filed in a civil case. As one of the defendants is representing himself without an attorney, the court directs the clerk to send him materials to explain summary judgment procedure and relevant extracts from Rules 12 and 56. The defendants have 34 days to respond to the motion. The order also provides guidance on the requirements for affidavits submitted in opposition to summary judgment.
The document discusses various types of jurisdiction of courts in Pakistan. It explains that civil courts have the jurisdiction to try all civil suits unless expressly barred. It classifies jurisdiction into four types - subject matter jurisdiction, pecuniary jurisdiction, territorial jurisdiction, and personal jurisdiction. It provides details on each type of jurisdiction and the rules regulating them. The document also discusses various absolute bars, conditional bars, and special bars upon the jurisdiction of civil courts in Pakistan.
This document summarizes amendments made to the Code of Civil Procedure of India through the Code of Civil Procedure (Amendment) Act of 2002. It amends sections 39, 64, 100A and 102 of the original Code to clarify the limits of a court's jurisdiction in executing decrees and restricts further appeals in certain cases. It also amends Orders V, VI and VII regarding service of summons, amendment of pleadings and procedures on admitting plaints.
These slides contain the introduction of the Civil Procedure Code and other important Sections, Orders and Rules. Associate and beginners of the law need knowhow about CPC and procedures of the courts.
The following presentation tends to explain the concept of Summary proceedings under the Civil Procedure Code in India.It elaborates on the suits to which this order applies and the procedure to be followed therein.
- The document discusses the process of summons under the Code of Civil Procedure, 1908 in Bangladesh. It defines a summons as a document used to inform a defendant of a legal proceeding requiring their presence.
- It explains that a summons provides important case details like the plaintiff and defendant names, court name and address, case number, and date the defendant must appear or respond. Failure to comply can result in a default judgment or penalties.
- The document outlines the specific sections of the Bangladesh Code of Civil Procedure regarding issuing summons to defendants, service of foreign summonses, ordering discovery, summoning witnesses, and penalties for non-compliance.
The document outlines the structure and process of a civil suit in Bangladeshi courts.
1. A suit is instituted by filing a plaint and summons are issued. The defendant must then file a written statement within 30 days.
2. The court may refer the parties to alternative dispute resolution and then frames the issues in the case.
3. Evidence is disclosed, witnesses examined, and hearings held. A peremptory or final hearing concludes the examination within 120 days if possible.
4. The court then pronounces judgment within 7 days, followed by a decree also within 7 days, allowing the winning party to seek execution of the decree.
Execution of unexecuted or compromised decreeCgemini
The document discusses the execution of compromised decrees under Indian law. It provides some key points:
1. Once a lawsuit or decree is compromised, the parties are barred from raising the same issue in court again or related issues from the same claim.
2. There are some exceptions where a compromised decree can still be executed - if the compromise was not properly recorded, if one party fulfilled their obligations but the other did not, or if there was a breach of the compromise agreement.
3. The validity of a consent decree depends on the validity of the compromise agreement it is based on. If a party can prove in court that there was no actual compromise, the court may reconsider the decree.
The Attorney General is the chief legal adviser to the government and is responsible for instituting legal proceedings on behalf of the government. Judges preside over trials in an impartial manner, determine facts and apply the law. They may also impose sentences in criminal cases. The Registrar administers the court and handles administrative duties such as maintaining records and corresponding on behalf of the court.
In summary, a defendant enjoys at least three important constituti.docxbradburgess22840
In summary, a defendant enjoys at least three important constitutional rights during the sentencing process: (1) the right not to be put twice in jeopardy; (2) the right to a sentence that conforms with the Eighth Amendment’s proscription against cruel and unusual punishment; and (3) the right to counsel at sentencing-related hearings, regardless of his or her ability to afford representation.
APPEALS and HABEAS CORPUS
1:APPEALS
An appeal occurs when an appellate court, such as one of the federal courts of appeal, examines a lower court’s decision in order to determine whether the proper procedure was followed or the correct law was applied. In other words, when a defendant appeals, he or she is claiming that the court made an error. Thus, the appeal guarantees that a defendant who is found guilty can challenge his or her conviction. Further, the appeal442443guarantees that another judge or panel of judges, disconnected from the initial trial, will make the relevant decision.
Although appealing convictions is an important part of the criminal process, the Supreme Court has never held that doing so is constitutionally permissible. That is, nowhere does the U.S. Constitution specify that a certain number of appeals will be granted to each convicted criminal. InMcKane v. Durston (153 U.S. 684 [1894]), the Supreme Court stated, “A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law” (p. 687).
Most appeals are posttrial in nature and filed by the defense, which is why this topic is being discussed at the end of this book. However, in some situations, the defense appeals a court’s decision, such as on a motion to suppress evidence, during the trial. And in some instances, the prosecution can even file an appeal. Thus, this chapter will consider three types of appeals: (1) appeals by the defense prior to adjudication; (2) appeals by the defense after adjudication; and (3) appeals by the prosecution. First, however, it is important to review the common types of appeals and their consequences and the important Supreme Court cases dealing with the appellate process (i.e., the procedures courts are required to follow).■ Types and Effects of Appeals
Despite the Supreme Court’s view that appealing one’s conviction is not constitutionally guaranteed, every state and the federal government each has rules providing a certain number of appeals to a convicted criminal. At both the state and federal levels, a convicted criminal is usually granted at least one appeal of right, also known as a direct appeal, and at least one discretionary appeal.
An appeal of right, or a direct appeal, is automatically granted to the defendant by law. That is, an appeal of right must be heard by an appellate court. It is not up to the appellate court to decide whether to hear such an appeal. By contrast, the appellate .
Section 321 of the Indian Code of Criminal Procedure allows the public prosecutor conducting a case to withdraw from prosecution with the court's permission. This effectively stops the prosecution of the case. Key points:
- Withdrawal must be approved by the central/state government for certain serious offenses.
- It results in the accused being discharged if before charging, or acquitted if after. This bars retrial.
- Withdrawal relies on the prosecutor alone, while composition under Section 320 requires both parties' consent.
- The prosecutor must apply their mind independently and not be influenced when seeking withdrawal.
- Withdrawal is intended to further public justice, peace, security or prevent false prosecutions.
A Fool For A Client Remarks On The Freedom Of Choice And Assignment Of Cou...Todd Turner
1) The document discusses the issue of an accused's freedom to choose their own counsel or represent themselves before the International Criminal Tribunal for the former Yugoslavia (ICTY).
2) It summarizes a key 2003 decision by an ICTY trial chamber that refused to assign counsel against the wishes of Slobodan Milosevic, citing his right to self-representation under the ICTY statute and common law tradition.
3) The trial chamber argued that imposing counsel on an unwilling defendant would be contrary to adversarial criminal justice traditions and deprive the accused of putting forward their own defense.
The European Court of Human Rights has established a right to assisted suicide under Article 8 of the European Convention on Human Rights, which protects private life. However, its legal basis for this right is questionable. While Article 2, the right to life, does not encompass a right to die, the Court has increasingly ignored Article 2 in assisted suicide cases. It has shifted the focus from the objective right to life to a subjective concept of quality of life and personal autonomy. This has diminished the view of life as an inalienable human right and supreme value, replacing it with a concept of human dignity based on self-determined ideals of identity. Critics argue the Court's use of human dignity as an interpretive tool is contestable given
This document provides an overview of civil procedure in India according to the Code of Civil Procedure 1908. It outlines the different types of civil courts and their jurisdiction based on claim amounts. It also describes the different types of processes issued by courts, such as summons, warrants, and notices. It discusses injunctions, stay orders, and writs that can be issued. It notes requirements for filing suits against the government and allows for second appeals in cases with substantial legal questions. Key terms like judgment and decree are also defined. Caveats filed in anticipation of orders are also summarized.
The document discusses the legal concept of res judicata. Res judicata, also known as claim preclusion, bars relitigation of claims or issues that have already been decided in a previous case involving the same parties. It aims to promote finality and consistency in judicial decisions and prevent wasted resources. There are two key aspects - claim preclusion, which prevents the same claim from being brought again, and issue preclusion, which prevents relitigation of issues already decided. For res judicata to apply, several factors must be met including identity of parties and issues.
This document summarizes the key Supreme Court of India judgments regarding the constitutionality of the death penalty in India. The court held that:
1) The death penalty is a constitutionally valid punishment under Indian law according to Articles 21 and 72 of the Constitution.
2) The death penalty prescribed in Section 302 of the Indian Penal Code does not violate Articles 19 or 21 of the Constitution, as deprivation of life is permitted if done according to due process of law.
3) It is not the court's role to lay down fixed standards for sentencing, as every criminal case is unique and standardization could result in injustice. The discretion of courts is a matter of legislative policy.
This document is a court ruling from the Court of Appeal of Sri Lanka regarding a land dispute case. It summarizes that the original ruling from the Provincial High Court set aside the magistrate's determination regarding the disputed land. However, the Court of Appeal found that the High Court's grounds for setting aside the determination were unsustainable. Specifically, the identity of the disputed land had been properly established and notices had been correctly posted. There was also evidence that a breach of peace had occurred. Therefore, the Court of Appeal allowed the appeal, set aside the High Court's judgment, and reinstated the magistrate's original order regarding the disputed land.
A law practitioner should know the following matter; What is law? Where is law? How to find out the law? Where you should go to find out the better remedy? How to read the law? Law should be read repeatedly. How to apply the law? And in order to practice the civil matter, a law practitioner should go through the following laws:
1. The Code of Civil Procedure.
2. Civil Rules and Orders.
3. Civil Suits Instruction Manual.
4. The Civil Court Act.
5. The Court Fees Act.
6. The Suit Valuation Act.
The document summarizes the Code of Civil Procedure, 1908 which establishes the laws relating to civil procedure in courts in India. Some key points:
- It consolidates and amends existing laws on civil procedure in Courts of Civil Judicature in India.
- It is divided into 11 Parts covering preliminary matters, suits in general, execution of decrees, incidental proceedings, suits in particular cases, special proceedings, supplemental proceedings, appeals, references and revisions.
- It defines important terms, establishes the subordination of courts, and provides for the jurisdiction and pecuniary limits of courts. It also contains savings for existing special laws and excludes some provisions for small cause courts.
This document summarizes key aspects of appeals under the Code of Civil Procedure (CPC) in India. It notes that:
1) The CPC does not define "appeal" but it is generally understood to be an application to a higher court asking to reverse a lower court's decision.
2) Section 96 of the CPC governs appeals from decrees of courts exercising original jurisdiction, except for appeals from High Court original side decrees which are governed by Letters Patent.
3) An appeal is allowed against any decree from a court of original jurisdiction, including ex-parte decrees, but not consent decrees. No appeal is allowed for petty cases unless a question of law arises.
This document summarizes a court case in Sri Lanka regarding the dismissal of a civil case.
The key details are:
1) The plaintiff filed a case seeking damages from the defendant. On a trial date, the plaintiff was present but his attorney was absent. The court refused the plaintiff's request for an adjournment and dismissed the case.
2) The plaintiff argued the dismissal was contrary to law and that the judge should have allowed the case to proceed instead of dismissing it.
3) The court found that since the plaintiff had an attorney, he could not represent himself or request an adjournment without the attorney present. The dismissal is therefore treated as an ex-parte order,
This order from a district court concerns a motion to dismiss or for summary judgment that has been filed in a civil case. As one of the defendants is representing himself without an attorney, the court directs the clerk to send him materials to explain summary judgment procedure and relevant extracts from Rules 12 and 56. The defendants have 34 days to respond to the motion. The order also provides guidance on the requirements for affidavits submitted in opposition to summary judgment.
The document discusses various types of jurisdiction of courts in Pakistan. It explains that civil courts have the jurisdiction to try all civil suits unless expressly barred. It classifies jurisdiction into four types - subject matter jurisdiction, pecuniary jurisdiction, territorial jurisdiction, and personal jurisdiction. It provides details on each type of jurisdiction and the rules regulating them. The document also discusses various absolute bars, conditional bars, and special bars upon the jurisdiction of civil courts in Pakistan.
This document summarizes amendments made to the Code of Civil Procedure of India through the Code of Civil Procedure (Amendment) Act of 2002. It amends sections 39, 64, 100A and 102 of the original Code to clarify the limits of a court's jurisdiction in executing decrees and restricts further appeals in certain cases. It also amends Orders V, VI and VII regarding service of summons, amendment of pleadings and procedures on admitting plaints.
These slides contain the introduction of the Civil Procedure Code and other important Sections, Orders and Rules. Associate and beginners of the law need knowhow about CPC and procedures of the courts.
The following presentation tends to explain the concept of Summary proceedings under the Civil Procedure Code in India.It elaborates on the suits to which this order applies and the procedure to be followed therein.
- The document discusses the process of summons under the Code of Civil Procedure, 1908 in Bangladesh. It defines a summons as a document used to inform a defendant of a legal proceeding requiring their presence.
- It explains that a summons provides important case details like the plaintiff and defendant names, court name and address, case number, and date the defendant must appear or respond. Failure to comply can result in a default judgment or penalties.
- The document outlines the specific sections of the Bangladesh Code of Civil Procedure regarding issuing summons to defendants, service of foreign summonses, ordering discovery, summoning witnesses, and penalties for non-compliance.
The document outlines the structure and process of a civil suit in Bangladeshi courts.
1. A suit is instituted by filing a plaint and summons are issued. The defendant must then file a written statement within 30 days.
2. The court may refer the parties to alternative dispute resolution and then frames the issues in the case.
3. Evidence is disclosed, witnesses examined, and hearings held. A peremptory or final hearing concludes the examination within 120 days if possible.
4. The court then pronounces judgment within 7 days, followed by a decree also within 7 days, allowing the winning party to seek execution of the decree.
Execution of unexecuted or compromised decreeCgemini
The document discusses the execution of compromised decrees under Indian law. It provides some key points:
1. Once a lawsuit or decree is compromised, the parties are barred from raising the same issue in court again or related issues from the same claim.
2. There are some exceptions where a compromised decree can still be executed - if the compromise was not properly recorded, if one party fulfilled their obligations but the other did not, or if there was a breach of the compromise agreement.
3. The validity of a consent decree depends on the validity of the compromise agreement it is based on. If a party can prove in court that there was no actual compromise, the court may reconsider the decree.
The Attorney General is the chief legal adviser to the government and is responsible for instituting legal proceedings on behalf of the government. Judges preside over trials in an impartial manner, determine facts and apply the law. They may also impose sentences in criminal cases. The Registrar administers the court and handles administrative duties such as maintaining records and corresponding on behalf of the court.
In summary, a defendant enjoys at least three important constituti.docxbradburgess22840
In summary, a defendant enjoys at least three important constitutional rights during the sentencing process: (1) the right not to be put twice in jeopardy; (2) the right to a sentence that conforms with the Eighth Amendment’s proscription against cruel and unusual punishment; and (3) the right to counsel at sentencing-related hearings, regardless of his or her ability to afford representation.
APPEALS and HABEAS CORPUS
1:APPEALS
An appeal occurs when an appellate court, such as one of the federal courts of appeal, examines a lower court’s decision in order to determine whether the proper procedure was followed or the correct law was applied. In other words, when a defendant appeals, he or she is claiming that the court made an error. Thus, the appeal guarantees that a defendant who is found guilty can challenge his or her conviction. Further, the appeal442443guarantees that another judge or panel of judges, disconnected from the initial trial, will make the relevant decision.
Although appealing convictions is an important part of the criminal process, the Supreme Court has never held that doing so is constitutionally permissible. That is, nowhere does the U.S. Constitution specify that a certain number of appeals will be granted to each convicted criminal. InMcKane v. Durston (153 U.S. 684 [1894]), the Supreme Court stated, “A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law” (p. 687).
Most appeals are posttrial in nature and filed by the defense, which is why this topic is being discussed at the end of this book. However, in some situations, the defense appeals a court’s decision, such as on a motion to suppress evidence, during the trial. And in some instances, the prosecution can even file an appeal. Thus, this chapter will consider three types of appeals: (1) appeals by the defense prior to adjudication; (2) appeals by the defense after adjudication; and (3) appeals by the prosecution. First, however, it is important to review the common types of appeals and their consequences and the important Supreme Court cases dealing with the appellate process (i.e., the procedures courts are required to follow).■ Types and Effects of Appeals
Despite the Supreme Court’s view that appealing one’s conviction is not constitutionally guaranteed, every state and the federal government each has rules providing a certain number of appeals to a convicted criminal. At both the state and federal levels, a convicted criminal is usually granted at least one appeal of right, also known as a direct appeal, and at least one discretionary appeal.
An appeal of right, or a direct appeal, is automatically granted to the defendant by law. That is, an appeal of right must be heard by an appellate court. It is not up to the appellate court to decide whether to hear such an appeal. By contrast, the appellate .
Section 321 of the Indian Code of Criminal Procedure allows the public prosecutor conducting a case to withdraw from prosecution with the court's permission. This effectively stops the prosecution of the case. Key points:
- Withdrawal must be approved by the central/state government for certain serious offenses.
- It results in the accused being discharged if before charging, or acquitted if after. This bars retrial.
- Withdrawal relies on the prosecutor alone, while composition under Section 320 requires both parties' consent.
- The prosecutor must apply their mind independently and not be influenced when seeking withdrawal.
- Withdrawal is intended to further public justice, peace, security or prevent false prosecutions.
A Fool For A Client Remarks On The Freedom Of Choice And Assignment Of Cou...Todd Turner
1) The document discusses the issue of an accused's freedom to choose their own counsel or represent themselves before the International Criminal Tribunal for the former Yugoslavia (ICTY).
2) It summarizes a key 2003 decision by an ICTY trial chamber that refused to assign counsel against the wishes of Slobodan Milosevic, citing his right to self-representation under the ICTY statute and common law tradition.
3) The trial chamber argued that imposing counsel on an unwilling defendant would be contrary to adversarial criminal justice traditions and deprive the accused of putting forward their own defense.
This document discusses procedures related to minor offenses or "faltas" under Venezuelan law. It describes the special procedural process for faltas which involves a hearing where the accused can admit responsibility or request a trial. It notes that the official aware of the falta files a request indicating the details of the offense. If the accused admits culpability and no other evidence is needed, the court will issue a ruling, otherwise a trial will be called. Any pre-trial measures must be proportional to the falta charged.
KAEDAH-KAEDAH ANGKATAN TENTERA (MAHKAMAH TENTERA) 1976FAROUQ
This document contains the Armed Forces (Court-Martial) Rules of Procedure 1976 which outline the procedures for courts-martial in the Malaysian Armed Forces. Some key points:
- It establishes the procedures for courts-martial, including convening courts, charges, investigations of offences, trials, findings, sentencing and appeals.
- Courts-martial have jurisdiction to try any Armed Forces personnel for offences under the Armed Forces Act and to determine appropriate punishments.
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Case Analysis Outline Adapted from William Ellet, The Case.docxjasoninnes20
Case Analysis Outline
Adapted from William Ellet, The Case Study Handbook: How to Read, Discuss, and Write Persuasively About Cases (Harvard Business School Press)
I. Situation (need to know in order to ask the right questions)
II. Questions
1. What’s the problem?
2. What are the decision options?
3. Who or what is being evaluated?
a. What’s at stake?
b. What’s the most important criteria for this sort of evaluation?
III. Hypothesis
1. Tentative explanation that accounts for the set of facts/situation
2. Can be tested by further investigation
3. Which do you have most confidence in?
4. Your Arguments
5. Expresses WHY
IV. Position
1. Expresses a conclusion
2. Answers WHAT
V. Proof & Action
1. Prove something, not look for something to prove
a. Supporting evidence for your position
b. Persuade
2. Action Plan
a. HOW would you implement the decision you’re recommending?
i. Short-term
ii. Long-term
b. What are the risks?
i. Discuss main risk & measures to manage
VI. Alternatives
1. Every position has a weakness
a. What’s the strongest alternative to your position?
i. Problem
1. Can you define the problem differently?
ii. Decision
1. What’s the biggest downside to your recommended decision?
iii. Evaluation
1. What’s another way to evaluate your overall assessment?
b. What’s the weakest alternative to your position?
i. Brief statement (1-2 lines)
VII. Conclusion
******
THE SPECIAL COURTS
FROM: Ingo Müller, Hitler’s Justice: The Courts of the Third Reich, trans. Deborah Lucas Schneider (Cambridge/MA, 1991), 152-159.
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Judicial review is a process that allows courts to review administrative decisions and determine their legality. It differs from an appeal, which considers the merits of the decision rather than just its legality. There are three main grounds for judicial review: illegality, irrationality, and procedural impropriety. The procedure for judicial review involves applying for leave from the High Court and then a full hearing if leave is granted. If successful, remedies include prerogative orders like mandamus, prohibition, and certiorari that compel or prevent actions or quash decisions.
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Rule 73 - Settlement Of Estate Of Deceased PersonsVinz Savando
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3) Courts have powers to compel attendance of witnesses and carry out orders related to estate settlement.
4) A person will be presumed
[Forensics] topic law and legal proceduresMuhammad Ahmad
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This document opposes Julian Assange's application to reopen his case regarding the interpretation of "judicial authority" in the Framework Decision. It argues that [1] the Supreme Court properly considered state practice in understanding this term, regardless of the Vienna Convention; [2] both parties had the opportunity to address state practice during the original hearing; and [3] the majority's decision relied on reasons beyond state practice that would be unaffected by reopening the case to address the Vienna Convention. Therefore, reopening is unnecessary and the application should be dismissed.
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2) Procedures for filing applications for interlocutory appeals and considerations for single justices in approving them.
3) Rules regarding nolle prosequi dismissals by prosecutors, including implications for jeopardy and partial dismissals of certain charges.
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Civil contempt of court refers to disobeying a court order in a civil proceeding, such as failure to pay court-ordered child support. It is distinct from criminal contempt. Sanctions for civil contempt aim to compel compliance with the court order or resolve the underlying case, and typically end when the party complies or the case concludes. Those held in civil contempt have fewer constitutional rights than in criminal contempt cases and can be jailed indefinitely until complying with the order.
Similar to Supplementary skeleton argument submitted by the Appellant Julian Assange 110722 (20)
Goran Rudling's description of finding the deleted evidence (deleted tweets) of AA relating to Julian Assange. The statement was submitted to the UK Magistrate's court in the February 2011 hearing on extradition to Sweden.
Assange Investigation in Sweden: Material obtained via Freedom of Information request. Email traffic between Swedish prosecutor's office, including Marianne Ny, Erika Lejnefors, with UK CPS (Crown Prosecution Service), and with Assange's lawyers Bjorn Hurtig, and subsequently, Per Samuelson and Thomas Olsson.
- Assange investigation (Sweden) SMS Marianne Ny and Lejnefors with Bjorn Hur...swedenversusassange
Original SMS messages obtained via Freedom of Information Act requests between the Swedish Porsecutor,Marianne Ny, and her ddeputy prosecutor in the Assange Investigation (Erika Lejnefors), the police officer in charge of questioning (Mats Gelin), and Assange's then lawyer, Bjorn Hurtig. The SMS traffic spans months from September 2010-January 2011 and document efforts by Julian Assange's lawyer, Bjorn Hurtig, to establish a date in which the prosecutor will agree to question Assange. They also show that Hurtig had difficulties in conveying information to his client. It is rather surprising for the reader that such important steps will have been taken over SMS, rather than via more formal communications. To make matters worse, the communications by the prosecutor were also made via phone calls and voicemail, as well as email. This makes the traffic difficult to track.
The document criticizes a report by Transparency International Sweden on political corruption. It alleges that TIS and its researchers have failed to properly study Swedish political culture and practices, relying too heavily on global surveys. It argues their methodology is flawed and the report's conclusions are unreliable and contradicted by important studies they failed to consider. The document suggests political corruption is systemic in Sweden, especially regarding how civil servants implement policy regardless of laws. It aims to illustrate how TIS report is an example of this type of "vertical political corruption" in Sweden.
Supplementary skeleton argument submitted by the Appellant Julian Assange 110722
1. IN THE HIGH COURT OF JUSTICE Case No: CO/1925/2011
ADMINISTRATIVE COURT
BETWEEN:
IN THE MATTER of an appeal pursuant to section 26 of the Extradition Act 2003.
JULIAN PAUL ASSANGE
Appellant
v
SWEDISH PROSECUTION AUTHORITY
Respondent
_____________________________________________
SUPPLEMENTAL SUBMISSIONS
ON BEHALF OF THE APPELLANT
_____________________________________________
1.1 During the course of the hearing, the Court requested further submissions upon
the status of the ECtHR case of Skoogstrom v Sweden (1984) 6 EHRR CD77,
where it was held that a Swedish prosecutor could not be “a judge or other officer
authorised by law to exercise judicial power” for the purpose of Article 5(3) of the
Convention, because she lacked the essential quality of independence
(Appellant’s Skeleton Argument, para. 6.11).
1.2 Art 5(3) provides that;
“…Everyone arrested or detained in accordance with the provisions of paragraph
1.c of this article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial….”
1.3 Skoogstrom is part of a long-established and consistent line of Strasbourg
authority to the effect that public prosecutors, or those subordinate to public
prosecutors, are not “officer[s] authorised by law to exercise judicial power”
within the meaning of Article 5(3).
1
2. 1.4 In Schiesser v Switzerland (1979-80) 2 EHRR 417, a defendant’s detention was
authorised by a District Attorney who acted in certain cases as a prosecuting
authority and was subordinate to the Public Prosecutor's Office. The Court ruled
that:
“…31 …the "officer" is not identical with the "judge" but must nevertheless have some
of the latter's attributes, that is to say he must satisfy certain conditions each of
which constitutes a guarantee for the person arrested. The first of such conditions
is independence of the executive and of the parties…
34. …the Court emphasises that in the present case the District Attorney intervened
exclusively in his capacity as an investigating authority, that is in considering
whether Mr. Schiesser should be charged and detained on remand and,
subsequently, in conducting enquiries with an obligation to be equally thorough
in gathering evidence in his favour and evidence against him (Article 31 StPO).
He did not assume the mantle of prosecutor: he neither drew up the indictment
nor represented the prosecuting authorities before the trial court (see paragraph
11 above). He therefore did not exercise concurrent investigating and prosecuting
functions, with the result that the Court is not called upon to determine whether
the converse situation would have been in conformity with Article 5 para. 3…”.
1.5 Skoogstrom was one of the very first cases to follow and apply Schiesser. Having
set out the Schiesser principles (at para. 74), the Commission held that:
“…76. The Commission observes that the public prosecution forms part of the Executive
in the traditional sense of that concept. However, this fact alone does not mean
that the Public Prosecutor is not independent for the purposes of Art 5 (3). It is
true that the Swedish Public Prosecutors have a personal independence as they
can never receive instructions from any public authority when deciding in a
particular case…
77. However, in order to possess the necessary independence, the "officer" envisaged
by Art. 5 (3) must also be independent of the parties. In this respect, the
Commission recalls that the tasks of the Public Prosecutor are inter alia to make
preliminary criminal investigations, to decide whether or not prosecution should
be instituted, to draw up the indictment and to perform the prosecution in the
courts. In addition, the Public Prosecutor has power to provisionally detain a
person who is reasonably suspected of having committed an offence. It is noted
that in general all these tasks are performed by the same prosecutor, and in case a
prosecutor is for some reasons substituted by another prosecutor, then the
substitute takes full responsibility of the case. There is thus no question of a
distinction between investigating and prosecuting authority. Furthermore, the
organisation of the prosecuting functions in Sweden is a hierarchical system,
where a superior prosecutor may give general directives to lower prosecutors,
take over their cases and review their decisions. It therefore appears that a
prosecutor is subject to constant supervision by his superior, although the
superior may not order the subordinate prosecutor to take a particular decision in
an individual case.
2
3. 78. …When Mrs M had to take the decision on the applicant's continued detention
she had replaced the Chief District Prosecutor completely, and had taken full
command of the whole case of the applicant, which in principle thus included the
continued preliminary investigation, the decision as to whether prosecution
should be instituted against the applicant, and subsequently the task of
performing the prosecution in court. However, in taking full charge of the
applicant's case Mrs M did, as the Court put it in the Schiesser Case, "assume the
mantle of prosecutor"…In the opinion of the Commission the circumstances of
the present case show that when taking the decision on the applicant's continued
detention Mrs M was not independent of the parties. She was one of the parties,
and could have been called upon to continue to perform tasks, which are
undeniably tasks of a prosecutor. The fact that Mrs M did not herself perform the
subsequent prosecution in court, could not retroactively make her independent of
the parties at the time when she took the detention decision. It was a mere
coincidence that all the tasks were not performed by the same prosecutor…
79. Accordingly, the Commission is of the opinion that the Public Prosecutor who
decided that the applicant's provisional detention should continue, did not fulfil
the requirement of independence…”.
1.6 In a series of linked cases (De Jong v The Netherlands (1986) 8 EHRR 20;
Pauwels v Belgium (1989) 11 EHRR 238; Van der Sluijs v The Netherlands
(1991) 13 EHRR 461), the Court applied the principles in Schiesser to find that
Commanding Officers (auditeur-militair) lacked the requisite independence
because they were capable of acting as prosecutor in the same cause;
“…Although independent of the military authorities, the same auditeur-militair
could be called upon to perform the function of prosecuting authority after
referral of the case to the Military Court…He would thereby become a
committed party to any criminal proceedings subsequently brought against the
serviceman on whose detention he was advising prior to referral for trial. In sum,
the auditeur-militair could not be "independent of the parties" (see the extract
from the Schiesser judgment quoted above at paragraph 47) at this preliminary
stage precisely because he was liable to become one of the parties at the next
stage of the procedure…” (De Jong, para 49. See also Pauwels, para. 38;
Van der Sluijs, para. 44).
1.7 The position was no different from that which pertained once the defendant’s case
was referred for trial and the auditeur-militair then then did perform the function
of prosecuting authority before the Military Court;
“…The auditeur-militair was thus a committed party to the criminal proceedings
being conducted against the detained serviceman on whose possible release he
was empowered to decide. In sum, the auditeur-militair could not be
"independent of the parties"(see the extract from the Schiesser judgment quoted
above at paragraph 32) precisely because he was one of the parties.
Consequently, the procedure followed before the auditeur-militair in Mr. Duijf's
case did not satisfy the requirements of Article 5 § 3…” (Duinhof v The
3
4. Netherlands (1991) 13 EHRR 478, para. 38; Pauwels v Belgium (supra),
para. 38)
1.8 In Huber v Switzerland (1990) ECHR App. No. 12794/87, 23rd Oct., the
defendant’s detention was authorised by a District Attorney (independent of the
executive) who acted as the prosecutor in the case (drawing up the indictment)
albeit not assuming the role of prosecuting counsel in the trial court (although he
could have done so as a matter of Swiss law). The European Court held that the
Attorney could not qualify as an officer authorised by law to exercise judicial
power because he;
“…could not be "independent of the parties" at that preliminary stage precisely
because he was "liable" to become one of the parties at the next stage in the
procedure….” (at paras. 42-43).
1.9 The Strasbourg jurisprudence since has consistently applied this fundamental
premise. See;
Brincat v Italy (1993) 16 EHRR 591. Public prosecutor authorising the
defendant’s detention and performing the preliminary investigation, whilst
independent of the executive, was not independent of the parties and
therefore not an officer authorised by law to exercise judicial power
(paras. 19-21).
Assenov v Bulgaria (1999) 28 EHRR 652. Investigator authorising the
defendant’s detention was institutionally independent but subject to the
control of the public prosecutor. Investigator was therefore not
independent of the parties and therefore not an officer authorised by law to
exercise judicial power (paras. 144-148). Moreover, the prosecutor (who
approved the investigator’s decision) was also not independent of the
parties and therefore not an officer authorised by law to exercise judicial
power (para. 149).
Nikolova v Bulgaria (2001) 31 EHRR 3. Investigator authorising the
defendant’s detention was institutionally independent but subject to the
control of the public prosecutor. Investigator was therefore not
independent of the parties and therefore not an officer authorised by law to
exercise judicial power (paras. 45-51). Moreover, the prosecutor (who
approved the investigator’s decision) was also not independent of the
parties and therefore not an officer authorised by law to exercise judicial
power (para. 51).
4
5. Niedbala v Poland (2001) 33 EHRR 48. Prosecutor performing
investigating and prosecuting functions was not independent of the parties
and therefore not an officer authorised by law to exercise judicial power
(paras. 48-56). The fact that prosecutors, in addition to exercising a
prosecutorial role, also act as guardian of the public interest, cannot be
regarded as conferring on them a judicial status (para. 53).
In H.B. v Switzerland (2003) 37 EHRR 52, the European Court went so
far as to apply this line of authority to hold that an investigating judge,
who, on the facts of that particular case, acted under the instructions of the
prosecutor’s office and who could refer the case to trial (effectively
drawing up the bill of indictment which will provide the framework for the
facts and their legal qualification within which the District Court then
conducts its trial), was not independent of the parties and therefore not an
officer authorised by law to exercise judicial power (paras. 51-63).
Shishkov v Bulgaria (2003) ECHR App. No. 38822/97, 9th Jan. Assistant
investigator authorising the defendant’s detention was institutionally
independent but subject to the control of the public prosecutor. Neither
investigator nor prosecutor were independent of the parties and therefore
not officers authorised by law to exercise judicial power (paras. 51-54).
Klamecki (No. 2) v Poland (2004) 39 EHRR 7. Prosecutor performing
investigating and prosecuting functions was not independent of the parties
and therefore not an officer authorised by law to exercise judicial power
(paras. 105-106). The fact that prosecutors, in addition to exercising a
prosecutorial role, also act as guardian of the public interest, cannot be
regarded as conferring on them a judicial status (para. 105).
Pantea v Romania (2005) 40 EHRR 26. Prosecutor intervened initially at
the investigation stage, examining whether it was necessary to charge the
applicant, directing that criminal proceedings should be opened against
him and taking the decision to place him in pre-trial detention. He
subsequently acted as a prosecuting authority, formally charging the
applicant and drawing up the indictment on which the latter was
committed for trial. However, he did not act as prosecuting counsel before
this court (although this would have been possible under Romanian law).
Prosecutor not independent of the executive and therefore not an officer
authorised by law to exercise judicial power (paras. 228-229 & 236-239).
Jasinski v Poland (2005) ECHR App. No. 30865/96, 20th Dec. Prosecutor
performing investigating and prosecuting functions was not independent
of the parties and therefore not an officer authorised by law to exercise
judicial power (paras. 46-47). The fact that prosecutors, in addition to
exercising a prosecutorial role, also act as guardian of the public interest,
cannot be regarded as conferring on them a judicial status (para. 46).
5
6. Zlinsat, Spol. S.R.O. v Bulgaria (2006) ECHR App. No. 57785/00, 15th
June. Article 5(3) case law applied to Article 6(1); prosecutor’s office not
an independent and impartial tribunal (paras. 74-79).
Balbul v Turkey (2007) ECHR App. No. 47297/99, 22nd May. Military
Judge, subordinate to the army - the prosecutor in the case, was not
independent of the parties and therefore not an officer authorised by law to
exercise judicial power (paras. 20-24).
Garlicki v Poland (2011) ECHR App. No. 36921/07, 14th June. Assessor,
subordinate to the Prosecutor-General who had sought to orchestrate the
proceedings against the defendant, was not independent of the parties and
therefore not an officer authorised by law to exercise judicial power
(paras. 106-116).
1.10 In the Grand Chamber decision in Medvedev v France (2010) ECHR App. No.
3394/03, 29th March, defendants were arrested in international waters and
detained on board their ship, on the authority of the public prosecutor, for 13 days
whilst it was towed to France, whereupon they were brought before an
investigating judge. The applicants argued that;
“110. …their detention on the ship had not been under the supervision of a “judge or
other officer authorised by law to exercise judicial power” but under that of the
public prosecutor, who was not such an officer according to the Court's case-law
(Schiesser v. Switzerland, 4 December 1979, Series A no. 34; Huber v.
Switzerland, 23 October 1990, Series A no. 188; and Brincat v. Italy,
26 November 1992, Series A no. 249-A), in particular because of his lack of
independence vis-à-vis the executive…”
1.11 The French government argued that;
“114 …Concerning the characteristics and powers of the officer concerned, the
Government maintained that although the Court had found that a public
prosecutor or other judicial officer appearing for the prosecution could not be
considered a “judge” for the purposes of Article 5 § 3 (see Huber, cited above),
the same could not be said of an investigating judge. Investigating judges were
fully independent judges whose job was to seek evidence both for and against the
accused party, without participating in the prosecution or the judgment of the
cases they investigated. In France the investigating judge supervised all custodial
measures taken in the cases under his responsibility – be it police custody or
detention pending trial – and could terminate them at any time. Although he had
to apply to the liberties and detention judge when contemplating remanding a
suspect in custody, he had full power to release people or place them under court
supervision. The Government pointed out that the Court had already ruled that
the investigating judge fulfilled the conditions laid down in Article 5 § 3 (A.C. v.
France (dec.), no. 37547/97, 14 December 1999)…
6
7. 116. Lastly, the Government considered that the public prosecutor was a legal
authority independent of the executive, and that his supervision while the Winner
was rerouted to Brest had provided the protection against arbitrariness which
Article 5 of the Convention was meant to guarantee.
1.12 The Court did not hold that the prosecutor was an officer authorised by law to
exercise judicial power within the meaning of Article 5(3). Indeed, it plainly
could not have done consistently within the Court’s consistent case law. Instead,
the Grand Chamber held that the investigating magistrate fulfilled the role of a
“judge or other officer authorised by law to exercise judicial power” in Article
5(3) and held that the delay in bringing the applicants before the investigating
magistrate was reasonable in the circumstances;
“123. Since Article 5 § 1 (c) forms a whole with Article 5 § 3, “competent legal
authority” in paragraph 1 (c) is a synonym, of abbreviated form, for “judge or
other officer authorised by law to exercise judicial power” in paragraph 3 (see,
amongst other authorities, Lawless v. Ireland, 1 July 1978, Series A, no. 3, and
Schiesser v. Switzerland, cited above, § 29).
124. The judicial officer must offer the requisite guarantees of independence from the
executive and the parties, which precludes his subsequent intervention in
criminal proceedings on behalf of the prosecuting authority, and he or she must
have the power to order release, after hearing the individual and reviewing the
lawfulness of, and justification for, the arrest and detention (see, amongst many
other authorities Assenov and Others v. Bulgaria, judgment of 28 October 1998,
§§ 146 and 149, Reports 1998-VIII).
127. The Court notes that the arrest and detention of the applicants began with the
interception of the ship on the high seas on 13 June 2002. The applicants were
not placed in police custody until 26 June 2002, after arriving in Brest…
128. The fact remains that the applicants were not brought before the investigating
judges – who may certainly be described as “judge[s] or other officer[s]
authorised by law to exercise judicial power” within the meaning of Article 5 § 3
of the Convention – until thirteen days after their arrest.
130. The Court observes, however, that it did accept, in the Rigopoulos decision (cited
above)…that a period of sixteen days was not incompatible with the notion of
“promptness” required under Article 5 § 3 of the Convention, in view of the
existence of “wholly exceptional circumstances” that justified such a delay….
131. In the present case the Court notes that at the time of its interception the Winner
was also on the high seas, off the coast of the Cape Verde islands, and therefore a
long way from the French coast, comparable to the distance in the Rigopoulos
case. There was nothing to indicate that it took any longer than necessary to
escort it to France, particularly in view of the weather conditions and the poor
state of repair of the Winner, which made it impossible for it to travel any faster.
In addition, the applicants did not claim that they could have been handed over to
the authorities of a country nearer than France, where they could have been
brought promptly before a judicial authority…”
7
8. 1.13 Thus, as submitted during the course of the hearing, Skoogstrom is one link in a
long-established and consistent line of Strasbourg authority to the effect that
public prosecutors, or those subordinate to public prosecutors, are not “officer[s]
authorised by law to exercise judicial power” within the meaning of Article 5(3).
Friday, 22 July 2011
Ben Emmerson QC
Mark Summers
Matrix Chambers
London, WC1R 5LN
8