The State of the Art of Child Hearings in Germany. Results of a Nationwide Representative Study in German Courts

According to German family law, in family court proceedings that deal with custody or access rights, family judges are obligated to personally hear the child if the feelings, ties, or will of the child are significant for the decision. In a research study commissioned by the Federal Ministry of Justice, a nationwide representative survey of all judges compiled their personal information and their attitudes and expectations as well as various parameters regarding the concrete practice of hearing children. Also, with a very complex methodological design, over 50 children and their parents were studied one week in advance of the hearing, directly before and after the hearing, and four weeks following the hearing. The results of the study are presented, particularly those pertaining to the burden and relief for the children and the expectations of judges. The practical experiences of family judges in personally hearing children are included as well.     

行政诉讼受案范围与原告资格关系之辨

在我国,行政法学理论与实务对行政诉讼受案范围与原告资格关系的认识存在混淆。就受案范围来说,从行为作出结果出发判断是否“实际影响权利义务”,从而界定行为属性的做法,既是循环论证,也是受案范围容易与原告资格混淆的根本原因。正确的逻辑应当是从构成要件出发判断行为属性,“实际影响权利义务”是一个行为属于行政行为之后的当然结果。就原告资格来说,相对人受到行政行为法律效果侵害,遵从行为不法的逻辑,受案范围满足即意味着原告资格的满足。其他利害关系人受到行政行为事实效果侵害,遵从结果不法的逻辑,原告资格判断需要另行从损害结果出发归责行为违法性。受案范围与原告资格纠缠形成的牵连性阶段体系表明,应当探索在终局行为前阶段构建定分止争制度。     

论认罪认罚案件量刑建议精准化

随着认罪认罚从宽制度的广泛适用,检察机关不断加大量刑建议精准化改革力度。量刑建议精准化改革在理论与实践两个维度备受争议,其原因在于控辩双方具结活动的形式化、“明显不当”标准的模糊化、检察机关工作内容的复杂化,以及控审机关沟通关系的紧张化。对此,破解之道在于科学地把握量刑建议精准化改革背后的公诉权力变化,以此为前提统筹采取应对策略,包括划定精准刑量刑建议的适用范围、明确精准刑量刑建议的主要标准、推进审前具结活动的实质改造、提升精准刑量刑建议的质量水平、健全量刑建议的调整方案等方面,由此才能真正提升量刑建议精准化改革的实务成效。     

The Open Architecture of European Human Rights Law

The evolution of the European human rights regime is often described as the development of an integrated order with the European Convention of Human Rights as its governing 'constitutional instrument'. It is argued that the regime is better regarded as pluralist - characterised by a heterarchical relationship between its constituent parts that is ultimately defined politically and not legally. The emergence and workings of this pluralist order are traced through the interaction of the European Court of Human Rights with domestic courts in the European Union. These cases not only show conflicts over questions of ultimate supremacy but also significant convergence and harmony in practice. The analysis of the factors leading to this convergence indicates that central characteristics of pluralism – incrementalism and the openness of ultimate authority – have contributed significantly to the generally smooth evolution of the European human rights regime. This suggests a broader appeal of pluralist models as alternatives to constitutionalism in the construction of postnational authority and law.     

The Strasbourg Court and Indirect Race Discrimination: Going Beyond the Education Domain

Prohibiting indirect discrimination has been hailed as guaranteeing substantive equality by addressing issues of structural discrimination and inequalities in a way that direct discrimination cannot and will not. However, Article 14, the ECHR's non‐discrimination provision, does not distinguish between direct and indirect discrimination. Only in 2007 the European Court of Human Rights explicitly included the notion of indirect (race) discrimination under Article 14 in DH and Others v Czech Republic, its famous judgment on Roma education segregation. Since then it has applied the prohibition of indirect race discrimination in a limited manner to similar education cases. However, in its recent Grand Chamber decision, Biao v Denmark, the Strasbourg Court started clarifying some unsolved issues in the distinction between direct and indirect discrimination in its case law and finally applied the concept to the much broader area of immigration and citizenship.     

THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD AND THE NEED FOR ITS INCORPORATION INTO A BILL OF RIGHTS

In this article I discuss the failure of most democratic countries to accept or properly implement the UN Convention on the Rights of the Child, despite, except in the case of the United States, having ratified it. I consider the domestic implementation of treaties. I discuss, from an Australian perspective, that country's failure to enact a Bill of Rights and argue that children in Australia have suffered as a result. I also discuss judicial approaches to international law and compare the situation in countries such as the United States, the United Kingdom, Canada, and New Zealand and suggest that even in those countries that do have a Bill of Rights, it is not oriented toward children and therefore does not properly recognize their rights.