Useful Words and Expressions for Speech Practice
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to convict осуждать, признавать виновным, выносить приговор to be convicted быть осужденным, быть признанным виновным в чем-либо, быть приговоренным convict отбывающий наказание (преступник), осужденный, заключенный; каторжник to impose a sentence выносить приговор enforcement принудительное применение; правоприменение; принудительное проведение в жизнь; принуждение к выполнению требований order приказ, приказание, распоряжение, предписание enforcement order постановление; исполнительный лист to be tried in absentia быть судимым заочно (in absentia лат. — в отсутствие) Prosecutor's office прокуратура official counsel официальный адвокат/защитник to extradite выдавать (арестованного другому государству), экстрадировать to serve smb with smth вручать что-либо кому-либо legal classification юридическая классификация charge (s) against smb обвинение (я) против кого-либо pertinent articles соответствующие статьи criminal proceedings судебное разбирательство to give ground to давать повод кому-либо case file материалы дела the wording редакция; форма выражения, формулировка provision положение, условие (договора и т.п.); постановление

FACTS

(a) Study the text below, making sure you fully comprehend it:

The applicant was convicted in absentia in Italy and sentenced to life imprisonment. The prosecutor's office subsequently issued an enforcement order, ordering the applicant's arrest and appointing official counsel for him. The applicant was arrested in Greece and extradited to Italy. On his arrival in Italy, the authorities served him with a copy of the enforcement order. As the applicant was a Yemeni national, an interpreter was instructed to interpret the content of the document into Arabic for him. The document stated the day of the judgment by which the applicant had been found guilty, the sentence imposed and the legal classification of the charges, and referred to the pertinent articles of the Criminal Code and the other relevant texts. The applicant complained that there was no written translation into Arabic of the enforcement order and applied unsuccessfully to have it set aside. He argued that he had been unable to understand the content of the order served to him, and had thus been unaware of his rights in Italy, which had deprived him of the option of applying for a reopening of the criminal proceedings.

Notes:

sentence приговор, осуждение, обвинительное заключение; наказание, мера наказания; выносить приговор, приговаривать
to find guilty признать виновным
interpreter переводчик (устный)
to interpret переводить (устно)
relevant (texts) релевантный, соответствующий
to have smth set aside юр. отменять, аннулировать
to argue аргументировать, приводить доводы, доказывать, утверждать
to be aware знать, осознавать, отдавать себе отчет
to deprive smb of smth отбирать, отнимать, лишать
option выбор, альтернатива, вариант; право выбора, свобода выбора
to instruct информировать, сообщать; знакомить с материалами дела, поручать (адвокату) ведение дела
judgment судебное разбирательство, процесс; приговор, решение, заключение суда

 

(b) Read the text again and copy the sentences that mean the following:

(1) Заявитель в Италии был заочно осужден и приговорен к пожизненному тюремному заключению.

(2) В соответствии с этим прокуратура вынесла постановление с приказом об аресте просителя и о назначении ему официального адвоката.

(3) Заявитель был арестован в Греции и экстрадирован в Италию.

(4) Когда он прибыл в Италию, власти вручили ему копию постановления.

(5) Поскольку заявитель являлся гражданином Йемена, переводчику было поручено перевести содержание документа на арабский язык специально для него.

(6) В документе сообщалось о дате судебного разбирательства, которое признало его виновным, о вынесенном приговоре, о юридической классификации предъявленных ему обвинений и содержались ссылки на соответствующие статьи уголовного кодекса и другие относящиеся к делу юридические документы.

(7) Заявитель жаловался на отсутствие письменного перевода постановления на арабский язык и безуспешно ходатайствовал о его отмене.

(8) Он аргументировал это тем, что был не в состоянии понять содержание предъявленного ему постановления и, следовательно, не был осведомлен о своих правах в Италии, что лишило его возможности обратиться с просьбой о возобновлении уголовного расследования.

(c) Translate the following sentences into English:

(1) Гражданин Йемена был приговорен к пожизненному заключению в Италии.

(2) Заявитель жаловался на отсутствие письменного перевода постановления на арабский язык.

(3) Власти вручили ему копию постановления суда.

(4) Это лишило его возможности обратиться с просьбой о возобновлении уголовного расследования.

(5) В документе сообщалось о дате судебного разбирательства.

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY
    OF THE TEXT:

1. What is the case about?

2. What is the applicant in the case in question?

3. What problem did he encounter under the situation in question?

4. What did the applicant complain of?

5. What were his arguments?

6. What do you think about the situation?

WHAT DOES THE LAW SAY?

(d) Study the text below, making sure you fully comprehend it:

Inadmissible under article 6(3)(a) and (b)

The Court pointed out that Article 6(3)(e) did not go so far as to require a written translation of any documentary evidence or official paper from the case file, and noted that the wording of the provision in question referred to an «interpreter» rather than a «translator». This gave ground to consider that oral linguistic assistance could satisfy the Convention's requirements. Nevertheless, the interpretation provided was to be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put his version of events to the court.

In the present case, since the applicant has been untraceable at the time of his trial, he had learned of the accusations against him when he was served with the enforcement order. On that occasion he had been assisted, free of charge, by an Arabic interpreter. There was no evidence that the latter's interpretation had been or otherwise ineffective. Indeed, the applicant had not challenged the quality of the interpretation, which could have led the authorities to believe that he had understood the content of the document in issue.

Notes:

admissible 1) позволительный, возможный, допустимый, приемлемый; юрид. 2) имеющий право быть принятым
inadmissible недопустимый, неприемлемый; не имеющий права быть принятым
issue предмет тяжбы; проблема, составляющая предмет рассмотрения
translator переводчик (выполняющий перевод письменно)
in question данный
notably 1) исключительно, особенно, в особенности, больше всего 2) весьма, заметно, очень, сильно

(e) Copy the sentences that mean the following:

(1) Суд указал, что в статье не содержится требование о необходимости письменного перевода каких-либо документов из материалов дела.

(2) Это дало основание считать, что устная лингвистическая помощь соответствует требованиям Конвенции.

(3) Суд отметил, что в этой редакции данного положения содержится ссылка скорее на устного, а не на письменного переводчика.

(4) Предоставленный перевод должен был дать возможность обвиняемому ознакомиться с делом и защищаться.

(5) Заявитель не высказывал претензий в отношении качества перевода, что, вероятно, привело к тому, что власти считали, что он понял содержание документа, являющегося предметом рассмотрения.

 

(f) Translate the following sentences into English.

(1) Он мог защищаться, особенно потому, что имел возможность изложить свою версию событий в суде.

(2) Не было никаких признаков того, что его перевод является безрезультатным.

(3) Поскольку заявитель оказался недоступным во время проведения суда, он узнал об обвинениях против него лишь тогда, когда ему вручили постановление.

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY OF THE TEXT:

1. What did Article 6 say about?

2. What were the main provisions of the Article?

3. What kind of linguistic assistance was offered to the defendant?

4. Was the defendant satisfied with the interpretation?

5. What did the defendant complain about?

6. What is the opinion of the Civil Rights European Court?

CONCLUSION

(g) Study the text below, making sure you fully comprehend it:

Through the information contained in that document, the applicant had received, in a language he understood, sufficient information concerning the charges against him and the penalty imposed. He could then have consulted his officially-appointed counsel, whose name had been cited in the document, with a view to ascertaining the steps to be taken in order to appeal against the conviction and to prepare his defense in relation to the offences with TAS which he had been charged.

Thus, even supposing that Article 6 was applicable to proceedings to set aside the serving of an enforcement order, the application was in any event manifestly ill-founded.

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY
    OF THE TEXT:

1. What are the main issues of the conclusion?

2. In what way did the EC qualify the defendant's application?

3. What is your opinion of the situation?

(h) Copy the sentences that mean the following.

(1) Благодаря информации, содержащейся в этом документе, проситель получил на языке, который он понимает, достаточно информации, касающейся выдвинутых против него обвинений и назначенного наказания.

(2) В то время он имел возможность посоветоваться с официально назначенным ему адвокатом, имя которого было обозначено в документе с тем, чтобы установить (определить) шаги, которые необходимо предпринять для того, чтобы опротестовать приговор и подготовить свою защиту в отношении преступлений, в которых его обвинили.

(3) Следовательно, даже если предположить, что статья 6 применима к делу об аннулировании вручения решения суда, в любом случае заявление было явно необоснованным.

(i) Copy the sentences, containing the following participles functioning as attributes. Translate them into Russian:

· information contained in that document

· information concerning the charges against him

· penalty imposed

· officially-appointed counsel

(j) Translate the following Russian sentences into English paying attention to the translation of Participle I and the Infinitive. Make use of the corresponding English version from the box.

concerning the charges steps to be taken in order to appeal to prepare his defense supposing that proceedings to set aside the serving

(1) Проситель получил достаточно информации, касающейся выдвинутых против него обвинений.

(2) Он имел возможность определить шаги, которые необходимо предпринять.

(3) Это было необходимо, чтобы опротестовать приговор.

(4) Даже если предположить, что статья 6 здесь применима, заявление плохо аргументировано.

(5) Эта статья не относится к процедуре аннулирования решения суда.

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY
    OF THE TEXT:

1. What are the main issues of the conclusion?

2. In what way did the EC qualify the defendant's application?

3. What is your opinion of the situation?

 

Case III. RIGHT TO RESPECT FOR ONE'S PRIVATE LIFE

COUNCIL OF EUROPE. EUROPEAN COURT OF HUMAN RIGHTS. Information note № 95 on the case-law of the Court, March 2007, Pages 18—19.

FACTS

(a) Study the text below, making sure you fully comprehend it:

A woman was attacked and her handbag stolen. The police arrested A.M. and took him into custody. Under the Code of Criminal Procedure (the CCP) a District Court judge ordered the surveillance and recording of calls made on the applicant's mobile telephone. A.B., a girlfriend of A.M., arranged to meet the applicant. She was fitted by the police with a listening device hidden under her clothing. In the course of their recorded conversation, this applicant admitted that he had organized the robbery with A.M. The police dismissed the applicants request to exclude the recording of the conversation from the case file, noting that it had been made in accordance with the law and with the consent of A.B. The City Court found the applicant and A.M. guilty of robbery and sentenced them to nine years imprisonment, whilst they protested their innocence. The court based its judgment on various testimony and documents, but one of the most important items of written evidence was the list of the telephone calls on the mobile phones of the two defendants. A transcription of the conversation between A.B. and the applicant was described as crucial evidence but was not the sole evidence against them. In response to the applicant's plea that this evidence was unlawful, the court observed that A.B. had consented to the fitting of the listening devices and that, under the CCP, anything capable of shedding light on a criminal case could be used in evidence. The High Court dismissed appeals against the judgment at the first instance, confirming that the previous findings were correct. The applicant also lodged a constitutional appeal, arguing that the production of the recording of his conversation with A.B. and its use as evidence, incriminating the applicant before he had been notified of any charge, had breached articles 6 and 8 of the Convention. The telephone company informed A.M. that the list of telephone calls had been produced at the request of the authorities in connection with a criminal investigation, under a provision of the CCP. It further referred to the provision from the Telecommunications Act. The Constitutional Court dismissed the applicant's appeal, holding, among other considerations, that the courts have convicted him on the basis of various evidence which had been lawfully obtained and assessed. As to the use of the listening and recording device hidden on A.B., the Constitutional Court agreed with the High Court that it was not a prohibited measure under the CCP. It considered, however, that the recording should not have been used in evidence in the criminal proceedings, but that it did not render unconstitutional the decisions adopted in those proceedings as the applicant's conviction had been based on a number of items of evidence. The Court declared manifestly ill-founded a constitutional appeal by A.M.

 

Notes:

applicant проситель, ходатай, податель петиции; заявитель
surveillance надзор, наблюдение (за подозреваемым в чем-либо)
listening device прослушивающее устройство
case file материалы дела
transcription запись
findings полученные данные, добытые сведения
to incriminate инкриминировать, обвинять в преступлении (in), возлагать вину
to breach нарушать (закон, моральные или материальные обязательства и т.п.)
plea заявление, сделанное в суде одной из сторон
to shed light проливать свет на (что-либо)

(b) Read the text again and copy the sentences that mean the following:

(1) Полиция арестовала А. М. и взяла его под стражу.

(2) Судья районного суда распорядился вести надзор за подозреваемым и записывать его переговоры по мобильному телефону.

(3) Полиция установила подслушивающее устройство под одеждой подружки А.М.

(4) Этот проситель признался, что он организовал это ограбление вместе с А.М.

(5) Городской суд признал просителя и A.M. виновными в ограблении и приговорил их к девяти годам тюремного заключения.

(c) Give Russian equivalents of the following sentences:

(1) The court based its judgment on various testimony and documents, but one of the most important items of written evidence was the list of the telephone calls on the mobile phones of the two defendants.

(2) In response to the applicant's plea that this evidence was unlawful, the court observed that A.B. had consented to the fitting of the listening devices and that, under the CCP, anything capable of shedding light on a criminal case could be used in evidence.

(3) The High Court dismissed appeals against the judgment at the first instance, confirming that the previous findings were correct.

(4) The applicant also lodged a constitutional appeal, arguing that the production of the recording of his conversation with A.B. and its use as evidence, incriminating the applicant before he had been notified of any charge, had breached articles 6 and 8 of the Convention.

(5) The telephone company informed A.M. that the list of telephone calls had been produced at the request of the authorities in connection with a criminal investigation, under a provision of the CCP.

(d) Fill in the gaps with appropriate words:

The Constitutional Court dismissed_____  applicant's appeal, holding, among_____ considerations, that the courts_____ convicted him on the_____ of various evidence which_____ been lawfully obtained and_____ As to the use._____ the listening and recording_____ hidden on A.B., the_____ Court agreed with the_____ Court that it was_____ a prohibited measure under_____ CCP. It considered, however, that_____ recording should not have_____ used in evidence in_____ criminal proceedings, but that_____ did not render unconstitutional_____ decisions adopted in those_____ as the applicant's conviction_____ been based on a_____ of items of evidence_____ Court declared manifestly ill-founded_____ constitutional appeal by A.M.

(e) Match the English expressions with their Russian equivalents in the table:

(1) to notify of a charge (2) under a provision of (3) the Code of Criminal Procedure (the CCP) (4) item of written evidence (5) to dismiss a request (6) in response to (7) to lodge a constitutional appeal (8) in connection with (9) to adopt a decision (10) ill-founded (a) отдельный предмет письменных доказательств (b) принять решение (c) подать апелляцию в соответствии с конституцией (d) уведомлять о предъявляемом обвинении (e) безосновательный,  необоснованный (f) отклонять просьбу (g) по/согласно положению, постановлению (h) в ответ на (i) кодекс, свод законов (государства) об уголовном процессе (j) в связи с чем-либо

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY OF THE TEXT:

1. How many persons are involved in the case as a defendant party?

2. How many persons committed the crime?

3. Where did the convicts apeal the Court's decision?

4. What did the convicts protest?

5. What was the High Court's decision?

6. What do you think the law says on the case?

LAW AND RELEVANT ARTICLES QUOTATIONS

(f) Study the text below, making sure you fully comprehend it:

Article 8. The use of the extract from the list of the telephone calls as evidence in the criminal proceedings had interfered with the applicant's right to respect for his private life. The interception and recording of the telephone conversations had been ordered by the district court judge under the CCP and the list of calls in question had been produced at the request of the police in accordance with provisions of the CCP and of the Telecommunications Act. However, the relevant provisions had not yet entered into force at the material time. It followed that the interference observed had not been in accordance with the law.

Conclusion: violation.

Notes

extract выдержка, извлечение, фрагмент
to interfere служить препятствием, мешать, быть помехой (with)
interception перехватывание; перехват; прослушивание (напр., телефонных разговоров); перехваченная информация, подслушанный разговор
the point in question данный / рассматриваемый вопрос
relevant имеющий отношение к чему-либо
to enter into force вступать в силу
at the material time вещественный, материальный; material world: физический, противоп. духовному

(g) Read the text again and copy the sentences that mean the following:

(1) Прослушивание и запись телефонных разговоров проводились по приказу районного судьи согласно уголовно-процессуальному законодательству.

(2) Список указанных телефонных звонков был предоставлен на основании требования полиции и в соответствии с положениями уголовно-процессуального кодекса и закона о телекоммуникациях.

(3) Однако, положения, о которых идет речь, в то время еще не вошли в силу.

(h) Give Russian equivalents of the following sentences:

(1) The use of the extract from the list of the telephone calls as evidence in the criminal proceedings had interfered with the applicant's right to respect for his private life.

(2) It followed that the interference observed had not been in accordance with the law.

(3) Conclusion: violation.

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY OF THE TEXT:

1. Why was the use of the extract from the list of the telephone calls as evidence wrong?

2. Why was producing of the list of calls in question at the request of the police legal?

3. Why was the interference observed not in accordance with the law?

(i) Study the text below, making sure you fully comprehend it:

The recording of a conversation using a device fitted under a person's clothing by the police authorities and its subsequent use had also interfered with the applicant's rights. The domestic authorities had not been clear as to the legal basis on which the recording had been made. The measure had not been governed by the law satisfying the criteria laid down by the Court's case law, but rather by a practice which could not be regarded as a specific legal basis setting forth sufficiently precise conditions for such interference as regards the admissibility, scope, control and use of the information thus collected.

Conclusion: violation.

Notes:

subsequent более поздний, последующий, следующий; являющийся результатом
domestic authorities местные власти
case law прецедентное право
precise conditions точно установленные, отдельно взятые; точные; определенные обстоятельства, условия
as regards что касается, в отношении
admissibility допустимость (напр., доказательств)
scope границы, рамки, пределы

(j) Fill in the blanks with the appropriate words from the text:

The domestic authorities_____ not been clear____ to the legal____ on which the______ had been made____ measure had not___ governed by the_____ satisfying the criteria_____ down by the_____ case law, but______ by a practice_____. could not be_____ as a specific_____ basis setting forth_______ precise conditions for_____ interference as regards____ admissibility, scope, control____use of the_____ thus collected.

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY OF THE TEXT:

1. What does the law say about using a device fitted under a person's clothing by the police authorities?

2. What was the measure rather governed by?

3. Why could practice not be regarded as a specific legal basis setting forth sufficiently precise conditions for such interference?

 

(k) Study the text below, making sure you fully comprehend it:

Article 6. The applicant had been able to submit to the first-instance court, then to the High Court and to the Constitutional Court, all the observations deemed necessary concerning the recording made without his knowledge. The same arguments were valid as regards the use in evidence of the chronological list of telephone calls. The applicant had been convicted under adversarial proceedings. Moreover, the impugned recording and list had contributed, and had even been crucial, to the preparation of the City Court's judgment, but it had not been the sole evidence on which the court had based its inner conviction. As regards the weight of the public interest in the use of such evidence to obtain the applicant's conviction, the measure had been taken against a person who had committed a serious offence to the detriment of a third party and who had ultimately received a nine-year prison sentence. Accordingly, the use by the domestic courts of the impugned recording and the list of telephone calls had not infringed the applicant's right to a fair trial.

Conclusion: no violation.

Article 41. Non-pecuniary damage: the finding of violations was sufficient.

Notes:

to submit представлять на рассмотрение
to deem думать, мыслить, полагать, размышлять, считать
valid действительный, имеющий силу; правомерный
adversarial соперничающий; противостоящий (друг другу)
adversary proceedings судопроизводство по спору между сторонами; состязательный процесс
impugn оспаривать, опровергать; ставить под сомнение, подвергать сомнению
to the detriment of в ущерб чему-либо
non-pecuniary damage (невыражаемый в деньгах, неисчисляемый деньгами) неденежные/ое убытки/возмещение убытков

(l) Translate the following sentences into Russian:

(1) The applicant had been able to submit to the first-instance court, then to the High Court and to the Constitutional Court, all the observations deemed necessary concerning the recording made without his knowledge.

(2) Moreover, the impugned recording and list had contributed, and had even been crucial, to the preparation of the City Court's judgment, but it had not been the sole evidence on which the court had based its inner conviction.

(3) Accordingly, the use by the domestic courts of the impugned recording and the list of telephone calls had not infringed the applicant's right to a fair trial.

(m) Give English equivalents to the following sentences:

(1) Те же доводы правомерны в отношении использования хронологического списка телефонных разговоров в качестве улики.

(2) Заявитель был осужден в условиях состязательного процесса.

(3) Эта мера была предпринята против человека, который совершил серьезное преступление с ущербом для третьей стороны и который в конечном счете был приговорен к 9 годам тюремного заключения.

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY
    OF THE TEXT:

1. What is Case III about?

2. What kind of and how many offences had been heard in courts?

3. Which of the court or judge measures were qualified as «violation»? Why?

4. Which of the court or judge measures were qualified as «no violation»? Why?

5. What was the European Court of Human Rights final decision?

6. What is your opinion about what had happened?

7. What do you think about the European Court's conclusion?

8. What would be your final judgment if you were an EC judge?

 

Case IV. PRESUMPTION OF GUILT

COUNCIL OF EUROPE. EUROPEAN COURT OF HUMAN RIGHTS. Information note № 95 on the case-law of the Court, March 2007, Pages 17—18.

FACTS

(a) Study the text below, making sure you fully comprehend it:

In May 1998 the applicant was convicted of numerous counts of theft, burglary and attempted burglary, deliberately handling stolen goods, and membership of a criminal gang and sentenced to five years' imprisonment. The judgment was later quashed on appeal and the applicant acquitted of all the charges against him except for the theft of a lorry and trailer and handling. He was sentenced to 36 months' imprisonment, part of which was suspended. However, despite having already acquitted the applicant of most of the charges, in March 2001 the Court of Appeal issued a confiscation order — amounting to roughly the equivalent of EUR 67,000 or 490 days' detention in defaultin respect of all the offences of which he had originally been convicted. It justified its decision by saying that there were strong indications that he had committed the offences. An appeal by the applicant to the Supreme Court was ultimately rejected. In 2004, he reached an agreement with the authorities allowing him to pay EUR 10,000 immediately and the remainder in monthly installments.

 

Notes:

count пункт обвинительного акта или искового заявления
detention задержание, арест; содержание под арестом,
default неявка в суд
to justify оправдывать; находить оправдание; извинять; объяснять
handling перемещение; транспортировка
to quash аннулировать, отменять
to acquit оправдывать (of)
to suspend приостанавливать; откладывать; (временно) прекращать
installment частичный взнос; часть

(b) Read the text again and copy the sentences that mean the following:

(1) В мае 1998 г. заявитель был приговорен к тюремному заключению сроком на пять лет за многократные кражи, кражи со взломом, попытки краж со взломом, осознанную транспортировку украденного, участие в преступных группировках.

(2) Решение суда было впоследствии аннулировано в результате апелляции, подсудимый оправдан по всем пунктам предъявленных ему обвинений, за исключением обвинения в хищении грузовика и трейлера и их использовании в качестве транспортного средства для различных перевозок.

(3) Однако в марте 2001 г. апелляционный суд выдал ордер на конфискацию на сумму, по грубым подсчетам, равную примерно EUR 67 000 или 490 дней содержания в тюрьме после отбывания срока заключения в отношении всех преступлений, за которые он был первоначально осужден.

(c) Give Russian equivalents to the following sentences:

(1) He was sentenced to 36 months' imprisonment, part of which was suspended.

(2) The Court justified its decision by saying that there were strong indications that he had committed the offences.

(3) An appeal by the applicant to the Supreme Court was ultimately rejected.

(4) In 2004, he reached an agreement with the authorities allowing him to pay EUR 10,000 immediately and the remainder in monthly installments.

(d) Match the English expressions with their Russian equivalents in the table:

(1) presumption of innocence (2) confiscation order (3) reach an agreement with (4) in detention (5) confiscation proceedings   (a) в заключении (b) договориться с кем-либо о чем-либо (c) работа, деятельность по конфискации чего-либо (d) презумпция невиновности (e) ордер, разрешение на конфискацию, отчуждение

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY
    OF THE TEXT:

1. What events are described in this text?

2. What do you think the law says about it?

LAW AND RELEVANT ARTICLES QUOTATIONS

(e) Study the text below, making sure you fully comprehend it:

LAW. The applicant's case was distinguished from a number of earlier cases in which the Court had been prepared to consider confiscation proceedings following on from a conviction as part of the sentencing process and therefore beyond the scope of Article 6 (2). The features common to those cases were that the applicants have been convicted of drugs offences; that they continued to be suspected of additional drugs offences and demonstrably held assets whose provenance could not be established; that these assets were reasonably presumed to have been obtained through illegal activity; and that the applicants had failed to provide a satisfactory alternative explanation. There were, however, two different features to the instant case: firstly, the applicant had never been shown to hold any assets whose provenance he could not adequately explain, as the court of appeal's finding on this issue was based on conjectural extrapolation contained in a police report. «Confiscation» following on from a conviction was inappropriate for assets which were not known to have been in the possession of the person concerned, especially if it related to a criminal act of which that person has not actually been found guilty. If it was not found beyond reasonable doubt that the person concerned had actually committed the crime, and if it could not be established as fact that any advantage, illegal or otherwise, had actually been obtained, such a measure could only be based on a presumption of guilt. Secondly, the confiscation order related to the very crimes of which the applicant had in fact been acquitted. Article 6 (2) embodied a general rule which did not allow even the voicing of suspicions regarding an accused's innocence once an acquittal was final. Since the court of appeal's finding went beyond the voicing of mere suspicion, the applicant's guilt had been determined without his having been «found guilty according to law».

Conclusion: violation.

Article 41. Reserved: it being unclear how many installments the applicant had paid under the confiscation order.

Notes:

asset имущество
provenance происхождение, источник
to presume предполагать, полагать; допускать; считать доказанным

(f) Read the text again and copy the sentences that mean the following:

(1) Дело заявителя отличается от целого ряда более ранних дел, в которых Суд был готов рассматривать вопрос о конфискации имущества.

(2) Однако в данном деле было два отличия.

(3) Во первых, так и не было показано, что заявитель обладал имуществом, происхождение которого он не мог адекватно объяснить.

(4) «Конфискация» вследствие осуждения подсудимого неприменима в отношении имущества, владение которым со стороны данного лица не установлено.

(5) Во-вторых, ордер на конфискацию имеет отношение к тем самым преступлениям, по которым заявитель был оправдан.

(g) Give Russian equivalents to the following sentences:

1) The applicant's case was distinguished from a number of earlier cases in which the Court had been prepared to consider confiscation proceedings following on from a conviction as part of the sentencing process and therefore beyond the scope of Article 6 (2). 2) The features common to those cases were that the applicants have been convicted of drugs offences; that they continued to be suspected of additional drugs offences and demonstrably held assets whose provenance could not be established; 3) If it was not found beyond reasonable doubt that the person concerned had actually committed the crime, and if it could not be established as fact that any advantage, illegal or otherwise, had actually been obtained, such a measure could only be based on a presumption of guilt. 4) Since the court of appeal's finding went beyond the voicing of mere suspicion, the applicant's guilt had been determined without his having been «found guilty according to law».

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY
    OF THE TEXT:

1. What is case IV about?

2. What kind of and how many offences had been heard in courts?

3. Which of the court or judge measures were qualified as «violation»? Why?

4. Which of the court or judge measures were qualified as «no violation»? Why?

5. What was the European Court of Human Rights final decision?

6. What is your opinion about what had happened?

7. What do you think about the European Court's conclusion?

8. What would be your final judgment if you were an EC judge?

Case V. INHUMAN OR DEGRADING TREATMENT

COUNCIL OF EUROPE. EUROPEAN COURT OF HUMAN RIGHTS. Information note № 95 on the case-law of the Court, March 2007, Pages 8—9.

 

FACTS. HANDCUFFED IN PUBLIC

(a) Study the text below, making sure you fully comprehend it:

The applicant, who had been employed as a doctor by the Istanbul security police for 15 years, was arrested by police officers in the car-park outside his workplace. He was handcuffed in public and subsequently exposed in handcuffs in front of his family and neighbours when searches were carried out at his home and place of work. He was then held at police custody at his workplace, where staff could see him handcuffed, but was not informed of the charges against him. Two days after his release a psychiatrist diagnosed him as suffering from traumatic shock and certified him unfit for work for 20 days. His sick leave was extended several times on account of acute depression. The applicant had filed a complaint and was informed that he had been interrogated in connection with a criminal investigation because of his relations with suspects. He was suspended from his duties until the close of the criminal investigation. The prosecuting authorities discontinued the case against the applicant. He was reinstated in his post but was unable to work on account of aggravated psychosomatic symptoms. He was retired early on health grounds and has been treated several times in a hospital neuropsychiatry department.

Notes:

prosecuting authorities прокуратура
to discontinue прекращать дело, приостанавливать процесс судопроизводства (по какому-либо делу)
to reinstate восстанавливать (в прежнем положении, в правах; in, to)
to aggravate отягчать, усугублять; ухудшать; обострять, углублять, усиливать
on health grounds по причине плохого здоровья, (основание, мотив)
disorder нарушение, расстройство (какой-либо функции организма)
unfit for work нетрудоспособный
sick leave отпуск/освобождение от работы/ по болезни; больничный лист
acute depression острое угнетенное состояние, уныние; упадок сил; депрессия

 

(b) Read the text again and copy the sentences that meaen the following:

(1) Ему несколько раз продлевали больничный лист по причине острой депрессии.

(2) Заявитель направил жалобу и ему сообщили, что его допрашивали в связи с уголовным расследованием, поскольку он имел отношение к подозреваемым.

(3) Его отстранили от исполнения служебных обязанностей до завершения уголовного расследования.

(4) Прокуратура прекратила дело против заявителя.

(5) Он был восстановлен в должности, но не смог работать по причине обострения психосоматических симптомов.

(6) Он рано ушел на пенсию в связи с ухудшением здоровья и несколько раз лечился в невропсихиатрическом отделении больницы.

(c) Give Russian equivalents to the following sentences:

The applicant, who had been employed as a doctor by the Istanbul security police for 15 years, was arrested by police officers in the car-park outside his workplace. He was handcuffed in public and subsequently exposed in handcuffs in front of his family and neighbours when searches were carried out at his home and place of work. He was then held at police custody at his workplace, where staff could see him handcuffed, but was not informed of the charges against him. Two days after his release a psychiatrist diagnosed him as suffering from traumatic shock and certified him unfit for work for 20 days.

(d) Match the English expressions with their Russian equivalents in the table:

prosecuting authorities (1) to discontinue (2) to reinstate (3) security police (4) search (a) обыск (b) восстанавливать (в прежнем положении, в правах) (c) прекращать дело, приостанавливать процесс судопроизводства (d) прокуратура (e) служба безопасности

 

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY
    OF THE TEXT:

1. What happened in the text you have read in case V?

2. What was the applicant's post?

3. What happened with the applicant?

4. What did the police officers do?

5. What do you think about the actions of the police?

6. What do you think the law says about the situation?

LAW AND RELEVANT ARTICLES QUOTATIONS

(e) Study the text below, making sure you fully comprehend it:

Article 3. The applicant had had no history of psychopathology before being taken into police custody and there was no material in the file to suggest the existence of psychosomatic instability. He had explained in detail the humiliation that he had felt on being exposed wearing handcuffs publicly, at work in front of staff who had been his patients and around his home. In his case it could be reasonably assumed that there was a causal link between the treatment in question and the beginning of his psychopathological problems, which had been diagnosed two days after his release.

Successive medical reports had confirmed the fact that the applicant had sustained serious trauma following his period in police custody. He had particularly felt humiliated by his exposure to staff who had been his patients. His mental state had been irreversibly marked by the ordeal.

Moreover, on the date of his arrest, the applicant did not have a record that might have lead to fears for security and there was no evidence that he represented a danger for himself or for others or that he had committed criminal acts of self-destruction or violence against others. In particular the Government had given no explanation to justify the need for handcuffs in the present case.

In conclusion, the fact of exposing the applicant to public view wearing handcuffs at the time of his arrest and during the searches had been intended to arouse in him feeling of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his moral resistance.

In the particular circumstances of the case, the obligation to wear handcuffs had constituted degrading treatment.

Conclusion: violation.

Article 41. EUR 2,000 for all damage.

Notes:

causal link причинная связь
medical report история болезни; медицинское заключение
sustained длительный, непрерывный, продолжительный
mental state психическое состояние
to mark оставить след, пятно
ordeal суровое испытание
record документ, письменно зафиксированное свидетельство; письменное производство по делу
self-destruction самоубийство; самоуничтожение
inferiority чувство неполноценности
debasing унижающий достоинство

(f) Read the text again and copy the sentences that contain the following phrases:

(1) had had no history of psychopathology

(2) no material in the file to suggest the existence of psychosomatic instability

(3) the humiliation that he had felt

(4) in front of staff who had been his patients

(5) reasonably assumed

(6) treatment in question

(7) two days after his release.

(g) Translate the following sentences into Russian:

(1) Moreover, on the date of his arrest, the applicant did not have a record that might have lead to fears for security and there was no evidence that he represented a danger for himself or for others or that he had committed criminal acts of self-destruction or violence against others.

(2) In particular the Government had given no explanation to justify the need for handcuffs in the present case.

(h) Fill in the blanks with the appropriate words from the text:

In conclusion, the ______ of exposing the ______ to public view ______ handcuffs at the ______ of his arrest ______ during the searches ______ been intended to ______ in him feeling ______ fear, anguish and ______ capable of humiliating ______ debasing him and ______ breaking his moral ______. In the particular ______ of the case, ______ obligation to wear ______ had constituted degrading ______.

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY
    OF THE TEXT:

1. What is case V about?

2. What kind of and how many offences had been mentioned in the case?

3. Which of the police officers' measures were qualified as «violation»? Why?

4. What was the European Court of Human Rights final decision?

5. What is your opinion about what had happened?

6. What do you think about the European Court's conclusion?

7. What would be your final judgment if you were an EC judge?

 

Case VI. LAWFUL ARREST OR DETENTION

COUNCIL OF EUROPE. EUROPEAN COURT OF HUMAN RIGHTS. Information note № 95 on the case-law of the Court, March 2007, Pages 11—12.

FACTS

(a) Study the text below, making sure you fully comprehend it:

Since the applicant attained the age of criminal responsibility he was convicted seven times, notably of murder, robberies and assaults, and spent only short periods outside prison. In 1986, the trial court sentenced him to five years' imprisonment and ordered his placement in preventive detention, since, according to experts, he was dangerous for the public and it was to be expected that he would repeat spontaneous acts of violence. Since 1991, the applicant, having served his full prison sentence, is remanded in preventive detention. At that time, the maximum term of preventive detention could not exceed ten years. In 1998, the Criminal Code was amended to the effect that the maximum period of preventive detention was abolished. In 2001, applying the new rule, the regional court dismissed the applicant's motions to suspend on probation his placement in preventive detention. Having heard him in person, as well as the prison authorities, the prosecutor and an expert, the court found that it could not be expected that the applicant, if released, would not commit any serious offences. The applicant appealed unsuccessfully. In his constitutional complaint he raised the issue of retroactive application of the amended Criminal Code provision which had led to his life-long imprisonment without any prospects of being released. In 2004, the Federal Constitutional Court, having consulted psychiatric experts and several prison directors, dismissed the applicant's complaint as ill-founded. It held, inter alia, that the absolute ban on the retroactivity of criminal laws imposed by the Basic Law did not cover the measures of correction and prevention provided for in the Criminal Code. It concluded that the legislator's duty to protect the public against interference with its life, health and sexual integrity has outweighed the detainee's reliance on continued application of the ten-year limit and that the retrospective application of the new rule had not been disproportionate.

 

Notes:

preventive detention превентивное заключение
by virtue of в силу, на основании
retroactive application of law применение закона с приданием ему обратной силы
legislative amendment поправка законодательной власти
to attain the age of criminal responsibility достичь возраста уголовной ответственности
to dismiss a motion отклонять ходатайство
inter alia между прочим

(b) Read the text again and copy the sentences that mean the following:

(1) С тех пор, как заявитель достиг возраста уголовной ответственности, он семь раз был приговорен к тюремному заключению, преимущественно за убийство, грабежи и разбойные нападения.

(2) С 1991 г. заявитель, отбывший полный срок тюремного заключения, находится под стражей в камере предварительного заключения.

(3) В 1998 г. в Уголовный кодекс были внесены изменения с целью отмены максимального срока содержания в превентивном заключении.

(4) В своей конституционной жалобе он поднял вопрос о применении положения измененного Уголовного кодекса с приданием ему обратной силы.

(5) Федеральный Конституционный Суд, после консультаций с психиатрами и некоторыми директорами тюрем отклонил жалобу заявителя как необоснованную.

(c) Translate the following sentences into Russian:

(1) In 1986, the trial court sentenced him to five years' imprisonment and ordered his placement in preventive detention, since, according to experts, he was dangerous for the public and it was to be expected that he would repeat spontaneous acts of violence.

(2) Having heard him in person, as well as the prison authorities, the prosecutor and an expert, the court found that it could not be expected that the applicant, if released, would not commit any serious offences.

(3) It held, inter alia, that the absolute ban on the retroactivity of criminal laws imposed by the Basic Law did not cover the measures of correction and prevention provided for in the Criminal Code.

(4) It concluded that the legislator's duty to protect the public against interference with its life, health and sexual integrity has outweighed the detainee's reliance on continued application of the ten-year limit and that the retrospective application of the new rule had not been disproportionate.

(d) Fill in the blanks with the appropriate words from the text:

At that time,____ maximum term of____ detention could not.____ ten years. In_____, the Criminal Code_____ amended to the____ that the maximum _____ of preventive detention_____ abolished. In 2001,______ the new rule,____ regional court dismissed_____ applicant's motions to_______ on probation his______in preventive detention______ heard him in_______, as well as_____ prison authorities, the____ and an expert,____ court found that_____ could not be_____ that the applicant,_____ released, would not______ any serious offences_____ applicant appealed unsuccessfully.

(e) Match the English expressions with their Russian equivalents in the table:

(1) prolongation (2) preventive detention (3) by virtue of (4) retroactive application of law (5) legislative amendment (6) attain the age of criminal responsibility (7) act of violence (8) to the effect (9) abolish (10) to dismiss a motion (11) to suspend on probation (12) in person (13) prosecutor (14) to raise the issue of (15) inter alia   (a) приостанавливать; откладывать; (временно) прекращать с испытательным сроком (b) отклонять ходатайство (c) между прочим (d) продление, продолжение, пролонгация (e) превентивное заключение (f) обвинитель, прокурор (g) поднимать вопрос; проблему, составляющую предмет рассмотрения (h) применение закона с приданием ему обратной силы (i) поправка законодательной власти (j) акт насилия (k) для этой цели, для этого, с целью (l) аннулировать, отменять, упразднять, объявлять недействительным (m) достичь возраста уголовной ответственности (n) в силу, на основании (o) лично

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY OF THE TEXT:

1. What is case VI about?

2. Who is the case about?

3. Why is the person considered dangerous to the public by the courts?

4. What were the applicant's motions? Why?

5. What was the European Court of Human Rights final decision?

6. What is your opinion about what had happened?

7. What do you think about the European Court's conclusion?

8. What would be your final judgment if you were an EC judge?

 

 

Case VII. DISCRIMINATION

COUNCIL OF EUROPE. EUROPEAN COURT OF HUMAN RIGHTS. Information note № 95 on the case-law of the Court, March 2007, Pages 23.

FACTS

(a) Study the text below, making sure you fully comprehend it:

Since the applicant entered Germany in 1979, he has been convicted some fifteen times, notably of theft and burglary. In 1996, he was sentenced to eight years and six months' imprisonment. Relying on the expert report, the trial court further ordered the applicant's preventive detention, considering that he was inclined to commit serious offences and was therefore dangerous for the public. In 1997, the municipal authorities ordered his expulsion to Bulgaria as soon as he had served his sentence and prohibited him from re-entering Germany for an indefinite duration in view of his criminal convictions. The prison declined several times the applicant's request to undergo social therapy because he was liable to be expelled after having served his prison sentence. Since June 2003, when his prison sentence ended, he is remanded in preventive detention. In 2004, having heard the applicant and the experts, the regional court again decided that his continued preventive detention was still necessary as he was very likely to be recidivist. He appealed unsuccessfully.

Notes:

foreign national иностранный подданный
subject to подлежащий (произведению какой-либо обработки)
imminent надвигающийся, близкий, грозящий, нависший, неотвратимый, неизбежный, неминуемый

 

(b) Read the text again and copy the sentences that mean the following:

С тех пор как заявитель прибыл в Германию в 1979 году, он около пятнадцати раз привлекался к уголовной ответственности, в основном за кражу и кражу с проникновением во внутрь. В 1996 году, он был приговорен к восьми годам и шести месяцам лишения свободы. Основываясь на мнении специалистов, суд далее выдал ордер на содержание его в превентивном заключении, считая, что он склонен к совершению серьезных преступлений и потому опасен для общества. В 1997 году городские власти выдали распоряжение о его высылке в Болгарию сразу же после отбывания срока заключения и запретили ему въезд в Германию на неопределенное время ввиду его преступных убеждений.

(c) Translate the following sentences into Russian:

The prison declined several times the applicant's request to undergo social therapy because he was liable to be expelled after having served his prison sentence. Since June 2003, when his prison sentence ended, he is remanded in preventive detention. In 2004, having heard the applicant and the experts, the regional court again decided that his continued preventive detention was still necessary as he was very likely to be recidivist. He appealed unsuccessfully.

 ANSWER THE QUESTIONS AND MAKE A BRIEF SUMMARY
    OF THE TEXT:

1. What is case VII about?

2. What kind of and how many offences had the convict committed?

3. What measures were taken against him? Why?

4. What was the municipal authorities' order? Why?

5. What was the result of the applicant's appeals?

6. What is your opinion about what had happened?

7. What do you think about the Court's conclusion?

8. What would be your final judgment if you were an EC judge?

 

 


Appendix 2

SUPPLEMENTARY TEXTS


Дополнительные тексты

 

В результате изучения материалов данного приложения учащиеся должны:

Знать

 

· кроме совершенствования знаний, полученных при изучении предыдущих глав и разделов, в данном приложении студентам предоставляется возможность приобрести следующие дополнительные знания:

· содержание, функции и историю американского уголовного права и правосудия в целом, историю гражданского процесса, особенности юридической профессии, мнения о смертной казни, исламское право и его историю, а также возникновение и становления нотариата как одной из ветвей правовой системы в некоторых англоговорящих странах

· определения основных понятий, существенных для изучаемой сферы права, на английском языке

· лексические, грамматические, стилистические способы выражения на английском языке вышеназванных проблем в устной и письменной речи

· необходимую терминологию и характерные для данной группы текстов грамматические и синтаксические структуры

· особенности построения текстов соответствующего правового жанра

 

уметь  

 

  • при необходимости использовать данный материал для расширения знаний по соответствующим проблемам при изучении основного курса, либо использовать этот материал в качестве основного
  • использовать данный материал в презентациях на английском языке по изученным вопросам

 

Владеть

 

  • приёмами компиляции иноязычных текстов
  • приемами редактирования компилированных текстов
  • приемами оформления ссылок на используемую литературу и тексты
  • приёмами построения устных и письменных текстов на основе изученных

 

После изучения этой главы учащийся получит представление о: содержании и особенностях рассмотренных в приложении направлений права, в частности, американскому и исламскому праву, о спорах в отношении применения смертной казни, роли и месте нотариата в правовых системах Англии и США; с точки зрения английского языка студенты имеют возможность на новом материале закрепить ранее приобретённые навыки и умения, а также практиковаться в области употребления сослагательного наклонения

Проблема: основными проблемами в области содержания в данном приложении, которые вызывают международный интерес и дают студентам основания для рассуждений, являются проблемы соотношения права и религии, правил материальной и духовной жизни, преемственности поколений в области правопорядка и традиции, а также проблемы законного фиксирования и соблюдения различного рода социальных, материальных и духовных отношений; в области иноязычного оформления данных отношений, возникает проблема несовпадения понятий, средств выражения и узуса.

 

 

Unit 1. HISTORY OF AMERICAN LAW

Task  1. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other reference & source books on law.

HISTORY OF AMERICAN CRIMINAL LAW
(FROM THE BEGINNING TILL THE NINETEENTH CENTURY)

The earliest criminal codes mirrored the nasty life of pioneer settlements. Criminal justice in the colonies was on the whole less formal and more direct than English law; though here too, as time went on, there was a certain amount of conformity to the English practice. There was a simple penal philosophy: no one should be punished for crimes not clearly and openly labeled. In a just society, the rules of the criminal law had to be written down and known to one and all.

Punishment was open and public: whipping in the town square, the pillory and the stocks. Public opinion and the shame were important instruments of punishment. For community punishment to work, it had to be visible and public; and punishment often left physical marks on the condemned. So, burglars, for the first offense, were to be branded on the forehead with the letter B, for the second offense, whipped in public and only for the third offense were to be put to death, as being incorrigible.

Neither in theory nor in practice was the colonial law very bloodthirsty. There were fewer capital crimes on the books than in England. In England death was a possible punishment for many thieves; in Massachusetts, only for repeaters. The Quaker laws of New Jersey substituted restitution of property or hard labor for hanging. The death penalty was not carried out very frequently in the colonies.

A crime is, in theory, a public wrong: a wrong against some victim, to be sure, but also something that hurts society — which is why society takes over the job of punishing it. This was the case, at any rate in the colonies. In England, there was no such thing as a district attorney — no public prosecutor. People were supposed to do their own prosecuting — and pay for it themselves. Very early this system was rejected in the colonies; crime was too serious and important business to leave to individuals.

The late eighteenth century was a period in which the intellectuals began to rethink the premises on which criminal law rested. Great reformers — like Cesare Beccaria — suggested that at least some of the premises were wrong and argued for a more enlightened criminal law. Reform ideas left an imprint on the early state constitutions. Section 38 of the liberal Pennsylvania Constitution of 1776 imposed on the future legislature a duty to reform the penal laws. Punishment must be made in some cases less sanguinary and in general more proportionate to the crimes.

Of course, real penal reform was never easy to achieve. The legislature of Pennsylvania did not match action to words for ten full years. In 1786, the death penalty was abolished for robbery, burglary and sodomy. In 1794 Pennsylvania enacted an important, innovative law about murder. The statute stated that the several offenses, which are included under the general denomination of murder, differ greatly from each other in the degree of their atrociousness. The statute then proceeded to distinguish between 2 different degrees of murder. Murder in the first degree was murder of poison or by any other kind of willful, deliberate or premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery or burglary. All other murder was murder in the second degree. Only murder in the first degree was punishable by death.

A system of criminal justice is more than rules on paper. As a working system, it had to distribute power among judges, jurors, legislators. In American legal theory, the jury had enormous power, and was subject to very few controls. There was a maxim of law that the jury was judge both of law and of fact in criminal cases. It is not entirely clear what this meant — except as an expression of almost unlimited power. By the end of the period, many states, by statute or decision, had repudiated the doctrine.

The criminal justice was, on the whole, much less professional than it is today. Almost nobody involved in criminal justice was a full-time specialist. There were no detectives, probation officers, public defenders, or forensic scientists; even the district attorney worked at his job part-time. The jurors were of course total amateurs. In 1800 or 1870 no part of the system was particularly organized or bureaucratic. This even applied to what happened after conviction; the only way to get out of prison early was to appeal to the governor for a pardon. The governor in some states pardoned with a lavish hand. In any event, nothing formally guided his decisions.

Today the system is highly professionalized; this means, among other things, that the police and prosecutors can filter out the weakest cases, and toss them aside early in the process.

 ANSWER THE FOLLOWING QUESTIONS:

1. What was a penal philosophy in the colonies?

2. What do you know about punishment in the colonies?

3. What does «murder in the first degree» mean?

4. What power did the jury have?

 Find in the text above the English equivalents for the following words and expressions:

карательный, штрафной уголовное судопроизводство состав присяжных присяжный заседатель поджог изнасилование ограбление кража со взломом наказание убийство первой степени государственный обвинитель уголовное обвинение наказуемый государственный защитник

Task  2. Fill in the gaps with the appropriate words from the box.

penal philosophy prosecuting criminal codes probation officers punishable by death public defenders conviction criminal justice

 

(1) This even applied to what happened after ___________; the only way to get out of prison early was to appeal to the governor for a pardon.

(2) The ___________ was, on the whole, much less professional than it is today.

(3) The earliest ___________ mirrored the nasty life of pioneer settlements.

(4) There were no detectives, _________, _________, or forensic scientists.

(5) Only murder in the first degree was ____________.

(6) There was a simple _________: no one should be punished for crimes not clearly and openly labeled.

(7) People were supposed to do their own __________ — and pay for it themselves.

Task  3. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

SHORT HISTORY OF US CIVIL PROCEDURE

Common-law pleading and procedure constituted a dismal and exceptionally intricate art. Colonial process never attained the heights, or the depths, of English common law procedure, a minefield of technicalities that only sappers trained in the law could navigate. Procedurally speaking, there were wide differences between colonies — between the loose, informal justice of early Massachusetts and the more conservative, more formal process in the middle Atlantic and southern colonies.

Seventeenth-century procedure was loose, boneless, easy-going. When judges are laymen, and not fussy about the separation of powers, a court is bound to be run informally. Nobody even knew the arcane rules of English procedure. And county court government was government at the point where men apply rules to ordinary life. Justice of that sort has an unstructured look; but if one compares colonial process, not with England's high courts but with English local courts, with the justice dispensed by the local gentry — the justices of the peace — the differences may not be quite so striking.

The fundamentals — jury, grand jury, writ, summons, written pleadings and oral testimony — were as fundamental in the colonies as in England, though never exactly the same as in the mother country. In detail, colonial procedure was a curious mixture.

Conciliation and arbitration were widely used in colonial law. Such methods of course avoid technical courtroom procedure. The courts themselves sometimes referred matters out for arbitration. Procedure was simplified so as to render justice inexpensive and easily accessible, and yet formal enough to provide adequate safeguards for litigants. Process was speedy and cheap, compared to English process; costs were measured in pennies, not in pounds; judgment was generally given on the day of the trial. The Massachusetts summons, unlike the English writ, was stripped of jargon, translated from Latin to English, and greatly streamlined in form. Forms of action were reduced to a few simple headings.

Eighteenth-century civil process, on the whole, was an uneasy mixture of several strands: lawyer's law, the needs of the merchants, the will of the sovereigns, and local tradition.

There was no chance that classical English pleading would be established after Independence. English procedure was too medieval for the modern world. Reform of civil procedure, at any rate, found fertile soil in the United States. Pleading reform was one of the changes the explosions in legal consumers made necessary.

Reform did not come in one great burst. Georgia, in the eighteenth century, passed a series of laws that went a long way toward rationalizing its civil procedure. The climax was the Judiciary Act of 1799. Georgia's law was, among other things, a courageous attempt to join together equity and common-law pleading.

Equity boasted a flexible collection of remedies; it had often prodded and pushed more lethargic common law in more rational (and just) directions. But equity had itself become hidebound; by 1800, it needed procedural reform even more desperately than the common law; it was equity, not law. In the United States many states simply handed over the powers and tools of equity to ordinary courts of common law. The same judges decided both kinds of case. Some states had no equity or equity courts at all. Louisiana was one of these, because of its civil-law heritage. Massachusetts and Pennsylvania were outstanding common-law examples.

In general, «law» was bent to suit «equity»; but not all the change was in one direction. The common law courts loved the spoken word — testimony, cross-examination — all in open court. Equity loved documents, papers, written evidence, and classically tolerated nothing else. But the Judiciary Act of 1789 provided for oral testimony in federal equity cases. Georgia allowed trial by jury in some kinds of lawsuit which, traditionally, belonged on the equity side of the bench. North Carolina, in a statute of 1872, did the same.

There is not enough systematic information on what the average trial was like. What we do know is that the average trial was simple, short and relatively informal. And even major trials — trials with political overtones — were by later standards unfair.

 ANSWER THE FOLLOWING QUESTIONS:

1. What was the seventeenth-century procedure like?

2. What methods were widely used in colonial law?

3. Why did the reform of the civil procedure find fertile soil in the United States?

4. What was the difference between common law and equity?

5. What do we know about the average trial?

Task  4. Fill in the gaps with the appropriate words from the box:

average trial lawsuit equity courts common-law pleading conciliation and arbitration cross-examination oral testimony summons

 

(1) The _________ was simple, short and relatively informal.

(2) __________and procedure constituted a dismal and exceptionally intricate art.

(3) Georgia allowed trial by jury in some kinds of ___________ which, traditionally, belonged on the equity side of the bench.

(4) __________ were widely used in colonial law.

(5) But the Judiciary Act of 1789 provided for ____________ in federal equity cases.

(6) ____________, written pleadings and oral testimony — were as fundamental in the colonies as in England.

(7) The common law courts loved the spoken word — testimony, _____________.

(8) Some states had no equity or _______________ at all.

 

Task  5. Match the following English expressions with their Russian equivalents. Use the expressions in the table to make sentences of your own.

 

(1) equity (2) lawsuit (3) summons (4) writ (5) testimony (6) pleading (7) common law (8) conciliation (9) civil procedure (10) cross-examination (a) гражданское судопроизводство (b) примирение (c) судебный приказ (d) судебное дело, иск (e) право справедливости (f) вызов в суд, судебная повестка (g) свидетельское показание (h) пледирование, заявление оснований иска (i) перекрестный допрос (j) общее право

 

Task  6. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

THE LEGAL PROFESSION

The early colonial years were not friendly years for lawyers. There were few lawyers among the settlers. In some colonies lawyers were distinctly uailcome. In Massachusetts Bay the Body of Liberties (1641) prohibited pleading for hire. The «attorneys» in the early Virginia records were not trained lawyers, but attorneys-in-fact, laymen helping out their friends in court.

But the lawyers were, in the end, a necessary evil. When all is said and done, no colony could even try to make do without lawyers. As soon as a settled society posed problems for which lawyers had an answer or at least a skill, lawyers began to make their way and to thrive, despite any hostility. Courts were in session; merchants were involved in litigation; documents about land and other matters had to be drawn up; and the skill of the lawyer had a definite market value. Men trained in law in England, who came over, found their services in demand. By the eighteenth century, professional lawyers dominated the practice. A competent, professional bar existed in all major communities by 1750. Many of these men were deeply learned in the law. Yet there was no such thing as a law school in the colonies. Particularly in the South, where there were no colleges at all, some young men went to England for training.

For all lawyers the road to the bar went through some form of clerkship or apprenticeship. A young man who wanted to be a lawyer usually entered into a contract with already in practice. From the seventeenth century on, the British exported some lawyers to help them govern their colonies. This was another fountainhead of the American bar. Nicholas Trott, an English lawyer, arrived in Charleston in 1699 as attorney general.

Each colony had its own standards for admission to the bar. In Virginia a law of 1748 gave its high court control over licensing and admission to the bar. In 1762 the chief justice of the Superior Court Thomas Hutchinson instituted the rank of barrister; 25 lawyers were called to this rank.

In the eighteenth century the demand for lawyers' skilled services increased; the bar became much more professional; yet in many colonies the bar was extremely small.

In England there were distinctions between different grades and types of lawyer: between attorneys, counselors, barristers and sergeants. The idea did not catch on in the United States. A few colonies had recognized a graded bar. By the early nineteenth century, the bar was an undifferentiated mass. There were rich and poor lawyers, high ones and low; but all were members of one vast sprawling profession. The few primitive bar clubs, associations did nothing to provide real self-control. Nobody controlled it at the top, or from within. The lawyers themselves had a great deal of power over admission to the bar. But then courts took over; they prescribed qualifications and handled applications.

How did a young man get himself recognized as an actual lawyer? In Massachusetts each county court admitted its own attorneys. A lawyer admitted to any local court was a fully licensed member of the state bar and could practice before any court.

A few states were strict. In New Hampshire between 1805 and 1833 the federal county bars required five years of preparation for admission to the lower courts. Three years was the term for college graduates. Two years further practice was required for the admission to the superior court. In 1800 fourteen out of the nineteen states prescribed a definite period of preparation for the bar. In 1840 only eleven out of thirty jurisdictions did so. In 1840s a few states eliminated all requirements for the admission to the bar, except good moral character.

Women and blacks were truly outsiders. No woman practiced law before the 1870s. At the turn of the century about fifty women practiced in Massachusetts.

The transformation of the American economy after the Civil War profoundly affected the demand for the lawyers. The growth of law firms was one of the most striking developments of the late nineteen century. Firms of more than three partners were rare before the Civil War.

For many lawyers politics became on the biggest businesses. For them county, state, territorial and federal jobs were sources of income and, in addition, advertisements for themselves. Politics, law-making and law administration were as much a part of the practice as collection work and lawsuits over land. Many presidents after 1850 were lawyers. Two-thirds of the senators were also lawyers.

 ANSWER THE FOLLOWING QUESTIONS:

1. What was the attitude to lawyers in the early colonial years? Why?

2. When did lawyers overcome public hostility?

3. What was the bar in the United States in the eighteenth century like? Compare it with the English bar.

4. How did a young man get himself recognized as an actual lawyer?

5. How often did women and blacks become lawyers?

6. Why did lawyers often become politicians after the Civil Law?

Task  7. Find in the text above the English equivalents for the following words and expressions:

юридические фирмы юрисдикция, судебный округ законотворчество заниматься юридической практикой коллегия адвокатов суды низшей инстанции вышестоящий суд поверенный, юрист, прокурор советник адвокат высшей категории тяжба, судебный процесс

Task  8. Fill in the gaps with the appropriate words from the box:

Law firms counselors practiced law admitted to any local court sergeants superior court admission to the bar litigation

 

(1) In 1840s a few states eliminated all requirements for the ____________, except good moral character.

(2) The growth of _______________ was one of the most striking developments of the late nineteen century.

(3) In England there were distinctions between different grades and types of lawyer: between attorneys, __________, barristers and _____________.

(4) Courts were in session; merchants were involved in ____________.

(5) A lawyer ______________ was a fully licensed member of the state bar and could practice before any court.

(6) Two years further practice was required for the admission to the _________.

(7) No woman ______________ before the 1870s.

 

Task  9. Complete the following table:

 

Crime Criminal Criminal Act
  bootlegger  
    to kidnap
tax evasion    
    to violate
  fraudster  
smuggling    
assault    

Task  10. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

THE DEATH PENALTY

Nothing the Supreme Court did was more dramatic than its actions with regard to capital punishment. In the early twentieth century, the rate of executions had gone into a long and fairly sharp decline. Then the numbers rose again, until, in 1935, there were 199 executions. Afterward, executions began to drop off again. Nine states abolished the death penalty between 1907 and 1917 (although seven of these had second thoughts and brought it back). Civil liberties organizations worked and argued and lobbied to get rid of capital punishment. They also took their fight to the courts. Then, in 1972, in Furman v. Georgia, the Supreme Court decided that the death penalty, in every version, in every state, was unconstitutional — was, in fact, cruel and unusual punishment forbidden by the Eighth Amendment. Every statute on the subject was wiped off the books. The life of every man and woman on death row was spared.

Furman lasted exactly four years. It was, to begin with, a highly fractured opinion. Four of the nine Justices were in dissent; and each of the five in the so-called majority wrote his own opinion. Some Justices thought the death penalty was unconstitutional. Any form of capital punishment. But they were a minority. Others, who joined them, did not condemn the death penalty absolutely — only the death penalty as it then existed. Most of the states began to comb the text of the Furman opinions for clues, looking for the ways to salvage the death penalty. They passed new statutes, hoping for better luck. The Supreme Court had said the death penalty was just too random, too arbitrary. Very well, thought North Carolina; we will take away the guesswork and the randomness: all first-degree murderers, and aggravated rapists, will get the death penalty. Other states took a different tack: they set up a two-stage process. The first stage would be the «guilt» stage. Once is defendant guilty, a second «trial» occurs — the trial of life or death. To impose the death penalty, the jury (or, in some cases, the judge) would have to find one or more aggravating circumstances. Both type of statute came before the Supreme Court. The Court in 1876 struck down the North Carolina type of statute. But it approved of the other type, which was the Georgia version. The death penalty was in business again.

At the end of the century, the situation remained quite complex. About a dozen states had no death penalty at all. The rest of them did: but in some, it was rarely or never used. New Jersey, for example, had not executed anybody since the death penalty was reinstated in 1976. Most executions were in the South, in Florida, in Virginia. Texas was in a class by itself. It alone accounted for about a third of the executions in the country.

In most states, the death penalty was not only rare, it was painfully slow. In the late twentieth century, speedy execution had become completely impossible. There were too many procedures, appeals, hearings, and writs, federal and state. Men grew on death row. Ten years was no time at all for the condemned. Some convicts were put to death only after fifteen or even twenty years of waiting, and after a long and torturous procedural path.

At the very end of the century people began to ask themselves: how many innocent men have actually gone to their death? The governor of Illinois called for a moratorium. So did the American Bar Association. But the machinery of death, slow and creaky it was, ground on.

 ANSWER THE FOLLOWING QUESTIONS:

1. Why did the rate of executions go into a long and fairly sharp decline in the early twentieth century?

2. When did nine states abolish the death penalty? Why did seven states bring it back?

3. What does a two-stage process mean?

4. Where do most executions take place? Why?

Task  11. Fill in  the gaps with the appropriate words from the box.

capital punishment innocent put to death executions convicts aggravating circumstances defendant first-degree murderers

 

(1) All ___________, and aggravated rapists, got the death penalty in North Carolina.

(2) Once is _________ guilty, a second «trial» occurs — the trial of life or death.

(3) Some __________ were ___________ only after fifteen or even twenty years of waiting, and after a long and torturous procedural path.

(4) Nothing the Supreme Court did was more dramatic than its actions with regard to _____________.

(5) People began to ask themselves: how many _________ men have actually gone to their death?

(6) Texas alone accounted for about a third of the _________ in the country.

(7) To impose the death penalty, the jury (or, in some cases, the judge) would have to find one or more ___________.

Task 12. Find in the text the words that mean the following:

· the punishment of being executed for a crime

· a group of prison cells for criminals condemned to death

· not guilty of wrongdoing

· a person who has been found guilty of a crime or crimes in a lawcourt and is in prison

· to end the existence of a law, a practice, an institution

· the killing of somebody as a legal punishment

· a group of people in a lawcourt who have been chosen to listen to the facts in a case and to decide whether the accused person is guilty or not guilty

· a formal examination of evidence in a lawcourt, by a judge and often a jury, to decide if smb accused of a crime is guilty or not

 

 

Unit 2. HISTORY OF ISLAMIC LAW

Task  1. (a) Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

HISTORY OF ISLAMIC LAW
QUR'ANIC LEGISLATION

«Obey God and His Prophet». In this Qur'anic command lies the establishment of a novel political authority possessing legislative power. The year 622 saw the establishment of the Muslim community in Medina. The Arab tribes accepted Muhammad as the Prophet or spokesman of the God, and regarded themselves and his Meccan followers as constituting a group of a new kind wherein the bond of a common religious faith transcended tribal ties. While Muhammad's position gradually developed into one of political and legal sovereignty, the will of God transmitted to the community by him in the Qur'anic revelations came to supersede tribal custom in various respects.

Most of the basic notions underlying civilized society find such a mode of expression in the Qur'an. Compassion for the weaker members of society, fairness and good faith in commercial dealings, incorruptibility in the administration of justice are all enjoined as desirable norms of behaviour without being translated into any legal structure of rights and duties. The same applies to many precepts which are more particular, and more peculiarly Islamic, in their terms. Drinking of wine and usury are both simply declared to be forbidden. But no indication of the legal incidents of the practices is contained in the Qur'an. In fact wine-drinking later became a criminal offence punishable by flogging while usury was a purely civil matter, the transaction being a type of invalid or unenforceable contract. This clearly demonstrates the distinct attitudes of the religious prophet and the political legislator. The primary purpose of the Qur'an is to regulate not the relationship of man with his fellows but his relationship with his Creator.

The vast majority of the Qur'an verses are concerned with the religious duties and ritual practices of prayer, fasting. Approximately eighty verses deal with legal topics in the strict sense of the term. They cover a great variety of subjects, ranging from women's dress to the division of the spoils of war, and from the prohibition of the flesh of swine to the penalty of flogging for fornication.

There is much information about the position of women, married women in particular. Rules on marriage and divorce are numerous and varied, and, with their general objective of the improvement of the woman's status, represent some of the most radical reforms of the Arabian customary law effected in the Qur'an. As regards marriage the Qur'an commands that the wife alone shall receive the dower payable by her husband. The effect of this simple Qur'anic rule is to transfer the wife from the position of a sale-object to that a contracting party who, in return for her granting the right of sexual union with herself, is entitled to receive the due consideration of the dower. She is now endowed with a legal competence she did not possess before.

There are many regulations concerning inheritance. The first Qur'anic reference to this subject is a typically ethical injunction which urges a person who is on the point of death to bequeath equitably to his parents and kindred. This provision qualifies the system of exclusive inheritance by the male agnate relatives and recognizes the capacity of women relatives to succeed. Following the death of many Muslims in the battles fought against the unbelievers, a series of Qur'anic revelations allotted specific fractions of the deceased's estate to individual relatives. Of the nine relatives so entitled six are women — the wife, the mother, the daughter, the germane, consanguine and uterine sisters — and the remaining three are male relatives who would either never have inherited at all under the old system (the husband and the uterine brother) or would have been excluded by a nearer agnate (the father, who would not have inherited in competition with a son of the deceased).

The principle that God was the only lawgiver and that is command was to have supreme control over all aspects of life was clearly established. But that command was not expressed in the form complete charter for the Muslim community. Later events were to show that the Qur'anic precepts form little more than the preamble to an Islamic code of behaviour.

(b) Fill in the gaps with the appropriate words from the box:

capacity of women relatives to succeed to bequeath equitably a criminal offence punishable by flogging dower payable by her husband incorruptibility in the administration of justice usury lawgiver the germane

 

(1) As regards marriage the Qur'an commands that the wife alone shall receive the _____________.

(2) The principle that God was the only ____________ and that is command was to have supreme control over all aspects of life was clearly established.

(3) Drinking of wine and ___________ are both simply declared to be forbidden.

(4) Fairness and good faith in commercial dealings, ______________ are all enjoined as desirable norms of behaviour without being translated into any legal structure of rights and duties.

(5) Wine-drinking later became _____________.

(6) This provision qualifies the system of exclusive inheritance by the male agnate relatives and recognizes the _____________.

(7) The first Qur'anic reference to this subject is a typically ethical injunction which urges a person who is on the point of death _____________ to his parents and kindred.

(8) Of the nine relatives so entitled six are women — the wife, the mother, the daughter, ___________, consanguine and uterine sisters

(c) Find in the text the words that mean the following:

· the practice of lending money at excessively high rates of interest

· a punishment for breaking a law, rule or contract

· a person who decides the laws of a country or society

· a person who has died, especially recently

· to gain the right to a title, property, etc when somebody dies

· to arrange, by making a will, to give property, money, etc to somebody when one dies

· to order somebody not to do something

 (d) ANSWER THE FOLLOWING QUESTIONS:

1. What basic notions underlying civilized society can we find in the Qur'an?

2. What do you know about the position of women in the Qur'an?

3. What regulations concerning inheritance are contained in the Qur'an?

Task  2. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

LEGAL PRACTICE IN THE FIRST CENTURY OF ISLAM

The period up to the year A.D. 750 witnessed the transformation of Islam from a small religious community in Arabia to a vast military empire.

As long as Muhammad was alive he was naturally regarded as the ideal person to settle disputes. Later generations ascribed to Muhammad a great corpus of legal decisions. For some thirty years after the death of Muhammad in 632 Medina remained the focal point of Muslim activity. Here the vital issue was that of succession to the political authority of Muhammad. At first it was natural that the influence of those most closely associated with him should prevail, and the office of Caliph — «successor» to the Prophet — was held in succession by four of Muhammad's most intimate companions: Abu-Bakr, Umar, Uthman and Ali.

Upon the Caliphs and their advisers fell the duty of further implementing the Qur'anic provisions in the same spirit as their former leader.

Naturally enough the Caliphs alone had the power of positive legislation.      

In 661 A.D. the Umayyad dynasty was founded. From their seat of government at Damascus the Empire builders wielded their political power in the name of Islam; but while the Medinan Caliphs had been the servants of the religion the Umayyads were its masters.

The basic policy of the Umayyads was the preservation of the existing administrative structure in the provinces. Umayyad practice absorbed many concepts and institutions of foreign origin. The legal status of non-Muslim subjects in Islam was modeled on the position of the non-citizen groups in the Eastern Roman Empire. The Jewish and Christian communities paid a poll tax in return for the guarantee of protection and the preservation of their rights under their own personal law administered by their rabbinical and ecclesiastical tribunals.

Among the army of officials created by the Umayyad administration was the qadi, a judge of a special kind. Like all other officials he was the delegate of the local governor and had the particular task of settling disputes. In the early days we find the chief police and the Master of the Treasury acting as judges. Not until towards the end of the Umayyad period, it would appear, were judges exclusively concerned with judicial business. By the end of the Umayyad period the judges had advanced far from their original position as official arbitrators. They had become an integral and important part of administrative machine, no longer controlled, by themselves controlling, the customary law and by their decisions adapting it to meet the changing circumstances of society.

Under the Umayyads the basic material of the local customary law had been modified by the elaboration of the Qur'anic rules, overlaid by a corpus of administrative regulations and infiltrated by elements of foreign legal systems.

 (a) ANSWER THE FOLLOWING QUESTIONS:

1. What was the basic policy of the Umayyads like?

2. What were the duties of the judges?

(b) Match the following English expressions with their Russian equivalents. Make sentences of your own using the word combinations in the table.

(1) customary law (2) a poll tax (3) false accusation (4) uterine brothers (5) residue (6) a share (7) a deceased (8) Treasury (a) ложное обвинение (b) братья по материнской линии (c) подушный налог (d) казначейство (e) наследство, очищенное от долгов и завещательных отказов (f) доля, акция (g) скончавшийся (h) обычное право

Task  3. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

LEGAL PRACTICE IN MEDIEVAL ISLAM

The organization of the Islamic state under the Umayyads was not based upon any firm separation of the executive and judicial functions. Settlement of disputes of a private nature was a specific duty delegated to a judge. The judges came to have a general judicial competence, and by the end of the Umayyad period they had become the central organ for the administration of law.

With the accession to power of the Abbasid dynasty and its declared policy of implementing the system of religious law currently being worked out by the scholar-jurists, the status of the judiciary was greatly enhanced. Henceforth the judges became inseparably linked with Shari'a law which it was their bounden duty to apply. Organized as a profession under the authority of a chief judge, they were no longer the spokesmen of a law which represented the command of the district governor but now owed allegiance exclusively to God's law. But the Shari'a courts never attained that position of supreme judicial authority independent of political control. Although judges may have been appointed by the chief judge, the judiciary held office only during the pleasure of the political authority, as indeed did the chief justice himself, and their character of political subordinates was responsible for a serious limitation on their powers of jurisdiction which existed from the outset.

The factor which seriously impaired the efficiency of the Shari'a courts was the system of procedure and evidence by which they were bound. On the basis of the initial presumption attached by the law to the facts (e.g. the presumption of innocence in a criminal case or the presumption of freedom from debt in a civil suit) the parties of litigation were allotted to the roles of plaintiff and defendant respectively, the former being the party whose assertion ran counter to this presumption, the latter the party whose assertion was supported by it. Upon the plaintiff fell the burden of proof, and this burden could shift many times in the course of the same suit. Whether on an intermediate or the ultimate issue the burden of proof was always the same; the plaintiff had to produce two male adult Muslims to testify orally to their direct knowledge of the truth of his claim. Written evidence was not acceptable and any form of circumstantial evidence was totally inadmissible. Some limited exceptions were recognized — in certain cases one witness might be sufficient if the plaintiff also took an oath confirming his claim and the testimony of women might be acceptable (though two women were usually required to take the place of one man) — but in all cases the witness had to possess the highest quality of moral and religious probity. Where the plaintiff failed to discharge this rigid burden of proof, the defendant was offered the oath of denial. Properly sworn on the Qur'an such an oath secured judgment in his favour; if he failed to take it, judgment would be given for the plaintiff provided, in some circumstances, he himself took an oath. The rigidly formalistic and mechanical nature of Shari'a procedure left little or no scope for the exercise of any discretion by the judge in controlling proceedings before him.

Criminal law was the obvious sphere where political interests could not tolerate the cumbersome nature of Shari'a procedure. Jurisdiction here mainly belonged to the police, the delegate who exercised it being alternatively called the official in charge of crimes. These courts considered circumstantial evidence, heard the testimony of witnesses of dubious character, put them on oath and cross-examined them; they imprisoned suspects, convicted them on the basis of known character and previous offences, might make the accused swear the oath by a local saint instead of on the Qur'an, and in general could take such measures to discover guilt, including the extortion of confessions, as they saw fit.

Enough has now been said to indicate that Shari'a law, however strong its religious force as providing an ideal and comprehensive code of conduct for the individual, can form only a part of the Islamic legal system. Islamic legal practice was based on a dual system of courts. Islamic government has never meant, in theory or in practice, the exclusive jurisdiction of Shari'a tribunals.

 (a) ANSWER THE FOLLOWING QUESTIONS:

1. What was the system of procedure in the Shari'a courts like?

2. What was the system of procedure in the police courts like?

(b) Explain the meaning of the following words and expressions:

· official in charge of crimes

· circumstantial evidence

· the oath of denial

· burden of proof

· written evidence

· supreme judicial authority

· judiciary

· spokesmen of a law

· judicial competence

Task  4. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

CONTEMPORARY ISLAM. 20-th century tendencies in islamic states

Western law was directly adopted in the field of crime and civil transactions generally, while traditional Shari'a doctrine continued to govern the sphere of personal status. Recent trends, however, have tended to break down this firm division. In the civil law a growing emphasis has been placed on religious principles. A merger of foreign and Islamic elements is the outstanding feature of the Iraqi Civil Code promulgated in 1953. Family law, on its side, has been increasingly permeated with Western standards and values, and its here that the juristic basis of the law, viewed as a whole, appears most complex.

Economic grounds alone were thus held to justify the total abolition of family settlements under the traditional waaf system (a settlement of property under which ownership of the property is «immobilized» and the usufruct thereof is devoted to a purpose which is deemed charitable by the law) in Syria in 1949 and in Egypt three years later, while social necessity has been the declared basis of certain recent reforms in that traditional most invulnerable sphere of Shari'a — the law of succession. In 1945 a judicial circular in Sudan allowed bequests to be male, within the established limit of one-third of the net estate, in favour of legal heirs, and expressly stated the reason for this reform to be the need felt by testators to make additional provision for the less fortunate of these heirs.

An even more radical departure from the traditional law of succession is contained in the Tunisian law of 1959 which provides that any lineal descendant of the deceased, male or female, excludes the deceased's collateral relatives from intestate succession; for under the agnatic system of traditional law the brothers of the deceased, in the absence of any surviving male ascendant or descendant, are the primary residuary heirs. It is obviously the concept of the family, as consisting of the husband, wife, and their issue, which inspired the Tunisian reform.

The second feature of modern Islamic law which is relevant to the question of potential future development is the fact that many of the substantive reforms must appear, on a long-term view, as temporary expedients and piecemeal accommodations. But certain provisions, such as the partial restrictions placed upon polygamy and repudiation, point inevitably towards the direction which future progress must follow and can represent only the intermediate stage in the advancement of a society along this road.

In other cases reforms, far-reaching in themselves, disclose a root problem which has still to be solved. The restriction of polygamy and repudiation is obviously aimed at the ultimate goal of equality between the sexes.

Though radical might the break with past tradition be, it is nevertheless a break with a particular construction of the religious law and not with its essence. This, at any rate, would seem to be the only realistic basis for future development and the only alternative to a complete abandonment of the notion of a law based on religion. Law, to be a living force, must reflect the soul of a society; and the soul of present Muslim society is reflected neither in any form of outright secularism nor in the doctrine of the medieval text books.

 ANSWER THE FOLLOWING QUESTIONS:

1. What is the first feature of modern Islamic law?

2. What is the second feature of modern Islamic law?

Task  5. Translate from Russian into English:

(1) В шариатских судах истец должен был предоставить двух взрослых мужчин-мусульман, чтобы они подтвердили справедливость его требований.

(2) Письменные показания в этих судах не принимались.

(3) Суды шариата никогда не достигали позиции органа высшей судебной власти.

(4) Иудейские и христианские общины платили подушный налог в обмен на защиту властей.

(5) В Коране содержится много положений, касающихся порядка наследования.

(6) Коран запрещает ростовщичество.

(7) Коран содержит много правил о разводе и браке.

 

Task 6. Trace the development of the following laws and institutions in Islamic countries during the centuries? You can rely on all the four texts:

  • Inheritance Law
  • Family Law
  • Judgment system
  • Rules of Succession

Unit 3. NOTARY PUBLIC



Дата: 2019-02-02, просмотров: 387.