Fundamental Legal Rights Research Articles

O acesso à justiça em Cabo Verde – As expectativas do 25 de Abril e as lições da experiência brasileira

Access to justice is one of the conditions of democracy, especially in countries that, like Cape Verde, are in the mature phases of development, after consolidating their independence. However, it is worth revisiting a set of situations that occur in the country, especially when the expectations of 25 April 1974 are revived, when the open doors to decolonization and democracy were announced. However, after five decades, we can observe, on the one hand, the maintenance of social inequalities that have an impact on the slowness of justice. Without access to justice there is no sustainable development. There are several factors that make access to justice difficult, putting at risk one of the fundamental legal rights, embodied in the terms of article 22 of the Constitution of the Republic of Cape Verde. On the other hand, and in the case of a country that made a transition to democracy, the case of Cape Verde is highlighted and compared with some parameters of the Brazilian system that gained prominence in access or facilitating access to justice. The underlying question in this comparison is whether the Portuguese post-colonial model followed by Cape Verde in this plan will be the most appropriate, or whether other models, such as the Brazilian one, would not represent factors for improvement.

Die Literaturautonomie im deutschen Rechtssystem. Grenzen, Widersprüche und literaturtheoretische Potenziale

Abstract So far, the question regarding literature’s autonomy has predominantly been discussed from a poetological and historical perspective, with legal manifestations and possibilities of aesthetic autonomy usually being neglected by literary theory. However, in no other area than in (German) jurisprudence it becomes more evident that the concept of an autonomous literary practice, or more precisely the attempt to guarantee it legally, is highly challenging and therefore comes with restrictions. On the one hand, literary practice is legally regarded as a free and autonomous social subsystem. On the other hand, it can easily lead to violations of fundamental rights, meaning that the freedom of art cannot be considered unrestricted and autonomous on a closer look. In the following, the legal challenges of guaranteeing an unregulated literary practice will be discussed based on two fundamental legal rights, namely the freedom of art and copyright laws. The discussion proves to be significant for literary studies as well, as the legal tensions that are connected to the concept of literary autonomy have an influence on the practice of literature and thus also affect its theoretical reflection in literary studies and criticism. Because autonomy can mean several things, it is necessary to define the term ›autonomy‹ as used in this article first. After clarifying the concept of autonomy for the literary context, the focus lies on the legal discourse: The legal regulations in Germany regarding freedom of art and copyrights are first presented individually. Following this, the respective difficulties in guaranteeing the aforementioned legal rights are explained. A closer look will reveal that collisions are unavoidable, and that freedom of art and copyright laws sometimes even happen to be mutually exclusive. The challenges of literature’s autonomy in legal terms becomes particularly apparent by presenting the following two potential conflicts: The first conflict concerns collisions between freedom of art and a legal right of constitutionally similarly high rank, such as personal rights. The second potential conflict demonstrates why the freedom of art can hardly ever be reconciled with copyright provisions. The first case illustrates that the freedom of literary practice sometimes collides with other legal interests and can therefore be restricted, while the second one proves that a self-contradiction within the legal system exists when it comes to the notion of unrestricted autonomy. The first conflict is discussed by revisiting the decision of the German Federal Constitutional Court regarding Maxim Biller’s novel Esra in 2007. The decision, albeit highly controversial, helps to understand why legal barriers are sometimes imposed on works of literature. Additionally, the Esra case shows the legal difficulties of enforcing a ban on novels without fundamentally calling into question the freedom of art. This is also demonstrated by the votes of the dissenting judges at the Federal Constitutional Court which further illustrate the irresolvable challenge between guaranteeing not to impose any legal restrictions on the practice of art, but sometimes doing so whenever the freedom of art collides with personal rights. As a second example, the potential conflict that can arise when using the technique of literary collage or any other that involves adopting elements of existing literary or non-literary texts is discussed. Such a case is even more likely to result in a legal dilemma as there generally is a tension between freedom of art and copyright laws: although copyright laws can be subsumed under freedom of art and even serve as supportive of it, insofar as they aim at protecting the author as the intellectual owner of a work, they are not always beneficial to the freedom of art. This is best exemplified by the aesthetic technique of literary collage, for which the implementation of elements from other texts and media is characteristic and thus might easily conflict with copyright provisions. The example of literary collage demonstrates that without legal regulations some aesthetic practices might run the risk of infringing the respective copyrights as soon as an existing work of art is utilized partially for a new one. This article concludes that the notion of literary autonomy shows to be self-contradictory when discussed from a legal perspective. This observation is not irrelevant for literary theory, insofar as literary autonomy, understood as an unregulated literary practice, thwarts its promise of freedom. As this article argues, the idea of literary autonomy therefore needs revision in literary studies, not least because of its challenging legal dimension.

Wild Things: Animal Rights in EU Conservation Law

The concept of animal rights is highly topical in animal legal scholarship. There is much debate on whether or not animals can and do hold rights, although there does seem to be consensus that animals currently do not have such legal rights that would grant them any foundational protection in the way that human rights do for humans. This article challenges that assumption through a discussion on the legal rights of wild animals under the European Union (EU) Habitats Directive. The article establishes a theoretical framework on animal rights and analyses the Habitats Directive according to the rights framework. It subsequently argues that preliminary fundamental legal rights for certain wild animals can be found in EU conservation law. However, through a discussion on the scope and objective of the Habitats Directive, the article finds that the legal rights that are found are not grounded in the interests of the animals themselves. Instead, the preliminary fundamental animal rights are a by-product of the anthropocentric value of biodiversity and do not support a rights-based approach to animal rights. The article concludes with a discussion on the interpretation that follows from these findings and how an instrument such as the Habitats Directive could implement rights-based wild animal rights.

Odontocetes (‘Toothed Whales’): Cognitive Science and Moral Standing – Are Dolphins Persons?

Abstract Odontocetes, or ‘toothed whales’, have a complex brain structure and possess rationality, self-awareness, sociability and culture. Cognitive science and modern theories of personhood challenge the notion that humans alone are moral persons. This paper reviews evidence from the cognitive science literature relevant to moral personhood in bottlenose dolphins, orcas, and beluga whales. It applies theories of personhood of Peter Singer, David DeGrazia, and Steven Wise, and finds that odontocetes fulfil criteria to be granted at least borderline personhood. The legal implications of attributing personhood to dolphins remains uncertain. Recognition of dolphin personhood may lead to fundamental legal rights against capture, captivity, and killing; alternatively, the courts may continue to restrict legal personhood and associated protections to human beings. Finally, despite the major influence of personhood on morality and law in the West, the biologically more widespread quality of sentience is sufficient for greater moral considerability and legal protections for nonhuman species.

A Strategic Proposal for Legally Protecting Wild Animals

Philosophers have long articulated theories of animal rights. However, concrete questions such as “How should the Constitution of Australia change if it recognized the right to self-determination of some wild animals?” have rarely, if ever, been studied. Inspired by Sue Donaldson and Will Kymlicka’s theory of animal rights, this article explores a legal strategy about how wild animals’ interest in self-determination could be recognized in the Australian Constitution. I argue that conferring strong constitutional protection to wild animals regarding self-determination would require: (1) recognizing fundamental legal rights of wild animals to political representation, immunity from being objects of property rights, self-determination, and territory, and (2) defining to whom the proposed rights would apply and identifying the territories over which animals would have a right to govern themselves. I offer a strategic proposal in relation to point 2 and suggest that granting a legal status beyond the personhood–property divide, what I call “legal animalhood,” is the soundest strategy to recognize the fundamental legal rights of wild animals. Finally, I show that the proposed strategy is a better approach to confer strong legal protection to wild animals than Karen Bradshaw’s property rights strategy and ecocentric approaches.

Linkage Arguments For and Against Rights

Abstract This article is about relations of support and conflict within systems of fundamental legal rights—and the arguments for and against rights that those relations make possible. Justificatory linkage arguments defend controversial rights by claiming that they provide very useful support to the realisation of well-accepted rights. This article analyses such arguments in detail and discusses their structures, uses and pitfalls. It then shows that linkage arguments can be used not just to defend rights, but also to attack them. When rights conflict—whether severely or weakly, logically or practically—negative linkage arguments attacking them can be based on the trouble they make for other rights. Many examples of conflicts of rights are provided. Negative linkage arguments provide reasons for rejecting, repealing or trimming the criticised right. Such arguments are already in regular use, but their close relation to justificatory linkage arguments has not been recognised.

Representing Veterans

Federal law has long deprived American veterans of certain fundamental legal rights enjoyed by non-veterans and attributable to veteran sacrifice. Federal case law, for example, denies veterans the right to bring an action in tort against the federal government to vindicate in-service injuries. And the United States Code deprives veterans of their right to robust judicial oversight of Department of Veterans Affairs (VA) service-connected benefit decisions. This pair of due process deprivations is compounded by the federal statute that prohibits veterans from exercising the fundamental right to counsel during the initial stage of the VA claims process. This Article examines the federal statutory scheme and pertinent case law that has long denied veterans the right to counsel throughout the VA veteran claims adjudication process, debunks the rationales underlying that law, and concludes by recommending that the federal government extend to veterans the right to counsel throughout the VA’s benefits adjudication proceedings.

Combating Crime in the Digital Age: a Critical Review of EU Information Systems in the Area of Freedom, Security and Justice in the Post-Interoperability Era

Abstract This article provides a systematic and critical account of EU information systems in the area of freedom, security and justice, with the aim of establishing the contemporary links between information sharing and criminal law in the EU and of evaluating its impact on individuals. To this end, Part 1 offers a systemisation and critical assessment of the essential elements of the pertinent systems (ECRIS, ECRIS-TCN, Prüm, PNR, Europol, SIS, Eurodac, VIS, EES, ETIAS) and of the new interoperability regime under Regulation (EU) 2019/818, from the perspective of their objective to prevent and combat serious crime and to ensure a high level of security in the EU. In Part 2 the article explores personal data protection law, police law and criminal procedure law, in order to propose safeguards and limitations for effectively regulating this rapidly evolving framework and addressing the growing challenges for fundamental legal principles and individual rights. In this respect, the authors put forward concrete views and ideas, on the basis of their central suggestion that the issue discussed falls within the context of an emerging precognitive paradigm of criminal law.

El Procedimiento de Tutela de Derechos Fundamentales del trabajador en Chile

The labour guardianship or protection proceeding is a kind of procedure foreseen in Chilean legislation which aims to enforce key fundamental legal rights of employees by both applying legal remedies and correcting unlawful behaviour committed by employers. The aim of this paper is to examine the main features of this legal procedure and criticise it from a guarantee-based perspective.

Violencia de género y extraterritorialidad de la ley penal : la persecución de la mutilación genital femenina

El aumento de los flujos migratorios en las últimas décadas ha hecho que conociéramos en nuestro país y en los de nuestro entorno la mutilación genital femenina, práctica perteneciente a las tradición cultural de algunos grupos de inmigrantes, que constituye una manifestación de violencia de género, un atentado a los derechos humanos de las mujeres y que lesiona bienes jurídicos fundamentales recogidos en la Constitución. La tolerancia y el respeto a la identidad cultural de los inmigrantes tiene como límite el respeto de los derechos fundamentales, por lo que no se pueden admitir como lícitas en nuestro país la mutilación de las mujeres inmigrantes, que en la mayoría de los casos son menores de edad. Desde hace tiempo a nivel mundial se lucha para eliminar estas prácticas. Nuestro país se ha unido a esta lucha y siguiendo las recomendaciones internacionales, ha incluido el delito de mutilación genital en el Código penal y en el principio de justicia universal, en virtud de mismo, los Tribunales españoles serán competentes para juzgar las mutilaciones genitales realizadas fuera de nuestro territorio si los responsables se encuentran en España.Increased migration in recent decades has made us to know in our country and in our environment female genital mutilation, a practice belonging to the cultural tradition of some immigrant groups, which are a manifestation of gender violence, a attack on the human rights of women and injured fundamental legal rights enshrined in the Constitution. Tolerance and respect for the cultural identity of immigrants is limited to the respect of fundamental rights and therefore can not be permitted in our country as lawful mutilation of immigrant women, who in most cases are lower of age. It has long worldwide are struggling to eliminate these practices. Our country has joined this struggle and following international recommendations, included the crime of female genital mutilation in the Criminal Code and the principle of universal justice, under it, the Spanish courts are competent to judge genital mutilation carried out our territory if those responsible are in Spain.

The Structure of Conflicts of Fundamental Legal Rights

In recent years, the most widespread doctrine about the conflicts between fundamental (usually constitutional) legal rights could be summarized in the following three main theses: (1) The elements in conflict are legal principles, as opposed to legal rules; (2) Those conflicts are not consequences of the existence of inconsistencies or antinomies between the norms involved, but rather depend on the empirical circumstances of the case. In other words, the norms are logically consistent and the conflicts are not determinable a priori or in abstracto, but only in concreto; and (3) The classical criteria for solving conflicts between norms, such as lex superior, lex posterior and lex specialis, are not suitable to solve conflicts among fundamental legal rights. Indeed, they require a specific method known as ‘weighing and balancing’. Although all three theses could be (and indeed have been) regarded as problematic, in this paper I address mainly the second one. I try to show that there is room for a tertium genus between antinomies (deontic inconsistencies) and conflicts caused by strict empirical circumstances that I call ‘contextual antinomies’. There are situations in which the norms involved are not inconsistent but the conflict arises for logical reasons. My thesis is that many conflicts between fundamental legal rights fall in this category. I offer, in an appendix, a proposal of formalization of this kind of conflict and the elements involved in it.

A Victim's Claim of Being Raped is Neither a Confession to Zina nor Committing Qadhf (Making False Accusation of Zina)

Sexual assault leaves the victims with unbearable emotional pain from the experience. The unwanted aggression against their freewill causes them to suffer physically and mentally. On top of that, they also have to fight to be treated fairly and respectfully during their court trials. There has been some controversy regarding rape prosecution in the Islamic legal system. The reason for this controversy is that the rape victim would usually be either charged with zina because of her confession, or committing qadhf, as a result of her failure to provide four male eyewitnesses. This paper aims at investigating the fundamental legal rights of rape victims who complain of being raped, to be defended fairly, and to get exemption from punishment as provided in Islamic law. This paper also seeks to investigate the admissibility of the individual testimony of the victim against the rapist. This paper suggests that proving rape is not similar to proving zina, because a rape victim who lodges a report or complains of her ordeal of being raped should not be treated the same as a person who confesses to zina. Proving rape is also different from accusing the rapist with committing zina (qadhf). This study will explore opinions and arguments of classical Muslim scholars of Islamic jurisprudence from various schools of thought

Algunos apuntes sobre las razones de la reforma del procedimiento penal en américa latina

<p>Actualmente en Latinoamérica, la mayor parte de los países han modificado sus códigos penales con el objeto de tener una mejor salud procesal. En esta transición, hace falta ayuda internacional real, apoyo, colaboración e intercambio de ideas, programas, experiencias, grupos de trabajo, capacitación a nivel bilateral y multilateral dirigida por expertos para los actores en el sistema penal y para la sociedad.</p><p>Todos los países de Latinoamérica, han tenido éxitos y todos tienen fallas en las reformas procesales desarrolladas en materia penal. Parece entonces oportuno, empezar el dialogo y la colaboración para contribuir a una mejor comprensión y edificación de los sistemas penales y su evolución. Para ello se requiere compartir las experiencias que han funcionado en otros países, adaptándolas al marco jurídico de cada contexto en particular. Por un lado, esto ayuda a mejorar la comprensión operacional del procedimiento penal y por otro lado, el respeto de las garantías jurídicas establecidas en las Cartas Magnas de cada país y por ende estabilidad institucional, seguridad y desarrollo económico para la sociedad.</p>

Constitutional Dilemmas: Conflicts of Fundamental Legal Rights in Europe and the USA by Lorenzo Zucca

Constitutional Dilemmas: Conflicts of Fundamental Legal Rights in Europe and the USA by Lorenzo Zucca

Pluralismo moral y conflictos de derechos fundamentales

El artículo comienza con un análisis del pluralismo de valores, para ocuparse a continuación de la que es su consecuencia más problemática desde la perspectiva del razonamiento práctico: los conflictos de valores. Después de definir los dilemas morales, el artículo pasa a ocuparse de los derechos fundamentales, en la medida en que reflejan el tipo de pluralismo moral antes analizado y pueden llevar, por tanto, a situaciones de conflicto. Como los genuinos dilemas morales, también los conflictos de derechos pueden reflejar el tipo de elección trágica que encierran dichos dilemas. Sin embargo, se afirma que el marco jurídico en que tienen lugar los conflictos entre derechos fundamentales hace que el tipo de soluciones que puede —y debe— ofrecer el derecho se configure de manera diversa a como se presenta el conflicto de valores en el ámbito exclusivamente moral. Sin cancelar el dilema moral subyacente —ni sus trágicas consecuencias morales—, la elección jurídica no tendría que asumir como propio el componente trágico que entraña para la moral la presencia de dilemas genuinos.

Skal idrætten fortsat have sit eget retssystem? En analyse af det idrætsretlige system set i lyset af Anja Andersen-sagen

Artiklen handler om, i hvilket omfang idrætten kan betragtes som et isoleret område med eget retssystem, eller hvorvidt de civile domstoles behandling skal findes anvendelse for sportsudøvere, ledere og trænere i de sager, der kan opstå i forbindelse med idrætsudøvelse. Artiklen gennemgår behandlingen af den såkaldte Anja Andersen sag. 
 
 Jens Bertel Rasmussen: Should athletic associations continue to have their own system of justice? An analysis of the system of justice within sports associations focusing on the Anja Andersen-case 
 Sports associations have their own system of justice, containing rules and laws on punishment and bans. This article focuses on the issue of whether sports associations can be looked upon as being an isolated area, containing values and standards of its own or if the laws and values of society apply to athletes, leaders and coaches as well. Are certain fundamental legal rights being violated, when sports associations sentence either individuals, teams or associations to fines or bans? Through an analysis of the system of justice in the sports associations and an analysis of the legal rights and rules in question, the article concludes that rules and laws should apply to the sports associations in the same degree as they apply in society in general. Having said that, there are certain matters surrounding sports associations that entail different rules and systems to apply. The author of the article therefore concludes, that a separate system of justice in sports associations in some matters is crucial and acceptable as long as fundamental values and legal rights are respected. This can be accomplished by converting all sports justice systems to one system, which will ensure an equal case handling for all sorts of athletes as well as leaders, coaches and associations.

Constitution and common law in bioethics.

In recent years legal intervention in bioethical matters has increased notably following various paths: court decisions, parliamentary acts, codes of conduct and solemn declarations (i.e. European Bioethics Convention, 1997, or the UNESCO Genome Declaration, 1997). Body and liberty, as a question of fundamental legal rights, are constitutionalized along two paths. The former is vertical (a text created at central level is open to ratification and domestic implementation to finally become the rule in concrete cases). The latter is, above all, horizontal. It is characterized by the existence at world level of a number of centres and institutions, with the judiciary and judge-made law playing a major role. The most important new rights and freedoms in bioethics have been recognized in this ever-changing and troubled environment. The horizontal way has the great advantage of considering the differences as a resource and not as a limit. In the case law on bioethics a sort of jurisprudential model seems to be at work, that goes some way toward a judge-made law at a universal level. Cases such as Cruzan, Bland and Massimo held the fundamental concept of self-determination with surprising similarity. But we don't know if one of them has influenced the others, always supposing that the judges were aware of them. Today's first duty is to raise the consciousness of judges as to how common their problems are and how often their rulings are similar to each other's.

The legal basis for the Danish Committee on Scientific Dishonesty.

The author, a High Court Judge, has chaired the Danish Committee on Scientific Dishonesty (DCSD) since its establishment in 1992. The Committee has worked in the health sector, but from 1999 the scope has been broadened to cover all fields of science. The article describes how the work is organised and the experiences gained. It is stressed, that the difficulty in connection with scientific dishonesty is, first and foremost, to organise a system suitable for investigating cases effectively, professionally, and with proper respect to the fundamental legal rights of the parties involved. The Committee has also spent much effort in determining what can be termed scientific dishonesty and what falls outside this category but which may, nevertheless, be characterised as breaching of good scientific practice. It is emphasised that these rules are not arbitrarily established by the Committee, but formulated in accordance with norms general accepted by opinion leaders in the scientific community.

Boundaries of Legitimacy: Sex, Violence, Citizenship, and Community in a Local Sexual Economy

Studies of prostitution have overlooked the role of law in constituting the identities and sexual practices of women in the sex trade and defining the boundary between legitimate and illegitimate violence in the sexual economy. Drawing on field work with sex trade participants in a northwestern United States city, this paper explores how the cultural logic of modern liberal law shapes women's identities and interpretations of their actions. In positioning women in the sex trade as “sexual outlaws” to be managed and subjected to the full scope of legal authority, the law simultaneously limits women's citizenship and withdraws its protection. Moreover, in restricting women's capacity to invoke fundamental legal rights, the law effectively sanctions “private” or extralegal forms of discipline and creates a space for violence. Given the paradoxical position these women hold as sexual outlaws on the one hand and frequent victims of physical and sexual assault on the other, I explore how they negotiate consent and resist violence.

Slavery, Contentment, and Social Freedom

It is usually admitted that the slave who always gets what he wants and never wants what he cannot get may properly be described as being free in one of the many senses of the term. Contentment, or satisfaction, is a kind of freedom. Indeed, he might even be freer than his master in this sense; and even if he is not, he might still be freer in the sense of being more self-controlled, or (like Epictetus and his kind) in being personally more dignified and autonomous. But the concession is also usually accompanied by a qualification: these senses of the term are taken to apply only to his psychological condition; as far as his social freedom is concerned he remains as unfree as the next slave.' Admittedly, the grounds for rejecting the claim that his contentment entails his social freedom appear to be unassailably self-evident. A slave is, by definition, someone who lacks certain fundamental legal rights, eliminated by his status as a chattel or a piece of property; and, as legal freedom is essentially a matter of possessing these (and further) rights, the slave, contented or not, must be legally unfree. And if a slave is legally unfree it necessarily follows that he is also socially unfree, for legal rights may be cashed in terms of the range of opportunities secured by law to their bearer, irrespectively of whether he wants to take advantage of them or not, and social freedom, construed as the more general availability of options, embraces legal freedom as one of its logically necessary conditions.2