scholarly journals THE COLLECTIVE ACTIONS HELD HOSTAGE BY THE AUTHORITARISM

2018 ◽  
Vol 1 (1) ◽  
pp. 85-99
Author(s):  
Ada Pellegrini Grinover
Keyword(s):  
Process Model ◽  
Social Process ◽  
Class Action ◽  
Fundamental Rights ◽  
Executive Power ◽  
Access To Justice ◽  
Collective Actions ◽  
Political Configuration ◽  
The Government ◽  
Judicial Protection

The judicial protection of  collective interests represents, at the end of the millennium, one of the most impressive conquests of the Brazilian legal system. The transindividual interests which are particular to mass society are full of political relevance and, to that extent, are capable of transforming stratified judicial concepts. The recognition of these interests and the need to protect them have highlighted their political configuration in Brazil. In this way, the theory of public liberty forged a new “generation” of fundamental rights. In the same way, one can note that, at the constitutional level, the concepts of jurisdiction and litigation were renewed, while some fundamental guarantees were reformed. The most notable revolution, however, might have taken place in the procedural sphere, departing from an individual process model toward a social process model In Brazil, the Judiciary power has also taken advantage of class action lawsuits in terms of rationalization and work projection. The social objective of the judicial function was lost in view of the fragmentation and the pulverization of conflicts, always regarded as individual. There is a notable tendency to replace atomized decisions with a molecular treatment of litigation. Nevertheless, the Executive power has revealed itself to be inattentive to the reality of collective action and has tried to reduce its effectiveness, limiting access to courts, compressing the associative moment, and diminishing the role of the Judiciary. In this perspective, many years after the introduction of judicial protection for collective and diffuse interests in Brazil, the balance would have been positive, had the government not adopted an authoritarian line when applying legal treatment to the matter. It is possible to affirm that collective actions are a part of the current legal routine, despite the attacks which they suffer. The Judiciary power is significantly implanted in this context, it is conscious of its new role and of its renewed importance, and by way of its sentences, it was capable of occupying a position of leadership which points toward future challenges. The only note that rings false in this context is the attitude of the government with relation to the use of Provisional Measures to reverse such a situation, attacking collective actions and trying to diminish their efficiency in order to limit the access to Justice, to frustrate the associative moment and to make the Judiciary seem less important. The Legislative power, complacent or inattentive, has not been able to resist the attacks and to react to the attitudes of the government.

scholarly journals THE COLLECTIVE ACTIONS HELD HOSTAGE BY THE AUTHORITARISM

2018 ◽  
Vol 1 (1) ◽  
pp. 85-99
Author(s):  
Ada Pellegrini Grinover
Keyword(s):  
Process Model ◽  
Social Process ◽  
Class Action ◽  
Fundamental Rights ◽  
Executive Power ◽  
Access To Justice ◽  
Collective Actions ◽  
Political Configuration ◽  
The Government ◽  
Judicial Protection

The judicial protection of  collective interests represents, at the end of the millennium, one of the most impressive conquests of the Brazilian legal system. The transindividual interests which are particular to mass society are full of political relevance and, to that extent, are capable of transforming stratified judicial concepts. The recognition of these interests and the need to protect them have highlighted their political configuration in Brazil. In this way, the theory of public liberty forged a new “generation” of fundamental rights. In the same way, one can note that, at the constitutional level, the concepts of jurisdiction and litigation were renewed, while some fundamental guarantees were reformed. The most notable revolution, however, might have taken place in the procedural sphere, departing from an individual process model toward a social process model In Brazil, the Judiciary power has also taken advantage of class action lawsuits in terms of rationalization and work projection. The social objective of the judicial function was lost in view of the fragmentation and the pulverization of conflicts, always regarded as individual. There is a notable tendency to replace atomized decisions with a molecular treatment of litigation. Nevertheless, the Executive power has revealed itself to be inattentive to the reality of collective action and has tried to reduce its effectiveness, limiting access to courts, compressing the associative moment, and diminishing the role of the Judiciary. In this perspective, many years after the introduction of judicial protection for collective and diffuse interests in Brazil, the balance would have been positive, had the government not adopted an authoritarian line when applying legal treatment to the matter. It is possible to affirm that collective actions are a part of the current legal routine, despite the attacks which they suffer. The Judiciary power is significantly implanted in this context, it is conscious of its new role and of its renewed importance, and by way of its sentences, it was capable of occupying a position of leadership which points toward future challenges. The only note that rings false in this context is the attitude of the government with relation to the use of Provisional Measures to reverse such a situation, attacking collective actions and trying to diminish their efficiency in order to limit the access to Justice, to frustrate the associative moment and to make the Judiciary seem less important. The Legislative power, complacent or inattentive, has not been able to resist the attacks and to react to the attitudes of the government.

scholarly journals THE COLLECTIVE ACTIONS HELD HOSTAGE BY THE AUTHORITARISM

2018 ◽  
Vol 1 (1) ◽  
pp. 85-99
Author(s):  
Ada Pellegrini Grinover
Keyword(s):  
Process Model ◽  
Social Process ◽  
Class Action ◽  
Fundamental Rights ◽  
Executive Power ◽  
Access To Justice ◽  
Collective Actions ◽  
Political Configuration ◽  
The Government ◽  
Judicial Protection

The judicial protection of  collective interests represents, at the end of the millennium, one of the most impressive conquests of the Brazilian legal system. The transindividual interests which are particular to mass society are full of political relevance and, to that extent, are capable of transforming stratified judicial concepts. The recognition of these interests and the need to protect them have highlighted their political configuration in Brazil. In this way, the theory of public liberty forged a new “generation” of fundamental rights. In the same way, one can note that, at the constitutional level, the concepts of jurisdiction and litigation were renewed, while some fundamental guarantees were reformed. The most notable revolution, however, might have taken place in the procedural sphere, departing from an individual process model toward a social process model In Brazil, the Judiciary power has also taken advantage of class action lawsuits in terms of rationalization and work projection. The social objective of the judicial function was lost in view of the fragmentation and the pulverization of conflicts, always regarded as individual. There is a notable tendency to replace atomized decisions with a molecular treatment of litigation. Nevertheless, the Executive power has revealed itself to be inattentive to the reality of collective action and has tried to reduce its effectiveness, limiting access to courts, compressing the associative moment, and diminishing the role of the Judiciary. In this perspective, many years after the introduction of judicial protection for collective and diffuse interests in Brazil, the balance would have been positive, had the government not adopted an authoritarian line when applying legal treatment to the matter. It is possible to affirm that collective actions are a part of the current legal routine, despite the attacks which they suffer. The Judiciary power is significantly implanted in this context, it is conscious of its new role and of its renewed importance, and by way of its sentences, it was capable of occupying a position of leadership which points toward future challenges. The only note that rings false in this context is the attitude of the government with relation to the use of Provisional Measures to reverse such a situation, attacking collective actions and trying to diminish their efficiency in order to limit the access to Justice, to frustrate the associative moment and to make the Judiciary seem less important. The Legislative power, complacent or inattentive, has not been able to resist the attacks and to react to the attitudes of the government.

scholarly journals Access to Justice in Ukrainian Criminal Proceedings During the COVID-19 Outbreak

2020 ◽  
Vol 3 (2-3) ◽  
pp. 115-133
Keyword(s):  
Fundamental Rights ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Council Of Europe ◽  
Democratic Development ◽  
Judicial Control ◽  
Legitimate Interests ◽  
Court Proceedings ◽  
Criminal Matters ◽  
Judicial Protection

This article examines relevant issues of criminal proceedings in the context of the COVID-19 pandemic in Ukraine. In the wake of the COVID-19 pandemic, many governments have focused their efforts on protecting democratic values and ensuring not only the rights and legitimate interests of their people, but also their lives and health. At the same time, the pandemic has affected not only the economies of countries, but also their democratic development and fundamental rights, which have always been a priority of any democratic society. Courts and law enforcement authorities have faced challenges that have been and still are adequately addressed in order to ensure that the rights and legitimate interests of those seeking judicial protection are respected. Each state independently assessed the degree of risks and the extent of permissible restrictions on the rights and freedoms of persons involved in the proceedings, so the present study analyses the different approaches that have been applied. At the same time, documents of the Council of Europe for the Efficiency of Justice (CEPEJ) have gained high importance, because they, among others, have developed tools for Council of Europe member states to address the problems of ensuring access to justice in the pandemic. The generalization and widespread discussion of such experiences is important, because it will be useful for states to further improve existing legislation, taking into account best practices. Based on a study of changes introduced in the Ukrainian legislation to prevent the spread of the coronavirus disease, conclusions are proposed about the nature and extent of the restrictions, as well as the principles on which they should be based and the guarantees to be provided. Recommendations that will contribute to improving the regulation of access to justice in criminal matters in a pandemic are also proposed. Key words: justice in the context of the COVID-19 pandemic; access to justice in the context of the COVID-19 pandemic; judicial control over the protection of rights, freedoms and legitimate interests of persons in criminal proceedings; the investigating judge; reasonable terms of criminal proceedings; publicity and openness of court proceedings; trial by videoconference.

scholarly journals Public Interest Litigation: A Conceptual Framework

2010 ◽  
pp. 85-89
Author(s):  
Manas Ranjan Samantaray ◽  
Mritunjay Sharma
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Good Governance ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Special Role ◽  
Public Interest Litigation ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Government

Public interest litigation (PIL) has a vital role in the civil justice system in that it could achieve those objectives which could hardly be achieved through conventional private litigation.PIL, for instance, offers a ladder to justice to disadvantaged sections of society, provides an avenue to enforce diffused or collective rights, and enables civil society to not only spread awareness about human rights but also allows them to participate in government decision making. PIL could also contribute to good governance by keeping the government accountable. This article will show, with reference to the Indian experience, that PIL could achieve these important objectives. However, the Indian PIL experience also shows us that it is critical to ensure that PIL does not become a facade to fulfil private interests, settle political scores or gain easy publicity. Judiciary in a democracy should also not use PIL as a device to run the country on a day-today basis or enter the legitimate domain of the executive and legislature. The challenge for states, therefore, is to strike a balance in allowing legitimate PIL cases and discouraging frivolous ones. One way to achieve this balance could be to build in economic (dis)incentives in PIL and also confine it primarily to those cases where access to justice is undermined by some kind of disability. Judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to play in the constitutional scheme. It can review legislation and administrative actions or decisions on the anvil of constitutional law. For the enforcement of fundamental rights one has to move the Supreme Court or the High Court’s directly by invoking Writ Jurisdiction of these courts. But the high cost and complicated procedure involved in litigation, however, makes equal access to jurisdiction in mere slogan in respect of millions of destitute and underprivileged masses stricken by poverty, illiteracy and ignorance. The Supreme Court of India pioneered the Public Interest Litigation (PIL) thereby throwing upon the portals of courts to the common man. Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and was seen as a private pursuit for the vindication of private vested interests. Litigation in those days consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances/problems. Thus, the initiation and continuance of litigation was the prerogative of the injured person or the aggrieved party. However, these entire scenario changed during Eighties with the Supreme Court of India led the concept of public interest litigation (PIL). The Supreme Court of India gave all individuals in the country and the newly formed consumer groups or social action groups, an easier access to the law and introduced in their work a broad public interest perspective.

scholarly journals A Importância do Princípio Constitucional do Devido Processo Legal para o Efetivo Acesso à Justiça no Brasil

2014 ◽  
Vol 9 (1) ◽  
Author(s):  
Bernardo Silva de Seixas ◽  
Roberta Kelly Silva Souza
Keyword(s):  
Due Process ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Procedural Law ◽  
Constitutional Principle ◽  
Due Process Of Law ◽  
The Law ◽  
The Government

A IMPORTÂNCIA DO PRINCÍPIO CONSTITUCIONAL DO DEVIDO PROCESSO LEGAL PARA O EFETIVO ACESSO À JUSTIÇA NO BRASIL THE IMPORTANCE OF THE CONSTITUTIONAL PRINCIPLE OF DUE PROCESS OF LAW FOR EFFECTIVE ACCESS TO JUSTICE IN BRAZIL  Bernardo Silva de SeixasRoberta Kelly Silva Souza RESUMO: Os direitos fundamentais do devido processo legal e do acesso à justiça constituem importantes temas de estudo no direito processual, pois visam proteger todos os outros direitos. Preliminarmente abordou-se acerca dos princípios constitucionais e do devido processo legal. Os princípios constitucionais são fontes vitais de interpretação do direito, tanto no momento da elaboração como na aplicação das normas. O devido processo legal assegura aos litigantes um processo igualitário, em que todas as garantias previstas em lei sejam obedecidas pelas partes e, ao final, na prolação de uma sentença por um juiz imparcial. Posteriormente, buscou-se tratar do acesso à justiça e seus obstáculos. O presente estudo teve, portanto, como objetivo geral verificar e analisar se o princípio do devido processo legal é realmente importante para o efetivo acesso à justiça pelos brasileiros. Apesar de o acesso à justiça e o devido processo legal estarem previstos na Constituição, tais direitos ainda necessitam de efetivação por parte do Poder Público, pois é de suma importância que seja observado o princípio do devido processo legal, para que seja alcançado um efetivo acesso à justiça pelos cidadãos. PALAVRAS CHAVES: Princípios Constitucionais; Devido Processo Legal; Acesso à Justiça. ABSTRACT: The fundamental rights of due process of law and of access to justice constitute relevant themes of study in the procedural law, given that they aim to protect all other rights. Preliminarily, it was discussed the constitutional principles and the due process of law. Constitutional principles are vital sources of interpretation of law, either at the time of the development or the application of norms. Due process of law assures to litigants an equalitarian process in which all the guarantees provided for under the law are followed by the parties and, in the end, in the rendering of a judgment by an impartial judge. Subsequently, we sought to address the access to justice and its obstacles. The following study was therefore aimed to verify and analyze if the principle of due process of law is really important for the effective access to justice for Brazilians. Despite the fact that the access to justice and the due process of law are provided for in the Constitution, such rights still require effectuation by the Government, because it is really important that the principle of due process of law is observed, in order to reach an effective access to justice by the citizens.KEYWORDS: Constitutional Principles; Due Process of Law; Access to Justice. SUMÁRIO: Introdução. 1. Os princípios constitucionais. 2. O princípio do devido processo legal. 2.1. Aspecto material. 2.2. Aspecto processual. 3. Acesso à justiça. 3.1. Conceito. 3.2. Obstáculos ao acesso à justiça. 4. A importância do princípio do devido processo legal para o acesso efetivo à justiça. 5. A arguição de preceito fundamental incidental e o princípio do devido processo legal. Análise da ação direta de inconstitucionalidade 2231-8/DF. Considerações finais. Referências.

Formation of the research tradition of studying the institute Parliamentarism as a mechanism for the establishment of democracy

2017 ◽  
pp. 187-198
Author(s):  
Akil Ibrahim Al-Zuhari
Keyword(s):  
Balance Of Power ◽  
Research Strategy ◽  
The State ◽  
Executive Power ◽  
Research Tradition ◽  
Stage Of Development ◽  
The People ◽  
Long Time ◽  
The Government ◽  
Parliamentary Regimes

The article defines the features of the process of forming the research tradition of studying the institute of parliamentarism as a mechanism for the formation of democracy. It is established that parliamentarism acts as one of the varieties of the regime of functioning of the state, to which the independence of the representative body from the people is inherent, its actual primacy in the state mechanism, the division of functions between the legislative and executive branches of government, the responsibility and accountability of the government to the parliament. It is justified that, in addition to the regime that fully meets the stated requirements of classical parliamentarism, there are regimes that can be characterized as limited parliamentary regimes. The conclusions point out that parliamentarism does not necessarily lead to a democracy regime. At the first stage of development of statehood, it functions for a long time in the absence of many attributes of democracy, but at the present stage, without parliamentarism, democracy will be substantially limited. Modern researchers of parliamentarism recognize that this institution is undergoing changes with the development of the processes of democracy and democratization. This is what produces different approaches to its definition. However, most scientists under classical parliamentarianism understand such a system, which is based on the balance of power. This approach seeks to justify limiting the rights of parliament and strengthening executive power. Keywords: Parliamentarism, research strategy, theory of parliamentarism, types of parliamentarism

scholarly journals A Law and Economics Perspective on the EU Directive on Representative Actions

2021 ◽  
Author(s):  
L. Visscher ◽  
M. Faure
Keyword(s):  
Law And Economics ◽  
Class Action ◽  
Third Party ◽  
Collective Actions ◽  
Member States ◽  
Eu Directive ◽  
Opt Out ◽  
Contingency Fees ◽  
Party Funding ◽  
The Eu

AbstractThis article provides an analysis of the Directive on representative actions for the protection of the collective interests of consumers of 25 November 2020. The Directive enables qualified entities to bring representative actions on behalf of the consumer. The article uses a Law and Economics approach to stress the advantages of collective actions as a tool to remedy rational apathy and free-rider behaviour. The article therefore in principle welcomes the fact that this Directive will lead to all Member States having some form of collective redress. However, it is rather difficult to fit this Directive into the economic criteria for centralization as there is no obvious danger of cross-border externalities or a race-to-the-bottom. The article is critical of the fact that the Directive only provides for a representative action and does not mention the alternative of a group action (sometimes referred to as a class action). This is especially problematic if there are very few qualified entities that could bring the representative action. Furthermore, the fact that Member States may choose an opt-in procedure instead of an opt-out procedure is critically evaluated. The most problematic aspect of the Directive is the funding of the representative action. Punitive damages and contingency fees are rejected, and the possibility of third-party funding is restricted. It is therefore to be feared that this Directive, notwithstanding the good intentions, may not lead to much application in practice, since the question of how the representative action is to be financed is not resolved in any satisfactory manner.

scholarly journals Kerk en owerheid binne ’n regstaat. Die profetiese roeping van die kerk met betrekking tot die Suid-Afrikaanse owerheid

2000 ◽  
Vol 34 (1) ◽  
Author(s):  
N. Vorster ◽  
J.H. Van Wyk
Keyword(s):  
South African ◽  
Fundamental Rights ◽  
Theoretical Argument ◽  
The South ◽  
African Government ◽  
Constitutional State ◽  
African Context ◽  
The Government ◽  
Just Society ◽  
The Church

Church and government within a constitutional state. The prophetic calling of the church towards the South-African government With the transition to a new political dispensation in South Africa, a constitutional state has been established. A typical characteristic of this new dispensation is that the government remains neutral while the executive powers are subject to the Bill of Human Rights. The question of how the church can realize its prophetic task towards the government within the context of a constitutional state is highlighted in this article. The central theoretical argument is that a constitutional state that acknowledges fundamental rights provides an excellent opportunity for the church to fulfil its prophetic calling within the South African context. The church can contribute to a just society by prophetic testimony within the perspective of the kingdom of God.

scholarly journals Rights and Powers in the European Union: Towards a Charter that is Fully Applicable to the Member States?

2020 ◽  
pp. 1-22
Author(s):  
Aida TORRES PÉREZ
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Rights Protection ◽  
Scope Of Application ◽  
Judicial Protection ◽  
Eu Fundamental Rights ◽  
The Eu

Abstract This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To improve our understanding of the boundaries of the Charter and the potential for further expansion, I will examine the legal avenues through which the CJEU has extended the scope of application of EU fundamental rights in fields of state powers. While the latent pull of citizenship towards a more expansive application of the Charter has not been fully realized, the principle of effective judicial protection (Article 19(1) TEU) has recently shown potential for protection under EU law beyond the boundaries of the Charter. As will be argued, effective judicial protection may well become a doorway for full application of the Charter to the Member States. While such an outcome might currently seem politically unsound, I contend that a progressive case-by-case expansion of the applicability of the Charter to the Member States would be welcome from the standpoint of a robust notion of the rule of law in the EU.

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