scholarly journals Dejudicialization and Proceduralism Based on the Nature of Conflicts and According to the Brazilian Constitution

2021 ◽  
Vol 13 (13) ◽  
pp. 341-356
Author(s):  
Fernando Gonzaga Jayme ◽  
Victor Barbosa Dutra
Keyword(s):  
Conflict Resolution ◽  
Civil Society ◽  
Social Development ◽  
Dispute Resolution ◽  
Due Process ◽  
The State ◽  
Access To Justice ◽  
Conflict Processing ◽  
Alternative Means ◽  
Approach Method

The objective of this paper is to show that Access to Justice is a broader concept than Access to the Judiciary. Apart from the movements for access to justice, it is the intention to prove that the Alternative Means of Dispute Resolution and the studies of Conflict Perspective are equally relevant, having in mind that they both defend a plurality of conflict processing institutions (state or not), based on the hypothesis that dejudicialization is an important way to strengthen institutions and promote economic and social development. Therefore, the deductive approach method was used in conjunction with the propositional-juridical method to demonstrate that the exhaustion of the state-owned model in solving conflicts shows that it is possible (and necessary) to develop the Proceduralism beyond the scope of the Judiciary, in order to institutionally expand forms of conflict resolution in civil society. From this, the concept of Proceduralism arises, interconnected with the due process and which is also suitable for the out-of-court ways of dispute resolution, in order to achieve adequate, effective and due process protection, so that pacification is carried out along the lines of constitutional guarantees, with constitutional procedurality also acting on the unjudicialized means of resolving conflicts.

scholarly journals Advocacy as a tool for the realization of the fundamental right of a person to professional legal assistance

2021 ◽  
Vol 66 ◽  
pp. 240-243
Author(s):  
P. Badzeliuk
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Legal Status ◽  
Legal Profession ◽  
The State ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Legal Assistance ◽  
The Right ◽  
Legal Entities

This article is devoted to the study of the implementation of the fundamental right of a person to professional legal assistance through the vectors of influence of the bar, the role of the human rights institution in the mechanism of such a right and its place in public life.An effective justice system provides not only an independent and impartial judiciary, but also an independent legal profession. Lawyers play an important role in ensuring access to justice. They facilitate the interaction between individuals and legal entities and the judiciary by providing legal advice to their clients and presenting them to the courts. Without the assistance of a lawyer, the right to a fair trial and the right to an effective remedy would be irrevocably violated.Thus, the bar in the mechanism of protection of human and civil rights and freedoms is one of the means of self-limitation of state power through the creation and active functioning of an independent human rights institution, which is an active subject in the process of fundamental rights. The main constitutional function of the state is to implement and protect the rights and freedoms of man and citizen, and the constitutional and legal status of the legal profession allows it to actively ensure the rights of civil society as a whole and not just the individual. Effectively implement the human rights function of the state by ensuring proper interaction between the authorities and civil society, while being an active participant in the law enforcement mechanism and occupying an independent place in the justice system.Thus, the activities of lawyers are a complex manifestation of both state and public interest. After all, it is through advocacy and thanks to it that the rule of law realizes the possibility of ensuring the rights and freedoms of its citizens. Advocacy, on the one hand, has a constitutionally defined state character, and on the other hand, lawyers should be as independent as possible from the state in order to effectively protect citizens and legal entities from administrative arbitrariness. Thus, the bar is a unique legal phenomenon that performs a state (public-law) function, while remaining an independent, non-governmental self-governing institution.

scholarly journals IS THERE CIVIL SOCIETY IN BANGLADESH?

2018 ◽  
pp. 36-38
Author(s):  
M. S. Islam
Keyword(s):  
Civil Society ◽  
Political Parties ◽  
Social Development ◽  
The State ◽  
Civil Society Organizations ◽  
Historical Method ◽  
The Government ◽  
And Control ◽  
Local Levels

Сivil society is a group of people excluded from the government and the army and providing a counterbalance and control of the state at the national and local levels in the country. In Bangladesh, since independence in 1971, civil society organizations have been successfully involved in social development, but they have been criticized not to be able promote democracy in Bangladesh because of their support for political parties. Therefore, it impedes strong opposition to corruption and non-democratic activities in the country. In this article, using the historical method, the author analyzes the features and role of civil society in Bangladesh.

scholarly journals Alternative Dispute Resolution Mechanisms in Colombia and Russia: Conciliation and Mediation

Justicia ◽  
2021 ◽  
Vol 26 (40) ◽  
pp. 128-142
Author(s):  
Milton Arrieta López ◽  
Abel Meza Godoy ◽  
Ilya Vladimirovich Afanasiev ◽  
Vladimir Dmitriyevich Sekerin ◽  
Sara Noli
Keyword(s):  
Qualitative Research ◽  
Conflict Resolution ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Initial Phase ◽  
Access To Justice ◽  
Human Right ◽  
Russian Constitution ◽  
Dispute Resolution Mechanism

In this article, the authors compare alternative conflict resolution mechanisms in Colombia and Russia. In the former, conciliation is the most developed alternative dispute resolution mechanism, while in the latter, mediation is the most developed. In order to deepen this comparison, a qualitative research of interpretative nature has been developed with the support of bibliographic-documentary material. The main conclusion is that access to justice is a human right that has been positivized as a fundamental right in the constitutions of both Colombia and Russia. However, the Colombian Constitution allows individuals to exercise their jurisdictional functions on a temporary basis, unlike the Russian Constitution, which only authorizes judges from the Federation to exercise their jurisdictional functions. While conciliation in Colombia is developed and implemented through State-supervised Conciliation and Arbitration Centers, mediation in Russia is in its initial phase and has gradually gained acceptance in society. In both states, the implementation of alternative dispute resolution mechanisms has been driven by the need to decongest the courts and tribunals of ordinary justice. Therefore, it is useful to insist on the massive use of these instruments to make possible a justice that comes from the parties in conflict, that can repair the relations of the subjects in dispute and that tends towards the construction of more peaceful societies.

scholarly journals “New Regionalization”: Modernization of Russian Universities and Experience of Germany

2019 ◽  
Vol 28 (6) ◽  
pp. 86-96 ◽  
Author(s):  
T. A. Balmasova
Keyword(s):  
Higher Education ◽  
Economic Development ◽  
Civil Society ◽  
Social Development ◽  
The State ◽  
Third Mission ◽  
Regional Context ◽  
The Third ◽  
Socio Economic Development ◽  
Russian Universities

The importance of the supporting universities in each region is quite high, because the main purpose of creating them is to provide an efficient cooperation between the region and the system of higher education. Through the supporting universities it is possible to solve the most pressing problems facing not only regions but also the state as a whole. The interaction between higher education and regions is associated with the strengthening of the “third mission” of universities, the implementation of which makes university a key «player» in the economic and social development of a region and introduces significant changes in the university’s relations with its partners: industry, business, government, civil society institutions. The first section of the article focuses on the identification of the main parameters of the regional activities of Russian universities as active participants in the socio-economic development of region. The second section systematizes the experience of German universities on the implementation of the «third mission» in the regional context.

scholarly journals On Independence, Impartiality and Justification of Judicial Power

2019 ◽  
Vol 6 (1) ◽  
pp. 25-31
Author(s):  
Alexander Vital'evich Smirnov
Keyword(s):  
Civil Society ◽  
Theoretical Basis ◽  
Due Process ◽  
The State ◽  
Primary Task ◽  
Main Task ◽  
Civilian Control ◽  
Criminal Process ◽  
Bureaucratic Control ◽  
Voluntary Initiative

The article considers the principle of independence of the judiciary as one of the guarantees of its objectivity and impartiality, and at the same time as the primary task of the judicial policy. A dangerous decline in the level of public confidence in the judiciary is signaled. The theoretical basis for the proposed solutions in the article is the doctrine of the adversarial proceedings and the idea of the judiciary as a mediating link between the state and civil society. The method of achieving this goal is: the formation of an effective content of the judiciary; ensuring due process of law; establishing effective civilian control over the judiciary. It is argued that the role of the trigger for this can be accomplished by four primary measures: the establishment of bodies whose collective name is “magistracy councils” for the formation of an independent judiciary, bringing together representatives of civil society and the state; a significant increase in the jurisdiction of the jury court so that every criminal case (perhaps, with the exception of cases of crimes of a small public danger) can be considered at will of the accused with their participation; democratization of the institute of justices of the peace, which are considered “miniature jury”; the introduction in the criminal process of the institute of investigative judges, whose main task, subsidiary to the activities of the parties, is the legalization (almost exclusively at the request of the parties) of judicial evidence and the decision on the possibility of committal the case to court. It is proposed to increase the motivation of citizens to participate in the consideration of criminal cases as jurors, namely, by establishing additional lists of candidates for jurors, formed through voluntary initiative inclusion of candidates in it (self-recording) through the use of electronic resources. Compared to other publications devoted to the issue of judicial independence, this article proposes a new approach to its solution, based not on strengthening bureaucratic control over the activities of judges, but on maximizing the democratization of judicial activities, in a certain sense “denationalizing” in favor of civil society.

scholarly journals Politicized Civil Society in Bangladesh: Case Study Analyses

2017 ◽  
Vol 9 (1) ◽  
pp. 98-123 ◽  
Author(s):  
Farhat Tasnim
Keyword(s):  
Civil Society ◽  
Political Parties ◽  
Social Development ◽  
Case Studies ◽  
Good Governance ◽  
Local Level ◽  
The State ◽  
Civil Society Organizations ◽  
Typical Scenario

Although civil society in Bangladesh is recognized for its vibrant performance in social development, it is often criticized for its inability to ensure good governance and democracy. The aim of this paper is to point out the reasons for this failure of civil society. Through performing case studies upon five civil society organizations representing different sector and level of the civil society, the paper concludes that civil society organizations in Bangladesh are often politicized and co-opted by different political parties. In a typical scenario, civil society can provide a counterbalance or even monitor the state both at the national and local level. However, in Bangladesh, often the civil society organizations have compromised their autonomy and politicized themselves to certain political parties or political block. In such a vulnerable position, civil society can hardly play its expected role to ensure good governance and strengthen democracy.

scholarly journals Mediação policial, segurança pública e segurança humana: uma abordagem reflexiva / Police mediation, public security and human security: a reflexive approach

2016 ◽  
Author(s):  
Aline Chianca Dantas
Keyword(s):  
Conflict Resolution ◽  
Civil Society ◽  
Qualitative Study ◽  
Criminal Policy ◽  
Human Security ◽  
The State ◽  
Public Security ◽  
Police Practice ◽  
Política Criminal

Resumo: Este trabalho debate se a mediação policial é um instrumento de humanização da segurança pública ou não, ensejando uma discussão maior sobre como tornar a segurança pública mais humana. Assim, discutem-se as premissas da segurança pública tradicional, o papel da polícia e do Estado e as bases da segurança pública humana. Passa-se a um estudo da mediação enquanto meio de resolução de conflitos e, especificamente, da mediação policial. Destaca-se o papel da mediação enquanto política criminal e verifica-se que a mediação policial tem características que a aproximam da segurança humana; mas, ainda está abarcada pela figura do Estado e permeada pela segurança pública tradicional. Conclui-se, então, que a mediação policial, apesar de estar imbricada com os interesses estatais, consegue incluir características mais humanas na prática policial, abarcando a figura da vítima de maneira mais protetora, possibilitando a resolução dos conflitos sociais de forma mais direta e aproximando o Estado da sociedade civil. Aponta-se, no entanto, para a necessidade de reformas mais amplas na segurança pública brasileira. Para o desenvolvimento dessa discussão, realiza-se um estudo qualitativo, utilizando-se de uma metodologia baseada em pesquisas bibliográficas sobre as temáticas apresentadas, breves exposições de casos em que a mediação policial foi utilizada e verificação de associação entre os elementos da teoria de segurança humana e a prática da mediação policial.Palavras-chave: Mediação policial; Segurança pública; Segurança humana. Abstract: This paper debates whether police mediation is a humanizing instrument of public security or not, aiming to trigger a larger discussion about how public security can be made more human. Thus, it discusses the assumptions of traditional public security, the role of the police and the state and the bases of human public security. It goes through a study of mediation as a mean of conflict resolution hovering specifically over the police mediation. It highlights the role of mediation as a criminal policy and argues that police mediation has characteristics that approximate it to the human security, while still being embraced by the figure of the state and permeated by traditional public security. It concludes that police mediation, despite being intertwined with state interests, can include more human characteristics in police practice, comprehending the figure of the victim more protectively, thus enabling the resolution of social conflicts more directly while approaching the state to civil society. It points out, however, to the necessity of broader reforms within Brazilian public security. In order to develop this discussion, a qualitative study was carried out, using a methodology based on bibliographic research on the presented issues, as well as brief reviews of cases where police mediation was used and finally, a verification of the association between elements of human security theory and the practice of police mediation.Keywords: Police Mediation; Public Security; Human Security.

scholarly journals Relevance Of Magna Carta To Rights Of Victims Of Abuse Of Power

SEEU Review ◽  
2015 ◽  
Vol 11 (1) ◽  
pp. 48-58
Author(s):  
Besa Arifi
Keyword(s):  
Due Process ◽  
The State ◽  
Point Of View ◽  
Access To Justice ◽  
List Type ◽  
Abuse Of Power ◽  
Comparative Aspect ◽  
Magna Carta ◽  
The Law ◽  
The Right

AbstractMagna Carta Libertatum is one of the few documents that continuously imply thorough discussions about fundamental principles of the law. In 2011,Lord McNelly, Justice Minister of UK at the time, has emphasized the core and everlasting principles that derived from this document:᠅ that the power of the state is not absolute᠅ that whoever governs the state must obey the law᠅ and that whoever governs the state must take account of the views of those who are governed (McNally, 2011).These are the fundamental principles of any government that strives to be distinguished as democratic, these are the self-evident truths that have been developed in the theory of social contract that established the modern day democracies.It is very common that article 39 of Magna Carta that provides for the right to due process, as well as article 40 that provides for the right to access to justice and justice itself, to be usually analyzed from the point of view of the rights of the person accused of a crime. However, it must be taken into consideration, that failure to guarantee these two very important human rights makes the accused person a victim of abuse of power.This article aims to analyze the relevance of Magna Carta in the rise of the concept of rights of victims of abuse of power. Although it is a concept developed later in history, the clauses of Magna Carta that remain in power can be directly linked to this category of victims.The thirteenth century provides a very important perspective on the position of the victim of crime and can be analyzed in a comparative aspect regarding the Common Law and the Civil Law historical development. The article will briefly explain the evolution of the concept of victims’ rights throughout these eight centuries to the modern times when these rights have become a crucial part of the national legislations of Western Balkan countries.

scholarly journals Access to Justice and the Legal Complex: Building a Public Defenders’ Office in Brazil

2020 ◽  
Vol 12 (2) ◽  
pp. 155-176
Author(s):  
Rodrigo M. Nunes
Keyword(s):  
Civil Society ◽  
Latin American ◽  
Rule Of Law ◽  
Political Influence ◽  
The State ◽  
Access To Justice ◽  
The Rule Of Law ◽  
Public Defenders ◽  
Political Position ◽  
Complex Building

Latin American democracies have developed institutions to empower citizens against the state. This article brings attention to an often overlooked, but key, actor in these processes: the legal complex. I argue that the content of reforms designed to strengthen the rule of law partially reflects the interests of politically influential collective legal actors. Political influence is defined as a function of alliances with civil society and embeddedness within decision-making arenas of the state. To develop this argument, the article analyses the slow building of Brazil’s Public Defenders’ Office (PDO). I argue that the office’s initial institutional weakness resulted from defenders’ fragile political position relative to that of prosecutors and the bar during Brazil’s constitutional transition. Its eventual strengthening sixteen years later resulted from changes to the legal complex alliance in its favour, the formation of connections between defenders and civil society, and increased PDO access to policymaking spaces.

Online Dispute Resolution for Consumers in Portugal and in the European Union

2016 ◽  
pp. 128-146
Author(s):  
Fernando Viana ◽  
Francisco Pacheco Andrade
Keyword(s):  
European Union ◽  
Conflict Resolution ◽  
Dispute Resolution ◽  
Information Society ◽  
State Courts ◽  
Access To Justice ◽  
The European Union ◽  
European Level ◽  
Online Dispute Resolution ◽  
Administration Of Justice

Administration of Justice became complex in Consumers and Information Society. It is necessary to look for new solutions for the increasing situations of consumer's litigation. Traditional State Courts are not a solution due to their slow, heavy and costly ways of functioning. The way is clearly open for Arbitration Centers based in friendly mechanisms such as mediation, concilitation and arbitration. Regulation EU nr. 524/2013 of European Parliament and Council of the 21st of May on online consumer's conflict resolution has as aim the creation of a conflict resolution platform at european level. We propose to analyze the Regulation and its implications and to show the functioning of the platform that is being developped and that should be available for both for consumers and corporations from 9th January 2016 on. It will be analyzed the new requirements of access to Justice in the field of Consumer's conflicts, the new ADR Directive and the regulation on ODR in order to meet the challenges brought along by the introduction of the new platform for conflict resolution.

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