Revista Jurídica Portucalense

Risks to Privacy v. Risks to Public Safety, a Dilemma to be overcome in the (Digital) Risk Society. Comments on the partially dissenting vote of Mr Justice Pinto De Albuquerque in the case of Big Brother Watch And Others v. The United Kingdom

Tayrone MARQUESINI CHIAVONE — Sun, 25 Feb 2024 00:00:00 +0000

The article examines the dilemma between privacy and public security in the context of the Big Brother Watch v. United Kingdom case, viewed through Ulrich Beck's concept of the Digital Risk Society. It explores the transition to a Digital Risk Society, highlighting challenges posed by the Fourth Industrial Revolution and increased digital surveillance. The article discusses the "riskification" process of privacy and data protection, emphasizing the regulatory shift from informational self-determination to risk management. It analyzes Judge Pinto Albuquerque's opinion, underlining his concerns about the proportionality and necessity of mass interceptions and the dangers of an electronic "Big Brother." The article concludes by pointing out the need for a more technical and conscious balance between privacy and security, stressing the importance of raising public awareness about surveillance risks.

Commentary on the ECHR´s Correia de Matos v. Portugal judgment from the perspective of discrimination of professional groups

Catherine MAIA, Rafaela MENDEL — Tue, 09 Apr 2024 00:00:00 +0100

The purpose of this commentary is to analyse the contribution of Judge Paulo Pinto de Albuquerque, a member of the Grand Chamber, to the judgment of the European Court of Human Rights (ECtHR) in the case of Correia de Matos v. Portugal (Application n° 56402/12) of 4 April 2018. In this case, the applicant complained of the decision of the Portuguese domestic courts refusing to allow him to conduct his own defence in the criminal proceedings against him and requiring that he be represented by a lawyer. The ECtHR held, by nine votes to eight, that there had been no violation of Article 6 §§ 1 and 3 (c) (right to a fair trial/right to defend oneself in person) of the European Convention on Human Rights. Judge Pinto de Albuquerque expressed a dissenting opinion. The central issue addressed is discrimination of professional groups, i.e. the position of Portuguese legislation which makes self-representation impossible in criminal proceedings.

Proof and Truth: Antagonism or Difficulty?

José Luís Bonifácio RAMOS — Sat, 17 Feb 2024 00:00:00 +0000

Regarding the duality between proof and truth, it is important to know whether the search for truth, the susceptibility of achieving the veracity of facts is possible. Therefore, in addition to the distribution of the burden of proof and the assessment of evidence, it is important to pay attention to the available methodologies. Namely the judgment of likelihood, the maxims of experience, as a mechanism linked to hypothetical judgments, the degrees of proof or evidentiary standards, corresponding to levels of probability. In fact, regarding standards, they can be rigid or flexible and assume a quantitative orientation of probabilities that allows a level of evidentiary conviction. On the other hand, the mechanism of probabilistic methods has generated criticism and the preference for explanationism or relative plausibility.

Artificial intelligence and the novelty of the Brazilian judiciary in the integration of the UN 2030 agenda

Sat, 17 Feb 2024 00:00:00 +0000

This article aims to discuss the action plan of the Judiciary, with emphasis on the performance of the Federal Supreme Court and the National Council of Justice in the integration of the Sustainable Development Goals, the United Nations, the Court and, systemically, the Brazilian Judiciary. The National Council of Justice has been building a fruitful path in the institutionalization of the 2030 Agenda and in the proposition of judicial policies, expanding the scope of the debate in this area, adding partnerships and strengthening research, innovations and the use of artificial intelligence. This bibliographic descriptive research is based on printed and electronic media and the national legal framework. At the end of the research, it became evident that the Brazilian Judiciary, in a pioneer initiative in an international dimension, incorporated the Sustainable Development Goals of the 2030 Agenda of the United Nations in its routine and in the administrative and extrajudicial management, through the development of tools and the use of artificial intelligence, indexing them in its taxonomic structure of judicial processes.

The European Green Deal

Antonio GOUCHA SOARES — Sat, 17 Feb 2024 00:00:00 +0000

The article focuses on the legislative reform presented by the European Green Deal, at the beginning of the Commission mandate. It starts by analyzing the regulatory roadmap fixed by the Fit for 55 program and the first step towards its achievement, with the adoption of the so-called European Climate Act. The article then focuses on some core pieces of the ambitious legislative reform in view of the Union's climate transition, which seeks to achieve a balance between the reduction of greenhouse gas emissions and the increase of net removals by expanding carbon sinks: on the one hand, the review of the emissions trade system and the reform of the energy taxation directive; on the other hand, the quality of land use and the increase in forest area, as well as the intended nature restoration law, aimed to put biodiversity on the path to recovery and to restore natural ecosystems.

The United Nations Convention on the Law of the Sea and the marine environment: a contribution to the analysis of the regulation of the protection and preservation of the marine environment in UNCLOS

Tiago Vinicius ZANELLA — Sat, 17 Feb 2024 00:00:00 +0000

The central purpose of this paper is to comprehensively analyze how the United Nations Convention on the Law of the Sea (UNCLOS) establishes standards and regulates the protection and prevention of the marine environment. Systematically, the article seeks not only to understand the relevance of UNCLOS for international law but also to highlight its influence on the global legal scenario and for the protection and preservation of the marine environment. The analysis explores the Convention's main attributes and implications for international law, providing a more complete view of its role in the environmental context. By examining the distinctive features of the UNCLOS text, the study investigates its innovations in comparison with other treaties, evaluating their practical applicability. Furthermore, attention is devoted to the complex issue of State sovereignty over natural resources in the maritime context, focusing on avoiding environmental damage to third States and areas beyond its jurisdiction. Thus, this article aims to contribute to a deeper understanding of the impact and effectiveness of UNCLOS in preserving the marine environment and developing international law.

Problems related to the alimony tax regime

Daniel TABORDA, Nuno de LEMOS JORGE, António MARTINS — Sun, 25 Feb 2024 00:00:00 +0000

considering that progressive taxation is a constitutional imperative the tax regime for alimony pensions in terms of personal income tax (IRS) is analysed, considering, in particular, deductions limits and the way in which the alimony obligation is determined in accordance with civil law. The rationality of the argument of regressive nature of deductions as a basis for the conversion of expenses and limiting the deductible value of these expenses is critically considered, in order to highlight (a)symmetry in taxation and (im)balance in our legal system, either in itself or in comparison to the tax regime of other obligations that have some affinity with alimony pensions.

The free uses of copyrighted works in Cape Verdean law - notes on a brief essay on its scope and foundation

José Maria MONIZ — Fri, 01 Mar 2024 00:00:00 +0000

The scope of this essay is to scrutinize the limitations to which copyright is subject in the Capeverdean legal system. For this purpose, we will analyze, at first, the copyright protection regime and the systems aimed at limiting the rights granted to the author. Subsequently, we will study the system adopted at internal level, and the range of limitations formulated by the ordinary legislator. The result of this essay is, among others, that the domestic legal framework classifies free uses taxatively and is highly protectionist of copyright, for which we argue for some flexibilization

Judicial Control on “Internal Corporal Acts”: Case of the Right Action of Inconstitutionality 6524 In the Light of the Exception of the Political Nature of Rui Barbosa

Martonio MONT´ALVERNE BARRETO LIMA, Francisco Thiago PINHEIRO LEITÃO — Sat, 02 Mar 2024 00:00:00 +0000

The article aims to carry out an analysis of the judgment of Direct Action of Unconstitutionality 6,524 by the Supreme Federal Court in relation to the thesis of the exception of the political nature of the cause defended by Rui Barbosa, in order to identify the relevance of the respective teachings. Therefore, the analysis will aim to compare the judgment of Direct Action of Unconstitutionality 6,524 and Rui Barbosa's lessons on the constitutional exception. This is bibliographic and documentary research. The hypothesis is that the control of purely political acts is possible, as long as they keep projection in the text of the Constitution. The conclusion of the research was that the judgment of ADI 6,524 is in line with the thesis of political nature and its consequences, especially under the political role played by the Supreme Court.

Foreign Experience of Responsibility for Driving Vehicles in Condition of Alcohol Intoxication: International Standards, Administrative and Criminal Aspects

Wed, 13 Mar 2024 00:00:00 +0000

The purpose of the article consists in revealing foreign experience of responsibility for driving vehicles in condition of alcohol intoxication (international standards, administrative and criminal aspect). Considered is the legislation of some European countries (Great Britain and Germany), Australia and the USA regarding responsibility for driving vehicles in condition of alcohol intoxication. Attention is drawn to the fact that among the possible measures, legislation of some states provides for mandatory equipment of the offender’s vehicle with an alcohol blocking device or mandatory rehabilitation or rehabilitation programs (the so-called “therapeutic jurisprudence”). It has been concluded that the legislation of the European Union countries, the United States and other countries of the world try to deter serious violators and so-called “repeat offenders” by means of creating specialized courts (organizational factor), strengthening punishment sanctions (jurisdictional factor), spreading educational and therapeutic programs (medical educational factor) and using vehicle blocking devices in case of identification of alcohol in the driver’s organism (technical factor).

Surrogacy in Portugal: drawing insights from international practices

Wed, 13 Mar 2024 00:00:00 +0000

As Portugal prepares to implement surrogacy legislation, it enters a realm fraught with legal, ethical, and psychological complexities. Across the globe, jurisdictions exhibit diverse approaches to surrogacy, reflecting cultural, ethical, and legal diversity. This necessitates a comprehensive understanding of the implications of surrogacy within different legal systems. Moreover, the psychological impact on surrogates, intended parents, and offspring demands careful examination. As Portugal embarks on this journey, it must navigate ethical challenges, ensuring the protection of all parties involved. Furthermore, addressing research gaps and ethical dilemmas will be paramount in crafting legislation that upholds the rights and well-being of all individuals affected by surrogacy arrangements.

The right to freedom to choose the type of business: The case of VietNam

Lam NGUYEN VAN, Quang VU — Mon, 18 Mar 2024 00:00:00 +0000

The right to freedom of business is a fundamental right enshrined in the Vietnamese constitution, the ability of subjects to do what they want, choose, and decide for themselves all matters related to business activities that are not prohibited by law. In particular, the content of the freedom to choose the type of business is considered basic and important. However, Vietnamese law only treats freedom of business as a right of enterprises and only recognizes certain types of enterprises that are considered popular, which limits citizens' freedom to choose types of businesses. This paper uses systematization, analysis, explanatory methods, and comparative jurisprudence methods, etc. to analyze theoretical issues and the current legal situation regarding the freedom to choose types of enterprises in Vietnam, propose some solutions to improve the law and effectively enforce the law, ensure the freedom to do business of citizens.

The (lack of) transparency of the funding received by parliamentary groups: a study in the light of Spanish Law

Álvaro GONZÁLEZ-JULIANA — Mon, 18 Mar 2024 00:00:00 +0000

The scarce regulation of subsidies granted to parliamentary groups, together with the absence of their control by the Chambers, makes it urgent to ensure transparency in the use of these public funds in order to ensure to guarantee true accountability. This article analyses the applicability of the Spanish Law 19/2013, of 9 December, on transparency, access to public information and good governance to these subsidies, highlighting the insufficiency of active publicity in this area and the difficulties in in making the right of access to this information effective.

Non-fixed working hours in the context of globalisation: the impact of international trends on national legislation and employers' practices

Fri, 22 Mar 2024 00:00:00 +0000

Globalisation and information technology are having an active impact on various spheres of society, from the economic sphere to labour relations. The direct impact on the labour sphere can be seen in the change in trends in the definition of working hours, as today there are more opportunities for compromise between employees and employers on setting working hours and agreeing on the possibility of non-fixed working hours. This has resulted in flexible working arrangements. This is what makes this study relevant. The purpose of this study is to identify the benefits of non-fixed working hours and to analyse the challenges faced by participants in labour relations when establishing flexible working hours in the context of globalisation. It is important to study global patterns and trends in the introduction of flexible working hours at the international level, taking into account international regulations. It is also advisable to assess the impact of international recommendations on the formation of national labour legislation in the framework of non-fixed working hours. In order to achieve this purpose, a number of methods of scientific knowledge were used, such as systematic analysis, synthesis, formal legal method, dialectical method and method of analysis of regulatory documents. The findings will serve as a basis for further research in this area and will contribute to the development of recommendations for adapting the current legislation to the realities of today, the rapid development of information technology and globalisation.

Apprehend Electronic Mail: The Code of Criminal Procedure and Cybercrime Law Regimes

Joaquim RAMALHO, Fernando ALMEIDA — Fri, 22 Mar 2024 00:00:00 +0000

Cybercrime is a crime whose prevalence has increased considerably over recent years. The publication of the Cybercrime Law sought to prevent and combat computer crime, however the duplication of regimes with the Code of Criminal Procedure led to difficulties in their interconnection between the norms. Therefore, this paper aims to reflect on the process of the special regime for the apprehend of electronic mail and the general regime for the correspondence apprehend, regarding the need for a prior order from the judge for the respective apprehension.