A Constituição e o Direito Justo

Também publicado em DELGADO, José Pina (org.) e SILVA, Mário Ramos Pereira (org.) "Estudos em Comemoração do XXº Aniversário da Constituição da República de Cabo Verde", Praia: Edições do ISCJS, 2013, [9]-29 pp

A democracia na teoria do direito constitucional

Texto incluído na obra colectiva "Liber Amicorum em homenagem ao Prof. Doutor João Mota de Campos, Coimbra: Coimbra Editora, 2013, 467-502 pp.

A restrição ao sigilo bancário decorrente do regime de branqueamento de capitais

Technologic and socio-economic mutations have always determined challenges not only to lawyers, but to law itself. These phenomena have occurred specially when trying to deal with the hard task of finding solutions for the current increasing mismatch of social interests, for example, bank secrecy and money laundering. Usually occurring simultaneously, they are typical examples of outcomes generated by technological and socio-economic innovations that have become fashionable and captured international attention. At the same time, bank secrecy and money laundering support interests belonging to different dimensions, deserving to be balanced in the light of the heterogeneous mechanisms provided by the law to its practitioners and society as a hole. In order to achieve an outcome in accordance with the Rule of Law´s principles, lawyers´ tools are consequently subordinated to constitutional and social justice. Guided by this purpose, we performed the present study, aiming to analyse bank secrecy and money laundering in the light of the current stablished juridical procedures. We intended to develop a prudent point of view that is also in accordance with social reality. In sum, we demonstrate that bank secrecy should adopt a flexible character, embedding new settings and following the socio-economic path in a globalized world with constant innovations.

A intervenção dos orgãos de polícia criminal em sede de julgamento

Currently, Portugal assumes itself as a democratic rule of substantive law State, sustained by a legal system seeking the right balance between the guarantee of fundamental rights and freedoms constitutional foreseen in Portugal’s Fundamental Law and criminal persecution. The architecture of the penal code lies with, roughly speaking, a accusatory basic structure, “deliberately attached to one of the most remarkable achievements of the civilizational democratic progress, and by obedience to the constitutional commandment”, in balance with the official investigation principle, valid both for the purpose of prosecution and trial. Regarding the principle of non self-incrimination - nemo tenetur se ipsum accusare, briefly defined as the defendant’s right of not being obliged to contribute to the self-incrimination, it should be stressed that there isn’t an explicit consecration in the Portuguese Constitution, being commonly accepted in an implicit constitutional prediction and deriving from other constitutional rights and principles, first and foremost, the meaning and scope of the concept of democratic rule of Law State, embedded in the Fundamental Law, and in the guidelines of the constitutional principles of human person dignity, freedom of action and the presumption of innocence. In any case, about the (in) applicability of the principle of the prohibition of self-incrimination to the Criminal Police Bodies in the trial hearing in Court, and sharing an idea of Guedes Valente, the truth is that the exercise of criminal action must tread a transparent path and non-compliant with methods to obtain evidence that violate the law, the public order or in violation of democratic principles and loyalty (Guedes Valente, 2013, p. 484). Within the framework of the penal process relating to the trial, which is assumed as the true phase of the process, the witness represents a relevant figure for the administration of criminal justice, for the testimonial proof is, in the idea of Othmar Jauernig, the worst proof of evidence, but also being the most frequent (Jauernig, 1998, p. 289). As coadjutant of the Public Prosecutor and, in specific cases, the investigating judge, the Criminal Police Bodies are invested with high responsibility, being "the arms and eyes of Judicial Authorities in pursuing the criminal investigation..." which has as ultimate goal the fulfillment of the Law pursuing the defense of society" (Guedes Valente, 2013, p. 485). It is in this context and as a witness that, throughout operational career, the Criminal Police Bodies are required to be at the trial hearing and clarify the Court with its view about the facts relating to occurrences of criminal context, thus contributing very significantly and, in some cases, decisively for the proper administration of the portuguese criminal justice. With regards to the intervention of Criminal Police Bodies in the trial hearing in Court, it’s important that they pay attention to a set of standards concerning the preparation of the testimony, the very provision of the testimony and, also, to its conclusion. Be emphasized that these guidelines may become crucial for the quality of the police testimony at the trial hearing, thus leading to an improvement of the enforcement of justice system. In this vein, while preparing the testimony, the Criminal Police Bodies must present itself in court with proper clothing, to read before and carefully the case files, to debate the facts being judged with other Criminal Police Bodies and prepare potential questions. Later, while giving his testimony during the trial, the Criminal Police Bodies must, summing up, to take the oath in a convincing manner, to feel comfortable, to start well by convincingly answering the first question, keep an attitude of serenity, to adopt an attitude of collaboration, to avoid the reading of documents, to demonstrate deference and seriousness before the judicial operators, to use simple and objective language, to adopt a fluent speech, to use nonverbal language correctly, to avoid spontaneity responding only to what is asked, to report only the truth, to avoid hesitations and contradictions, to be impartial and to maintain eye contact with the judge. Finally, at the conclusion of the testimony, the Criminal Police Bodies should rise in a smooth manner, avoiding to show relief, resentment or satisfaction, leaving a credible and professional image and, without much formality, requesting the judge permission to leave the courtroom. As final note, it’s important to stress that "The intervention of the Police Criminal Bodies in the trial hearing in Court” encloses itself on a theme of crucial importance not only for members of the Police and Security Forces, who must welcome this subject with the utmost seriousness and professionalism, but also for the proper administration of the criminal justice system in Portugal.

Arguição da dissertação de doutoramento do licenciado Tiago José Pires Duarte - "A lei por detrás do orçamento: a questão constitucional da lei do orçamento"

Separata da revista THEMIS - Revista da Faculdade de Direito da UNL, Ano VII - Nº 12, 2006

Trust, alliance management capability and the alliance management function: A comparative analysis of Portuguese SMEs

Strategic alliances represent a key driver for internationalization and growth, being the purpose of this work project to better understand the intertwined relationship between trust and the existence of an alliance management position. Previous research supports the positive impact of such position in stock market returns. However, little attention has been given to the impact of such position on the level of trust in the collaborative arrangement, which is deemed to be a key driver for alliance success. A qualitative comparative case-study of three Portuguese SMEs is used to draw conclusions from the literature to real life business cases and it demonstrates the positive impact of an alliance management position on trust.

The effectiveness of supply chain management on firm's performance: A comparative case study

The purpose of the paper is to investigate the effectiveness of supply chain management (SCM) practices to increase a company’s performance based on a cross-border and cross-sector analysis. The paper follows a comparative case study approach which was achieved by interviewing supply chain management experts of three companies operating in different industries and positions in a supply chain. Practices that were mutually applied by the firms and their contribution to achieve quality, economic, cost, and time advantages were analyzed. The paper revealed practices, which contribute the most to increase specific performance areas.

Compaction quality control on site of earthworks - A comparative study

The capacity to use geologic materials (soil and rock) that are available in the surrounding environment is inherent to the human civilization and has contributed to the evolution of societies throughout the course of history. The use of these materials in the construction of structures such as houses, roads, railways or dams, stirred the improvement of socioeconomic and environmental conditions. Several reports of structural problems on embankments can be found throughout history. A considerable number of those registers can be linked to inadequate compaction, demonstrating the importance of guaranteeing a suitable quality of soil compaction. Various methodologies and specifications of compaction quality control on site of earthworks, based on the fill moisture content and dry unit weight, were developed during the 20th century. Two widely known methodologies are the conventional and nuclear techniques. The conventional methods are based on the use of the field sand cone test (or similar) and sampling of material for laboratory-based testing to evaluate the fill dry unit weight and water content. The nuclear techniques measure both parameters in the field using a nuclear density gauge. A topic under discussion in the geotechnical community, namely in Portugal, is the comparison between the accuracy of the nuclear gauge and sand cone test results for assessing the compaction and density ratio of earth fills, particularly for dams. The main purpose of this dissertation is to compare both of them. The data used were acquired during the compaction quality control operations at the Coutada/Tamujais dam trial embankment and core construction. This is a 25 m high earth dam located in Vila Velha de Rodão, Portugal. To analyse the spatial distribution of the compaction parameters (water content and compaction ratio), a 3D model was also developed. The main results achieved are discussed and finally some considerations are put forward on the suitability of both techniques to ensure fill compaction quality and on additional research to complement the conclusions obtained.

A equidade na indeminização dos danos não patrimoniais

This study examines the quantification of compensation for non-pecuniary damage, awarded by means of judicial decisions based on equity, and seeks to verify whether such calculation safeguards legal certainty and predictability when applying the law, as well as whether it observes the principles of proportionality and equality. Firstly, the limits for discretionary judgment permitted to the judge were determined, by evaluating the criteria established under the law. Then, by examining the grounds of the judicial decisions in cases that had been selected beforehand, this study sought to detect operation modes in concrete considerations of equity used by judges. The examination of the grounds on which these judicial decisions are based permitted the comprehension of the calculation method used in each case and the observation that the criteria of compensatory nature, such as the extent of the damage and the respective consequences, assumed a primary role. Despite discrepancies in viewpoints with regard to certain issues of law, the jurisprudence examined reveals that great care is taken to consider the solutions reached in similar cases, in an attempt to ensure that the different criteria applied in the quantification of compensation are given uniform relevance. The comparison of decisions, reported to cases with similar legal contours, did not reveal relevant discrepancies in the calculation criteria used, nor are they disproportionate regarding the amount of compensation awarded, which means that resorting to equity, in determining the compensation to be awarded due to nonpecuniary damage, does not jeopardize legal certainty or predictability when applying the law, and observes the principle of proportionality, which is anchored in the constitutional principle of equality. The study performed, led to the conclusion that the grounds on which judicial decisions are based, by itemising the elements which are taken into account and the criteria adopted by the judge, allow these to be taken into consideration in similar cases, contributing towards uniform interpretation and application of the law, ensuring legal certainty and predictability when resorting to equity while quantifying compensation.

O sigilo bancário e a fraude fiscal

Tax evasion and fraud threaten the economic and social objectives of modern tax systems, precluding the state funding for the satisfaction of collective needs and the fair distribution of wealth, being a violation of basic principles and values of our society. In tax law, to give tax administration the necessary powers to supervise and control the information provided by taxpayers and combat tax evasion and fraud, over the last years the grounds for a derogation of bank secrecy without judicial authorization have been extended, which raises some constitutional compatibility issues. Similarly, this tendency of making this legal regime more flexible and increasing automatic exchange of information has been followed by the European Union and the international community. Banking secrecy, as a professional secrecy, is an instrument to protect the right to privacy but also appears as an anti-abuse and repressive mechanism of evasive and fraudulent behaviors. Because of the conflict of interests will always be necessary to make a practical agreement between them, ensuring the legality and the due guarantees of the taxpayers but also an effective way to combat tax evasion and fraud. Bank secrecy cannot be one method to, behind the right to privacy, taxpayers practice illegal activities. But the practice of these irregular conducts also does not justify a total annihilation of the right to banking secrecy, uncovering all documents and bank information’s. Although considering the legislative changes, the administrative derogation of bank secrecy will always be what the tax administration does of it.

Comparative analysis of Spanish Banks’ Standalone credit profile

The paper studies the relationship between four differently rated bank’s financial profile and their standalone credit rating issued by Moody’s. The comparative analysis shows an example that despite their pricing power and geographical coverage, larger banks do not necessarily have better credit ratings. Instead, business model and risk appetite seem to be the defining factors of banks’ vulnerability to shocks, such as the Spanish real estate crisis. The risk-return relationship is also identified in the banks’ fundamentals meaning that while expansionary strategy in riskier asset classes enhances margins, it also potentially distorts the credit risk profile.

The perfect paint in modern art conservation: a comparative study of 21st century vinyl emulsions

Contemporary painting places, and will continue to place, several questions about its meaning, its chemical nature, its durability and the best way to preserve it. This research aims at putting together comprehensive data on vinyl based paints, including their components, their properties, their aging behavior and their response to selected cleaning products. In this project degradation mechanisms of vinyl binders and formulations used in the 20th and 21st century were studied. Stability over time of selected vinyl polymers was assessed through natural indoor and artificially aging. The objective was to enhance knowledge and understanding of vinyl emulsion formulations and their performance over time. Overall conservation state of pictorial layers namely, adhesion, cohesion and discoloration of selected case studies from the Portuguese artist Julião Sarmento (b.1948) was correlated with the observed molecular level changes studied in laboratory experiments. Sarmento’s paintings were chosen due to conservation concerns (discoloration) on some of his works from the 90’s. Besides, research was carried out to start increasing the knowledge of what can be expected of PVAc based paints in terms of response to conservation treatments namely, surface cleaning. Artificial aging showed that the most recent formulations which are based on a poly(vinyl acetate), poly(vinyl chloride) and polyethylene terpolymer are less stable when compared to some homopolymer formulations. From the four pigments studied, titanium dioxide rutile and a carbon based black proved to be stabilizers for both types of polymer. The mixture lithopone plus calcium carbonate has showed to have a photocatalytic effect on the binders. The studied paintings showed to be in an overall good state of conservation except for the paintings created in the 90’s with white glue and a mixture of white lithoponeand calcium carbonate. Discoloration of this white paint seems to be irreversible and ongoing and is still a major concern. The disapearance of the plasticizer was the only change detected. The current works created by Sarmento are expected to be more stable as they were painted using the rutile titanium dioxide. Immersion/cleaning tests showed that vinyl based paints can be susceptible to water and organic solvents like ethanol as some evidences point to the removal/diffusion of additives from the paint. The observations made point to the need to further proceed in this research field.

A comparative review of risk based portfolio allocations: An empirical study throughout rising yields

Since the financial crisis, risk based portfolio allocations have gained a great deal in popularity. This increase in popularity is primarily due to the fact that they make no assumptions as to the expected return of the assets in the portfolio. These portfolios implicitly put risk management at the heart of asset allocation and thus their recent appeal. This paper will serve as a comparison of four well-known risk based portfolio allocation methods; minimum variance, maximum diversification, inverse volatility and equally weighted risk contribution. Empirical backtests will be performed throughout rising interest rate periods from 1953 to 2015. Additionally, I will compare these portfolios to more simple allocation methods, such as equally weighted and a 60/40 asset-allocation mix. This paper will help to answer the question if these portfolios can survive in a rising interest rate environment.

O regime penal das imunidades dos titulares dos órgãos políticos de soberania

Portugal is one of the countries that has a constitutional regime of immunity. This protects certain individuals in political positions from prosecution under the law. These individuals are said to have a privileged status when compared to ordinary citizens. The purpose of this study is to examine the immunities enjoyed by President, the members of Parliament and the government ministers. The regime of immunities can be found to generate a certain sense of injustice and feelings of mistrust since the individual can not, albeit temporarily, be held criminally responsible for criminal conduct. It is urgent, therefore, to find a consistent justification with the principles and values of the Criminal Law. The Parliament is the place of the exercise of democratic power and, therefore, a member of Parliament assumes a central position in parliamentary activity. For this reason, it will be necessary to determine analysis to determine the meaning the prerogative of criminal irresponsibility. One question that must be asked is to know how the dogmatic plan that the immunities of the political organs of sovereignty must be seen.

O âmbito de aplicação material da legislação de proteção de dados pessoais e o tratamento de imagem por pessoa singular

Images have gained a never before seen importance. Technological changes have given the Information Society extraordinary means to capture, treat and transmit images, wheter your own or those of others, with or without a commercial purpose, with no boundaries of time or country, without “any kind of eraser”. From the several different ways natural persons may engage in image processing with no commercial purpose, the cases of sharing pictures through social networks and video surveillance assume particular relevance. Consequently there are growing legitimate concerns with the protection of one's image, since its processing may sometimes generate situations of privacy invasion or put at risk other fundamental rights. With this in mind, the present thesis arises from the question: what are the existent legal instruments in Portuguese Law that enable citizens to protect themselves from the abusive usage of their own pictures, whether because that image have been captured by a smartphone or some video surveillance camera, whether because it was massively shared through a blog or some social network? There is no question the one's right to not having his or her image used in an abusive way is protected by the Portuguese constitution, through the article 26th CRP, as well as personally right, under the article 79th of the Civil Code, and finally through criminal law, articles 192nd and 193rd of the Criminal Code. The question arises in the personal data protection context, considering that one's picture, given certain conditions, is personal data. Both the Directive 95/46/CE dated from 1995 as well as the LPD from 1998 are applicable to the processing of personal data, but both exclude situations of natural persons doing so in the pursuit of activities strictly personal or family-related. These laws demand complex procedures to natural persons, such as the preemptive formal authorisation request to the Data Protection National Commission. Failing to do so a natural person may result in the application of fines as high as €2.500,00 or even criminal charges. Consequently, the present thesis aims to study if the image processing with no commercial purposes by a natural person in the context of social networks or through video surveillance belongs to the domain of the existent personal data protection law. To that effect, it was made general considerations regarding the concept of video surveillance, what is its regimen, in a way that it may be distinguishable from Steve Mann's definition of sousveillance, and what are the associated obligations in order to better understand the concept's essence. The application of the existent laws on personal data protection to images processing by natural persons has been analysed taking into account the Directive 95/46/CE, the LPD and the General Regulation. From this analysis it is concluded that the regimen from 1995 to 1998 is out of touch with reality creating an absence of legal shielding in the personal data protection law, a flaw that doesn't exist because compensated by the right to image as a right to personality, that anyway reveals the inability of the Portuguese legislator to face the new technological challenges. It is urgent to legislate. A contrary interpretation will evidence the unconstitutionality of several rules on the LPD due to the obligations natural persons are bound to that violate the right to the freedom of speech and information, which would be inadequate and disproportionate. Considering the recently approved General Regulation and in the case it becomes the final version, the use for natural person of video surveillance of private spaces, Google Glass (in public and private places) and other similar gadgets used to recreational purposes, as well as social networks are subject to its regulation only if the images are shared without limits or existing commercial purposes. Video surveillance of public spaces in all situations is subject to General Regulation provisions.