O fundamento hegeliano do direito penal e a lógica da pena

pp. 235-259

Aborto recorrente das causas na mulher às consequências para o casal

RESUMO: O aborto recorrente (AR) é um evento extremamente traumático com grande impacto na vida dos casais. Apesar de avanços significativos verificados na investigação médica, cerca de 50% dos casos continua sem uma causa identificada. Alguns aspectos como a caracterização inadequada das doentes e das perdas gestacionais, assim como diferentes metodologias utilizadas no seu estudo, têm influenciado a prevalência de alguns dos factores causais e dificultado a compreensão do AR. Da mesma forma, pouco se sabe sobre as diferenças de género na vivência psicológica do aborto recorrente e das suas eventuais repercussões para o relacionamento do casal, centrando-se os poucos estudos existentes preferencialmente na mulher. Por esta razão, o objectivo desta tese foi a caracterização dos factores médicos associados ao AR e das consequências psicológicas desta entidade, contribuindo para promover estratégias clínicas baseadas na evidência específica. Na primeira parte desta tese (capítulos 1 e 2), após uma breve introdução geral e através de uma revisão da literatura, efectua-se uma reflexão sobre o tema, abordando a epidemiologia do aborto recorrente, os factores médicos e os aspectos psicológicos associados. Nos capítulos 3 e 4 descrevemos três estudos efectuados em mulheres portuguesas com aborto recorrente. O primeiro estudo teve por objectivo caracterizar os factores médicos e determinar o padrão da perda recorrente de gravidez, numa coorte de mulheres submetidas a um protocolo de diagnóstico definido. As participantes foram agrupadas de acordo com a paridade (AR primário ou secundário) e a idade gestacional das perdas (embrionárias ou fetais). As anomalias da cavidade uterina, a SAAF e as translocações equilibradas parentais foram os factores mais prevalentes. 15,6% das participantes eram obesas. Em 55,5% dos casos não foi identificado nenhum factor. A história obstétrica materna influenciou significativamente os resultados encontrados: os factores anatómicos e a SAAF foram mais prevalentes em nulíparas e as perdas inexplicadas foram mais frequentes em mulheres com AR secundário. Assim, os nossos dados reforçam os resultados de pesquisas anteriores sobre a importância da obesidade, da síndrome de anticorpos antifosfolípidos e das anomalias uterinas estruturais como factores associados ao AR e mostram que os a paridade é um moderador da importância desses factores. Capítulo 6 94 A ausência de resultados consensuais na literatura sobre a etiologia do AR condiciona a pesquisa sistemática de alguns factores, envolvendo exames dispendiosos, muitas vezes sem que exista evidência que suporte a sua associação com esta entidade. A trombofilia hereditária é uma das condições frequentemente investigadas nestas doentes. O nosso segundo estudo pretende contribuir para clarificar o papel de duas mutações (factor V Leiden e protrombina G20210A) na perda recorrente de gravidez e esclarecer a necessidade do seu rastreio nestas situações. Foi efectuada a pesquisa destes polimorfismos em 100 mulheres com AR inexplicado e num grupo de controlo de multíparas sem história de perdas de gravidez. Na nossa amostra não se verificou uma associação entre perdas embrionárias recorrentes e estas mutações. Nas mulheres com este tipo de perdas, a prevalência do FLV foi inclusive menor do que a verificada nos controlos. Pelo contrário, nas participantes com perdas fetais a prevalência destes polimorfismos foi muito superior à verificada nos controlos, sugerindo uma possível associação entre estas duas entidades. A pequena dimensão deste último subgrupo de mulheres, não nos permitiu contudo tirar conclusões. Uma investigação prospectiva multicêntrica é necessária antes de recomendar a pesquisa da trombofilia hereditária na investigação do AR. Procurámos incluir também nesta tese uma dimensão psicológica e contribuir assim para o conhecimento dos processos relacionais originados pelo AR. No terceiro estudo foram investigadas as diferenças de género na vivência do AR e o seu impacto no relacionamento e sexualidade do casal. Participaram neste estudo 30 casais sem filhos, com pelo menos 3 abortos espontâneos consecutivos. Cada membro do casal respondeu a um conjunto de questionários (Impact of Events Scale, Perinatal Grief Scale, Partnership Questionnaire e Intimate Relationship Scale). Os resultados mostram que as mulheres sofrem mais intensamente do que os homens com o AR, relacionando-se a intensidade do seu sofrimento com a qualidade do relacionamento conjugal. A sexualidade do casal é também afectada pelo stress e pelo sofrimento associados ao AR. Uma avaliação e acompanhamento deste tipo de problemas são imprescindíveis para ajudar estes casais a manterem a qualidade afectiva e sexual da sua relação. Finalmente, no capítulo 5 sumariámos as conclusões de toda a contribuição pessoal para a investigação sobre os factores associados e repercussões para o casal da perda recorrente de gravidez.-------------------ABSTRACT: Recurrent miscarriage (RM), a rare condition, has been described as a traumatic event for couples. Parental chromosomal anomalies, maternal thrombophilic disorders and structural uterine anomalies have been directly associated with RM. However, despite significant advances in medical research, the vast majority of cases remain unexplained. Aspects as the ethnic diversity of the population with different expression of genes, the inappropriate characterization of patients and of pregnancy losses, as well as different methodologies used in their study, have influenced the prevalence of etiological factors and have hampered the understanding of this problem. Similarly, little is known about gender differences in psychological experience of RM and its implications for the relationship of the couple. The first objective of this thesis is the characterization of the medical factors and of the psychological consequences related with RM, in the Portuguese population, helping to promote specific evidence-based clinical strategies. In the first part of this thesis, and after a brief general introduction (Chapter 1), a critical review of literature on the definition, the epidemiology and the dimensions involved, with a special emphasis on associated medical and psychological aspects of recurrent miscarriage, is presented (Chapter 2). In Chapters 3 and 4 we describe three studies carried out in Portuguese couples with RM. The first study aimed to investigate the etiological factors and the pattern of pregnancy loss in a cohort of women with RM. Subjects were divided in groups according to their parity (primary or secondary RM) and time of pregnancy loss (embryonic or fetal). Parental chromosome anomalies, uterine anomalies and antiphospholipid syndrome were the most prevalent medical factors. 15.6% of the women were obese. In the majority of cases (55.5%) no identifiable cause was detected. Parity influenced significantly our results. There was a higher prevalence of anatomic factors and antiphospholipid syndrome in primary RM. On the other hand, unexplained losses were more frequent in secondary RM. Except for the parental chromosomal abnormalities; the frequency of risk factors was similar among women with fetal or embryonic losses. Our data emphasizes the results of previous research on the importance of obesity, antiphospholipid syndrome and structural uterine abnormalities as known risk factors for RM, and shows that parity is an important moderator of the weight of those risk factors. Our second study aims to clarify the role of two mutations (factor V Leiden and prothrombin G20210A) and elucidate the need for their screening in Portuguese women with RM. FVL and PT G20210A analysis was carried out in 100 women with three or more consecutive miscarriages and a control group of 100 parous controls with no history of pregnancy losses. Secondary analysis was made regarding gestational age at miscarriage (embryonic and fetal loss). Overall the prevalence of FVL and PT G20210A was similar in RM women compared with controls. In the RM embryonic subgroup of women, FVL prevalence was inclusively lower than that of controls. Conversely in women with fetal losses both polymorphisms were much more frequent, although statistical significance was not reached due to the small size of this subgroup of patients. These data indicate that inherited maternal thrombophilia is not associated with RM prior to 10 weeks of gestation. Therefore, its screening is not indicated as an initial approach in Portuguese women with RM and a negative personal history of thromboembolic.96 Our second study aims to clarify the role of two mutations (factor V Leiden and prothrombin G20210A) and elucidate the need for their screening in Portuguese women with RM. FVL and PT G20210A analysis was carried out in 100 women with three or more consecutive miscarriages and a control group of 100 parous controls with no history of pregnancy losses. Secondary analysis was made regarding gestational age at miscarriage (embryonic and fetal loss). Overall the prevalence of FVL and PT G20210A was similar in RM women compared with controls. In the RM embryonic subgroup of women, FVL prevalence was inclusively lower than that of controls. Conversely in women with fetal losses both polymorphisms were much more frequent, although statistical significance was not reached due to the small size of this subgroup of patients. These data indicate that inherited maternal thrombophilia is not associated with RM prior to 10 weeks of gestation. Therefore, its screening is not indicated as an initial approach in Portuguese women with RM and a negative personal history of thromboembolic. In our third study, we investigate gender differences in RM experience and its impact on the couple's relationship and sexuality. Each member of 30 couples with RM answered a set of questionnaires, including the Impact of Events Scale (Horowitz et al., 1979), the Perinatal Grief Scale (Toedter et al., 1988), the Partnership Questionnaire (Hahlweg, 1979) and the Intimate Relationship Scale (Hetherington e Soeken, 1990). Results showed that men do grieve, but less intensely than women. Although the quality of the couple‟s relationship seemed not to be adversely affected by RM, both partners described sexual changes after those events. Grief was related to the quality of communication in the couple for women, and to the quality of sex life for men. An understanding of such issues is critical in helping these couples to maintain sexual and affective quality of their relationship. Finally, in Chapter 5, conclusions and clinical implications of all personal contribution to the investigation on associated factors and relational consequences of recurrent miscarriage are presented.

A liberdade de imprensa e o segredo de justiça do processo penal

Dissertação de Mestrado em Comunicação, Media e Justiça

Justiça penal e comunicação social. A reconstrução de uma comunicação ausente

Dissertação apresentada para cumprimento dos requisitos necessários à obtenção do grau de Mestre em Comunicação, Media e Justiça

Da valoração de gravações e fotografias obtidas por particulares no processo penal

Recordings and photographs obtained by private individuals can be two of the most relevant evidences in helping finding the truth; however, they can also conflict with fundamental rights such as privacy, spoken word or image of the targets. It is not enough that only the violation of the right to privacy is withdrawn because rights to spoken word or image, unattached from the first one, show up independently as the main violated rights and are criminally protected in article 199º of the criminal code. Its use as evidence is, on a first moment, dependent on the private's conduct lawfulness, as it is stated in article 167º of the criminal procedure code. In order to consider its lawfulness, and accept its use as evidence, portuguese higher courts have been defending constructions mostly based on legal causes of defense. Although agreeing with a more flexible position of weighing all the interests at stake instead of denying its use as evidence, we believe notwithstanding that some of these solutions are misleading and shall not be spared from critics. Lastly, even if we reach a positive conclusion about the lawfulness of obtaining and using recordings and photogtaphs carried out to court by private individuals, they must not be however automatically admitted as evidence, still being necessary to proceed to a separate weighting, within the criminal procedure and its own legal rules, about their real purposes in the case.

As 'conversas informais' extraprocessuais como meio de prova em processo penal

In the present thesis, we examine the approach to the so-called “informal conversations”, especially between a suspect or defendant and criminal police authorities. Our goal is to understand if criminal police authorities are allowed to testify about the content of these conversations, revealing facts that the suspect or defendant may have shared with them, as well as about evidence that they may have acquired through these statements. Firstly, we briefly present the notion of “informal conversations” and the great variety of situations they may encompass: intra or extra-procedural; prior or subsequent to someone acquires the status of defendant. Secondly, we analyse some of the principles and rules that are involved in this controversial issue: principles concerning the procedural structure, organization and dynamic; principles concerning the production and assessment of evidence in the trial hearing; principles concerning the prosecution and the powers of criminal police authorities; the procedural status of the defendant; the rules concerning the reading of statements in the trial hearing; the rules concerning hearsay testimonies. Thirdly, we go through the great amount of case law on the so-called “informal conversations” and related matters, analysing the most relevant cases and the arguments that sustain them, as well as the legal literature. Our goal is to understand the evolution, throughout the last two decades, of the different opinions regarding the approach to the various situations in which “informal conversations” may occur and in which the admissibility of a testimony by criminal police authorities is questioned. Finally, we defend a different approach for testimonies by criminal police authorities prior and subsequent to someone acquiring the status of defendant. We see the moment when someone acquires the status of defendant as a border area in the admissibility of “informal conversations”, because from then on the statements have to be collected and assessed according to the law, so all the other conversations (or any other evidence) collected informally are irrelevant. As to the specific case of the testimony about the re-enactment of the crime, given the high degree of difficulty in separating the defendant’s contributions that may be considered essential and those that may be considered less useful, but still relevant, we support the qualification of the defendant’s contributions as inseparable from the re-enactment, allowing it to be replicated and assessed in the trial hearing with no restrictions.

Derecho administrativo comunitario

The globalization and the need for countries to unite under regional organizations fostered the emergency of a Communitary law. This isa law made bysupranational institutions capable of submitting States toa single legal order. Thistransforms administrative law on international administrative law that overflows the national legal system. This phenomenon was felt on Colombia given the current development of the Andean Integration System

O processo sumário e a reforma do Código do Processo Penal de 2013

The present work aims to develop the theme "The summary procedure and the reform of 2013". The purpose of its analysis serves the interest to understand the virtues and disadvantages of the changes introduced by Act n.º 20/2013 to our Code of Criminal Procedure, and the main focus of the present reflection is to further the impact of the measures taken by the legislator to the summary proceedings. The opening of the most serious crimes to summary procedure is a reform measure duly highlighted because it is a true innovation in the Portuguese penal system. Therefore, it urges to analyse not only the consequences of this measure, as well as if the objectives of its introduction in the summary procedure system are met. It should be noted that the legislator intends to promote speedy trial, and at the same time, ensure compliance with the Constitutional rights associated to the accused. At this point it is important to realize if there is a restriction of the accused essential guarantees. On the other hand, it should be noted that the typical characteristics of summary proceedings might have been invariably modified, due to the innovative aspect of the reform. That said, the changes might have fostered a mischaracterization of the typical format of the summary procedure, both in terms of the nature of the proceedings and in terms of its space and objectives within the penal system. Reflecting on the above will provide a deeper understanding of the volatile balance between the Portuguese governing prosecution efficiency and the Constitution, as well as the future of the criminal policy in Portugal.

A presunção de inocência nas fases preliminares do processo penal

This study analyses the principle of presumption of innocence in the preliminary stages of the Portuguese criminal process, its procedural aspect related with the principle of in dubio pro reo and its material aspect concerning the treatment of the defendant during the proceedings. The consequences and manifestations of the principle of presumption of innocence are analysed in the decisions of the closing stages of the preliminary criminal procedure and the application of the principle of in dubio pro reo is analysed in the judgement of sufficiency of evidence for the procedure to continue. It addresses the question of circumstantial evidence, its particular relevance in economic and financial crime, highly organized crime, the grounds for the indictment in general and when the sufficiency of evidence criteria is based on that evidence. It analyses the scope of the principle of presumption of innocence in the application of coercive measures, with reference to the arrest, first interrogation of the accused under detention and reasons for the subsequent dispatch about the measures. The asset assurance measures of preventive seizure and the preventive seizure to ensure confiscation are analysed and principle of presumption of innocence is considered non applicable to those measures.

Relatório de estágio no departamento central de investigação e acção penal

The means of obtaining evidence, the amount of evidence obtained, the number of defendants related to each criminal case and the gravity of the crimes for which the magistrates of the Department are holders of penal action, define its real importance to the Rule of Law. I have deeply studied the subject of the institution of hierarchical intervention required by the assistant and the application of an opening statement by the defendant, starting from a hypothetical case, provided when the query of an investigation with the subject of the crime of active corruption, where this institution was called as a reaction to the archiving dispatch delivered by the Public Ministry. I have study about the implementation of the institution of provisional suspension of the process, specifically in the scope of fiscal criminality, analyzing the effective satisfaction of the purposes of the sentences in two slopes: general prevention and special prevention. I went for my first time to a Central Court of Criminal Instruction, where I attended the measures of inquiry and instructive debate of a process that culminated with the prosecution and pronunciation of the defendants. In addition to this criminal experience, I have deepened and consolidated the academic knowledge with the study of various criminal cases from various fields in the scope of criminality investigated by the Department. I could therefore check the basis of procedural delays, regarding to our legal system, especially in this type of crime, raising issues that I analyzed and discussed, always in a critical and academic way. I had the opportunity to attend and witness a seminar in the Lisbon Directorate of Finance as well of entering the Centre for Judicial Studies to attend a conference on the International Anti-Corruption Day. Focus on the investigatory importance of the international judicial cooperation, through the various organs, with special interest to EUROJUST. I comprehended the organization and functioning of these communitarian organs and means of communication of procedural acts, in particular, the rogatory letters and european arrest warrants. This involvement is motivated by the moratorium factor of the investigations where rogatory letters are necessary for the acquisition of evidence or information relevant to the good continuation of the process. For this reason the judicial cooperation through the relevant communitarian organs, translates a streamlined response between the competent judicial authorities of the Member States, through the National Member that integrates EUROJUST. This report aims to highlight some of the difficulties and procedural issues that Public Prosecutors of DCIAP and criminal police bodies that assist them, face in combating violent and organized crime, of national and transnational nature, of particular complexity, according to the specifics of criminal types.

"A testemunha-vítima e o dieito de recusa de depoimento, no Código de Processo Penal

Study of the problems involved in the application of the right of refusal to testify (Article 134. º CPP) to criminal charges of domestic violence, namely in situations of violence between spouses. Drawing attention, to some of the contingencies of the exercise of the right of refusal in such proceedings, a matter never before examined under Portuguese law, and also to the need to reconsider, based on the North American experience, the application of the law in these cases.

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.