A caracterização do trabalho análogo ao escravo na jurisprudência dos tribunais brasileiros

Based on bibliographical research and the analysis of court rulings, this study investigates the characterization of slave-like labor by Brazilian courts. After the alteration of article 149 of the Brazilian Penal Code, introduced by Law nº 10.803/2003, which typifies the practice of contemporary slavery in Brazil, divergent characterizations of this practice remain. The courts currently employ the broadest concept of contemporary slave labor, in which the crime is characterized by the engagement in one of the following conducts established as a criminal offense: labor with the restriction of freedom, submission to exhaustive working conditions, degrading working conditions, and debt bondage. The engagement in one of the above is therefore enough to constitute a crime. Contemporary slave labor in Brazil is not characterized only by the restriction of the worker’s freedom, as in the case of forced labor or debt bondage, but also through the submission of the workers to situations that offend their human dignity. Individual freedom and the dignity of the human person, fundamental tenets of the Brazilian Federal Constitution, are juridical resources safeguarded by law. Contemporary slavery is not limited to the mere infringement of labor laws, but represents a severe violation of the human rights of the workers involved.

O Ne bis in idem no Espaço de Liberdade, Segurança e Justiça e no Direito Europeu da Concorrência

Ne bis in idem, understood as a procedural guarantee in the EU assumes different features in the AFSJ and in european competition law. Despite having a common origin (being, in both sectors the result of the case law of the same jurisdictional organ) its components are quite distintic in each area of the integration. In the AFSJ, the content of bis and idem are broader and addressed at a larger protection of individuals. Its axiological ground is based on the freedom of movements and human dignity, whereas in european competition law its closely linked to defence rights of legal persons and the concept of criminal punishment of anticompetitive sanctions as interpreted by the ECHR´s jurisprudence. In european competition law, ne bis in idem is limited by the systemic framework of competition law and the need to ensure parallel application of both european and national laws. Nonetheless, the absence of a compulsory mechanism to allocate jurisdiction in the EU (both in the AFSJ and in the field of anti-trust law) demands a common axiological framework. In this context, ne bis in idem must be understood as a defence right based on equity and proportionality. As far as its international dimension is concerned, ne bis in idem also lacks an erga omnes effect and it is not considered to be a rule of ius cogens. Consequently, the model which the ECJ has built regarding the application of the ne bis in idem in transnational and supranational contexts should be replicated by other courts through cross fertilization, in order to internationalize that procedural guarantee and broaden its scope of application.

A pretensa justificação humanitária da escravidão: o "escravo da força" e o "escravo da fome"

pp. 229-238

A indeminização por privação ilegítima da liberdade

Mestrado na área de Ciências Jurídico-Forenses

O juizo sobre o juiz (o). Os juizes não têm honra?

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

Produção de electricidade em Portugal

In the present work we intend to do an analysis of the production of electricity in special regime in Portugal. We will focus in particular in the remuneration system through the feed-in tariffs. First, we will excurse throughout different legal diplomas that regulated the special regime in Portugal, exploring which guarantees were conferred to electricity generators throughout the years. We intend to also evaluate how the producers remunerative rights were (or not) protected in the various legislative changes. In the second part of the dissertation we will examine whether the feed-in tariffs may be considered as State aid. Due to the inclusion of the subject in EU Law, we will analyze EU regulation and case law to support our position about the Portuguese regime. Finally, and to the extent that the production of electricity in special regime has undergone several changes to its remunerative regime in the last few years, we propose to analyze more carefully the amendments in question. We will scrutinize the reasons that based the amendments in question, which are mainly based on the economic crisis suffered by the country. We will also examine how those changes may jeopardize the remunerative rights of the producers.

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.

O abuso do direito no Direito do Consumo

In Consumer Law there is a special concern to protect the consumer, who is the weaker party in the legal relationship. With this thesis we intend to show that the professional sometimes needs protection against abusive conducts from consumers. The thesis describes the different categories of abuse of rights and explains some types of consumer contracts. After examining some of the consumer’s rights, we list some situations where the consumer acts frequently with abuse of rights, by analyzing judicial decisions. We conclude that it is not possible which conducts may involve an abuse of right in an abstract manner. Only by analyzing every case and its characteristics individually can one decide where there is an abuse of right.

Relatório de estágio curricular realizado na Câmara Municipal de Lisboa

The experience of an internship is always considered an experience that should be enriching, a first contact with the employment world. The intention is to build a bridge between the theory and practice - applying what has been learnt throughout the course. Therefore, it was started a new learning phase that seeks to take advantage and obtain experiences useful for a professional life based in efficiency and efficacy. The curricular internship was carried out within the Masters in Public Law and held by Faculdade de Direito da Universidade Nova de Lisboa (FDUNL)(Law School Of University New Of Lisbon) in the Câmara Municipal de Lisboa (CML) (Lisbon's Town Hall), in the Departamento de Política de Solos e Valorização Patrimonial (DPSVP) (Soil Politics and Patrimonial Valuation Department) of the Direção Municipal de Planeamento, Reabilitação e Gestão Urbanística (Municipal Direction of Planning, Rehabilitation and Urban Management) between September and December 2013. Throughout this internship, several activities within the DPSVP were developed. In an early stage, there was a presentation of the organic structure of Lisbon's Town Hall, and the Department where I was going to do the internship, and its competencies. Therefore I acquired key concepts and researched jurisprudence and legislation needed to the analysis and understanding of the activities done in the internship. In a second stage, it was done the analysis and understanding of the division into lots administrative procedures, as well as the solving of the problems occurred throughout that analysis. Besides that, there was the need to help preparing some procedural acts to be applied regarding the Department competencies, namely within the alienation, procurement, encumbrance and rental of immovable assets owned by the Municipality of Lisbon.

Construção de uma responsabilidade europeia além-fronteiras

The suppression of internal border controls has led the European Union to establish a mechanism for determining the Member State responsible for examining each asylum application, with the main intention of deterring asylum seekers from lodging multiple applications and guaranteeing that it will be assessed by one of the States – the Dublin System. Even though it holds on a variety of criteria, the most commonly used is the country of first entrance in the EU. The growing migrating flows coming mainly from Northern Africa have thus resulted in an incommensurable burden over the border countries. Gradually, countries like Greece, Bulgaria and Italy have lost capability of providing adequate relief to all asylum seekers and the records of fundamental rights violations related to the provision of housing and basic needs or inhuman detention conditions started piling up. To prevent asylum seekers who had already displaced themselves to other Member States from being transferred back to countries where their human dignity is questionable, the European Court of Human Rights and the Court of Justice have developed a solid jurisprudence determining that when there is a risk of serious breach of fundamental rights all transfers to that country must halt, especially when it is identified with systemic deficiencies in the asylum system and procedures. This reflexion will go through the jurisprudence that influenced very recent legislative amendments, in order to identify which elements form part of the obligation not to transfer under the Dublin System. At last, we will critically analyze the new rising obligation, that has clearly proven insufficient in light of the international fundamental rights framework that the Member States and the EU are bound to respect, proposing substantial amendments with a view to reach a future marked by high solidarity and global responsibility from the European Union.

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.

A discriminação em função da idade no direito do trabalho

In this thesis, we will treat the discrimination based on age, more specifically of older workers. In recent years, there was an increasing interest on the part of doctrine and jurisprudence on this subject. In fact, in a world in which you live a real economic crisis, older workers tend to have difficulties finding jobs or are targets of the discrimination based on age, at the time of hiring or during the contract. Thus, we will focus on discrimination. We will examine, first, the difference between direct and indirect discrimination, taking into account the importance of the burden of proof, then we will study the figures of positive action measures. Then, treat the legislative framework of the discrimination based on age, that is, in relation to the Labor Code and the Directive 2000/78/EC of November 27, 2000. Eventually, we will determine the cases in which they may accept the discrimination based on age. In fact, these differences in treatment based on age are justified, but must be aimed at a legitimate objective with appropriate and necessary means.

Relatório de estágio curricular no Ministério Público na Comarca de Setúbal

This report represents four months of study on activities in the public prosecution service at the Local Instance of Setúbal judiciary district, started in September 2014 and completed of the same year. This report was prepared considering all the teachings of criminal law courses and criminal procedural law, doctrine, jurisprudence and all the practical experience experienced with prosecutors. In this context, their traineeship provided contact with different procedural stages: the investigation stage that allowed to understand better the progress of the processing of summary proceedings; the expedient distribution of urgent cases; the investigation stage, as regards the procedural impulse assistant and the accused; and the trial stage. This last phase allowed contact with different types of crimes especially road crimes and the crime of domestic violence. The analysis carried out the summary proceedings in the Public Ministry service would acquire relevant information to explain the incidence of road crimes. Topics will be addressed that were found on stage during the various procedural stages, as the implementation of new judicial map. The relationship between the prosecution and the Criminal Police Bodies was also an issue to be addressed. The work also raises awareness of the issue of archives in order to find out the position of assistant.

Relatório de estágio curricular realizado na Câmara Municipal de Lisboa

The experience of an internship is always considered an experience that should be enriching, a first contact with the employment world. The intention is to build a bridge between the theory and practice - applying what has been learnt throughout the course. Therefore, it was started a new learning phase that seeks to take advantage and obtain experiences useful for a professional life based in efficiency and efficacy. The curricular internship was carried out within the Masters in Public Law and held by Faculdade de Direito da Universidade Nova de Lisboa (FDUNL)(Law School Of University New Of Lisbon) in the Câmara Municipal de Lisboa (CML) (Lisbon's Town Hall), in the Departamento de Política de Solos e Valorização Patrimonial (DPSVP) (Soil Politics and Patrimonial Valuation Department) of the Direção Municipal de Planeamento, Reabilitação e Gestão Urbanística (Municipal Direction of Planning, Rehabilitation and Urban Management) between September and December 2013. Throughout this internship, several activities within the DPSVP were developed. In an early stage, there was a presentation of the organic structure of Lisbon's Town Hall, and the Department where I was going to do the internship, and its competencies. Therefore I acquired key concepts and researched jurisprudence and legislation needed to the analysis and understanding of the activities done in the internship. In a second stage, it was done the analysis and understanding of the division into lots administrative procedures, as well as the solving of the problems occurred throughout that analysis. Besides that, there was the need to help preparing some procedural acts to be applied regarding the Department competencies, namely within the alienation, procurement, encumbrance and rental of immovable assets owned by the Municipality of Lisbon.