El derecho a la educación como derecho social fundamental en sus tres dimensiones: educación primaria, secundaria y superior

En este artículo, se plantea el problema de si puede considerarse a la educación como un derechofundamental. Se analizan las implicaciones que ha tenido su no inclusión como tal derechoen la Constitución en el capítulo de los derechos fundamentales. Se estudian dos grandes tradicionessobre los derechos fundamentales: el neoliberalismo afirma que los derechos fundamentalesson únicamente los derechos liberales civiles y políticos. Y el liberalismo social concibe quelos derechos fundamentales son, además de los derechos liberales civiles y políticos, los económicosy sociales. En la parte final, se hace una reconstrucción del desarrollo del derechoa la educación en la jurisprudencia de la Corte Constitucional; termina con unas críticas alproyecto de reforma de la educación superior y unas sugerencias con miras a proponer a laeducación como un derecho fundamental.

The Court of Justice of the European Union as a fundamental rights tribunal: challenges for the effective delivery of fundamental rights in the area of freedom, security and justice. CEPS Paper in Liberty and Security in Europe No. 49, 29 August 2012

This paper reflects on the challenges facing the effective implementation of the new EU fundamental rights architecture that emerged from the Lisbon Treaty. Particular attention is paid to the role of the Court of Justice of the European Union (CJEU) and its ability to function as a ‘fundamental rights tribunal’. The paper first analyses the praxis of the European Court of Human Rights in Strasbourg and its long-standing experience in overseeing the practical implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Against this analysis, it then examines the readiness of the CJEU to live up to its consolidated and strengthened mandate on fundamental rights as one of the prime guarantors of the effective implementation of the EU Charter of Fundamental Rights. We specifically review the role of ‘third-party interventions’ by non-governmental organisations, international and regional human rights actors as well as ‘interim relief measures’ when ensuring effective judicial protection of vulnerable individuals in cases of alleged violations of fundamental human rights. To flesh out our arguments, we rely on examples within the scope of the relatively new and complex domain of EU legislation, the Area of Freedom, Security and Justice (AFSJ), and its immigration, external border and asylum policies. In view of the fundamental rights-sensitive nature of these domains, which often encounter shifts of accountability and responsibility in their practical application, and the Lisbon Treaty’s expansion of the jurisdiction of the CJEU to interpret and review EU AFSJ legislation, this area can be seen as an excellent test case for the analyses at hand. The final section puts forth a set of policy suggestions that can assist the CJEU in the process of adjusting itself to the new fundamental rights context in a post-Lisbon Treaty setting.

The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action

Global legal pluralism is concerned, inter alia, with the growing multiplicity of normative legal orders and the ways in which these different orders intersect and are accommodated with one another. The different means used for accommodation will have a critical bearing on how individuals fare within them. This article examines the recent environmental jurisprudence of the European Court of Human Rights to explore some of the means of reaching an accommodation between national legal orders and the European Convention. Certain types of accommodation – such as the margin of appreciation given to states by the Court – are well known. In essence, such mechanisms of legal pluralism raise a presumptive barrier which generally works for the state and against the individual rights-bearer. However, the principal focus of the current article is on a less well-known, recent set of pluralistic devices employed by the Court, which typically operate presumptively in the other direction, in favour of the individual. First, the Court looks to instances of breaches of domestic environmental law (albeit not in isolation); and second, it places an emphasis on whether domestic courts have ruled against the relevant activity. Where domestic standards have been breached or national courts have ruled against the state, then, presumptive weight is typically shifted towards the individual.

Exploring farmer preferences for contagious bovine pleuropneumonia vaccination: a case study of Narok District, Kenya

Contagious bovine pleuropneumonia (CBPP) is an economically important disease in most of sub-Saharan Africa. A conjoint analysis and ordered probit regression models were used to measure the preferences of farmers for CBPP vaccine and vaccination attributes. This was with regard to inclusion or not of an indicator in the vaccine, vaccine safety, vaccine stability as well as frequency of vaccination, vaccine administration and the nature of vaccination. The analysis was carried out in 190 households in Narok District of Kenya between October and December 2006 using structured questionnaires, 16 attribute profiles and a five-point Likert scale. The factors affecting attribute valuation were shown through a two-way location interaction model. The study also demonstrated the relative importance (RI) of attributes and the compensation value of attribute levels. The attribute coefficient estimates showed that farmers prefer a vaccine that has an indicator, is 100% safe and is administered by the government (p<0.0001). The preferences for the vaccine attributes were consistent with expectations. Preferences for stability, frequency of vaccination and nature of vaccination differed amongst farmers (p>0.05). While inclusion of an indicator in the vaccine was the most important attribute (RI=43.6%), price was the least important (RI=0.5%). Of the 22 household factors considered, 15 affected attribute valuation. The compensation values for a change from non inclusion to inclusion of an indicator, 95-100% safety, 2h to greater than 2h stability and from compulsory to elective vaccination were positive while those for a change from annual to biannual vaccination and from government to private administration were negative. The study concluded that the farmers in Narok District had preferences for specific vaccine and vaccination attributes. These preferences were conditioned by various household characteristics and disease risk factors. On average the farmers would need to be compensated or persuaded to accept biannual and private vaccination against CBPP. There is need for consideration of farmer preferences for vaccine attribute levels during vaccine formulations and farmer preferences for vaccination attribute levels when designing delivery of vaccines.

Eugenol modifies the excitability of rat sciatic nerve and superior cervical ganglion neurons

Eugenol is a phenylpropene obtained from the essential oils of plants such as clove and basil which has ample use in dentistry. Eugenol possesses analgesic effects that may be related to the inhibition of voltage-dependent Na(+) channels and/or to the activation of TRPV1 receptors or both. In the present study, electrophysiological parameters were taken from the compound action potentials of the isolated rat sciatic nerve and from neurons of the superior cervical ganglion (SCG) impaled with sharp microelectrodes under current-clamp conditions. In the isolated rat sciatic nerve, eugenol inhibited the compound action potential in a concentration-dependent manner. Action potentials recorded from SCG neurons were inhibited by eugenol with an IC(50) of 0.31 mM. At high concentrations (2 mM), during brief applications. eugenol caused significant action potential blockade while it did not interfere with the resting membrane potential or the membrane input resistance. Surprisingly, however, at low eugenol concentrations (0.6 mM), during long time applications, a reversible reduction (by about 50%) in the input membrane resistance was observed, suggesting the possible involvement of a secondary delayed effect of eugenol to reduce neuronal excitability. (C) 2010 Elsevier Ireland Ltd. All rights reserved.

The high court and the utility of multiple judgments

Recently, the High Court has been criticised for its supposed increasing tendency to deliver multiple majority judgments. Ostensibly this impairs the capacity for the Court to clarify and unify the law, thereby making it more difficult for citizens to plan and coordinate their affairs. This criticism of the High Court is unsound. First, there is no evidence to suggest that the High Court is now more fragmented than it has been during other periods of its history. Secondly, the precise reasoning process (and the underlying jurisprudence reflected by this) is a cardinal aspect of the development of precedent and legal principle. Convergence in conclusion only is of little utility and does not promote certainty and clarity in the law. One cannot make an informed assessment of the impact and breadth of a decision without an understanding of the (actual) premise underpinning the decision. It is for this reason that legislation is such a poor vehicle for declaring the law and why in recent decades there has been an increasing degree of reliance on extraneous material to assist in the interpretation of legislation. Conclusion without (genuine) reasons is not highly instructive. Coerced agreement, no matter how subtle, is undesirable. The High Court should resist calls to deliver more single majority judgments.

A lawyer's lawyer joins the high court of Australia

In November 2005, Susan Crennan was sworn in as the 45th justice of the High Court of Australia. This follows a brief two year period as a justice of the Federal Court of Australia. In this article, the author recounts the debate leading up to the latest appointment regarding what type of justice should be appointed to the Court, and reviews Crennan's Federal Court judgments in an attempt to provide some insight on the type of High Court justice Crennan will be. What is for certain is that Crennan is enchantingly mysterious.

Professional issues related to allegations and assessment of child sexual abuse in the context of family court litigation

This article focuses on the challenge of dealing with allegations of child sexual abuse in the context of the Family Court of Australia. Of all cases that come before the Court, those involving such allegations are relatively uncommon. they tend to be the most difficult cases, however, and are more likely to require a trial and the involvement of qualified practitioners. The review establishes that parental separation is a special circumstance in which sexual abuse may be more likely to occur, and many allegations of sexual abuse are found to be true. There is evidence, however, that a proportion of allegations made by people other than the child concerned may be false. Whether these false allegations are well intentioned and genuinely believed, or maliciously motivated has been a contentious issue. Issues considered include the mishandling of cases, the failure by professionals to consider equally plausible alternative hypotheses than the sexual abuse of a child, confirmation bias, and the profound repercussions of allegations for all members of the family. It is concluded that all allegations of child sexual abuse must be evaluated in a thorough and sensitive manner to separate the few false allegations from the many that are true.

The recognition and protection of well-known trade marks in Indonesia

Legal context The recognition and protection of well-known marks in Indonesia has improved over the last few years for a variety of reasons.

Key points First, the Asian Crisis resulted in the creation of a Commercial Court, which is a clear improvement over the previously responsible District Courts. Secondly, the increasingly frequent publication of court decisions has improved transparency and consistency of those decisions. Well-known marks are now clearly protected against use for similar goods/services. Protection is extended to dissimilar goods/services by applying Article 16(3) TRIPS directly or by arguing that registration occurred in bad faith. Nevertheless, decisions thus far concern almost exclusively revocation and invalidity of registrations. Civil remedies such as damages and interim injunctions are hardly used, because the outdated civil procedural law has not familiarised judges with such legal instruments. Clearing the register of infringing registrations is another matter of concern. Cancellation for non-use for three consecutive years can be difficult, because the plaintiff is required to provide evidence of the last use in the production of the goods/services rather than in the course of trade more generally.

Practical significance While it has become much easier to protect well-known marks in Indonesia, much work remains to be done regarding the procedural framework of civil infringement proceedings and regarding the clearing of the register.

The children's court of South Australia

This chapter provides an overview of the history and development of the Youth Court in South Australia. Drawing on interviews conducted with judicial officers and Court stakeholders, we highlight some of the changes that have taken place since the Court’s inception, as well as how the Court currently understands its role and positioning within the broader justice and welfare systems.

Key discussion points of these interviews included the Youth Court’s guiding principles and how they impact on Court procedures and responses to young people in the system, as well as the challenges that limit, or create dif fi culties for, the effective operation of the Youth Court.

It is concluded that the Youth Court system attempts to balance both welfare and justice approaches to dealing with young people, but these approaches are sometimes hindered in practice by inadequate procedural, structural and resource- related factors. Limitations of the Court and its processes are often difficult to evaluate in isolation from the broader system in which the Court is positioned.

Accepted Doctrine at the Time of Federation and Kirk v Industrial Court of New South Wales

This article critiques one aspect of the High Court’s reasoning in its landmark 2010 decision of Kirk v Industrial Court of New South Wales, namely its reliance on ‘accepted doctrine at the time of federation’ to determine the ‘defining characteristics’ of the state Supreme Courts. I argue that the relevant passages in Kirk are ambiguous and capable of two alternative readings, which I term the ‘pre-Federation entrenchment theory’ and the ‘on-Federation entrenchment theory’. With extensive reference to primary and secondary materials from the Federation era, I argue that both theories are flawed and, indeed, contrary to accepted doctrine at the time of Federation. Consequently, if the holding in Kirk is to be defended, other justifications for the entrenchment of judicial review in the state jurisdictions, which were only touched upon in Kirk, need to be developed and articulated with greater thoroughness and rigour.

Mental health diversion courts: a two year recidivism study of a South Australian mental health court program.

The need to develop specialized judicial processes to deal with offenders with mental illnesses is now widely recognized and has led to the introduction of mental health court diversion programs around the world. At present, however, there is only limited evidence from which to assess the impact of these initiatives. This paper describes the South Australian model of diversion, with specific reference to the relationship between identified participant characteristics, program compliance rates, and re-offending outcomes. The results of a two-year recidivism study suggest that involvement with the program has a positive impact on recidivism, but that this is independent from the individual's level of success in the program. Lower risk offenders were more likely to achieve successful outcomes than those in the higher risk categories. The implications of these results, as well the factors that might inform the ongoing development of mental health court programs, are discussed.

Superior adsorption of pharmaceutical molecules by highly porous BN nanosheets

Highly porous boron nitride nanosheets (BNNSs) were tested as a re-usable adsorbent for the removal of pharmaceuticals from aqueous solution. The BNNSs exhibit both unprecedentedly high adsorption capacities and excellent recyclability while maintaining their high adsorption capacity by a simple regeneration process. These advantages render BNNSs a promising material for water remediation applications.

Ditadura e justiça militar no Brasil : a atuação do Superior Tribunal Militar (1964-1980)

O presente trabalho tem como objetivo analisar a atuação do Superior Tribunal Militar (STM), segunda instância da Justiça Militar brasileira, entre os anos de 1964 e 1980, no processo de construção de uma nova ordem jurídica e no julgamento de crimes militares, políticos e político-militares. Após o golpe de 31 de março de 1964, o STM teve importante participação no processo de punição jurídico-política então instaurado. Com a edição do Ato Institucional nº 2, em 1965, o julgamento de crimes contra a segurança nacional foi transferido para a Justiça Militar, buscando reordenar problemas gerados pelo emaranhado legislativo que definia até então as atribuições do STM e do Supremo Tribunal Federal (STF) no julgamento de delitos vinculados à conjuntura política “revolucionária”. Segundo a metodologia adotada neste trabalho, a Justiça Militar como um todo, e o STM em particular, atuaram nesse período por meio de três lógicas distintas: como Justiça corporativa (JC), ou seja, julgando crimes militares; como Justiça do regime (JR), direcionada para o processo e julgamento de opositores do regime, em casos de atentado contra a segurança nacional e contra a probidade administrativa; e como justiça político-corporativa (JPC), julgando incriminados em delitos militares, mas por motivação política. Ao longo da tese, buscamos também acompanhar a maneira como o Tribunal se comportou frente às mudanças políticas e jurídicas, que incidiram em sua estrutura e competência. Como demonstramos no trabalho, o impacto da produção legislativa sobre o labor do STM não foi imediato. A morosidade da justiça e a dinâmica processual geraram um descompasso temporal entre as propostas governamentais de modificação da estrutura jurídica e os julgamentos. Uma das consequências diretas desse fenômeno foi o fato de o STM, principalmente ao atuar como Justiça do regime, ter que lidar, ao mesmo tempo, com leis de segurança nacional que se superpunham e coabitavam o mesmo campo jurídico. Verificamos, ainda, que o padrão decisório do STM ao julgar em cada uma das categorias tendia a reproduzir as decisões das Auditorias Militares, dado esse que nos permite relativizar a difundida tese de que o Tribunal atuou como um espaço de maior serenidade e complacência para com os condenados em primeira instância.

Contribuições da tecnologia da informação e da inovação para a produtividade do trabalho dos magistrados: um estudo de caso no Superior Tribunal de Justiça

Esta dissertação de mestrado teve como objetivo analisar a produtividade do trabalho dos Magistrados do Poder Judiciário Brasileiro. O objetivo específico foi tentar compreender as contribuições da Tecnologia da Informação e da Inovação para a produtividade do trabalho dos Magistrados. A tecnologia da informação e a inovação têm sido responsáveis pela otimização de tarefas nas mais diversas áreas, proporcionando muitos benefícios, que vão desde a economia de tempo na realização das atividades até a redução de custos. Para verificar as contribuições da tecnologia da informação e da inovação na produtividade do trabalho dos magistrados foi adotado a estudo de caso, o qual teve como foco o Superior Tribunal de Justiça (STJ). Nesse sentido, a pesquisa foi conduzida por meio de levantamento e análise de dados provenientes de documentos, da Internet e de entrevistas. Justamente, procurando reconhecer quais são as ferramentas de TI e quais são as inovações colocadas à disposição dos magistrados do STJ para o desempenho de sua função, como se dá o alinhamento com o planejamento estratégico e em que medida a TI e a inovação tem possibilitado o aumento da produtividade do trabalho dos magistrados do STJ. As conclusões depreendidas deste estudo revelam que de fato há um aumento da produtividade do trabalho dos magistrados do STJ com o uso da TI e da Inovação.