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

Democratização da Justiça, Entender e ser Entendido

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

Caraterização estatística dos valores percentuais de sangue do grupo AB0 colhido pelo Centro Regional de Sangue de Lisboa e respetivo emparelhamento com a distribuição a nível hospitalar

RESUMO: A Medicina Transfusional está a mudar rapidamente em resposta a um número de diferentes catástrofes, patologias e novas técnicas da ciência. Por detrás de uma transfusão de sangue existe todo um conjunto de procedimentos, técnicas e atuações que salvaguardam o rigor e segurança científicas resultando numa maior eficiência na diminuição da morbilidade/mortalidade humana. Todo o processo de colheita, análise, processamento e distribuição de concentrados de eritrócitos comporta um capital elevado em termos da economia para a saúde e os requisitos básicos de uma gestão de qualidade, na área da saúde em geral e da hemoterapia em particular, tem de compreender, com rigor, estas condições de gestão parceria de forma a evitar um aumento nos custos da saúde. Para identificar as discrepâncias nos pedidos efetuados pelos Hospitais Públicos e Privados ao Centro de Sangue e Transplantação de Lisboa, no que diz respeito ao Sistema AB0 dos concentrados de Eritrócitos, foi feito um estudo quantitativo, com fins descritivos simples, aos 95 984 concentrados de eritrócitos enviados às 32 Instituições de Saúde da abrangência do CST de Lisboa. Tendo em conta o Sistema AB0 RhD, confirma-se que o grupo sanguíneo prevalente, tanto na população portuguesa como nos dadores de sangue que efetuaram a sua dádiva de sangue em 2011, é o grupo A Rh+. Observou-se no entanto que o grupo sanguíneo mais pedido e enviado pertence ao grupo 0 Rh positivo. Assim, apurou-se que existe uma disparidade, mesmo que pouco acentuada, nos pedidos efetuados pelos Hospitais Públicos e Privados ao Centro de Sangue e Transplantação de Lisboa no que configura ao Sistema AB0 dos concentrados de eritrócitos. Os Hospitais Públicos Sem Serviço de Colheita de Sangue e os Hospitais Privados são responsáveis por este desencontro de valores. No que se refere às inutilizações por prazo de validade ressalva-se que os desaproveitamentos de CE’s não são tão acentuados como se esperaria numa primeira fase de estudo. No entanto, e em termos económicos, se existem inutilizações por prazo de validade, existe igualmente despojo financeiro. Por detrás de cada unidade inutilizada existe um alto investimento que será desperdiçado por carência de solicitação. De forma a minimizar gastos e a salvaguardar um Banco de Sangue capaz de suportar qualquer eventualidade de rutura de stock estão patentes propostas de estratégias capazes de impedir constrangimentos diários e futuros no que diz respeito à disponibilidade de sangue e componentes sanguíneos.--------------ABSTRACT: The Transfusion Medicine it is changing fast in response to a number of different catastrophes, disease and new techniques of science. From behind a blood transfusion there is a whole set of procedures, techniques and actions that safeguard the safety and scientific rigor resulting in greater efficiency in reducing morbidity / mortality human. The entire process of procurement, testing, processing and distribution of concentrated erythrocytes involves a high capital in terms of the economy to health and the basic requirements of a quality management in healthcare in general and hemotherapy in particular has to understand with rigor, this partnership in order to avoid an increase in health costs. In order to identify discrepancies in the orders placed by the Government and Private Hospitals Center Blood and Transplant Lisbon regarding the AB0 system of concentrated erythrocytes was made a quantitative study with simple descriptive purposes to 95,984 erythrocytes concentrates sent to 32 Health Institutions of the scope of CST Lisbon. Having regard to the system AB0 blood group RhD prevalent both in the Portuguese population as blood donors, who made his blood donation in 2011, confirms that belong to group A Rh +. It was found that blood group most requested and sent belongs to group 0 Rh positive. Thus, it was found that there is a disparity, even a little sharp, requests made by the Government and Private Hospitals Blood Center and Transplantation in Lisbon that configures the system AB0 erythrocyte concentrates. The Public Hospitals without Blood Harvest and Private Hospitals are responsible for this clash of values. With regard the expiry date by disables proviso that the wastes of CE's are not as sharp as one would expect in a first phase of the study. However, in economic terms, if there is disables by expiry date, there is also financial squandering. Behind every unused unit is a high investment to be wasted by shortage of request. To minimize costs and safeguarding a Blood Bank can support any event of rupture of stock patents are proposed strategies to prevent future and diaries constraints with regard to the availability of blood and blood components.

A moderna integração das lacunas: o caso português

Assuming a concrete dispute that has no legal answer in the Portuguese civil statutes, this article attempts to discover the right solution according to existing doctrinal and legal materials. We begin with a brief analysis of the answer, as it would be provided by the modern theory of law to said dispute. This answer will then be compared with the result that is found in accordance with Article 10(3) of the Portuguese civil code (provision on legal gaps).

The brushstroke and materials of Amadeo de Souza-Cardoso combined in an authentication tool

Nowadays, authentication studies for paintings require a multidisciplinary approach, based on the contribution of visual features analysis but also on characterizations of materials and techniques. Moreover, it is important that the assessment of the authorship of a painting is supported by technical studies of a selected number of original artworks that cover the entire career of an artist. This dissertation is concerned about the work of modernist painter Amadeo de Souza-Cardoso. It is divided in three parts. In the first part, we propose a tool based on image processing that combines information obtained by brushstroke and materials analysis. The resulting tool provides qualitative and quantitative evaluation of the authorship of the paintings; the quantitative element is particularly relevant, as it could be crucial in solving authorship controversies, such as judicial disputes. The brushstroke analysis was performed by combining two algorithms for feature detection, namely Gabor filter and Scale Invariant Feature Transform. Thanks to this combination (and to the use of the Bag-of-Features model), the proposed method shows an accuracy higher than 90% in distinguishing between images of Amadeo’s paintings and images of artworks by other contemporary artists. For the molecular analysis, we implemented a semi-automatic system that uses hyperspectral imaging and elemental analysis. The system provides as output an image that depicts the mapping of the pigments present, together with the areas made using materials not coherent with Amadeo’s palette, if any. This visual output is a simple and effective way of assessing the results of the system. The tool proposed based on the combination of brushstroke and molecular information was tested in twelve paintings obtaining promising results. The second part of the thesis presents a systematic study of four selected paintings made by Amadeo in 1917. Although untitled, three of these paintings are commonly known as BRUT, Entrada and Coty; they are considered as his most successful and genuine works. The materials and techniques of these artworks have never been studied before. The paintings were studied with a multi-analytical approach using micro-Energy Dispersive X-ray Fluorescence spectroscopy, micro-Infrared and Raman Spectroscopy, micro-Spectrofluorimetry and Scanning Electron Microscopy. The characterization of Amadeo’s materials and techniques used on his last paintings, as well as the investigation of some of the conservation problems that affect these paintings, is essential to enrich the knowledge on this artist. Moreover, the study of the materials in the four paintings reveals commonalities between the paintings BRUT and Entrada. This observation is supported also by the analysis of the elements present in a photograph of a collage (conserved at the Art Library of the Calouste Gulbenkian Foundation), the only remaining evidence of a supposed maquete of these paintings. The final part of the thesis describes the application of the image processing tools developed in the first part of the thesis on a set of case studies; this experience demonstrates the potential of the tool to support painting analysis and authentication studies. The brushstroke analysis was used as additional analysis on the evaluation process of four paintings attributed to Amadeo, and the system based on hyperspectral analysis was applied on the painting dated 1917. The case studies therefore serve as a bridge between the first two parts of the dissertation.

Statistics as a basis for discrimination in the insurance business

The European Court of Justice has held that as from 21 December 2012 insurers may no longer charge men and women differently on the basis of scientific evidence that is statistically linked to their sex, effectively prohibiting the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services throughout the European Union. This ruling marks a sharp turn away from the traditional view that insurers should be allowed to apply just about any risk assessment criterion, so long as it is sustained by the findings of actuarial science. The naïveté behind the assumption that insurers’ recourse to statistical data and probabilistic analysis, given their scientific nature, would suffice to keep them out of harm’s way was exposed. In this article I look at the flaws of this assumption and question whether this judicial decision, whilst constituting a most welcome landmark in the pursuit of equality between men and women, has nonetheless gone too far by saying too little on the million dollar question of what separates admissible criteria of differentiation from inadmissible forms of discrimination.

Insurance segmentation as unfair discrimination: what to expect next in the wake of Test-Achats

Proceedings of the 16th Annual Conference organized by the Insurance Law Association of Serbia and German Foundation for International Legal Co-Operation (IRZ), entitled "Insurance law, governance and transparency: basics of the legal certainty" Palic Serbia, 17-19 April 2015.

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.

A abolição da dupla incriminação no mandado de detenção europeu

This essay presents the European Arrest Warrant and its relationship with the principle of double criminality, which was abolished in 2002 with the new Framework Decision (FD). This instrument was essential to implement the principle of mutual recognition and strengthen the police and judicial cooperation in criminal matters in the newly created space of freedom, security and justice. It was urgent to create mechanisms to combat cross-border crime, that alone States have struggled to counter. An analysis of the FD No 2002/584/JHA is made. The execution of warrants and the non-mandatory and optional grounds of refusal are studied in detail. As it is the implementation issue. The role of mutual recognition in practice is studied as well. The procedure is to introduce the principle of double criminality, to explain the concept and its abolition, warning for the consequences derived from them, related to the principle of legality and fundamental rights. The analysis of the European Arrest Warrant in practice in Portugal and in comparison with other Member States allows the measurement of the consequences from the abolition of dual criminality and the position of States on this measure. With the abolition of double criminality, the cooperation in judicial and criminal matters departs from what was intended by the European Council of Tampere. And without cooperation, fundamental rights of citizens are unprotected, so the states have to adopt measures to remedy the "failures" of the European Law.

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.

Relatório de estágio na Axa Portugal

The present report has the goal of enunciating and exposing some of the main judicial subjects that were developed during the period of internship, coming forth in the form of answers to questions properly reformulated as not to injure the confidentiality of data available while in the process of making said report, they deal with different branches of the law, although with a special focus on the field of Insurance Law. It being an academic piece, it was of the utmost importance to focus more sharply on a specific theme, in casu, medical-civil responsibility, causing the interest in this matter due to the curricular internship and a case law research on the subject. The last chapter of this paper focuses mainly on the problematic of seizure by insurance intermediary’s commissions, credits from occupational accidents and illnesses and Retirement and Education Savings Plans (PPR/Es), this being one problematic with which I dealt directly in the early stages of the internship.

Cumprimento de ordens, obediência hierárquica e disciplina militar versus perpetração (in)voluntária de crimes

Following orders, hierarchical obedience and military discipline are essential values for the survival of the armed forces. Without them, it is not possible to conceive the armed forces as an essential pillar of a democratic state of law and a guarantor of national independence. As issuing orders as well as receiving and following them are inextricably linked to military discipline, and as such injunctions entail the workings of a particular obedience regime within the specific kind of organized power framework which is the Armed Forces, only by analysing the importance of such orders within this microcosm – with its strict hierarchical structure – will it be possible to understand which criminal judicial qualification to ascribe to the individual at the rear by reference to the role of the front line individual (i.e. the one who issues an order vs the one who executes it). That is, of course, when we are faced with the practice of unlawful acts, keeping in mind the organizational framework and its influence over the will of the executor. One thing we take as read, if the orders can be described as unlawful, the boundary line of the duty of obedience, which cannot be overstepped, both because of a legal as well as a constitutional imperative, will have been crossed. And the military have sworn an oath of obedience to the fundamental law. The topic of hierarchical obedience cannot be separated from the analysis of current legislation which pertains to the topic within military institutions. With that in mind, it appeared relevant to address the major norms which regulate the matter within the Portuguese military legal system, and, whenever necessary and required by the reality under analysis, to relate that to civilian law or legal doctrine.

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 consagração dos naturais

“One cannot analyse a legal concept outside the economic and socio-cultural context in which it was applied” – such is the longstanding thesis of António Manuel Hespanha. I argue that Hespanha’s line of argument relative to legal concepts is also applicable, mutatis mutandis, to legal agents: the magistrates, advocates, notaries, solicitors and clerks who lived and exercised their professions in a given time and place. The question, then, is how to understand the actions of these individuals in particular contexts – more specifically in late 18th century and 19th century Goa. The main goal of the present thesis was to comprehend how westernized and Catholic Goan elite of Brahman and Chardó origin who provided the majority of Goan legal agents used Portuguese law to their own advantage. It can be divided into five key points. The first one is the importance of the Constitutional liberalism regime (with all the juridical, judicial, administrative and political changes that it has brought, namely the parliamentary representation) and its relations with the perismo – a local political and ideological tendency nurtured by Goan native Catholic elite. It was explored in the chapter 2 of this thesis. The second key point is the repeated attempts made by Goan native Catholic elite to implement the jury system in local courts. It was studied in the chapter 3. Chapter 4 aims to understand the participation of the native Catholic elite in the codification process of the uses and traditions of the indigenous peoples in New Conquests territory. The fourth key point is the involvement of those elites not only in the conflict of civil and ecclesiastical jurisdictions but also in the succession of the Royal House of Sunda. It was analyzed in the chapter 5. The functions of an advocate could be delegated to someone who, though lacking a law degree, possessed sufficient knowledge to perform this role satisfactorily. Those who held a special licence to practice law were known as provisionários (from provisão, or licence, as opposed to the letrados, or lettered). In the Goa of the second half of the 18th century and the 19th century, such provisionários were abundant, the vast majority coming from the native Catholic elite. The characteristics of those provisionários, the role played by the Portuguese letrados in Goa and the difficult relations between both groups were studied in the chapter 6.

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.