“Estudio comparativo de la apreciación y valoración de las pruebas testimonial, pericial y documental en las diferentes etapas procesales en Colombia y Venezuela”

La nueva tendencia socio jurídica se inclina al establecimiento de Estados en los cuales todo esté supeditado a la Ley y se implementen principios y derechos fundamentales en las constituciones políticas, todo lo cual los lleva a que se les denomine Estado democrático y social de derecho. Eso conduce a que en materia jurídico penal se adopte el sistema acusatorio, sustituyendo al inquisitivo que imperó por muchos años. De otra parte, ha surgido la idea de la integración entre los países relacionados histórica, geográfica y culturalmente y ello abarca una comunidad económica, jurídica y política en el ámbito internacional. En este estudio, se analiza comparativamente el tratamiento que legal, doctrinal y jurisprudencialmente se da en países vecinos como Colombia y Venezuela, a las pruebas documental, pericial y testimonial, para apreciar sus diferencias y similitudes. Con esa comparación, se llegó a la conclusión de que en ambos países se adopta el sistema acusatorio, con la abolición del mixto inquisitivo, se sustituye la prueba tarifada por la apreciación según la sana crítica y se incita a un estudio más amplio en otras pruebas y aspectos procesales, llevados, incluso, a otros países del continente. Con todo ello, se pretende abrir una puerta a nuevas investigaciones en ese sentido, para poder comprender cuál es la verdadera tendencia en la América del Sur en materia probatoria penal, para ampliarla a los recursos, incluso Casación y con los aciertos y desaciertos de cada legislación, llevar a hacer perfectible el sistema que verdaderamente garantice los derechos humanos.

Toxic Legacies, Slow Violence, and Environmental Injustice at Giant Mine, Northwest Territories

For fifty years (1949–99) the now-abandoned Giant Mine in Yellowknife emitted arsenic air and water pollution into the surrounding environment. Arsenic pollution from Giant Mine had particularly acute health impacts on the nearby Yellowknives Dene First Nation (YKDFN), who were reliant on local lakes, rivers, and streams for their drinking water, in addition to frequent use of local berries, garden produce, and medicine plants. Currently, the Canadian government is undertaking a remediation project at Giant Mine to clean up contaminated soils and tailings on the surface and contain 237,000 tonnes of arsenic dust that are stored underground at the Giant Mine. Using documentary sources and statements of Yellowknives Dene members before various public hearings on the arsenic issue, this paper examines the history of arsenic pollution at Giant Mine as a form of “slow violence,” a concept that reconfigures the arsenic issue not simply as a technical problem, but as a historical agent of colonial dispossession that alienated an Indigenous group from their traditional territory. The long-term storage of arsenic at the former mine site means the effects of this slow violence are not merely historical, but extend to the potentially far distant future.

Forensic Injustice: Human Rights, Archival Science and Racialized Feminicide in Guatemala

The call to access and preserve the state records that document crimes committed by the state during Guatemala’s civil war has become an archival imperative entangled with neoliberal human rights discourses of “truth, justice, and memory.” 200,000 people were killed and disappeared in Guatemala’s civil war including acts of genocide in which 85% of massacres involved sexual violence committed against Mayan women. This dissertation argues that in an attempt to tell the official story of the civil war, American Human Rights organizations and academic institutions have constructed a normative identity whose humanity is attached to a scientific and evidentiary value as well as an archival status representing the materiality and institutionality of the record. Consequently, Human Rights discourses grounded in Western knowledges, in particular archival science and law, which prioritize the appearance of truth erase the material and epistemological experience of indigenous women during wartimes. As a result, the subjectivity that has surfaced on the record as most legible has mostly pertained to non-indigenous, middle class, urban, leftist men who were victims of enforced disappearance not genocide. This dissertation investigates this conflicting narrative that remembers a non-indigenous revolutionary masculine hero and grants him justice in human rights courtrooms simply because of a document attesting to his death. A main research question addressed in this project is why the promise of "truth and justice" under the name of human rights becomes a contentious site for gendered indigenous bodies? I conduct a discursive and rhetorical analysis of documentary film, declassified Guatemalan police and military records such as Operation Sofia, a military log known for “documenting the genocide” during rural counterinsurgencies executed by the military. I interrogate the ways in which racialized feminicides or the hyper-sexualized racial violence that has historically dehumanized indigenous women falls outside of discourses of vision constructed by Western positivist knowledges to reinscribe the ideal human right subject. I argue for alternative epistemological frames that recognize genocide as sexualized and gendered structures that have simultaneously produced racialized feminicides in order to disrupt the colonial structures of capitalism, patriarchy and heterosexuality. Ironically, these structures of power remain untouched by the dominant human rights discourse and its academic, NGO, and state collaborators that seek "truth and justice" in post-conflict Guatemala.

Injustice Everywhere: Hemingway's Struggle with Race, Gender, and Aesthetics

The purpose of this study was to critically evaluate the aesthetic decisions and theoretical complexity of three of Ernest Hemingway’s most experimental texts: IN OUR TIME, TO HAVE AND HAVE NOT, and THE GARDEN OF EDEN, and to show that the usually maligned Hemingway was an author invested in the avant-garde and in analyzing and dissecting rigid societal rules, not championing them. Through critical analysis this study examined how Hemingway makes specific aesthetic decisions in order to more clearly examine the disparity between whites and both women and racial minorities in America. The problems that Hemingway makes clear through his art are meant to have a profound effect upon the reader and encourage re-evaluation of societal rules, their purpose, and their fairness to those who are not white, male, and typically in a position of power. The findings demonstrate that Hemingway’s entire oeuvre is open to re-interpretation on the basis of a progressive view of the author.

Post-Revolutionary Post-Modernism: Central American Detective Fiction by the Turn of the 21st Century

Contemporary Central American fiction has become a vital project of revision of the tragic events and the social conditions in the recent history of the countries from which they emerge. The literary projects of Sergio Ramirez (Nicaragua), Dante Liano (Guatemala), Horacio Castellanos Moya (El Salvador), and Ramon Fonseca Mora (Panama), are representative of the latest trends in Central American narrative. These trends conform to a new literary paradigm that consists of an amalgam of styles and discourses, which combine the testimonial, the historical, and the political with the mystery and suspense of noir thrillers. Contemporary Central American noir narrative depicts the persistent war against social injustice, violence, criminal activities, as well as the new technological advances and economic challenges of the post-war neo-liberal order that still prevails throughout the region. Drawing on postmodernism theory proposed by Ihab Hassan, Linda Hutcheon and Brian MacHale, I argued that the new Central American literary paradigm exemplified by Sergio Ramirez’s El cielo llora por mí, Dante Liano’s El hombre de Montserrat, Horacio Castellanos Moya’s El arma en el hombre and La diabla en el espejo, and Ramon Fonseca Mora’s El desenterrador, are highly structured novels that display the characteristic marks of postmodern cultural expression through their ambivalence, which results from the coexistence of multiple styles and conflicting ideologies and narrative trends. The novels analyzed in this dissertation make use of a noir sensitivity in which corruption, decay and disillusionment are at their core to portray the events that shaped the modern history of the countries from which they emerge. The revolutionary armed struggle, the state of terror imposed by military regimes and the fight against drug trafficking and organized crime, are among the major themes of these contemporary works of fiction, which I have categorized as perfect examples of the post-revolutionary post-modernism Central American detective fiction at the turn of the 21st century.

Catching up with consumer realities: the need for legislation prohibiting unfair terms in consumer contracts

In the policy debate about the need for legislation to prohibit the use of unfair terms in consumer contracts, substantive unfairness is often distinguished from procedural unfairness. Current consumer protection laws appear to offer the potential for relief on substantive unfairness grounds alone. However, a review of cases involving credit contracts shows this potential is rarely realised. This reluctance to provide relief for substantive injustice reflects a preoccupation with freedom and certainty of contract, the notions underpinning classical contract theories. As a class, consumers are vulnerable in the marketplace, and they do need protection from substantively unfair terms. A new framework for regulating consumer contracts is needed, one that relies less on classical contract theories and takes the reality of consumer contracting and consumer behavior as its starting point. Unfair contract terms legislation will be a step on the path towards this new framework.

The impact of susceptibility to informational influence on the effectiveness of consumer testimonials

In this article we examine how a consumer's susceptibility to informative influence (SII) affects the effectiveness of consumer testimonials in print advertising. More specifically, we show that consumers that are high in SII and that seek consumption-relevant information from other people are more influenced by the strength of the testimonial information than the strength of the attribute information. Conversely, consumers low in SII place greater emphasis on the strength of the attribute information when forming their evaluations. Our results show that consumer psychological traits can have an important impact on the acceptance of testimonial advertising. Theoretical and managerial implications of our findings are discussed.

Emailing experts and novices : effects of knowledge, copy type and testimonials on email advertising effectiveness

In this article we examine how consumer knowledge and two aspects of email ad design (copy type and testimonial type) influence attitudes and purchase intentions. Results from a field experiment reveal differences between experts and novices in their responses to email advertising. Specifically, experts report more favorable evaluations for email advertising than novices. Experts also demonstrate a preference for expert testimonials, when exposed to attribute copy. Yet when benefits-only ad copy was used, experts are most influenced by novice testimonials. In contrast, novice consumers show no copy-testimonial preference. Expert testimonials are also more effective than novice testimonials for expert and novice consumers. We discuss the results with respect to theoretical contributions and managerial implications.

Environmental rights, justice and climate change

The human rights implications of climate change are increasingly gaining attention, with wider international acknowledgement that climate change poses a real threat to human rights. This paper considers the impact of climate change on human rights, looking particularly at the experiences of Torres Strait Islanders in northern Australia. It argues that human rights law offers a guiding set of principles which can help in developing appropriate strategies to combat climate change. In particular, the normative principles embodied in environmental rights can be useful in setting priorities and evaluating policies in response to climate change. The paper also argues that a human rights perspective can help address the underlying injustice of climate change: that it is the people who have contributed least to the problem who will bear the heaviest burden of its effects.

Richard Rorty, innovation strategies & movie inspiration

Movie innovation is a conversation between screenwriters and producers in our mixed economy – a concept of innovation supported by Richard Rorty and Aristole's Poetics. During innovation conversations, inspired writers describe fresh movie actions to empathetic producers. Some inspired actions may confuse. Writers and producers use strategies to inquire about confusing actions. This Australian study redescribes 25 writer-producer strategies in the one place for the first time. It adds a new strategy. And, with more evidence than the current literature, it investigates writer inspiration, which drives film innovation. It reports inspiration in pioneering, verifiable detail.

Researching for social justice: Contextual, conceptual and methodological challenges

Reforming schooling to enable engagement and success for those typically marginalised and failed by schools is a necessary task for educational researchers and activists concerned with injustice. However, it is a difficult pursuit, with a long history of failed attempts. This paper outlines the rationale of an Australian partnership research project, Redesigning Pedagogies in the North (RPiN), which took on such an effort in public secondary schooling contexts that, in current times, are beset with 'crisis' conditions and constrained by policy rationales that make it difficult to pursue issues of justice. Within the project, university investigators and teachers collaborated in action research that drew on a range of conceptual resources for redesigning curriculum and pedagogies, including: funds of knowledge, vernacular or local literacies; place-based education; the 'productive pedagogies' and the 'unofficial curriculum' of popular culture and out-of-school learning settings. In bringing these resources together with the aim of interrupting the reproduction of inequality, the project developed a methodo-logic which builds on Bourdieuian insights.

The role of human rights in environmental governance : the challenge of climate change

The role of human rights in environmental governance is increasingly gaining attention. This is particularly the case in relation to the challenge of climate change, where there is growing recognition of a real threat to human rights. This chapter argues in favour of greater reference to human rights principles in environmental governance. It refers to the experiences of Torres Strait Islanders to demonstrate the impact of climate change on human rights, and the many benefits which can be gained from a greater consideration of human rights norms in the development of strategies to combat climate change. The chapter also argues that a human rights perspective can help address the underlying injustice of climate change: that it is the people who have contributed least to the problem who will bear the heaviest burden of its effects.

Human rights and environmental wrongs : achieving environmental justice through human rights law

The links between the environment and human rights are well established internationally. It is accepted that environmental problems impact on individuals’ and communities’ enjoyment of rights which are guaranteed to them under international human rights law. Environmental issues also impact on governments’ capacity to protect and fulfil the rights of their citizens. In addition to these links between the environment and human rights, it is argued that human rights principles offer a strategy for addressing environmental injustice. The justice implications of environmental problems are well documented, with many examples where pollution, deforestation or other degradation disproportionately impacts upon poorer neighbourhoods or areas populated by minority groups. On the international level, there are environmental injustices which exist between developed and developing states. Further, there are also potential injustices for future generations. This paper investigates the role of human rights principles in addressing these instances of environmental injustice, and argues that the framework of human rights norms provides an approach to environmental governance which can help to minimise injustice and promote the interests of those groups who are most adversely affected. Further, it suggests that the human rights enforcement mechanisms which exist at international law could be utilised to lend more weight to claims for more equitable environmental policies.

Regulating the cost of small loans : overdue or overkill?

Small-amount short-term lending began in 1994 in response to the initial exemption of such loans from consumer credit regulation. Growing demand for such loans now produces industry turnover of approximately $800 million each year. Regulators recognised early the need for consumer protection due to the vulnerability of borrowers and the emergence of various predatory practices. This led to reforms designed to regulate these loans, prevent particular misconduct and provide remedies against injustice. Some were enacted as part of the National Consumer Credit Protection Act 2009 (Cth), which also imposed licensing and responsible lending requirements on lenders and increased consumer access to remedies. The Government has now introduced the Consumer Credit and Corporations Amendment (Enhancements) Bill 2011 which limits the price that can be charged for credit and restricts access to small loans. This article examines the extensive reforms which have taken place in this sector, and compares these regulatory approaches with the “bright line approach” of the Enhancements Bill. The article argues that the repercussions of this step will require careful monitoring to ensure that further harm is not suffered by those least able to bear it, and that the government will also need to facilitate other, more sustainable, solutions to the problem that small loans are currently used to solve. After we wrote this article, the Report of the Parliamentary Joint Committee on Corporations and Financial Services and the Report of the Senate Economics Legislation Committee on the Enhancements Bill were released. These are referred to in a postscript.

Justice in Society

Australia has always made claims to being a just and fair society. It is a land of opportunity, where anyone can make it, and where mateship rather than class underpins social relations. Why is it, then, that our criminal justice system is host to the most disadvantaged and disenfranchised in our community? Why do certain groups of people continue to experience the worst forms of injustice in our society? And why do these injustices continue, despite numerous attempts by researchers and activists to address them? By exploring the ways in which we think about justice in the wider Australian society, this book considers these questions. As disciplines that have the most to say about justice and injustice, it analyses the contributions of political philosophy and sociology, and examines how their ideas have come to dominate discussion on issues ranging from asylum seeking to homophobic violence. By examining the shared assumptions about justice and injustice that underpin these discussions, this book also charts a course between and beyond these debates, and seeks to engage, challenge, and offer new possibilities for justice in Australian society. Relevant contemporary social issues like sex trafficking, homelessness, mental illness and Indigenous policing are examined throughout, placed in their historical, social and cultural context, and linked to local, national and global debates. Such analyses examine the broader implications of these criminological, social and legal issues for those excluded from justice in Australian society.