Ações encobertas

The global and increasingly technological society requires the States to adopt security measures that can maintain the balance between the freedom, on the one hand, and the security and the respect for fundamental rights of a democratic state, on the other. A State can only achieve this aim if it has an effective judicial system and in particular a criminal procedure adequate to the new criminogenic realities. In this context, the national legislator has adopted, following other international legal systems, special means of obtaining proof more stringent of rights. Within those special means are included the covert actions, that, being a means to use sparingly, is a key element to fight against violent and highly organized crime. Therefore, the undercover agent, voluntary by nature, develops a set of activities that enables the investigation to use other means of taking evidence and/or probationary diligences itself, with the purpose of providing sufficient proof to the case file. In this milieu, given the high risks involved during the investigation, as well as after its completion, the undercover agent can act upon fictitious identity. This measure can be maintained during the evidentiary phase of the trial. Similarly, given the latent threat that the undercover agent suffers by its inclusion in criminal organizations, as well as the need for his inclusion in future covert actions it is crucial that his participation as a witness in the trial is properly shielded. Thus, when the undercover agent provides, exceptionally, statements in the trial, he shall do so always through videoconference with voice and image distortion. This measure can guarantee the anonymity of the undercover agent and concomitantly, that the adversarial principle and the right of the accused to a fair trial is not prejudiced since, in those circumstances, the diligence will be supervised in its entirety (in the audience and with the undercover agent) by a judge.

O fenómeno da criminalidade itinerante

In an increasingly globalized society, the crime appears as a reality that crosses borders. Globalization has potentiated the emergence of new forms of crime, which have been the subject of more interventional, particularly in terms of political, judicial and police authorities as well as civil society approaches. The media allow rapid expansion of criminal methodologies, which aggregate to the ease of movement of itinerant criminal groups, increases the opportunities for the continuation of the practice of criminal offenses, threatening, increasingly, the tranquility and safety of populations. Criminal organizations are characterized by their complexity, thus contributing to the difficulty in combat, by police and judicial authorities, forcing rapid adaptation to new political and criminal reality, particularly at the level of institutional cooperation, national and international, as exemplified by the creation of the "European Area of Freedom, Security and Justice" and new agencies in the field of police cooperation. It was intended with this paper to answer the central question: Is it possible to define a concept of Itinerant Crime in the European regulatory framework (Police and Judiciary)? To fulfill this aim, we performed the characterization of the concept of itinerant crime including itinerant criminal group, we analyzed the work that is being done by the authorities, police and judiciary, in order to contain the phenomenon. Finally, we studied type of existing cooperation at European level between the Member States and the authorities with responsibilities in this area. At the end, we conclude that efforts are being made towards the enhancement of operational, police and judicial cooperation, between the competent authorities of the European Union by combating this phenomenon. Define, and also proposed, a unique concept of Itinerant Crime, in order to be included in the legal standards, in order to facilitate research, in particular to better fit the itinerant crime and assist the prosecution of offenders.

Relatório de estágio curricular no Centro de Arbitragem Comercial da Câmara de Comércio e Indústria portuguesa

This report is the outcome of an internship that took place in Centro de Arbitragem Comercial da Câmara de Comércio e Indústria Portuguesa and its completion is an essential part of the path towards obtaining the Master’s Degree in Faculdade de Direito da Universidade Nova de Lisboa. This report has been structured in two stages – firstly, the presentation of the Centro de Arbitragem Comercial, focusing on its field of expertise, organic structure, principles and advantages. Then, the description of the activities developed within the Secretariat over the several stages of the arbitration procedure – since the reception of the arbitration requirement in institutional proceedings, terms of reference in ad hoc procedures, through the monitoring of the arbitral tribunal sessions (preliminary hearings, submission of evidence and final allegations) and the notification of the arbitration award. The second stage of this report is related to the description of the functions and powers of the President of Centro de Arbitragem Comercial. Firstly, it defines those powers by analyzing the statutes and rules of proceedings of the Centro de Arbitragem, drawing comparisons between the above mention and the rules of proceedings of others arbitral institutional centres, some of them are international references. The report assesses and describes the presidential powers, such as: configuration and composition of the arbitral tribunal (including arbitrator’s replacements, excuses and refusals); deadline extensions; determination of procedural rules and decision-making on any procedural incidents which arise before the constitution of the arbitral tribunal; definition of arbitration costs and fees; joinder of parties and consolidation of proceedings admission; and appointment of an emergency arbitrator. Lastly, this report analyzes some decisions delivered by the President in the respective institutional procedures which took place in the Centre.

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.

A internet e o sistema de justiça

The subject of study of this Thesis aims to highlight and recognize as an object of reflection the undoubted relationship between the Internet and the Justice System, based on the issue of digital evidence. The simultaneously crossing of the juridical-legal implications and the more technical computer issues is the actual trigger for the discussion of the issues established. The Convention on Cybercrime of the Council of Europe of 23rd November 2001 and the Council Framework Decision n.° 2005/222/JHA of 24th February 2005 were avant-garde in terms of the international work about the crimes in the digital environment. In addition they enabled the harmonization of national legislations on the matter and, consequently, a greater flexibility in international judicial cooperation. Portugal, in compliance with these international studies, ratified, implemented and approved Law n. º 109/2009 of 15th September concerning the Cybercrime Act, establishing a more specific investigation and collection of evidence in electronic support when it comes to combating this type of crime, as it reinforced the Substantive Criminal Law and Procedural Nature. Nevertheless, the constant debates about the New Technologies of Information and Communication have not neglected the positive role of these tools for the user. However, they express a particular concern for their counterproductive effects; a special caution prevails on the part of the judge in assessing the digital evidence, especially circumstantial evidence, due to the its fragility. Indisputably, the practice of crimes through the computer universe, given its inexorable technical complexity, entails many difficulties for the forensic investigation, since the proofs hold temporary, changeable, volatile, and dispersed features. In this pillar, after the consummation of iter criminis, the Fundamental Rights of the suspects may be debated in the course of the investigation and the construction of iter probatorium. The intent of this Thesis is to contribute in a reflective way on the issues presented in order to achieve a bigger technical and legal awareness regarding the collection of digital proof, looking for a much lighter approach to its suitability in terms of evidentiary value.

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.

Guarda prisional: força de segurança ou agente responsabilizador?

A permanently changing occidental society framework, simultaneously, to a world Globalization and a market liberalization, requires to know how important and which role the agents plays, in Estates representation, to guarantee their own intern security. Portugal is an example of that since has been integrated in European and world politics that allowed the borders opening, with all the negative consequences of that kind of measures. In way to struggle with those debilities emerge, in our Juridical Order, several security forces such as Prison Guards Corporation, whose contribute to intern security seems undefined and confuse, being urgent legislation in way to describe and clearly define their goals and functions. We begin with a brief history view to understand the evolution, focusing on the present moment, correlate several laws in way to clarify their juridical situation. Using a own critical sense, it draws attention to legislation lack problem in opposition to the conclusion that, Prison Guards Corporation is a security force with specialized expertise in matter and territory fields. Their activity occurs, generally, in penitentiaries where people see themselves without their freedom, legally determinated and confined to places as other individuals with deviant behaviors that deserve society refutation, establishing a separation period having rehabilitation as a goal – it is called general and special prevention. Penitentiaries specificities requires specially police force because penitentiaries are places where tensions are often, both between inmates and against employees, above all prison guards, the first to struggle inmates daily frustrations. In way that institutions achieve their purpose, it is necessary that citizens respect all the rules, although, to their efficacy is necessary to inflict punishment to those who did not respect the rules. Furthermore, it will be indispensable to act immediately in situations as impeding runaway helping, illegally standing in jail and to avoid violent acts against personal and patrimonial belongings. Juridical Order has a few security tools that are available to administration, in which is included coercive methods, that as damaging to citizens in whom they are use, are restricted, unavoidably, to inflexible control rules. Concluding, Prison Guards and Penitentiaries General Direction last goal is to give back recovered inmates to society, in a way to conduct their lives responsibly, without committing crimes.

A lei aplicável ao processo de arbitragem internacional

This paper is the author’s Master’s Thesis. It aims to study the content of lexarbitri, i.e. the relevant law regarding international arbitration. Under both Portuguese law and UNCITRAL model law, the seat’s legal provisions shall be applied at all times. Contrarily, French and Swiss legislations allow parties and arbitrators to apply any arbitration law to international arbitration, whether the seat law or a foreign arbitration law. There is not a sole understanding towards the criteria to determine the legal provisions that shall govern international arbitration. Traditionally, the lexarbitri would correspond to the arbitration law of the seat of the arbitration. The territorialistcriteria remains in force under the majority of arbitration laws that the author has consulted.However, it has been criticized by several authorities in international arbitration, who suggest that the arbitration shall be governed by the law of the seat or of the place in which the award is to be enforcement, whichever better grants its enforcement – the cumulative doctrine; or the arbitration shall be governed by a set of provisions that make up the autonomous transnational legal, regardless of the legal provisions of the law of the seat – the transnational doctrine. The author intends to debate the three mentioned understandings regarding the lexarbitriand further explains why the territorialist criteria is the most adequate to the characteristics and demands of international arbitration, to the governing instruments in force and to the need for a useful award.

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.

O governo da justiça : o Conselho Superior da Magistratura

O Conselho Superior da Magistratura (CSM), enquanto instituição de governo do poder judicial, desempenha um papel central na democracia portuguesa. Estudado maioritariamente sob a perspectiva jurídica, este Conselho, tal como todo o sistema de justiça, reclama hoje um olhar atento da ciência política. Nesta Dissertação principia-se com um estudo comparativo entra as diferentes soluções de governo da justiça europeias. Procurando isolar variáveis foram analisados os sistemas de Espanha, França, Alemanha e Inglaterra. Seguidamente, e tendo em conta o momento crítico da transição para a democracia, analisa-­se o lugar do CSM na constituição daí resultante, acompanhando a sua evolução até aos dias de hoje. Finalmente, procede-­se à caraterização prosopográfica da elite de juízas e juízes que ocuparam os lugares do CSM ao longo destes 40 anos. Os resultados obtidos no estudo comparado, vêm confirmar que estando garantida a liberdade individual de cada juíza ou juiz no ato de julgar, a forma de governo da justiça parece definitivamente configurar um campo em aberto. Mais do que um modelo ideal, estes órgãos são o resultado de autênticas complementaridades institucionais. A análise histórica demonstra que no poder judicial, a transição decorreu de forma pacífica e consensual, traduzindo-se num ganho progressivo de autonomia externa da magistratura ao longo destes 40 anos. O estudo da elite judicial pertencente ao CSM veio revelar uma uniformidade com poucas variações. Neste momento, os membros do conselho privilegiam o princípio da independência, verificando-­se uma certa desconfiança entre o poder político e o poder judicial.

Does the existing Corporate Governance structure and strict Legal Framework, affect the strategic decisionmaking of CEOs?

This thesis is a case study on Corporate Governance and Business Ethics, using the Portuguese Corporate Law as a general setting. The thesis was conducted in Portugal with illustrations on past cases under the Business Judgment Rule of the State of Delaware, U.SA along with illustrations on current cases in Portugal under the Portuguese Judicial setting, along with a comparative analysis between both. A debate is being considered among scholars and executives; a debate on best practices within corporate governance and corporate law, associated with recent discoveries of unlawful investments that lead to the bankruptcy of leading institutions and an aggravation of the crisis in Portugal. The study aimed at learning possible reasons and causes for the current situation of the country’s corporations along with attempts to discover the best way to move forward. From the interviews and analysis conducted, this paper concluded that the corporate governance structure and legal frameworks in Portugal were not the sole influencers behind the actions and decisions of Corporate Executives, nor were they the main triggers for the recent corporate mishaps. But it is rather a combination of different factors that played a significant role, such as cultural and ethical aspects, individual personalities, and others all of which created gray areas beyond the legal structure, which in turn accelerated and aggravated the corporate governance crisis in the country.

Gender norms in Portuguese college sudents' judgments in familial homicides: bad men and mad women

The gender of the offender has been proved to be an important factor in judicial sentencing. In this study, we analyze the judgments of College students regarding perpetrators of familial homicides to evaluate the presence of these gender norms and biases in the larger society. The sample included 303 college students (54.8% female) enrolled in several social sciences and engineering courses. Participants were asked to read 12 vignettes based on real crimes taken from Portuguese newspapers. Half were related to infanticide, and half were related to intimate partner homicide. The sex of the offender was orthogonally manipulated to the type of crime. The results show that gender had an important impact on sentences, with males being more harshly penalized by reasons of perversity and women less penalized by reason of mental disorders. In addition, filicide was more heavily penalized than was intimate partner homicide. The results also revealed a tendency toward a retributive conception of punishment. We discuss how gender norms in justice seem to be embedded in society as well as the need for intervention against the punitive tendency of this population.

Para cá e para lá dos muros: relações familiares na interface entre o interior e o exterior da prisão

Tese de Doutoramento em Sociologia