Age discrimination before the ECJ - Conceptual and theoretical issues

Although only addressed by EU law from 2000, age discrimination has been the theme of quite a few cases before the Court of Justice, with a high proportion decided by the Grand Chamber recently. This is due to the conceptual and theoretical challenges that a prohibition to use age as differentiating factor poses. After all, age has been an important stratifier used to synchronize life courses through welfare State regimes in Europe. Partly due to these traditions, there are stereotypes associated with old age, and young age, that in turn lead to disadvantage in employment. For the same reason, age discrimination frequently intersects with discrimination on other grounds, such as sex, race or disability. EU legislation on age discrimination has sought to accommodate the traditional role of age in employment policy by allowing wider justifications than for other forms of discrimination. This leads to contradictions within the larger field of discrimination law, which may even threaten to dilute its efficiency. This article analyses how recent case law of the Court of Justice, and in particular its Grand Chamber, deals with the theoretical challenges posed by these conflicting demands on age discrimination and on discrimination law at large.

Women's Nightwork :deregulation as a straight road to equality?

The book considers the question whether the traditional prohibition of nightwork for female manual workers could be defended against EU (then: EEC) discrimination law requirements and against the German constitution itself. While I was working on the PhD, German labour law still prohibited manual workers (but not white collar employees, or nurses, or policewomen) from working nights. Just before the thesis was published, the German constitutional court held that the prohibition indeed violates the Constitution, but that it must not be repealed without providing for specific protection against health risks ensuing from night work. The Court thus mainly confirmed the thesis' results. The thesis first considers the history of the legislation (which was based on an ILO convention), and discusses the social and health risks related to night work. It then comes to the conclusion that gender roles imply that women are at a greater risk when working nights, but that there is no biological justification (except during pregnancy of course). The thesis further develops a recommendation, based on the constitutional welfare states principle and the constitutional protection of health, to not just abolish the prohibition, but to provide uplevel equalisation of working conditions for women and men. This was the first time I also tried to work comparatively (not perfect at all), but I have certainly improved since then. An English summary of the thesis was published in the 3rd issue of the Cardozo Women's Law Journal 1996, which was also my first ever publicatin in English

Crime, Punishment and Article 3 ECHR: Puzzles and Prospects of Applying an Absolute Right in a Penal Context

Article 3 of the European Convention on Human Rights (ECHR), which provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, is considered to enshrine an absolute right. Yet it contains an under-explored element: inhuman and degrading punishment. While torture has been the subject of extensive academic commentary, and inhuman and degrading treatment has been examined to some extent, the prohibition of inhuman and degrading punishment has not been explored in significant depth, in spite of its considerable potential to alter the penal landscape.

This paper elucidates the key doctrinal elements of inhuman and degrading punishment ‘and treatment associated with it’, in the words of the European Court of Human Rights (ECtHR). It addresses a number of ‘puzzles’ or problems which arise in applying the absolute right enshrined in Article 3 of the ECHR to sentencing and imprisonment, clarifies ECtHR doctrine and highlights some of its key implications. Bringing a theoretically informed understanding to bear on the application of Article 3 of the ECHR in a penal context, the paper provides clarity and coherence to a complex and crucial intersection between human rights and penology.

Pro-active protection against racialist discrimination in employment law - lessons from South Africa?

This study investigates the potential of the prohibition of indirect race discrimination to be used for law reform, and to uncover discriminatory practices. It reflects on the history and contents of the concept, and focuses in particular on its application in the Republic of South Africa

Trends in deep-water shark fisheries in the Azores

Deep-sea resources have been increasingly exploited, and due to that, several ecosystems and species have been considerably affected. Deep-water sharks populations have been of the most disturbed by practices of unselected fisheries, bycatch and discard, mainly due to their low commercial value. Those practices make deep-water sharks very vulnerable to overfishing given their life-history traits, increasing their extinction risk. With the prohibition of the direct fishery, and implementation of quotas and TACs (Total Allowable Catches) regarding the deep-sea shark landings, the official landings have dramatically decreased after the 1990s. However, the IUU (Illegal, unreported and unregulated) catch has exponentially increased. With the analysis of catch per unit effort (CPUE), the depths, and the mean weight of the individuals over the years for each one of the nine most caught species in the Azores, we produced a descriptive analysis of the effect of fisheries in those species. The results show that some of these species have been suffering from a great fishing pressure, and their populations will be greatly affected in the near future if drastic measures are not taken when it comes to managing their long term sustainability.

A Psychological Exploration of Long-Term LSD Users

All research involving the psychoactive compound lysergic acid diethylamide (LSD) was terminated globally following its prohibition more than 50 years ago, though illicit use remained fairly stable. A considerable resurgence of research interest in LSD has received considerable attention in various publications and professional fora. One of the main applications considered is LSD-assisted psychotherapy to address a number of difficulties like end-of-life anxiety, addiction/alcoholism, post-traumatic stress, and depression. However, due to the highly contradictory nature of early research findings and division in the literature, one is left uncertain as to whether psychology as a profession is currently equipped to critically evaluate these advances, let alone embrace them. The purpose of the present study was to contribute to current psychological knowledge on long-term LSD use. A group of long-term LSD users who claimed beneficial use were the focus here. A mixed methods design was employed. 110 users completed an online survey assessing for demographics, patterns of use, and specific personality traits through three psychometric measures, Big Five Inventory (BFI), General Self Efficacy scale (GSE) and Satisfaction With Life Scale (SWLS). Eight individual interviews were also conducted and analysed by Thematic Analysis (TA). Gaining different perspectives on reality and increasing self- awareness appeared to be essential elements of the belief system that these non-problematic long-term LSD users adopted in order to make sense of their LSD use. Qualitative findings also suggested the existence of a common set of life values, rules and the adoption of a hierarchical system between LSD users. Novices appeared to be tutored and guided by elders whose presence and input was valued and who were listened to and respected. A role for ‘wiser/elder’ users as those imparting valuable knowledge to novices was therefore also suggested. The underlying aim may possibly be an attempt to minimise risks and maximise potential benefits of LSD use. A prospective role for LSD as a deterrent of substance misuse, a ‘gateway drug to no drugs’ was also hinted and remains in need of iv further investigation. Claims regarding beneficial LSD use and ‘change’ through LSD use were confirmed by the participant sample. No noteworthy differences between psychometric scores of the LSD-using group and those of the general population (as suggested by normative data comparisons) were found, possibly due to methodological limitations, especially considering the highly subjective nature of the LSD experience and its effects. The determining role of extra-pharmacological variables or ‘set and setting’ in the outcome of LSD use suggested in earlier literature was re-validated. Knowledge on their specific components was enriched, and a potentially significant value for adopting a flexible, adaptable and solution-focused mind-set in order to better manage the effects of LSD was highlighted. Due to the highly selected nature of the participant sample, present findings should serve as suggestions for further research in order to clarify the aforementioned issues and to make explicit the mechanisms by which they operate. The complex nature of LSD, its use and its effects have been re-confirmed here. It is imperative that the current knowledge base on the substance is enriched before LSD is introduced in a clinical psychology professional context.

Spiny lobster fishery on the southwest coast of Portugal: conciliating fisheries and conservation

Dissertação de mest., Aquacultura e Pescas (Pescas), Faculdade de Ciências e Tecnologia, Univ. do Algarve, 2011

Recreational shore fishing in southern Portugal: biological and socio-economic aspects and perspectives for management

Although overfishing is a concern for many fish stocks, it was for a long time only associated with commercial fishing exploitation, with less or no attention being given to the recreational fisheries. Recent research has shown however that the impact of recreational fishing on particular species can be considerable, and that the recreational harvest needs to be taken into account if fisheries are to be accurately assessed and effectively managed. In Portugal, the first recreational fishing regulations were only recently implemented. However, mirroring other European countries, regulations lacked scientific support, and specific knowledge of the activity was limited to a few studies with limited coverage. This thesis aimed to characterize the biological and socioeconomic aspects of the recreational shore angling activity in southern Portugal, to investigate whether the regulations in place were adequate and effective, and to provide recommendations for improved management and conservation of the inshore fisheries resources. A combined aerial-roving survey was conducted to gather data on fishing effort, catch, fishing trips and socioeconomic aspects (including anglers’ perceptions of regulations) of the recreational angling activity. The analysis of anglers’ catches suggested that compliance with daily bag limits was high, with less than 0.5% of creels exceeding the 10 kg angler-1 day-1 bag limit. Overall, 11.5% of the retained fishes were undersized, but non-compliance with minimum size limits was found to be high for some species (e.g. seabass, 73% undersized). In terms of the impact of recreational shore angling, the total estimated catches corresponded to less than 1% of the commercial landings for the same period (shared species). However, shore angling catches for white sea bream (Diplodus sargus) were found to be considerable, corresponding to 65% of the commercial landings (39.4% of total catch). In terms of anglers’ perceptions about the recreational fishing regulations in Portugal, the present study has shown that the majority of anglers accepted the existence of some kind of SRF regulations, but in general there was a partial or total disagreement with the recreational fishing restrictions recently put in place. Most anglers perceived themselves as not being involved in the decision-making process and claimed that some restrictions lacked a meaningful rationale (e.g. prohibition of fishing from piers/jetties). Fishers’ awareness with regard to specific aspects of the restrictions (such as the rationale for minimum size limits) was found to be very limited. During the same period, catches from sport fishing competitions were examined to test for differences with the recreational activity in terms of catches, and evaluate long term trends in catch and mean size of fish. Catches of the sport fishing competitions were found to be different from those observed for recreational fishing, being dominated by different species (e.g. garfish, mullets), and suggesting different fishing strategies of the the two types of anglers. High percentages of undersized fish were observed to be captured (and retained) during the competitions (in particular seabass, with 100% undersized), probably as a result of a single allowable minimum size (AMS) of 15 cm for all species in use in competitions. Lastly, catch and release fishing experiments were carried out to assess post-release mortality of three recreationally important species: two banded sea bream Diplodus vulgaris; black sea bream Spondyliosoma cantharus; and gilthead sea bream Sparus aurata. Post-release mortalities were found to be low (0-12%). The main predictor of mortality for Sparus aurata was anatomical hooking location, with 63% of the fishes that died being deeply hooked. The results support the release of fish, either from mandatory (e.g. minimum landing sizes) or voluntary practices. In summary, this thesis has demonstrated that the impact of recreational fishing for particular species is significant and needs to be taken into account for more effective management and stock assessment purposes. It has also highlighted several management issues that should be addressed in order to promote more adequate regulations in the future and prevent noncompliance issues. A periodic monitoring of the recreational fishing activity including all fishing modes (i.e. spear fishing, boat, and shore angling) would also be beneficial to ensure a timely knowledge on the global recreational fishing activity and support future management actions.

A pureza perdida do desporto : futebol no Estado Novo

Tese de doutoramento, Sociologia (Teorias e Métodos de Sociologia), Universidade de Lisboa, Instituto de Ciências Sociais, 2014

As práticas comerciais desleais

The following study aims to examine a controversial and relatively unexplored subject within our system: the legal framework on unfair business-to-consumer commercial practices. Given the fact that this subject is based on the Directive 2005/29/EC, we considered to be appropriate to explore, firstly, the background and origin of such normative instrument. Nevertheless, we have centered our analysis on the interpretation of the set rules established by the Portuguese legal system (Law nr 57/2008, March 26th). For this dissertation, we have proposed a model of tripartite approach. Chapter V seeks to shed light on the general clause by analyzing a set of open concepts such as professional diligence, honest market practice, good faith or material distortion of the consumer’s economic behavior. In chapter VI, we will focus on two common types of unfair commercial practices: misleading and aggressive practices. Finally, due to the fact that chapter VII deals with the black list, we have illustrated the listed practices by giving real life examples. Taking into account the indefinite concepts used in the general prohibition and in the misleading and aggressive clauses, it is particularly difficult to demonstrate the unfairness of the professional’s behavior. In the light of this information, we have concluded that the regime fails on achieving its main goal: it does not protect proper and effectively the consumer’s interests.

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.

Aplicação das medidas de coacção às pessoas colectivas

1. Legal system of coercive measures and applicability to legal persons: the criminal liability of legal persons, application requirements, fundamental principles; 2. Inapplicability of personal freedom coercive measures to legal persons; 3. Application in the specific case of legal persons: term of identity and residence; provision of security, the obligation of periodic presentation, suspension of exercise of functions, activities and rights, conducts prohibitions and obligations; 4. Break of coercive measure imposed on the legal person.

Modern piracy

A definição de pirataria ou a desmistificação da sua origem, no tempo e espaço, revela maiores dificuldades do que atualmente. Com este trabalho propusemo-nos a estudar como é que a pirataria era perpetrada e entendida no passado, bem como no presente. Também nos propomos a identificar limitações legais e as medidas operativas no combate à pirataria, como por exemplo: limites conceptuais, lacunas, estratégias, entre outros. Por outro lado, atendemos as soluções encontradas no combate à pirataria sem deixar de observar fraqueza da lei e conflitos entre jurisdições. Por fim, o curso da história dá-nos a seguinte percepção: a pirataria era tida como crime se fosse contra os interesses das nações. O desinteresse dos Estados para reprimir a pirataria possibilitou o seu aumento, proliferação, domínio e sofisticação em certas regiões do Mundo. O presente trabalho tem como objetivo trazer para o centro da discussão os direitos humanos numa perspetiva tripla: proibição da pirataria, supressão e raízes, aliando o estudo de possíveis respostas a dar a esta epidemia.