Vol 19, No 38 (2020): January-june

The world —as we know it— is the result of a profound transformation provoked by the globalization phenomenon. Nonetheless, what was initially a strategy for widening the world markets ended up being a much wider integrating process of the societies, that involved political, social and cultural aspects. In this direction, the necessity of a new global interpretation of the Human Rights is made evident. This work engages, then, the topic of how to evaluate the institutional governance thought for a worldwide society. For that, preliminary doctrinal research was undergone to introduce a new regard to the national and international judicial systems for achieving a greater concretion of human rights. The task of consolidating human rights taking globalization into account as a long-lasting fact is more urgent every day.

This article analyzes the consequences for the Colombian health system of the change of the sex variable in the ID of a transgender citizen who might legally identify with a sex while conserving its biology with another. From documental and exploratory research it was possible to conclude that the biological identity of people is what is relevant for the system given that it uses this information for health’s risks management and also for calculating the capitation income for the health promotion entities (EPS in Spanish), whereby this variable is highly suggested for the system.

This study aims to present environmental licensing as a public state policy and an instrument capable of technically evaluating business activity in the face of the discourse of economic growth. In this context, after the Stockholm Convention, with the strong environmental sentiment instituted by the world and, consequently, with the issue of specific legislation in the environmental area of Brazil, companies had to subordinate their activities to the State. With this situation, we confront the Right to the ecologically balanced environment and economic development, both present in Constitution of the Federative Republic of Brazil of 1988, in contrast to the foundations of Foucault’s theory of power.

Informal workers that might have a work accident and require access to the benefits offered by the system must overcome the barriers identified during two moments. The first one is determined by the process of voluntary affiliation to the system given that the requirements are not thought from the reality of this kind of worker. The second moment presents itself when the informal worker is affiliated under the wrong figure. If an accident takes place the difficulty would reside in demonstrating the causal nexus of the harmful fact with the work activity, since the ambiguous definition of a work accident given by the 1562 Law of 2012 links the work accident with a subordinate relation. From the judicial reflection point of view is that the intention of making evident the difficulties faced by the informal workers for voluntarily affiliating comes from, as well as revealing the barriers for accessing the welfare and economic benefits in case of a work accident.

Public safety and security directly involve both legal certainty and the security of democratic institutions. Since the acknowledgement by the Brazilian Federal Supreme Court of the constitutionality of criminal investigations being carried out directly by the Public Prosecution Service, without police direction, the National Council of the Public Prosecution Service complied with the determination to regulate the matter, at institutional level, issuing the Resolution 181, of August 7, 2017. Further to the regulation of the investigation, the Resolution also provides in its article 18 the “non-criminal prosecution agreement”.
Given this scenario, the main aim of this paper is to assess the Resolution and the referred institute, taking as its premises the Brazilian Federal Constitution, the accusatorial system, the principles of legality and the legal reserve.

As a specific objective, the article seeks to analyze those from the perspective of proper (criminal) legal proceedings, as well as the fundamental rights and guarantees of the citizen in the Brazilian Democratic State of Law. The issue that drives the investigation, directly anchored to the legal certainty and the security of democratic institutions, is whether by proposing an alteration of the Criminal Procedure through Resolution — with agreements made before the denunciation and with counterparts similar to the penalty — the ministerial body has conformed to the current procedural system.

The prevailing methodology of this research was a literature review, seeking to open a dialogue between contemporary authors on the subject matter.
The prevailing methodology of this research was a literature review, seeking to open a dialogue between contemporary authors on the subject matter.

The article displays a theological-political approach to the relation between language and law based on Walter Benjamin as a result of the research titled Los cuerpos de la excepción (Exception’s bodies). Here we state that law is the guarantor of life, but only as capture that intensifies the inevitability of itself and not the conditions for shaping an achieved life. The methodological conditions correspond to what Benjamin (2013 and 2015) names as a montage. These allow, at least, two things: questioning the values promoted by the liberal democracy as far as this one increases the power of law above human life, and assemble different analytical perspectives of Benjamin’s work for breaking the mythical effect of the law on humans. According to the resulting conclusion, the symbolic, metaphorical and allegorical qualities of language have been taken away; and law takes advantage of this for widening the culpability net that it spreads upon humanity. Only a restored language might give back justice and creative apability to humanity.

This article analyzes one of the problems of the Chilean law on administrative procedures which is the eventual monopolistic competition for notifying the Administrative acts of the State trough certified letters sent via a State-owned company. This institution has not been systematically approached but has aroused dissimilar criteria from the General Comptroller of the Republic as from the second subsection of the 46th article. The interpretation of the administrative jurisprudence is contrasted with the existing requirements of a state monopoly, as well as the right to develop any economic activity and the concept of public faith.

The peace agreements between the Colombian government and the Colombian Revolutionary Armed Forces- People’s Army (FARC-EP) was signed in 2016. Despite it being a historical milestone and constituting an important step in the search for a negotiated end to the armed conflict and a decreasing of violence, it has brought with it a social and political destabilization with multiple human rights violations as an outcome, both in rural and urban areas. These are expressed in the persistence of humanitarian consequences that even though they are no longer derived from a non-international armed struggle but a confrontation between illegal armed forces linked with organized crime, are a clear expression of the impact of the armed struggle in the civilian population. On multiple occasions, these consequences have  reached levels comparable to those of the phenomena of an armed struggle. Nonetheless, the humanitarian response protected by the normative spectrum of the IHL is more limited every day, which makes it one of the main challenges of this phase of the post-conflict.

The present study aimed to identify the extent to which coloniality, concerning ethics/non-ethics of war, contributes to the failure to reduce feminicide in the country. The profile of the predominant type of femicide in Brazil, such as domestic or intimate femicide, was also analyzed. It was found that there was a lack of articulation between the death registration system and the characterization of this type of crime in order to avoid the invisibility and underreporting of cases of women’s murder that could be confused with cases of deaths not caused by gender. It was noted that the strategies of domination/war and violence reflect up to nowadays through coloniality/coloniality of the Law, and maintain inequalities of power between the genders and even when they count on a protective system formed by Law 11.340/2006 and Law 13.104/2015, there was no reduction in female genocide. The methodological proposal is that of the Decolonial Studies, which comprehend critically the object of study, as well as use the technique of bibliographic and documentary research.

This article reflects around the ethnically differentiated approach contained within the peace agreement between the Colombian State and the former guerrilla group FARC. We aim to identify the judicial effects of this notion and in which way its introduction in the peace agreement has brought greater protection for the indigenous people and other ethnic minorities. Given that the agreement recognizes that the judicial tool for the development of peace in the lands and territories of the ethnic minorities is the prior consultation, we also perform a preliminary analysis of the effects of this law proposal. We are currently discussing in the Legislative Power what this consultation might bring for the implementation of the agreement.

The advancements obtained thanks to new technologies of information and communications have changed the methodologies for applying the traditional specialties
that conform to the criminalistic technique, alongside the fact that they have helped to the surging of other techniques for confronting criminal activities. This piece of work updates and gets closer to the reference specialty, starting from the experience of its application in the Guantanamo province. Several scientific research techniques were used as In-depth interviewing, document analysis, secondary analysis, and case study.

Diplomatic immunity, on its different modalities, procures the efficient development of the activities and objectives of a diplomatic corps. It integrates, thus, a wide variety of prerogatives and exemptions due to sovereignty and equality among States. Nonetheless, it has limits that have not been developed or applied uniformly nationally and internationally given that there is no consensus about whether must be applied in conformity to its iure imperii or iure gestionis dimension. In this context, this reflection article aims towards shedding light on this controversy that harms the comprehension, study, and application of this figure.  The former takes greater complexity when attending the ius cogens norms and international law of human rights, i.e. when these norms are infringed under the protection of diplomatic immunity, even though the international courts and the doctrine are not pleased in an interpretation regarding the limits and scope of said immunity. Summarizing, we present the Colombian case and emphasize in the ambiguities of the high courts’ jurisprudence with a divergent thesis. Thus, the fundamental rights depend on the agreed jurisdiction, which generates judicial insecurity and against what’s stated in our higher laws.

[RETRACTED PAPER -PLAGIARISM THROUGH TRANSLATION-]

The Editorial team of the journal respectfully informs to the readers, authors, academics, researchers and the public that consult Opinión Jurídica that the article Thoughts and Observations of Punishment in Contemporary Criminal Law, by the author Dimitirs Liakopoulos, published in volume 19, 38th issue, has been retracted.

At the end of 2020, the journal received information about unethical conducts by this author and we were informed about this article being plagiarized by translating a text from the book Punibilità (2017), compiled by Giovannangelo de Francesco, as can be evidenced in the following link: https://pubpeer.com/publications/40BD300324ADA61079955553C23E57

It is worth mentioning that the manuscript, once submitted, was initially reviewed by the anti plagiarism software Turnitin, and its similarity report did not display any relation with the aforementioned text; the article passed all the assessment criteria through the double-blind peer review methodology and only after publishing it were the journal notified about the unethical conducts of the author, whose Orcid was public and recently restricted. Unfortunately, the Turnitin software was not able to detect plagiarism through translation.

In the days close to these events, the journal had communications with the author, given that he had another article in submission process, and as soon as the journal consulted him about the recent restriction of his public Orcid, he decided to retire the manuscript and requested not being contacted again.

Following the Crossmark Policy, declared in the University of Medellin’s journal system website, this article is hereby retracted for plagiarism and unethical research.