Search results for: Colombian constitutional court

Authors: Nour Mohammad

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The concept of International Criminal Court is not a new idea.It goes back to the late 19th century and was first mooted in 1872 by Gustave Moynier of the International Commitee of the Red Cross(ICRC). This paper attempts to focus on jurisdictional problem of the international criminal court (ICC) over national of states of non parties to the Rome statute. Mor than 120 countries are state parties to the Rome Statute representing all regions, Afria, the Asia-pacofoc Eastern Europe, Latin America and the Caribben as well as Western Europe and North America.The Statute is the core document of internationa criminal law todaycontaining 128 Articles and divided in 13 parts.The Rome Statute provides that the court may sit elsewhere the judge consider it desirable.The International Criminal Court is not in a position to adjudicate all international crimes but its jurisdiction is limited to the four categories of crime viz. genocide, crimes against humanity, war crimes and crime of aggression as stipulated in Article 5 of the ICC Statute. It also mention here that the Court will be able to exercise its jurisdiction over the crime of aggression only when this crime is defined. Due to the highly political nature of this crime, it is unlikely that a consensus in this regard would be arrived at in the near future.The main point of this article is to discuss the mandate of international criminal court to prosecute and punish persons responsible for the henious crimes of concern to the international community.The author highlighted the principles which support the delegation of criminal jurisdiction by state to international tribunals and discuss the precedents of such delegation.It also argued that the exercise of ICC jurisdiction over acts done pursuant to the officially policy of non-party state would not be contrary to the principles requiring consent for the exercise of jurisdiction by international tribunals. The article explore the limit to jurisdiction of ICC over non-party nationals.

Keywords: jurisdiction, international, criminal, court, non-parties

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Authors: Hasan Alrashid

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The 2005 Hague Convention seeks to ensure legal certainty and predictability between parties in international business transactions. It harmonies exclusive choice of court agreements at the international level between parties to commercial transactions and to govern the recognition and enforcement of judgments resulting from proceedings based on such agreements to promote international trade and investment. Although the choice of court agreements is significant in international business transactions, the United Arab Emirates refuse to recognise it by Article 24 of the Federal Law No. 11 of 1992 of the Civil Procedure Code. A review of judicial judgments in United Arab Emirates up to the present day has revealed that several cases appeared before the Court in different states of United Arab Emirates regarding the recognition of exclusive choice of court agreements. In all the cases, the courts regarded the exclusive choice of court agreements as a direct assault on state authority and sovereignty and refused categorically to recognize choice of court agreements by refusing to stay proceedings in favor of the foreign chosen court. This has created uncertainty and unpredictability in international business transaction in the United Arab Emirates. In June 2011, the first Gulf Judicial Seminar on Cross-Frontier Legal Cooperation in Civil and Commercial Matters was held in Doha, Qatar. The Permanent Bureau of the Hague Conference attended the conference and invited the states of the Gulf Cooperation Council (GCC) namely, The United Arab Emirates, Bahrain, Saudi Arabia, Oman, Qatar and Kuwait to adopt some of the Hague Conventions, one of which was the Hague Convention on Choice of Court Agreements. One of the recommendations of the conference was that the GCC states should research ‘the benefits of predictability and legal certainty provided by the 2005 Convention on Choice of Court Agreements and its resulting advantages for cross-border trade and investment’ for possible adoption of the Hague Convention. Up to today, no further step has been taken by the any of the GCC states to adapt the Hague Convention nor did they conduct research on the benefits of predictability and legal certainty in international business transactions. This paper will argue that the approach regarding the recognition of choice of court agreements in United Arab Emirates states can be improved in order to help the parties in international business transactions avoid parallel litigation and ensure legal certainty and predictability. The focus will be the uncertainty and gaps regarding the choice of court agreements in the United Arab Emirates states. The Hague Convention on choice of court agreements and the importance of harmonisation of the rules of choice of court agreements at international level will also be discussed. Finally, The feasibility and desirability of recognizing choice of court agreements in United Arab Emirates legal system by becoming a party to the Hague Convention will be evaluated.

Keywords: choice of court agreements, party autonomy, public authority, sovereignty

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Authors: Tareq M. Aziz Elven

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The issue of Human Rights enforcement in Southeast Asia has become the serious problem and attract the attention of international community. Principally, Association of Southeast Asian Nations (ASEAN) has mentioned the Human Rights as one of the focus and be a part of the ASEAN Charter in 2008. It was followed by the establishment of ASEAN Inter-Governmental Commission on Human Rights (AICHR). AICHR is the commission of Human Rights enforcement in Southeast Asia which has a duty, function, and an authority to conduct dissemination and protection of Human Rights. In the end of 2016, however, the function of protection mandated to AICHR have not achieved yet. It can be proved by several cases of Human Rights violation which still exist and have not settled yet. One of case which attracts the public attention recently is human rights violation towards Rohingya in Myanmar. Using the juridical-normative method, the research aims to examine the urgency of Human Rights court establishment in Southeast Asia region which able to issue the decision that binds the ASEAN members or the violating parties. The data shows that ASEAN needs to establish a regional court which intended to settle the Human Rights violations in ASEAN region. Furthermore, the research also highlights three strong factors should be settled by ASEAN for establishing human rights court i.e. the significant distinction of democracy and human rights development among the members, the strong implementation of non-intervention principle, and the financial matter to sustain the court.

Keywords: AICHR, ASEAN, human rights, human rights court

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Authors: Tatia Kekelia

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This paper is part of an ongoing research addressing gender discrimination in the Court of Georgia. The research suggests that gender stereotypes influence the processes at the Court in contemporary Georgia, which causes uneven fights for women and men, not to mention other gender identities. The sub-hypothesis proposes that the gender stereotypes derive from feudal representations, which persisted during the Soviet rule. It is precisely those stereotypes that feed gender-based discrimination today. However, this paper’s main focus is on the main hypothesis, describing the revealed stereotypes, and identifying the Court as a place where their presence is most hindering societal development. First of all, this happens by demotivating people, causing loss of trust in the Court, and therefore potentially encouraging crime. Secondly, it becomes harder to adequately mobilize human resources, since more than a half of the population is female, and under the influence of rigid or more subtle forms of discrimination, they lose not only equal rights, but also the motivation to work or fight for them. Consequently, this paper falls under democracy studies as well – considering that an unbiased Court is one of the most important criteria for assessing the democratic character of a state. As the research crosses the disciplines of sociology, law, and history, a complex of qualitative research methods is applied, among which this paper relies mainly on expert interviews, interviews with attorneys, and desk research. By showcasing and undermining the gender stereotypes that work at the Court of Georgia, this research might assist in rising trust towards it in the long-term. As for the broader relevance, the study of the Georgian case opens the possibility to conduct comparative analyses in the region and the continent, and, presumably, carve the lines of cultural influences.

Keywords: gender, stereotypes, bias, democratization, judiciary

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Authors: Adriana Martínez-Arias, John Josephraj Selvaraj, Luis Octavio González-Salcedo

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In the Colombian Pacific, Dorado fish (Coryphaena hippurus L.) fisheries is of great commercial interest. However, its habitat and fisheries may be affected by climatic change especially by the actual increase in sea surface temperature. Hence, it is of interest to study the dynamics of these species fishing zones. In this study, we developed Artificial Neural Networks (ANN) models to predict Catch per Unit Effort (CPUE) as an indicator of species abundance. The model was based on four oceanographic variables (Chlorophyll a, Sea Surface Temperature, Sea Level Anomaly and Bathymetry) derived from satellite data. CPUE datasets for model training and cross-validation were obtained from logbooks of commercial fishing vessel. Sea surface Temperature for Colombian Pacific were projected under Representative Concentration Pathway (RCP) scenarios 4.5 and 8.5 using Coupled Model Intercomparison Project Phase 5 (CMIP5) and CPUE maps were created. Our results indicated that an increase in sea surface temperature reduces the potential fishing zones of this species in the Colombian Pacific. We conclude that ANN is a reliable tool for simulation of climate change effects on the potential fishing zones. This research opens a future agenda for other species that have been affected by climate change.

Keywords: climatic change, artificial neural networks, dorado fish, CPUE

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Authors: M Jeffri Arlinandes Chandra, Puwaningdyah Murti Wahyuni, Dewi Mutiara M Jeffri Arlinandes Chandra, Puwaningdyah Murti Wahyuni, Dewi Mutiara

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Indonesia is a state of the law in accordance with article 1 paragraph 3 of the Constitution of the Republic of Indonesia (1945 Constitution), namely, 'the State of Indonesia is a state of law'. The consequences of the rule of law are making the law as the main commanding officer or making the law as a basis for carrying out an action taken by the state. The types of regulations and procedures for the formation of legislation in Indonesia are contained in Law Number 12 of 2011 concerning the Formation of Legislation. Various attempts were made to make quality regulations both in the formal hierarchy and material hierarchy such as synchronization and harmonization in the formation of laws and regulations so that there is no conflict between equal and hierarchical laws, but the fact is that there are still many conflicting regulations found between one another. This can be seen clearly in the many laws and regulations that were sued to judicial institutions such as the Constitutional Court (MK) and the Supreme Court (MA). Therefore, it is necessary to have a formulation regarding the governance of the formation of laws and regulations so as to minimize the occurrence of lawsuits to the court so that positive law can be realized which can be used today and for the future (ius constituendum). The research method that will be used in this research is a combination of normative research (library research) supported by empirical data from field research so that it can formulate concepts and answer the challenges being faced. First, the structuring of laws and regulations in Indonesia must start from the inventory of laws and regulations, whether they can be classified based on the type of legislation, what are they set about, the year of manufacture, etc. so that they can be clearly traced to the regulations relating to the formation of laws and regulations. Second, the search and revocation/revocation of laws and regulations that do not exist in the state registration system. Third, the periodic evaluation system is carried out at every level of the hierarchy of laws and regulations. These steps will form an ideal model of laws and regulations in Indonesia both in terms of content and material so that the instructions can be codified and clearly inventoried so that they can be accessed by the wider community as a concrete manifestation of the principle that all people know the law (presumptio iures de iure).

Keywords: legislation, review, evaluation, reconstruction

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Authors: Romina Beqiri

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In the context of the prosecution of those responsible for the commission of the most hideous crimes and the fight against impunity, a fundamental role is played by witnesses of the crimes who contribute to ascertaining the ‘procedural truth’. This article examines recent decisions and legislation of the Hague-based International Criminal Court in terms of the endangerment of the integrity of the criminal proceedings in consequence of witness tampering. The analysis focuses on the new developments in the courtroom and the academia, in particular, on the first-ever sentence confirming the charges of corruptly influencing witnesses, interpretation of presenting false evidence and giving false testimony when under an obligation to tell the truth. Confronted with recent tampering with witnesses and their credibility at stake in the ongoing cases, the research explores different Court’s decisions and scholars’ legal disputes concerning the deterrence approach to punish the authors of offences against the administration of justice when committed intentionally. Therefore, the analysis concludes that the Court cannot tolerate any witness false testimony and should enhance consistency and severity of sanctions for the sake of fair trial and end impunity.

Keywords: International Criminal Court, administration of justice, credibility of witness, fair trial, false testimony, witness tampering

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Authors: Erinda Male

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Participation of a lawyer in any criminal proceedings on behalf of an accused person or a victim is essential to a fair trial. Legal representation is particularly crucial in proceedings before international tribunals, especially in the International Criminal Court. The paper thus focuses on the importance of the legal representation of victims and defendants before the ICC, as well as on the role of the legal representative in the proceedings before the court and the principle of freedom of choice of legal representatives. Also, the paper presents a short overview of the significance of legal representatives for victims and the necessity to protect their primary role in the ICC system, and ensure that it is coherent and respectful of victims’ rights. Victim participation is an important part of the ICC Statute and it is designed to help ensure that those most affected by the crimes are able to engage with the Court. Proper and quality legal representation ensures meaningful participation of victims at stages of the proceedings before ICC. Finally, the paper acknowledges the role of legal representatives during the pre-trial, trial and post-trial phase, the different modalities in selecting the legal representatives as well as balancing victims’ participation with the right of the accused to a fair trial.

Keywords: fair trial, freedom of choice principle, international criminal court, legal representatives, victims

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Authors: Jesica López, Deniz Koca, Asaf Tzachor

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In 2016 the historic peace accord between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) had no strong mechanism for managing changes to land use and the environment. Since the end of a 60-year conflict in Colombia, large areas of forest in the Amazon region have been rapidly converted to agricultural uses, most recently by cattle ranching. This suggests that the peace agreement presents a threat to the conservation of the country's rainforest. We analyze the effects of cattle ranching as a driver and accelerator of deforestation from a systemic perspective, focusing on two key leverage points the legal and illegal activities involved in the cattle ranching practices. We map and understand the inherent dynamic complexity of deforestation, including factors such as land policy instruments, national strategy to tackle deforestation, land use nexus with Amazonian food systems, and loss of biodiversity. Our results show that deforestation inside Colombian Protected Areas (PAs) in the Amazon region and the surrounding buffer areas has accelerated with the onset of peace. By using a systems analysis approach, we contextualized the competition of land between cattle ranching and the need to protect tropical forests and their biodiversity loss. We elaborate on future recommendations for land use management decisions making suggest the inclusion of an Amazonian food system, interconnecting and visualizing the synergies between sustainable development goals, climate action (SDG 13) and life on land (SDG 15).

Keywords: tropical rainforest, deforestation, sustainable land use, food security, Colombian Amazon

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Authors: Carol Howells, Edwin Parks

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This paper explores the existing and evolving constitutional arrangements within the United Kingdom and within the wider international context of the EU. It considers the nature of an ‘English’ constitution and internal colonialism that underpins it. The debates over the UK’s exit from the EU have been many however the constitutional position of the devolved nations (Scotland, Northern Ireland and Wales) is little understood or explored. Their constitutional position has been touched upon in academic debate (but not widely) and is only now beginning to receive attention. The paper considers the constitutional role of the legislatures within the UK; the UK Parliament Bill for exiting the European Union and provides a commentary on the Brexit process in relation to constitutional arrangements within the UK and EU. Questions arise over the constitutional framework and, whether, having delegated competencies, the UK Parliament can now legislate in relation to delegated competencies without the consent. The Scottish Parliament and Welsh Assembly are a permanent and a fixed feature of the UK’s constitution, but their position is set within the traditional concept of the ‘English’ constitution. The current situation is opaque and complex and raises significant constitutional questions. In relation to exit from the EU two of the nations did not vote in favour of Brexit and the third is in receipt of an inequitable funding settlement. Questions arise as to whether the work of modernising the UK’s constitution over the past twenty years in recognising the Nations and governments within those nations is now being unpicked and whether the piecemeal and unequal process of devolution and new constitutional arrangements hold weight. Questions of democratic legitimacy arise throughout. An advisory referendum (where no definition of the EU was provided) in which two of the four nations voted to leave the EU and two voted to remain has led the UK Government negotiating a wholesale exit from the EU based on ‘English’ constitutional law principles. Previous constitutional referendums in relation to devolution within the UK have been treated differently. Within the EU questions are being raised in relation to the focus on member states. The goals of the EU mention member countries and its purpose is seen as being to promote greater social, political and economic harmony among the nations of Europe. The emphasis on member states is proving challenging and has led flawed processes. Scrutiny of legislative proposals, historical developments, and social commentary reveal distinct national identities within the UK. Analysis of the debate, legislation and case law surrounding the exiting process from the EU reveal a muddled picture of a constitution in crisis and significant challenges to principles underpinning the rule of law. Suggestions are made for future reforms and a move towards new constitutional arrangements beyond the current ‘English’ constitution.

Keywords: English, constitution, parliament, devolved

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Authors: William Thomas Worster

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This paper will highlight the failure of international adjudication to prevent a state from evading an order of provisional measures by simply issuing a diplomatic assurance to the court. This practice changes the positions of the litigants as equals before a court, prevents the court from inquiring into the reliability of the political pledge as it would with assurances from a state to an individual, and diminishes the court’s ability to control its own proceedings in the face of concerns over sovereignty. Both the European Court of Human Rights (ECtHR) and International Court of Justice (ICJ) will entertain these kinds of unilateral pledges, but they consider them differently when the declaration is made between states or between a state and an individual, and when made directly to the court. In short, diplomatic assurances issued between states or to individuals are usually considered not to be legally binding and are essentially questions of fact, but unilateral assurances issued directly to an international court are questions of law, and usually legally binding. At the same time, orders for provisional measures are now understood also to be legally binding, yet international courts will sometimes permit a state to substitute an assurance in place of an order for provisional measures. This emerging practice has brought the nature of a state as a sovereign capable of creating legal obligations into the forum of adjudication where the parties should have equality of arms and permitted states to create legal obligations that escape inquiry into the reliability of the outcome. While most recent practice has occurred at the ICJ in state-to-state litigation, there is some practice potentially extending the practice to human rights courts. Especially where the litigants are factually unequal – a state and an individual – this practice is problematic since states could more easily overcome factual failings in their pledges and evade the control of the court. Consider, for example, the potential for evading non-refoulement obligations by extending the current diplomatic assurances practice from the state-to-state context to the state-to-court context. The dual nature of assurances, as both legal and factual instruments, should be considered as addressed to distinct questions, each with its own considerations, and that we need to be more demanding about their precise legal and factual effects.

Keywords: unilateral, diplomacy, assurances, undertakings, provisional measures, interim measures

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Authors: Gabrielle Pilliat

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The Supreme Court of Canada rendered unconstitutional the sections of the Canadian Criminal Code which prohibited the Physician-assisted suicide in February 2015. However, in 1993, the same Supreme Court of Canada ruled that Physician-assisted suicide should remain absolutely prohibited. In the light of these historical facts, we will explore how the Supreme Court of Canada was able to make two different decisions 20 years apart. To understand how Canada could rule so differently between 1993 and 2015 about Physician-assisted suicide, we will analyze the content of the Supreme Court of Canada decisions’ discourse of 1993 and of 2015. Our preliminary results indicate that A) the patient autonomy (or the personal choice) has taken over the idea of the preservation of life (or the sacred character of life) in 2015. B) That between 1993 and 2015, the physician is seen differently by the Judges; like an abusive murderer in 1993 and like an objective evaluator in 2015. C) That the patient is seen as a victim in 1993 and more like a hero in 2015.

Keywords: physician-assisted suicide, patient autonomy, choice, sacred character of life, dignity

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Authors: Tien Wei Daniel Hwang

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The computer program inventors, particularly in Fintech, are unwilling to apply for patents in Taiwan after 2014. Passing the ‘statutory subject matter eligibility’ test and becoming the system patent are not the only cause to the reduction in the number of application. Taiwanese court needs to resolve whether the defendants had ‘used’ that software patent in patent direct infringement suit. Both 35 U.S.C. § 271(a) and article 58 paragraph 2 of Taiwan Patent Law don’t define the meaning of ‘use’ in the statutes. Centillion Data Sys., LLC v. Qwest Commc’ns Int’l, Inc. reconsidered the meaning of ‘use’ in system patent infringement, and held that ‘a party must put the invention into service, i.e., control the system as a whole and obtain benefit from it.’ In Taiwan, Intellectual Property Office, Ministry of Economic Affairs, has explained that ‘using’ the patent is ‘achieving the technical effect of the patent.’ Nonetheless, this definition is too broad to apply to not only the software patent but also the traditional patent. To supply the friendly environment for Fintech corporations, this article aims to let Taiwanese court realize why and how United States District Court, S.D. Indiana, Indianapolis Division and United States Court of Appeals, Federal Circuit defined the meaning of ‘use’ in 35 U.S.C. § 271(a). However, this definition is so lax and confuses many defendants in United States. Accordingly, this article indicates the elements in Taiwan Patent Law are different with 35 U.S.C. § 271(a), so Taiwanese court can follow the interpretation of ‘use’ in Centillion Data case without the same obstacle.

Keywords: direct infringement, FinTech, software patent, use

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Authors: Ákos Cserny

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The unequivocal increase of the area of operation of the executive power can happen with the appearance of new areas to be influenced and its integration in the power, or at the expense of the scopes of other organs with public authority. The extension of the executive can only be accepted within the framework of the rule of law if parallel with this process we get constitutional guarantees that the exercise of power is kept within constitutional framework. Failure to do so, however, may result in the lack, deficit of democracy and democratic sense, and may cause an overwhelming dominance of the executive power. Therefore, the aim of this paper is to present executive power and responsibility in the context of different dimensions.

Keywords: confidence, constitution, executive power, liabiliy, parliamentarism

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Authors: Laura Niño Cáceres, Daisy Yoo, Caroline Hummels

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COVID-19 accelerated digital healthcare technology usage in many countries, such as Colombia, whose digital healthcare vision and projects are proof of this. However, with a significant cultural indigenous and Afro-Colombian heritage, only some parts of the country are willing to follow the proposed digital Western approach to health. Our paper presents the national healthcare system’s digital narrative, which we contrast with the micro-narrative of an Afro-Colombian ethnomedicine unit in Bogota called Kilombo Yumma. This ethnomedical unit is building its mobile app to safeguard and represent its ancestral medicine practices in local and national healthcare information systems. Kilombo Yumma is keen on promoting their beliefs and practices, which have been passed on through oral traditions and currently exist in the hands of a few older women. We unraveled their ambition, core beliefs, and practices through asset-based design. These assets outlined pluriversal and decolonizing forms of digital healthcare to increase social justice and connect Western and ancestral medicine digital opportunities through HCI.

Keywords: asset-based design, mobile app, decolonizing HCI, Afro-Colombian ancestral medicine

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Authors: Faride Crespo Razeg, Beatriz Eugenia Rivera Pedroza

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While Colombian’s society has changed, the way that Colombian’s civil society participates has changed too. Thus, the social movements as a form of participation should be research to understand as the society structure as the groups’ interactions. In fact, in the last decades, the social movements in Colombia have been transformed in three categories: actors, spaces, and demands. For this reason, it is important to know from what perspectives have been researched this topic, allowing to recognize an epistemological and ontological reflections of it. The goal of this research has been characterizing the social movements of Cali – Colombia between 2002 and 2016. Cali is the southwest largest Colombian city; for this reason, it could be considered as a representative data for the social dynamic of the region. Qualitative methods as documental analysis have been used, in order to know the way that the research on social movements has been done. Thus taking into account this methodological technique, it has been found the goals that are present in most of the studies, which represents what are the main concerns around this topic. Besides, the methodology more used, to understand the way that the data was collected, its problems and its advantages. Finally, the ontological and epistemological reflections are important to understand which have been the theory and conceptual approach of the studies and how its have been contextualized to Cali, taking into account its own history.

Keywords: social movements, civil society, forms of participation, collective actions

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Authors: Samia Al-Shayban

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Conventionally, Fielding Author’s Farce is read as an attack on literary and theatrical establishment. This paper attempt to read it as a disguised scathing political attack upon, King George II, his court and administration. Fielding achieves his design through complex dramatization based on implicit connections between King George II and the poor poet Luckless who shifts his stand from defending the liberties of the authors into becoming one of their oppressors. Through the same connection, the king is accused of being the originator and protector of literary corruption. To strengthen the attack against the king, the court of nonsense which appeared in Luckless’ play is connected to George II’s court through the presence of opera and ignorance. Thus, Fielding’s literary dramatization is used as a medium to expose the corrupting influence of the ruling elite. The King, his court and administration are all complacent in devaluing the English theatre and turning it into a circus that generate nothing but ignorance and poverty. This practice is deliberately designed to keep people ignorant and authors poor so they remain unable to challenge their corrupt politics.

Keywords: fielding, King George II, ignorance, theatre, plays

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Authors: Anna Pudlo

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The EU law encompasses many supranational legal systems (EU law, ECHR, international public law and constitutional traditions common to the Member States) which guarantee the protection of fundamental rights, with partly overlapping scopes of applicability, various principles of interpretation of legal norms and a different hierarchy. In EU law, the prohibition of discrimination on grounds of sexual orientation originates from both the primary and secondary EU legislation. At present, the prohibition is considered to be a fundamental right in pursuance of Article 21 of the Charter, but the Court has not yet determined whether it is a right or a principle within the meaning of the Charter. Similarly, the Court has not deemed this criterion to be a general principle of EU law. The personal and materials scope of the prohibition of discrimination on grounds of sexual orientation based on Article 21 of the Charter requires each time to be specified in another legal act of the EU in accordance with Article 51 of the Charter. The effect of the prohibition of discrimination on grounds of sexual orientation understood as above will be two-fold, for the States and for the Union. On the one hand, one may refer to the legal instruments of review of EU law enforcement by a Member State laid down in the Treaties. On the other hand, EU law does not provide for the right to individual petition. Therefore, it is the duty of the domestic courts to protect the right of a person not to be discriminated on grounds of sexual orientation in line with the national procedural rules, within the limits and in accordance with the principles set out in EU law, in particular in Directive 2000/78. The development of the principle of non-discrimination in the Court’s case-law gives rise to certain doubts as to its applicability, namely whether the principle as the general principle of EU law may be granted an autonomous character, with respect to the applicability to matters not included in the personal or material scope of the Directives, although within the EU’s competence. Moreover, both the doctrine and the opinions of the Advocates-General have called for the general competence of CJEU with regard to fundamental rights which, however, might lead to a violation of the principle of separation of competence. The aim of this paper is to answer the question what is the nature of the prohibition of discrimination on grounds of sexual orientation in EU law (a general principle in EU law, or a principle or right under the Charter’s terminology). Therefore, the paper focuses on the nature of Article 21 of the Charter (a right or a principle) and the scope (personal and material) of the prohibition of discrimination based on sexual orientation in EU law as well as its effect (vertical or horizontal). The study has included the provisions of EU law together with the relevant CJEU case-law.

Keywords: EU law, EU principles, non-discrimination in EU law, Charter of the Fundamental Rights

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Authors: Seyedeh Sajedeh Salehi

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The Regulation No. 1215/2012/EC also known as the Brussels I Regulation (Recast) deals with jurisdictional disputes in civil and commercial matters. The main aim of the Recast (as in-line with its predecessor Regulation) is to bring a reform in procuring more simplified and faster circulation of civil and commercial judgments within the EU. Hence it is significant to take a closer look at the function of this regulatory tool. Therefore, the main objective of this paper is to analyze a clear understanding of the post-Recast situation on e-commerce relevant jurisdictional matters. The e-consumer protection and the choice-of-court agreements along with the position of the Court of Justice of the European Union in its decisions within the Recast Regulation will be also taken into consideration throughout this paper.

Keywords: choice-of-court agreements, consumer protection, e-commerce, jurisdiction, Recast Brussels I Regulation

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Authors: Amy Buckley

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The purpose of this article is to assess the problem of constitutional hyper-rigidity to consider how it and the associated tensions with democratic constitutionalism can be diminished by means of using digital democratic technologies. In other words, this article examines how digital technologies can assist us in ensuring fidelity to the will of the constituent power without paying the price of hyper-rigidity. In doing so, it is impossible to ignore that digital strategies can also harm democracy through, for example, manipulation, hacking, ‘fake news,’ and the like. This article considers the tension between constitutional hyper-rigidity and democratic constitutionalism and the relevant strengths and weaknesses of digital democratic strategies before undertaking a case study on Canadian e-consultations and drawing its conclusions. This article observes democratic constitutionalism through the lens of the theory of deliberative democracy to suggest that the application of digital strategies can, notwithstanding their pitfalls, improve a constituency’s amendment culture and, thus, diminish constitutional hyper-rigidity. Constitutional hyper-rigidity is not a new or underexplored concept. At a high level, a constitution can be said to be ‘hyper-rigid’ when its formal amendment procedure is so difficult to enact that it does not take place or is limited in its application. This article claims that hyper-rigidity is one problem with ordinary constitutionalism that fails to satisfy the principled requirements of democratic constitutionalism. Given the rise and development of technology that has taken place since the Digital Revolution, there has been a significant expansion in the possibility for digital democratic strategies to overcome the democratic constitutionalism failures resulting from constitutional hyper-rigidity. Typically, these strategies have included, inter alia, e- consultations, e-voting systems, and online polling forums, all of which significantly improve the ability of politicians and judges to directly obtain the opinion of constituents on any number of matters. This article expands on the application of these strategies through its Canadian e-consultation case study and presents them as a solution to poor amendment culture and, consequently, constitutional hyper-rigidity. Hyper-rigidity is a common descriptor of many written and unwritten constitutions, including the United States, Australian, and Canadian constitutions as just some examples. This article undertakes a case study on Canada, in particular, as it is a jurisdiction less commonly cited in academic literature generally concerned with hyper-rigidity and because Canada has to some extent, championed the use of e-consultations. In Part I of this article, I identify the problem, being that the consequence of constitutional hyper-rigidity is in tension with the principles of democratic constitutionalism. In Part II, I identify and explore a potential solution, the implementation of digital democratic strategies as a means of reducing constitutional hyper-rigidity. In Part III, I explore Canada’s e-consultations as a case study for assessing whether digital democratic strategies do, in fact, improve a constituency’s amendment culture thus reducing constitutional hyper-rigidity and the associated tension that arises with the principles of democratic constitutionalism. The idea is to run a case study and then assess whether I can generalise the conclusions.

Keywords: constitutional hyper-rigidity, digital democracy, deliberative democracy, democratic constitutionalism

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Authors: M. Fatmi, B. Gueridi, Z. Zerrougui

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Some physical properties of hexahalometallate K₂XBr₆(X=Se, Pt) were computed in the zinc blend structure using generalized gradient approximation. The cell constant of K₂SeBr₆ and K₂PtBr₆ is consistent with the experiment value quoted in the literature, where the error is 0.95 % and 1 %. K₂SeBr₆ and K₂PtBr₆ present covalent bonding, high anisotropy and are ductile. The elastic constants of K₂SeBr₆ and K₂PtBr₆ are significantly smaller due to their larger reticular distances and lower Colombian forces, and then they are soft and damage tolerant. The interatomic separation is greater in K₂SeBr₆ than in K₂PtBr₆; hence the Colombian interaction in K₂PtBr₆ is greater than that of K2SeBr₆. The internal coordinate of the Br atom in K₂PtBr₆ is lower than that of the same atom in K2SeBr₆, and this can be explained by the fact that it is inversely proportional to the atom radius of Se and Pt. There are two major plasmonic processes, with intensities of 3.7 and 1.35, located around 53.5 nm and 72.8 nm for K₂SeBr₆ and K₂PtBr₆.

Keywords: hexahalometallate, band structure, morphology, absorption, band gap, absorber

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Authors: Bader A. J. Alrajhi

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The 'loss of control' defence to murder as enacted in the Coroners and Justice Act 2009 (CJA) represents a legislative effort to bring greater coherence to an aspect of UK homicide law that has vexed several generations of jurists, practitioners, and academic commentators. The analysis developed in this paper illustrates that the loss of control defence as defined in CJA sections 54 and 55 is a laudable initiative; its fuller assessment must await further appellate court determination before a definitive conclusion of its utility is possible. The CJA amendments tend to embrace a legitimate policy that those who found to be provoked by the activities of others to lose their self-control should be dealt with in a different way than those who commit intentional killings when motivated by their own desires or pursuit of gain. However, the 2012 Court of Appeal decisions rendered in the Parker troika of cases, provide useful direction as to how the law is likely to be applied. It shows an attitude in the Court of Appeal that the whole circumstances that challenged the defendant must be examined. The Court of Appeal has introduced an important ingredient into the potential use of sexual infidelity as a section 55 trigger - it is not a permissible stand-alone factor, but it may legitimately form part of an entire qualifying trigger circumstance.

Keywords: loss of self-control, Coroners and Justice Act 2009, provocation, diminished responsibility

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Authors: Varinder Singh

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The primitive man had not known anything like human rights. In the later centuries of human progress with the development of scientific and technological knowledge, the growth of population and the tremendous changes in the human environment, the laws of nature that maintained the Eco-balance crumbled. The race for better and comfortable life landed mankind in a vicious circle. It created environmental imbalance, unplanned and uneven development, breakdown of self-sustaining village economy, mushrooming of shanty towns and slums, widening the chasm between the rich and the poor, over-exploitation of natural resources, desertification of arable lands, pollution of different kinds, heating up of earth and depletion of ozone layer. Modem International Life has been deeply marked and transformed by current endeavors to meet the needs and fulfill the requirements of protection of human person and of the environment. Such endeavors have been encouraged by the widespread recognition that protection of human being and the environment reflects common superior values and constitutes a common concern of mankind. The parallel evolutions of human rights protection and environmental protection disclose some close affinities. There was the occurrence of process of internationalization of both human rights protection and environmental protection, the former beginning with the 1948 Universal Declaration of Human Rights, the latter with the 1972 Stockholm Declaration on the Human Environment.It is now well established that it is the basic human right of every individual to live in a pollution free environment with full human dignity. The judiciary has so far pronounced a number of judgments in this regard. The Supreme Court in view of various laws relating to environment protection and the constitutional provision has held that right to pollution free environment. Article-21 is the heart of the fundamental rights and has received expanded meanings from time to time.

Keywords: human rights, law, environment, polluter

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Authors: Olanrewaju O. Adeojo

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The constitutional system of government provides for the federating units of the Federal Republic of Nigeria, the States and the Local Councils under a governing structure of the Executive, the Legislature and the Judiciary with attendant distinct powers and spheres of influence. The legislative powers of the Federal Republic of Nigeria and of a State are vested in the National Assembly and House of Assembly of the State respectively. The Local council exercises legislative powers in clearly defined matters as provided by the Constitution. Though, the executive as constituted by the President and the Governor are charged with the powers of execution and administration, the legislature is empowered to ensure that such powers are duly exercised in accordance with the provisions of the Constitution. The vast areas do not make oversight functions indefinite and more importantly the purpose for the exercise of the powers are circumscribed. It include, among others, any matter with respect to which it has power to make laws. Indeed, the law provides for the competence of the legislature to procure evidence, examine all persons as witnesses, to summon any person to give evidence and to issue a warrant to compel attendance in matters relevant to the subject matter of its investigation. The exercise of functions envisaged by the Constitution seem to an extent to be literal because it lacks power of enforcing the outcome. Furthermore, the docility of the legislature is apparent in a situation where the agency or authority being called in to question is part of the branch of government to enforce sanctions. The process allows for cover up and obstruction of justice. The oversight functions are not functional in a situation where the executive is overbearing. The friction, that ensues, between the Legislature and the Executive in an attempt by the former to project the spirit of a constitutional mandate calls for concern. It is needless to state a power that can easily be frustrated. To an extent, the arm of government with coercive authority seems to have over shadowy effect over the laid down functions of the legislature. Recourse to adjudication by the Judiciary had not proved to be of any serious utility especially in a clime where the wheels of justice grinds slowly, as in Nigeria, due to the nature of the legal system. Consequently, the law and the Constitution, drawing lessons from other jurisdiction, need to insulate the legislative oversight from the vagaries of the executive. A strong and virile Constitutional Court that determines, within specific time line, issues pertaining to the oversight functions of the legislative power, is apposite.

Keywords: constitution, legislative, oversight, power

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Authors: Jelena Radmanovic

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On 5 March 2020, the International Criminal Court has decided to authorize the investigation into the crimes allegedly committed on the territory of Afghanistan after 1 May 2003. The said determination has raised several controversies, including the recently imposed sanctions by the United States, furthering the United States' long-standing rejection of the authority of the International Criminal Court. The purpose of this research is to address the said investigation in light of its importance for the prevention of impunity in the cases where the perpetrators are nationals of Non-Party States to the Rome Statute. Difficulties that the International Criminal Court has been facing, concerning the establishment of its jurisdiction in those instances where an involved state is not a Party to the Rome Statute, have become the most significant stumbling block undermining the importance, integrity, and influence of the Court. The Situation in Afghanistan raises even further concern, bearing in mind that the Prosecutor’s Request for authorization of an investigation pursuant to article 15 from 20 November 2017 has initially been rejected with the ‘interests of justice’ as an applied rationale. The first method used for the present research is the description of the actual events regarding the aforementioned decisions and the following reactions in the international community, while with the second method – the method of conceptual analysis, the research will address the decisions pertaining to the International Criminal Court’s jurisdiction and will attempt to address the mentioned Decision of 5 March 2020 as an example of good practice and a precedent that should be followed in all similar situations. The research will attempt parsing the reasons used by the International Criminal Court, giving rather greater attention to the latter decision that has authorized the investigation and the points raised by the officials of the United States. It is a find of this research that the International Criminal Court, together with other similar judicial instances (Nuremberg and Tokyo Tribunals, The International Criminal Tribunal for the former Yugoslavia, The International Criminal Tribunal for Rwanda), has presented the world with the possibility of non-impunity, attempting to prosecute those responsible for the gravest of crimes known to the humanity and has shown that such persons should not enjoy the benefits of their immunities, with its focus primarily on the victims of such crimes. Whilst it is an issue that will most certainly be addressed further in the future, with the situations that will be brought before the International Criminal Court, the present research will make an attempt at pointing to the significance of the situation in Afghanistan, the International Criminal Court as such and the international criminal justice as a whole, for the purpose of putting an end to impunity.

Keywords: Afghanistan, impunity, international criminal court, sanctions, United States

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Authors: Sadiya S. Silvee

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Generally, the decision of the higher court is binding on its subordinate courts. As provided in Article 111 of the Constitution, 'the law declared by the Appellate Division (AD) shall be binding on the High Court Division (HCD) and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it.' This means the judicial discipline requires the HCD to follow the decision of the AD and that it is necessary for the lower tiers of courts to accept the decision of the higher tiers as a binding precedent. Analyzing the application of Article 111 of the Constitution in the criminal justice system as a sentencing guideline, the paper, by examining whether there is any consistency in decision between one HC Bench and another HC Bench, explores whether HCD can per incuriam its previous decision. In doing so, the Death Reference (DR) Cases are contemplated. Furthermore, the paper shall examine whether the Court of Session follows the decision of the HCD while using their discretion to make the choice between death and imprisonment for life under section 302 of PC. The paper argues due to the absence of any specific direction for sentencing and inconsistency in jurisprudence among the HCD; the subordinate courts are in a dilemma.

Keywords: death reference, sentencing factor, sentencing guideline, criminal justice system and constitution

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Authors: E. Velasco

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Meeting high standards of writing in a Second Language (L2) is extremely important for many students who wish to undertake studies at universities in both English and non-English speaking countries. University lecturers in English speaking countries continue to express dissatisfaction with the apparent poor quality of essay writing skills displayed by English as a Second Language (ESL) students, whose essays are often criticised for their lack of cohesion and coherence. These critiques have extended to contexts such as Colombia, where many ESL students are criticised for their inability to write high-quality academic texts in L2-English, particularly at the tertiary level. If Colombian ESL students are expected to meet high standards of writing when studying locally and abroad, it makes sense to carry out specific research that can perhaps lead to recommendations to support their quest for improving argumentative strategies. Employing Corpus Linguistics methods within a Learner Corpus Research framework, and a combination of Log-Likelihood and Bayes Factor measures, this paper investigated argumentative essays written by Colombian ESL students. The study specifically aimed to analyse conjunctive adjuncts in argumentative essays to find out how Colombian ESL students connect their ideas in discourse. Results suggest that a) Colombian ESL learners need explicit instruction on specific areas of conjunctive adjuncts to counteract overuse, underuse and misuse; b) underuse of endophoric and evidential adjuncts highlights gaps between IELTS-like essays and good quality tertiary-level essays and published papers, and these gaps are linked to prior knowledge brought into writing task, rhetorical functions in writing, and research processes before writing takes place; c) both Colombian ESL learners and L1-English writers (in a reference corpus) overuse some adjuncts and underuse endophoric and evidential adjuncts, when compared to skilled L1-English and L2-English writers, so differences in frequencies of adjuncts has little to do with the writers’ L1, and differences are rather linked to types of essays writers produce (e.g. ESL vs. university essays). Ender Velasco: The pedagogical recommendations deriving from the study are that: a) Colombian ESL learners need to be shown that overuse is not the only way of giving cohesion to argumentative essays and there are other alternatives to cohesion (e.g., implicit adjuncts, lexical chains and collocations); b) syllabi and classroom input need to raise awareness of gaps in writing skills between IELTS-like and tertiary-level argumentative essays, and of how endophoric and evidential adjuncts are used to refer to anaphoric and cataphoric sections of essays, and to other people’s work or ideas; c) syllabi and classroom input need to include essay-writing tasks based on previous research/reading which learners need to incorporate into their arguments, and tasks that raise awareness of referencing systems (e.g., APA); d) classroom input needs to include explicit instruction on use of punctuation, functions and/or syntax with specific conjunctive adjuncts such as for example, for that reason, although, despite and nevertheless.

Keywords: argumentative essays, colombian english as a second language (esl) learners, conjunctive adjuncts, corpus linguistics

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Authors: Allwell Uwazuruike

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With the withdrawal, in 2016, of 3 African states from the ICC, the discourse took an interesting twist. African states, or at least some of them, had now shown their resolve to part ways with the ICC and, by implication, focus on further enthroning regional control and governance through an improved continental justice system. A range of views has been expressed over the years on the allegations of bias by some African states and the continued membership of the ICC. While there may be a split on the merits of the allegations of bias, academic analysts have generally not opposed African states’ membership of the ICC nor been particularly optimistic about the prospects of an African criminal court. There is also a degree of ambivalence on whether there are positives to be taken from African states’ withdrawal from the ICC. This article examines the recent developments with the ICC and analyses whether these could be viewed from the positive (or, at least, alternative) spectrum of the AU’s spirited march towards regional sovereignty or entirely negatively from the point of view of African Heads-of-State seeking to enthrone an era of authoritarianism and non-accountability.

Keywords: international criminal court, Africa, regionalism, criminal justice

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Authors: Rafael Bezerra de Souza, José Ribas Vieira

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The judicial litigation on socio-economic rights (SERs), in a context of increasing centrality of the judiciary as an area of political debate for civil society actors, has assumed greater importance in the last two decades. This tendency to seek social change through the courts generated a long tradition of research on the role of legal institutions and of legal mobilization in the US and some European countries. However, little is known about these processes in Latin America, Asia and Africa. A significant portion of the Brazilian constitutional doctrine did not bother to investigate the phenomenon of constitutional judicial litigation of socio-economic rights, in a practical and empirical look, from the functioning of democratic institutions. The central issue of this study draws attention to the theoretical and analytic deficit of Brazilian constitutional doctrine: the lack of a holistic understanding of the effects and impact of judicial decisions. Consequently, for a proper understanding was analyzed if the trend of judicial litigation in Brazil - to ensure the fulfillment of its institutional mission to protect and ensure the effectiveness of socio-economic rights - has been accompanied by the establishment of institutional mechanisms that enable decision making and the implementation of SERs in complex cases involving structural and public policy. The lack of empirical studies in Law in order to verify this hypothesis justified the adoption of the case study method as an interdisciplinary methodological strategy between Law and Political Science, aiming to construct an explanation of the Raposa Serra do Sol Case and, in a complementary way, the process-tracing technique. Drawings of small-n type or case studies, when guided by theory, are more suitable to problems it is supposed to increase the potential of intensive analysis of causal processes. As a preliminary result, the Brazilian Supreme Court was not a sufficient agent to implement a relevant social change and to assure the protection of the social rights, because there were few measures that directly impacted the behavior of other institutional political actors and should, therefore, be considered another actor within a complex institutional arrangement.

Keywords: courts, case study, judicial litigation, social change

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Authors: María José Benítez Jiménez

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Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (E.C.H.R.) proclaims that no one may be subjected to torture, punishment or degrading treatment. The legislative correlate in Spain is embodied in Article 15 of the Spanish Constitution, and there must be an overlapping interpretation of both precepts on the ideal plane. While it is true that there are not many cases in which the European Court of Human Rights (E.C.t.H.R. (The Strasbourg Court)) has sanctioned Spain for its failure to investigate complaints of torture, it must be emphasized that the tendency to violate Article 3 of the Convention appears to be on the rise, being necessary to know possible factors that may be affecting it. This paper addresses the analysis of sentences that directly or indirectly reveal the violation of Article 3 of the European Convention. To carry out the analysis, sentences of the Strasbourg Court have been consulted from 2012 to 2016, being able to address any previous sentences to this period if it provided justified information necessary for the study. After the review it becomes clear that there are two key groups of subjects that request a response to the Strasbourg Court on the understanding that they have been tortured or degradingly treated. These are: immigrants and terrorists. Both phenomena, immigration and terrorism, respond to patterns that have mutated in recent years, and it is important for this study to know if national regulations begin to be dysfunctional.

Keywords: E.C.H.R., E.C.t.H.R. sentences, Spanish Constitution, torture

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