Working Group for TAF, appointed by the Government, presents today its conclusions: scholarships, judges, new courts of social protection and direct computer communication between the Treasury and courts
The creation of special teams of magistrates to complete the oldest processes and in the maximum time of two years is one of the solutions aimed at resolving the procedural volume of the Administrative and Tax Courts (TAF). That is, cases in which one of the parties is the Tax Authority that uses the judicial system to collect taxes to defaulting taxpayers or in which it enters as a defendant for some action of an unsatisfied taxpayer. Only last year, more than 70,000 cases were pending, 49,000 of which related only to this fiscal justice.
Portuguese Justice Minister Francesca Van Dunem is preparing a reform in the area and has organized two working groups to present their main conclusions today at a conference in Lisbon. Conclusions that do not bind the Government 100% but will serve as a basis for work.
To what the DN has learned, the package will also include proposals such as: more judges, creation of a magistrate’s pocket to cover temporary absences of colleagues, creation of new judgments in the area of social protection (litigation relating to retirement pensions, for example) And public employment. These two working groups – composed by Justice Secretary Helena Mesquita Ribeiro, judges and prosecutors – also suggest the creation of a direct link between the Treasury and the TAF computer system in such a way that electronic notifications are received immediately by the Tax Authority , Who is always one of the parties to these proceedings. In TAF, there are still “disputes” such as claims against career decisions in public administration, evaluations or disputes contested by public officials, or all public employment issues often “sponsored” by unions.
The lack of magistrates in this area and the greater aggressiveness of the Treasury in the collection of taxes are some of the reasons that have led to the “clogging” of these courts where, in the most dramatic cases, it takes eight to ten years to complete processes. Only in the past, according to data from the Directorate General for Justice Policy (DGPJ), would it take 911 days (almost three years) to complete the marinating processes, in a scenario where no new cases were filed. “For years the TAF have been left to abandon by successive governments, quite simply because it is in the convenience of the state that they are not productive,” explains António Jaime Martins, leader of the Lisbon Regional of the Bar Association. “In fact, in Administrators, the State and public entities are usually liable, so the state can not be treated quickly. In the Tax courts, the same happens,” he explains. “Many of them end up paying what they do not owe, others are declared insolvent by debts that did not exist or were inferior. Administrative and fiscal justice has long been a third-world justice in Portugal.”
It should be recalled that even in the time of the previous Government a task force had been created – just arrived at Troika to Portugal – to end the processes above one million euros. However, last year, the Board of Governors eventually dissolved this team. “The administrative courts do not yet present the level of quality and sophistication of the judicial courts, and they have a way to go, in order to definitively stop making formal decisions without judging disputes,” criticizes Pedro Almeida Cabral. The working groups also emphasize procedural dematerialization. That is: the allegations will no longer be made in writing and the practice of all procedural acts will have to be by electronic means. Full article: Diário de Notícias
According to article 71 of the Criminal Code, in determining the concrete measure for punishment, there are two main criteria: “the fault of the agent” and “the prevention requirements”.
As exemplified by Figueiredo Dias, “circumstances must be ascertained” as a function of the agent’s guilt of the requirements of prevention. Each circumstance has a sense connection with the guilt of the agent or with the needs of socialization or innocuousness of the agent. In the first case, the circumstance is relevant to the determination of the sentence because it aggravates or alleviates the guilt. In the second case, the circumstance is related to the determination of the sentence because it aggravates or alleviates the preventive needs of socialization or innocuousness of the agent “(Figueiredo Dias, Portuguese Criminal Law, The Legal Consequences of Crime, 1993: 248).
According to Anabela Miranda Rodrigues, “this is the judge aided by Article 72 No. 2 of the Penal Code, which, after establishing that he will, in determining the sentence, attend to all circumstances that are not part of the crime, In favor of or against the agent, enumerates in an exemplary way, some of the factors of measurement of the general penance.
Here, with concrete relevance in the subjudice case is the fact that “a lot of time has been spent on the practice of crime, keeping the agent good conduct”.
As we pointed out below, the facts go back to 2010 and are close to the end of the incarceration of the applicant, and after that date – the period that marks the 60 years of the accused – there is no news of the continuation of criminal proceedings; Formerly replaced by work habits, as expressed in the social report and in the facts found in the judgment under appeal.
On the other hand, as we know from the principle in dubio pro reu, as well as Paul Pinto de Albuquerque, in the contest of aggravating and mitigating circumstances, the most serious circumstance must work and, in relation to the established framework, successive mitigating circumstances “(Paulo Pinto de Albuquerque, Commentary of the Penal Code, Catholic University Editora, 2nd Edition, p. 272).
This means that in the case in point, and for the benefit of the accused in determining the concrete measure of punishment, and then in the decision to suspend the effective sentence of imprisonment, all the facts that benefit him must be cumulative (7 years have passed on practice Of the facts, having two professions, 67 years of age and being the pillar and patriarch of a large family); And that instead of facts that do not pay in their favor (in particular, criminal records and the various custodial sentences that have been suffered by virtue of practices that are not in accordance with the law) can only operate once.
It refers in this regard to the doctrine and jurisprudence in principle of the prohibition of double valuation to mean that circumstances already valued in the determination of the assumptions of criminal responsibility or partial measures can not again be considered for the purpose of determining the actual sentence or even the Options regarding the non-suspension of the single penalty (V. Paulo Pinto de Albuquerque, Commentary on the Penal Code, Catholic University Editora, 2nd Edition. P. 272. Cf. Judgment of the Supreme Court of 20/10/2016 in www.dgsi .pt).
According to Anabela Rodrigues, “guilt can only (and must) be considered at the moment in which it precedes that of the choice of sentence – that of determining the concrete measure of the prison sentence – and can not be considered To justify the non-application of a substitution sentence: such an attitude is taken only against prevention criteria (Anabela Rodrigues, Criteria for Choosing Substitute Penalties in the Portuguese Penal Code, 1988, pp. 24 et seq.).
These guidelines served as a basis for recent decisions of the High Courts, including the judgment of the Court of Appeal of Porto, 09/25/2013 (http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/cbbe5838c9aeb09680257bfe00471f9c? OpenDocument)
“In the choice-of-sentence operation, the substitution penalty is imposed when its material requirements are met, which requires that the special preventive reasons (lack of socialization of the accused) be weighed and that the” Minimum threshold of general prevention of defense of the legal order “. In other words, when it is in the stage of the choice of sentence (after the determination of the concrete measure of punishment), the court will consider the special prevention requirements that are felt in the concrete case and, if these are satisfied through the application of A penalty of substitution, can not fail to apply the penalty of substitution if it also meets the minimum requirements (which can not be waived) of general positive prevention. ”
In other words, it is unacceptable that the same aggravating circumstance can be valued twice.
Every year we recruit young lawyers and trainee lawyers and read hundreds of curriculums and cover letters. With honorable exceptions the requests we receive are a mixture of poor text organization with incorrect punctuation, spelling or grammar. In the face of these communications, I always ask the following question: if these postgraduates and masters in the antechamber of getting a job have so little care to address a colleague what can we expect as our employees with a client, counterpart, or magistrate?.
Such reasoning operates when, because of poor organization of time, I review an email from a colleague who is addressing another or a customer with too much colloquialism. For more or better relation that we maintain nothing justifies that we shrink from the importance that the subject deserves to us.
I am fully aware that a key factor leading to the decrease in the quality of legal professional writing has a technological basis. One generation that grew up with text messages and emails favors incomplete phrases, abbreviations, and symbols. But it will not be reductive to write in a way that alienates recipients because unintelligible for much of them.
I am fully aware that another factor to take into account is the degradation of law teaching. Reducing student time with the Bologna process and the commercialization of the Master’s degree has led to the young candidates for advocacy being more ready to cut and paste than to create anew.
I am well aware that the debates of lawyers who are on television more often (the soundbite cacophony at the door of a Court of Criminal Investigation has made the legal message subjective and reductive) and even some of the Order’s leaders do not contribute to the elevation of the discourse.
Finally, I am fully aware that for a good part of the generation that completed the course in the last decade, employability in the area of law only grew in areas where legal creativity is not a factor of differentiation; Of the multinationals of the collection of debts or own state (where the work is presented in the form of draft pre filled in network).
But all these very weighty reasons are in my view insufficient to explain the poverty of legal discourse and writing, especially for a lawyer or for a lawyer.
In the good tradition of advocacy the merit of the case is discussed in the claims that can and should make a difference in the formulation of the conviction of the judge.
In the good tradition of the advocacy of each article of an articulate we can extract facts and ideas that define the merits of the material relation controverted in civil, administrative or work process; Or individualize legal facts or conclusions in criminal proceedings or in family courts.
In the good tradition of law writing, it is a little difficult to write well because one is thinking of those who have the task of reading the product of our work and of our investigation (there must be nothing more disrespectful to a magistrate than to be repeated in the conclusions Of an appeal to a High Court ipsis verbis all the matter of the appeal and not just the main ideas with remissions).
They will tell me: some magistrates do not listen to the allegations with due attention; They are convinced before the discussion of the facts and only read the conclusions made. Even if it were – and in many cases fortunately it is not – not being heard or read with professionalism is always a missed opportunity.
Photo Credit Josh Adamski in Unsplash
(1). There are well-founded doubts in jurisprudence, doctrine and judicial practice on the admissibility and assessment of the submission to the criminal proceedings of a video of the crime made by the defendants. As we all know nowdays it is increasingly common that someone with a simple smartphone capable of recording high quality pictures and sound captures the moment when the crime is comited. The situation cuts across all areas of law but gains particularly acute in criminal proceedings (see for example the situations where third film a police intervention in a social neighborhood or at the door or even the recent case reported in the media in a couple practices sexual acts during the day in a park in the presence of a minor) and especially when the accused himself to join the process the recorded video for his defense.
The controversial issue focuses on the possible classification of video recording as constituting prohibited evidence, as it may have been obtained by the methods set out in art. 32, paragraph 8 of the PRC ( “wrongful interference with private life”).
Let’s look in more detail,
(2) Costa Andrade, regarding the art. 199 of the Criminal Code, relating to illicit recordings and photographs, has argued that these legal rights are violated, whether serious person / film / shoot someone else without your consent, or use, although the has obtained lawfully. This thesis is still majority and found expression in the recent case in the so called “Braga Parks”, by which the Court of Appeal which has met, in full, the opinion of Prof. Costa Andrade, in which it writes that the ends do not justify the means and that matters, protect above all, the rights to the word and image. the author pronounced against so-called “privatization of research.”
However, it has been accepted by other doctrine and jurisprudence that when certain evidence is the only means available in order to discover the truth and in accordance with the principle of proportionality and the violated legal right (for obtaining the illegal evidence) in this case show less worthy of protection than that which seeks to prove, will open the door to exceptional admission of illegal evidence.
This case law considers that the recordings or photographs, even without the consent of the person concerned, made in public places or access to the public, do not correspond to any prohibited method of proof, either by not violate the core of privacy – and therefore, it makes sense to the idea of “proportionality” – either because there is a cause in obtaining them, which is to document the commission of a criminal offense.
(3) Even more complex situation arises when the video submited by the defendant for his defense and admitted as evidence in terms of proportionality somehow incriminates him.
In our view, the accused to join the video file containing sensitive matter of the responsibility of the criminal justice plan this to confess the facts by which the recording should be valued according to the principle of free assessment of evidence by the judge.
As we know, the right to not self-incrimination relates only to questions about allegations made against the defendant, whose answer can predictably result in a liability. In this case, it is the right to silence. But when is the proper defendant who comes to the process of cooperation should gather facts and elements that criminalize such evidence must be admitted and evaluated. Especially in the case where the accused no commitments to silence as they could.
(4) Another limit situation is the acceptance of video as evidence by the Court and its non appraisal and valuation in the context of the sentence to be given. In our view the video after being admit must be freely valued by the judge, but as any other means of proof should be valued by the absence of any reference to it in the judgment shall be liable to omission of pronounced and likely to appeal to this foundation.
Photo Credits: Seth Doyle in Unsplash
The question (which gave name to the conference) was clear: “What we want justice?” The answers varied according to the interlocutors. The words of the Minister of Justice, who also spoke in the morning at the Belém Cultural Centre (at the conference organized by the Trade Union Association of Portuguese Judges), were also to point out the Government’s objectives for this sector. Reorganization of departments, improvement in information systems of justice, simplification of procedural steps and the approach of Justice of agents at the level of executions and insolvencies were some of the measures suggested by Francisca Van Dunem.
The Minister also took the opportunity to make known their expectations in terms of the state budget for 2017. Van Dunem said that expects “at least maintaining the budget,” adding the good news that next year’s budget Supreme Judicial Council will no longer be accounted for in the budget of his ministry. This “autonomy” financial of the Supreme Judicial Council will represent a significant savings “that has to do with the salaries of all judges and the support structures of the Supreme Judicial Council,” he said.
Refusing to speak of the aleged “underfunding” of Justice, Francisca Van Dunem said that public expenditure allocated to the Portuguese judicial system has values similar to those of northern countries of Europe and beyond countries like Germany or the UK, where judges have a better perception the performance of the courts. “That does not mean we will not make an effort to improve the financial capacity of the system,” says Van Dunem. Full Story: Publico
It was published in the Official Gazette Law No. 26/2016 of 22 August, approving the rules for access to administrative and environmental information and re-use of administrative documents, transposing Directive 2003/4 / EC of the European Parliament and the Council of January 28, and Directive 2003/98 / EC of the European Parliament and of the Council of 17 November. The law comes into force on 1 October 2016 and establishes some restrictions to the principle of free access to administrative documents, notably in health, documents protected by copyright or industrial property or state secret.
From March 23 2016 there are new information duties for companies suppliers of goods or consumers and service providers in compliance with the new alternative dispute resolution mechanisms (extrajudicial) for consumer disputes law.
Thus, companies are obliged to inform consumers about the ADR entities (Alternative Resolution of Consumer Disputes), clearly, visible and apropriate to the type of good and service rendered, for example:
• through a label placed on the sales counter or posted on the wall;
• on the website, if any;
• the purchase and sale or provision of services between the two parties, where they assume the written form or constitute adhesion contracts;
• alternatively, on the invoice delivered to the consumer.
The law in question – Law No. 144/2015 of September 8th- intended to promote arbitration in consumer disputes, “when they are initiated by a consumer against a supplier of goods or service and respect contractual obligations arising from purchase and sale or provision of services concluded between a supplier of goods or provider of services established and consumers residing in Portugal and in the European Union “(v. Article 2 of Law No. 144/2015 of 8 September). Despite the rather broad wording that, in our view, may be creating confusion, the typical legal relationship covered by this legislation is that which opposes the supplier of services to the end consumer, and not the relationship that is established between the various intermediaries in the value chain of a product. In fact, under Article 2 of the Consumer Law in the most recent version approved by Law No. 47/2014, of 28/07 “is considered every consumer whom are provided goods, services or broadcast any rights, for non-professional use, a person exercising professional basis an economic activity aimed at obtaining benefits. ” The combination of the two diplomas results that are only covered those relations with the consignee of the goods or services provided by the company and not those that are established with companies that mediate the deal (see, for example with advertising agencies or particular promoter an event / product or service) and only to recipients who do not make professional use of the service (which leaves out all businesses, professionals and individual entrepreneurs) or that are already linked to another arbitration scheme (as is the case of essential public services such as electricity, gas, water and waste, electronic communications and postal services).
It is discussed further under this law if these obligations would meet excluding service providers who develop their activity exclusively through the internet, even those who have not joined any reconciliation entity, mediation or arbitration or are not nor should be linked (as is the case of essential public services such as electricity, gas, water and waste, electronic communications and postal services) to arbitration required for alternative resolution of consumer disputes. Unless better understanding, the letter and clearly diploma ratio point towards generalization since at no time discriminate this or that supplier of goods or services (having already the General Directorate of Consumer (DCC) from the yard sustain this thesis).
On the other hand, even in the case of final consumers subject to arbitration remains voluntary, which becomes mandatory are duties of information about the existence of alternative dispute resolution bodies conflicts, disclosure of which should be made on the internet site company and contract / invoice of service.
Oped that are little more than two months on application of this law its implementation is still unknown, since in addition to the large traders are still few companies to comply
One final note. I perceive, understand and support the desire of the legislature to avoid the sphere of small disputes Courts consumption, because the arbitration process by consumer initiative at this stage is free. Already in deserves repair the burden of disclosure to run on behalf of service providers under the threat of fines of up to € 25,000 for companies, since public policy – although meritorious, as this at least in its intentions – they should not be borne solely by economic agents their recipients, otherwise constitute real tax.
Published in “Inovação & Estratégia” from the newspapper Público on 30/06/2016
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