PROCESSO PENAL NESTOR TAVORA 2013 PDF

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Section 2. An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court. Malversation may be committed either through a positive act of misappropriation of public funds or property. It must be emphasized.

Once made within the said period. CSHEca Besides. Petitioner also posits that he could not be convicted under the allegations in the Information without violating his constitutional right to be informed of the accusations against him.

This is in line with Our ruling in Melencion v. Penal Code.

The ponencia is correct in turning down the argument of petitioner that his erroneous appeal to the CA should not be dismissed outright but referred to the proper court which is the Sandiganbayan. As a school principal of a public high school.

Mendoza and Sereno. Even when the Information charges willful malversation. Malversation is committed either intentionally or by negligence. I concur in the result that the petition is rejected and the September 6. The Resolutions dated September 6. While the ponencia declined the supplication of petitioner that his appeal to the Sandiganbayan be given due course Rule 50 of. I conclude that there was gross mistake or irresponsibility on the part of the PAO lawyer.

While it is the general rule that a party-litigant is bound by the mistake or negligence of his counsel. The PAO central.

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I n Aguilar v. His liberty is at stake. The established jurisprudence holds: If he has to spend.

He cannot lose his liberty because of the gross irresponsibility of his lawyer. It is my opinion. I vote to dismiss the petition. The PAO lawyer. Under the circumstances of the case. Providing Funds Therefor. Emphasis ours. Melencion v. The penalty of prision mayor in its minimum and medium periods. If the amount exceeds the latter. See also Balaba v. Approved on February 5.

The penalty of reclusion temporal. Malversation of public funds or property. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period. Emphasis supplied. Moll v. Alejo v. June The penalty of prision correccional in its medium and maximum periods. Balaba v. July March In all cases. Presumption of malversation. Amending for the Purpose Presidential Decree No. See People v. November Cabello v.

August Ting Lan Uy. Flag for inappropriate content. Related titles. United States v. Jose Hernandez-Lopez, 4th Cir. Jump to Page. Search inside document. Evidence for the Prosecution Virac Branch and deliver the cash to Lazado for distribution to the teachers Id. Documents Similar To Vanessa Yvonne Gurtiza. Buenavista Mae Bautista. Paul Christopher Pineda. Abhimanyu Dev. Kristia Capio. Scribd Government Docs. Everyone has the right to freedom of thought and expression. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a.

The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private con- trols over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions. Notwithstanding the provisions of paragraph 2 above, public enter- tainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.

Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any groun- ds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.

Again, having fulfilled the purpose of this topic — to give a brief ex- position onto the Chilean Case — and already having done the same to the Austrian Case, this paper will tackle the problematic related to the Margin of Appreciation technique.

In this sense, the Margin of Appreciation is, rigorously, a judicial technique. It is a self-restraint tactic utilized by the European Court to ensure the subsidiary nature of international jurisdiction. In other words, the Court thinks it is best for the State to decide the case by itself. Born as a judicial technique it had no provision on the original text of the European Convention of Human rights quite the opposite, its first article expressly states the general obligation to respect Human rights.

Obligation to respect Human rights. The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms de defined in Section I of this Con- vention.

In this manner, some have kept the technique at a high regard, as they believe that the States should be allowed to decide their own is- sues through their internal democratic means.

In this sense, it is argued that national authorities have a better position to assess the data and facts involved in the case if compared to an international tribunal GrEEr, , p. Similarly, it is thought that there has to be some proportionality be- tween legality and democracy and this is achieved precisely through the subsidiarity of the international system. Lastly, those in defense of the technique argue that in some cases the solution cannot be achieved eminently through a straightforward legal analysis of the facts, there has got be some degree of reasonability and weighting between rights, and this judgment has to take in account the cultural characteristics of a community and protect public morals Similarly, ramos b, affirms that even democratic States are prone to violate Human rights and that is exactly why there is a necessity for international courts capable of conventionality control.

It is unarguable that there is no clear a priori definition of the extent of most Human rights there is no consensus, at least.

In sum, those who defend the maintenance of the Margin of Appreciation believe that it should be the States, through their elected officials, the ones that should hold greater authority in deciding these hard cases. In a broad sense, those are the main arguments in favor of the tech- nique.

However, despite its strong defense, the usage of the Margin of Appreciation somewhat contradicts the universal nature of Human rights. More so, in itself, the technique is detrimental to the purposes of an international conventionality control, which main reason for exis- tence is to ensure an impartial and universal counter-majority enforce- ment of International Human rights Law rAMOS, a, p.

That is not to say that the subsidiary nature of the international courts should be impromptu abolished. In most situations, it is perfectly possible that the judicial case should start and end within the State.

According to the analysis of the aforementioned Austrian Case, on its decision, the European Court of Human rights recognized that it is each States prerogative to decide the extension of the right of freedom of speech. By doing so, the European Court indirectly has recognized that, in the European System, Human rights are relative to the State they are practiced on. The international normative system evolved to the point that it is today because it was recognized that Human rights are too important of a matter to be left only at the whims of the States.

After the Second World War, the victorious powers decided to unite and establish a new international community that would be based on the inherent dignity of all human beings, independently from their particular nationalities, Human rights are recognized as universal COMPArATO, , p.

All people are equal, independently from their nationality. If so, why would the right of freedom of speech in Austria be any different from the rest of Europe or the rest of the world? If the European Court examined the case and decided that the State was acting in accordance with the European Convention of Human rights, there would, perhaps, be a problem of in- justice but structurally the decision would be fine.

Similarly, if the Court decided that that case would not be within its jurisdiction because of the subsidiary nature of the international system there would be no struc- tural problem.

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In both of these cases the European Court would have ex- ercised its jurisdiction, even if unjustly so. It chose to hand the problem back to the State because it thought that the State would be better suited to figure it out.

There is no structural issue with subsidiar- ity, the problem is that the Margin of Appreciation turns a system which main purpose should be its universal nature into a relativistic mess rA- MOS, b, p. Conventionality control exists with the purpose of ensuring the unity of International Law, that is, to ensure that there is only one International Human rights Law and not various perspectives that change according to where they were interpreted rAMOS, a, p.

The existence of a central even if regional international court that exercises control over national cases has the objective of ensuring a uniform and impartial interpretation of Law LIrA, , p. This idea comes pari passu with the prohibition of non liquet. This duty is derivative of the completeness of Law, that is, the axiom that even if there are some gaps on normative regulation, these are only apparent, because, through a systematic approach it is possible to find a solution SHAW, , p.

In other words, even if there is not some specific legal norm regulating that particular conflict, it is the judicial duty to interpret the system as a whole and find the solution. In this sense, the application of the Margin of Appreciation goes against this whole fundamental idea. This is not to say that in every case presented upon it, the international court is forced to rule against the State or even that in some cases the court is forbidden of recognizing that the matter is first to be decided by the State given the subsidiary nature of international jurisdiction.

The problem is when an interna- tional court decides to renounce its jurisdiction because it is faced with a hard case. There is no exception to the prohibition of non liquet that re- lates to the complexity or the lack of consensus of a case, the obligation stands on those matters.

Other than that, one of the main benefits of an International Human rights System is its universality on regard to its titularity, i. Cultural perspectives on Human rights can still exist, as long as they do not contradict the universal interpretation.

Similarly, one of the reasons for the existence of an international judicial entity capable of exercising a conventionality control such as the European Court or the Inter-American Court is to ensure impartial- ity. This comes from the fact that, more often than not, it is the State the one responsible for the violations of Human rights.

Indisputably these are the cases that demonstrate the im- portance of conventionality control in the protection of Human rights rAMOS, b, p.

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This comes in contact with the judicial rule that forbids one to be the judge of its own case: nemo iudex in sua causa. That is exactly what the Margin of Apprecia- tion proposes, it asks the State the supposed violator of Human rights what it thinks it is best to do — most naturally the decision will be that in favor of its own deeds and against the claimants, and that is exactly what happened in the cases examined — the State decided in favor of itself or, at least, its national majority.

In both of these cases there is an ideological minority going against a ma- joritarian religion. In both Austria and in Chile the greater part of the population is Christian. Being it so, it is reasonable to induce that most of the Government and State officials take part on this religion and, like- wise, they would probably rule in favor of their own religion being it on the process of lawmaking, judging, etc. That is exactly what happened in the cases examined above. In both of these cases the State ruled in fa- vor of censoring the minority in favor of the majoritarian religion.

More so, it is important to emphasize that the right of freedom of speech exists to ensure the free expression of controversial opinions and ideas — someone who speaks in favor of the establishment does not need to worry about censorship SArMENTO, , p. In the same sense, a movie that promotes the dominant ideology of a community will not face any trouble.

The hard times come when someone wants to express a contentious opinion such as a movie that criticizes the majoritarian ideology or religion. This consternation is shared by the dissident vote of Judge S.

United Kingdom Case. The reason why Human rights developed is precisely to defend against oppression. That is exactly why there are interna- tional courts: to ensure the rights of minorities, even ideological ones, against oppression, specifically the unrighteous persecution by the State and its officials rAMOS, b, p.

When the European Court decided not to decide, it contradicted the reason of its existence. That is exactly what the Margin of Appreciation is, a hateful attempt to deconstruct the importance of the International Human rights Law by handing this subject back to the States.

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And the result will repeat itself in most cases: The State will decide in favor of the majority, ignoring the claims of the minorities, subverting the whole reasoning behind an International Jurisdiction. Differently, and righteously so, on the Chilean Case, the Inter-Ameri- can Court understood the importance of its role.

It realized that it was the last resort of the applicants and decided the case. Even if it would have de- cided against the claimants and in favor of the State, the decision would be better than what the European Court did, because even if it ruled in favor of the restriction of the freedom of speech it would be putting into effect the universality of Human rights, which is one of its most fundamental reasons for existing an international conventionality control.

More so, going back to the nemo iudex in sua causa rule, that the reason for having international courts is precisely to ensure impartiality, which only comes with the required detachment from the facts. When the Margin of Appreciation technique is applied, any chance of impar- tiality goes out the window.

More than that, the application of this tech- nique goes against the point of having an international court.

When one of these courts hands the case back to the State which is one of the litigating parties , they are contradicting this fundamental principal of natural justice — they are asking the fox what to do with the henhouse. Even if there is to be some freedom in the interpretation of International Human rights Law by the States LIrA, , the final interpreter is the international court and, by having this essen- tial responsibility, there is an underlying obligation of these entities to conduct the conventionality control.

However, it is possible to argue that this conclusion is too precipitated. There are, perhaps, some early signs that could be interpreted as the first steps of the adoption of the technique by the Inter-American Court LIrA, , p.

In this sense, perhaps, in this particular case the Court merely reinforced the subsidiary nature of its jurisdiction and that there will not be further development of the technique in future Inter-American cases.

The Inter-American Court has a highly important function as one of the protagonists of Human rights protection in the American continent.

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Even if one would not particularly agree with the argument that Europe has an internalized democratic and Human rights directed spirit, and, for that reason, it is able to incorporate the Margin of Appreciation tech- nique, it is clear that the European continent had a longer and more sta- ble democratic experience if compared to Latin-America PrZEWOrSKI, , p. Central and Southern American States have suffered many times and not so long ago many periods of retrogression in the protection of Human rights, not to mention explicit and direct violations of those rights that were perpe- trated directly by the State MArMELSTEIN, , p.

In this conjuncture, if the Inter-American Court were to adopt a weaker demeanor when exercising its conventionality control the conti- nent would be facing a dangerous risk of losing one of its most important mechanisms of universal implementation of Human rights.

As demon- strated though the analysis of the Chilean Case, there is still a long path on the development of the recognition of Human rights on the Americas by the national courts.

If the strong attitude of the Inter-American Court was to be forefeited, the minorities would be left without any concrete protection against the violations perpetrated against them by the State rAMOS, a, However, these observations should not be exclusively directed to- wards the American States. According to what was seen in the Austrian Case, the same can be said about Europe.

It is far too presumptuous to believe that Europe is beyond reproach. The last time dictators ruled on Europe was not that long and, unfortunately, it is not impossible to see it happening again. If the Second World left any lessons, one of them was that horrors are prone to repetition.

This is a particular character- istic of the development of Human rights. To avoid this trick, Human rights protection became international — to avoid the trap of a nationalistic interpretation, there is an International Human rights Law, which, evidently, can only be properly international if interpreted by an International Source rAMOS, a, p. One of the reasons for an international conventionality control to exist is to enforce a uniform and thus properly universal interpreta- tion of International Human rights Law.

Not only that, this internation- al approach to Human rights is necessary because in many cases State authorities are the ones responsible for Human rights violations.

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Thus conventionality control appears as an indispensable tool towards State accountability. When a case involving State responsibility is given to an international court it is expected that this Tribunal will analyze the facts revolving the case and duly exercise its jurisdiction, interpreting the correct extension of the Human rights involved in that conflict.

The same can be said about con- ventionality control. Equivalently, to accept a relativist approach such as the Margin of Appreciation is to go against the whole fundaments of having an International Human rights Court such as the European Court or the Inter-American one. In this manner, for all the reasons above stated, it is paramount to understand that the Inter-American Court should preserve its current demeanor applying its jurisdiction in the cases presented to it, ensur- ing a universal approach to Human rights.

For the same reasons, the European Court should follow its American counterpart and forfeit the Margin of Appreciation. Through its aforementioned characteristics, the Margin of Appre- ciation is an appealing instrument for the States specifically those that are prone to Human rights violations.

The technique hands the States a carte blanche which allows them to interpret and apply Human rights Law as they will, according to their own particular views, and, in this way, bypass the international system. This immunizing characteristic is irresistibly attractive and, therefore, if the States are allowed to, they will use it to set themselves free from concrete international jurisdiction.

As stated, the possibility that the technique gives is enticing for the States — it is an escape route, a means to get free of the supervision from international courts. In this particular case, it is possible to argue that, given the lack of a firm statement made by the Inter-American Court, the Brazilian tri- bunal considered possible to apply the technique in its decision — silence gives consent.

This spirit, this openness to debate — the defense of the freedom of speech even if the ideas are op- posite to what it is believed to be true — is one of the most important elements that compose the Western psyche. However, it is clear that this freedom cannot be absolute. It cannot be admited as a righteous exercise of the freedom of speech an act that, at its basis, has sole the intention of vilifying some other Human right such as the respect for religious feelings.

In this conflict, there has to be some middle ground, which can only be achieved through judicial prudence. The respect of established norms is, in its own turn, also part of the Western ethos. In this manner, sometimes it is just to have protection of religious liberty over freedom of speech. That could not be comprehended as righteous freedom of speech.

In these situations, it is judicially correct to limit the freedom of speech. Nevertheless, on other cases, such as the Austrian and Chilean Cases, freedom of speech should prevail. Perhaps the main difference would be the fact that in the latter there is an ideological minority going against the majoritarian re- ligion, the opposite of what would happen in the former.

In this sense, equivalently to what was stated on Judge S. Martens vote, international courts should be weary of deciding against the rights of the minorities. In many cases, international jurisdiction is their last possibility of seeing justice done. In the same sense, when deciding, an international court must take into account various factors, notably those related to societal changes. A decision that goes against freedom of speech may, perhaps, hinder the ideological developments of society.

Western society as a whole evolved through the tensions between the respect and the overcoming of dogmas. This could be translated into a conflict between controversial ideas and censorship. As a religion, Christianity, since the death of its homonym founder, has been subject to persecution.July Cultural perspectives on Human rights can still exist, as long as they do not contradict the universal interpretation.

Dismissal of improper appeal to the Court of Appeals. In this manner, for all the reasons above stated, it is paramount to understand that the Inter-American Court should preserve its current demeanor applying its jurisdiction in the cases presented to it, ensur- ing a universal approach to Human rights. Most Popular. Lisandra Moreira Martins. Library of books to, android mega drive emulator and kun anta no music, blue exorcist vol 9 and lagu marjinal luka kita akustik.

Therefore, the objective of this work can be summarized as an at- tempt to present counterarguments to the Margin of Appreciation of technique through an International Human rights Law viewpoint fa- vorable to conventionality control, and, notably, through a Third World approach to International Law.

Christian Churches all of them are in themselves derivatives of this conflict between dogmatism and the pur- suit of reason. As medidas