De Legibus - Law Journal

Opening Remarks

José de Faria Costa — 2024-06-03

Opening remarks

Index

José Nuno Aguiar — 2024-06-03

Index

The relatively indeterminate penalty: legal framework and constitucional conformity

Carlos Ferreira da Silva — 2024-06-03

In the present study, we intend to address some aspects related to the issue of the sentence relatively indeterminate, a concept with certain features that appear to be in opposition to the so-called "normal regime" to which we are accustomed and which raises some doctrinal divergences. To this end, we will partially explore its application prerequisites to understand how this institution functions. Having said that, we will delve into the execution and duration of the PRI, raising some doctrinal questions, particularly regarding the maximum duration.In a second phase, we aim to demonstrate how the sentence relatively indeterminate is unconstitutional due to a violation of the principles of guilt and the prohibition of perpetual sentences. Concerning the latter, we will briefly analyze the perspective of the Constitutional Court and the European Court of Human Rights.

Institutionalization of administrative arbitration: especially in the field of public contracts

Gonçalo Trovão do Rosário — 2024-06-03

With the emergence of new aspects in the field of Administrative Litigation, an analysis of the regime of institutionalization of administrative arbitration is necessary, the importance of which is truly considerable.

Based on this exposition, an attempt is made to differentiate the institutionalization of arbitration both at a general level and in matters of public contracts. For this, it is evident the need to analyze the fulfillment of requirements for the admission of arbitration in matters of ad hoc public contracts.

To this end, a detailed observation is proposed with regard to two important precepts within administrative arbitration: article 187 of the CPTA and article 476 of the CCP.

Crimes against humanity and cyberspace

Inês Gomes — 2024-06-03

The technological development registered in the last decades and the growing utilization of cyberspace – accessible to multiple interveners, state and non-state actors – provide the rising of concerns about the perpetration of inter- national crimes through that domain. The present article aims to analyse the issue of the perpetration of crimes against humanity through cyberspace. We will exami- ne the elements of these international crimes, and observe, especially, the element concerning the policy behind the attack directed against the civilian population; within this requisite, we will consider, particularly, the situations where the policy is carried on by non-state actors. Our analysis will be based on article 7 of the Rome Statute of the International Criminal Court, pertaining to crimes against humani- ty, and the international case-law on the matter, focusing on the decision of ICC’s Pre-Trial Chamber II on the authorization of the investigation of the Situation in the Republic of Kenya. We will see that the “deterritorialization” that characterizes cyberspace and the peculiarities of some of the entities operating there stimulate the adoption of a broad interpretation of the concept of “organization” in the context of the policy element of crimes against humanity.

Principles of interpretation, to be applied to the common VAT system

Pedro Costa Monteiro — 2024-06-03

This work aims to describe the main methods of interpreting the rules that apply VAT exemptions and reduced rates and to outline the difference in treatment of the teleological element, provided by the European Court of Justice, when applying such interpretations standards and when employing the principle of tax avoidance.

The Psychology of Terrorism

Susana Lourenço — 2024-06-03

The evolutionary process of islamic terrorism has been witnessed internationally over the past few decades. The common denominator of the terrorist actions perpetrated by independent cells, groups, and terrorist organizations, which aim is to spread terror and to restrict human freedom, corresponds to the extensive array of dispositional and extrinsic variables that can be interpreted by social sciences, namely Psychology. Although this phenomenon represents a relatively recent threat in the European continent, there arises a need to pay increasing attention to the variables and dynamics that lead to the processes of radicalization and recruitment, which are now focusing on younger populations and being activated within their own countries, where several attacks end up taking place. Considering the fact that terrorism poses a serious threat to transnational security, and given the return of terrorists to their nations, the Psychology of Terrorism accentuates its importance, providing the basis for the development of effective counterterrorism measures by looking at the conduct, identity and motivation of those who are considered to be both martyrs and enemies: the terrorists.

At the crossroads between autonomy and vulnerability: where we are and where we want to go

Tiago Vitória Carvalho — 2024-06-03

The aim of this study is to highlight and emphasize reflections on family mediation as an alternative method for resolving disputes involving elderly individuals. Considering the unique characteristics of conflicts among family members during this phase of life, it is crucial to promote and establish family mediation as the preferred method for resolving disputes involving the elderly and their families. Furthermore, we intend to explore the need to create new legal instruments within our legal framework that enable asset protection and the provision of care to vulnerable adults through private autonomy and self-regulation. In this regard, it is important to assess the feasibility of establishing the codification in our Civil Code of a contract aimed at providing care, as well, a functionalized patrimonial estate in favor of the vulnerable person.

The state of necessity in administrative law

Luiz Cabral de Moncada — 2024-06-03

The state of necessity consists of a situation in which the Administration is forced to act without the legality that, under normal conditions, binds it, in the name of urgent and unpostponable demands. It is not a question of acting against the law, but only of acting under the exceptional legality also provided for by the Code of Administrative Procedure. The Administration does not violate the law, it simply dispenses from it in order to resort to exceptional situations. Of course, acting in a state of necessity is also regulated by the Code of Administrative Procedure. Therefore, the adopted measures must be justified and proportional to the objectives pursued and any eventual injured parties are entitled to compensation for the damage caused.

What if a child exercises his rights as a data subject?

Graça Canto Moniz — 2024-06-03

O Regulamento Geral sobre a Proteção de Dados (RGPD) prevê um regime especial para os tratamentos de dados pessoais de crianças.Esse regime decorre de normas que expressamente referem estes titulares de dados e de outras que não mencionam especificamente as crianças. O objetivo deste texto é analisar essas disposições de modo a perceber em que circunstâncias pode uma criança exercer os seus direitos enquanto titular de dados pessoais.