Desconocido
Democracia directa: ¿voluntad del pueblo versus los derechos fundamentales? Análisis comparativo entre Suiza y California
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Josi, Claudia
In many countries, citizens have the power to propose new laws oramendments to their constitutions by popular initiatives. Provided that they have a special legitimacy, they are often regulated by different procedures to the legislation enacted by the legislature and may be used by their proponents to avoid the restrictions that the “ordinary” legislation is subject to. Recently, this has led that several popular initiatives which have come into conflict with the rights of minorities, fundamental rights of other affected groups, and other constitutional guarantees have been submitted. From the perspective of a comparative analysis, this article explores whether the laws in Switzerland and California set the procedural and substantive restrictions to this mechanism of direct democracy and to what extent. In this context, the author questionswhether the scope and enjoyment of fundamental rights may be subject to popular initiatives. Finally, several recommendations are made to improve the legal limits of popular initiatives and their control mechanisms to ensure that the scope and enjoyment of fundamental rights are not subject to the contentof popular initiatives.
Desconocido
Las democracias con libertades disminuidas en Latinoamérica en el siglo XXI y la Carta Democrática Interamericana: ¿Dos modelos de democracia en la región?
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Soria Luján, Daniel
The Inter-American Democratic Charter (IDC) was adopted in 2001 by member states of the Organization of American States (OAS) as a renewed instrument for the defense of democracy, not only against traditional coup d´etat but also to face serious violations to horizontal accountability. The second assumption took into consideration, as a precedent, the political situation in Peru during Alberto Fujimori's administration (1995-2000), defined as a competitive authoritarian regime by Political Science and Constitutional Law scholars. However, during the last decade to the presentwe find in Latin America several countries with governments where the principle of checks and balances has been eroded as a result of measures adopted by their respective executive branch. This situation suggests the following concerns: The liberal democratic model of the IDC is in crisis? This model has been overcame by illiberal governments that privileges economic and social rights and restraints civil and political rights? Or both models a recondemned to coexist in the region?
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El derecho constitucional comparado en el ordenamiento constitucional nacional: a propósito del IX Congreso Mundial de Derecho Constitucional
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Landa Arroyo, César
From the process of globalization of law, the comparative constitutional law has gained a leading role for a better understanding and solving old and new constitutional national and international challenges. Therefore, some assumptions and considerations to take into account are presented for the development of the national constitutional order within the framework of the comparative constitutional law, such as universality and relativism of human rights; the concept of power and constitutional democracy; standards of free elections and judicial independence; freedom of expression, media pluralism and access to public information; the economic,social and cultural rights; the new fundamental rights.
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Los dilemas para consumir justicia: algunos alcances de la tutela procesal del consumidor en la vía administrativa y el arbitraje de consumo
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Rejanovinschi Talledo, Moisés
This paper argues that the consumer should choose the procedural mechanism that satisfies their need to resolve a dispute and being compensated. Also, the administration, in order to defend rights of consumers, must have the authority to prefer the Constitution through diffuse constitutional control.
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El impacto de la jurisprudencia de la Corte Interamericana sobre el Tribunal Europeo de Derechos Humanos
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Díaz Crego, María
The reciprocal influence between the Inter-American Court andthe European Court of Human Rights has been analysed by several studies that have focused on the impact of the European case- law in its Inter- American counterpart. In this context, this paper aims to pay attention to the reverse phenomenon. Therefore, it studies the decisions in which the European Court of Human Rights has explicitly referred to the Inter-American Court’s case law. By doing so, it attempts to elucidate the subject areas in which the European Court is most influenced by its Inter-American counterpart and the extent of this influence.
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Justiciabilidad de las medidas regresivas de los derechos sociales. Algunas reflexiones acerca de su protección en América Latina
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Torres Zuñiga, Natalia
This article has as aim to reflect about the protection of economic, social and cultural rights before the regressive measures adopted by governments in Latin America, as well as of the different levels of jurisdictional tutelage that those receive. The document develops the concept of a regressive measure and the scope of the non-regression principle, furthermore, it shows the experience of the Constitutional Courts from Peru and Colombia and the organs of the Interamerican System of Human Rights regarding the protection of social rights.
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Ley y negociación colectiva sobre jubilación en España
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Elorza Guerrero, Fernando
The process of legislative reform driven in Spain since 2010 within the framework of the economic crisis that is plaguing the country, has touched in a significant effect on the legal regime of the retirement. Institution which is not outside to the reform of the legal regime of collective bargaining, which, in parallel, has been practiced in these years. In this sense, the adoption of legislative measures in favor of the prolongation of the active life of the workers and the increase in retirement age, has coincided in time with the promotion of legal enterprise collective bargaining, by declaring its applicative preference. To analyze these issues is dedicated this article, in which, on the other hand, it highlights the lack of a credible legislative action in favor of the development of complementary social protection in the area of retirement.
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La lucha antiterrorista en el Perú: agujeros negros legales, agujeros grises y el arduo camino constitucional. Lecciones peruanas para la guerra contra el terrorismo global
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Siles Vallejos, Abraham
This paper examines the anti-terrorist strategy developed by Peru from the paradigm of the constitutional rule of law. One expression of this counter-insurgency fight was the nearly permanent establishment of states of emergency and the adoption of criminal emergency laws, which are critically analyzed, because they led to serious results on fundamental rights. In that sense, it is shown, with severe concern, the establishment by the Peruvian Government of legal “black holes” and “gray holes” at the expense of victims of enforced disappearance. The author concludes by assessing the position of the courts and the challenge they have in elaborating a democratic and constitutional model for combating terrorism.
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La negociación colectiva en el Perú: la hiperdescentralización y sus múltiples inconvenientes
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Villavicencio Ríos, Alfredo
In Latin America, most countries have a decentralized bargainingstructure that is in the company’s main area of negotiation and different from the warranty obligations and promotion deriving from the new Latin American constitutionalism emerged after the fall of dictatorships in the last quarter of the past century. In Peru, the legislative option enforces a hyper- decentralized model that has restricted maximum coverage and effectiveness of the collective protection. Therefore, the state regulation referred to the articulated collective bargaining is not complete because it ignores issues such as the legal nature of the instruments of juncture, the framework agreements, their effectiveness, etc.The weakness of the collective protection has transcended the specific field of business and questions the social, economic and political balances that underpin the constitutional rule of law.
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Pueblos indígenas, diversidad cultural y el derecho a la autodeterminación: desde el derecho internacional al constitucionalismo latinoamericano
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Souza Alves, Rodrigo Vitorino
Indigenous peoples have valuable ancestral cultures and makeimportant contributions to society in general. However, despite the recognized value of these peoples and their cultures, their most basic rights have been violated for a long time. The postcolonial era did not end the internal«colonization», because in many places the locals are still treated as inferior to the other inhabitants within the territory of the Country. Nevertheless, the international law is moving in the opposite direction, recognizing the dignityand the rights not only of individuals but also of indigenous peoples, ensuring cultural security. In recent decades, relevant international instruments have been adopted, inspiring the constitutional reforms and human rights initiatives for the protection of indigenous peoples. This article aims to investigate how the legal recognition of self-determination of the indigenous peoples contributes to the protection and promotion of their culture. On that matter, the first section of the paper concentrates on the conceptual discussion on indigenous peoples, as well as the legal-political relationship models between them and the State. Second, the rights of the indigenous peoples will be examined from the perspective on international law, with special emphasis on the collective self-determination right. In the last section, the Latin American Constitutions will be studied, in order to present the situation of the indigenous self-determination in Latin American.
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Regímenes complementarios de jubilación en el Perú: ¿una opción paralela?
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Abanto Revilla, César
In Peru, since the end of the year 1992, there is a mixed retirement model which consists of a public system – integrated by the members of the armed and police forces (Decree Law 19846), public officials (Decree Law 20530), diplomatic officials (Supreme Decree 065-2009-RE) and the National Retirement System (Decree Law 19990) - and, in parallel, a private model, namely, the Private Retirement System (SPP – Sistema Privado de Pensiones) of the Retirement Fund Administrators (AFP – Administradores de Fondos de Pensiones) (Decree Law 25897). Due to the extent that several factors have affected the normal development of the public retirement systems, they have been tried to be replaced by the Chilean private model of 1980. However, the financial crises have revealed that this mechanism also has weaknesses, especially by their intimate connection with the volatility of the financial and stock markets, which have led to test alternative formulas. In some cases, these have been aimed towards supplementary retirement models, that is, the creation of retirement funds which are designed to provide additional benefits to those recognized by the existing mandatory systems.
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Regulación, política agro-energética y la evolución del mercado de carburantes renovables en Brasil
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Rodríguez Morales, Jorge Ernesto; Rodríguez López, Fernando
The costs of oil dependence, the environmental external costs of fossil fuels, or the promotion of agricultural development, has justified a number of measures of state intervention to expand the domestic market of biofuels, assuming that state intervention is necessary and sufficient condition for achieving this aim. After analyzing the political and economic elements in the Brazilian ethanol sector in historical perspective, in this article we argue that the expansion or contraction of the market should not be understood as an effect of a particular policies determined by the regulatory state. Regarding this, we argue the trends on the market development reflect the effects of aprevious underlying relationship, which is determined by the convergence or divergence over time of the opportunity costs of government and agribusiness. Our analysis shows that the effectiveness of a policy of energy diversification as the promotion of biofuels depends on the economic benefits and political rents generated by expanding the use of ethanol. These restrictions can be extrapolated as part of the cost-effectiveness analysis of public policies related to the sector in other countries.
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Separación de poderes y jueces constitucionales: un enfoque de roles correctores
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Figueroa Gutarra, Edwin
An approach of corrective roles of judges within the constitutional interpretation demands a number of parameters that must necessarily be made compatible with the principles, values and guidelines pursuant to contemporary legal systems. This study covers the dimensions of these corrective roles in the attempt to set reference lines on the delicate task of the constitutional judges in the defense of the effective exercise of the fundamental rights and the regulations’ primacy of the Constitution. Finally, this study investigates if there is a jurisdictional government and to what extent the neoconstitutionalism turns out to be a relevant matter in the interpretation of the Constitution.
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Transformación jurídica de la perspectiva nacional sobre las uniones civiles y el matrimonio entre personas del mismo sexo en Latinoamérica
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Cabrales Lucio, José Miguel
This paper analyzes the legal arguments that have been used toallow the gradual introduction of same-sex marriage and civil unions in some Latin American countries. The author makes a critical account of the contentious cases and legislative responses to claims for recognition and protection of human rights of people with a particular sexual orientation. The most representative Latin American countries are analyzed from the point of view of its relevance in comparative terms.
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Las víctimas en el sistema procesal penal reformado
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Pásara Pazos, Luis
This article analyzes the negative impact of the reforms within the criminal systems in Latin America, both for those who suffer a crime, and those who are accused of having committed such crime. Supprted by empirical data, the author warns how the innovations of the reformed criminal proceedings (for example, the simplified court proceeding or the active role played by prosecutors), by enrolling into an authoritative legalculture, become in practice contrary to their likely design.
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Vigilancia y privilegio periodístico en la era de las nuevas tecnologías de las telecomunicaciones bajo la Convención de Derechos Humanos y Libertades Fundamentales y la Constitución de la República de Polonia
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2015-11-01) Podkowik, Jan
The digital age has reconfigured the security services, especially the forms of mass surveillance aimed at preventing various threats to society. However, this scenario may become problematic from the perspective of protecting the freedom of the media and journalistic privilege. The author of this article offers an overview of the scope of the protection of the journalistic privilege pursuant to the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as its management in Poland from the developments prepared by its Constitutional Court.