Select Page

The burden of proof in the work process and the guarantee of work also deserve to be emphasised before the Labour Court at the time of the delay in the procedure, since claims are generally of a maintenance nature and the delay represents a real denial of judicial protection, which, in order to be fair and concrete, must be prompt. “Non-profit civil society. Union of Brazilian Composers. Exclusion of a partner without a guarantee of broad defense and opposition. Effectiveness of fundamental rights in private relations. Empty resource. I. Violations of fundamental rights occur not only in the context of relations between citizens and the State, but also in relations between natural and legal persons governed by private law. Thus, the fundamental rights guaranteed by the Constitution are not only directly binding on public authorities but also aim to protect individuals against private powers. II. […]. The space of private autonomy guaranteed to associations by the Constitution does not escape the emergence of constitutional principles guaranteeing respect for the fundamental rights of their members.

III. […]. The Union of Brazilian Composers – UBC, a non-profit civil society, integrates the structure of ecad and therefore occupies a privileged position to determine the extent of the enjoyment and collection of copyright of its members. The exclusion of a partner from UBC`s social framework without any guarantee of broad, adversarial defence or due constitutional process makes it much more difficult for the defendant who is unable to exercise the copyright associated with the performance of his works” (STF, RE 201.819/RJ, 2nd class, Min. Rel. Ellen Gracie, Rel. p/ judgment Min. Gil Mendes, J. 11.10.2005). The logic behind this conclusion lies in the fact that “in any matter, including labour and administration, the discretion of the administration has insurmountable limits and that the administration cannot dictate acts of administrative sanctions without providing due process”. A study of international jurisprudence allows us, lawyers, to have more information to discuss these abuses, regardless of the type of procedure. For example, although national jurisprudence provides the assistance of a defence lawyer or lawyer in the investigative phase of criminal proceedings, the IACHR understands exactly the opposite.

In Acosta Calderón v. Ecuador, for example, the IACHR has considered the irrevocability of the technical defence since the investigation phase given the vulnerability of the taxpayer. The completeness of the rights of defence provided for in the 100 Rules of Brasilia (Article 10.22) is not compatible with the waiver of the participation of the lawyer or defence counsel. The same idea was reinforced in the trial of López Álvarez in Honduras. In the Brazilian legal system, the principle of due process refers not only to the principle of legality, but also to legitimacy, since its respect guarantees a well-structured process by which the legitimacy of the judiciary is present, understood as power, function and activity. In the context of administrative procedure, due process guarantees have two meanings: (i) procedure, which consists of complying with the procedures and formalities provided for by law; (i) Name, which refers to the performance of the public administration, which is based on reasonableness and proportionality, without committing excesses. Due process is the principle that guarantees the process, which is governed by minimum guarantees of means and results, i.e. the use of appropriate technologies conducive to the desired protection. In addition, due process and all other fundamental guarantees also apply to relations between individuals, regardless of mediation or the decision of the constitutional legislature. This is known as horizontal, private or external effectiveness of fundamental rights. The Supreme Court, which has established the applicability of fundamental rights to private relations, has already had occasion to annul the private law law on civil society, which excluded a partner from its staff without prior and full adversarial defence, rules that result from due process.

Check the judge: To determine reasonableness, it is important to remember that the true content of access to jurisdiction is not identified with mere admission to trial or the ability to go to court. In order to have effective access to justice, it is essential to ensure that the author and the defendant have concrete and effective means of fairly settling the dispute before the courts, which deserves special attention before the Labour Court, where the parties to the proceedings are unequal. For this reason, due process is divided into two types, essential and procedural: the right to an adversarial and broad defence is completely emptied if the judicial process deviates from the principles of reasonableness and proportionality or from the ideal of achieving what is just. Another precedent set by the Inter-American Court of Human Rights stressed that due process will only be conducted if the guarantees of a broad defence, the adversary, the rules of jurisdiction and all the rights provided for in Article 8 of the ACHR are respected. “Both courts and trial courts are obliged to render fair decisions on the basis of due process guarantees” (grounds, compensation and costs, § 104, Ivcher Brostein v. Peru). The concept of due process was developed from the English legal system, whose roots are different from the Brazilian order. Its origins date back to John Landless` Magna Carta, 1215, and the Westminster Statute of London`s Liberties, also known as Edward III`s Act or the English Act of 1354. The principle of “land law”, i.e.

land law, guarantees citizens the right to a fair trial. Later, several U.S. state constitutions (before the U.S. Constitution of 1787) also introduced the concept of “land law,” which has now become “due process.” The Brazilian legislature was inspired by the Constitution of the United States and introduced the principle of due process into the Brazilian legal system. DA COSTA, Wellington Soares. Due process. Available in: . Procedure is an instrument for the application of violated substantive law which, if it does not fulfil its role, becomes a useless instrument and is emptied by the judiciary, rendering its law ineffective. These privileges were systematically affirmed by successive monarchs, the term being “law of the land” and replaced by the place of “due process” in the Statute of Westminster in 1354. *Article originally published in the newspaper Folha de S.Paulo on Wednesday (27/9) entitled Importance of due process.

Flavia Piovesan comments on this provision, adding that “individuals have the right to due process according to the arts. 8.1 and 8.2 of the ACHR, both in the field of criminal law and in any other, judicial or not”. And the author continues: The second consequence of due process is the principle of isonomy, which is based on Article 5 of the main rule, which guarantees that all are equal before the law, without distinction of any kind. The interpretation of this constitutional provision is that equality and inequality must be treated equally to the extent that the existing inequality is equal to the inequality. It is never an exaggeration to remember that the trial is no longer seen as a means of punishing those who have violated criminal laws, but as an instrument of legal protection for the accused. This question leads me to a few thoughts. Let`s start with the premise that justice exists to resolve conflicts and explain the law.