Dear, I leave a research paper presented a few years ago in Uba, Faculty of Law, University of Buenos Aires, on human rights and Cyberspace, I hope you like and the translation is correct. Thanks for the space and respect. Apredemos among all for the common good of the international community.
ACCESS TO JUSTICE
VII CONGRESS REDLAJ
TITLE: "ACCESS TO JUSTICE, HUMAN RIGHTS AND CONSTITUTIONAL GUARANTEES, ASSURANCES THAT GUARANTEE THE RULE OF LAW".
AUTHOR: Romina Florencia Cabrera, Lawyer, Professor and Researcher at the Faculty of Law and Social Sciences of the National University of La Plata, Buenos Aires, Argentina; the Bar Association of La Plata and the Catholic University of La Plata on Constitutional Law, Political Science, Human Rights and Legal Informatics. Member of different Scientific Associations Law, and International Information Security Director at ASCASEPP, Association of Public Safety Training and Private Registered Low Number 591967, in the National Register of Associations of the Ministry of Interior of Spain, Madrid. Invited member of the Institute of Computer Law of the Bar Association of Capital Federal. Member of the Institute of Political and Constitutional Law at the Faculty of Law and Social Sciences of the National University of La Plata; the Latin American Observatory of Personal Data Protection (Universidad Complutense de Madrid, Spain).
Postal Address: Calle 529, No. 1,540. Tolosa - La Plata (Postal Code 1906), Buenos Aires, Argentina.
Phone: (0221) 482-7289. # (0221) -15-400-6397.
INTRODUCTION. DEVELOPMENT: 1- ACCESS TO JUSTICE AS A CONSTITUTIONAL GUARANTEE. 2-ACCESS TO JUSTICE AND HUMAN RIGHTS. 3-ACCESS TO JUSTICE AND DEMOCRACY. 4-ACCESS TO JUSTICE IN CYBERSPACE. CONCLUSIONS. BIBLIOGRAPHY.
ACCESS TO JUSTICE, HUMAN RIGHTS AND CONSTITUTIONAL GUARANTEES, ASSURANCES THAT GUARANTEE THE RULE OF LAW.
Human Rights are set based on respect for the dignity and worth of the human person. This was established in the Vienna Convention of Treaties, where the international community is committed to respecting universal values to avoid falling into degradations or damages to physical and moral integrity to people, guaranteeing their rights, to ensure the effective implementation of the equality, preferably structural, equity, justice, security, and fundamentally freedom that only materializes with the guarantee of the rule of law and democratic coexistence in which all stakeholders to dialogue, peace and harmony deliberative, and where it can achieve effective and efficient administration of justice, ethics and regard for the constitutional and international human rights treaties incorporated into the Basic Law, our constitution, constitutional status values, while not undermine the provisions and the spirit of it. "A rule of law is one that is governed by a system of laws and institutions arranged around a Constitution, which is the legal basis for the authorities and officials, who are subject to the rules of this".
1-ACCESS TO JUSTICE AS A CONSTITUTIONAL GUARANTEE
Satisfaction of social demands, as noted by the prestigious Professor Antonio A. Martino, is the primary task of every public authority, and primarily the judiciary, as the new challenges facing justice, the constant change of the legal, social, political, economic, educational and cultural reality, leading to rethink the performance of the judicial task, adapting to the dynamism of the present times, configuring, conceptualizing and materializándola as a guarantee of the rights of citizens.
The National Constitution is the fundamental law in any legal system that wants to achieve democratic ideals embodied in the rule of law, separation of powers, respect for the Constitution and its spirit; It is the basis and guarantee for justice, peace and harmonious coexistence among all citizens. The Constitutional guarantees embodied there are the reflection of legal certainty and the protection of our environment; assurances should enjoy all the inhabitants of a country, citizens, as the Master Jorge Reynaldo Vanossi says.
Our Constitution, proposed respect the right of access to justice in their Declarations, Rights and Guarantees, such as, for example, Art. 14, 14 Bis, 16, 17, 18, 19, 31, 32, 41, 42 and 43, which can be observed normative provisions, such as the ability to petition authorities and other rights (Art. 14); work (14 Bis) equality before the law (Art. 16); respect for private property (Art. 17), inviolability of the defense in the trial of the person and their rights (Art. 18); privacy (Art. 19), respect the Basic Law and the laws (Art. 31); freedom of the press (Art. 32); Environmental Law (Art. 41); Consumer (Art. 42) and the constitutional motions, collective protection, legal protection action of habeas data and habeas corpus (Art. 43).
The Art. 37 and 38 relate to political rights, popular sovereignty, suffrage (universal, equal, secret and compulsory), real equality of opportunity between men and women and the name of political parties as fundamental institutions of the democratic system, as the International Covenant on Civil and Political Rights and its Optional Protocol, adopted in Art. 75, paragraph 22 of our Constitution. And Art. 39 and 40, establish a form of semi-direct, participatory democracy, which provides for the citizens' initiative and referendum.
"Safety is a core value, is a prerequisite for living in a fairly organized society condition; without it there can be no other basic values, there would not be possible stable right distributive justice. For the right a reality, you need to have the safety device designed to apply, it will give birth to the rule imposed coercively, this can not be stopped before the subject's will, but forces to respect it. When we do not have security for compliance with a statutory obligation or what is legally appropriate based on it, we attempt against stability ", explains Maestro Alberto Ricardo Dalla Vía.
2-ACCESS TO JUSTICE AND HUMAN RIGHTS
The human rights are established in international treaties, in Art. 75, paragraph 22 of our Constitution, with constitutional laws than hierarchy, while not undermine the Basic Law.
Human Rights, by definition, can not be everything; but it is the proposition of a paradigm that places them in the central policies of each state, and careers in higher education, give us new and varied elements for making diagnoses to identify the problems at every opportunity, and the resulting projects , carried out in the educational sphere to try to respond to them. Democracy, the rule of law and education concepts are representative of different elements, which are equipped with their own political, legal and sociological nature, which stand out for their entity in modern societies, and feed each other.
Human Rights, principles, contents and postulates, enter its ethical character, to the educational scene, as essential and a half key tool for Democracy Substantial and the rule of law, in which legitimacy is given by respect for those governments Human Rights, without discrimination, to all members of the community.
The Pact of San José de Costa Rica also lists specific rules on fair trial:
Article 8.¬ fair trial.
1. Everyone has the right to a hearing, with due guarantees and within a reasonable time by a competent, independent and impartial tribunal, previously established by law, in the substantiation of any criminal charge against him, or the determination of his rights and obligations of civil, labor, fiscal policy or any other character
2. Every person accused of crime has the right to be presumed innocent while not legally his guilt. During the proceedings, every person is entitled in full equality to the following minimum guarantees:
a) The right of the accused to be assisted without charge by a translator or interpreter if he can not understand or speak the language of the tribunal or court;
b) prior notification in detail to the accused of the charges against him;
c) Granting the accused time and suitable for the preparation of his defense;
d) The right of the accused to defend himself personally or to be assisted by counsel of their choice and to communicate freely and privately with his counsel;
e) indispensable to be assisted by counsel provided by the state, paid or not as the domestic law, if the accused does not defend himself or counsel within the time period established by law law;
f) The right of the defense to examine witnesses present in the court and to obtain the attendance as witnesses, of experts or other persons who may throw light on the facts;
g) The right not to be compelled to testify against himself or to plead guilty;
h) the right to appeal the judgment to a higher court.
3. The confession of the accused is only valid if it is made without coercion of any kind.
Four. An accused person acquitted by a final judgment shall not be subjected to a new trial for the same acts.
5. Criminal proceedings shall be public, except as necessary to protect the interests of justice.
Article 9.¬ principle of legality and retroactivity.
No one can be convicted of any act or omission which did not constitute a criminal when committed under the applicable law. Nor it can impose more severe than that applicable at the time the criminal offense was committed. If after the commission of the offense the law provides for the imposition of a lighter penalty, the offender shall benefit thereby.
In addition to other provisions in the treaty, you can also be seen references to the Access to Justice in the American Declaration on the Rights and Duties of Man, International Convention of the United Nations Conference on the Protection of All Migrant Workers and Their Families in the Universal Declaration of Human Rights, Declaration of the Rights of Man and of the Citizen, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Prevention and Punishment of the Crime of Genocide ; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention Against Torture and Other Cruel, Inhuman or Degrading and in the jurisprudence of the Inter-American Court of Human Rights, as a guarantee for the effective implementation of human rights, and thus achieve a real structural equality, materialized.
3-ACCESS TO JUSTICE AND DEMOCRACY
The "constitutional feeling", respect the Basic Law, the Constitution implies recognition of constitutional guarantees and human rights enshrined in the Magna Carta, as the value and dignity of the human person, established in the Vienna Convention.
Rule of law, republican and representative, can not achieve its objective if the democratic conception is not materialized in norms and behaviors; if the sovereign, the citizen does not realize the importance of exercise of freedom, respect for others, their institutions, political traditions, and above all, to justice and electoral system, where he is the protagonist of the democracy. Through the political act of voting, decide the political life of citizens. And through transparency and publicity of judicial information, with due respect for data confidentiality, the true spirit of a democratic power will materialize.
A real judicial system is effective, if the rights of litigants are respected and guaranteed by the same; a power independent of any external action that can administer justice, based on the legality, legitimacy, fairness, casuistry, doctrine, general principles of law and the free conviction of the judge, after achieving true just solution to social demands , as stated by the Professor Antonio A. Martino Prestigious; always applying ethical, unchanging throughout history principles. Deliberative democracy, in the words of Carlos Nino, which ensures real access to justice, should always be present in the judicial task.
"A prominent German philosopher of law Rudolf Von Inhering, wrote a classic book, very important, which is called The struggle for law, explaining that no written rule itself ensure that a right comes given, it is always necessary to open channels, create custom, set criteria, sentencing, so that later these principles are in laws, constitutions, and as in our times, also in international declarations ".
4-ACCESS TO JUSTICE IN CYBERSPACE
In the virtual, interconnected, technological and hiperinfomado in which we travel the road of life world, the digital environment, formed mainly by the Internet phenomenon implies a paradigm shift not only in the legal rules and consequences, but in the behavior of Internet users, which reflects this legislative amendment, since the behavior of individuals influence and determine the law in its dynamism and constant evolution and transformation; seeking balance with the environment in which legal phenomena manifest themselves.
In the "Declaration of Cyberspace", the inhabitants of the same express their desire for a just coexistence, without any territorial sovereignty, proclaiming and preserving the natural right of human beings to freedom and equality also in cyberspace.
In the above statement, you can find the following statements:
Art. 1. Freedom of information only applies to information (knowledge, moral elevation of human beings, human rights). Art. 2. Free and equal access to information. Art. 3. Elimination of the digital divide. Art. 4. Accessibility of Information. Art. 5. Equal opportunities in the production and dissemination of information. Art. 6. Balance between intellectual property and free flow of information. Art. 7. Prohibition of monopolies and oligopolies of information. Art. 8. inviolability of information. Art. 9. Right to Habeas Data. Art. 10. Contents of Habeas Data. Art. 11. Rights to limit the Habeas Data. Art. 12. Right to privacy of communications. Art. 13. Prohibition of monopoly power on the Internet. Art. 14. Protection of minors. Art. 15. The dignity of the person. Art. 16. Freedom of trade and labor in cyberspace. Art. 17. Protection of Cultural Heritage in cyberspace. Article 18. citizen telematics relationship with government law. Article 19. Right to self-regulation in a framework of heterorregulación. Article 20. Institutional Guarantee of Human Rights in Cyberspace. Art. 21. Extension Clause and progress. Article 22. Clause closing avoidance of the paradox of freedom.
Respect for Human Rights, conceived in the value and dignity of the person; the National Constitution adopted and really respected as the Basic Law, and the conception of a democratic, deliberative society, an independent judiciary, where all citizens alike have access to it, with due process and all outstanding guarantees, make a true rule of law, where security is a reality and not a utopia; in which to administer justice, equity and equality before the law. Not only in the traditional conception, but also incorporating the rights of Internet users, which interact with each other and with their environment, in the digital environment, with the incorporation of information and communications technology; where the interoperability of different factors and actors of the network, establish new legal relationships previously unthinkable, with a multiplicity of causes and consequences, and the emergence of new regulatory provisions, and obviously Guarantees in the virtual world.
And as the Preamble to the Constitution Argentina says, invoking the protection of God, source of all reason and justice.
Constitution of Argentina and International Human Rights Treaties constitutional status.
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Consulted on: October 7, 2013.
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Consultation Date: October 7, 2013.
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Date Consultation Web Site: October 9, 2013.
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Consultation Date: October 7, 2013.
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Consultation Date: October 7, 2013.