Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

Drawing on the critical race theory, this text proposes to investigate how the mechanisms of institutional racism act in the different spheres of the State through an in-depth study of the case of Algendones. Using documentary sources, but also interviews, the work develops a socio-legal analysis of the case of denunciation of racial discrimination in Peru. The methodology is based on storytelling or the experience of the victim in different parts of the process. It starts from the premise that anti-black racism is a system of oppression historically built from the colonial past as a legacy of racial enslavement. This legacy has an impact on legal practice and theory by limiting the scope of the category of the human and, therefore, of the subject of law. Specifically, the category of fungibility is used as an element of survival of racial slavery that acts as an impediment to prosecute a demand for the dignity of a black woman. The study reaches the conclusion that legal recognition of racism as a limited phenomenon restricted to racial discrimination limits the fight to its long-lasting effects. In the same way, the legislative and institutional options to combat discrimination are insufficient to challenge existing institutional/ structural racism and, thus, do not promote changes or ruptures in (racial) power relations.

The purpose of this research is to identify all the defects of the administrative act associated with the element of validity form. To meet this objective, a systematic, exhaustive and replicable literature review was carried out, whose purpose was to select all reliable academic documents that address the form as an element of validity. During the reading of the selected documents, all the relevant doctrinal positions that alluded to any of the following topics were collected and collated: nature of the form as an element of validity of the administrative act, definition of form as an element of validity of the administrative act, classification of the external manifestations of the administrative act and defects under the domain of element of validity form. All the positions identified were integrated in an internally coherent scheme that is capable of discriminating formal defects from other types of defects. As a result of the integrative review of the selected documents, a comprehensive catalog of defects associated with the element of validity form was developed, which allows to objectively determine whether a defect is formal or of another nature.

This paper addresses the new problems arisen after the recent judgement from the Spanish Constitutional Court ratifying revisable permanent prison. We need to bear in mind that Constitutional Law 1/2015 introduces permanent revisable prison for the very first time in the Spanish sentencing system. This sentence faced serious problems of constitutionality that were highlighted by a report made by a group of experts that would serve as a basis for the action of unconstitutionality presented in June the 30th 2015. It has taken six years for the Constitutional Court to solve this action in the sadly predictable sense to consider this penalty as constitutional; nevertheless, three dissenting votes pointed in the opposite direction. This decision has left an open door that certain political parties have decided to take and advantage of, in a punitive turn to extend this revisable permanent prison to new criminal situations. So, this work seeks to analyze the ramifications of this judgement, contributing to the reflection on permanent revisable prison and its escalation, so as the problems that it raises.

Based on the distinction drawn by R. A. Duff between attacks and endangerments as two different kind of wrongs, this paper advocates a view of the crime of conflict of interest in the public sector as implicit endangerment against government decisions. This view is supported by different empirical studies, which demonstrate that, in scenarios of conflict of interest, although agents do not act with a deliberate purpose of benefiting themselves, their decisions tend to privilege their private interests. In addition, it is argued that, according to the perspective defended, the scope of the offense should include interests and acts of a non-economic nature. It should be clarified that the purpose of this paper is to contribute to the development of a normative theory of negotiations incompatible with public office which determines how this crime should be regulated, regardless of the specific way in which each legislation defines such behavior.

The migration of Venezuelans nationals to other Latin-American countries has been defined as the most significant migratory phenomenon in the recent story of the region, with Colombia being the country that hosts the highest number of Venezuelan nationals. From a human rights perspective, this article critically analyzes the response of the Colombian State to address migration from Venezuela. The objective of this article is to show that Colombia has preferred to govern this migration through the creation of ad hoc permits, instead of recognizing the need for international protection of this population and their status as refugees. To this end, this paper analyzes the Colombian regulatory framework on migration and refuge and, in particular, the response of the Colombian State to the migration of people from Venezuela. Its central argument is that the Colombian authorities have opted for the design and implementation of alternative measures of migratory regularization, as it was at the time the Special Permit of Permanence and is today the Permit for Temporary Protection. This article concludes by stating that the approach to Venezuelan migration has led to a clear detriment to the refugee system, today collapsed and with no prospect of reform or strengthening. This is so because the institutional design of the Colombian refuge entails a host of obstacles that discourage applicants from following this path, even when they require international protection. The authors of this paper use legal dogmatic as the main research methodology.

Religious regimes of normativity, pertaining to non-catholic traditions of Christianity, which are particular to the history of Asia, where they originated and throve between late antiquity and early modern age, provide a powerful testimony as to social, legal and cultural entanglements that cannot be acknowledged nor understood from the binary vision of the Kulturkampf between the “East” and the “West”. Case in point: the tradition of the “Nestorian” Church of the East, with its early spread eastward, from Mesopotamia and Persia to India and China, through all of Central Asia, long before the catholic and protestant missions of the late Middle Ages and the modern age (14th to 19th centuries), defies the paradigms of postcolonial analysis. Legal and liturgical multilingual documents and monuments of the Church of the East—born from the persecution of the followers of Nestorius and Theodore of Mopsuestia under the Roman rule, established in Eastern Mesopotamia as a self-standing denomination under the katholikós, since 410—, reflect an original and autonomous Christian culture, risen from heresy, independent from any papal or imperial agenda. Its bodies of theological doctrines and liturgical formularies, particularly its legal texts, reveal a transnational, non-exclusively confessional mindset, open to hybridization. Likewise, the legal and liturgical system of the Church of the East, developed over eight centuries through migrations, commerce, missional and literary activity (writing and translations) along the Silk Roads trade and knowledge network, provided governance and justice for Christians (and also non-Christians) belonging to many peoples in diverse territories. Built with a communal rather than institutional outreach, the tradition of “Nestorian” Christianity is a genuinely “Eastern” one. It survives among us, confirmed and reinforced in its jurisdictional and pastoral structures, but also misinterpreted and misplaced, as to its role in the context of the history of Asia. Challenged and hunted, it’s facing oblivion, dispersion and, eventually, annihilation.

The Constitution and the Code of Criminal Procedure, as well as international treaties ratified by Chile, oblige the state to offer free legal assistance to those who require it, which is especially relevant in the criminal sphere. On the riots or social unrest that occurred in Chile in the last quarter of 2019 and early 2020, the Public Criminal Defense Office adopted a set of measures to offer legal defense to those who were detained or indicted by the criminal prosecution bodies. This research compares crime behavior in the country between 2017 and 2021 and identifies the social unrest crimes. These are a group of crimes whose frequency increased considerably during the turbulent months: 1) burglary, 2) public disorder, 3) disturbances to public order, and 4) attacks and threats against authorities. The volume and specificities of the social unrest crimes challenged the entire justice sector and, in doing so, made it possible to generate beliefs about the legitimacy of the criminal justice system. In contexts of social unrest, the generation of such beliefs seems especially important, because they can increase perceptions of injustice, enhancing the motivations that give rise to such unrest. Therefore, the operational reactions deployed in the Public Criminal Defense Office to ensure timely criminal defense services are explained. Good practices of the Public Criminal Defense Office that could be strengthened institutionally and normatively so that the justice sector is better prepared to face complex or unusual criminological phenomena, such as those that occurred during the social outburst, are also highlighted.

The impact generated by the accelerated development of NFT’s creates a series of risks and legal problems, among which the legal, the impact on intellectual property, the protection of the purchasers of this type of tokens, fraud prevention and the possible impact of NFT’s on financial markets are the most important. The purpose of this document is to analyze whether the regulatory framework of the securities market is applicable to NFT’s based on the following assumptions: i) NFT’s, understood individually as a digital representation, cannot be considered as securities; ii) in States where the definition of securities includes the concept of “investment contract”, NFT’s could be considered as securities, as long as they meet the requirements of the Howey Test; iii) in States where there is no definition of investment contracts, NFT’s could be considered as securities, provided that they meet the requirements for such purpose—the existence of a negotiable right, issued in mass or in series within a public offering of securities, and that its purpose is to obtain resources from the public by way of investment—; and iv) that the recognition of NFT’s as securities would lead to the application of regulatory frameworks of the capital market in matters such as registration before the financial authorities, provision of information and investor protection schemes. This text will describe the origin and current scenario of NFT’s. Likewise, the different positions of supervisory and regulatory authorities at a global level will be analyzed with respect to these tokens; and, finally, some reflections will be made from the point of view of securities market regulation with respect to the aforementioned non-fungible tokens.

Women victims of sexual assault encounter several hurdles when seeking justice in Chilean legal institutions; however, recent efforts by the Chilean Supreme Court to fight bias against underrepresented groups have foregrounded the importance of applying a gender perspective in court trials. In light of the publication by the Chilean Supreme Court in 2019, I analyze the court ruling of a 2004 rape case that led Corporación Humanas―a feminist NGO―to file a petition before the Inter-American Commission on Human Rights. Given the ruling’s egregious biases, the NGO holds Chile responsible for the violation of several victims’ rights specified in international human rights treaties. Based on the written court ruling, I examine how the judges and other legal actors failed to deliver justice with a gender perspective. For that purpose, I analyze how the judges, the prosecutors, and the defense attorneys resorted to the following types of gender bias: a) gender stereotypes and rape myths, b) credibility discounting (Tuerkheimer, 2017), c) assessment of the evidence without a gender perspective, d) requirement of bodily injury to give credence to the hypothesis of rape by force and e) discussion of the victim’s sexual history. Considering the different categories of gender bias detected in the case, I assess whether the Chilean handbook would have been an effective tool to prevent them. Finally, based on this case, I determine the handbook’s limitations and suggest potential improvements.

In Peru, the Constitutional Court has jurisdiction to resolve unconstitutionality and conflicts processes in a single instance, and must do so through the interpretation of constitutional norms, as it is the highest body of control and interpretation of the Constitution. This research analyzes the position assumed by the Court in the face of conflicts between Congress and the Executive Power during the unstable political period 2016-2021. In the control of the laws and the modifications to the Rules of Congress approved by the parliamentary majorities elected in 2016 and 2020, the dissolution of Congress decreed on September 30, 2019 by the Executive and the vote of confidence, established important guidelines of constitutional interpretation; however, this did not occur in matters such as the control of the presidential vacancy due to permanent moral incapacity, the extraordinary emergency decrees issued by the Government while the dissolution of Congress lasted and the rules incorporated in the New Constitutional Procedural Code on votes in the Court for the resolution of constitutional processes.