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

The loss of biodiversity is one of the elements of the current triple planetary crisis that affects humanity. To deal with this problem, international and national legal systems have proposed, and developed new biodiversity protection schemes with a different scope focused on avoiding and reversing biodiversity loss. In this context, it is necessary to analyze whether a biodiversity law is required in Colombia and, if the answer is affirmative, what would be the main elements that should be regulated through this legal instrument. Starting from an analysis of the new international developments in terms of biodiversity protection and a comparative review of some countries with biodiversity laws, this article aims to analyze whether the Colombian legal framework has sufficient elements to deal with the loss of biodiversity and reverse it; or, if the contrary, a biodiversity law is required, in which case some elements that should be included in said regulation will be proposed.

This essay explains the origin and evolution of the proposal to include the Public Custody of Nature to the text of the draft of the new Chilean constitution. From this basis a popular initiative of norm is elaborated and finally incorporated into the discussion of the Constitutional Convention. This proposal is approved, with modifications, by the Plenary of said Convention. In this context, the doctrine of the Public Trust is explained, including its relationship with the doctrines of the public domain and the social function of property, both traditional theories of our own national legal system. Then, the work analyzes the evolution of the constitutional discussion of this proposal and the changes that were introduced, with particular emphasis on its union to the category of natural commons. Finally, it is advanced why it constitutes an innovative proposal for Chilean national environmental law, the scope of its application in the terms that the proposal is ultimately configured and it announces some of the legal requirements for its effective implementation.

Within the framework of the constitutional discussion, this paper aims to address the innovations and the scope contemplated in the model of «active legitimacy» in environmental issues, proposed by the 2022 Constitutional Draft. For this purpose, the main institutions that give a broad and collective understanding of the environment, within the framework of a social rule of law, will be examined. The main aspects that will be analyzed refer to the procedural mechanisms of collective environmental protection, the possibility of protecting the interest of future generations, and the creation of a public body for the protection of the environment. These discussions are framed within the challenges and critical knots presented by environmental litigation. Finally, some recommendations are presented on the analyzed aspects, on the occasion of an eventual new constituent process.

The Constitutional Court has not been able to find a stable methodology that allows it to prosecute cases related to freedom of expression when the exercise of this, due to its content and characteristics, has led to a criminal conviction. The jurisprudence of the Court has been changing to the point that at present it is extremely difficult to predict with a minimum certainty how it will face a case of this type: after a process of initial and laborious expansion of the scope of freedom of expression culminating in STC 35/2020, the Court has returned in a short time to stages that seemed to be overcome and that were based on a certain distrust or prevention against the exercise of such freedom and on an expansive interpretation of the criminal offenses that may affect it, excluding it. Paradoxically, this distrust coexists in its last jurisprudence with a whole series of praises to the function of freedom of expression that later find no real reflection in the decision of the Court, which after making that initial favorable assessment proceeds to a restrictive interpretation of said freedom, resorting to a strict and very limiting understanding of criteria such as the linking of that freedom to the formation of a free public opinion or the need or not of the uttered expression. No less relevant is the usual recourse to hate speech and subjective factors of all kinds, which are useful to exclude freedom of expression without special argumentative effort in the most varied cases. On these bases, the Court has tried different methodologies for approaching these cases, with no reasons appearing to explain the constant changes in criteria shown from sentence to sentence. The overall result, as has been said, is a notable legal uncertainty for the interpreter and for the citizen in general; a growing discouraging effect for the exercise of the aforementioned freedom in view of the risk of criminal proceedings being activated; the insufficient assessment of the criterion of proportionality in recourse to this means and, finally, the overprotection of a series of legal rights whose prevalence over a fundamental right such as the one analyzed is complex to explain with the reasons that the Court adopts. Therefore, the ultimate purpose of this work is to highlight the existing problems in the field analyzed and provide proposals that allow overcoming the current situation.

The parliamentary function of appointing State authorities (constitutional judges, members of the General Council of the Judiciary, counselors of the Court of Accounts or the Ombudsman), beyond its specific categorization, has as its reason to provide democratic legitimacy by origin to the affected organs. The attribution to the parliamentary Chambers of a task of such responsibility has been accompanied by precautions aimed at guaranteeing consensus in the election and partisan neutralization of the nominated candidates, through the provision of qualified majorities and the establishment of technical competence requirements for access to the position. However, despite the good intentions of the organic-institutional design, the practical application of the norms that discipline the parliamentary election by the main political forces, determined to «control» as far as possible the resulting composition, has become in a series of perverse phenomena worthy of being analyzed in perspective: the distribution of quotas, the long delays due to blocking attitudes, the formulation of vetoes or the accumulation of various renewals in an « institutional basket » abusing the prorogatio. Faced with this drift, a solution line to the problem is presented through, mainly, the modification of the temporal aspects of the mandate. Advocating for long temporary mandates (far from the logic of legislatures), giving them priority over institutional mandates in case of antinomy, and, ultimately, advancing in models of partial and staggered renewal, which avoid the accumulation of positions to be filled, forcing a genuine consensus due to the impossibility of applying the logic of distribution. A fractioning of the renewals that would allow for the repeal of the extension of functions, as the risk of total paralysis of the organ’s activity disappears, and thereby discouraging strategic behaviors in the management of time for the conscious manipulation of the balance of majorities. All this under one premise: the frontal rejection that the logic of confrontation and non-compliance with the constitutional mandates for the provision of vacancies is imposed in future reforms of the organic-institutional design applicable to some of the highest authorities of the State.

The recognition and scope of the right to access public information has followed different paths within the framework of the Council of Europe and the European Union, although, in both cases, its interpretation is inevitably linked to the case law of the European Court of Human Rights and the Court of Justice of the European Union, respectively. This article analyses the most significant judgments —including some very recent ones— in which both courts have had the opportunity to pronounce on the configuration and limits to the exercise of the right, as well as its fundamental nature. The result is a right of access to public information whose legal regime presents its own singularities depending on whether it is the ECHR system or European Union law, but also certain similarities which, when analysed together, allow us to see a shared jurisprudential trend aimed at extending the scope of that right.

In July the Moroccan Constitution of 2011 will be 10 years of validity. With the appearance of this new constitutional text was created a new political, economic and social framework for the Alaouite Kingdom. Within the procedural and penal context, this has led to various reforms to adapt the moroccan penal system to the principles set out in the new Constitution and to the international human rights obligations. This study tries to analyse the effectiveness of this adaptation in two specific issues of constitutional and criminal relevance: the police custody or pretrial detention inMorocco and the level of severity and repression of the penal law.

In Central Europe, especially in Hungary and Poland, over the last years there are serious problems related to democracy, constitutional balance and the rule of law. In a short time, the illiberal political leaders put into practice an order that calls into question principles that form part of the axiological foundation of the European Union. This article explains why illiberalism has been so successful in this region and which techniques have been used to reinforce the political capture of various state institutions, especially the judiciary. The article also contains a critical analysis of the European Union’s attitude towards Hungarian and Polish illiberalism. The general hypothesis of this study is that Hungary and Poland have gone so far towards constitutional illiberalism, that it is extremely difficult to indicate the simple legal remedies for rapid return of these countries to liberal democracy.

This article analyzes the historical and political features of the development of women’s political participation and its special importance in the incorporation into the constituent process in Chile, where for the first time in the world there will be a constituent body elected with parity. We will analyze and explain the social contract and the participation of women in decision-making (the development of women’s political participation in the constitutional history of Chile); the incorporation of the quota law in 2015 as a precedent for parity; the difficulties that have had to overcome and the legal devices used to obtain a guaranteed quota in the future constituent body, to —finally— point out some central organic and programmatic axes that must be taken into account in the next constituent process to incorporate, thus, the gender perspective in the future constitutional text.