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Prova Inglês mestrado
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© © All Rights Reserved
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/ 46
PROVAS ANTERIORES |
INGLES * Universidade do Estado do Rio de Janeiro
vi
beers Born
‘a, Hee Programa de Pos-Graduacdo da Faculdade de Direito da Uerj (PPGD) aoe hee
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MESTRADO E DOUTORADO EM DIREITO
PROVA DE INGLES INSTRUMENTAL — 2018/2019
ROVA DE INGLES INSTRUMENTAL ~ 2018/2019
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Crimes against humanity and the principle of legality
Joan Sénchez, Doctor in Law, University of Barcelona
Today, nullum crimen, nulla poena sine lege [no crime, no penalty without a law”), the fundamental
basis of any social and democratic State of Law, is not just a principle of justice but also an
internationally recognised human right. Thus, the prohibition of legal retroactivity should be considered
4 fundamental principle of criminal law as well asa customary and peremptory rule of international law
‘hich must be observed in all circumstances by national and international courts. And it is precisely this
transformation of the principle of legality in cule of law which has led to fundamental and progressive
change in the method of creating and applying intemational criminal law,
Nownene
‘The primordial characteristic of the principle of legality in international criminal law is that it bas freed
$ itself of one of the principal components of the continental conception of domestic criminal law: the
10 requirement for the absolute reserve of formal law through its strict written expression.
11 In its place, at the international level, itis considered sufficient for the guarantee aimed for with this
12 Principle tobe fulfilled thatthe prohibited conduct has been predetermined witha high if not complete
15 = level of specificity through an international standard, whether ths is based on conventions, originates
14 from custom or comes from the general principles of law. In this sense one cannot talk ofthe retroactive
15 application of law. This coutd certainly be understood as a degradation of the principle according tothe
16 parameters of continental criminal law. However, as Fernéndez points out, “case law emphasises that
17 the principle of legality cannot be interpreted in the same way in the domestic legal system and in
18 international law, sine the formation ofthe rules is very different in each system and, as against internal
19 ‘law’, which is formal and precisely dated, at international level, the categorisation as a crime can be
20 established on the basis of treaty, custom or the general principles of law”,
21 This more liberal notion of the rule of law, in which custom and the general principles of law are
22. accepted as sources, excluding the traditional requirement of lex seripta [writen lav", and more in
28 Tine with the nature of intemational law, becomes evident inthe prosecution and punishment of gross
36 violations of human rights, ofthe greatest offenses tothe inherent dignity ofthe human being, as is the
25 case of crimes against humanity.
26 The whole course of the definition of crimes against humanity, beginning from the very core of the law
27 of war, would over the centuries progressively turn into the possibility of calling to account those who
28 attack the civilian population, considering such action to be eriminal conduct related to the law of was
2. and armed conflict. Thus it was understood and applied by the International Military ‘Tribunal in
30 Nuremberg. In its judgments (...] this tribunal opened the customary path which has led to the
31, recognition in conventions, institutions and case law of crimes against humanity, and while this has
32 provoked! controversy thas at the same time shown tat there i an international consensus concerning Universidade do Estado do Rio de Janeiro
' # Faculdade de Direito Beeen
‘Programa de Pés-Graduacao da Faculdade de Direito da Uer| (PPGD) ——imatmaracuotaenm
33. the criminalisation of such conduct and its method of progressive conceptualisation, the gradual
34 identification of the contextual elements, of the subtypes and of their ability to adapt to specific contexts.
| 35 [J In recent times the conversion of fa) general notion of crimes against humanity into something
36 more solid, through a formulation which is more functional and more tailored to each situation and
37 jurisdiction, has enabled to be really enforced before both international and domestic courts. In this
38 sense one could argue that the main achievement of its international positivisation has not been so much
39. the deterrent effect of the rule — as has been shown repeatedly in history — but rather to provide, in a
40 certain way and with the methods of international law, guarantees of legal security both to the
41 perpetrators and the victims of the crime,
42 Inachieving this objective, the establishing of a principle of the rule of law consistent with the specific
43 nature of international law in general, and international criminal law in particular, has played a crucial
44 role. [...]
45 Without going into the complex study of the customary and conventional conceptual development of
46 this category of international crimes, we may emphasise its nature and how the fact of belonging to jus
47 _cogens and possessing distinctive characteristics which follow from that origin, have influenced the
48 decisions of the Inter-American Court of Human Rights (IACHR), which has declared the nullity of
49 pardons and amnesties on the basis of pre-existing customary norms, even when these have not been
50 incorporated into domestic law. This has allowed, in consequence, the prosecution under international
51 lawof crimes that occurred in the past, inasmuch as it has had the effect of obliging states to fulfil their
52 obligations to investigate, prosecute and punish the perpetrators or instigators of human rights violations,
53 regardless of the date of their commission and their internal judicial classification, and to satisfy the
54 rightto truth, justice and reparation of victims and/or their next of kin, as fundamental pillars for building
55 peace in Latin America.
SANCHEZ, J. Crimes against humanity andthe principle of legality. In:__. Inter-American Court, Crimes Against
Fumanity and Peacebuilding in South America Barcelona: Instit Catal Iterasional per fa Pau, 2010, Available a:
itp: papers.sm.comvsol3/papers.cfinabstact_id=1884160>. Access: Oc. 4 2018, Adapted.
QUESTOES
1. “The primordial characteristic 6f the principle of legality in international criminal law is that it
has freed itself of one of the principal components of the continental conception of domestic.
criminal law” (linhas 8 ¢ 9). Comente sobre a transformago do principio de legalidade no
direito penal internacional.
“In recent times the conversion of [a] general notion of crimes against humanity into something
more solid [...] has enabled to be really enforced before both international and domestic courts”
(linhas 35-37). Identifique o(s) efeito(s) produzido(s) a partir desta solidificagao da nogiio de
crimes contra a humanidade para o direito internacional.
3. Com base no tiltimo paragrafo (linhas 45-55), descreva como a Corte Interamericana de
Direitos Humanos foi afetada pelas normas do direito internacional e qual a consequéncia disto
para a América Latina, P@% Universidade do Estado do Rio de Janeiro oy,
® Faculdade de Direito
vena
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Las ~WESTRADO E DOUTORADO EM DIREITO |
PROVA DE INGLES INSTRUMENTAL ~ 2015/2016
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Pleading Gulty or Going to Trial: Pros and Cons
August 15, 2015
http://www. hg.org/article.asp?id=36359
When a criminal defendant pleads guilty, he or she is confronting the case face-on. This means
that he or she will be able to resolve the case more quickly than if he or she waited a year or more
for a criminal trial. Another advantage of pleading guilty is that the expense for a lawyer is
generally less when the lawyer does not have to go to trial. For someone who anticipates that he
of she will be found guilty by a jury, saving thousands of dollars is a real consideration
While pleading guilty, the defendant, represented by legal counsel, goes through the process of
plea bargaining. This process involves the criminal defense lawyer and the prosecutor reaching an
agreement as to the sentence that the defendant should receive. In exchange for pleading guilty,
the criminal defendant may receive a lighter sentence or have charges reduced.
Additionally, pleading guilty avoids the uncertainty of a trial. Juries can be unpredictable.
Prosecutors may uncover additional evidence that can make it more likely for a jury to convict the
defendant. Since trials are very public ordeals, pleading guilty avoids most media attention and
does not subject the family to unwanted attention in the same way that a trial would,
There are certain risks associated with pleading guilty. For example, innocent people may be
subjected to criminal punishments, such as having to go to jail and pay fines for crimes that they
did not commit. Furthermore, they will now have a criminal record that follows them for the rest
of their life.
‘The judge is responsible for sentencing. If he or she does not like the sentence suggested by the
prosecutor and the criminal lawyer, he or she can generally reject it and impose a longer sentence.
Going to trial also has several advantages. For example, going to trial buys the criminal defendant
more time to prepare his or her defense and spend time with family before potentially going to
jail.
Going to trial and receiving an acquittal is the only way for an innocent person to have justice. This
is also the only way for a criminal defendant to escape any criminal responsibility or a criminal
record
Another benefit of going to trial is that the criminal defendant receives all of the benefits of the
United States Constitution. He or she is presumed innocent during the proceedings. The
prosecutor has the burden of proof of proving each element of the crime beyond a reasonable
2 y
(3 Universidade do Estado do Rio de Janeiro
Fis = Faculdade de Direito
vERs
vall: ‘s_ Programa de Pés - Graduacio CEPED
b Seratanraanemebes
doubt. Police misconduct or a failure to follow rules can get evidence suppressed so that it is not
used against the criminal defendant at the trial.
On the other hand, defendants who decide to go to trial place themselves in the precarious position
of putting their lives in the hands of a jury and juries are often difficult to predict. They also face the
maximum penalty for a crime. Criminal defendants may either have a public defender, often
bombarded with other cases, or a private attorney, who may charge significantly more for going to
trial
Questo
Identify three pros and one con for pleading guilty in court. (4 pts)
Questo 2:
Describe the process of plea bargaining. (3 pts)
Questao 3:
List two advantages and one disadvantage of going to trial. (3 pts) if Universidade do Estado do Rio de Janeiro a,
= Faculdade de Direito
3
‘nT g8 Programa de Pés - Graduacto CEPED
‘ Cran dr Pease eo
WESTRADO E DOUTORADO EM DIREITO
PROVA DE INGLE!
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GCHOQ’ chief accuses US tech giants of becoming terrorists' networks of choice
“The Government Communication Headquarters (GCHO) I a British Inteligence and security organlzetion responsible for providing
signals intelligence and Information assurance to the Betish government and aemed forces.
The Guardion, Monday 3 November 2014 22.22 GMT
bhttoi/wwvwtheguardian.com/uk-news/2014/nov/03/privacy-gchq-spying-robert-hannigan
Robert Hannigan, head of Britain’s surveillance agency, has accused US technology companies of becoming
the command and control networks of choice for terrorists. He states that a new generation of freely
available technology has helped groups like Islamic State (Isls) to hide from the security services and
accuses major tech firms of being in denial, going further than his predecessor in seeking to claim that the
leaks of Edward Snowden have aided terror networks.
In the same piece, Hannigan says Isis differs from its predecessors, presenting an even greater challenge to
the security services. He writes: “Terrorists have always found ways of hiding their operations. But today
mobile technology and smart phones have increased the options available exponentially”.
Hannigan asserts that the members of the public "know? the internet grew out of the values of western
democracy and insists that customers of the technology firms he criticizes would be “comfortable with a
better, more sustainable relationship between the agencies and the technology companies.” Heading
towards the 25th anniversary of the creation of the World Wide Web, he calls for a new deal between
democratic governments and the technology companies in the area of protecting citizens,
Among the advocates of privacy protection who reacted to Hannigan’s comments, the deputy director of,
Privacy International, Eric King considered disappointing to see GCHQ’s new director refer to the internet as
@ command-and-control network for terrorists. King added: “Before he condemns the efforts of companies
to protect the privacy of their users, perhaps he should reflect on why there has been so much criticism of
GCHQ in the aftermath of the Snowden revelations. GCHQ does need to enter the public debate about
privacy - but attacking the internet isn’t the right way to do it.
‘The Electronic Frontier Foundation (EFF) meanwhile rejected the notion that an agreement between
companies and governments was needed. EFF director Jillian York argues that a special deal between
governments and companies isn’t necessary since law enforcement can conduct open source intelligence
on publicly-posted content on social networks, and can already place legal requests with respect to users.
Furthermore, allowing governments special access to private content is not only a violation of privacy, it
may also serve to drive terrorists underground, making the Job of law enforcement even more difficult. % Universidade do Estado do Rio de Janeiro
vis Faculdade de Direito
4, Io Programa de Pés - Graduagio Boe
. Perro
Questio 1:
Describe Hannigan’s attitude toward US companies and Indicate the potential challenge posed by
communication security. (3 pts)
Questo 2:
Describe Erie King’s reaction to Hannigan’s claim and explain how, in King’s words, to deal with
privacy in the current scenario. (4 pts)
Questo 3:
Describe Jillian York's standpoint on the issue and indicate, according to the text, possible consequences
for legal State survelllances. (3 pts) Universidade do Estado do Rio de Janeiro
Faculdade de Direito
=
viRs
‘np Programa de Pés - Graduacéo Beep
a Soest
Questo 1:
Describe Hannigan’s attitude toward US companies and indicate the potential challenge posed by
‘communication security. (3 pts)
Questio 2:
Describe Eric King’s reaction to Hannigan's claim and explain how, in King’s words, to deal with
privacy in the current scenario. (4 pts)
Quostio 3:
Describe Jillian York’s standpoint on the issue and indicate, according to the text, possible consequences
for legal State surveillances. (3 pts)
S. 4 ‘a Universidade do Estado do Rio de Janeiro
oehs ® Faculdade de Direito
%, ot of Programa de Pés - Graduagio
‘Sesto
MESTRADO E DOUTORADO EM DIREITO
PROVA DE INGLES INSTRUMENTAL ~ 2013/2014
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International Law? U.S. Military action in Syria is actually prohibited by the UN Charter
By David Davenport
September 2013
hnttp://www_forbes.com
While everyone seemed focused on whether President Obama needed congressional authority under the
USS. Constitution to bomb Syria, there was surprisingly litle discussion whether such an attack would be
proper under International law, The realty is that much of international law isnt really “Iaw’. There Is no
world constitution to frame international law, no powerful Supreme Court or legal system to define and
tenforce It and no global police force to arrest and detaln those who violate the law. It would be more
Accurate to say that international law isa set of norms that countries agree to follow, at least when it’s in
thelr interest to do so.
But isn’t there a law against the use of chemical weapons? As with much of international law, the answer is.
“yes” and “no”. Most of international public law is a matter of treaty and there Is a 1925 Geneva Protocol
‘outlawing the use of polsonous gases in war (not domestic conflict}. There is also an expanded 1993
Chemical Weapons Convention, but Syria is not a party to that treaty. This Illustrates one of the real
problems with international law: countries most likely to violate it don’t agree to It In the first place. Some
argue that using chemical weapons violates “customary International law,” a fairly soft concept and one
that would be tough to use as a basis for missile strikes by one country against another.
‘This ralses another big problem with International law: who may enforce It? Even if Syria had signed a
treaty agreeing not to use weapons, could one country on its own take military action against another
because of a treaty violation? Here the answer is “no.” Although the U.S. Is sometimes referred to as the
world’s police force, it usually intervenes only at the invitation of the host country, or as part of a pact of
self-defense with other countries in the region, Neither of these is the case with Syria, and so the U.S. may
not unilaterally enforce an international treaty or norm.
To put an even finer point on it, U.S, military action in Syria is actually prohibited by the United Nations
Charter. There are only two circumstances in which the U.N. Charter permits the use of military force by
one nation against another: a case of self-defense, or when authorized by the Security Council “to maintain
or restore international peace and security
‘Thus, the bottom line is that if you want to undertake military measures against Syria or any other country
for its use of chemical weapons on its own people, international law Is part of the problem, not part of the
solution. President Obama and Secretary of State John Kerry are left with the thin argument that what they
propose Is “legitimate” even if it isn’t actually “legal.” And how do they establish such legitimacy?
Presumably by getting other world powers to agree or by persuading Congress to pass a resolution from
the E.U. statement of concern, This Is how NATO authorized bombings In Kosovo In the 90's—the major
world powers agreed (or agreed not to disagree) that this was the humanitarian and right thing to do, even
though it violated international law. Such are the vagaries of international law, when what is illegal may
nevertheless be legitimate, and when what may well be best is in direct contravention of international law. Faculdade de Direito
Programa de Pés - Graduagio Beare
trata fea
Universidade do Estado do Rio de Janeiro
Ae * sg
Questdo 1:
Describe the author's view regarding the role and status of international law as applied in the current
world scenario. (3 pts) ; fe
Questio 2:
Indicate the criteria adopted by the United Nations to allow for the use of military force worldwide
and justify, according to the text, the UN prohibition against a US military strike in Syria. (4 pts)
Questiio 3:
Explain the controversy posed by international law in terms of legality and legitimacy of military
measures against the use of chemical weapons. (3 pts) 7 -- Univéridae do Bata do io de Janis @
ALSes. tatlate Direc
SATS | Programa do Pés - Graduagto
Fanetiaarocato
WESTRADO E DOUTORADO EM DIREITO
PROVA DE LINGUA INGLESA INSTRUMENTAL ~ 2011-2
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JURIST ae Sri Lanka: Rights group urges UN investigation into alleged war crimes
By Ashley Hileman
Wednesday, September 07, 2011
uip-/jurist org/paperchase/2011/09/
“Amnesty Tatemational (Al otticized Sanka’ investigation into allegations of war crimes
comiited during is 26-year civil war with the Liberation Tigers of Tamil Eelam (LTTE) an urged
SRN to conde an independent investigation to ensure justice for the vitims and their fies
‘The report tthe Lessons Learnt and Reconciliation Commission (LLRC), established by:
Te seat president in 2010 to adress allegations of human rights violations during te last
the can Peni ineffetive in nearly every way and doos fot meet international standards on
or etc of way. Instead, Al contends thatthe above Commission exists merely o Pdees®
Sony grenine and ilencs internal eis. Ti farther alleged that thas falled to inves ane
{ntematons Pry that would help to establish the idettes of perpetrators as well a8 protest ‘he
‘witnesses from threats and retaliation.
Sr rise to such shortcomings, Al desires an independent investigation for two oer
seasons, ih it deems racial (1 0 protect the global priniple of acogunabiy for international
creer nd prevent the establishment of a negative precedent for other Stats Sa! may emulate Sti
carn aricpept to flout international Taw so egregiously; and 2) to help the process of recene ation
a eps though findings issued by a neutral ouside body, fre fom perceptions of it, that
ins oc the tut and provide justice fr the crimes commited by all ides, needing te LITE,
Government fores and thei afilaies. Furthermore, AU's Asia Paciic Director as well as members of
sea Rights Watch wamed that the international comminity "must not Po deceived into viewing
Bama en eaible replacment for an international inquiry" and that this i the only way the
process of post-conflict reconciliation can begin to move forward,
Oooh the Sif Lankan government ennounced tet i will ot tke responsi for
tioged violations of the laws of war. The Ministry of Defense releasct report, entitled
Te os aton Factual Analysis", where fr the ist time it is admited at ie military
used civilian deaths near the end of the civil numerous ale
LTTE against civibans including using ie ays It too)
teps to avobd cvilan casualties. Secretary of Defense, in reloasing the reper st “The false claims
eps egatons made by Tamil Diaspora together wit the LTTE international etvork will be laid to
fest with the release of the factual analysis reports".
ae a rights organizatons allover the world ejected the Yeport fori ek of
discussion over the military's responsibility for alleged war crimes suc as Feauctt indiscriminate
Ring of hvlan ares ad executions of LTTE fighter. Nevertbeles, the ri Lankan government,
rere aNicason during the conflicts final months, unconvincingly claims, no
qy | . {Universidade do Byrado do Rio de Janeiro @ i
if Faculnde de Dirt
“syle Programa de Pos - Graduagio * CEPED
ak
responsibility. This is just the latest and glossiest effort to whitewash mounting evidence of
‘governinent atrocities during the fighting.
QUESTIONS:
1. Deseribe the reaction caused by the Sri Lankan war-crimes investigative process on intemational human
rights advocates and the national goveinment’s standpoint on th issue. (3 pts)
1, Indicate the procedial flaws detected by members of AI and justify their claim for an external non-
biased investigation. 3 pts)
1, Establish the relationship between the repercussions of the Humanitarian Operation Factual Analysis
‘eport and the idea conveyed by the Jast sentence in the text: “This is just the latest and glossiest effort
{0 whitewash mounting evidence of government atrocities during the fighting”. (4 pts) Raduldade de Direito
Universidade do Hslado do Rio de Jameira
+ Pagerama do P6t~ Graduiagho
FIESTRADO DOUTORADS, EM DIRETO
PROVADE LINGUA, ONGLESA INSTRUMENTAL = 3010/2044
>" Leia com atengao ° fexto abaixo, & responda aS questées GI Portugués.
Favor usar caneta e escrever de forma legivel.
Mores and Aequlsons by Foreign Com
“August 24, 2010
Asem sc Grow - MMLC Marple Too
2 Margret anio~ 19619
jes in China
since. China's adoption of the "OR oo" pala and erity into the World Trade Organization
wo), merger and acausihet Ot tes in Cina have Become te seingly attractive alternative. fh
(won investors as compared ve rock vestment, Dosh Te ‘Gopal economy isis, Ching fl
Roles largest merger and ed ition market. Therefore, “pase vests aro inreasinaly ‘using merger
fol acauietion transactions 1 viable or expand thei Chinese ‘business operations
aulehreased pace of forelOhy Mer ard acquisition activities hae Permtrbuted to the reetructuling
of the Chinese foreign mere lan guiston regulon sveiet ras erally speaking, the) Chinese
government is taking a Poses grade towed foreign MerGOTS voter. qustione in many areas, 4°Pe
neugere and accuistions: PY foreigners in, China are ‘ekemined and approved PY 8 number of
ferent government offices: mith the Ministry of COM! the thain approval office involved. Legal
CMoutations on strenglhening ino Approval, Recieve ere control .2nd_ Taxation
reguieration of Foreign tundes, ne Ares apply toa caso WN gn vestor acquires eat In
Aaiietic enterprise, and such “domestic entorprise 18 fe eigrrinvested busine
88.
ic or Garalogue of Industies for ‘Guiging Foreign invest ore trom, ie to:time: dee
industries into three basle indgories; encouraged, 2a fed, and prohibited. ‘eoreign-invested enterprises
‘resting in an area listed 98,7 ores uraged” industry are NST allows orysh wholly foreign-owned
inveranes, Industries related 1° “enceommental and eneray-S2¥i90 Hospnofogies, for examle, fealre inthe
‘encouraged category.
age caver a domestic enter foreign investor. must sais requirements of the laws,
administetive regurations, 8nd ules concerning the Mjualfictions of iavestOrs, ‘and comply, with the
provisions of the Industry, ong and Environmental Prokorts ay (EPL. When a foreign investor insnds
Prowsrablich a foreign-funded enterprise by merging sion fe enerpise, the deal, PACE to analysis. bY
1 oe ee forcermant agent, wl De Pripject to approval by the ie erration ard Approval ORCS vf, on the
ther hand, the takeover of & A presto enterprise DY 2 reign, Exatfor involves the transfer of state-owned
as
property rights and eo emagement of state-owNed, Sroperty Fights, 2 set Of verti rules wit come ike OY.
properyrany foreign Investors yang at acquiring a Chinese Business are often intially daunted by the
rab of ragmations end 8 a required, in order tO He
vee eommence controling the ‘company's bi prove penton - However Sateen p
That these are welrtrodder. intch are becoming more ‘transparent and prsreTabie” rowada
that fetes, early communioaen aececourting advisers, 28 Wel 9° ay government officals,
oval of a deel vith avoidance
ental for the approval of ‘of mine fields.
QueSsTOES.
1 identinque o objetivo do artigo e SoU pdblica-alvo, © descreva @,posig&o do autor em felaga0’ 20
‘ssunto, exempificande & rtraves de informages "sontidas no texto: (3 pts)
1. Explique como & ‘Lei Chinesa trata das ‘ransagees comercials. ‘eltas por estrangeiros & estebelega
ere ehaga na aplicagso das Fi ‘corporativas pelo Govern? anes em relagae a, empresas privadas
e aestatais. (4 pts)
in, Explicit a fea expressa Tm trecho abaivo. (9 pis)
Exo'ancloss, oary communica, abaagal and aocounting aves’ weil as key goverment
Meera is val forthe epprovel Of & wih leg avodance of mine fields. ‘cf inhes finals do artigo).
“AO 10
15
20
25
30
35
Univérsidade do Bstado do Rio de Janeiro.
4% Faculdade de Direito :
onto Programa de Pos - Graduagio i ‘gs CEPED
pore
TESTRADO E DOUTORADO EM DIREITO
PROVA DE LINGUA INGLESA INSTRUMENTAL ~ 2009.2
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Clean Water Restoration Act Unconstitutional?
By Alex Basilevsky
‘The Pacitic Legal Foundation recently Issued a press release puting forth the argument by attorney
Reed Hoppér that the Clean Water Restoration Act (CWRA) is, uriconsttutional. Mr. Hopper is the
Principle Attorrey.for the Pacific Legal Foundation. Is Mr. Hopper correct? Mr. Hopper. raises two.
compelling questions in his'teétimony: 4) whether the inclusion of nor navigable waters within, the
) WRA exceeds Congress’ authority under the Commerce Clause: and 2) whether the definition of
‘waters of the United States” which éxtenids "to the fullest extent that these watets.:.are subject to the
legislative power of Congress under the Corititution.” Is an effective abdication by Congress of its
legislative . responsibilties.. As:.Mr. Hopper points out, - they Supreme Court. has held
We have identified three broad categorles of activity that Congress may regulate’ under its commerce
power. First, Congress may regulate’ the use.of ie channels: of interstate .commerce. Second,
Congress is empowered 10 regulate anid protect the instrumentalities of interstate commerce, or
persons or things In interstate commerce, even though the' threat may come only fromm intrastatee
activities, Finally, Congress’ cornmerce authority includes the power to regulate those activitios having
‘2 substantial relation {o interstate commerce, 1e., those activities that substentially affect Interstat,
commerce, ‘
Under which of these three categories, if any, do non-havigable intrastate waters (and activities that
‘effect them) ft? Mr. Hopper contends that they do not fall within either of the first two categories and
‘thus must fll within the third ~ that they “substantially affect” interstate commerce — for tha CWRA to
be constitutional. Therefore, Mr. Hopper makes a compeling case that they do not, as they have
néthing to do_with interstate economic activites or any ‘other thing. of the’ sort
‘The discussion over the constitutionality of the CWRA focusas on water as a means of conveyance,
‘ike a’ road or rail line. This is understandable in the context of the Clean Water Act's reference to
“navigable” waters. But ever increasingly water is considored ~ first and foremost — @ resource.
- Further, it is-a resouitce.that.is regulanly. shipped across state Jines by-a.mult-bilion.dollar-bottled.water
industry. Its also a resource that the States themselves are fighting over, sometimes to the point of
ligation. Water has become @ commodity. And, it is a commodity that Is crltcal to innumerable
industries,
It is not hard for me to imagine that activities that affect apparently “intrastate” bodies of water-or
wotlands would have a deleterious effect on the availability of water within a State, and thus affect the
pattern of conhmierce relating to.~ or dependant on ~ water. Any individual instance may have-a
negligible impact overall, but that is Inelevant. f water is viewed as a pervasive commodity, then-an
argument can be made that a regulatory statute governing its treatment boars @ "substantial relation’
to commerce,
hitpithewatertaw.blogspot.com/2009_06_01_archive.html
AA * Universidade do Estado do Rio de Janeiro
58 Faculdade de Direito
on “of Programa de Pés - Graduagio
Describe, in’a-single paragraph (up to 10 fines), Mr. Hopper’s. view on the Clean Water
Restoration Act. (3 pts)
|. Relate Mr. Hopper’s reasoning with the ruling by the Supreme Court. (4 pls)
|. Explain Mr. Basilevsky's standpoint in relation to the issue. (3 pts)
ho “: (GRIVERSIDADEDO ESTADO DO RIO DE JANEIRO
‘MESTRADO BM DIREXTO
PROVA DE LINGUA INGLESA INSTRUMENTAL ~20062.
NOME:
> Lela comatengioo texto abalxo, responda is questbes
> Favor usar caneta« escrever de forma legivel.
Jury Selection Begins in Terrorism Trial
‘By MIKE ROBINSON
“The Astocaled Press ‘
"Threay, October 12,2006; 11:23 PMA
CHICAGO =. Jury selection began Thursday in the trial of two men charged with bankrolling
‘terrorism aimed at toppling Israel's government. U.S. District Judge Amy J. St. Eve stid she hopes to
hhaye a jury chosen Monday, with opening statements set for Tuesday or Wednesday.
Muhamniad Salah, 53, from suburban Bridgeview, and Abdelhaleein Ashqar, 48, of Alexandra, Ve,
‘are charged with operating a 15-year racketeering conspiracy to supply the Palestinian terrorist group
Hamas with money to carry outa éampaign of murders and kidnappings.
Salah-was arrested by Israeli soldiers in January 1995 at a checkpoint as he sought to leave the Gaza
Strip. The saine day, agents found $97,000 in cash in his room at a hotel in East Jerusalem, Under
interrogation, he admitted that he had visited Hamas military leaders and distributed money to them:
He pleaded guilty and served five years in Israeli prisons.
‘The statements he made in Israel 12 years ago now are a key part of the evidence against Salah, The
‘gets who. interrogated hin} are expected to testify at the: new trial ina courtroom cleared of
‘spectators while wearing disguises and using aliases. Prosecutors say the security measures are resded
to preveni terrorists from taking reprisals against the two Israeli agents and their families,
But Salah defense attorney Michael , Deutsch said the admissions his client made were the resilt of
{orture and should not be in evidence. "He.was tortursd-for 14 days," Deutsch said. "He was deprived
Of sleep for 45 ofthe first 50 hours, tied to a small hair, hooded and isolated.”
According to the indictment, thousands of dollars from a number of Ashqas bank accounts was
funneled overseas to pay for Hames operations. Agents also found a cach of Hamas documents when
they searched his home.
~~Ashqar's-attomey;-Willianr Moff; secured the December wequitat of prOTessor Sai
number of charges tht he helped lead the Palestinian Islamic Jihad terrorist group.
Faia oi ~
‘The Florida jury deadlocked on other charges against al-Avian in what amounted to a stunning defeat
for the federal government,
“Not much has been said about Dr. Ashgar's defense, and I'd like to Keep it that way for a few more
days," Moffitt told.a:reporter Wednesday. "But I een guarantee you that we're going to have some
serious fireworks.” obsstiONS: 6 99)
Deseribe the nature of the indictment against the two men,
11. odiate Sal's past charges and his defense allorey's allegations in the present cas.
Soe eee
at i ‘GNIVERSDADE ‘DO. ESTADO DO RIO DE JANEIRO
<"RRSTRADO EM DIREITO ~ 2001
PROVA DE LINGUA INGLESA INSTRUMENTAL
y a N
GRAD:
(OMe,
® _Leia com atengiio o texto abaixo, e responda as questbes en Portisgués.
9 “Favor usar caneta ¢ escrever de for val
‘Access to Justice: The Problem Defined
y en peopie ak about “ase to juice”, they may mean many clitrent things, Ot Ey
Seca a goal called “Justice”, and assumes further that.some group or type of person ving
ina 90% . fd the dort ution cloned, oat est 00 fo move on Hinges. The ways WD
jastice is denied are various Funtice dosta foo much, ori, for whatever reason, 100 difficult, t00 lien, oF
{00 slow for the group or type shut out, The sufferers may be, it ‘general, the'poor, or the lower-class, oF
+e. ot nad antaged par of ts popundin. in some wocctics, it in aracink asinotity tha iss to bo
Scare hom jrion, Or t may be an etnio group, foreigners, “Gastarblter”, or simply the working
Ne eee teas have trouble reaching forthe lovers of the law, i one ofthe root Mens,
ing the “public interest” law sxovemont in the United States. .
mn theory, any ‘class of group cas be denied access to justice. In diotatorships or tear eins
srtinry people 4o not have the right to speak out and claim jstice aginst those in ower, not Nihon
criming Gage is: in some counties, most nobody has fll access twit wt ist the bral eases
saan tne tx justice; vgn tho courts can be toadies of the sat. Justice, we must remember, is word
eran metaegs, Tn some countries, the norms themselves may be wrong oF unjust ue reals the
See Narerrberg lawa of Hitler's Germany, or the laws of apartheid in South Aftie. It is hard to
sa the lin between tile of justice in the procedural sense and fhitire of justice in the substantive
ae Mtoe ofthe pla, schonos and reforms (..) 6 about procediral judtce, av this is tho cntral
SSuoee of most of the studies. But substantive reform is uot completely neglected; sometimes the two tre
__1f-some group lake nscess to the legal syatem, reform oan therefore come about in many Was
‘Sometimes the public “information it nee
Famuly is to give that knowledge tothe public (..). Secor the structure, of legal proces can be changed
Fae ee ae easier, Provedures can be simpiled, costs driven Gowa. Jf justive Were cheap enough, the
poor or disadvantaged could open the door of justice by themselves. There are many plans and eshenics
Of procedural reform, Some are geaeral, some specific to certain courts or insintions, Third, without
Sartcuanly reforming its prooedure, the goverument (or pevate chaity) can try to provide speci) help
[Br the poor, The poor cén be given privileges — excused from costs and expenses, for example. (.) The
ayers for the most part — who wil bring levaults for the 7
Sefand their ight, In tho second category we oan put the various schemes to destroy the od, sti, formal
processes and replace them with looser lay justice; in the third category we can put the many plans £0
Loy
"a reacls the-palace-of justice-If-s0,-tbe-obsious.. |.
A
48 “fe 5 ~“GiRiVERSTDADE DO ESTADO DO RIO DE JANERRO :
Ue : MESTRADO EM DIRETTO- 2B 6
PRUVA DE LINGUA INGLESA INS SUMENTAL
ie a GRAU: v
NOME:
“@ Leia cai dtr 0 texto abaisa,¢ responda as utes én Portugués:
"es Favor isab eanieta ¢ escreier de fornia legivel LEA att
“1S SS pmnCiNG Tae APPLICABLE LAW
“DEXBRMMONG, THE APPLICABLE LAW
Ete eee
I. INFRODUCTION a as
§ BL Whenever state, and not federal,’ law is applicsble'to a case, -
ne ‘niceatlaw rule determining whichcetfin's Taw is to be weeds
ordinarily® is a-role of the law of the forum; liven if federal law,
a governs the’ cstise of action, state law? including state ennfiicis aw!
may apply to the case as a result. ‘of 6 reference to, or incorporation of it - :
ty the federal law : :
“1 3 in dtasing the appa aw, he ene anal ;
satin popromiy, or by impliation-—e umber of slope which are © 25 72 0
: «| Bilvase to the estice field of conflict of laws and to poling tq ae
“Fees Ai ia tap inte the hartraion of he wb 6° '
matter of or the issues inthe case (e.g: tort or contract, interspousal -
Jramunity as raising Sasues. of tort or family law) and of the nature of ‘i
| «ach fssue anil saether it ralses,n problem of procedure oF-of ‘wubetane: a
ca ete nary wl then beak to determine whithor the five to” a)
yp resolved presents & trué conflict or whether alee coniflict” exists 2
em Soeur
‘wily repo to the potentially aplicable fore role of lay £9.08 t
‘oak the uk of local law, appropiate? et
“ “Assarng asthe form's choiceofaw rule? on the eeue safer to
+ ye aw of aor fate or cot, im rot ea,
tape cholcetlaw reo rfar back the forum oF 2 Yo ‘hind :
nas celery) The court of the Yorum most at thi point dese ee
state oF etfaliow or otherwise consider this farther ceference, reno ee
‘ths fran apply the local law to which ite opm, fe. the fra's
Chofce-oflaw rule initially referred. .
v's be facatgn Law to which the forum's choice oflave rule refers, may
ceuipealy ditfor substantially from that of the forum on the ov
WBE teence trp fuodnmente silted fhe oROm SOS i
He earihe sovabied “public policy” eicepion may lead to 9 TSRVATO ” — ~ i
Srnly te foreign law. Mere differences betworn the lev 9 fora ;
2 orelgn lew aze not enough to rofure appliration: fact, if
aa ae ere aifferoace,s€ would bo likely thi Che case Presents ©”
ners Wemflce” One aren, however, where a diferent aye 716° o
Tents even though it doas not violate the forum's public policy, cORATIS Ale
There ceo ia, which thé foftim locks the judicial machinery OF, Pas
a ay io apply the foreign taw..‘The proper diapostion of these "7
rene taiver difficult. questions, foy instance whether i 9 more ;
viat prejudice in anicipation ofa 2 J. |
> Fabel t ‘Geewbere or whether there ebould be an adjudication on (GG
atfon of Jooal lew and:local remedies to approx iy applicable foreign rul
+ via inrodinudy do texto: 6 autor desereve alguns crtérios que determinam a aplicago
de leis federis ou de eatndunis. xplique a aplcabiidade das leis esaducis. 5 p3) +
2, “The inguy ill Hien seek to determiné whether the issue tobe resolved presents
‘rue conflict or whether a “false conflict” exists with respect to the potentially
(of law so as to make the use of local law appropriate.”
Pre pose pa informagao cantida no fragmento acima (parfgrafo 2), descreva a fase
final de agbittio pelo trina quanto & apliabilidads das lis Jocais. (7,0 pts.) :
3. Caso. a elbenigh do, fram lal quanto escola da lei a se: aplicada faga teferéncia
as leis de outros estidos ou pa(ses (eis aienfgenas), o tribunal ted oppes em relago 80
provetso de abitragem do cao, Sdeniqus os provedinento posstvels 2,0 pts)
+4—Detine-o-dispositivo legal coneciia coma “public poliey"excenio
expliqne o impasse ériado quaiido férins locais niéo.disp6em de mei
leis alienigenas. (5 pis.)
nt INGLES
LN CLES
‘FACULDADE DE DIREITO
PROGRAMA DE POS-GRADUACAO
MESTRADO E DOUTORADO
VAD. 7
INSTRUCOES
_.: 1+ Preenchet a FICHA DB IDENTIFICAGAO, em anexo;
2. A prova tera a duragHio'méxima de 2 horas (MESTRADO) e de 4-horas
(DOUTORADO), : ;
3. As provad. sero desidentificadas, apés esgotado © tempo. de sua
realizago, sendo ula a prova cuja folha de resposta contenha qualquer
forma de identificagao do candidato; .
4. As questfes deverdo ser réspondidas & ceneta em uma tmica oor (azul ov
preta); i :
SLE SF Read rasa Ett lool
38
Ay ti ‘enize’as plginas 333 o°
é o final do quarto
= by Tradea o trecho do texto cin ghexo, compresindi
334, sob o ttlo Sovlef Legal Theoly and Practice, a 2 a '| FACULDADE DB DIREITO.- UBRI
, : SELEGAO DO MESTRADO E DOUTORADO 2004
‘PROVA DE LINGUAS ~ INGLES
QUESTAO UNICA: TRADUZA 0 TEXTO ABAIXO
CRETNEY, 8. M. e MASSON, J. M. Principles of Family Law..London: Sweet &
‘Maxwell, 1997, p. 575/577
‘The Glen Ac 1989 deGiuc eM as "4 psapm and he age of eight
coy’? but 'nither-all ft provisions* nor otber laws relating to children ae
linked to the age of raj. Indeed, there is Jie conslitency in hs age
‘below which Jegisation cooeerning childrea applic. Cilren under’ It may”
ot b8 tated or enter etn shop thése under 17 may not buy cost~
howe! md thot! wor 16 may not ier trodbcs? or bay fsoworks or
[National Late tickets? At cons law!” and by stati! a chil's capacity
i no that ibe Js ng ingle way
‘on patents, poeple.
9; Paament has sought io protect ibe
a oT macrpuloe eal ad em Gel press
inky to make wi des? Thr ny aie ih ey i
dren sccess (0, tbinga™ which may be equally amoabing for alts bu jis
thought tinsooptable (oF Impréscabl) 15 restrict th Mibexty, of adults. in
‘einer ohety. Ia recognition of the Javestment chile represent for
secety paternalistic provisions have been ensced-which ao inde io hep
‘young peopl reach tbe fall pote! and to yroict them fron ibe wort
‘consequences of thelr own filings" Young people rp alo xen at threats
And have been controlled forthe good of Sula nthe bli that hey are
dangerously ineaponsile oc because cr labour might lead w a reducsion
fof nd wage rates”
Most children” live for a Jet par of thee eildbood with their parents;
pres are able to contre tke ations and determine tbe experiences atleast
‘of young children. The reaoaship between parts andthe sate, Le. te
extent to which the aw allows peat fcedomn to choose bow thei children
‘E:0w vp is impoitant, Originally pares’ cootrol of young children was
x | Tecopnist by he cominon law, mbject only to eximiras penalties for abuse ™
iowever, pafealal failure to protec chilrea from hart exployrment condl-
tions in the nineteenth centy Ted to the latodaction of legislation which
protected children and conseqpeatly linited paretal scion.” Farber logsla-
tion enabled liddcea to be removed fro parats who il-aeated them.”
ato has 4 role bu child protection, the
has hoe repoatedly debated” The Cildren
‘Act1989 now provides iat th stats may intervene to protec cide yhero
tiey are suffering (6¢ Wkly to sulle) significiot Niarm.™ "The evelopment
of the-weliace sate ad au inpactoa the ives of cilden taking improve-
‘mes in health and nuttin availabe to aL? Changes inte vein secuity
in the 1980s, restritions on Jocal goverment expenditure ant eco-
cd severely om chien More children that ever...
~~ alane"ae HOW expecting the cooseqoeaces of the breakdown of tir
areas" relatioaship aud the poverty and disruption this often tings.”
Chirets ves ace thy shaped by tir parenis and by Ube sate which
oawols and supports them and their pares. The Jaw sets the balance
Detween the stle and the family an also, within the farally, betwee tbe
pients and the child.
‘The extent lo which childrea have becarecopniscd and treated as diferent
“from dit bas vated over tim’ sod between social classes ™ In meicyal
times, eildren beyond infsocy worked aod socaised alongide advlis wo
that iUhat been suggested that childhood didnot exist at this time.” Late,
changes asociated with the Renaissance aod the Roformatioa Jato chile
‘being placed Sa “a ott of quarative"™ for education abd indoctrination
efor they were coesidessd Hitt join wl society. Indastialsation initially
“brvaght children into feetoriea working alongside thet pares but the danger
16 their health and thé threat they posed to adult employment lead to cam-
Balgus which resuled in thes excusion from the workforce.” The complex-
ity of modern life and society's expoctatons of young people inreased Ue
period of edecaion needed wo propre for i” io recent years, de lek of
eer Hi fee We anal s nieeed
20 » FACULDADE Dé DIREITO -UBRI
+ SBLECAO PO MESTRADO E DGUTORADO 2004 -ga0y
‘\ PROVA DE LINGUAS - INGLES. EE
QUESTAO UNICA: TRADUZA 0 TEXTO ABAIXO a
CRETNEY, 8,M. © MASSON, J. M. Principles of Family Law. London: Sweet &
‘Maxwell, 1997, p. 575/577 \
‘The Callen Act 1989 defses a, child as “a peripn under be age of cight-
259°" but neitherall i¢ provisions" por ober Inwe felabing to children ar,
Uinked to the age. of majority? Indeed, there x ike onsitency in the age
below which legislation conteming children applies. Clilden undet'18 bay.”
no be ttod or eae being ab? thie mader 97 may not boy cose
Sows an tow under 16 may ot tater tobi or bay frewora” 0
[Nasional Loiery tickets? At commtion law” apd by stist! a cild’sexpacity
inability to make wise decisis," Theze are minuy states which deny chil
dre scoess Jo things" which may bs equally damaing for adulus bot,
‘noo unacecplable of impenéteaba) 15 seett the liberty of edu in 9
Esme sblety. In recognition of ibe iavestwent children represent for
‘oct alnialite provision hae too canted which ar nine i hl ,
young pede reach tke full ptcatat ao prot them fren lhe wort
consequences of their own filings Young people are ala soon lets :
sol ve been contol forthe pod of wl in ve bel at tiey ae ‘
dangerously iscaponsibe or bocanse tcc Ibour tight lad to yodnction
of adult wage rates, 5
i
5
PERE
i
a
‘Act1989 now provides ‘hat th stats may lulezvenc to protect children where
they alfeog (likely to sala) in rk The sre,
* of the welfare state had axrimpact‘ed the lives of childvea diaking improve:
tes neal and muon wale eal Changes teeta eek
+ = a7 inh BOs, estos o oe govern eget wed oe —
‘nomic decline have inipected severely on childica.™ More children than ever
belo we now expending he cmmqueote afte oon of he
crt rlaoship nod th port) aad dpe Uae coe aes
Gites veg nog inp bya pen at Op 0
outol and sapyrts them heir pon, The ew ste the Woy
‘between the stale and the family and also, within the family, between the
"ton ae ea
5 The etn to which ein ba za eng a ened a iret 2
rom adults has ‘varied over time and between social clases. In medicval be
‘Uines,- children beyond infancy worked and socialized alongside adults so
ot iin been suggested at boo! dd not ext mete” Lae,
changes associated with the Renaissance and the Reformation led to children
‘eig pliced in" tort of goaranine™ for edscaon a indexation /
'eloe ey wer coudered Slo jois sd sci. Indutiaaton nial gh
“brought children into fctories workiog alongside their parents but the danger
15 ir lh tod th ret ype wsdl empties eae ;
Aigns which resulted in their exclusion trom the workforce.” The complex-
yo mode if ad sockets egecinbns o young pons ened
ES}
= BER 209 Dips
procs aot on Seq Apes suey -rweedope rela put
“sy ens ona 30. spine sg ay aed st OD
ce oak enn 02 EN 3
ap aed an BE
dated 3 aay,
ug a
P Voneouss oan drsesorrmeai. ©
swoanlersp 37. 3 ‘su:
ke eee 7 ‘ ®
scovide' lawyers for' pac: people chaiged with crime, the various legal aid buretus, programs to bring
pasl'eecvices to the citizen, anf the provision of reprekentation for aroun and oublic interests. including,
‘omewhat more bibtl), the development of the so-called “public interest aw”.
|” Another approach to réform i¢ to combing legal services and procedural reform, atid to’ go Reyond
‘hese to the deeper causes and cares of the ailment, Cappeletti (1976) and his associates call this’ the
jeceis-fo-justice approach, in which one exeines “the full panoply of institutions and devices, persoanel
ind procedures used to proceis, and even prevent, disputes in modein societies”. We can also describe &
till more thoroughgoing’ approich,” which, we miight-callhe power approach. Many reformers ‘are
Siisatisfied with the way power and wealth ate distebuted in their sooictis, end sotno think that only by
this distribution oan one effect real reform. To make’ access to justice “menningful”, Ralph
Nader (1976) has recently written, “it has to be part of a general redistribution of legal, political, soci,
‘and economic power...ctherwise...it may be creating expectations thet are betrayed when they come up
«(Excerpted from Access to Justice: Social and Historical Context by Lawrence M, Friedman ~ Professor
of Law, Stanford University)
1) No primeiro partgrafo do texto, 0 autor tece comentérios sobre o' dificil acesso & justiga. Indique
a base ideolbgica da recente mobilizagfo nos EUA para a facilitagio do processo. (2,5 pts.)
2) Com basé ita inforinagfo Sontida no Bagmento do segundo parégrafo: “Most of the plans, schemes
and reforms...are about procedural justice (..). But substantive reform is not completely
neglected (.,.)”, explique a coligagio dos dois imbitos. (2,5 pts.)
3) Reférindo-se ao empexho do governo em sinimizar os custos do judiiétio (perégrafb 3), 0 autor
eae vie ee Peet oan a ee ”
lente. 2,5 pts,
4) Contre © “access-fo:justice approach” com 0 “porter approach” descritos no paréigrato 4. (2,5
vis
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e (33 ap PROGRAMA DE POS-GRADUACAO stntcro SENSU
VERS & DAUNIVERSIDADE DO 2STADO DO RIO DE JANEIRO
ite of
PROCESO SELETIVO
MESTRADO E DOUTORADO EM DIRRITO - 2022/2023
EXAME DB PROPICIBNCIA EM LINGUA INGLESA
Prezecto candidato e candidata, eis a preva de proficléncia em lingua instrumental para leitura
nivel MESTRADO.
Conforme o edital, a prova comesaré as 13h. e tera a duragdo de até 02 horas, Entio,
recomendamos evitar rascunhos «jue possam provocar attasos e comprometet 9 seu bom
desempentho. Responda as questées propostas em Lingua Portuguesa, use caneta azul ou
Preta ¢ nao se esquoca de.assinar a lista de frequéncia. & possivel, ainda conforme o edital,
consultar dicionérios impressos, mas é vedado usar celulares ou equivalentes,
Da vocagao
Na vocagio para a vida esta inchafdo'o amor, initil disfargar, amamos a vida, (..
Lygia FayuindesTlles_ nN PROGRAMA, DE POS-GRADUAGAO STRICTO SENSU
(j a e DA UNIVERSIDADE DO ESTADO BO RIO DE JANEIRO
an ®
‘Texto 1
Leia o texto abaixo e em seguida reaponda’ao que se pe em portugués,
3 SRO aM
L INTRODUCTION eee Lorn
A. Falee Allegations of Rapgif Law and Its Enforcement
‘THERE can be litt}é doubt that the spectre of false ny allegations has significantly
influenced the developnient of legal doctrine and its enfoucefsent The fer of fale allegations
has bon used to just evidential rule in, ar involving gexaal offences such ap the
corroboration Gap antsy ital rapyimmunily and continues to influence
Police and proSecterial decision-making. Sic Matthew Hale’ seventeehith century opinion
that rape'"is an accusation easily to be made ai hard tobe proved, and harder tobe defended
by the party accused, tho never so. innocent’, ‘she the suspicion of rape complainants that this
‘View represents has-figured- promintntly”int-the-iégal response: to rape, “Across many
Jurisdictions, judges, logal practitioners and scholars have commented upon the ease with
‘which women, childxen and sometimes men ca: fabricate an allegation of rape and how
lificut itis to refute such claims, This suggestion has been made by judges when issuing the
convboration warning, during sentencing appeals and underlies a proposal by orie judge who
argued for a register of women who have made false allegations of rape.
kis perhaps surprising, the Of false allegations appears
"| significantin the ‘weatment cf rape by the criival justice syoteny, there has been little detailed |
attention given to the reliability. of she evitence vt the prevalence of false allegations, The
recent joint FIMCPSI/FIMIC repoit on {hy investigation and prosecution of rape, for example,
noted that there i a“ Crcity of reseagoh” by police nto the rat of fale allegations and police
‘ecording practice, ConséRmenty, there are several reasons why the study of fale allegations
Id be included in discussions concerning, the enforcement. of rape law and associated legal
iat eno at har app
Fape are comnion a
as fa be d widely held view that false allegations of
easily made by vengefisl ox desperote_ women, min ring media
coverage tha cites high estimates aa to the number of false allegatios
‘The second reason is
that incorrect gr anreliable aggum pions about false cong plaints provide a poor basis upon
which to develop appropriate policy tes anaes | rape. Indeed, egal scholars, law reform,
bodiessind intetisted pressure groups have fr ans
or ejected reform measures that rest on
untested! assumptions 9 40 the frequency
isn allegations, Assumptions as to the “ PROGRAMA DE. POS.GRADUAGAO. smucto SENSU
4 4 g DA UNIVERSIDADE DO ESTADO DO RIO BR JANEIRO
ey oe
commonality of false complaints have also fuelled calls for the introduction of techniques
specific to cagge"o§5 en other sexual offences designed to judge the truthfulness of
allegations (finally/ ais allegations raise the possibilty of miscarriages of justice; they divert
attention froiif"genttine victims and may help to: create a dangerous (and unjustifiable)
skepticism among criminal justice professionals to all allegations of rape,
B. Defining Terms
A key starting point in discussing faise rape allegations is to consider how this term
should be defined. This is a critical question and
plays an important role in determining the
numbers of allegations of rape deemed tobe false. Atits most besc level, false allegation can
‘be defined as the description of an event that the complainant knows never actually occurred.
Such a definition suggests a conscious or malicious motive on the part of the complainant,
‘There-may, however-be false allegations tha} fall outside this definition. For example, there
| may be non-malicious allegations from. peoplé with particular medical conditions who
genuinely believe they are victims of rape or other sexual offences, but who are mistaken, as
opposed to being malicious, There may also be cixcumslances that give rise to technically
“false”, though non-malicious, complaints of rape; For example, there is evidence that prior
to the House of Lords ruling in Rv. Ria tne police Would sometimes classify complaints of
Inari! rape as false (otuerwisekaown as “no-riming”) despite the fac thatthe complainant
[may have been reporting a genuine incident of no Recent research by Kelly et
al. has found another eategory of technically false, but:non-mulicious allegations of rape. They
Sound » group of no-ctimed cases that arose trom complainants who thought they might have
been sexually assaulted while asleep or intoxicated, but subsequent forensic examination
indicated that no sexual contact had taken place.)4
In 1986, as a response to a tendency of the police to no-crime large numbers of rape
reports, the Home Office issued circular 69/ 1986 giving the police guidance as to when to
classify a reporl as a no-crime. Thé pusyose of this ctrcular was to improve the accuracy of
police recording practice in an attempt to ensure that the no-criming label was attached only
to those reports that were untiue, rithor than lo cases where, for example, the complainant
withdrew her allegation or where there was
iicient evidence to prosecute15 For an
offence to be no-crimed the citcular sets out two criteria: that the complainant retracts the
allegation and admits to fabrication.16 These criteria are cleanly strict. To what extent they may ( ‘ PROGRAMA DE POS-GRADE Hacab STRICTO SENSU
wi ae DA UNIVERSIDADE DO ESTADO DO RIO DE JANEIRO
we
result in some complaints being crimed, when they aren fact (alse, cannot be established using,
the exisiing research literature, In this respect, Harris and Grace quote one police officer thus:
“If rape was treated as any other crime you would probably no-crime a lot more, But becatise
pe is treated as something epecial, aid indeed itis a serious crime, its much more difficult
to no-crime it”.17 The Metropolitan Police appear to have adopted a policy that does allow
greater flexibility in designating an allegation as false.18 It is evident, however, in research.
that has exainined potcegscording practice’ within the Metropolitan Potice, that there i
[Wridespucad mishise of ino-crime designation. For exansple, in @ 1999 studly of the processing
of rape complaints by the Metropolitan Police, it was found that in the 123 reports that had
been ne-cximed, most had been 6 slesignadon i
being false or malicious.
The apparent ‘difference between police definitions of what constitutes a false
~ | allegation andl the definitions set out:in existing guicelinos raises two key questions: first, whats
ssaons other than the complaint
is the actual extant of the false reporting of raze? Second, does this existing evidence provide
arcliable foundation upon which to base-policy decisions?
Referncla
RUMNEY, P. False Allegations of Ripe! The Cambridge Law Journal, 65(1), 128-158, 2006, Doi:
1017 /S0008197306007069 ‘, PROGRAMA DE P06.cRABUACAO STRICTO SENSU
ul ¢ pa UNIVERSIDADE DO ESTADO D0 RIO DE JANEIRO
nibs ®
‘Questo 1 (valor maximo 1,5)
De que forma as alegagées falas de estupro tém impactado a doutrina legal e sua
implementacdo?
Ly
‘Questo 2 ((valor mximo 1,5)
Quais us implicagdes da fatta de dados sobre falsas alegacdes de estupro?
(Questo 3 (valor maximo 1)
__| Por que.é’mnportante, ainda que diffcil, definir-o.qug petia,uma alogacdo falsa de estupro?
Questo 4 (valor maximo 1,5)
Como 0 autor do artigo vé o impacto da carta-cizcutar 69/1986 elaborada pelo Home Office
do Reino Unido?
ona
Lela o texto abaixo, que é parte da introdugio do artigo, e em seguida responda ao que se
pede em portugués.
‘Navassa: Property, Sovereignty and the Law-0f the Territories
Dine fo /- ~
Introduction sh
‘The US, territories and the concepts with which scholars, judges, and lawyers address
them are suspended in a netherworld: the inincorporated territories “belong to” but are not
“part of” the United States, as the Supreme Courthteld in the Insular Cases, This legal no man's
land has continuing consequences for the millions of Americans living in the territories, and it
also presents fundamental challenges for those, attempting to understand, let alone unwind,
the United States’'s colonial legacy. What are the territories? The contemporary debate
proceeds in the language of public law, but federal aithority over the territories detives from
the Property Clause. What role ntight private law play in resolving their status? - PROGRAMA DE POS-G2ADUAGAG STRICTO SENSU
1. DALINIVERSIDADE DO ESTADO DO RIO DE JANEIRO
in 8
Tn this Atlicle, w fnow-the present siate of affairs is paxtially traceable to
confusion and manipulation of the concepts of property (“belonging to”) and sovereignty
{“partof”), and that each has a potentially importatitzole to play going forward, The trajectory
‘of debale about the territories’ status has moved from the former conception to the latter, and.
| for understandable reasons, Nations historically us ts to jus
. ¥ the, US, tertitories
il im,‘ conn anti io geen as_gne of public Jaw and
governance, as are the suggested remedies arguments about citizenship, rights, and
sovercignly. These arguments are powerful and essential, but incomplete, because the
property framework also contains tools that can help clarify and resolve the territories! Iegal
status, The challenge therefore is not to reject the tools of property ~ concepts like ownership,
economic incentive, transfer, and payment — but to veforge them for the tasks at hand: self-
determination; economic justice; negotiation:and reparations, °~ pa
Sovennaty ‘and property are among the most contested and ambiguous terms in legal
thought and we'd
purport to offer new or certain definitions of them here, But we do
think thut they invoke different broad families af concepts, generally tracking the distinction
~ again, blurry and contestable - between public and private law. As Martti Koskenniemi puts
it, “Sovereignty and property form’ a typical ppait of legal opposites that while apparently
ulually exclusive and mutually delimiting, also completely depend on each other. Their
relationship greatly resembles the equally fainkiar contrast between the “publi¢ and ‘the
‘private, or “public law’ and ‘private law.” ‘The division between private and public law, in
turn, can generally be thought of as “a naturalized Jaw of things on the one side and a
Politicized law of power on the other.” Broadly speaking, our argument is that the law of the
territories - not unlike, say, takings law.or the debate over reparations ~ rewards close
consideration of both public-and private-lave concepts, ‘The language of property, for example,
can help recognize and. even: semecy political and social phenomena that might not
immediately tegister as private-law issues. As we seb it, the argumentthata territory is entitled.
to statehood resonates in public law; an argument that damages are owed for the wrongful
taking ofa territory, however, might resonate more in private law concepts like restitution and
‘unjust enrichment,
To Mlustrate the significance of the property and sovereignty frameworks and get the
stage for evaluating them, we hegin with the story of a single overseas territory ~ the oldest of ® 3g PROGRAMA DEPOS-GRADUACAG STRICTO SENSU
5 se DAUNIVERSIDADE De SS0ADC be BODE JANEIRO /:
are
all the LS, territories, alin that senge the place where the sfory of US, imperialism began:
Redan ply te ne unishabiyble rock busied under 9
and Tieng forty’ les tt Hai, which the island. Beginning with an
tanoocupied and seemingly minor territory helps us iolalé and grasp conceptual threads that
run through the treatment of inhabited territories ike Puerto Rico. Pulling on those threads
can unvavel alot of colonial fabric.
()
But shifting to a public-law frame that treats sovereignty as both an obligation and a
given obscures other possible solutions: Governance arrangements became more a product of
status than of contract. This reification of sovereign territory is an implication of territorial
sovereignty, and - with limited arid contestable exceptions for self
