Text in Afrikaans / "Free people expect much from their police. In such societies the police stand at the point of balance on the one hand securing human rights on the other exercising their lawful powers given to them by Governments in the name of the people, to protect people and their institutions" (J Alderson Human Rights and Police Rights. Publication of the Council of Europe.) This is no small expectation. It means that the police are expected to maintain and secure the principles of democracy and human rights, the principles upon which our Constitution is based. At the same time it is the duty of a police service to maintain law and order which sometimes require the exercise of power and the use of force which on the face of it may appear to violate human dignity and certain rights and freedoms which a police force is expected to maintain in a democratic society. The manner of exercising that power has an impact on the credibility and effectiveness of the police. Human rights law internationally accepts that a police service needs to be given the power to, at times restrict certain individual freedoms in the interests of the security of the community at large. These restrictions may take place only in a constitutional way. If it takes place in an unconstitutional way the courts must have the right to exclude evidence which is unconstitutionally obtained. At this stage the courts have to formulate such a qualified exclusionary rule, but the ultimate goal must be to include such an exclusionary rule in a future Constitution. / Department of Criminal & Procedural Law / LL.M.

Made available in DSpace on 2016-04-26T20:28:14Z (GMT). No. of bitstreams: 1 Antonio Carlos Verzola.pdf: 1223558 bytes, checksum: cddcff038aa55043af29f095425f79fa (MD5) Previous issue date: 2008-11-07 / This dissertation aims at examining the exercise of the Police Power by the Public Administration, taking the discretionary competence as a reference, by confronting such Police Power with the legally posed limits and the qualification that is invested to it by the administrative doctrine. That is so because, even though the Public Administration is acknowledged to be liable of using a certain margin of subjectivism in its manifestations, where the law grants it, through the use of convenience and opportunity criteria, it should never be placed at the edge of the legal system. Thence, its actions will be always subjected to the rules and principles that guide the administrative activity and establish the State limits regarding the citizen. After generically analyzing the correlate issues to the main point, the work particularizes the approach, by centering it in the Police Power that is intrinsic to the Brazilian Central Bank and the Federal Securities Commission, in the leading of sanctioning administrative proceedings, either established by one or another, out of those public entities, in their respective legal environment, as well as in the enactment of special systems by the foremost, facing institutions under its supervision. At a first instance, the study offers a theoretical view in relation to the subject, and then it brings an illustrative panel of the practical aspect of those entities regulating activity in the financial and capital markets. Accordingly. grounded on the Brazilian Law and on the national and foreign doctrines, the study can lead to the conclusion that there is no wavelength on what the legal actions on the subject should determine and on what the respective doctrine and the attitude taken by public administrators should rule, when acting under alleged exercise of discretionary competence. In other occasions of such situations, the Public Administration understands it has a broader power than the legally entitled power and uses subjective assessments that are not comprised by legal authorization. Such an absence of correspondence or lack of synchronicity becomes evident in connection with the general principles, either those that are inherent to the generically considered exercise of Law, or even those other ones that are pertaining to the juridical and administrative system / A dissertação tem por objeto examinar o exercício do poder de polícia por parte da Administração Pública, tendo como referencial o manejo da competência discricionária, confrontado-o com os limites legalmente postos e o entendimento que lhe é conferido pela doutrina administrativa. Isto porque, muito embora se reconheça à Administração Pública, nos casos em que a lei lhe autorize, a possibilidade de se valer de uma certa margem de subjetivismo em suas manifestações, mediante o emprego de critérios de conveniência e oportunidade, jamais pode ela se colocar à margem do ordenamento jurídico. Em vista disso, seus atos sempre estarão sujeitos às regras e princípios que orientam a atividade administrativa e estabelecem os limites do Estado em relação ao cidadão. O trabalho, depois de analisar, de maneira genérica, os temas correlatos à questão central, particulariza a abordagem, centrando-a no poder de polícia próprio do Banco Central do Brasil e da Comissão de Valores Mobiliários, na condução de processos administrativos sancionatórios, instaurados por um ou por outro daqueles entes públicos, nas suas respectivas esferas de competência, bem como na decretação de regimes especiais por aquele primeiro, em face de instituições sob sua supervisão. O estudo, num primeiro momento, oferece uma visão teórica a respeito da matéria e, a seguir, traz um painel ilustrativo do aspecto prático da atividade reguladora daquelas entidades, nos mercados financeiro e de capitais, respectivamente. Com suporte na legislação brasileira e na doutrina nacional e estrangeira, o estudo permite concluir que não existe uma sintonia entre o que estabelecem os comandos legais sobre a matéria ou o que preceitua a respectiva doutrina e as posturas assumidas pelos administradores públicos, quando atuam sob alegado exercício de competência discricionária. No mais das vezes, a Administração Pública, nessas situações, entende ser detentora de poder mais amplo do que o legalmente conferido e faz uso de valorações subjetivas não abrangidas pela autorização legal. Essa não correspondência ou ausência de sintonia revela-se evidente no que se relaciona com os princípios gerais, sejam aqueles inerentes ao Direito genericamente considerado, ou mesmo aqueles outros próprios do regime jurídico-administrativo

Made available in DSpace on 2016-04-26T20:28:58Z (GMT). No. of bitstreams: 1 Julyver Modesto de Araujo.pdf: 1088541 bytes, checksum: 8eb49e584bac54a9ad063d00cb216792 (MD5) Previous issue date: 2009-04-24 / This monographic work runs upon the instrumental power bestowed to the Public Administration, the so called "police powers" and which represents the State interventions against individual liberty and property. Although the apparent redundance in the expression "administravive police powers" and the criticism towards the present utility of the term, the studied object is justified mainly by its use in the Traffic Law valid in Brazil, estabilished by law nº 9.503/97, through what was intended to demonstrate, after adequate general explanation of the theme, the incidence of this state power over the use of public thoroughfare regulation and control, emphasizing, at the end, the matter of traffic administrative penalty / Este trabalho monográfico versa sobre o poder instrumental conferido à Administração pública, denominado poder de polícia e que representa as intervenções estatais frente à liberdade e propriedade dos indivíduos. Apesar da aparente redundância na expressão poder de polícia administrativa e das críticas quanto à atual utilidade do termo, o objeto de estudo justifica-se, em especial, pela sua utilização no Código de Trânsito em vigor no Brasil, instituído pela Lei nº 9.503/97, diante do que se pretendeu demonstrar, após a adequada explanação geral sobre o tema, a incidência desta potestade estatal na regulação e controle do uso das vias públicas, enfatizando-se, ao final, a questão das sanções administrativas de trânsito

Text in Afrikaans / "Free people expect much from their police. In such societies the police stand at the point of balance on the one hand securing human rights on the other exercising their lawful powers given to them by Governments in the name of the people, to protect people and their institutions" (J Alderson Human Rights and Police Rights. Publication of the Council of Europe.) This is no small expectation. It means that the police are expected to maintain and secure the principles of democracy and human rights, the principles upon which our Constitution is based. At the same time it is the duty of a police service to maintain law and order which sometimes require the exercise of power and the use of force which on the face of it may appear to violate human dignity and certain rights and freedoms which a police force is expected to maintain in a democratic society. The manner of exercising that power has an impact on the credibility and effectiveness of the police. Human rights law internationally accepts that a police service needs to be given the power to, at times restrict certain individual freedoms in the interests of the security of the community at large. These restrictions may take place only in a constitutional way. If it takes place in an unconstitutional way the courts must have the right to exclude evidence which is unconstitutionally obtained. At this stage the courts have to formulate such a qualified exclusionary rule, but the ultimate goal must be to include such an exclusionary rule in a future Constitution. / Department of Criminal and Procedural Law / LL.M.

[pt] Esta dissertação procura analisar as diferentes abordagens à proteção de civis (PoC, da sigla em inglês) mobilizadas por agentes policiais/militares e humanitários em situações de conflito armado e emergências humanitárias onde há presença de operações de paz das Nações Unidas. Inspirada pelas estratégias de análise de discurso pós-estrutural, a dissertação se concentra nos PoC sites no Sudão do Sul, espaços que abrigam civis deslocados pela violência e perseguição desde a conflagração do conflito armado em curso, em dezembro de 2013. Tais espaços de proteção têm integrado as estratégias e práticas de proteção avançadas tanto por humanitários quando pela Missão das Nações Unidas no Sudão do Sul (UNMISS) e são tomados como um microcosmo privilegiado para a análise do(s) discurso(s) de proteção, dada a coexistência de diferentes racionalidades de proteção que os caracteriza. Orientada por um arcabouço teórico-conceitual foucaultiano, a dissertação mobiliza os conceitos de poder soberano, governamentalidade e biopolítica desenvolvidos por Michel Foucault e trabalhados por literaturas críticas às operações de paz e ao humanitarismo. Defende-se que as racionalidades de proteção avançadas pelos setores humanitário e de segurança seguem a racionalidade do poder policial, entendido como um conjunto de tecnologias e técnicas quem mantêm a ordem e protegem a vida no nível da população, mas também decidem sobre a suspensão da lei. Apontando para a relação entre proteção, policiamento e excepcionalidade desenvolvida nos PoC sites, tais espaços serão analisados a partir do conceito de campo de Giorgio Agamben: espaços de normalização da excepcionalidade em que a vida nua é governada. / [en] This thesis analyses different approaches to the protection of civilians (PoC) as mobilized by police/military and humanitarian actors in contexts of armed conflict and humanitarian emergencies where a United Nations peacekeeping operation is deployed. Inspired by the strategies of post-structural discourse analysis, the thesis focuses on the PoC sites in South Sudan, which have sheltered civilians fleeing from violence and persecution since armed conflict broke out in that country, in December 2013. These protected sites have been an integral part of protection strategies and practices advanced by both humanitarian actors present in the country and the United Nations Mission in South Sudan (UNMISS) and are taken here as a privileged analytical microcosm for assessing protection discourse(s) due to the colocation of different protection rationales that characterizes those spaces. Grounded on a Foucauldian theoretical-conceptual framework, this work mobilizes the concepts of sovereign power, governmentality and biopolitics developed by Michel Foucault and employed by critical literature on peacekeeping operations and humanitarian action. It is argued in the thesis that the rationales of protection advanced by both the humanitarian and security sectors work according to the rationality of police power, understood as an ensemble of technologies and techniques that maintains order and protects life among populations but also decides on the suspension of law. Pointing to the particular relationship between protection, policing and exceptionality unraveled in the context of PoC sites, these spaces will be treated as Giorgio Agamben s camps: as spaces of normalized exceptionality where bare life is managed.

Before 1994 criminal procedure was subject to the sovereignty of Parliament and the untrammelled law enforcement powers of the executive which resulted in the authoritarian and oppressive criminal justice system of the apartheid era. The Constitution, Act 108 of 1996 has since created a democratic state based on the values of the supremacy of the Constitution and the rule of law. The basic principles of criminal procedure are now constitutionalised in the Bill of Rights. The Bill of Rights protects the fundamental rights of individuals when they come into contact with organs of the state which includes the police. The Criminal Procedure Act 51 of 1977 authorises the police to search for and to seize articles, and has long provided the only legal basis for obtaining warrants to search for and to seize articles and for performing such actions without a warrant in certain circumstances. Generally the standard for these measures and actions taken under their purview has been one of reasonableness. Since the birth of the Constitution there has been additional constraints on search and seizure powers. Not only are there now constitutionalised standards by which such legal powers are to be measured, but there is also the possibility of excluding evidence obtained in course of a violation of a constitutional right. The provisions of the Criminal Procedure Act are now qualified by the Constitution. Where feasible a system of prior judicial authorisation in the form of a valid search warrant obtained on sworn information establishing reasonable grounds is a precondition for a valid search or seizure. Search and seizure without a warrant is permitted only in exceptional circumstances such as an immediate threat to person or property. By prohibiting unreasonable searches and seizures the Constitution places important limits on police efforts to detect and investigate crime. The Constitution appreciates the need for legitimate law enforcement activity. / Criminal and Procedural Law / LL.M.

In any society the police are organized with the responsibility of keeping peace and order, ensuring the rule of law, justice, prevention of crime as well as protection of human rights. Regardless of the circumstances in which the police find them, they should act towards every human being with a sense of duty and care for human rights; it is the responsibility of the police to conduct the process of arrest, search and seizure according to the law with no neglect of duties. The police are expected to comply with the arrest, search and seizure procedures designed to ensure the protection of human rights. Nevertheless, usually, the task of investigation is vulnerable to human right violation. This is particularly true in the case of the developing countries where the process of democratization is so infant that most of them not only lack the required level of awareness/understanding pertaining to the human right principles but also the necessary institutional mechanisms that contribute to the proper application of human right principles are missing. The report of the Ethiopian Federal Police Inspection Service conducted in the year 2003 indicated that there were some suspects arrested without court warrant and with the existence of reasonable doubt for their guiltiness. Moreover, findings of a research conducted in the same year on certain Addis Ababa sub-city police stations also clearly indicate this fact. The objective of the this research is to evaluate the extent to which crime investigator, who are duty bearers in the Addis Ababa city police, adhere to the human right principles pertaining to the rights of suspected, accused and arrested person that are recognized in pertinent international instruments and enshrined in the Federal Democratic Republic of Ethiopia (FDRE) constitution and other related laws of the country while fulfilling their duties and responsibilities throughout the crime investigation process. Specifically the study is also aimed at exploring the form and type of commonly violated human right, if any and the determinant factors behind the respective types of human right violation by crime investigation belong to the Addis Ababa police .Methodologically the study followed and is mainly relied on the qualitative empirical approach to social science research. / Police Practice / M. Tech. (Policing (Investigation))

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Before 1994 criminal procedure was subject to the sovereignty of Parliament and the untrammelled law enforcement powers of the executive which resulted in the authoritarian and oppressive criminal justice system of the apartheid era. The Constitution, Act 108 of 1996 has since created a democratic state based on the values of the supremacy of the Constitution and the rule of law. The basic principles of criminal procedure are now constitutionalised in the Bill of Rights. The Bill of Rights protects the fundamental rights of individuals when they come into contact with organs of the state which includes the police. The Criminal Procedure Act 51 of 1977 authorises the police to search for and to seize articles, and has long provided the only legal basis for obtaining warrants to search for and to seize articles and for performing such actions without a warrant in certain circumstances. Generally the standard for these measures and actions taken under their purview has been one of reasonableness. Since the birth of the Constitution there has been additional constraints on search and seizure powers. Not only are there now constitutionalised standards by which such legal powers are to be measured, but there is also the possibility of excluding evidence obtained in course of a violation of a constitutional right. The provisions of the Criminal Procedure Act are now qualified by the Constitution. Where feasible a system of prior judicial authorisation in the form of a valid search warrant obtained on sworn information establishing reasonable grounds is a precondition for a valid search or seizure. Search and seizure without a warrant is permitted only in exceptional circumstances such as an immediate threat to person or property. By prohibiting unreasonable searches and seizures the Constitution places important limits on police efforts to detect and investigate crime. The Constitution appreciates the need for legitimate law enforcement activity. / Criminal and Procedural Law / LL.M.

In any society the police are organized with the responsibility of keeping peace and order, ensuring the rule of law, justice, prevention of crime as well as protection of human rights. Regardless of the circumstances in which the police find them, they should act towards every human being with a sense of duty and care for human rights; it is the responsibility of the police to conduct the process of arrest, search and seizure according to the law with no neglect of duties. The police are expected to comply with the arrest, search and seizure procedures designed to ensure the protection of human rights. Nevertheless, usually, the task of investigation is vulnerable to human right violation. This is particularly true in the case of the developing countries where the process of democratization is so infant that most of them not only lack the required level of awareness/understanding pertaining to the human right principles but also the necessary institutional mechanisms that contribute to the proper application of human right principles are missing. The report of the Ethiopian Federal Police Inspection Service conducted in the year 2003 indicated that there were some suspects arrested without court warrant and with the existence of reasonable doubt for their guiltiness. Moreover, findings of a research conducted in the same year on certain Addis Ababa sub-city police stations also clearly indicate this fact. The objective of the this research is to evaluate the extent to which crime investigator, who are duty bearers in the Addis Ababa city police, adhere to the human right principles pertaining to the rights of suspected, accused and arrested person that are recognized in pertinent international instruments and enshrined in the Federal Democratic Republic of Ethiopia (FDRE) constitution and other related laws of the country while fulfilling their duties and responsibilities throughout the crime investigation process. Specifically the study is also aimed at exploring the form and type of commonly violated human right, if any and the determinant factors behind the respective types of human right violation by crime investigation belong to the Addis Ababa police .Methodologically the study followed and is mainly relied on the qualitative empirical approach to social science research. / Police Practice / M. Tech. (Policing (Investigation))