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29 abr. PDF | ISSN ISBN "MEDIATION IN THE " Mediação no Novo CPC - estudos de caso e direito comparado" ISSN an Aid to Teaching Legal English - Lecturer's Conference UNISUL PDF | On Apr 29, , Elisa Correa and others published ELISA MEDIACAO NO NOVO CPC ESTUDOS DE CASO E DIREITO COMPARADO ancho. Language as an Aid to Teaching Legal English - Lecturer's Conference UNISUL May 7, PDF | ISSN ABSTRACT: the present essay intends to analyze Conflict Mediação no Novo CPC - estudos de caso e direito comparado an Aid to Teaching Legal English - Lecturer's Conference UNISUL

Among the articles of the new BLI, some are of particular interest to the forensic psychiatrist. The BLI considers those under age 16 as absolutely incapable and those aged 16 to 18 years as relatively incapable.

Prodigality, which is a legal, not medical, concept, also remained as a factor of relative incapacity. However, mental disease, mental health disorders, and intellectual disabilities have been legally excluded from the list of conditions that affect full capacity. The work of the clinical psychiatrist, in turn, is directly affected by Article 11, which refers to involuntary treatment and hospitalization.

In cases of psychiatrist-initiated involuntary hospitalization, the professional had to report the event to the prosecutor within 72 hours of admission. With the change established by this article, psychiatrists can no longer initiate involuntary hospitalization.

According to Article 11, this procedure must be requested by a judicial authority. Article 84 of the BLI may be the most relevant one to forensic psychiatrists, not only due to its rich content but also because of the major differences that it can create between legal and psychiatric approaches.

In such cases, experts will have to explain this divergence in their reports and clarify the psychiatric point of view. In its second paragraph, Article 84 adds a legal novelty to the Civil Code, 7 namely, that a person with disability, but not under trusteeship, has the right to adopt the supported decision-making process. This process is explained in Article A and consists of the appointment, by the disabled individual, of two suitable persons of trust to support him or her in making decisions about the acts of civil life.

This clearly shows that the BLI amends the Civil Code 7 in relation to trusteeship, revoking or modifying several of its articles.


The forensic psychiatry point of view As one would expect, the BLI raised much controversy and disagreement among legislators themselves. Those in favor argue for the inclusion of disabled people as a means to fight discrimination. The law provides penalties for discriminatory acts - even, in some cases, punishing discriminators with a 2-toyear prison sentence.

According to the proponents of this law, disabled persons will no longer have to adapt to society; on the contrary, society will have to include them and use resources to do so. The physician is no longer the only one responsible for evaluating whether to grant benefits requested by the disabled; instead, multidisciplinary teams will be established to assess disability, social reality, and psychological factors. These are external constraints that seem more curtailing to freedom than to autonomy itself.

Abdalla-Filho 14 noted differences between these two terms while considering that all people have the right to the freedom of being autonomous, but not all of them have enough autonomy to be free. Autonomy is understood as a resource intrinsic to the person, which cannot be given, but has to be conquered. Freedom, in turn, is intrinsically related to the link between man and environment. Indeed, both the context and the application for the Prosecution makes it plain that the Prosecution intended the three new witnesses as rebuttal witnesses: they were meant to rebut the claims by the Applicant that the Accused Persons had authentic LPOs.

Indeed, the Prosecution expressly comprehended the three witnesses purely as rebuttal witnesses. Why is this important? It is because unlike the obligation of the Court to call a witness who the Court finds necessary for the just determination of a case as required by the second part of section of the CPC , the right of the Prosecution to call witnesses after it has closed its case and the Accused has already been put on his defence is heavily circumscribed.

It is my view, from the reading of existing decisional law and the evolving standards of fair trial in international human rights as seen against the standards in the Constitution of Kenya, , that where a Trial Court has not made a specific finding that the evidence of a witness is essential to the just determination of the case, the Prosecution can only call further evidence after the close of their case to rebut matters arising ex improviso which no human ingenuity could foresee.

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This rule has a long genealogy, finding its most famous statement in the iconic paragraph by Avory J. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown.

That rule applies only to a witness called by the Crown and on behalf of the Crown, but we think that the rule should also apply to a case where a witness is called in a criminal trial by the judge after the case for the defence is closed, and that the practice should be limited to a case where a matter arises ex improviso, which no human ingenuity can foresee, on the part of a prisoner, otherwise injustice would ensue.

While there may be room to believe that Avory J. There are at least three grounds for believing so. First, the decisional law clearly distinguishes situations when a Trial Court calls a witness pursuant to the mandatory part of section of the CPC which has not counterpart in English law and when a witness is called pursuant to the discretionary part of it. The position unmistakably emerging from these cases is that when a Trial Court is exercising its discretion under the first part of section , it is bound by the ex improviso Rule consolidated by Avory J.

This limitation applies with even greater force when the discretion is, as here, applied at the instance of the Prosecution.

Second, this rule of relatively ancient vintage has now been adopted and codified by various recent international instruments and decisions by various international Tribunals — and, in particular those dealing with international criminal law. SCSLT , defined what rebuttal evidence and adumbrated the contours and conditions upon which such rebuttal evidence can be admitted after the Prosecution has closed its case.

A few other cases from the international criminal tribunals have applied this rule as well. See, for example, P. Suffice to say that the ex improviso rule appears to have now risen to a generally recognized rule of international law and practice and represents best practice in international law. The ex improviso rule is also the governing rule in many countries such as Canada see, for example, R.

Finally, I am of the view that the fair rights provisions enshrined in the Constitution of Kenya, seen in context lead to the unmistakable conclusion that the discretionary power donated by section of the CPC to the Trial Court to call or permit the calling of Prosecution witnesses must be constrained and not expanded to the bare needs of justice in each particular case.

A proper reading of the section of the CPC would, therefore, be one that restricts it reach. With this in mind, I therefore adopt the ex improviso rule announced by various international tribunals as the one most in consonance with the scheme of rights enumerated in Article 50 of the Constitution. Consequently, drawing from international best practices and our existing decisional law as analysed above, I am of the view that the Prosecution can only call rebuttal witnesses where the following conditions are satisfied: i.

Such evidence must have arisen ex improviso to the extent that no human ingenuity or reasonable diligence could reasonably have anticipated, or foreseen the possibility of its being adduced by the Defence; ii. The evidence must have probative value in the determination of the issue or issues under consideration, and in particular, in the process of assessing the innocence or culpability of the Accused; iii.

It must relate to a significant issue arising from the Defence case for the first time; iv. The Prosecution must demonstrate that: I.

The calling of evidence in rebuttal is not a ploy to reopen its closed case with a view to curing certain perceived defects or shortcomings in the Prosecution case; II. That the rebuttal evidence is not being called on a collateral issue related to the credibility of the witness.

That the granting of permission to adduce the evidence in rebuttal will not in any wayviolate the principles that underlie the doctrine of equality of arms between the Prosecution and the Defence, or otherwise do violence to the doctrine of fundamental fairness or unduly delay the proceedings thereby compromising the Constitutional obligation of ensuring a fair and expeditious trial without unduly jeopardizing the rights of the Accused Person.

Applying these principles to the case at hand makes it plainly clear that the Prosecution was not entitled to call rebuttal witnesses in this case. In my view, the case turns on three issues.

First, it is hardly possible to make the claim that no human ingenuity or reasonable diligence would have made the Prosecution anticipate that the Defence was going to adduce evidence that it had Local downloading Orders LPOs as a defence to the charges.

It cannot, therefore, be said to be a matter ex improviso which no human ingenuity would have expected. Secondly, it is difficult to look at the circumstances and context here and not conclude that the Prosecution is not merely seeking to shore up its case.

Third, in view of my finding above about the relative unfairness of the situation of the procedural posture that resulted in the decision to call rebuttal witnesses in the first place, it is not possible to be certain that the doctrine of fundamental fairness is not being violated.

For these reasons, I would therefore conclude that this was not an appropriate case to allow the Prosecution to call rebuttal witnesses F. Kituku took over the matter from the Honourable J.

Onyiego as he then was. His arguments before the Learned Honourable J.

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Kituku were, essentially, the arguments he has made here. The Prosecution objected to the application to have the trial start de novo. Kituku ruled that this was an appropriate case for the case to start afresh. He considered that the matter had dragged in the courts since — a period of more than 3 years — and that throughout the trial, the Accused Persons had been represented by Counsel. He therefore concluded that starting the trial de novo would constitute undue delay in finalizing the case and violate the provisions of Article 50 of the Constitution which, among other things, requires that a criminal trial must be started and concluded without undue delay.

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That case held that a succeeding magistrate needs to make a determination on whether to start a case afresh when demanded by the Accused Person in accordance with the particular circumstances of the case.

I begin by pointing out that the Learned Magistrate was, clearly, well acquainted with the legal principles enunciated in our emerging jurisprudence on the question of when it will be appropriate for a succeeding magistrate to order trial to start afresh. Our case law has now made it clear that while section 3 makes it mandatory for the succeeding magistrate or judge to inform the Accused Person of his or her rights to request for a de novo trial, the succeeding magistrate or judge is not bound by the position taken by the Accused Person on whether to request for a de novo trial or not.

The succeeding magistrate or judge must exercise his or her judicial mind to the issue and decide if, in the totality of circumstances, the case is an appropriate one for an order that it starts afresh. We can cull some of the considerations that a Court considering the issue should have in mind from our case law principally the Court of Appeal guidelines in the Ndegwa v R case as well as in Joseph Kamau Gichuki v R case as well as our emerging jurisprudence based on the Constitution of Kenya, as well as new legislative enactments governing criminal trials aimed at animating the Constitution.

Some of these considerations that a Court considering the issue should have in mind include: a. Whether it is convenient to commence the trial de novo, that is, the difficulty in mounting a new trial; b.

How far the trial had proceeded; c.


Brazilians have the cultural tendency to believe that the judiciary is the only responsible body for providing solutions to all kinds of conflicts. For that purpose, the NCPC determines — with few exceptions — that in civil lawsuits the defendant will be summoned to appear before a conciliation or mediation hearing, which will not be chaired by the judge, with the aim of facilitating a negotiation between the parties.

This will depend on the progress of negotiations between the relevant parties. During this period, the defendant does not have to come up with his defense. This becomes all the more evident in family lawsuits, in which the NCPC determines that the defendant need not even receive copies of the initial pleadings [8] — although the defendant may have access to them at any time — precisely to serve the purpose of preventing the intensification of conflicts and facilitating the establishment of agreements.

Repetitive Lawsuit Management. As previously mentioned, one of the most significant problems in the Brazilian Judiciary is the excessive number of lawsuits. The numbers involved are intolerable: Such lawsuits involve various categories: In this regard, the NCPC has laid down two crucial measures: In fact, the inclusion of a system of precedents will enable the Brazilian judicial procedure to accomplish greater predictability and equality by making use of the same decision in dealing with all parties who may be in similar legal situations with the one that gave rise to the precedent.

This may well be the most important change in the NCPC, and will require much effort and adaptation of legal professionals until it becomes truly effective from a practical point of view.Whether, in the circumstances of this case, the Trial Court should have ordered that the trial starts afresh as permitted by section 3 of the Criminal Procedure Code. This is perilously close to asking the Defence to fill in the gaps in the Prosecution case.

We included the only detected microtubule-associated protein. The Learned Trial Magistrate correctly considered that the case had come very far along — with the prosecution case closed and, at the time, only some rebuttal witnesses remaining to testify — and that the case had already been in the court system for more than three years. The correct use of this mechanism will certainly increase the number of settlements, especially those involving factual issues that can be settled by way of the evidence that has been produced.

Faithful segregation relies on the attachment of chromosomes to spindle microtubules via the kinetochore, a conserved protein complex that assembles at centromeres Yamagishi et al.

This brightly written little book by the wellknown French author, Edmund Plauchut, who has spent many years inC hina, is the first of the new series known as theL ivres dor de laS cience recently commenced by MM. Whether it is convenient to commence the trial de novo, that is, the difficulty in mounting a new trial; b. He centred his submissions on section of the Criminal Procedure Code arguing that the matter is quite plain: the section gives the Court the power to summon any witnesses at any time during the trial.

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