The fundamental right to Justice
The fundamental right to Justice
A new Justice Paradigm?
Jaime Octávio Cardona Ferreira (1)
“In a reflection around the fundamental right to justice, the author wonders about the emergence of new paradigm of Justice in relation to the so-called alternative or extra – judicial ways and means, especially for tribunals and justice of the peace, concluding with the idea that the systems, common and alternative, converge in the ideal of justice, understood this as the peace accomplishment individual and social just, through the recognition of what, to each one, belongs directly, according to the ethical perspective and the circumstantialities of the concrete cases.” (Editor)
I. When, very young, I wished and wanted to be judge, I wondered why and for what.
In fact, I only felt and I realized it would be exciting, before any dispute, to recognize rights and duties. This it was enough to me.
And, today, in contrast to other people’s ideas, I would come back to be Judge, because I’m still feeling Judge. How nostalgic I feel, especially of the District Court, the courtroom, to judge eyes in the eyes!
No, no I’m not going to tell the tail of my life, which maybe evens gives, a “short story".
This is, simply, a personal way of starting to write about Justice (2).
Paraphrasing the initial expression of the Memoirs of one of the most striking figures of the twentieth century (3), I believe that, in fact, I ever had in my whole life; a certain idea about justice that comes upon such from the sense and as from the reason. without doubt, for a long time more of feeling than reason. And, even today, I confess my belief is in the direction of that we feel more the Justice, than we integrate her into any archetype.
We are looking for to do justice without worrying too much... and we do not have time… to think about the respective value and the concept.
This is a marked fact that while we do justice, often we do not make conjectures: it is much more important than that, a priori, to have an idea of what Justice is; it is necessary that, a posteriori of each concrete situation that let us judge, let us have the feeling and perception of that, as far as humanly possible, we made Justice.
Taking the name found for this excellent magazine, judging is the act of which must, naturally, take place Justice. Or, in other words, judging is the act whose nature and effect must demonstrate Justice.
To judge is, thus, a noble act that must to become fruitful in Justice, and that the Portuguese Constitution confers, as power - duty, to the courts and, in these, to who represents them and who, on behalf of the People decides: the respective Judges (4).
II. And, so seeing that, a simple remark about a theme that has done much ink to flow, in my opinion, excessive: Where is the democratic legitimacy of the judges to say Justice?
When questioning such legitimacy, most often we are confounding democratic legitimacy (kind) with electoral democratic legitimacy (species) and even here, sometimes forgetting that there is direct and indirect electoral democratic legitimacy. Is that in Portugal, today someone doubts the democratic legitimacy of Government sovereignty, although not directly elected?
I have read and heard too many controversies with various arguments, moreover, in general, finding several motivations to justify the legitimacy of the judicial function.
For me, I think that the democratic legitimacy of the jurisdictional action is, simply, in conformity with the C.R.P. - Constitution of the Portuguese Republic (especially, actual arts. 110, 202, 209, 215). To the extent that the jurisdiction regards the Constitution and, moreover, must enforce it (Article 204, for all and any courts); and the Constitution follows the resolution of the elected, directly, by the Portuguese people to vote, including Constitution, it is the democratic legitimacy of judicial action. In fact, it is enough to think that everything would be even more undisputed if the CRP had been plebiscite. Politically and democratically, the situation is identical.
Everything else, such as independence, obedience to the law, the formation of Councils, etc... Is important, but not root.
Let us return to what I was saying about Justice.
III. I believe, more than needed time to decide, we must have time to think of human situations that processes are a pale shadow, so in the way as the allegory of the cave described by Plato. And, then, we wonder: but after all, if I feel and I believe that I must do justice, what is that the Justice?
I have written about justice and, therefore, I am not going, here and now, to bore who has the patience to read my unpretentious words about what I have reflected (5). I would say, only, just a line to reach where this text leads me.
I believe that, despite many thoughts and writings that have roused, Justice still has his best depiction in the Aristotelian expression suum quique tribuere, whose content I will "translated" by: ethical attitude to give or do to a person, what it is due.
Of course, here, is the basis of the solution of the problem, not the entire solution: indeed, what criterion to recognize each one, which is his (6)?
If, in this issue, introducing the concept of Directus (rather than law, law - which is important: as the crow flies, straight - but not yet justice) I am approaching myself of an idea already with sensitive content.
With this in mind, I need to appeal to the valuation of the good and the bad over the concrete case, that is, to Ethics (7), without which there is no true Justice, and to the concrete cases, because it is these that are, or not, development of Justice, not in abstractions.
And, in this schematic way of thinking, we have reached the point that I have for clarifying primacy, i. e., the final – cause of all these items in the act of judging, that is, the vivification of the concept of Justice, not so much because of conceptualism but, yes, values and legitimate interests.
The fundamental idea, is, namely, in Paul Ricoeur: "The horizon of the act of judging is finally more than security, the social peace" (8)
This idea of "social peace" is extremely important to restructure the expression "to each one what he is its" not as an end but as a means.
And, where Paul Ricoeur talks about security, I would introduce the simple observance of the Right - more than law, but not yet Justice.
The observance of the Right is, indeed, safety factor and, this is important in social conviviality. But there may be safety in social, behavioural, without well-being. The wellbeing of the citizen with himself and with the others elapses and estimates, in the scope of what, here and now, it matters, sense of security just or peace just. The interior and relational well-being exceeds a formal idea of obedience to the law. As, indeed, in my view, it is not the simple idea of peace that stands out as of being of the jurisprudence, it is of the just peace, that is, peace and justice intertwine to give the required sense of well - being. As I have repeatedly reflect, the peace of which I speak is not, only, absence of war. It is not, as Voltaire would say, with his caustic humour, the peace of the graveyard (“tout est bien quand on est mal" - Candide). It is the alive, harmonic peace, justified by the values, in a word, fair. Peace just - the words come back to themselves - is Justice. It is the harmonic situation with ethical notions of good and bad. And this should temper the law and to give density to the Right is, indeed, a main perspective face to the said the ways uncommon of conflicts resolution, but it must be appanage of the all the ways of Justice.
Social peace presupposes individual peace. The societies are not differentiated abstractions of the people. They are conjuncts of people. And, therefore, in order to have social peace, peace has to be personalized. It is not that society is, only, a sum of people, but it is, definitely, the call "unified plurality of people," (9) from the concept of socius (companion).
Peace is tranquillity. It is, in fact, well-being of a person with herself and with their partners.
As well, and "plagiarizing myself," in the essence of what already I have conclude, in my view, the Justice is the achievement of a peace just social and individual, through the recognition of what, to each one belongs correctly, as the ethical perspective and the circumstances, of the concrete cases. Or, more simply, Justice is carried out in an ethical objective - peacemaker in specific cases.
It is in the light of this essence that I have to distinguish Justice (objective) from one another reality, namely, the means or processes to achieve it or, at least, to try to reach it as much as humanly possible.
On this basis, foremost, a well-known fact is imposed on my horizon: with the increasing range of social – legal issues, it is natural that the type of answers or methods or systems varies according with the types of problems. But it would not be right that the systems were not, among themselves, harmonized, because the legitimacy of each one, beyond a legal basis, settles in the ethics of the common aim: to accomplish justice.
IV. This is where I return to the outset: are we in a time and space in where fructify a new paradigm of Justice, concerning the so-called alternative means?
The answer has to be carefully thoughtful.
Let us remember that I start from an Aristotelian concept, old of centuries, at the base of it, but beyond him, look for an overview felt and thought. And, beyond the certainty of that Law, Right and Justice are different concepts although interconnected, I would say, with Alain Supiot that: "The conceptions of justice change, evidently, from one era to another and from one Country to another, but the need of a common representation of Justice in a Country and in determined epoch, in what regards to her, however, do not change.” (10)
And, continuing this logic of thoughts, if we descend from the heights of the remarkable thought of Alain Supiot and if we reflect on the most common images, we must remember the "old young lady” blindfold, which - with its formal reasons - symbolized Justice; and that always I understood, and I understand, that should give place, simply to a picture of eyes wide open, attentive to everyone and everything, in any circumstances.
As thus and conjugating the referred ideas of Alain Supiot and Paul Ricoeur, in my opinion, insurmountable, I believe that, today, Justice in any context, demands a final-cause mainly ethical, witch it is not enough the form or way. To it increase corollaries, of course, as the relevance of each person and its concrete circumstances subjective-objective. (11)
This is an including that must to fructify in any system of Justice, or else is not about systems of Justice that we speak.
Where I arrive is, quite simply, to this: despite the continent of an idea of Justice is perennial and its essence, in the cultural world in which we are inserted, remains embedded in the referenced Aristotelian thought, I believe there is, today, a content of the global idea of Justice that goes reflecting the feeling and thought of the new times, especially sensitive to quality than the quantity of legislation (12), to the insufficiency of the Right for to arrive to Justice, the indispensability of the reinforcement of Ethics, the interpenetration of old concepts supposedly differentiated, formally, of interpretation and application of regulations, and the necessity of to consider the exact particularities of each concrete case, the valuation of each personnel condicionalism, to the desirable consensual and acceptable of solutions, finally, to the relevance of the final-cause of Justice: achievement of a just peace and, more, felt and perceived as such.
And, in a time and in a world where so much is said and so few we practice solidarity, we must reflect that the just peace implies approach between the people what, in the world of Justice, should lead that the Judge looks for to approach the disagreed imagining him in their places. As it insisted Paul Ricoeur: "soi - meme comme un autre." (13)
In this perspective, that I limit myself to schematize, in terms of methodology, this combat it is against the bureaucracy, the reducing and very tight formalism, the waste of all kinds. And overlooks the immediacy, the presence and the meeting of the ones who locks for justice before whom has the duty, very difficult but exciting, to peer into the realities beyond appearances.
It will be that it is a new paradigm of justice?
I know that I feel and think that, today, is not doing justice - neither more nor less! – Simply to apply or to enforce the law.
In this particular, Montesquieu is rather superseded. Life is not the abstraction of the law. Life is before and after the law: the thesis of the simple act of saying the law was superseded by the life and the necessity to do justice.
I understand the thesis of Montesquieu, who ruled in the late eighteenth century and much of the nineteenth century as a natural reaction to the arbitrariness of the "ancient regime". But soon one understood that the creativity of life and the necessity to judge the concrete case exceeds the legal abstraction. Hence the necessity to be taken care of the beginnings and, even, to that what already has been called "new rhetoric" (14).
V. And what has this to see with the so-called alternative means? I believe that it has more than what it seems. In such way, for two fundamental reasons, perhaps among others, one of essence, other more instrumental.
Starting by the last factor, over a formal nature, in my view is wrong and self defeating to see in the so-called alternative means something inharmonious with the Justice or, even, the jurisdiction. If justice is a value and, in my view, it is surely, Justice has to be the element agglutinative, harmonizing all systems that seek out for it. The so-called alternative conflict resolution can not be constructed, be used, seen as adversaries of the common systems of Justice which shall always be, the nucleus, the essence, the biggest all embracing of Justice systems, namely the judicial which is the nearest, the most widely used and far more relevant to the common citizen. It would very wrong to use the difference of uncommon systems such as competitors or essentially divergent from common systems. All have their place, their reason of being, and everyone should respect each other and to the origin that they share: the Justice.
On the other hand, cannot be ignored, as has been emerged, that the idea of pacifying intention, of just composition of the litigation, the search of the motivation of the conflict more than a mere solution of the litigation (15), through direct and personal of the proper interested (16), it is very valued to the so-called alternative systems and its unquestionable importance in our time and in our space (17). This relevance of the pacification will have, naturally, influenced the concept of Justice in the time and space that are ours (18), but did not create different concepts coexisting of Justice. As the best, it as densest the leaking pacifying of the Justice.
In fact, I believe that it must be recognized the interaction of the various paths of justice. One day - perhaps faster than of it is supposed - there will be alternative ...to the alternative (19).
There is nothing of strange or negative or despicable. It is natural and it reflects only the historical development. There are not absolute or immutable concepts, and less more the socio – juridical ones.
That is, there may be, today, bigger densification of the leaking pacifying of the concept of Justice that embraces all the systems, because or there is Justice or there is not, there is not mini - Justices. But it cannot leave of being an agglutinating concept of all the systems of Justice.
What has that to accomplish, ethical, peaceful and useful, I believe, instead of creating or accepting antibodies to each other, is to extract, from each other’s systems, everything what they have of value and utility for the welfare of the only ones that they justify them: the citizens with hunger and thirst for justice.
My essential conviction about it all it is that the fundamental right of access to Right and to the effective jurisdictional guardianship is, today, understandable, pure and simply, as a fundamental right to the Justice. This fits together with the corollary that the Article 20 of the CRP emphasizes as integrant of the right to which it relates (information, consultation, technical support, reasonable term, equity, etc.).
So I would say that, today, apart from a possible further densification of the leaking of pacification of the concept of Justice; it has a very deep and very including essence of the thematic of the called right of access to the Right and jurisdictional guardianship.
Art. 20 of the CRP has been object of attention in several constitutional revisions, notably in the one of 1997. Perhaps – God grant! – It will come, even formally, to refer right to Justice (20).
How so, my desire, my "peaceful war" of many years is towards of the coexistence and the interaction of the means that I consider of Justice, common or uncommon, each one with its own space in the same social - legal universe.
I believe that the development of so-called alternative means was not conjugate as it would be desirable with the common systems. But the origin and the reason of being are identical. And the current presages are encouraging of the harmonization.
Indeed and beyond the differences of national framings (21), in the Europe the so-called alternative means or extrajudicial – which I prefer to call uncommon systems of Justice - were stimulated, in the current times, fundamentally as tending mechanisms to be used as interactive in the accomplishment of the fundamental right of access to the Justice that assists the citizens (22).
They are, of this orientation, example, as the Council of the Europe, namely: Recommendation R (99) 19, of 15.09.1999 (criminal mediation); Recommendation R (99) 20, of 15.09.1999 (criminal mediation); Recommendation R (2001) 9, of 05.09.2001 (administrative authorities); Recommendation R (2002) 10, of 18.09.2002 (civil substance); Avis 6 (2004) of the CEPEJ, 24.11.2004 (equitable process); Directives lines of CEPEJ (2007) 14, of 07.12.2007 (familiar and civil mediation). This last text, deriving of the European Commission for the effectiveness of Justice, is particularly important toward the harmonization jurisdiction - mediation, writing, among else: “Judges have an important role to play in the development of mediation. They should be able to provide information, organize information sessions and / or refer the case to mediation. It is therefore important that the mediation services are available, either by creating mediation services attached to the Tribunals, are directing the parties to a list of providers of mediation services”.
Relatively to the European Union, they can be cited, especially: Official Statement of the Commission of the U.E., of 30.03.1998, about conflicts of consumption; Decision of the Council, of 15.03.2001 (statute of the victim and criminal mediation); Green Book, of the Commission, of 19.04.2002 (alternative means); Code of Conduct for mediators, 02.07.2004; Official statement of the Council (Justice and Home Affairs), of 8-9.11.2007; Official statement of the Commission, of 07.03.2008 (with regard to the Directive 2008/52/CE on commercial/civil mediation/), from where we remove this sentence: “… objective to facilitate the access to the procedures of resolution of the litigations and to support the amicable settlement of the litigations by encouraging the recourse to the mediation and by guaranteeing a satisfactory articulation between the mediation and the legal procedures”; in this line, it must add the right Directive 2008/52/CE, of 21.05.2008, on commercial /civil mediation.
It is in this orientation of insertion of systems uncommon in the general ambit of Justice and of indispensable relevance of the Judges in this interaction, that mainly exists national norms of that France is an example, especially at the level of the Civil procedural law and the Criminal Procedural law.
Indeed, at the level of the Civil procedural law, the French normativity is express according to the Law 95-125, of 8 of February of 1995 (J.O.R.F of 9 of February), with the modifications introduced by the Law 2002-1138, of 9 of September of 2002 (J.O.R.F of 10.09). The Judge can, even in Court of Appeal, with the agreement of the parties, to submit any process for mediation (23), to be attempted by a third agreement, “in any state of the procedure”. The Judge intervenes in the deadline of mediation and the remuneration of the mediator, but not in the mediation process. Not reach an agreement, the judicial proceeding continues. Obtained agreement, the parts may submit it to homologation of the Judge, which gives enforceable. The available information goes in the direction of accentuated success of this type of procedure (24).
The French Code of Criminal Procedure has normativity to make viable the mediation. Article 41 -1 / 2: the Prosecutor can make to proceed, with the agreement of the interested parties, to an action of mediation "between the author of the facts and the victim." And if there is agreement, the Prosecutor “request by the president of the Court for purposes of validation of the composition."
VI. And what is happening in our country?
Let us see one brief approach, in a wide trace.
Fundamentally, we must remember that there is no numerus clausus as the so-called alternative means that, as I have said, I prefer to call uncommon system of Justice. Nor, for me, I subscribe closed concepts, fundamentalist, of what are these or those systems.
Leaving, now, aside less relevant situations, let us point out in the most talked mechanisms that, in my opinion, there are significant differences, often not listed: mediation, conciliation, arbitration, Justices of the Peace. Let us see the characteristics, the similarities and the differences more evident.
These ways of Justice in common have the proximity between the interested parties and who approaches them and enables them to understand or, in certain situations, end up deciding. In truth, all these options privilege that the interested parties, rather than part of the problem are part of the solution. They fight the formalism and the bureaucracy; seek peace, the agreement, the informality. The third is, merely, primus inter pares, by the way, adumbrated, particularly in mediation.
There are, however, accentuated differences between the cited systems.
According to the C.R.P., art. 209 the Courts of Peace and The Arbitral Courts (whether in necessary arbitration, or in voluntary arbitration) are Courts, although different from any others and, when acting, make it up instituted or co-instituted or with the receptivity of the State, in the ambit of the Sovereignty.
Courts of Peace and The Arbitral Courts they constitute jurisdictional orders with very proper specificities, having a content original, organizational, procedural, judicative, different from of any other jurisdictional order.
The history explains to us, the interests of peoples, and their social relevance.
I believe that the Courts of Peace and The Arbitral Courts came from the remoteness of the times, from a nebulous of local institutions (mainly municipalities) that elapses from the necessity that the people have to organize their own justice, given the distances from the Central Government. From there, among other things, Juízes Alvidros (25) (arbitrator) or advocates or assertores pacis and the mandadero de paz (26), coeval of the dawn of the Portuguese way of thinking and being.
Only much later, they were appearing Juízes de Fora (outside Judges) (Centuries XIV / XV).
And as soon as Portugal entered into the constitutional system, the Courts of Peace (initially, called the Judges of Fact) and the Arbitral Courts were recognized by the Fundamental Laws of the State: e.g. the Constitution of 1822 arts. 178, 181, 194, 195; the Constitutional Charter of 1826 arts. 127, 128, 129; the Constitution of 1838, art. 124 (27).
In the mid-twentieth century, before emptying of the proper content, the Courts of Peace had a sunset, come to be reborn in XXI century.
Nowadays, the Arbitral Courts were included in the constitutional list of the Portuguese courts in C.R.P. of 1976, through Constitutional Law 1 / 82 of 30.09 (after Art. 212 of the C.R.P., today art. 209), and the Courts of Peace were inserted in the same constitutional list by the Constitutional Law 1 / 97 of 20.09 ( art. 209 of the C.R.P.).
Indeed, namely the in force Constitution does not reject that, for concretion of the right of access to Justice, in Portugal, the Courts are not, only, pertaining to the state: case of the arbitral ones (28). And, certainly, Courts of the State are, nuclear, the judicial ones, but not only these. Beyond Administrative/ Fiscal Court, the Constitutional Court, the Audit Court, there are the cited Courts of Peace, formula resulting from the perspective of “cooperative State” (29). The Portuguese Courts of Peace are pertaining of State constituted with own rules, face to its specificities mainly to the originality of creation with official form with local Autarchies, to the procedural rules, the proper body of Judges, the institutional organization(30).
It is the facts that, jure constituto, are organized as specific order that elapse the existence of one proper Council, based on the paragraph 3 of art. º 217 of the C.R.P. (31) The Courts of Peace have its justification, with the specificities that mark its own identity (32), and as the Law 78/2001, of 13.07, unanimously approved by the Assembly of the Republic.
By the way, it comes to of way to say that I keep what I have already defended when I exerted other functions at the State level: de jure constituendo, therefore constitutional, we could project only one Superior Board of the Portuguese courts, that would encompass the management and discipline of all – but of ALL (33) of the Portuguese courts what, not being, I do not think that would be impossible if there were specialized Departments, in line with this great range of functions. Naturally, this would require studies, constructive dialogue, operational accomplishment, efficiency.
The issue of the Councils cannot be considered of minimums, reducing, but, yes, in the total embracement of the true sense of State and in the observance of constitutionality.
Clearly, that I respect all the opinions in good faith. But it is therefore that I also respect my own thinking.
The expression "alternative means", so used and abused, must be very well understood in what concerns of Courts of Peace and Arbitral Courts. Courts, who are, one and the others, surely are not, formally, alternative means to the courts. They are, yes, institutions, constitutionally, jurisdictional, and, as such, the qualification of alternative must be understood substantially as to the origin, the jurisdictionally, the institutionalization and the proceduring (34), or, as to their identificatory specificities.
The Arbitral Courts (35) are as that the partial devolution, to civil society, for the State, of the Power - duty to have to judge that the State, of the People, received (36).
The Justice of Peace are a jurisdictional institution dedicated to the resolution as far as possible with agreement, of relatively simple legal issues that can disturb the convivial peace imposing simple solutions, fast, in close proximity, bringing the concerned citizens to cooperate together on finding solutions that, rather than resolve the dispute, eliminate the reasons underlying the conflict (37).
For both the Arbitral Courts and the Justice of Peace, its essential cause – final jurisdictional is - as towards any other courts - the service to the citizens - users. Simultaneously, as its net and effective intervention, tend to relieve the very heavy load of the Judicial Courts whose intervention, by principle legal, naturally, should be limited to cases not assumable by another jurisdictional order, as required by the CPC, article 66. (38) The solution might already be different if the Courts of Peace, as the Arbitral ones, were not courts, but they are (Article 209 of the CRP). Even as the Courts of Peace, this means, in line with Art. 67 of Law 78/2001, of 13:07, that its jurisdictional competence, in the concrete situations given to them, being proper cannot simultaneously be, I believe, of another jurisdictional order (39). That, unless due respect for other opinions, would not make sense among jurisdictional orders. It is true that Article 20 of the CRP implies that is not hindered the jurisdictional way before a legal dispute (40). Simply, it has that not to forget what is incontrovertible: the Justice of Peace, as Arbitral Tribunals, they are constitutionally Courts (41) and, therefore, legal ways. Anyway, the issue, being important in the convivial conjunct and of the efficiency of the globally of systems of justice, is not e confused with the essentiality of the merits of the systems, and is of the intrinsic merits that the successes occurs.
Furthermore, the skills of the uncommon systems do not remove any relevance to the common jurisdictional order. Rather the contrary.
As to the judicial jurisdictional order has always been, it is and will be the most relevant, most significant among the Portuguese jurisdictional orders (42). History, culture, recognition of citizens, effective intervention explains it. Therefore, natural it is neither that nor all the inevitable disagreement fall to on it on! The judicial courts, beyond having to be simplified in its tight procedure (especially in the Country Court, which is where judges more complete and hardly) must be, in my point of view, released, especially, of the simplest legal questions, or case basis, emerging of available thematic, so they can have more time to devote to more complex legal issues. It is in these perspectives that justify the proper intervention of the Courts of Peace and the Arbitral Courts. But beware: ethics and jurisdictionally, these interventions must be experienced and understood when harmonized. Justice is, simply, Justice. Justice is something that belongs to who the original holder of Sovereignty, the People. As I have repeatedly thought, there are no justices or mini justices - Justices of this or that system. There is, simply, justice, which is a value of who’s in whose name any judge judges (43). This harmony is the sine qua non condition for the good functioning of the global service of Justice. (44)
As I have reflected and is an essential part, the qualificative "alternative" as to the Courts of Peace and the Arbitral Courts is not in the character – jurisdictional – that assists to them. It is in the specificities that characterize them. The "alternative" - of the Latin alter – is, here, the other, in the direction of the different.
VII - I will say, now, a word about conciliation. This expression has been render to confusions.
In other countries there exists, in my opinion, a manifest subtraction of its natural meaning, which is the concordancer act of the Judge.
In France, there is the “conciliateur de justice “, which is not the Judge.
In Portugal, I would like that confusions were avoided namely with mediation.
Conciliation is a proper act of the Judge. In terms of the Civil procedural law (which is the common one) doubts cannot exist (45). But this implies that the Judge is engaged to the conciliation as to the judgment if necessary. The conciliation can compete much better than a judgment for the pacification.
Obviously, it does not matter the agreement by the agreement. I think, even, if the agreement contends with the ethics or the jurisdiction, it is not possible of homologation. Certainly the letter of the law is not everything for its interpretation. (46) I would say, though, even in the cases where substantiality of the rights is not, technically available, Justice only has to win if the Judge will be able to acquaint oneself personally, of the purpose of the parties. Besides, this justifies diligences concordant in Minor or Family law. (47)
The conciliation - or attempt, where it is assumed clearly, even so without confusion with pressure - is a noble act of the Judge as the judgment properly said. (48) I repeat, by the way, my idea - key: this, to understand the reasons of the conflict and to pacify. Not worth the agreement by agreement, as I said. In truth, contrary to what is said in the caustic line of Voltaire, in my opinion is worth a good demand than a bad agreement. (49)
The conciliation, that appears cited in many texts, namely of the Council of the Europe and the European Union, as “alternative way” is, I believe, the case most outstanding of the non formal alternativity to the jurisdiction, either by the content, or by the intervention of the Judge. Rather, it is an alternative to the judgment properly, said. In other words, rejecting the conceptualist fundamentalism, it is an evident case where the call alternativity it is not faces to the jurisdiction but, merely, how to exercise the jurisdiction.
It is - without being excessively to emphasize - a proper act of the Judge, as important (or more!) that the judgment properly said, either in the content of search of reasons of the conflict of whom the litigation is born, either in the possible enlargement of a transactional agreement (50), either in the pacifying last objective, to a time eliminating a litigation and preventive of others.
The conciliation would not only have a jurisdictional character if the Judges resigns to dedicate and accomplishing to them. I hope that in our Country, we have present that the conciliation is, as I have emphasized, a noble act of the Judge. In the Courts of Peace, where internal mediation exists, if the mediation does not come to maturity, the subsequent conciliation competes - and only competes - to the Judge of Peace. (51)
VIII – As to the mediation, there is yes an enlarged relevancy of the concept of the said alternative way but, even there, naturally, without necessary contraposition to jurisdiction, before with all the reasons for conjugation.
Indeed, the mediation is characterized by the intervention of a third approaching the interested parties, looking for they are able to dialog and understanding.
This third must be a person prepared for the effect and, in my opinion, even can be a Judge (I would say, even, no one better than a Judge), but cannot be the Judge who will have to judge the litigation, if there is no agreement. (52) It is said that, in the mediation, the third bit intervenes and, in conciliation, the conciliator intervenes more. In my opinion, focused more on the realities of the life than for conceptualism, I think, with all the due respect for the freedom and the options of the interested parties, who will always be the concordant, the “owners” of the agreement, in a case there may be more intervention, in another may be less, but everything will depend on the real aid that has to provide in each concrete situation.
But, beyond the type of third intervening in the mediation, there is another specific factor that distinguishes mediation from conciliation: the nature of the principle of the confidentiality that should cover what is said in mediation efforts and that is justified by the advantage of to enable that the parts speak freely, in seeking solutions. It is easier to solve the problem that, as far as possible, is clear.
By the way and curiously, all of these requirements, the nature of third and the confidentiality, already were set out of the Portuguese Regiment of 1519, in reference to the Judges of Peace and conciliation of claims. This Regiment is a magnificent text of Portuguese socio-juridical History.
But be careful about to the confidentiality. It is a sine qua non principle. Not absolute. Said, and quite rightly, the Directive of the European Union 2008/52/CE, of 21.05, excepting questions of public order, mainly in regarding the children or to the physical or psychic integrity of a person or need to carry out the agreement (art. 7).(53) On the other hand, talks a lot about the neutrality of the mediator and not of the conciliator. But there are, here, in my opinion, confusion with impartiality. Impartiality, yes. As for neutrality, I think that nobody cans, ethically, take it in questions of Justice, toward the confrontation between good and bad.
The referred Directive of 2008 didn’t talk - and well - in neutrality. (54)
Finally, and obviously without exhausting the thematic, is fundamentally, to consider, as already hinted, that mediation appears, especially in Europe, as a mechanism assumed as useful to Justice and, although the mediation can be said qua tale “alternative means”, was not equated and, in my opinion, cannot be assumed nor can be considered as opposing or competing.
It is, and it must be, perfectly conjugable with the others ways of Justice and, being unmistakable with jurisdiction, of the respective harmonization it can and should result in providing of good service to the citizens.
This is, clearly designated, the orientation of the Directive of the U.E n. º 2008/52/CE, of 21.05.2008 on civil / commercial mediation. (55)
Please be also aware that, in Portugal, the jurisdictional recourse to mediation, before the current dynamics, already was foreseen, mainly, in substance of Family law, principally arts. 42, 84 n. º 3 and 104 n. º 3 b) of Law 166/99, of 14.09 and art. 147 D of DL 314/78 amended by Law 133/99, of 28.08, with a view to clear harmony. It is the line followed in Dispatch 18778/2007, of the Secretary of State for Justice, in D.R., 2.ª series, of 22.08.2007.
As for to o the criminal mediation, as exists, as I always said that(56) is an absence beyond the extension to any procedural phase, namely the intervention of the Judge who should give the homologation of the agreement. Indeed, the Law 21/2007, of 12.06. , assumed connection of the criminal mediation to the Public Prosecutor, but did not extend it as, in my opinion; it would be appropriate to the intervention of the Judge. In the origin of this situation is the limitation of the possible mediating action to the phase of the inquiry, despite the former Decision of U.E. of 15.03.2001 (2001/220/JAI) does not make this limitation; and the Recommendation of the Council of the Europe n. º R (99), 19, be explicit about the possibility of mediation at any procedural phase. By the way, exactly in inquiry phase, I believe that nothing it would hinder the intervention of Judge, as in other hypotheses.
Nonetheless, whether in the light of the modern rules of lawmaking and, hence, as the so-called successive evaluation of a legal act (57), or still because the proper Law 21/2007 is explicit about to its experimental character during two years, (58) it is expected that the criminal mediation comes, briefly, to rely on the important intervention of the Judge, true primacy of Justice in the light of the culture that is ours. (59)
And, in this sketch of general rules, a reference to the labour mediation, resultant from an agreement between the State and social partners,(60) which did not contemplate the intervention of Judge and, in my opinion, it was worth it, either because taking care to the relevance most emblematic of the Justice, which is the Judge, or considering the extreme importance of the valuing and quick resolution of important issues of the Labour Law, mainly in times of difficulties, and with the special necessity of the not easy recognition of inalienable rights and necessity to be weighed doubly the specific positions of the parties, hardly on an equal footing.
Again - I would say, mainly here – taking into consideration the proportionality between, on the one hand, the values and the interests and, for another one, the solutions, it is to expected that the applicable normativity develops and will be assumed the jurisdictional intervention in such procedure of mediation, so important that it is, in seeking swift and equitable solutions in which, rather than substantive issues, most often is in basis the proper dignity of their human and constitutional relevancy. (61)
IX – And, with this, a note of real hopes, either in the citizens' primary interest, either in the light of the harmonization of appropriate ways of Justice.
At the moment I write this text, not yet is finalized the process of transposition the EU Directive of 2008, on civil / commercial mediation for the Portuguese national law. But the respective Proposal of Law includes, I believe, very important ideas that, in consequence of that Directive, may come in the line of the possible expanded role for the Judge in the mediation process and encourage greater intermeshing of systems.
Thus, namely, it is possible to envisage that:
- being able, even so, to have a judicial pre-mediation, the parties (in my opinion, any of the parts) can require the homologation of the agreement by a judge;
- The confidentiality of mediation is a primatial characteristic, but it yields before exceptional circumstances, mainly when the protection of the physical or psychological integrity of the thirds is in cause;
- At any stage of the proceedings and whenever understands it convenient, the Judge can determine the remittance of the process for mediation and the suspension of the proceedings, saved expressed opposition of the parties (we must understand that any one of the parties, relatively to the mediation), having agreement, the same is sent to the Court, following the regimen of the transaction (it is valid to say, jurisdictional intervention with homologizing sentence, if necessary).
In my opinion, they could be, generically good steps(62) towards harmonization, the essential assumption of the jurisdictional function that to the Judge only competes and, the last but not the least, the prevalence of civil right to the accomplishment of Justice, (63) having the State to extract all the legitimate potentialities of the ways of Justice that may constitutionally be, but hopefully, in line with harmonization and the consideration by the jurisdictional function, that is unmistakable and only competes to the judge, in constitutional terms. (64)
Effectively, since the Constitutional Law 1/89, the proper CRP admits the existence of the so-called "instruments and forms of composition of the non-jurisdictional conflict”(65). But, beyond literal formulas, I think – even because to read the rules and regulations is one thing, interpreting and applying it is another (66) - that the complexity of Justice, its indispensability for effective implementation of the State of Democratic Law and the fundamental interests of citizens, imply the harmonization and conjugation of ways that can contribute to Justice and the recognition of nuclear function that, in all this, the Courts and judges perform (67), without considering that all the ways that they cooperate in the attainment of Justice must be welcome to the accomplishment of the corresponding fundamental civic right. (68)
X. It is time to finish. Therefore, I do a mini - synthesis of some ideas:
- Judging is a noble act of Judges, which should fructifies in Justice.
- The democratic legitimacy of the function of the Judges elapses, simply, of its conformity to the Constitution of the Portuguese Republic (C.R.P.).
- Justice does not finds better basic support of what in Aristotle’s, of where the idea of that it confers with the ethical attitude to give or to make, to a person, what it is due. Nothing is, by the way, without an ethical light that illuminates the concrete separation between good and bad. The just peace, internal and external is, today, a sine qua non element of Justice.
- Justice and, therefore, just peace is (must be!) The final cause of any way, milieu or system, common or uncommon, that are said of conflict resolution.
- Today, it is assumed a densification of Justice against the formalism and favourable to the relevance of just peace but, if this is, especially, dear to the call “Justice of Peace”, more consensual than determined, such can give a tone specially halo of Peace, to the Justice in general, but does not create different concepts of Justice as the systems. Justice, though in a certain time and in a certain space, or is or is not. Justice does not depend on systems or ways. They do have to depend on that. The fundamental right of access to the Right and to the effective jurisdictional tutelage is, in essence, the Right to justice.
- It cannot have any disharmony between systems or ways common and uncommon of Justice, because or Justice justifies ones and others or that they hadn’t the support of Justice would be unjustified. The Justice imposes, therefore, the sociability and the harmonization.
- The judicial common jurisdictional order always was, is and will be, the most important, most significant, between the various jurisdictional orders. But it has that to stand out, also, the merits of any other systems, including the so-called alternatives, insofar as concur for the accomplishment of the fundamental constitutional right to justice, which assists the citizens.
- The so-called alternative ways, more broadly and more substantially, uncommon systems of Justice became widespread, especially in Europe, as mechanisms integrated into the ways of access to Justice.
- With the uncommon systems of justice, it looked that the interested parties, rather than part of the problem, are part of the solution.
- Arbitral Courts and Courts of Peace have expressed constitutional basis in the C.R.P. art. 209. They are, in Portugal, purely and simply, Courts, although with proper specificities, giving priority to self - determination of interest (69).
- The conciliation is, by definition, a concordatory act of the Judge (or Magistrate). It makes no sense and only creates confusion using this term outside of jurisdictional action, for the intervention of any other entity.
- The conciliation attempt that the Judge assumes clearly is an act as noble as the judgement itself. The training should include a component certainly bent in the producing conciliation of peace just.
- The mediation has a clear base not in art. Article 209 and, yes, in paragraph 4 of Art. 202 of the CRP, but even there, nothing in opposition, before everything advising harmonization with jurisdiction , either in the initiative, either in the homologation of mediated agreement. Perhaps is in this sense the transposition of the Directive 2008/52/EC for the Portuguese national law.(70)
XI. Justice constitutes an essential objective of an authentic Democratic State of Right.
It is a sine qua non pillar of democracy. Therefore, without an efficient justice, democracy is not complete. All common or uncommon systems should cooperate to achievement of the just peace - individual and socially - true essence of justice.
The adequate functioning of Justice must be directed pure and simply to the achievement of the corresponding fundamental civic right.
Therefore, it is an ideal.
And, being an ideal is a dream. This means that Martin Luther King having a dream was not alone. (71)
All we, those who embraced the cause of justice, dedicated and dedicate to serving our fellow citizens and Democracy.
I greet all those who lived and dreamed this dream.
All which, they will live and dream this dream, giving continuity to something that is worth dreaming.
And to accomplish!
07 of January of 2009
Jaime Octávio Cardona Ferreira
____________________________________________
Notes:
Former President of the Supreme Court of Justice of Portugal
Vice President of Gemme
President of the Council of the Courts of Peace
Professor of the University Lusíada of Lisbon (invited)
2 The idea of this text is to evidence a general perspective, leaving out the hypothesis of deepening of each item. This getting to the bottom of, even if it was possible, would imply one unacceptable literal dimension for the effect causable.
3 General de Gaulle, Memórias da Guerra, I, 11.
4 Particularly, articles 202 and 209 of the CRP.
Jorge Miranda and Rui Medeiros, the Constituição Portuguesa Anotada, III, 32;
Gomes Canotilho, Direito Constitutional, 6. Ed., 653;
V. Moreira and G. Canotilho, CRP Anotada, 3. Ed., II, 791.
5 Beyond to scattered interventions texts, Justiça de Paz, Coimbra, Ed., 2005
6 Chaim Perelman asked: To each one, the same thing? Or, according to their merits? Or, according to their works? Or, according to its needs? Or, according to its position? Or, according to what’s the law gives? – (translation) Éthique et Droit, 18 e segs.
7 A great and renewed applause to the Association of the Portuguese Judges that elect the Ethics as a very important subject of the Congress of November 2008.
Already L. Cabral de Moncada said that the Right "must of first becoming naturalized citizen of the Republic of the Ethics, if want to obtain that minimum of validity and effectiveness that are socially necessary in order to fulfil its mission – (translation): Filosofia do Direito e do Estado, II, 293.
8 Le Juste
9 Enciclopédia Luso – Brasileira de Cultura, 17, 411.
0 Homo juridictus, 19
11 I'm me and my circumstances – (translation): Ortega y Gasset
12 The quantity of normative has nothing to do with the quality of the jurisdiction. See also Alain Supiot talking about "the futilities of the theories that pretend, today, explain the Right excluding the idea of Justice (translation) - Homo juridicus, 18.
13 Le Juste, 17
14 Charles Perelman, Logique Juridique, 149: « Le Juge possède, à cet égard un pouvoir complémentaire indispensable que lui permettra d’adapter les textes aux cas d’espèce ». Will come to a normative (unfortunately stillborn?) as art.265-A of the CPC and, even, a nimble normative interpretation ex vi art 9 C. Civil and orders rich of potentialities as, v.g., articles 334 and 335 of the Civil Code.
15 It is the image, used by several authors, the iceberg, whose submerged part (of the conflict) is bigger and the support of the upper apparent part, of the litigation.
16 Benoît Frydman and Guy Harch, Philosophie du Droit, 7.
17 Please, be also aware, that dates of 1519 a Portuguese Regiment said "Ordenação e Regimento dos Concertadores de Demandas " assumed tending regulation to the accomplishment of peace for the way of the Judges of Peace and a system of genuine mediation that only lacked ... the word mediation: Pessoa Vaz, Poderes e Deveres do Juiz na Conciliação Judicial, 437, Coimbra Ed, 1976, of the author, Justiça de Paz, Julgados de Paz, 113, Coimbra Ed, 2005.
By the way, these types of institutions, each with its own characteristics, but with a common root in an proximity and adequacy idea, are ancient in Europe, especially, in Iberia; it is the case, also, of the millenarian Tribunal de las Aguas de la Vega de Valencia, Spain today, watching, even today, for the use of the precious good that is the water in the proportion of land that, of her, needs.
18 Beyond Paul Ricoeur (lc), v.g., Lucia Vargas, Uma Nova face da Justiça, André Lamas Leite, Um novo "Paradigma" de Justiça? Antoine Garapon, Le Guardien des Promesses, a propósito de Justiça descentralizada (p. 245).
19 In this same Julgar, was written “A qualidade de Justiça depende da sua capacidade de se questionar": Eric Alt, No. 5, 17.
20 We already had this work practically ready when arrived to ours hands the text of Paula Costa e Silva, in O Direito 140, IV, which one refers, namely, to the right to justice (p. 735 et seq.).
21 As is the specific case and not confusable with the European situations, especially continental, of U.S., which gave origin to the so-called alternative dispute resolution - and, hence, the term ADR, unfit to translate realities in line with ours: Michèle Guillaume - Hofnung La Médiation, 9 and seq.
22 Vg, art.6 of the European Conventions on Human Rights, art. 47 of the Charter of Fundamental Rights, of E.U.; art. 20 of CRP.
23 There is a French civil procedural rule for conciliation that seems to me inapplicable in our country, because, between us, conciliation is an act that belongs to the Judge, as I will say ahead.
24 Beatrice Brenneur, Justice et Médiation.
25 Francisco Cortez, O Direito, ano 129, III, 371 e segs.
26 João Miguel Galhardo Coelho, Julgados de Paz e Mediação de Conflitos, 13 e segs
27 About the historical line of the Justice of Peace, v.g., of the author, Justiça de Paz, Coimbra Ed., 67 and seq.
28 Ac. Tribunal Constitucional, No. 506/96, Proc. 137/93, of 21.03
29 Gomes Canotilho, Direito Constitucional, 6ª Ed., pág. 669
30 Law 78/2001 of 13.07. V.G. Remédio Marques, Acção Declarativa Á Luz do Código Revisto, 53 and seq. Elisabeth Fernandez, Cadernos de Direito Privado 15, 15 and seq. See in this regard, the expression of Ac. standardizing of S.T.J. of 24.05.2007, (CJ - STJ - 200, 15 et seq., especially point III - 8), though, with all due respect, I do not suffrage the final conclusion of the judicial decision.
31 CRP, Article 217 paragraph 3, "The law defines the rules and determines the power to assign, transfer and promotion, as well as to the exercise of disciplinary action in relation to judges of other courts, with the guarantees provided in the Constitution.” (translation) This is in agreeing with paragraphs 1 and 2 of the same art. 217º.
32 It was the loss of identity at that time that led to the decline in the Second half of the XX century.
33 Total all-embracing of art. 209 of C.R.P.
34 Very in synthesis, as to the Courts of Peace: The origin implies the need of agreements between the State and Local authorities, through protocols. The jurisdiction is exercised by judges with proper training (Portaria 1006/2001, of 18:08; Portaria 575/2007, of 02.05). The form of institutionalization includes Judges of Peace, not Public prosecution, internal mediation, support conjunction between the State and Local authorities, consequent advice. The proceedings in the Courts of Peace, it is extremely simple and elapses from the Law 78/2001, of 13.07. (e.g., of the author, Julgados de Paz, Coimbra Ed. 2001, after a articulated phase of pleadings, which can even be presented orally, followed by mediation inside of the Court of Peace, unless any of the interested parties is opposed; if there is agreement, this is subject to the homologation of the Judge of Peace; if there is no mediated agreement, it follows immediately to the judgement by the Judge of Peace, that he must begin with an attempt of conciliation.
Relatively to the necessary Arbitral Courts, everything will elapse of the concrete legal situation. As for to the volunteers, we have to give attention, especially, the Law 31/86, of 29.08 and DL 425/86, of 27.12; they depends on availability of substantive rights and the existence of including convention of arbitration; the jurisdiction is exercised by Judges – Arbitrators of Arbitration Centres or chosen by the parties and the Arbitrator President, chosen by the parties, with the possibility of intervention by President of Appeal, if necessary, there are Arbitration Centres and Arbitral tribunals ad hoc, the procedure is, essentially, due of the Law 31/86.
35 There are few situations of necessary intervention of arbitrage. May, therefore, to understand V.G. the initial decisive phase of the expropriations: art. 38 of the C. of Expropriation approved by Law 168/99 of 18.09.
The most relevant ambit of the Arbitral Courts is of the voluntary arbitration. Particularly with regard to institutionalized arbitration, it may be associated with them a previous intervention of the type of mediation / conciliation. It seems - to me that it has convenience to distinguish mediation from conciliation, as I will try to make ahead.
36 C.R.P., v.g. art.º 3 n.º 1 e 20; Diogo Leite de Campos, Newsletter da DGAE n.º 8, pág.19.
37 Article 2, Law 78/2001, of 13.07,
38 Article 66 of the C.P.C.:
"It's a matter for the courts can hear cases that are not assigned to another court order."
See Article 26 paragraph 1 of Law 52/2008 of 28/08
39 V.G. V.g. Remédio Marques, Acção Declarativa à Luz do Código Revisto, 57; Joel Timóteo R. Pereira, Julgados de Paz, 3.ª ed., 55; Elisabeth Fernandez, Cadernos de Direito Privado, 15, 23/25.Cfr., namely, Ac. da Relação de Lisboa de 12.07.2007 (Proc. 6403/2007 – based, specially, on the constitutional issue of not being lawful to unequally positions of the parties with a preference for any option of the plaintiff. The opposite thesis which, incidentally, I respect (Ac. uniformity of the STJ of 24.05.2007), motivate, moreover, concordant choice of the defendant (Teixeira de Sousa, Cadernos de Direito Privado, 22, 54) which, in my opinion, jure constituto, does note have procedural support. The art. 495 of the C.P.P. only confirm the line of the art. 66, Code, inclusively as for to the voluntary arbitral judgement seat that, in this case, only specialized the of knowledge form.
40 Paula Costa e Silva, O Direito, 140, IV, 748
41 C.R.P. Art. 209
42 This is reflected, even, in the top position, in my view uncontroversial, of the President of the Supreme Court at the State level. See, V.G., arts. 209, 210, 211, 217 paragraph 1 of the CRP.
43 C.R.P. Art. º 202. º n. º 1
44 Significantly, the new changes to the executive lawsuit foresee the cooperation of the Arbitrage institutionalized in the executive procedure (Article 9 of Law 18/2008 of 21, 04 and arts. 11 and seq. of DL 226/2008, of 20.11). And, just as an example, has in view the relevance that the State gives to Arbitrage in difficult situations, for example employment contract in public functions: regimen approved by the Law 59/2008, of 11.09, in particular arts. 371 and seq., 287 and seq.
45 V. g. arts. 508 A n.º 1 a), 509 e 652 n.º 2 of the CPC
46 Art. 9 of the C. Civil
47 Arts. 42, 84 n. º 3, 104 n. º 3 b) of the Law Lei 166/99, of 14.09; art. 147 – D of the DL 314/78, in the redaction of the Law 133/99, of 28.08
48 V.g. Pessoa Vaz, Poderes e Deveres do Juiz na Conciliação Judicial.
49 Pessoa Vaz, Mentioned work, page. 207-209.
50 It is seen broad notion of transaction of art. º 1428 of the Civil C., mainly n. º 2. Clearly that if the proper ones leave they widen, allowedly, the whitewashing scope in agreement with the litigation, the possible homologation does not offend, at least, at the beginning of the device
51 Art. 26 N.º 1 of the Law Lei 78/2001, of 13.07
52 Because of the characteristic of the confidentiality.
53 Cfr, still, art. 13 of the Portaria 1112/2005, 28.10
54 V. G. Art. 3 b)
55 Especially, arts. 1 n.º 1, 2 b), 3 a), 5 n.º 1, 6 n.os1 and 2, that I transcribe:
-“1. The objective of this Directive is to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings”.
-“ For the purposes of this Directive a cross-border dispute shall be one in which at least one of the parties is domiciled or habitually resident in a Member State other than that of any other party on the date on which:
a) the parties agree to use mediation after the dispute has arisen;
b) mediation is ordered by a court;
-“"Mediation" means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State.
It includes mediation conducted by a judge who is not responsible for any judicial proceedings concerning the dispute in question. It excludes attempts made by the court or the judge seized to settle a dispute in the course of judicial proceedings concerning the dispute in question”.
-“ A court before which an action is brought may, when appropriate and having regard to all the circumstances of the case, invite the parties to use mediation in order to settle the dispute. The court may also invite the parties to attend an information session on the use of mediation if such sessions are held and are easily available”.
-“1. Member States shall ensure that it is possible for the parties, or for one of them with the explicit consent of the others, to request that the content of a written agreement resulting from mediation be made enforceable. The content of such an agreement shall be made enforceable unless, in the case in question, either the content of that agreement is contrary to the law of the Member State where the request is made or the law of that Member State does not provide for its enforceability.
2. The content of the agreement may be made enforceable by a court or other competent authority in a judgment or decision or in an authentic instrument in accordance with the law of the Member State where the request is made”.
56 Of the author, about criminal mediation, O Direito, 139, V, 1013
57 Avaliação ex post (ASI) – Blanco de Morais, Manual de Legística, 473 e segs.
58 Art. 14
59 See, namely, the remarkable text of de José de Faria Costa, in B.F.D.U.C., LXI, 91 e segs: Diversão (desjudicialização) e mediação: que rumos?
60 Protocol of 05.05.2006
61 Art.º 1 of CRP
62 Still, as is clear from what I say, subject of consideration in Parliament.
63 Art. 20 of C.R.P.
64 V. G., Gomes Canotilho, Direito Constitucional, 6.ª Ed., 653/656
65 Today, paragraph 4, art. 202 of C.R.P.
66 Art. 9 of Civil Code
67 V.G. 1, 2 and 3 of art. 202 of CRP. Notice that, interestingly, that paragraph 4 appears in an article headed "Função Jurisdicional", the mediation is not qua tale not jurisdictional way, but it is a natural combination. That is, precisely because the mediation is not jurisdictional activity, but being a path to justice, takes place when fully harmonized with the jurisdiction.
68 Art. 20 of the C.R.P.
69 O que é próprio da cultura jurídica pós-modernista (sobre o pós-modernismo, Antonio M. Hespanha, Cultura Jurídica Europeia, 345). See Gomes Canotilho, Direito Constitucional, 6. ª Ed, 668.
Moreover, the privileging of self - determination not preclude the straight - composition, when necessary to restore the balance of situations, even in the Courts of Peace (v.g Law 78/2001, of 13.07, Article 57.
70 Following, art. 12 of the Directive.
71 Grandes Discursos Políticos, Leopoldino Serrão, 373.
