A “Rule of Independency, Impartiality and Protection” to Citizens
- By Artur Victoria
- Published 03/31/2009
- Politics
- Unrated
Artur Victoria
http://sites.google.com/site/cliparturvictoria/ http://sites.google.com/site/arturvictoria/ http://arturvictoria.blogspot.com/
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The most important and historical decisions about Justice in Rome 4 November The Council of Europe took very important step to implement in every Country of the European Union reforms of legislation assuring the Court - impartiality - independence - and the first time concept of free assistance.
This principle was implemented in all national E.U. Countries laws as a “rule of independency, impartiality and protection” to citizens witch the only possible defense of their rights is effective through the Courts of Justice.
Identical principles were taken in others Universal or Regional Declarations and Conventions.
Corruption may affect these rules in specific and individual ways – according either national legislation that contradicts these agreements by either a missed interpretation or jurisdictional acts that confront them.
Also in the natural evolution of Justice strictly connected with bribery, corruption and fraud comes the Paris OECD Treaty. This anti corruption international step tends to unify concepts and actions on the
Justice area, implementing each Country in their own legislation common measures and principles to prevent corruption. As bases and priorities can be pointed the:
a) The Public interest of a Judiciary system
Is the effective way to assure the national citizens and international community that in a Country there are democratic rules. Where Justice is ineffective corruption grows – the Public interest is under Private
interest. These concepts supra national that gives a place and reason for the International standards and conventions are essentials to scope the state of Justice in certain Country as result of social justice and
democracy.
b) Conflict of interests – Public and Private – National - International
Interests are tangible things, such as land, money, or jobs that can be traded and compromised, while needs are intangible things, such as identity, security, and recognition, that are not for trading. Since needs are intangible, they are often hidden underneath the more visible conflict over interests.
What defines the "extent possible" in this largely procedural conceptualization is an existing distribution of values (wealth, power, prestige, etc.) that is generally taken as given or as changeable, if at all, only by processes other than conflict resolution. This flows from the initial premise that the parties in conflict share
common social norms.
An actual conflict of interests exists when a reasonable person, in possession of the relevant facts, would conclude that the official's private interests are likely to interfere with the proper performance of their official duties. For example, the use of knowledge gained in the course of official duties to obtain a lucrative consultancy.
c) Impartiality
The ability to be fair and unbiased and derives from the political convention of the Westminster tradition of democratic government and public administration that is a non-political public sector. This means, for example, that a public official will implement the policies of the government regardless of which political party is the government. At the individual level, it refers to a decision-maker who does not have a personal interest in the matter on which they must decide.
The word ‘impartial’ is a general term with many particular species; it follows from this that the phrase ‘impartial point of view’ is itself ambiguous. At most, it might be that the moral point of view constitutes one sort of impartial point of view.
d) Access to Justice
All the Countries in their legislation regard the access to Justice: Either in a Constitutional way or in a non Constitutional – like in UK - Access to Justice Act 1999 promoting the availability to individuals of services for securing that individuals have access to services that effectively meet their needs.
However this access can be questioned:
The issue of Bar Associations to provide legal aid and free lawyers to the citizens however is not as generous as that – the State pays and subsidizes those associations. And the criteria of choosing a lawyer many times is ruled by the association that many times assumes a jurisdiction power – analyzing the case and deciding if they provide or not the aid. Is like privatizing the Justice by a previous analysis of the case.
In many Countries many associations addresses the legal needs of the community and try to improve access to justice by the community (in particular by economically and socially disadvantaged people). But is a fragile state of social justice as secrecy that normally is assured can turn over an conflict of interests – if a member of that association has a private and unknown interest on that particular case or if is exactly that association the one that has a conflict with the citizen that look for help. Many Bar Associations are syndicalism or corporative institutions of lawyers or solicitors and in against deontology to provide help to a citizen plea against one of his members – That is an objective case of conflict of interests.
Biographic references:
- Conflict of interest - refers to a conflict between the private interest of a public official and public duty. A potential conflict of interests exists when it appears that an official's private interests may have the potential to interfere with the proper performance of their official duties, for example, serving in a high-profile position in a community organization. - Mitchell, Christopher R. and Banks, Michael. (1998). Handbook of Conflict Resolution: The Analytical Problem-Solving Approach.
- Since facilitated analysis often traces the sources of conflict to some serious institutional or constitutional dysfunction, the solutions evaluated by the parties frequently involve proposed changes in the psychological, political, or socioeconomic system that embraces (or imprisons) them. - Auerbach, Jerold (1983). Justice Without Law. New York: Oxford University Press.
- Impartiality, in short, as an obligation of justice, may be said to mean, being exclusively influenced by the considerations, which it is supposed, ought to influence the particular case in hand; and resisting the solicitation of any motives which prompt to conduct different from what those considerations would dictate. (Mill 1861/1992, p. 154; - Firth 1952, p. 336).
- Characterizations of impartial agents that proceed in negative terms (that is, by defining various preferences, emotions or bits of information that she does not possess or that do not move her) often risk picturing the impartial agent as impersonal and even indifferent (Henberg 1978; Brandt 1954).
- Every profession is a conspiracy against the public interest - George Bernard.
- As a State duty, however, in many Countries the State delegates this mission to a Bar Association - The goal, of course, is to provide free legal services to indigent residents. In order to achieve this, two categories were created: free legal advice (where lawyers serving regular office hours to all residents provide legal advice) and free legal aid – Josef Verovic - Role of Bar Associations.
- Corruption is talked openly in most countries these days. Which is a good thing, since it provides politicians, businesses, trade unions, journalists and ordinary citizens with a rare opportunity: that of agreeing on the urgency of stamping it out? But agreeing on what exactly is meant by corruption is another matter. Even the most widely used definition, which is "the abuse of public office for private gain", may err on the side of over-simplification. Corruption comes in many guises in fact. Bribery, extortion, fraud, trafficking, embezzlement -but also nepotism and cronyism- are all different manifestations of it. Even the most straightforward acts of corruption need not always involve money. Other gifts or advantages, such as membership of an exclusive club, are used as "sweeteners" to clinch deals. Understanding the multifaceted dimension of corruption is essential in order to identify workable ways of coping with it. ( WERLIN, Herbert H., “Revisiting corruption: with a new definition”, International Review of Administrative Sciences, Vol. 60, (1994): 547-558.)
- Corruption is a phenomenon of great economic significance and one that is finally attracting the attention that it deserves. Newspaper articles in many countries have been reporting with increasing frequency stories purporting to show cases of corruption.The paper defines corruption as noncompliance with principle of the arm's length relationship, which states that personal or family relation- ships ought not to play a role in economic decisions by private economic agents or by government officials. This principle is essential for the efficient functioning of markets. The normative theory on the role of government implicitly assumes that the arm's length principle is respected by government officials. The theory of pure competition also assumes that the arm's length principle prevails in relationships among economic agents. However, in the real world, economic relations are often influenced by personal or other kinds of relations and this influence distorts the working of markets.( TANZI, Vito, Corruption, Governmental Activities and Markets, IMP Working Paper 94/99, Washington, D.C.:
This principle was implemented in all national E.U. Countries laws as a “rule of independency, impartiality and protection” to citizens witch the only possible defense of their rights is effective through the Courts of Justice.
Identical principles were taken in others Universal or Regional Declarations and Conventions.
Corruption may affect these rules in specific and individual ways – according either national legislation that contradicts these agreements by either a missed interpretation or jurisdictional acts that confront them.
Also in the natural evolution of Justice strictly connected with bribery, corruption and fraud comes the Paris OECD Treaty. This anti corruption international step tends to unify concepts and actions on the
Justice area, implementing each Country in their own legislation common measures and principles to prevent corruption. As bases and priorities can be pointed the:
a) The Public interest of a Judiciary system
Is the effective way to assure the national citizens and international community that in a Country there are democratic rules. Where Justice is ineffective corruption grows – the Public interest is under Private
interest. These concepts supra national that gives a place and reason for the International standards and conventions are essentials to scope the state of Justice in certain Country as result of social justice and
democracy.
b) Conflict of interests – Public and Private – National - International
Interests are tangible things, such as land, money, or jobs that can be traded and compromised, while needs are intangible things, such as identity, security, and recognition, that are not for trading. Since needs are intangible, they are often hidden underneath the more visible conflict over interests.
What defines the "extent possible" in this largely procedural conceptualization is an existing distribution of values (wealth, power, prestige, etc.) that is generally taken as given or as changeable, if at all, only by processes other than conflict resolution. This flows from the initial premise that the parties in conflict share
common social norms.
An actual conflict of interests exists when a reasonable person, in possession of the relevant facts, would conclude that the official's private interests are likely to interfere with the proper performance of their official duties. For example, the use of knowledge gained in the course of official duties to obtain a lucrative consultancy.
c) Impartiality
The ability to be fair and unbiased and derives from the political convention of the Westminster tradition of democratic government and public administration that is a non-political public sector. This means, for example, that a public official will implement the policies of the government regardless of which political party is the government. At the individual level, it refers to a decision-maker who does not have a personal interest in the matter on which they must decide.
The word ‘impartial’ is a general term with many particular species; it follows from this that the phrase ‘impartial point of view’ is itself ambiguous. At most, it might be that the moral point of view constitutes one sort of impartial point of view.
d) Access to Justice
All the Countries in their legislation regard the access to Justice: Either in a Constitutional way or in a non Constitutional – like in UK - Access to Justice Act 1999 promoting the availability to individuals of services for securing that individuals have access to services that effectively meet their needs.
However this access can be questioned:
The issue of Bar Associations to provide legal aid and free lawyers to the citizens however is not as generous as that – the State pays and subsidizes those associations. And the criteria of choosing a lawyer many times is ruled by the association that many times assumes a jurisdiction power – analyzing the case and deciding if they provide or not the aid. Is like privatizing the Justice by a previous analysis of the case.
In many Countries many associations addresses the legal needs of the community and try to improve access to justice by the community (in particular by economically and socially disadvantaged people). But is a fragile state of social justice as secrecy that normally is assured can turn over an conflict of interests – if a member of that association has a private and unknown interest on that particular case or if is exactly that association the one that has a conflict with the citizen that look for help. Many Bar Associations are syndicalism or corporative institutions of lawyers or solicitors and in against deontology to provide help to a citizen plea against one of his members – That is an objective case of conflict of interests.
Biographic references:
- Conflict of interest - refers to a conflict between the private interest of a public official and public duty. A potential conflict of interests exists when it appears that an official's private interests may have the potential to interfere with the proper performance of their official duties, for example, serving in a high-profile position in a community organization. - Mitchell, Christopher R. and Banks, Michael. (1998). Handbook of Conflict Resolution: The Analytical Problem-Solving Approach.
- Since facilitated analysis often traces the sources of conflict to some serious institutional or constitutional dysfunction, the solutions evaluated by the parties frequently involve proposed changes in the psychological, political, or socioeconomic system that embraces (or imprisons) them. - Auerbach, Jerold (1983). Justice Without Law. New York: Oxford University Press.
- Impartiality, in short, as an obligation of justice, may be said to mean, being exclusively influenced by the considerations, which it is supposed, ought to influence the particular case in hand; and resisting the solicitation of any motives which prompt to conduct different from what those considerations would dictate. (Mill 1861/1992, p. 154; - Firth 1952, p. 336).
- Characterizations of impartial agents that proceed in negative terms (that is, by defining various preferences, emotions or bits of information that she does not possess or that do not move her) often risk picturing the impartial agent as impersonal and even indifferent (Henberg 1978; Brandt 1954).
- Every profession is a conspiracy against the public interest - George Bernard.
- As a State duty, however, in many Countries the State delegates this mission to a Bar Association - The goal, of course, is to provide free legal services to indigent residents. In order to achieve this, two categories were created: free legal advice (where lawyers serving regular office hours to all residents provide legal advice) and free legal aid – Josef Verovic - Role of Bar Associations.
- Corruption is talked openly in most countries these days. Which is a good thing, since it provides politicians, businesses, trade unions, journalists and ordinary citizens with a rare opportunity: that of agreeing on the urgency of stamping it out? But agreeing on what exactly is meant by corruption is another matter. Even the most widely used definition, which is "the abuse of public office for private gain", may err on the side of over-simplification. Corruption comes in many guises in fact. Bribery, extortion, fraud, trafficking, embezzlement -but also nepotism and cronyism- are all different manifestations of it. Even the most straightforward acts of corruption need not always involve money. Other gifts or advantages, such as membership of an exclusive club, are used as "sweeteners" to clinch deals. Understanding the multifaceted dimension of corruption is essential in order to identify workable ways of coping with it. ( WERLIN, Herbert H., “Revisiting corruption: with a new definition”, International Review of Administrative Sciences, Vol. 60, (1994): 547-558.)
- Corruption is a phenomenon of great economic significance and one that is finally attracting the attention that it deserves. Newspaper articles in many countries have been reporting with increasing frequency stories purporting to show cases of corruption.The paper defines corruption as noncompliance with principle of the arm's length relationship, which states that personal or family relation- ships ought not to play a role in economic decisions by private economic agents or by government officials. This principle is essential for the efficient functioning of markets. The normative theory on the role of government implicitly assumes that the arm's length principle is respected by government officials. The theory of pure competition also assumes that the arm's length principle prevails in relationships among economic agents. However, in the real world, economic relations are often influenced by personal or other kinds of relations and this influence distorts the working of markets.( TANZI, Vito, Corruption, Governmental Activities and Markets, IMP Working Paper 94/99, Washington, D.C.: