Juris Studia

NOTA EDITORIAL

2024-11-14T14:49:43+00:00

Nota Editorial

"CONSTITUENT POWER AND CONSTITUTED POWER WITHIN THE FRAMEWORK OF CONSTITUTIONAL INTERPRETATION IN BOLIVIA"

2025-01-23T13:40:27+00:00

This essay delves into the complex fabric of relationships and tensions that exist between original power, capable of shaping and reshaping the constitutional framework, and derived powers, which operate within the limits and under the guidelines established by that framework. The 2009 Constitution, the result of a profound process of deliberation and change, serves as a starting point for this analysis, offering a lens through which to examine the challenges and opportunities Bolivia faces on its path toward a more inclusive, just, and democratic society. The methodology employed in this work relies on a review of a wide range of sources, including constitutional documents, legal analyses, works by prominent theorists in the field of constitutional law, and court decisions, with particular attention to the Plurinational Constitutional Court.

THE SOCIAL MODEL OF DISABILITY UNDER THE HUMAN RIGHTS APPROACH

2025-01-23T13:40:25+00:00

The present study focuses on the conceptual and regulatory evolution of the rights of persons with disabilities (PwD) in the context of the Plurinational State of Bolivia, through the lens of a human rights approach. From the second half of the eighteenth century, the idea of equality in modern societies was structured around the contractualist model, which promoted reciprocal benefits among free citizens, but historically marginalized PwD by not considering their full participation in the configuration of the social contract. This marginalization has perpetuated inequalities and the invisibility of PwD in social structures (both internal and external).

THE RIGHT TO DATA PROTECTION IN THE CONTEXT OF BOLIVIAN CONSTITUTIONAL LAW

2025-01-23T13:40:29+00:00

The article makes an investigation on the scope of the protection of personal data in the legal context of our country, the problems faced by the person who resorts to judicial means for their protection and at the same time an analysis on the theory related to the right and the implications that it has, in addition to the effects that the lack of consideration of doctrinal or theoretical aspects by the legislator would be producing to improve the situation of this right and the others that are integrated into it.

RESTORATIVE APPROACH AS A MEANS OF REPAIR FOR DAMAGE TO VICTIMS OF INTRA-FAMILY VIOLENCE IN BOLIVIA

2025-01-23T13:40:30+00:00

Restorative Justice is an alternative approach to the traditional criminal justice system, it focuses on repairing the harm caused by crime and restoring relationships between the parties involved. Restorative justice programs may include talking circles, mediation processes, restorative conferences, and other practices focused on active participation and taking responsibility. This approach has gained recognition and acceptance around the world as a more humane and effective alternative to tackling crime and building healthier communities. This approach applied to cases of domestic violence seeks to comprehensively address conflicts and family dynamics affected by violence, prioritizing safety and repair of damage. The family plays a fundamental role in society and has significant importance in the development of individuals and the well-being of the community as a whole, providing a safe and emotionally supportive environment. Family ties contribute to the mental and emotional health of individuals.

The family is the main socialization agency, in this context, people learn norms, values, and behaviors that are fundamental for their integration into society; this is where identity and personal ethics are built. That is why it is so important to restore family relationships through adequate justice that meets the needs of Bolivian families. Therefore, it is crucial to implement solutions that address not only the legal aspects of the crime, but also the emotional, social and economic needs of the parties involved. This is materialized in the proposal presented, the implementation of a restorative approach to Law 1674 against family or domestic violence. The impact of violence in this important circle, the family, the cell of society, generates bad relations between social groups and consequently chaos.

PSYCHOLOGICAL REPARATION AS A RESTORATIVE JUSTICE MECHANISM FOR GIRLS, BOYS AND ADOLESCENTS VICTIMS OF SEXUAL VIOLENCE.

2025-01-23T13:40:32+00:00

Sexual violence against minors is one of the crimes that causes the most pain within society due to the innocence and vulnerability of the victims, being that it leaves deep marks both physical and emotional in their young lives.

The judicial system concentrates all its actions on the simple punishment of the crime, leaving aside the benefits that restorative justice can provide, since it focuses on the victim and the reparation of the damage by the sexual aggressor; in addition to seeking compliance with a sanction. This paper seeks to contextualize the meaning and scope of restorative justice, as well as its implication in the reparation of damage.

The proposal of the investigation is the modification of article 308 (bis) of the Penal Code, in order to achieve psychological restoration for minors by their aggressor, and when the aggressor does not have the economic resources to do so, it will be up to the State to assume that reparation.

The conclusion of this paper concludes that restorative justice has as its essential focus the compassionate and effective treatment of minors who are victims of sexual violence; aiming to ensure their recovery and psychological well-being.

AMENDMENT OF THE BOLIVIAN PENAL CODE TO INCLUDE NEW CYBERCRIME OFFENSES

2025-01-23T13:40:34+00:00

The dynamic technological advancement has profoundly reconfigured social dynamics, reshaping how people interact and relate in the modern era. The relationship between individuals and Information and Communication Technologies (ICT) has become increasingly deep and influential in contemporary society. ICT, which encompasses devices such as computers, phones, internet, and social media, has transformed the way we live, work, and relate. On one hand, these new technologies have expanded access to information and facilitated instant and global communication among people worldwide.

However, this rapid progress has been accompanied by unprecedented legal challenges, such as the proliferation of cybercrimes, which pose fundamental questions. Faced with this complex convergence of law, technology, and society, it is imperative that legal systems adapt and evolve to effectively address these emerging challenges. This implies the creation of updated laws and regulations aimed at cybercrimes. By establishing a clear and robust legal framework, a safer online environment is promoted and potential offenders are discouraged from committing cybercrimes.

REFORM OF THE ADMINISTRATION OF JUSTICE IN BOLIVIA WITH PRINCIPLES OF RESTORATIVE JUSTICE

2025-01-23T13:40:35+00:00

In the context of addressing the issue of reforming the justice administration in Bolivia, which has been heavily criticized for years due to the eternal delay of justice, constant issues of corruption, budgetary economic situation, party politics, nepotism, etc., an investigation has been undertaken to strengthen the pillars of a culture of peace and seek the principles that govern restorative justice.

The aim is to examine the extent to which these principles have been incorporated into Bolivian legislation, as well as in other legislations, what are the benefits that this provides, and in which other areas of law they could be incorporated through literature review, analysis, and analogy.

In this way, a series of elements can be seen where the Restorative Justice is developed in principle, where it originates, and what it is not, in order to understand the principles where the victim, the offender, the community, and the state itself are involved. With the help of comparative legislation, it is possible to establish how Bolivian legislation has appropriated the principles, but not in a definitive manner, and the impetus that this could still have has not been given, even at the cost of using other mechanisms such as Alternative Dispute Resolution (ADR) that could be used to better promote the gradual integration of these principles, not only in the criminal area, but in other areas of law in particular.

THE DANGERS OF INSTITUTIONALIZING DELIBERATIVE MINI-PUBLICS AS TOOLS OF DELIBERATIVE DEMOCRACY

2025-01-23T13:40:37+00:00

We introduce the topic to briefly explain our objective. This will be none other than to reach the end of this journey while trying to justify whether the so-called citizen assemblies and deliberative mini-publics are in danger of being institutionalized or, in simpler terms, being absorbed by institutions, turning into a sort of institutional mechanism prior to any deliberation and political decision. They cease to be, as we know them, the independent gathering of a random sample of citizens called to discuss a specific topic, representing the best possible inclusive deliberation, both in form and in their impact on the socio-institutional reality where they take place.

To reach that point, we have, methodologically, a roadmap that many will surely notice, and we will try to mention it here as briefly as possible. We begin by discussing the reality of the significant weakening of traditional voting in political representation, then we address the "electoral extortions" that we can see, for example, in the so-called "exit plebiscites"; these topics will lead us, by decantation, to present and discuss the visualization, or not, of deliberative mini-publics as a very powerful tool to enhance the existing and current tools of citizen participation and representation.

Our work will ultimately focus on the citizen assemblies that took place during the second decade of this 21st century in Ireland on issues of great social, legal, and constitutional importance such as marriage equality, abortion, gender equality, and the environment. We will seek to conclude, after developing the established itinerary, that citizen assemblies should be the direct transmission of public opinions to the political class and not, as we outlined at the beginning, just another tool of the existing institutional framework.

THE BREACH OF THE RECHTSSTAAT IN BOLIVIA, IN THE LAST DECADE

2025-01-23T13:40:38+00:00

The subject of this document Is to generate a reflective analysis on the systematic breach of the Rechtsstaat in Bolivia, identifying events that have arisen in the last decade, in order to understand the problem.

The Rechtsstaat, embodied as a principle with the French Rev. of 1789, arises from the need to limit the absolute and arbitrary exercise of the ruler's power. The Rechtsstaat from a classical approach, is understood as a State where rulers and ruled submit on equal terms to Law. The doctrine establishes characteristics that allow diagnosing a greater or lesser validity of it, such as: The supremacy of the Constitution, division of functions, responsibility of the administration and respect for human rights.

In the last decade, Bolivian rulers have tended not to abide by the norm, if it is not favorable to his interests situation fully reflected during the Evo Morales administration, when the Constitution limited the possibility of consecutive re-election for only one time, he resorted to interpretations of the Plurinational Constitucional Court to ignore this limit on more than one occasion. The first, using Constitutional Declaration No. 0003/2013, ignoring the first transitory provision II, of the bolivian contitution, to enable his second re-election. And the second through SCP 84/2017 that highlights the submission of this Court, by declaring indefinite re-election as an unlimited human right, to enable his third re-election, ignoring not only the limits of the Constitution, but also the will of the people sovereign expressed through a 2016 referendum, in which the limit to re-election by only one opportunity is reaffirmed immediately.

Therefore, when the ruler does’nt submit to the Constitution, the organs of power remain subject to one of them, and/or not respect the limits to the exercise of power, the effective validity of a Rechtsstaat cannot be claimed.

DIGITAL COMPLIANCE AND GOVERNANCE: INTERDISCIPLINARY DIALOGUE IN THE DIGITAL ERA

2025-01-23T13:40:40+00:00

This paper explores the key concepts of digital compliance and governance and their implications in the context of the rapidly evolving digital era. The discussion highlights the distinction between ethics and morals, emphasizing the need for organizations to align individual values with societal norms to ensure responsible behavior in the digital realm, emphasizing the importance of establishing comprehensive codes of ethics and guidelines to address conflicts of interest, foster trust, and uphold ethical standards. It further examines the concept of digital compliance as a multidisciplinary effort that involves legal, technical, and ethical expertise to ensure adherence to legal frameworks, industry practices, and internal policies. Additionally, it underscores the significance of digital governance in effectively managing technology-related processes, safeguarding data, and aligning digital initiatives with organizational objectives. Effective governance practices are essential to maintaining integrity, mitigating risks, and promoting responsible use of digital resources. In conclusion, the intersection of digital compliance and governance presents organizations with complex challenges in the digital era. By embracing ethical principles, adhering to regulations, and implementing robust governance practices, organizations can navigate these challenges, build trust, and thrive in the ever-changing digital landscape.

THE SURETY IN THE BOLIVIAN CIVIL PROCEDURAL CODE

2025-01-23T13:40:42+00:00

The Law No 439 inside the precautionary process and unlike other legislation in Latin America, has excluded the caution as one of the budgets to make the request for precautionary measures effective, so that, analyzing the perception of some authors in this regard, as well as the principle of procedural equality, it reflects and unravel the precautionary measures as a precautionary process, analyzing the consequences that can cause on the litigating parties, who are still litigating an alleged right.