These past few days have been very intense and when neighbors, friends, family or just acquaintances, I have asked my opinion on Biden-Sinde law in all cases I have said the same thing "I think it's an issue of unconstitutionality." Unfortunately, I also ran a chill down your back, when I realized that most of my partners looking at me with the same skepticism and surprise with which those primitives monolith watching the movie Cula "Space Odyssey 2001" ...
with anesthesia may be caused by the growing social Telebasurato the TDT (TV Dummies) and incomprehensible virulent reactions sterile and useless tantrum, of which should be called intellectuals in the dictionary of the RAE , reaching some cases, qualify the poor surfer from "Taliban", "pimp", "pirate", "fascist" and a thief ", people expect something else from undersigned, but all I see is that the greatest victim of this whole issue of law-Sinde Biden, is none other than our Constitucióndand 1978 and thus, our democratic system.
I may be a freak, but had a critical age when certain things happened very important in this Paisy of lived with all the intensity, emotion, ilusióny hope that may feel idealistic teenager on the verge of adulthood. It was a turning point in civil liberties. That feeling is what some have called the "spirit of the democratic transition" and of course, if someone has not experienced it may not be able to understand ever. Let us not forget that many espa & amp; about girls; oles left blood, sweat and tears to ensure that Spain is a democracy and at times, as the present one, I feel as if this enormous effort and sacrifice is not adequately appreciated by those who should ensure the quality of our democracy.
These circumstances experienced in my youth, I have been deeply and I can not keep my hair stand on end when I hear the song "Freedom without Wrath" Jarcha (not put the link so you can pass), a song that reminds me of the moments and feelings of that exciting time of my life. All these personal circumstances have made me a Democratasset values as they are really worth these rights, warranties and obligations contained in the English Constitution.
For a few days I could not vote on the constitution, but that did not stop me seriously worry for his elaboracióny content, which succeeded despite the significant limitations of the mass media n the time, they were so interactive, as it could be television, radio, or newspaper. But these constraints did not prevent communication with intensity and enthusiasm saw the new rights and freedoms that the Constitution gave allEnglish. Rights and freedoms, as they are very important for democratic life, adorn the Title I of our Constitution. As in all self-respecting constitutions, the most important legal body always gets to the top of it. I still have at home and love, this little book handed to the English know their new constitution.
These rights under Title I, there are three that have special protection in our Constitution, and require a judicial decision, with all that that implies, to be restricted in some way. These are the right to privacy, con the inviolability of the home (Art. 18.2) and the necessary secrecy of communications (Art. 18.3), free expression (Article 20.5) and the right of association (Article 22.4). It is evident that the English parliament who participated in the drafting of the Constitution, were very clear about rights abuses in the past and that to live fully in democracy, it was necessary Intervenció n of a judge who was to enter into the merits in a criminal proceeding, in order to restrict them. Ie restrict these rights implied a "judicial decision", not a "judicial authority", which evencan be considered a kind of resolution, not what it says Constitucióny restricts the options available. If we accept "judicial authority" common synonym for judicial resolution, it's like a constitution recognizing the right to drink and then pass a law that only allows drinking water. Clearly, in this case, it would restrict rights in the Constitution, because if I have the right to drink, no one should be able to say I can only drink water to comply with that law. While it is true that drinking water is also drinking, as I said, it is not enough freedom.
The Constitution, as currently drafted, guarantees very important for a modern democracy. If a person has not committed any crime, or there are some clear indications that he will commit, you can have full legal guarantee that nobody, not even a judge, you can search his house, speak their communications, limiting their freedom of expression, or prevent freely associate.
The need for a judge to have to go into the merits before it can restrict constitutional rights, has much to do with the proper functioning of justice in a democratic system. In the course of criminal proceedings, Although initially the confidentiality of judicial decrees, must intervene the prosecution, which is the legal guarantees and safeguards the rights of citizens, as provided in Article 124.1 of our Constitution. Secrecy is lifted, interested parties can know the contents of the proceedings and, if necessary, can be challenged, either by defects in motivation, or other legal services, the measures taken by the judge. Something they can do about the same magistrate, the District Court, the Supreme Court, the Constitutional Court or even before the International Court in Strasbourg.
A simple "judicial authority" of a special magistrate, Which does not enter the merits, immersed in an administrative proceeding in the Central Court of Administrative Litigation (right outside the National Court of terrorists and drug traffickers) and without the intervention of the Attorney General, such as currently envisaged in the law-Sinde Biden, I think there are sufficient guarantees when it comes to basic rights to live in democracy and freedom.
therefore believe that only a court would be admissible, and never a "judicial authority", if in the course of criminal proceedings and with clear evidence of a crime, the judge considers by a resolution & amp; oacute n motivated, it is necessary to limit certain fundamental rights of a person. Be essential that motivation, to publicize the reasons, to convince stakeholders of the justice of the measures, facilitate the use of stakeholders and ensure control decision by higher-level courts in case resource.
already commented at the time the possible unconstitutionality of a law that has not been written to defend the interests of English authors and not emanating from their sovereignty. But a little more abounding in the possible unconstitutionality of the law-Sinde Bidenand in view of what I said earlier, I believe that it is not consistent with the spirit of democracy and rights-to which our Constitution was drafted. I further believe that at least enough common sense to think that if the Constitution says that a court is necessary to limit certain rights, it does not serve anything but is a judicial decision.
While the information pamphlet [pdf] has distributed the Government to defend the law-Sinde Biden will say things how are you:
a) The government will not be able &; Aacute; close Webs without prior judicial authorization. (Something that is not enough and certainly not one who closes the Government, a Commission through an administrative procedure).
b) The Commission may require to remove that content with prior judicial authorization, as required by law . (Actually, the Act provides that laws must be a judicial decision, which involves a criminal prosecution with all the guarantees, the intervention of the prosecution and the judge enters the merits, also is unknown final composition of the Second Section of the Commission).
The areaity is that these claims are incorrect and not justified at all possible trampling of constitutional rights that can make the current wording of the law-Sinde Biden. Unfortunately, it is the first time something similar happens in Spain. Gone were other attempts as unconstitutional and undemocratic, highlighting the famous "law Corcurera" or "law of the kick in the door, the one with the flimsy excuse of protecting security citizen, allowing a breathtaking ease violate the sacred constitutional guarantee of the inviolability of the home. Though still in force, the Constitutional Court had m &; Aacute; s no choice but to declare the second paragraph of Article 21 by the ruling 341/1993 of 18 November, to everyone's relief that the English were shocked by that measure.
Given these facts and convictions, I see very disturbing news as restlessness preocupacióny how are you:
- The Government antidescargas new legislation designed to agree with the PP in the Senate
- Rubalcaba on 'Law Sinde': "The government is going to try again"
- Rubalcaba: "We will explain to the internet thatSinde law is not against the Red "
Said and given the above, I think I need not explain anything, I know the mistakes of the content, which they currently use and although we say the law-Sinde Biden not against the Internet directly, I have very clearly going against what the Constitution says and what is worse, goes against the spirit with which it was drafted to ensure our democratic freedom. Someone also said that the Biden-Sinde law has nothing to do with freedom of expression, but the fact is that says the following:
"The execution of these actss, since this can affect the rights and freedoms guaranteed in Article 20 of the Constitution, require prior judicial authorization. "
words, something will have to do with these important rights and freedoms of Article 20, when the same law-Sinde Biden picks up on its content. However, it is surprising that the law does not provide what the Constitution says regarding the need for a court to limit those rights. Clearly, after the scandalous fortunes is taking this law, that the government is unwilling to "distort" the urgency of the procesor legal (I do not see any judicial process anywhere, I see an administrative process with a simple authorization of a judge who does not enter into the merits of the case). But if that's the urgency on the precautionary measures they are concerned, informing them that is something that is already covered by current copyright law in Article 138:
"Article 138 . Urgent actions and precautionary measures.
The owner of the rights recognized in this Law, without prejudice to other actions that apply to you, may demand the cessation of the infringer's unlawful activity and demand compensation for damages mMaterials and moral damages caused, under the terms provided for in Articles 139 and 140. You can also encourage the publication distribution, in whole or in part, the judicial or arbitral media infringer's expense. "
also think that the total judicializació n the process would not be effective, it could be true, but it is equally true that the total criminalization is necessary to preserve certain guarantees and rights of citizenship, as required by the Constitution English. Therefore, I think the only "l & iacute; red line "not to transfer in this case, is what makes the Constitution, demand what they demand some stakeholders, which in some cases, even far from the authors, are the companies that hold exploitation rights n of them and in no case they can recognize the same rights as authors.
As I said before and is shared by others who know more than me about this issue, the best solution would be to find a suitable partner, if possible, have little to do with unfortunate episodes of insults and outbursts that have lived these days and everyone representingsectors affected you, feel to write a bill of Intellectual Property, modern and efficient, in line with what UN says [pdf] on intellectual property, satisfies all stakeholders.
So I think at this moment not much to "negotiate" or "makeup" on which law should consider late-Sinde Biden. I also think he should have been enough scandal "sindegate" , the social rejection raised and no vote in Congress to seek a new alternative for consensus, unlike the current proposal, rubbishy , is made to defend the rights of authors in the ma ; s sense of the word, As the UN says, anyone is entitled to benefit from the protection of moral and material interests resulting from any scientific, literary or artistic production of which E He or she is the author, so it is a much broader problem to be solved with the Biden-Sinde law, aimed at music downloads, books, films and the protection & amp; oacute n American audiovisual industry, rather than the protection of English authors, which is what we should really worry about our society.
Regarding civil society, all we can do in this case, is to demand their governments, with all legal means available to them, respect their fundamental rights and constitutional law and if not ;, exercise their constitutional sovereignty by voting.
"Steel Copyleft 2010 Fernando Martí-n. Verbatim copying, translation and distribution of this article is permitted in Entire Any digital medium, Provided this notice is preserved. " Quotation is allowed. "
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