Negative admissibility of evidence in public law litigation: reflections on the exercise of public authorities’ power in relation to the proof process

We consider the issues of the implementation of certain public authorities in relation to a future judicial dispute. We define the boundaries of use of additional evidentiary tools through the prism of the powers vested in other (non-parties in a particular court case) public entities. We substantiate the applicability of the general rule on negative admissibility, we highlight special cases when evidence previously obtained by an authority that does not have the status of a person participating in the case could still be submitted to a court case initiated on a dispute involving a public authority. The general logic of the proposed approach can be applied both to a procedural private opponent when he received “reinforcement” due to the actions of another authority, and can also be used for private law disputes. We conclude that the absence in the current Russian legislation of any norms that build in-tersectoral relations with regard to the institution of negative admissibility of evidence obtained by other authorities not only generates contradictions in judicial practice, but also in a certain sense discredits the adversarial judicial procedure itself and discourages public authorities, which begin to operate with special tools to combat socially dangerous acts in “ordinary” court cases.

A acidentada história de três ações civis públicas em matéria de saneamento | The bumpy story of three public civil actions in sanitation

Este artigo realiza uma análise do andamento processual de três ações civis públicas relativas a saneamento básico ajuizadas nos Municípios de Aquidauana, Mato Grosso do Sul; Tubarão, Santa Catarina e Santa Maria, Rio Grande do Sul. O estudo tem um duplo objetivo. Em primeiro lugar, trazer exemplos concretos e atualizados da pesquisa realizada por Ana Paula de Barcellos e disponível no artigo “Sanitation Rights, Public Law Litigation, and Inequality: A Case Study from Brazil”[1] no que diz respeito ao cumprimento das decisões judiciais proferidas em cada uma dessas ações, que determinavam a prestação de serviços de saneamento básico. Espera-se que a investigação qualitativa desses casos em particular possa colaborar na complementação dos dados quantitativos levantados pela pesquisa citada. O segundo objetivo do estudo é avaliar a existência e acessibilidade de informações acerca da execução das referidas decisões judiciais. As conclusões apuradas foram as seguintes: (i) existe um grande abismo entre a consagração judicial do direito e sua efetiva implementação na realidade; e (ii) os sites dos Tribunais não contém informações acerca da execução real das decisões judiciais nos casos examinados.[1] Artigo publicado no Health and Human Rights Journal nº 2, Vol, 16. December, 2014. Harvard University. Disponível em: https://cdn2.sph.harvard.edu/wp-content/uploads/sites/13/2014/12/Barcellos-final.pdf

HUMAN RIGHTS, INEQUALITY AND PUBLIC INTEREST LITIGATION: A CASE STUDY ON SANITATION FROM BRAZIL

Disaggregated data on the relative success of the UN millennium goals made clear that the progress achieved in many countries, Brazil included, was not equitable, positioning the question “How to address inequalities?” as the next pressing challenge in human rights. Public law litigation could be regarded as a tool to reduce inequality, particularly in Brazil, given a unique institution of its legal system, the Public Prosecutors Office. This paper uses public interest litigation discussing access to sanitation services to test this hypothesis. In 2013, only 58.2% of the households had access to sanitation, with significant regional inequality in coverage. Boolean analysis was applied to assess court orders (2003-2013) and results showed a disconnect between litigation and demand for sanitation, indicating that areas that were better off in various social and economic indicators were the ones receiving attention. The paper suggests reflections on how public interest litigation could target those most in need.

HUMAN RIGHTS, INEQUALITY AND PUBLIC INTEREST LITIGATION: A CASE STUDY ON SANITATION FROM BRAZIL

Disaggregated data on the relative success of the UN millennium goals made clear that the progress achieved in many countries, Brazil included, was not equitable, positioning the question “How to address inequalities?” as the next pressing challenge in human rights. Public law litigation could be regarded as a tool to reduce inequality, particularly in Brazil, given a unique institution of its legal system, the Public Prosecutors Office. This paper uses public interest litigation discussing access to sanitation services to test this hypothesis. In 2013, only 58.2% of the households had access to sanitation, with significant regional inequality in coverage. Boolean analysis was applied to assess court orders (2003-2013) and results showed a disconnect between litigation and demand for sanitation, indicating that areas that were better off in various social and economic indicators were the ones receiving attention. The paper suggests reflections on how public interest litigation could target those most in need.

HUMAN RIGHTS, INEQUALITY AND PUBLIC INTEREST LITIGATION: A CASE STUDY ON SANITATION FROM BRAZIL

Disaggregated data on the relative success of the UN millennium goals made clear that the progress achieved in many countries, Brazil included, was not equitable, positioning the question “How to address inequalities?” as the next pressing challenge in human rights. Public law litigation could be regarded as a tool to reduce inequality, particularly in Brazil, given a unique institution of its legal system, the Public Prosecutors Office. This paper uses public interest litigation discussing access to sanitation services to test this hypothesis. In 2013, only 58.2% of the households had access to sanitation, with significant regional inequality in coverage. Boolean analysis was applied to assess court orders (2003-2013) and results showed a disconnect between litigation and demand for sanitation, indicating that areas that were better off in various social and economic indicators were the ones receiving attention. The paper suggests reflections on how public interest litigation could target those most in need.

Part V Separation of Powers, Ch.29 The Constitutionalization of Administrative Law

This chapter analyses the insertion of the Constitution into the centre of Australian administrative law. This process of constitutionalization has occurred incrementally, driven by context and necessity. There has been little overruling: rather, there have been shifts in language and emphasis, in circumstances almost entirely concerned with the rocky and changeable course of government policy in Australian migration law, and refugee law in particular. Although it need not have been so, constitutionalization has occurred by the High Court's emphasis on section 75(v) of the Constitution. After describing the origins, purpose, and role of section 75(v) as the setting for this change in emphasis, this chapter examines the signs of constitutionalization and the key features of public law litigation which have contributed to it. The chapter concludes with a discussion of some of the consequences of constitutionalization, and what future developments might occur.