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El derecho a la salud mental en el Perú del siglo XXI ¿un derecho protegido o un derecho postergado por el estado peruano?
(Pontificia Universidad Católica del Perú, 2014-09-03)
Si bien el Estado Peruano bajo el mandato constitucional de respeto a la dignidad de la persona humana y de reconocimiento al derecho a la salud mental, ha ejercido un importante avance en la formulación de políticas públicas en materia de salud...
Tutela de los derechos sociales y justicia constitucional dialógica
(Pontificia Universidad Católica del Perú, 2021-10-26)
La investigación que presento ha sido elegida por la creciente jurisprudencia del Tribunal Constitucional, respecto de la tutela de los derechos sociales. En nuestro contexto latinoamericano, se está desarrollando un enfoque dialógico que busca...
The investigation that I present has been chosen by the growing jurisprudence of the Constitutional Court, regarding the protection of Social Rights. In our Latin American context, has been developing a dialogical approach that search from the deliberative democracy, contribute with the protection of the fundamental rights. To achieve that purpose, I start from the dialogical constitutionalism, to identify their characteristics and face in a better way the new perspectives of the jurisdictional function, I propose the dialogical judicial activism like a mechanism defense of Social Rights. Furthermore, in my research I develop the normative criteria for an adequate jurisdictional dialogue in defense of these rights: I establish as an initial point a justifying diagnosis of the jurisdictional dialogue, then, I focus this research on dialogue of the constitutional justice and finally its implementation in the called structural judgments. The methodological approach that I use is the argumentative, comparative and the jurisprudential studies. I analyze national and compared doctrine texts, relevant jurisprudential cases from different Vertex Cuts and jurisprudence from our Constitutional Court. Also, I utilize the analysis and synthesis method, deductive and inductive. On the other hand, I arrive in the conclusion that to protect effectively the social rights, these must be judicialized as long as the political power doesn’t do its function; however, I don’t look for a government of judges, but from the high courts and with the participation of all the actors that are involved in the defense of these rights resolve conflicts inter parts, and the tutelage can reach more affected people to avoid future judicial claims. The effects of the judgments are projected to cooperate in the design, implementation and monitoring of the public policies entrusted to the competent authorities, respecting the Democratic State of Law with view to obtain a dialogical constitutional justice....
The investigation that I present has been chosen by the growing jurisprudence of the Constitutional Court, regarding the protection of Social Rights. In our Latin American context, has been developing a dialogical approach that search from the deliberative democracy, contribute with the protection of the fundamental rights. To achieve that purpose, I start from the dialogical constitutionalism, to identify their characteristics and face in a better way the new perspectives of the jurisdictional function, I propose the dialogical judicial activism like a mechanism defense of Social Rights. Furthermore, in my research I develop the normative criteria for an adequate jurisdictional dialogue in defense of these rights: I establish as an initial point a justifying diagnosis of the jurisdictional dialogue, then, I focus this research on dialogue of the constitutional justice and finally its implementation in the called structural judgments. The methodological approach that I use is the argumentative, comparative and the jurisprudential studies. I analyze national and compared doctrine texts, relevant jurisprudential cases from different Vertex Cuts and jurisprudence from our Constitutional Court. Also, I utilize the analysis and synthesis method, deductive and inductive. On the other hand, I arrive in the conclusion that to protect effectively the social rights, these must be judicialized as long as the political power doesn’t do its function; however, I don’t look for a government of judges, but from the high courts and with the participation of all the actors that are involved in the defense of these rights resolve conflicts inter parts, and the tutelage can reach more affected people to avoid future judicial claims. The effects of the judgments are projected to cooperate in the design, implementation and monitoring of the public policies entrusted to the competent authorities, respecting the Democratic State of Law with view to obtain a dialogical constitutional justice....
Sentencia del 01 de octubre de 2021 de la Corte Interamericana de Derechos Humanos: Caso Vera Rojas vs. Chile
(Pontificia Universidad Católica del Perú, 2023-08-01)
En el Estado chileno el sistema de seguridad social es heterogéneo, es decir reconoce
el derecho a la cobertura de la salud por instituciones públicas y privadas. Según el
Sistema Nacional de Servicios de Salud a cargo del Ministerio de Salud, el...
In the Chilean State, the social security system is heterogeneous, that is, it recognizes the right to health coverage by public and private institutions. According to the National Health Services System in charge of the Ministry of Health, the private sector contributes through Social Security Institutions, called Isapres. So, the insurance company Isapre MasVida stopped providing coverage to Martina Rojas Vera after classifying her illness as a chronic illness, basing its decision on a norm of the health sector. Therefore, the main problem of this report will be to determine if the Chilean State violated the right to social security through the actions of the company. Likewise, the main normative instruments used in the report will be the American Convention on Human Rights, general observations of the Committee on Economic, Social and Cultural Rights, jurisprudence of the Inter-American Court of Human Rights, specialized opinions of subsidiary bodies of the UN, the Amicus Curiae of a legal educational institution, specialized doctrine among others. Finally, the main conclusions are two. In the first place, affirm the duty that States have when regulating and supervising the behavior of private companies to prevent the violation of human rights. The second is to highlight the State's duty to protect persons with disabilities regarding equal access to their right to social protection....
In the Chilean State, the social security system is heterogeneous, that is, it recognizes the right to health coverage by public and private institutions. According to the National Health Services System in charge of the Ministry of Health, the private sector contributes through Social Security Institutions, called Isapres. So, the insurance company Isapre MasVida stopped providing coverage to Martina Rojas Vera after classifying her illness as a chronic illness, basing its decision on a norm of the health sector. Therefore, the main problem of this report will be to determine if the Chilean State violated the right to social security through the actions of the company. Likewise, the main normative instruments used in the report will be the American Convention on Human Rights, general observations of the Committee on Economic, Social and Cultural Rights, jurisprudence of the Inter-American Court of Human Rights, specialized opinions of subsidiary bodies of the UN, the Amicus Curiae of a legal educational institution, specialized doctrine among others. Finally, the main conclusions are two. In the first place, affirm the duty that States have when regulating and supervising the behavior of private companies to prevent the violation of human rights. The second is to highlight the State's duty to protect persons with disabilities regarding equal access to their right to social protection....
Las Naciones Unidas y el derecho a la libre determinación de los pueblos indígenas en países independientes (1945-2016)
(Pontificia Universidad Católica del Perú, 2017-08-22)
PONTIFICA UNIVERSIDAD CATOLICA DEL PERU
FACULTAD DE DERECHO
Las Naciones Unidas y el derecho a la libre determinación de los pueblos indígenas en
países independientes (1945-2016)
Tesis para...
optar por el Título Profesional de Abogado que presenta el bachiller: Luis Enrique Mendoza Chávez Asesor: Dr. José A. Burneo Labrín Lima, junio de 2017 Resumen La investigación plantea la relevancia del estudio del derecho a la libre...
optar por el Título Profesional de Abogado que presenta el bachiller: Luis Enrique Mendoza Chávez Asesor: Dr. José A. Burneo Labrín Lima, junio de 2017 Resumen La investigación plantea la relevancia del estudio del derecho a la libre...
Derecho de acceso a la cultura e interpretación judicial en derechos de autor
(Pontificia Universidad Católica del Perú, 2016-05-16)
, se encuentra también los más grandes centros de violación al
derecho de autor: a dos cuadras del Palacio de Justicia está Polvos Azules1
y, frente a la
Corte Superior de Lima, “el Hueco”2
.
Hace diez años se creó Facebook y Gmail. Y The Pirate Bay...
La posibilidad de integrar el derecho al vuelo como derecho real en el Perú
(Pontificia Universidad Católica del Perú, 2022-03-26)
El presente trabajo versa sobre la integración del derecho al vuelo como derecho real,
teniendo en cuenta las normativas actuales, acuerdos plenarios y doctrina extranjera. La
finalidad del presente trabajo es incentivar a la búsqueda de posibles...
The purpose of the present paper deals with the integration of the right to flight as real right, taking into consideration the current regulations, plenary agreements and foreign doctrine. The purpose of this work is to encourage the investigation for possible solutions regarding three key points, the first point based on article 881 of the Peruvian civil code and the principle "numerus clausus" as the first barrier to integration as a real right of the right to flight , secondly, to establish a legalistic position of how it should be integrated into our ordinance and thirdly to visualize the practical panorama of the scope that the construction faculty is having in our ordinance based on the regulations that have been dictated as the last plenary agreement based on the independence of airs on airs....
The purpose of the present paper deals with the integration of the right to flight as real right, taking into consideration the current regulations, plenary agreements and foreign doctrine. The purpose of this work is to encourage the investigation for possible solutions regarding three key points, the first point based on article 881 of the Peruvian civil code and the principle "numerus clausus" as the first barrier to integration as a real right of the right to flight , secondly, to establish a legalistic position of how it should be integrated into our ordinance and thirdly to visualize the practical panorama of the scope that the construction faculty is having in our ordinance based on the regulations that have been dictated as the last plenary agreement based on the independence of airs on airs....
Urbanismo y derecho: posible solución de las invasiones de las laderas de Lima desde el derecho comparado
(Pontificia Universidad Católica del Perú, 2022-09-20)
La presente investigación trata de las invasiones de las laderas de los cerros de Lima y su posible solución, desde un enfoque del Urbanismo y el Derecho, específicamente en el problema de la falta de un Plan de Desarrollo Urbano que ordene el...
The present investigation deals with the invasions of the hillsides of Lima and their possible solution, from an approach of Urbanism and Law, specifically in the problem of the lack of an Urban Development Plan that orders the growth of the city and that can be executed by the District Municipalities. For this reason, the research proposes an integral solution for the informal invasions from an approach of recognition of the right to the city and its complement with an Urban Development Plan, through the analysis of the solutions proposed at the level of Comparative Law, the presentation of the antecedents and different approaches from different disciplines. Beginning with the cause of invasions to state lands due to difficult access to formal property, large migrations, segregation of populations with fewer resources, etc. Then, compiling legislation and planning that has been implemented in Peru, Brazil and Colombia, in order to compare and collect the best of each. Finally, conclude that the ideal solution for the growth of the city in an orderly manner is the recognition of the right to the city, complemented with the integration of an urban development plan that is executed by the district municipalities, as well as the recognition and reform of the system of formalization of invasions of COFOPRI....
The present investigation deals with the invasions of the hillsides of Lima and their possible solution, from an approach of Urbanism and Law, specifically in the problem of the lack of an Urban Development Plan that orders the growth of the city and that can be executed by the District Municipalities. For this reason, the research proposes an integral solution for the informal invasions from an approach of recognition of the right to the city and its complement with an Urban Development Plan, through the analysis of the solutions proposed at the level of Comparative Law, the presentation of the antecedents and different approaches from different disciplines. Beginning with the cause of invasions to state lands due to difficult access to formal property, large migrations, segregation of populations with fewer resources, etc. Then, compiling legislation and planning that has been implemented in Peru, Brazil and Colombia, in order to compare and collect the best of each. Finally, conclude that the ideal solution for the growth of the city in an orderly manner is the recognition of the right to the city, complemented with the integration of an urban development plan that is executed by the district municipalities, as well as the recognition and reform of the system of formalization of invasions of COFOPRI....
La ejecución de las sentencias sobre el pago de las pensiones de jubilación y cesantía: De una configuración plural e insuficiencia hacía un real y efectivo cumplimiento estatal
(Pontificia Universidad Católica del Perú, 2022-03-24)
El derecho a la protección judicial, permite que los participantes de un proceso judicial,
puedan mantener la vigencia de los derechos que se reclaman en el ámbito jurisdiccional.
Tal es así, que la vigencia implicará eficacia y goce de los derechos...
The right to judicial protection permits to the participants in a judicial process to maintain the rights that are claimed in the area of jurisdiction. This is so, that the validity will imply effectiveness and enjoyment of rights in such conflicts. The right to the execution of judicial decisions forms part of the right to judicial protection, which takes on a leading and far-reaching role because it will enable the rights declared by the courts to be fulfilled and implemented; Therefore, the execution needs to be fast, simple and effective. However, we will assume that at that stage the jurisdictional authority courts have applied rules in a pluralistic manner, in direct violation of the fundamental right to a pension and the principle of financial sustainability. At the same time, however, we will have to ensure that the time limits for the enforcement of judgements with economic content are not expressly reflected in the constitutional procedural codes, and that judicial bodies refer without objective reason to other adjective rules, despite the fact that the phenomenon of supplementary law is exceptional. Therefore, we ask ourselves the following question: How to protect the right to a pension in the execution of the judgments that order the monthly payment of retirement and severance pensions, plus the accruals and legal interest in the constitutional process of amparo, having regard to the fact that the courts apply, without a uniform criterion, ¿various adjective legal rules for a proceeding in this area?...
The right to judicial protection permits to the participants in a judicial process to maintain the rights that are claimed in the area of jurisdiction. This is so, that the validity will imply effectiveness and enjoyment of rights in such conflicts. The right to the execution of judicial decisions forms part of the right to judicial protection, which takes on a leading and far-reaching role because it will enable the rights declared by the courts to be fulfilled and implemented; Therefore, the execution needs to be fast, simple and effective. However, we will assume that at that stage the jurisdictional authority courts have applied rules in a pluralistic manner, in direct violation of the fundamental right to a pension and the principle of financial sustainability. At the same time, however, we will have to ensure that the time limits for the enforcement of judgements with economic content are not expressly reflected in the constitutional procedural codes, and that judicial bodies refer without objective reason to other adjective rules, despite the fact that the phenomenon of supplementary law is exceptional. Therefore, we ask ourselves the following question: How to protect the right to a pension in the execution of the judgments that order the monthly payment of retirement and severance pensions, plus the accruals and legal interest in the constitutional process of amparo, having regard to the fact that the courts apply, without a uniform criterion, ¿various adjective legal rules for a proceeding in this area?...
Participación de la niñez indígena amazónica en su derecho a la salud sexual y reproductiva
(Pontificia Universidad Católica del Perú, 2023-01-12)
La participación de las niñas, niños, niñes y adolescentes en su salud sexual y reproductiva
es un derecho que encuentra la base de su obligación en múltiples instrumentos del derecho
internacional de los derechos humanos y también en el derecho...
The obligation of the State to recognize and guarantee the right of participation based on the progressive autonomy of children and adolescents must be developed in accordance with the Convention on the Rights of the Child, in everything related to their sexual and reproductive health in the different aspects in which they operate, such as homes, schools and communities. Compliance with these obligations is strictly necessary in contexts such as the Peruvian Amazon, where different regional factors (geographical, economic and sociocultural) must be taken into account by the State in the development of its public policies, specifically, the indigenous membership of childhood and, consequently, the provisions of Convention 169 on Indigenous and Tribal Peoples in Independent Countries. In that order of ideas, this thesis is aimed at studying the legal content based on the rights of indigenous children in the context of the Loreto region, this being the region with the highest presence of indigenous peoples and worrying figures related to pregnancy in girls and adolescents and sexual violence. For this, an interdisciplinary description and analysis from the approach of the rights of children and indigenous peoples will be presented, with the aim of outlining a proposal for a human right standard, challenges and recommendations to be considered within the framework of the design and implementation. of a public policy....
The obligation of the State to recognize and guarantee the right of participation based on the progressive autonomy of children and adolescents must be developed in accordance with the Convention on the Rights of the Child, in everything related to their sexual and reproductive health in the different aspects in which they operate, such as homes, schools and communities. Compliance with these obligations is strictly necessary in contexts such as the Peruvian Amazon, where different regional factors (geographical, economic and sociocultural) must be taken into account by the State in the development of its public policies, specifically, the indigenous membership of childhood and, consequently, the provisions of Convention 169 on Indigenous and Tribal Peoples in Independent Countries. In that order of ideas, this thesis is aimed at studying the legal content based on the rights of indigenous children in the context of the Loreto region, this being the region with the highest presence of indigenous peoples and worrying figures related to pregnancy in girls and adolescents and sexual violence. For this, an interdisciplinary description and analysis from the approach of the rights of children and indigenous peoples will be presented, with the aim of outlining a proposal for a human right standard, challenges and recommendations to be considered within the framework of the design and implementation. of a public policy....
Análisis jurídico de las tendencias no contenciosas y jurisprudenciales sobre el acceso a la interrupción del embarazo desde el DIDH
(Pontificia Universidad Católica del Perú, 2024-04-23)
aborto en los derechos humanos de las
mujeres. De esta manera, se argumentará la existencia de normas e
interpretaciones de estas normas como el inicio de una línea argumentativa a
favor del acceso a la interrupción del embarazo de las mujeres gestantes...
This paper will conduct a legal analysis of the non-contentious and jurisprudential trends regarding access to abortion under international human rights law. For that purpose, we will begin by explaining the normative protection afforded to access to abortion under international human rights law. In this sense, based on the contentious and jurisprudential pronouncements of universal and regional bodies, the impact of restrictive regulations on abortion on women's human rights will be made visible. In this way, the existence of norms and interpretations of these norms will be argued as the beginning of a line of argument in favor of access to abortion for pregnant women. In this sense, the contradiction of the line of argument on the violation of the right to life of the fetus as a consequence of access to termination of pregnancy will be demonstrated. Indeed, it will be shown that the right to life does not confer absolute protection to the fetus. On the contrary, the restriction of access to termination of pregnancy is materialized in the violation of the right to life of pregnant women. In the same vein, we will demonstrate the possible violation of other human rights protected in various human rights instruments, such as the right to privacy and reproductive health. Finally, we will demonstrate the noncontentious and jurisprudential consensus in certain cases of access to termination of pregnancy with respect to the pronouncements issued by the Human Rights Protection Systems....
This paper will conduct a legal analysis of the non-contentious and jurisprudential trends regarding access to abortion under international human rights law. For that purpose, we will begin by explaining the normative protection afforded to access to abortion under international human rights law. In this sense, based on the contentious and jurisprudential pronouncements of universal and regional bodies, the impact of restrictive regulations on abortion on women's human rights will be made visible. In this way, the existence of norms and interpretations of these norms will be argued as the beginning of a line of argument in favor of access to abortion for pregnant women. In this sense, the contradiction of the line of argument on the violation of the right to life of the fetus as a consequence of access to termination of pregnancy will be demonstrated. Indeed, it will be shown that the right to life does not confer absolute protection to the fetus. On the contrary, the restriction of access to termination of pregnancy is materialized in the violation of the right to life of pregnant women. In the same vein, we will demonstrate the possible violation of other human rights protected in various human rights instruments, such as the right to privacy and reproductive health. Finally, we will demonstrate the noncontentious and jurisprudential consensus in certain cases of access to termination of pregnancy with respect to the pronouncements issued by the Human Rights Protection Systems....