DERECHO TRIBUTARIO Y CONSTITUCIONAL DERECHO Y NUEVAS TECNOLOGIAS ACTUALIDAD JURIDICA Y ECONOMICA MEDIOAMBIENTE
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Sunday, May 18, 2014
Tuesday, May 13, 2014
PAULET v. REINO UNIDO (STEDH 13-05-2014)
El caso resuelto hoy por el TEDH se refiere al comiso de la renta ahorrada (21,699,60 GBP) por un trabajador originario de Ivory en el Reino Unido.La renta se obtuvo por trabajos realizados entre Abril de 2003 y Febrero de 2007 con un salario bruto de 73.293,17 GBP, por los que se pagaron impuestos y cotizaciones sociales por un importe total de 23,293,17 GBP.
Para la realización de los trabajos el trabajador hizo uso de un pasaporte falso, por lo que fue condenado a una pena privativa de libertad.
El comiso se acuerda en un procedimiento distinto y su objeto se considera un beneficio derivado del ilícito penal.
El órgano nacional desestimó considerar si el comiso era compatible con el justo equilibrio exigido por el artículo 1 del Protocolo 1 del CEDH,
Por esta infracción procedimental, la mayoría considera que se ha producido una violación del artículo 1 del Protocolo 1, pero al mismo tiempo no concede una justa compensación por el importe decomisado sino solo por el daño moral derivado del mismo, por entender que tampoco consta un vínculo directo entre la infracción y el daño.
Este último pronunciamiento es objeto de la opinión separada de los jueces Kalaydjieva (Bulgaria) y Bianku (Albania), que consideran que la infracción es sustancial y no solo procedimental y que la compensación debería haber incluido el importe indebidamente decomisado.
En un comentaruio de urgencia, otras cuestiones importantes del caso, no abordadas directamente por la Sentencia y/o los votos particulares, serían, en nuestra opinión, las siguientes:
1) Si la contraprestación por un trabajo efectivo y la renta disponible después de impuestos constituyen posesiones no legales en el sentido del artículo 1 del Protocolo 1 cuando en el inicio de la relación laboral se ha realizado una representación falsa mediante la utilización de un documento falsificado.Si el Estado tiene o no, en este sentido, un título adicional sobre la renta después de impuestos como consecuencia del ilícito previamente sancionado con una pena privativa de libertad.
2) Si a efectos del CEDH puede considerarse como un "beneficio ilícito" desde el punto de vista penal una renta de trabajo efectivo que ha pagado impuestos y cotizaciones sociales y si tal consideración de beneficio ilícito es compatible con el artículo 1 del Protocolo 1 del CEDH.
3) Si la privación de la renta de trabajo ahorrada después de impuestos puede considerarse proporcionada, una pena no prevista legalmente o una medida en el interés público adicional a los impuestos y cotizaciones sociales previamente satisfechos.
4) Si el "comiso" del producto del trabajo puede considerarse un impuesto o gravamen adicional a efectos del artículo 1 del Protocolo 1 del CEDH.
5) Si la privación de la renta de trabajo ahorrada constituye en conjunto un gravamen desproporcionado incompatible con el artículo 1 del Protocolo 1 del CEDH.El demandante habría pagado en total más de un 61% de su renta de trabajo, perdiendo la totalidad del ahorro disponible (N.K.M. v. Hungría).
Los aspectos anteriores se sumarían a aquellos señalados por los jueces Kalaydjieva (Bulgaria) y Bianku (Albania) en su opinión separada.
Una cuestión similar había sido considerada previamente por el Tribunal Supremo del Reino Unido en el caso R. v. Waya , citado por la Sentencia.
Este es el voto separado de los jueces Kalaydjieva (Bulgaria) y Bianku (Albania) en cuanto a la infracción del artículo 1 del Protocolo 1:
"My reasons
for finding a violation of Article 1 of Protocol No. 1 go further than those of
the majority. In my understanding, the issues which this case raises are far
from limited to the deficiencies in the procedural protection of the applicant’s
right to peaceful enjoyment of property that were reflected in the narrow scope
of the review carried out by the domestic courts and their failure to seek and
strike the “fair balance” inherent in the second paragraph of Article 1 of
Protocol No. 1 (see paragraph 68).
I find myself
unable to agree with the majority’s conclusions (see paragraph 64) that the
present case is analogous to previous case-law of this Court on the
confiscation of the proceeds of crime (see Phillips
v. the United Kingdom, no. 41087/98, and Bongiorno and Others v. Italy, no. 4514/07, 5 January 2010).
The present
case appears to depart substantially from this case-law on several major points
which seem to be determinative for the proper analysis of the circumstances. In
the case of Phillips the Court noted
that “in respect of every item taken into account the [national] judge was
satisfied ... that the obvious inference was that it had come from an
illegitimate source”. In the present case (which concerns the application of
different domestic legislation), it has not been contested that, having entered
the territory of the United
Kingdom by using a false passport, the
applicant used it to obtain employment and thus earn his income. Unlike in Phillips, however, it has not been submitted that such employment
constituted itself a crime on the part of the applicant, or that the regulation
of the domestic labour market went so far as to make any irregularly obtained
employment criminal or punishable in any manner. Likewise, it has not been contended that the
applicant’s work caused any public or private harm rather than contributing to
the public welfare. Notwithstanding this situation, the applicant’s genuinely
earned savings were defined and confiscated as the “proceeds of the crime” of
using a false passport – an act for which the applicant was punished in separate
proceedings. The difference between the reasonable assumption as to the
criminal origin of the confiscated property in the case of Phillips and the remote or indeed non-existent link between the use
of a false passport and the genuine earning of the confiscated amounts in the
present case appears quite obvious.
This
difference raises questions as to whether the circumstances of the present case
fall to be considered under the first or the second paragraph of Article 1 of
Protocol No. 1. It is true that under the established case-law of the Court,
the confiscation of the proceeds of crime is seen as a measure compatible in
principle with the Convention and its Protocols. However, I find myself unable
to agree that in the present case the confiscated amounts could be clearly and
necessarily defined as the proceeds of crime. Such an assumption is apt to regard any irregular
employment as criminal, with the result that any earnings from such employment
would be subject to confiscation in the exercise of “the right of a State to
enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties” within the meaning of the second paragraph of
Article 1 of Protocol No. 1 to the Convention. In my understanding, the
Court has hitherto regarded the confiscation of the “proceeds of crime” as
compatible with the Convention where a direct link between criminal conduct and
the proceeds could be established or reasonably assumed. In the absence of such
a direct link, I would venture to express doubts as to the clarity of the law
and the foreseeability of the imposed measure.
Given that the applicant’s employment as such was not
of a criminal nature and that the criminal origin of the confiscated earnings
cannot be established or reasonably assumed, a question arises whether the
circumstances in the present case fall more appropriately to be examined under
the first paragraph of this provision, which calls for closer scrutiny of the
public interest pursued by the measure and of the clarity and foreseeability of
the conditions provided for by law for the purposes of such confiscation. In assessing compliance with
Article 1 of Protocol No. 1, the Court normally makes an overall examination of
the various interests in issue, bearing in mind that the Convention is intended
to safeguard rights that are “practical and effective”. It must look behind
appearances and investigate the realities of the situation complained of,
including the conduct of the parties, the means employed by the State and their
implementation (see Broniowski v. Poland
[GC], no. 31443/96, § 151).
Limiting the
scope of the present case to only some of its “procedural aspects”, the
majority failed to express any views on whether the applicable legislation was
sufficiently precise as to the conditions for forfeiture, whether the domestic
courts were required to analyse the link between the assets proposed for
forfeiture and the specific crime, and whether they did so in the present case.
It might be
true that the findings of the majority with regard to the limited judicial
scrutiny performed are sufficient to enable the Court to conclude that there
has been a violation of Article 1 of Protocol No. 1 (see paragraph 69).
However, the limited findings as to the “procedural nature” of the established
violation (see paragraph 73) neither afford relevant redress in respect of
Article 1 of Protocol No. 1, nor do they seem to require a subsequent domestic
review with a scope sufficiently wide to satisfy the requirement of seeking and
striking a “fair balance” required by the said provision (see paragraph 68). In
this regard the view that it is not necessary to reach any conclusions in
respect of (the lawfulness and/or) the proportionality of the confiscation
order leaves the applicant’s essential grievances unaddressed both at the
domestic level and by the Court.
For these reasons I also disagree with the majority’s
view as to the “absence of a proximate causal link between the procedural
violation found and financial loss sustained by the applicant by reason of the
confiscation order” (see paragraph 73). In the absence of any subsequent
examination of this causal link and/or the proportionality of the uncontested
interference, the applicant should have been awarded compensation in pecuniary
damage, and not merely for moral damage."
Monday, April 21, 2014
STEDH AFFAIRE GRANDE STEVENS ET AUTRES C. ITALIE (4-03-2014)
Monday, April 14, 2014
LAS CONSECUENCIAS ECONOMICAS DE LA DESIGUALDAD DE INGRESOS
Economic Consequences of Income Inequality - Carnegie Endowment for International Peace
MICHAEL PETTIS
This article originally appeared in China Financial Markets.
What is very clear from
this analysis is that there are really only three sustainable solutions to the
global crisis in demand. Either the world has to embark on a surge in
productive investment, or we need to reduce the income share of the state and
of the rich, or we must accept that unemployment will stay high for many more
years.
The first is possible, but
with so much excess manufacturing capacity and excess infrastructure in many
parts of the world, and with significant debt constraints, we need to be very
careful about how we do this. Certainly countries like the United States, India
and Brazil
lack infrastructure, but they do so largely because of political constraints,
and it is unreasonable to assume that any of these countries will soon embark
on an infrastructure-building boom.
Even if they do, the amount
of excess savings is likely to be huge, and without a significant
redistribution of income to the middle classes and the poor, it is hard to see
how we can avoid high global unemployment for many more years. Because trade
war is the form in which countries assign global unemployment, I would expect
trade relations to continue to be very difficult over the next few years, as
countries with high unemployment and low savings intervene in trade, thus forcing
the savings back into countries with excess savings.
So what are the policy
implications? Clearly Europe, the US,
China, Japan, and the
rest of the world must take steps to reduce income inequality. Just as clearly
countries like China and Germany must take steps to force up the household
income share of GDP (in fact polices aimed at doing this are at the heart of
the Third Plenum reform proposals in China). Because it will be almost
impossible to do these quickly, as a stopgap countries with productive
investment opportunities must seize the initiative in a global New Deal to keep
demand high as the structural distortions that force up the global savings rate
are worked out.
But redistributing income
downwards is easier said than done in a globalized world, especially one in
which countries are competing to drive down wages. The first major economy to
attempt to redistribute income will certainly see a surge in consumption, but
this surge in consumption will not necessarily result in a commensurate surge
in employment and growth. Much of this increased consumption will simply bleed
abroad, and with it the increase in employment.
Less global trade, in other
words, will create both the domestic traction and the domestic incentives to
redistribute income. In a globalized world, it is much safer to “beggar down”
the global economy than to raise domestic demand, and so I expect that there
will continue to be downward pressure on international trade.
Until we understand this do
not expect the global crisis to end anytime soon, except perhaps temporarily
with a new surge in credit-fueled consumption in the US (which will cause the
trade deficit to worsen) and more wasted investment in China (which, because it
is financed with cheap debt, which comes at the expense of the household
sector, may simply increase investment at the expense of consumption). These
will only make the underlying imbalances worse. To do better we must revive the
old underconsumption debate and learn again how policy distortions can force up
the savings rate to dangerous levels, and we may have temporarily to reverse
the course of globalization.
I will again quote Mariner
Eccles, from his 1933 testimony to Congress, in which he was himself quoting
with approval an unidentified economist, probably William Trufant Foster. In
his testimony he said:
It is utterly
impossible, as this country has demonstrated again and again, for the rich to
save as much as they have been trying to save, and save anything that is worth
saving. They can save idle factories and useless railroad coaches; they can
save empty office buildings and closed banks; they can save paper evidences of
foreign loans; but as a class they cannot save anything that is worth saving,
above and beyond the amount that is made profitable by the increase of consumer
buying.
It is for the interests
of the well-to-do – to protect them from the results of their own folly – that
we should take from them a sufficient amount of their surplus to enable
consumers to consume and business to operate at a profit. This is not “soaking
the rich”; it is saving the rich. Incidentally, it is the only way to assure
them the serenity and security which they do not have at the present moment.
(…)
Inevitably some one will
discover that Keynes and Krugman said many of these things, in which case the
essay is the work of the devil and innocent young people should not be allowed
to read it, or that it agrees with things that Laffer and Friedman have said,
in which case ditto. In fact an awful lot of economists in the past 200 years
and on every part of the political spectrum have agreed with some or all of
this model, mainly because it is just basic economics. There should be no guilt
by association here, please.
This article originally appeared in China Financial Markets.
Sunday, March 30, 2014
Wednesday, March 5, 2014
Saturday, February 22, 2014
Sunday, February 2, 2014
Sunday, January 19, 2014
Thursday, January 2, 2014
Thursday, December 12, 2013
Saturday, November 16, 2013
PRESERVANDO LOS BIENES COMUNES (COMMONS)
"This textbook will discuss
the main framework, concepts and applications of the work of Elinor Ostrom and
her colleagues for an undergraduate audience. We began teaching a course on
collective and the commons in 2007 at Arizona State
University. Initially we
made use of Ostrom’s classic book “Governing the Commons”, but this book was
not written for an undergraduate audience. Moreover, many new insights have
been developed since the 1990 publication of “Governing the Commons”. Therefore
we decided to write our own textbook, which we have been using since the Spring
of 2012.
In this book you will learn
about institutions–the rules and norms that guide the interactions among us. Those
rules and norms can be found from traffic rules, rules in sports, regulations
on when and where alcohol can be consumed, to constitutional rules that define
who can become president of the United
States of America. Rules and norms guide us
to cooperative outcomes of so-called collective action problems. If we rely on
voluntary contributions only to get anything done, this may not lead to the
best results. But research also shows that coercion of people to comply to
strict rules do not necessary lead to good outcomes. What combination of sticks
and carrots is needed to be successful to solve collective action problems such
as sustaining the commons?

The book is based on the work of Elinor Ostrom and her colleagues. Ostrom is best known as the 2009 co-recipient of the Nobel Prize in Economics “for her analysis of economic governance, especially the commons”. Elinor Ostrom was a professor at Indiana University since the mid 1960s, and a part-time research professor at Arizona State University since 2006. She was active in research and teaching until her death at the age of 78 on June 12, 2012."
More information on the
work of Elinor Ostrom can be found at:
Nobel Prize websiteWebsite at Indiana University
Some related websites you may find of interest:
Center for the Study of Institutional Diversity (CSID), Arizona State University – the authors’ research center.
The Vincent and Elinor Ostrom Workshop in Political Theory and Policy Analysis, Indiana University – the research center founded by the Ostroms in 1973.
International Association to Study the Commons – an international society for scholars who study the commons.
Examples of commons:
www.cancercommons.org
www.creativecommons.org
www.commonsrising.ning.com
www.otherworldsarepossible.org/defending-global-commons
www.onthecommons.org
www.flickr.com/commons/
Cuadro sobre tipos de reglas como variables exógenas que
afectan a una situación, incluido en el libro:

Sunday, October 20, 2013
EZ crisis and historical trilemmas | vox LA CRISIS DE LA EUROZONA Y LOS TRILEMAS HISTORICOS
EZ crisis and historical trilemmas | vox
2. The financial sector – fixed exchange rates, capital flows, financial stability;
3. The international relations setting – fixed exchange rates, capital flows, national policy independence;
4. The political economy – fixed exchange rates, capital flows, democratization.
The European crisis in the context of historical trilemmas
Michael Bordo, Harold James, 19 October 2013
The linkages of these issues can be summarized as a series of impossible trinities or trilemmas.
1. The macroeconomic classic – fixed exchange rates, capital flows, autonomous monetary policy;
2. The financial sector – fixed exchange rates, capital flows, financial stability;
3. The international relations setting – fixed exchange rates, capital flows, national policy independence;
and
4. The political economy – fixed exchange rates, capital flows, democratization.
Sunday, September 8, 2013
60 ANIVERSARIO DE LA ENTRADA EN VIGOR DEL CEDH
The European Convention on Human Rights, which was signed in Rome on 4 November 1950, entered into force on 3 September 1953. Under Article 66 of the Convention, the Convention’s entry into force was triggered by the deposit in Strasbourg of the tenth instrument of ratification, which was deposited by the Grand Duchy of Luxembourg.
President Dean Spielmann expressed satisfaction at the anniversary, saying: “Those who deposited the instrument of ratification believed that the Convention would form the bedrock of democratic Europe, an enterprise for peace and freedom. They considered it a great honour for Luxembourg to make possible the entry into force of what they described as ‘the finest European undertaking to date’. Sixty years on, we strive every day to continue on the course they charted for us.”
Since 1953, over 500,000 applications have been dealt with by the machinery set up under the European Convention on Human Rights and the Court has delivered approximately 16,500 judgments.
http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4475019-5391788#{%22itemid%22:[%22003-4475019-5391788%22]}
Tuesday, August 6, 2013
CRISIS DE DEUDA DE LA EUROZONA: UNA OPCION
Lo más relevante de la contribución de Pâris y Wyplosz
To end the Eurozone crisis, bury the debt forever
Pierre Pâris, Charles Wyplosz, 6 August 2013The Eurozone’s debt crisis is getting worse despite appearances to the contrary. How can we end it? This column presents five major options for reducing crisis countries’ debt. Looking into the details, it seems the only option that is both realistic and effective is for countries to default by selling monetised debt to the ECB. Moral hazard aside, burying the debt seems to be the only way we can end the crisis.
(…)
How to gauge the Eurozone debt crisis
This leaves us with a coarser measure – the evolution of public debts – as a ratio to GDP. Spreads were clearly better indicators before OMT. There are plenty of problems with debt-to-GDP ratios:- Gross debts are gross, i.e. they ignore public assets.
- Gross debts ignore unfunded public liabilities such as pensions and healthcare.
- GDP is a static measure of the ability to pay; GDP growth also matters.3
The three points taken together suggest that debt-to-GDP ratios of the 2010s paint a more optimistic picture of sustainability than the same levels in the 1990s.
Be that as it may, Figure 1 displays the public debt to GDP ratio for the Eurozone as a whole, along with the highest and lowest member country ratios (ignoring the two special cases of Estonia and Luxembourg).
- Even including optimistic forecasts for 2013, the figure can only confirm that the situation is getting worse.
There can be no surprise here. Budget stabilisation cannot work during a recession as was pointed out at the outset of crisis (Giavazzi 2010, Wyplosz 2010).
Figure 1. Debt to GDP ratios in the Eurozone (%)

Source: AMECO-on-line, European Commission.
(…)
Option 5: Debt monetisation
As often when numbers become too big for governments, the central bank emerges as the lender of last resort. De Grauwe (2011) has made the crucial observation that the fundamental reason why the debt crisis has been circumscribed to the Eurozone is that the markets did not believe that the ECB was ready to backstop public debts.The success of the ECB’s OMT programme so far, in spite of its conditional nature, shows the role that a central bank can play when it moves in the direction of accepting its role as a lender of last resort. But stabilising spreads is merely a temporary stopgap. The legacy of crippling and threatening public debts remains to be dealt with.
This is why debt monetisation emerges as another solution.5 But a mere purchase of bonds by the ECB will not work for two reasons:
- First, each country must pay interest on its bonds, including those held by the central bank.
- Second, when the debt matures, the country will have to pay back the principal.
How the ECB could deal with the debt
For debt monetisation to allow for relief, the debt must be somehow eliminated once it has been acquired by the ECB. One way of achieving this goal is as follows:- First, the ECB buys bonds of a country, say for a value of €100.
- Second, it exchanges these bonds against a perpetual, interest-free loan of €100.
The counterpart of this operation will appear on the liability side of the ECB’s balance sheet as a €100 increase in the monetary base. This is the cost of the debt monetisation.
Debt monetisation has a bad reputation, which is justified by the fact that it has often led in the past to runaway inflation.
Under current conditions, this is most unlikely to be inflationary. Given the icy state of credit markets, increases in the money base do not translate into increases of the actual money supply; in effect, the money multiplier is about zero.
In addition, high unemployment has created a deflationary environment. But, hopefully, the credit market will be revived one day and the recession will come to an end. At this stage, the money base will have to be shrunk. This is the exit problem (Wyplosz 2013). An alternative is to raise reserve requirements to reduce the size of the money multiplier. Either way, the balance sheet expansion need not lead to inflation.
One solution is for the ECB to sterilise its entire bond buying under this programme by issuing its own debt instruments, leaving the size of the money base unchanged. This can be done at the time of bond purchases or later, when exit will be undertaken.
Of course, the ECB will have to pay interest on its debt instruments, which will reduce profits and seigniorage to all member countries, both the defaulting ones and the others. This transfer ‘in the right direction’ is the way all member countries will share the loss inherent to debt restructuring.7
As always, we have to accept the tyranny of numbers. Today’s balance sheet of the ECB amounts to €2430 billion. The big bang example examined above would add €1200 billion, an increase of 50%. This is huge, but not unprecedented. In July 2007, the ECB balance sheet was €1190 billion – half of what it is today.
Conclusion
At the end of the day, except for Option 1, which is the classic virtuous approach, and Option 2, the disposable of public assets, none of the other options is appealing.But if Options 1 and 2 are impossible, one has to choose among bad options.
Option 3 is clearly the least desirable because it would shake the markets and possibly take down large segments of the banking system. Option 4 is not just politically explosive; it could trigger a debt crisis among the countries currently perceived as healthy. This leaves us with Option 5.
Of course, defaulting through the ECB is merely a fig leaf to hide the cost of debt restructuring. In addition to spreading the impact over the long run, it has the advantage that the non-virtuous countries will share the costs in the form of reduced profit transfers from the ECB over the long run.
Obviously, debt cancellation entails a huge moral hazard that needs to be dealt with. Here it bears to emphasise that bringing the crisis to an end requires two conceptually different actions:
- One is dealing with the legacy of unsustainable debts, which is what the options presented here do (note that it is proposed to deal with the debt stock legacy, not to finance on-going deficits. A once-for-all action is far less dangerous than a permanent moral hazard).
- The other is to make sure that it will never happen again.
Topics: EU institutions, Macroeconomic policy
Tags: Debt crisis, debt monetisation, Eurozone crisis


Thursday, August 1, 2013
ESPAÑA, UNA TEMPORADA EN EL INFIERNO
Comentario de Jordi Amat en La Vanguardia sobre el libro de Juan Pedro Quiñonero "Tú que no puedes"
"La confianza en las instituciones seguirá siendo la más baja de Europa" (es un decir)
Sunday, July 14, 2013
JUSTICIA PARA ERIZOS DE RONALD DWORKIN
Iureamicorum: Justicia para erizos de Dworkin: Muy bueno el Link del blog de Roberto Gargarella sobre el Seminario que se realizó en la Boston University sobre el último libro de Ronal...
Referencias importantes del libro último del autor de "Tomando los derechos en serio"
Referencias importantes del libro último del autor de "Tomando los derechos en serio"
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