Journal articles on the topic 'Recognition and waiver of a procedural claim'

This article is Part II of a study on the effects of age discrimination in the workplace. In Part I, we considered the origins of the debate on age discrimination and looked at the demographic information that led to the passage of the Age Discrimination in Employment Act (ADEA) in 1967. In Part II, we raise an important question: Is age discrimination still a real problem? The article analyzes the Act through an application to two employment scenarios by looking at the scope of protection, amendments to the original law, the costs of age discrimination to employers, important exceptions to the ADEA, defenses to ADEA charges, procedures for filing an ADEA claim, and waiver provisions. In addition, the article looks carefully at procedural requirements for filing an ADEA claim, remedies available to an aggrieved party, and to questions relating to retaliation by an employer. Finally, the authors consider the question of employer liability for actions undertaken by employers and other parties which are found to be in violation of the law. In doing so, the authors provide answers to the questions raised in the scenarios described at the outset of the article.

Not always are a legal transaction and the legal consequences thereof limited to complete and voluntary fulfilment of the mutual obligations of the parties. In cases when a commitment has not been fulfilled, there is an option for a creditor to request for judicial protection in order to prove substantiality of his claim and to receive confirmation to his right to recover the debt in a form of court judgment. However, in the civil legal relationship such impairment of a right is possible which exists outside the dispute regarding the right. A debtor fails fulfilling his obligation and not denies doing it. In such circumstances, notwithstanding recognition of the debt, in order to achieve compulsory execution of the obligation, a document to be enforced is also needed. Provided the type of transaction allows establishing of such type of legal consequences, simplified procedural arrangements may be applied, and restricted principle of contest may result in the possibilities of procedural economy being exercised. Admissibility of such procedural possibility also inevitably activates the discussion regarding what the preconditions of the simplified procedure are and how the simplified procedure of establishing the debtor's obligation can be consistent with protection of his rights. The article focuses on the procedural legal principles, which are involved in the alternative to claim proceedings action of the expedited proceedings and the mutual coherency thereof. Attention is also paid to the form of the transaction and significance thereof in the simplified proceedings.

This publication discusses the question on “necessary” evidence assessable by the court in consideration of requirements of the consumer of financial services to insurance company regarding the seeking reimbursement of property damages resulting from an automobile accident. The author examines the question on recognition as “necessary” evidence a decision of a financial officer made after examination of the claim of a financial service consumer on violation of insurance policy obligations by the insurer, as well as materials obtained by the financial officer in examination of such claim. The theoretical research is based on application of the following scientific methods: systemic-structural analysis, synthesis, and comparative-legal analysis. The research substantiates the position that recognition as “necessary” evidence of materials collected by the financial officer in examination of a claim of a consumer of financial services on violation of obligation by a financial organization would contribute to a proper examination of an insurance dispute, as well as meet the goals of the procedural efficiency of the judicial process, since the requirement of these materials from the financial officer by the court will exclude the need for repeated submission of these materials during a hearing.

Resumen: Partiendo del reciente Auto del Tribunal Superior de Justicia de Madrid de 18 de abril de 2018, sobre reconocimiento de un laudo arbitral extranjero, se estudian los problemas del valor pro­batorio de los laudos como documentos privados extranjeros, la competencia judicial internacional de los Tribunales españoles para resolver el exequatur en esta materia y la validez de la subsanación de la demanda de reconocimiento. También se hace una propuesta sobre la traducción de los documentos que deben acompañar a la demanda.Palabras clave: reconocimiento de laudo arbitral extranjero, valor probatorio del laudo, competen­cia judicial internacional en cuanto al exequatur, subsanación de la demanda, traducción de documentos.Abstract: Based on the recent decision of the Superior Court of Justice of Madrid of April 18, 2018, on the recognition of a foreign arbitral award, the problems of the probative value of the awards as foreign private documents, the international jurisdiction of the Spanish Courts to know about its exe­quatur and the validity of the fault rectification of the demand on exequatur are analysed. A proposal on the translation of the documents that must be attached to the claim is also made.Keywords: recognition of foreign arbitral award, probative value of the award, international juris­diction on exequátur, fault rectification of the claim, translation of documents.

Abstract The case against Ahmad Al Faqi Al Mahdi marked the first prosecution and conviction for acts of destruction of cultural heritage before the International Criminal Court (ICC). Therefore, for the first time, the ICC recognized that although the crimes were committed against buildings and property, individuals and communities harmed by this destruction were victims who could participate in the proceedings and receive reparations. Using the Al Mahdi proceedings as a case study, this article examines how the prosecution of the destruction of cultural heritage, and also the reparations proceedings, were influenced by human rights considerations. This article concludes that human rights considerations influenced the Chamber’™s reparations decision in the Al Mahdi case, particularly in regards to the victims’™ recognition, participation and ability to claim a reparations award. However, the article argues that procedural and human rights considerations were not extended equally to the convicted individual and fell short of achieving an appropriate balance of rights.

This study is devoted to the analysis of Slovak restructuring law limited to the interpretation of § 124 sec. 6 ZoKR. The provisions of Slovak law in relation to claims reported but not recognized in the restructuring proceedings allow creditors to bring legal action against the debtor, under the so-called incidental action. The effects of the court’s decision issued after conducting such proceedings are set out in § 124 sec. 6 ZoKR. The content of the study presents arguments for the thesis that the term “ne mozno voci dlznikovi vymahat”, as used in § 124 para. 6 ZoKR, carries a substantive effect of the expiry of the claim, but as a result of the court’s recognition of the case in an incidental proceedings by virtue of the general procedural rules, it appears – the state of res judicata. From the provision of § 124 para. 6 ZoKR it should be concluded that by the end of the incidental process, the state of lis pendes is updated.

The article analyzes the changes in the conceptual and categorical apparatus of the sciences of the criminal-legal block in connection with the updating of the criminal and criminal procedural legislation of Ukraine. Reforming of criminal and criminal procedural legislation in Ukraine, normative introduction of new terms has created a certain cognitive dissonance in the system of concepts and categories, which negatively affects both law enforcement activities and research of legal phenomena. It is noted that the normative introduction of new categories into circulation without proper theoretical justification generates a number of contradictions in solving many problems of criminal proceedings. The necessity of bringing the concepts and categories of the branch and applied sciences of the criminal-legal block to a systematic nature is stated, which is the key to making correct procedural and tactical decisions in the course of criminal proceedings. The conclusion is formulated that the conceptual-categorical apparatus acquires the qualities of systematic and consistency only when the process of forming concepts and categories consistently goes through all the stages – from theoretical hypotheses (sentences) to their practical testing and legalization. The development of the conceptual and categorical apparatus of the sciences of the criminal law block (its system and consistency) is an important tool of cognitive activity in research and in the practical activities of criminal proceedings. As experience shows, it is inevitable to avoid gaps and contradictions in legislation and scientific concepts, which put, in particular, pre-trial investigation bodies, in a dead end and cause dubious decisions in the conditions of adversarial process. The stated position, of course, concerns certain problematic concepts and categories, does not claim the status of absolute truth and recognition and is an invitation to further analysis of this issue.

"The Romanian administrative litigation is distinguished by the lack of unity of opinion on the passive procedural quality and, at the same time, by the existence of an ingrained custom – the possibility of suing the issuing body of the administrative act, as the sole defendant, – a custom currently lacking a particular legal basis. Starting from these premises, the study investigates at a conceptual level and from a diachronic perspective, the evolution of the defendant” in the administrative litigation, concluding that it is necessary to abandon the described custom. The passive procedural quality of the issuing body, even without legal personality, was justified by the doctrinal recognition of the theory of restricted legal capacity (or administrative law capacity) developed by Professor Ilie Iovănaș half a century ago. However, this theory was preceded by a succession of regulations, doctrinal opinions, and jurisprudential solutions, which, on careful analysis, contradicted it rather than substantiate it. Thus, since the interwar period, a distinction has been made between administrative bodies with legal personality and those without legal personality, the general conclusion being that legal personality is the only basis for passive procedural quality. In its absence, the administrative bodies (or, more precisely, the natural persons who held the leading position within them) could stand in court only as representatives of the legal person under public law – the state, the administrative-territorial units, the public establishments. But, even in the political-legal context created by Decree no. 31/1954 regarding natural and legal persons and by Law no. 1/1967 of the administrative contentious, the passive procedural quality was inextricably linked to the legal personality of a public law entity, because regardless of the claim made by the plaintiff, at least one of the defendants had to be a legal entity: insofar as the issuing body the defendant did not have legal personality, it could stand trial only in procedural co-participation with the legal person who ensured its existence (the one that which it depended from a patrimonial point of view). Moreover, in the event of the existence of an appeal for damages, procedural co-participation was necessary because, from a legal point of view, it is inconceivable that an entity without its own patrimony could be legally obliged to satisfy a patrimonial claim made by another legal subject. In conclusion, at the time of its creation, the theory of restricted legal capacity was developed by Proffessor Ilie Iovănaș to substantiate the sufficiency of the concept of administrative capacity (part of legal capacity, along with the civil one) to justify the passive procedural quality of the issuing body. However, with the political-legal changes of 1989, the foreground is suddenly occupied by the concept of unitary local authority a legal person under public law having its own patrimony, the administrative bodies being, at the same time, “depersonalized” (deprived of their legal personality) by their conceptual rethinking. However, in order to justify the passive procedural quality of the issuing body, the doctrine and the jurisprudence are continuing to use the theory of (restricted) administrative capacity, introducing the concept of administrative/public authority through successive laws on administrative litigation facilitating the preservation of this unfortunate custom. Currently, the legal basis that the Romanian doctrine uses to legally substantiate the theory of administrative capacity is related to the notion of public authority, as it is defined by art. 2 para. (1) letter b) of Law no. 554/2004 of the administrative contentious, and then used in the provisions of art. 1 and 13 of the same normative act. This theoretical construction is at least debatable: on the one hand, the notion is incoherent, a source of ambiguity in itself because it unjustifiably (and unfoundedly) assimilates an entity with full legal personality (private law) to one without legal personality (public law), ruining any attempt to bring order in this matter. On the other hand, the inadequacy of that concept results from the fact that it does not resolve all the situations in which, in practice, there would be a need to determine the issuing body of an administrative act. Consequently, taking into account the fact that any type of capacity, regardless of whether it is a material or procedural law, cannot exist, in theory, outside the legal personality, because each type of capacity is only a part of the juridical capacity (general), and the fact that any exception to this capacity must be expressly provided for by law (a procedural one, in the case of the capacity to stand as a defendant before the administrative court), it is undoubted that the only solution theoretically correct and practically risk-free for the plaintiff would be that, regardless of their concrete claim in court, the legal person of public law whose body issued the illegal act, the one that has the power to resolve the plaintiff’s claim must havepassive procedural capacity . This solution is also in line with the principle of security of legal relations (clarity and predictability of the law), especially since a legal person under public law can be recognized as issuing authority. This solution is based, on the one hand, on the provisions of the Romanian Civil Code (art. 218, 219, 221) which, acquiring applicability in the matter of administrative contentious pursuant to art. 28 of Law no. 554/2004 and assimilating from specific points of view the legal person of public law with that of private law, subjecting to the rules of the mandate the relations between the legal person and its bodies, and, on the other hand, those of the Romanian Administrative Code, given that the notion of administrative capacity acquired today, through art. 5 letter o) of the Romanian Administrative Code has an entirely different meaning."

In this article the author examines the general theoretical problems associated with the abuse of the right of a judge in the exercise of his discretionary powers in the framework of justice. The author considers the category of “abuse” through the categories of “good faith”, “interest” and “impartiality”. The author substantiates the claim that the judge's interest in the case does not imply his lack of impartiality. The article states that a significant change in the direction of criminal proceedings from national values to the recognition of the individual, his rights to individuality and self-realization has led to the development of procedural contradictions caused by the collision of the traditions of domestic criminal proceedings with innovations borrowed from the Anglo-Saxon adversarial process. In order to determine the optimal ratio of judicial discretion and its limits in criminal proceedings, as well as to prevent abuse by the court, the author has developed proposals to consolidate the principle of good faith of participants in criminal proceedings and the definition of abuse in the exercise of court rights.

The subject of paper deals with the legal nature of measures of criminal procedural compulsionin the form of seizure of property.Methodological basis of the article is based on general scientific dialectical methods of cognitionof objective reality of the legal processes and phenomena that allowed us to conduct anobjective assessment of the state of legislation and law enforcement practice in the proceduralaspects of the cancellation of the seizure of property in criminal proceedings of Russia.The results and scope of it’s application. It is submitted that the cancellation of the seizureof the property (or the individual limit) is allowed only on the grounds and in the mannerprescribed by the criminal procedure law of the Russian Federation. However, the studyfound serious contradictions in the application of the relevant law. In particular, cases inwhich the question of exemption of property from arrest (exclusion from the inventory),imposed in the criminal case was resolved in a civil procedure that, in the opinion of theauthor of the publication, is extremely unacceptable.On the stated issues topics analyzes opinions of scientists who say that the dispute aboutthe release of impounded property may be allowed in civil proceedings, including pendingresolution of the criminal case on the merits. The author strongly disagrees with this positionand supports those experts who argue that the filing of a claim for exemption of propertyfrom arrest (exclusion from the inventory) the reviewed judicial act of imposing of arrestwithout recognition per se invalid. In this regard, the author cites the legal position ofthe constitutional Court of the Russian Federation, from which clearly follows that of theright of everyone to judicial protection does not imply the possibility of choice of the citizenat its discretion, techniques and procedures of judicial protection, since the features of suchjudicial protection is defined in specific Federal laws.The author analyzes and appreciates Kazakhstan's experience of legal regulation of the permissibilityof filing a civil claim for exemption of property from seizure imposed in criminalproceedings. The author notes that the new civil procedural legislation of the Republic ofKazakhstan, which came into force from 01 January 2016, clearly captures that considerationin the civil proceedings are not subject to claims for exemption of property from seizureby the criminal prosecution body.Conclusions. Necessity of amendment to article 422 of the Civil Procedure Code of Russia:this article should not apply to cases of application of measures of criminal procedural compulsionin the form of seizure of property. Among other things, the author proposed additionsto part 9 of article 115 of the Criminal Procedure Code of Russia.

Audit quality and responsibility of auditors for rendered services are two concepts closely correlating with each other. The owners and management of a company under auditing, when concluding a contract for audit, concern about getting reliable financial information on the economic status and actual financial effect, as well as about the absence of the risk of being held liable to fines and penalties of tax service in future. For society in general, high-quality audits of economic entities propel the investment processes and the economic efficiency improvement. The content of the concepts of audit quality, audit efficiency considered by the scientific community as the interdependent categories is revealed in the paper concerning the importance of these definitions for an audited person, auditing organization, society, and the state in general. The main goal of the study is the systematization of types and measures of auditors’ responsibility concerning the quality of rendered services and public significance of an auditor profession. As a result of the study, the authors recommended: to enshrine in the law on auditing activity the persons who are other persons granted the right to lodge a claim for recognition of an audit report to be deliberately false; to place disputes on the recognition of an audit report under the arbitration court jurisdiction that is in agreement with Article 27 of Arbitration Procedural Code of the Russian Federation; taking into account the specificity of financial information, which tends to get old rather quickly, it is logical to set a limitation period of one year concerning the recognition of audit report to be deliberately false.

This paper investigates the values and priorities reflected in a Canadian pipeline review: The National Energy Board (NEB) decision on Line 9. Theories of energy justice guided analysis of evidence presented at NEB hearings, the NEB’s explanation of its decision, and a Supreme Court challenge. We find that several aspects of energy justice were weak in the NEB process. First, a project-specific scope obstructed the pursuit of equity within and between generations: the pipeline’s contributions to climate change, impacts of the oil sands, and cumulative encroachment on Indigenous lands were excluded from review. Second, the NEB created a hierarchy of knowledge: it considered evidence of potential spill impacts as hypothetical while accepting as fact the proponent’s claim that it could prevent and manage spills. Third, recognition of diversity remained elusive: Indigenous nations’ dissatisfaction with the process challenged the NEB’s interpretation of meaningful consultation and procedural fairness. To address the challenges of climate change and reconciliation between Indigenous and settler nations, it is crucial to identify which kinds of evidence decision-makers recognize as valid and which they exclude. Ideas from energy justice can help support actions to improve the public acceptability of energy decisions, as well as to foster greater Indigenous autonomy.

Abstract:In recent literature on the restitution of Nazi-looted art, reference can be found to notions of morality as impetus for the return of cultural property to claimants who, although they may be able to evidence their ownership to an object, are stymied by onerous legal frameworks. With such claims, it is often the recognition of a moral entitlement or obligation that leads to a resolution regarding restitution. This conflation of morality with justice seems to have taken hold, in particular, with the articulation of the Washington Principles in 1998, which call on nation-states to create alternative dispute resolution processes for the fair and just resolution of Nazi-looted art claims. In determining what is fair and just in the resolution of these looted art claims, regard is often made to the strength of a party’s moral claim to the property. The exercise of notions of morality is often seen as resulting in a fair and just outcome, linking morality with the fair and just solution of such cultural property claims. But, it is justice on what ground? Is morality the proper yardstick by which to determine whether outcomes of restitution claims are just and fair? This article explores the use of morality and offers an argument that it should not be the basis on which entitlement should be determined, primarily due to its amorphous nature and undefined relationship to justice. This is further supported by a claimant narrative suggesting that concepts of reconciliation and procedural fairness are of concern to claimants rather than recognition of moral entitlement. Having regard to these concerns, the article recognizes a need for a new conceptual framework from which to assess the delivery of the just and fair solution and that reflects these concerns.

This paper examines solutions introduced by the new Serbian Family Act. It underlines the fact that the law significantly took in consideration European and international conventions and opinions of the European Court of Human Rights in family law matters. The Court practice will decide whether the equal treatment of the common law marriage and marriage in respect of requirements for their recognition is the best solution at this particular moment. The problem may be solved by equal treatment of the "illegal" common law marriage with invalid marriage. Important novelties have been introduced in the field of adoption, namely the partial adoption has been abolished, the age limit for the full adoption has been abolished; full adoption has become possible under certain circumstances even in case when the child has both parents. The provisions on inter-state adoption have not been well drafted since there is no enough protection for the adopted child in these cases. The new issues, which were not regulated by the Marriage and Family Law 1980 relate to the legal regulation of certain new, merely procedural, rights of the child, namely right of the child to express his/her opinion in all the proceedings that relate to his/her rights, right to file a claim for protection of these rights, possibility of emancipation of minor who became a parent based on the decision of the court, possibility of joint custody protection against family violence, introduction of mediation in the marriage matters and right of habitation under certain circumstances. Other novelties introduced by the law are incorporated in appropriate parts of law, either by amending or by supplementing the law, or by introducing the terminological innovation of certain solutions that existed in the previous law.

The paper addresses the issues of judicial discretion in the application of appropriate preliminary categories for the fair and impartial consideration and settlement of disputes. The author focuses on the peculiarities of applying the prejudice to express contradictions and truth-falsehood, establishment of erroneousness and truth of assessment. The administrative court is to assess a prejudicial relationship between judicial decisions concerning an established legal fact or composition, the consequences or claims arising from the same legal relationship in the original proceedings. Such prejudice applies to the following cases: 1) emergence, change or termination of the main legal relationship in the primary process, affecting the use of prejudicial categories in derivative legal relations in the subsequent process; 2) emergence of a legal relationship not generated by the primary relationship, which contains interdependent substantive legal regulations; 3) recognition of a claim for a conviction due to confirmed preliminary categories by a primary court decision, etc. Direction of assessing the circumstances of the case are dealt with in the paper to establish the facts by comparing the judge’s rules of law and conduct of the parties on the basis of operational rules of law, taking into account «legal issues» (in material/primary and procedural/secondary components). Under the influence of the nature of reasoning, such effective evaluation criteria are formulated as observance of the principles of confidence in law, justice, honesty and morality; standards of reasonableness, impartiality, good faith; political goals of ensuring the common good, security of the state, public interests. Within the procedural discretion when using the preliminary categories, the judge is to fully and impartially investigate the «question of fact» regarding the modelling of scenarios and empirical knowledge of the truth on the levels of probability, conviction, absolute certainty. This subject of evaluation is dependent on previous decisions in the direction of «definitive» interpretation in order to make an unambiguous decision. The author adduces examples of legal positions of the Supreme Court and courts of previous instances on applying preliminary categories in administrative proceedings. It has been identified that the possibility of preliminary categories non-application in case of motivated judge’s disagreement in the way of the «recall» within the subject of consideration of the factual circumstances of the case is to be provided. Deviation from prejudice might be justified if there is a need for a «live» transition of judicial practice to interpretation, filling gaps and open «legitimate» completion of the law. Relevant changes are to be implemented in a natural, gradual and coordinated manner. Procedure for overcoming the legal force of the preliminary ruling of a court decision has been proposed. The universality of a court decision is conditional. The standard legitimate way to reject prejudice is to review court decisions. Such decisions might be reviewed for compliance with the law and validity in their adoption. Confirmation of a judicial error «cancels» the preliminary nature of such a decision. Moreover, if the draft decision contradicts the preliminary categories given in another court decision that has entered into force, it is necessary to review unacceptable legal facts and compositions. For example, these could be procedural abuses, artificial distortion (creation or forgery) of evidence, etc. Key words: discretion, judicial discretionary power, prejudice, falsity, truth, contradiction.

The purpose of this article is to determine whether the forfeiture of assets as a result of declaring them unjustified should be considered as a penalty.Provisions governing the recognition of assets unjustified and its further forfeiture in the state revenue (RAS) were introduced into the Civil Procedural Code of Ukraine in 2015 and were criticized by the scientific community due to the similarities with the special confiscation provided by the Criminal Code of Ukraine, and were never implemented in practice. However, at the end of 2019, the essence of these provisions was dramatically changed via a combination of a foreign model of “non-conviction based forfeiture” and certain features of the crime of illicit enrichment. Right after the adoption of these new provisions, the members of the Ukrainian parliament initiated the constitutional petition. They claim that the RAS, being, in essence, a punishment, unreasonably deprives the party of protecting its rights and guarantees provided by the criminal legislation of Ukraine.Given the foreign origin of this legal mechanism and that this type of penalty was introduced into Ukrainian law not so long ago, the methodology of this research covers both analysis of current legislation, research of Ukrainian and foreign scholars, and the case-law of the European Court of Human Rights. The analysis allowed us to assess to which extent the procedure, severity, nature, and objectives of unjustified assets forfeiture coincide with the procedure, severity, nature, and objectives of punishment.The results suggest that such a penalty can be considered as a punishment neither under the European Convention on Human Rights nor national legislation, as it does not, inter alia, prove or disprove the facts of any offense or the connection of assets with any offense and is not intended to punish and prevent from committing other offenses. Given the fundamental nature of the issue under investigation in the context of its constitutional appeal and the lack of practice of applying such a penalty in Ukraine as of the preparation of the present research, the article has theoretical and practical importance.

Resumen:El artículo pretende analizar la evolución de la protección de la integridad personal en España desde la aprobación de la Constitución de 1978 hasta el presente.En primer lugar, se aborda el contexto en el que la Constitución fue aprobada y las opciones que al constituyente se le abrían. Se destaca que por primera vez en España se reconocía un específico derecho a la integridad, lo que no es habitual, al lado de la tradicional prohibición de torturas y penas o tratos inhumanos o degradantes que arrancó ya con la constitución de 1812.Era necesario analizar la protección de la integridad en el Derecho Internacional de los derechos humanos que España ha incorporado a su Orden jurídico, así como la Carta de Derechos fundamentales de la Unión Europea Que sí proclama el derecho a la integridad. En este sentido es destacable como el Tribunal Europeo de Derechos Humanos ha inferido el derecho a la integridad de la forma más generosa a través de una interpretación evolutiva del derecho a la vida privada.Sin embargo, no es fácil determinar ni cuál es el bien jurídico protegido ni cuáles las posiciones iusfundamentales que contiene; es decir, qué se protege y cuáles son las situaciones de la vida cuya vulneración el titular del derecho puede defender, llegado el caso, activando la labor tutelar de los tribunales. Por ello ha sido fundamental también el intenso desarrollo legislativo que lo ha concretado en diversos sectores del ordenamiento así como las medidas de protección en favor de los más vulnerables.Summary:1. The 1978 Context in which the right to integrity was recognized. 1.1 Overview of International Law and Foreign Constitutional Law. 1.2 The options of the Constituent Power in the process of drafting Article 15 of the Spanish Constitution. 2. The evolutionary interpretation of international law. 2.1 The extension of the protection field of Article 3 ECHR. 2.2 The inclusion of contents of the right to integrity into the right to respect for private life. a) Right to a criminal protection of the integrity. b) Right to authorize or refuse medical treatments. c) Right to sexual and reproductive life. The problem of abortion. d) Face to pollution. e) In the home. 3. Specific recognition of the right to integrity in the charter of fundamental rights of the European Union. 4. Determination of the fundamental positions under the right to integrity. 4.1 Procedural violation of the prohibition of torture. 4.2 Regarding health protection and in the heath field. a) Overlap with the right to health. b) Consent to medical treatment. c) Donations and transplants. d) Abortion as a potential exercise of the right to integrity by the pregnant woman. f) In the field of medical and scientific experiments. 4.3 Right to integrity against pollution. 4.4 Right to protection. 4.5 The guarantee to not suffer legal physical interventions and the exclusion of the indemnity guarantee. 4.6 In the special relationships of subjection. 4.7 In the labor market. 5. Conclusion: what object and what content?AbstractThe article tries to analyze the evolution of the protection of integrity in Spain since the Constitution came into force in 1978. First of all, it is addressed the context in which the Constitution was approved as well as the options opened to Constituent Power. It is underlined that, for the first time in Spain, a specific right to integrity is declared, something unusual at that time, together with the traditional prohibition of torture and inhuman or degrading treatment or punishment, already introduced in the Constitution of 1812.It was necessary to analyze how the protection of integrity in International Law on Human Rights, as well as the right to the integrity of the person, proclaimed specifically in the Charter of Fundamental Rights of the European Union. In this sense, it is remarkable how the European Court of Human Rights has inferred a right to the integrity from the right to respect for private and family life, by interpreting evolutionarily the Convention.However, it is not easy to determine neither the object of the right to integrity nor what are the fundamental positions, the life situations, whose violation should permit person to claim in Courts of Justice, by activating their protective function. For the rest, it has also been crucial the intense legislative development that has implemented, in various sectors of the legal system,measures of protection in favor of the most vulnerable people.

The concept of statute of limitations in the material sense is closely related to procedural law. Restoration of a violated right of a person is carried out by filing a lawsuit in court. That is why it is crucial to analyze the issue of the impact of the statute of limitations on individual civil litigation. The article is devoted to the study of the issue of the impact of certain procedural actions, including the suitability of the party, the rejection of the claim, investigating the issues related to the impact of filing a claim on the statute of limitations. In general, it should be taken into account that the given procedural actions have important legal consequences for the party, although it is essential to consider these procedural actions in terms of statute of limitations, in particular, to assess whether the plaintiff or defendant's involvement in legal action leads to the termination of statute of limitations. In general, it should be noted that the filing of a claim by a proper plaintiff constitutes a means of terminating the statute of limitations on the claim, although the party's inadequate consideration substantially alters the legal status. In addition, the legal consequences of a denial of a claim are not unequivocally identified by law, in particular, it is unclear whether a waiver of a claim is a valid remedy for termination of the statute of limitations. Based on the principle of definiteness, a clear regulation should be established regarding the given issue. However, in the current legislative regulation, no obvious impact of filing a claim is identified before initiating the lawsuit on the statute of limitations. The article also devotes to the analysis of the peculiarities of making a judgment in absentia in the statute of limitations and the application of the statute of limitations in the court of higher instance. It should be noted that there is a heterogeneous approach to the named issues, which, given the essence of the statute of limitations, may lead to a violation of the legitimate interest of the person. An in-depth study of the mentioned issues is presented and recommendations are proposed to ensure the identification and uniform explanation of the issues.

Abstract Stop and search has been argued to have a damaging impact upon trust in police and compliance with the law. Procedural Justice Theory has sought to explain this relation through perceptions of (un)fairness leading to the production of (il)legitimacy and to dispositions to (dis)obey. The article proposes a theoretical framework to supplement an explanatory gap in this theory, namely why perceptions of unfairness might lead to anti-police dispositions or attitudes. Ethnographic research is employed to elucidate the relevance of affective, emotional, and cognitive mechanisms in relation to the practice of stop and search. The article argues that the normative representation of the suspect by police and the disempowerment or removal of the subject’s agency at the hands of police contain the capacity to reveal a disparity between self-understanding and social recognition: the central affective condition for shame. Transformations of this affective experience into anger defend self-esteem by positioning the police as at fault, questioning the claim to authority, and simultaneously constructing the expressive drive to mistrust and confront the goal-obstacle to self-esteem.

Confederate batteries opened up on Fort Sumter in April of 1861, inaugurating the bloodiest conflict in American history. President Abraham Lincoln’s war effort, nursing wounds from defeats at Fredericksburg in 1862 and Chancellorsville in 1863, sorely needed more men and supplies. Propaganda campaigns and conscription efforts filled gaps in the depleted ranks of Lincoln’s army, helping it swell into the largest mobilization of troops in the world. Reliable supplies were, however, harder to come by; while Union soldiers fell to Confederate bullets and bayonets on the battlefield, army commissaries and quartermasters fell victims to fraud. A lack of meaningful government oversight had created an environment rife with profiteering. During the first years of the war, the government unwittingly purchased 1,000 horses so sick with every known equine disease that they were entirely useless; in another instance, the government paid a contractor for 411 horses of which only 76 were found fit for service (with the remainder being either blind, undersized, ringboned, or dead upon arrival). The government also bought artillery shells filled with sawdust rather than gunpowder, flimsy shoes that lasted for only twenty days, “rotten” blankets, “worthless” overcoats, and “muskets not [even] worth shooting.” To stop these abuses, Congress appointed a special committee, called the Select Committee on Government Contracts, to investigate the extent of the fraudulent contracting; the committee solicited testimony from military personnel, experts, and others that highlighted the disturbing magnitude of the problem. In response, the Union government promulgated the False Claims Act (“FCA”) in March of 1863. Following the conclusion of the war, and the rapid decline of government contracting needs, the FCA was left to gather dust in a forgotten corner of federal law until the late twentieth century. In the 1980s, the FCA surged back to prominence to address abuses in the defense contracting industry and, once again, it became the government’s weapon of choice to combat fraud.Since its Civil War origins, the FCA has undergone substantial changes. Congress, in recognition of the FCA’s increasing importance with the growth of the modern regulatory state, expanded the purview of the FCA in both 1986 and 2009, much to the chagrin of government contractors. The 2009 amendment, in particular, was a clear demonstration of congressional intent to expand the scope of the FCA by overriding federal judicial precedent that attempted to limit it. Congress’s goal in amending the FCA, thus, was not just to “enact a broad remedial statute” but rather to “preserve the traditional boundaries of fraud,” as well.The FCA operates as a powerful tool to combat fraud that, otherwise left unchecked, might imperil the federal government’s finances. The FCA allows either the Attorney General or a qui tam whistleblower (known in the FCA context as a relator) to bring an action on behalf of the United States against persons or entities committing certain types of fraud against the government. The FCA, codified at 31 U.S.C. § 3729, holds that any individual who “knowingly” presents or knowingly conspires to “present[], or cause[] to be presented, a false or fraudulent claim for payment or approval” or “makes, uses, or causes to be made or used, a false record or statement material to a false . . . claim” is liable under the FCA, which imposes damages up to $11,000 per violation in addition to treble the amount of the government’s damages. This can result in cases where the damages could total a staggering $2 billion. The FCA, as a tool of fraud deterrence and of compliance enforcement, has had the most significant effect on the healthcare industry. By way of illustration, between 1986 and 2009, two-thirds of the $22 billion recovered by the federal government ($14.3 billion) came from recoveries in the healthcare industry. Since 2009, however, differing interpretations of the Fraud Enforcement and Recovery Act (“FERA”), the passage of the Patient Protection and Affordable Care Act (“ACA”), and the Supreme Court’s unanimous decision in Universal Health Services, Inc. v. United States ex rel. Escobar have all expanded the scope of the FCA, leading new industries to find themselves increasingly in the crosshairs of expanded procedural theories of liability.At an operative level, the FCA posits that both “factually false” and “legally false” claims are actionable; “factually false” claims include goods or services either incorrectly described or not provided at all, and “legally false” claims are false based on statements, promises, or other certifications of compliance. While various circuits have held that the FCA reaches factually false conduct, legal falsity (with the Supreme Court’s recent endorsement) could gain traction as an equally important theory for prosecuting fraud. This expanded theory of liability may continue to evolve as the industries that the FCA regulates continue to evolve, as well. One such industry falling under this broad purview is higher education.This Note will address whether or not educational institutions in the for-profit sector should be held liable under the FCA for entering into a Program Participant Agreement (“PPA”) with the government, in good faith, only to thereafter commit fraud. This Note contends that the modern higher education environment provides an appropriate context in which courts may permissibly disregard any distinction between conditions of participation and conditions of payment for purposes of imposing FCA liability. It further posits that the Supreme Court’s Escobar decision, though an important landmark toward a broader enforcement tool, did not go far enough to deter fraud in higher education. Part I will describe the background of the FCA, the rationale for the development of the “legally false” theory of liability, and the differences between the express and implied types of certification. It will also discuss judicial interpretation of legal falsity, with emphasis on the Supreme Court’s decision in Escobar. Part II will address conditions of participation and conditions of payment and why the difference may remain significant in the fraud context. Part III will explain the structure of for-profit educational institutions, their role as government contractors, and the nature of the circuit split regarding the receipt of Higher Education Act (“HEA”) Title IV funds and FCA liability. Part IV will discuss policy implications of this “implied certification of post-formation performance” theory and why the educational setting is the appropriate venue in which to hold government contractors liable for fraud on an expansive sub-theory of implied false certification.

The technical apparatus is, then, being made at home with the rest of our world. And that's a thing that's routinely being done, and it's the source of the failure of technocratic dreams that if only we introduced some fantastic new communication machine, the world will be transformed. Where what happens is that the object is made at home in the world that has whatever organisation it already has. -- Harvey Sacks (Lectures on Conversation Vol. 2., 548-9) Chatting, or having a conversation, has long been a favourite activity for people. It seemed so ordinary, if not to say trivial, that it has for almost equally long not been studied in any dedicated way. It was only when Harvey Sacks and his early collaborators started using the tape recorder to study telephone conversations that 'conversation' as a topic has become established (cf. Sacks, Lectures Vol. 1). Inspired by Harold Garfinkel, the perspective chosen was a procedural one: they wanted to analyse how conversations are organised on the spot. As Sacks once said: The gross aim of the work I am doing is to see how finely the details of actual, naturally occurring conversation can be subjected to analysis that will yield the technology of conversation. (Sacks, "On Doing 'Being Ordinary'" 411) Later, Sacks also started using data from audio-recorded face-to-face encounters. Most of the phenomena that the research on telephone conversation unearthed could also be found in face-to-face data. Whether something was lost by relying on just audio materials was not clear at the beginning. But with video-based research, as initiated by Charles Goodwin in the 1970s, one was later able to demonstrate that visual exchanges did play an essential role the actual organisation of face-to-face conduct. When using telephone technology, people seemed to rely on a restricted set of the interactional procedures used in face-to-face settings. But new ways to deal with both general and setting-specific problems, such as mutual identification, were also developed. Now that an increasing number of people spend various amounts of their time 'online', chatting with friends or whoever is available, it is time to study Computer-Mediated Conversation (CMC), as we previously studied face-to-face conversation and Telephone (Mediated) Conversation, using the same procedural perspective. We may expect that we will encounter many phenomena that have become familiar to us, and that we will be able to use many of the same concepts. But we will probably also see that people have developed new technical variations of familiar themes as they adapt the technology of conversation to the possibilities and limitations of this new technology of communicative mediation. In so doing, they will make the new technology 'at home in the world that has whatever organisation it already has.' Space does not allow a full discussion of the properties of text-based CMC as instantiated in 'chat' environments, but comparing CMC with face-to-face communication and telephone conversations, it is obvious that the means to convey meanings are severely restricted. In face-to-face encounters, many of the more subtle aspects of the conversation rely on visual and vocal productions and perceptions, which are more or less distinguishable from the 'text' that has been uttered. Following the early work of Gregory Bateson, these aspects are mostly conceived of as a kind of commentary on the core communication available in the 'text', that is as 'meta-communication'. While the 'separation' between 'levels' of communication, that these conceptualisations imply may distort what actually goes on in face-to-face encounters, there is no doubt that telephone conversations, in which the visual 'channel' is not available, and text-based CMC, which in addition lacks access to voice qualities, do confront participants with important communicative restrictions. An important aspect of text-based computer-mediated chatting is that it offers users an unprecedented anonymity, and therefore an unprecedented licence for unaccountable action, ranging from bland banality to criminal threat, while passing through all imaginable sexual 'perversities'. One upshot of this is that they can present themselves as belonging to any plausible category they may choose, but they will -- in the chat context -- never be sure whether the other participants 'really' are legitimate members of the categories they claim for themselves. In various other formats for CMC, like MUDs and MOOs, the looseness of the connections between the people who type messages and the identities they project in the chat environment seems often to be accepted as an inescapable fact, which adds to the fascination of participation1. The typists can then be called 'players' and the projected identities 'characters', while the interaction can be seen as a game of role-playing. In general chat environments, as the one I will discuss later, such a game-like quality seems not to be openly admitted, although quite often hinted at. Rather, the participants stick to playing who they claim they are. In my own text, however, I will use 'player' and 'character' to indicate the two faces of participation in computer-mediated, text-based chats. In the following sections, I will discuss the organised ways in which one particular problem that chat-players have is dealt with. That problem can be glossed as: how do people wanting to 'chat' on the Internet find suitable partners for that activity? The solution to that problem lies in the explicit naming or implicit suggestion of various kinds of social categories, like 'age', 'sex' and 'location'. Chat players very often initiate a chat with a question like: "hi, a/s/l please?", which asks the other party to self-identify in those terms, as, for instance "frits/m/amsterdam", if that fits the character the player wants to project. But, as I will explain, categorisation plays its role both earlier and later in the chat process. 'Membership Categorisation' in Finding Chat Partners The following exploration is, then, an exercise in Membership Categorisation Analysis (MCA; Hester & Eglin) as based on the ideas developed by Harvey Sacks in the 1960s (Sacks, "An Initial Investigation", "On the Analyzability of Stories", Lectures on Conversation Vol. 1). An immense part of the mundane knowledge that people use in living their everyday lives is organised in terms of categories that label members of some population as being of certain types. These categories are organised in sets, called Membership Categorisation Devices (MCDs). The MCD 'sex' (or 'gender'), for instance, consists of the two categories of 'male' and 'female'. Labelling a person as being male or female carries with it an enormous amount of implied properties, so called 'category-predicates', such as expectable or required behaviours, capacities, values, etc. My overall thesis is that people who want to chat rely mostly on categorical predications to find suitable chat partners. Finding a chat partner or chat partners is an interactive process between at least two parties. Their job involves a combination of presenting themselves and reading others' self presentations. For each, the job has a structure like 'find an X who wants a Y as a partner', where X is the desired chat character and Y is the character you yourself want to play. The set of XY-combinations varies in scope, of course, from very wide, say any male/female combination, to rather narrow, as we will see. The partner finding process for chats can be loosely compared with partly similar processes in other environments, such as cocktail parties, poster sessions at conferences, and telephone calls. The openings of telephone calls have been researched extensively by conversation analysts, especially Schegloff ("Sequencing", "Identification", "Routine"; also Hopper). An interesting idea from this work is that a call opening tends to follow a loosely defined pattern, called the canonical model for telephone openings. This involves making contact, mutual identification/recognition, greetings and 'how-are-you?'s, before the actual business of the call is tackled. When logging on to a chat environment, one enters a market of sorts, where the participants are both buyers and sellers: a general sociability-market like a cocktail party. And indeed some writers have characterised chat rooms as 'virtual cocktail parties'. Some participants in a cocktail party may, of course, have quite specific purposes in mind, like wanting to meet a particular kind of person, or a particular individual, or even being open to starting a relationship which may endure for some time after the event. The same is true for CMC chats. The trajectory that the partner-finding process will take is partly pre-structured by the technology used. I have limited my explorations to one particular chat environment (Microsoft Chat). In that program, the actual partner-finding starts even before logging on, as one is required to fill in certain information slots when setting up the program, such as Real Name and Nickname and optional slots like Email Address and Profile. When you click on the Chat Room List icon, you are presented with a list of over a thousand rooms, alphabetically arranged, with the number of participants. You can select a Room and click a button to enter it. When you do, you get a new screen, which has three windows, one that represents the ongoing general conversation, one with a list of the participants' nicks, and a window to type your contributions in. When you right-click on a name in the participant list, you get a number of options, including Get Profile. Get Profile allows you to get more information on that person, if he/she has filled in that part of the form, but often you get "This person is too lazy to create a profile entry." Categorisation in Room Names When you log in to the chat server, you can search either the Chat Room List or the Users List. Let us take the Chat Room List first. Some room names seem to be designed to come early in the alphabetically ordered list, by starting with one or more A's, as in A!!!!!!!!!FriendlyChat, while others rely on certain key words. Scanning over a thousand names for those words by scrolling the list might take a lot of time, but the Chat Room List has a search facility. You can type a string and the list will be shortened to only those with that string in their name. Many room names seem to be designed for being found this way, by containing a number of more or less redundant strings that people might use in a search. Some examples of room names are: A!!!!!!!!!FriendlyChat, Animal&Girls, Australia_Sydney_Chat_Room, christian evening post, desert_and_cactus_only, engineer, francais_saloppes, francais_soumise_sub_slave, german_deutsch_rollenspiele, hayatherseyeragmensürüyor, holland_babbel, italia_14_19anni, italia_padania_e_basta, L@Ros@deiVenti, nederlandse_chat, sex_tr, subslavespankbondage, Sweet_Girl_From_Alabama, #BI_LES_FEM_ONLY, #Chinese_Chat, #France, #LesbiansBiTeenGirls_Cam_NetMeeting, #polska_do_flirtowania, #russian_Virtual_Bar?, #tr_%izmir, #ukphonefantasy. A first look at this collection of room names suggests two broad classes of categorisation: first a local/national/cultural/ethnic class, and second one oriented to topics, with a large dose of sexual ones. For the first class, different kinds of indicators are available, such as naming as in Australia_Sydney_Chat_Room, and the use of a local language as in hayatherseyeragmensürüyor, or in combination: german_deutsch_rollenspiele. When you enter this type of room, a first function of such categorisations becomes apparent in that non-English categorisations suggest a different language practice. While English is the default language, quite a few people prefer using their own local language. Some rooms even suggest a more restricted area, as in Australia_Sydney_Chat_Room, for those who are interested in chatting with people not too far off. This seems a bit paradoxical, as chatting in a world-wide network allows contacts between people who are physically distant, as is often mentioned in chats. Rooms with such local restrictions may be designed, however, to facilitate possible subsequent face-to-face meetings or telephone contacts, as is suggested by names like Fr@nce_P@ris_Rencontre and #ukphonefantasy. The collection of sexually suggestive names is not only large, but also indicative of a large variety of interests, including just (probably heterosexual) sex, male gay sex, female lesbian or bi-sexuality. Some names invoke some more specialized practices like BDSM, and a collection of other 'perversities', as in names like 'francais_soumcateise_sub_slave', 'subslavespankbondage', 'golden_shower' or 'family_secrets'. But quite often sexual interest are only revealed in subsequent stages of contact. Non-sexual interests are, of course, also apparent, including religious, professional, political or commercial ones, as in 'christian evening post', or 'culturecrossing', 'holland_paranormaal', 'jesussaves', 'Pokemon_Chat', 'francais_informatique', and '#Russian_Philosophy_2918'. Categorisation through Nicknames Having selected a room, your next step is to see who is there. As chatting ultimately concerns exchanges between (virtual) persons, it is no surprise that nicknames are used as concise 'labels' to announce who is available on the chat network or in a particular room. Consider some examples: ^P0371G , amanda14, anneke, banana81, Dream_Girl, emma69, ericdraven, latex_bi_tch1 , Leeroy, LuCho1, Mary15, Miguelo, SomeFun, Steffi, teaser. Some of these are rather opaque, at least at first, while others seem quite ordinary. Anneke, for instance, is an ordinary Dutch name for girls. So, by using this nick name, a person at the same time categorises herself in two Membership Categorisation Devices: gender: 'female' and language: 'Dutch'. When using this type of nick, you will quite often be addressed in Dutch, for instance with the typically Dutch chat-greeting "hoi" and/or by a question like "ben jij Nederlandse?" ("are you Dutch?" -- female form). This question asks you to categorise yourself, using the nationality device 'Dutch/Belgian', within the language category 'speaker of Dutch'. Many other first names like 'amanda' and 'emma', do not have such a language specificity and so do not 'project' a specific European language/nationality as 'anneke' does. Some French names, like 'nathalie' are a bit ambiguous in that respect, as they are used in quite a number of other language communities, so you may get a more open question like "bonjour, tu parle francais?" ("hi, do you speak French?"). A name like 'Miguelo' suggests a roman language, of course, while 'LuCho1' or 'Konusmaz' indicate non-European languages (here Chinese and Turkish, respectively). Quite often, a first name nick also carries an attached number, as in 'Mary15'. One reason for such attachments is that a nick has to be unique, so if you join the channel with a nick like 'Mary', there will mostly be another who has already claimed that particular name. An error message will appear suggesting that you take another nick. The easiest solution, then, is to add an 'identifying detail', like a number. Technically, any number, letter or other character will do, so you can take Mary1, or Mary~, or Mary_m. Quite often, numbers are used in accord with the nick's age, as is probably the case in our examples 'Mary15' and 'amanda14', but not in 'emma69', which suggests an 'activity preference' rather than an age category. Some of the other nicks in our examples suggest other aspects, claims or interests, as in Dream_Girl, latex_bi_tch1, SomeFun, or teaser. Other examples are: 'machomadness', 'daddyishere', 'LadySusan28', 'maleslave', 'curieuse33', 'patrickcam', or 'YOUNG_GAY_BOY'. More elaborate information about a character can sometimes be collected from his or her profile, but for reasons of space, I will not discuss its use here. This paper's interest is not only in finding out which categories and MCDs are actually used, but also how they are used, what kind of function they can be seen to have. How do chat participants organise their way to 'the anchor point' (Schegloff, "Routine"), at which they start their actual chat 'business'? For the chatting environment that I have observed, there seems to be two major purposes, one may be called social, i.e. 'just chatting', as under the rubric 'friendly chat', and the other is sexual. These purposes may be mixed, of course, in that the first may lead to the second, or the second accompanied by the first. Apart from those two major purposes, a number of others can be inferred from the room titles, including the discussion of political, religious, and technical topics. Sexual chats can take various forms, most prominently 'pic trading' and 'cybersex'. As becomes clear from research by Don Slater, an enormous 'market' for 'pic trading' has emerged, with a quite explicit normative structure of 'fair trading', i.e. if one receives something, one should reciprocate in kind. When one is in an appropriate room, and especially if one plays a female character, other participants quite often try to initiate pic trading. This can have the form of sending a pic, without any verbal exchange, possibly followed by a request like 'send also'. But you may also get a verbal request first, like "do you have a (self) pic?" If you reply in a negative way, you often do not get any further reaction, or just "ok." A 'pic request' can also be preceded by some verbal exchanges; social, sexual or both. That question -- "have a pic?" or "wanna trade" -- can then be considered the real starting point for that particular encounter, or it can be part of a process of getting to know each other: "can i c u?" The second form of sexual chats involves cyber sex. This may be characterised as interactionally improvised pornography, the exchange of sexually explicit messages enacting a sexual fantasy or a shared masturbation session. There is a repertoire of opening moves for these kinds of games, including "wanna cyber?", "are you alone?" and "what are you wearing now?" Functions of Categorisations Categorisations in room names, nicks and profiles has two major functions: guiding the selection of suitable chat partners and suggesting topics. Location information has quite diverse implications in different contexts, e.g. linguistic, cultural, national and geographical. Language is a primordial parameter in any text-based activity, and chatting offers numerous illustrations for this. Cultural implications seem to be more diffuse, but probably important for some (classes of?) participants. Nationality is important in various ways, for instance as an 'identity anchor'. So when you use a typically Dutch nick, like 'frits' or 'anneke', you may get first questions asking whether you are from the Netherlands or from Belgium and subsequently from which region or town. This may be important for indicating reachability, either in person or over the phone. Location information can also be used as topic opener. So when you mention that you live in Amsterdam, you often get positive remarks about the city, like "I visited Amsterdam last June and I liked it very much", or "I would die to live there" (sic) from a pot-smoking U.S. student. After language, age and gender seem to be the most important points in exploring mutual suitability. When possible partners differ in age or gender category, this quite often leads to questions like "Am I not too old/young for you?" Of course, age and gender are basic parameters for sexual selection, as people differ in their range of sexual preferences along the lines of these categories, i.e. same sex or opposite sex, and roughly the same age or older/younger age. Such preferences intersect with straight or kinky ones, of which a large variety can be found. Many rooms are organised around one or another combination, as announced in names like '#LesbiansBiTeenGirls_Cam_NetMeeting', 'Hollandlolita' or '#Lesbian_Domination'. In some of these, the host makes efforts to keep to a more or less strict 'regime', for instance by banning obvious males from a room like '#BI_LES_FEM_ONLY'. In others, an automated welcome message is used to lay out the participation rules. Conclusion To sum up, categorisation plays an essential role in a sorting-out process leading, ideally, to small-group or dyadic suitability. A/S/L, age, sex and location, are obvious starting points, but other differentiations, as in sexual preferences which are themselves partly rooted in age/gender combinations, also play a role. In this process, suitability explorations and topic initiations are intimately related. Chatting, then, is text-based categorisation. New communication technologies are invented with rather limited purposes in mind, but they are quite often adopted by masses of users in unexpected ways. In this process, pre-existing communicational purposes and procedures are adapted to the new environment, but basically there does not seem to be any radical change. Comparing mutual categorisation in face-to-face encounters, telephone calls, and text-based CMC as in online chatting, one can see that similar procedures are being used, although in a more and more explicit manner, as in the question: "a/s/l please?" Footnote These ideas have been inspired by Schaap; for an ethnography focussing on the connection between 'life online' and 'real life', see Markham, 1998. References Hopper, Robert. Telephone Conversation. Bloomington: Indiana UP, 1992. Hester, Stephen, and Peter Eglin, eds. Culture in Action: Studies in Membership Categorisation Analysis. Washington, D.C.: UP of America, 1997. Markham, Annette H. Life Online: Researching Real Experience in Virtual Space. Walnut Creek, London, New Delhi: Altamira P, 1998. Sacks, Harvey. "An Initial Investigation of the Usability of Conversational Data for Doing Sociology." Studies in Social Interaction. Ed. D. Sudnow. New York: Free P, 1972. 31-74. ---. Lectures on Conversation. Vol. 1. Ed. Gail Jefferson, with an introduction by Emanuel A. Schegloff. Oxford: Basil Blackwell, 1992. ---. Lectures on Conversation. Vol. 2. Ed. Gail Jefferson, with an introduction by Emanuel A. Schegloff. Oxford: Basil Blackwell, 1992. ---. "On Doing 'Being Ordinary'." Structures of Social Action: Studies in Conversation Analysis. Ed. J. Maxwell Atkinson and John Heritage. Cambridge: Cambridge UP, 1984. 413-29. ---. "On the Analyzability of Stories by Children." Directions in Sociolinguistics: The Ethnography of Communication. Ed. John. J. Gumperz and Dell Hymes. New York: Rinehart & Winston, 1972. 325-45. Schaap, Frank. "The Words That Took Us There: Not an Ethnography." M.A. Thesis in Anthropology, University of Amsterdam, 2000. <http://fragment.nl/thesis/>. Schegloff, Emanuel A. "Identification and Recognition in Telephone Conversation Openings." Everyday Language: Studies in Ethnomethodology. Ed. George Psathas. New York: Irvington, 1979. 23-78. ---. "The Routine as Achievement." Human Studies 9 (1986): 111-52. ---. "Sequencing in Conversational Openings." American Anthropologist 70 (1968): 1075-95. Slater, Don R. "Trading Sexpics on IRC: Embodiment and Authenticity on the Internet." Body and Society 4.4 (1998): 91-117. Ten Have, Paul. Doing Conversation Analysis: A Practical Guide. Introducing Qualitative Methods. London: Sage, 1999. Citation reference for this article MLA style: Paul ten Have. "Computer-Mediated Chat: Ways of Finding Chat Partners." M/C: A Journal of Media and Culture 3.4 (2000). [your date of access] <http://www.api-network.com/mc/0008/partners.php>. Chicago style: Paul ten Have, "Computer-Mediated Chat: Ways of Finding Chat Partners," M/C: A Journal of Media and Culture 3, no. 4 (2000), <http://www.api-network.com/mc/0008/partners.php> ([your date of access]). APA style: Paul ten Have. (2000) Computer-mediated chat: ways of finding chat partners. M/C: A Journal of Media and Culture 3(4). <http://www.api-network.com/mc/0008/partners.php> ([your date of access]).

IntroductionThe debate about the responsibility of museums to respect Indigenous peoples’ rights (Kelly and Gordon; Butts) has caught our attention on the basis of our previous research experience with regard to the protection of the tangible and intangible heritage of the San (former hunter gatherers) in Southern Africa (Martin and Vermeylen; Vermeylen, Contextualising; Vermeylen, Life Force; Vermeylen et al.; Vermeylen, Land Rights). This paper contributes to the critical debate about curatorial practices and the recovery of Indigenous peoples’ cultural practices and explores how museums can be transformed into cultural centres that “decolonise” their objects while simultaneously providing social agency to marginalised groups such as the San. Indigenous MuseumTraditional methods of displaying Indigenous heritage are now regarded with deep suspicion and resentment by Indigenous peoples (Simpson). A number of related issues such as the appropriation, ownership and repatriation of culture together with the treatment of sensitive and sacred materials and the stereotyping of Indigenous peoples’ identity (Carter; Simpson) have been identified as the main problems in the debate about museum curatorship and Indigenous heritage. The poignant question remains whether the concept of a classical museum—in the sense of how it continues to classify, value and display non-Western artworks—will ever be able to provide agency to Indigenous peoples as long as “their lives are reduced to an abstract set of largely arbitrary material items displayed without much sense of meaning” (Stanley 3). Indeed, as Salvador has argued, no matter how much Indigenous peoples have been involved in the planning and implementation of an exhibition, some issues remain problematic. First, there is the problem of representation: who speaks for the group; who should make decisions and under what circumstances; when is it acceptable for “outsiders” to be involved? Furthermore, Salvador raises another area of contestation and that is the issue of intention. As we agree with Salvador, no matter how good the intention to include Indigenous peoples in the curatorial practices, the fact that Indigenous peoples may have a (political) perspective about the exhibition that differs from the ideological foundation of the museum enterprise, is, indeed, a challenge that must not be overlooked in the discussion of the inclusive museum. This relates to, arguably, one of the most important challenges in respect to the concept of an Indigenous museum: how to present the past and present without creating an essentialising “Other”? As Stanley summarises, the modernising agenda of the museum, including those museums that claim to be Indigenous museums, continues to be heavily embedded in the belief that traditional cultural beliefs, practices and material manifestations must be saved. In other words, exhibitions focusing on Indigenous peoples fail to show them as dynamic, living cultures (Simpson). This raises the issue that museums recreate the past (Sepúlveda dos Santos) while Indigenous peoples’ interests can be best described “in terms of contemporaneity” (Bolton qtd. in Stanley 7). According to Bolton, Indigenous peoples’ interest in museums can be best understood in terms of using these (historical) collections and institutions to address contemporary issues. Or, as Sepúlveda dos Santos argues, in order for museums to be a true place of memory—or indeed a true place of recovery—it is important that the museum makes the link between the past and contemporary issues or to use its objects in such a way that these objects emphasize “the persistence of lived experiences transmitted through generations” (29). Under pressure from Indigenous rights movements, the major aim of some museums is now reconciliation with Indigenous peoples which, ultimately, should result in the return of the cultural objects to the originators of these objects (Kelly and Gordon). Using the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) as an illustration, we argue that the whole debate of returning or recovering Indigenous peoples’ cultural objects to the original source is still embedded in a discourse that emphasises the mummified aspect of these materials. As Harding argues, NAGPRA is provoking an image of “native Americans as mere passive recipients of their cultural identity, beholden to their ancestors and the museum community for the re-creation of their cultures” (137) when it defines cultural patrimony as objects having ongoing historical, traditional or cultural importance, central to the Native American group or culture itself. According to Harding (2005) NAGPRA’s dominating narrative focuses on the loss, alienation and cultural genocide of the objects as long as these are not returned to their originators. The recovery or the return of the objects to their “original” culture has been applauded as one of the most liberating and emancipatory events in recent years for Indigenous peoples. However, as we have argued elsewhere, the process of recovery needs to do more than just smother the object in its past; recovery can only happen when heritage or tradition is connected to the experience of everyday life. One way of achieving this is to move away from the objectification of Indigenous peoples’ cultures. ObjectificationIn our exploratory enquiry about new museum practices our attention was drawn to a recent debate about ownership and personhood within the context of museology (Busse; Baker; Herle; Bell; Geismar). Busse, in particular, makes the point that in order to reformulate curatorial practices it is important to redefine the concept and meaning of objects. While the above authors do not question the importance of the objects, they all argue that the real importance does not lie in the objects themselves but in the way these objects embody the physical manifestation of social relations. The whole idea that objects matter because they have agency and efficacy, and as such become a kind of person, draws upon recent anthropological theorising by Gell and Strathern. Furthermore, we have not only been inspired by Gell’s and Strathern’s approaches that suggests that objects are social persons, we have also been influenced by Appadurai’s and Kopytoff’s defining of objects as biographical agents and therefore valued because of the associations they have acquired throughout time. We argue that by framing objects in a social network throughout its lifecycle we can avoid the recurrent pitfalls of essentialising objects in terms of their “primitive” or “traditional” (aesthetic) qualities and mystifying the identity of Indigenous peoples as “noble savages.” Focusing more on the social network that surrounds a particular object opens up new avenues of enquiry as to how, and to what extent, museums can become more inclusive vis-à-vis Indigenous peoples. It allows moving beyond the current discourse that approaches the history of the (ethnographic) museum from only one dominant perspective. By tracing an artwork throughout its lifecycle a new metaphor can be discovered; one that shows that Indigenous peoples have not always been victims, but maybe more importantly it allows us to show a more complex narrative of the object itself. It gives us the space to counterweight some of the discourses that have steeped Indigenous artworks in a “postcolonial” framework of sacredness and mythical meaning. This is not to argue that it is not important to be reminded of the dangers of appropriating other cultures’ heritage, but we would argue that it is equally important to show that approaching a story from a one-sided perspective will create a dualism (Bush) and reducing the differences between different cultures to a dualistic opposition fails to recognise the fundamental areas of agency (Morphy). In order for museums to enliven and engage with objects, they must become institutions that emphasise a relational approach towards displaying and curating objects. In the next part of this paper we will explore to what extent an online museum could progressively facilitate the process of providing agency to the social relations that link objects, persons, environments and memories. As Solanilla argues, what has been described as cybermuseology may further transform the museum landscape and provide an opportunity to challenge some of the problems identified above (e.g. essentialising practices). Or to quote the museologist Langlais: “The communication and interaction possibilities offered by the Web to layer information and to allow exploration of multiple meanings are only starting to be exploited. In this context, cybermuseology is known as a practice that is knowledge-driven rather than object-driven, and its main goal is to disseminate knowledge using the interaction possibilities of Information Communication Technologies” (Langlais qtd. in Solanilla 108). One thing which shows promise and merits further exploration is the idea of transforming the act of exhibiting ethnographic objects accompanied by texts and graphics into an act of cyber discourse that allows Indigenous peoples through their own voices and gestures to involve us in their own history. This is particularly the case since Indigenous peoples are using technologies, such as the Internet, as a new medium through which they can recuperate their histories, land rights, knowledge and cultural heritage (Zimmerman et al.). As such, new technology has played a significant role in the contestation and formation of Indigenous peoples’ current identity by creating new social and political spaces through visual and narrative cultural praxis (Ginsburg).Online MuseumsIt has been acknowledged for some time that a presence on the Web might mitigate the effects of what has been described as the “unassailable voice” in the recovery process undertaken by museums (Walsh 77). However, a museum’s online engagement with an Indigenous culture may have significance beyond undercutting the univocal authority of a museum. In the case of the South African National Gallery it was charged with challenging the extent to which it represents entrenched but unacceptable political ideologies. Online museums may provide opportunities in the conservation and dissemination of “life stories” that give an account of an Indigenous culture as it is experienced (Solanilla 105). We argue that in engaging with Indigenous cultural heritage a distinction needs to be drawn between data and the cognitive capacity to learn, “which enables us to extrapolate and learn new knowledge” (Langlois 74). The problem is that access to data about an Indigenous culture does not necessarily lead to an understanding of its knowledge. It has been argued that cybermuseology loses the essential interpersonal element that needs to be present if intangible heritage is understood as “the process of making sense that is generally transmitted orally and through face-to-face experience” (Langlois 78). We agree that the online museum does not enable a reality to be reproduced (Langlois 78).This does not mean that cybermuseology should be dismissed. Instead it provides the opportunity to construct a valuable, but completely new, experience of cultural knowledge (Langlois 78). The technology employed in cybermuseology provides the means by which control over meaning may, at least to some extent, be dispersed (Langlois 78). In this way online museums provide the opportunity for Indigenous peoples to challenge being subjected to manipulation by one authoritative museological voice. One of the ways this may be achieved is through interactivity by enabling the use of social tagging and folksonomy (Solanilla 110; Trant 2). In these processes keywords (tags) are supplied and shared by visitors as a means of accessing museum content. These tags in turn give rise to a classification system (folksonomy). In the context of an online museum engaging with an Indigenous culture we have reservations about the undifferentiated interactivity on the part of all visitors. This issue may be investigated further by examining how interactivity relates to communication. Arguably, an online museum is engaged in communicating Indigenous cultural heritage because it helps to keep it alive and pass it on to others (Langlois 77). However, enabling all visitors to structure online access to that culture may be detrimental to the communication of knowledge that might otherwise occur. The narratives by which Indigenous cultures, rather than visitors, order access to information about their cultures may lead to the communication of important knowledge. An illustration of the potential of this approach is the work Sharon Daniel has been involved with, which enables communities to “produce knowledge and interpret their own experience using media and information technologies” (Daniel, Palabras) partly by means of generating folksonomies. One way in which such issues may be engaged with in the context of online museums is through the argument that database and narrative in such new media objects are opposed to each other (Manovich, New Media 225). A new media work such as an online museum may be understood to be comprised of a database and an interface to that database. A visitor to an online museum may only move through the content of the database by following those paths that have been enabled by those who created the museum (Manovich, New Media 227). In short it is by means of the interface provided to the viewer that the content of the database is structured into a narrative (Manovich, New Media: 226). It is possible to understand online museums as constructions in which narrative and database aspects are emphasized to varying degrees for users. There are a variety of museum projects in which the importance of the interface in creating a narrative interface has been acknowledged. Goldblum et al. describe three examples of websites in which interfaces may be understood as, and explicitly designed for, carrying meaning as well as enabling interactivity: Life after the Holocaust; Ripples of Genocide; and Yearbook 2006.As with these examples, we suggest that it is important there be an explicit engagement with the significance of interface(s) for online museums about Indigenous peoples. The means by which visitors access content is important not only for the way in which visitors interact with material, but also as to what is communicated about, culture. It has been suggested that the curator’s role should be moved away from expertly representing knowledge toward that of assisting people outside the museum to make “authored statements” within it (Bennett 11). In this regard it seems to us that involvement of Indigenous peoples with the construction of the interface(s) to online museums is of considerable significance. Pieterse suggests that ethnographic museums should be guided by a process of self-representation by the “others” portrayed (Pieterse 133). Moreover it should not be forgotten that, because of the separation of content and interface, it is possible to have access to a database of material through more than one interface (Manovich, New Media 226-7). Online museums provide a means by which the artificial homogenization of Indigenous peoples may be challenged.We regard an important potential benefit of an online museum as the replacement of accessing material through the “unassailable voice” with the multiplicity of Indigenous voices. A number of ways to do this are suggested by a variety of new media artworks, including those that employ a database to rearrange information to reveal underlying cultural positions (Paul 100). Paul discusses the work of, amongst others, George Legrady. She describes how it engages with the archive and database as sites that record culture (104-6). Paul specifically discusses Legrady’s work Slippery Traces. This involved viewers navigating through more than 240 postcards. Viewers of work were invited to “first chose one of three quotes appearing on the screen, each of which embodies a different perspective—anthropological, colonialist, or media theory—and thus provides an interpretive angle for the experience of the projects” (104-5). In the same way visitors to an online museum could be provided with a choice of possible Indigenous voices by which its collection might be experienced. We are specifically interested in the implications that such approaches have for the way in which online museums could engage with film. Inspired by Basu’s work on reframing ethnographic film, we see the online museum as providing the possibility of a platform to experiment with new media art in order to expose the meta-narrative(s) about the politics of film making. As Basu argues, in order to provoke a feeling of involvement with the viewer, it is important that the viewer becomes aware “of the plurality of alternative readings/navigations that they might have made” (105). As Weinbren has observed, where a fixed narrative pathway has been constructed by a film, digital technology provides a particularly effective means to challenge it. It would be possible to reveal the way in which dominant political interests regarding Indigenous cultures have been asserted, such as for example in the popular film The Gods Must Be Crazy. New media art once again provides some interesting examples of the way ideology, that might otherwise remain unclear, may be exposed. Paul describes the example of Jennifer and Kevin McCoy’s project How I learned. The work restructures a television series Kung Fu by employing “categories such as ‘how I learned about blocking punches,’ ‘how I learned about exploiting workers,’ or ‘how I learned to love the land’” (Paul 103) to reveal in greater clarity, than otherwise might be possible, the cultural stereotypes used in the visual narratives of the program (Paul 102-4). We suggest that such examples suggest the ways in which online museums could work to reveal and explore the existence not only of meta-narratives expressed by museums as a whole, but also the means by which they are realised within existing items held in museum collections.ConclusionWe argue that the agency for such reflective moments between the San, who have been repeatedly misrepresented or underrepresented in exhibitions and films, and multiple audiences, may be enabled through the generation of multiple narratives within online museums. 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