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Potrivit art. 335 alin. (1) C.pr.pen., dacă procurorul ierarhic superior celui care a dispus soluția constată, ulterior, că nu a existat împrejurarea pe care se întemeia clasarea, infirmă ordonanța și dispune redeschiderea urmăririi penale. Dispozițiile art. 317 se aplică în mod corespunzător. Conform art. 280 alin. (2) C.pr.pen., actele îndeplinite ulterior actului care a fost declarat nul sunt la rândul lor lovite de nulitate, atunci când există o legătură directă între acestea și actul declarat nul. Articolul 346 alin. (3) lit. a) C.pr.pen. prevede că judecătorul de cameră preliminară restituie cauza la parchet dacă rechizitoriul este neregulamentar întocmit, iar neregularitatea nu a fost remediată de procuror în termenul prevăzut la art. 345 alin. (3), dacă neregularitatea atrage imposibilitatea stabilirii obiectului sau limitelor judecății (cu notă aprobativă). -
Dreptul de trecere, reglementat de art. 616–619 din vechiul C.civ., trebuie înțeles sub trei ipostaze: aceea a dreptului de a cere recunoașterea servituții de trecere, ipostaza exercitării servituții legale de trecere și ipostaza dreptului de a cere modificarea servituții legale de trecere. Legat de dreptul de a cere recunoașterea servituții de trecere, acesta este considerat ca având un caracter potestativ, constituind o simplă facultate pentru proprietarul locului înfundat. Prin urmare, atunci când un imobil devine loc înfundat, proprietarul său poate reclama, prin manifestarea sa unilaterală de voință, să îi fie stabilită o servitute legală de trecere. Caracterul potestativ al dreptului rezultă cu claritate din formularea „poate reclama” din art. 616 din vechiul C.civ. (Curtea de Apel Craiova, Secția civilă, Decizia nr. 739 din 9 iulie 2019, www.rolii.ro)
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The content of the paper reveals the changes in the E.C.H.R. case law occurred in the matter of interrogation of the prosecution witnesses following the pronouncement of the judgments in the cases Al-Khawaja and Tahery v. the United Kingdom, respectively Schatschaschwili v. Germany. The author considers that by the two judgments E.C.H.R. has returned to each of the three conditions imposed by its own case -law for the use as evidence of „anonymous statements”, establishing the exact opposite of those estab lished by its previous case law on those conditions. At the same time, the author emphasizes that through the analyzed judgments E.C.H.R. has practically radically changed its case law outlined over more than 20 years. Next, it proceeds to the presentation of the grounds retained by the E.C.H.R. in the two cases, after which the author emphasizes the obvious contradictions existing between these grounds and those established by the E.C.H.R. on the same issues in previous cases. Finally, the author points out that, despite the contradictions and inconsistencies shown in this paper, presently the case law Al-Khawaja and Tahery – Schatschaschwili exclusively governs the conditions under which it is determined whether by using the „anonymous” or „unverified” statements it has been violated or not the procedural guarantee written down in Article 6 (3) d) of the Convention.
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Cauza nr. 2205/16, Keskin c. Olandei. Hotărârea din data de 19 ianuarie 2021 Cauza privește imposibilitatea reclamantului de a interoga, în calitate de acuzat într-un dosar privind infracțiunea de înșelăciune, martorii ale căror declarații, consemnate într-un raport al poliției, au fost utilizate ca probe pentru condamnarea sa.
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The present study aims to present to the general public information about the reform process of the European Court of Human Rights, in general, and about the entry into force of Protocol No 15 to the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular. Given the very large number of applications submitted for settlement to the Strasbourg Court, over time an attempt has been made to outline a process of reform of this international jurisdiction, including short, medium and long-term measures. Thus, although opened for signature by the High Contracting Parties on 24 June 2013, Protocol No 15 entered into force recently, on 1 August 2021,following the deposit by Italy of the instrument of ratification of the Protocol. We intend to analyze in this study what are the important amendments brought to the Convention by this protocol of amendment, meant to ensure the effectiveness of the European Court of Human Rights. We consider that the dissemination of the provisions of Protocol No 15 to the Convention will help the interested parties to become aware of the latest amendments to the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular to the provisions regarding the reduction of the time limit for bringing the matter before the Court.
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The present study aims to analyze a problem that recently appeared in the criminal procedural practice considering the Decision No 250/2019 of the Constitutional Court by which the provisions of the first sentence of Article 377 (4) and Article 386 (1) of the Criminal Procedure Code were assessed as constitutional only insofar as the court of law rules on the change of the legal classification given to the deed by the act of notification by a judgment that does not settle the merits of the case. By presenting a concrete case study, the opinions expressed in the doctrine and by practitioners, as well as the analysis of the grounds of the decision we will conclude on the applicability of the aforementioned decision at the time of analyzing the more favourable criminal law, whether the procedural institution of changing of the legal classification or that of the legal qualification is incidental, and whether it is necessary to rule on the more favourable criminal law by a separate conclusion.
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In this scientific article, the author addresses one of the problems faced by the current judicial practice in criminal matters. Specifically, it is about detecting the relationship between the offence of money laundering and the offence of concealment, starting from the theoretical approach of comparison and reaching to the exposition of some solutions from the judicial practice. The author proposes criteria on the basis of which this delimitation can be made in a clear and constant manner.
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In this paper, the author analyzes the functional competence of the hierarchically superior prosecutor to carry out criminal prosecution acts in criminal files investigated by the criminal investigation bodies whose supervision is exercised by the prosecutor within the prosecutor’s office. For this purpose, a first starting point is the Criminal Procedure Code, which regulates the judicial function of criminal prosecution in criminal trial, respectively the competence of the prosecutor in performing this function, but references are also made to the Internal Regulation of the prosecutor’s offices of 14 November 2019, to the case law of the Constitutional Court of Romania in the matter, but also to the principle of the hierarchical control that governs the activity within the Public Ministry, principle with constitutional rank, regulated by the provisions of Articles 131–132 of the Constitution. The conclusion reached after presenting a pertinent argumentation is that the hierarchically superior prosecutor does not have the functional competence to lead and supervise the activity of the criminal investigation bodies, which is carried out within the criminal files assigned to the subordinated prosecutors, considering his quality of chief prosecutor.
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In the present study we will make some critical comments on two judicial decisions – a decision of the Romanian Constitutional Court and a decision of the Court of Justice of the European Union – with impact on a problem of high importance for Romania: the nature, the character and the legal force of the Decision 928/2006 of the European Commission (which institutes the Cooperation and Verification Mechanism) and of the recommendations of the Commission included in the reports issued within the above-mentioned mechanism, the compatibility with the Union law of the legal provisions concerning the Section for the investigation of the offences committed within the judicial system. The decision of the Court of Justice was given prior to that of the Constitutional Court, within the procedure of the preliminary ruling unleashed before more Romanian administrative jurisdictions, and the control of the Constitutional Court was unleashed with the aim at establishing the unconstitutionality of the legal provision concerning the above-mentioned section. Although the Constitutional Court knew about the decision of the Court of Justice, which ruled that, if the law is found by the national jurisdictions to be incompatible with the Union law, it must be set aside in the respective litigations, by virtue of the (total) supremacy of the Union law, the constitutional jurisdiction declared the constitutionality of the law and, more than that, stated that the ordinary jurisdictions are not permitted to set aside the law, because the supremacy of the Constitution is not questioned by the adherence to the Union and by the Union law, the latter being superior only to the infraconstitutional laws. So, the point is: of the two decisions, which one must the jurisdictions apply? Which one is superior to another?
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The immunity which the President of Romania enjoys is a „constitutional guarantee, a measure of legal protection of the mandate that is meant to ensure the independence of the mandate holder from any external pressures or abuses. The guarantee provided by Article 72 (1) of the Constitution encourages the mandate holder to adopt an active role in the political life of the society, as it removes his legal liability for the political opinions expressed in exercising the function of public dignity. However, the holder of the mandate remains liable, according to the law, for all acts and deeds committed during the period in which he exercised the public office and which were not related to the votes or political opinions”. The quoted text is an excerpt from the grounds retained by the Constitutional Court in the motivation of its Decision No 284 of 21 May 2014, by which the constitutional contentious court has solved the legal conflict of a constitutional nature between the President of the Republic and the Government of Romania. The whole scaffolding of the arguments of the Constitutional Court leads to the „construction” of an active role of the President in the political and social life of the country as if it were limited to the free expression of some political opinions under the protection of parliamentary immunity. However, it should be noted that the Fundamental Law does not recognize through an express text „the active role of the President of Romania in the political life”. This is why we have reservations about the fairness of the quoted decision. First, the term of political life used in the decision of the Constitutional Court is far too general and thus it has a large margin of inaccuracy. After all, any public authority regulated in Title III of the Constitution must have an active role in the political life. When the Constitution refers in Article 80 to the Role of the President it takes into account the prerogatives of this public institution in the process of exercising public powers, a term equivalent to the governing activity, or the exercise of these prerogatives does not imply an activation of the constitutional role of the President of Romania, but its accomplishment within the limits outlined by the constitutional texts . Beyond this is the abusive exercise of the governing acts by the holder of the mandate of President of Romania, for which he, not benefiting from immunity, is required to be liable according to the Constitution.
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According to the General Data Protection Regulation (hereinafter GDPR), in each Member State of the European Union, one or more independent supervisory authorities of personal data processing must operate under conditions of full independence. Therefore, by this article we aim to achieve two main objectives. A first objective is to explain the notion of „full independence” and the second objective is to find and analyze some of the essential elements for guaranteeing full independence. The methodology used has focused on the study of the European and national legislation (the European treaties, the GDPR, the Romanian Constitution, the Administrative Code), on the study of doctrine and on the analysis of the case law of the Court of Justice of the European Union (hereinafter CJEU) on the issue of full independence of the supervisory authorities. This paper concludes that the notion of the independence of the supervisory authorities is a fragile notion that requires the full attention of the Member States. The fundamental human rights and freedoms must survive any political movements or commercial interests. The Member States, by the national law, must ensure adequate safeguards to ensure full independence of the supervisory authorities and must establish effective rules on the sanctioning of those who infringe on their independent status. As the notion of independence is a fragile notion, in the future, the Member States’ actions to safeguard the independence of the supervisory authorities must increase in direct proportion to the degree of risk of the new technologies to privacy and to the other fundamental rights and freedoms. Regarding the structure of the paper, in the Introduction, we discussed the necessity of existence of some national data protection authorities. In Section II, we briefly presented certain general considerations about supervisory authorities. In Section III, we set out certain general considerations about the legal regime of the autonomous administrative authorities in Romania. In Section IV.A we analyzed and defined the notion of „full independence”, and in Section IV.B we extracted from the legislation, doctrine and case law a part of the essential elements for guaranteeing a full independence and we briefly explained these elements.
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The current Civil Procedure Code clarifies some doctrinal controversies and controversies of the arbitral case law and transposes on legislative level some solutions of the arbitral practice, meant to make the arbitral jurisdiction more efficient. Among these aspects of making it more efficient, the study mentions those related to the extension of the competence of arbitration and the autonomy of will of the parties in organizing and conducting the arbitral procedure, likely to increase the access to this private jurisdiction, as an alternative to the state jurisdiction. Another dimension of the current regulation is related to the ways of materializing the arbitral convention and of the presumption of arbitrariness of the disputes regarding all misunderstandings arising from the contract or from the legal relations to which the agreement refers. The current regulation is concerned with the quality of the jurisdictional act which it connects to the qualification of the members of the arbitration tribunal, to their impartiality, by extending the causes of incompatibility as compared to those of judges and by guaranteeing the right to defence, by representing or assisting the parties by a lawyer. The autonomy of will, which impregnates the arbitral procedure, is associated with the principles of the civil trial, extended by the current regulation to the arbitral procedure, in order to increase the procedural guarantees offered by this private jurisdiction. An innovative solution is related to the participation of third parties in the arbitral procedure, under the terms of maintaining the composition of the arbitral tribunal, in order to ensure the complete and global settlement of the dispute. Another novelty of the current regulation is related to the material competence of the courts of appeal in resolving the action for annulment and the solutions that can be pronounced in case of admitting the action for annulment. Last but not least, the regulation makes the distinction between the procedure of the institutionalized and ad-hoc arbitration, in the context of the autonomy of will of the parties.
