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After a summary examination of the regulations and of the doctrine regarding the institution of civil nullities, the author illustrates the uncertainties produced by some special norms that establish absolute nullities for the violation of some imperative norms of protection for some categories delimited by subjects; it is concluded – starting from the principles – and with exemplification of jurisprudence – that such express nullities produce only some effects of absolute nullity and that the legal regime of absolute nullities does not always apply, in its entirety, as a whole. The presented legal construction offers the opportunity to observe the acute need for prejudicial procedures at the disposal of those who have to make decisions for the application of rules that produce legal uncertainty. -
The repeated conviction by the European Court of Human Rights (hereinafter ECHR) of the Republic of Moldova for violating Article 1 of Protocol No 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECHR) was a mandatory invitation for national actors to harmonize their own legal system with the European case law, both by legislative, administrative way and by judicial way. Although there have been reported cases in which the European Court of Human Rights has pointed out some shortcomings with regard to harmonizing the Moldovan law with the European exigencies, however most judgments are based on jurisprudential shortcomings. Thus, in order to avoid new convictions by the Strasbourg Court in the sphere of Article 1 of Protocol No 1, in this study the techniques of compatibilization of the national case law with the European ones are researched. Starting from the stated purpose, in the present study it is realized a jurisprudential exercise of the notion of „good” from the perspective of the conventional judge and of the way in which the national courts received it in their own judgments. At the same time, this scientific approach identifies the positive and negative obligations of states and their margin of appreciation left by the ECHR in case of some issues concerning the right to respect for property, as well as the consequences for the state in case of a judgment of conviction.
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Article 5 of the Civil Procedure Code1 regulates the fundamental principle of free access to justice and the obligations that the legislator establishes as duty of the judge are meant to outline this principle2 . Free access to justice is a fundamental principle of the organization of any democratic judicial system, being enshrined in an important number of international documents, therefore it has special meanings both for procedural law and for the constitutional law3 .
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The transition to the „digital age” marks all areas, being impossible for the administrative action and the administrative law to be placed outside this phenomenon. In the context of the transformations regarding the progressive replacement of the unilateral character of the administrative action with models based on dialogue and consensus, as well as the transition from the representative democracy to the participative one, the generalization of the digital dialogue between the administration and the citizens is a way to promote new, collaborative forms of administrative action. These bring a more important involvement of the public in the elaboration of the administrative decision, including by redefining the practices of public consultations, carried out on more flexible, less rigid channels. The challenge of digitalization concerns to the same extent also the administrative law, a science that, under the pressure of this „tsunami”, is forced to undergo mutations in its foundations: the administrative act and the drafting process
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The criminal trial is a complex judicial activity through which it is performed the criminal justice, formed of a complex of judicial activities carried out in an orderly and successive manner. In its entire development, the criminal trial is a complex judicial activity. In the dynamism of its development, the criminal trial is a complex of judicial activities. The regulation of the criminal trial includes the provisions of the general part of the Criminal Procedure Code, as well as the provisions of its special part. The general provisions regulate the criminal trial in all cases and they discipline the entire judicial activity. The special provisions regulate the criminal trial in each case in particular and they discipline each judicial activity in particular. The special provisions are interpreted literally and restrictively, systematically, logically and teleologically, in order to be correctly applied.
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An in-depth analysis of the mechanisms by which the recipients of the legal norm end up evading the payment of the tax obligations and, subsequently, giving an appearance of legality to the illegally obtained amounts, can only be beneficial for an overall understanding of the typical elements of those two offences (tax evasion and money laundering). Without a tradition in our criminal law, incriminated for only two decades, the offence of money laundering has surprisingly gathered around it a rich case law, which is the subject of numerous criminal cases. At the same time, the analysis of the outlined case law has revealed different approaches and solutions from the courts on some important aspects of the offence of money laundering and their clarification is all the more necessary as we are talking precisely about its typicality elements. Whereas the offence of money laundering is often concurrent with the offence of tax evasion, it is necessary to analyze their points of interference, both at the level of their objective side and from the perspective of reparation of the damage.
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The study addresses issues specific to the object of probation in appeal and emphasizes that, naturally, the object of the probation in appeal specializes as a result of the concrete manner in which there will operate the devolution determined by the holder of the legal remedy and the reasons on which it is based. At the same time, it is shown that formulating an request for evidence with a clear and concrete indication of the evidentiary thesis covered by each requested evidence is very important because only in this way it can be really made an assessment on the usefulness and on the relevance of that evidence. The author also emphasizes another reason why the indication of the evidentiary thesis is important, meaning that in its absence or in the case of indicating some generic theses the assessment on the legality of the evidence can be impeded and it is analyzed the situation of being requested to be heard as witnesses persons that are under the incidence of some legal norms that require them to maintain professional secrecy, such as magistrates or lawyers. All these arguments lead to the conclusion that a request for evidence made in appeal that hasn’t got concrete evidentiary theses indicated regarding each piece of evidence requested does not allow the assessment on the usefulness of the evidence by reference to the specialization of the object of probation at this phase of the criminal trial and, consequently, it should be dismissed by the court invested with the examination of the case.
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In the present article, the author analyzes twenty-four judgments of the European Court of Human Rights pronounced in the cases regarding the Revolution of 1989, by which it was established that Romania violated, mainly, the procedural side of Article 2 (right to life) of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms. The author also identifies the advantages and disadvantages of the procedure by which the Committee of Ministers of the Council of Europe supervises the enforcement by Romania of those judgments. Finally, the article aims to assess the impact that the judgements of the European Court of Human Rights have had in recent years on the conduct of internal investigations, i.e. the so-called „File of the Revolution”.
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Cauza Societatea Profesională Notarială „Etica” împotriva României, Cererea nr. 43190/10, Curtea Europeană a Drepturilor Omului (Secția a patra), Hotărârea din 24 iulie 20181 . La originea cauzei se află cererea din 17 iunie 2010 formulată de Societatea Profesională Notarială „Etica”, persoană juridică română, contra României, în temeiul art. 34 din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale („Convenția”).
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n cazul în care contractul de transport a fost încheiat prin intermediul unei case de expediții, în lipsa unei prevederi contractuale exprese sau a unei prevederi legale, nu se poate solicita de la respectivul intermediar repararea prejudiciului cauzat transportatorului ca urmare a avariilor determinate de marfa transportată și care nu a fost ambalată în mod corespunzător. În plus, dacă transportatorul nu a făcut rezerve cu privire la marfa primită, conform art. 9 din Convenția referitoare la contractul de transport internațional de mărfuri pe șosele (CMR) există prezumția că mărfurile transportate au fost în bună stare. (Curtea de Apel Constanța, Secția a II-a civilă, Decizia nr. 50 din 10 februarie 2020, www.rolii.ro)
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Potrivit art. 248 C.pen. din 1968, fapta funcționarului public ce, în exercițiul atribuțiilor sale de serviciu, cu știință, nu îndeplinește un act ori îl îndeplinește în mod defectuos și prin aceasta cauzează o tulburare însemnată bunului mers al unui organ sau al unei instituții de stat ori al unei alte unități din cele la care se referă art. 145 sau o pagubă patrimoniului acesteia se pedepsește cu închisoare de la 6 luni la 5 ani.
