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In this study the author analyzes the victim’s obligation to minimize the damage in the context of a hypothesis of tort civil liability. In this sense, after a short introductory part intended to set the framework of the analysis, the author proposes to identify what would be the normative provisions from which the victim’s obligation to minimize the damage would derive, emphasizing the fact that, despite the lack of a clear and unequivocal rule in this sense, the existence of the obligation still derives from a whole series of legal provisions. The particularities of the obligation to minimize the damage are further addressed, its general legal regime being decrypted, with emphasis on those aspects that distinguish and individualize it in relation to other legal institutions, but also its mode of operation. Likewise, the author aims to identify the legal nature of the obligation to minimize the damage, underlining the limits of the theses advanced so far and showing why the obligation is a sui generis one. Further on, there are emphasized the consequences produced by the obligation to minimize the damage, whether respected by the victim or not, and in the end there are presented brief considerations referring to his procedural regime. -
As a result of the increase in the number of attacks of the specimens of wild game species listed in the Annexes №. 1 and 2 of the Law №. 407/2006 on hunting and wild game protection, with subsequent amendments and completions, resulting in injury or death of an individual, given that wild game specimens are managed under the special law, the Romanian legislator was obliged to regulate liability for damages thus caused, responsibility that lies with the central public authorities responsible for hunting and/or the central public authorities responsible for the environment. Our research addresses this form of liability as a novelty in the landscape of Romanian law, with all the range of effects it generates, in the sense of highlighting its special character in relation to the common law regulation of tortious liability of objective type, in terms of calculation of the material and moral component of the damage created as a result of the attack produced by a specimen of the wildlife species on a human, an attack capable of causing injury or even death of the victim. We critically analyzed the text of Article 131 of Law №. 407/2006, with subsequent amendments and completions, considering, as a final conclusion of the study, that it is necessary to reform it as a matter of urgency, all the more so as there are serious doubts about the content of the regulation regarding the observance of the principle of constitutional rank of non-discrimination, as well as its concordance with the values of the ECHR, even in the context in which the state, as a subject of law, has been recognized the possibility of capping different types of compensation.
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In this study, the author, emphasizing the difficulties encountered by judicial practice in the use, interpretation and application of law enforcement, clarification and completion of judgments, wishes to clarify these procedures, proposing some legislative changes to ensure clarity of incident rules. Thus, situations are presented in which, by means of a request for correction, misjudgments have been corrected, or both requests for clarification of the decision and a title appeal have been formulated, as well as doctrinal controversies regarding the right of option of the party between the procedure for completing the decision and the appeal for review.
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We are researching the mechanism of proof necessary for the application of the sanction of the automatic exclusion of statements obtained through torture or other ill -treatment contrary to Article 3 of the Convention. The topic has not yet been addressed in Romanian law, although it is of indisputable importance for the practical application of the sanction. Proof to a high standard of ill-treatment is essential to the normative force of the sanction. The difficulty of proving ill-treatment is the main impediment to its application in judicial practice. The resulting problem is solved by the European Court of Human Rights through a mechanism of proof that manages the legal consequences of uncertainty and does not lose sight of the requirement to find out the truth. This mechanism has three main components: The first is the requirement of an arguable claim about the ill-treatment, which is similar to the formal burden of proof (the burden of adducing evidence) in common law, with the difference that it is not imposed on a particular party, but is met if information about ill-treatment comes to the attention of the authorities in any way. The second is the obligation to effectively investigate this claim. The third is the substantial burden of proof or persuasive burden, which must be met to a certain standard of proof. Ill treatment must be proven by the party alleging it to the standard of proof beyond a reasonable doubt, but this standard can be met by corroborated presumptions. We present some typical presumptions applicable in situations frequently encountered in practice. Under Article 6 of the European Convention on Human Rights, the requirements of the fair trial may justify derogations from these general principles. For the automatic exclusion of statements, two cumulative conditions must be verified: the lack of an effective investigation and the real risk of ill-treatment.
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After the entry into force of Article 1541 of the Civil Procedure Code, the judgments will have a different communication regime as compared to the other procedural documents. More precisely, if the party indicates the appropriate data in order to communicate the procedural documents by e-mail, the court will have the obligation to communicate the judgment to the party by e-mail, in accordance with the provisions of Article 1541 (1) of the Civil Procedure Code, however, it will not be obliged to communicate the summons or the other procedural documents to the respective party by e-mail, since with regard to these procedural documents remain applicable the provisions of Article 154 (6) of the Civil Procedure Code, which regulates only the possibility of the court to communicate these procedural documents by e-mail, and not the obligation of the court to proceed in this way. Therefore, we note the existence of an asymmetry, with regard to the communication regime, between the judgment and the other procedural documents, which is why we believe that the legislator should intervene in order to standardize the communication regime of all procedural documents, there being no reason why the respective communication of procedural documents should be carried out differently.
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This paper is the first part of a more extensive commentary on Article 5 of the European Convention on Human Rights, which will be entirely published in three consecutive issues of this law journal. The present work assesses the general features of the right to liberty and security as they emerge from the relevant case-law of the European Court on Human Rights. On this occasion, it underlines the purpose of this right, namely the protection of the individual from arbitrariness, and it analyses the general conditions for deprivation of liberty. It also goes on to evaluate the first two such situations of authorised deprivation of liberty enshrined in Article 5 § 1 a) and b) of the Convention.
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Pre-trial detention was defined as the most intrusive custodial preventive measure in the exercise of the person’s right to freedom, by which the judge or the court orders the detention of the defendant for the duration and under the specific conditions provided by law, in places specially intended for this purpose, in the interest of the criminal prosecution, the preliminary chamber procedure or the trial. In order to take pre-trial detention, it is necessary to meet all the general conditions provided by law for taking preventive measures, as well as the existence of at least one of the prev. of Article 223 of the Civil Procedure Code. In practice, in almost all cases, preventive arrest is based on the provisions of Article 223 (2) of the Civil Procedure Code. Under these conditions, we tried to create both a general presentation of these grounds and a theoretical analysis of the main issues that can generate confusion and problems in the application of the cases provided for by Article 223 (1) of the Civil Procedure Code. All this theoretical analysis has, as far as possible, been examined in conjunction with solutions from judicial practice, where appropriate.
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