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Analyzing the jurisprudence of the European Court of Human Rights on freedom of expression (Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms), the author reveals the close connection between the concept of States’ margin of appreciation (paragraph 2 of Art. 10 of the Convention) and the quality of the Convention as “a living instrument”. Therefore, the purpose of the study is precisely the dialecticism of the relationship between the “freedom of expression” (proclaimed by the Convention) and the exercise of that freedom “that carries with it duties and responsibilities” and which, under national law, may be subject to “such formalities, conditions, restrictions or penalties” (granted under Art. 10 of the Convention, as well). In light of this line of thinking, the author carries forth an extensive case law of the European Court of Human Rights, expression of a broad relevant casuistry. -
In this study, the authors bring forward the main features of electronic monitoring programs and services for defendants and convicts, pointing out, concurrently, both their strengths and their weaknesses found in the implementation process. The authors also argue for a serious debate on national level, held on the imperativeness and opportunity to implement these services and programs in Romania, in the context of current penal reform.
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In 2010, considering the deadline for the entry into force of new procedure codes, there arose the need to establish procedural rules with immediate effect, under way for the implementation of codes and consistent with legislative solutions established thereupon, so as to smooth efficient enforcement of court proceedings and expedient settlement of cases. The Law regarding some measures aiming at the celerity of cases’ settlement no. 202/2010 frames a series of specific legislative measures, mainly pointing to simplify and increase the celerity of cases’ settlement, with direct impact on the execution of judgments, as well. In the study hereby, the authors analyze, from an applied perspective mainly, amendments and completions to the Code of Criminal Procedure under Law no. 202/2010 on the celerity of cases’ settlement. As regards the general part domain of the Criminal Procedure Code, there have been highlighted a series of situations, resulting from the introduction of the mediation agreement as basis for settling the criminal or the civil case, from the rethinking of the material competence of courts or from express regulation of specific cases on conflict of jurisdiction arisen during the criminal prosecution. Other comments concern completions brought in the field of evidence management, application of the institution of preventive measures’ cessation by right, or relating to enforcement of peremptory writ of mandate, payment of court fees and court fines. As a general observation, since legal provisions under review are at the beginning of their application, and the subject covered is very wide ranging, the work developed by the two authors could not set its purpose neither on their exhaustive analysis, nor on the issue, in all cases, of conclusions claimed as legal certainty, but rather attempted to bring to the attention of practitioners working hypotheses, problems that may arise and their possible solutions.
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Fundamentally, all intentional crimes may be under continuous form, the forest offence being one of them. In practice, we come across various ways of committing forest offences, through a single action or multiple actions, which may meet, separately or conjunctively, elements of the crime of illegal cutting or theft of trees, but usually, when the criminal offence is committed in a longer period of time, twice or several times, without considering whether each single action meets the constitutive elements of the crime for which the defendant is prosecuted, Art. 41 para. 2 of the Criminal Code shall apply automatically. Authors’ analysis refers to the offence’s content unit, namely that the execution deeds of the same kind must submit each the content of the same offence. In legal practice it was decided that there is no requirement that the execution deeds should be identical, but each to cover the contents of the same offense, even if some of them correspond to the variant type and the other to the qualified one and, therefore, in the test case reviewed by the authors it was enough to evidence the existence of two or more trees cutting and stealing acts carried out at different intervals, each causing a damage which exceeds the threshold value for which the act stands for a crime and it was not required that for each of them, the damage caused and the value of timber, respectively, exceed at least 50 times the average price of a cubic meter of standing timber, on the offence’s finding date. Therefore, in order to determine the continuous nature of the act, it is required to administer evidence that should establish the volume of timber (for the offense of theft), and the amount of damage (for the cutting offence), for each action – execution deed, respectively its petty offence or criminal nature.
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The existence of a state, situation or particular circumstance in which the offence is committed may ingrain it a character of legitimacy and in such circumstances it is lacking one of the essential features of the crime, the unjustified nature of the act committed. In the category of supporting causes which result in the removal of the essential trait of crime consisting in the anti-juridical character is also included the consent of the aggrieved party in respect with the commission of the crime set forth in the criminal law. In order to be ascertained as supporting cause, the aggrieved party’s consent must belong to the holder of the protected social value or to his legal or conventional representative, to be freely expressed, to be abreast with the time and to target a specific social value or values endangered by committing deliberate crimes. Consent of the aggrieved party does not preclude the unjustified character of the offence in case of criminal offenses against a person’s life, in the event of offenses whose justified effect is excluded by law, as well as in the event of criminal offences whose main passive entity is the state, and the aggrieved party acts as a secondary passive entity.
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Law no. 1/2011 on the National Education, effective since February 2011, under Art. 289 regulated anew the regime on the legal relationships of employment after retirement age for teaching and research staff in higher education in Romania (public, private or religious). In this respect, the above mentioned bill, after having established the principle that this staff shall retire at the age of 65, sets to rights terms under which academics and researchers may continue their activity in higher education establishments, following retirement. Study hereby is to review these terms.
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The study aims to analyze how the doctrine and jurisprudence, as well, have interpreted the provisions of Art. 32 of Law 18/1991, in over 20 years of applicability of the law’s wording mentioned. As it shall be ascertained, the law’s wording, improperly designed, can not be logically interpreted so as to produce the effects aimed at by the legislator, unless the restraint term of 10 years starts (has already started) its applicability since the issue date of the title deed.
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The author of the study above, consistent with a part of the jurisprudence (but inconsistent with another) holds that, in light of Art. 28 of Law no. 54/2003/ the Union Law) not just the union (within the unit the employee works at), but also the higher level trade union organization (federation, confederation, trade union) can sue on behalf of union members, part of the federation, confederation or trade union. Once started an action as such, the organization acquires not the status of the applicant, but only acts as a representative of the applicants employees (union members, holders of claimed rights). Admittedly, if subsequently to proceedings’ promotion, the unionist employee gives up the case, the trade union organization (trade union, federation, union) can not carry forward proceedings anymore.
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Acțiunea în daune-interese care vizeazã antrenarea rãspunderii civile delictuale a AVAS în temeiul art. 998-999 C.civ. nu atrage aplicarea dispozițiilor legii speciale cu privire la competența curții de apel în primã instanțã, ci pe cele ale art. 1 pct. (1) lit. a) din Codul de procedurã civilã, fiind vorba despre un litigiu patrimonial de drept comun (Înalta Curte de Casație Justiție, Secția comercialã, decizia nr. 1896 din 21 mai 2010).
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Under current Romanian law (via multiple enactments), authorized translators and interpreters (who translate legal documents of any kind), have no legal knowledge in practice frequently, but philological only (for the foreign language they are duly authorized), whereas Romanian legislation in the field (quite bushy) does not provide for the authorized translator / interpreter a law school graduation as a condition sine qua non. Hence, there are a number of serious complications in practice. Such being the case, the author suggests that those who shall be authorized as translators / interpreters (of legal documents or to legal effects), either hold a degree in law (LLB) or at least having completed relevant specialized courses (possibly at the Romanian Notary Institute).
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Review of judgments in civil proceedings is, together with the appeal for annulment, the chance for a final procedural possibility for a “remedy” legal solution so that, ultimately, an irrevocable court decision is consistent with normative propositions incidents to that legal dispute. Often, this extraordinary means of attack is not, as commonly, a “reverential” one anymore, but is “aggressive”, based upon the urgent requirement of retrial as a consequence of “passing final and irrevocable judgments in violation of the principle of Community law priority, governed by Art. 148 para. (2), in conjunction with Art. 20 para. (2) of the Romanian Constitution, republished” as stated in Art. 21 para. (2) of the Administrative Litigation Law no. 554/2004. Review mechanism, as put into operation, focuses on controversial or debatable issues, some unpublished. In this study, the authors note to identify and comment on some of the aforementioned.
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In the study under the above title, the author analyzes the legal regime of movement of privately owned land through sales agreements, focusing mainly on registration and formal requirements for a period of approximately 200 years (the early nineteenth century until the present day) Interest in the study is evident in which there were not only significant differences in time but also in space, the legal regime differing essentially between the “Old Kingdom” (Oltenia, Muntenia, Moldova and Dobrogea) and “Transylvania” (Ardeal, Banat, Crisana, Satmar and Maramures) annexed to Romania in 1918.
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The entry into force since January 1st 2011 of the Framework Law no. 284/2010 on uniform remuneration of staff paid from public funds and of Law no. 285/2010 on remuneration in 2011 of staff paid from public funds brings again to the fore the thorny issue of staff remuneration in the public sector. Fructifying the experience gained in 2010 through the implementation of the Framework Law no. 330/2009, now repealed, the aforesaid enactments regulate principles on remuneration, pay system, base rates’ setting and differentiation (pays, wages in terms of position and monthly allowances according to employment), benefits, bonuses, allowances, compensations and premiums that the public sector staff shall capitalize on, as well as legal liability and proceedings in disputes’ settlement. In this context, essential are also milestones set by the Constitutional Court via resolutions passed on issues of principle on the possible intervention by the legislator in matters of staff remuneration in the public sector.
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Law no. 202/2010 regarding some measures aiming at the celerity of cases’ settlement establishes, inter alia, a number of important (fundamental) amendments and completions to the Family Code and the Code of Civil Procedure in force in relation to dissolution of marriage through divorce under parties’ agreement. The study hereby reviews – comprehensively – amendments and completions in question, highlighting in relevant cases some critical approaches on the new regulations.
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This paper is a review of the provisions set forth in Art. 216 of the Criminal Code, which focuses on questionable theoretical and practical aspects, especially on the question of criteria for distinguishing between the offences of found property appropriation and theft offences. Likewise, the author makes a comparative analysis of the provisions of Art. 216 of the Criminal Code, reported to Art. 243 of the new Criminal Code.
