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The regulation of the profession of physiotherapist was made in Romania by the Law No 229/2016, which also established the College of Physiotherapists from Romania, as a professional organization, of public interest, having as object of activity the authorization, control and supervision of the exercise of profession of physiotherapist. In this article there are presented aspects regarding the outlining of the notions of physiotherapist/kinetotherapist, regarding the content and organization of the profession of physiotherapist by the new regulations, as a liberal profession of authorized public practice. In the present study it is analyzed the context in which it was adopted the Law No 229/2016, at a time when the status of the profession of physiotherapist was not regulated, at a time when the County Public Health Directorates issued authorizations for free practice which authorized persons licensed in other fields (physical training and sports), there are emphasized the current conditions for issuing the free practice authorization for physiotherapists. The study presents aspects regarding the recognition of the diplomas and qualifications at European level and the mobility of the profession of physiotherapist, as well as aspects related to the introduction of a European professional card and to the possibility of issuing the certificate of conformity. There are presented aspects concerning the compensatory measures designed to eliminate the important differences in programs specific to physiotherapy. In his activity, the physiotherapist must comply with the Code of Ethics of the Physiotherapist and the Status of the College of Physiotherapists from Romania. Elements of novelty regarding the malpractice in physiotherapy are presented, with connections to the experience gained in the sphere of medical malpractice, including with references to the subjective foundation of the civil liability of the medical staff. -
Curtea Constituțională a pronunțat recent o decizie asupra constituționalității art. III, pct. a) și b) din Ordonanța de urgență a Guvernului nr. 70/2016 pentru modificarea și completarea Codului de procedură penală și a Legii nr. 304/2004 privind organizarea judiciară, admițând excepția în privința pct. b), cu opinie separată. Anterior și în mod similar, Curtea a pronunțat o decizie de admitere a neconstituționalității art. 27 din Codul de procedură civilă astfel cum fusese el interpretat de Înalta Curte de Casație și Justiție – Completul pentru dezlegarea unor chestiuni de drept1. Considerăm că ambele soluții ale Curții ridică probleme legate de efectele în timp ale unor decizii ale sale pronunțate anterior în aceeași privință, probleme la care, de altfel, face referire și opinia separată publicată la prima menționată, deși nu suntem întru totul de acord cu aceasta din urmă.
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The present study analyzes the working hypotheses in the matter of the preliminary procedure regarding claims from European funds. The study identifies a number of working scenarios, starting from the particular way in which these claims arise, specific to European funding mechanisms. Another filter in the analysis is given by an irregularity in the management of funding, an irregularity that is treated differently as it appears before or after the payment, taking into account the variable, if it generates a debt to be recovered from the European Union budget/international public donors and/or national public funds related to them through an undue payment. Thus, the study observes a series of nuances in the hypothesis of undue payments, similar shades of contentious type to tax procedures1.
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The article reviews the main features of digitization and its implications in the economic and social field. The technological perturbations on the economy, people’s conduct, medicine, law, psychology and education are significant. The author proposes the establishment of a National technical-legal laboratory, besides a faculty of law, and of a scientific event, entitled „Law and Digitization – Improving Legal Services”, to help improve access to justice in a digitized world.
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In this study the authors intended to investigate the procedural rules specific to the judicial control of the acts issued by the public authorities in the matter of restitution of properties taken over by the State during the communist regime, as well as the processual guarantees enjoyed by the persons concerned for the effective exercise of the right to a fair trial and the right to respect the goods regulated by Article 6 paragraph 1 of the European Convention on Human Rights and, respectively, Article 1 of Protocol No 1 to the Convention. During this scientific process, the authors have identified the shortcomings of the legislation in the matter and have formulated de lege ferenda proposals for complying with the Pilot-Judgment of the European Court of Human Rights in the Case Maria Atanasiu and others against Romania, whereby it has been decided that the Romanian State takes measures to guarantee the effective protection of these rights. The proposed legislative amendments have as purpose to re-open access to justice for the eligible persons, in compliance with the requirements of ECHR law, in the cases where public authorities refuse to resolve their requests for restitution of buildings abusively taken over by the State.
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In this article, the author analyzes the legal nature of the Constitutional Court, a political jurisdictional authority of jurisdiction, whose role consists mainly in controlling the constitutionality of laws and of other acts adopted by the Romanian Parliament and by the Government. The Constituent Assembly of 1991 opted for the institutionalization of the European model of constitutional jurisdiction, according to which a body independent in relation to the powers of the State assumes the role of guarantor of the supremacy of the Constitution. The constituent legislators have preferred to abandon the control of the constitutionality of laws enforced by the supreme court, which was established by the Fundamental Law of 1923. In the constitutional architecture of the Romanian State, designed after the change of the political regime at the end of 1989, the Constitutional Court is a political-jurisdictional body whose legal nature derives from the way in which it is organized and structured, as well as from the attributions conferred to it by the Constitution. At the same time, the Constitutional Court also appears as a regulating body of the public authorities with governing powers in the state, which it obliges, through its decisions, to return to the constitutional legality. The author highlights both the political and the judicial nature of the Constitutional Court and shows that there must be a balance between the two essential characteristics of this public authority, in order for it to fulfil its constitutional role in a complete independence and impartiality and not to transform itself into a political tool for solving the relations between powers, especially between the legislative power and the executive power, which should benefit to one or another of the political actors.
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The object of the general part of criminal law and its relation to the special part are still uncertain, and this is because the criminal doctrine has always neglected the general criminal norms, by focusing its attention on the norms of incrimination, which are specific to the special part. In relation to these matters, the doctrine often makes contradictory statements and, as a result, some authors have deducted that the connection between the general part and the special part of criminal law is that of a general law (common law) and a special law (exceptional law), so that a possible conflict between a general criminal norm and a special criminal norm is solved according to the rule specialia generalibus derogant. And, unfortunately, such an opinion tends to become dominant, as evidenced by the fact that the criminal legislator disregards more and more frequently the norms with value of principles of branch, which are included in the general part of the Criminal Code. Therefore, in order to combat this completely unacceptable legislative practice, the author of this paper has intended to point out that the general part is a framework-law, with a higher legal value, while the special part is a (derived) subordinate law, which can only specify (clarify) the norms of the general part, but can never derogate from them. However, starting from this premise, the author has noticed that the persisting doubt about the relation between the two parties also has a deeper cause, which resides in the fact that no modern legislator has been preoccupied with determining and explicitly providing the general conditions and rules of punishment. Although the criminal doctrine has, for a long time, noticed that the norms of incrimination lay down special rules of punishment, the scope of which is limited to a specific, well-determined offence, however, in the absence of general rules of punishment, it has concluded wrongly, that the incrimination norms are autonomous independent norms, while general criminal norms are derived (secondary) norms.
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The article deals with the legal regime of the convict’s money, their sources of origin and the destinations for their use during detention, in the Romanian criminal law and jurisprudence, bringing to light some proposals aimed at improving the situation of some categories of detainees in a state of economic precariousness. The objectives of the article are to determine the content of the notion of convict’s money in the current Romanian legislation, their sources of origin and the destinations for their use during detention, as well as to determine whether the current Romanian legislation complies with the requirements of the international instruments and whether the chosen legislative solutions are similar to those in other European states. The results show that the notion of prisoner’s money should include the money due to the convicted for the work done in prison, the sums received from natural or legal persons during detention and the amounts found upon them at the arrival in the penitentiary. It can be concluded that the amounts of money shown in the nominal account can be used for extinguishing the civil obligations established by the criminal conviction decision, without violating the rights of the detainees to receive, buy and possess goods, the right to telephone conversations, the right to petition and correspondence, the right to food, personal hygiene, the right to photocopy documents from the individual file and the right to medical treatment. The results also show that the present Romanian legislation regarding prisoner’s money complies with the international rules, such as the „Nelson Mandela Rules”, the U.N. Convention against torture adopted in 1984, ECHR/the Convention or the European Penitentiary Rules REC (2006)2, and it is similar to the legislation of other European states, such as France, Italy, Spain, Portugal, Germany or Austria, regarding the sources from which this money may be legally obtained, and the destinations for which this money may be used. In the case of those detainees who do not obtain income from work, it may be beneficial for a regulation to provide, within a reasonable limit, an exemption from the attachment of their money. For all inmates who do not have income, provisions should be made for the prison administration to bear, within a reasonable degree, the cost of national telephone calls made by convicts in order to keep in touch with their family. The implications are to clarify the issues discussed, facilitating a unitary practice, supported by solutions in the jurisprudence.
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New technologies, such as wireless communications, generate unique threats to human health and to the quality of the environment. Among them, electromagnetic fields (EMF) – of the relay antennas or power lines – represent a colourless, odourless and invisible pollution with adverse sanitary effects. As the technologies of the field are rapidly evolving, even before their negative consequences can be sufficiently researched and proven by science, they create difficulties for the ability of the right to adapt and respond appropriately to the new problems thus raised. Among the first legal reactions in the matter are those registered as regards the human rights, especially ECHR case law, which assimilates the EMF threats in the context of Article 8 of the Convention, involves the precautionary principle and imposes the notion of gravity threshold. The Case Calancea and others v. The Republic of Moldova (2018) represents an important moment in the opening of the Strasbourg court to the new problems of EMF and, despite the reluctance manifested by means of the judgment delivered, this implies a recognition of the existence and of the need for legal assimilation of new threats to human rights and the jurisprudential consolidation, in this context, of the right to a healthy environment.
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According to the provisions of Article 260 paragraph 2 of the Criminal Code of 1968 [Article 273 (3) of the Criminal Code], both the „active” false testimony (the situation in which the witness gives false statements) and the „passive” false testimony (in which case the witness does not say everything he knows about essential circumstances he was asked) may be withdrawn, with the mention that, in the latter case, the witness must provide full and real details, which he perceived directly, which were essential and of which he was asked. In order to constitute a cause of non-punishment, the withdrawal of the false testimony must be carried out in the case in which it was given, and not in the case in which the criminal prosecution is conducted or in which the offence of false testimony is examined.
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The administration of evidence necessarily implies that the evidence is first proposed and produced (submitted) by the parties and then approved by the court. The legislator of the Civil Procedure Code instituted a regime of evidence renewed in its spirit and in its formal expression, devoting, in addition to the general provisions on the administration of evidence (Articles 260–263 of the Civil Procedure Code), also some provisions specific to the administration of evidence by written documents (Articles 292–300 of the Civil Procedure Code), as well as to the conduct of the procedures for verification of documents (Articles 301–308 of the Civil Procedure Code). As a rule, the production (submission) of the documents takes place voluntarily, under the terms and conditions set by law. However, in some cases, the documents relating to the pending trial are not produced voluntarily, whereas their presentation in court could have consequences for those who hold them or for their spouse, kin or relatives. The attitude of the person who holds the document not to produce it voluntarily may have different motives: family secret, business secret, confidentiality, strictly personal matters about the dignity or private life of a person, etc. In other cases, bringing written documents to court would be too expensive or the documents would be too voluminous or numerous. In such cases, the justice of the dialogue will prevail. From the correlation of the provisions of the final sentence of Article 22 (2) with those of Article 254 (2), Article 254 (5) of the Civil Procedure Code, it appears that the legislator draws attention to the cooperation which must exist between the judge and the parties, as regards the evidence of facts, without thereby understanding that the judge substitutes the parties, automatically filling the passivity of the party either a claimant, or a defendant
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The final table of claims is the result of the expiration of the time limit for contestations, without such a contestation being lodged or, as the case may be, the outcome of the solutions given by the courts after the examination of the contestations. In the final table there may be entered also the current claims, at the request of their holders, and this can no longer be contested for the usual reasons for which the preliminary table could be challenged. Instead, in compliance with Article 113 of the Law No 85/2014, the final table may be contested by any party concerned (so, not only by debtors or creditors), throughout the procedure (so not just 7 days after the publication of the preliminary table in BIP) for the discovery of a forgery, of a fraud or for an essential error in the drawing up of the table or for the discovery of some decisive titles, previously unknown (called, in practice, brevitatis causa „contestation for essential error”). We have pointed out that the current regulation reiterated the error in Article 75 of the old Insolvency Law No 85/2006, whereas it only refers to the recording in the table, and not to the omission to record in the table, when it regulates the objective of the contestation. Posting of the definitive table is an important landmark in the procedure, since a 30-day period is running therefrom during which a draft reorganization plan must be proposed, under the sanction of bankruptcy. The preliminary table of claims contains all claims accepted by the judicial administrator, as a result of the verification made under Article 106 of the Law. The claims arising before the opening of proceedings are recorded therein, both the ones overdue and the ones not due, pure and simple or conditional ones, as well as those in dispute (if these are known to the judicial administrator).
