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A new decision of the European Court of Human Rights (the Judgment of 19 June 2018 pronounced in the Case Bursa Barosu Bașkanligi et al. against Turkey) strengthens the case law according to which the useful effect of the right to a fair trial presupposes also the right to execute the justice decisions (inaugurated in 1997), including those that protect the environment (initiated by the Judgment of 12 July 2005 in the Case Okyay against Turkey) and opens new perspectives in this matter. Limited to procedural issues, the decision contributes, however, to the nuancing of the problems, encourages the progress of the effectiveness of environmental law by judicial means and, through the suggestions offered, underlines the need to particularize the legal reaction to the specific of the ecological realities. The deception is mainly resulted from the limitation to the data of the judicial precedent and the failure to fully use the capacities related to the involvement of the civil society in promoting the environmental judicial progress. -
The law amending and supplementing the Law No 254/2013, a law which has not been promulgated and has not entered into force, has been through a controversial legislative process, involving the disregarding by the legislative power of the effects specific to the decisions of the Constitutional Court, pronounced before the enactment of the laws, assisting in the delivery of three decisions of the Court with regard to the same law, by two of them being established the unconstitutionality of the law as a whole. Finally, as a result of the cessation by law of the legislative process, the only possibility of the legislative power to regulate the regime of home detention is represented by the start of a new legislative approach, this time in compliance with the principle of bicameralism. At the same time, the intrinsic analysis of the provisions regarding the regime of home detention has resulted in the identification of legislative gaps, of the lack of clarity of the legal nature of the institution, of the lack of precision and predictability in the process of applying the regime of home detention, as well as in the identification of numerous cases of legislative parallelism. In compliance with the legislative will to establish the regime of execution of the imprisonment sentence at home, the results of the intrinsic analysis have led to the formulation of some de lege ferenda proposals regarding the regulation of the regime of detention at home, by amending Law No 254/2013.
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The authors analyze, making comments on two cases of judicial practice in the field of risk drug trafficking also on performing operations with products likely to have psychoactive effects. Commenting on the first case, the authors observe the rarest that can be found in the judicial practice in the matter of drugs, namely the existence of a putative deed consisting in the transportation of a supervised delivered parcel in which all the drugs were replaced with other materials, and the person who carried the parcel without drugs was accused of trafficking of risk drugs in the modality of transportation of drugs without right. Commenting on the second case, the authors criticize a solution given by Tribunal of Brăila and the Court of Appeal of Galați, on the ground that the convicted defendant was, in fact, in a factual error with regard to the fact that in the small envelopes he traded as ethnobotanical products there have been identified fragments of cannabis plant mass.
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The intangible cultural heritage is a crucial factor in shaping the personality and identity of a human being. At the beginning of the 21st Century, faced with the deepening globalization, commercialization, consumerism, technological progress and urbanization, it is necessary to take, without unjustified delays and considering future circumstances, actions for the protection of the intangible cultural heritage. This study presents the genesis, the legal regulations and mechanisms that were developed under the aegis of the United Nations Educational, Scientific and Cultural Organization. The measures taken by UNESCO1 and by the individual states to reach the set targets should follow the spirit of tolerance, empathy, cultural plurality and respect for human rights.
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Divorce requires a continuous monitoring of the quality of adults-children relationships, as well as the development of some emotional connections based on authenticity, availability, respect, safety and warmth. In order to resolve the misunderstandings between parents regarding the exercise of rights and the fulfilment of duties, the court asks the delegate of the guardianship authority to conduct a psychosocial inquiry with regard to the conditions in which a child is raised and educated and how the parents fulfil their duties towards the child. One of the objectives of the psychosocial investigation must be to monitor the dynamics of the relations between the child and the parents after the divorce, because these relations do not have a fixed trajectory, being in a continuous modification and development. In the civil procedural law we do not find a minimum set of norms that regulate the procedure of carrying out the „psychosocial investigation” and the content of the „psychosocial investigation report”, a circumstance that has generated mainly a non-unitary case law, lacking the psychological component.
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The procedure of registration of forgery is a procedural incident regarding the evidence by written documents, which can usually have as its object an authentic written document or a written document registered under private signature. In the case of authentic written documents, the procedure of forgery may be used when the authenticity of the findings made personally by the person who authenticated the document is contested, according to the law. In the case of the written documents under private signature, the procedure of forgery can be used when it is claimed that they have been fabricated, being admissible also in the assumption that such a document has been recognized by its author or has been verified in court, if it is proved that the recognition was the result of an actually excusable error. The investigation and establishment of forgery shall be carried out by the criminal prosecution bodies and criminal examination body or by the civil court, by incidental way, in the event that the criminal action cannot be initiated or cannot continue. The procedure of registration of forgery is applicable regardless of the nature of the forgery (material or intellectual) and false written document is also the one whose content is not real, even if there has not been committed by the operation of altering the reality. The provisions of Articles 304-308 of the Civil Procedure Code regulate the procedure applicable in the assumption of registration of forgery against a written document produced in a pending litigation, in which case the provisions of Article 315, of Article 5491 and of Article 580 of the Criminal Procedure Code must be complied with.
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The climate dispute, developed explosively in the last decade, has had a first experience also at the level of EU law through People’s Climate Case (2018) in which 10 families and a civic association have brought an action before the EU Tribunal against the European Parliament and the European Commission for the insufficiency of the objectives assumed in the matter of climate changes. It was required the cancellation of several European Union legislative texts in the clime package and a compensation for the prejudice claimed to be incurred in this context. By the Ordinance of 8 May 2019, the action was dismissed as inadmissible, as the conditions of Article 263 (4) TFEU were not met, whereas there had been challenged legislative texts which did not concern and did not affect the applicants individually. The case law thus created leads to conclusions notable for the climate justice.
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În lipsa unui probatoriu care să demonstreze existența unei activități autonome a inculpaților de inițiere, respectiv constituire a unei grupări infracționale, activitate care să rămână distinctă de comiterea infracțiunii ce a constituit scopul acesteia și care să vizeze organizarea acțiunilor infracționale, prin fixarea modalității și a coordonatelor de săvârșire a acestora, precum și a sarcinilor și rolului fiecărui membru în cadrul grupării constituite, fapta capătă valențele juridice ale pluralității ocazionale, prevăzute de articolul 77 lit. a) C.pen.
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The need to analyze the condition of guilt in engaging the legal liability of the physician does not result only from the ECHR Judgment in Ioniță Case, which ruled that the physician’s liability itself is based on the notion of medical negligence, but especially because of its specific aspects. According to recent practice, the intensity of medical guilt in the degree of culpa levissima is able to lead to de facto exoneration from criminal liability (through a symbolic sanction) in order to focus on repairing the victim’s prejudice. The consequence of changing the vision on the medical legal liability from a punitive-criminal liability of the physician to a reparative liability facilitates the perception of the French conception of the contractual liability of the health unit. This does not remove the personal liability of the employed physician, but limits it to a psychic attitude of elusion of the system of cooperation and control of the health unit, which brings it closer to the indirect intention. Hence the need to distinguish between indirect intention and guilt with forethought (recklessness), which in its turn is different from guilt without forethought (negligence).
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The judicial administrator will submit a monthly report containing the description of how he has performed his duties, an account of the expenses incurred with the administration of the procedure or of other expenses made from the funds existing in the debtor’s estate, as well as, if necessary, the stage of performing the inventory. The report will also mention the fee received by the judicial administrator, by specifying modality of calculation thereof. The report will be submitted to the case file and an extract shall be published in the BIP. Every 120 days, the syndic-judge will analyze and rule on the stage of continuation of the procedure, through a resolution by which he will be able to establish certain measures as duty of the judicial administrator and he will grant an administrative term of control or of trial, as the case may be. In the event that there are contentious or non-contentious applications, as well as in the hypothesis in which the syndic-judge deems it necessary, he will order the urgent summoning of the interested persons and of the judicial administrator, for the purpose of solving the applications or for ordering the necessary measures.
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The verification of scripts is an incident in relation to the literal evidence, more precisely a procedure to which it is subjected a contested written document under private signature. The contested written documents under private signature may be subjected to a verification procedure either by principal way, by a preventive action, having exclusively such an object, or by incidental way, during a trial. The verification of the written document under private signature, by principal way, is admissible, under the conditions of Articles 359–363 of the Civil Procedure Code, if there was not or there is not a trial pending in which that written document had been opposed or is being opposed. Instead, the verification of the written document under private signature, by incidental way, is regulated in Articles 301–303 of the Civil Procedure Code, whose provisions are the object of this study. Article 301 of the Civil Procedure Code regulates the attitude that must be manifested by the person to whom such a written document under private signature is opposed, given that such a written document has no evidentiary power unless it is expressly or tacitly acknowledged or if it is declared as being truthful after being verified by the court.
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The present study aims to give an answer to the legal framework regarding the possible staff reduction followed by dismissal, measures that would have as sole purpose to increase the profit of the employer. Against the background of the ambiguity of Article 65 of the Labour Code, it is considered that such a measure is rationally possible only if the employer has a profit that is below the level of the average profit existing in the sector/field of activity (a situation that can be evaluated in relation to the financial data from the Trade Register Office and with the data that is published periodically by the Ministry of Public Finance). Only in such a case the condition of the real and serious cause is met.
