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The crime committed with two forms of guilt, as a form of the legal unit of the crime, has given rise over the time to different controversial debates due to its mixed structure. A special place is held by the possibility of the secondary party’s existence, this possibility being accepted by most of the authors, as well as unanimously in the judicial practice. The authors of this paper developed for the first time three conditions of the secondary party’s existence to the crimes committed with two forms of guilt for retaining this form of participation easily in the future judicial practice. The non-fulfillment of any of the described conditions produces different legal consequences for the participants; however, the detention of the secondary party to the crime committed with two forms of guilt shall be excluded. -
Sometimes, the deed provided by the penal law was perpetrated in the context of certain states, situations or specific circumstances, which grants it this legitimacy, and under these conditions, one removes one of the essential features of the crime, namely the unjustified nature. The category of the justification causes, which lead to the removal of the essential feature of the crime, consisting of the anti-lawfulness nature also includes the exercising of a right or the fulfilment of an obligation. In order to be deemed as justification, the perpetration of the penal deed must, usually, originate in a normative act, while the consequence of the perpetration of the penal deed must not be the consequence of the abusive exercising of that right. The author of the article shows that the fulfilling of an obligation removes the anti-lawful nature of the penal deed if the obligation is provided by the law, and if the deed is perpetrated within the limits regulated by it. The unjustified nature of the penal deed is removed, and the perpetrator acts so as to fulfil certain obligations imposed by the competent authority, on condition that the order or command is given by a legitimate authority, is mainly given in writing, and it must not be obviously illegal. -
In the study hereby, the author provides a critical analysis of the various positions adopted by the U.S. Supreme Court of Justice in terms of the relationship existing between the practical need of making use of hearsay evidence in criminal proceedings and the obligation incumbent upon the legal bodies to guarantee the culprit the effective exercise of the opportunity to test via counter interrogation the reliability of such evidence. The author proposed that the analysis of judicial practice to be carried out compliant with the structure followed within the specialty works in the United States, in order to distinctly put forward each category of cause in which a conflict might arise between the admissibility of hearsay evidence and compliance with the procedural guarantees established under the law in favour of the culprit and to distinctly highlight, for each category in question, solutions framed by the U.S. Supreme Court of Justice with the view to settle the conflict arisen. -
The study discusses a very delicate matter, marked by many controversies and tensions – namely the matter of ensuring the right to consult the file in the criminal prosecution phase. Within this study it is recognized the importance of exercising this right, as a component of the right to defence and as a guarantee of the right to a fair trial, but there are also provided relevant arguments as to how the access of the defence to the file can disrupt the proper conduct of the judicial activity. There are also analysed possible deeds with criminal significance if certain aspects revealed within this procedure are brought to the knowledge of the persons who do not have this right. -
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Within this study, the authors intend to analyse the enforcement of judgments pronounced by the administrative disputes courts, in the light of the general provisions of the Civil Procedure Code and of the special provisions of the Law on administrative disputes No 554/2004, as well as of the case law in this matter. -
The author summarizes the contractual solidarity principle and its overall consequences. At the core of contractual solidarity lies the requirement of reconciling the contractual interests of the parties. Compliance with this requirement stems from the relationship of solidarity between the parties in the context of contract performance and is intended to govern the being and its execution, including the consequences of breaching this tie, should either party be in default. Contract performance supposes the existence and action of solidarity relationship between the Contracting Parties, each laying under the obligation to accomplish the contractual interests of the other Party. Effective and beneficial accomplishment of said objective is ensured by complying the cooperation and coherence duties, which originate and argument their existence in strict relationship of contractual solidarity. The requirement to reconcile the interests of the parties is valid also if difficulties arise for either party during the contract performance. To overcome these difficulties, the parties are required to comply with two duties: the duty of tolerance and the duty of contract adjustment. Finally, the author reveals that the requirement above is meant to govern also consequences arisen from the breach of solidarity ties, in terms of contract unlawful non-performance. Thus, in selecting and implementing remedies and powers it may appeal to, the creditor is bound to comply with the internal consistency of the contract and the duty of fair proportionality or measures; the aim of these duties is the taking-up by the creditor of behaviors consistent with the purpose of the privilege chosen, without contradictions and disproportions in terms of the seriousness of unlawful contract nonperformance by the debtor.The author concludes that the constituent elements of contractual solidarity, on account of their action and effects, are likely to ensure proper performance of duties, to save contracts existence and, ultimately, to accomplish the interests of contracting parties, the purpose of any contractual tie. -
One of the most controversial institutions of Romanian criminal procedural law is the institution of exclusion of evidence. We considered it necessary to carry out this comparative law study so that law practitioners as well as any interested person could observe how this institution appeared and how it is applied in other countries and in the case law of the European Court of Human Rights.
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One of the most controversial institutions of Romanian criminal procedural law is the institution of exclusion of evidence. We considered it necessary to carry out this comparative law study so that law practitioners as well as any interested person could observe how this institution appeared and how it is applied in other countries and in the case law of the European Court of Human Rights.
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The rule of exclusion remains one of the most controversial issues in the American constitutional doctrine in the field of criminal procedure. The American jurists constantly point out that the rule of exclusion is unique in the field of law, being specific to the American law. However, an increasing number of countries adopt in their legislative system provisions to exclude illegally obtained evidence. This study outlines a few remarks around Article 102 of the Criminal Procedure Code newly introduced in our legislation, trying to bring more clarity on the origin, purpose and ways to invoke the established principle. -
The article presents theoretical and practical aspects regarding the exclusion of evidence in the preliminary chamber, taking into account the Decision of the Constitutional Court No 22 of 18 January 2018 regarding the plea of unconstitutionality of the provisions of Article 102 (3), Article 345 (3) and Article 346 (4) of the Criminal Procedure Code, by which the plea of unconstitutionality of the provisions of Article 102 (3) of the Criminal Procedure Code was admitted and it was found that they are constitutional insofar as the phrase „exclusion of evidence”, therein, means also the elimination of the means of evidence from the case file.
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It is necessary in the Romanian criminal procedural law to differentiate the conditions for the exclusion of derivative evidence from the conditions for the irradiation of nullity in continental law and to move them closer to the criteria of the fruit of the poisonous tree originating from the United States of America. We adapt these criteria and other criteria from foreign law systems to the context of Romanian law through the standards of the European Court of Human Rights. One of the conditions for excluding the derivative evidence is that the infringement from which it derives requires the exclusion of the resulting evidence to ensure the fairness of the proceedings. The derivative evidence has the capacity to convey the effect of the violation of the rights of the defence, the right to privacy or domestic law on the fairness of the proceedings, but in such situations the unfairness of the proceedings must be established on a case-by-case basis. The unfairness can be automatic if the infringement concerns Article 3 of the European Convention on Human Rights or consists in entrapment by law enforcement officers. The consequence is the automatic, absolute or relative exclusion of derivative evidence, depending on the nature of the infringement. The derivative nature of the evidence is determined quasi-automatically in the case of entrapment. In other cases, it must be concretely established, on the basis of the conditions of the causal link between the infringement and the evidence: the effect of the primary evidence and the effect of the unlawfulness on obtaining the derived evidence. The conditions for the exclusion of derivative evidence have consequences for its applicability. The sanction is not applicable when the primary evidence is not obtained illegally, but is inadmissible by its nature, because in this case the unlawfulness is missing. This condition is met in the case of acts such as arrest, therefore the exclusion of derivative evidence is applicable. The effect of the infringement is transmitted by means of the stress test in the case of early exclusion, occurs directly in the case of a continuing infringement and must be analyzed, mutatis mutandis, in the case of alternative means of proof concerning the same evidence. Since in the case of the irradiation of nullity according to the continental model the effect of the primary evidence is irrelevant and the effect of the unlawfulness is established in the abstract by law, the sanction is distinct from the exclusion of derivative evidence.
