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Starting from the case of Vergu vs. Romania, recently settled (January 11, 2011) by the European Court of Human Rights, the author, in light of Art. 13 of the European Convention on Human Rights, discusses the issue related to the right to a prior effective recourse with the internal (national) court of law, a sine qua non prior condition for notifying the Strasbourg Court, concluding that the European court of law (must make the severe application of the subsidiary nature principle. Only under entirely exceptional cases, with grounded motivations, in a circumspect and entirely isolated manner, may the Strasbourg Court release the claimant from its obligation to exhaust the internal means (of effective recourse with the national court). -
The author explores, in the study hereunder, an unusual provision in the matter of arbitration proceedings and that relate, essentially, to putting forth arbitration awards which ascertain or establish real rights to courts or the notary public. This provision was reintroduced in the new Code of Civil Procedure and is aimed at obtaining a court order or an authentic notarial instrument. The aforesaid regulation is criticized by the author, grounded by the fact that it flagrantly transgresses the procedural provisions that assign to the arbitration award the same effects as a court order, it being at the same time mandatory. Additionally, the author notes the theoretical and practical difficulties arising from the procedural rules under review. In the author’s view, such a regulation tends to turn the notary public into a jurisdictional authority. The author concludes that a more rational regulation would be to exempt actions relating to real rights from the jurisdiction of the arbitral tribunal. -
In the jurisprudence of the European Court of Human Rights, the issue of a broad interpretation of the right to marriage is all the more acutely debated, while the Court is beset with applications filed by homosexual and transgender individuals to have this right recognized. In the current state of the jurisprudence of the European Court of Human Rights, the marriage of a couple in which one of the partners has resorted to a sexual Convention through gender reassignment surgery is considered legitimate (within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms), stating that this is also a case of heterosexual marriage. However, so far, the European Court of Human Rights has not considered legitimate marriages between persons of the same biological sex (gay or lesbian). -
The recent case law of the Romanian Constitutional Court gives shape to a new doctrine regarding the Court’s role in ensuring the national legislator’s compliance with the European Union’s competences. In order to identify the new doctrine’s background, the current article analyzes the evolution of the Romanian constitutional case law on the application of Union law. Subsequently, the current position of the Constitutional Court is extensively described, emphasizing both its immediate consequences and possible future developments. -
The criminal offence of compromising the interests of justice, according to the new regulation, refers in particular to the respect and authority that needs to be attached to the performance of the act of justice, and such performance is protected by criminal law in two manners, both as regards the criminal offences committed by persons from outside the judicial system in the capacity of unqualified active subjects, and against the “abuses” of any nature committed, on the one hand, by the persons called to perform the act of justice and, on the other hand, by the public servants who, as a result of their work duties, learn about the producing of any evidence, the existence of any means of proof or official documents, which, by their disclosure or revealing, could obstruct or prevent the criminal proceeding, or could influence the order of a solution in the criminal proceeding stage. -
The new Criminal Code, which brings numerous innovations to the scope of accusation under the Romanian criminal law, stipulates, in the text of art. 239, the sanctioning of a debtor’s action of alienating, hiding, deteriorating or destroying, in whole or in part, values or goods in its assets or of invoking false acts or debts for the purpose of defrauding creditors or the action of a person who, knowing that it will not be able to pay, purchases goods or services thus causing damage to the creditor. -
The new Criminal Code, which brings numerous innovations to the scope of accusation under the Romanian criminal law, stipulates, in the text of art. 239, the sanctioning of a debtor’s action of alienating, hiding, deteriorating or destroying, in whole or in part, values or goods in its assets or of invoking false acts or debts for the purpose of defrauding creditors or the action of a person who, knowing that it will not be able to pay, purchases goods or services thus causing damage to the creditor. -
Administrative jurisdiction on public procurement is carried out by the National Council for Solving Complaints and finalized with the pronouncement of certain administrative and judicial acts, called decisions. These can be attacked by complaint to the courts of appeal, whose decisions are final. The 2010 amendment to the Government Emergency Ordinance no. 34/2006 on awarding public procurement contracts, public works and services concession contracts introduced the obligation of those who make complaints to pay legal fee in an amount which even now raises some questions. Alpha The practice of all courts of appeal in the country is to accept to charge the complaints with either 4 lei or 2 lei. Constanþa Court of Appeal chose to break away from this unwavering practice of the courts of appeal which it itself promoted until recently and to require claimants to pay a value charge according to the amounts provided for in Art. 28717 paragraph 1 of the Ordinance, namely between 0,01 lei and 1,100 lei, and not fixed amounts of 4 and 2 lei. This study enounces the two different solutions found in courts of appeal case law and the arguments that they are based on, whilst the author tries to generate thoughts on the issue of charging the complaints not only to those involved in the judicial process of settlement of the latter and the litigants, but also to the legislative body, with an eye to prompt and definitive clarification thereof. -
In this article, the author analyzes the provisions of Article 124 of the Romanian Constitution, which have as regulatory object the administration of justice. The concept of justice can be examined from multiple points of view, including from the perspective of the theory of law. The author shows that, although justice is the favourite subject of examination of the theorists and practitioners of law specialised in the civil procedure and in the criminal procedure, it is also relevant the analysis of the term of justice from the point of view of the constitutional law. It is analyzed, thus, the concept of justice, the constitutional characters of justice, the constitutional significance of the independence of the judges and its legal effects. Unlike the independence of the judges, which is established by constitutional norm, the independence of prosecutors is established by the legislative will of the Parliament, which means that they do not benefit from constitutional guarantees, but only from the legal ones. -
The area of significance of certain terms used in the Constitution is quite diverse and therefore we cannot be precise about their content, especially when the semantic perception of those terms is not purely legal. Terms, as „homeland”, „nation”, „nationality”, „people”, „national minorities”, „national identity” or „ethnic identity” don’t have at first sight an explicit constitutional significance. The content of these terms evolves with the dynamics of the population. Moreover, some of these terms have a specific meaning in some cultural systems and another meaning in other civilizations. Therefore, they should be explained according to the corresponding social realities, political culture and traditions of the population or community of citizens to whom they will apply. -
În versiunea originalã a Convenţiei (europene) pentru apãrarea drepturilor omului şi a libertãţilor fundamentale (în continuare denumitã Convenţia), moartea nu putea fi cauzatã unei persoane în mod intenţionat, decât în executarea unei sentinţe capitale pronunţate de un tribunal pentru o infracţiune sancţionatã prin lege cu o asemenea pedeapsã. Astfel, pedeapsa cu moartea nu era interzisã, cu condiţia respectãrii principiului legalitãţii, aceasta şi datoritã faptului cã în acel timp (data semnãrii, respectiv data intrãrii în vigoare a acestui document), în majoritatea statelor membre ale Consiliului Europei pedeapsa cu moartea era stipulatã în legislaţiile penale interne2.
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The present scientific approach, springing from the practical, concrete needs, appeared in the space of manifestation of the role of one of the fundamental institutions of the Romanian state, is based on the wider and more complex reality of Romania’s international commitments, particularly the issue to fulfil the obligations arising from its status as a full member of the European Union, in terms of the application of European law, in respect of its fundamental values in relation to the national legal order, especially the priority over the rules of national law. At a conceptual, theoretical level, given these decisive influences of European law on the process of creating Romanian law, in the effective crystallization of the sources of positive law, by virtue of Romania’s accession to the EU treaties, the article intends to assess some possible coordinates of the process of reform of the Legislative Council, under the aspect of its obligations on the line of legislative harmonization, in application of the provisions of Article 79 of the Constitution, regarding the essential role of this institution in terms of systematization, unification and coordination of all national legislation. From such a perspective, it is confined to the research of the correlation between the needs of the state, in this case the obligations imposed constitutionally on all public authorities, according to Article 148 of the fundamental act and the concrete realities of the phenomenon, in the projection of the organization and functioning of the Legislative Council, the author advances concrete solutions meant to ensure its institutional adequacy to the weight and dynamics of the European legislation, in a continuous change, in the context of increased institutional efficiency.
