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The authors intend, in the first part of the article, to clarify, based on decisions made by the European Court of Human Rights, the meaning of “criminal charge” in relation to the provisions of art. 6 of the (European) Convention for the protection of human rights and fundamental freedoms, while in the second part of the article, they review the effects of the decision made in the case Anghel vs. Romania on the national legal framework and on case law. -
In this article, the author attempts to draw the attention of law practitioners in Romania on the importance of the “money laundering” phenomenon, in the context of the need to fight against organized crime and crime in general, followed, in most cases, by the attempt to “legalize” the income obtained from criminal activities. We believe that the action is welcome, being aimed at a better specialization of Romanian practitioners, also in the context of the relative “novelty” of this criminal pattern at both national and international level, in the field of prevention and fighting against money laundering.
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According to the latest’s international studies about economics in Latin America, a natural problem that have emerged it is the lack of finance oriented in two fronts: in first place, to the small and medium corporations, and in second place, to promote businesses devoted to the technological innovation. In that lines of ideas, for the last years have being accepted in the Chilean Congress several changes in the commercial law, destined to provide an adequate juridical structure to provide entrepreneurs to generate the evolution our markets require to enter a natural standard of growth, two politics in this direction were the creation of corporations of multiple guaranty, and stock divided corporations with limited responsibility, who are called as a concrete solution to this problems.
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Raportul de expertizã întocmit într-o cauzã penalã ce viza sãvârșirea unor infracțiuni de cãtre reprezentanții unei societãți comerciale constituie, în litigiul având ca obiect contestarea de cãtre respectiva societate a legalitãții unor acte administrativ-fiscale, un mijloc de probã extrajudiciar, care prin excepție de la principiul nemijlocirii probelor, poate fi folosit numai în cazul în care nu pot fi administrate probe judiciare în cauza respectivã (Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal, decizia 5115 din 13 noiembrie 2009).
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The authors of the new Criminal Code intended to redesign the punitive model of relapse, but the solutions proposed reveal the inconsistencies of the model. The new Criminal Code no longer defines the post-condemnation relapse distinctly from the post-execution relapse, and the small relapse no longer exists in the new regulation, the lawmaker preferring a general definition of relapse. Although the intention of the code’s authors, transmitted to the lawmaker, was to aggravate the punishment regimen of relapse, by increasing the duration of imprisonment, which may represent a first term for relapse in one year, in practice a more favorable regimen is created for those who have been punished to imprisonment for less than one year, a thing, however, not justified given the statistic evolution of the number of persons with a judicial record who reiterate their criminal behavior. The idea of the project’s authors was to simplify the regimen of punishment of relapses, based on an arithmetic sum in the case of post-condemnation relapse, and on the legal increase of special punishment limits by half in the case of post-execution relapse, but the proposed model of punishments leads to a more severe punishment regiment for post-condemnation relapse than for the post-execution relapse, although the latter is believed to represent the worse modality of relapse, as the social danger of the relapsing criminal appears, in this case, to be more precisely shaped, by proving the inefficiency of the punishment the criminal has executed.
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Causes leading to change of punishment are such conditions, circumstances or contexts which are exterior to the contents of the crime and which outline a higher or lower level of social danger of the deed or of dangerous behavior of the criminal, thus determining a change of punishment, either in terms of quantity (in the form of duration or amount), or in terms of quality (change of one main punishment by another). In these causes, a distinction is made between attenuating and aggravating causes. The attenuating causes category includes attenuating conditions and attenuating circumstances, while the aggravating causes category includes aggravating conditions and aggravating circumstances.
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In this study, the author fights – with arguments – an opinion that remained isolated in the Romanian civil law doctrine (an opinion according to which art. 32, paragraph 1 of Law no. 18/1991, republished on 5 January 1998, a text according to which certain categories of terms, assigned according to art. 18 paragraph 1, art. 21 and art. 43 of this law, cannot be transferred for 10 years to the company from the beginning of the year following the year in which the registration of the property was made under the penalty of absolute nullity of the deed of transfer would have been abrogated by Laws no. 54/1998 and no. 247/2005). -
In this study, the two authors examine certain particularities of the commercial mandate contract existent between the managers of joint-stock companies and the given companies, with the specification that the term “managers”, in the above context, applies exclusively to the managers referred to under art. 143 paragraph 1 of Law no. 31/1990 regarding companies, republished on 17 November 2004 (those whom the Board of Directors delegated the management of the company and who, as the case may be, can be appointed among the directors or from outside the Board of Directors), and not to members of the directorate (existent in joint-stock companies organized in dual system) or to “specialized” managers, who are not representatives of the social will, but run certain specialized compartment.
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The criminal procedure rules according to which the „transfer of procedures in criminal matters” is carried out are comprised in the international treaties and conventions to which Romania is a party, which are supplemented by Law no. 302/2004 on international judicial co-operation in criminal matters, plus the provisions of the Criminal Procedure Code. „The transfer of procedures in criminal matters” entails two manners of performance, according to the capacity in which the Romanian State is involved in its carrying out, namely: - delivery of criminal procedure; - reception of criminal procedure.
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The challenge on enforcement does not refer to the merits of the judgment of conviction, but it is directed against its enforcement and, for this reason, its completion consists in eliminating the illegal matters occurring in the enforcement or during the enforcement of the judgment. The probation service attached to the tribunal has no competence to file a challenge on enforcement with the court of law for reasons of illegality occurred during the surveillance of the person convicted and, in particular, for matters related to the personal interests of the convict. If, during the surveillance, problems or interests of the convict occur that prevent the convict from appearing on the dates scheduled, the probation service has the competence to examine the reasons invoked and revise the initially scheduled surveillance plan.
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In essence, the article emphasizes the inconsistent practice of the courts, as regards the consequences of changing the legal classification of the criminal offence – the subject matter of the judgment – by indictment, an action of initiating proceedings before the court, on the means of appeal in the criminal trial. The legal matter under discussion takes into consideration the impact of the provisions of art. 361, paragraph 1, letter a) of the Criminal Procedure Code and of art. 3851 paragraph 1, letter d1 of the Criminal Procedure Code, according to which the judgments regarding criminal offences for which the initiation of criminal procedure is carried out following the preliminary complaint of the injured person cannot be challenged with an appeal, but only with a second appeal . Thus, in relation to the new legal classification of the criminal offence – the subject matter of the judgment – the means of appeal that can be used in such criminal cases must be established. In our opinion, in case of changing the legal classification, the legal classification given to the criminal offence – the subject matter of the judgment – by the court whose decision is subject to judicial review is decisive in establishing the means of appeal.
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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.
