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The ordinary courts have the general competence to protect the rights and freedoms of individuals, whether provided or not in the international treaties or in the Constitution of Romania. The Constitutional Court’s claim to be the only one to exercise constitutional justice powers is based on a faulty interpretation of its own competence, which is constitutionally determined as being to ensure the supremacy of the Constitution, and on reducing the constitutional contentious to the contentious of rules. A correct interpretation of the constitutional provisions and the fructification of the Romanian tradition in the matter of constitutional justice demonstrate that the ordinary courts are competent to apply the Constitution in order to protect the rights and freedoms of individuals, therefore to exercise constitutional justice powers, because this is not reduced to the control of the constitutionality of the laws. -
This study focuses on the legal issues involved by the provisions of Articles 125 (3) and 132 (2) of the Constitution (according to which the office of judge or public prosecutor shall be incompatible with any other public or private office, except for the didactic offices in the higher education institutions) in correlation with the provisions of Article 41 (1) of the Constitution (according to which the right to work shall not be restricted, and everyone has a free choice of his/her profession, trade or occupation, as well as work place). Currently, the relevant administrative practice and case law interpret and apply extensively (lato sensu) Articles 125 (3) and 132 (2). Such approach leads to the presumption that any other activity performed by judges or public prosecutors is forbidden (otherwise triggering disciplinary liability thereof) unless that other activity is not related to didactic offices in higher education or is not assimilated to such offices by special law (or, as it happens most often, by a decision issued by the Plenum of the Superior Council of Magistracy). This study demonstrates that, on the contrary, the aforementioned constitutional provisions establish a presumption according to which the judges and public prosecutors can lawfully perform not only the activities which consist in „didactic offices in higher education”, but also any other activity which is not an „office” and in relation to which there is no „conflict of interest” in the light of the relevant legal provisions. In order to reach this conclusion, the constitutional and legal provisions on the concept of holding multiple „offices” must cease to be interpreted extensively (lato sensu), as it is made currently by the administrative practice and the case law, but restrictively (stricto sensu) – as those constitutional provisions constitute an exception from the constitutional principle of the free right to work, establishing a restriction of this fundamental right exercise. The legal provisions laid down in this field can be qualified as consistent with the Constitution only if their normative content does not produce an extensive application of the constitutional provisions concerning the holding of multiple „offices”. Thus, by the words „other public or private office” (with which the office of judge or public prosecutor is prohibited to be held simultaneously) one has to understand exclusively a public or private activity performed regularly and in an organized manner within an institution (organization) against a remuneration.
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The aim of the present paper is to cover the main aspects regarding the legal treatment of witness protection in the Romanian criminal legislation by presenting, from a critical standpoint, the current regulation of the witness protection. The authors analysed essential aspects regarding the protection of threatened witnesses, the protection measures ordered during the criminal investigation, the protection measures ordered during the trial or the protected witnesses hearing, as well as the protection of vulnerable witnesses by reporting to the European Convention of Human Rights provisions and jurisprudence. Also, the present paper analyses the probative value of the protected witness statements and contains comparative law matters on witness protection laws in several European countries.
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This article proposes a solution to identify the initial moment of the period of prescription of the criminal liability in case of the offence of deception, in the particular situation where the material element is separated in time from the immediate follow-up. In order to resolve this matter of law it is necessary to establish the legal nature of the offence of deception, from the point of view of the offence unity. If a progressive offence is in question, the form of legal unity being part of the category of offences with duration of consummation in time, the period of prescription of the criminal liability begins to run from the date of committing the action or inaction.
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Following the Decisions of the Constitutional Court No 405/2016 and No 392/2017 there are numerous discussions regarding the regulation of the offence of abuse of office, provided by Article 297 (1) of the Criminal Code. The Ministry of Justice has proposed the amendment of Article 297 (1) of the Criminal Code without establishing a value threshold and without the circumstantiation of the injury caused by committing the facts, elements depending on which it can be assessed the incidence or lack of incidence of the criminal law, by ignoring the above-mentioned decisions of the Court. In the public debates organized by the Ministry of Justice different opinions have been expressed in the sense of establishing a derisory threshold of ROL 1 000, in another opinion a threshold of ROL 2 000 000, and in another opinion in the absence of any threshold, without any circumscribing of the offence of abuse of office. In the context of these discussions, we propose the adoption of the regulation of the French Criminal Code in which facts are clearly, precisely and predictably circumscribed.
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The oblique action is a means of preserving the claim that has been regulated both in the sense of the new Civil Code and in the sense of the old Civil Code. The new regulation, however, brings some improvements to clarify the conditions and effects of the oblique action. At the same time, the notion of general pledge of creditors is replaced by the notion of joint guarantee. As such, a study on the effects and conditions of the oblique action is extremely useful, especially as it is compared with the provisions of the new French Civil Code. Through this paper we have understood to deal with a very important and up-to-date subject as it is a means of protecting the claims at the disposal of any creditor. At the same time, the parallel with the direct actions comes to clarify the confusion that has been created many times in both doctrine and judicial practice between the two legal mechanisms. -
The article analyzes the Decision of the Constitutional Court No 369/2017, by which the phrase „as well as in other requests assessable in cash worth up to ROL 1 000 000 inclusive” was declared unconstitutional. In the Civil Procedure Code, in Article 483 (2), there are listed the judgments that can not be challenged with recourse, among which there are the requests assessable in cash worth up to ROL 500 000. By Article XVIII of the Law No 2/2013, this threshold was increased to the amount of ROL 1 000 000 inclusive. We consider criticizable the establishing of the categories of court judgments that have eluded the recourse taking into account the value criterion and we propose to eliminate this criterion. In our opinion, we agree with the admission of the plea of unconstitutionality, which has eliminated the value threshold for the promotion of judgments that can be challenged with recourse. Likewise, we consider criticizable also the delimitation of the material competence between judges and tribunals, being based on the value criterion. In our opinion, the delimitation of the material competence must be made depending on the nature of the litigation brought to justice, not on the value criterion of the request for summons.
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Leave of absence is a motivated missing (absence) from the workplace, being a period when the employee does not work. As the leave of absence from the workplace is not legally regulated by the normative acts in force, in practice, when the employee requests leave of absence in order to solve some personal matters, discussions arise as to whether or not he receives salary during the leave of absence. This study raises for discussion some considerations and proposals referring to the legal status of the leave of absence from the workplace, both for the employees from the budgetary sector and for the employees from the private sector.
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The faulty interpretations of the normative system as a hierarchical system are due to analysing the matters of validity and of withdrawal of legality on the basis of the same methods of interpretation as when the matter of conformity is examined. If we clearly operate this distinction, using the pre-war case law, then the ordinary courts have competences in the matter of contentious of validity of rules and even some competences in the matter of contentious of conformity, despite the Constitutional Court’s claim to monopolize the constitutional contentious of rules. Likewise, they have competences in the matter of contentious of conformity of the infraconstitutional rules with the Constitution, which is questioned only due to the understanding of the normative hierarchy according to the French model, which is not applicable pursuant to the Constitution of Romania. Finally, I will prove that the ordinary courts have the competence to verify the agreement of the rules declared unconstitutional with the C.C.R decision.
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The most important normative act, which regulates the matter of establishing, organizing and dissolving societies, is Law No 31/1990. According to Article 1 (1) of the Law No 31/1990, for the purpose of carrying out activities for profit, natural persons and legal persons may associate and form companies with legal personality, in compliance with the provisions of this law. Article 1 (2) of the same law provides that the companies referred to in paragraph (1) based in Romania are Romanian legal entities. Violations of legal norms regulating the establishment, organization, modification and cessation of the activities of societies can be manifested in various forms and may, as the case may be, imply criminal, civil, disciplinary, tax liability etc. Taking into account the fact that the companies have a special importance in the field of business, the Romanian legislature criminalizes certain facts of violation of the norms provided by the Law No 31/1990.
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This study is a thorough analysis of the procedure of judgment in the absence of the defendant. In particular, there are assessed the remedies that the Romanian regulation provides to the one who has been the subject to a procedure of judgment in contumacy. The author brings arguments of comparative law and of systemic interpretation of the internal legal rules, his conclusion being that there are many aspects in which the internal regulation is deficient.
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În primul meu articol, publicat în Dreptul dela 8 Decembrie 1913, arătam că unul dintre cele mai mici și mai sărăcăcioase bugete, în care spiritul de exagerată economie, de adevărată sgârcenie, se arată la fiecare pas, este acel al Justiției. Nu știu cum s’a făcut, că aproape toți miniștrii de justiție, deși avocați prin meseria lor obișnuită, deci cunoscând în deaproape pe magistrați și situațiunea lor materială mai mult decât precară, nu au intervenit până acum de a schimba normele și alcătuirea acestui buget sărăcăcios și nedrept. În adevăr, acest buget, care până mai eri era de 10 milioane, azi, după atâtea secțiuni noui de Curți și tribunale înființate, abia se ridică la 11 milioane și jumătate. Iar salariile magistraților și ale celorlalți funcționari judecătorești, de acum 24 ani, dela legea organizărei judecătorești din 1890, a d-lui Teodor Rosetti, au rămas aceleași! Și cât de mult s’a schimbat în 24 ani situațiunea economică a țărei! Banul s’a eftenit, iar prețul obiectelor de prima necesitate s’a întreit și împătrit chiar.
