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This paper is mainly a semantic analysis of the definition of the offence of child pornography, included in Article 374 of the Criminal Code. It emphasizes the merits and the shortcomings of the current definition, as well as some solutions intended to remedy this definition. -
The anticipated legal capacity of the minor represents, together with the situation of the married minor, one of the exceptions of acquiring full legal capacity at the age of 18, expressly provided in Article 40 of the new Civil Code. Thus, for acquiring the „emancipation”, the minor can address the law court himself, by way of the non-contentious procedure, and with regard to the „reasonable grounds”, the legislator has not made an enumeration or an exemplification thereof, these remaining at the discretion of the guardianship courts. Given the implications which the measure of emancipation of the minor could have on himself and on others, this must be seen as an exceptional one, and although there is still no case law on the application of Article 40 of the Civil Code, de lege ferenda, the possibility to revert to the recognition of the anticipated legal capacity by the guardianship court would be, to the same extent, an appropriate measure of the higher interest of the minor.
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The article analyzes the material jurisdiction to settle the action for liability of the mayor for the prejudice caused to the state budget in the exercise of his mandate by the deficient fulfilment of the duties devolving on him, a prejudice established by the Court of Auditors by its act of control. In the absence of a derogatory regulation concerning jurisdiction, such an action, being governed by the rules and principles of the tort civil liability regulated by Article 1349 of the Civil Code, falls under the material jurisdiction of the court or of the tribunal, depending on the value of the object of the dispute (of the quantum of the damage requested to be repaired), according to Article 95 point 1 in relation to Article 94 point 1 k) of the Civil Procedure Code.
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In the practice it was questioned the possibility of the public prosecutor from a public prosecutor’s office higher in hierarchy to take over cases from a public prosecutor’s office lower in hierarchy where the criminal prosecution has ended, following that the public prosecutor from the public prosecutor’s office higher in hierarchy settles the case by indictment. In an opinion this procedure has been appreciated as being fair, in another opinion it has been appreciated that there have been violated the rights of the defendant to a fair trial.
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The New Fiscal Procedure Code introduces a novelty, the penalty for non-declaring. This penalty is a specific sanction that amerces a certain behaviour of a taxpayer consisting in non-declaring or wrongfully declaring main tax obligations. The penalty has a significant practical impact in case of both administrative irregularity and criminal irregularity. The nature of this penalty, the legal conditions of occurrence and the procedure of infliction cause some interrogations including an eventual exam of constitutionality. -
Medical malpractice is a subject that lately generates more and more and increasingly heated controversies. On the one hand, the patients are more and more dissatisfied with the medical services and the way they are cared for, the conditions existing in the hospital units, the quality itself of the medical act, and on the other hand, the doctors, besides the fact that they carry on their activity in poor conditions, in underfunded and understaffed hospital units, feel more and more harassed and fear that they can at any time be brought before the prosecutors as possible „criminals”. Within this article we intend to approach a quite delicate topic, namely the settlement of malpractice conflicts. Why is this a difficult problem? Why malpractice conflicts are more „delicate”? Why is it harder to solve such a conflict, as compared to a different kind of conflict? The answer is simple and widely accepted. The doctor-patient relationship is a special one. The doctorpatient relationship involves more than rights and obligations and the exercise thereof. This paper aims to draw attention and highlight the benefits of the settlement of the malpractice conflicts by using alternative methods. The results of the study can be used in the future both as a source for a possible future expansion of this study, but also as a starting point for a possible de lege ferenda amendment of the current legislation.
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In the case law of the Strasbourg Court, in the cases in which Romania has been convicted for the use of undercover investigators, it has been retained the violation of the right to a fair trial, not by the importance given to the statements of the investigators, the protected witnesses or collaborators, but by the omission of the judge examining the merits to take actual steps to hear them in the trial phase. These obligations, which are directly applicable in the Romanian law system, are established, on the one hand, so that the defendant and any other party can address questions to the witnesses, debate and contest their allegations, and, on the other hand, so that the judge can hear directly the depositions of the investigators or collaborators. Despite these clear and common-sense rules arising from the mandatory case law of the European Court, the current Criminal Procedure Code has provided, in Article 103 (3), that the statements of the investigators, collaborators and protected witnesses can not contribute decisively to proving crimes, thus the interdiction is valid whether they have been heard or not by the law court.
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The impact assessment of transposing Directive 2008/99/EC on the protection of the environment through criminal law into the domestic laws of the 28 Member States of EU and of the related experiences legitimately raises the question: is the expansion of harmonization or the promotion of new instruments of application required for the achievement of the pursued objective in the future? This study is the answer offered by its signatory within The Second AIDP World Conference held in Bucharest, in the period 18–20 May 2016. The article establishes, in essence, the necessity to continue the efforts in this matter, on the one hand, by adequate measures of simplification and harmonization of the relevant regulations within the national laws, and, on the other hand, by continuing the concerns of consolidation, at EU level, of imposing the uniformisation and adoption of the instruments of protection of the environment through the criminal law.
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The Decision No 641/2014 of the Constitutional Court has radically changed the preliminary chamber procedure, transforming it into a procedure much closer to which it must be, in the opinion of the European Court of Human Rights, a criminal procedure conducted before a judge, even if it does not end in the ruling on the merits of the criminal charge, but it solves aspects of a particular importance on the merits concerned. The change has consisted in the overturning of the characters initially imagined by the legislator, overturning that has transformed the preliminary chamber procedure from a procedure conducted without the participation of the prosecutor, of the parties and of the injured party, with a limited contradictoriality between the prosecutor and the defendant and predominantly written, into a procedure involving the participation of the processual actors, completely contradictory and oral, in which it becomes possible to provide evidence on the main object of this processual phase (the legality of the evidence provided in the criminal prosecution phase and the legality of carrying out the acts by the criminal prosecution bodies). Unfortunately, the latest changes brought to the preliminary chamber by the adoption of the Law No 75/2016, although they represent a step forward in the attempt to make this criminal processual phase to comply with the elements of a fair procedure, do not follow precisely the spirit of the decision of unconstitutionality, as the legislator has still left question marks about the fairness of the procedure as regards the hypothesis that there have not been filed applications and/or pleas and as regards the limitation of the means of evidence. -
This paper analyses the offence of conflict of interests, as incriminated in the new Criminal Code, by comparison with the old regulation, as well as the similar incrimination in the French Criminal Code, the study being illustrated with Romanian and French case law. Likewise, the author formulates some de lege ferenda proposals in order to improve the legislation in the field.
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The paper analyzes the institution of suspension of the enforcement of administrative acts pursuant to Article 14 of the Law on administrative disputes No 554/2004, as amended and supplemented, from the perspective of the solutions delivered in the recent years by courts of different ranks of jurisdiction, taking into account that the serious doubt on the legality of the administrative act must be distinguished easily after a brief investigation of the appearance of the right, because, within the procedure for suspending the enforcement, by which there can only be ordered provisional measures, the prejudgment of the merits of the case is not allowed.
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In this paper the author has proceeded to a brief examination of the European normative act adopted in March 2016, which regulates the presumption of innocence and the right to be present at the trial within the criminal procedures, both rights being circumscribed to the right to a fair trial provided in Article 6 of the European Convention on Human Rights and Fundamental Freedoms. The study also makes a comparative examination which has in view how these rights of the suspect or of the accused are protected in the Romanian law, also expressing some critical opinions as concerns the European normative act. The elements of novelty consist in the examination made, as well as in the comparative analysis and the critical opinions expressed.
