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In this study, the author proves that the adoption of 5 resolutions of the Government of Romania, during 2005-2010, regulating the operation of deconcentrated public services, organized at regional level (each including many counties) is unconstitutional in relation to the provisions of art. 120 and 123 of the Constitution of Romania (revised and republished), since, according to these constitutional rules, the deconcentration of public administration can be done only at the level of counties or the Bucharest municipality, and the prefect (appointed in each country and in the Bucharest municipality) is the representative of the Government at local level, having – among other things – the competence to manage the deconcentrated public services of the ministries and of the other specialized central administration bodies in the administrativeterritorial units. -
In this article, the author emphasizes the main amendments brought to the Romanian criminal and criminal procedure legislation by Law no. 202/2010 regarding certain measures to accelerate the resolution of trials.
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En el nuevo siglo los discursos de legitimación del poder punitivo se extraen de las nuevas realidades, originadas desde la hipótesis que aboga por la empírica constatación de una síntesis, que surge de la tensión dialéctica entre el binomio libertad vs. seguridad, que en la actual “sociedad del riesgo” se resuelve “irremediablemente” a favor de la última opción. Se trata de una forma de organización e interacción comunicativa, surgida con la postindustrialización, caracterizada por una serie de factores que la población estima como esencialmente negativos, vinculados al miedo al avance tecnológico y las modificaciones en los sistemas de producción, que suponen el nacimiento de nuevas realidades, que amenazan la seguridad de la población y también el Estado Social en algunos de los países desarrollados1. Al servicio de este modelo hay ahora todo un sistema de imputación que busca el mantenimiento de los valores de la sociedad, mediante la estabilización de la expectativa asignada por la norma penal y la neutralización del riesgo futuro de lesión a la misma. Esta legitimación significa asignarle un sentido útil a la tendencia creciente hacia la disminución de los espacios de libertad; en ese sentido, se dice, que la decisión es netamente política y no jurídico-penal: en consecuencia, no hay que inmiscuirse en ello, ni mucho menos calificar las nuevas regulaciones legales como algo positivo o negativo, como postula Jakobs.
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In the study below, the author examines the regulation of the inheritance right of the surviving spouse in the new Romanian Civil Code, (published in July 2009, but not yet in force), in comparison with the current regulation in this field (the Decree-Law no. 319/1944). In this respect, we note that the new Romanian Civil Code keeps the essence of the previous regulation, to which it adds a series of new elements and aspects realized by the legal doctrine over time. Therefore, the author concludes that the new Romanian Civil Code, “provides a semi-complete, fair, flexible and current regulation in the field of inheritance rights of the surviving spouse”.
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On the occasion of enforcing the European arrest warrant, the Romanian authorities dealt with the situation in which the person requested was subject to the development of judicial proceedings in Romania, regarding other offences than those for which the request had been made. In this case, the Law 302/2004, as subsequently amended and supplemented, provides for the possibility for the court to postpone the surrender until the completion of the judgment or until the execution of the punishment, or to order the temporary surrender of the person sued, under the conditions established by an agreement concluded in writing with the issuing judicial authority. The article examines matters related to the practical application of the institution of postponement of surrender, referring to the premise situation that needs to exist and to the possible solutions a court may order. -
In this study, the author comments on a 2010 decision of the High Court of Cassation (the Commercial Section) dismissing – in a final way – an action for declaring absent a sale-purchase agreement for real-estate – a future good – considering that there is a condition precedent, and not a contingent right, as the author claims.
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The article examines certain problems that have occurred in practice in relation to the institution of retrial in case of extradition for persons convicted by default, namely the possibility to order, after the admission in principle, the entire or partial suspension of the decision whose retrial is requested, the moment as of which the pronouncement of a decision regarding the admission of such retrial produces legal effects, both as regards the annulment of the former conviction decision, and regarding the annulment of the punishment execution warrant, with direct implications on the release of the person in question, as well as the impact of the legal provisions regarding the intervention of the special prescription of criminal liability, upon the retrial of such a case.
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In the following study, the author makes a relatively exhaustive analysis of the provisions of book IV in the new Romanian Civil Procedure Code (Law no. 134/2010, a Code already published (on 15 July 2010) in the Official Journal of Romania, but not yet in force. In this context, the author examines the provisions of “About arbitration” (art. 533-612) in the new Romanian Civil Procedure Code, (with a special focus on the institutionalized commercial arbitration) in relation both to the corresponding provisions in the current Romanian Civil Procedure Code, and to the provisions contained in the Rules of Arbitration of the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania.
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In international relations the old rule of law acta probant sese ipsa has not the same value as inside of a state because it is considered that an authority of a State who receive a document from another State should be put in an extremely difficult situation in terms of imposing the task of assessing the authenticity of a foreign document to the first sight. So, the use abroad of official documents from a State authorities require the completion of special formalities in order to ensure the originality, the authenticity of signatures/seal and legality of a specific document preparation. If by 1961, the year of concluded of the Hague Convention on Abolishing the Requirement of Legalization for Foreign Public Documents (to which Romania joined by the Government Ordinance no. 66/1999, approved by Law no. 52/2000), there was only legalization procedure, since that date appears apostille procedure (only for the states signatory to the Convention) determined by reason of simplifying the requirements necessary to be fulfilled for the validity of official documents abroad. The aim of the present study is to present the apostille procedure in the light of the provisions of the Hague Convention on Abolishing the Requirement of Legalization for Foreign Public Documents and of the Romanian provisions regarding this issue.
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Potrivit art. XXIV alin. (1) din Legea nr. 202/2010, numai hotãrârile pronunțate înainte de data intrãrii în vigoare a acestei legi rãmân supuse cãilor de atac, motivelor și termenelor prevãzute de legea sub care a început procesul; prin urmare, hotãrârile pronunțate ulterior intrãrii în vigoare a Legii nr. 202/2010 sunt supuse cãilor de atac, motivelor și termenelor prevãzute de dispozițiile Codului de procedurã penalã, astfel cum au fost modificate prin aceastã lege. Conform alin. (2) al aceluiași articol, „Procesele în curs de judecatã la data schimbãrii competenței instanțelor legal învestite vor continua sã fie judecate de acele instanțe, dispozițiile referitoare la competența instanțelor din Codul de procedurã penalã, republicat, cu modificãrile si completãrile ulterioare, precum și cu cele aduse prin prezenta lege, aplicându-se numai cauzelor cu care instanțele au fost sesizate dupã intrarea în vigoare a prezentei legi”. -
The study presents critical issues on contraventional complaints’ settlement procedure from point of view of Law 202/2010 regarding certain measures to accelerate the process. The reason for this amendment was obvious: the rapid settlement of trials far more numerous than in other matters also due a consequence of the fact the offenders’ procedural interest was that many times only that of suspension of the enforcement of fines and other sanctions imposed by the records of offense, suspension which, according to legislation in the matter, became effective by law upon the registration of the contraventional complaint until the date of the final and irrevocable judgment. In the second part of the study, the author has analyzed the nature of contraventional law given that offenses were removed from the criminal law and have undergone administrative arrangements. Issues of unconstitutionality by removing appeal in certain contraventional matters were addressed, arguing that thereby they have infringed art. 2 of Protocol 7, supplementing the (European) Convention on Human Rights and Fundamental Freedoms. In the final considerations, the author revealed that the ruling no. 500/2012 of the Constitutional Court case-law is a welcomed revival for the Romanian legislation arguing that it forces a reconsideration of the regulation on contraventional proceedings as a whole.
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The study examines the issue of unlawful interceptions and audio or video recordings made during preliminary acts, i.e. prior to prosecution; this is a common problem the case law courts are often faced with. The conclusion that interceptions and carrying out audio or video recordings prior to the start of a criminal trial are unlawful is produced by the author based on the analysis of the Constitutional Court’s jurisprudence on this matter and of power of res judicata accompanying the Constitutional Court’s judgments which is attached not only to the operative part, but also to the considerations underpinning it.
