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In this article, the author analyzes extensively the issue of the status of the judges of the Constitutional Court from Romania, as it was prefigured in the theses debated by the Constituent Assembly in 1991 and regulated in the provisions of the Constitution approved by the national referendum of 8 December 1991 and revised by the Law No 429/2003. The status of the constitutional judges is analyzed by reference to the role and attributions of the Constitutional Court. The status of the constitutional judges derives from the role of the Court as guarantor of the supremacy of the Fundamental Law. The constitutional provisions regarding the status of the constitutional judges are developed by the Law No 47/1992 on the organization and functioning of the Constitutional Court, as well as by other special laws. The judges enjoy independence and are obliged to impartially exercise their attributions. The constitutional provisions provide that the constitutional judges are incompatible with any other public or private office, except for higher legal education teaching activities, are independent in the exercise of their mandate and irremovable during their term of office. The Law No 47/1992 establishes that the judges are not legally responsible for the opinions and votes cast in connection with the cases pending before the Court. For any other deeds, the constitutional judges may be tried in criminal proceedings with the consent of the plenum of the Constitutional Court, under the conditions provided by the Law No 47/1992. -
The doctrine of the state of law springs from the German theory and case law, but at present it is also a requirement and a reality of the constitutional democracy in the contemporary society. At present, the state of law is no longer merely a doctrine, but a fundamental principle of democracy enshrined in the Constitution and in international political and legal documents. In essence, the concept of the state of law is based on the supremacy of law in general and of the Constitution in particular. Essential to the contemporary realities of the state of law are the following fundamental elements: the moderation of the exercise of state power in relation to the law, the consecration, guarantee and respect for the constitutional human rights especially by the state power, and last but not least, the independence and impartiality of justice. In this study we are analyzing the most important elements and features of the state of law with reference to the contemporary realities in Romania. An important aspect of the analysis relates to the separation, balance and collaboration of the state powers, in relation to constitutional provisions. The most significant aspects of the case law of the Constitutional Court regarding the state of law are analyzed.
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The suspension of the administrative contract is an institution rather newly-introduced in the Romanian law, at the same time with the entry into force of the Law No 101/2016. However, this normative act exclusively regulates the judicial suspension of the administrative contract, which makes room for the following question: Can an administrative contract be suspended only by court decision and only under the conditions established limitatively by the Law No 101/2016 or in other circumstances as well, namely following a procedure other than that established by the aforementioned normative act? We believe that the suspension of an administrative contract may also be reached under conditions other than those established by the provisions of Article 53 (2) of the Law No 101/2016, either by administrative means, by a decision of measures taken by the competent bodies of the Court of Accounts, or as a result of the raising by one of the parties to such a contract, in relation to the other, of an exception for non-performance of the contract, or, finally, as consequence of the suspension of the unilateral administrative act on the basis of which such a contract was concluded, using the rule according to which the legal fate of the original act determines the legal status of the subsequent act. The subject seems to be new in our legal literature and engages extraordinary implications of substantive and procedural law. It is sufficient to mention here that the judicial suspension of the administrative contract enjoys, at the level of the Law No 101/2016, by a superficial regulation, requiring the supplementation by several provisions of the Law on administrative disputes No 554/2004, but also with those pertaining to the current Civil Procedure Code. It is this supplementation that makes it possible to clarify the institution of the judicial suspension of the administrative contract, but in a direction that raises problems which the practitioner not accustomed with the analytical doctrinal discourse could hardly envisage, of a higher depth than that encountered in the marginal comments of the legal provisions incidental in this matter. In other line of ideas, in the context of analyzing the set of prerogatives attributed by the law to the Court of Accounts, it can easily be concluded that an administrative suspension of the administrative contract is perfectly possible, ordered by a unilateral administrative act of an individual nature. Likewise, the administrative contract may end up in the situation to be suspended, as consequence of the legal suspension of the unilateral administrative act, on the basis of which the contract was concluded, an act challenged by the prefect in the exercise of the prerogatives of administrative trusteeship with which he was empowered by law. Both scenarios are binding on the use of the terminological luggage of the Law on administrative disputes No 554/2004. Lastly, the suspension of the administrative contract may be engaged also by the possible raising by any of the parties to an administrative contract, in relation to the other, of an exception of non-performance, which sends the assumed analysis to the ideological set of the civil law.
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The authors appreciate that the Constitutional Court Decision No 874/2018 is welcomed in the Romanian legal landscape. To the same measure, the authors reiterate criticism to the decision of the High Court of Cassation and Justice No 52/2018 for a prior ruling on the interpretation and application Article 27 of the Civil Procedure Code, by reference to Article 147 (4) of the Constitution of Romania and Article 31 (1) and (3) of the Law No 47/1992 on the organization and functioning of the Constitutional Court, republished, texts which establish the effects of a decision of the Constitutional Court.
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The provisions written down in the Peace Treaties of 1947 have decisively determined the international political alignment of the five former enemy states. Regardless of the divergences and contradictions occurred within the Great Alliance during the war, the post-war political situation of the defeated would have been different if the clauses of this international juridical act were drafted in accordance with the norms and customs of international law. The situation of fact became fully legitimate in the Peace Treaties elaborated by the winners and accepted by the defeated in the conditions of the lack of some viable options in the realities of the moment. -
The features that give a distinct note to European Union law, and even its specificity, in relation to national or international legal orders, whether universal or regional, par excellence lie in the immediate, direct and priority applicability of the rules that make it up. The concept of „priority” EU law in relation to the national law of the Member States is likely to complete the understanding of its specificity in relation to the situation which we encounter with reference to international law. The development and adoption of primary or secondary norms of European Union law represent true, intrinsic consequences of developments or, respectively, expectations recorded at EU level, either qualitatively or quantitatively. From such a perspective the steps we are witnessing, including those of legislative nature, must be known, understood, and accepted. Our approach considers the fundamental legal basis offered by the Romanian Constitution, republished version, but also relevant aspects found in the Civil Code, the Civil Procedure Code, Penal Code, and Criminal Procedure Code, to which we add the Insolvency Law.
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Continuous development of types of non-custodial sanctions as ways of combating crime, reducing the damage caused by it, avoiding the negative effects of deprivation of liberty, increasing the possibilities of executing these alternatives to the imprisonment and, last but not least, by reducing of detention costs have guided European Union Member States to create and introduce the most appropriate Community sanctions and measures to respond to these desires. The successful introduction of alternatives requires credibility, support of the public who must abandon the prejudice that a more relaxed criminal policy with less severe punishments encourages criminality, or that public humiliation or intrusive tracking of the persons undergoing penalties is permissible, and even necessary, to highlight the status by the offender. Equally, the successful introduction of alternatives1 depends on the judiciary that can not hesitate to make them available on a large scale whether is possible, but also on the involvement of many agencies (probation service, the bodies of the Ministry of the Interior, local authorities, etc.) to implement non-custodial sanctions.
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Among the measures initiated by the European bodies and subsequently taken over and adopted by the judicial authorities of the Member States to combat cross-border crime are those regarding the judicial cooperation in criminal matters referring to the tracing, identification, freezing and confiscation of proceeds, instruments and assets related to the offences committed by this kind of criminality. In this regard, the Report of the Commission to the European Parliament and to the Council on the progress made by Romania under the cooperation and verification mechanism, issued on 13 November 2018 in Strasbourg, through the Recommendation No 12, was sending to the Romanian authorities „the assurance that the National Agency for Management of Seized Assets is fully and effectively operational, so as to be able to publish the first annual report with reliable statistical information on the confiscation of assets coming from committing offences. The Agency should establish a system of regular reporting on the development of its administrative capacity, on the results obtained in the confiscation and management of proceeds resulted from committing offences”. The Romanian legislative authorities have indeed adopted the Law No 318/2015 for the establishment, organization and functioning of the National Agency for Management of Seized Assets and for the amendment and supplementation of some normative acts, law published in the Official Gazette of Romania, Part I, No 961 of 24 December 2015. This first legislative approach, however, had to be supported also by other administrative and executive formalities which involved the effective establishment, organization, functioning and operationalization of this Agency, a fact ongoing even at the date thereof. It is also noted, at the time of writing this study, that this Agency is not operational and that there are ongoing, although with big delay, some procedures for organising contests and for filling several offices therein in order to become functional. Starting from these coordinates, the article contains a brief analysis of the stage in which the Romanian authorities have complied with this recommendation, together with the relevant Romanian case law, with some of the Community norms and with the model of other European states in this matter, as well as its own conclusions necessary for an as good as possible implementation of this recommendation in the Romanian judiciary system.
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Prin Sentința penală nr. 1 din 11 ianuarie 2016 a Judecătoriei Motru s-a hotărât, printre altele, schimbarea încadrării juridice a faptei pentru care inculpatul M.S. a fost trimis în judecată din fapta prevăzută de art. 42 alin. (1) lit. c) din Legea nr. 407/2006 în fapta prevăzută de art. 42 alin. (2) lit. c) din Legea nr. 407/2006 și fapta prevăzută de art. 342 alin. (1) C.pen., totul cu aplicarea art. 38 alin. (1) C.pen., în fapta prevăzută de art. 42 alin. (1) lit. c) – art. 42 alin. (2) lit. c) din Legea nr. 407/2006 și fapta prevăzută de art. 342 alin. (1) C.pen., cu aplicarea art. 38 alin. (1) C.pen., texte de lege în baza cărora inculpatul a fost condamnat. Ca stare de fapt s-a reținut că inculpatul, în noaptea zilei de 4/5 aprilie 2015, a efectuat acte de braconaj cinegetic pe raza fondului de vânătoare cu nr. 27 M, punctul „M.”, aparținând AVPS E, ce a avut ca finalitate uciderea prin împușcare a doi căpriori, cauzând un prejudiciu în valoare de 10.000 euro, fără a fi înscris în autorizația de vânătoare individuală sau colectivă eliberată în condițiile legii de gestionar, pentru fondul cinegetic respectiv. Dincolo de motivarea sibilinică a instanței în ceea ce privește schimbarea încadrării juridice a faptelor, sentința penală citată aduce în discuție aspecte ce țin de aplicarea cadrului legal în materie, dată fiind claritatea precară a actului normativ care reglementează infracțiunea de braconaj.
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În acest număr al revistei publicăm două interesante studii semnate de eruditul dascăl de drept civil Dimitrie Alexandresco în publicația „Curierul judiciar” din 28 mai 1900 și, respectiv, de profesorul Vintilă Dongoroz, în aceeași revistă, nr. 11/1942. În primul articol, profesorul Dimitrie Alexandresco abordează o temă de drept internațional privat, și anume efectele gestiunii de afaceri în situația în care aceasta este încheiată pentru a-și produce efectele într-o altă țară decât cea de care aparțin părțile. Profesorul Alexandresco răspunde la întrebarea: „Care este legea după care se vor aprecia condițiile intrinseci de validitate și efectele acestui cvasi-contract?”. În al doilea articol, profesorul Vintilă Dongoroz prezintă o problemă de drept procesual penal referitoare la cererea de strămutare pentru legitimă suspiciune a unei cauze penale aflate în faza de cercetare la judecătorul de instrucție.
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În acest număr al revistei publicăm două interesante studii semnate de eruditul dascăl de drept civil Dimitrie Alexandresco în publicația „Curierul judiciar” din 28 mai 1900 și, respectiv, de profesorul Vintilă Dongoroz, în aceeași revistă, nr. 11/1942. În primul articol, profesorul Dimitrie Alexandresco abordează o temă de drept internațional privat, și anume efectele gestiunii de afaceri în situația în care aceasta este încheiată pentru a-și produce efectele într-o altă țară decât cea de care aparțin părțile. Profesorul Alexandresco răspunde la întrebarea: „Care este legea după care se vor aprecia condițiile intrinseci de validitate și efectele acestui cvasi-contract?”. În al doilea articol, profesorul Vintilă Dongoroz prezintă o problemă de drept procesual penal referitoare la cererea de strămutare pentru legitimă suspiciune a unei cauze penale aflate în faza de cercetare la judecătorul de instrucție.
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The consent of the patient is a legal consent and therefore it has to comply with all the validity conditions thereof. Among these, the condition of the capacity of exercise of the minor patient benefits from a special regulation by Article 661, the 2nd sentence of the Law No 95/2006. The present study intends to analyze these special provisions, by corroborating them with the regulations applicable to the legal representatives of the minor and by reference to the common law in the matter of capacity of exercise, for the purpose of accomplishing the finality of the legal provisions (protected access to the medical service) and of avoiding some blockage situations, generated by a bureaucratic interpretation.
