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The present study is dedicated to the approach from theoretical and practical perspective of the problem of instigation to commit an offence or to continue to commit an offence for the purpose of obtaining evidence in the context of using special investigative techniques. The problems presented are based on an ex post facto analysis, with applied character, by outlining some concrete hypotheses. There are highlighted aspects elaborated by the European Court of Human Rights by way of case law, but also relevant aspects from the national case law of Romania in order to identify the criteria for establishing the illegal nature of the activities of the criminal investigation bodies necessary to collect and provide evidence in the criminal trial. Likewise, there are presented and analyzed the conditions retained by the Strasbourg Court necessary to be fulfilled so that the activities of the state bodies do not exceed the scope of loyalty of administration of evidence. In addition, an attempt is made to delimit the instigation to commit offences from the legal activity of the undercover investigators in the context in which it has been authorized the use of the special method of investigation of using undercover investigators or collaborators, provided by the Criminal Procedure Code. -
Air pollution is the biggest environmental threat to public health; every year, it generates the premature illness and death of over 5 million people worldwide and over 400 000 inhabitants of the EU. Such realities and the proliferation of the cases of non-compliance with the legal regulations and the measures adopted to prevent and combat air pollution have generated an increasing and more diverse judicial contentious, both at national level and at the level of the jurisdictions of the EU. By the Judgment of 26 June 2019, the Court of Justice of the EU has pronounced a solution for the reference for a preliminary ruling raised before a Belgian tribunal on the interpretation of Articles 6, 7, 13 and 23 and of Annex III of Directive 2008/50/EC. The intention was to find out to what extent the national jurisdictions can control the location of the sampling points and if it is possible to establish an average value, starting from the results of the different measuring stations, in order to evaluate the compliance with the limit values. The Court of Justice of the European Union has stated that national jurisdictions are competent to control the choice of the location of the air quality measurement stations and to take, with respect to the national authorities concerned, any relevant national measure; in order to evaluate the compliance with the limit-values, the pollution level of each sampling point must be taken individually. The new case law of the Luxembourg court contributes to strengthening the environmental contentious and its role in ensuring the application of the regulations in this field.
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At the conclusion of the individual labour contract it can be established, as provided in Article 31 of the Labour Code, a probation period. The legislator has established only the maximum duration of the probation period; specifically, the duration of the probation period is agreed upon in the individual labour contract, when negotiating the clauses. The probation period cannot be modified, being established upon the conclusion of the individual labour contract, but it can be suspended. In the case of the probation period, the dismissal procedure is limited only to the written notification, which must not be motivated, without other obligations for the employer, not even granting a notice period, nor carrying out the procedure of evaluation of the employee.
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The Aarhus Convention (1998) organizes the exercise of public access to environmental information, taking part in decision making, and access to justice in environmental issues, as procedural safeguards of the right to a healthy and ecologically balanced environment. The effectivity of the right to environmental information bares significant limitations, both doctrinal and political, and has met several obstacles, mostly technical and cultural; such aspects concern especially the definition of environmental „information”, the conditions of accessing them, the exceptions, the administrative proceedings, the access to justice in this field and its results etc. In explaining its contents and amplifying the efficiency of this right a special part is played by the findings, conclusions and recommendations of the Compliance Committee for examining the enforcement of the Convention created in 2002 that can file complaints from Member States and non-governmental organizations, to evaluate, in a non-conflictual, non-judiciary and consultative manner, whether the treaty is correctly enforced by the Parties. Having no decision power, the Compliance Committee issues, following the examination, only a recommendation, addressed to the Reunion of Parties, that is always approved by the Member States.
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Every 3 months, calculated from the beginning of the liquidation, the judicial liquidator must submit to the creditors’ committee a report on the funds obtained from liquidation and from the collection of claims, as well as a distribution plan between the creditors, if necessary. The report and the plan shall be recorded at the registry of the tribunal and shall be published in the Bulletin of Insolvency Procedures. The report shall also provide the payment of his fee and of the other expenses provided in Article 159 (1) point 1 or of Article 161 point 1 of the Law No 85/2014, as the case may be. The report on the funds obtained from liquidation and from the collection of claims shall include, at least, the following: the balance in the liquidation account after the last distribution; the collections made by the judicial liquidator from the sale of each asset and from the recovery of the claims; the amount of the interests or of other incomes benefiting to the debtors’ fortune, as a result of keeping the undistributed amounts in bank accounts or by administering the assets existing in the debtor’s fortune; the total of the cash amounts existing in the liquidation account.
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The study analyzes how it evolved the competence of the court of law to solve the review in the civil trial from the initial version of the Law No 134/2010 on the Civil Procedure Code to the amendment brought by the Law No 310/2018 for amending and supplementing the Law No 134/2010 on the Civil Procedure Code, as well as for the amendment and supplementation of other normative acts. The result of the study is reflected in the opinion according to which the court of law competent to solve the review in the civil trial had to remain, as a rule, the High Court of Cassation and Justice. Thus it would have been made a unitary interpretation and the contradictory solutions would have been avoided. Although in the versions of the Law No 134/2010 and until the adoption of the Law No 310/2018 the purpose of the review was to subject to the High Court of Cassation and Justice the examination, under the terms of the law, of the conformity of the contested judgment with the applicable rules of law, the supreme court has diverted this purpose, by admitting the exception of its material incompetence and declining to solve the reviews.
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The apparition of the first Administrative Code of Romania – an essential legislative document for the activity of the public administration, for the life of the Romanian State, as a whole – brings, among other things, a significant novelty: the regulation of the legal regime applicable to contractual staff. Such a regime is a justified option of the legislator, taking into account the particularities of this category of personnel – an integral part of those who perform the work as employees. The study carefully analyzes the specific legal norms that apply to the contractual staff and solutions are offered for their practical application. It is concluded that two categories of legal norms produce their effects: the first is constituted by the norms specific to the contractual staff, and the second is formed of the norms that apply also to public servants. Although both categories of norms are part of the Administrative Code, they – respectively those that apply to the contractual staff – are also integrated as part of the labour law, being at the confluence of labour law with administrative law. The common law for the regulations regarding the contractual staff can be found in the norms of the Labour Code.
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The amendments and additions to Article 56 of the Labour Code have eliminated the discrimination on grounds of sex established by the Constitutional Court in the Decision No 387 of 5 June 2018 and they reflect the European and national policy of maintaining in service the employees who meet the retirement conditions for old age, but the new provisions of Article 56 of the Labour Code require a relatively complex interpretation, which raises problems in terms of their clarity and predictability and makes their understanding by the subjects to whom they are addressed difficult.
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The purpose of this study is to analyze the legal regime of the right of national minorities to use their mother tongue in the public administration, as it is regulated in the Administrative Code, recently adopted by the Government by the Emergency Ordinance No 57/2019. It was established in the Romanian legislation immediately after 1989, through the first Law of the local public administration No 69/1991, taken over and developed by the Law No 215/2001, and through the Administrative Code, it finds its place, mainly, in the 3rd part thereof, dedicated to local public administration. In the Constitution it was established in 2003, by completing the former Article 119, which became Article 120, with a new paragraph, which expressly regulates it.
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Artificial intelligence can be classified into analytical artificial intelligence, human-inspired intelligence and humanized intelligence, and in reference thereto it should be noted that, although computer systems reproduce human emotions and expressions, it is difficult for them to comprise a sufficiently large database so as to be able to express the human feelings of a person at the time of making a decision. Although the predictability of a judicial decision by artificial intelligence may take the form of legal certainty, in criminal matters, however, the data used may not reflect the complete reasoning of the judge, which is composed of a multitude of decision-making factors. Therefore, the authors consider that in criminal matters the decision-making must belong to the human judge, the judge being the one who will decide on the basis of the evidence administered not only with regard to satisfying the objective side of the offence, but especially with regard to its subjective side. -
The phrase actio libera in causa designates that situation in which the perpetrator, at the time of committing a deed stipulated by the criminal law, was in a situation that excludes the imputable character of the deed. However, it must be emphasized that, at a previous moment, when the perpetrator was not under the incidence of such causes, he triggered or allowed the emergence of some states of fact that would eliminate the imputable character of the deed. In such a hypothesis, the criminal doctrine from Romania is unanimous in accepting that the person who causes his own state of incapacity will be liable under the criminal law. In order to argue the possibility that a person, at the time of committing a typical action or inaction, be liable under the criminal law, the authors of criminal law in our country have adopted the model of exception or extraordinary imputation. According to this system, the perpetrator will be liable under the criminal law for causing his own state of incapacity. Thus, the imputability, in the case of the construction of actio libera in causa, will not be analyzed at the time of committing the criminal deed, but in relation to the moment when the perpetrator caused his state of incapacity. The construction actio libera in causa, from our point of view, covers only certain hypotheses in which the perpetrator creates the appearance of existence of a cause of imputability (intoxication, irresponsibility, physical or moral constraint), and not those hypotheses, in which the perpetrator provokes the existence of a justifying cause.
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The article analyzes the refusal of the convicted person to be subject to the medical examination upon the arrival to the penitentiary, from the perspective of the Romanian legislation, in correlation with the international instruments regarding the rights of detainees, and legislative solutions adopted by other European states, arguing some proposals de lege ferenda meant to facilitate the fulfilment of the positive obligation of the state to prevent the spread of contagious diseases in the penitentiary environment. The objectives of the article are to determine whether the detainee has the right to refuse the medical examination, whether the Romanian legislation complies with the requirements of the international instruments regarding the protection of the rights of the detainees, respectively whether they have similarities with the legislations of other European states; at the same time, the aim is to identify some rules applicable to the penitentiary system, derived from the case law developed by the ECtHR/Court and from international documents, in relation to the right to health and the relationship between the autonomy of the detainees as persons and the prison environment.
