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By the present study the author analyzes in a critical manner the modality of regulation of the mechanism of the compensatory review introduced by the provisions of the Law No 169/2017, which has amended the Law No 254/2013 on the execution of custodial sentences and of measures involving deprivation of liberty ordered by the judicial bodies during criminal trial. In this respect there are examined the case law of the European Court of Human Rights in the matter of the accommodation of detained persons and the premises that were the basis for the adoption of this regulation. Thus, it is noted that the legislator has set a higher standard than the one imposed by the European Court of Human Rights, which has ruled that, under certain conditions (the presence of ventilation, lighting and privacy, etc.), the accommodation in a detention space that ensures an area of between three and four square meters for each detainee is in accordance with Article 3 of the European Convention on human rights and fundamental freedoms. In addition, it is shown that the legislator did not insert in the national law the whole legal mechanism emphasized in the case law of the European Court of Human Rights, where a preventive means of appeal has been introduced, allowing the detained persons to file complaints to a judicial authority with regard to the material conditions of detention, as well as a compensatory means of appeal, which provides a reparation for the persons who have already been through a detention contrary to the Convention. Likewise, the author analyzes in a theoretical, but mostly practical manner, the modality to apply the compensatory review mechanism depending on the processual phase in which it is analysed its incidence, as well as the effects produced at the level of the institutions of substantive criminal law, making reference to the binding decisions pronounced by the High Court of Cassation and Justice and to the national case law. -
Potrivit art. 342 alin. (6) C.pen., constituie infracțiune și se pedepsește cu închisoare de la 6 luni la 3 ani nedepunerea armei și a muniției la un armurier autorizat în termen de 10 zile de la expirarea perioadei de valabilitate a permisului de armă. Totodată, conform art. 112 alin. (1) lit. f) C.pen., bunurile a căror deținere este interzisă de legea penală sunt supuse confiscării speciale (cu notă parțial aprobativă). În cazul faptei prevăzute în art. 342 alin. (6) C.pen., cu privire la care s-a dispus o soluție de clasare întemeiată pe dispozițiile art. 16 alin. (1) lit. b) teza a II-a C.pr.pen., arma și muniția intră sub incidența confiscării speciale, în temeiul art. 112 alin. (1) lit. f) C.pen., în procedura reglementată de art. 5491 C.pr.pen., în ipoteza în care făptuitorul nu a depus arma și muniția la un armurier autorizat în termen de 10 zile de la expirarea perioadei de valabilitate a permisului de armă. (Înalta Curte de Casație și Justiție, Completul competent să judece recursul în interesul legii, Decizia nr. 10/2019).
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Introducing Article 1282 (2) created a new dimension in the new Civil Code as regards the application of the groups of contracts, as well as the transmission of accessories with the main asset on the descending or even ascending line of the contract chain. At the same time, the text of the law is the legal basis for formulating a direct action in guarantee which, as we shall see in the present study, is in some cases complemented by other express texts of law referring to particular cases of transmission of a right to action within the group of contracts. In the present study, we attempted to make a comparative analysis between the assignment of contract and the assignment of ancillary contractual rights or obligations, since, although the two transactions are similar, it also presents many differences that need to be highlighted. At the same time, we made a brief leap in common law, as well as European law on the notion of assignment of contractual accessories. Though, the subject is far from being covered by the present study, we consider that we have reached the main points on what Article 1282 (2) in the new Civil Code establishes, as well as its practical effects, and the comparative perspective with English, Scottish, Spanish, German and, last but not least, European law clarifies or strengthens some aspects as regards the rationale for the introduction of the text.
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The voting right of the shareholder at the general meeting of the shareholders is an accessory right to the ownership of the shares, by which the shareholder protects his interests and exercises the supervision and control over the management of the company. It is a true prerogative of the shareholder’s access to the substantiation of business decisions, which materialize through the will of the company. The exercise of the right to vote is governed by the principle of good faith and the principle of proportionality, but may be limited in the situation of the conflict of interests between the shareholder and the company. The shareholder in conflict of interests with the company is obliged to abstain from the vote, if by his vote it contributes to the formation of the majority of a decision with harmful consequences for the company. The situation of conflict of interests and the sanction of non-observance of the obligation to abstain from voting cannot be determined by the other shareholders, but only by the court. If, through the decision adopted with the participation of the shareholder in conflict of interests, a prejudice has occurred, the applicable sanction is the commitment of its liability. Such a decision is valid, but it can also be cancelled, provided that it is the result of a majority abuse. The same fate has the decision adopted by the minority shareholders with the abusive removal of the shareholder’s vote supposed to be in conflict of interests.
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The motivated findings and conclusions of the expert or of the laboratory or specialized institute from which the expertise has been requested will be recorded in a written report. Exceptionally, when the expertise is carried out in front of the body that disposed/ordered its execution, the expertise report may be oral. The form of the expertise report also depends on the nature, as well as the specificity of the problem that generated the expertise. In all cases where the expertise requires time, documentations, travels, researches, analyses, laboratory tests, etc., the expertise report will take the written form. In case the expert can immediately express his opinion on the factual circumstance whose clarification requires specialized knowledge, he will be heard during the meeting, and his opinion will be recorded in a minutes, according to the provisions relative to the recording of the witness statement, which apply accordingly. As such, the expertise report is the document by which the expert informs the court of all the legally collected information which clarify (bring light on) the issues to be examined, being, therefore, the means by which the evidence is presented to the judge. The expert must limit himself to reporting what he has perceived, without expressing his opinion on the consequences of fact and of law that might result. The text of the report will include clear, short and dense phrases and sentences, using accessible vocabulary, without ambiguous formulations or terms and without references to proceedings outside the file. The technical terms, which are difficult to access, will be explained at the bottom of the page or in brackets, in order to facilitate the understanding of the conclusions.
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The EU is a union of states and citizens. The legal nature of this Union is disputable. However, most of the scholars admit that it works on federal bases; in the Brussels language called „the communitarian method”. If the EU is a federation, it is a sui generis federation of sovereign states. Those states have transferred to the European transnational institutions, they have established by their joint will, the power to exercise on their behalf, to their benefit and in their common interests some of their national competences. By doing this the respective states did not give up their sovereignty, but simply decided to exercise parts of it in common, for the sake of their common security. Likewise, they did not abrogate their Constitutions, but it was precisely because those Constitutions allowed them to enter such international agreements that they have signed the Treaty of the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). That explains why the above-mentioned founding legal instruments of the EU were adopted and later modified by and within intergovernmental conferences, as well as why they had to be ratified by all national parliaments of the signatory states. Those treaties include the principle of „attribution”, which means that the European institutions could not have, accept or enforce any power which has been not explicitly attributed to them by every and all member states. This „attribution” is achieved and could only be achieved in full respect and in complete observance of the respective national Constitutions of the member states.
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The legal liability is one of the main issues regarding the responsibility in administrative law. Therefore, the legal liability is able to exercise influence upon our society to some extent only by identifying the person responsible for ignoring the social values protected by law, in order to establish his/her liability. Let us stress upon the fact that the effectiveness of legal liability may determine, to a greater or a smaller extent, the establishment, re-establishment and even the survival of the rule of law. The society is more likely to take into consideration the legal liability, referring to the social and political background of these days, as well, if the liability is being applied to the civil servant or to an agent of public power, meaning a person who exercises a public function. What about the situation in which the person who is going to be held responsible for breaking the law and, therefore, being held liable for this fact is, directly or indirectly, even the creator of the law, being at the same time both part of the dominant fund and to the serviced/controlled fund? Does the above-mentioned situation supposes an antagonism in declaring responsible precisely the one who created the notion and, therefore, the premise of responsibility or, on the contrary, the antagonism would be precisely the irresponsibility of the entitled one, also, to create the right and to apply it, thus ensuring the protection of values, which establishes the base of its very existence?
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The article addresses the issue related to the manner to reach an effective cooperation between two judicial institutions which play a very important role in the context of ensuring respect for the rights and freedoms of the citizen, respectively between the European Court of Human Rights and the Court of Justice of the European Union. The study starts from the premise according to which the creation of the Single European Area of Freedom, Security and Justice, through the conclusion of international treaties, and subsequently the accession thereto by the states on the European continent and the third countries was not only of a nature to bring benefits to the citizens, by exercising the right to free movement and its derivatives at socio-economic level, but also to generate shortcomings, determined by the cross-border nature of the criminality, acquired in the light of free movement precisely. The relationship between the two jurisdictional institutions is viewed in the context of international cooperation in criminal matters, with broad references to the principles enshrined in the European Union law and which have the role of simplifying and intensifying this cooperation. Among the principles analyzed we indicate: the Principle of pre-eminence of international treaties and conventions over the national law, the Principle of mutual recognition of criminal judicial decisions and of mutual trust between states, the Principle ne bis in idem. The article also contains references to another important aspect resulting from the realities of international judicial cooperation in criminal matters, namely to the fact that, although each Member State of the European Union is a party to the European Convention, the Union, as an international organization, is not a party to the Convention, which means that European citizens cannot file a complaint to the European Court of Human Rights against an institution of the Union, when they consider that any of their rights enshrined in the Convention has been violated.
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The paper analyzes the conditions for exercising the revision in the criminal trial, respectively the judgments subject to revision, the category of persons who can exercise it, the time limits of declaration, the form in which the application and its content must be made. The study relates to the case law of the national courts before and after the entry into force of the new Criminal Procedure Code, as well as to the relevant provisions of other European legislations. At the same time, there are considered the provisions of the Draft Law for amending and completing the Criminal Procedure Code adopted in the summer of 2018, respectively PL-x No 373/2018.
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As a rule, in the countries of the European Union, for example in France, Italy, Spain, England, the cancellation of the dismissal does not lead to the reintegration of the employees at work. However, they are entitled to compensation, to damages, etc. established by the judge within the limits provided by law. In our country the situation is different. Regardless of the reason for the dismissal, whether it is related or not to the employee’s person, the court, at his request, shall order, in case of cancellation of the employer’s measure, the reintegration at work, regardless of the fact that position exists or not, the position being abolished, or if the employee has committed serious disciplinary misconducts: he has systematically violated the work obligations, had an unexcused leave of absence for a long period of time, has purloined goods from the patrimony of the employer or caused important damages thereto, etc. There are considerations for which it is required the amendment of Article 80 (2) of the Labour Code, rendering it more flexible, in the sense of taking into account the present realities, the needs of the practice and the real and justified interests of the employers.
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This paper analyzes the principle of mutual recognition as a method of legal integration specific to EU law but also, in the form of Full Faith and Credit and Extradition Clauses, in the U.S. Constitution and law. The article presents a brief historical perspective on this principle, of its roots in Anglo-Saxon law and its direct continuity in U.S. law, but also of taking over, through legal hybridization, in combination with the harmonization method, in EU law. The work analyses: the function of legal integration of the principle, as an essential component of both American federalism and the EU legal order, its fundamental characteristics and its conditions of application and the topic of Interstate Extradition Clause versus European Arrest Warrant. The Articles of Confederation, the U.S. Constitution, federal laws, uniform laws, the case-law of the U.S. Supreme Court and other U.S. courts, altogether with the EU fundamental treaties, the legal acts of the European Union and the jurisprudence of the Court of Justice of European Union were considered. Numerous similarities have emerged from the comparative analysis, but also some differences, coming from the different paradigms of American federalism and, respectively, of the EU legal order.
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Potrivit art. 349 alin. (2) C.pr.pen., instanța poate soluționa cauza numai pe baza probelor administrate în faza urmăririi penale, dacă inculpatul solicită aceasta și recunoaște în totalitate faptele reținute în sarcina sa și dacă instanța apreciază că probele sunt suficiente pentru aflarea adevărului și justa soluționare a cauzei, cu excepția cazului în care acțiunea penală vizează o infracțiune care se pedepsește cu detențiune pe viață. Totodată, conform art. 374 alin. (4) C.pr.pen., în cazurile în care acțiunea penală nu vizează o infracțiune care se pedepsește cu detențiune pe viață, președintele pune în vedere inculpatului că poate solicita ca judecata să aibă loc numai pe baza probelor administrate în cursul urmăririi penale și a înscrisurilor prezentate de părți, dacă recunoaște în totalitate faptele reținute în sarcina sa, aducându-i la cunoștință dispozițiile art. 396 alin. (10).
