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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. -
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.
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Very high frequency of facts consisting of possession and sale of cigarettes from smuggling, as well as significant damage to the state budget by committing such acts with adverse consequences exacerbated in the current economic climate, require a consistent jurisprudence to prevent and effectively combat such deeds. Building on the diversity of solutions pronounced by the courts on the legal classification of the offense of possession, outside a fiscal warehouse and by an authorized warehouse-keeper, of unmarked excisable goods for which duty has not been paid and originate form smuggling, the author points out the need to promote a referral in the interests of the law and identifies a possible solution to unify the judicial practice, holding that the said deed meets the constitutive elements of the offenses provided for in art. 2961 par. (1) l) of the Fiscal Code, art. 9 para. (1). a) of Law no. 241/2005 on preventing and combating tax evasion and art. 270 para. (3) of the Customs Code.
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Any scientific approach which seeks to understand the meanings of “rule of law” must be an interdisciplinary approach based on the philosophy of law. This study carries out such an analysis in order to highlight the many theoretical meanings for this concept, and the relationship between principles and legal rules, respectively the regulatory value of law principles. Such analysis is a plea for relating to principles in the work of law establishment and enforcement.
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Given the many amendments to the Government Emergency Ordinance no. 34/2006 and the entry into force of the new Code of Civil Procedure and the law implementing thereof, the author conducts an extensive review of the regulations relating to the appeal and recourse remedies at law, the competent courts of law and the possibility to join the appeals filed against the same public procurement procedure. In this context, the author carries out an analysis of a relatively recent and relevant judgment pronounced on a public procurement procedure by the Contentious Administrative and Fiscal Matters Section of the High Court of Cassation and Justice.
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Once the Labor Code (Law no. 53/2003, republished on 18 May 2011) was supplemented with art.248 para.(3) regulating the deletion by law of the disciplinary sanction imposed (obviously under certain conditions), a controversy arose in the Romanian labor law doctrine in the sense whether the said legal norm is incident or not and whether the sanction imposed resulted in the disciplinary termination (dismissal) of the individual employment contract. In this study, after an extensive reasoning, a positive conclusion related to the raised controversy is reached also analyzing a number of this conclusion’s legal implications.
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In terms of Romanian Tax legislation, extinctive prescription rules are contained in both the Code of Fiscal Procedure (Government Ordinance no. 92/ 2003, republished on July 31, 2007) and in the new Civil Code (Law no. 287/ 2009, republished on July 15, 2011) as well as in the new Code of Civil Procedure (Law no. 134/2010, republished on August 3, 2012 and which shall enter into force on February 1, 2013). In relation to this, the author specifically examines how these rules – in fiscal matters - should be correlated and interpreted whilst being distributed in three acts (different codes).
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As expected, sanctions and solutions covered by the Code of Civil Procedure of 1865 were taken over by Law no. 134/2010 regarding the Code of Civil Procedure (republished) entering into force on February 1, 2013. In this regard, fines, voidness, decay, obsolescence, application rejection or accept are regulated. The latest law also establishes new sanctions and solutions, some of them unusual: closing the case, out of trial, trial settlement, ignoring, remaining ineffective.
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The new Romanian Code of Civil Procedure (Law no. 134/2010, as republished on 3 August 2012 and coming into force on the 1st of February 2013) supersedes the previous Code of Civil Procedure (of the year 1865) regulating (in articles 303-320) the witness-based evidence. In this study the author makes a wide-ranging analysis of this regulation, from the triple perspective of the admissibility, of the administration, of the appreciation of this mean of evidence, comparing the new provisions in this matter by those set forth in the previous Code of Civil Procedure.
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One of the major problems with direct implications in the effective implementation of judicial cooperation in criminal matters within the European Union is related to the need for coherent legal norms regarding the establishment of the territorial jurisdiction in the event of positive or negative conflicts of jurisdiction between the competent legal bodies of two or more Member States. In the study, the author examined the provisions of the European regulatory document framework which set out a series of legal norms on preventing and settling conflicts of jurisdiction between the Member States, making some critical remarks designed to help the improvement of the legal system. This paper is aimed at all those interested in this field and can be useful to academics and to practitioners as well. The innovations consist of the general examination of the European regulatory document provisions, of the Romanian special law, with some critical comments, and of proposals for rewording legal rules, aiming at improving the complex system of judicial cooperation in criminal matters between the Member States.
