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One of the most controversial institutions of Romanian criminal procedural law is the institution of exclusion of evidence. We considered it necessary to carry out this comparative law study so that law practitioners as well as any interested person could observe how this institution appeared and how it is applied in other countries and in the case law of the European Court of Human Rights. -
The article addresses the issue of cancellation of documents resulting from the commission of a crime, mainly concerning the special procedure regulated in Article 5491 of the Criminal Procedure Code. The legal nature of the institution of cancellation of documents resulting from the commission of an offence is the same, regardless of whether it is ordered by the court of law, pursuant to Article 25 paragraph 3 of the Criminal Procedure Code, or by the judge of the preliminary chamber, pursuant to Article 5491 of the Criminal Procedure Code. In the majority specialized literature it was embraced the opinion according to which within the procedure of abolition of documents regulated in Article 5491 of the Criminal Procedure Code only the document regarded as instrumentum probationis may be revoked, and not the legal operation attested by the respective document as negotium juris. Also, the majority doctrine considers that the procedure for the cancellation of documents can be applied only in case of committing forgery offences, not also in case the documents would come from committing other offences. This article seeks to question the correctness of these doctrinal opinions, bringing some arguments in the sense that the cancellation also refers to the legal operation (negotium) and may also concern documents resulting from the commission of offences other than those of forgery.
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În România, dreptul de proprietate privată este unul esențial, fiind prevăzut în Constituție1 în cadrul capitolului II referitor la drepturile și libertățile fundamentale. Acest act normativ reglementează dreptul de proprietate privată în mod detaliat, în cele nouă alineate ale art. 44. Pentru a reglementa acest drept, legiuitorul constituant a avut la dispoziție un vast material documentar, format în primul rând din dispozițiile vechiului Cod civil referitoare la proprietate și la regimul ei juridic, bogata doctrină acumulată între timp, precum și practica judiciară a instanțelor, toate acestea fiind adaptate la dinamica continuă a vieții sociale și a circuitului civil din societatea românească, la care se adaugă dreptul comparat în materie
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Potrivit art. 457 alin. (1) C.pr.civ., hotărârea judecătorească este supusă numai căilor de atac prevăzute de lege, în condițiile și termenele stabilite de aceasta, indiferent de mențiunile din dispozitivul ei. De asemenea, conform prevederilor art. 460 alin. (3) C.pr.civ., în cazul în care prin aceeași hotărâre au fost soluționate mai multe cereri principale sau incidentale, dintre care unele sunt supuse apelului, iar altele recursului, hotărârea în întregul ei este supusă apelului.
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Potrivit art. 349 alin. (1) C.pen., neluarea vreuneia dintre măsurile legale de securitate și sănătate în muncă de către persoana care avea îndatorirea de a lua aceste măsuri, dacă se creează un pericol iminent de producere a unui accident de muncă sau de îmbolnăvire profesională, se pedepsește cu închisoare de la 6 luni la 3 ani sau cu amendă.
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According to the relevant legal literature, public property and private property are the two typical – indeed, the only – manifestations of the same subjective right. For this reason, public property rights are stereotypically defined, in a manner analogous to how we define the right to private property, as the interfusion of the three classical elements (powers) of property – usus, fructus, and abusus – which are understood to be exclusive, absolute and perpetual. Moreover, it is claimed that the private appropriation of goods does not boil down to individual property, and that the collective appropriation of goods is mediated by the State, which is the legal expression of the community’s collective will. These ideas are not free from criticism. The three powers of property coalesce to define an act of exclusion, and one which necessarily presupposes an individualistic slant to the legal construction of property. By giving account of itself in such a way, this species of subjective right cannot, while also remaining true to itself, be private in certain cases, and public in others. The exclusive right to property, precisely because it is conceived to be exclusive, presupposes and individual owner. In doing so, it precludes any form of collective ownership. Therefore the legal framework within which public property is currently defined reveals a powerful internal contradiction, which is not without practical consequence. For these reasons, the right of public ownership, being what it now is, cannot truly be a means to the collective appropriation of goods by the community. And this is because any form of collective ownership cannot be compatible with „all” the exclusionary and discretionary powers afforded to the individual proprietor by the private right of ownership.
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Are separate opinions necessary? Writing them involves both time and resources, and the result does not influence the causes in which they were formulated. In this context, the logical question is why some national and international judges choose to formulate such opinions. We appreciate that the main reason is the potential of these opinions to contribute to the development of the future judicial practice. The aim of this study is to emphasize the importance and benefits of regulating the separate opinions in national legislation and to encourage their use. In this study we aim to analyze the purpose of the separate opinions along with the arguments for and against their regulation in national legislations. We will also analyze the difference between separate and concurring opinions, but also the different result that these opinions may have. We will also address the issue of the style in which these opinions are written and the impact it may have on future case law. A distinct part of this paper will be devoted to the analysis of separate opinions in national courts. At the same time, we will follow if there are differences between the constitutional court and the common law courts, regarding the use of these opinions. At the end of the study, we will make some proposals de lege ferenda on the need for legislative development of the field of separate and concurring opinions, development which would encourage their use and, at the same time, would limit the purpose of using these opinions to the development of the case law.
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The present paper aims to analyze extensively the institution of commitment of the responsibility of the Government before the Parliament, trying to identify possibilities to improve the current constitutional regulation in Romania. For this purpose, in a first part of the paper, in order to better understand the resources of the institution, the comparative method is used. Thus, similar regulations from other states are widely presented, such as the vote of confidence in a number of parliamentary regimes (United Kingdom of Great Britain and Northern Ireland, the Federal Republic of Germany, the Fourth French Republic), as well as the regulation of the commitment of the responsibility of the Government in the current French semi-presidential regime. Subsequently, the paper focuses on the regulation of the institution of commitment of the responsibility in Romania, being studied the manner of application thereof by the Government in the last 30 years. Several perspectives are used for this purpose: that of doctrine, an occasion that allows the presentation of arguments for and against the current regulation of the institution; that of constitutional practice, which allows the understanding of some disfunctionalities of the current regulation; and, finally, that of the constitutional case law developed in the last three decades, on which occasion it can be deduced a complex theory developed by the constitutional court regarding the limits of the use of the institution. At the end of the paper, a series of proposed amendments are analyzed on the occasion of various attempts to revise the Romanian Constitution and an extensive set of proposals on improving the current regulation is presented. As a consequence, the present paper provides a starting point for the future use of the institution of commitment of the responsibility of the Government, but especially for the improvement of the current constitutional regulation.
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The state of emergency is one of the two exceptional measures regulated by the Romanian Constitution and by the Government Emergency Ordinance No 1/1999. It is a set of exceptional measures of a political, economic nature and of the nature of public order instituted when there is a serious danger for the national security and the functioning of constitutional democracy. Another legal reason to declare a state of emergency is to avoid a calamity or to exhaust the effects of a disaster. Inevitably, the measures adopted during the state of emergency lead to the restriction of the exercise of certain rights and freedoms, which is why constitutional and legal guarantees must be ensured in order for this restriction not to be abusive. The state of emergency is established for a period of maximum 30 days by decree of the President of Romania. The measures ordered by decree must be approved by the Parliament within a period of maximum 5 days. Contradictory opinions have been expressed in the doctrine regarding the legal nature of the decree of the President of Romania and of the acts issued pursuant to this decree (military ordinances and orders). Recently, the constitutional contentious court and the administrative contentious courts have ruled on the legal nature of administrative acts issued under the state of emergency. The next step in the evolution of this problem should be the reform of the normative framework regarding the exceptional states in accordance with the current provisions of the Basic Law, with the constant case law of the constitutional contentious court and, last but not least, with the approaches of some similar European regulations.
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This study analyzes the consequences of the intervention of a more favourable retroactive contraventional law (in a broad sense) both in terms of substantive law and in terms of the procedural instruments which establish the intervention of this norm. Analyzing the incidental legislation in the light of the provisions of the criminal law, which constitutes the „general law” in the interpretation of the rules of the material contraventional law, according to the provisions of Article 47 of the Government Ordinance No 2/2001, we came to the conclusion that both the decontraventionalisation law and the more favourable contraventional law operate by law, the bodies with attributions in contraventional matters “noting”, and not “pronouncing” the effects generated by the intervention of the more favourable law in a broad sense. This conclusion transposed at procedural level required a concrete analysis of the procedural institutions by which the effects of the retroactive law are taken into account depending on the procedural moment in which it intervenes.
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The national system of public administration is subject to the impact of the medical-sanitary crisis in various forms, on all levels of organization, being additionally responsible and obliged to identify solutions of a normative and administrative nature. One of the important negative effects generated by the current medical-sanitary crisis is the impossibility of the administration to ensure the continuity of activities whose realization is conditioned by administrative authorization, by extension/renewal of authorizations, approvals, agreements, etc., making use of some acts during the validity period, in the sense of giving them the effects provided by law, or the exercise of some personal rights, on the basis of some documents (such as identity documents) when they are in the period of validity. The lack of an infralegal normative framework, of secondary regulation, establishing the scope of the documents the validity of which is extended during and beyond the cessation of special states of emergency and of alert and the conditions in which the prorogation of validity operates, leads to a non-unitary application of the normative act of primary regulation, which includes a general formulation, and inevitably at an additional pressure on the specialized administrative contentious courts, which will be notified either by their holders/beneficiaries, or by third parties whose rights and legitimate interests are harmed.
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The new Criminal Code has substantially modified the modalities of judicial individualization of punishments applied to defendants, also bringing novelty elements regarding the calculation of the fine, the possibility of its cumulative application with the sentence of imprisonment, when the offence committed was intended to obtain a patrimonial benefit, or the possibility of replacing it with community service work. By this study, I intend, through a careful analysis of both the case law of the European Court of Human Rights and the doctrine, regarding Article 7 of the Convention, as well as of the principle of legality in general, to argue the impossibility of the judge to order the revocation of the suspension under supervision of the sentence in case that a penalty with the fine, applied to the same person, was replaced by the sentence of imprisonment.
