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Located within Chapter VI of the Criminal Code that criminalizes criminal offences against the person’s freedom, the criminal offence of threat provided by Article 206 appears on the background of the protection of the mental freedom of persons. The thorough analysis of the crime will reveal some aspects regarding different theories of interpretation of the law that can be objectified also in practical situations. Also, the interpretation of the criminal offence highlights certain aspects regarding the fear of the person, the manner of committing the crime, the threat of a harmful act, the correlation with the crime of outrage and judicial outrage, as well as some differences from the crime of blackmail. Therefore, in the framework of highlighting some opinions or observations on them, it can be delimited the offence of threat much easier compared to other offences, but it can also constitute a useful legal instrument during the stages of criminal liability of the offender, as well as for the improvement of the text of law by the legislator. -
The offence of favouring of the perpetrator has evolved along the successive regulations in terms of area of incrimination, both with reference to the criminal activities incriminated, but also with reference to the favoured persons. According to the new provisions of criminal law, it is incriminated under this name the favouring of any person who has committed a deed provided by the criminal law, which does not necessarily have to meet the requirements in order to be considered an offence, and it is also incriminated only personal favouring, not the real one, consisting of the aid given in order to ensure the product of the offence for the perpetrator. The offence of favouring the perpetrator has an autonomous nature in relation to the offence committed by the favoured person and has a subsidiary nature in relation to other offences, the aid given to a perpetrator receiving the qualification of favouring only when other legal provisions do not incriminate special assumptions of favouring. -
The new Criminal Code of Romania brings numerous novelties within the scope of incrimination in the Romanian criminal law and, as compared to the previous regulation, it provides, in the text of Article 276, the sanctioning of the deed of a person who, during ongoing judicial proceedings, makes false public statements concerning the commission, by the judge or by the criminal prosecution authorities, of an offence or a serious disciplinary misconduct related to the processing of that case, in order to influence or intimidate such authorities. -
1. Principiul nullum crimen, nulla poena sine lege. Reguli generale. Drepturile fundamentale fac parte integrantã din principiile generale de drept a cãror respectare este asiguratã de cãtre instanțele europene în cauzele de concurențã, ținând cont în special de Convenția (europeanã) pentru apãrarea drepturilor omului și a libertãților fundamentale (în continuare denumitã Convenția) ca sursã de inspirație. -
This article aims to bring forward the essential regulations covered by Law no. 52/2011 on the exercise of occasional activities carried out by day-laborers. In this respect, we shall focus on the legal nature of the agreement concluded between the day-laborer and the beneficiary – i.e. civil service agreement - on its distinctive features, but also on the rights and obligations of the parties. -
The author, in the above mention study, makes a general analysis of Law no. 71/2011 for the implementation of Law no. 287/2009 regarding the Civil Code. In the author’s opinion, Law no. 71/2011 is an extremely valuable legislative act, which ensures very good conditions, not just the understanding and application of the new Civil Code (which entered into force on 1 October 2011), but also the “transition” from the previous Civil Code (from, 1865) to the new ones. -
Meeting the practical needs and views expressed in recent doctrine of constitutional law, amendments to the Code of criminal procedure under Law no. 177/2010 stand for an important step in streamlining the justice process in Romania and its harmonization with EU standards. In this article, the authors review amendments to the Code of Criminal Procedure under Law no. 177/2010, in terms of effects arising from repeal of paragraph 6 of Art. 303 C. Cr. Pr., wording stipulating mandatory suspension of trial proceedings in the case of referral to the Constitutional Court to settle the constitutional challenge. Simultaneously, in this article there are also set forth and considered issues of novelty arising from the introduction within the two procedure codes of a new review case, aiming at restoring legality, just for the cases where the final decision in a case was grounded upon a statutory provision subsequently deemed unconstitutional.
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In 2010, considering the deadline for the entry into force of new procedure codes, there arose the need to establish procedural rules with immediate effect, under way for the implementation of codes and consistent with legislative solutions established thereupon, so as to smooth efficient enforcement of court proceedings and expedient settlement of cases. The Law regarding some measures aiming at the celerity of cases’ settlement no. 202/2010 frames a series of specific legislative measures, mainly pointing to simplify and increase the celerity of cases’ settlement, with direct impact on the execution of judgments, as well. In the study hereby, the authors analyze, from an applied perspective mainly, amendments and completions to the Code of Criminal Procedure under Law no. 202/2010 on the celerity of cases’ settlement. As regards the general part domain of the Criminal Procedure Code, there have been highlighted a series of situations, resulting from the introduction of the mediation agreement as basis for settling the criminal or the civil case, from the rethinking of the material competence of courts or from express regulation of specific cases on conflict of jurisdiction arisen during the criminal prosecution. Other comments concern completions brought in the field of evidence management, application of the institution of preventive measures’ cessation by right, or relating to enforcement of peremptory writ of mandate, payment of court fees and court fines. As a general observation, since legal provisions under review are at the beginning of their application, and the subject covered is very wide ranging, the work developed by the two authors could not set its purpose neither on their exhaustive analysis, nor on the issue, in all cases, of conclusions claimed as legal certainty, but rather attempted to bring to the attention of practitioners working hypotheses, problems that may arise and their possible solutions. -
This study is dedicated to the Special Part of the Criminal Procedure Code, in terms of the amendments brought by Law No. 202/2010, with reference to criminal prosecution, judgment on the merits, ordinary and extraordinary means of challenge, enforcement decisions or special judgment procedures. The study contains equally an analysis of the new regulations introduced in the field of recourse in the interest of the law. The text comments concerning the referral of the case to another Prosecutor’ Office, the information of the next hearing date, the judgment in case of admittance of guilt, the limits of the recourse judgment, the procedure in case of review can be indicated as examples. For an easier understanding of the study, the sequence of the analyzed legal regulations complies with both the structure of the Criminal Procedure Code, and with the chronology of the texts of the amending laws. Otherwise, given the fact that the work is especially addressing practitioners in criminal law and in criminal procedural law and given the fact that, for reasons of economy of the publishing space, the amended or amending texts were only rarely and partially reproduced, authors believe that the latter should be concomitantly available for a complete understanding of the study. With special reference to the contents of the second part of the study, emphasis needs to be placed on the fact that the work tried to highlight both the progressive and positively innovating provisions in the criminal procedure, and certain errors, non-compliances or legislative omissions or potential lack of correlation with the constitutional provisions. CUMPĂRĂ ACUM -
The article presents the nullities in the Criminal Procedure Code and supports the necessity to regulate the virtual nullities through a common provision, allowing the appeal court to cancel the sentence of the court of first instance and to send the case back for re-examination to the court whose judgment has been cancelled, when the challenged sentence is annulled and the court examining the merits is required to give another sentence. -
Pentru motivele pe care le vom detalia în continuare, ne vom pronunța de la început în legătură cu problemele anunțate în titlu și vom afirma că este necesară revizuirea Constituției, dar, deocamdată, nu este oportună. Este necesară deoarece exercitarea puterii politico-etatice pe baza Constituției, pe parcursul a mai bine de 22 de ani, a întâmpinat dificultăți determinate de modul laconic sau deficitar de reglementare care, la rândul său, a condus la interpretarea diferită, uneori contrară, a unor reguli constituționale de către principalii actori politici, de contradicția dintre unele texte constituționale, de lipsa existenței unor principii clar formulate privind organizarea și exercitarea puterii politice, de căderea în desuetudine a unor reguli sau principii juridice înscrise în legea fundamentală, de caracterul confuz al unor reglementări, de integrarea României în Uniunea Europeană și consecințele acestui fapt pe planul exercitării puterii etc. -
Within this paper, the author makes a brief review of the background, respectively of the grounds of the Decision No 363/2015 of the Constitutional Court, and afterwards he stops to analyze the effects of this decision on the criminal trials ongoing at the date when the mentioned decision is pronounced. In relation to the exigences imposed by the principle of legality of incrimination and to the fact that the text declared unconstitutional has incriminated for the first time a certain conduct as an offence, the failure to reconcile, within the legal time limit, the incrimination text with the provisions of the Constitution of Romania, republished, has the value of a decriminalization. -
In this article the author expresses his opinion according to which the provisions of Article 10 of Law No 187/2012 and of Article 39 (1) b) and c) of the Criminal Code are contrary to the Constitution of Romania, republished, as well as to the European standard in the matter, namely the case-law of the European Court of Human Rights. -
Following a critical study of the provisions of the Government Ordinance No 121/1998 on the material liability of the military, the author points out that this normative act is contrary to Article 73 (3) j), Article 118 (2), (3) of the Constitution. The juridical reasoning is based on the standard imposed by the case law of the Constitutional Court in respect of the status of the public officers and of the military staff, the author emphasising the necessity to adopt an organic law/several organic laws to regulate the material liability of the military staff and of the public officers within the Ministry of National Defence, Ministry of Internal Affairs, the Romanian Intelligence Service, the Protection and Guard Service, the Foreign Intelligence Service, the Special Telecommunications Service and the Ministry of Justice. -
The article’s author attempts to identify and customize various approaches on the groundlessness or illegality of the procedure to request and issue audio and video interception and recording releases, both within the criminal procedure field and within the national security field, suggesting a fortiori customized penalties or remedies - where appropriate –. The purpose of the analysis is to eliminate any mistakes or even abuses that may occur during the approval of hidden research means mentioned above, as well as to guarantee everyone’s right to respect for private and family life.
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According to the opinion of the author of this study, the periodical verification, during the trial, upon the receipt of the criminal file, but also at time intervals of maximum 60 days, of the legality and validity of the measure of preventive arrest of the defendant, shall be carried out by the court, no matter whether the warrant of preventive arrest was executed or not. Failure to perform this obligation during the trial, even for the non-confined defendant, shall lead to the rightful termination of the preventive arrest. -
The need of instituting specialized jurisdictions in a given area is generated by the existence of a specification of the branch of law, of its major particularities and the scale of the litigation that this jurisdiction is called to resolute. Starting with the second half of the twentieth century, environmental law has claimed its autonomy as a new branch of law and scientific field, having its own principles, and centered on the fundamental right to sane and ecologically balanced environment. The need to increase the effectiveness and to assert its specificity has determined in a number of states various judicial experiences, identifying the trend of environmental specialization in this field. In Romania, the volume of the environmental litigation doesn’t seem to prioritize the creation of a special jurisdiction, but the complexity of the matters, the limits of the classical jurisdictions in solving them and the imperative of assuring the effectiveness of the environmental legislation demand for triggering a phased process of institutionalization of such specialized jurisdictions.
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This article aims to analyze a recent normative act through that were amended and supplemented the normative acts in matters of education, respectively, the Law on national education No 1/2011 and the Government Emergency Ordinance No 75/2005 on quality assurance in education. The approach is focused both on procedural aspects of the adoption of administrative act, in order to determine how the constitutional requirements have been met, but also on the substantive issues, that aim some of the legislative solutions which it enshrines. Among them, the article paid a special attention to the consecration, for the first time in the Romanian legislation, of the possibility that the holder of a scientific title can give up to it. In our opinion, the newly introduced rule has some weaknesses, both in terms of how it is written, but also on the legitimacy of the solution itself. -
In this article, the author analyzes the parliamentary procedure for the review of laws, pursuant to the request of the President of Romania, in the light of the case law of the Constitutional Court. In its judicial practice, the court of constitutional administrative disputes found that the provisions included in the parliamentary regulations of both legislative Chambers, which regulated the procedure of review of the laws on the initiative of the President of Romania, do not comply with the constitutional provisions. The author analyzes in detail the objections of unconstitutionality of the Constitutional Court and shows, in the end, that the elaboration of a clear, unambiguous parliamentary procedure is necessary in order to review the laws following the request addressed by the President of Romania, which reflects the letter and the spirit of the constitutional provisions. -
The study examines, under multiple aspects, the relationship employer – employee in terms of protection of the personal data of the latter. There are identified, as being applicable, the legal rules contained in the Labour Code, in the Civil Code and in other normative acts, but also in the European and international regulations. It clarifies, in practical terms, the concrete modalities (internal regulation, individual labour contract, addendum) which may set the rules in this matter for each employer. -
The aim of the present paper is to cover the main aspects regarding the legal treatment of witness protection in the Romanian criminal legislation by presenting, from a critical standpoint, the current regulation of the witness protection. The authors analysed essential aspects regarding the protection of threatened witnesses, the protection measures ordered during the criminal investigation, the protection measures ordered during the trial or the protected witnesses hearing, as well as the protection of vulnerable witnesses by reporting to the European Convention of Human Rights provisions and jurisprudence. Also, the present paper analyses the probative value of the protected witness statements and contains comparative law matters on witness protection laws in several European countries. -
For the first time in the Romanian legislation, the new Civil Code (Article 1368) expressly regulates the subsidiary obligation to reimburse the victim, in the sense that „lack of discernment does not exempt the author of the damage from paying a reimbursement to the victim whenever the liability of the person who, according to the law, had the duty to supervise such person can not be engaged” (the author of the damage). In this study there are successively examined: aspects of comparative law in the matter; the position of the Romanian doctrine and of the case-law on the issue in question; the quality of the liable person [for the purpose of Article 1368 (1) of the Civil Code]; the tort civil liability of the person who lacks discernment; the legal basis of the subsidiary liability of the person who lacks discernment; final de lege ferenda proposals in order to improve Article 1368 (1) of the Civil Code.
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Ever since the date of its publication in the Official Gazette of Romania, Part I, the Law No 241/2005 has become a highly debated law in the doctrine, many of its articles underlying inhomogeneous judicial decisions. Article 10 of the above-mentioned Law was one of the Articles which excelled by its lack of predictability, a fact which lead to raising a large number of pleas of unconstitutionality. Over time, its applicability has received some clarifications however, even today, some aspects still raise controversies and continue to lead to an inhomogeneous judicial practice. For this reason, the author believes that the intervention of the High Court of Cassation and Justice would be more than welcome. -
Present in the Romanian Criminal Code (Article 356), with ancient tradition of incrimination, the contamination of water makes the transition from the offences against public health to those concerning the environmental protection, meaning that, although being, in principle, a hazard offence, it involves an immediate result (harmful nature). This situation creates a series of difficulties in practice, including in terms of evidence, as it arises from the recent case law, a fact that requires a series of clarifications. -
Requests for clarifications regarding offers submitted by tenderers in a public procurement procedure are a necessary instrument for contracting authorities that allow them to avoid any unjustified rejection of any offer and breach of the general principles described by the national and European provisions. Questions such as if there is still a debate on the right or obligation to address clarifications are treated in the article. The analysis takes into consideration the provisions of the new legislation on classic public procurement in contrast with the old legislation in order to seek the differences and the similarities. -
The article contains an analysis of litigation on reducing military service pensions recalculated/revised by Law no. 119/2010 and by Government Emergency Ordinance no. 1/2011, in relation to those retained by the High Court of Cassation and Justice in Decision no. 29/2011, given in solving interesting appeal in law, on the application of the provisions of Law no. 29/2011. From the perspectives of the Decision no. 29/2011 the High Court of Cassation and Justice, the analysis is presented on two levels. First, targeting issues of constitutionality of the Law. 119/2010 and, second, conventional control of the law courts, in assessing the application effects in concreto of national standards, by reference to the European Convention on Human Rights. -
This study analyzes the rules within the Romanian labour legislation referring to the attributions of the trade unions in correlation with those of the elected representatives of the employees. It is concluded that there are, in this matter, legal solutions obviously uncorrelated, major errors, unjustified exclusions from the exercise of some attributions of the representatives of the employees in favour of the trade unions. All these despite the fact that, in terms of essential competences – either of the trade unions or of the representatives of the employees –, the legal solutions are identical. In relation to these findings there are made a series of proposals to improve the labour legislation which have as objectives to clarify the role and to state the attributions of the trade unions and of the representatives of the employees in the conduct of the labour relations.
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As it can be inferred from the title, in this study the author intends to make an analysis of the institution of „exclusion of evidence”, which exists in the Romanian Criminal Procedure Code of 1968, which is maintained and further detailed in the new Criminal Procedure Code, differently interpreted in the doctrine and less present in the case-law from Romania. The study begins with a general and comparative presentation of the „sanction” in question in the former and in the present regulation, also being analysed the modification brought by the Law implementing the new Criminal Procedure Code. Within this study there are presented and analyzed the conditions in which the sanction of exclusion of evidence operates, as regulated by the present Criminal Procedure Code. However, the analysis focuses on the doctrinal interpretation of these conditions, by emphasizing the existence of a trend to relate the sanction of exclusion of evidence to the conditions of the sanction of nullity. As far as the author is concerned, she pleads for the interpretation and practical application of the sanction of exclusion of evidence separately from the conditions of nullity, subject only to the breach of the principle of legality and loyalty in providing evidence. For this purpose, the author also makes some interesting de lege ferenda proposals. -
Law No 165/2013 on the measures for the finalisation of the process of restitution, in kind or by equivalent, of the buildings abusively taken over during the communist regime in Romania institutes a new regulatory framework in the matter of acceleration of the process of restitution of real estate property, in agreement with the principles stated by the (European) Convention for the Protection of Human Rights and Fundamental Freedoms and by the case-law of the European Court on Human Rights. In the ambience of the new regulatory framework instituted by the Law No 165/2013, this study analyzes several issues regulated by the new regulatory framework by referring to special normative acts which came into force before Law No 165/2013. Thus, some aspects referring to the powers of the entities vested with powers for the application of the reparatory laws in the matter of buildings (land and constructions) are analyzed, in the context of the new legal framework instituted by Law No 165/2013, as well as the powers of new entities vested with powers for the application of the reparatory laws. There are also examined some aspects concerning the infringement of the legislative technical rules on the adoption of Law No 165/2013, which can give rise to difficulties in the process of acceleration of restitution of real estate property or, where appropriate, in the process of granting compensatory measures. -
The author briefly examines the issue of securities in the Romanian private law and she further presents the regulation of their administration according to the current Romanian Civil Code (Law no. 287/2009, republished on July 15th 2011), entered into force as at October 1st 2011. -
The article presents the constitutional landmarks which justify the sanction of the absolute nullity of the violation of the provisions referring to the material competence and competence according to the person’s quality of the criminal investigation body and analyzes this nullity from the perspective of the processual and procedural documents that establish the sanction, which has the effect of resumption of the criminal prosecution by the competent body or the exclusion of some processual documents or probative procedures.
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The article analyzes recent and older judgments of the High Court of Cassation and Justice and other courts on the regularity of the document instituting court proceedings, through the indictment prepared by the prosecutor. By highlighting the lack of uniform settlement of irregularities arising in the procedure laid down in Art. 300 of the Criminal Procedure Code, the authors try to find harmonious solutions for the procedural incidents arising in matters. Also, a significant part of the article is dedicated to the provisions of the new Code of Criminal Procedure relating to the analyzed matter, highlighting some deficiencies specific to the new rules. -
This study aims to analyze certain particular problems in the execution of the legal employment relationships, namely the work performed without the conclusion of an individual employment agreement and the noncompliance between the contractual clauses and the manner (in fact) of the execution of the contractual rights and obligations. These cases were grouped under the denomination of work wholly or partially dissimulated. After identifying the situations leading to the dissimulated work, the analysis of the causes that determine it and of the effects that it generates, any proposals are formulated for the purpose of increasing the penalties against those who hide the real way of the execution of the work. -
The amendment of the procedural rules concerning the access to justice of the European nationals, by the entry into force of the Treaty of Lisbon (1 December 2009), has required a rapid and effective reaction of the Court of Justice of the European Union; from this perspective, the new configuration of the criteria of admissibility of the actions brought by the so-called unprivileged applicants – natural or legal persons of private law – needed a reassessment of the aspects of material law (regarding the European acts that can be challenged) and, at the same time, of processual law, especially regarding the temporal application of the procedural rules. Despite the relatively short time interval, the Court in Luxembourg captured, in its recent case law, the much more flexible character of the rules of admissibility of the action for annulment, as provided in Article 263 paragraph 4 of the Treaty on the Functioning of the European Union.
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Starting from the idea that the purpose of legislation, of law in general is to defend the human being by preventing, discovering and combating any dangers that could affect or influence it, as well as from current realities that have changed and continue to change the normal functioning of the social system, we carried out this study in the hope that the opinions and solutions expressed could be taken into account by the legislator in the event of amending the Criminal Code as regards the crimes related to sexual life. Therefore, the analysis, opinions and proposals formulated took into account the normative framework in Romania in the matter of crimes regarding the protection of freedom and sexual integrity of the person, by reference to the criminal legislation in force, making reference also to certain aspects existing in the previous one, as well as by reference to the provisions of the international conventions to which our country is a party. In this paper we also consider the fact that the current national criminal law, although subject to amendments, remains incomplete and must be amended and supplemented so as to comply with the minimum mandatory provisions of Directive 2011/92/EU to ensure the protection of minors against any form of sexual abuse.
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In this study, the author comments on a 2010 decision of the High Court of Cassation (the Commercial Section) dismissing – in a final way – an action for declaring absent a sale-purchase agreement for real-estate – a future good – considering that there is a condition precedent, and not a contingent right, as the author claims.
