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There are situations in which the judicial bodies need the opinion of an expert to ascertain, clarify or evaluate certain facts or circumstances that are important for finding out the truth. Forensic expertises have a special regime in relation to other types of expertises, which can be performed only in sanitary institutions of forensic medicine, subordinated to the Ministry of Health. The supreme scientific authority in the field of forensic medicine is the Superior Forensic Commission, which operates under the Institute of Forensic Medicine „Mina Minovici” Bucharest. This article aims to clarify the probative value, in a criminal trial, of the advisory opinions issued by this supreme authority, because there have been and are situations, in the judicial practice, in which there has been given superior probative value to this advisory opinion, as well as situations in which its conclusions were removed with reasons. -
This article reviews the regulatory framework on investigations into marine navigation in Romania, indicating the timeline of the criminalization patterns followed by the presentation of the common aspects of the structure and constitutive content of the investigations by analyzing in three specific chapters provided in the normative basis of the Law No 191/2003 on the legal regime that applies to maritime transports and studies of the distinctive elements of each investigation, and finally by drawing critical conclusions and implications related to lex ferenda.
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The article presents the considerations of the Decision No 250/2019 of the Constitutional Court of Romania and the practice of the European Court of Human Rights regarding the change of the legal framework during the trial, concluding that it is ordered by a conclusion prior to the settlement on the merits. Likewise, there are presented arguments that justify the mandatory preparation of the minute in case of change of legal framework, the motivation of the conclusion and its communication. There are examined, from the perspective of the change of the legal framework, the amendments and supplements to the Criminal Procedure Code ordered by the Law No 130/2021, which bring specifications in agreement to the case law of the Constitutional Court of Romania and of the European Court of Human Rights.
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The current Civil Procedure Code clarifies some doctrinal controversies and controversies of the arbitral case law and transposes on legislative level some solutions of the arbitral practice, meant to make the arbitral jurisdiction more efficient. Among these aspects of making it more efficient, the study mentions those related to the extension of the competence of arbitration and the autonomy of will of the parties in organizing and conducting the arbitral procedure, likely to increase the access to this private jurisdiction, as an alternative to the state jurisdiction. Another dimension of the current regulation is related to the ways of materializing the arbitral convention and of the presumption of arbitrariness of the disputes regarding all misunderstandings arising from the contract or from the legal relations to which the agreement refers. The current regulation is concerned with the quality of the jurisdictional act which it connects to the qualification of the members of the arbitration tribunal, to their impartiality, by extending the causes of incompatibility as compared to those of judges and by guaranteeing the right to defence, by representing or assisting the parties by a lawyer. The autonomy of will, which impregnates the arbitral procedure, is associated with the principles of the civil trial, extended by the current regulation to the arbitral procedure, in order to increase the procedural guarantees offered by this private jurisdiction. An innovative solution is related to the participation of third parties in the arbitral procedure, under the terms of maintaining the composition of the arbitral tribunal, in order to ensure the complete and global settlement of the dispute. Another novelty of the current regulation is related to the material competence of the courts of appeal in resolving the action for annulment and the solutions that can be pronounced in case of admitting the action for annulment. Last but not least, the regulation makes the distinction between the procedure of the institutionalized and ad-hoc arbitration, in the context of the autonomy of will of the parties.
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According to the General Data Protection Regulation (hereinafter GDPR), in each Member State of the European Union, one or more independent supervisory authorities of personal data processing must operate under conditions of full independence. Therefore, by this article we aim to achieve two main objectives. A first objective is to explain the notion of „full independence” and the second objective is to find and analyze some of the essential elements for guaranteeing full independence. The methodology used has focused on the study of the European and national legislation (the European treaties, the GDPR, the Romanian Constitution, the Administrative Code), on the study of doctrine and on the analysis of the case law of the Court of Justice of the European Union (hereinafter CJEU) on the issue of full independence of the supervisory authorities. This paper concludes that the notion of the independence of the supervisory authorities is a fragile notion that requires the full attention of the Member States. The fundamental human rights and freedoms must survive any political movements or commercial interests. The Member States, by the national law, must ensure adequate safeguards to ensure full independence of the supervisory authorities and must establish effective rules on the sanctioning of those who infringe on their independent status. As the notion of independence is a fragile notion, in the future, the Member States’ actions to safeguard the independence of the supervisory authorities must increase in direct proportion to the degree of risk of the new technologies to privacy and to the other fundamental rights and freedoms. Regarding the structure of the paper, in the Introduction, we discussed the necessity of existence of some national data protection authorities. In Section II, we briefly presented certain general considerations about supervisory authorities. In Section III, we set out certain general considerations about the legal regime of the autonomous administrative authorities in Romania. In Section IV.A we analyzed and defined the notion of „full independence”, and in Section IV.B we extracted from the legislation, doctrine and case law a part of the essential elements for guaranteeing a full independence and we briefly explained these elements.
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The immunity which the President of Romania enjoys is a „constitutional guarantee, a measure of legal protection of the mandate that is meant to ensure the independence of the mandate holder from any external pressures or abuses. The guarantee provided by Article 72 (1) of the Constitution encourages the mandate holder to adopt an active role in the political life of the society, as it removes his legal liability for the political opinions expressed in exercising the function of public dignity. However, the holder of the mandate remains liable, according to the law, for all acts and deeds committed during the period in which he exercised the public office and which were not related to the votes or political opinions”. The quoted text is an excerpt from the grounds retained by the Constitutional Court in the motivation of its Decision No 284 of 21 May 2014, by which the constitutional contentious court has solved the legal conflict of a constitutional nature between the President of the Republic and the Government of Romania. The whole scaffolding of the arguments of the Constitutional Court leads to the „construction” of an active role of the President in the political and social life of the country as if it were limited to the free expression of some political opinions under the protection of parliamentary immunity. However, it should be noted that the Fundamental Law does not recognize through an express text „the active role of the President of Romania in the political life”. This is why we have reservations about the fairness of the quoted decision. First, the term of political life used in the decision of the Constitutional Court is far too general and thus it has a large margin of inaccuracy. After all, any public authority regulated in Title III of the Constitution must have an active role in the political life. When the Constitution refers in Article 80 to the Role of the President it takes into account the prerogatives of this public institution in the process of exercising public powers, a term equivalent to the governing activity, or the exercise of these prerogatives does not imply an activation of the constitutional role of the President of Romania, but its accomplishment within the limits outlined by the constitutional texts . Beyond this is the abusive exercise of the governing acts by the holder of the mandate of President of Romania, for which he, not benefiting from immunity, is required to be liable according to the Constitution.
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In the present study we will make some critical comments on two judicial decisions – a decision of the Romanian Constitutional Court and a decision of the Court of Justice of the European Union – with impact on a problem of high importance for Romania: the nature, the character and the legal force of the Decision 928/2006 of the European Commission (which institutes the Cooperation and Verification Mechanism) and of the recommendations of the Commission included in the reports issued within the above-mentioned mechanism, the compatibility with the Union law of the legal provisions concerning the Section for the investigation of the offences committed within the judicial system. The decision of the Court of Justice was given prior to that of the Constitutional Court, within the procedure of the preliminary ruling unleashed before more Romanian administrative jurisdictions, and the control of the Constitutional Court was unleashed with the aim at establishing the unconstitutionality of the legal provision concerning the above-mentioned section. Although the Constitutional Court knew about the decision of the Court of Justice, which ruled that, if the law is found by the national jurisdictions to be incompatible with the Union law, it must be set aside in the respective litigations, by virtue of the (total) supremacy of the Union law, the constitutional jurisdiction declared the constitutionality of the law and, more than that, stated that the ordinary jurisdictions are not permitted to set aside the law, because the supremacy of the Constitution is not questioned by the adherence to the Union and by the Union law, the latter being superior only to the infraconstitutional laws. So, the point is: of the two decisions, which one must the jurisdictions apply? Which one is superior to another?
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In this paper, the author analyzes the functional competence of the hierarchically superior prosecutor to carry out criminal prosecution acts in criminal files investigated by the criminal investigation bodies whose supervision is exercised by the prosecutor within the prosecutor’s office. For this purpose, a first starting point is the Criminal Procedure Code, which regulates the judicial function of criminal prosecution in criminal trial, respectively the competence of the prosecutor in performing this function, but references are also made to the Internal Regulation of the prosecutor’s offices of 14 November 2019, to the case law of the Constitutional Court of Romania in the matter, but also to the principle of the hierarchical control that governs the activity within the Public Ministry, principle with constitutional rank, regulated by the provisions of Articles 131–132 of the Constitution. The conclusion reached after presenting a pertinent argumentation is that the hierarchically superior prosecutor does not have the functional competence to lead and supervise the activity of the criminal investigation bodies, which is carried out within the criminal files assigned to the subordinated prosecutors, considering his quality of chief prosecutor.
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In this scientific article, the author addresses one of the problems faced by the current judicial practice in criminal matters. Specifically, it is about detecting the relationship between the offence of money laundering and the offence of concealment, starting from the theoretical approach of comparison and reaching to the exposition of some solutions from the judicial practice. The author proposes criteria on the basis of which this delimitation can be made in a clear and constant manner.
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The present study aims to present to the general public information about the reform process of the European Court of Human Rights, in general, and about the entry into force of Protocol No 15 to the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular. Given the very large number of applications submitted for settlement to the Strasbourg Court, over time an attempt has been made to outline a process of reform of this international jurisdiction, including short, medium and long-term measures. Thus, although opened for signature by the High Contracting Parties on 24 June 2013, Protocol No 15 entered into force recently, on 1 August 2021,following the deposit by Italy of the instrument of ratification of the Protocol. We intend to analyze in this study what are the important amendments brought to the Convention by this protocol of amendment, meant to ensure the effectiveness of the European Court of Human Rights. We consider that the dissemination of the provisions of Protocol No 15 to the Convention will help the interested parties to become aware of the latest amendments to the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular to the provisions regarding the reduction of the time limit for bringing the matter before the Court.
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The study tends to discern the essential characters and the legal regime of the administration of the assets of another, which represent a novelty in the landscape of our legal system. After examining the general regulatory framework of this institution and the special one in the matter of guardianship of the minor and of the ad-hoc guardianship, we argued that the obligations of the management bodies of the legal person or of the trading companies should not be reduced to mandate relations concerning legal relations with third parties, because the entire regulation regarding the attributions of these bodies in relation to the patrimony of the legal person or of the company is impregnated by the spirit of the institution of the administration of the assets of another. In approaching the institution, we have analyzed the manner of adoption of the decision-making acts compared to the adoption of the decisions in matters of co-ownership and the measures that the court of law can take in case of the decision-making blockage. With regard to the plurality of administrators, there have been brought to attention the issue of their liability, the exceptions to the solidarity rule, including the liability in case of delegation of attributions. Depending on the powers granted to the administrator by the act of appointment, it has been marked the delimitation between the simple administration and the full administration, with the legal regime related to each form of administration. In another section, there have been examined the common rules of the two forms of administration regarding the separation of patrimonies, the guarantees, the administrator’s liability in the relations with third parties and the beneficiary, in case he acted in his own name or in excess of the proxy, the procedure of exercising the control of the beneficiary on the manner of administration and its efficiency, the ways of cessation of administration and its effects with special outlook on the handover of the administered assets, the expenses deducte d from the administered patrimony, as well as the expenses incumbent on the administrator under the contract of administration.
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By this study we aimed to proceed to a configuration of the notion of „criminal case”, used by the legislator in Article 29 (1) i) of the Government Emergency Ordinance No 80/2013 on the judicial stamp duties, taking into account in our approach in a correlated way, on the one hand, the case law of the Constitutional Court, of the High Court of Cassation and Justice and of the other courts of law, on the other hand, the doctrinal considerations on the mentioned article, and of the institutions with which the notion necessarily interacts. The approached topic has an inter-institutional nature, because it is necessary, for its correct approach, to resort to legal institutions dealt with by the criminal procedural law (the criminal action, the solutions pronounced in a criminal file, the subjects of the criminal proceedings, etc.), but, of course, the civil procedural law (the civil action, the establishment of judicial stamp duties, the cause of the application for summons, etc.). We consider that the present article presents first of all a practical interest, because, in the activity of the courts of law, the interpretation of Article 29 (1) i) of the Government Emergency Ordinance No 80/2013 is divergent and non-unitary, due to an acute lack of terminological unity, and this deficiency can be reflected in an impairment of the quality of the act of justice and, further, in a decrease of the citizen’s trust in justice. The article is structured in two essential parts, the first with a general character that includes the sections „Introductory Considerations”, „Arising the questioning” and „Interpretation Tools”, and the second with a special, applied character, that includes the sections „The situation in which the civil action is exercised separately before the civil court after the criminal file has been solved in the criminal investigation phase by a solution of dismissal or abandonment of the criminal prosecution”, „The situation in which the civil action is exercised separately before the civil court without having ordered a solution within the criminal file” and Conclusions”. It should be emphasized that, in order to formulate the answer to the approached subject, our thought was oriented, first of all, to those for whom the act of justice is done – the citizens –, proposing solutions that in our vision correspond to some requirements of fairness and equality before the law. Likewise the topic subject to discussion was not approached in an exhaustive way, being only the starting point in the debates on this topic that are taking place and, of course, that will further take place. We have tried to prove that there is a „criminal case”, within the meaning of the mentioned text, only when the basis of legal actions, be they civil or criminal, is a deed provided by the criminal law (essence condition) for which the initiation of the criminal action was ordered (condition of nature). Finally, we consider that the variant of the proposed interpretation will also have the effect of discouraging processual or abusive conduct, reflected in the purely formal notification of the criminal prosecution bodies only in order to benefit from an exemption from the payment of the judicial stamp duties before civil courts, which thus diverts the analyzed legal provision from the purpose considered by the legislator at the time of its enactment.
