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The Decision No 641/2014 of the Constitutional Court has radically changed the preliminary chamber procedure, transforming it into a procedure much closer to which it must be, in the opinion of the European Court of Human Rights, a criminal procedure conducted before a judge, even if it does not end in the ruling on the merits of the criminal charge, but it solves aspects of a particular importance on the merits concerned. The change has consisted in the overturning of the characters initially imagined by the legislator, overturning that has transformed the preliminary chamber procedure from a procedure conducted without the participation of the prosecutor, of the parties and of the injured party, with a limited contradictoriality between the prosecutor and the defendant and predominantly written, into a procedure involving the participation of the processual actors, completely contradictory and oral, in which it becomes possible to provide evidence on the main object of this processual phase (the legality of the evidence provided in the criminal prosecution phase and the legality of carrying out the acts by the criminal prosecution bodies). Unfortunately, the latest changes brought to the preliminary chamber by the adoption of the Law No 75/2016, although they represent a step forward in the attempt to make this criminal processual phase to comply with the elements of a fair procedure, do not follow precisely the spirit of the decision of unconstitutionality, as the legislator has still left question marks about the fairness of the procedure as regards the hypothesis that there have not been filed applications and/or pleas and as regards the limitation of the means of evidence. -
The radical reformation of the criminal proceedings meant also the establishment of new legal institutions. One of them is the preliminary chamber, inspired by the Anglo-Saxon law systems, and by the continental law system. Conceived as a distinct phase of criminal proceedings, the preliminary verification raises real problems of constitutionality, being unable to fit into the mechanism of the judicial bodies stated in the Fundamental Law. In so far as it takes over functions of the judges and it excludes from debates the main subjects of criminal proceedings, it is also contrary to the requirements of the ECHR on the principles of equality of arms and equity. -
The idea of a neutral power from those derived from the separation of powers was preceded in the modern epoch by the placing of one of the Chambers of the Parliament in the role of balancing and preserving power. This second Chamber had to be different from the first one, in order for it to be superior. The manner of conceiving this superiority and the balancing and conservative role of this Chamber have been different from one epoch to another and from one system to another. In the following article, subsequent to a brief analysis of the concepts of neutral power and balancing power, I shall investigate the role played by the superior Chamber of Parliament in the constitutional history of Romania. -
The consent of the patient is a legal consent and therefore it has to comply with all the validity conditions thereof. Among these, the condition of the capacity of exercise of the minor patient benefits from a special regulation by Article 661, the 2nd sentence of the Law No 95/2006. The present study intends to analyze these special provisions, by corroborating them with the regulations applicable to the legal representatives of the minor and by reference to the common law in the matter of capacity of exercise, for the purpose of accomplishing the finality of the legal provisions (protected access to the medical service) and of avoiding some blockage situations, generated by a bureaucratic interpretation. -
The problem of the capacity of exercise of the minor patient, deprived of liberty, has relevance for all types of penitentiary police units, which can keep minors in their custody, but also for the public health network, because all these institutions can face the problem of obtaining the consent for the execution of a medical intervention on the minor deprived of liberty. The minor patient in the custody of the penitentiary police enjoys the same autonomy, in relation to the expression of informed consent, as the free minor patient, according to the principle of equivalence, his right to health care being guaranteed, without any discrimination in relation to his legal situation. In reference to the problems regarding the capacity of exercise of the minor deprived of liberty, required for the consent to the medical act, there are applicable both legal norms of civil law, as well as norms of medical law and criminal executional law.
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The anticipated legal capacity of the minor represents, together with the situation of the married minor, one of the exceptions of acquiring full legal capacity at the age of 18, expressly provided in Article 40 of the new Civil Code. Thus, for acquiring the „emancipation”, the minor can address the law court himself, by way of the non-contentious procedure, and with regard to the „reasonable grounds”, the legislator has not made an enumeration or an exemplification thereof, these remaining at the discretion of the guardianship courts. Given the implications which the measure of emancipation of the minor could have on himself and on others, this must be seen as an exceptional one, and although there is still no case law on the application of Article 40 of the Civil Code, de lege ferenda, the possibility to revert to the recognition of the anticipated legal capacity by the guardianship court would be, to the same extent, an appropriate measure of the higher interest of the minor. -
In the system of the Civil Code of 1864, the emancipated minor acquired a limited capacity, and emancipation was a period of transition between the complete incapacity and the full freedom. The system of 1954 maintains „tacit emancipation”, but removes the term that reminded of the past, and gives only to the woman the possibility to marry before the age of 18. In addition, through „restricted” exercise capacity, the minors aged 14–18, regardless of gender, acquire an „intermediate” capacity. In search of a balance between tradition and modernity, the current system maintains „tacit emancipation”, preserves the „antechamber” of full capacity and restores „express emancipation”. There are regulated two hypotheses in which a natural person can acquire full capacity of exercise before reaching the age of 18: the conclusion of a valid marriage and the judicial recognition. In both cases, the minimum age required is 16 years and specific „justified reasons” must be proved. -
Fără îndoială, după 2007, anul aderării României la Uniunea Europeană, unul din avantajele preluării în sistemul juridic național a unui set de reguli care funcționa de mai bine de 30 de ani la nivelul statelor membre ale Uniunii ar fi putut fi evitarea erorilor și disfuncționalităților care au marcat evoluția acestor reguli. Era de așteptat ca în materia achizițiilor publice erorile de aplicare a reglementărilor, care au fost corectate pe parcurs de Curtea de Justiție a Uniunii Europene, să nu mai fie reluate în aplicarea acestor reglementări în sistemul național. Cu toate acestea, de o manieră relativ nespectaculoasă, practica în materia achizițiilor publice reia o serie de erori legate de calificarea contractelor supuse directivelor în materie, deși acestea au fost clarificate de jurisprudența Curții de Justiție a Uniunii Europene.
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The article presents the continued offence from the perspective of the Decision No 368/2017 of C.C.R., presenting the history of the concept of continued offence and the elements characterizing this concept from the perspective of E.C.H.R. After an analysis of the opinions expressed, referring to the change in the legal classification of the continued offence, it is concluded that the change of the legal classification is required when one or more material acts were wrongfully included in the legal unit, although these constitute distinct offences, which are in concurrence, in intermediate plurality or in a state of recidivism with material acts that constitute continued offence. In case that, for one or more material acts, there is a case that prevents the exercise of criminal action, we consider that it is not necessary to change the legal classification, being sufficient that, by a minute, to order the acquittal or the termination of the criminal trial, and for the other material acts that continue to be a continued offence to have a solution of conviction, the postponement of application of punishment or renunciation to apply the punishment. -
Potrivit art. 181 alin. (1) din Legea nr. 78/2000 pentru prevenirea, descoperirea și sancționarea faptelor de corupție, cu modificările și completările ulterioare, folosirea sau prezentarea cu rea-credință de documente ori declarații false, inexacte sau incomplete, dacă fapta are ca rezultat obținerea pe nedrept de fonduri din bugetul general al Uniunii Europene sau din bugetele administrate de aceasta ori în numele ei, se pedepsește cu închisoare de la 2 la 7 ani și interzicerea unor drepturi.
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Since the beginning of the 19th century, the phenomenon of immigration has increased in Argentine. In the 20th century, the majority of immigrants came from the European continent. Despite some tempering measures, the immigration to Argentina continues to manifest itself, producing legal consequences. The family relations of foreigners are ruled, like other types of social relations with a foreign element, by private international law. This paper aims to analyse the current state of marriage regulations in Argentine private international law (with brief historical forays to understand the evolution). The scientific impact of this paper is increased by the novelty of the studied legislation and by the low interest that the Romanian doctrine has shown for the legal realities in Latin America. Its conclusions are relevant both to researchers and legal practitioners and to the general public, interested in resolving the many legal issues involved in a marriage with an Argentine citizen or immigration to Argentina.
