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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. -
In this study, the authors bring forward the main features of electronic monitoring programs and services for defendants and convicts, pointing out, concurrently, both their strengths and their weaknesses found in the implementation process. The authors also argue for a serious debate on national level, held on the imperativeness and opportunity to implement these services and programs in Romania, in the context of current penal reform.
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Analyzing the jurisprudence of the European Court of Human Rights on freedom of expression (Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms), the author reveals the close connection between the concept of States’ margin of appreciation (paragraph 2 of Art. 10 of the Convention) and the quality of the Convention as “a living instrument”. Therefore, the purpose of the study is precisely the dialecticism of the relationship between the “freedom of expression” (proclaimed by the Convention) and the exercise of that freedom “that carries with it duties and responsibilities” and which, under national law, may be subject to “such formalities, conditions, restrictions or penalties” (granted under Art. 10 of the Convention, as well). In light of this line of thinking, the author carries forth an extensive case law of the European Court of Human Rights, expression of a broad relevant casuistry.
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The cases examined in this study were generated by a recent decision of the Bucharest Court of Appeal. In essence, the author considers legally admissible the conclusion of agreements between the employer and the trade union, outside the formal framework established by Law no. 130/1996 regarding the collective labor agreement, but only subject to complying with certain limits, which he presents. -
The author examines the – complex – issue of the procedure – in Romania – in case of exequatur and the recognition of foreign judgments given in the Member States of the European Union, taking into consideration that in our country, at present, the common law in the matter is represented by Law no. 105/ 1992 regarding the regulation of the private international law relationships, while in case of judgments given in the other Member States of the European Union, a special law in the matter is considered, namely: the Council Regulation (E.C.) no. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, respectively the Council Regulation (E.C.) no. 44/2001 of 22 December 2000 concerning jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
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By the Government Emergency Ordinance no. 51/2008 regarding the legal public aid in civil matters, the Romanian lawmaker transposed the European Union Council Directive no. 2003/8/EC of 27 January 2003 in this matter. In the above-mentioned study, the author discusses – also in relation to the cases appearing before the courts – the following matters: – The elements taken into consideration when applying the applicant’s material situation; – The jurisdiction to solve the application for legal public aid in the form of exemption from, reduction etc. of the judicial stamp duty established in the appeal as the debts for the merits of the case; – The actual procedure of providing the legal aid in the form of legal assistance through a lawyer.
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In the above-mentioned study, the author, bringing to discussion a number of provisions included in the recently adopted Law no. 202/2010 on certain measures to accelerate the settlement of trials (usually called, the Law of the “small reform” of civil procedure) detects a number of inconsistencies between some provisions of this law and the future new Civil Procedure Code (Law no. 134/2010), adopted by the Parliament, published in the “Official Journal of Romania” on 15 July 2010, but, unfortunately, not yet in force), inconsistencies that, inexorably, will generate difficulties and complications upon the entry into force of the new Civil Procedure Code.
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Potrivit art. 145 alin. 12 lit. f C.pr.pen., organul judiciar care a dispus mãsura preventivã a obligãrii de a nu pãrãsi localitatea poate impune învinuitului sau inculpatului ca pe durata mãsurii „sã nu exercite profesia, meseria sau sã nu desfãșoare activitatea în exercitarea cãreia a sãvârșit fapta”, și anume sã nu-și exercite atribuțiile de primar (cu notã criticã).
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O cerere în constatare vizând obținerea unei hotãrâri judecãtorești care sã fie opusã organelor fiscale și în temeiul cãreia sã se beneficieze de scutiri la plata impozitelor pe terenuri și clãdiri nu poate fi primitã întrucât art. 111 C.pr.civ. condiționeazã formularea acțiunii în constatare de inexistenþa unei acțiuni în realizare (Înalta Curte de Casație și Justiție, Secția comercialã, decizia nr. 952 din 9 martie 2010).
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In the following study, the author criticizes the legal regulations in Romania (mainly the Civil Procedure Code and the Criminal Procedure Code) strictly limiting the cases of abstention and recusal of judges, proposing in the end that, in addition to these, it should be generically provided that the abstention and recusal shall also act in any other situations in which the objectivity and impartiality of the judge may be questioned.
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SECȚIILE UNITE, deliberând asupra recursului în interesul legii, constatã urmãtoarele: În practica instanțelor judecãtorești s-a constatat cã nu existã un punct de vedere unitar în aplicarea dispozițiilor art. 105, cu referire la art. 10 din Legea nr. 46/2008 privind fondul forestier proprietate privatã a persoanelor fizice sau juridice.
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Starting from the Decision no. 1.105/2010 on the exception of unconstitutionality of the provisions of the Government Emergency Ordinance no. 63/2010 for the amendment and supplementing of Law no. 373/2006 regarding the local public finances, as well as for establishing some financial measures, by which the Constitutional Court ruled that the subsequent effective dates of certain provisions of the emergency ordinance do not invalidate the urgent and extraordinary nature of the situation being regulated, the study examines the matter of the coming into force of emergency ordinances, in the light of the constitutional provisions and the provisions of Law no. 24/2000 regarding the norms of legislative technique for drafting regulations (republished). The study also presents a situation regarding the effective date of the Government Emergency Ordinances, starting with the year 2004 (subsequent to the revision of the Constitution).
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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.
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Although the administrator of the association of owners or tenants can also commit the offense of embezzlement by the acquisition of surpluses created in his/her management by fraudulent means, he/she can be sued only for embezzlement and not for having committed the offense of creating surpluses in management as well. This study analyses whether the administrator has the capacity of manager according to the provisions of art. 1, parag. (1) of Law no. 22/1969 and presents the reasons why the administrator cannot be an active subject of the offense of creating surpluses in management by fraudulent means, although he/she is an employee, due to the fact that he/she is employed with an individual employment contract and has as main work tasks the management of the property and values of the association of owners or tenants.
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Starting from the legal rule of the non-retroactivity of law (initially included only in art. 1 of the Romanian Civil Code of 1864, still in force, and, afterwards, in art. 15, parag. 2 of the current Constitution of Romania – of 1991), the author makes an analysis of the theory of the non-retroactivity of law (according to the Romanian judicial doctrine), and then he examines the rules of the new Romanian Civil Code (published in 2009, but not yet in force), as well as the Draft Law for implementing the new Romanian Civil Code) which, by regulating various legal situations representing a conflict of laws in time, applies the principle of non-retroactivity of the civil law.
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The brief presentation of the appearance and evolution of the case of annulment provided under point 171 of art. 3859 parag. 1 of the Criminal Procedure Code in force, which mentions that the judgments under appeal are subject to annulment, “when the judgment is contrary to the law or when an erroneous application of the law was made by the judgment”, of the issues of unconstitutionality, of the provisions of art. 13 of the Convention for the protection of human rights and fundamental freedoms, of the practice of the European Court of Human Rights represent the arguments of the article for the need and justification of introducing the case of annulment provided under art. 3859 parag. 1 point 172 of the Criminal Procedure Code by the Law on certain measures to accelerate the settlement of trials, which guarantees that jurisdictions can effectively control the legality of the judgment, both in relation to the substantive rules and to the procedure rules, being vested with the prerogative of the possibility to annul the judgment subject to appeal.
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In the research hereby, the author considers that in determining the amount of pension for retired judges between July 3rd, 2010 and December 31st, 2010, one should consider compensation in the amount admitted for the magistrate (judge or prosecutor) by Framework Law no. 330/2009, and not the one diminished by 25% (according to Law no. 118/2010 on certain measures requisite to restore budgetary balance), as the latter had temporary character (July 3rd to December 31st, 2010) and by the aforementioned Law there was no readmission of the magistrate (as accomplished since January 1st, 2010, under the Framework Law no. 330/2009). -
In the following study the author reviews the decision making in the European Union (including the European Atomic Energy Community) as governed by the Treaty on European Union and the Treaty on the Functioning of the European Union subsequent to the entry into force of the Lisbon Treaty (which occurred on December 1st, 2009), compared with previous regulations, the exposure being focused on the innovations brought by the latter Treaty, in relation to previous establishments.
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The study aims to demonstrate ability to expand criminal proceedings regardless of the current procedural stage, on grounds of its general trait of being indivisible, as well as its ways of expression during the prosecution phase within the procedural framework set forth in article 238 in the Criminal Procedure Code. There are also reviewed the legal nature of the ordinance extending the criminal investigation and its trial functions, as well as the legal effects of the expansion of criminal proceedings during the first stage of the Romanian criminal trial over other procedural institutions. From the perspective of the new criminal procedure code, the avatars of this extremely important procedural institution for the criminal prosecution phase are tracked and analyzed comparatively.
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In the study hereby, the author reviews provisions of the new Romanian Civil Code (enacted by Parliament, published in the „Official Gazette of Romania”, Part I, in July 2009, but still unenforced) on the artificial property accession, by reference to the current Civil Code (since 1865), still in force, and to the relevant Romanian jurisprudence and doctrine. Conclusion of the analysis is that, on the one hand, the new Romanian Civil Code in the matter of artificial property accession keeps the rules and principles enshrined in the current Civil Code, doctrine and jurisprudence, though it reveals the innovating desire of the new Code, where the current Code keeps silent.
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The authors argue that, exceptionally, the court (Pitesti Appellate Court) may postpone temporarily surrender of the person sought under a European arrest warrant, on the grounds of the need for care of minor children in charge of the person sought.
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În raport cu dispozițiile art. 4 cu referire la art. 5 alin. (2) din Legea nr. 554/ 2004, este inadmisibilã excepția de nelegalitate invocatã cu privire la un act administrativ pentru modificarea sau desființarea cãruia prin lege organicã se prevede o altã procedurã judiciarã (Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal, decizia nr. 3386 din 24 iunie 2010).
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In the research hereby, the author develops and substantiates her viewpoint, in the acceptance that the civil liability for medical malpractice stands for a new civil liability assumption for damage, i.e. neither a contractual, nor a tort liability, but a legal civil liability (derived from the special law, strictly applicable) designed to provide both a more effective protection of the patient and the medical staff.
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Rail freight contract in the Republic of Moldova’s Law is that contract by which the State Enterprise „Moldova Railways”, via a regional subdivision as carrier, undertakes in return of shipping charges (tariff) to transport within a given period, to watch over and to release the goods arrived at the railway station of destination to the person whose name is mentioned on the consignment note. Rail freight contract is a variation of contract for carriage of goods in general. Therefore, based on its legal regulation there are two categories of legal rules: general – the rules of the Civil Code of the Republic of Moldova and special – the rules of the Rail Code of the Republic of Moldova and other subordinate legal regulations. Special Rule enjoys priority over the general rule. The railway is a system of state concern, being monopoly enterprise within the territory of the Republic of Moldova. All railway territorial subdivisions are subordinated to the railway central government. In turn, the consignor may be a public or private legal entity or a natural person that submits merchandise to be carried for personal needs. The law does not require special conditions for shippers. Shippers individuals have the right to carry goods for personal needs, family, household and other non-related to the entrepreneurial activity. In this case, they shall be treated equally to all customers and shall be granted all rights under consumer protection legislation.
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In the study hereby, the author makes a comparative analysis of the problematics of conflict between freedom of the press and reputation in the jurisprudence of the European Court of Human Rights and the United States Supreme Court, respectively, managing to capture a number of differences regarding the deviation of the litigious issue.
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According to art. 20 para. 2 in the Criminal Code, it is called tentative also in the case where „due to the fact that when the acts of execution have been committed, the object was missing from the place the offender believed it were”. This case is defined by the means and the material object, because these two entities are considered the effect’s agents. In the absence of the material object from the place where the offender believed it were, the criminal doctrine concluded two assumptions: first, called the relative impossibility, implies that the material object was absent from the scene while performing acts of execution by the author, while, in case of absolute impossibility, the material object was absent. For a complete image of the role the material object plays within the attempt, the author introduced also some references on the Italian, German and Anglo-American criminal law.
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Based on provisions of art. 20 of the Romanian Constitution, republished, and considering the provisions of art. 5 para. 4 of the Convention on Human Rights and Fundamental Freedoms, the principle of equality of arms and related jurisprudence of the European Court of Human Rights (ECHR), the authors argue that both de lege lata, and in terms of the new Criminal Procedure Code, the detainee is in a position of net disadvantage to the prosecution represented by the prosecutor, since the defendant to whom, on the merits, the request for revocation of preventive detention or its replacement was rejected, it is not given the opportunity to effective remedy. Consequently, the authors make some suggestions de lege ferenda in order to regulate this situation in accordance with the provisions in Constitution and the ECHR jurisprudence.
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The following study reviews the Ukrainian and Romanian legislation regarding the protection of persons belonging to the Romanian minority in the Republic of Ukraine. The author concludes that relevant statutory regulations exist, but their actual implementation leaves much to be desired. Finally, it is considered that the Romanian State must have the legal and moral duty to participate actively in the life of Romanian communities in neighboring countries (among which Ukraine is included), but obviously by observing the principle of sovereignty and noninterference in internal affairs of these States.
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In this study, the two authors examine the procedure of establishing local councils in the Romanian legislation and reveal a series of ambiguities of the legal rules regulating various stages of this procedure, ambiguities generated in particular by the circumstance that the given procedure is regulated in the content of three regulations, namely: art. 28–35 of the Local Public Administration Law no. 215/2001 (republished in 2007, then amended and supplemented several times), art. 1–10 of the Government Ordinance no. 35/2002 for approving the Regulation on the organization and operation of local councils; art. 6–8 of Law no. 393/2004 on the statute of local elected officials (and the latest two regulations being amended and completed several times). Taking into consideration this situation, the authors propose a series of solutions for creating a more coherent legislative framework in this field. -
The article presents some considerations regarding the procedural provisions related to the system of the means of proof, as it is regulated by the new Criminal Procedure Code. The author examines the new provisions establishing the enunciative system, in relation to the provisions of the Criminal Procedure Code in force, which establishes the completeness of the means of proof.
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This study is designed to carry out a general examination of the provisions established in Law no. 202/2010 regarding certain measures to accelerate the resolution of trials. The author presents the most significant amendments and supplements brought to the current civil procedure code in various fields: the judgment before the trial court, the appeal, the second appeal, the special procedure and the enforcement. The author also formulates opinions regarding some of the new legislative interventions. However, some “innovative” solutions are also emphasized in relation to the provisions of the new Civil Procedure Code itself, some of them being considered by the author questionable.
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The Lisbon Treaty is designed to replace the Treaty establishing a Constitution for Europe. Its adoption brings about an improvement of the institutional law system of the European Union, due to the coming into force of the Charter of the Fundamental Rights of the European Union. It was proclaimed by the European institutions (the European Commission, the European Parliament and the Council of the European Union) on the occasion of the European Council of Nice on 7 December 2000 and its wording states for the first time in a single document, on the whole, the social, economic, civil and political rights that all the European citizens can benefit of.
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By Law no. 221/2009 on political convictions and the administrative measures related to them, pronounced during 6 March 1945 – 22 December 1989. This law provides for two categories of political convictions (during the mentioned period), namely two categories of administrative measures of a political nature, namely: the first category (by right), when the political nature of the criminal conviction (administrative measures) results from certain legal texts, explicitly indicated by Law no. 221/2009; the second category, when the political nature of the criminal conviction (administrative measures) can be established – at the request of the interested party –, at present, by the civil court. At the same time, either in the case of the first category, or in the case of the second category, the person in question, the husband/wife or the descendants (up to the 2nd degree) may request ordering the Romanian State to pay moral damages. According to the texts of Law no. 221/2009, the prosecutor’s participation is mandatory only in case the establishment by the civil court of the political nature of the criminal conviction or of the administrative measure is previously discussed.
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In this study, the author makes an analysis of the notion of “consumer” according to art. 6 of the Regulation (EC) no. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (called „Rome I) as compared to the regulation of this notion in the Romanian law (mainly in the Consumer Code – Law no. 296/2004 as subsequently amended and supplemented), emphasizing that the established Romanian law in this matter, although slightly different from the European law (Rome I) does not contradict the European law, but only explains it better and, partially, extends its incidence, and this to the benefit of consumers.
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In this study, the author proves that the adoption of 5 resolutions of the Government of Romania, during 2005-2010, regulating the operation of deconcentrated public services, organized at regional level (each including many counties) is unconstitutional in relation to the provisions of art. 120 and 123 of the Constitution of Romania (revised and republished), since, according to these constitutional rules, the deconcentration of public administration can be done only at the level of counties or the Bucharest municipality, and the prefect (appointed in each country and in the Bucharest municipality) is the representative of the Government at local level, having – among other things – the competence to manage the deconcentrated public services of the ministries and of the other specialized central administration bodies in the administrativeterritorial units.
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In this article, the author emphasizes the main amendments brought to the Romanian criminal and criminal procedure legislation by Law no. 202/2010 regarding certain measures to accelerate the resolution of trials.
