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The repeated conviction by the European Court of Human Rights (hereinafter ECHR) of the Republic of Moldova for violating Article 1 of Protocol No 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECHR) was a mandatory invitation for national actors to harmonize their own legal system with the European case law, both by legislative, administrative way and by judicial way. Although there have been reported cases in which the European Court of Human Rights has pointed out some shortcomings with regard to harmonizing the Moldovan law with the European exigencies, however most judgments are based on jurisprudential shortcomings. Thus, in order to avoid new convictions by the Strasbourg Court in the sphere of Article 1 of Protocol No 1, in this study the techniques of compatibilization of the national case law with the European ones are researched. Starting from the stated purpose, in the present study it is realized a jurisprudential exercise of the notion of „good” from the perspective of the conventional judge and of the way in which the national courts received it in their own judgments. At the same time, this scientific approach identifies the positive and negative obligations of states and their margin of appreciation left by the ECHR in case of some issues concerning the right to respect for property, as well as the consequences for the state in case of a judgment of conviction. -
Potrivit art. 181 alin. (1) din Legea nr. 78/2000, 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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The present paper aims to examine the „positive” conditions of the procedure of the right to damage repair in case of miscarriage of justice, i.e. those provided only in paragraph (1) of Article 538 of the Criminal Procedure Code. The paper begins with the delimitation of the area of analysis, after which it examines the conceptual reason of the analyzed procedure. Then, the conditions and subconditions found in paragraph (1) of Article 538 of the Criminal Procedure Code are treated by turns. Finally, after analyzing the concept of miscarriage of justice, we take a look at countries with similar legislation: the Republic of Moldova and Switzerland. At the same time, through this material, I am trying to demonstrate, by identifying the problems of interpretation of this paragraph, the fact that the action for damage repair provided in Chapter VI of the Criminal Procedure Code must comply, at least in the light of paragraph (1) of Article 538 far too restrictive conditions. The conditions which this paragraph involves turn the procedure of repair of the material damage or of the moral damage in case of miscarriage of justice into a non-feasible procedure with conditions which presuppose an insignificant stake, as compared to the reparation of the damage in case of the principal’s liability for the deed of his agent, a liability much easier to prove by the damaged person.
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If from a quantitative point of view the repressive (criminal) law of the environment is increasing, the criminal response as a tool to promote environmental protection is still far from rising at the level of the urgency and magnitude of the ecological problems to which it is called to answer. The causes are related to the insufficient conceptual-regulatory adjustment to the particularities of the field, the concurring strong interests of different nature and the complexity of the theoretical and practical approach to be undertaken. Bringing the repressive right to the level of the mission and current priorities implies a radical reform on the general conception and approach, the unitary and adequate register of incriminations, the particularization of the procedural framework for investigating cases and for applying sanctions and the professionalization and specialization of the jurisdictions. Assimilating the meanings of the precautionary principle, building one’s own criminal regime, by overcoming administrative dependence and consecrating the ecological finality, incriminating the ecocide, in a word the need for another penalty is the key to overcome the impasse and the way to a new, genuine and effective repressive environmental law. In Romania, there is a need for a general rethinking of the relevant normative system through a unitary regulation to include the essential aspects of an adequate incrimination, customized procedures and specialized jurisdictions.
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Apărută sub egida Institutului de Cercetări Juridice „Acad. Andrei Rădulescu” al Academiei Române, sub semnătura a doi prestigioși cercetători ai săi și bine-cunoscuți specialiști ai temei, lucrarea este consacrată în mod evident centenarului tratatelor de la Paris din 1919/1920, în general, și al celui de la Trianon din 4 iunie 1920, în special. Dacă secolul a reprezentat adesea, în istoria omenirii, pe lângă un reper de marcare a scurgerii timpului, un instrument de stabilire a cronologiei faptelor și a evenimentelor și o veritabilă unitate de apreciere a progresului economico-social și cultural, cum se apreciază în prefața lucrării (plasată sub titlul O simplă punere în temă), cel al statului național și al dreptului internațional public ca drept al păcii și al cooperării interstatale se exprimă printr-o moștenire de concepte și experiențe juridico-istorice care au marcat inaugurarea și conferit conținut unei etape istorice majore.
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Potrivit art. 48 alin. (1) C.pen., complice este persoana care, cu intenție, înlesnește sau ajută în orice mod la săvârșirea unei fapte prevăzute de legea penală. Conform art. 174 C.pen., prin săvârșirea unei infracțiuni sau comiterea unei infracțiuni se înțelege săvârșirea oricăreia dintre faptele pe care legea le pedepsește ca infracțiune consumată sau ca tentativă, precum și participarea la comiterea acestora în calitate de coautor, instigator sau complice.
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Luarea măsurii recoltării de probe biologice de la inculpatul condamnat, chiar și pentru una dintre infracțiunile indicate expres în anexa la Legea nr. 76/2008 privind organizarea și funcționarea Sistemului Național de Date Genetice Judiciare (în continuare S.N.D.G.J.), în vederea determinării profilului genetic și înscrierii în S.N.D.G.J. este o măsură facultativă.
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Executarea pedepsei închisorii se face în locuri de detenție special amenajate, pentru a se asigura atât rolul sancționator al pedepsei, cât mai ales, cel educativ, apt să conducă la reeducarea celor condamnați. Din nefericire, condițiile degradante de detenție din multe penitenciare românești au fost ignorate de puterile legiuitoare și executivă din România. Deși este o problemă de zeci de ani, mare parte a societății civile a rămas în pasivitate sub acest aspect, fapt ce, poate, oglindește nepăsarea multor români față de modul de executare a pedepselor penale, privative de libertate.
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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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Confusing subject of study for a jurist, humanity is an evasive notion because it manifests itself in the individual but is, at the same time, external to it; it claims universality but the way each one looks at is as specific as each one. Myth or legal symbol, „humanity” is a term with variable content, both in the common and the legal language, because, at the same time, it represents the human essence, the goodness but also the race, the human species. The various meanings are indissolubly linked because they are intertwined, so that the „individual” humanity, the one that each individual carries himself, is inseparable from the „collective” humanity, the human community. This together construction results from legal instruments which reflect the ambivalence of the concept, the crime against humanity is, at the same time, a crime against the human essence and a crime against the human race, as its constituent elements demonstrate. Through time, humanity has born and fed contradictory legal discourses, so in international law it is more than a „concept slogan”, because its influence is tangible, but nonetheless, humanity has not simplified the international legal order but has made it even more complex.
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Despite the extraordinary multiplication and pertinent diversification of environmental protection regulations, at national, regional (EU) and international level, the efficiency and effectiveness of environmental law norms still remain a desideratum. Their level of achievement is insufficient and different from one country to another, being particularly low and, consequently, representing a problem that should be a priority in Romania. The causes of the situation are profound and diverse (being related to the non-perception and non-expression of the specifics of the matter at all stages and at all levels of the legal phenomenon), and its solving involves a „true legal revolution and a reconsideration of the new branch of law”. The ways to overcome the impasse include, in addition to adapting the legislation and promoting appropriate legal tools and mechanisms, also the establishment of specialized jurisdictions and the specialization of persons involved in the functioning of the environmental process. The topic approached by the author is of increased interest as long as the first institutional steps in this direction are being taken in Romania as well.
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Fapta asiguratului de a nu renunța la calitatea de parte civilă, deși a primit plata despăgubirilor de la asigurător, nu are semnificația unui act prin care se împiedică realizarea dreptului de regres al asigurătorului, astfel că nu se pune problema angajării răspunderii în condițiile art. 2210 alin. (2) C.civ.
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Organizațiile societății civile pot fi uneori demersul cel mai accesibil și eficace pentru cetățeni, de a acționa pentru apărarea unui drept sau interes legitim. În plus, membrii grupurilor pot avea un cuvânt greu de spus cu privire la acțiunile ori inacțiunile statului. Aceste aspecte creionează o forță civică, ce, folosită cu bună-credință, poate duce la progresul întregii națiuni. În absența unui simț civic dezvoltat, comportamentul unor persoane ce doresc a abuza de o organizație a societății civile apare ca fiind extrem de nociv pentru democrație1 . Practic, dintre acei puțini români ce se implică, o parte nu urmăresc dezvoltarea comunității, ci propria bunăstare.
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As a fundamental instrument for ensuring the functioning of the European Union legal order, the action for the non-compliance with the European obligations is the judicial instrument by which the Union authorities, led by the Commission and the Luxembourg jurisdictional structure, exercise direct control over the conduct of the Member States in relation to EU law imperatives. Located somewhere in the middle between the legality control and the action for liability, the non-compliance with the obligations raises separate and complex issues difficult to understand in the absence of the vast jurisdictional experience of the Court of Justice of the European Union. If, under procedural terms, the present action does not present particular challenges, imposing, as a rule, a mechanism for cooperation between the European Commission and the defendant Member State (as a pre-contentious phase), in which the Court of Justice often plays a subsidiary role (contentious phase), from a material point of view, the non-compliance with the European obligations involves different forms and meanings that transcend both the letter and the spirit of the treaties, even in their current form, consolidated after the Treaty of Lisbon (2009). In such a context, the present study aims to review the most frequently used meanings which the case law of the Court of Justice of the European Union has given to the phrase „non-compliance with European obligations”, in the light of current regulations, past experiences and, last but not least, the aim pursued by this procedure, namely to sanction any derogation from the uniform and synchronized application of the European Union law.
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This study is intended to approach the legislative models of the definition of the offence in the criminal legislations of the Romanian area (Romania and Republic of Moldova). Three concepts were identified through the prism of which in the reference legislations was defined the notion of offence: substantial or material concept, formal concept and substantial-formal concept. These models were determined by the social interests that formed the object of the legal-criminal protection in the corresponding period of the development of society.
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Offences against police officers or gendarmes (in Romanian, ultraj) are regulated under Article 257 (4) of the Criminal Code, which provides that such offences shall be harsher punished, by increasing the special limits of the penalty by half. In order to apply the above-mentioned dispositions in a fair manner, the Panel for Clarification of Criminal Legal Aspects of the High Court of Cassation and Justice was requested to render a preliminary judgment by which to clarify if „the concept of police officer provided by Article 257 (4) of the Criminal Code shall be construed restrictively as referring only to police officers whose activity and status are regulated under Law No 218/2002 regarding the organisation and functioning of Romanian Police and under Law No 360/2002 regarding the Police Officer Status or more widely, as also including local police officers whose activity and status are regulated under Law No 155/2010 on Local Police and Law No 188/1999 on the Status of Civil Servants”. This article proposes an analysis of the relevant jurisprudence and provides arguments to support that the aggravated version of the crime regulated under Article 257 (4) of the Criminal Code shall be applied when the offence is committed against a local police officer.
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The author aims to present a historical perspective by connecting to the current juridical perspective, addressing and making an exegesis of one of the institutions which are convergent to the two essential procedural codifications, namely the Civil Procedure Code and the Criminal Procedure Code, but rather incompletely regulated by the legislator, namely the offence of hearing. Emphasizing the fact that in neither of the two Procedure Codes the notion of the offence of hearing is not expressely and categorically defined, the legislator has conceptualized the procedure which is going to be followed by the judge insofar as he directly finds, through his own senses, such an offence/deed provided by the criminal law, the two procedures presenting similarities, but also differences, some of them being non-resilient to scientific criticism, as we will try to demonstrate this conclusion in the content of the material, in which there have been inserted de lege ferenda proposals as well.
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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.
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By reference to the real guarantees, which, theoretically, ensure a greater security of the execution, the fidejussion prevails by a lower degree of formalism and by a much higher degree of flexibility. Through the fidejussion mechanism, the creditor will have as common guarantee at least two patrimonies: first of all, of course, the patrimony of the main debtor, but in addition to this patrimony it can also be satisfied from the patrimony of the fidejussor or fidejussors. No one can become a fidejussor-guarantor against his will. Regardless of its nature, the fidejussion has a contractual nature, being able to arise only through the agreement between the creditor and the fidejussor. The law or the judgment only requires to bring a personal guarantee. When a person is obliged, by law or by convention, to provide bail, and he does not voluntarily fulfil his obligation, the judgment of conviction does not convert the bail into a judicial one, it still remains legal or conventional, as the case may be. The judge only orders the execution of the legal provision or of the convention. Exceptionally, in certain situations, the law absolutely presumes the quality of a certain person as fidejussor. For example, there is a fidejussion, called an assimilated fidejussion, also in case a party undertakes to another party to grant a loan to a third party, in which case the creditor (the person to whom the commitment has been made) is guarantor (fidejussor) of the obligation to repay the loan received by the third party.
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Durata de suspendare a exercitării dreptului de a conduce autovehicule în situația nepredării permisului de conducere începe să curgă de la expirarea perioadei de 15/30 zile și nu de la data rămânerii definitive a hotărârii civile sau de la data înștiințării efectuate de organele de poliție către inculpat în legătură cu această perioadă.
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În practica judiciară nonpenală din România, cel mai invocat drept prevăzut de Convenția (europeană) pentru apărarea drepturilor omului și a libertăților fundamentale a fost, este și, cel mai probabil, va rămâne dreptul la un proces echitabil, prevăzut de art. 6. Acest lucru se datorează faptului că instanțele judecătorești trebuie să soluționeze un număr impresionant de litigii (în condițiile unor scheme de personal subdimensionate), mult peste media sistemelor judiciare din vestul Europei.
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The article presents some reflections on the positive procedural obligation of criminal prosecution bodies to identify the successors of the victim of the offence or the injured persons who have suffered damage by ricochet (indirect victims), in order for them to exercise civil action, in the light of the new Criminal Procedure Code.
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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.
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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.
