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The article addresses the issue of cancellation of documents resulting from the commission of a crime, mainly concerning the special procedure regulated in Article 5491 of the Criminal Procedure Code. The legal nature of the institution of cancellation of documents resulting from the commission of an offence is the same, regardless of whether it is ordered by the court of law, pursuant to Article 25 paragraph 3 of the Criminal Procedure Code, or by the judge of the preliminary chamber, pursuant to Article 5491 of the Criminal Procedure Code. In the majority specialized literature it was embraced the opinion according to which within the procedure of abolition of documents regulated in Article 5491 of the Criminal Procedure Code only the document regarded as instrumentum probationis may be revoked, and not the legal operation attested by the respective document as negotium juris. Also, the majority doctrine considers that the procedure for the cancellation of documents can be applied only in case of committing forgery offences, not also in case the documents would come from committing other offences. This article seeks to question the correctness of these doctrinal opinions, bringing some arguments in the sense that the cancellation also refers to the legal operation (negotium) and may also concern documents resulting from the commission of offences other than those of forgery. -
For the Romanian legal system, the case law does not have the quality of a formal source of law. However, the legal reality, viewed also from a historical perspective, has demonstrated the essential role of judicial practice in the interpretation and application of the law, in building argumentative practices, in clarifying the will of the legislator and discovering the less obvious meanings of legal norms and, last but not least, in the unification of legal thinking and practice. That is why case law, along with doctrine, is an important component of the Romanian legal system. Starting from these considerations, in this study we aim to emphasize some aspects of the role of the constitutional case law in shaping and even in the development of some principle s of law. We emphasize in particular its contribution to the emergence and development of the constitutional review of laws, as well as to the edification of principles of law. We mainly analyze the role of judicial practice in the construction of the principle of proportionality in constitutional law, of the principle of equality and the interference between the principle of proportionality and the principle of equality. In this sense, we support the role of the case law not only in the correct interpretation and application of constitutional norms, but also in their construction, in discovering the existing normative meanings most often only implicitly in the formal expression of the legal norm of the above-mentioned constitutional principles. Thus, the case law in constitutional matters is not limited to the interpretation by classical methods of the norms of the Fundamental Law, but has an important contribution to the clarification and construction of some principles of law, to the constitutionalization of the entire legislative system and of judicial practice of all courts of law
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The sale-purchase contract is undoubtedly, in the 21st century and in the landscape of the Romanian law, the most frequent contract used in practice, having an essential and decisive role in the organization and development of social and economic life. The complexity, variations and particularities of this contract, starting from its conclusion and until the exhaustion of all its effects, contribute to shaping the overwhelming importance of the sale, of the „standard contract” which is the most used legal instrument for transferring goods. In this context, the effectiveness, usefulness and practical applicability of a sale-purchase contract depend essentially on its structural, „anatomical” elements, namely the essential, intrinsic and extrinsic conditions of validity which directly determine the effects of the sale. Depending on these structural elements there are researched and assessed the validity of any contract, in whose absence its legal effects cannot operate, and, if they operate, they will be abolished with all the consequences which they entail. Thus, the valid formation of the sale contract implies more than a simple analysis of the mechanism of realization of the will agreement; it necessarily involves a detailed examination of the structural elements of the contract which are referred in the law as being „the essential conditions for the validity of the contract”. Any dispute which may arise, having as object a sale-purchase contract, will be based primarily on the analysis of the legal fulfilment of the very conditions of validity of this contract, which will unequivocally determine the subsistence of the contract, as well as the extent and applicability of its effects
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Conflictul negativ de competență este reglementat de art. 133 pct. 2 din Codul de procedură civilă, ce stabilește că există conflict de competență când două sau mai multe instanțe și-au declinat reciproc competența de a judeca același proces sau, în cazul declinărilor succesive, dacă ultima instanță învestită își declină la rândul său competența în favoarea uneia dintre instanțele care anterior s-au declarat necompetente.
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Cauza Roman Zakharov contra Rusiei, Cererea n° 47143/06, Hotărârea Marii Camere din 4 decembrie 20151
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On 4 June 2020, Romania marks the Centenary from the signing of the Peace Treaty of Trianon. An essential page of the history of the Romanian nation, which took the form of a peace treaty concluded by the Allied and Associated Powers, including Romania, with Hungary, as the successor state of the Austro-Hungarian Empire, a state defeated in the World War I. By the content of this peace treaty, the Great Powers recognized the Union of Transylvania (and of the Eastern part of Banat) with Romania, respectively the sovereign will of the Transylvanian Romanians expressed by means of plebiscite on 1 December 1918 and, respectively, the Resolution of the National Assembly from Alba Iulia. The Treaty of Trianon has enshrined the realization of the right to self-determination of the nations of the Austro-Hungarian dualist monarchy. For Romania, the mentioned Peace Treaty meant not only the international legal recognition of the Union of Transylvania with the Motherland, but also the confirmation of the political and civil rights of the Romanians who constituted the majority population in this territory.
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The Treaty of Trianon between the Allied and Associated Powers and Hungary was signed on 4 June 1920 and dramatically changed the political map of Central Europe. Although the system of treaties concluded at the Paris Peace Conference did not prove viable, the political-territorial order created at Trianon – an expression of peoples’ right to self-determination – has survived. The present text aims to examine the circumstances of the conclusion of the Treaty of Trianon, its content and its long-term effects on the central European political order. Finally, the author makes a general evaluation of the Romanian-Hungarian relations in the light of their relation to the provisions of this Treaty.
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100 years after their conclusion, the Paris Peace Treaties of 1919–1920 are both an important event in history and a founding moment of modern international law. Ending World War I, they have legally established the new state-political realities resulting from the application of the principle of nationalities and the exercising of the right to self-determination by the peoples oppressed by the great European empires, which have led to the emergence of new states or to the consolidation of other existing ones. The new European and international order was founded primarily on the law, the organization of peace and the maintenance of the status quo being entrusted, according to the Covenant, to the League of Nations, the first international institution with universal vocation. New principles of international law have been prefigured, the national state has become the main topic of international life, the subregional collective security organizations (Little Entante, Balkan Pact) have played an important role in the international balance. The legal inheritance of the time 1919–1920 was expressed after the World War II through the Charter that laid the foundations of contemporary international law and the U.N.O. (1945). The Treaty of Versailles with Germany (1919), as well as that of Trianon with Hungary (4 June 1920) are the treaties whose territorial clauses have historically withstood being taken over by the Peace Treaties of 1947 and enshrined by subsequent relevant international acts. The Treaty of Trianon, by its territorial effects, has become the subject of a sustained and permanent action of revisionism by Hungary and anti-revisionism, as a reaction from the other states whose borders have been established thereby.
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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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Property (or ownership), seen as a subjective right, is the principle according to which we legally determine who can own what, how and to what extent. The legal conception of property rights is reflected in the economy, and the economy, by the force of its oftentimes ideologically driven mandates, spills over into the realm of the Law, molding our understanding of property to the very same extent that this understanding molds, constrains and defines the economy itself. The right of property, as a legal category, is not fixed and unchanging. On the contrary, property lends itself to a multiplicity of conceptual frameworks, sometimes at odds with one another. The modern understanding of property, however, is deeply indebted to Roman law. The Roman spirit, mercantile par excellence, is embedded into the innermost recesses of our contemporary theories of property rights. All this because the Roman legacy includes a perfectly flexible conceptual toolkit, eminently adapted to the whims of the market. The analysis of all of this constitutes the object of this study.
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Treaty of Trianon, an international document of unquestionable political-legal value and, at the same time, of capital value for Romania, which certifies the full legitimacy of its existence inside its current borders – also including Transylvania –, is unconditionally fully valid and thus remains as such, having been applied for a century. It is for the Romanians to comply with the sacred duty to know its provisions as rigorously as possible and to ensure, at any cost and without any hesitation, the strict observance of its provisions. Under no circumstance it is admitted a hesitating or passive attitude, without reply when its validity is questioned. Thus, it is created the impression that Romania would agree that the Treaty of Trianon is no longer of interest to the Romanian State or that there would be some indifference to the regulations which it contains, favouring confusions and forming opinions that prejudice the value of this Treaty.
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By the Decision on 29th January 2019, in Case No 6080/06 Ahunbay & others v. Turkey (6080/2006), the ECHR has made a great leap forward, by means of the subsequent considerations, in recognizing the general principle of the right of access to common cultural inheritance. The Court has rejected the principal claim as inadmissible (ratione materiae); even though, by finding that the object is related to an evolving field and by considering that given the international instruments and the common ground regarding international legal standards, compulsory or not, it cannot be a priori excluded the existence of a common European and International approach regarding the need to protect the access to cultural inheritance, it has opened significant perspectives for the process of giving this principle a legal shape. Thus, there have been created the premises so that, in the near future, by means of case law, several significant progresses can be made in this field.
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In the present study, the authors analyze extensively the situations of non-unitary practice that appeared both at the level of the Bureau of the judge of surveillance of deprivation of liberty and at the level of the courts, due to the different ways in which the magistrates understood to deal with the problem of the transfers of the persons deprived of liberty and the legal nature of the transfer decisions issued by the National Administration of Penitentiaries. The purpose of the present analysis is to clarify the regime applicable to requests made by the persons deprived of liberty to cancel the transfer decisions, because the lack of regulation in the Law No 254/2013 regarding the possibility of appeal, as well as of the competent court to resolve the appeals, led to the outline of divergent currents of opinion reflected in the non-unitary solutions given in complaints or appeals.
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The hierarchy of legal values and fundamental rights can be achieved with the help of applicable law, interpretation of principles of law and using relevant case law at national level (especially in this case, from Romania), as well as at European level, through the judgments given by the Court of Justice of the European Union and the European Court of Human Rights. The General Data Protection Regulation (GDPR) respects all fundamental rights and freedoms and principles recognized in the Charter as enshrined in the Treaties, in particular respect for private and family life, residence and communications, protection of personal data, freedom of thought, conscience and religion, freedom of expression and information, freedom to conduct business, the right to an effective remedy and a fair trial, as well as cultural, religious and linguistic diversity. A long list of rights appreciated even by the European legislator in the preamble to the Regulation that could interfere with the right to data protection. The critical analysis is based on the recent jurisprudence of the Court of Justice of the European Union and of the European Court of Human Rights, as well as of the Romanian courts, each of them being involved in the decision-making process regarding the prevalence of fundamental values regarding freedom of expression and protection of data.
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The elaboration of the notarial acts takes place in compliance with some requirements strictly provided in the normative acts. These requirements for the preparation of notarial acts are called rules for drawing up and affect to all notarial acts and actions. The topic covered in this paper is of interest to theorists and law practitioners from the Republic of Moldova and from Romania. In the Republic of Moldova there is a long process of formation and consolidation of notarial legislation. In the absence of a well-elaborated normative framework, the notaries public from the Republic of Moldova apply, here and there, the rules for drawing up the notarial acts inherited ever since the period of the Soviet Union. Another situation exists in Romania, whereas the legislator, by the Law No 36/1995, has established a stable normative framework for regulating notarial law relations. The main objective pursued by the author in the elaboration of the paper consists in the comparative analysis of the common rules for the drawing up the notarial acts through the Romanian and Moldavian legislation. The results of the research are manifested by formulating some conclusions and recommendations for amending the legislation. The theoretical implications of the study are relevant due to the diversity of the doctrinal sources used by the author. An increased attention was paid to Moldavian and Romanian researchers. In addition, the doctrine of the notarial law in the Russian Federation has been considered, which, over many decades, has become traditional in the Republic of Moldova.
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The above study constitutes a theoretical synthesis of the jurisprudence of the High Court of Cassation and Justice of Romania from the last years in the field of legislation regarding the restitution of the immovable assets abusively taken over by the State in the period comprised between 1945 and 1989; of the interpretation of contracts in consideration of the real will of the parties; of the proxy’s fault in the mandate contract and of certain civil procedure issues, taking into account also the provisions of the new Romanian Civil Code (Law No. 287/ 2009, as amended by Law No. 71/2011), which has recently come into force (as of October 1, 2011).
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Lately, within the penal lawsuit – in the stage of its prosecution and judgment – due to the impasse of producing evidence facing the prosecution, since the prosecutor issues solutions for not initiating the penal prosecution without factual or legal grounds, with regard to the delator that perpetrated deeds provided by the penal law and closely connected with the crimes for which they ordered the judgment of others, they heard and then obtained that such delators be heard as witnesses and grounded its accusation on their testimonies. The clarification of the capacity in which a delator may be heard within a penal lawsuit appears, therefore, necessary both from a theoretical point of view, and from a practical point of view, and the authors’ approach is trying to respond to this necessity.
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The system of penalties, although it marked a progress in the evolution of the Romanian penal law, however, if it is critically examined, it evidences the small number of major penalties and, especially, their emphatically repressive character. In this study, the author makes an analysis by comparison of the system of penal sanctions in the new Penal Code as compared to the current regulation, as well as in comparative law. Another issue relates to the impact of normative provisions on the judiciary individualization of penalties with reference to the individualization criteria and the appreciation margin acknowledged to the judge. The author also states that it is useful that the relevant penal regulations should provide the criterion of proportionality for the judiciary individualization of penalties.
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According to Art. 244 para. (1) of the current (Romanian) Civil Procedure Code, the court may suspend trial if: – the settlement of the case depends, in full or in part, on the existence or inexistence of a right that forms the object of another trial; – criminal prosecution was initiated for a crime which would have a decisive influence on the decision to be issued. The author examines this text by correlation to Art. 248 et seq. of the same Code regulating superannuation. In this context, the author believes that the request to reopen the suspended case according to Art. 244 of the Civil Procedure Code for the re-initiation of trial is not a procedural act which must be fulfilled by the court ex officio. Moreover, the court of law may only re-place the case on the dockets to ascertain superannuation, on which occasion it shall have to grant trial expenses to the defendant or respondent in appeal (as applicable), which requests or produces proof of such expenses.
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The above study makes a detailed analysis on the precise meaning of Art. 821 para. (1) of Law No. 161/2003, according to which “The deputy or senator who, during the exercise of term of office of a member of Parliament, desires to exert the profession of attorney at law may not plead in the cases judged by the courts of law or tribunals, nor may they provide legal services to the prosecutors’ offices attached to such courts of law.” In this context, the author concludes that the legal limitation of the interdiction mentioned only under the “pleading” in front of the courts of law and tribunals (or granting the legal assistance to the prosecutor’s offices attached to such courts of law), since the reasons which imposed the regulation under discussion are identical also in the situation of the cases which are judged by higher courts of law (Courts of Appeal, High Court of Cassation and Justice).
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In this study, the author, solving a controversy (generated by the imperfection of the relevant regulatory acts) reaches the conclusion (based on a rational interpretation) that the prefect has the legal competence to exert the administrative guardianship control also on the decisions issued by the president of the county council, whether or not the latter is considered as an authority of the local public administration.
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This study analyzes the situation – which is not expressly regulated by the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms – in which, after the claimant notified the European Court of Human Rights (and until 1998 the Commission within such Court), the respective claimant demises. The study takes into account a rich history of relevant cases, resulting from the case law of the Court/Commission. In the end, after examining the mentioned cases, a series of conclusions may be briefly deducted.
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Starting from the case of Vergu vs. Romania, recently settled (January 11, 2011) by the European Court of Human Rights, the author, in light of Art. 13 of the European Convention on Human Rights, discusses the issue related to the right to a prior effective recourse with the internal (national) court of law, a sine qua non prior condition for notifying the Strasbourg Court, concluding that the European court of law (must make the severe application of the subsidiary nature principle. Only under entirely exceptional cases, with grounded motivations, in a circumspect and entirely isolated manner, may the Strasbourg Court release the claimant from its obligation to exhaust the internal means (of effective recourse with the national court).
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In this study, the author examines Law No. 133/2011 for the amendment of several provisions of Law No. 360/2002 regarding the policeman’s status. The author has also certain positive appreciations on these amendments, but she primarily retains a series of negative sides on Law No. 133/2011, especially by the fact that the mentioned law provides that “the procedure and cases for modifying and/or suspending the policeman’s business relations shall be established under an order issued by the minister of administration and internal affairs”, which is, in the author’s opinion, contrary to the principles of the Romanian Constitution.
