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The article addresses the issue related to the manner to reach an effective cooperation between two judicial institutions which play a very important role in the context of ensuring respect for the rights and freedoms of the citizen, respectively between the European Court of Human Rights and the Court of Justice of the European Union. The study starts from the premise according to which the creation of the Single European Area of Freedom, Security and Justice, through the conclusion of international treaties, and subsequently the accession thereto by the states on the European continent and the third countries was not only of a nature to bring benefits to the citizens, by exercising the right to free movement and its derivatives at socio-economic level, but also to generate shortcomings, determined by the cross-border nature of the criminality, acquired in the light of free movement precisely. The relationship between the two jurisdictional institutions is viewed in the context of international cooperation in criminal matters, with broad references to the principles enshrined in the European Union law and which have the role of simplifying and intensifying this cooperation. Among the principles analyzed we indicate: the Principle of pre-eminence of international treaties and conventions over the national law, the Principle of mutual recognition of criminal judicial decisions and of mutual trust between states, the Principle ne bis in idem. The article also contains references to another important aspect resulting from the realities of international judicial cooperation in criminal matters, namely to the fact that, although each Member State of the European Union is a party to the European Convention, the Union, as an international organization, is not a party to the Convention, which means that European citizens cannot file a complaint to the European Court of Human Rights against an institution of the Union, when they consider that any of their rights enshrined in the Convention has been violated. -
The EU is a union of states and citizens. The legal nature of this Union is disputable. However, most of the scholars admit that it works on federal bases; in the Brussels language called „the communitarian method”. If the EU is a federation, it is a sui generis federation of sovereign states. Those states have transferred to the European transnational institutions, they have established by their joint will, the power to exercise on their behalf, to their benefit and in their common interests some of their national competences. By doing this the respective states did not give up their sovereignty, but simply decided to exercise parts of it in common, for the sake of their common security. Likewise, they did not abrogate their Constitutions, but it was precisely because those Constitutions allowed them to enter such international agreements that they have signed the Treaty of the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). That explains why the above-mentioned founding legal instruments of the EU were adopted and later modified by and within intergovernmental conferences, as well as why they had to be ratified by all national parliaments of the signatory states. Those treaties include the principle of „attribution”, which means that the European institutions could not have, accept or enforce any power which has been not explicitly attributed to them by every and all member states. This „attribution” is achieved and could only be achieved in full respect and in complete observance of the respective national Constitutions of the member states.
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The voting right of the shareholder at the general meeting of the shareholders is an accessory right to the ownership of the shares, by which the shareholder protects his interests and exercises the supervision and control over the management of the company. It is a true prerogative of the shareholder’s access to the substantiation of business decisions, which materialize through the will of the company. The exercise of the right to vote is governed by the principle of good faith and the principle of proportionality, but may be limited in the situation of the conflict of interests between the shareholder and the company. The shareholder in conflict of interests with the company is obliged to abstain from the vote, if by his vote it contributes to the formation of the majority of a decision with harmful consequences for the company. The situation of conflict of interests and the sanction of non-observance of the obligation to abstain from voting cannot be determined by the other shareholders, but only by the court. If, through the decision adopted with the participation of the shareholder in conflict of interests, a prejudice has occurred, the applicable sanction is the commitment of its liability. Such a decision is valid, but it can also be cancelled, provided that it is the result of a majority abuse. The same fate has the decision adopted by the minority shareholders with the abusive removal of the shareholder’s vote supposed to be in conflict of interests.
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The article analyzes the refusal of the convicted person to be subject to the medical examination upon the arrival to the penitentiary, from the perspective of the Romanian legislation, in correlation with the international instruments regarding the rights of detainees, and legislative solutions adopted by other European states, arguing some proposals de lege ferenda meant to facilitate the fulfilment of the positive obligation of the state to prevent the spread of contagious diseases in the penitentiary environment. The objectives of the article are to determine whether the detainee has the right to refuse the medical examination, whether the Romanian legislation complies with the requirements of the international instruments regarding the protection of the rights of the detainees, respectively whether they have similarities with the legislations of other European states; at the same time, the aim is to identify some rules applicable to the penitentiary system, derived from the case law developed by the ECtHR/Court and from international documents, in relation to the right to health and the relationship between the autonomy of the detainees as persons and the prison environment.
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The phrase actio libera in causa designates that situation in which the perpetrator, at the time of committing a deed stipulated by the criminal law, was in a situation that excludes the imputable character of the deed. However, it must be emphasized that, at a previous moment, when the perpetrator was not under the incidence of such causes, he triggered or allowed the emergence of some states of fact that would eliminate the imputable character of the deed. In such a hypothesis, the criminal doctrine from Romania is unanimous in accepting that the person who causes his own state of incapacity will be liable under the criminal law. In order to argue the possibility that a person, at the time of committing a typical action or inaction, be liable under the criminal law, the authors of criminal law in our country have adopted the model of exception or extraordinary imputation. According to this system, the perpetrator will be liable under the criminal law for causing his own state of incapacity. Thus, the imputability, in the case of the construction of actio libera in causa, will not be analyzed at the time of committing the criminal deed, but in relation to the moment when the perpetrator caused his state of incapacity. The construction actio libera in causa, from our point of view, covers only certain hypotheses in which the perpetrator creates the appearance of existence of a cause of imputability (intoxication, irresponsibility, physical or moral constraint), and not those hypotheses, in which the perpetrator provokes the existence of a justifying cause.
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The Aarhus Convention (1998) organizes the exercise of public access to environmental information, taking part in decision making, and access to justice in environmental issues, as procedural safeguards of the right to a healthy and ecologically balanced environment. The effectivity of the right to environmental information bares significant limitations, both doctrinal and political, and has met several obstacles, mostly technical and cultural; such aspects concern especially the definition of environmental „information”, the conditions of accessing them, the exceptions, the administrative proceedings, the access to justice in this field and its results etc. In explaining its contents and amplifying the efficiency of this right a special part is played by the findings, conclusions and recommendations of the Compliance Committee for examining the enforcement of the Convention created in 2002 that can file complaints from Member States and non-governmental organizations, to evaluate, in a non-conflictual, non-judiciary and consultative manner, whether the treaty is correctly enforced by the Parties. Having no decision power, the Compliance Committee issues, following the examination, only a recommendation, addressed to the Reunion of Parties, that is always approved by the Member States.
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Air pollution is the biggest environmental threat to public health; every year, it generates the premature illness and death of over 5 million people worldwide and over 400 000 inhabitants of the EU. Such realities and the proliferation of the cases of non-compliance with the legal regulations and the measures adopted to prevent and combat air pollution have generated an increasing and more diverse judicial contentious, both at national level and at the level of the jurisdictions of the EU. By the Judgment of 26 June 2019, the Court of Justice of the EU has pronounced a solution for the reference for a preliminary ruling raised before a Belgian tribunal on the interpretation of Articles 6, 7, 13 and 23 and of Annex III of Directive 2008/50/EC. The intention was to find out to what extent the national jurisdictions can control the location of the sampling points and if it is possible to establish an average value, starting from the results of the different measuring stations, in order to evaluate the compliance with the limit values. The Court of Justice of the European Union has stated that national jurisdictions are competent to control the choice of the location of the air quality measurement stations and to take, with respect to the national authorities concerned, any relevant national measure; in order to evaluate the compliance with the limit-values, the pollution level of each sampling point must be taken individually. The new case law of the Luxembourg court contributes to strengthening the environmental contentious and its role in ensuring the application of the regulations in this field.
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This paper presents an analysis of the legality of the decisions made by the administrations of the places of detainment to forbid to the persons deprived of their freedom to receive and acquire different categories of foods, decisions based on safety reasons regarding the detainment, as per Article 148 (6) in the Regulation of Enforcement of Law No 254/2013, as well as the extent to which these decisions violate or not the right to receive and buy goods according to Article 70 from the Law No 254/2013. The paper summarizes the currents of opinion formed both in the practice of the judges of surveillance of deprivation of liberty, as well in the courts by displaying certain judicial situations regarding the nature of some foods which are not particularly regulated in Annex 1, Title IV of the Regulation, situations which not even at present have received unitary unification in relation to the character of the actions taken by the prison as a restraint or a reduction of the right to receive and buy goods. The conclusions of this endeavour offer a possible solution to this problem of great actuality in practice starting from the assumption that reducing the exercise of the right to receive and buy goods is legal in the extent to which the principles of legality, equity, the realization of goals and proportionality are abided.
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In the present scientific study, we decided to carry out a thorough investigation into the concept of applying criminal liability for swindling in the conditions in which the state has a limited role in regulating the economic market relations and the coercive methods of preventing and combating this crime which must have a status subordinated to economic, informational, political, juridical-civil methods. In order to make the prevention of scams more effective, it is necessary to strictly correlate it with the many transformations and processes taking place in the political, economic, social and ideological domain of the state.
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Any attempt in the sphere of the humanities to characterize and explain the man in his individuality, but also in the social existential context relates also to the problem of freedom. Freedom is essentially related to the human being, but also to the existential phenomenality of man. Man is the only being whose fundamental ontological dimensions are freedom and spirit. In this study, the authors briefly analyze the concept of freedom not only as a moral value or category, but especially as an ontological dimension of man. In this way, the distinction is made between the ontological freedom and the legal freedoms established or recognized by means of legal norms by the state. The legal freedoms are a phenomenal expression of human existence, whose legitimacy and ground are conferred by the ontological dimension of human freedom. In this context, there are analyzed the main characteristics of the legal freedoms and the practical importance of the ontological meaning that must be found in the freedoms established by law.
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The theme of this study is the public order considered in its sense of limit of the principle of contractual freedom. The author starts in the analysis of this concept from the finding that, at present, it is almost impossible to formulate a definition sufficiently comprehensive, in order to be unanimously accepted by the specialized doctrine and by the case law. This is because it is a notion whose content is constantly evolving, depending on the needs of the judicial life, which is in an increasingly accelerated dynamics. Therefore it finds that the current public order has two components: the classical public order and the modern public order; the first has been and continues to be conservative and the second intends to be innovative. The classical public order usually consists in defending the main pillars of support of the society, such as: the state, the family and the individual, as well as the fundamental human rights, called „personality rights”. The modern public order has the mission to respond to the demands of the contractual life, determined mainly by the great economic changes that took place and continue to take place in the modern society.
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A new decision of the European Court of Human Rights (the Judgment of 19 June 2018 pronounced in the Case Bursa Barosu Bașkanligi et al. against Turkey) strengthens the case law according to which the useful effect of the right to a fair trial presupposes also the right to execute the justice decisions (inaugurated in 1997), including those that protect the environment (initiated by the Judgment of 12 July 2005 in the Case Okyay against Turkey) and opens new perspectives in this matter. Limited to procedural issues, the decision contributes, however, to the nuancing of the problems, encourages the progress of the effectiveness of environmental law by judicial means and, through the suggestions offered, underlines the need to particularize the legal reaction to the specific of the ecological realities. The deception is mainly resulted from the limitation to the data of the judicial precedent and the failure to fully use the capacities related to the involvement of the civil society in promoting the environmental judicial progress.
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The law amending and supplementing the Law No 254/2013, a law which has not been promulgated and has not entered into force, has been through a controversial legislative process, involving the disregarding by the legislative power of the effects specific to the decisions of the Constitutional Court, pronounced before the enactment of the laws, assisting in the delivery of three decisions of the Court with regard to the same law, by two of them being established the unconstitutionality of the law as a whole. Finally, as a result of the cessation by law of the legislative process, the only possibility of the legislative power to regulate the regime of home detention is represented by the start of a new legislative approach, this time in compliance with the principle of bicameralism. At the same time, the intrinsic analysis of the provisions regarding the regime of home detention has resulted in the identification of legislative gaps, of the lack of clarity of the legal nature of the institution, of the lack of precision and predictability in the process of applying the regime of home detention, as well as in the identification of numerous cases of legislative parallelism. In compliance with the legislative will to establish the regime of execution of the imprisonment sentence at home, the results of the intrinsic analysis have led to the formulation of some de lege ferenda proposals regarding the regulation of the regime of detention at home, by amending Law No 254/2013.
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The authors analyze, making comments on two cases of judicial practice in the field of risk drug trafficking also on performing operations with products likely to have psychoactive effects. Commenting on the first case, the authors observe the rarest that can be found in the judicial practice in the matter of drugs, namely the existence of a putative deed consisting in the transportation of a supervised delivered parcel in which all the drugs were replaced with other materials, and the person who carried the parcel without drugs was accused of trafficking of risk drugs in the modality of transportation of drugs without right. Commenting on the second case, the authors criticize a solution given by Tribunal of Brăila and the Court of Appeal of Galați, on the ground that the convicted defendant was, in fact, in a factual error with regard to the fact that in the small envelopes he traded as ethnobotanical products there have been identified fragments of cannabis plant mass.
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The intangible cultural heritage is a crucial factor in shaping the personality and identity of a human being. At the beginning of the 21st Century, faced with the deepening globalization, commercialization, consumerism, technological progress and urbanization, it is necessary to take, without unjustified delays and considering future circumstances, actions for the protection of the intangible cultural heritage. This study presents the genesis, the legal regulations and mechanisms that were developed under the aegis of the United Nations Educational, Scientific and Cultural Organization. The measures taken by UNESCO1 and by the individual states to reach the set targets should follow the spirit of tolerance, empathy, cultural plurality and respect for human rights.
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Divorce requires a continuous monitoring of the quality of adults-children relationships, as well as the development of some emotional connections based on authenticity, availability, respect, safety and warmth. In order to resolve the misunderstandings between parents regarding the exercise of rights and the fulfilment of duties, the court asks the delegate of the guardianship authority to conduct a psychosocial inquiry with regard to the conditions in which a child is raised and educated and how the parents fulfil their duties towards the child. One of the objectives of the psychosocial investigation must be to monitor the dynamics of the relations between the child and the parents after the divorce, because these relations do not have a fixed trajectory, being in a continuous modification and development. In the civil procedural law we do not find a minimum set of norms that regulate the procedure of carrying out the „psychosocial investigation” and the content of the „psychosocial investigation report”, a circumstance that has generated mainly a non-unitary case law, lacking the psychological component.
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The procedure of registration of forgery is a procedural incident regarding the evidence by written documents, which can usually have as its object an authentic written document or a written document registered under private signature. In the case of authentic written documents, the procedure of forgery may be used when the authenticity of the findings made personally by the person who authenticated the document is contested, according to the law. In the case of the written documents under private signature, the procedure of forgery can be used when it is claimed that they have been fabricated, being admissible also in the assumption that such a document has been recognized by its author or has been verified in court, if it is proved that the recognition was the result of an actually excusable error. The investigation and establishment of forgery shall be carried out by the criminal prosecution bodies and criminal examination body or by the civil court, by incidental way, in the event that the criminal action cannot be initiated or cannot continue. The procedure of registration of forgery is applicable regardless of the nature of the forgery (material or intellectual) and false written document is also the one whose content is not real, even if there has not been committed by the operation of altering the reality. The provisions of Articles 304-308 of the Civil Procedure Code regulate the procedure applicable in the assumption of registration of forgery against a written document produced in a pending litigation, in which case the provisions of Article 315, of Article 5491 and of Article 580 of the Criminal Procedure Code must be complied with.
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The climate dispute, developed explosively in the last decade, has had a first experience also at the level of EU law through People’s Climate Case (2018) in which 10 families and a civic association have brought an action before the EU Tribunal against the European Parliament and the European Commission for the insufficiency of the objectives assumed in the matter of climate changes. It was required the cancellation of several European Union legislative texts in the clime package and a compensation for the prejudice claimed to be incurred in this context. By the Ordinance of 8 May 2019, the action was dismissed as inadmissible, as the conditions of Article 263 (4) TFEU were not met, whereas there had been challenged legislative texts which did not concern and did not affect the applicants individually. The case law thus created leads to conclusions notable for the climate justice.
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În lipsa unui probatoriu care să demonstreze existența unei activități autonome a inculpaților de inițiere, respectiv constituire a unei grupări infracționale, activitate care să rămână distinctă de comiterea infracțiunii ce a constituit scopul acesteia și care să vizeze organizarea acțiunilor infracționale, prin fixarea modalității și a coordonatelor de săvârșire a acestora, precum și a sarcinilor și rolului fiecărui membru în cadrul grupării constituite, fapta capătă valențele juridice ale pluralității ocazionale, prevăzute de articolul 77 lit. a) C.pen.
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The need to analyze the condition of guilt in engaging the legal liability of the physician does not result only from the ECHR Judgment in Ioniță Case, which ruled that the physician’s liability itself is based on the notion of medical negligence, but especially because of its specific aspects. According to recent practice, the intensity of medical guilt in the degree of culpa levissima is able to lead to de facto exoneration from criminal liability (through a symbolic sanction) in order to focus on repairing the victim’s prejudice. The consequence of changing the vision on the medical legal liability from a punitive-criminal liability of the physician to a reparative liability facilitates the perception of the French conception of the contractual liability of the health unit. This does not remove the personal liability of the employed physician, but limits it to a psychic attitude of elusion of the system of cooperation and control of the health unit, which brings it closer to the indirect intention. Hence the need to distinguish between indirect intention and guilt with forethought (recklessness), which in its turn is different from guilt without forethought (negligence).
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The judicial administrator will submit a monthly report containing the description of how he has performed his duties, an account of the expenses incurred with the administration of the procedure or of other expenses made from the funds existing in the debtor’s estate, as well as, if necessary, the stage of performing the inventory. The report will also mention the fee received by the judicial administrator, by specifying modality of calculation thereof. The report will be submitted to the case file and an extract shall be published in the BIP. Every 120 days, the syndic-judge will analyze and rule on the stage of continuation of the procedure, through a resolution by which he will be able to establish certain measures as duty of the judicial administrator and he will grant an administrative term of control or of trial, as the case may be. In the event that there are contentious or non-contentious applications, as well as in the hypothesis in which the syndic-judge deems it necessary, he will order the urgent summoning of the interested persons and of the judicial administrator, for the purpose of solving the applications or for ordering the necessary measures.
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The verification of scripts is an incident in relation to the literal evidence, more precisely a procedure to which it is subjected a contested written document under private signature. The contested written documents under private signature may be subjected to a verification procedure either by principal way, by a preventive action, having exclusively such an object, or by incidental way, during a trial. The verification of the written document under private signature, by principal way, is admissible, under the conditions of Articles 359–363 of the Civil Procedure Code, if there was not or there is not a trial pending in which that written document had been opposed or is being opposed. Instead, the verification of the written document under private signature, by incidental way, is regulated in Articles 301–303 of the Civil Procedure Code, whose provisions are the object of this study. Article 301 of the Civil Procedure Code regulates the attitude that must be manifested by the person to whom such a written document under private signature is opposed, given that such a written document has no evidentiary power unless it is expressly or tacitly acknowledged or if it is declared as being truthful after being verified by the court.
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The present study aims to give an answer to the legal framework regarding the possible staff reduction followed by dismissal, measures that would have as sole purpose to increase the profit of the employer. Against the background of the ambiguity of Article 65 of the Labour Code, it is considered that such a measure is rationally possible only if the employer has a profit that is below the level of the average profit existing in the sector/field of activity (a situation that can be evaluated in relation to the financial data from the Trade Register Office and with the data that is published periodically by the Ministry of Public Finance). Only in such a case the condition of the real and serious cause is met.
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The present study analyzes the working hypotheses in the matter of the preliminary procedure regarding claims from European funds. The study identifies a number of working scenarios, starting from the particular way in which these claims arise, specific to European funding mechanisms. Another filter in the analysis is given by an irregularity in the management of funding, an irregularity that is treated differently as it appears before or after the payment, taking into account the variable, if it generates a debt to be recovered from the European Union budget/international public donors and/or national public funds related to them through an undue payment. Thus, the study observes a series of nuances in the hypothesis of undue payments, similar shades of contentious type to tax procedures1.
