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Among the measures initiated by the European bodies and subsequently taken over and adopted by the judicial authorities of the Member States to combat cross-border crime are those regarding the judicial cooperation in criminal matters referring to the tracing, identification, freezing and confiscation of proceeds, instruments and assets related to the offences committed by this kind of criminality. In this regard, the Report of the Commission to the European Parliament and to the Council on the progress made by Romania under the cooperation and verification mechanism, issued on 13 November 2018 in Strasbourg, through the Recommendation No 12, was sending to the Romanian authorities „the assurance that the National Agency for Management of Seized Assets is fully and effectively operational, so as to be able to publish the first annual report with reliable statistical information on the confiscation of assets coming from committing offences. The Agency should establish a system of regular reporting on the development of its administrative capacity, on the results obtained in the confiscation and management of proceeds resulted from committing offences”. The Romanian legislative authorities have indeed adopted the Law No 318/2015 for the establishment, organization and functioning of the National Agency for Management of Seized Assets and for the amendment and supplementation of some normative acts, law published in the Official Gazette of Romania, Part I, No 961 of 24 December 2015. This first legislative approach, however, had to be supported also by other administrative and executive formalities which involved the effective establishment, organization, functioning and operationalization of this Agency, a fact ongoing even at the date thereof. It is also noted, at the time of writing this study, that this Agency is not operational and that there are ongoing, although with big delay, some procedures for organising contests and for filling several offices therein in order to become functional. Starting from these coordinates, the article contains a brief analysis of the stage in which the Romanian authorities have complied with this recommendation, together with the relevant Romanian case law, with some of the Community norms and with the model of other European states in this matter, as well as its own conclusions necessary for an as good as possible implementation of this recommendation in the Romanian judiciary system. -
The authors appreciate that the Constitutional Court Decision No 874/2018 is welcomed in the Romanian legal landscape. To the same measure, the authors reiterate criticism to the decision of the High Court of Cassation and Justice No 52/2018 for a prior ruling on the interpretation and application Article 27 of the Civil Procedure Code, by reference to Article 147 (4) of the Constitution of Romania and Article 31 (1) and (3) of the Law No 47/1992 on the organization and functioning of the Constitutional Court, republished, texts which establish the effects of a decision of the Constitutional Court.
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The doctrine of the state of law springs from the German theory and case law, but at present it is also a requirement and a reality of the constitutional democracy in the contemporary society. At present, the state of law is no longer merely a doctrine, but a fundamental principle of democracy enshrined in the Constitution and in international political and legal documents. In essence, the concept of the state of law is based on the supremacy of law in general and of the Constitution in particular. Essential to the contemporary realities of the state of law are the following fundamental elements: the moderation of the exercise of state power in relation to the law, the consecration, guarantee and respect for the constitutional human rights especially by the state power, and last but not least, the independence and impartiality of justice. In this study we are analyzing the most important elements and features of the state of law with reference to the contemporary realities in Romania. An important aspect of the analysis relates to the separation, balance and collaboration of the state powers, in relation to constitutional provisions. The most significant aspects of the case law of the Constitutional Court regarding the state of law are analyzed.
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In this study, the author analyzes the change occurred with regard to the response to the statement of defence, by point 27 of the Law No 310/2018 amending and supplementing the Law No 134/2010 on the Civil Procedure Code, as well as for amending and supplementing other normative acts. In the old Civil Procedure Code this act of procedure was not regulated, but it was customary to submit a response to the statement of defence. The author presents how the act of procedure called the „response to the statement of defence” has been regulated, being introduced by the Law No 134/2010 on the Civil Procedure Code. Initially, in Article 201 (2) of the Civil Procedure Code, it was provided the obligativity of the applicant to submit the response to the statement of defence, after having communicated it. This obligation postponed the setting of the first trial term. The obligation to formulate a response to the statement of defence was also provided in Article 471 (6) of the Civil Procedure Code, for the settlement of the means of appeal, as well as in Article 490 (2) of the Civil Procedure Code, for the settlement of the extraordinary remedy of the review. As regards the appeal and the review, the provisions of the Civil Procedure Code have not entered into force, but it has been applied the intermediary regime regulated by Article XV (4), for the appeal, and Article XVII (3), for the review, of the Law No 2/2013 on some measures to relieve the courts, as well as to prepare for the implementation of the Law No 134/2010. By point 27 of the Law No 310/2018 the facultative character of the response to the statement of defence was enshrined. This amendment has also been extended to the case of settlement of the appeal and of the review. The author presents the arguments for which she considers that the legislator should have abandoned this procedural act, being sufficient to express the position of the applicant by way of the request for summons and of the defendant by way of statement of defence. The conclusions of the study are reflected in the opinion that the response to the statement of defence is not justified in the civil trial, creating an imbalance between the parties, the applicant being able to justify his claims both by the request for summons and by the response to the statement of defence, while the defendant has available only the statement of defence. Even if by abandoning the binding character of the response to the statement of defence, the fixing of the first term, respectively that for appeal and for review, takes place more quickly, the author proposes to fully abandon this act of procedure and considers that the legislator should have repealed the response to the statement of defence.
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The probative force of the document under private signature derives from the signature of the party or, as the case may be, of the parties. The signature of a document guarantees in full faith, until proved otherwise, the existence of the consent of the party that has signed it with regard to its content. In case of the document under private signature the presumption of authenticity will no longer operate. The person to whom it is opposed a document under private signature is obliged either to acknowledge, or to contest the writing or the signature, because, until it is voluntarily acknowledged or verified in court, one can not know whether the signature belongs or not to the person who appears in the document as signatory and whether or not he has knowledge of the content of the document. The document under private signature, acknowledged by the opposing party or considered by the law as acknowledged, makes proof between the parties until proved otherwise, including with regard to the mentions in the document which are directly related to the legal relation between the parties. On the other hand, the mentions in the document not related to the content of the legal relation between the parties can serve only as prima facie written evidence. The attitude of the party, to whom it is opposed a document under private signature, not to protest against the use of that document or not to give an opinion in one sense or the other, is presumed to be a tacit acknowledgment. In case the writing or the signature has been contested by the party or declared unknown by its heirs or successors in rights, the court will proceed to the verification of the document according to the provisions of Articles 301–303 of the Civil Procedure Code. However, if the party claims that the document has been forged after signing, by erasures, additions or corrections in its content, or that the document contains an intellectual forgery, the party in question will be able to denounce the document as false, by means of the procedure regulated by Articles 304–308 of the Civil Procedure Code. The document not signed by the parties or by one of the parties is not valid as instrumentum probationis, but the legal operation (negotium iuris) remains valid and can be proved by other means of evidence, if the written form is not required by law ad validitatem. Even the document not valid as document under private signature is worth as prima facie written evidence, if it is opposed to the party who wrote it. The documents under private signature (signed) for which the formality „plurality of copies” or, where appropriate, the formality „good and approved” has not been accomplished is always worth as prima facie written evidence. In the relations between professionals it is recognized the probative force of a document not signed, but commonly used in the exercise of the activity of an enterprise in order to establish a legal act, unless the law imposes the written form in order to prove the legal act itself. The date indicated in the document under private signature has the same probative value, in the relations between the parties, with the other mentions in the document. Against third parties, the date of the document under private signature, by itself, is not evidence. Only the certain date is opposable to third parties, a date obtained by one of the methods established in Article 278 of the Civil Procedure Code or by other means provided by law.
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The study refers to the way in which national criminal processual legislation provides safeguards regarding the respect for the right to a fair trial, with particular reference to the obligation of the courts of law to properly motivate the solutions they pronounce in solving the merits or even the ordinary remedy of appeal. From the research made, the author concludes that the European standards do not find an explicit consecration in the current national legislation and identifies situations from the recent case law in which the courts have directly applied the European conventional provisions, by abolishing the sentences analyzed and sending the case for retrial by the same court even without Article 421 (2) b) of the Criminal Procedure Code providing such a case. The author proposes that it should be completed de lege ferenda the text itself previously invoked by including a case which should refer to the failure to provide proper motivation for the sentence of the court examining the merits and he continues the argumentation by proposing the extension in the same way also of the cases in which an review in cassation may be lodged against the decisions of the courts of appeal. The conclusion he reaches has in view the fact that the two legislative amendments would be likely to provide adequate safeguards to the right to a fair trial in criminal matters, without the need to resort to conventional provisions which should be conferred direct applicability, a solution often avoided by the courts in this field. -
The information about the patient’s state of health, diagnosis, treatment, personal data is confidential even after his death. There is an obligation of the physician to keep the professional secrecy, which is opposable to the patient’s family members and which is maintained even after the person has ceased to be his patient or is deceased. The present study discusses aspects on the impossibility of proving a possible malpractice case, in the absence of the access of the patient’s family to medical documents, medical observations, medical sheets, and medical treatment applied to the patient deceased in the meantime. We have in view that Article 21 of the Law No 46/2003 on patient’s rights stipulates that all information regarding the patient’s condition, the results of the investigations, the diagnosis, the prognosis, the treatment, the personal data are confidential even after his death, and Article 22 of the same normative act provides that confidential information may be provided only if the patient gives his explicit consent or if the law expressly requires so. Similarly, Article 18 of the Code of Professional Deontology states that the physician’s obligation to keep professional secrecy is also opposableagainst the members of the family of that person concerned and such an obligation to preserve the professional secrecy persists also after the person in question ceased to be a his patient or deceased. Starting from these provisions, it is raised the question of the impossibility to prove a possible malpractice case, in the absence of the access of the patient’s family to medical documents, observation sheets and post-surgery treatment of the patient who deceased in the meantime.
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The documents under private signature are an important category of preconstituted documents, characterized by the lack of formalism and the freedom of the parties to elaborate them. The form of the document under private signature is sometimes imposed by the law for the validity of the legal operation, and sometimes it is established ad probationem. In the cases where the written form is imposed ad validitatem, the legal document will not produce its effects envisaged by the parties upon its conclusion, unless it has been ascertained in writing. On the other hand, the non-compliance with the form of ad probationem generally brings about the impossibility of proving the legal act with another means of evidence. The written form may be an authentic document or a document under private signature. Also, the electronic document fulfils the condition of form ad validitatem or, as the case may be, ad probationem, if it was generated according to the provisions of the Law No 455/2001 on electronic signature. In principle, the only requirement for the validity of a document under private signature is the signature of the parties or, in some cases, only the signature of one of them. The signature expresses the will of the parties or, as the case may be, of the party to assume the contents of the document they have signed/he has signed. In the cases expressly provided, the legislator also imposes the fulfilment of some special conditions for the validity of the document under private signature. Thus, in the case of documents under private signature which establish the existence of sinalagmatic conventions, „plurality of copies” is required, and in the case of documents under private signature which establisg unilateral obligations (which have as object the payment of a sum of money or a quantity of fungible goods) it is required the formality or mention „good and approved for...”. The content of the document under private signature can be reproduced on any material support (paper, cloth, wood, metal, glass, CD, stick, etc.), in any form (handwritten, typed, printed, lithographed, electronic), in Romanian or in any other language or in a conventional language of the parties. Instead, the signature must be written by hand by the party or parties, not being allowed the typing, lithography or printing, or the replacement by a seal or by fingerprint. By way of exception to this rule, the legislator recognizes the validity of the electronic signature reproduced under the terms of the Law No 455/2001.
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Information technology changed the way we relate to information as any data posted on the Internet can remain accessible indefinitely. On the one hand this ease of access undoubtedly was beneficial for the freedom of expression and information, but on the other hand the fundamental right to privacy of natural persons seems under threat in the absence of an adequate legal mechanism that would ensure that their past will not haunt them ad vitam aeternam. Last year, the French Council of State has requested the European Court of Justice (ECJ) for a preliminary ruling on the territorial scope of the right to be digitally forgotten. Although, since the Google Spain case, EU citizens enjoy an online right to be forgotten, its territorial application is yet to be determined. As such, this paper discusses the Opinion of the Advocate General in the Google Case (C-507/17), opinion which could offer a glimpse into the future ruling of the ECJ on this matter. In our analysis, we will also show the reasons why the ECJ’s decision is only a step in defining the right to digital oblivion, not at all an end point.
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Faptul că autoturismul în litigiu a făcut obiectul mai multor vânzări succesive și s-a constatat că a fost furat, deschizându-se un proces penal împotriva autorului furtului, nu înseamnă că reclamanta își putea recupera prejudiciul constând în plata prețului plătit. În ceea ce o privește pe reclamantă, prin Ordonanța din data de 20 ianuarie 2015 a Parchetului de pe lângă Judecătoria Galați s-a dispus clasarea cauzei, reținându-se în motivare faptul că nu au fost identificate indicii care să conducă la concluzia că reclamanta ar fi cunoscut faptul că bunul era furat. Tot în procesul penal, prin Ordonanța din 27 august 2014 a Parchetului de pe lângă Judecătoria Galați s-a dispus restituirea autoturismului către proprietar, astfel că reclamanta, care devenise proprietara autoturismului în baza contractului de vânzare-cumpărare încheiat cu pârâtul, l-a predat organelor de cercetare penală, care în baza procesului-verbal din 16 septembrie 2014 l-au restituit proprietarului. În aceste condiții, în mod corect prima instanță a statuat că temeiul obligației a cărei executare este urmărită este contractual, iar, potrivit dispoziției art. 1695 alin. (1) C.civ., vânzătorul este de drept obligat să îl garanteze pe cumpărător împotriva evicțiunii. (Tribunalul Galați, Decizia civilă nr. 131 din 1 februarie 2018, definitivă)1 -
The study is considered to be a valuable examination from a theoretical perspective of recent judicial practice, an examination which often shows argumented critical accents, all relating to the offence newly introduced in the Criminal Code in force since 1 February 2014, respectively the violation of the professional headquarters. One by one, illustrating concrete cases from the practice of the Romanian courts, there are identified difficulties arising from the interpretation and application of the norm of incrimination included in Article 225 of the Criminal Code. Such elements are the following: the notion of „headquarters”, the correct identification of the injured person or the adequate identification of the social value protected by the norm of incrimination. The study is valuable in that it argues the opinions expressed by consistently invoking some aspects included in the preambles of some decisions of the European Court of Human Rights.
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The study analyzes the opinion on the repeal of the filter procedure when the review in the civil trial is within the competence of the High Court of Cassation and Justice. The author presents the analysis of the manner the filter procedure was regulated by the Law No 134/2010, the Civil Procedure Code and the arguments for which it considers that the repeal of this procedure is not justified. The result of the study is reflected in the opinion according to which the filtering procedure had to be maintained, for the settlement of the reviews in the civil trial, by the supreme court. The filter procedure was first introduced in the civil processual legislation by the Government Emergency Ordinance No 58/2003. Those provisions introduced a new procedure of settlement of the review, irrespective of the court which settled the review, that of the admissibility in principle of the review, prior to the actual settlement of the application for review, which carried out the preliminary examination of the application for review. By the Law No 134/2010 the filter procedure has been regulated only in case the review was settled by the High Court of Cassation and Justice. By the Law No 310/2018, amending and supplementing the Civil Procedure Code, the filtering procedure has been repealed although, in the initial form, it was proposed to put the text of Article 493 of the Civil Procedure Code in agreement with the provisions of the Decision of the Constitutional Court No 839/2015, which has declared unconstitutional the phrase „or that the review is manifestly unfounded”. In this respect, the text of Article 493 (5) of the Civil Procedure Code should have been as follows: „In case the panel unanimously agrees that the review does not meet the formal requirements, that the grounds invoked and their development do not fall within those provided by Article 488, it shall cancel the review by a reasoned decision, pronounced without the summoning of the parties, which is not subject to any means of appeal. The decision shall be communicated to the parties”. Maintaining the filter procedure, in our opinion, contributes to decongesting of the supreme court to settle the reviews that do not meet the conditions for exercising this extraordinary means of appeal.
