Puțini sunt termenii din vocabularul științelor politice care să fi primit atât de multe definiții și caracterizări, de-a lungul timpului, cum este democrația. Fragmentul din Declarația Universală a Democrației pe care vi-l propun reflecției surprinde două aspecte ale termenului de democrație: unul instituțional, raportat la constituirea prin proceduri electorale democratice a instituțiilor reprezentative ale unui stat, la nivel național și local, și altul funcțional, raportat la puterea reală a poporului și mijloacele eficiente de care acesta poate dispune pentru a contribui, desigur, prin reprezentare, la activitatea legislativă și de control asupra acțiunilor Guvernului. Dacă primul aspect este relativ ușor de realizat, deși cunoașteți dovedite fraude electorale la nivel central și local, cel de-al doilea merită o atenție mai specială, întrucât nu cred că există un cetățean-alegător, grupuri de cetățeni-alegători, care să fie pe deplin convinși că sunt reprezentați, în mod real, în activitatea legislativă și, mai ales, în exercitarea funcției Parlamentului de control parlamentar.

The study brings to attention the distinction, but also the relation between the operation of trust and the contract of trust, as a means of achieving an autonomous patrimonial property with character of destination. After analyzing the substantive, form, content and registration requirements of the contract, as well as the opposability of the assets in the trust property, the study focuses on the significance of the acceptance of the contract of trust by its beneficiary, as well as the acceptance mechanism, when one of the contracting parties is beneficiary. In the analysis of the prerogatives of the trustee’s property right as an effect of the contract, it is emphasized that this right is limited by the achievement of the purpose of the trust, found in the contract clauses and the duration of the contract, after which the trust property is subject to retrocession. The study tends to mark the distinction between the mandatary, term used or suggested by the regulation, and the position of the trustee in the configuration of the contract of trust, given that it concludes legal acts in the interest of the beneficiary and with an impact on the trust property. In regard to the trustee’s obligation to return the trust property at the expiration of the term or the achievement of the purpose of the trust, it is analyzed the distinction between this legal obligation of the trustee and the sale contract with repurchase agreement. The study also focuses on the acts of disposition that the trustee can make on the basis of a proxy, in the process of exploiting the trust property, stating that this right can be exercised only on the components of this property, individually or as a whole, and not on the trust property, which must remain intact, as a fraction of a universality.

Recognizing the climate emergency, and officially assuming the objectives of limiting the temperature growth up to 2 ° C and carbon neutrality work as an impulse for the establishing the constitutional basis of an adequate juridical and political reaction and for the institutionalizing the State’s and public authorities’ obligation to act against climate change. The presen ce of express referrals to climate in 10 fundamental laws and the ongoing initiatives for their modification and update in the sense of „climatizing” the pertinent provisions, reflect a vigorous process of constitutionalizing of the eco-climatic issues. Until then, assimilating climate to the enveloping concept of environment allows the extensive interpretation of existing dispositions, but the consolidation of the trend and the expression of the demands of the environmental transition impose inserting express constitutional provisions, well-articulated to the juridical and constitutional system as a whole. In this context, a special part is to be played by case law that by creative interpretation of existing text, supplies the directly regulated means of expression and suggest its apparition and its meanings. Regarding the Constitution of Romania, by interpreting the existent provisions (Article 35 which recognizes the right to a healthy and ecologically balanced environment, Article 44 (7), and Article 135 (2) E and F), one can apprehend the general duty of any person, of the State, and of the public authorities, to protect and improve the environment, including climatically, the principle of non-regression and of constant progress in the field. The case law of the Constitutional Court of Romania, as well as the ECHR, is predisposed to „acclimatizing” developments, even if, for the time being, it has not had the chance to manifest itself notably in this direction. Under the impulse of international developments and of the strategic EU context (the Green Deal, the Climate Pact), more and more propositions come to life, in the sense of inscribing climate within the contents of the fundamental law.

Guilt is that psychic attitude of the active subject, who – voluntarily committing an act provided by the criminal law, anti-juridical and imputable – is aware of the objective circumstances in which he externalizes his conduct or, although he does not have this conscience, should and could have it. Guilt is separate from the foresight of the criminal law and covers the subjective elements of the content of the crime. The structure of guilt includes two psychic processes, which are called factors thereof. The first is conscience or the intellective factor, and the second is the will or the volitional factor. The conscience deliberates on the deed and decides whether it will be committed. The will mobilizes the energy necessary for the implementation of the decision taken. The forms and modalities of guilt are defined by relating the conscience and the will to the objective circumstances. Intellectively, what relates to objective circumstances is the presence or absence of conscience. Volitionally, what relates to objective circumstances is the content of the will. Conscience can be present and objective circumstances can be represented correctly, when there is intent, direct or indirect. Conscience may be present, but objective circumstances may be misrepresented when there is premeditated guilt. Conscience may be absent when – in the presence of the obligation and of the possibility of predicting objective circumstances – there is guilt without foresight. Direct intent, indirect intent, and premeditated guilt are defined by the foresight of the objective circumstances. The direct intent is defined by pursuing the result, the indirect intent is defined by accepting the result, and the guilt with foresight is defined by rejecting the result. Guilt without foresight is defined by the failure to foresee the objective circumstances and by the obligation and the possibility to foresee them. The classification of the intent in direct and indirect is made according to the way of reporting the will to the result of the crime. The intent is direct, if the active subject pursues the result of the crime. According to the way in which the active subject prefigures the result of the crime, the direct intent has two degrees of intensity. Each degree in its turn has two stages. The active subject prefigures the result of the crime as an end in itself (the first stage of the first degree), as a necessary means to achieve another goal (the second stage of the first degree) or as an inevitable consequence (the first stage of the second degree) or very probable (the second stage of the second degree) of the manner in which the commission of the crime is conceived. The intent is indirect, if the active subject accepts the result of the crime. In case of indirect intent, two results are discussed. Indifference to the second result (which is illegal, provided by criminal law) is the essence of indirect intent. The classification of the intent into simple and qualified is made according to the existence of a special purpose or motive, expressly provided in the incrimination norm. The intent is simple, if the active subject commits the crime without pursuing a certain purpose and without being pushed by a certain motive, expressly provided in the incrimination norm. The intent is qualified, if the active subject commits the crime pursuing a certain purpose or being pushed by a certain motive, expressly provided in the incrimination norm. The qualified intent is direct when the characteristics of qualified intent and those of direct intent intertwine. The qualified intent can also be indirect, when the characteristics of the qualified intent dissociate from the characteristics of the direct intent. The qualified intent is direct, if: a certain circumstance is foreseen in the content of the crime both as a result and as a purpose or as a motive; a certain circumstance is provided in the content of the crime as a result and is prefigured by the active subject as a necessary means to achieve the special purpose or to satisfy the special motive or as an inevitable or very probable consequence of achieving the special purpose or satisfying the special motive. The qualified intent may also be indirect, if a certain circumstance is provided in the content of the crime as a result and another circumstance, different from the first, is provided as a special purpose or as a special motive and the result is not prefigured by the active subject neither for the achieving of the special purpose or for the satisfaction of the special motive, nor as an inevitable or very probable consequence of the achievement of the special purpose or of the satisfaction of the special motive. The classification of the intent into premeditated and spontaneous is made according to the mental state that the active subject has at the moment of making the decision to commit the crime, as well as the length of time between the time of making this decision and the time of its execution. The intent is premeditated, if the active subject decides to commit the crime in a state of calm and if from the moment of making the decision to commit the crime until the moment of its execution a longer time interval passes. There are two theories regarding premeditation: one objective and the other one subjective. In the objective theory it is considered that premeditation requires preparatory acts, that it is compatible with the provocation and that it is a personal circumstance, which is objectified in the content of the crime and produces the effects of a real circumstance. In the subjective theory, to which I adhere, premeditation does not require preparatory acts, is incompatible with the provocation and is a personal circumstance, which does not affect the participants. The intent is spontaneous, if the active subject decides to commit the crime in a state of over-excitement and if from the moment of making the decision to commit the crime until the moment of its execution, passes a time interval as short as possible. The intent is pure and simple, if it does not meet either the conditions of the premeditated intent, or the conditions of the spontaneous intent. The classifications of the intent highlight certain levels of danger of the active subject, which are investigated on the occasion of the individualization of the punishment. The different stages of danger of the active subject, detached from the different degrees and stages of intensity of the direct intent, impose different solutions with reference to the judicial individualization of the punishment. The danger stage of the active subject related to the indirect intent is lower than the one related to the direct intent. Qualified intent imprints a degree of danger, as a rule, greater or, exceptionally, lower of the active subject. The special purpose or motive enters into the content of the crime as a constitutive element or as an aggravating circumstantial element, as a rule, or as an attenuating circumstantial element, by exception. The premeditated intent is capitalized as an aggravating circumstantial element (in the content of the qualified murder), a general legal aggravating circumstance (pre-ordered intoxication) or an aggravating criterion of judicial individualization of the punishment. Spontaneous intent is capitalized as a legal, general (provocative) or special (killing or injuring the newborn by the mother) mitigating circumstance. Pure and simple intent is neutral from the point of view of judicial individualization.

Cauzele conexate nr. 26581/17 și nr. 31024/17, Oddone și Pecci c. San Marino. Hotărârea din data de 17 octombrie 2019

Reclamanții nu pot solicita în temeiul răspunderii civile delictuale daune de la un terț pentru degradări aduse imobilului în condițiile în care au cumpărat imobilul în anul 2018 prin contract de vânzare-cumpărare în formă autentică și puteau invoca răspunderea civilă contractuală pentru vicii sau pentru evicțiune. Acțiunea în răspundere civilă delictuală este o acțiune personală care aparține proprietarului imobilului de la momentul producerii faptei ilicite și potrivit art. 1707 alin. (4) C.civ. reclamanții nu au dreptul să se plângă privitor la starea construcțiilor dobândite, deoarece lucrul dobândit are exact calitățile pe care le așteptau de la el. În categoria drepturilor accesorii se pot include drepturi reale (opozabile erga omnes), cum este, spre exemplu, dreptul de servitute, care se transmite automat odată cu înstrăinarea fondului (dominant sau aservit). În ceea ce privește eventualele drepturi personale consimțite de vânzător, ca regulă generală, acestea nu se transmit la cumpărător, care este un având cauză cu titlu particular. (Curtea de Apel Craiova, Secția I civilă, Decizia nr. 223 din 16 martie 2021,www.portaljust.ro)

The behaviour of a free and conscious man is the result of his will, which is guided by a reasonable intentionality that gives it meaning. In the absence of a purpose, any action becomes chaotic, accidental and raises questions about the mental health of the person who takes action 1 . We find that the fourth essential condition, a substantive one, necessary for the valid existence of the sales contract is the cause. According to the rules of common law, in matters of legal acts, the cause is the determining reason for the consent expr essed when concluding the legal act. The obligation without cause or with an illicit or false cause cannot have any effect.

According to Article 19 of the Government Emergency Ordinance No 20/2021, the doctors, regardless of specialty, acquire or lose by a Government decision which declares or terminates the state of alert, without any training, evaluation or sanction, a special professional competence to treat persons infected with SARS-CoV-2 coronavirus, for which they would not be liable with their patrimony if they complied with the guides and protocols approved by the order of the Minister of Health. The regulation represents a violation of Article 34 (3) of the Romanian Constitution, generating an uncertainty regarding the existence and extent of the doctors’ rights and violating the fundamental right to the protection of citizens’ health. First, the criteria for exercising the medical profession (acquisition and loss of a professional competence) are delegated by emergency ordinance by the exceptional legislator (the Government) to the executive (the Government), in order to be established by a legal act with inferior force than the law, in violation of Article 1 (4) and (5) of the Constitution. Secondly, the fundamental rights to Life, provided by Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and, respectively, to Health care, regulated by Article 34 of the Constitution, guaranteed by the control of the medical profession (embodied in legal provisions imposing some strict conditions for acquiring professional competence and liability for the medical act), are eluded by the permission granted to non-specialists to intervene, apparently without liability, on the human body.

The problems of the land fund became of maximum importance after 1990. Romania, in relation to the new realities regarding the property, had to urgently adopt the Law No 18/1991. After more than 30 years of application, the Law on the land fund still gives rise to discussions on the topic of sharing the competence of the courts in matters of administrative acts issued in its application. The general framework in the matter of restitutions was completed by the appearance of the Law No 10/2001. Subsequently, the entry into force of the Law No 554/2004 has definitively established the legal regime of administrative acts in general. Therefore, we are at the confluence of several framework-laws in the field regarding the regime of administrative disputes, in general, and of the matter of the land fund, in particular. This study seeks to provide precisely an approach as analytical as possible of the manner the courts of law settle this issue.

There are situations in which the judicial bodies need the opinion of an expert to ascertain, clarify or evaluate certain facts or circumstances that are important for finding out the truth. Forensic expertises have a special regime in relation to other types of expertises, which can be performed only in sanitary institutions of forensic medicine, subordinated to the Ministry of Health. The supreme scientific authority in the field of forensic medicine is the Superior Forensic Commission, which operates under the Institute of Forensic Medicine „Mina Minovici” Bucharest. This article aims to clarify the probative value, in a criminal trial, of the advisory opinions issued by this supreme authority, because there have been and are situations, in the judicial practice, in which there has been given superior probative value to this advisory opinion, as well as situations in which its conclusions were removed with reasons.

The article presents the considerations of the Decision No 250/2019 of the Constitutional Court of Romania and the practice of the European Court of Human Rights regarding the change of the legal framework during the trial, concluding that it is ordered by a conclusion prior to the settlement on the merits. Likewise, there are presented arguments that justify the mandatory preparation of the minute in case of change of legal framework, the motivation of the conclusion and its communication. There are examined, from the perspective of the change of the legal framework, the amendments and supplements to the Criminal Procedure Code ordered by the Law No 130/2021, which bring specifications in agreement to the case law of the Constitutional Court of Romania and of the European Court of Human Rights.

The object of the paper are the standards which, according to the European Court of Human Rights, must be met by the procedure of hearing witnesses so that the defendant be given an adequate and proper opportunity to question them and the requirements of the fair trial be satisfied. Those standards include a relative right of the accused to confront the prosecution witnesses, the right to legal assistance and the principle of immediacy of witness examination. The latter principle has certain implications regarding the requirement that witnesses should give evidence at trial and that the hearing of witnesses should be repeated in the appeal proceedings and in other situations in which new judges are appointed during trial. It is applicable, pace the Constitutional Court, in the procedure concerning the confirmation of the prosecutor’s decision to discontinue the proceedings. All along the study we follow the way in which the European Court of Human Rights uses the method of combination of criteria to evaluate the interferences with the rights of the accused.

The study examines the possibility of bringing into a limited liability company as a social contribution a good subject to a conventional right of pre-emption. The right of pre-emption is linked – by its nature, as well as by the regulation of the Civil Code – to the contract of sale and gives a preference – at an equal price – to a certain buyer, designated by law or by contract. Failure to comply with the pre-emption cancels the contract made with the third party and the pre-emptor becomes the acquirer if he makes the price available to the seller. The bona fide third party is guaranteed for eviction by the seller. The contribution in a limited liability company does not make a sale although it produces a transfer of ownership from the contributing partner to the company, because the partner does not receive a price but a participation in the company where the contribution is made. Therefore, the contribution of a good affected by a right of pre-emption cannot be refused to the receiving company by the Trade Register Office, on the ground that against it (the company) – acquiring third party – a preference for acquisition can be invoked by the conventional pre-emptor; this, even when the right of pre-emption is accepted against an offer of alienation.

The current Civil Procedure Code clarifies some doctrinal controversies and controversies of the arbitral case law and transposes on legislative level some solutions of the arbitral practice, meant to make the arbitral jurisdiction more efficient. Among these aspects of making it more efficient, the study mentions those related to the extension of the competence of arbitration and the autonomy of will of the parties in organizing and conducting the arbitral procedure, likely to increase the access to this private jurisdiction, as an alternative to the state jurisdiction. Another dimension of the current regulation is related to the ways of materializing the arbitral convention and of the presumption of arbitrariness of the disputes regarding all misunderstandings arising from the contract or from the legal relations to which the agreement refers. The current regulation is concerned with the quality of the jurisdictional act which it connects to the qualification of the members of the arbitration tribunal, to their impartiality, by extending the causes of incompatibility as compared to those of judges and by guaranteeing the right to defence, by representing or assisting the parties by a lawyer. The autonomy of will, which impregnates the arbitral procedure, is associated with the principles of the civil trial, extended by the current regulation to the arbitral procedure, in order to increase the procedural guarantees offered by this private jurisdiction. An innovative solution is related to the participation of third parties in the arbitral procedure, under the terms of maintaining the composition of the arbitral tribunal, in order to ensure the complete and global settlement of the dispute. Another novelty of the current regulation is related to the material competence of the courts of appeal in resolving the action for annulment and the solutions that can be pronounced in case of admitting the action for annulment. Last but not least, the regulation makes the distinction between the procedure of the institutionalized and ad-hoc arbitration, in the context of the autonomy of will of the parties.

In the present study we will make some critical comments on two judicial decisions – a decision of the Romanian Constitutional Court and a decision of the Court of Justice of the European Union – with impact on a problem of high importance for Romania: the nature, the character and the legal force of the Decision 928/2006 of the European Commission (which institutes the Cooperation and Verification Mechanism) and of the recommendations of the Commission included in the reports issued within the above-mentioned mechanism, the compatibility with the Union law of the legal provisions concerning the Section for the investigation of the offences committed within the judicial system. The decision of the Court of Justice was given prior to that of the Constitutional Court, within the procedure of the preliminary ruling unleashed before more Romanian administrative jurisdictions, and the control of the Constitutional Court was unleashed with the aim at establishing the unconstitutionality of the legal provision concerning the above-mentioned section. Although the Constitutional Court knew about the decision of the Court of Justice, which ruled that, if the law is found by the national jurisdictions to be incompatible with the Union law, it must be set aside in the respective litigations, by virtue of the (total) supremacy of the Union law, the constitutional jurisdiction declared the constitutionality of the law and, more than that, stated that the ordinary jurisdictions are not permitted to set aside the law, because the supremacy of the Constitution is not questioned by the adherence to the Union and by the Union law, the latter being superior only to the infraconstitutional laws. So, the point is: of the two decisions, which one must the jurisdictions apply? Which one is superior to another?

In this paper, the author analyzes the functional competence of the hierarchically superior prosecutor to carry out criminal prosecution acts in criminal files investigated by the criminal investigation bodies whose supervision is exercised by the prosecutor within the prosecutor’s office. For this purpose, a first starting point is the Criminal Procedure Code, which regulates the judicial function of criminal prosecution in criminal trial, respectively the competence of the prosecutor in performing this function, but references are also made to the Internal Regulation of the prosecutor’s offices of 14 November 2019, to the case law of the Constitutional Court of Romania in the matter, but also to the principle of the hierarchical control that governs the activity within the Public Ministry, principle with constitutional rank, regulated by the provisions of Articles 131–132 of the Constitution. The conclusion reached after presenting a pertinent argumentation is that the hierarchically superior prosecutor does not have the functional competence to lead and supervise the activity of the criminal investigation bodies, which is carried out within the criminal files assigned to the subordinated prosecutors, considering his quality of chief prosecutor.

The present study aims to present to the general public information about the reform process of the European Court of Human Rights, in general, and about the entry into force of Protocol No 15 to the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular. Given the very large number of applications submitted for settlement to the Strasbourg Court, over time an attempt has been made to outline a process of reform of this international jurisdiction, including short, medium and long-term measures. Thus, although opened for signature by the High Contracting Parties on 24 June 2013, Protocol No 15 entered into force recently, on 1 August 2021,following the deposit by Italy of the instrument of ratification of the Protocol. We intend to analyze in this study what are the important amendments brought to the Convention by this protocol of amendment, meant to ensure the effectiveness of the European Court of Human Rights. We consider that the dissemination of the provisions of Protocol No 15 to the Convention will help the interested parties to become aware of the latest amendments to the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular to the provisions regarding the reduction of the time limit for bringing the matter before the Court.

Cauza nr. 2205/16, Keskin c. Olandei. Hotărârea din data de 19 ianuarie 2021 Cauza privește imposibilitatea reclamantului de a interoga, în calitate de acuzat într-un dosar privind infracțiunea de înșelăciune, martorii ale căror declarații, consemnate într-un raport al poliției, au fost utilizate ca probe pentru condamnarea sa.