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Active procedural quality and interest are essential conditions for promoting any action in court. The verification of the two conditions must be carried out from the outset, firstly, by the person or persons initiating an action in court and, secondly, by the court which is invested with resolving the action. The lack of one of the two conditions paralyzes the resolution of the action on the merits and attracts the rejection of the action, either as being introduced by a person lacking procedural quality, or as being without interest. It is not often that in the defenses formulated by the defendant the exception of the lack of active procedural capacity and the exception of the lack of interest are invoked at the same time. Concomitant invocation is often natural, as procedural quality and interest are two elements which, although not confusing, often justify each other. However, I have encountered in practice multiple situations in which the active procedural capacity has been justified by the applicant’s/applicants’ interest in promoting the action. On the other hand, there may be situations, less common in practice, in which the interest is justified by the procedural quality. Here that the two basic elements of any action or lawsuit are often indissoluble, and their concomitant treatment appears natural. That is why I considered it opportune to carry out a brief study on how the interest justifies the active procedural quality, with references to certain solutions encountered in judicial practice or to solutions that had as inspiration the invocation of exceptions, thus trying to argue which, on the one hand, the two exceptions are invoked together, most of the time and, on the other hand, why, in a particular way, the interest justifies the procedural quality. At the same time, the study includes a comparison between the situations in which the interest is analyzed as an exception and the situations in which the interest must be analyzed on the merits. -
As by Article 24 of the Law No 140/2022 the legislator imposed on the National Authority for the Protection of the Rights of Persons with Disabilities and the Superior Council of the Magistracy obligations aimed at assessing the impact of this normative act, accompanied by possible proposals for its improvement, it is obvious that the legislator itself did not exclude that his legislative work does not constitute the masterpiece in the field. In this context, the present approach is intended to continue to emphasize, by the doctrine, some shortcomings of the Law No 140/2022 and to already propose a genuine reform in the matter. In the spirit of respecting the right to dignity of the persons with severe intellectual and psychosocial disabilities, a right that requires that a person who has acquired by law a full capacity of exercise should not be subjected to the degrading treatment of losing, totally or partially, this capacity, in the following we propose to be introduced, in the matter of capacity of exercise, the institutions of assisted capacity of exercise and of supervised capacity of exercise. Consequently, it required either the replacement of the institution of guardianship with the existing one, that of the personal assistant, as the case may be, of the professional personal assistant, or a specialization in the matter of guardianship, for such persons, of the sort of administrative guardianship.
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The issue of the content of the crime is treated through the prism of two criminal legislations and doctrines - of Romania and of the Republic of Moldova in the present study. The objective pursued by the authors is the substantiation of the perspective of a unique concept of approaching crime as a basic institution of criminal law in the Romanian space. The criminal legislation of the Soviet Union had an excessive impact on the evolution of the criminal legislation of the Republic of Moldova. Even today, some Moldovan criminal law institutions, including crime law, are approached from the perspective of concepts and perceptions that characterized the Soviet doctrinal system. As a result of this research, the authors, using mainly the comparative method of studying law, have argued the theoretical foundations that may constitute the basis for the approximation of the above-mentioned doctrines in addressing the content of the crime. However, the good knowledge of the issue of the legal content of the crime allows the description of the crimes by the strict observance of the quality standards of the criminal law, thus ensuring the principle of legality of the incrimination.
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At this moment, the question of the application of the more favorable criminal law, as compared to the previous Criminal Code, of the existence of the transitional situations, of the comparative analysis of the criminalization norms of the current Criminal Code and of the provisions of the previous Criminal Code is less and less raised, but not all decisions pronounced by the High Court of Cassation and Justice in appeal in the interest of the law before 1 February 2014 have lost their applicability, as the opinions expressed in the specialised literature, regarding the different criminalization norms, in their evolution over time, are still of interest, both from a theoretical and a practical point of view. Although it entered into force relatively recently, the Criminal Code has undergone a series of changes, in its content, especially in the special part, either by criminalizing new acts, or by increasing the special punishment limits, or by introducing new aggravated variants of the already existing crimes. Considering the multitude of normative acts by which the provisions of the special part were amended and supplemented, we consider it necessary to analyze the way of drafting the various norms, having as a reference point also the various opinions from the recent specialized literature, with regard thereto.
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In this study the author analyzes the victim’s obligation to minimize the damage in the context of a hypothesis of tort civil liability. In this sense, after a short introductory part intended to set the framework of the analysis, the author proposes to identify what would be the normative provisions from which the victim’s obligation to minimize the damage would derive, emphasizing the fact that, despite the lack of a clear and unequivocal rule in this sense, the existence of the obligation still derives from a whole series of legal provisions. The particularities of the obligation to minimize the damage are further addressed, its general legal regime being decrypted, with emphasis on those aspects that distinguish and individualize it in relation to other legal institutions, but also its mode of operation. Likewise, the author aims to identify the legal nature of the obligation to minimize the damage, underlining the limits of the theses advanced so far and showing why the obligation is a sui generis one. Further on, there are emphasized the consequences produced by the obligation to minimize the damage, whether respected by the victim or not, and in the end there are presented brief considerations referring to his procedural regime. -
As a result of the increase in the number of attacks of the specimens of wild game species listed in the Annexes №. 1 and 2 of the Law №. 407/2006 on hunting and wild game protection, with subsequent amendments and completions, resulting in injury or death of an individual, given that wild game specimens are managed under the special law, the Romanian legislator was obliged to regulate liability for damages thus caused, responsibility that lies with the central public authorities responsible for hunting and/or the central public authorities responsible for the environment. Our research addresses this form of liability as a novelty in the landscape of Romanian law, with all the range of effects it generates, in the sense of highlighting its special character in relation to the common law regulation of tortious liability of objective type, in terms of calculation of the material and moral component of the damage created as a result of the attack produced by a specimen of the wildlife species on a human, an attack capable of causing injury or even death of the victim. We critically analyzed the text of Article 131 of Law №. 407/2006, with subsequent amendments and completions, considering, as a final conclusion of the study, that it is necessary to reform it as a matter of urgency, all the more so as there are serious doubts about the content of the regulation regarding the observance of the principle of constitutional rank of non-discrimination, as well as its concordance with the values of the ECHR, even in the context in which the state, as a subject of law, has been recognized the possibility of capping different types of compensation.
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In this study, the author, emphasizing the difficulties encountered by judicial practice in the use, interpretation and application of law enforcement, clarification and completion of judgments, wishes to clarify these procedures, proposing some legislative changes to ensure clarity of incident rules. Thus, situations are presented in which, by means of a request for correction, misjudgments have been corrected, or both requests for clarification of the decision and a title appeal have been formulated, as well as doctrinal controversies regarding the right of option of the party between the procedure for completing the decision and the appeal for review.
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We are researching the mechanism of proof necessary for the application of the sanction of the automatic exclusion of statements obtained through torture or other ill -treatment contrary to Article 3 of the Convention. The topic has not yet been addressed in Romanian law, although it is of indisputable importance for the practical application of the sanction. Proof to a high standard of ill-treatment is essential to the normative force of the sanction. The difficulty of proving ill-treatment is the main impediment to its application in judicial practice. The resulting problem is solved by the European Court of Human Rights through a mechanism of proof that manages the legal consequences of uncertainty and does not lose sight of the requirement to find out the truth. This mechanism has three main components: The first is the requirement of an arguable claim about the ill-treatment, which is similar to the formal burden of proof (the burden of adducing evidence) in common law, with the difference that it is not imposed on a particular party, but is met if information about ill-treatment comes to the attention of the authorities in any way. The second is the obligation to effectively investigate this claim. The third is the substantial burden of proof or persuasive burden, which must be met to a certain standard of proof. Ill treatment must be proven by the party alleging it to the standard of proof beyond a reasonable doubt, but this standard can be met by corroborated presumptions. We present some typical presumptions applicable in situations frequently encountered in practice. Under Article 6 of the European Convention on Human Rights, the requirements of the fair trial may justify derogations from these general principles. For the automatic exclusion of statements, two cumulative conditions must be verified: the lack of an effective investigation and the real risk of ill-treatment.
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After the entry into force of Article 1541 of the Civil Procedure Code, the judgments will have a different communication regime as compared to the other procedural documents. More precisely, if the party indicates the appropriate data in order to communicate the procedural documents by e-mail, the court will have the obligation to communicate the judgment to the party by e-mail, in accordance with the provisions of Article 1541 (1) of the Civil Procedure Code, however, it will not be obliged to communicate the summons or the other procedural documents to the respective party by e-mail, since with regard to these procedural documents remain applicable the provisions of Article 154 (6) of the Civil Procedure Code, which regulates only the possibility of the court to communicate these procedural documents by e-mail, and not the obligation of the court to proceed in this way. Therefore, we note the existence of an asymmetry, with regard to the communication regime, between the judgment and the other procedural documents, which is why we believe that the legislator should intervene in order to standardize the communication regime of all procedural documents, there being no reason why the respective communication of procedural documents should be carried out differently.
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This paper is the first part of a more extensive commentary on Article 5 of the European Convention on Human Rights, which will be entirely published in three consecutive issues of this law journal. The present work assesses the general features of the right to liberty and security as they emerge from the relevant case-law of the European Court on Human Rights. On this occasion, it underlines the purpose of this right, namely the protection of the individual from arbitrariness, and it analyses the general conditions for deprivation of liberty. It also goes on to evaluate the first two such situations of authorised deprivation of liberty enshrined in Article 5 § 1 a) and b) of the Convention.
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Pre-trial detention was defined as the most intrusive custodial preventive measure in the exercise of the person’s right to freedom, by which the judge or the court orders the detention of the defendant for the duration and under the specific conditions provided by law, in places specially intended for this purpose, in the interest of the criminal prosecution, the preliminary chamber procedure or the trial. In order to take pre-trial detention, it is necessary to meet all the general conditions provided by law for taking preventive measures, as well as the existence of at least one of the prev. of Article 223 of the Civil Procedure Code. In practice, in almost all cases, preventive arrest is based on the provisions of Article 223 (2) of the Civil Procedure Code. Under these conditions, we tried to create both a general presentation of these grounds and a theoretical analysis of the main issues that can generate confusion and problems in the application of the cases provided for by Article 223 (1) of the Civil Procedure Code. All this theoretical analysis has, as far as possible, been examined in conjunction with solutions from judicial practice, where appropriate.
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