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By the present study the author analyzes in a critical manner the modality of regulation of the mechanism of the compensatory review introduced by the provisions of the Law No 169/2017, which has amended the Law No 254/2013 on the execution of custodial sentences and of measures involving deprivation of liberty ordered by the judicial bodies during criminal trial. In this respect there are examined the case law of the European Court of Human Rights in the matter of the accommodation of detained persons and the premises that were the basis for the adoption of this regulation. Thus, it is noted that the legislator has set a higher standard than the one imposed by the European Court of Human Rights, which has ruled that, under certain conditions (the presence of ventilation, lighting and privacy, etc.), the accommodation in a detention space that ensures an area of between three and four square meters for each detainee is in accordance with Article 3 of the European Convention on human rights and fundamental freedoms. In addition, it is shown that the legislator did not insert in the national law the whole legal mechanism emphasized in the case law of the European Court of Human Rights, where a preventive means of appeal has been introduced, allowing the detained persons to file complaints to a judicial authority with regard to the material conditions of detention, as well as a compensatory means of appeal, which provides a reparation for the persons who have already been through a detention contrary to the Convention. Likewise, the author analyzes in a theoretical, but mostly practical manner, the modality to apply the compensatory review mechanism depending on the processual phase in which it is analysed its incidence, as well as the effects produced at the level of the institutions of substantive criminal law, making reference to the binding decisions pronounced by the High Court of Cassation and Justice and to the national case law. -
Potrivit art. 342 alin. (6) C.pen., constituie infracțiune și se pedepsește cu închisoare de la 6 luni la 3 ani nedepunerea armei și a muniției la un armurier autorizat în termen de 10 zile de la expirarea perioadei de valabilitate a permisului de armă. Totodată, conform art. 112 alin. (1) lit. f) C.pen., bunurile a căror deținere este interzisă de legea penală sunt supuse confiscării speciale (cu notă parțial aprobativă). În cazul faptei prevăzute în art. 342 alin. (6) C.pen., cu privire la care s-a dispus o soluție de clasare întemeiată pe dispozițiile art. 16 alin. (1) lit. b) teza a II-a C.pr.pen., arma și muniția intră sub incidența confiscării speciale, în temeiul art. 112 alin. (1) lit. f) C.pen., în procedura reglementată de art. 5491 C.pr.pen., în ipoteza în care făptuitorul nu a depus arma și muniția la un armurier autorizat în termen de 10 zile de la expirarea perioadei de valabilitate a permisului de armă. (Înalta Curte de Casație și Justiție, Completul competent să judece recursul în interesul legii, Decizia nr. 10/2019).
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Introducing Article 1282 (2) created a new dimension in the new Civil Code as regards the application of the groups of contracts, as well as the transmission of accessories with the main asset on the descending or even ascending line of the contract chain. At the same time, the text of the law is the legal basis for formulating a direct action in guarantee which, as we shall see in the present study, is in some cases complemented by other express texts of law referring to particular cases of transmission of a right to action within the group of contracts. In the present study, we attempted to make a comparative analysis between the assignment of contract and the assignment of ancillary contractual rights or obligations, since, although the two transactions are similar, it also presents many differences that need to be highlighted. At the same time, we made a brief leap in common law, as well as European law on the notion of assignment of contractual accessories. Though, the subject is far from being covered by the present study, we consider that we have reached the main points on what Article 1282 (2) in the new Civil Code establishes, as well as its practical effects, and the comparative perspective with English, Scottish, Spanish, German and, last but not least, European law clarifies or strengthens some aspects as regards the rationale for the introduction of the text.
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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 motivated findings and conclusions of the expert or of the laboratory or specialized institute from which the expertise has been requested will be recorded in a written report. Exceptionally, when the expertise is carried out in front of the body that disposed/ordered its execution, the expertise report may be oral. The form of the expertise report also depends on the nature, as well as the specificity of the problem that generated the expertise. In all cases where the expertise requires time, documentations, travels, researches, analyses, laboratory tests, etc., the expertise report will take the written form. In case the expert can immediately express his opinion on the factual circumstance whose clarification requires specialized knowledge, he will be heard during the meeting, and his opinion will be recorded in a minutes, according to the provisions relative to the recording of the witness statement, which apply accordingly. As such, the expertise report is the document by which the expert informs the court of all the legally collected information which clarify (bring light on) the issues to be examined, being, therefore, the means by which the evidence is presented to the judge. The expert must limit himself to reporting what he has perceived, without expressing his opinion on the consequences of fact and of law that might result. The text of the report will include clear, short and dense phrases and sentences, using accessible vocabulary, without ambiguous formulations or terms and without references to proceedings outside the file. The technical terms, which are difficult to access, will be explained at the bottom of the page or in brackets, in order to facilitate the understanding of the conclusions.
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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 legal liability is one of the main issues regarding the responsibility in administrative law. Therefore, the legal liability is able to exercise influence upon our society to some extent only by identifying the person responsible for ignoring the social values protected by law, in order to establish his/her liability. Let us stress upon the fact that the effectiveness of legal liability may determine, to a greater or a smaller extent, the establishment, re-establishment and even the survival of the rule of law. The society is more likely to take into consideration the legal liability, referring to the social and political background of these days, as well, if the liability is being applied to the civil servant or to an agent of public power, meaning a person who exercises a public function. What about the situation in which the person who is going to be held responsible for breaking the law and, therefore, being held liable for this fact is, directly or indirectly, even the creator of the law, being at the same time both part of the dominant fund and to the serviced/controlled fund? Does the above-mentioned situation supposes an antagonism in declaring responsible precisely the one who created the notion and, therefore, the premise of responsibility or, on the contrary, the antagonism would be precisely the irresponsibility of the entitled one, also, to create the right and to apply it, thus ensuring the protection of values, which establishes the base of its very existence?
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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.
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The paper analyzes the conditions for exercising the revision in the criminal trial, respectively the judgments subject to revision, the category of persons who can exercise it, the time limits of declaration, the form in which the application and its content must be made. The study relates to the case law of the national courts before and after the entry into force of the new Criminal Procedure Code, as well as to the relevant provisions of other European legislations. At the same time, there are considered the provisions of the Draft Law for amending and completing the Criminal Procedure Code adopted in the summer of 2018, respectively PL-x No 373/2018.
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As a rule, in the countries of the European Union, for example in France, Italy, Spain, England, the cancellation of the dismissal does not lead to the reintegration of the employees at work. However, they are entitled to compensation, to damages, etc. established by the judge within the limits provided by law. In our country the situation is different. Regardless of the reason for the dismissal, whether it is related or not to the employee’s person, the court, at his request, shall order, in case of cancellation of the employer’s measure, the reintegration at work, regardless of the fact that position exists or not, the position being abolished, or if the employee has committed serious disciplinary misconducts: he has systematically violated the work obligations, had an unexcused leave of absence for a long period of time, has purloined goods from the patrimony of the employer or caused important damages thereto, etc. There are considerations for which it is required the amendment of Article 80 (2) of the Labour Code, rendering it more flexible, in the sense of taking into account the present realities, the needs of the practice and the real and justified interests of the employers.
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This paper analyzes the principle of mutual recognition as a method of legal integration specific to EU law but also, in the form of Full Faith and Credit and Extradition Clauses, in the U.S. Constitution and law. The article presents a brief historical perspective on this principle, of its roots in Anglo-Saxon law and its direct continuity in U.S. law, but also of taking over, through legal hybridization, in combination with the harmonization method, in EU law. The work analyses: the function of legal integration of the principle, as an essential component of both American federalism and the EU legal order, its fundamental characteristics and its conditions of application and the topic of Interstate Extradition Clause versus European Arrest Warrant. The Articles of Confederation, the U.S. Constitution, federal laws, uniform laws, the case-law of the U.S. Supreme Court and other U.S. courts, altogether with the EU fundamental treaties, the legal acts of the European Union and the jurisprudence of the Court of Justice of European Union were considered. Numerous similarities have emerged from the comparative analysis, but also some differences, coming from the different paradigms of American federalism and, respectively, of the EU legal order.
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Potrivit art. 349 alin. (2) C.pr.pen., instanța poate soluționa cauza numai pe baza probelor administrate în faza urmăririi penale, dacă inculpatul solicită aceasta și recunoaște în totalitate faptele reținute în sarcina sa și dacă instanța apreciază că probele sunt suficiente pentru aflarea adevărului și justa soluționare a cauzei, cu excepția cazului în care acțiunea penală vizează o infracțiune care se pedepsește cu detențiune pe viață. Totodată, conform art. 374 alin. (4) C.pr.pen., în cazurile în care acțiunea penală nu vizează o infracțiune care se pedepsește cu detențiune pe viață, președintele pune în vedere inculpatului că poate solicita ca judecata să aibă loc numai pe baza probelor administrate în cursul urmăririi penale și a înscrisurilor prezentate de părți, dacă recunoaște în totalitate faptele reținute în sarcina sa, aducându-i la cunoștință dispozițiile art. 396 alin. (10).
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In the present study, the author analyses the provisions newly introduced by the Law No 129/2019 in the matter of the real beneficiary in the case of the fiduciary operation regulated by Articles 773–791 of the Civil Code. The provisions regarding the real beneficiary constitute the transposition into national law of two directives, namely Directive (EU) 2015/849 [amended by Directive (EU) 2018/843)], respectively Directive (EU) 2016/2.258. Analysing the versions in several official languages of the European Union (in particular the English and French languages) in comparison with the Romanian version, the author comes to the conclusion of an insufficiently analysed translation and in reference to the applicable legal provisions regarding the Romanian version, which does not sufficiently study the substantial differences between the fiduciary operation and the equivalent of the Anglo-Saxon law, namely the trust. This results in a difference between the English and French versions, respectively the Romanian version.
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The herein study strives to concentrate the main theses developed by the Court of Justice of the European Union regarding the right to paid annual leave. Starting from these premises, it aims to detect the interferences and the effects of European jurisprudence on Romanian national law, with a special view on the practical protection of the right to paid annual leave, in both of its components, the entitlement to annual leave and to a payment on that account. The underlying of the carry-over period’s function represents the basis of the conclusions regarding the necessity for a rigorous distinction between the causes of non-exercise of the right to annual leave by the employee, consequently, reflecting in the different judicial solutions. From the point of view of the Romanian procedural law, the study underlines the need to amend the law regarding the limitation period of the right to action in court for the protection of the non-material component of the right analysed, in order to meet the imperative of full harmonization with the European law.
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The unpredictability involves the intervention of the judge in a contractual legal relationship. Intellectual property can be considered a „laboratory” in which the intervention of the judge in the agreement of the parties has always been allowed. Without any connection with the unpredictability, in patent law there are legal mechanisms that allow the court to intervene to complete the contract regarding the quantum of the price in order to encourage the exploitation of the invention. In this hypothesis, the parties agree to contract, they do so, setting even the object of the contract, less the sale price. In other cases, the parties are obliged to contract by law, the court being required to intervene in the contractual mechanism established by law to determine the price. In Romania it cannot be argued that under the influence of the previous Civil Code the legislator has ruled on the non-application de plano of the unpredictability and that he would have been in favour of its application in certain special laws, such as the one from the field of intellectual property, because the reason for the judge’s intervention in the agreement of the parties is to favour the exploitation of intellectual creations, encouraging creativity. In the new Civil Code the conditions of the unpredictability are: 1. the existence of an excessive onerosity caused by an exceptional change (out of the ordinary, and not an ordinary one, simple or routine) and unforeseen (unpredictable), including as extension, of the circumstances existing at the conclusion of the contract. Excessive onerosity represents a contractual imbalance in relation to the initial contractual balance, which must exist as long as neither of the parties’ benefits can have a significantly higher value than the other, in the light of the regulation of the injury in the new Civil Code.
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The Civil Procedure Code reserves only five articles to the court costs and this study will emphasize the fact that this area exceeds the regulatory scope of the Civil Procedure Code, having connections also with other normative acts, as well as the circumstance that the assessment of the quantum of court costs is an aspect left to the enlightenment and wisdom of the judge, the legislator offering few criteria for evaluating their extent. The purpose of the present study is to provide an overview of the judicial costs, as well as to delimit the scope of the costs that can be recovered as a result of winning the trial from the costs that the courts did not approve. We will submit to the analysis the notion of costs, their legal nature, but also the legal basis underlying their award. Likewise, we will stop on the modality in which the court costs can be reduced or even rejected by the court. A separate part of the present paper will be devoted to the analysis of the lawyer’s fee, as part of the court costs. In this section, we will make a presentation of the different ways of establishing the lawyer’s fee, stopping, in particular, at the success fee, which we will define and delimit from the pact of de quota litis. At the end of the paper, we will offer some proposals de lege ferenda regarding the evaluation of the court costs, the necessity of legal regulation of the success fee and of the costs requested separately.
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The present study aims to emphasize the current state of the principles of ethics in the field of artificial intelligence world-wide, respectively in the Western world (especially the European Union and the United States of America), Russia and China. The author set out to create the necessary debate framework for the importance of raising awareness of this area and of its impact on everyday life. Finally, the study also presents the author’s conclusions on what is ethically important at its intersection with the field of law. Being a new constituent element of contemporary reality, artificial intelligence can no longer be ignored. It is obvious that at present there are missing the binding regulations which give an adequate answer to the problems generated by the arising and functioning of artificial intelligence. Due to the extraordinary, unknown, even unpredictable implications, it will not be possible to create the specific legislation in such a way as to meet the expectations unless a rigorous ethical analysis is done in advance. The study identifies documents issued by state authorities and private entities in which an ethical perspective is taken in relation to the field of artificial intelligence and draws a conclusion on its importance. The author also offers his own perspective on the important ethical principles, in particular, from the perspective of the legal field.
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This article analyses the problem of international criminal liability for offences against cultural heritage. The author has considered three offences against cultural values: smuggling of cultural values, destruction of cultural goods and theft of cultural goods. The investigation of the offences against cultural values includes a number of aspects: the nature of the offences against cultural values; the advantages of the international or national character of the liability for the offences against cultural values; the circumstances of committing offences against cultural assets (for example the existence of an armed conflict); the objectives of committing offences against cultural values (their export as a treasure, the destruction of the cultural heritage; intimidation); the possible effects of the offences against cultural values. Based on these aspects, the author identifies a series of categories of offences against cultural assets. Each of these categories is analysed from the point of view of international liability.
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The present article aims to analyse the antinomy contravention – offence by studying the incrimination of the deed of disturbance of public order and peace. Thus, the legislator, within Article 2 point 1 of the Law No 61/1991 for sanctioning the acts of violation of certain norms of social coexistence, of the public order and peace, incriminates the contravention consisting in committing in public of obscene deeds, acts or gestures, addressing of insults, offensive or vulgar expressions, threats with acts of violence against persons or their property, which may disturb public order and peace or provoke the indignation of citizens or harm the dignity and honour thereof or public institutions. On the other hand, according to Article 371 of the Criminal Code, the act of the person who, in public, by violence committed against persons or property or by serious threats or injuries to the dignity of the persons, disturbs the public order and peace is punished by imprisonment from 3 months to 2 years or with fine. It is easy to find, comparatively analysing, that there is a parallelism of the incriminations, which extract their vigour from spheres of different legal liability, thus the judicial interpreter having the difficult mission to distinguish the conditions in which the two forms of liability are employed, respectively if both can be retained simultaneously, successively or the application of one of them brings about ipso facto the removal of the other.
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The problem of the capacity of exercise of the minor patient, deprived of liberty, has relevance for all types of penitentiary police units, which can keep minors in their custody, but also for the public health network, because all these institutions can face the problem of obtaining the consent for the execution of a medical intervention on the minor deprived of liberty. The minor patient in the custody of the penitentiary police enjoys the same autonomy, in relation to the expression of informed consent, as the free minor patient, according to the principle of equivalence, his right to health care being guaranteed, without any discrimination in relation to his legal situation. In reference to the problems regarding the capacity of exercise of the minor deprived of liberty, required for the consent to the medical act, there are applicable both legal norms of civil law, as well as norms of medical law and criminal executional law.
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The article presents theoretical and practical aspects regarding the exclusion of evidence in the preliminary chamber, taking into account the Decision of the Constitutional Court No 22 of 18 January 2018 regarding the plea of unconstitutionality of the provisions of Article 102 (3), Article 345 (3) and Article 346 (4) of the Criminal Procedure Code, by which the plea of unconstitutionality of the provisions of Article 102 (3) of the Criminal Procedure Code was admitted and it was found that they are constitutional insofar as the phrase „exclusion of evidence”, therein, means also the elimination of the means of evidence from the case file.
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The promotion and protection of the rights of the child has always been one of the main objectives of the European Union, but it is also a result of international commitments. All Member States of the European Union have ratified the UN Convention on the Rights of the Child, and the rules and principles of this Convention guide the policies and the actions of the Union that impact on the rights of the child. The Lisbon Treaty has conferred greater importance to the objectives of the European Union, and by Article 3 (3) of the UN Convention on the Rights of the Child it was explicitly established the imperative obligation to promote the protection of the rights of the child. In addition, the rights of the children are enshrined in the Charter of Fundamental Rights of the European Union, which by Article 24 recognizes children as independent and autonomous holders of rights, also considering the best interest of the child as paramount in relations with the public authorities and the private institutions. The transposition of the European and international objectives, as well as of the fundamental principles referring to the protection of the rights of the child took place naturally through the adoption of new national regulations reflecting the acquiescence of Romania to the European objectives and its constant concern for the protection of the rights of the child. However, in many cases there are encountered in practice situations where, although there are both the legal basis and the mechanisms necessary for its implementation, the rights of the children are not respected and/or are not given due importance. This paper aims to draw attention once again to the essential rights of children and to emphasize the fundamental principles referring to the promotion and protection of rights of the children, with particular regard to the principle of the best interest of the child, as regulated at European level.
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Potrivit art. 226 alin. (5) C.pen., plasarea, fără drept, de mijloace tehnice de înregistrare audio sau video, în scopul săvârșirii faptelor prevăzute în alin. (1) și alin. (2), se pedepsește cu închisoarea de la unu la 5 ani. Conform art. 207 alin. (1) C.pen., constrângerea unei persoane să dea, să facă, să nu facă sau să sufere ceva, în scopul de a dobândi în mod injust un folos nepatrimonial, pentru sine ori pentru altul, se pedepsește cu închisoarea de la unu la 5 ani. Potrivit art. 291 alin. (1) C.pen., pretinderea, primirea ori acceptarea promisiunii de bani sau alte foloase, direct sau indirect, pentru sine sau pentru altul, săvârșită de către o persoană care are influență sau lasă să se creadă că are influență asupra unui funcționar public și care promite că îl va determina pe acesta să îndeplinească, să nu îndeplinească, să urgenteze ori să întârzie îndeplinirea unui act ce intră în îndatoririle sale de serviciu sau să îndeplinească un act contrar acestor îndatoriri, se pedepsește cu închisoarea de la 2 la 7 ani (cu notă parțial aprobativă).
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Considering, on the one hand, a number of projects for the unification of European law, adopted in last decades (Unidroit Principles, Principles of European Contract Law, European Code of Contracts, The Common Reference Framework etc.) and, on the other hand, a series of legal reasoning arguments, the author discusses at length some questionable terminology choices in the new Romanian Civil Code (Law no. 287/2009, published on July 24th, 2009, yet unenforced), for instance: invasion of right to privacy rather than breach of this right; no legal distinction sensed between duty and obligation, between damage and injury; between the object of the obligation and the contract’s subject matter; there are references to the object of the obligation instead of impossibility of provision etc.
