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The new Criminal Code, which brings numerous innovations to the scope of accusation under the Romanian criminal law, stipulates, in the text of art. 239, the sanctioning of a debtor’s action of alienating, hiding, deteriorating or destroying, in whole or in part, values or goods in its assets or of invoking false acts or debts for the purpose of defrauding creditors or the action of a person who, knowing that it will not be able to pay, purchases goods or services thus causing damage to the creditor. -
The criminal offence of compromising the interests of justice, according to the new regulation, refers in particular to the respect and authority that needs to be attached to the performance of the act of justice, and such performance is protected by criminal law in two manners, both as regards the criminal offences committed by persons from outside the judicial system in the capacity of unqualified active subjects, and against the “abuses” of any nature committed, on the one hand, by the persons called to perform the act of justice and, on the other hand, by the public servants who, as a result of their work duties, learn about the producing of any evidence, the existence of any means of proof or official documents, which, by their disclosure or revealing, could obstruct or prevent the criminal proceeding, or could influence the order of a solution in the criminal proceeding stage. -
The recent case law of the Romanian Constitutional Court gives shape to a new doctrine regarding the Court’s role in ensuring the national legislator’s compliance with the European Union’s competences. In order to identify the new doctrine’s background, the current article analyzes the evolution of the Romanian constitutional case law on the application of Union law. Subsequently, the current position of the Constitutional Court is extensively described, emphasizing both its immediate consequences and possible future developments. -
In the jurisprudence of the European Court of Human Rights, the issue of a broad interpretation of the right to marriage is all the more acutely debated, while the Court is beset with applications filed by homosexual and transgender individuals to have this right recognized. In the current state of the jurisprudence of the European Court of Human Rights, the marriage of a couple in which one of the partners has resorted to a sexual Convention through gender reassignment surgery is considered legitimate (within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms), stating that this is also a case of heterosexual marriage. However, so far, the European Court of Human Rights has not considered legitimate marriages between persons of the same biological sex (gay or lesbian). -
The author explores, in the study hereunder, an unusual provision in the matter of arbitration proceedings and that relate, essentially, to putting forth arbitration awards which ascertain or establish real rights to courts or the notary public. This provision was reintroduced in the new Code of Civil Procedure and is aimed at obtaining a court order or an authentic notarial instrument. The aforesaid regulation is criticized by the author, grounded by the fact that it flagrantly transgresses the procedural provisions that assign to the arbitration award the same effects as a court order, it being at the same time mandatory. Additionally, the author notes the theoretical and practical difficulties arising from the procedural rules under review. In the author’s view, such a regulation tends to turn the notary public into a jurisdictional authority. The author concludes that a more rational regulation would be to exempt actions relating to real rights from the jurisdiction of the arbitral tribunal. -
Starting from the case of Vergu vs. Romania, recently settled (January 11, 2011) by the European Court of Human Rights, the author, in light of Art. 13 of the European Convention on Human Rights, discusses the issue related to the right to a prior effective recourse with the internal (national) court of law, a sine qua non prior condition for notifying the Strasbourg Court, concluding that the European court of law (must make the severe application of the subsidiary nature principle. Only under entirely exceptional cases, with grounded motivations, in a circumspect and entirely isolated manner, may the Strasbourg Court release the claimant from its obligation to exhaust the internal means (of effective recourse with the national court). -
This article aims to examine Article 16 of the Labour Code, republished, on the requirement of drafting individual employment agreement in Romanian language, from various standpoints, such as: (i) applicable sanction for failure to conclude the individual employment agreement in Romanian language; (ii) the requirement to observe the principle of equal treatment in cases where the individual employment agreement is concluded with a foreign citizen or a national of another Member State of the European Union or the European Economic Area, concretized, inter alia, by drafting the individual employment agreement in the language of the foreign citizen; (iii) the probative value of the versions of the individual employment agreement concluded in several languages. -
Se știe că, în materie represivă, prescripția produce un îndoit efect, acel de a stinge acțiunea publică și cea civilă, care izvorăște dintr’o crimă, delict sau contravenție polițienească (art. 593–595 C.pr.pen.), și acel de a stinge pedeapsa pronunțată de tribunalele represive art. (596–598 C.pr.pen.). Pentru a se justifica aceste dispoziții s’au dat mai multe motive, asupra căror vom reveni mai târziu tot în coloanele acestui ziar, când vom expune considerațiile generale asupra prescripției penale. Destul este să spunem deocamdată că motivul cel mai puternic și poate singurul motiv ce se poate invoca în specie este că societatea nu are nici un interes a pedepsi o infracțiune a cărei amintire este ștearsă. Legea penală nu vorbește de suspendarea prescripției, ci numai de întreruperea ei. Actele întreruptive consistă, când este vorba de prescrierea acțiunei publice, în acte de instrucțiune și de urmărire (art. 593 C.pr.pen.). Vom vederea îndată care sunt actele întreruptive de prescripție când este vorba de prescrierea executărei pedepselor. -
In this article, the author discusses the issue of limitation of the exercise of certain rights and freedoms, as debated and regulated by the Constituent Assembly in 1991. There are analyzed in detail the theses for the draft Constitution that set out the constitutional conditions for which compliance is imperative, so that the Romanian State and the Romanian Parliament be able to make the decision of limiting some rights or freedoms of the citizens. The author gives a significant consideration to presenting the philosophy of the constitutional norm that recognizes the State’s right to limit under certain circumstances the exercise of some fundamental rights and freedoms of the Romanian citizens. It is noted that constitutional limitation of the some rights or freedoms of the citizens fully complies with the European doctrine of constitutional law and of the judicial practice of ECHR. The author analyzes in detail every case which may determine the Parliament to limit the exercise of some rights and freedoms, as well as the conditions for imposing the limitation. -
In terms of the decision not to initiate criminal proceedings, ordered by the Prosecutor during the stage of preliminary documents, it is mandatory to communicate the decision to the prejudiced person, indicter and perpetrator, if known, and the deadline of 20 days for filing the complaint with the Prosecutor’s Office runs from the date of serving the decision. For the people who consider themselves injured as to their legitimate interests by the adoption of the decision not to initiate court proceedings, there is neither the obligation, nor the opportunity for the communication thereof and, in this case, the 20-day deadline for filing the complaint against the decision runs from the date on which the person entitled was informed, in any way, about the adoption of the decision in question.
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The criminal trial is a complex judicial activity through which it is performed the criminal justice, formed of a complex of judicial activities carried out in an orderly and successive manner. In its entire development, the criminal trial is a complex judicial activity. In the dynamism of its development, the criminal trial is a complex of judicial activities. The regulation of the criminal trial includes the provisions of the general part of the Criminal Procedure Code, as well as the provisions of its special part. The general provisions regulate the criminal trial in all cases and they discipline the entire judicial activity. The special provisions regulate the criminal trial in each case in particular and they discipline each judicial activity in particular. The special provisions are interpreted literally and restrictively, systematically, logically and teleologically, in order to be correctly applied.
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The conditions of appointment of the General Prosecutor and of his deputies have been one of the most disputed topics in the matter of regulation of the status of the Public Ministry. Wishing to give the parties concerned the opportunity to clarify the problem the authors have elaborated a summarizing study on the regulation of this matter in the Member States of the European Union.
