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Potrivit art. 48 alin. (1) C.pen., complice este persoana care, cu intenție, înlesnește sau ajută în orice mod la săvârșirea unei fapte prevăzute de legea penală. Conform art. 174 C.pen., prin săvârșirea unei infracțiuni sau comiterea unei infracțiuni se înțelege săvârșirea oricăreia dintre faptele pe care legea le pedepsește ca infracțiune consumată sau ca tentativă, precum și participarea la comiterea acestora în calitate de coautor, instigator sau complice. -
Apărută sub egida Institutului de Cercetări Juridice „Acad. Andrei Rădulescu” al Academiei Române, sub semnătura a doi prestigioși cercetători ai săi și bine-cunoscuți specialiști ai temei, lucrarea este consacrată în mod evident centenarului tratatelor de la Paris din 1919/1920, în general, și al celui de la Trianon din 4 iunie 1920, în special. Dacă secolul a reprezentat adesea, în istoria omenirii, pe lângă un reper de marcare a scurgerii timpului, un instrument de stabilire a cronologiei faptelor și a evenimentelor și o veritabilă unitate de apreciere a progresului economico-social și cultural, cum se apreciază în prefața lucrării (plasată sub titlul O simplă punere în temă), cel al statului național și al dreptului internațional public ca drept al păcii și al cooperării interstatale se exprimă printr-o moștenire de concepte și experiențe juridico-istorice care au marcat inaugurarea și conferit conținut unei etape istorice majore.
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If from a quantitative point of view the repressive (criminal) law of the environment is increasing, the criminal response as a tool to promote environmental protection is still far from rising at the level of the urgency and magnitude of the ecological problems to which it is called to answer. The causes are related to the insufficient conceptual-regulatory adjustment to the particularities of the field, the concurring strong interests of different nature and the complexity of the theoretical and practical approach to be undertaken. Bringing the repressive right to the level of the mission and current priorities implies a radical reform on the general conception and approach, the unitary and adequate register of incriminations, the particularization of the procedural framework for investigating cases and for applying sanctions and the professionalization and specialization of the jurisdictions. Assimilating the meanings of the precautionary principle, building one’s own criminal regime, by overcoming administrative dependence and consecrating the ecological finality, incriminating the ecocide, in a word the need for another penalty is the key to overcome the impasse and the way to a new, genuine and effective repressive environmental law. In Romania, there is a need for a general rethinking of the relevant normative system through a unitary regulation to include the essential aspects of an adequate incrimination, customized procedures and specialized jurisdictions.
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The idea of recognizing nature’s legal capacity, with the consequence of attributing this entity of rights, began to be conveyed some time ago in the specialized literature. With all criticism, the theory has taken a certain shape and has even been included in the legislations, as is the case of Ecuador, which in 2008, by Constitution, Articles 71–74, recognized the law of nature, of the environment in general. Bolivia has adopted legal provisions, but not with constitutional power and, at the same time, has proposed a draft Universal Declaration of Nature Rights, which quickly gained adherence both at the level of states and in specialized literature with moderate optimism because it is stated that „we must be aware that the statement such as the one proposed cannot be expected to have immediate results”. The granting of rights to nature, as a new approach to the law of the environment that conceptualizes the natural, non-human world, as something worthy of protection for its own good, and not just as something that can be used for the benefit of the people, appeared in response to the failure of the model anthropocentric environment protection, also has its place in interesting processes.
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This study examines the following issues: the legal nature of the survivor’s pension, the possibility of obtaining the survivor’s pension by a person, if his legal provider was also the holder of a survivor’s pension, how to calculate the survivor’s pension in case it is established, having as legal reference another survivor’s pension, the possibility of applying the correction index when establishing the amount of the survivor’s pension. The beginning of a relatively detailed legal analysis, in connection with these aspects presents a relevant degree of novelty for the Romanian legal literature, as neither the doctrine, nor the case law paid due attention to these problems, of indisputable theoretical interest and real practical utility.
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The following study critically analyzes the civil liability of the civil servants. It is estimated that it is about a contractual liability, however different from the patrimonial liability and from the material liability, regulated in the case of employees, respectively of the military and of other categories of personnel. The cases of civil liability of the civil servants are presented, as well as the conditions of this form of liability. Special attention is paid to the procedure of reparation of damages (imputation order or disposition and the payment commitment), including with regard to the former civil servants. Key words: payment commitment; authority; public institution; imputation decision/disposition/order; illicit deed; civil servant; obligation of restitution; injury; civil liability; material liability; patrimonial liability; guilt.
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In the first part of the study, the author emphasizes the importance of the legal remedies for making justice more efficient, one of the important objectives of any reform programme in the field. The finding is natural, since a good regulation of the legal remedies can make a substantial contribution to the resolution of the trials within a reasonable time, in order to use only a unanimously accepted phrase. The general tendency of the contemporary procedural regulations is to carry out a simplification of the legal remedies and to avoid congestion of the courts, especially the courts of appeal and the supreme courts. For this purpose, the vast majority of the analyzed regulations establish some limitations – value-wise – of the exercise of the legal remedies or establish means of filtering the reviews, and in some countries even of the appeals. The author also notes that in some procedural systems the ordinary legal remedy of the appeal cannot be exercised in low value disputes. One of the author’s conclusive remarks is that the filtering systems of some legal remedies are efficient and contribute to the resolution of processes with celerity. Another final conclusion is that the Romanian legislator has abandoned such an approach, and this should be reconsidered in the future.
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In this article, we intend to present, first of all, the particularities of the on-the-spot investigation, and then to deal with the way of drawing up a report, regarding those found on the spot and the importance of such evidence for solving cases. Also, depending on the discussions held, in our presentation, we will examine the themes raised by applying Articles 345–347 of the Civil Procedure Code; the situations in which the court, which travels on the spot, cannot conclude the investigation on the appointed day; the issue of the rogatory commission and the manner of drawing up the minutes. Current probation law provides the on-the-spot investigation with the conduct of operations and findings to be recorded in a report, which also shows the presence or absence of the parties. We appreciate that, for a fair trial, the deadlines for which the judge goes to that place on the second or even the third day must be mentioned. Although it is not a legal provision for the on-the-spot investigation by the letter rogatory, there are requests, according to the rules of common law, by which the courts support each other, to establish the truth accurately. Because the on-the-spot investigation is direct evidence of the facts, the minutes must be drawn up meticulously during on-the-spot investigations. In our analysis we also turn to generically related information, which cannot be a means of probation allowed by our system.
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During the state of emergency both some press articles and the official communiques of the prosecutor’s offices mentioned the criminal investigation in the case of persons who, being confirmed as infected with SARS-CoV-2, refused to be hospitalized. The present study does not aim to provide a classic analysis of the crime of thwarting disease control, but is limited to trying to find an answer to the question of whether it is possible to retain this criminal offence in the case of infected persons who refuse hospitalization. As such, this paper discusses the current Romanian legislation and concludes that, having regard to both the provisions of the Protocol for the treatment of SARS-CoV-2 virus infection and the systematic interpretation of the legal framework, since the Minister of Health enacted only measures to prevent and manage the emergency generated by the pandemic, as well as the obligation to diagnose the symptomatic persons, the measure of hospitalization cannot result exclusively from the unilateral will of the doctor, in reality the will of the latter playing no role, but must derive from the law in order to impose itself on both the patient and the doctor. Therefore it cannot be retained the crime of thwarting disease control in the case of infected persons who refused to be hospitalized.
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The present paper aims to examine the „positive” conditions of the procedure of the right to damage repair in case of miscarriage of justice, i.e. those provided only in paragraph (1) of Article 538 of the Criminal Procedure Code. The paper begins with the delimitation of the area of analysis, after which it examines the conceptual reason of the analyzed procedure. Then, the conditions and subconditions found in paragraph (1) of Article 538 of the Criminal Procedure Code are treated by turns. Finally, after analyzing the concept of miscarriage of justice, we take a look at countries with similar legislation: the Republic of Moldova and Switzerland. At the same time, through this material, I am trying to demonstrate, by identifying the problems of interpretation of this paragraph, the fact that the action for damage repair provided in Chapter VI of the Criminal Procedure Code must comply, at least in the light of paragraph (1) of Article 538 far too restrictive conditions. The conditions which this paragraph involves turn the procedure of repair of the material damage or of the moral damage in case of miscarriage of justice into a non-feasible procedure with conditions which presuppose an insignificant stake, as compared to the reparation of the damage in case of the principal’s liability for the deed of his agent, a liability much easier to prove by the damaged person.
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În cele ce urmează, vom comenta două hotărâri ale Curții de Justiție a Uniunii Europene, ambele pronunțate în materia dreptului la liberă circulație și, respectiv, a securității sociale, în cadrul procedurii chestiunii preliminare.
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Transferul dreptului de proprietate sau legătura contractuală dintre cedent și cesionar nu reprezintă condiții sine qua non pentru existența transferului de întreprindere în accepțiunea Directivei 2001/23/CE astfel cum a fost interpretată prin hotărârile Curții de Justiție a Uniunii Europene și, deși prevăzute de dreptul intern, nu își pot produce efectele în contra scopului directivei, prin restrângerea domeniului de aplicare.
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Potrivit art. 181 alin. (1) din Legea nr. 78/2000, folosirea sau prezentarea cu rea-credință de documente ori declarații false, inexacte sau incomplete, dacă fapta are ca rezultat obținerea pe nedrept de fonduri din bugetul general al Uniunii Europene sau din bugetele administrate de aceasta ori în numele ei, se pedepsește cu închisoare de la 2 la 7 ani și interzicerea unor drepturi.
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After a summary examination of the regulations and of the doctrine regarding the institution of civil nullities, the author illustrates the uncertainties produced by some special norms that establish absolute nullities for the violation of some imperative norms of protection for some categories delimited by subjects; it is concluded – starting from the principles – and with exemplification of jurisprudence – that such express nullities produce only some effects of absolute nullity and that the legal regime of absolute nullities does not always apply, in its entirety, as a whole. The presented legal construction offers the opportunity to observe the acute need for prejudicial procedures at the disposal of those who have to make decisions for the application of rules that produce legal uncertainty.
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The repeated conviction by the European Court of Human Rights (hereinafter ECHR) of the Republic of Moldova for violating Article 1 of Protocol No 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECHR) was a mandatory invitation for national actors to harmonize their own legal system with the European case law, both by legislative, administrative way and by judicial way. Although there have been reported cases in which the European Court of Human Rights has pointed out some shortcomings with regard to harmonizing the Moldovan law with the European exigencies, however most judgments are based on jurisprudential shortcomings. Thus, in order to avoid new convictions by the Strasbourg Court in the sphere of Article 1 of Protocol No 1, in this study the techniques of compatibilization of the national case law with the European ones are researched. Starting from the stated purpose, in the present study it is realized a jurisprudential exercise of the notion of „good” from the perspective of the conventional judge and of the way in which the national courts received it in their own judgments. At the same time, this scientific approach identifies the positive and negative obligations of states and their margin of appreciation left by the ECHR in case of some issues concerning the right to respect for property, as well as the consequences for the state in case of a judgment of conviction.
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Article 5 of the Civil Procedure Code1 regulates the fundamental principle of free access to justice and the obligations that the legislator establishes as duty of the judge are meant to outline this principle2 . Free access to justice is a fundamental principle of the organization of any democratic judicial system, being enshrined in an important number of international documents, therefore it has special meanings both for procedural law and for the constitutional law3 .
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The transition to the „digital age” marks all areas, being impossible for the administrative action and the administrative law to be placed outside this phenomenon. In the context of the transformations regarding the progressive replacement of the unilateral character of the administrative action with models based on dialogue and consensus, as well as the transition from the representative democracy to the participative one, the generalization of the digital dialogue between the administration and the citizens is a way to promote new, collaborative forms of administrative action. These bring a more important involvement of the public in the elaboration of the administrative decision, including by redefining the practices of public consultations, carried out on more flexible, less rigid channels. The challenge of digitalization concerns to the same extent also the administrative law, a science that, under the pressure of this „tsunami”, is forced to undergo mutations in its foundations: the administrative act and the drafting process
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An in-depth analysis of the mechanisms by which the recipients of the legal norm end up evading the payment of the tax obligations and, subsequently, giving an appearance of legality to the illegally obtained amounts, can only be beneficial for an overall understanding of the typical elements of those two offences (tax evasion and money laundering). Without a tradition in our criminal law, incriminated for only two decades, the offence of money laundering has surprisingly gathered around it a rich case law, which is the subject of numerous criminal cases. At the same time, the analysis of the outlined case law has revealed different approaches and solutions from the courts on some important aspects of the offence of money laundering and their clarification is all the more necessary as we are talking precisely about its typicality elements. Whereas the offence of money laundering is often concurrent with the offence of tax evasion, it is necessary to analyze their points of interference, both at the level of their objective side and from the perspective of reparation of the damage.
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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 study addresses issues specific to the object of probation in appeal and emphasizes that, naturally, the object of the probation in appeal specializes as a result of the concrete manner in which there will operate the devolution determined by the holder of the legal remedy and the reasons on which it is based. At the same time, it is shown that formulating an request for evidence with a clear and concrete indication of the evidentiary thesis covered by each requested evidence is very important because only in this way it can be really made an assessment on the usefulness and on the relevance of that evidence. The author also emphasizes another reason why the indication of the evidentiary thesis is important, meaning that in its absence or in the case of indicating some generic theses the assessment on the legality of the evidence can be impeded and it is analyzed the situation of being requested to be heard as witnesses persons that are under the incidence of some legal norms that require them to maintain professional secrecy, such as magistrates or lawyers. All these arguments lead to the conclusion that a request for evidence made in appeal that hasn’t got concrete evidentiary theses indicated regarding each piece of evidence requested does not allow the assessment on the usefulness of the evidence by reference to the specialization of the object of probation at this phase of the criminal trial and, consequently, it should be dismissed by the court invested with the examination of the case.
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In the present article, the author analyzes twenty-four judgments of the European Court of Human Rights pronounced in the cases regarding the Revolution of 1989, by which it was established that Romania violated, mainly, the procedural side of Article 2 (right to life) of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms. The author also identifies the advantages and disadvantages of the procedure by which the Committee of Ministers of the Council of Europe supervises the enforcement by Romania of those judgments. Finally, the article aims to assess the impact that the judgements of the European Court of Human Rights have had in recent years on the conduct of internal investigations, i.e. the so-called „File of the Revolution”.
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Cauza Societatea Profesională Notarială „Etica” împotriva României, Cererea nr. 43190/10, Curtea Europeană a Drepturilor Omului (Secția a patra), Hotărârea din 24 iulie 20181 . La originea cauzei se află cererea din 17 iunie 2010 formulată de Societatea Profesională Notarială „Etica”, persoană juridică română, contra României, în temeiul art. 34 din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale („Convenția”).
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n cazul în care contractul de transport a fost încheiat prin intermediul unei case de expediții, în lipsa unei prevederi contractuale exprese sau a unei prevederi legale, nu se poate solicita de la respectivul intermediar repararea prejudiciului cauzat transportatorului ca urmare a avariilor determinate de marfa transportată și care nu a fost ambalată în mod corespunzător. În plus, dacă transportatorul nu a făcut rezerve cu privire la marfa primită, conform art. 9 din Convenția referitoare la contractul de transport internațional de mărfuri pe șosele (CMR) există prezumția că mărfurile transportate au fost în bună stare. (Curtea de Apel Constanța, Secția a II-a civilă, Decizia nr. 50 din 10 februarie 2020, www.rolii.ro)
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Potrivit art. 248 C.pen. din 1968, fapta funcționarului public ce, în exercițiul atribuțiilor sale de serviciu, cu știință, nu îndeplinește un act ori îl îndeplinește în mod defectuos și prin aceasta cauzează o tulburare însemnată bunului mers al unui organ sau al unei instituții de stat ori al unei alte unități din cele la care se referă art. 145 sau o pagubă patrimoniului acesteia se pedepsește cu închisoare de la 6 luni la 5 ani.
