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Principiul suveranității naționale consacrat în art. 2 alin. (1) din Constituție se reflectă la nivelul Parlamentului prin suveranitatea acestuia. Un prim efect direct al suveranității forului legislativ este independența acestuia și a membrilor săi, precum și autonomia organizatorică, funcțională, financiară și disciplinară a Camerei Deputaților și Senatului. ... -
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.
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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.
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The study analyzes the provisions of the Law No 114/2021 on some measures in the field of justice in the context of the COVID-19 pandemic in civil cases. The mentioned normative act provides the conditions for conducting the court hearings in the civil trial by videoconference. The conditions are the following: to be decreed the state of alert instituted in order to prevent and combat the effects of the COVID-19 pandemic also for a period of 30 days from its cessation; to be about a civil case; to have the agreement of the parties in this respect; to have the possibility; the approval of the court of law. The Constitutional Court, by the Decisions No 157/2020 and No 457/2020, has established that the justice cannot stand still, not even during the COVID-19 pandemic, under this requirement the legislator regulating by the Law No 114/2021 the manner of conducting judicial proceedings during this period. However, the legislator did not rise up to the standards imposed by the Constitutional Court of Romania, in the sense that it did not regulate an effective way of access to justice, in the situation where the objective pandemic conditions restrict this possibility. Although we appreciate positively the provisions of the Law No 114/2021 referring to the development of the civil process by electronic means, we consider that the measures ordered should be generalized and not applied, as provided by Article 1 (2), only for reasons generated by the COVID-19 pandemic.
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Adopted in the 1922–1926 legislature, the Constitution of 1923 was indispensable for the project of legislative unification of Romania. Its norms impose unique fundamental principles and rules for the entire national legal system: the principle of national sovereignty; the principle of legality and supremacy of the Constitution; the interests of the social community may take precedence over individual interests in the matter of property right. The regulation of some unique institutions for the entire Romanian State ensures the unitary exercise of constitutional competences, and the regulated rights for all Romanians ensure a unique foundation of freedom and equality. Other provisions have a strong unifying role and each provide a point of constitutional support for future legislation. The supremacy of the constitutional norms in the system of legal norms, supported by the case law of the unique supreme court, but also the beneficial psychological effect determined by the constitutional unification complete the picture of the impact of the constitutional norms from 1923.
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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.
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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.
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This article reviews the regulatory framework on investigations into marine navigation in Romania, indicating the timeline of the criminalization patterns followed by the presentation of the common aspects of the structure and constitutive content of the investigations by analyzing in three specific chapters provided in the normative basis of the Law No 191/2003 on the legal regime that applies to maritime transports and studies of the distinctive elements of each investigation, and finally by drawing critical conclusions and implications related to lex ferenda.
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In this article we have looked into the content of the concept of case law of the European Court of Human Rights, determining in the national criminal process the legal nature and the presentation of the reasons for its application. We have also addressed the premises of using case law as a source of law within the criminal trial, highlighting the particularities and advantages of the applicability of the case law of the E.C.H.R. within criminal trial. Through the research carried out, it has been conducted a complex investigation of the theoretical-legislative aspects regarding the applicability of the case law of the E.C.H.R. within the criminal trial as a source of law. The paper formulates conclusions and recommendations that can represent a scientific basis for possible legislative amendments. In the present study, we reiterated the most current theoretical-applicative issues, as well as the methodological aspects regarding the applicability of the case law of the E.C.H.R. in the criminal trial, being revealed some concepts of major importance for the national doctrine and practice.
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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.
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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.
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Din prevederile art. 34 alin. (1) din Legea nr. 165/2013, rezultă că în vederea soluționării dosarelor de despăgubire, legiuitorul a stabilit un termen de 60 de luni de la data intrării în vigoare a legii. Rezultă că formularea unei cereri înaintea expirării acestui termen este prematură. Această concluzie este întărită de dispozițiile art. 35 alin. (2), potrivit cărora în cazul în care entitatea învestită de lege nu soluționează decizia în termenele prevăzute la art. 33 și 34, persoana care se consideră îndreptățită se poate adresa instanței de judecată.” (Curtea de Apel Cluj, Secția I civilă, Decizia nr. 2776 din 10.12.2015)
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În cazul în care asigurătorul nu-și îndeplinește obligația de a preciza motivele refuzului de despăgubire, atunci datorează penalități de întârziere de la data expirării termenului de 30 de zile, care începe să curgă de la data solicitării de acordare a despăgubirilor formulate de persoana prejudiciată. (Curtea de Apel Pitești, Secția a II-a civ., Decizia nr. 498 din 17 mai 2021)
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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.
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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.
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According to the General Data Protection Regulation (hereinafter GDPR), in each Member State of the European Union, one or more independent supervisory authorities of personal data processing must operate under conditions of full independence. Therefore, by this article we aim to achieve two main objectives. A first objective is to explain the notion of „full independence” and the second objective is to find and analyze some of the essential elements for guaranteeing full independence. The methodology used has focused on the study of the European and national legislation (the European treaties, the GDPR, the Romanian Constitution, the Administrative Code), on the study of doctrine and on the analysis of the case law of the Court of Justice of the European Union (hereinafter CJEU) on the issue of full independence of the supervisory authorities. This paper concludes that the notion of the independence of the supervisory authorities is a fragile notion that requires the full attention of the Member States. The fundamental human rights and freedoms must survive any political movements or commercial interests. The Member States, by the national law, must ensure adequate safeguards to ensure full independence of the supervisory authorities and must establish effective rules on the sanctioning of those who infringe on their independent status. As the notion of independence is a fragile notion, in the future, the Member States’ actions to safeguard the independence of the supervisory authorities must increase in direct proportion to the degree of risk of the new technologies to privacy and to the other fundamental rights and freedoms. Regarding the structure of the paper, in the Introduction, we discussed the necessity of existence of some national data protection authorities. In Section II, we briefly presented certain general considerations about supervisory authorities. In Section III, we set out certain general considerations about the legal regime of the autonomous administrative authorities in Romania. In Section IV.A we analyzed and defined the notion of „full independence”, and in Section IV.B we extracted from the legislation, doctrine and case law a part of the essential elements for guaranteeing a full independence and we briefly explained these elements.
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The immunity which the President of Romania enjoys is a „constitutional guarantee, a measure of legal protection of the mandate that is meant to ensure the independence of the mandate holder from any external pressures or abuses. The guarantee provided by Article 72 (1) of the Constitution encourages the mandate holder to adopt an active role in the political life of the society, as it removes his legal liability for the political opinions expressed in exercising the function of public dignity. However, the holder of the mandate remains liable, according to the law, for all acts and deeds committed during the period in which he exercised the public office and which were not related to the votes or political opinions”. The quoted text is an excerpt from the grounds retained by the Constitutional Court in the motivation of its Decision No 284 of 21 May 2014, by which the constitutional contentious court has solved the legal conflict of a constitutional nature between the President of the Republic and the Government of Romania. The whole scaffolding of the arguments of the Constitutional Court leads to the „construction” of an active role of the President in the political and social life of the country as if it were limited to the free expression of some political opinions under the protection of parliamentary immunity. However, it should be noted that the Fundamental Law does not recognize through an express text „the active role of the President of Romania in the political life”. This is why we have reservations about the fairness of the quoted decision. First, the term of political life used in the decision of the Constitutional Court is far too general and thus it has a large margin of inaccuracy. After all, any public authority regulated in Title III of the Constitution must have an active role in the political life. When the Constitution refers in Article 80 to the Role of the President it takes into account the prerogatives of this public institution in the process of exercising public powers, a term equivalent to the governing activity, or the exercise of these prerogatives does not imply an activation of the constitutional role of the President of Romania, but its accomplishment within the limits outlined by the constitutional texts . Beyond this is the abusive exercise of the governing acts by the holder of the mandate of President of Romania, for which he, not benefiting from immunity, is required to be liable according to the Constitution.
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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?
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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.
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In this scientific article, the author addresses one of the problems faced by the current judicial practice in criminal matters. Specifically, it is about detecting the relationship between the offence of money laundering and the offence of concealment, starting from the theoretical approach of comparison and reaching to the exposition of some solutions from the judicial practice. The author proposes criteria on the basis of which this delimitation can be made in a clear and constant manner.
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The present study aims to analyze a problem that recently appeared in the criminal procedural practice considering the Decision No 250/2019 of the Constitutional Court by which the provisions of the first sentence of Article 377 (4) and Article 386 (1) of the Criminal Procedure Code were assessed as constitutional only insofar as the court of law rules on the change of the legal classification given to the deed by the act of notification by a judgment that does not settle the merits of the case. By presenting a concrete case study, the opinions expressed in the doctrine and by practitioners, as well as the analysis of the grounds of the decision we will conclude on the applicability of the aforementioned decision at the time of analyzing the more favourable criminal law, whether the procedural institution of changing of the legal classification or that of the legal qualification is incidental, and whether it is necessary to rule on the more favourable criminal law by a separate conclusion.
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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.
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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.
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The content of the paper reveals the changes in the E.C.H.R. case law occurred in the matter of interrogation of the prosecution witnesses following the pronouncement of the judgments in the cases Al-Khawaja and Tahery v. the United Kingdom, respectively Schatschaschwili v. Germany. The author considers that by the two judgments E.C.H.R. has returned to each of the three conditions imposed by its own case -law for the use as evidence of „anonymous statements”, establishing the exact opposite of those estab lished by its previous case law on those conditions. At the same time, the author emphasizes that through the analyzed judgments E.C.H.R. has practically radically changed its case law outlined over more than 20 years. Next, it proceeds to the presentation of the grounds retained by the E.C.H.R. in the two cases, after which the author emphasizes the obvious contradictions existing between these grounds and those established by the E.C.H.R. on the same issues in previous cases. Finally, the author points out that, despite the contradictions and inconsistencies shown in this paper, presently the case law Al-Khawaja and Tahery – Schatschaschwili exclusively governs the conditions under which it is determined whether by using the „anonymous” or „unverified” statements it has been violated or not the procedural guarantee written down in Article 6 (3) d) of the Convention.
