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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. -
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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Law no. 287/2009 on the Civil Code provides the inheritance matter, in general, with an appropriate regulation which is characterized, in principle, by the solutions’ correctness and the flexibility and consistency of its rules. However, here and there, incomplete legal texts can be identified. Equally, one can notice the absence of regulation for certain issues raised abundantly over time by the literature. In this context, the authors of this paper identify the purports of the Civil Code with incidence in the matter of legal heritage which has some shortcomings and propose the legislator to reconsider them to improve thereof. Also, aspects that are not legally regulated are identified with a specific practical frequency.
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The study analyzes how the investigation of the trial and debate of the fund has been regulated, from the publication of the new Civil Procedure Code to the adoption of the Law No 310/2018 amending and supplementing the Law No 134/2010 on the Civil Procedure Code. Initially, the investigation of the trial before the first instance was expected to be carried out as a rule, in the council chamber and, by exception, in public session. The debate of the fund could take place both in public session and in the council chamber. The entry into force of the provisions regarding the investigation of the trial and the debate of the fund in the council chamber has been postponed several times, never entering into force, so that by the Law No 310/2018 these provisions be abandoned. In this way, the intermediate situation by which the investigation of the trial and the debate of the fund were held in public session became permanent. In our opinion, it is criticizable to abandon the holding of the civil trial in the council chamber, given the predominantly private character of the rights and interests of the parties involved and the guarantee of the right to privacy.
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The statistics at national level of the disputes of administrative contentious indicate a substantial share thereof in relation to the other matters handled by the courts and reveals an increasingly „blunt” relationship of the Romanian State with its citizen. The alternative means of solving the disputes generated by the activity of the public administration, present in the Romanian legislation, prove to be insufficient to reach the purpose for which they were instituted, and the recent changes brought to the material competence of the administrative contentious courts have generated to a small extent the results pursued by the legislator. The global phenomenon that marks the public law, of progressive replacement of the unilateral character of the public action with models based on dialogue and consensus, more suitable to strengthen the democratic legitimacy and the efficiency of the relations between the administration and the citizens, requires the connection of policies in the field of judicial organization, in this case of the specialized component of administrative contentious and the doctrine of administrative law, to the global approach regarding the resolution of conflicts between the administration and the citizens, including by applying the solutions validated by the experience of other national systems.
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Faptul că procurorul nu și-a manifestat opțiunea de a menține dispoziția de trimitere în judecată sau de a solicita restituirea cauzei într-un termen de 5 zile, în condițiile art. 345 alin. (3) C.pr.pen., nu îl decade din dreptul de a formula contestație în condițiile art. 347 alin. (1) C.pr.pen., în lipsa unor dispoziții legale exprese, și solicita începerea judecății în contextul constatării legalității sesizării instanței, a administrării probelor și a efectuării actelor de urmărire penală (cu notă aprobativă).
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Formalism is often a topic of discussion approached by reference to the form of the juridical act, more precisely to the consent externalized and recorded in a solemn act. This act is frequently outlined in the form of a notarial act, composed of two parts: the externalization of the manifestation of will of the parties and the findings of the notary public (recorded in the conclusion of authentication). The formalities presuppose any legal procedure which gives rise to a certain form and that adds safety, effectiveness and opposability to the manifestation of will. The notarial succession procedure is characterized by three procedural stages and ends with a conclusion of the notary public: the first part of this decision records the persons participating in the succession debate and the statements of those present, and the second part contains the findings of the notary public with regard to the statements of heirs in the first part of the conclusion. This conclusion issued within the succession procedure has the probative force of an authentic document, on the basis of which the certificate of heir is issued. In this study we intend to make a brief presentation of the procedural formalism, of the formalities prior to and subsequent to the conclusion of the civil juridical act. The notarial deed is the result of a concurrence between the manifestation of will of the party (or parties) and the obligations of the notary public which have a single result: the elaboration of a juridical act in accordance with the legal norms and good morals. The analysis is relevant to allow a comparative look between the formalities necessary for the elaboration of a notarial act and the formalities of the notarial succession procedure, which is completed by the certificate of heir, an act of a special legal nature.
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The very short term usucapion can be considered a specific simplified usucapion, regulated by the provisions of the Law No 7/1996, as amended and supplemented, which represents a special way of acquiring the property right with regard to the real estates, in principle, not registered in the land book and for which there are no property deeds, through the possession noted in the land book uninterrupted for a period of 3 years. The specific usucapion analyzed applies only for the acquisition of the property right, in case of sporadic registration operation, regarding real estate lands, with or without constructions, which may form the object of private property, not registered in the land book or registered in the land book opened under the Decree-law No 115/1938, in accordance with the law.
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Potrivit art. 457 alin. (1) C.pr.civ., hotărârea judecătorească este supusă numai căilor de atac prevăzute de lege, în condițiile și termenele stabilite de aceasta, indiferent de mențiunile din dispozitivul ei. De asemenea, conform prevederilor art. 460 alin. (3) C.pr.civ., în cazul în care prin aceeași hotărâre au fost soluționate mai multe cereri principale sau incidentale, dintre care unele sunt supuse apelului, iar altele recursului, hotărârea în întregul ei este supusă apelului.
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The national system of public administration is subject to the impact of the medical-sanitary crisis in various forms, on all levels of organization, being additionally responsible and obliged to identify solutions of a normative and administrative nature. One of the important negative effects generated by the current medical-sanitary crisis is the impossibility of the administration to ensure the continuity of activities whose realization is conditioned by administrative authorization, by extension/renewal of authorizations, approvals, agreements, etc., making use of some acts during the validity period, in the sense of giving them the effects provided by law, or the exercise of some personal rights, on the basis of some documents (such as identity documents) when they are in the period of validity. The lack of an infralegal normative framework, of secondary regulation, establishing the scope of the documents the validity of which is extended during and beyond the cessation of special states of emergency and of alert and the conditions in which the prorogation of validity operates, leads to a non-unitary application of the normative act of primary regulation, which includes a general formulation, and inevitably at an additional pressure on the specialized administrative contentious courts, which will be notified either by their holders/beneficiaries, or by third parties whose rights and legitimate interests are harmed.
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European democratic societies have shown, in recent years, an increased interest in reforming justice, the aim being to make more efficient the process of administration thereof. Likewise the efficiency of justice is a complex and continuous process which involves, among other things, guaranteeing the quality of the judicial decision and resolving the cases within a reasonable time. Within the present approach the author made a radiography of the most important reforms initiated and partially carried out in France, Italy and Spain. The investigation carried out has led to the conclusion of the existence of some common regulatory trends, but also to the existence of some different solutions. Common trends have been identified in terms of judicial organization, distinguishing itself a process of concentration of jurisdictions and of specialization thereof. The most significant example from this point of view is that of France, a country where a recent reform has led to the merger of the courts with the high courts. The courts resulting from this concentration are called judicial courts. In Spain, the justice reforms were initiated in 2001 following the conclusion of a „State Agreement” between the Government, the People’s Party and the Socialist Party. In Italy in recent years it was undertaken a reform which led to the increase in the competence of justices of the peace. In all the mentioned states there was also a marked tendency towards making more efficient the alternative ways of resolving the conflicts. Different procedural and judicial options were found regarding the composition of the superior councils of the magistracy, the organization of judicial inspections and the organization of the Public Ministry. Such options take into account the particularities of each judicial system, which excludes a total uniformity and are part of the democratic processes aimed at consolidating the state of law.
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Modern society is based on the predominance of organic solidarity over mechanical solidarity and, consequently, on the predominance of the law which ensures cooperation between autonomous subjects from repressive law, which sanctions, through penalty, any deviation from the standards of the common conscience. Modern society is „civilized”, i.e. it is firstly and foremost based on „civil” law, the repressive law only being exceptional, which translates into three principles: that of the subsidiarity of criminal law, that of the necessity and legality of offences and penalties, and that of the additional protection of individual freedom when the subject is criminally charged. The consequence thereof is that, in modern liberal democracies, all repressive law is criminal, that any charge which may lead to the application of a repressive sanction is a criminal charge and that the law-maker cannot assign to the administration the competence regarding the application of repressive sanctions. Under these circumstances, the transformation of some repressive norms into norms of administrative law is a violation of the fundamental principles that structure the legal order of modern liberal states. Nonetheless, this type of practice is becoming more common. In order to ensure individual freedom, this tendency must be corrected. As politicians are not willing to do so, naturally this is a task for the judicial courts, that can rely for this endeavour on the European Court of Human Rights’ constructive jurisprudence.
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Potrivit art. 273 alin. (1) C.pen., fapta martorului care, într-o cauză penală, civilă sau în orice altă procedură în care se ascultă martori, face afirmații mincinoase ori nu spune tot ce știe în legătură cu faptele sau împrejurările esențiale cu privire la care este întrebat se pedepsește cu închisoare de la 6 luni la 3 ani sau cu amendă.
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The following study has as research and reflection theme the influence of force majeure on labour relations, determined, in particular, by the legal norms specially adopted in the context of the existence of the pandemic caused by the spread of the SARS-COV-2 coronavirus. There are defined the force majeure, and its specificity is presented, taking into account the regulation of the Civil Code [Article 1351 (2)], as well as relevant doctrinal theories. Next, what is the essence of this stage, there are presented and analyzed the consequences of force majeure, especially consisting of the afore-mentioned pandemic, namely with regard to: forced labour, employment in public institutions and authorities, duration of labour relation, individualized work schedules and overtime work, change of place and type of work, suspension of labour relations, notice periods, patrimonial liability, collective labour agreements and labour disputes. The study ends with the conclusions on the analyzed problems.
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Potrivit prevederilor art. 60 alin. (1) lit. c) din Codul muncii și art. 21 alin. (1) lit. a) din Ordonanța de urgență a Guvernului nr. 96/2003, interdicția temporară de concediere a salariatei gravide se aplică numai în situația în care angajatorul avea cunoștință la data emiterii deciziei de concediere despre starea de graviditate a salariatei concediate. Deși art. 272 din Codul muncii prevede că sarcina probei în litigiile de muncă revine angajatorului, dovada faptului pozitiv al informării prealabile cade în sarcina salariatei gravide care contestă faptul negativ invocat de angajator că nu a luat cunoștință de starea de graviditate anterior concedierii.
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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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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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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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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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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 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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The present study starts from the question whether a reform of the judicial system is necessary in Romania, considering also the fact that the current regulation was adopted in 2004, a part of it having its source in the Law No 92/1992 for the judicial organization. The author considers that the change of the new procedural legislation has led to some normative inconsistencies and to an overcrowding of the courts, especially of the supreme court. The situation became critical and the supreme court was forced to promote an interpretation likely to abandon the original conception of the new Code, namely that according to which it is a common law court in matters of review. The Law No 310/2018 amending the Law No 134/2010 on the Civil Procedure Code, as well as for the amendment of other normative acts has enshrined this new approach of the supreme court, which provoked vehement criticism from some authors.
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This study examines the manner in which the Romanian Constitutional Court has used in its practice the principle of non-retroactivity of the law with reference to service pensions. At the same time, the study contains a detailed critical examination of the thesis of the constitutional contentious court regarding the qualification of the laws amending or repealing the service pensions already in payment as non-retroactive and, therefore, in compliance with the constitutional requirements. On the other hand, the author of the study advances the thesis according to which any law that modifies the formula of calculation of the service pensions in payment, including by resorting to the extension of the contributivity rule, is retroactive and, consequently, unconstitutional. In substantiating this statement, there are initiated a series of considerations regarding the defining elements of the right to pension, the theories regarding the earned rights, as well as the development of a detailed analysis of the concept of legal effects produced during the application of another law (new law).This study examines the manner in which the Romanian Constitutional Court has used in its practice the principle of non-retroactivity of the law with reference to service pensions. At the same time, the study contains a detailed critical examination of the thesis of the constitutional contentious court regarding the qualification of the laws amending or repealing the service pensions already in payment as non-retroactive and, therefore, in compliance with the constitutional requirements. On the other hand, the author of the study advances the thesis according to which any law that modifies the formula of calculation of the service pensions in payment, including by resorting to the extension of the contributivity rule, is retroactive and, consequently, unconstitutional. In substantiating this statement, there are initiated a series of considerations regarding the defining elements of the right to pension, the theories regarding the earned rights, as well as the development of a detailed analysis of the concept of legal effects produced during the application of another law (new law).
