-
This article addresses the issues represented by the content and conduct of criminal proceedings, naturally framed in certain coordinates which, due to their combination and their complexity serve to develop a criminal trial theory, which is based on the following constants: the nature of the criminal trial, the object of the criminal trial, systematization of criminal trial, criminal trial subjects and criminal procedural relations. -
In this study, the author examines an institution subsequent to the right to defense, namely the right to access the criminal case. If the during the trial phase is no problem with interested parties consulting the case, as the parties are provided with unrestricted access to the documents in the case, one cannot consult the case during the prosecution phase. Thus, in the current Code of Criminal Procedure, access to the criminal case is not explicitly regulated; reason why the prosecution’s practice is inconsistent from this point of view. Subsequent to the analysis of the way the case can be accessed during the prosecution phase, the author details the procedure established for this purpose under the new Code of Criminal Procedure; this procedure appears as a new aspect of future regulations. Last but not least, the paper deals with the institution for access to the criminal case from the perspective of the European legal systems (Germany, Italy, Spain, France, and Czech Republic).
-
In its capacity of party to the (European) Convention on Protection of Human Rights and Fundamental Freedoms and its Additional Protocols, inter alia, Romania has committed to comply with Art. 6 of the mentioned international instrument as well as with art. 2 of the Additional Protocol no. 7. For this reason, it is imperative that documents which have important procedural consequences and emanating from a body which is part of the executive power, to be susceptible of a fair and adversarial control from a judge, meeting the fairness guarantees consistent with the rule of law – this is, in fact, the ratio legis of art. 2781 of the Criminal Procedure Code. Equally, according to art. 2 of the Additional Protocol no. 7 to this Convention, any person convicted of an offense within the autonomous meaning of this term, has the right to submit the “declaration of guilt” concerned to the analysis of a higher court, benefiting from the double degree of jurisdiction in criminal matters. This study aims to analyze the compliance of the referred supranational provisions with the provisions of positive domestic law.
-
The study below is consecrated to the new procedural regulations regarding the arbitral award. In the first part of the study the author specifies the decisive part of the autonomy of the will in establishing the rules applicable to the arbitration, especially to ad-hoc arbitration. The determination of all procedural rules by arbitrators, in case of ad hoc arbitration, is often difficult. That is why, on the side, respectively in so far as the parties have not established the applicable rules, and those enacted in Book IV of the new Civil Procedure Code are not covering, the author defends the necessity of the access to common law. An emphatic criticism shall be brought to the provisions of art. 594 paragraph 2 of the new Civil Procedure Code, the text requiring the exposure of the arbitral award, comprising provisions on the transfer of the ownership right or the granting of another real right to the law court or to the notary public in order to obtain, as the case may be, the vesting with the „writ of execution” or an „authentic notarial deed”. The author’s undertaking is focused on the arbitral award, on its content, as well as on the grounds legitimating the exercise of the action for annulment. He considers the action for annulment to be a specific procedural way of abrogating an arbitral award. Interesting considerations are formulated also in relation to the proposal of consecrating the remedy at law of the recourse against the judgment passed by the competent court of appeal. The solution is proposed in the Draft Law for the enforcement of the new Civil Procedure Code.
-
The new Romanian Civil Code advances a new conception regarding the divorce, essentially different from the conception with which we were familiar under the legislation that is (still) in force. Analyzing the provisions of Arts. 373-404, contained in Book II, “Family” of the new Civil Code, a note must be made of the non-dissimulated liberal “philosophy” on divorce, particularly expressed through the following features: multiplication of the reasons for divorce – in the sense that divorce by the spouses’ agreement may also take the form of a request accepted by the other spouse, the de facto separation is a distinct reason for divorce, allowing for the dissolution of marriage including out of the exclusive fault of the claimant spouse’ the “de-judiciarization” of the divorce procedure – by the fact that marriage termination does not fall under the exclusive competence of the courts of law, in the case of divorce by proper consent, alongside the judiciary means, being also available the means of administrative or notarial procedure, the latter being accessible even in the presence of spouses’ underage children, the limitation of post-divorce legal issues – by encouraging the settlement of “all issues” related to marriage, patrimonial or non-patrimonial, in the relation between spouses, as well as in the relations between parents and children, preferably by the spouses’ agreement of will and, inasmuch as possible, “in one package”, on the occasion of marriage termination. This study is dedicated to these features. In the introductory part (§1), we propose a systematization model for divorce cases, then we analyze the forms taken by divorce according to the reason for marriage termination (§2), making a distinction between divorce as a remedy – by the spouses’ agreement, at the request of either one of them accepted by the other spouse, for health reasons – and divorce by fault – for reasons that are not provided by the law, due to the de facto separation which lasted at least 2 years.
-
In this study, the author – by making a comparative analysis of the legal treatment of the spouses’ common assets obtained in the course of marriage in the new Romanian Civil Code (Law No. 287/2009, as amended by Law No. 71/ 2011 and in force as of October 1, 2011) – issues a series of own interpretations in the field, including with regard to the spouses’ tacit mandate within the legal joint property of assets according to the regulations of the Romanian Civil Code, also underlining a series of negative aspects (with regard to common assets) contained in the regulations of the new Code.
-
In this study, the author examines Law No. 133/2011 for the amendment of several provisions of Law No. 360/2002 regarding the policeman’s status. The author has also certain positive appreciations on these amendments, but she primarily retains a series of negative sides on Law No. 133/2011, especially by the fact that the mentioned law provides that “the procedure and cases for modifying and/or suspending the policeman’s business relations shall be established under an order issued by the minister of administration and internal affairs”, which is, in the author’s opinion, contrary to the principles of the Romanian Constitution.
-
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 study analyzes the situation – which is not expressly regulated by the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms – in which, after the claimant notified the European Court of Human Rights (and until 1998 the Commission within such Court), the respective claimant demises. The study takes into account a rich history of relevant cases, resulting from the case law of the Court/Commission. In the end, after examining the mentioned cases, a series of conclusions may be briefly deducted.
-
In this study, the author, solving a controversy (generated by the imperfection of the relevant regulatory acts) reaches the conclusion (based on a rational interpretation) that the prefect has the legal competence to exert the administrative guardianship control also on the decisions issued by the president of the county council, whether or not the latter is considered as an authority of the local public administration.
-
The above study makes a detailed analysis on the precise meaning of Art. 821 para. (1) of Law No. 161/2003, according to which “The deputy or senator who, during the exercise of term of office of a member of Parliament, desires to exert the profession of attorney at law may not plead in the cases judged by the courts of law or tribunals, nor may they provide legal services to the prosecutors’ offices attached to such courts of law.” In this context, the author concludes that the legal limitation of the interdiction mentioned only under the “pleading” in front of the courts of law and tribunals (or granting the legal assistance to the prosecutor’s offices attached to such courts of law), since the reasons which imposed the regulation under discussion are identical also in the situation of the cases which are judged by higher courts of law (Courts of Appeal, High Court of Cassation and Justice).
-
According to Art. 244 para. (1) of the current (Romanian) Civil Procedure Code, the court may suspend trial if: – the settlement of the case depends, in full or in part, on the existence or inexistence of a right that forms the object of another trial; – criminal prosecution was initiated for a crime which would have a decisive influence on the decision to be issued. The author examines this text by correlation to Art. 248 et seq. of the same Code regulating superannuation. In this context, the author believes that the request to reopen the suspended case according to Art. 244 of the Civil Procedure Code for the re-initiation of trial is not a procedural act which must be fulfilled by the court ex officio. Moreover, the court of law may only re-place the case on the dockets to ascertain superannuation, on which occasion it shall have to grant trial expenses to the defendant or respondent in appeal (as applicable), which requests or produces proof of such expenses.
