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The authors discuss a guideline given to the prosecutor’s offices through a Minutes of non-unitary practice concluded on 30.07.2020. The guideline refers to the way in which the legal classification must be made, in case of committing the deeds provided by Articles 2 and 3 of the Law No 143/2000 on preventing and combating illicit drug trafficking and consumption, in reference to the Decision No 3/2017 of the High Court of Cassation and Justice, in the case of international drug trafficking, when the act of bringing into or taking out from the country without right is committed in different circumstances of place and time. The authors, analyzing the given guideline, conclude that it is unrealistic. -
The violation of the rules of criminal law by a natural or legal person produces numerous consequences, both on the environment in which the offender lives and on his personality. Thus, criminal sanctions are applied to him with the purpose of preventing the commission of other deeds prohibited by the criminal law, but also of his re-education. However, the legislator, for reasons of criminal policy, has decided to regulate some situations that lead to saving the offender from the punishment provided by law. Among these situations are also the causes of impunity. The article aims to analyze the terminology used by the legislator in drafting cases of impunity and the repercussions that a misunderstanding thereof can have on the addressee of the criminal norm. For the elaboration of this article, doctrinal sources were used in which there have been defined causes of impunity and the moment in which they intervene, but also solutions found in the mandatory case law.
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The increase of the volume of regulations influences the activity of the companies and of the administrators, implying the risk of the latter being liable to the company for legally non-compliant business decisions. Part I of the study examines the legal regime of the obligation of the administrators to comply with the law and the implications of intentionally making business decisions contrary to the law. The conclusion is that the obligation to comply with the law can be seen as an independent obligation or explained through the doctrine ultra vires, but it can also be associated to the obligations of loyalty, good faith and diligence. Part II of the study analyzes whether there are potential exceptions that may justify the making of some legally non-compliant decisions and whether the liability of the administrators could be excluded or limited in certain situations. In principle, the making of profit, the attainment of other interests for the company or the ratification of the decision by the shareholders are not able to justify and exclude the liability of the administrators for making decisions contrary to the law. These decisions also exclude the application of some guarantees against liability, such as business judgment rule, the liability clauses and liability insurance. However, the social, economic and technological transformations accompanied by the inefficient legislation and by the phenomenon of regulatory entrepreneurship can provide sufficiently convincing arguments to change the paradigm in respect of the obligation of compliance. Although the proposed problems and solutions seem obvious, the study raises for discussion some aspects not addressed in the local doctrine, but which do not lack theoretical and practical importance.
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Potrivit art. 335 alin. (1) C.pr.pen., dacă procurorul ierarhic superior celui care a dispus soluția constată, ulterior, că nu a existat împrejurarea pe care se întemeia clasarea, infirmă ordonanța și dispune redeschiderea urmăririi penale. Dispozițiile art. 317 se aplică în mod corespunzător. Conform art. 280 alin. (2) C.pr.pen., actele îndeplinite ulterior actului care a fost declarat nul sunt la rândul lor lovite de nulitate, atunci când există o legătură directă între acestea și actul declarat nul. Articolul 346 alin. (3) lit. a) C.pr.pen. prevede că judecătorul de cameră preliminară restituie cauza la parchet dacă rechizitoriul este neregulamentar întocmit, iar neregularitatea nu a fost remediată de procuror în termenul prevăzut la art. 345 alin. (3), dacă neregularitatea atrage imposibilitatea stabilirii obiectului sau limitelor judecății (cu notă aprobativă).
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Dreptul de trecere, reglementat de art. 616–619 din vechiul C.civ., trebuie înțeles sub trei ipostaze: aceea a dreptului de a cere recunoașterea servituții de trecere, ipostaza exercitării servituții legale de trecere și ipostaza dreptului de a cere modificarea servituții legale de trecere. Legat de dreptul de a cere recunoașterea servituții de trecere, acesta este considerat ca având un caracter potestativ, constituind o simplă facultate pentru proprietarul locului înfundat. Prin urmare, atunci când un imobil devine loc înfundat, proprietarul său poate reclama, prin manifestarea sa unilaterală de voință, să îi fie stabilită o servitute legală de trecere. Caracterul potestativ al dreptului rezultă cu claritate din formularea „poate reclama” din art. 616 din vechiul C.civ. (Curtea de Apel Craiova, Secția civilă, Decizia nr. 739 din 9 iulie 2019, www.rolii.ro)
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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.
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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 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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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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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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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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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.
