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The study examines the issue of unlawful interceptions and audio or video recordings made during preliminary acts, i.e. prior to prosecution; this is a common problem the case law courts are often faced with. The conclusion that interceptions and carrying out audio or video recordings prior to the start of a criminal trial are unlawful is produced by the author based on the analysis of the Constitutional Court’s jurisprudence on this matter and of power of res judicata accompanying the Constitutional Court’s judgments which is attached not only to the operative part, but also to the considerations underpinning it. -
In this article, the author critically examines matters of criminal procedural guarantees for the injured person, the injured party or civil party, stressing their importance in the administration of criminal justice. In this context, topics on the rights of victims are depicted inspired from the principle of equality of arms, inferred from the (European) Convention on Human Rights and Fundamental Freedoms, the author making some suggestions on repairing the damage caused as a result of the offense.
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The study presents critical issues on contraventional complaints’ settlement procedure from point of view of Law 202/2010 regarding certain measures to accelerate the process. The reason for this amendment was obvious: the rapid settlement of trials far more numerous than in other matters also due a consequence of the fact the offenders’ procedural interest was that many times only that of suspension of the enforcement of fines and other sanctions imposed by the records of offense, suspension which, according to legislation in the matter, became effective by law upon the registration of the contraventional complaint until the date of the final and irrevocable judgment. In the second part of the study, the author has analyzed the nature of contraventional law given that offenses were removed from the criminal law and have undergone administrative arrangements. Issues of unconstitutionality by removing appeal in certain contraventional matters were addressed, arguing that thereby they have infringed art. 2 of Protocol 7, supplementing the (European) Convention on Human Rights and Fundamental Freedoms. In the final considerations, the author revealed that the ruling no. 500/2012 of the Constitutional Court case-law is a welcomed revival for the Romanian legislation arguing that it forces a reconsideration of the regulation on contraventional proceedings as a whole.
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Potrivit art. XXIV alin. (1) din Legea nr. 202/2010, numai hotãrârile pronunțate înainte de data intrãrii în vigoare a acestei legi rãmân supuse cãilor de atac, motivelor și termenelor prevãzute de legea sub care a început procesul; prin urmare, hotãrârile pronunțate ulterior intrãrii în vigoare a Legii nr. 202/2010 sunt supuse cãilor de atac, motivelor și termenelor prevãzute de dispozițiile Codului de procedurã penalã, astfel cum au fost modificate prin aceastã lege. Conform alin. (2) al aceluiași articol, „Procesele în curs de judecatã la data schimbãrii competenței instanțelor legal învestite vor continua sã fie judecate de acele instanțe, dispozițiile referitoare la competența instanțelor din Codul de procedurã penalã, republicat, cu modificãrile si completãrile ulterioare, precum și cu cele aduse prin prezenta lege, aplicându-se numai cauzelor cu care instanțele au fost sesizate dupã intrarea în vigoare a prezentei legi”.
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The author, without claiming to exhaust the subject, drew up this study in the attempt to start a theoretical discussion, but with practical implications as well, regarding the real concurrence of offences between the aggravated thefts committed under the circumstances provided by art. 209, parag. 1, letter i) of the Criminal Code, namely by breaking, escalade or use without right of a real or false key and the trespassing provided by art. 192 of the Criminal Code. -
In international relations the old rule of law acta probant sese ipsa has not the same value as inside of a state because it is considered that an authority of a State who receive a document from another State should be put in an extremely difficult situation in terms of imposing the task of assessing the authenticity of a foreign document to the first sight. So, the use abroad of official documents from a State authorities require the completion of special formalities in order to ensure the originality, the authenticity of signatures/seal and legality of a specific document preparation. If by 1961, the year of concluded of the Hague Convention on Abolishing the Requirement of Legalization for Foreign Public Documents (to which Romania joined by the Government Ordinance no. 66/1999, approved by Law no. 52/2000), there was only legalization procedure, since that date appears apostille procedure (only for the states signatory to the Convention) determined by reason of simplifying the requirements necessary to be fulfilled for the validity of official documents abroad. The aim of the present study is to present the apostille procedure in the light of the provisions of the Hague Convention on Abolishing the Requirement of Legalization for Foreign Public Documents and of the Romanian provisions regarding this issue.
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The liberty of the person is one of the most important social values, its importance requiring its protection by criminal law rules, in all the states with acknowledged democratic systems. Taking into consideration the content of the offense of deprivation of liberty in the new Criminal Code, the authors made a brief examination of these provisions and carried out a comparative analysis with the current provisions. The comparative analysis refers to the differences existing between the two accusations, differences noted in particular as regards the accusation of aggravated forms of this offense. The authors also carried out a comparative law examination proving that the illegal deprivation of liberty is an action regarded as an offense by all the countries, and that there are many elements of similarity, as well as certain insignificant differences between its content in various legislations. In the conclusions they formulated, the authors proposed the addition of other aggravated forms to the provisions of the new Criminal Code, forms that are in fact provided both in the current Criminal Code and in the legislations of other European Union countries.
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The author explains in detail the concept of “civil servant”, according to the interpretation of the provisions of art. 175 of the new Criminal Code adopted by Law no. 286/2009, attempting to reveal both the merits and the limitations of the interpretative rule examined contextually. The author examines each of the categories of persons falling, according to the lawmaker’s wish, under the notion of “civil servant”, which he accompanies with examples, at the same time mentioning numerous decisions of the courts of law keeping their validity in relation to the provisions of the new Criminal Code as well. In the end, following the analysis made, the author reaches certain conclusions and formulates some de lege ferenda proposals aimed at improving the text examined.
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In the following study, the author makes a relatively exhaustive analysis of the provisions of book IV in the new Romanian Civil Procedure Code (Law no. 134/2010, a Code already published (on 15 July 2010) in the Official Journal of Romania, but not yet in force. In this context, the author examines the provisions of “About arbitration” (art. 533-612) in the new Romanian Civil Procedure Code, (with a special focus on the institutionalized commercial arbitration) in relation both to the corresponding provisions in the current Romanian Civil Procedure Code, and to the provisions contained in the Rules of Arbitration of the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania.
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The article examines certain problems that have occurred in practice in relation to the institution of retrial in case of extradition for persons convicted by default, namely the possibility to order, after the admission in principle, the entire or partial suspension of the decision whose retrial is requested, the moment as of which the pronouncement of a decision regarding the admission of such retrial produces legal effects, both as regards the annulment of the former conviction decision, and regarding the annulment of the punishment execution warrant, with direct implications on the release of the person in question, as well as the impact of the legal provisions regarding the intervention of the special prescription of criminal liability, upon the retrial of such a case.
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In this study, the author comments on a 2010 decision of the High Court of Cassation (the Commercial Section) dismissing – in a final way – an action for declaring absent a sale-purchase agreement for real-estate – a future good – considering that there is a condition precedent, and not a contingent right, as the author claims.
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On the occasion of enforcing the European arrest warrant, the Romanian authorities dealt with the situation in which the person requested was subject to the development of judicial proceedings in Romania, regarding other offences than those for which the request had been made. In this case, the Law 302/2004, as subsequently amended and supplemented, provides for the possibility for the court to postpone the surrender until the completion of the judgment or until the execution of the punishment, or to order the temporary surrender of the person sued, under the conditions established by an agreement concluded in writing with the issuing judicial authority. The article examines matters related to the practical application of the institution of postponement of surrender, referring to the premise situation that needs to exist and to the possible solutions a court may order.
