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If we take into account the whole spectrum of values and interests which are protected by means of criminal law, human life, bodily integrity and health seem to deserve the highest degree of protection. It is noted, however, that the protection of an unborn human being goes with a much lower standard, in comparison to the protection of a born person, aspect which is mirrored not only in the lawfulness of abortion in certain cases, but also in the less severe penalties imposed by the law. Are the life and the bodily integrity of the fetus legally protected interests under the internal provisions? Is the mother, the unborn child or the child the passive agent of the termination of pregnancy and harming the fetus offenses? The present study offers an insight into these problems, focusing on the protection of human life and bodily integrity during the earliest stages of the development. The relevant provisions under Romanian criminal law regarding the prenatal and natal phases consist of two offenses, namely the termination of pregnancy and the harming the fetus, the latter being introduced by the new criminal Code. One cannot but agree that the change represents an improvement, nevertheless the integration in the system envisaged by the legislator of this new offense is fairly incoherent.
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The purpose of the present research paper is not necessarily to examine the whole matter of the European arrest warrant, but only to emphasize those specific problems arising in practice with the application of this institution. The structure of this scientific approach is represented by a detailed criticism of the current rules on the European arrest warrant in view of the European Commission reports over the implementation of the Framework Decision revealing flaws in the functioning of the system, despite an overall positive examination. Therefore, the main topics addressed in this paper, aims to analyse the method in which the European Arrest Warrant is executed, starting from the analysis that should play grounds for refusal, up to measures that can be taken to implement it. The European Arrest Warrant has reduced the duration of surrender procedures between member states, facilitated the free movement of persons within the European Union and contributed in fighting cross-border crime. However, the automatic mutual recognition underlining the European Area of Justice, Freedom and Security is currently being questioned by concerns about the differences in fundamental rights protection between member states. For instance, studies have shown that there is a different level of protection of procedural rights among the member states and that some judicial authorities do not apply any proportionality test before issuing an European arrest warrant, which leads to European arrest warrants being issued for minor offences. As a consequence, the European arrest warrant Framework Decision has been implemented in diverse ways by the member states. Several initiatives at European Union level are designed to ensure a more homogenous execution across the European Union. Some legislative measures have been taken in order to reinforce mutual trust between member states.
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The case of Zoran Spasic brings to the Court of Justice of the European Union (CJEU) attention, once again, the principle of ne bis in idem. The CJEU has ruled over the compatibility of the Article 54 of the Convention Implementing the Schengen Agreement (CISA) and the provision of the Charter of Fundamental Rights of the European Union (EU Charter) and the meaning of the enforced sentence.The provisions of the Article 54 of the CISA limit the operability of the principle ne bis in idem to the cases where the enforcement condition has been met. The enforcement condition requires that the penalty imposed “has been enforced”, “is in the process of being enforced” or “can no longer be enforce”, such a requirement is not stipulated by the Article 50 of the EU Charter. In these conditions, the CJEU has been questioned about the compatibility of the Article 54 of the CISA with the provisionsof the EU Charter, and, if so, when a custodial sentence and a fine are imposed as principal penalties, the payment of the fine is sufficient to consider the enforcement condition fulfilled.The Court of Justice held that, even if the enforcement condition constitutes a limitation of the ne bis in idem principle, it is compatible with the EU Charter, the Article 52 of the EU Charter provides the situation in which the rights deriving from the Article 50 of the EU Charter regarding the principle may be restricted. In terms of the second question, the Court held that when a fine and a custodial sentence are imposed as principal penalties, the payment of the fine alone does not satisfy the enforcement condition within the meaning of the CISA.The direct effect of the ruling in the case of Zoran Spasic is that the German authorities can proceed to prosecute again Mrs. Spasic for the offences committed in 2009 for which he has not served the sentence pronounce by the Tribunale ordinario di Milano.As an effect of the Court decision, the enforcement condition provided by the Article 54 of the CISA from now on will be apply to all situations in which the ne bis in idem principle is referred to in a criminal proceeding at a court in the territory of an European Union Member, even if the state is not a member of the Schengen area.By ruling so, the Court has limited the possibility of a person to avoid a custodial sentence by moving jurisdiction in another state.In Romanian criminal law, the enforcement condition has been provided by the Law No. 302/2004 regarding the international judicial cooperation in criminal matters which contains some of the provisions of the CISA including the Article 54.
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This article analyses the mutual recognition of criminal decisions and custodial sentences between the member states of the European Union which represents the cornerstone of judicial cooperation. A matter of this importance requires a range of legal instruments designed and capable to envisage an area of freedom, security and justice. In the following, I have presented the evolution of the legal framework from the Hague Convention in 1970 to the adoption of the package containing Framework Decisions that address the issue of detention of European Union citizens. I’ve tried to highlight the problems that occurred during the implementation in the national law and even when I could not submit a solution, I urged to discover the correct attitude. The main subject of my work regards the Council Framework Decision 2008/909/ JHA on the application of the principle of mutual recognition to judgements imposing custodial sentences or measures involving deprivation of liberty and the way it was implemented in Romania. After presenting the main details of the procedures, I address the first problem regarding the situation of a Romanian citizen, convicted in his home state, who would consider executing the custodial sentence in another member state. Afterwards, starting from a practical case I analyse the opinion of our Supreme Court with references to the directions stated by the European Court of Human Rights. At last, I examine the situation regarding the taking into account of a conviction, fully executed in another member state, in the course of new criminal proceedings.
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Our findings are arises from the European Court of Justice case-law. We have analysed the most important cases to respond on this issue related to this concept.In this sense, we have discussed the Leopold Henri van Esbroeck, the Jean Leon van Straaten, the Jurgen Kretzinger, the Norma Kraaijenbrink and the Gaetano Mantello cases. It must be determinate that in all cases is questioned the applicability of Article 54 of the CISA.Hereby we will attempt to present the relevant criteria in applying the principle considering taking into account the ideas contained in the jurisprudence of ECJ.Furthermore, we will propose some interpretation ways and legislative changes. In same measure a little attention will be given to the ratione temporis application of the principle retrieved in Atricle 54 of the CISA.As we will see, the most important element required by the ‚same acts’ notion is the existence of a concrete set of circumstances that which must be inextricably linked together in time, in space and by their subject-matter, and the Court have rightly pointed out in every case that the internal classification and the protected legal interest is not a barrier in applying of Article 54 of the Convention implementing the Schengen Agreement (CISA).Regarding to the wording found in various international instruments we have noticed that they are using different terms that makes more difficult to apply the principle in the Contracting States. Therefore, Article 54 of the CISA and Article 6 of the Romanian Criminal Procedure Code are using the ‚same acts’ term, while Article 14(7) of the International Covenant on Civil and Political Rights, Article 4 of the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 50 of the Charter of Fundamental Rights of the European Union are using the ‚same offence’ term. Reported to these texts we will suggest a suitable interpretation and application mode of the term following to support this suggestion with practical applications and personal examples.To obtain a correct application of the principle, in the final part of this article we will search for responses to particular situations, such as the term usage difference between the CISA and the Charter, or what happens if in a Contracting State after penalizing a person contraventional for driving under the influence of alcohol it is established after a recalculation of blood alcohol level that the act isn’t a contravention because it’s a crime etc.
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The present article analyses the criminal law provisions regarding the apprehension of a person by bench warrant and their compatibility with the case law of the European Court of Human Rights. The main goal is to critically and constructively examine the institution of the bench warrant and the cases in which the national regulation does not respect the standard imposed by the Convention. Thus, the article analyses the problems regarding the legality of the deprivation of liberty, the reasoning behind the necessity of issuing a bench warrant, the appeal against an unlawful deprivation of liberty, and the existence of a remedy for unlawful deprivation of liberty.
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The present article aims to address, as the title suggests, some problems reported in the practice of criminal investigation bodies regarding the evidentiary procedure of crime scene investigation, after the entry into force of the new Code of criminal procedure.The first aspect which is analysed is the prerequisite of an in rem beginning of criminal investigation prior to ordering and carrying out the crime scene investigation.At this point there are several aspects taken into account: some slight changes operated by the new Code of criminal procedure regarding the structure of the criminal trial and the way these changes influenced the practice of criminal investigation bodies, as well as the sanctions provided by the new law for not fulfilling the imposed obligations regarding this matter.Another problem which is discussed is the ordering and carrying out of the crime scene investigation in the case of in flagrante delicto, regarding which the initiation of the criminal action is conditioned by the existence of a prior complaint from the victim (private prosecutioon). This is also the case, and here we have a contradiction in the legal provisions – in which a legal provision imposes on the judicial bodies to only find that such deed was committed, without starting criminal investigation (until they obtain the prior complaint), whereas other provisions impose on the same bodies the obligation to start criminal investigation and carry out the crime scene investigation, even in the absence of the preliminary complaint.These issues will be addressed mainly by refering to the practical consequences of the legal provisions and de lege ferenda proposals will be made for each case.
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We also analysed differences between the plea bargaining procedure and its forerunner, the recognition of the accusation during the trial, while indicating the advantages and disadvantages of using each of these procedures.
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