CONSIDERATIONS ON THE REGULATION OF ARBITRATION IN THE NEW CIVIL PROCEDURE CODE – WITH PARTICULAR CONSIDERATION OF INSTITUTIONALIZED ARBITRATION

Author(s): Adrian Severin / Language(s): English Issue: 01/2011

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.

LEGAL REGULATION OF THE EXTRADITION IN ROMANIA

Author(s): Petre Buneci / Language(s): English Issue: 01/2011

The extradition has as source of regulation the bilateral and multilateral conventions, reciprocity declarations and internal law, the main source of regulation being found primarily in conventions or reciprocity declarations. The international conventions or the treaties represent international agreements concluded between states and governed by the international law; either they are cosigned in a single instrument, either in two or more annexes, irrespective of their particular denomination. These are bi or multilateral acts resulted from the agreement of the states and are governed by the principle „Pacta sunt servanda”, representing the law of the parties which must be executed in good faith. Concretely in Romania, the extradition was regulated as a law institution, in art. 16-19 of the Criminal Code and in the art. 630-638 of the Procedure Criminal Code, Carol II of 1936, the texts mentioned above just consecrating the principles already known of the international penal law. Nowadays, in our country the extradition is regulated by Law no. 302/2004 relating to international judicial cooperation in penal matters amended by Law no. 224/2006, GEO 103/2006 and Law no. 222/ 1 ), this special law clearly stipulating their substantive and formal issues, fixing also the legal framework in the limits of which can be solicited or admitted, its sources of regulation, as well as the order in which they can be used.

EXPORT CARTELS – A CENTURY OF FUMBLE ATTITUDES?

Author(s): Cristina Gonta / Language(s): English Issue: 01/2011

The present article analyzes, from a historical perspective, the debate concerning the export cartel debate from its birth in 1918 until today. There can be identified four different periods of the debate that revolve around the enactment of the Webb-Pomerene Act, the creation of the Bretton Woods institutions, the creation of the World Trade Organization and the July package decision of 1 July 2004. The article highlights the actors and the ideas that shaped the debate and the results that were obtained. While it is clear that the fairest solution to the issue of export cartels would be the prohibition of this practice, what is not clear is the path that would lead to the ban and the institutional framework that would support it afterwards. This paper thus proposes an approach for identifying the most affordable solution. It argues however that, before launching an institutionalized solution on export cartels, more in depths analysis is needed2).

REFLECTIONS – PARTIALLY CRITICAL – ON THE AMENDMENTS AND SUPPLEMENTS BROUGHT TO THE CIVIL PROCEDURE CODE BY LAW NO. 202/2010 REGARDING CERTAIN MEASURES TO ACCELERATE THE RESOLUTION OF TRIALS

Author(s): Ioan Leş / Language(s): English Issue: 02/2011

This study is designed to carry out a general examination of the provisions established in Law no. 202/2010 regarding certain measures to accelerate the resolution of trials. The author presents the most significant amendments and supplements brought to the current civil procedure code in various fields: the judgment before the trial court, the appeal, the second appeal, the special procedure and the enforcement. The author also formulates opinions regarding some of the new legislative interventions. However, some “innovative” resolutions are also emphasized in relation to the provisions of the new Civil Procedure Code itself, some of them being considered by the author questionable.

WASTE AS A GLOBAL PROBLEM

Author(s): Silvian Ionescu / Language(s): English Issue: 02/2011

After revealing that the waste is a global problem, the author stresses the importance of recycling in the context of a new model of sustainable development ecopolitic. Also, models are highlighted global recycling and directives (right side) in the European Commission. At the end of the article, the author sets out proposals for a study on the management of waste electrical and electronic equipment in Romania.

THE SUSPENSION, PROSECUTION AND DISMISSAL OF THE PRESIDENT OF ROMANIA AND OF OTHER HEADS OF STATE FROM EUROPEAN UNION

Author(s): Ion Rusu,Angelica Chirilă,Varvara Coman,Minodora-Ioana Rusu-Balan / Language(s): English Issue: 02/2011

This study examines a critical view of a particularly sensitive topic and briefly discussed in the literature, namely: the responsibility of the President of Romania. Given the complexity of this theme, the research focuses on the severe analysis of the constitutional standards relating to political and legal responsibility of the Institution of the President of Romania in the light of serious violations of the Constitution. The analysis also seeks scientific interpretation of the legal phrases "grave acts” which violate the constitutional stipulations" and "high treason", by identifying specifically those actions that can be classified as "grave", and also those that can meet the elements of an act of "high treason". The whole issue concerns the comparative analysis with the fundamental laws of some states with traditional democratic regimes. The analysis highlights the need for supplementing and amending some constitutional rules on the subject examined from the perspective of more accurate evaluation and of clear demarcation of Constitution violations, which can be interpreted as grave or others of high treason that can be imputed to the President.

GENERAL CONSIDERATIONS REGARDING ELECTRONIC MONITORING SERVICES AND PROGRAMS

Author(s): Dumitru Marin,Ovidiu Predescu / Language(s): English Issue: 02/2011

In this study the author presents the main characteristics of the services and programs of electronic monitoring of culprits and convicts, at the same time revealing both the strong points and the shortcomings thereof, found in the implementation process. Furthermore, the author pleads for the organization of a serious debate at national level on the necessity and timeliness of implementing such services and programs in Romania, in the context of the present criminal reform.

SPECIAL BANKING PROCEDURES IN THE NEW LEGAL APPROACH

Author(s): Ianfred Silberstein / Language(s): English Issue: 03/2011

Ever since Law no. 58/1998 was adopted – hereinafter called the Banking Law – the legislator contemplated introducing in the legal provisions some special procedures to prevent banks’ entering into the judicial liquidation procedure. Global financial Crises imposed finding adequate solutions in the field. Through Government Emergency Ordinance no. 26/2010 was modified, in essence, the chapter regarding special administration. Thus, increased and diversified the numbers of reasons which determined the applicability of the procedure, and also the role of the authority of the prudential supervision along the applicability of the procedure. The study analyzes comparatively and relevant the legislative modifications from the perspective of the New Normative Act.

DIGITAL TOOLS FOR JUDICIAL COOPERATION ACROSS THE EU - THE BENEFITS OF DIGITAL TECHNOLOGIES IN JUDICIAL PROCEEDINGS

Author(s): Vasile Nemeş,Gabriela Fierbințeanu / Language(s): English Issue: 1/2022

Digital technologies have great potential to improve efficiency and access to justice, with the European Commission and the EU Council collaborating on a number of cross-border digital justice initiatives as a result of the political commitment to make national and European e-Justice more accessible. The COVID-19 crisis posed a serious challenge to the smooth functioning of justice systems, confirming that digital technologies are essential to ensure seamless and timely access to justice for citizens and businesses, thus contributing to building resilient national systems. The Joint Roadmap for Recovery1 , endorsed by the European Council on 23 April 2020, recognises digital transformation, alongside the green transition, as having a central and priority role in re-launching and modernising the EU economy. As underlined in the Council Conclusions "Access to justice - “Access to Justice – Seizing the Opportunities of Digitalisation"2 adopted in 2020, access to justice is a fundamental right and a central element of the rule of law, which is one of the core values on which the European Union is founded under Article 2 of the Treaty on European Union and which are common to the Member States. The document also reaffirms that the digital development of the justice sector should be human-centered and should always be guided by the fundamental principles of judicial systems concerning the independence and impartiality of the courts, the guarantee of effective judicial protection and the right to a fair and public trial within a reasonable time.

THEORETICAL QUESTIONS AND MODELS OF COURT ADMINISTRATION

Author(s): / Language(s): English Issue: 1/2022

The separation of public administration and the administration of justice took place in Hungary more than one and a half centuries ago in line with Act IV of 1869. Yet, we may still identify numerous necessary or expedient points of contact in the legal system between the two organizational forms. In public law thinking the administration of justice and public administration have been linked in multiple ways for centuries. There are substantial differences in terms of why and especially how the two branches of law examine the administration of courts, while European scholars of public law also think differently about the issue. In this paper, I aim to introduce exactly these segments: namely what the opinion of Hungarian scholars of public law has been about the separation and the interconnections between the two areas, moreover, the factors based on which they tried to separate the law application activities carried out by jurisdiction and public administration, as well as the theoretical questions that may arise in view of this in connection with the administration of courts.

PROCEDURAL DIFFICULTIES ENCOUNTERED BY ROMANIAN COURTS IN APPLYING EUROPEAN UNION LAW IN THE MATTER OF UNFAIR TERMS IN CONSUMER CONTRACTS

Author(s): Marian Gociu / Language(s): English Issue: 1/2022

While the Member States of the European Union have similar legal systems, they also have many specific procedural differences. This is the reason why the Council Directive 93/13/EEC on unfair terms in consumer contracts states the general provisions, mostly of substantive law nature, and offers the essential criteria to determine if a contractual term is unfair. It becomes the Member State’s duty to transpose the Directive into the national legal framework and to regulate adequate and effective specific means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. Romanian authorities didn’t provide a minimum harmonization of the national law with the principles of the Council Directive 93/13/EEC by regulating accurate legal provisions to ensure that there are effective remedies in the light of article 7 of the Directive, by adapting the guidelines of the directive to the national legal framework and by amending the national rules that didn’t comply with the principles of the Directive, they just took over the text of the Directive, with minor additions, and the list of the terms which may be regarded as unfair. Having at their disposal only the general criteria offered by the Directive, Romanian courts encountered many issues in the course of proceedings that determined some of them to turn to the Court of Justice of the European Union case law, while other courts made use of the preliminary ruling procedure found in article 267 of the Treaty on the Functioning of the European Union to unify their practice. Identifying the problem is the first step in solving it. This study analyzes the difficulties that the national courts stumbled upon in applying European Union Law in the matter under discussion and the various ways they found to overcome them. The study can be a very useful instrument both for Romanian and Member States practitioners.

MEDICALLY ASSISTED SUICIDE AT THE LIMIT BETWEEN CRIME AND LAW

Author(s): Lamya-Diana Hărătău,Alin-Sorin Nicolescu,Mircea-Constantin Sinescu / Language(s): English Issue: 1/2022

One of the most debated topics in the world is the legalization or non-legalization of euthanasia and medically assisted suicide, a fact that has given rise to many questions starting from extreme situations, whom both legislators and health professionals, as well as patients tried to give answers of the most diverse seemingly, but which have in view only a few attributes that are reduced to ethics, morality, religion. This analysis is therefore interdisciplinary, for the elucidation of which it is necessary that professionals of several professions express their point of view. Last but not least, we appreciate that the one who must be the center of the analysis is the patient, the one who is in a desperate and unsolved medical situation and needs this last release.

THE COMPETENCE OF THE TRAINEE PROSECUTOR IN THE CRIMINAL JUSTICE SYSTEM

Author(s): George Gabriel Bogdan / Language(s): English Issue: 1/2022

This article deals with and analyzes the competence of the trainee prosecutor, related to the provisions of art. 23 para. (2) of Law 303/2004 on the status of judges and prosecutors, according to which trainee prosecutors have the right to draw conclusions in court, to perform and sign procedural acts, under the coordination of a full power prosecutor. If the law seems clear with regard to the prosecutor in terms of functional competence and describes the acts or measures that he can take or approve, the situation is different in the case of the trainee prosecutor. First of all, what kind of act is the coordinating act of the prosecutor, how does it materialize in the criminal case and what is the competence of the coordinator in relation to the criminal investigation activity carried out or conducted by the trainee prosecutor? The procedural criminal law states clearly concerning the way of coordinating the trainee prosecutor's solutions, by countersigning them, the situation of coordinating the procedural acts or that of the conclusions before the court is not the same. It should be noted that during the internship, the prosecutor does not enjoy independence in taking measures and resolving cases, but only in stability, carrying out his activity under the coordination of a full power prosecutor. However, the law does not state how the coordinating prosecutor actually exercises this coordination of the trainee prosecutor, respectively if he issues a procedural act or countersigns the trainee prosecutor's procedural acts, or if he has the possibility to overturn the act which, according to common law, is an exclusive attribute of the hierarchically superior prosecutor. Secondly, how is the requirement of predictability of the law fulfilled in relation to the „coordination act” of the full rights prosecutor? In other words, if the coordinating prosecutor does not issue an act, as seems to suggest disp. art. 23 para. (2) of Law 303/2004, in what way can an interested person become aware of the content of the coordination that he/she exercises, and how can he/she concretely challenge it? What is the limit beyond which coordination becomes the supervision and conduct of criminal proceedings, thus removing the competence of the trainee prosecutor and to what extent are the instructions issued by the coordinator mandatory for the trainee prosecutor?

CHANGES IN EXERCISING EMPLOYERS’ RIGHTS DURING THE COURSE OF THE STATE OF DANGER

Author(s): Dóra Varga / Language(s): English Issue: 2/2022

Among other factors, the state of danger (a verbatim translation of veszélyhelyzet in official documents) declared because of the pandemic has made life more difficult than before also for the parties involved employment relationships. The constantly changing legislative environment and the increased presence of COVID-19 have put employers and their employees in a difficult situation both from economic and human perspectives. In what follows, I intend to give an overview of the regulations related to working during the state of danger declared because of COVID-19 from the point of view of the employers’ rights and authority, highlighting two important aspects: that of the institution of home office and that of the vaccinations.

RIGHT TO A FAIR TRIAL IN THE CONTEXT OF CLASSIFIED INFORMATION. A SURVEY IN THE LIGHT OF CCR’S CASE-LAW

Author(s): Valentina Bărbățeanu,Andrei Muraru / Language(s): English Issue: 2/2022

The paper intends to analyze the issue of respecting the right to a fair trial in the situation where the effectiveness of the defence depends on documents containing classified information. There is a delicate issue regarding the vulnerability of guarantees of the right to a fair trial in order to ensure the right of defense, given that the parties' lawyers should have access to all the evidence in the file. Obtaining an ORNISS certificate is the solution offered by law, but to really get one can be problematic. Based on various situations occurred during the proceedings, the whole legal regime of classified information and its influence on the conduct of the trial, in the qualitative requirements of fairness imposed by the Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms, have been subject to the constitutional review exercised by the CCR. This article aims to summarize the case-law of the Constitutional Court, drawing the appropriate conclusions from it, in order to find the most efficient way to harmonize the need to protect the national security by classifying certain pieces of information with the right to access to public information and with the constitutional and conventional imperative of respect for the right to a fair trial.

GENDER BASED VIOLENCE STILL UNDER FIRE. THE ISTANBUL CONVENTIONAND THE ROMANIAN WAY

Author(s): Diana Elena Neaga / Language(s): English Issue: 2/2022

Romania ratified the Istanbul Convention on 23 May 2016, and this can be considered a very important moment in the history of fighting gender-based violence. The Istanbul Convention is considered to be the most far-reaching international treaty addressing violence against women and domestic violence by offering a detailed and comprehensive set of provisions together with important and overarching preventive and protective measures in fighting these phenomena. Nevertheless, there are voices openly criticizing the Convention and advocate for different countries to withdraw from the international agreement. Given the abovementioned context, in my article I will first try to make an analysis of the arguments that made the Convention into the gold standard in protecting women and girls’ rights. Secondly, I will briefly present how and why this “gold standard” has been contested. Last but not least, using the document analysis method, I will attempt a critical review of the way in which Romania responded to the Istanbul Convention requirements, underlining the most important conceptual and legal developments/adjustments that have been done.

FREEDOM OF CONSCIENCE, OPINION AND FREEDOM OF RELIGION BELIEFS - A RIGHT OF PERSONS DEPRIVED OF THEIR LIBERTY

Author(s): Nicoleta Georgeta Vasile (Constantinescu) / Language(s): English Issue: 2/2022

This article represents an analysis of the manner in which the freedom of conscience, freedom of opinions and freedom of religion of inmates are respected, with a particular analysis made on a Romanian prison. In this study I referred to the jurisprudence of the ECtHR in cases against Romania, the national legislation governing the rights of detainees, the collaboration between religious organizations and prisons in order to respect the right to religious freedom, the impact of respecting this right on behavior, the impact of re-educating inmates.

KAZNA DOŽIVOTNOG ZATVORA U KRIVIČNOM ZAKONODAVSTVU U BOSNI I HERCEGOVINI I DRŽAVAMA REGIJE

Author(s): Amar Lukavačkić / Language(s): Bosnian Issue: 1/2022

Life imprisonment is a sentence that is imposed for the most serious crimes and the most serious forms of serious crimes (aggravated murder, child abuse, serious forms of rape, genocide, terrorism etc). One of the modern tendencies in criminal law is the introduction of life imprisonment as the better and more humane alternatives to the death penalty. Its introduction replaces the sentence of long-term imprisonment, which may be imposed in some legislations for criminal offenses punishable by life imprisonment. In this regard, the advantages and disadvantages of life imprisonment and the death penalty will be analyzed to determine whether life imprisonment is indeed more humane than the death penalty. The sentence of life imprisonment may, under certain conditions, constitute a violation of the prohibition of torture guaranteed by Article 3. of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It is precisely with this sentence that it is most controversial if the person convicted according to national law has no prospects of being paroled after serving a certain number of years, that is, of the same sentence being irreducible. It is important that a person sentenced to life imprisonment has the right to know at the beginning of the sentence what and under what conditions he must do in order to consider his release, as well as to know when his sentence will be reviewed or when he can request it. The paper offers information on the legal solutions of the countries of the region related to this punishment, individual cases from the case law of the European Court of Human Rights and the frequency of sentencing in this area where it is represented.

DISKRIMINACIJA NA OSNOVU MJESTA PREBIVALIŠTA U RECENTNOJ SUDSKOJ PRAKSI EVROPSKOG SUDA ZA LJUDSKA PRAVA SA NAGLASKOM NA BOSNU I HERCEGOVINU

Author(s): Dženeta Omerdić,Harun Halilović / Language(s): Bosnian Issue: 1/2022

Widening case law of the European Court of Human Rights (ECtHR) interpreting the notion of discrimination, especially the ambit of discrimination based on “other status” offers important elements in the understanding of the legal definition of discrimination. More specifically, it offers elements in understanding of the scope of discrimination grounds listed under “other status”, such as the place of residence. Discrimination cases before the ECtHR against Bosnia and Herzegovina relate primarily to the discriminatory nature of Bosnia and Herzegovina’s election system, focusing on ethnicity as the main basis for discrimination. However, often overlooked is the place of residence as the discriminatory ground, identified in numerous cases alongside ethnicity (such as the cases of Pilav, Zornic and recently Pudaric), or as a stand-alone basis as in the case of Baralija. The ECtHR’s positions expressed in judgments to these cases offer certain interpretations important for Bosnia and Herzegovina’s election system, legal and constitutional order and showcase the potential power and influence which the ECtHR’s judgments may have in the strengthening of rule of law and overcoming political stalemates. Outside Bosnia and Herzegovina, the cases may offer some new insights in defining and reinterpreting the legal notion of discrimination and the legal ambit of the prohibition of discrimination on the grounds of place of residence, such as discriminatory effects of legal void and the discriminatory treatment between persons having a place of residence within the same respondent country.

PRAKSA USTAVNOG SUDA BOSNE I HERCEGOVINE

Author(s): Miodrag N. Simović,Vladimir M. Simović / Language(s): Bosnian Issue: 1/2022