NATIONAL AND EUROPEAN CASE LAW – A REMARK FOR THE HIGH COURT OF CASSATION AND JUSTICE IN PRELIMINARY JUDGMENTS

Author(s): Cornelia Beatrice Gabriela Ene-Dinu / Language(s): English Issue: supplement/2024

The High Court of Cassation and Justicehas the responsibility to ensure consistency and predictability in case law. This is essential to maintain individual confidence in the judicial system and to respect the principle of legal certainty, which is a fundamental element of the rule of law. Consistent case law helps guarantee the right to a fair trial and strengthen the rule of law, giving citizens the confidence that they will be treated fairly and according to the law in any litigious situation. According to art. 126 para. (3) of the Romanian Constitution, the High Court of Cassation and Justiceensures the uniform interpretation and application of the law by the other courts, thus having the fundamental role of resolving or clarifying the legal issues that have created or may create a non-unitary judicial practice through the unification mechanisms regulated by law. One of these mechanisms, of French inspiration, introduced by the new procedural legislation in order to prevent non-unitary jurisprudence, is the preliminary ruling for resolving some legal issues. This mechanism comes to analyze the majority case law, as well as the practice at the European level, imposing its binding considerations and in case the notification was rejected as inadmissible, if the resolution given to the question of law, arising from the majority practice of courts, analyzed by the supreme court, or from the previous ruling of the supreme court, can be found in the recitals. In this sense, it is interesting to analyze the importance of the analyzed national and European jurisprudence in the formation of the panel's opinion that resolves the respective legal issue.

Sramna odluka skupštine Crne Gore: zločin se ponavlja Šahovići 1924. — Šahovići 2024.

Author(s): Božidar Proročić / Language(s): Bosnian Issue: 95-96/2024

Sramna odluka u Parlamentu Crne Gore povodom Rezolucije o genocidu u Šahovićima još jednom je ogolila surovu političku stvarnost. Ta Rezolucija, koja je trebala biti simbol moralnog suočavanja sa prošlošću i izraz ljudske empatije prema nevinim žrtvama, podržana je od svega 24 poslanika, od ukupno 60 prisutnih u plenarnoj sali. Taj podatak predstavlja crni pečat na savjesti aktuelne političke elite. Deseti decembar 2024. godine sada će ostati upamćen kao još jedan sraman datum u novijoj istoriji Crne Gore. Dan kada su politički pragmatizam, etnička neośetljivost i moralni sunovrat pobijedili ljudskost i pravdu. Dan kada se po drugi put, ubijaju Bošnjaci-muslimani — ovaj put ne mecima, već nepravdom, ravnodušnošću i političkom kalkulacijom. To je drugi zločin nad žrtvama Šahovića, jer su sada ubijeni nemilosrdno ništa manje bolnije ni sramnije nego te 1924. godine.

Решение № 2423 от 29.02.2024 г. по адм. дело № 9453/2024 г. на Върховния административен съд

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 5/2024

Решение № 9238 от 25.07.2024 г. по адм. дело № 3957/2024 г. на Върховния административен съд

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 5/2024

Решение № 12216 от 08.12.2023 г. по адм. дело № 5289/2023 г. на Върховния административен съд

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 5/2024

Решение № 5039 от 23.04.2024 г. по адм. дело № 11938/2023 г. на Върховния административен съд

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 5/2024

Решение № 12156 от 12.11.2024 г. по адм. дело № 7636/2024 г. на Върховния административен съд

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 5/2024

Указател на съдебните актове

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 5/2024

Driving a Vehicle by Holding a Licence Not Appropriate to the Category to Which the Vehicle Belongs by a Person With a Suspended Driving Licence. Legal Classification. Appeal Within Time Limit.

Author(s): Mihaela Laura Pamfil / Language(s): English Issue: 1-2/2023

The purpose of this paper is to highlight the interpretation and application of the law by the courts in a case that has raised both substantive criminal law and criminal procedure issues. Thus, it is of interest to know the legal classification that must be assigned to the act of a person who commits several forms of the same offence, provided for in the same criminal law. In the present case, the discussion refers to S. 335 (12) of the Criminal Code: Driving, on public roads, a vehicle for which a driving license is required by law, by an individual who owns a driving license which was issued for a different category or subcategory than the one in which the vehicle is included, or whose license has been suspended, withdrawn or rescinded or who is not entitled to drive vehicles in Romania shall be punishable by no less than 6 months and no more than 3 years of imprisonment or by a fine. From a procedural point of view, it is also of interest to analyse the time from which the appeal period starts to run and the defendant's compliance with this period in the context of the fact that the appeal was lodged after the enforcement of the first instance judgment.

Decision no. 11591/2022/ 07.11.2022/Court, Iasi/Misdemeanour Complaint

Author(s): Nadia Cerasela ANIŢEI / Language(s): English Issue: 3-4/2023

Complainant X formulates a contravention complaint at the Suceava Court against the Official Report of Violations, Series ..., no... of 19.01.2022 and the Official Report of Violations Series ...., no .... of 19.01.2022, concluded at the headquarters of the Public Health Department of Iași County-Public Health Control Service and communicated on the date of . ... concluded by the health inspector of the DSP Iasi, whereby I was fined 3000 lei for "failure by the person entering the territory of Romania to complete the Digital Entry Form for Romania-SII-FDIR within 24 hours of entry into the country, according to art.2 paragraph (4) of GEO NR.129/2021, recorded in the report of the observation of sanitary and hygienic conditions no.106603 dated 19.01.2022, made on 10.01.2022, 12:55 PM... Within a maximum of 15 days from the date of delivery or communication of the official report of the finding and sanctioning of contraventions, he will be able to pay half of the minimum fine provided by the normative act, namely 1000 lei". Against these minutes, in accordance with the provisions of art. 31 para. 1 of OG. no. 2/2001, approved with amendments and completions by Law no. 180/2002, and art.118 para.1 of OUG 195-2002, the contravention complaint was formulated. In the course of the trial, the petitioner X took note of the respondent's position and asked the court to find: 1. "the contravention of the contravention of the offence held against the complainant by the report of the contravention" as a result of the fact that the legal conditions for admitting the complaint are not met, the consequence being the annulment of the report of the contravention as stated by the respondent; 2. The restitution of the amount of 1000 lei paid as a fine that was applied and which was paid to the "Local Taxes and Duties Directorate, Iasi" by "Receipt for the collection of local budget debts", in the amount of 1000 lei (Exhibit 4) representing "half of the minimum fine provided for by the normative act, namely 1000 lei" established by the Official Report of the contravention.

Exequator – Nava „Rostok”, Curtea de Apel Constanța

Author(s): Author Not Specified / Language(s): Romanian Issue: 01/2024

Executor Arbitral Award ICC Paris. Place of arbitration Zurich. Compensation for the salvage of the wreck of the ship 'Rostock' from the 'Sulina' branch of the Danube. Violation of Romanian private international public order, which leads to the rejection of the request by the Court of Appeal (civil decision no. 348/16.06.2016 pronounced by the Constanța Court of Appeal in case no. 2378/121/2015).

3. Transport maritim internațional de mărfuri. Contract de navlosire. Contract ad-hoc cu un operator/descărcător. Avarii la navă în operațiunile de descărcare. Responsabilitatea primitorului

Author(s): Author Not Specified / Language(s): Romanian Issue: 01/2024

The dispute between the parties actually concerns who is responsible for unloading the goods from the ship in case of damage during handling, and in this regard, the court considers the charter party contract concluded by the claimant, in their capacity as charterer, to be relevant.

Jurisprudența arbitrală a Curții de Apel București

Author(s): Marin Voicu / Language(s): Romanian Issue: 01/2024

The article presents the arbitral jurisprudence of the Bucharest Court of Appeal in 10 cases.

Sinteză și examen teoretic al jurisprudenței Curții de Casație a Franței în materie arbitrală

Author(s): Marin Voicu / Language(s): Romanian Issue: 01/2024

The consistent jurisprudence of the Court of Cassation has established that it is not sufficient for arbitrators to declare that they can use the conferred powers to apply equity; they must have explicit authorization. The reasoning of the Court of Cassation's decision is clear in this regard and constitutes a warning regarding insufficient grounds: 'the decision reveals that, nevertheless, the linear reference to equity in the operative part of the arbitral award, without adequate reasoning, relative to the entirety of the issues raised in the case, the arbitral tribunal ruled in law, thus the annulment of the award was justified.

Incompatibilitatea arbitrajului privat cu dreptul UE – Jurisprudența selectivă a CJUE

Author(s): Marin Voicu / Language(s): Romanian Issue: 01/2024

In the consistent jurisprudence of the CJEU, it has been established that: 'Union law prohibits a Member State from concluding an arbitration agreement with content identical to that of a null and void arbitration clause, which appears in a bilateral investment treaty (BIT) between Member States. Consequently, the national court is obliged to annul the arbitral award adopted on the basis of such an arbitration agreement' (Grand Chamber Decision of the CJEU of 26.10.2021, in case C-109/20, P.L. Holdings Luxembourg v. Poland and Sweden). Through this decision, the Court of Justice, sitting in the Grand Chamber, developed its jurisprudence established by the Achmea v. Slovakia judgment of 6.03.2018 pronounced in cases C-284/16 and CP no. 26/181.

THE PROBATIVE VALUE OF FORENSIC DOCUMENTS IN THE CASES OF OFFENSES AGAINST LIFE (MURDER)

Author(s): Remus Ionescu / Language(s): English Issue: 18/2022

Evidence does not have a pre-determined value established by the legislator and there is no evidence withhigher probative value, regardless of the authority from which it emanates. Thus, neither the experts’ report nor the opinions issued by the supreme scientific authority in the field of forensic medicine have a higher probative value than the other scientific evidence administered in the case.

Hotărârea Curții Europene a Drepturilor Omului în cauza S.C. Zorina Internațional S.R.L împotriva României

Author(s): Loneta-Honorina Gavrea / Language(s): Romanian Issue: 2/2024

The European Court of Justice, in case 15553/15, issued a ruling regarding the administrative sanctioning of a commercial company that violated national legislation regulating the obligation for economic operators to use electronic fiscal devices and the framework for implementing this obligation. The company failed to issue fiscal receipts for a small amount, for which the national legislation in force at that time prescribed cumulative and strict sanctions: a substantial fine and the suspension of the company’s activity for a period of three months. The referral to the Court regarding the contested interference fell within the scope of analysis of the second paragraph of Article 1 of Protocol 1 concerning measures “to regulate the use of property” and with regard to the fine “to ensure the payment of taxes or other contributions or fines”. The Court’s assessment of whether the national authorities ensured a fair balance between the general interest, on the one hand, and the respect for property rights, on the other hand, was made by a majority vote, six to one. It was concluded that there was no violation of Article 1 of Protocol No. 1 of the European Convention on Human Rights. However, the minority opinion opened a new perspective in the judicial approach to such cases, namely whether it is reasonable for the national legislation of the Convention’s signatory member states to impose excessive sanctions for the commission of a minor administrative offense, and what the limits of such an approach should be.

GOOD OR BAD FAITH OF THE JUDICIAL BODIES. SANCTIONS. PRELIMINARY CHAMBER.

Author(s): Remus Ionescu / Language(s): English Issue: 21/2024

In the activity of judicial criminal investigation bodies, errors or mistakes appear that are the object of contradictory analysis in the preliminary chamber phase. Their detailed research brings into discussion, inaddition to the lack of professionalism of the criminal investigation/prosecution bodies, the thin line of demarcation between their good or bad faith, as well as the procedural sanctions to be ordered by the judge of the preliminary chamber.

SINTEZĂ DE JURISPRUDENȚĂ FISCALĂ NAȚIONALĂ MARTIE – APRILIE 2024

Author(s): Cosmin Flavius Costaş / Language(s): Romanian Issue: 2/2024

In a recent Romanian VAT case, Sibiu Tribunal was asked to rule in a case where the taxable person allegedly used a mechanism of tax optimization for VAT. The court ruled that the presence of two intermediaries in order to secure VAT deduction in a more expeditive manner is not contrary to the objectives of the VAT Directive and does not amount to an abuse of tax law in the sense of the Halifax case-law.

REPERTORIUL DE JURISPRUDENȚĂ ÎN MATERIE FISCALĂ AL CURȚII DE JUSTIȚIE A UNIUNII EUROPENE MARTIE – APRILIE 2024

Author(s): Miruna Mihuță / Language(s): Romanian Issue: 2/2024

This article contains court rulings of the Court of Justice of the European Union from the period March-April 2024.