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Specte controversate ale judecății în camera preliminară

Author(s): Carmen Adriana Domocoş,Carla Antonia Ramona Ieran / Language(s): Romanian Issue: 1/2020

According to the provisions of art. 342 of the Code of Criminal Procedure, the subject-matter of the preliminary chamber is the verification of the jurisdiction and legality of the notice, the lawfulness of the administration of evidence and of the acts of criminal prosecution bodies. In the paper, it is described the characteristics of the preliminary chamber, then it is analyzed the appeal in the preliminary chamber procedure, the effects that the appeal produces and the solutions which the judge of the preliminary chamber may order in the appeal. Regarding the solutions which the judge of the preliminary chamber may order, they are limited in the Code of Criminal Procedure, as well as the solutions which the judge of the preliminary chamber may pronounce in the appeal. In judicial practice, the solution given in such an appeal, which abolished the sentence of a preliminary chamber, was considered questionable and the case was referred to the same court in the absence of a law providing such a solution. Finally, as a corollary of the issues presented in the paper, we formulated some conclusions and de lege ferenda proposals.

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Abolitio criminis – evoluţia conceptului în dreptul penal român contemporan şi analiza unor aspecte de teorie şi de jurisprudenţă naţională obligatorie privind noţiunea de dezincriminare

Author(s): Mihai Dunea / Language(s): Romanian Issue: 2/2019

The article addresses the concept of decriminalization - abolitio criminis - from the perspective of contemporary Romanian criminal law, under a series of theoretical aspects, as well as by analyzing the compulsory national jurisprudence (decisions of the Constitutional Court of Romania and some mandatory decisions of the Supreme Court). The following are considered: the relationship between the operation to criminalize, the essential feature of the crime to be a fact stipulated by the criminal law and the concept of decriminalization; the relation between the concept of decriminalization and that of a more favorable criminal law (mitior lex), considering the broad meaning, as well as the restricted meaning of the latter notion; the differences and the implications of understanding the notion of decriminalization in an abstract sense or concretely; the ways of demise of a criminalizing disposition and the corresponding consequences capable of occurring; the possibility / obligation and the implications of the integration into the concept of decriminalization of the decisions of admission of the exceptions of unconstitutionality of some rules of incrimination; the sphere and content of the actual concept of decriminalization (by reference to the essential feature of the crime represented by the typicality of the act - the property of the act of being typical), as well as the problem of a potential assimilation of the legal solution that decriminalization implies, in relation to the hypothesis of the emergence of new extinctive criminal cases (justifying and / or causes of non-imputability); the possibility of assimilating the situation where the double incrimination is lacking (when the verification of this condition is required for the application of the Romanian criminal law) with the appreciation of the concrete fact that has been committed as atypical (in the sense that it lacks a condition equivalent to that of its mandatory provision in the criminal law) and the relationship between this hypothesis and the concept of discrimination.

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Collective Consumer Protection In Cross Border Disputes

Author(s): Zsolt Hajnal / Language(s): English Issue: 2/2019

The principle of consumer protection can be implemented not only within the framework of traditional substantive law, but also through the conflict of laws rules which can protect a specific category of consumers. The areas of application of conflict-of-law rules are precisely those cross-border relationships that the European legislator would like to encourage. The related rules on cross European jurisdiction and applicable law on obligations try to establish a fair legal framework for consumer and businesses in cross border relations. The complex and sophisticated toolbox of consumer law is supposed to aim to protect not only the individual interests of consumers, but the collective interests of the consumer society as well, against the domestic and cross-border economic activities that violate them. The aim of the study is to examine, whether the for collective actions empowered entities could refer to the favourable rules of the consumer or is there any other option to ensure a high level of consumer protection trough collective actions against cross border breach of consumer interest.

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Hotărârea în procedura arbitrală

Author(s): Claudia Roşu / Language(s): Romanian Issue: 2/2019

The article analyzes the specificity of the decision that is adopted in the arbitration procedure. Arbitration is a private jurisdiction, which determines that in its administration, the litigating parties and the competent arbitral tribunal may establish rules of procedure derogating from the common law, provided that these rules are not contrary to public order and the imperative provisions of the law. The arbitration decision presents some particular aspects to the court decision, because it must necessarily mention the arbitration agreement under which the arbitration proceeded, and in the case of equity arbitration, the reasons underlying the solution. From the contents of the arbitration award, it follows that it has a structure identical to that of the court decision, respectively, an introductory part, the considerations and the device. The arbitral decision, a judicial act, produces, in principle, the same effects as a court decision. However, it has some peculiarities: it does not come from a public service of justice, but from an arbitral tribunal that often judges according to the rules set by the parties or even by itself. Being an act that comes from a body of private jurisdiction, the arbitral decision can be enforced by constraint only with the help of the state jurisdiction.

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Particularităţi privind compentenţa şi organele care aplică procedura insolvenţei grupurilor de societăţi, în regimul legii nr. 85/2014

Author(s): Sebastian Popa / Language(s): Romanian Issue: 2/2019

Law no. 85/2014 brings for the first time in the Romanian legislation a set of rules applicable to the insolvency of the group of companies. In Law no. 85 /2014 is defined, in article 5 point 35, the group of companies as two or more companies interconnected by control and / or holding the qualified participations. As regards the insolvency of the groups of companies, the general rules in this matter are applicable but also specific provisions regarding the competence and the bodies applying the procedure. The competent court is the court in which the parent company has its headquarters or the company with the highest turnover within the group, all cases being distributed to the same union judge. The creditors' committees of each member of the group meet quarterly for the analysis and the reorganization plan. The special administrator may be the same for each member of the group. The judicial administrators must cooperate in the respective procedure, and the creditors who own at least 50% of the credential and are the same for each member of the group may designate the same judicial administrator or a consortium of administrators.

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PRINCIPLE OF SUBSIDIARITY AT THE ECTHR

Author(s): Radu-Michael Alexandrescu / Language(s): English Issue: 4/2021

This article's objectives are: to describe how the principle of subsidiarity appears at the ECtHR; to analyse how the balance of power between the ECtHR and the national courts is established in each of the ways in which subsidiarity appears; to argue that that balancing act is in favour of a dynamic interpretation of the Convention by the Court. The method of research is the analysis of the text, namely the Convention, the relevant case-law of the Court and the amendments made to the Preamble to the Convention by Protocol 15.

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LES DIVERGENCES ENTRE LA COUR CONSTITUTIONNELLE DE RUSSIE ET LA COUR EUROPÉENNE DES DROITS DE L’HOMME: DE L’AFFAIRE MARKIN À L’AFFAIRE ANCHUGOV ET GLADKOV

Author(s): Angela Di Gregorio / Language(s): French Issue: 7/2016

Introduction à la question Le 19 avril 2016, la Cour constitutionnelle russe a statué sur l’exécution, conformément à la Constitution de la Fédération de Russie, de l’arrêt de la Cour européenne des droits de l’homme du 4 juillet 2013, dans l’affaire Anchugov et Gladkov c. Russie, à la demande du ministère de la Justice.

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LE PARLEMENT BULGARE N’A PAS LE DROIT DE REFUSER LA DÉMISSION D’UN DÉPUTÉ. À PROPOS DE LA DÉCISION DE LA COUR CONSTITUTIONNELLE DU 30 JANVIER 2018

Author(s): Aleksandar Tsekov / Language(s): French Issue: 11-12/2018

Dans sa décision n° 2 rendue le 30 janvier 2018, la Cour constitutionnelle bulgare a jugé que l’Assemblée nationale a méconnu la Constitution en refusant d’accepter la démission d’un député présentée le 4 octobre 2017.

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Prin Decizia nr. 39/2024, pronunțată ca hotărâre prealabilă de Înalta Curte de Casație și Justiție, „iarba e mai verde în curtea altuia”

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Prin Decizia nr. 39/2024, pronunțată ca hotărâre prealabilă de Înalta Curte de Casație și Justiție, „iarba e mai verde în curtea altuia”

Author(s): Roxana Truța,Claudia Roșu / Language(s): Romanian Issue: 03/2025

In this study is analyzed the Decision no. 39/2024, pronounced by the High Court of Cassation and Justice - the Panel for the absolution of a legal issue, through it was admitted the referral of the Bucharest Court of Appeal — Section VII-a for cases concerning labour conflicts and social insurance.Thus, in the interpretation and application of Article 341 par. (2) of the Civil Procedure Code and in relation to the provisions of Articles 74 and 75 of the Civil Code, it has been established that the evidence of recording a telephone conversation between an employee and another employee or representative of the employer, requested in a dispute against the employer, is admissible, even if the registration was made without the prior consent and/or information of the interlocutor, provided that a fair balance between the right to proof on the one hand and the right to privacy on the other, on the other hand, in the sense that the consent of proof must be indispensable to the exercise of the right to proof and strictly proportional to this purpose.Contrary to the solution adopted, the authors demonstrate that the complaint was inadmissible, but on the substance they agree with the solution pronounced.However, we are in the presence of a partial absolution, because all courts will have to on the case, on the case, on the case, determine whether or not to agree with the administration of the evidence with the recording of the telephone conversation when one of the parties was unaware of this fact.

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Litigiu vizând executarea unui contract administrativ încheiat ca urmare a unei proceduri de achiziție directă. Competența materială de soluționare

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Litigiu vizând executarea unui contract administrativ încheiat ca urmare a unei proceduri de achiziție directă. Competența materială de soluționare

Author(s): Viorel Terzea / Language(s): Romanian Issue: 03/2025

The section contains a selection of the most important decisions from the Romanian Courts. The decisions are selected and commented by authors. The emphasis of this section resides in the ability of each author to comment upon a relevant case-law and to comment upon the legal issue brought by the court. The decisions are summarized and grouped by law subjects. The decisions present the situation in question, the procedures, the arguments brought by the parties and the pronounced solutions. Each decision contains a short commentary relating to the legal issue analyzed by the court.

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Contracte subsecvente în baza aceluiași acord-cadru. Existență independentă din perspectiva aplicării puterii lucrului judecat

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Contracte subsecvente în baza aceluiași acord-cadru. Existență independentă din perspectiva aplicării puterii lucrului judecat

Author(s): Ramona Cîrlig / Language(s): Romanian Issue: 03/2025

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Dopuszczalność zawarcia umowy o pracę na czas pełnienia funkcji przez członka zarządu spółdzielni – glosa krytyczna do wyroku Sądu Najwyższego z dnia 14 grudnia 2023 r., I PSKP 34/22

Author(s): Agnieszka Rzetecka-Gil / Language(s): English Issue: 1/2025

The gloss addresses the issue of the admissibility of concluding an employment contract witha member of the board of directors of a cooperative for the duration of their term in office. ThePolish Supreme Court has rejected the possibility of concluding such contracts under the legalframework in force since February 22, 2016. In this gloss, arguments supporting an alternative in-terpretation of the law are presented.

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Wspomagane samobójstwo w świetle orzecznictwa Europejskiego Trybunału Praw Człowieka

Author(s): Magdalena Łukasik / Language(s): Polish Issue: 15/2024

Modern society is a society accustomed to a life of prosperity and develop-ment. This causes people, at the very thought of constant pain (both mentaland physical), to look for a solution that can shorten it. This state of affairs is in-fluenced by utilitarianism (which proclaims that there is no point in suffering)which is popular in highly developed societies. According to the Convention for the Protection of Human Rights and Funda-mental Freedoms, every human being is free and therefore decides for him-self/herself about his/her own life (including how to end it), but accordingto the same document, life is a legal good protected by law. Proponents of eu-thanasia and assisted suicide emphasise that a sick person can die with dig-nity thanks to a euthanasia procedure. They emphasise that human dignityis an overriding value protected by law. Opponents of euthanasia, on the oth-er hand, argue that human life should not be valued. No one can decide whichlife can continue and which should be terminated.The institution that tries to settle the dispute between supporters and op-ponents of euthanasia is the European Court of Human Rights. Accordingto the Court, the freedom to allow legal euthanasia must have a limit. This limitis Article 2 of the Convention and the control exercised by the ECtHR. Each per-son’s case is different and subject to individual examination.

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TYING AND BUNDLING IN EU COMPETITION LAW

Author(s): Laura Lazăr / Language(s): English Issue: 3/2024

Tying and bundling within EU Competition Law are complex aspects of antitrust regulation focused on market competitiveness and consumer welfare. Tying involves selling products or services together, while bundling offers multiple goods as a single package. This entry explores the legal framework, implications for market dominance, innovation, and consumer choice. It reviews landmark cases and regulatory developments in the EU, highlighting the balance between legitimate business strategies and anticompetitive behavior, and assessing their potential impact on competition and consumers.

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INTERPRETAREA JUDICIARĂ CREATOARE DE DREPT?

Author(s): Septimiu Ioan Puţ / Language(s): Romanian Issue: 3/2024

One of the major disputes in the Theory of Law is about the limits of legal and judicial interpretation, with a predominant focus on the judge's ability to create law. Although, in the Romano-Germanic family of law, the role of the judge in the resolution of the case is limited by positive ultra-normativization, we observe that the judge creates and recreates law through the specific juris-dictio, through the judgments he pronounces, through what represents the uniqueness of the process of interpretation and transposition of positive legal norms into the immediate reality. The decantation of meanings, symbols and legal valences from legal rules through legal interpretation is a true intellectual creation.

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Selecție de practică judiciară a Curții de Apel Cluj, în materie penală (iulie-decembrie, 2024)

Author(s): Dan Sebastian Chertes / Language(s): Romanian Issue: 2/2024

This article is a selection of the judicial practice of the Cluj Court of Appeal, in criminal matters (July-December, 2024).

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Selecție de hotărâri pronunțate de Curtea de Justiție a Uniunii Europene în al doilea semestru al anului 2024

Author(s): Gabriela Dănilă / Language(s): Romanian Issue: 2/2024

This article is a selection of judgments of the Court of Justice of the European Union in the second semester of 2024.

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МЕРЕЊЕ НЕЗАВИСНОСТИ СУДСТВА DE IURE У РЕПУБЛИЦИ СРБИЈИ НАКОН УСТАВНИХ ПРОМЕНА 2022. ГОДИНЕ

Author(s): Dragutin Avramović / Language(s): Serbian Issue: 4 (1)/2024

More than a decade ago, the author published the co-authored article containing the case study of de iure independence of judges in the Republic of Serbia, as well as of the changes de constitutione and de lege ferenda that could be performed. The authors had applied the methodical framework developed by Melton and Ginsburg, using six key indicators of de iure independence of judges (statement of judicial independence, judicial tenure, selection procedure, removal procedure, limited removal conditions, and salary insulation). Using the same methodological matrix as in the previous article, the author tends to determine what has been done and what changes took place in the Republic of Serbia after the constitutional changes of 2022 and new judiciary laws. Contrary to some assessments in the literature that the novelties of 2022 were just a small or almost no step forward on the path to the rule of law strengthening, the author finds that quite a lot was done and that the weakest points of the previous normative framework (mentioned in the earlier article) are mostly eliminated. All the more, by measuring the same parameters which are determining de iure judicial independence, it is founded that the tendency to achieve “thick” rule of law has been exaggerated. Insisting upon a “romanticised picture” of the independent judiciary was particularly visible in some solutions, particularly those relating to the election of judges. Owing to this quantitative analysis the author finds that the constitutional changes in the Republic of Serbia of 2022 have opened a way to the opposite exaggeration, namely to something that could be labelled in theory as juristocracy/courtocracy.

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THE PROTECTION OF HEALTH-RELATED DATA IN THE EUROPEAN COURT OF HUMAN RIGHTS CASE LAW

Author(s): Brano Hadži Stević / Language(s): English Issue: 4 (1)/2024

Health-related data (HRD) are particularly sensitive and demand special protection. In the European Court of Human Rights’ (the ECtHR) case law, HRD are protected by Article 8, which proclaims the right to private and family life. Furthermore, the ECtHR underlines that the protection of personal data has “fundamental importance” for an individual’s enjoyment of the right to privacy. The sensitivity of HRD is connected with the possibility of revealing an individual’s privacy and intimate life, which, consequently, could lead to the violation of other rights, e.g., discrimination. Under the Council of Europe, the only legally binding document related to data protection is Convention 108, while Recommendation No. R (97) 5 and Recommendation CM/Rec(2019)2 are not legally binding, but they provide guidelines on regulating HRD issues. All of these documents are germs that have been developing in the ECtHR’s case law. In order to analyze the ECtHR’s case law related to the protection of HRD, this paper aims to elucidate the meaning of some concepts, such as personal data, health-related (medical) data, the collecting and processing of data, etc. Also, this paper tends to examine: who can collect HRD, in which way they can be collected (particularly: is the consent of a data subject necessary), for which purposes, and how long should they be kept? The ECtHR claims that respecting the confidentiality of HRD is a “vital principle” not only regarding the patient’s right to privacy but also in order to preserve confidence in medical protection and health services.

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$64. Conflict negativ de competenţă. Distincţia dintre infracţiunea de lovire sau alte violenţe şi tentativa la infracţiunea de omor$

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64. Conflict negativ de competenţă. Distincţia dintre infracţiunea de lovire sau alte violenţe şi tentativa la infracţiunea de omor

Author(s): Marcian Marius Istrate / Language(s): Romanian Issue: 05/2020

According to the provisions of Article 4 paragraph 2 of the Code of Criminal Procedure, after the entire evidence was adduced, any doubt in the formation of the conviction of the judicial bodies is interpreted in favor of the suspect or accused. In the present case, as has been pointed out, there are serious doubts as to the mental condition of the accused at the time of committing the act of assault, as the Court cannot establish with certainty that the accused intended to kill the injured person when he tried to stab injured person, given the evidence so far adduced in the case, given that the accused used the simplified trial procedure, so that no other evidence on the criminal side of the case can be adduced. As such, since what the court can retain with certainty in the charge of the accused is the offense of common assault, an offense governing the criminal investigation carried out and sent to trial, and the court considered itself legally notified and began judging the case, the Court considers that the Galati Court must continue the trial of the case on the offence of common assault, as notified by the Indictment of the Prosecutor's Office attached to the Galati Court.

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