THE RIGHT OF ACCESS TO JUSTICE IN THE LIGHT OF THE LAW ON SOME MEASURES TO PREVENT AND COMBAT THE EFFECTS OF COVID-19 PANDEMIC

Author(s): Silviu Dorin Şchiopu / Language(s): English Issue: 2/2021

COVID-19 pandemic, among many other legislative changes, also led to the issuance of the Romanian Law on some measures to prevent and combat its effects. Law no. 55 of 15 May 2020 concerns the establishment during the state of alert of some measures in order to protect the rights to life, to physical integrity and to the protection of health, including by restricting the exercise of other fundamental rights and freedoms, and, in order to implement the measures provided by this law, the Government adopts decisions. The latter are normative administrative acts which enjoy a presumption of legality, so that, as long as the administrative act exists, it is presumed that it was issued in compliance with all the substantive and formal conditions provided by law, the obligation to comply with it being detached from that of compliance with the law. Therefore, the present study aims to highlight the legal regime of these normative administrative acts and the considerations of the Decision of the Romanian Constitutional Court no. 392 of 8 June 2021 precisely to illustrate the infringement of the right of access to justice, namely the absence of a regulation providing for a short-term procedure for the settlement of actions brought against the possible illegality of Government decisions issued under Law no. 55/2020, so that judgments can produce effective effects, that is while these administrative acts are applicable. Respect for the right of access to justice would also contribute to strengthening citizens’ confidence in the pertinence of measures taken to prevent and combat the effects of the current pandemic.

THE RIGHTS OF PERSONS DEPRIVED IN FREEDOM DURING THE COVID-19 PANDEMIC. INCIDENCE OF JUDICIAL ERROR

Author(s): Delia Mihaela Marinescu / Language(s): English Issue: 2/2021

Respect for human rights in general, but also for persons deprived of their liberty is a constant concern in any democratic state, which determines both the involvement of the courts in guaranteeing all rights in proceedings against persons in detention, and a special attention from the public authorities for outlining rules capable of effectively implementing legal regulations, but also the jurisprudence of European courts.The article analyzes the legislation applicable in Romania regarding the observance of the rights of persons deprived of liberty, through the prism of videoconferencing hearings, taking into account the general framework, but also the extraordinary legal norms adopted during the COVID-19 pandemic, including the ECHR jurisprudence. The main objective is to present the manner in which the rights of persons deprived of their liberty have been violated by videoconference hearings, even contrary to the consent of the detainee and without his lawyer being present at the place of detention. The aim of the research is to recognize the importance of respecting human rights during the COVID-19 pandemic, as well as to analyze the importance of the right to defense and a fair trial in the case of detainees heard by videoconference.

ISSUES REGARDING THE RIGHT TO HEALTH CARE IN THE CONTEXT OF THE COVID-19 PANDEMIC

Author(s): Cătălina Georgeta Dinu / Language(s): English Issue: 2/2021

The article analyses some health situations, which have not yet been resolved by the Romanian state, from the perspective of applicable legislation and documentation developed at the level of public authorities with competences in the field: the issue of palliative care and citizens 'access to them, citizens' access to medical services screening and monitoring of oncological diseases and the need for human plasma fractionation in our country. In the latter case, people with certain ailments find themselves in a situation where their right to health care is restricted due to the risk of not finding the right treatment. Unfortunately, the COVID-19 pandemic is an obstacle to either continuing public health policies or trying to take the first concrete steps in this direction. However, the pandemic does not suspend the conditions that depend on palliative care, nor the identification of oncological conditions or their monitoring. Also, the possible lack of immunoglobulins in Romania draws the line between the right to health care and the right to life. The information found in this research aims to make citizens aware of the importance of taking great steps in these directions and the ways in which their rights are respected, under the conditions provided by the Romanian medical system.

ASPECTS REGARDING THE LEGALITY OF THE DISMISSAL DECISION

Author(s): Dragos Lucian Radulescu / Language(s): English Issue: 2/2021

Dismissal is the legal institution that, on the initiative of the employer or for reasons related to the employee, causes the termination of the individual employment contract. In case of application of the provisions of art. 65 of the Labor Code, regarding the termination of employment for reasons not related to the person of the employee, the topic is of the utmost relevance, in the current economic context. The legality of such a dismissal decision will relate to the existence of a real and serious cause, thus eliminating the possible subjective conduct of employers, not accepting the absence of the actual cause or the elements that define discrimination in employment relationships. The article discusses the conditions of legality of a dismissal decision leading to the termination of employment, as well as the accepted motivation, with reference to opinions in legal doctrine and practice.

THE LEGALITY PRINCIPLE IN THE ACTIVITY OF THE PUBLIC ADMINISTRATION – CROSSING BETWEEN ENVIRONMENTAL PROTECTION AND POLITICAL NEGLIGENCE. A CASE STUDY

Author(s): Andrea Kajcsa / Language(s): English Issue: Supliment2/2017

It is unanimously accepted that the principle of legality is paramount in the activity of the public administration, especially of the local public administration. However, there can be events in the life of a community when the political factor, driven by the desire to pursue a higher purpose, of great meaning for that community and under great scrutiny and pressure from the public opinion, as is for example the need to protect the environment and to think in terms of sustainable development, can choose to overpass the need to respect the principle of legality. Having a case-study as starting point, we analyze in our paper the role different public authorities had in adopting a local normative administrative act that does not comply with the legality principle, under the expressed wish to protect the environment. We will examine if the political factor chose the best legal solutions for pursuing environmental protection.

LA PROTECTION DU PATRIMOINE ARCHITECTURAL, DES SITES ET DES PAYSAGES SAISIS PAR LE DROIT DE L’URBANISME

Author(s): Andrei Duţu / Language(s): English Issue: 01/2018

La notion de « patrimoine » este entrée plutôt récemment dans le droit de l’urbanisme roumain ; sans avoir, en droit public, une définition légale précise, elle signifie d’abord un héritage reçu du passé, dont on a une obligation de conservation et de gestion efficace, pour pouvoir le transmettre aux générations futures. Au niveau international, sous la forme du patrimoine commun de l’humanité, le concept a connu déjà une consécration juridique particulière (par exemple, dans le cas de la Lune, de l’espace extra-atmosphérique ou des fonds des mers et des océans), qui s’étend aussi sur les sites et les monuments. Dans ce sens, le grand numéro de documents internationaux (la Charte européenne du patrimoine architectural de 1976 ou la Convention pour la sauvegarde du patrimoine architectural de l'Europe de 1985) confirme la création d’un régime juridique spécifique et complexe.

THE SANCTIONING REGIME PROVIDED BY REGULATION (EU) 2016/679 ON THE PROTECTION OF PERSONAL DATA

Author(s): Irina Alexe / Language(s): English Issue: 01/2018

In the public space and in the debates among professionals, the new general data protection regulation, which is to be applied from May 25th 2018, is debated more and more conjunctively with the news brought by this European Union legislative act, but especially regarding the new sanctioning regime. We analyse the questions that arise concerning the violations to be sanctioned, the classification of sanctions and their amount, the deliberate nature of the violation and the effective procedural safeguards, in accordance with the general principles of European Union law and the CFSP. During the analysis we identify answers to these questions and, last but not least, underline the competence of the Member States as well as the role of the national supervisory authorities regarding to the sanctioning regime provided for by the Regulation.

EKOLOŠKI KRIMINALITET KAO KRIVIČNO DELO I PROBLEM NJEGOVOG SPREČAVANJA I SUZBIJANJA U REPUBLICI SRBIJI

Author(s): Ljubo Pejanović / Language(s): Bosnian,Croatian,Serbian Issue: 4/2013

Environmental crime is a relatively recent phenomenon in the contemporary world and it is a great danger to safety of people, other living beings and environmental resources that the planet Earth disposes of. The problems of prevention and control of environmental crime in the Republic of Serbia have existed and lasted for a very long period of time. This form of the criminal violence i.e. criminal offences in the recent history has become one of the most dangerous ever increasing and spreading forms of crime. However, this form of crime puts at risk and pollutes the environment through various forms of criminal offences. Legislation and legal regulations have not met the expected results since they have not completely stipulated this phenomenon, and hence the security authorities are not fully active. Besides being legally unsolved,this problem also occurs since the existing legislation is not observed, and the judicial and security authorities do not dispose of adequate mechanisms for prevention and control of this phenomenon.

NEKE OD TIPOLOGIJA PRANJA NOVCA U BOSNI I HERCEGOVINI I SVIJETU

Author(s): Ahmed Bjelopoljak / Language(s): Bosnian,Croatian,Serbian Issue: 4/2013

The purpose of this paper is to show modus operandi of money laundering used in Bosnia and Herzegovina and in other parts of the world. From these examples, we can recognize the sectors and intermediaries through which the money is laundered, although the full scale of actual methods, intermediaries, and countries remain unknown. The techniques of money laundering are constantly changing, due to the fact that criminals use different ways to hide the illegal origin of the money, using the weaknesses of certain sectors within different countries. Additionally, what makes it even more difficult is the fact that money laundering as an activity is constantly evolving, while those laundering the money keep discovering new ways to avoid, not only the activities of law enforcement agencies in charge of money laundering prevention and investigation, but also the unison legislative and regulatory approach of governments and international community in prevention and investigation of money laundering.

ARBITRAŽNO RJEŠAVANJE PRIVATNOPRAVNIH TRGOVINSKIH SPOROVA S ELEMENTOM INOSTRANOSTI U PRAVNOM SISTEMU BOSNE I HERCEGOVINE

Author(s): Emir Sudžuka,Nataša Halilović / Language(s): Bosnian,Croatian,Serbian Issue: 4/2013

Disputes settlement arising from transactions with private-elements is complex issue that is particularly concerned with the theory of Private International Law. In addition to the conflict of laws, transactions with foreign element inevitably lead to conflicts of jurisdiction of the courts of various states in the settlement of disputes (conflict of jurisdictions). One of the basic principles of international relations is the principle of national sovereignty. Accordingly,each sovereign state could subjected to competencies of their bodies any cases before them, including those that are factually related to foreign countries. In doing so, the character and factual connections with foreign sovereignty are not essential. Such a concept of jurisdiction, states generally do not practice. For international business transactions, the way of resolving disputes is very important. Arbitration to settle disputes is one of the specificities of modern private legal relations with a foreign element. They are often used in practice. As an alternative means of dispute resolution in practice, arbitration is proved to be more efficient for the parties to the dispute, and this method of dispute resolution in contemporary private transactions are increasingly used in our legal system.

COMPARATIVE ANALYSIS OF THE LEGAL DEFINITION OF STRATEGIC ENTERPRISES IN ROMANIA AND HUNGARY

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

In crisis situations, regardless of their origin, whether financial or caused by natural disasters, or even caused by exceptional health conditions, such as an epidemic, extraordinary measures must be taken. From legal point of view, on the basis of the available governmental decisions, measures are needed in order to mitigate immediately and efficiently the adverse effects and consequences of these events on communities, regardless of their size: local, regional, national or global. Strategic enterprises, whose activities are carried out in key areas of the national economy, are an easy and convenient tool for public authorities. These companies, which operate in key areas, cover among others the ensuring the access to utilities and services of public interest and are largely controlled by the state or local public authorities. This is why the identification and legal definition of the area of strategic enterprises in our country and a comparative analysis of the legal regulations in the neighboring country, Hungary, might be of interest. Present study also contains a historical retrospective on defining the enterprises that fall into the category of strategic enterprises in terms of legal regulations in our country in the previous century. Moreover, this study also aims to present the evolution of legal regulation in the field of defining economic branches and strategic enterprises beginning from the fall of the political regime in 1989 to the present, marked by the COVID-19 pandemic.

THE RIGHT TO GOOD ADMINISTRATION – IS THE CONSTITUTIONAL REGULATION NECESSARY?

Author(s): Oana Şaramet / Language(s): English Issue: Supliment2/2019

The constitutional revision from 2003 enriched the patrimony of the fundamental rights and freedoms of Romanian citizens with three such rights and freedoms: the right to a healthy environment, economic freedom and access to culture. More than 16 years after this revision, but also as a member state of the European Union, we consider as an opportunity and necessity, at the same time, a new revision of our fundamental law, a consistent one at this moment, which should take into consideration the consecration of other rights, even by designing the necessary constitutional framework for ensuring and respecting a good administration. Analysing the constitutional provisions of other states, as well as those of the European level, the relevant doctrine and jurisprudence, using research methods such as multidisciplinary, comparative, sociological, empirical or systemic, it will be possible for us to conclude that good administration is one of those indefinite or determinable legal concepts. Being such a concept it is necessary to identify elements that allow us to configure it, elements that we should find in a unitary text in an article of our fundamental law, and through which the right to good administration would be enshrined. Therefore, we appreciate that in a state where the public administration, exercising of its functions and attributions, also had delicate moments in ensuring a good and efficient administration, the consecration of the right to good administration, by exhaustively capturing, as far as possible, the elements the definers of the concept of good administration, is a natural consequence of the constitutional recognition of the rule of law.

Aspects Regarding The Transposition Of Some Regulations In The Field Of Human Rights And Eu Law In The Romanian Administrative Code

Author(s): Cristian Bitea / Language(s): English Issue: 02/2020

The study aims to highlight how the Administrative Code, as a new and main normative instrument for regulating public administration and its personnel, takes over and transposes constitutionally established rights, freedoms and duties, as well as through a series of international and regional instruments on human rights to which Romania is a part or through community (European) acts. They are presented systematically, by reference to the legal norms and to the applicable references, but also from the perspective of some hypotheses or the comparative approach.

Restrukturyzacja pozasądowa

Author(s): Aleksander Jerzy Witosz,Dorota Benduch / Language(s): Polish Issue: 1/2022

The article deals with the issue of the so-called out-of-court restructuring, which is a proposal for further improvements to be introduced to the restructuring proceedings system. Out-ofcourt restructuring conducted with omitting the stage of judicial approval of the arrangement is currently unknown to Polish law, but it has been provided as an option by the European legislator in the pending implementation of the Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualification measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132. The main objective of this paper is to attempt to assess the legitimacy of introducing solutions concerning out-of-court restructuring into domestic law. The research thesis is that this kind of restructuring is an effective instrument that allows for the acceleration of the proceedings, however, a significant obstacle to its effective implementation in practice is the lack of interpersonal confidence, which is characteristic of business relations in Poland. To achieve the main aim and verify research thesis, dogmatic and comparative methods were used. Moreover, an analysis of statistical data on the assessment of social capital in Poland was carried out, referring to the welfare index developed by the Legatum Institute.

Umowne zabezpieczenia finansowe polegające na przeniesieniu prawa do majątku wierzyciela: konstrukcja i rodzaje

Author(s): Włodzimierz Głowacki / Language(s): Polish Issue: 1/2022

The purpose of the article is to outline the general characteristics of agreements on financial collateral and reconstruction, by focusing on statutory financial collateral arrangements based on the transfer of rights to the creditor’s property. The structure of these securities takes into account the specificity of financial market transactions but also expresses certain universal features of this type of security. The analysis of these features may be helpful in contractual practice and in the construction of a normative model of security for the needs of general trade. The characteristics of fiduciary securities are a controversial issue and their admissibility is criticized. The above-mentioned arrangements, while implementing the objectives of the Directive, force a change in approach, at least in relation to financial collateral based on the transfer of rights.

Prawo w czasie pandemii COVID-19: analiza wybranych kwestii społeczno-prawnych

Author(s): Jakub Bandoch,Marcin Drewek / Language(s): Polish Issue: 1/2022

The aim of this paper is to present a catalog of the most significant socio-legal consequences that were caused by the COVID-19 pandemic. The considerations are based on the first comprehensive publication in the field of legal science: "Law in the Time of COVID-19". It aptly assumes that, in principle, the impact of the pandemic on society and legal regulations is perceivable on three basic levels: human rights, public law and private law. This article analyzes the most relevant legal issues, including in particular the protection of the right to privacy, election law, social welfare, as well as principal contractual clauses provided in order to secure commercial contracts against the impact of COVID-19. In conclusion of the considerations, it should be indicated that while the solutions introduced in various legal systems aimed at counteracting the impact of the pandemic generally fulfilled their role, but at the same caused negative legal consequences, which shall swiftly be removed.

Библиотеката на Съюза на юристите в България представя

Author(s): Author Not Specified / Language(s): Bulgarian Issue: 3/2022

Samodzielność prawotwórcza jednostek samorządu terytorialnego – głos w dyskusji

Author(s): Jarosław Dobkowski / Language(s): Polish Issue: 2/2022

The aim of the paper is to present an analysis of the law-making independence of local self-government, particularly considering the constitutional aspect. The author seeks to demonstrate that individual units of local self-government have been directly equipped by the constitutional legislator with the right to define – within the limits specified in the provisions of the Constitution of the Republic of Poland – their internal structures, without the need to invoke authorizations included in ordinary acts as a legal basis. The article contributes to the discussion on the law-making independence of local self-government.

Warunki skuteczności ochrony sygnalistów – uwagi na tle dyrektywy 2019/1937

Author(s): Ewa Milczarek / Language(s): Polish Issue: 2/2022

The role of whistleblowers is important in a democratic society, in terms of implementing the postulate of transparency in public life, and for verifying the functioning of public institutions and persons discharging public functions. For many years, the European Union has encouraged the Member States to introduce such regulations. The research objective of the article is to evaluate Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of EU law in terms of the effectiveness and adequacy of the proposed solutions. Appropriate standards ensuring their protection constitute an important element enabling the realization of the freedom of expression and the right of access to information. The research is based on the legal dogmatic method. The article singles out and analyses the elements of an effective whistleblower protection system and performs a critical analysis of Directive 2019/1937 in terms of meeting these conditions. Undoubtedly, both the creation of a minimum level of protection at the EU level and the horizontal approach covering sectors, public as well as private, should be positively assessed. However, the Directive leaves some gaps for the national legislator, the fulfilment of which depends on the actual effectiveness of the solutions proposed in it.

Медийният клипинг – баланс между права и недобросъвестна търговска практика

Author(s): Diliana Kirkovska / Language(s): Bulgarian Issue: 11/2022

Media clipping in all its variants is paid supplying to certain clients of copyrighted journalistic materials. Journalists are content creators and being authors they transfer their copyrights to publishers of periodicals or to producers. Their use for commercial purposes by companies that provide media clipping as a paid service raises the question of how regulated its use as database is. The legal protection is considered from the point of view of copy and related rights of publishers and the violation of the principles of competition.