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Evidence from Artificial Intelligence in General Administrative Procedure

Author(s): Łukasz Dubiński / Language(s): English Issue: 14/2022

Artificial intelligence is becoming an element of everyday life, andalso a part of administrative proceedings. The legislator systematically addsregulations that allow public administration bodies to use artificial intelligence.At the same time, the Code of Administrative Procedure has not been amended inthis respect. The article tries to establish what artificial intelligence evidence is.In addition, the issue of whether the rules on administrative evidence should bechanged to cover the use of AI evidence is examined.

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The Implication of Replacing the Sanction of the Administrative Fine with the Sanction of Providing an Activity for the Benefit of the Community from the Perspective of the CCR and ECHR Jurisprudence

Author(s): Lorena G. Nițoiu / Language(s): English Issue: Suppl/2022

With regard to the sanction of community service, which is regulated in domestic law by Article 9 of G.O. no. 2/2001, the legislator has recently attempted, by means of a draft law, to clearly establish the legal regime of the procedure for replacing the sanction of an administrative fine with the sanction of community service. However, in the light of the case law of the CCR and the ECHR, this can only be achieved if the qualitative requirements are met, particularly those of accessibility and predictability of the law, in order to ensure the security of legal relations and greater legislative stability and efficiency.

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Conditions regarding the Cancellation of the Planning Certificate

Author(s): Elena-Claudia Andronache / Language(s): English Issue: Suppl/2022

Given that the urban planning certificate is issued by the local public authorities based on documentation provided by law, upon request, to any applicant - natural person or legal entity -, this article presents the legal entities entitled to request the cancellation of the urban planning certificate, in accordance with the provisions of Law no. 554/2004 of the administrative litigation. The topic of the article is important in judicial practice given that, in essence, urban planning legislation can limit the exercise of property rights by referring both to the public interest and also by referring to the private interest, generating disputes between the subjects of the legal relationship.

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Admissibility of the Tortious Liability Action regarding the Employment Relationship

Author(s): Laura Manea / Language(s): English Issue: Suppl/2022

Tort liability is one of the important legal institutions in civil law seeking compensation for damage, and in certain circumstances, we also find it in employment relationships as a form distinct from patrimonial liability, the objective of which is also compensation for damage. Given the onerous nature of the employment relationship, in the cases that we will analyze about the admissibility of tort liability, we start from the same rights and obligations of the parties in the sense that the damage caused by the employee or the employer is due a failure in fulfilling the obligations in the employment relationship. Although the patrimonial liability as regulated by Art. 254 of the Labor Code is a special responsibility of the employment relationship, the text of the law does not qualify this type of liability as exclusive in the case of the employment relationship, which is why the case laws identify situations where tort liability is also generated in the context of such employment relationships.

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ИНСТИТУЦИОНАЛНА, НОРМАТИВНА И СТАТЕГИЧЕСКА РАМКА ЗА ОПАЗВАНЕ НА НЕДВИЖИМОТО КУЛТУРНО НАСЛЕДСТВО

Author(s): Milena Ivanova / Language(s): Bulgarian Issue: 3/2022

The protection of the immovable cultural heritage is a complex activity, which requires participation from different stakeholders and the implementation of a certain state policy. For the protection of the specific appearance of а city is not enough to protect the individual buildings-monuments of the immovable cultural heritage. What is needed is a detailed strategic vision on the problems of the immovable cultural heritage, as well as a dialogue, cooperation and coordination among all parties involved. The aim of the author of the аrticle is to present the institutional, normative and strategic framework for the protection of the immovable cultural heritage in Bulgaria.

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Nulitatea contractului de achiziție publică. Rezilierea, ca efect al încălcării de către Autoritatea Contractantă a normelor imperative de interes general

Author(s): Mihai Dogaru / Language(s): Romanian Issue: 8/2022

The analysis of the legal regime of the nullity of the civil legal act has as its starting point - in the overwhelming majority of cases - the principles of putting the parties back in the previous situation, to abolish the effects of the subsequent act, in the context in which the act, legally affected by nullity cannot produce legal effects. These rules tend to change in the public procurement legislation, in the situations where the violation of the imperative norms of the law is no longer likely to cancel the effects of the legal act. The decisions {verdicts} of the judges who decide the cases of the nullity of the public procurement contract can play a decisive role in regards to the modification – both of the effects of the contract and of the Will of the parties, which was the basis for the conclusion of the legal relationship.

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ACTUALITATE LEGISLATIVĂ

Author(s): Redactia Pro Lege / Language(s): Romanian Issue: 04/2023

In April 2023, several legislative acts were published in the Official Journal, among which we mention: The notary public's list as at 28 March 2022 for the year 2023; Government Decision (H.G.) no. 298/2023 on setting the maximum premium rates and other measures applicable by insurance companies providing compulsory motor third party liability insurance (MTPL) for damage caused to third parties by vehicle and tram accidents; ECHR judgment of 3 May 2022 in the case of D. v. Romania (Application no. 22.957/19). Moreover, in April, several legislative acts were amended, among which: GEO no. 195/2002 on traffic on public roads; Law no. 223/2015 on state military pensions; Law no. 50/1991 on authorization for the execution of construction works, Administrative Litigation Law no. 554/2004, Law no. 350/2001 on territorial and urban planning; Administrative Litigation Law no. 554/2004; GEO no. 57/2019 on the Administrative Code. Last but not least, the Official Gazette of April also published the ECHR judgment of 1 March 2022 in the case of S. v. Romania (Application no. 23.126/16).

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Особености на обучението като елемент от фактическия състав на правото на наследствена пенсия на децата, дипломиращи се в специалност „Право“. Част II

Author(s): Hristo Banov / Language(s): Bulgarian Issue: 3/2023

The scientific study examines the issue of the legal nature of education, respectively its duration, as elements of the factual composition generating the right to an inheritance pension of the children conducting the internship under Art. 294, para. 1 of the Judiciary Act for the acquisition of legal capacity after graduation from a university majoring in “Law”. In order to achieve the objectives of the research, a historical analysis of the social insurance legislation since the adoption of the Compulsory Social Insurance Code has been carried out, as well as a comparative legal analysis of normative acts regulating aspects of the education in the “Law” specialty, professional training, professional qualification, labour experience and professional experience, legal capacity, etc. Numerous arguments have been pointed out regarding the statement that the mentioned internship is not a part of the education period under the meaning of Art. 82, para. 1 of the Social Insurance Code, and the right-revoking legal fact regarding the payment of an inheritance pension in the analysed case is the graduation in the “Law” specialty.

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Правната природа на заповедта за защита от домашно насилие и нейните гражданско правни и наказателноправни последици

Author(s): Entela Kadriu / Language(s): Bulgarian Issue: 3/2023

Orders for protection from domestic violence are judiciary and legal acts. Order for protection under Art. 12 and Order for immediate protection under Art. 18 from the Act on Protection from Domestic Violence are a separate substantive category of judiciary acts. They follow specific protocols for proving and establishment and employ a separate kind of evidence. The object of protection is a civil right whereas by means of order the court does not re-establish it, neither does the court replace it, but the court guarantees its existence and therefore provides for its exercise. Orders for protection from domestic violence are accessory acts – they are always based on a primary, major judicial act – thus they are consistent continuation of the court’s will. Its nature is protection and security and bears the traits of a legal dispute however the legal consequences are not settling the dispute but, in stead, guaranteeing protection and exercise of a material right. These orders have consequences of criminal character and the executive act under Art. 296 from the Criminal Code is also an act of domestic violence if the latter orders inactivity.

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Определяне на местно компетентната Дирекция „Социално подпомагане“ при прилагане на мерки за закрила в семейна среда

Author(s): Galina Dimitrova / Language(s): Bulgarian Issue: 3/2023

The article examines the issues related to determining the competent Social Assistance Directorate to implement protection measures in a family environment. The possible hypotheses were examined depending on the circumstance of whether the child lives with his parents, or is placed under guardianship or guardianship, or is placed outside the family. The legal framework allows, in such cases, measures for protection in a family environment towards the parent to be applied by the „Social Assistance“ Directorate at the parent‘s place of residence.

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Critici de neconstituționalitate a dispozițiilor art. 14 lit. a) din Legea nr. 51/1995, care au condus la Decizia Curții Constituționale nr. 230/2022. Încălcarea evidentă a drepturilor avocaților în materia nedemnității

Author(s): Marta-Claudia Cliza,Laura-Cristiana Spătaru-Negură / Language(s): Romanian Issue: 10/2022

Approximately five years after the pronouncement of the Constitutional Court Decision no. 225/2017 regarding the exception of unconstitutionality of the provisions of art. 14 let. a) and of art. 27 let. d) from Law no. 51/1995 for the organization and exercise of the profession of lawyer, we noticed that the situation was even more unfair towards lawyers, the provisions of the law being more serious than the previous ones, clearly contrary to the original intention of the legislator. Any unbiased observer could easily see, thus, that an erroneous interpretation of the law was reached whereby all lawyers who were definitively convicted of an intentional crime must necessarily be disbarred from the legal profession, which was not the case. the intention of the legislator when enacting the legal norm. For all these reasons, considering that the provisions of art. 14 lit. a) from Law no. 51/1995 are unconstitutional, based on art. 146 let. d) and of art. 147 para. (4) of the Constitution, as well as of art. 1-3, of art. 11 paragraph (1) let. A. d) and of art. 29 of Law no. 47/1992, I respectfully requested the Constitutional Court (i) to admit the exception of unconstitutionality raised and (ii) to find that the respective legal provisions are unconstitutional. By Constitutional Court Decision no. 230/2022, the Constitutional Court admitted the exception of unconstitutionality of art. 14 let. a) from Law no. 51/1995 and found its unconstitutionality, a fact that sanctioned the legislator's passivity in legislating the indignity of lawyers following the Constitutional Court Decision no. 225/2017. The present study tries to provide a legal presentation of the reasoning regarding the contested legal provision and certain legal arguments that led the Constitutional Court to find the unconstitutionality of the provisions of art. 14 let. a) from Law no. 51/1995.

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THE PRINCIPLES OF SUBSIDIARITY AND DECENTRALISATION DURING THE COVID-19 PANDEMIC, WITH PARTICULAR EMPHASIS ON THE POLISH AND FINNISH LEGAL SYSTEMS

Author(s): Dawid Bunikowski,Robert Musiałkiewicz / Language(s): English Issue: 1/2022

The article focuses on the principles of subsidiarity and decentralisation during the COVID-19 pandemic, with particular emphasis on the Polish and Finnish legal systems (both countries in the Baltic Sea Region). How were those constitutional principles concerning self-government “treated” (dealt with) by public authorities? It analyses the principles of subsidiarity and decentralisation, interpretations of the principle of decentralisation in both Poland and Finland, relations between the state and local self-government, cooperation between the government and self-government administration in combating the pandemic in selected countries, and Polish and Finnish regulations during the pandemic. Methodologically speaking, many different methods and sources are applied. The methodological approach is analytical (analysis of legal acts, literature, media releases and different reports), but also empirical (observation of reality). The thesis is that the principles of subsidiarity and decentralisation during the COVID-19 pandemic were commonly disregarded during the pandemic.

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O normatywności, redundantności i zbędności przepisów prawnych. Część trzecia: typologia fragmentów przepisów i elementów części niezasadniczej aktów normatywnych

Author(s): Bartłomiej Wróblewski,Maurycy Zajęcki / Language(s): English,Polish Issue: 2/2023

In previously published papers (Przegląd Sejmowy no. 5(142)/2017 and 2(163)/2021) the authors proposed definitions of notions: normativity, redundancy, and uselessness of the legal text and analysed from a typological point of view the basic units of the integral (articulated) part of normative acts, i.e. legal provisions. In this text, the analysis has been extended to include the other elements of the legal text, i.e.: preambles, titles, subtitles, definitions in brackets, footnotes and attachments, which contain sentences and other elements (tables, equations, graphics, maps, sheet music). The terminology has also been extended to include fragments of provisions, normative acts as a whole, and plural provisions. These elements can (with some definitional amendments) be analysed in the same way as provisions using the categories: “doubles”, “widows”, “orphans”, and “botches”. In their closing remarks, the authors signaled the need to complement the analysis with a theoretical and comparative perspectives: to confront the proposed theses with the leading normative and descriptive theories of legal text drafting and interpretation. The fourth part of this cycle of papers, devoted to these problems, is currently being prepared.

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Glosa do Wyroku Europejskiego Trybunału Praw Człowieka w sprawie Moraru vs. Rumunia z dnia 8 listopada 2022 r. – dyskryminacja na gruncie „warunku dostępu do pracy i nauki”

Author(s): Anna Kalisz,Bartosz Wojciechowski / Language(s): English,Polish Issue: 2/2023

The commented judgement concerns an allegation of discrimination in the recruitment process for studies preparing to become a military doctor, when the national authorities denied a female-applicant the right to take the military medical school entrance exam on the basis of her height (she was 150 cm tall and weighed 44 kg). The Ministry of National Defence argued that the law required all military personnel to be able to perform any mission, and that this meant being able to carry a standard soldier’s kit weighing around 57 kg. The European Court of Human Rights found that the reasons why the applicant was treated differently from other women – who met the weight and height requirements – were not “relevant and sufficient”. In particular, the national courts accepted the MND’s argument equating size with strength. Even though size had recently been eliminated from the list of selection criteria and that the applicant was now free to apply to the military academy of her choice, the Court found that she had been unfairly disadvantaged at the time of her application. The co-authors of the gloss agree with the position of the Court and the reasoning presented, while addressing both: the philosophical grounds of the equality principle and the evolution of the judicial dialogue between the ECHR and the CJEU.

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Procedura achiziţiei publice

Author(s): Gheorghe Buzescu / Language(s): Romanian Issue: 1/2022

The public procurement contract is an administrative contract, that is, an „agreement of will between a public authority in a position of legal superiority, on the one hand, and other legal subjects, on the other hand, through which the satisfaction of an interest is sought generally, by providing a public service, carrying out a public work or enhancing the value of a public good, subject to a regime of public power. The legal regime applicable to administrative contracts borrows certain characters from private law (e.g. validity conditions) but is distinguished by two essential elements: on the one hand the inequality of the parties and, on the other hand, the fact that the authority does not have a freedom of will similar to the contractual relationship in private law.

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EUROPEJSKA KARTA SAMORZĄDU LOKALNEGO W ORZECZNICTWIE SĄDÓW ADMINISTRACYJNYCH

Author(s): Stanisław Zakroczymski / Language(s): Polish Issue: 1/2023

The aim of the article is to identify strategies behind the application of the provisions of the European Charter of Local Self-Government in jurisprudence. The article comprehensively describes the application of the Charter’s provisions in the judgments of the Polish administrative courts. The study draws on classic dogmatic methods as well as the achievements of Empirical Legal Studies. For the first time, quantitative methods were used to study this issue. The results of the research indicate a qualitatively significant presence of the Charter in the jurisprudence of administrative courts, which is limited in terms of quantity, however. In recent years there has been a certain increase in the number of judgments referring to the provisions of the Charter. Courts more often refer to this act ex officio. On the other hand, the frequency of citizens referring to the Charter in disputes with local authorities is decreasing. Furthermore, the view that the Charter lacks a normative character is less commonly expressed than was the case in the past. However, there are still far-reaching discrepancies in the jurisprudence regarding the scope of application and understanding of individual provisions of the Charter, as exemplified by the cases concerning the obligation to consult local government residents (Article 4 of the Charter) and the statutory independence of local government (Article 6). Particular attention should be paid to the growing number of cases in which the courts refer to the principle of proportionality of supervision enshrined in Article 8 sec. 3 of the Charter, not expressed explicitly in Polish legislation, and the importance of the principle of judicial protection of local government units expressed in Article 11.

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LEGAL LIABILITY OF PUBLIC SERVANTS FOR DAMAGES CAUSED TO THE AUTHORITY OR PUBLIC INSTITUTION

Author(s): Eugenia Iovănaş / Language(s): Romanian Issue: 16/2019

According to art. 85 (1) of Law 188/1999 repairing the damages caused to the authority or public institution in the situation referred to in art. 84 let. a and b, is decided through the issuance from the manager of the authority or public institution of an order or a disposition of imputation available within 30 days of the finding of damage. With respect to the breach of dispositions of art. 88 paragraph 1 of Law no. 188/1999 regarding the status of public servants republished, which states that the provision of imputation is issued within 30 days of the finding of damage, related to the legal issue under debate, after review by the Court of Auditors, is estimated an alleged damage, this fact being an undeniable reality that cofroborates with all applicable legislation which substantiates the validity of acts of capitalization audited by the Court of Auditors. The regulation regarding the organization and deployment of the activities specific of the Court of Auditors - at point 5 let. b defines prejudice as a loss provoked to public or private property, to a territorial administrative unit or to one of their public entity. Determining the extent of prejudice and layout measures for its recovery becomes an obligation of the management of the entity audited. The legislator did not provide mood nullity in case of failure of the 30-day term provided in the contract at art. 85 paragraph 1, legal practice and doctrine in the field have argued that absolute nullity of legal and administrative acts operates a file in situations of exceptions more precisely only then when the legislator has expressly provided these sanctions through a legal norm. The deadline of 30 days was determined by the legislator in this case to determine a short term to take measure of quantification of the damage and establishment of the guilt by the manager of the public authority, such as, the qualification provided by the term of 30 days to be analysed in relation to the provisions of art. 85 paragraph 3 of Law no. 188/1999 republished which establishes the right of the manager of public institutions to issue the order or the disposition of imputation within a period of 3 years from the date of damage, the term of 3 years being qualified such as, limitation period. As such, considering that the minute of control of the Court of Auditors does not produce any legal effects by itself this is not an administrative fiscal document, and by the Decision of the Court of Auditors are only defined the measures incumbent to the manager of the public authority at the time of issuing of this administrative document.

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MORAL DAMAGES IN ROMANIAN ADMINISTRATIVE CONTENTIOUS: A FATA MORGANA?

Author(s): Raluca Laura Păunescu Dornean / Language(s): English Issue: 24/2022

The study analyses the way compensations are granted in the case moral damages were caused to the victim, if the action is settled according to the Law no. 554/2004 on administrative litigations of assimilated administrative acts. Ab initio, there are presented the principle of legality and minimum general notions on administrative litigations. Later, the paper approaches the notions of ”damages”, ”loss” and ”compensation”. The author then provides further clarification on ”material damages”- ”moral damages” dichotomy which may be found in the law on administrative litigations. Consequently, jurisprudential elements which denote a practice which lacks unity in approaching compensations given to damaged persons are emphasized.

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INIȚIATIVE LEGISLATIVE DE PROMOVARE A EGALITĂȚII DE GEN ÎN MEDIUL ACADEMIC ȘI ȘTIINȚIFIC EUROPEAN

Author(s): George Marian Ichim / Language(s): Romanian Issue: 16/2019

This article brings to our attention European policies on removing gender barriers from academia and science, as well: the importance of policies and gender mechanisms that produce their effects in academia and science, the progress of European legislation and policies in combating gender inequalities in academia and science, and European gender mainstreaming in research. Initiatives to promote gender equality in academic and scientific environments have been developed in Europe over many years. The focus was initially on specific programs to help women pursue a career in science. However, these programs have proved to be insufficient to increase the number of women in research, especially in leadership positions; not removing the structural barriers that contribute to the well-known phenomenon „leaky pipeline”. In the conclusion, this article brings to the forefront the necessity to promoting organizational and cultural change which means that the administration of universities, institutions and funding bodies must to eliminate obstacles to women's professional careers. Institutional actions are needed to ensure greater participation of women in academia and science, especially in higher positions.

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Environmental Risk Regulation in the Environmental Protection Law of the Republic of Slovenia

Author(s): Bojan Tičar / Language(s): English Issue: 2/2011

The purpose of this paper is to present an overview of the regulation of environmental protection in force in administrative law in the Republic of Slovenia. The author analyses basic environmental protection principles which are contained in the EU regulation. These principles are: (1) the precautionary principle (le principe de précaution, der Grundsatz der Vorsorge), (2) the principle of preventive action (le principe d'action préventive, der Grundsatz der Vorbeugung), (3) the principle of correction at source (le principe de correction à la source, der Grundsatz, Umweltbeeinträchtigungen mit Vorrang an ihrem Ursprung zu bekämpfen), and (4) the polluter pays principle (le principe de pollueurpayeur, das Verursacherprinzip).In order to accede to the EU, the Republic of Slovenia in Article 3a of the Constitution of the Republic of Slovenia allowed the supremacy of the primary legislation of the EU over Slovenian national regulations. The above-mentioned principles of the EC Treaty are transposed into the legal system of the Republic of Slovenia by means of its environmental legislation and implementing regulations. In this paper the author analyses the public law regulation contained primarily in the Environmental Protection Act (Official Gazette RS, Nos. 39/2006, 20/2006, and 70/2008). In addition to the general regulation implemented already by the Environmental Protection Act of 2006, the last amendment to the Environmental Protection Act transposed into the Slovenian legal order the provisions of Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage.The paper focuses on the administrative legal regulation of the prevention and reduction of burdens on the environment, the conservation and improvement of the quality of the environment, the remedying of the consequences of burdens on the environment, as well as the improvement of the disrupted natural equilibrium and the recovery of its regenerative capacity. The paper furthermore analyses the application of the Environmental Protection Act as a general substantive law, as well as the special application of the procedures provided for in the Environmental Protection Act against subsidiary regulation of general administrative procedures in cases in which public and private interests are in collision or in potential collision.

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