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HUMAN DIGNITY IN ROMANIAN LAW

Author(s): Elena-Mihaela Fodor / Language(s): English Issue: Supliment2/2017

Dignity is a concept that has evolved according to the moral and ethical requirements of a certain time and space, following the shifts of life of the community which sanctions it. It has come to signify the birth-given right of the individual to be valued by others and to be treated accordingly. Regarding the legal aspect of dignity, it is undisputed that it is one of the fundamental rights of the human being. It is no longer a question of whether one realizes or wastes dignity, because the law is made to protect this value no matter what the actual situation of one is in society. As according to the Romanian Constitution the international conventions ratified by Romania take precedence over national legislation, the same being valid for European Treaties and other mandatory community regulations, these international legal norms are included in the national legislation. Their legal force is equal to the force of the Constitution. The paper analyses the legal frame for protection of dignity in Romania through the international conventions protecting human rights that Romania has adhered to, its Constitution, the Civil code (Law No. 287/2009) and the Criminal code (Law No. 286/2009). Case law of the European Court of Human Rights, which enlarges the normative field by including in the interpretation of the European Convention of Human Rights other international acts, and of the European Court of Justice is presented. Although a very wide concept, human dignity is perceived in connection with other human rights in a common manner in the international community. Romanian legislation is in line with international norms, but not always correctly applied.

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MIGRATION. A CHALLENGE TO INTERNATIONAL STABILITY AND RESPECT FOR HUMAN RIGHTS

Author(s): Claudia Elena Marinică / Language(s): English Issue: Supliment2/2017

Remodeling the E.U. migration process and managing migration through a complex and balanced approach are key aspects of the current EU policy; the international stability of E.U. member states, including the E.U. itself, can be achieved mainly through responsibility and solidarity. In this context, the protection of human rights, of the European values and of the European principles of law represents a challenge to European societies in terms of international stability and the need to develop coherent national and European policies. The cooperation for eliminating discrimination, the development in areas such as free movement, education, health, labor law, poverty reduction, human rights, reducing the negative impact on local communities, and considering the phenomenon of migration as an opportunity for some local communities, as well, are challenges that contemporary European societies have to overcome successfully, requiring long-term, efficient solutions, which guaranteeing social cohesion at local and international level.

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INTERNATIONAL PROTECTION IN THE EUROPEAN UNION

Author(s): Alexandra Bucur / Language(s): English Issue: Supliment2/2017

Given that the European Union is facing a crisis in terms of migration, international protection has gained a fundamental role at the level of the European Union. Although the number of asylum seekers decreased at the beginning of 2017 compared to the previous year, the granting of protection remains a situation that is not manageable for the European Union.

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THE PURPOSE OF A EUROPEAN MINISTER OF ECONOMY AND FINANCE AND ITS IMPACT ON ROMANIAN PUBLIC FINANCE LAW

Author(s): Emil Bălan,Marilena Ene / Language(s): English Issue: Supliment2/2017

The evolution of the EU fiscal policy over the last 10 years since the financial crisis caused many public debates and it is not over yet. Currently the Member States have the possibility and the obligation to coordinate their economic policies and to address the economic challenges under the European Semester procedure. The last speech “State of the Union Address” of the Jean-Claude Juncker, the European Commission President, on 13 September 2017 generated a new discussion related to the role and position of a new to be created post of a European Monetary Fund and Economy and Finance Minister. The European Commission presented on 6 December 2017 a set of proposals regarding the next steps for further deepening Europe's Economic and Monetary Union (EMU). The paper will present the current obligations of the EU countries as resulted from the existing legal provisions during the year in order to ensure sound public finance and to prevent excessive macroeconomic imbalances. Also, it is interesting to analyse the current roles of the European Commission and the Council in the fiscal policy of the member states and to identify the possible impact of the new proposal on the current obligations of a member state and on the Romanian public finance law.

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ASPECTS OF COOPERATION BETWEEN THE PARLIAMENT AND THE GOVERNMENT REGARDING EUROPEAN AFFAIRS

Author(s): Dragoș-Adrian BANTAȘ / Language(s): English Issue: Supliment2/2017

The unique creation in the history of the relationships between states, the European Union is an innovative construction whose structure is based on a number of institutions representing, as the case may be, the interests of the citizens of the European Union, of the Member States and of the Union itself, all of wich are involved in the decision-making process at the Union's level. The positions of the States that are expressed in the representative institutions are carried out after certain internal procedures, which are capable of offering a legal and legitimate nature, from a democratic point of view. Also, in the exercise of parliamentary supervision over European affairs, national parliaments are becoming a link in a complex institutional chain; these elements, in fact, are the subject of our study. In order to accomplish this, we propose to use the analysis of the primary sources, more specifically to identify the primary sources of European Union law (TEU, TFEU and its Protocols), as well as national legislation or the case-law of the CJEU. Last but not least, we will refer to the doctrine to critically interpret the legal framework identified.

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CONSIDERATIONS SUR LE STATUT DU PARQUET EN FRANCE. LA SUBORDINATION AU MINISTRE DE LA JUSTICE ET L’EQUITE DANS LE CONTEXTE INTERNATIONAL ET NATIONAL

Author(s): Monica Marcela Dinu Bakos / Language(s): French Issue: 01/2018

The article treats and analyses the statute of the Prosecutors in France and the conformity of the 5th article of the Organique Law ruling the statute of magistrates which reveals that : « The magistrates forming the Public Minister are placed under the control and under the direction of their superior chiefs and under the authority of the French Minister of Justice (…) », with the rule of law principle, with the 16th article of the French Declaration of human and citizens’ rights from 1789, guaranty of the independence of the judicial authority and with the 64th article of the French Constitution from 1958. The French Constitutional Council was seized on September 27th, 2017 to decide on the priority issue of constitutionality (QPC) raised in June 2017 concerning this issue by the Union syndicale des magistrats. It was also pointed out that these provisions disregard, for the same reason, the right to a fair trial and the rights of the defense in the criminal trial. The European Court of Human Rights has questioned the French penal system and not in a very favorable way for France by appreciating upon the statute of the Public Prosecutor. Nevertheless, France has chosen to justify its traditional structure regarding this matter of subordination because, in fact, it does not contravene the Constitution or the principle of the fairness of the criminal trial since, indeed, independence and the separation of powers (rule of law) exist and have always existed in the French penal system.

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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.

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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.

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FUNDAMENTALS OF PROJECT FINANCE APPLIED TO PRIVATE PUBLIC PARTNERSHIPS IN COLOMBIA

Author(s): Monica Liliana Ibagon / Language(s): English Issue: 02/2018

PPPs, structured under Project Finance standards, form a system determined by a normative complex organized by subsystems and interacting and interdependent elements conditioned by a process of control and communication. This systematic nature has an effect on the legal configuration of the content of the PPP contract. It was shown that financing depends, on the one hand, on budgets that condition it and, on the other, it acts as a determinant of other elements of the system; so that there is a close relationship between the financing of the project and the challenge of contractual management. The correspondence between the components of the project finance system is of reciprocal conditioning and is determined by the communication between its parts.

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LEGAL PERSPECTIVES ON THE UNIFICATION OF THE REPUBLIC OF MOLDOVA WITH ROMANIA. WILL THE HISTORY REPEAT ITSELF?

Author(s): Dumitru Cazac / Language(s): English Issue: 02/2018

The Great Union of 1918 has represented a fundamental step in the foundation of the contemporary Romanian state, whereas for Bessarabia it was a chance to retake its direction of evolution towards the west. Unfortunately, the history has separated it once again in 1944, in order to become an independent state named the Republic of Moldova, after a soviet era. Unionist tendencies were registered on both sides of the Prut river ever since 1991, and have augmented in the last years due to the worsening economic situation. This paper aims to make a legal analysis on a possible unification of the Republic of Moldova with Romania, taking into account, particularly, the EU member statute of Romania and the existence of a separatist region – Transnistria, as well as an autonomous territorial unit – Gagauzia, on the territory of the Republic of Moldova.

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ROMANIA AND ITALY. THE COMMON CULTURE OF THE MEMORY OF THE PAST 100 YEARS. MEMORY AND IDENTITY IN THE ROMANIAN-ITALIAN DIALOGUE: SYMBOLIC SPACES, LEGAL, HISTORICAL AND PHILOSOPHICAL ISSUES

Author(s): Ovidiu Predescu / Language(s): English Issue: 02/2018

Between the 26-27 October 2018, at the initiative of the “Dunărea de Jos” University of Galaţi, the Association of Scientific Researchers in the field of International and European Law (Italy) and the “Acad. Andrei Rădulescu” Legal Research Institute of the Romanian Academy, at the headquarters of the “Ugo Spirito e Renzo di Felice” Foundation in Rome, was held the international colloquium “Romania and Italy. The common culture of the memory of the past 100 years. Memory and identity in the Romanian-Italian dialogue: symbolic spaces, legal, historical and philosophical issues”; the event was dedicated to the Centenary of the Great Union of 1918 – the most important historic moment of the Romanian people. In the scientific papers and interventions held on the occasion, various important aspects of the Romanian-Italian relations were approached.

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CONSIDERATIONS UPON SOME INTERNATIONAL TREATIES WHICH SHAPED THE HISTORY OF MODERN ROMANIA (1918 – 2018)

Author(s): Cristian Jura / Language(s): English Issue: 01/2019

This research will provide a new perspective on the history of Romania, in general, and on history of modern Romania (1918 – 2018), in particular, from the perspective of various and numerous international treaties signed with or without the participation of Romania and which influenced the destiny of our country. Certain internal legal documents important for the history of Romania will be also introduced. The first document presented at the beginning of this research will be the Decree no. 3631 regarding the validation of the Unification of Basarabia, Bukovina and Transylvania with Romania, on 24th of December 1918. One of the last treaties will be The Treaty of Accession 2005 which is an agreement between the member states of European Union and Bulgaria and Romania, which entered into force on 1 January 2007. Between the two documents, almost 100 years of history are comprised. The main method of research used in drafting this study is the content analysis – simple or comparative, as the case may be – approached in a manner specific to the research in the field of social-human sciences, respectively in the field of legal sciences and history. Therefore, this analysis is mainly qualitative (broadly speaking) and less quantitative, a few statistic aspects being however emphasized where they are naturally completing the analysis of some qualitative aspects. My personal experience in the last 20 years in the field of public international law has played a very important role in the paper herein.

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National Security Exceptions in the WTO – A Carte Blanche for Protectionism? Part I – Introduction, Negotiating history of Art. XXI of GATT, Russia – Traffic in Transit Panel`s Report

Author(s): Mihai Ioachimescu-Voinea / Language(s): English Issue: 02/2019

The security exception enacted in Art. XXI of the General Agreement on Tariffs and Trade has been contentious over the years. Parties have either argued that the security exception has a completely ‘self-judging’ nature, or that it allowed for a limited review by the panels and the Appellate Body, in accordance with the ‘good-faith’ principle. At first, states were reluctant to rely on the security exception provided by the General Agreement on Tariffs and Trade, or to refer the matter to the WTO dispute resolution system when other states relied on it. Even when panels were established under the General Agreement on Tariffs and Trade 1947 in respect to a dispute relating to the security exception, they usually had to act upon a limited mandate which hindered their possibility to examine the scope and limits of the exception. The debate over the extent of the ‘self-judging’ nature of the security exception lasted for more than seventy years, and it finally ended with the ruling in Russia — Measures Concerning Traffic in Transit. In this case, the panel asserted the jurisdiction over the security matters of states and provided a ‘roadmap’ to be followed in future examinations. The legal test devised by the panel consists of two parts. The first part is an objective assessment of whether there is a ‘war’ or an ‘emergency in international relations’ and whether the measures were taken during such state of affairs, according to subparagraph (iii) of Art. XXI of General Agreement on Tariffs and Trade. The second part consists of a two-prongs ‘subjective test.’ It involves a deferential review of the veracity of the state`s security interests and of the necessity of the measures adopted by the invoking state. In doing so, the panel will use a ‘sliding-scale’ test, which enables it to modify the degree of scrutiny based on the gravity of the ‘emergency.’

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Short considerations on the un World Happiness Report (2018) and Migration

Author(s): Claudia Elena Marinică / Language(s): English Issue: 02/2019

The phenomenon of globalization, identification and implementing of practical solutions for sustainable development, environmental security, and human development as a whole has also led to a strengthening of the right to happiness. The emergence of the World Happiness Report, as a reference survey of the state of global happiness, shows that happiness does not have the same content and the same configuration everywhere, but it is certainly an ideal to achieve. This article highlights the conclusions of the World Happiness Report for 2018, with special attention to migration, by emphasizing the right to migrate in search of happiness. The originality of this report is represented by the emphasis on the happiness-migration relationship, analyzing this relationship from the point of view of the economic, social, territorial and not only.

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Regionalization of international cooperation in the fight against cybercrime

Author(s): Nataliya Maroz / Language(s): English Issue: 02/2019

International legal cooperation in the fight against cybercrime is carried out primarily on the basis of regional treaties. Since every regional legal regime is unique and has its own specific characteristics the article addresses possible implications of such regionalization. Therefore, the goal of the research is to reveal characteristics of an ongoing trend on regionalization of international legal cooperation in the fight against cybercrime and its possible impact on practical aspects of combating these crimes. It doesn’t address any institutional developments in the area and covers only treaty cooperation on the matter. The applicability of universal treaties on combating different types of crimes to cybercrime suppression is identified. An analysis of regional cybercrime treaties is carried out. On the basis of the undertaken research author makes a conclusion, that regionalization of the international legal cooperation in the fight against cybercrime has its positive and negative sides and has led to a paradoxical situation which partly might be explained by a transnational nature of cybercrime. From one point, regional treaty is the best way to address cybercrime problem within a certain regional organization. From the other side different approaches to the criminalization of acts committed on the Internet or with the use of computer technologies might lead to creation of save heavens for cyber criminals, impede mutual legal assistance or extradition between countries that belong to different regions.

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BRIEF CONSIDERATIONS ON THE INSTITUTION OF PENALTY IN THE CONSTITUTIONS OF EU MEMBER STATES

Author(s): Silviu-Gabriel Barbu,Vasile Coman / Language(s): English Issue: Supliment1/2019

The study aims to highlight the main norms regarding the institution of the punishment (penalty), as provided in the Constitutions of the Member States of the European Union, with reference to the constitutional articles, accompanied by brief clarifications where deemed necessary. The paper is preceded by a brief analysis of the corresponding institution in the Romanian Constitution, with reference to the relevant domestic legislation.

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CONSTITUTIONAL IDENTITY AND EUROPEAN MEMBERSHIP

Author(s): Ioniţa Cochinţu,Cristina Titirişcă / Language(s): English Issue: Supliment1/2019

Given the context in which Romania finds itself - on the one hand, a national, sovereign and independent, unitary and indivisible state and, on the other hand, its membership to certain international structures - for example to the United Nations, to the Council of Europe, to the European Union etc. - or Romania 's quality as a party to the Convention for the Protection of Human Rights and other international treaties - the natural question arises, where lies the boundary between the national sovereignty, which presupposes the right of the state to decide freely in its internal and external affairs and which has two components, namely the independence and the supremacy, and the fulfilment of some obligations deriving from the membership to the above-mentioned structures, a membership having the significance of a restriction of the powers of the state authority, a relativization of national sovereignty.

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AXIS II. EUROPEAN LAW IMPLEMENTATION AND PUBLIC ADMINISTRATION IN DUBIO PRO REO - MYTH OR REALITY

Author(s): Denisa Barbu / Language(s): English Issue: Supliment1/2019

The current code of criminal procedure brings important changes to some institutions from the old code of criminal procedure, but it also establishes a number of new institutions that did not exist in our criminal procedural law. All these changes are reflected first and foremost in Title I of the General Part of the Code, which regulates the principles of criminal procedural law. The presumption of innocence is closely related to the notion of impartiality of the court, in order to guarantee the presumption of innocence is also art. 6 para. 2 of the ECHR, according to which the state representatives refrain from making public statements in the sense that the accused is guilty of committing a certain crime.

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INSTRUMENTS FOR BETTER REGULATION. A COMPARISON OF THE REGULATORY IMPACT ASSESSMENT (RIA) LEGAL FRAMEWORK IN ROMANIA AND IN FRANCE

Author(s): Ionuț-Bogdan Berceanu / Language(s): English Issue: Supliment1/2019

The aim of this paper is to make a comparison on the way in which it is regulated in Romania and in France the RIA – Regulatory Impact Assessment instrument. The analysis is starting for the assumption of the European Commission that "better regulation is about designing EU policies and laws so that they achieve their objectives at minimum cost". An instrument in achieving this goal is the RIA, which it was introduced and used not only for the EU administration, but also, as required by the European Commission, at the EU member states level. Through the comparison research method used in this paper it is expected to understand the way in which the two countries designed their legal framework for implementing the RIA instrument. By doing this, it could be observed if the two states subject to the analysis achieved one of the goals for having better regulation.

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THE ROLE AND IMPORTANCE OF CLUSTERS IN EUROPE. GERMAN MODEL VERSUS ROMANIAN MODEL

Author(s): Eduard Călinoiu / Language(s): English Issue: Supliment1/2019

Sustainable growth and job creation in European countries depend increasingly more excellence and innovation, which are the drivers of European competitiveness. Clusters are a phenomenon mainly focused on the market. Most successful clusters are created spontaneously as a result of natural competitive advantages, market forces or simply by chance. However, due to the policies established clusters in the Member States there is a growing number of cases where public policy on long-term initiatives economic entities or universities and research institutes senior allowed the emergence of clusters powerful acting as a catalyst and helping to unleash the economic and scientific certain regions.

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