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CONSIDERAŢII DE DOCTRINĂ ŞI JURISPRUDENŢĂ PRIVIND ASIGURAREA UNEI PRACTICI JUDICIARE UNITARE ÎN MATERIE PENALĂ

Author(s): Ion Ristea / Language(s): Romanian Publication Year: 0

The introduction by the legislator of the new Code of Criminal Procedure of provisions regarding the unitary interpretation of the la represents an element of progress in the concern of adjusting the Romanian legislation to the European one. Insuring the unitary interpretation of the law is a component of the principle of judicial security which derives from the preeminence of the law, has a strong relation with the principle of legality and the right to a fair trial. In this context, the author has identified some divergent ideas expressed in the doctrine regarding the regulation of this area and by using arguments inspired from the judicial theories and practice has expressed the opinion regarding the most pertinent idea.

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PRACTICA JUDICIARĂ ÎNTRE IZVOR DE DREPT ȘI ADEVĂR JURIDIC PARTICULAR

Author(s): Tiberiu Viorel POPESCU / Language(s): Romanian Publication Year: 0

Judicial practice, especially that issued by higher courts, tends to become a source of law, especially when it is in a position to become "obligatory". As the concept of "normative character" is lacking in the Romanian law landscape, the sources of law and the understanding of the "binding force" of judicial decisions must be carefully delineated in relation to the particular legal truth usually expressed by the judgments of the courts. Also, the indisputable contribution to the formation of the new right of judicial practice in all domestic and European courts has to be emphasized. The judicial control to which the administrative acts and the constitutionality control of the laws are subjected by the administrative litigation also generates a reference judicial practice in which the practice of the constitutional litigation which has a great influence on the law is significant. This is particularly influenced by the acts issued by some institutions that once were generating a very useful judicial practice.

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SUBIECŢII RĂSPUNDERII JURIDICE PENTRU ÎNCĂLCAREA OBLIGAȚIILOR DE SERVICIU

Author(s): Adrian-Remus Ghiculescu / Language(s): Romanian Publication Year: 0

This article briefly examines the main forms of legal liability in the case of a public servant breaching their job duties namely civil liability, criminal liability, contraventional liability and disciplinary liability, in terms of the active and passive subjects of each form of legal liability.The active subject of legal liability is the person who holds the right to hold accountable the person who committed the unlawful act.The passive subject of legal liability may be the person in charge of the obligation to enforce the legal sanction to which the injured party has the right to do so through the unlawful act.An active subject of legal liability for breaching off service obligations may be the State, the public authority or institution, the military unit, the employer, the professional organization or any natural or legal person injured in his / her rights or in a legitimate interest by an administrative act or by failing to solve a request within the legal term.Passive liability of legal liability for breach of duty may be a civil servant (within the meaning of Article 2, paragraph 2 of Law no. 188/1999), the dignitary, the magistrate, the military, the employee, the freelancer, the volunteer or the student or student in practice.All the forms of legal liability have in common the principle of legality of the prosecution and the principle of legality of the sanctions.

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ASPECTE PRACTICE PRIVIND EXCEPȚIA NECOMPETENȚEI TERITORIALE ÎN CAMERA PRELIMINARĂ

Author(s): Denisa Barbu / Language(s): Romanian Publication Year: 0

The present paper will examine the ways in which the claims and exceptions relating to the legality and loyalty of the prosecution are assessed at this stage in order to know: a) who are the holders of the right to formulate/invoke claims and exceptions; b) the date until which they can be formulated, c) the subject of the criticisms that may be done by the prosecution, d) the situations in which the case is ordered to be restituted to the Prosecutor’s Office or the cases in which the opening of the court is ordered.After the criminal prosecution has been completed, the prosecutor will check whether the legal provisions guaranteeing the truth have been complied with, whether the criminal prosecution is complete and that there are necessary and lawful or loyal administrative evidence and that the defendant is sued by the indictment when the criminal investigation material that the deed exists, that it was committed by the defendant and that he is criminally responsible. Beyond the substantive changes, the preliminary chamber procedure is placed historically in the succession of the institution of the indictment chamber provided by art. 279 C.c.p. 1936, which had the power to order the referral of the defendant to the Court of Jurists, when there is evidence and solid evidence against the defendant.

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RĂSPUNDEREA PENALĂ A ALEȘILOR LOCALI – TENDINȚE DE RACORDARE LA NOILE PROVOCĂRI LEGISLATIVE ȘI JURISPRUDENȚIALE

Author(s): Mihnea-Alexandru Cerchez / Language(s): Romanian Publication Year: 0

The criminality among elected representatives is now a phenomenon with a wide spread and at the same time a real problem faced by the judicial authorities, both in terms of the complexity of the phenomenon and the social danger it represents, in relation to the negative consequences generated at the level society as a whole. Local elected representatives are criminally responsible for crimes committed in the performance of their service duties, crimes covering a wide range of domains, Romanian society as a whole, and public administration in particular, facing an alarming situation. The criminal activity of the elected officials seriously affects the good functioning of the public administration by jeopardizing the organizational stability of the public institutions and authorities by undermining the principles of good administration, equity and social justice, by generalizing the phenomenon of corruption and, last but not least, by the erosion citizens' trust in decision makers in the public administration sphere.

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INTERPRETAREA LEGII ÎN CONTEXTUL NOILOR REALITĂȚI SOCIALE

Author(s): Mihai-Adrian Dinu / Language(s): Romanian Publication Year: 0

The aim of this work is to analyze the interpretation of law from the perspective of its recipients, the role of the national courts jurisprudence has in crime prevention, both from the perspective of incriminating and punitive regime. Also, the paper makes an analysis of the impact of European jurisprudence over national legislation in order to improve the quality of law to ensure understanding and compliance by the recipients themselves. For example, the paper analyzes cases from national case-law concerning the application and interpretation of the legislation in the field of cybercrime.

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NORME DE INCRIMINARE INEFICIENTE ÎN MATERIA PROTECŢIEI MEDIULUI PRIN MIJLOACE DE DREPT PENAL

Author(s): Andreea Vernea / Language(s): Romanian Publication Year: 0

In this paper, the author briefly analyses two provisions of special criminal regulations regarding the protection of the environment, that, due to legislative changes since the enactment of the criminal provision until today, have turned out to be inefficient.In the first part of the paper, the author makes some terminological specifications, while in the second part the constitutive content of the crime regulated by art.107, paragraph 1 of Law no.46/2008 regarding the Forest Code is analyzed.In the third part, the main particularities of the constitutive content of the crime regulated by art.44 of Law no.111/1996 regarding the safe conduct, regulation, authorization and control of nuclear activities, are highlighted.In the end of the paper, the author points out the proposals for improving the legislation, as resulted from the analysis undertaken.

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PRINCIPIILE GENERALE ALE DIRECTIVEI EIA ÎN CADRUL JURISPRUDENȚEI CURȚII DE JUSTIȚIE A UNIUNII EUROPENE

Author(s): Justin Ștefan / Language(s): Romanian Publication Year: 0

The general principles of EIA Directive are analysed throughout this article, principles deriving from the case law of EU Court of Justice in the following areas: EU fundamental treaties’ objectives regarding the environment, transposition of a directive and information concerning the transposition to be provided by the Member States, burden of proof, scope and purpose of EIA Directive, uniform interpretation and application of UE law, intercession obligation, deadlines, conditions to request compensations.

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UNELE COMENTARII PRIVIND MODIFICĂRILE CODULUI PENAL CARE URMEAZĂ SĂ FIE ADOPTATE, CU REFERIRE SPECIALĂ LA INFRACȚIUNILE DE CORUPȚIE ȘI DE SERVICIU

Author(s): Niculae Gamenț / Language(s): Romanian Publication Year: 0

At present, the Romanian criminal lawmaker is concerned with a work of amendments or additions to the Criminal Code in order to comply with Constitutional Court rulings and certain directives of the European Union. The present study includes some comments regarding the amendments and additions made in the field of corruption and service crimes. At the same time, the texts of the Criminal Code criminalizing the corruption and the acts of corruption and to be amended and supplemented and to what extent these amendments and supplements are constitutional or not based on the Decision no. 650 of October 25, 2018 were brought to the fore.

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ASPECTE PROCESUAL PENALE PRIVIND CAUZELE CU MINORI ÎN LUMINA DIRECTIVEI NR. 2016/800 (DIRECTIVA COPIILOR)

Author(s): Lorena-Mihaela Zidaru / Language(s): Romanian Publication Year: 0

Among numerous other international and european legal instruments, Directive 2016/800 enshrines key principles in juvenile justice and provides guarantees in order to defend the rights of children who are suspects or accused persons in criminal proceedings. Most of the procedural safeguards of the directive are established in the domestic criminal law, but there are also provisions that need improvement or change by legislative means or better enforcement in national case-law once the directive is implemented.

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CONFISCAREA SPECIALĂ. CONFISCAREA EXTINSĂ. STANDARDE PROBATORII

Author(s): Mihai Toader / Language(s): Romanian Publication Year: 0

The present study aims at providing the most judicious explanation of the issue of the standard of proof alleged by the legislator for the protection of the legal nature and the regulation of special confiscation and extensive confiscation by emphasizing solutions from the national and European judicial practice that the competent judicial bodies may have one of these criminal penalties. Reflecting the literature and jurisprudence in the matter, interpreted from the subjective perspective of a criminal scientist, without giving the claim to omniscience or exhaustiveness, the present study, the fruit of a scientific research, provides a theoretical solution for practitioners called to work in in an incipient or in perfect form, the prescriptions of special confiscation or extended confiscation from the point of view of the probative standard required by the legislator to adopt these sanctions. The paper aims to be one of the many stages of search and study, in order to articulate a solid doctoral thesis, which pluri- nally addresses the criminal money laundering phenomenon.

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INFLUENŢA JURISPRUDENŢEI ASUPRA CĂILOR EXTRAORDINARE DE ATAC (RECURSUL ÎN CASAŢIE)

Author(s): Versavia Brutaru / Language(s): Romanian Publication Year: 0

Remedies are means provided by the law by which the State, through the Public Ministry, and the persons designated by law promote a judicial control in which criminal judgments are verified in order to abolish those judgments which contain factual and legal errors and replacing them with judgements compliant with law and truth.Remedies against court decisions, both ordinary and extraordinary, are based on the need to control the work of the courts. Following the exercise of judicial control, possible errors in the judicial process can be avoided, either in terms of establishing the facts or as regards the enforcement of the law.Starting from the lato sensu definition, a criminal procedural law must take into account certain principles when regulating the appeal system, whether ordinary or extraordinary. Thus, the Criminal Procedural Law must take into account the principle of necessity (preventing the continued validity of an unlawful and ungrounded decision), the principle of operability (the judgment of conviction being enforced as soon as possible, and therefore a reasonable duration of the criminal proceedings) , the principle of res judicata (in essence, this principle ensures the prestige of the final judgments under the legal presumption that they are in accordance with the truth and the law). Too many extraordinary remedies would inevitably result in distrust of justice, uncertainty about the way in which the courts have been finally ruled in criminal cases. The principle of operability and res judicata must be used by the legislator in a rational and balanced way. The length of the criminal proceedings can not be shortened to the detriment of a legal and thoroughly decision, the stability of the court judgment invested with res judicata does not justify maintaining a judgment with serious errors of fact and law, even if it is final.

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SOLUŢIILE PRONUNŢATE DE INSTANŢA DE JUDECATĂ SESIZATĂ CU ACORD DE RECUNOAŞTERE A VINOVĂŢIEI

Author(s): Ioana Stoenac-Cîrstea,Ciprian Stoenac / Language(s): Romanian Publication Year: 0

: The article briefly examines the main solutions that the courts can decide (both on the merits of the case and on the appeal) in the procedure of a plea bargaining, uncluttering the unregulated issues with which the courts may face in this procedure.With the conclusion of a plea bargaining agreement, the defendant forgoes the right to be tried in a joint judicial process and deprives himself of a series of rights. Regarding these issues, the defendant will have to weigh vigorously if necessary to initiate such a procedure, and will proceed as described only if it has certain benefits and will fully understand the consequences of a such procedure.

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ASPECTE PRACTICE PRIVIND CONDUCEREA ȘI SUPRAVEGHEREA DE CĂTRE PROCUROR A URMĂRIRII PENALE EFECTUATE DE CĂTRE ORGANELE DE CERCETARE PENALĂ

Author(s): Denisa Barbu,Ion Flămînzeanu / Language(s): Romanian Publication Year: 0

By criminal prosecution we understand the activity of the criminal investigating bodies consisting in gathering and checking the evidence regarding the committing of any crime, thus revealing the perpetrator and establishing his liability for the prosecution, while taking the measures aimed at ensuring the good the criminal proceedings.The paper follows the theoretical aspects emerging from the provisions of art. 299-304 N.C.C.P. and are corroborated with the practicalities resulting from them. In this chapter, it will be noticed the primordial role of the prosecutor in conducting criminal prosecution and how he can exercise his duties in order to accomplish the object of the criminal investigation, being assisted in this respect by the criminal investigation bodies.In view of the very high number of complaints concerning criminal matters and the fact that they must be dealt with within a reasonable time, the criminal investigation bodies have the role of supporting the prosecutor either by conducting criminal investigation activities followed by proposals or by carrying out of activities delegated by the prosecutor by delegation. The prosecution must be carried out in compliance with all legal provisions for the purpose of performing the act of justice. This principle has to be respected by the criminal investigation bodies, and among them the prosecutor is the one who, by means provided by the law, supervises the activity of criminal investigation bodies.

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EFECTELE JURISPRUDENȚEI CURȚII DE LA STRASBOURG ASUPRA PROCESULUI PENAL ROMÂN

Author(s): Beatrice-Florina Draghiciu / Language(s): Romanian Publication Year: 0

The case law of the European Court of Human Rights offers a wide range of applicability of the rights guaranteed by the European Convention on Human Rights and an analysis of a large number of cases provides the possibility of identifying "rules" for the calculation of permitted limits, without prejudice to the existence of the right or freedom. At the same time, the Strasbourg Court is a true factor in regulating and creating principles and concepts designed to ensure the protection of fundamental rights and freedoms.Since the beginning of Romania's accession to the Convention, the jurisprudence of the Court of Strasbourg influenced and led to the materialization of numerous legislative changes that took place in the legal system, but also in the direct application of the Court's judgments by the organs of state, to the courts. Furthermore, even the Criminal Procedure Code expressly refers to the case-law of the Court, stating that, in the context of an appeal procedure in the interest of the law, in order to ensure the uniform interpretation and application of a law by all courts, the application must also include jurisprudence the European Court of Justice.

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ROLUL JURISPRUDENȚEI ÎN REFORMA PENITENCIARĂ

Author(s): Crina-Bianca Vereș / Language(s): Romanian Publication Year: 0

The state fails to favor statistics to the detriment of man. The reconstruction of the judiciary system, and implicitly of the penitentiary environment, must have man at the forefront. The state is constituted to be useful to its citizens, and not vice versa. For this reason, every conviction to the European Court of Human Rights on grounds of inhuman and degrading treatment is a state’s failure. The problem is not limited to the actual accommodation, but social reintegration needs to be considered. Unfortunately, urgency sometimes leads to temporary solutions that can eclipse the long-term solutions that are already taken under consideration.

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ROLUL JURISPRUDENȚEI CEDO ÎN CONFIGURAREA LEGISLAȚIEI EXECUȚIONAL-PENALE. STUDIU CRIMINOLOGIC

Author(s): Aura Preda / Language(s): Romanian Publication Year: 0

The paper analyzes the case law of the ECHR on the conditions of detention in Romanian prisons, including the overcrowding. The social response of the State to these realities, following the April 2017 pilot decision of the ECHR, generated measures that has made changes to some rights of detainees. The legislation adopted as the compensatory remedies that has not solved the problems faced by the prison system in Romania, as some statistical data demonstrate.

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UNELE ASPECTE ALE EVOLUȚIEI INCRIMINĂRII PRIVIND CRIMINALITATEA ORGANIZATĂ

Author(s): Vasile Băiculescu / Language(s): Romanian Publication Year: 0

Organized crime may have direct consequences on the economy of the the states. In an attempt to reduce this scourge, at international level, were concluded several Convention in relation to which the Romanian legal sistem was adapted. This article aims to analyze the methods applied by the Romanian legislator to diminish organized crime.

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SANCȚIONAREA TERORISMULUI ȘI RADICALIZĂRII ÎN SCOP TERORIST – UN „COMPROMIS” AL MARILOR SISTEME DE DREPT

Author(s): Viorel Gheorghe / Language(s): Romanian Publication Year: 0

More and more prominent realities of a society in the process of self-identification, where terrorism and radicalization increasingly acutely worrying the world, claiming the immediate need for deciphering the internal trigger mechanisms of comisual valency acts, but and socio-legal solutions is needed to control and eradicate these phenomena. The uncertainties of the present are built on the motivation of the following questions and social concern:Can they play a determining role in diminishing or eradicating the two phenomena, identifying legal contents of unitary valence?Can the main contemporary legal systems be harmonized to combat these phenomena?There are questions arising from objective necessity, in a particularly complex and volatile international context, with asymmetric challenges and hybrid threats increasingly diffused, but increasingly present.The two phenomena represent major threats to international security, a threat to democratic values, citizens' rights and freedoms, with significant enlargement tendencies, so that in the context of the existing jury, taking into account the diffusion of the modalities of manifestation related to the identification of some legal options for control and sanctions, I appreciate that a complex approach - if necessary, even explanatory - from this perspective, is absolutely necessary.

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RECIDIVA ÎN PROGRESUL REGLEMENTĂRILOR DREPTULUI PENAL

Author(s): Constantin Tănase / Language(s): Romanian Publication Year: 0

Starting from the fact that science of criminology is part of the broad concept of "criminal science", it is not a normative science. The contribution of criminology to the progress of criminal law comes only indirectly from the jurisprudence and interpretation of criminal and procedural criminal laws, but also from the options that the in-depth study of criminality offers in order to regulate some fundamental institutions of criminal sciences or in the elaboration of efficient criminal policy strategies We illustrate this approach with our research on the phenomenon of relapse.

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