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Необходимостта от разграничаване на занятието от правно регламентираната дейност в съставите на професионалната непредпазливост

Author(s): Nadya Pandilova / Language(s): Bulgarian Publication Year: 0

This paper is focused on the activities in which even the most harmless ignorance or negligent performance could cause severe consequences dangerous to the society. These activities, as a source of major danger, with the adoption of the current Criminal Code are divided by the legislator in two kinds - vocations or legally regulated activities. Hence, the reasons of the legislator are no longer followed by the interpretative caselaw. With the adoption of Ruling No. 6/1969, the Supreme Court unifies the two key notions for the professional negligence, the vocation and the legally regulated activity. Without taking into consideration the differences that exist between the notions, the interpretation made by the Supreme Court raises the justified question of what is the need for the presence of both of them in the constituent elements of the crimes under Art. 123 and Art. 134 of the Criminal Code, since the caselaw accepts, that they both mean the same? It remains incomprehensible to us why two activities, regarded as objective features of the constituent elements of the abovementioned crimes, are at the same time described in Ruling No. 6/1969 through the characteristics of the subjects, who are allowed to exercise them.

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Някои случаи на ненаказуемост по българския Наказателен кодекс

Author(s): Petya Hadzhiyska / Language(s): Bulgarian Publication Year: 0

This article aims to analyze individual cases of impunity for the act provided for in Bulgarian criminal law. Attention is paid to the classifications of general and special grounds for impunity known in theory, distinguishing the cases of impunity from other known institutions – release from criminal liability and release from serving the sentence. This article does not fully examine all cases of impunity, which task will be performed in a separate study of the author.

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Някои аспекти при условното предсрочно освобождаване

Author(s): Chavdar Petrov Groshev / Language(s): Bulgarian Publication Year: 0

The article addresses the essential characteristics of the institute of Conditional release from its origin as a legal possibility to the final fulfillment of the purposes of criminal punishment, without the necessity of serving it effectively. The specifics of the institute are presented by comparing them with the specifics of other main institutes, such as Conditional Sentence, Act of pardon, Amnesty and Life imprisonment, where we can find both similarities and differences between them.

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Ограничаване на приложното поле на съкратеното съдебно следствие

Author(s): Panayot Velchev / Language(s): Bulgarian Publication Year: 0

The report discusses the provision of Art. 369a of the Criminal Procedure Code, issued 2019 (Official Gazette No 83), which excludes the possibility of the defendant to initiate the summary trial, fully acknowledging the facts, stated in the circumstantial part of the indictment and agreeing not to collect evidence of these facts, when the charge concerns criminal offense of intentionally caused death. Assessment of the positive and negative aspects of that restriction, as well the possibility of another legislative approach and comparison with previous amendments to the special rules contained in Chapter 27 of the Code of Criminal Procedure.

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Aspecte teoretice și practice privind principiul legalității incriminării după intrarea în vigoare a noului Cod penal

Author(s): Maria Oprea / Language(s): Romanian Publication Year: 0

The article aims to provide an analysis for the infraction of „dampening the disease control”, regulated by Article 352 Criminal Code, from the perspective of complying with the exigencies of the incrimination legality principle related to lex scripta and lex certa. In this respect, the provisions of the above-mentioned framework incrimination are examined mentioning the decisions of the Constitutional Court and the provisions of the completing guideline. Therewith, de lege ferenda proposals are issued with reference to the definition of some concepts such as „quarantine”, „home self-isolation” or obligations incumbent to the recipients of the criminal law for preventing or controlling the infectious diseases

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Unele considerente privind principiul proporționălității în cadrul statului de drept

Author(s): Cristian Popa,Antonia-Luciana Paun / Language(s): Romanian Publication Year: 0

The principle of proportionality is an exception from the rigidity of the principles of law and fundamental rights as a result of the effects obtained, respectively a coherent legislative system, focused on the decisions of the constitutional court related to the prerogatives established by the Constitution in the matter of timely and effective regulation of the fundamental principles and rights within the rule of law. Viewed as a constitutional standard, the principle constitutes an instrument of the constitutional judge, through which he can reconceptualize the existing constitutional texts by adding new valences in line with the dynamics of the democratic state. Proportionality is therefore not only an interpretative method of the legislative norm, but also a general principle of law, through which the existing conflicts between competing constitutional values are optimized, which require a certain limitation so that each one can reach its optimal purpose in conditions of normative balance. Therefore, the reception of the principle within the rule of law must aim at creating and sustaining a balance be tween fundamental rights and freedoms, on the one hand, and competing constitutional principles, on the other. Otherwise, an alteration of the purpose of proportionality can be generated within the constitutional analysis at the legislative level, with negative effects on the democratic balance of the state powers.

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Rolul jurisprudenţei Curţii Constituţionale şi a Înaltei Curţi de Casaţie şi Justiţie în garantarea respectării principiilor şi standardelor în procesul de legiferare

Author(s): Victor Alistar,Veres Crina-Bianca / Language(s): Romanian Publication Year: 0

Respecting the standards regarding the lawmaking process is essential in ensuring the effectiveness of the principle „Nemo censetur ignorem legem”. When the legislator does not respect the basic principles in lawmaking, this can lead to a non-unitary practice and even a lack of conformity of the legislation with the Fundamental Law. The negligence of the drafting of the criminal codes has caused many confusions, the solution of which has been found in the vast jurisprudence of the Constitutional Court of Romania and the jurisprudence of the High Court of Cassation and Justice.

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Limitele subisdiarității infracțiunii de spălare a banilor în raport cu infracțiunea premisă

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

The present study aims, starting from the presentation of the constituent elements of the single crime of money laundering, as identified by national jurisprudence, to identify an objective criterion for delimiting the crime of money laundering in relation to the predicate offense, from the perspective of content autonomy. constitutive of the two facts provided by the criminal law, drawing a limit of the subsidiarity report, as fixed in the judicial practice and in the specialized literature, without having the claim of completeness. Although there is no unanimously accepted point of view in the literature or in the specialized doctrine, we consider that the crime of money laundering acquires autonomous corpus, insofar as the active conduct that is confined to its material element (respectively the change or transfer, the concealment or the concealment), acquisition, possession or use) is preceded or accompanied by the use of fraudulent maneuvers.

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Rolul Deciziilor Curții Constituționale a României și ale Înaltei Curți de Casație și Justiție în consolidarea Codului penal și a Codului de procedură penală

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

The article is based on the idea that the rulings of the Constitutional Court are governed by the principle of the supremacy of the Constitution, a principle which is an indisputable result of art. 1 para. (5) and art. 16, para (2) of the Constitution. As a result of said principle and the fact that the Constitution is at the very top of the piramid of sources of law, fundamental law exhibits an indisputable hegemony over all the formal sources of law, setting both principles and basic directions.

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Aspecte controversate în legătură cu infracțiunea de abandon de familie

Author(s): Matei-Shilbaya Mihaela / Language(s): Romanian Publication Year: 0

The author considers necessary to emphasise the correct legal classification of family abandonment, incriminated by the provisions: art. 378 of criminal law. And at the same time, the problems of care are raised by the criminal practice to be discussed. The controversy upon this issue requires analysis, equal interest, legal regulation in civil and criminal matters, which intertwine and necessarily shall be conditioned, in assessing if the the felony of family abandonment occurred in one of the three hypothesis incriminated by the quoted article.

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Analiză critică a dispozițiilor privind mecanismul hotărârilor prealabile

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

The introduction in the Romanian Criminal Procedure Code of February 2014 of the mechanism of preliminary judgments aimed at unifying the judicial practice and creating predictable jurisprudence by solving in a mandatory manner a legal problem on which the solution of the case depends. The high number of requests from the national courts which were addressed to the Supreme Court have de monstrated its undeniable utility, the procedure being meant to contribute to the safeguard of the principle of legal certainty. Therefore, the procedure’s importance in itself determines the need for issues such as the exclusion of possible claim holders, the composition of the trial court, the delimitation of the scope of recognized specialists who can be consulted, the judgment without summoning the parties and the existence of contradictory preliminary decisions and unconstitutional decisions to be examined from a critical perspective in order to analyse if they have deficiencies and if so, if they can be removed.

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Influenta deciziilor Înaltei Curți de Casație și Justiție și a deciziilor Curții Constituționale a României asupra caii extraordinare de atac a revizuirii

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

In the criminal trial, the judgment is one of the most important procedural activities because during the trial the conflict of criminal law deduced from the judgment is resolved. It establishes the existence of a criminal offense, the guilt of the perpetrator and the application of sanctions. By exercising the remedies, a new criminal procedural report is not born, but the initial one is extended, in a new phase of the criminal trial. Likewise, by exercising the remedies, it is not determined the promotion of a new criminal action, this constituting a way of exercising the initial criminal action, by moving to another procedural phase. The extraordinary remedy of the review may be exercised against the definitive judgement, having the character of a retraction appeal which allows the criminal court to revert to its own judgment and, at the same time, the character of a factual remedy, by which are established and eliminated the judicial errors in solving the criminal cases. The review is formulated against a judgment that has acquired res judicata, based on facts or circumstances that were not known by the court in resolving the case, discovered after the trial and which prove that the judgement is based on a judicial error.

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Infracțiunea de mărturie mincinoasă, prevăzută de art.273 Cod penal, în jurisprudența Înaltei Curți de Casație și Justiție și a Curții Constituționale

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

In this paper, the author carries out a brief analysis of the case-law of the High Court of Cassation and Justice and of the Constitutional Court of Romania on the offence of false testimony. In the first part of the paper, some terminological clarifications are made, in the second part the relevant judgments given by the Supreme Court are identified, and in the third part the decisions of the Constitutional court are analysed, with regard to the offence of false testimony. In the latter part, acting as a conclusion, the author's considerations regarding the way in which the case-law previously under consideration influenced the interpretation and application of the incriminating texts are met.

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Introducerea părții responsabile civilmente în procesul penal - răspundere civilă delictuală sau contractuală?

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

The Criminal Procedure Code in force no longer provides as the final moment of the civil part constituting the moment before reading the referral document, specifying that such a constitution can be made until the beginning of the judicial investigation - art. 20 paragraph (1) C. pr. pen.and art. 353 para. (3) C. pr. pen. The civilly responsible party can be introduced, according to art 21, alin. (1), C.p.p. as modified through CCR Decision up until the end of the criminal persecution by the person in right according to the civil law, in order to be able to formulate requests and to raise exceptions in the preliminary chamber. So, the civil party, as the person in right by the civil law, can ask to be introduced the civilly responsible party by the end of the criminal prosecution. On the other hand, the injured person can constitue as a civil party, as art. 20, alin. (1) C.p.p. statues, up until the beginning of the judicial research. Therefore, in the situation that the civil party is not constituted up until the beginning of the preliminary chamber and she does not ask to be introduced the civilly responsible party is there an infringement of the right of the prosecuted? Nor the ones of the civilly responsible party? Are there any remedies?

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Controverse cu privire la constituirea de parte civilă în procesul penal având ca obiect uciderea din culpă ca urmare a unui eveniment rutier

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

As a rule, as we will show, the person injured by an unlawful act that may represent a criminal offense criminally has the following options, as an expression of the principle of availability that governs the civil matter: he has the freedom to choose to stay in passivity or to act in order to recover the damage, according to the principle of Latin origin nemo invitus agere cogitur; when it intends to recover the damage suffered, it has the possibility to try to recover it, either amicably before any judicial procedure or during it, or to try to repair the damage by calling on the coercive force of the state; when it chooses to take legal action, it has the option to join the civil action to the criminal one or to make claims before the civil jurisdiction. In this way, both the civil party and the responsible civil party have their rights covered... what happens to the defendant? In the event that the action in the claims is used in the criminal case, the civil action becomes an institution of criminal procedure.

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Jurisprudența Curții Constituționale și a Înaltei Curți de Casație și Justiție în materia legalității administrării probelor în procesul penal

Author(s): Nadia Zlate / Language(s): Romanian Publication Year: 0

The Constitutional Court and the High Court of Cassation and Justice have a very important role in crystallizing the jurisprudence of national courts. Following the decisions of the Constitutional Court admitting exceptions of unconstitutionality, the legal practice of the courts had to change in certain procedural aspects, even if the legislator did not intervene to amend legal texts declared unconstitutional, such as the legal impossibility of before the beginning of the criminal investigation, the criminal investigation bodies may also order the performance of fiscal controls, in order to comply with the constitutional provisions of art. 16, 21 and 24, at the hearing of the minor aged between 14 and 18 it is mandatory to summon his parents or, as the case may be, the guardian, curator or person in whose care or supervision the minor is temporarily, as well as the general social assistance directorate and protection of the child from the locality where the hearing takes place, the absolute nullity of the evidence obtained as a result of the technical support offered by the Romanian Intelligence Service for the execution of the technical supervision mandates. The High Court of Cassation and Justice influenced the jurisprudence of national courts on the legality of evidence even if it was by non-binding decisions, for example regarding the legality of technical-scientific findings, defining urgency in relation to the need for fair prosecution guidance in carrying out the activity of criminal prosecution, as regards the sanction applicable if the criminal prosecution bodies did not proceed to record the hearing of the suspect, the possibility of hearing the judge, as a witness in a trial whose object is to commit an offense in connection with the deliberation process, regarding the way in which together with the other members of the panel they decided on the solution etc.

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Sesizarea instanței cu acordul de recunoaștere a vinovăției

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

The article briefly examines the main aspects related to the referral of the court in the procedure of a plea bargaining, uncluttering the unregulated issues with which the courts may face. 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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Considerații privind aprecierea probelor în procesul penal

Author(s): Georgeta Cretu / Language(s): Romanian Publication Year: 0

In the present communication, we intend to analyze in part the clarification of some issues related to the assessment of evidence in criminal proceedings, without cl aiming to deepen them, a situation that would have required examination in a broader context and in a space that should have exceeded the content of a scientific communication.

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Legalitatea și constituționalitatea în domeniul investigării criminalistice a infracțiunilor

Author(s): Delia Magherescu / Language(s): Romanian Publication Year: 0

The objective of forensic science is that of discovering crimes and identifying perpetrators, in such a manner to reach solving penal cases under principles of legality, fairness and constitutionality. At the same time, achieving the scope of forensic science is based on investigating crimes, as well as solving them legally and substantially, also based on conclusive, useful and genuine evidence. Administering them will conclude in finding truth in penal cases, which will be reflected upon judicial decisions and finally upon achieving the scope of penal proceedings. Forensic investigation of crimes means the basis of penal investigation, carried out during the investigation phase. The current paper focuses on the means, methods and tactics provided by the forensic science, as a science of technological progress, of discovering and investigating offenses in order to gather scientific evidence, as well as to identifying perpetrators. The main principles of forensic science are provided to judicial bodies in purpose to re-establish the legal order in a fair manner, legally, under the constitutional principles which will be taken into account. The methodology used in researching the current paper is featured by a qualitative approach which will provide the most relevant conclusions, achieved in the end of the doctrinal study.

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Rolul Înaltei Curţi de Casaţie şi Justiţie în situaţiile tranzitorii în succesiunea legilor penale

Author(s): Ion Ifrim,Matei-Shilbaya Mihaela / Language(s): Romanian Publication Year: 0

As is well known, in the practice of our supreme court, as in the case of other courts, some issues have arisen regarding the transitional situations in the succession of criminal laws. Thus, in this paper, the authors analyze in detail the transitional situations; transitional provisions; interpretive laws; the principle of extra activity of the criminal law; mitior lex; lex tertia; difficulties in determining the more favorable law in relation not only to the main punishments, but also to the complementary punishments that accompany the main punishments; the optional application of the more favorable law after the decision remains final; the application of the more favorable criminal law after the final judgment of the case; temporary laws (actual temporary laws and exceptional laws); safety measures; prescription.

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